AZ League Connection

The League's Monthly Online Newsletter

Issue 191: March 2019

Legal Corner: U.S. Supreme Court Mid-term Update

The U.S. Supreme Court has begun scheduling oral arguments on cases that may impact local governments. This article will highlight four cases that will be reviewed this term, including a recent case that has already been decided. The State and Local Legal Center (“SLLC”) summarized these cases, which have been adapted to specifically address items of interest for Arizona cities and towns.

Census

In Department of Commerce v. New York the Supreme Court will decide whether the Secretary of Commerce violated the Administrative Procedures Act (“APA”) by adding a question about citizenship to the 2020 census. In March 2018 Secretary of Commerce Wilbur Ross stated he would add the question (for the first time since 1960) because the Department of Justice (“DOJ”) wanted the data to enforce the Voting Rights Act’s prohibition against diluting the voting power of minority groups. The Census Bureau “strenuously” objected warning “that adding a citizenship question would harm the quality of census data and increase costs significantly and that it would do so for no good reason because there was an alternative way to satisfy DOJ’s purported needs that would not cause those harms.” A number of state and local governments and nonprofits sued the Secretary claiming that adding this question is arbitrary and capricious in violation of the APA. A decision is necessary before the end of June 2019 when the questionnaire must be finalized to meet the census timeline. An accurate census is vital for cities and towns and Judge Furman in his district court opinion expressed “[The census] is used to allocate hundreds of billions of dollars in federal, state, and local funds. Even small deviations from an accurate count can have major implications for states, localities, and the people who live in them — indeed, for the country as a whole.” The case has been scheduled for oral argument on April 23, 2019.

First Amendment

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. The Fourth Circuit applied the so-called three-prong Lemon test, as modified by the Supreme Court’s most recent monument decision Van Orden v. Perry (2005), to conclude that the government display and maintenance of this cross violates the Establishment Clause. The Fourth Circuit concluded that a reasonable observer would understand this cross to advance religion. Despite its secular elements (like the words valor, endurance, courage, and devotion inscribed on its base and a plaque at the base listing the memorialized soldiers), the “immense size and prominence of the Cross”…“evokes a message of aggrandizement and universalization of religion, and not the message of individual memorialization and remembrance that is presented by a field of gravestones.” Additionally, the Court concluded that the cross creates an excessive entanglement between government and religion due to the continued cost of maintenance and repair, and the cross is “the hallmark symbol of Christianity that dominates its surroundings and not only overwhelms all other monuments at the park, but also excludes all other religious tenets.” Many municipalities across the country have memorials and statues with religious messages that were established decades ago. This case may determine if those memorials that intertwine secular and religious messages will have to be removed or destroyed. Oral argument was held on February 27, 2019.

Redistricting

In 1986 a majority of the Supreme Court agreed that partisan gerrymandering may be unconstitutional in certain circumstances. In Rucho v. Common Cause the Court will decide whether the North Carolina legislature engaged in unconstitutional partisan gerrymandering when one of the state’s redistricting criteria was for one party to maintain a partisan advantage. In January 2018 a three-judge panel struck down North Carolina’s 2016 redistricting plan concluding it was an unconstitutional partisan gerrymander in violation of the U.S. Constitution’s Equal Protection Clause, First Amendment, and two sections of Article I. Last summer the Supreme Court asked the three-judge panel to reconsider the January 2018 decision in light of Gill v. Whitford. In a 300 plus page opinion issued in August 2018 the panel found that the challengers in this case have standing to bring all their claims because the challengers “reside and vote in each of the thirteen challenged congressional districts…and proved the type of dilutionary injury the Supreme Court recognized in Gill.”

In Benisek v. Lamone a number of Sixth District Republicans sued alleging the state legislature engaged in unconstitutional partisan gerrymandering in violation of the First Amendment when its actions resulted in a 13 percent difference in registered Republicans in the district. In November 2018 a three-judge panel issued a permanent injunction requiring the state legislature to make changes to the Sixth District and concluded that the drawing of lines for the Sixth District violated the challengers’ First Amendment representational and associational rights. Oral argument for both redistricting cases was held on March 26, 2019.Arizona has an Independent Redistricting Commission (“IRC”) that is established in the state constitution. For more information about Arizona’s redistricting process and how census data is utilized for reapportionment and redistricting, the State Senate provides a brief about this process and additional information is available on the IRC website.

Excessive Fines

On February 20, 2019, the Supreme Court issued a unanimous decision in Timbs v. Indiana holding that the Eighth Amendment’s Excessive Fines Clause is “incorporated” or applicable to the states and local governments. Indiana sought to forfeit Tyson Timbs’ Land Rover which he used to transport heroin. The trial court concluded the forfeiture was unconstitutional under the Eighth Amendment’s Excessive Fines Clause because the value of the vehicle well exceeded the maximum statutory fine for the felony Timbs accepted in his plea agreement. The Indiana Supreme Court held the Excessive Fines Clause doesn’t apply to the states, but the U.S. Supreme Court disagreed holding that the Excessive Fines Clause is incorporated by the Due Process Clause of the Fourteenth Amendment. When the Fourteenth Amendment was adopted in 1868, 35 of the 37 states prohibited excessive fines and today all 50 states prohibit the imposition of excessive fines. Arizona’s prohibition can be found in Article II, § 15 of the Arizona Constitution.

These cases are a sampling of national litigation that may impact Arizona cities and towns and will be decided before July. The Court has a busy term and a future summer article will highlight these decisions and any other Supreme Court cases that affect local governments.

 

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