2013 U.S. Supreme Court Roundup/Review
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U.S. Supreme Court Roundup

U.S. Supreme Court Roundup
National Conference of State Legislatures
Legislative Summit
August 13, 2013
Atlanta, Georgia

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2013 U.S. Supreme Court Roundup/Review Presentation Transcript

  • 1. Appellate Practice 1
  • 2. National Conference of State Legislatures Legislative Summit August 13, 2013 Atlanta, Georgia PRESENTED BY Matthew K. Schettenhelm U.S. Supreme Court Roundup ©2013 Best Best & Krieger LLP Appellate Practice 2
  • 3. Appellate Practice 3 Shelby County v. Holder, No. 12-96
  • 4. Appellate Practice 4 Voting Rights Act of 1965
  • 5. Appellate Practice 5 Voting Rights Act of 1965 described: “the single most effective piece of civil rights legislation ever passed by Congress.”
  • 6. Appellate Practice 6 Too effective?
  • 7. Appellate Practice 7 History
  • 8. Appellate Practice 8 The 15th Amendment is ratified in 1870
  • 9. Appellate Practice 9 Two sections
  • 10. Appellate Practice 10 (1)
  • 11. Appellate Practice 11 The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
  • 12. Appellate Practice 12 (2)
  • 13. Appellate Practice 13 The Congress shall have power to enforce this article by appropriate legislation.
  • 14. Appellate Practice 14 Direct Effect =
  • 15. Appellate Practice 15 Trump state laws
  • 16. Appellate Practice 16 But . . .
  • 17. Appellate Practice 17 Stiff resistance
  • 18. Appellate Practice 18 For the first 100 years
  • 19. Appellate Practice 19 Enforcement =
  • 20. Appellate Practice 20 FAILURE
  • 21. Appellate Practice 21 States adopted “color-blind” alternatives:
  • 22. Appellate Practice 22 Poll taxes Literacy tests Vouchers of “good character”
  • 23. Appellate Practice 23 The feds tried . . .
  • 24. Appellate Practice 24 limited success
  • 25. Appellate Practice 25 b/c
  • 26. Appellate Practice 26 litigation
  • 27. Appellate Practice 27 . . . slow . . .
  • 28. Appellate Practice 28 . . . expensive . . .
  • 29. Appellate Practice 29 piecemeal
  • 30. Appellate Practice 30 Consequently
  • 31. Appellate Practice 31 barely improved
  • 32. Appellate Practice 32
  • 33. Appellate Practice 33 August 6, 1965:
  • 34. Appellate Practice 34 The Voting Rights Act
  • 35. Appellate Practice 35 3 key provisions
  • 36. Appellate Practice 36 Forbids any “standard, practice, or procedure” that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” Section 2:
  • 37. Appellate Practice 37 Applies nationwide Section 2: Enforced through litigation
  • 38. Appellate Practice 38 Preclearance Requirement Section 5:
  • 39. Appellate Practice 39 Preclearance=
  • 40. Appellate Practice 40 No changes
  • 41. Appellate Practice 41 w/o
  • 42. Appellate Practice 42 Approval of: 1. Federal court in D.C.; or 2. The Attorney General
  • 43. Appellate Practice 43 Coverage test Section 4(b):
  • 44. Appellate Practice 44 Jurisdictions that: Section 4(b):
  • 45. Appellate Practice 45 1. Imposed a voting test Section 4(b):
  • 46. Appellate Practice 46 2. Had turnout and registration below 50% Section 4(b):
  • 47. Appellate Practice 47 Temporary Originally:
  • 48. Appellate Practice 48 1970: + 5 years
  • 49. Appellate Practice 49 1975: + 7 years
  • 50. Appellate Practice 50 1982: + 25 years
  • 51. Appellate Practice 51 2006: + 25 years
  • 52. Appellate Practice 52 2009
  • 53. Appellate Practice 53
  • 54. Appellate Practice 54 Warning
  • 55. Appellate Practice 55 Northwest Austin Municipal Utility District Number One v. Holder
  • 56. Appellate Practice 56 “A small utility district raising a big question.”
