IML@ News
(Issue No. 29, June 8, 2005)
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U.S. Supreme Court
The Supreme Court has recently decided several cases of interest. On June 6, in Gonzales
v. Raich, No. 03-1454, 2005 WL 1321358 (U.S. June 6, 2005) the Court held, in a 6-3
opinion, that federal authorities can prosecute people for using marijuana for medicinal
purposes. On May 31, in Cutter v. Wilkinson, No. 03-9877, 2005 WL 1262549 (U.S.
May 31, 2005), the Court unanimously upheld the provisions of the Religious Land Use
and Institutionalized Persons Act (RLUIPA) dealing with institutionalized persons
against a First Amendment Establishment Clause challenge. The Court specifically
reserved judgment with respect to RLUIPA’s land use provisions and the challenges
brought under the Spending and Commerce Clauses, as well as the Fourteenth
Amendment. IMLA filed a brief differentiating the institutionalized persons provisions
from the land use provisions, in addition to arguing that the law was unconstitutional.
Case Law Update
Here’s a brief look at some decisions of interest since the last Newsletter. Other case
summaries are available at the What’s New page at www.imla.org
FOIA and Privilege Nat'l Council of La Raza v. Dep't of Justice, No. 04-5474 (2d Cir.
June 1, 2005). The plaintiff, a coalition of advocacy organizations, brought this lawsuit
pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, seeking disclosure
of an unpublished Office of Legal Council memo prepared for the Department of Justice
that analyzed the question of whether state and local law enforcement could enforce
certain provisions of federal immigration law. The district court directed disclosure
because, while the memo met the threshold requirements for nondisclosure under FOIA’s
deliberative process exemption, 5 U.S.C. § 552(b)(5), it found that the DOJ had waived
that protection by adopting the memo or incorporating it into official agency policy. The
DOJ appealed, arguing, inter alia, that attorney-client privilege shielded the memo. The
appeals court held: (1) the DOJ incorporated the memo into agency policy through its
repeated reference to, and reliance on, it; and (2) in this context, attorney-client privilege
did not shield the memo from disclosure. The privilege could not be invoked to protect a
document adopted as, or incorporated by reference into, an agency’s policy because the
rationale behind the privilege no longer existed. See
http://caselaw.lp.findlaw.com/data2/circs/2nd/045474p.pdf
Utility Service Account-Holder Policy Midkiff v. Adams County Reg'l Water Dist.,
No. 04-3508 (6th Cir. May 24, 2005). Following a dispute between the Midkiffs and their
landlord, the Water District terminated water service to the Midkiffs’ property at the
request of the landlord. The landlord was the customer of the Water District, held the
account, and was billed directly for the service. The plaintiffs received no notice prior to
the termination. They filed a purported class action under Section 1983, attacking the
District’s policy that tenants, lessees, and other non-property owners could not establish
water service accounts in their own names as they were not property owners. The Sixth
Circuit dismissed, finding that the plaintiffs failed to establish a due process or equal
protection violation. They had not shown a legitimate claim of entitlement to water
service, as neither Ohio law nor Water District Rules provided a basis for finding a
property right to continued water service. The policy of allowing only property owners to
be customers was rationally related to a legitimate government interest and the District’s
conduct did not shock the conscience. See
http://caselaw.lp.findlaw.com/data2/circs/6th/043508p.pdf
Title VII – The Jerk at Work Williams v. Missouri Dep't of Mental Health, No. 041510 (8th Cir. May 25, 2005). Two employees, W. and C., asserted a claim for a hostile
work environment under Title VII against the Missouri Department of Mental Health
(MDMH) over the behavior of M., their former supervisor. MDMH did not dispute that
M. asked inappropriate personal questions, exposed himself, and offensively touched W.
and C., but raised the affirmative defense in Burlington Indus. Inc. v. Ellerth, 524 U.S.
