Capitol Comments

The Supreme Court keeps on accepting First Amendment cases—perhaps because among the current Court there is much agreement on the First Amendment, so being down a Justice doesn’t matter. This does not bode well for state and local governments, like North Carolina in this case. For better or worse, this case like Expressions Hair Design v. Schneiderman, accepted in September, gives the Supreme Court a chance to refine its holding in Reed v. Town of Gilbert, Arizona (2015).  

The issue in Packingham v. North Carolina is whether a North Carolina law prohibiting registered sex offenders from accessing commercial social networking websites where the registered sex offender knows minors can create or maintain a profile, violates the First Amendment.

G.G. is biologically female but identifies as a male. The Gloucester County School Board prevented him from using the boy’s bathroom. He sued the district arguing that is discriminated against him in violation of Title IX.

The facts of Gloucester County School Board v. G.G. could not be simpler. But the legal issue is complicated.

On Friday, Sept. 23, Facebook, the social media giant and member of the CSG Associates program, pushed out a banner message to its American users reminding them to register to vote. The message read, “Are you registered to vote? Register now to make sure you have a voice in the election.” The reminder also included a link to the federal directory of state voter registration websites, and an option to share with your friends that you had registered. Facebook kept the banner up through Monday, Sept. 26. This is not the first time...

The November-December issue of Capitol Ideas magazine features my article on how states and communities are working to improve transportation mobility for older Americans. One of the experts featured in the article is Beth Osborne, vice president for technical assistance at Transportation for America in Washington, D.C. Osborne, a veteran of both the U.S. Department of Transportation and Capitol Hill, in recent years has been working with states on the implementation of complete streets policies. Complete streets are streets designed for safe access by all users, including pedestrians, bicyclists, motorists and transit riders. In this extended excerpt of our conversation, Osborne talks about how complete streets can benefit seniors, how complete streets implementation processes have evolved, how the process differs from state to state, the promise of rideshare companies and autonomous vehicles for improving senior mobility and what kinds of policies state officials should consider during the 2017 legislative sessions. Osborne will be among the presenters next month at Transportation for America’s Capital Ideas II conference in Sacramento, for which CSG is a promotional partner.

Tuesday November 8th appears likely to be a pivotal Election Day for the nation’s transportation and infrastructure. With control of The White House and Congress on the line, the future direction of the federal transportation program is also at stake. With control of governorships and state legislatures on the line, so too could be initiatives to seek additional state transportation investment. Meanwhile, communities like Atlanta, Detroit, Indianapolis, Los Angeles and Seattle will consider ballot measures that could enable major investments in public transit over the next few years. And voters in Illinois and New Jersey will decide whether to place constitutional protections on the use of transportation funds.

All Supreme Court qualified immunity cases, including Ziglar v. Turkmen, Ashcroft v. Turkmen, and Hasty v. Turkmen, affect state and local governments. These cases raise issues that frequently come up in run-of-the-mill qualified immunity cases, in particular, whether the court defined the “established law” at a high level of generality instead of considering the specific facts of the case when deciding whether to grant or deny qualified immunity.     

A number of “out-of-status” aliens were arrested and detained on immigration charges shortly after 9/11. They claim they were treated in a “discriminatory and punitive” manner while confined and detained long after it was clear they were never involved in terrorist activities. They have sued a number of high level federal government officials including former Attorney General John Ashcroft, former Director of the Federal Bureau of Investigation Robert Mueller, former Commissioner of the Immigration and Naturalization Service, James Ziglar, and two wardens and an assistant warden at the federal detention center where they were held.   

Many voters choose to vote early if their state offers some form of early voting. According to NBC News, as of Sept. 15, more than 1.5 million votes have been cast for the presidential election, and more than 1 million of those votes come from 12 key battleground states. Four years ago, roughly 36 percent of votes cast in the United States were cast early.

Mesa v. Hernandez provides a qualified immunity quandary. If Agent Mesa wins his qualified immunity claim, other government officials in the future may lose their qualified immunity claims. 

United States Border Patrol Agent Jesus Mesa, Jr., shot and killed Sergio Adrian Hernandez Guereca, a fifteen-year-old Mexican national, who was standing on the Mexico side of the U.S./Mexico border. At the time of the shooting Agent Mesa didn’t know that Hernandez was a Mexican citizen. 

The question of most interest to state and local governments in Mesa v. Hernandez is whether qualified immunity may be granted or denied based on facts – such as the victim’s legal status – unknown to the officer at the time of the incident.

The Supreme Court will decide in Nelson v. Colorado whether it violates due process to require criminal defendants whose convictions have been reversed to prove their innocence by clear and convincing evidence to receive refunds of monetary penalties they have paid.  

Shannon Nelson was convicted of five charges relating to sexually assaulting her children. She was ordered to pay a variety of costs and fees. The appeals court overturned her conviction because the trial court allowed a lay witness to testify about the age at which children have the ability to remember information and relate it accurately. A new jury acquitted her.

She asked the trial court to refund the money she paid in costs and fees. It refused ruling that the legislature has not given it authority to issue refunds.

CSG Midwest
The latest tangible sign of high-speed passenger rail service in the Midwest should arrive before the year is out: New, state-of-the-art “Charger” locomotives are ready for delivery, attendees of the Midwest Interstate Passenger Rail Commission’s annual meeting were told in September.
The locomotives, made in Sacramento, Calif., by Siemens, have been successfully tested along Amtrak’s Northeast corridor between Washington, D.C., and New York City, and at the Transportation Technology Center in Pueblo, Colo., said Dave Ward, vice president of Siemens Locomotives’ North America division.

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