  • 57. Appellate Practice 57 Is the preclearance requirement unconstitutional?
  • 58. Appellate Practice 58 A unanimous Court found that Act: The Act imposes substantial federalism costs
  • 59. Appellate Practice 59 A unanimous Court found: “Things have changed in the South.”
  • 60. Appellate Practice 60 A unanimous Court found: “Voter turnout and registration rates now approach parity.”
  • 61. Appellate Practice 61 A unanimous Court found: These improvements “stand as a monument” to the Voting Rights Act’s success.
  • 62. Appellate Practice 62 A unanimous Court found: But . . .
  • 63. Appellate Practice 63 A unanimous Court found: Past success
  • 64. Appellate Practice 64 A unanimous Court found: Justify
  • 65. Appellate Practice 65 A unanimous Court found: Current restrictions
  • 66. Appellate Practice 66 A unanimous Court found: Coverage formula: based on data more than 35 years old
  • 67. Appellate Practice 67 But . . .
  • 68. Appellate Practice 68 The Court did not reach the constitutional issue
  • 69. Appellate Practice 69 Statutory grounds: the utility district could “bail out” from coverage
  • 70. Appellate Practice 70 Decision sent a message to Congress:
  • 71. Appellate Practice 71 Do something—
  • 72. Appellate Practice 72 or we will
  • 73. Appellate Practice 73 But Congress didn’t act
  • 74. Appellate Practice 74 June 25, 2013
  • 75. Appellate Practice 75 5-4
  • 76. Appellate Practice 76 Shelby County: Section 4(b) is unconstitutional
  • 77. Appellate Practice 77 Cites Northwest Austin more than 30 times.
  • 78. Appellate Practice 78 “50 years later, things have changed dramatically.”
  • 79. Appellate Practice 79 Despite considerable progress, Congress reauthorized the same requirements “as if nothing had changed.”
  • 80. Appellate Practice 80 Coverage test measures by literacy tests (long since banned) and registration and turnout numbers that have since risen dramatically
  • 81. Appellate Practice 81 Congress can only single out states “on a basis that makes sense in light of current conditions.” It cannot rely simply on the past.
  • 82. Appellate Practice 82 As a result:
  • 83. Appellate Practice 83 Section 4(b) = unconstitutional
  • 84. Appellate Practice 84 Section 2 and Section 5 unaffected
  • 85. Appellate Practice 85 This is well within Congress’s authority under the 15th Amendment
  • 86. Appellate Practice 86 Extensive record, including about “second-generation” voting barriers (e.g. vote dilution)
  • 87. Appellate Practice 87 What’s the impact?
  • 88. Appellate Practice 88 (1)
  • 89. Appellate Practice 89 Jurisdictions covered by Section 4(b) may no longer need to seek preclearance
  • 90. Appellate Practice 90 (2)
  • 91. Appellate Practice 91 Could lead to increased # of lawsuits:
  • 92. Appellate Practice 92 Section 2 remains in full effect
  • 93. Appellate Practice 93 Section 3– “bail in” through litigation mechanism, to place states and subdivisions under preclearance
  • 94. Appellate Practice 94 (3)
  • 95. Appellate Practice 95 Congress could re-visit
  • 96. Appellate Practice 96 Arizona v. Inter Tribal Council of Arizona, Inc. No. 12-71
  • 97. Appellate Practice 97
  • 98. Appellate Practice 98 National Voter Registration Act of 1993:
  • 99. Appellate Practice 99 “Each State shall accept and use the mail voter registration application form”
  • 100. Appellate Practice 100 accept and use
  • 101. Appellate Practice 101 In 2004, Arizona voters adopted Proposition 200
  • 102. Appellate Practice 102 Voters must present proof of citizenship when they register
  • 103. Appellate Practice 103 County recorders must reject any application not accompanied by satisfactory evidence of citizenship
  • 104. Appellate Practice 104 (1) a photocopy of the applicant's passport or birth certificate, (2) a driver's license number, if the license states that the issuing authority verified the holder's U. S. citizenship, (3) evidence of naturalization, (4) tribal identification, or (5) [o]ther documents or methods of proof . . . established pursuant to the Immigration Reform and Control Act of 1986.