742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998) that the employees
were unreasonable in failing to report the harassment. W. had mentioned the misconduct
to a supervisor some five months afterwards but did not herself report it; C. never
reported it. The district court found that although both employees established a prima
facie case, MDMH promptly prevented and corrected M's harassing behavior, and the
employees unreasonably failed to take advantage of the preventative and corrective
opportunities provided by MDMH to avoid harm. On appeal, the Eighth Circuit affirmed.
See http://caselaw.lp.findlaw.com/data2/circs/8th/041510p.pdf
Search Warrants – "No Knock" Entry Doran v. Eckold, No. 03-1810 (8th Cir. June
6, 2005). The court, sitting en banc, reversed a $2 million Section 1983 jury verdict,
concluding that exigent circumstances justified the police officers' no-knock entry into
the plaintiff's home. Police had obtained a warrant to search the home on the basis of a tip
that the home was being used as a "meth lab." Acting on the tip, the officers had also
obtained trash from the home, in which they found baggies containing methamphetamine
residue. At 10:00 p.m., officers yelled out, "Police, search warrant!" and rammed down
the door. Doran reported that he had been asleep and did not know what was happening
as he jumped out of bed, gun in hand. He was shot twice and sued the officers, alleging
excessive force, illegal entry and failure to train. The jury rejected the excessive force
claim. The district court, however, ruled as a matter of law that no exigent circumstances
justified the no-knock entry and, as a result of the jury instructions, "virtually directed a
verdict" for the plaintiff on the illegal entry and failure to train issues. The Eighth Circuit
found that the totality of circumstances supported the existence of an exigency. See
http://caselaw.lp.findlaw.com/data2/circs/8th/031810p.pdf
WTO Protests - Closing Public Areas Menotti v. City of Seattle, No. 02-35971 (9th
Cir. June 2, 2005). The Ninth Circuit upheld Seattle's emergency order prohibiting access
to certain parts of downtown during the 1999 World Trade Organization protests as a
valid time, place, and manner restriction, but remanded for further determination of the
order's application to specific individuals. The court searched "for the proper balance
between, on the one hand, the vibrant rights of free speech and assembly in an open
society and, on the other hand, the needs of a city to maintain order and security." The
city's emergency order prohibited all persons, with a few exceptions, from entering the
portion of downtown Seattle described in the order. The exceptions allowed the following
individuals in the restricted area: (1) delegates and personnel authorized by the WTO to
participate in official functions; (2) employees and owners of businesses within the
restricted area and other personnel necessary to the operation of those businesses; and (3)
emergency and public safety personnel. Violations of the emergency order were
punishable by a fine of not more than $500 and/or imprisonment of not more than 180
days. See http://caselaw.lp.findlaw.com/data2/circs/9th/0235971p.pdf
Arrests in the Home U.S. v. Quaempts, No. 03-30471 (9th Cir. May 31, 2005). A
defendant who knowingly opened the door to his home, while remaining in bed, did not
waive any expectation of privacy in his home, and the police could not arrest him absent
a warrant. Officers went to Quaempts’ home because a woman reported she had been
raped by him. When Quaempts opened the door, officers told him he was under arrest
and asked him to come outside. Quaempts complied. A U.S. Supreme Court case and an
earlier Ninth Circuit case had held that once the door to a home was opened by an
individual, the threshold became a public place and the individual could be arrested
without a warrant. The Ninth Circuit refused to apply those cases, finding that to do so
would infringe too much on individuals’ expectations of privacy in their homes. It did not
matter that the officers never entered the home because it was the location of the arrestee,
not the officers, that mattered. See
http://caselaw.lp.findlaw.com/data2/circs/9th/0330471p.pdf
Sign Code Unconstitutional Solantic, LLC v. City of Neptune Beach, No. 04-12758
