Lisa Soronen

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In its first opinion of the term in Mt. Lemmon Fire District v. Guido the Supreme Court ruled 8-0 that the federal Age Discrimination in Employment Act (ADEA) applies to state and local government employers with less than 20 employees. The State and Local Legal Center (SLLC) filed an amicus brief arguing that it should not apply. State and local governments often rely on small special districts to provide services they don’t provide.  

John Guido was 46 and Dennis Rankin was 54 when they were laid off by the Mount Lemmon Fire District. They claim they were terminated because of their age in violation of the ADEA. They were the oldest of the district’s 11 employees. 

The fire district argued that the ADEA does not apply to it because it employs fewer than 20 people. The Ninth Circuit disagreed.

In Maryland-National Capital Park and Planning Commission v. American Humanist Association the Supreme Court will decide whether a local government has violated the First Amendment by displaying and maintaining a 93-year-old, 40-foot tall Latin cross memorializing soldiers who died in World War I.  

Prince George’s County citizens and an American Legion Post raised money to build the monument. In 1925 it was dedicated at a Christian prayer service. Over the years Christian religious services have been held at the cross.

In 1961 the Maryland-National Capital Park and Planning Commission took title of the land and the cross because it is located in the middle of a busy traffic median. The cross is part of a park honoring veterans. Other monuments are located anywhere from 200 feet to a half-a-mile from the cross. None are taller than 10 feet.

In an amicus brief in Gamble v. United States, the State and Local Legal Center (SLLC) asks the Supreme Court not to overrule the “separate sovereigns” exception to the Double Jeopardy Clause. This exception allows states and the federal government to convict and sentence a person for the same conduct.

Gamble was prosecuted for and convicted of possession of a firearm by a convicted felon under both Alabama and United States law. His challenge to the “separate sovereigns” exception is unsurprising given that Justice Thomas joined Justice Ginsburg’s concurring opinion in Puerto Rico v. Sanchez-Valle (2016), which suggested the Court do a “fresh examination” of the “separate sovereigns” exception. These Justices are on opposite ends of the ideological spectrum and typically don’t vote together in close cases. 

In Sanchez-Valle the Court held that the Double Jeopardy Clause bars both Puerto Rico and the United States from prosecuting a person for the same conduct under equivalent criminal laws. Puerto Rico isn’t a sovereign distinct from the United States because it derived its authority from the U.S. Congress.

The issue in Timbs v. Indiana is whether the Eighth Amendment Excessive Fines Clause applies to the states. The State and Local Legal Center (SLLC) Supreme Court amicus brief rejects the argument that the Fourteenth Amendment incorporates all rights included in the first eight Amendments. It also argues that the forfeiture in this case isn’t unconstitutionally excessive.

The Twenty-First Amendment to the U.S. Constitution is famous because it repealed prohibition. The second section, which prohibits the transportation or importation of alcohol into a state in violation of state law, is less well-known. Despite this section’s broad language and the Supreme Court’s repeated affirmation that the states’ three-tier system of regulating alcohol (manufacturers sell to wholesalers; wholesalers sell to retailers; retailers to consumers) is constitutional, the Supreme Court has limited states’ ability to regulate the distribution of alcohol.

The question the Supreme Court will decide in Tennessee Wine & Spirits Retailers Association v. Byrd is whether Tennessee’s law requiring alcohol retailers to live in the state for two years to receive a license violates the Constitution’s dormant Commerce Clause. The dormant Commerce Clause prevents states from “discriminat[ing] against interstate commerce” or “favor[ing] in-state economic interests over out-of-state interests.”

According to Tennessee Wine & Spirits “[a]t least twenty-one States impose some form of durational-residency requirement for liquor retailers or wholesalers. And many States impose other residency-based requirements on those entities.”

The issue in Washington State Department of Licensing v. Cougar Den Inc. is whether the “right to travel” provision of the Yakama Nation Treaty preempts Washington’s tax and permit requirements for importing fuel.

Article III of the Yakama Nation Treaty of 1858 states that “the right of way, with free access from the same to the nearest public highway, is secured to [the Yakama]; as also the right, in common with citizens of the United States, to travel upon all public highways.”

The State and Local Legal Center (SLLC) filed a Supreme Court amicus brief in Virginia Uranium v. Warren arguing that Virginia’s ban on uranium mining isn’t preempted by the Atomic Energy Act (AEA).

Virginia has the largest known uranium deposit in the United States. Since its discovery in the 1980s the Virginia legislature has banned uranium mining. Unsurprisingly the land owner, Virginia Uranium, wants to mine. It sued the state arguing the ban is preempted by federal law.

The three themes that dominated the third day of Judge Kavanaugh’s confirmation hearings were the same three topics discussed at length the day before:  executive power, abortion, and gun rights. Executive power received the most attention.

Making headlines were Senator Booker’s release of “committee confidential” Kavanagh emails discussing abortion and racial-profiling before they were cleared for release to the public, Judge Kavanaugh’s refusal to say whether he thinks Roe v. Wade was decided correctly, and his refusal to condemn President Trump’s attacks on the judiciary.  

Issues related to state and local governments received a little attention, including judicial deference to federal agencies, which was discussed a number of times the day before.

If you were interested in the views of protesters, the details of the Federalist papers, Judge Kavanaugh’s most difficult job (working construction at age 16), and a broad ranging discussion of executive power, day two of Judge Kavanaugh’s confirmation hearings weren’t disappointing.

But if you were interested in knowing Judge Kavanaugh’s views on issues of importance to state and local governments you may have been disappointed. Generally, Supreme Court nominees give little away about their actual views on the law. Judge Kavanaugh was no exception. But he also wasn’t asked many hard hitting questions on legal issues of importance to state and local governments--with the exceptions of the expected questions on abortion and gun rights.

Herrera v. Wyoming is a case of dueling Supreme Court precedent.

Clayvin Herrera, a member of the Crow tribe, shot an elk in Big Horn National Forest in Wyoming. He was charged with hunting without a license during a closed season. Herrera claims that an 1868 treaty giving the Crow the right to hunt on the “unoccupied lands of the United States” allowed him to hunt on this land.

In Herrera v. Wyoming the Supreme Court will decide whether Wyoming's admission to the Union or the establishment of the Big Horn National Forest abrogated the Crow’s treaty right to hunt in Big Horn National Forest.

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