  • 105. Appellate Practice 105 But . . .
  • 106. Appellate Practice 106
  • 107. Appellate Practice 107 Concrete evidence of citizenship
  • 108. Appellate Practice 108 Concrete evidence of citizenship
  • 109. Appellate Practice 109 Voter only attests under penalty of perjury
  • 110. Appellate Practice 110 Tension:
  • 111. Appellate Practice 111 accept and use
  • 112. Appellate Practice 112
  • 113. Appellate Practice 113 Must reject if no:
  • 114. Appellate Practice 114 (1) a photocopy of the applicant's passport or birth certificate, (2) a driver's license number, if the license states that the issuing authority verified the holder's U. S. citizenship, (3) evidence of naturalization, (4) tribal identification, or (5) [o]ther documents or methods of proof . . . established pursuant to the Immigration Reform and Control Act of 1986.
  • 115. Appellate Practice 115 Basic legal question
  • 116. Appellate Practice 116 Does the National Voter Registration Act preempt Arizona’s proof of citizenship requirement?
  • 117. Appellate Practice 117 Yes
  • 118. Appellate Practice 118 7-2 No Yes
  • 119. Appellate Practice 119 “Accept and use” fairly susceptible to two interpretations
  • 120. Appellate Practice 120 (but one is better)
  • 121. Appellate Practice 121 (1)
  • 122. Appellate Practice 122 Must accept federal form as complete and sufficient
  • 123. Appellate Practice 123 (2)
  • 124. Appellate Practice 124 Receive form and use it somehow
  • 125. Appellate Practice 125 e.g.
  • 126. Appellate Practice 126 Restaurant “accepts and uses” credit cards, even though it requires customers to show matching identification
  • 127. Appellate Practice 127 Context
  • 128. Appellate Practice 128 Many federal statutes use similar structure— and they require more than willing receipt
  • 129. Appellate Practice 129 Other provisions of the Act suggest the completed federal form is itself “valid.”
  • 130. Appellate Practice 130 States can create their own forms—but federal form must still be available
  • 131. Appellate Practice 131 “No matter what procedural hurdles a State's own form imposes, the Federal Form guarantees that a simple means of registering to vote in federal elections will be available.”
  • 132. Appellate Practice 132 No presumption against preemption under the Elections Clause
  • 133. Appellate Practice 133 "The 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, except as to the places of chusing Senators."
  • 134. Appellate Practice 134 Federalism concerns are somewhat weaker here: the States’ role in regulating congressional elections has always been subject to federal preemptions
  • 135. Appellate Practice 135 But, Arizona said, . . .
  • 136. Appellate Practice 136 Doesn’t this reading of “accept and use” conflict with the Constitution’s basic division of authority?
  • 137. Appellate Practice 137 States = establish voter qualifications (including citizenship)
  • 138. Appellate Practice 138 Feds = regulate time, place, and manner of elections
  • 139. Appellate Practice 139 Yes, but . . .
  • 140. Appellate Practice 140 “Arizona is correct that it would raise serious constitutional doubts if a federal statute precluded a State from obtaining the information necessary to enforce its voter qualifications”
  • 141. Appellate Practice 141 But: Arizona can obtain that information in another way
  • 142. Appellate Practice 142 Federal administrative process
  • 143. Appellate Practice 143 May request that the Election Assistance Commission alter the Federal Form to include information the State deems necessary to determine eligibility
  • 144. Appellate Practice 144 Can challenge its decision under the Administrative Procedure Act
  • 145. Appellate Practice 145 Dissents
  • 146. Appellate Practice 146 “Arizona has the independent constitutional authority to verify citizenship in the way it deems necessary.”