(11th Cir. May 31, 2005) The City of Neptune Beach adopted a sign code that required a
permit for all signs; limited or prohibited signs with movement, the optical illusion of
movement, or with lights that flashed, rotated, or varied in intensity or color, except for
time, temperature, date signs; and exempted signs less that two square feet in size; flags
and insignia of any government, religious, charitable, fraternal, or other organization;
signs erected "by, on behalf of, or pursuant to authorization of a governmental body;"
signs by a utility company; merchandise displays; works of art and religious displays; and
others. Solantic appealed from the denial of its application for a preliminary injunction,
arguing that the sign code violated the First Amendment in at least two ways. First, it
exempted from regulation certain categories of signs based on their content, without
compelling justification for the disparate treatment; and second, it contained no time
limits for permitting decisions. The Eleventh Circuit agreed and held the sign code was
unconstitutional on both grounds. Most of the exemptions from the sign code were based
on content, and the code did not withstand strict scrutiny review. Moreover, the absence
of any time limits rendered the sign code’s permitting requirement unconstitutional. See
http://caselaw.lp.findlaw.com/data2/circs/11th/0412758p.pdf
RLUIPA Konikov v. Orange County, FL., No. 04-10481 (11th Cir. June 3, 2005) (per
curiam). Rabbi Konikov lived in an area zoned residential and conducted what appeared
to be religious meetings at his home several times a week. The zoning code required a
special exception permit for use for "religious organizations," but did not define the term.
Konikov did not obtain a permit and was issued a violation notice after investigators
observed two or three prayer meetings a week. The Code Enforcement Board (CEB)
ordered Konikov to obtain a permit. He did not seek the permit or appeal the order, but
instead, launched a Section 1983 suit in a facial and as-applied challenge to the code,
arguing violations of RLUIPA’s "substantial burden on religious exercise" and "equal
terms" provisions. The district court granted summary judgment in favor of the county,
and Konikov appealed. The Eleventh Circuit affirmed in part and reversed and remanded
in part. As the permit requirement did not prohibit Konikov from engaging in religious
activity and did not coerce conformity of a religious adherent’s behavior, the requirement
did not impose a substantial burden. Dealing with the as-applied challenge, the court held
the code, as implemented by the CEB, defined social organizations differently than
religious organizations: "Groups that meet with similar frequency are in violation of the
Code only if the purpose of their assembly is religious." In the absence of a compelling
justification for this lesser treatment, the CEB impermissibly targeted religious
assemblies in violation of RLUIPA. See
http://caselaw.lp.findlaw.com/data2/circs/11th/0410481p.pdf
A Cautionary Tale Michigan v. Schilke, No. 253117 (Mich. Ct. App. May 3, 2005).
Schilke was a "technical analyst" responsible for the maintenance of her employer’s
computer network. She had administrative access to the network, as well as the
administrator password (a sort of "master key" for the network) for the system. She also
had access, but not authorization, to establish a "virtual private network" (VPN) to
connect to the network remotely from her home. When Schilke was told she was fired,
she replied, "if you’re going to f--- me, I’m going to f--- you," and proceeded to barricade
herself in her office. It was eventually discovered that she apparently changed passwords;
deleted all but three network user accounts; changed computer disk drive designations;
and deleted the event log. Schilke also later attempted to access the network remotely.
The employer, EMS, paid in excess of $11,000 to restore its network and had a loss in
revenue of approximately $48,000. In a trial for the offence of damaging, deleting, or
destroying property or otherwise using the service of a computer program, system or
network intentionally and without authorization, Schilke was found guilty and sentenced
to a three-year term of probation and payment of restitution in the amount of $36,591.01.
