Capitol Comments

If a state or local government discharges a pollutant from a point source to a navigable water it must obtain a permit under the Clean Water Act (CWA). But what if that pollutant is conveyed in something—say groundwater—between the point source and the navigable water? Must the state or local government still obtain a permit? That is the question the Supreme Court will decide next term in County of Maui, Hawaii v. Hawaii Wildlife Fund.

In April the Supreme Court will hear argument in a case that will determine whether a citizenship question will appear in the 2020 census. A decision in Department of Commerce v. New York is expected by the end of June, in time presumably to include or exclude the question from the print version of the census.

In January a federal district court held...

There is a tremendous pressure on cities. Already, 1.4 million people around the world are moving to cities and by 2050 they are expected to provide for 70 percent of the world’s population. Although this influx can fuel economic growth and cultural vibrancy, it can also strain cities’ abilities to keep their residents safe, healthy and prosperous. In the wake of recent natural disasters and civic threats, there is a real sense of urgency to make cities more resilient and sustainable.

The State and Local Legal Center (SLLC) filed an amicus brief in Kisor v. Wilkie asking the Supreme Court to overturn Auer v. Robbins (1997). It that case the Supreme Court reaffirmed its holding in Bowles v. Seminole Rock & Sand Co. (1945) that courts must defer to an agency’s interpretation of its own regulations.

In Kisor v. Wilkie the Federal Circuit deferred to the Veterans Administration’s (VA) definition of “relevant” when determining whether a veteran’s claim for benefits can be reconsidered.

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In March, ADAPT Pharma, a subsidiary of Emergent BioSolutions and CSG Associate, announced the expansion of its program offering free NARCAN Nasal Spray – the leading community use naloxone – to U.S. high schools and eligible colleges and universities. NARCAN Nasal Spray 4mg is the only FDA-approved, needle-free formulation of naloxone for the emergency treatment of a known or suspected opioid overdose. As part of this effort, ADAPT Pharma will:

• Expand free NARCAN Nasal Spray availability by eliminating the prior 20,000 cartons cap for eligible colleges and universities
• Double the allocation to high schools from one free carton (two 4mg doses) to two free cartons (four 4mg doses)
• Extend the term of the free NARCAN Nasal Spray offer until it is in every high school and eligible college and university in the United States

The 2018 CSG National Conference in Northern Kentucky/Greater Cincinnati in December featured a day-long policy academy on “The Intersection of Innovation and Infrastructure.” The event included policy discussions on autonomous and connected vehicles and truck platooning, state strategies for advancing the electric vehicle marketplace, ride-hailing and mobility innovations, how to enable the technology underpinning infrastructure innovation and the infrastructure investments and policy changes needed to drive innovation forward. In addition, Michael Stevens, chief innovation officer for the city of Columbus, Ohio, gave a keynote address about the city’s multi-million-dollar smart city initiative. Here’s a summary of what took place along with select comments from the day’s speakers. Below you’ll also find a variety of links to articles and reports that drive the conversation forward on many of these topics.

The issue the Supreme Court will decide in McDonough v. Smith is whether the statute of limitations for a due process fabrication of evidence claim begins to run when the criminal proceedings terminate in the defendant’s favor, or when the defendant becomes aware of the tainted evidence and its improper use.

Edward McDonough, former Democratic Commissioner of Rensselaer County Board of Elections, approved forged absentee ballot applications which he claims he didn’t know had been falsified. Youel Smith investigated and prosecuted McDonough. McDonough claims Smith “engaged in an elaborate scheme to frame McDonough for the crimes by, among other things, fabricating evidence.” After two trials, McDonough was ultimately acquitted.

Just before three years passed since McDonough was acquitted he sued Smith under Section 1983 for violating his due process rights by fabricating evidence and using it against him. Section 1983 allows citizens to sue state and local government officials in federal court for constitutional violations.

In The Law of Trusts and Trustees, George Gleason Bogert describes trusts as a “legal abstraction: a fiction created to represent the tripartite relationship among a settlor, a trustee, and a beneficiary.” The debatable location of a trust makes it difficult for courts to agree which jurisdictions may tax a trust’s income. For example, what if only a trust beneficiary is located in the state, may the state tax the trust’s income? 

In North Carolina Department of Revenue v. The Kimberley Rice Kaestner 1992 Family Trust the Supreme Court will decide whether the Due Process Clause prohibits states from taxing trusts based on trust beneficiaries’ in-state residency.

Most, if not all, states have adopted “implied consent” laws where drivers may be tested if police have probable cause to suspect they have been driving while intoxicated. Drivers may withdraw consent and refuse to take a test, subject to penalties. In Birchfield v. North Dakota (2016) the Supreme Court held that generally police must obtain a warrant to require a blood test (versus a breath test) where officers have probable cause.

But what if a driver is unconscious and unable to withdraw consent to a blood test (and unable to take a breath test)? Wisconsin and 28 other states allow warrantless blood draws of unconscious drivers where police have probable cause to suspect drunk driving.

The question the Supreme Court will decide in Mitchell v. Wisconsin is whether a statute authorizing a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement.

CSG Midwest
In November, the U.S. Supreme Court heard arguments in a case that could dramatically limit states’ and localities’ ability to levy criminal fines and asset forfeitures. The central question in ...

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