Lisa Soronen

Author Articles

May nonmembers of Indian tribes (including state and local governments) be sued in tribal court (as opposed to state or federal court) for tort (civil wrongdoing) claims?

In Dollar General Corporation v. Mississippi Band of Choctaw Indians John Doe, a thirteen-year-old tribe member, alleges that his supervisor sexually molested him while he was working as part of a job training program at a Dollar General located on a reservation. Doe sued Dollar General in tribal court alleging a variety of torts including negligent hiring, training, and supervision.

In Montana v. United States (1981) the Court held that generally nonmembers may not be sued in tribal court except that “tribe[s] may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members through commercial dealing.”  The question in this case is whether “other means” includes suing nonmembers for civil tort claims in tribal court. 

If A state is sued in B state, do the courts of B state have to extend to A state the same immunities that they would apply to B state? And…can state A even be sued in state B?   

While this may sound like a nonsensical hypothetical, these are the issues the Supreme Court has agreed to decide in Franchise Tax Board of California v. Hyatt. The State and Local Legal Center (SLLC) filed an amicus brief arguing that states must extend the same immunities that apply to them to foreign state and local governments sued in their state courts.

Vermont and at least 16 other states collect health care claims data. In Gobeille v. Liberty Mutual Insurance Company the Supreme Court will decide whether the Employee Retirement Income Security Act (ERISA) preempts Vermont’s all-payers claims database (APCD) law. The State and Local Legal Center (SLLC) filed an amicus brief arguing against ERISA preemption.

ERISA applies to most health insurance plans and requires them to report detailed financial and actuarial information to the Department of Labor (DOL). ERISA preempts state laws if they “relate to” the core functions of an ERISA plan. Vermont’s APCD law seeks the following medical claims data: services provided, charges and payments for services, and demographic information about those covered.  

While the same-sex marriage and Affordable Care Act cases are the most significant of the U.S. Supreme Court’s 2014–15 term in general and specifically affecting states, other cases will significantly impact states too. The court will decide three tax cases, a Medicaid reimbursement case, two redistricting cases and a Fair Housing disparate impact case.

The irony of the Supreme Court agreeing to decide Harris v. Arizona Independent Redistricting Commission is inescapable. On June 29 in Arizona State Legislature v. Arizona Independent Redistricting Commission the Court held that Arizona’s redistricting commission could be solely responsible for congressional redistricting. In the first sentence of its opinion the Court noted Arizona voters adopted the commission to avoid partisan gerrymandering. The next day the Court agreed to decide Harris where the plaintiffs allege that Arizona’s redistricting commission engaged in partisan gerrymandering in state legislative redistricting that violated one-person, one-vote.  

It is noteworthy that the Harris plaintiffs don’t object to partisan gerrymander per se (which the Supreme Court has never held unconstitutional), just partisan gerrymandering that leads to unequal distribution of voters.

For the second time the Supreme Court has agreed to decide whether the University of Texas at Austin’s race-conscious admissions policy is unconstitutional in Fisher v. University of Texas at Austin.

Even though this case arises in the higher education context, the Supreme Court has decided relatively few affirmative action decisions so all are of interest to state and local governments that use race as a factor in decision-making.

In Glossip v. Gross the Supreme Court held 5-4 that death row inmates are unlikely to succeed on their claim that using midazolam as a lethal injection drug amounts to cruel and unusual punishment in violation of the Eighth Amendment.

All death penalty states and the federal government use lethal injection. In Baze v. Rees (2008) the Court approved a three-drug protocol that begins with a sedative, sodium thiopental, followed by a paralytic agent and a drug that causes cardiac arrest. Anti-death penalty advocates have persuaded United States and foreign manufacturers to stop producing sodium thiopental and an alternative, pentobarbital. So, Oklahoma and other states began using midazolam. Oklahoma increased the dose from 100 milligrams to 500 milligrams after Clayton Lockett was moving and talking after being administered 100 milligrams of midazolam. (An investigation into Lockett’s execution concluded that problems establishing IV access was the “single greatest factor that contributed to the difficulty in administering the execution drugs.”)

                In Michigan v. EPA the Supreme Court held 5-4 that the Environmental Protection Agency (EPA) acted unreasonably in failing to consider cost when deciding whether regulating mercury emissions from power plants is “appropriate and necessary.” Twenty-three states challenged the regulations.

                The Clean Air Act requires the EPA to regulate air pollution from stationary sources based on how much pollution the source emits. But EPA may only regulate emissions from fossil-fuel-fired power plants if it finds that regulation is “appropriate and necessary.” EPA found it “appropriate” to regulate mercury emissions because they pose a risk to human health and the environment and controls are available to reduce them. EPA found it “necessary” to regulate mercury emissions because other requirements in the Act did not eliminate these risks.

In 5-4 decision in Arizona State Legislature v. Arizona Independent Redistricting Commission the Court held that the Constitution’s Elections Clause permits voters to vest congressional redistricting authority entirely in an independent commission.   

In 2000 Arizona voters adopted Proposition 106 which places all federal redistricting authority in an independent commission. The Elections Clause states:  "[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations . . . .”

In Horne v. Department of Agriculture the Supreme Court held 8-1 that the federal government violated the Fifth Amendment Takings Clause by physically setting aside a percentage of a grower’s raisin crop each year without pay. At least six other agriculture set aside programs are in trouble as a result of this case. But what about its impact on state and local government?

Horne is a complicated case with four issues. The holding most...

Pages

Subscribe to Author Articles