A copy of the opinion is available at the court’s website at
http://courtofappeals.mijud.net/resources/opinions.htm
Texas Tort Claims Act Ethio Express Shuttle Service, Inc. v. City of Houston, No. 1404-00937-CV, 2005 WL 1118388 (Tex. App. May 12, 2005 ). As a matter of first
impression in Texas, the Texas Court of Appeals held that the city engaged in a
governmental, not proprietory, function under the Texas Tort Claims Act when it
regulated transportation to and from airports. Accordingly, sovereign immunity barred an
action that was brought by the operator of a private bus shuttle service. The city had
initially refused to grant the operator a ground transportation permit to cover airport
routes; when the city later indicated it should had granted the permit, the operator had
expended a considerable amount of money redesigning its routes. The operator sued,
claiming negligent misrepresentation, fraud, and tortious interference with contract, and
alleged that, as the city was engaged in a proprietary function, it enjoyed no sovereign
immunity. The court found the city’s regulation of private shuttle services from the
airports it owned to be a governmental function, for which it enjoyed sovereign
immunity. See
http://www.14thcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=80807
Anonymous Call – Traffic Stop Lowry v. Gutierrez, No. B177605, 2005 WL 1243776
(Cal. App. May 26, 2005) In what it conceded was "a close call," the court in this case
ruled a police officer had reasonable cause to stop a motorist, Lowry, on suspicion of
drunk driving based on an allegation of reckless or erratic driving reported in an
anonymous cell phone call. The caller gave the dispatcher the driver's sex, a vehicle
description and its license number, its approximate location, and gave precise
descriptions of the driver's actions, including wrong-way driving and making a left turn
in front of oncoming traffic, together with the streets on which these violations occurred.
This allowed the officer who spotted the vehicle five minutes later to make sure he was
stopping the right vehicle. During the time the officer spotted the vehicle and pulled it
over, it was traveling at a safe speed and no traffic violations were committed. However,
the officer smelled alcohol on Lowry's breath and clothes, and Lowry failed field sobriety
tests. The court held that as the officer had reasonable cause to make the traffic stop, the
resulting evidence of drunk driving was admissible. See
http://www.courtinfo.ca.gov/opinions/documents/B177605.PDF
People and Places
Kenneth Wallentine, a veteran prosecutor and law enforcement officer who has written
on police topics for IMLA’s Municipal Lawyer magazine – most recently in the
January/February 2005 issue – has written a book, Criminal Procedure: The Street
Cop's Guide (Aspen Press 2005). It has just been released and is available at
UPOA@vii.com Wallentine wrote the book following an invitation to revise his 1998
work, Drafting and Executing Search Warrants. The search and seizure chapters have
been updated through the Spring 2005 term of the U.S. Supreme Court, and new chapters
include: Investigative Detention, Traffic Detention, Arrest, Interview and Interrogation,
K9 Search and Seizure, K9 Use of Force, and Electronic Media Concerns. Unique to
Criminal Procedure is the inclusion of special sections distinguishing search and seizure,
use of force, and interrogation rules for inmates, parolees, and correctional facilities. For
a complete listing of the contents and appendices, go to
http://www.kenwallentine.com/criminal_procedure.htm
Other Member News
IMLA was saddened to learn that Z. Creighton Brinson, the former Edgecombe County,
N.C., County Attorney, passed away on April 5, 2005.
Lani Williams, IMLA Associate Counsel Lani's husband has accepted a new job in
Wisconsin that will necessitate Lani moving there shortly. However, we are in the
process of working out a telecommuting arrangement with Lani from her Wisconsin
home. We are delighted to have found a way to retain the use of her valuable services.
The May/June 2005 Municipal Lawyer magazine has been mailed out. Articles in this
issue include:
Inclusionary Zoning: How to Strengthen the Defensibility of This Popular Tool to
Meet Your Community’s Affordable Housing Needs, by Cecily T. Talbert and Alison
L. Krumbein
Due Process and Takings Concerns in Municipal Growth Management, by Martin R.
McCullough
Local Land Use Planning and Federal Control of Shoreline Development Around
Federally-Licensed Hydroelectric Projects: A Growing Problem, by Frances E.
Francis and William S. Huang
A copy of the magazine in pdf format is available online at the Members Only page of
the IMLA website, www.imla.org – for password assistance, please call IMLA at (202)
466-5424.
Spotlight On...
