Governmental Operations

State-action immunity provides states and, in some instances, local governments immunity from federal antitrust liability. In Salt River Project Agricultural Improvement and Power District v. SolarCity the Supreme Court will decide whether a lower court’s refusal to rule state-action immunity applies to a particular entity may be appealed immediately or only after the case is fully litigated.

The Fifth Amendment says no person shall be “compelled in any criminal case to be a witness against himself.” In Hays, Kansas v. Vogt the Supreme Court has agreed to decide whether the Fifth Amendment is violated when a public employee’s compelled, self-incriminating statements are used against him or her at a probable cause hearing rather than at a trial.

The State and Local Legal Center (SLLC) filed an amicus brief supporting the City of Hays arguing that the City should not be liable for the use of such statements because it has no control over how a prosecutor uses them. 

South Dakota has filed a petition in South Dakota v. Wayfair asking the U.S. Supreme Court to hear a challenge to its law requiring out-of-state retailers to collect sales tax.

In Quill Corp. v. North Dakota (1992), the Supreme Court held that states cannot require retailers with no in-state physical presence to collect sales tax.

In March 2015 Justice Kennedy wrote a concurring opinion stating that the “legal system should find an appropriate case for this Court to reexamine Quill.” Justice Kennedy criticized Quill in Direct Marketing Association v. Brohl for many of the same reasons the State and Local Legal Center stated in its amicus brief. Specifically, internet sales have risen astronomically since 1992 and states and local governments are unable to collect most taxes due on sales from out-of-state vendors.

The Fifth Amendment says no person shall be “compelled in any criminal case to be a witness against himself.” The question the Supreme Court will decide in Hays, Kansas v. Vogt is whether the Fifth Amendment is violated when a public employee’s compelled, self-incriminating statements are used against him or her at a probable cause hearing rather than at a trial. 

In Garrity v. New Jersey (1967) the Supreme Court held that public employers violate the Fifth Amendment when they give employees a choice between “self-incrimination or job forfeiture,” which is what Matthew Vogt claimed happened to him.

In 2016 the Supreme Court was expected to overrule a nearly 40-year old precedent requiring public sector employees who don’t join the union to pay their “fair share” of collective bargaining costs. Justice Scalia died shortly after the Court heard oral argument in Friedrichs v. California Teachers Association. The Court ultimately issued a 4-4 decision which, practically speaking, kept Abood v. Detroit Board of Education (1977) on the books.

With a ninth Justice now on the bench the Supreme Court has agreed to try again to decide whether to overturn Abood in Janus v. American Federation of State, County and Municipal Employees. More than 20 states authorize fair share for public sector employees.

Following its predictable loss before the South Dakota Supreme Court, South Dakota is expected to ask the U.S. Supreme Court to rule that its law requiring out-of-state retailers to collect sales tax is constitutional. Doing so will require the U.S. Supreme Court to take the unusual step of overruling precedent.  

In Quill Corp. v. North Dakota, decided in 1992, the Supreme Court held that states cannot require retailers with no in-state physical presence to collect sales tax.

A federal district judge in Texas has invalidated Obama overtime regulations which would have made it more likely states and local governments would have had to pay more employees overtime.

Per the Fair Labor Standards Act (FLSA), executive, administrative, and professional “white collar” employees do not have to be paid overtime if they work more than 40 hours a week. Per Department of Labor (DOL) 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, 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. The rules also automatically update the salary level every three years for white collar employees.