Lisa Soronen

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Knick v. Township of Scott involves a common theme before the Supreme Court. One party is asking it to overturn long-standing Supreme Court precedent. Unfortunately for states and local governments the precedent on the chopping block arises in the property rights context (where the more conservative Supreme Court tends to favor property owners) and is generally considered favorable to states and local governments.  

The Township of Scott adopted an ordinance requiring cemeteries, whether public or private, to be free and open and accessible to the public during the day. Code enforcement could enter any property to determine the “existence and location” of a cemetery.

The Constitution’s Takings Clause states that “private property [shall not] be taken for public use, without just compensation.” Rose Mary Knick sued the county in federal (rather than state) court claiming the ordinance was invalid per the Takings Clause after code enforcement went onto her property without a warrant looking for a cemetery.

Per the Endangered Species Act (ESA), the U.S. Fish and Wildlife Services (FWS) may designate land a “critical habitat” for an endangered species. The ESA mandates that FWS consider the economic impact of specifying an area as a critical habitat. FWS may exclude an area if the benefits of excluding it outweigh the benefits of including it.

In its amicus brief in Weyerhaeuser Company v. U.S. Fish and Wildlife Service the State and Local Legal Center (SLLC) argues courts may review FWS decisions not to exclude an area from a critical habitat because of the economic impact of the designation.

In Abbott v. Perez a number of persons and advocacy groups challenged the Texas Legislature’s 2011 state legislative and congressional redistricting plan claiming it discriminated against black and Hispanic voters in violation of the Constitution’s Equal Protection Clause and the Voting Rights Act.

In 2011 a three-judge district court issued a remedial redistricting plan which the U.S. Supreme Court vacated in 2012. The district court then drew another remedial redistricting plan which the state legislature adopted in 2013.               

In this case the challengers claim that the plan as adopted by the state legislature still has the “taint of discriminatory intent” of the 2011 legislative plan. The district court agreed despite the fact that it is the author of 2013 plan. The Supreme Court heard oral argument in this case.

In July 2017 the Department of Justice (DOJ) added two new requirements for states and local governments to receive federal Edward Byrne Justice Assistance Grants (Byrne JAG) for law enforcement funding. Chicago sued Attorney General Jeff Sessions arguing he lacks the statutory authority to impose these conditions.

In September 2017 an Illinois federal district court granted Chicago’s request for a nationwide preliminary injunction temporarily disallowing DOJ from imposing the two new requirements. Last week, the Seventh Circuit affirmed the lower court’s decision.     

In South Dakota v. Wayfair South Dakota is asking the Supreme Court to rule that states and local governments may require retailers with no in-state physical presence to collect sales tax. Doing so will require the Court to overrule Quill v. North Dakota (1992), where it held that states and local governments cannot require a business to collect sales tax unless the business has a physical presence in the state.

Based on oral argument the Court is likely to follow one of three paths. It could keep the physical presence test and not overturn Quill. It could overturn Quill and replace (or add to) the physical presence test an economic nexus test (like the South Dakota law which requires out-of-state vendors to collect tax only if they annually conduct $100,000 worth of business or 200 separate transactions annually in the state). Finally, it could overturn Quill and allow states to require all out-of-state vendors to collect sales tax no matter how much (or little) business they do in a state.

In South Dakota v. Wayfair South Dakota is asking the Supreme Court to overrule precedent and hold that states and local governments may require retailers with no in-state physical presence to collect sales tax. The National Conference of State Legislatures estimated that states lost $23.3 billion in 2012 from being prohibited from collecting sales tax from online and catalog purchases. 

In 1967 in National Bellas Hess  v. Department of Revenue of Illinois, the Supreme Court held that per its Commerce Clause jurisprudence, states and local governments cannot require businesses to collect sales tax unless the business has a physical presence in the state.

Twenty-five years later in Quill v. North Dakota (1992), the Supreme Court reaffirmed the physical presence requirement but admitted that “contemporary Commerce Clause jurisprudence might not dictate the same result” as the Court had reached in Bellas Hess.

The Supreme Court issues a few summary reversals a term where it overturns a lower court decision without briefing or oral argument. Few summary reversals receive much attention because they are “usually reserved . . . for situations in which the law is settled and stable, the facts are not in dispute, and the decision below is clearly in error.” While the majority of the Supreme Court sees Kisela v. Hughes this way, Justice Sotomayor disagreed in a headline-grabbing dissenting opinion describing this case as allowing police officers to “shoot first and think later.”   

Officers arrived at Amy Hughes’s house after being told a woman was hacking a tree with a kitchen knife. Officers saw Hughes emerge from her house carrying a large kitchen knife at her side. Hughes stopped no more than six feet away from her roommate, Sharon Chadwick. After officers told Hughes twice to drop the knife and she did not comply, Officer Kisela shot her four times.

One of the questions the Supreme Court may decide in Trump v. Hawaii is whether lower federal courts have the authority to provide injunctive relief that benefits non-parties as well as the party asking for relief. The State and Local Legal Center (SLLC) filed an amicus brief arguing in favor of lower federal courts authority to issue injunctive relief that benefits non-parties.

In this case Hawaii, the Muslim Association of Hawaii, and three individuals sued President Trump claiming the third travel ban, which indefinitely prevents immigration from six countries:  Chad, Iran, Libya, North Korea, Syria, and Yemen, was illegal and unconstitutional.

The same day Commerce Secretary Wilbur Ross announced his plan to add a question about citizenship to the 2020 census California filed a complaint seeking an injunction preventing the question from being added. The next day New York Attorney General Eric Schneiderman announced he would lead a multi-state lawsuit challenging the question.

In December 2017 the Department of Justice (DOJ) requested that a question about citizenship be added to help DOJ more effectively enforce Section 2 of the Voting Rights Act, which prohibits discrimination on the basis of race in voting. Citizenship has not been asked about in the biennium census since 1950.

The challengers to the redistricting of Maryland’s Sixth Congressional District just might win—if the Supreme Court actually decides their case.

In Benisek v. Lamone in 2011 the Maryland legislature needed to move about 10,000 voters out of the Sixth Congressional District to comply with “one-person one-vote.” It moved about 360,000 Marylanders out of the district and about 350,000 Marylanders in the district. As a result only 34 percent of voters were registered Republican versus 47 percent before redistricting.

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