Lisa Soronen

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Even though it has been a few weeks since the opinion was handed down, unless you happen to read Land Use Prof Blog you probably have no idea that the birth control mandate case is likely to affect land use regulation. 

As usual, on the last day of the Supreme Court’s term it released its opinion in the biggest case of the term:  Burwell v. Hobby Lobby.  The Court held 5-4 that the Affordable Care Act’s birth control mandate violates the Religious Freedom Restoration Act (RFRA), as applied to closely held corporations.  

The State and Local Legal Center (SLLC) filed an amicus brief, which Justice Ginsburg quoted in her dissenting opinion, because of the possible effect on land use. 

Supreme Court Justices aren’t usually in the advice-giving business.  But the Chief Justice made an exception in a recent case involving regulating speech outside abortion clinics.  Interestingly, his advice is aimed directly at state legislatures.  And it is simple.  Buffer zone:  no.  State statutes criminalizing injury, intimidation, interference, harassment, and obstruction at clinics: yes.

Warrantless searches of cellphones?  Simple question.  Simple answer.  No (generally).  

In Riley v. California the Supreme Court held unanimously that generally police must first obtain a warrant before searching an arrested person’s cellphone.

Police searched David Riley’s cell phone after he was arrested on gun charges and found evidence of gang activity.  In a second case, police arrested Brima Wurie for selling drugs and used his cell phone to figure out where he lived—where they found more drugs and guns.    

The Fourth Amendment requires police to obtain a warrant before they conduct a search unless an exception applies.  The exception at issue in this case is a search incident to a lawful arrest.

Law and not policy is supposed to be the basis upon which courts decide cases.  Yet the Supreme Court’s recent decision regarding permitting stationary sources that emit greenhouse gases is full of as much policy as law.  The Court’s bottom line is this:  The burdens on the states of giving EPA everything it wants are simply too much.

The Clean Air Act regulates pollution-generating emissions from stationary source (factories, power plants, etc.) and moving sources (cars, trucks, planes, etc.).  In 2007 in Massachusetts v. EPA the Court held EPA could regulate greenhouse gases emissions from new motor vehicles.  As a result of that case, EPA concluded it was required or permitted to apply permitting requirements to all stationary sources that emitted greenhouse gases in excess of statutory thresholds. 

In Utility Air Regulatory Group v. EPA the Court held 5-4 that EPA cannot require stationary sources to obtain Clean Air Act permits only because they emit greenhouse gases.  But, the Court concluded 7-2, EPA may require “anyway” stationary sources, which have to obtain permits based on their emissions of other pollutants, to comply with “best available control technology” BACT emission standards for greenhouse gases. 

The Supreme Court held unanimously that the First Amendment protects a public employee who provides truthful sworn testimony, compelled by a subpoena, outside the course of his or her ordinary responsibilities

But what about the much more likely scenario:  An employee provides truthful sworn testimony, compelled by a subpoena, which is part of an employee’s ordinary responsibilities?  The Court explicitly says it doesn’t say.

Most states have state laws prohibiting false statements against candidates.  Are they constitutional?  Well the Supreme Court didn’t decide…

In Susan B. Anthony List v. Driehaus the Supreme Court held unanimously that Susan B. Anthony List (SBA) had alleged a “sufficiently imminent injury” to bring a preenforcement challenge to the constitutionality of Ohio’s campaign “false statements” statute.  

Bond v. United States could have been the biggest federalism rulings from the Supreme Court this term.  But it wasn’t.  Nevertheless federalism underlies the ruling in this narrow case.    

The significant question raised in Bond v. United States is whether the federal government can adopt a statute implementing a treaty that it would not otherwise have the authority to adopt. The Supreme Court did not answer that question.  Instead, it merely held that the Petitioner’s conduct in this case wasn’t covered by the statute.   

Carol Anne Bond, upon discovering her closest friend was pregnant with her husband’s child, placed chemicals on her car door, mailbox, and door knob in the hopes her friend would develop an uncomfortable rash.  Bond was charged with possessing and using a chemical weapon in violation of the Chemical Weapons Convention Implementation Act, which implements a chemical weapons treaty the United States ratified.

If a statutes of repose bill comes across your desk your second question (after what is a statute of repose) will be why? You need to look no further than the Supreme Court’s decision in CTS Corp. v. Waldburger.

In this case the Supreme Court held 7-2 that the federal Superfund statute, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), does not preempt state statutes of repose.  So homeowners’ state law claims for water contamination against an electronics manufacturer will be dismissed.  Five states have repose periods (Alabama, Connecticut, Kansas, Oregon, and North Carolina). 

In Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference v. Alabama the Supreme Court will decide whether Alabama’s redistricting plan violates Section 2 of the Voting Rights Act and the Fourteenth Amendment’s Equal Protection Clause by intentionally packing black voters into districts already containing a majority of black voters. 

The Alabama legislature’s 2010 redistricting plan maintains the number of House and Senate majority-black districts.  But because most of the majority-black districts were underpopulated, the Legislature “redrew the districts by shifting more black voters into the majority-black districts to maintain the same relative percentages of black voters in those districts.” Black voters allege that packing them into super-majority districts limits their potential influence in other jurisdictions.

Are you a state legislator from Florida, Kentucky, Virginia, Alabama, Arizona, Delaware, Kansas, North Carolina, and Washington?  If so, keep reading.  Your legislature may need to rewrite its definition of intellectual disability as it applies to the death penalty. 

In Hall v. Florida the Supreme Court held 5-4 that if a capital defendant’s IQ falls within the standard error measurement (SEM) for intellectually disabled, the defendant must be allowed to present additional evidence of intellectual disability.  Hall may require the above 9 states to rewrite their death penalty statutes because they have strict IQ cutoff scores of 70.

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