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Legal Brief: Supreme Court Cases for Cities

By Lisa Soronen, Executive Director, State and Local Legal Center, Washington, D.C.

The Supreme Court is still down a Justice and its docket isn’t as full as usual. Regardless, four cases in particular to be decided by June 30, described below, will directly impact local governments. In three of these cases a local government is a named party. One of the cases comes out of Illinois.
Interestingly, the Court has yet to schedule oral argument in the takings case from Wisconsin, which the Court agreed to decide before Justice Scalia died last winter. The State and Local Legal Center will file an amicus brief on behalf of cities generally in all of the cases discussed in the next section of this article.
Cases Directly Impacting Cities
Elijah Manuel was arrested and charged with possession of a controlled substance even though a field test indicated his pills weren’t illegal drugs. About six weeks after his arrest he was released when a state crime laboratory test cleared him.
If Manuel would have brought a timely false arrest claim it is almost certain he would have won. But such a claim would not have been timely because Manuel didn’t sue within two years of being arrested or charged. So he brought a malicious prosecution claim under the Fourth Amendment.
An element of a malicious prosecution claim is that the plaintiff prevails in the underlying prosecution. Manuel “prevailed” when the charges against him were dismissed, and he brought his lawsuit within two years of the dismissal.
The question the Supreme Court will decide in Manuel v. City of Joliet is whether malicious prosecution claims can be brought under the Fourth Amendment in the first place. The Supreme Court left this question open in Albright v. Oliver (1994).
It is undisputed that police officers used reasonable force when they shot Angel Mendez. As officers entered, unannounced, the shack where Mendez was living they saw a silhouette of Mendez pointing what looked like a rifle at them.
Yet, the Ninth Circuit awarded him and his wife damages because the officers didn’t have a warrant to search the shack thereby “provoking” Mendez.
In Los Angeles County v. Mendez the Supreme Court must decide whether to accept or reject the Ninth Circuit’s “provocation” rule. Per this rule, “Where an officer intentionally or recklessly provokes a violent confrontation, if the provocation is an independent Fourth Amendment violation, he may be held liable for his otherwise defensive use of deadly force.”
Illinois is located in the Seventh Circuit. This court has not adopted the provocation rule. 
The Mendezes also argue that putting the provocation theory aside, the officers are liable in this case because their unconstitutional entry “proximately caused” them to shoot Mendez. Many Americans own guns. So, it is reasonably foreseeable that if officers barge into a shack unannounced the person in the shack may be holding a gun.
In Murr v. Wisconsin the Supreme Court will decide whether merger provisions in state law and local ordinances, where nonconforming, adjacent lots under common ownership are combined for zoning purposes, may result in the unconstitutional taking of property.
The Murrs owned contiguous lots E and F which together are .98 acres. Lot F contained a cabin and lot E was undeveloped.
A St. Croix County merger ordinance prohibits the individual development or sale of adjacent lots under common ownership that are less than one acre total. But the ordinance treats commonly owned adjacent lots of less than an acre as a single, buildable lot.
The Murrs sought and were denied a variance to separately use or sell lots E and F. They claim the ordinance resulted in an unconstitutional uncompensated taking.
The Wisconsin Court of Appeals ruled there was no taking in this case. It looked at the value of lots E and F in combination and determined that the Murrs’ property retained significant value despite being merged. A year-round residence could be located on lot E or F or could straddle both lots.
The issue in Wells Fargo v. City of Miami and Bank of America v. City of Miami is whether Miami has “statutory standing” to sue banks under the Fair Housing Act (FHA) for economic harm caused to the city by discriminatory lending practices.
The Eleventh Circuit concluded Miami had “statutory standing” relying on an older case, Trafficante v. Metropolitan Life Insurance Company (1972), where the Supreme Court stated that statutory standing under the Fair Housing Act is “as broad[] as is permitted by Article III of the Constitution.” The parties do not dispute that the city of Miami has Article III standing in this case.
Cases that May Impact Cities
In 2015 in Reed v. Town of Gilbert, Arizona the Supreme Court struck down a portion of the Town of Gilbert’s sign code which gave more favorable treatment to political signs than temporary event signs holding it violated the First Amendment. The Court held that content-based regulations are subject to strict scrutiny – meaning they are almost always legally fatal.
The Supreme Court has accepted three First Amendment free speech cases this term. None of these cases directly involve local governments but any and all of them give the Supreme Court an opportunity to further define what exactly it means by content-based. So these cases may impact local governments as well.
The question the Supreme Court will decide in Expressions Hair Design v. Schneiderman is whether state “no-surcharge” laws that prohibit vendors from charging more to credit-card customers but allows them to charge less to cash customers violates the First Amendment.
The issue in Lee v. Tam is whether Section 2(a) of the Lanham Act, which bars the Patent and Trademark Office from registering scandalous, immoral or disparaging marks, violates the First Amendment.

The issue in Packingham v. North Carolina is whether a North Carolina law prohibiting registered sex offenders from accessing commercial social networking websites where the registered sex offender knows minors can create or maintain a profile violates the First Amendment.
This term illustrates that no matter what the Supreme Court will always decide cases that matter to cities. But cities are not usually directly involved in the blockbuster cases of the term. This term is no exception.
The most controversial case of the term is Gloucester County School Board v. G.G. G.G. is biologically female but identifies as a male. The Gloucester County School Board prevented him from using the boy’s bathroom. He sued the district arguing that it discriminated against him in violation of Title IX.
Title IX prohibits school districts that receive federal funds from discriminating “on the basis of sex.” A Title IX regulation states if school districts maintain separate bathrooms (locker rooms, showers, etc.) “on the basis of sex” they must provide comparable facilities for the other sex.
In a 2015 letter the Department of Education (DOE) interpreted the Title IX regulation to mean that if schools provide for separate boys’ and girls’ bathrooms, transgender students must be allowed to use the bathroom consistent with their gender identity.
The Supreme Court has agreed to decide two questions in this case. First, should it defer to DOE’s letter interpreting the regulation? Second, putting the letter aside, should the Title IX regulation be interpreted as DOE suggests?
The State and Local Legal Center (SLLC) files amicus curiae briefs in support of state and local governments in the U.S. Supreme Court, conducts moot courts for attorneys arguing before the Supreme Court, and provides other assistance to states and local governments in connection with Supreme Court litigation.
Lisa Soronen is the Executive Director of the SLLC. Prior to joining the SLLC, Lisa worked for the National School Boards Association, the Wisconsin Association of School Boards, and clerked for the Wisconsin Court of Appeals. She earned her J.D. at the University of Wisconsin Law School and is a graduate of Central Michigan University. Contact Lisa at lsoronen@sso.org.