Lisa Soronen

Author Articles

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.

The issue in Lee v. Tam is whether Section 2(a) of the Lanham Act, which bars the Patent and Trademark Office (PTO) from registering scandalous, immoral, or disparaging marks, violates the First Amendment.

Simon Shiao Tam named his band The Slants to “reclaim” and “take ownership” of Asian stereotypes. The PTO refused to register the band name finding it likely disparaging to persons of Asian descent. Tam sued the PTO arguing that Section 2(a) of the Lanham Act violates the First Amendment Free Speech Clause.  

In a three-page per curiam (unauthored) opinion in Bosse v. Oklahoma, the Supreme Court reversed the Oklahoma Court of Criminal Appeals’ decision to allow victims’ relatives to recommend to the jury that they sentence a defendant to death. Shaun Michael Bosse killed Katrina Griffin and her two children.

In Booth v. Maryland (1987) the Supreme Court held that during sentencing capital juries could only hear victim impact evidence that relates directly to the circumstances of the crime. Four years later in Payne v. Tennessee the Court changed course holding that capital juries could hear evidence relating to the personal characteristics of the victim and the emotional impact of the crime on the victim’s family.

Per the federal Individuals with Disabilities Education Act (IDEA), a student with a disability receives an individualized education program (IEP), which is intended to provide that student with a “free and appropriate public education” (FAPE). Parents and educators determine the content of each IEP. According to the Supreme Court in Board of Education v. Rowley (1982) to provide a FAPE, an IEP must be “reasonably calculated to enable the child to receive educational benefits.”

The question the Supreme Court will decide in Endrew F. v. Douglas County School District, is what level of educational benefit must school districts confer on children with disabilities to provide them with a FAPE.

In May 2016, the Department of Justice (DOJ) released a Supplemental Advanced Notice of Proposed Rulemaking (SANPRM) asking for comments on the “potential application of technical requirements” to make state and local government websites accessible per title II of the Americans with Disabilities Act (ADA).

DOJ’s current regulations do not include specific requirements for web accessibility but DOJ has long held the position that title II covers public entities’ web sites. 

In its Supreme Court amicus brief in Wells Fargo v. City of Miami and Bank of America v. City of Miami the State and Local Legal Center (SLLC) argues that Miami, and other local governments across the country, should have “standing” to sue banks under the Fair Housing Act (FHA) for economic harm caused to local governments by discriminatory lending practices.

The City of Miami claims that Wells Fargo and Bank of America targeted black and Latino customers in the City for predatory loans that carried more risk, steeper fees, and higher costs than those offered to identically situated white customers. The City further claims the banks’ lending policies caused minority-owned property to fall into unnecessary or premature foreclosure.

The FHA makes it unlawful for banks to discriminate against mortgage recipients on the basis of race. To bring a lawsuit under the FHA the City of Miami must have “statutory standing,” in other words, “a cause of action under the statute.”

The first Monday in October (today) is Supreme Court opening day! Two other traditions coincide with this tradition. First is State and Local Legal Center (SLLC) Supreme Court Preview webinar. Second is the results of the Supreme Court’s “long” conference.

The SLLC Supreme Court Preview webinar is scheduled for October 13 at noon eastern time. The webinar is free; it will cover the cases of interest to state and local...

Twenty-one states are suing the Department of Labor over new overtime rules which make it more likely states will have to pay more employees overtime. They are seeking an injunction which will prevent the new rules from going into effect on December 1, 2016.

Per the Fair Labor Standards Act (FLSA), “white collar” employees do not have to be paid overtime if they work more than 40 hours a week. Per Department of Labor regulations, adopted shortly after the FLSA was adopted in 1938, employees must perform specific duties and earn a certain salary to be exempt from overtime as white collar employees.

On May 23, 2016, the Department of Labor (DOL) issued final rules nearly doubling the previous salary level test for white collar employees from $455 per week, or $23,660 per year to $913 per week, or $47,476 per year.

While the Supreme Court is still down a Justice, its docket is about half full, which is typical for this time of the year. Five cases in particular on the Court’s docket, described below, will directly impact at least some states. Interestingly, the Court agreed to decide the religion and the takings case before Justice Scalia died last winter.   

In Ivy v. Morath the Supreme Court will decide when state and local governments are responsible for ensuring that a private actor complies with the Americans with Disabilities Act (ADA). The State and Local Legal Center (SLLC) argues they should be responsible when the private actor may fairly be said to be implementing a service, program, or activity of the public entity itself.

In Texas, state law requires most people under age 25 to attend a state-licensed private driver education school to obtain a driver’s license. None of the schools would accommodate deaf students. So a number of deaf students sued the Texas Education Agency (TEA) arguing it was required to bring the driver education schools into compliance with the ADA.  

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