The Workplace and Cell Phones Many employers, both private industries and local
governments, have implemented policies dealing with cell phones at the workplace. The
advent of cell phones, camera phones, and concerns over cell phone use and driver
liability, require a fresh look at personnel policies. One kind of policy addresses the use
of employer-issued cell phones. These generally indicate that the phones are not a
personal benefit, should not be used as a primary mode of personal communication, and
should not be used while the employee is driving (especially since lawyers routinely
subpoena cell phone records to determine whether a driver was talking on the phone
immediately before dialing 911 to report the accident....). See, for example, the policies
at:
http://www.harnett.org/harnett/employee/cellphonepolicy.pdf
http://www.mrsc.org/govdocs/A35gCellpolicy.pdf
http://www.co.clackamas.or.us/des/rb/epp/epp50.htm and
http://www.waynegov.com/employees/documents/Personnel_Policy.pdf (go to page 80 of
the pdf document).
Other policies address employee use of personal cell phones at work. Personal calls
during the work hours, regardless of the phone used, can interfere with employee
productivity and be distracting to others. One city policy states:
Telephone Usage: The City of Cheney employees should exercise discretion and limit
personal telephone usage during work hours. Frequent personal calls take time away from
work. The City of Cheney is a public service and it is important to keep the phone lines
as free as possible for business. This prohibition for telephone usage includes cell phones,
whether personal or City provided. (See http://www.gardencity.org/kacm/Cheney_Personnel_Policy_2002.doc).
For other resources, see:
A sample employer policy by Georgetown University, Incidental Personal Use of
Electronic Resources Guidelines, at
http://uis.georgetown.edu/policies/technology/personaluse.html
The Office of the Inspector General, Commonwealth of Massachusetts, has issued a brief
booklet, Advisory to Local Officials: Telephone Usage Policies (May 2005) available at
http://www.mass.gov/ig/publ/teleadv.pdf (usage policy concerns for government-owned
land line and cellular telephones);
Employee Cell Phone Use May Lead to Liability, The Ison Law Group, at
http://www.theisonlawgroup.com/?news%7C1045 and
Margaret A. McCausland and Sophia Lee, Restrict Employee Cell Phone Use to Limit
Liability, at http://www.blankrome.com/Publications/Articles/mccausland_workindex.asp
News from IMLA’s International Committee
Nearly 20 IMLA members and their guests will attend the World Jurist Association's
22nd Biennial Congress on the Law of the World. With such a large delegation, IMLA
anticipates a unique opportunity to discuss the importance of local government law in the
Rule of Law system. IMLA members will be speaking on nine different panels
throughout the Congress. The Congress, to be held September 4-10 in Beijing and
Shanghai, China, is expected to be one of the premier legal events in international law.
The Chief Justices from over 38 nations are participating – Supreme Court Justice
Anthony Kennedy will be in attendance from the United States. For more information on
this program, please visit http://www.worldjurist.org/events.html For a sneak peek at the
coverage the Chinese Host Committee will offer on this, see
http://www.chinacourt.org/zhuanti1/22clw/e_index.php
Endnotes
911 Doesn’t Do Pizza An 86-year-old woman was charged with misusing the
emergency telephone hotline after she allegedly called 911 more than 20 times in a halfhour, even after being told to stop, to complain about a pizza delivery. When officers
arrived to arrest her, she allegedly attacked the police. See
http://www.cnn.com/2005/US/05/25/pizza.jail.ap/index.html
Perfume Claims Nets $10M Jury Award According to CNN, a jury awarded an
employee over $10M in damages after the employee was fired. The employee, a radio
station host, claimed a coworker’s perfume made her ill because of allergies, and that the
station discriminated against her and retaliated after she filed a complaint with the EEOC.
