Government

One of the hottest topics in state capitals from coast to coast is the subject of federalism; ranging from fears about debilitating cutbacks from already-committed federal dollars to questions about how to respond to a broad use of federal branch executive authority. Charged with advancing the role of the states in America’s federal system, the CSG Federalism Task Force is pleased to present a three-part Civics Education Series. This, the first of three eCademy events on federalism's impact across the branches, examines the current relationship between the executive branch and state governments with a view toward providing a fuller understanding of the duties, powers and limitations inherent in our federal system.

If you know anything about the State and Local Legal Center (SLLC) you know that it files amicus briefs in U.S. Supreme Court cases affecting state and local government. The SLLC made an exception and filed an amicus brief in a federal circuit court of appeals case because of the importance of the issue to SLLC members.

In Direct Marketing Association v. Brohl the Tenth Circuit will decide whether Colorado’s law requiring remote sellers to inform Colorado purchasers annually of their purchases and send the same information to the Colorado Department of Revenue is unconstitutional. At least three other states have similar notice and reporting requirements (Oklahoma, South Dakota, and Vermont).

To bring a lawsuit in federal court a plaintiff must have “standing” per Article III of the U.S. Constitution. An undisputed element of standing is that the plaintiff has suffered an injury. But what if Congress allows plaintiffs who have suffered no concrete harm to sue based upon a mere violation of statute? The Supreme Court will decide whether such plaintiffs have Article III standing in Spokeo v. Robins

While the impact of this case on state and local governments may not be obvious, there is a finite number of statutes where Congress has created a private right of action and a plaintiff may be unharmed by a violation of the statute. Most are consumer protection statutes like the Truth in Lending Act and the Telephone Consumer Protection Act, which don’t apply to state and local governments. But a few such statutes do apply—the Fair Housing Act (FHA), the Americans with Disabilities Act (ADA), and the Driver’s Privacy Protection Act (DPPA).  

According to CSG’s Book of the States, three states will hold gubernatorial elections in 2015, followed by twelve states in 2016, two states in 2017, and 36 states in 2018. Here's a look at the upcoming gubernatorial elections, with a breakdown of the party seats that are up for grabs.

CSG Midwest

Seeking to improve transparency and remove conflicts of interest for elected officials, Indiana lawmakers have revamped their state’s ethics laws. According to the South Bend Tribune, legislators will be required to report more on their financial-disclosure forms and on their statements of economic interest. They must now report close relatives who are lobbyists, for example, and also disclose any business interest worth at least $500,000.

CSG Midwest
Love them or hate them, lame-duck sessions are indisputably a time on the legislative calendar when big things often get done. In early 2011, for example, during the final days of Illinois’ 96th General Assembly, legislators passed an income-tax increase, legalized same-sex marriage and abolished the death penalty.
More recently, in late 2014, the Michigan Legislature approved a $1.2 billion plan to raise more money for the state’s roads. (Voters ultimately rejected this legislatively referred constitutional amendment.)
The term “lame duck,” used for decades in American politics, refers to an official leaving office due to retirement or an election loss.
For some states in the Midwest, lame-duck sessions don’t occur because of the typical calendar for a part-time legislature: Lawmakers adjourn well ahead of Election Day. But at the federal level, and in states such as Illinois, Michigan and Ohio, “lame duck” sessions occur regularly — after fall elections but before a new legislature convenes.
Some legislators in Michigan and Illinois say it is time to kill the lame duck in their states.

In Green v. Donahoe the Supreme Court will decide for purposes of federal employment discrimination law when the filing period for a constructive discharge claim begins to run. The Court’s choices are:  when an employee resigns or the employer's last allegedly discriminatory act. Often these two events occur at the same time, but not in this case.

This case will apply to constructive discharge claims brought against state and local government employers under Title VII, the Americans with Disabilities Act, and the Age Discrimination in Employment Act, all of which must first be brought to the attention of the EEOC before a court.

In Williams-Yulee v. Florida Bar the Supreme Court held 5-4 that a Florida statute prohibiting judicial candidates from personally soliciting campaign contributions does not violate the First Amendment. Thirty of the 39 states that elect (rather than appoint) trial or appellate judges prohibit judicial candidates from personally soliciting campaign funds. 

In Mach Mining v. EEOC the Supreme Court held unanimously that a court may review whether the Equal Employment Opportunity Commission (EEOC) satisfied its statutory obligation to attempt to conciliate employment discrimination claims before filing a lawsuit.

The Court’s decision is favorable to employers, including state and local governments, who benefit from the EEOC’s statutory mandate to try to resolve employment discrimination cases before suing employers. If the EEOC fails to try to conciliate employers may sue the EEOC.   

CSG Midwest
Of all the bills considered and signed into law so far this year in the Midwest’s state capitols, one has captured the most attention around the country: Indiana’s Religious Freedom Restoration Act. Passed by comfortable margins (mostly along partisan lines) in the Republican-led House and Senate, SB 101 was signed into law in late March.
 
What followed were calls for boycotts of Indiana (Connecticut’s governor, for example, signed an executive order banning state-funded travel there), concerns raised by top business leaders, and a front-page editorial in The Indianapolis Star to “Fix This Now.” The backlash over Indiana’s RFRA centered on its potential impact on gay and lesbian rights. Would a business, for example, be legally protected if it refused to provide services to a gay patron or same-sex couple?
 

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