The station argued it had made an effort to modify work schedules so the two would not
be working together, and that the employee was fired for not coming to work. The
employer will reportedly appeal. See
http://www.cnn.com/2005/LAW/05/24/perfume.lawsuit.ap/index.html
Video-Game Bill Illinois lawmakers have approved a measure, H.B. 4023, that would
ban the sale of violent or sexually explicit video games to minors. Unfortunately, it
appears that the legislation leaves it up to the retailers to determine which games are too
violent or sexually explicit. See http://www.fac.org/news.aspx?id=15364
Justice at Last According to news reports, New York City passed a law recently (A
Local Law to amend the administrative code of the city of New York, in relation to equal
access to bathroom facilities) that would requires all new public buildings to have twice
the number of women’s bathroom stalls as those in the men’s room. The law would apply
to newly-constructed buildings like bars, stadiums and theaters, but not existing
buildings, unless they are undergoing major renovations. Private office buildings would
not be affected either. See
http://www.ny1.com/ny1/content/index.jsp?&aid=51117&search_result=1&stid=3 A
copy of the draft law is online at http://webdocs.nyccouncil.info/textfiles/Int%2000422004.htm
Sounding Board According to the First Amendment Center, the City of Charlottesville,
Virginia, will soon have a "free-speech chalkboard monument" erected in front of City
Hall. The display will consist of the text of the First Amendment on one side and a large
chalkboard on the other, where residents can write and erase messages. A podium will be
included near the monument as well. The project is sponsored by the Thomas Jefferson
Center for the Protection of Free Expression and is funded by private donations. See
http://www.fac.org/news.aspx?id=15392
NYC Smoking Law Upheld According to a press release, a federal court has granted
New York City’s motion to dismiss all claims raised in the case of The Players, Inc. v.
City of New York and upheld the constitutionality of the city’s Smoke-Free Air Act. The
Players, a private social club for actors and members of the theatrical profession, alleged
that the Act violated the Fourth Amendment by authorizing warrantless searches of
commercial premises, and also violated Equal Protection, First Amendment, and Due
Process guarantees. In dismissing the action, the court indicated that "individuals have no
‘fundamental’ constitutional right to smoke tobacco" and that there was "no evidence on
the record of any improper or irrational animus motivating the distinction between
tobacco bars and membership organizations with employees," as alleged by the club. For
the press release, see http://www.nyc.gov/html/law/pressreleases/pr052505.pdf
Congestion Tax? London’s mayor, Ken Livingstone, is reportedly urging U.S. mayors
to follow his example by imposing a tax on motorists who want to drive in downtown
areas. He argues that since a $9 daily fee went into effect in February 2003, London’s
traffic congestion has decreased, as has the emission of "greenhouse gases," and the use
of public transit has increased. The fee is in effect between 7 a.m. and 6:30 p.m. and is
enforced through a system of daily, weekly, or yearly passes along with license plate
number registration. Those who fail to comply are liable to be caught through a network
of 800 cameras that photograph the license plates of drivers within the payment zone.
(Source: Terence Chea, U.S. Cities Urged to Adopt 'Congestion Tax,' Washington Post,
May 5, 2005 at page A15.)
Firefighter’s Beard According to a news source, a Philadelphia firefighter may get to
keep his beard despite a policy that prohibits firefighters from having mustaches and
beards. The firefighter, De Veaux, agreed to the policy when he was hired two years ago,
but became more observant as a Muslim in the meantime. He was suspended without pay
early this year, and apparently successfully argued the Pennsylvania Religious Freedom
Protection Act to prevent being fired while the case proceeds. See
http://www.fac.org/news.aspx?id=15378
For additional legal news, please see the What's New page at the IMLA website,
www.imla.org
Talk to Us!
Please contact me, Sophia Stadnyk, with your news, questions, and comments at
sstadnyk@imla.org If IMLA can be of assistance, please e-mail us at info@imla.org or
call (202) 466-5424.
Last Words
The best servants of the people, like the best valets, must whisper unpleasant truths
in the master’s ear. It is the court fool, not the foolish courtier, whom the king can
least afford to lose. -- Walter Lippman (1889 - 1974), American author and editor