  • 147. Appellate Practice 147 “It matters not whether the United States has specified one way in which it believes Arizona might be able to verify citizenship; Arizona has the independent constitutional authority to verify citizenship in the way it deems necessary.”
  • 148. Appellate Practice 148 Would apply presumption against preemption
  • 149. Appellate Practice 149 “a State ‘accept[s] and use[s]’ the federal form so long as it uses the form as a meaningful part of the registration process.”
  • 150. Appellate Practice 150 What’s the impact?
  • 151. Appellate Practice 151 (1)
  • 152. Appellate Practice 152 Limits States’ ability to control their own election processes
  • 153. Appellate Practice 153 (2)
  • 154. Appellate Practice 154 Requires States to engage the federal administrative process
  • 155. Appellate Practice 155 City of Arlington v. FCC, No. 11-1545
  • 156. Appellate Practice 156 (Disclosure: BB&K represented the City of Arlington and other local governments)
  • 157. Appellate Practice 157 FCC can define its own statutory authority over State and local governments
  • 158. Appellate Practice 158 Case has two elements
  • 159. Appellate Practice 159 (1)
  • 160. Appellate Practice 160 Administrative law
  • 161. Appellate Practice 161 (2)
  • 162. Appellate Practice 162 Federalism
  • 163. Appellate Practice 163 (1)
  • 164. Appellate Practice 164 Who makes federal law?
  • 165. Appellate Practice 165
  • 166. Appellate Practice 166 But Congress also delegates
  • 167. Appellate Practice 167 ( e.g.) Central Intelligence Agency, Commodity Futures Trading Commission, Consumer Product Safety Commission, Corporation for Public Broadcasting, Defense Nuclear Facilities Safety Board, Election Assistance Commission, Environmental Protection Agency, Equal Employment Opportunity Commission, Export-Import Bank of the United States, Farm Credit Administration, Federal Communications Commission, Federal Deposit Insurance Corporation, Federal Election Commission, Federal Housing Finance, Board Federal Labor Relations Authority, Federal Maritime Commission, Federal Mediation and Conciliation Service, Federal Mine Safety and Health Review Commission, Federal Reserve System United States Consumer Financial Protection Bureau, Federal Retirement Thrift Investment Board, Federal Trade Commission, National Aeronautics and Space Administration, National Archives and Records Administration Office of the Federal Register, National Capital Planning Commission, National Labor Relations Board, National Transportation Safety Board, Nuclear Regulatory Commission, Securities and Exchange Commission, Small Business Administration, Social Security Administration, Tennessee Valley Authority, U.S. Trade and Development Agency, United States Agency for International Development, United States International Trade Commission
  • 168. Appellate Practice 168 Who decides what the law means?
  • 169. Appellate Practice 169
  • 170. Appellate Practice 170 The courts do not operate alone in interpreting ambiguous statutes
  • 171. Appellate Practice 171 The Chevron doctrine
  • 172. Appellate Practice 172 Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)
  • 173. Appellate Practice 173 For a statute that an agency administers:
  • 174. Appellate Practice 174 Follow a two-step process
  • 175. Appellate Practice 175 Is the statute ambiguous?
  • 176. Appellate Practice 176 Is the agency’s reading permissible?
  • 177. Appellate Practice 177 If so, court must defer
  • 178. Appellate Practice 178 But the Court had never decided one fundamental question:
  • 179. Appellate Practice 179 What if the ambiguous statute concerns . . .
  • 180. Appellate Practice 180 whether Congress intended the agency to regulate in this area at all
  • 181. Appellate Practice 181 Should a court defer to that interpretation?
  • 182. Appellate Practice 182 (2)
  • 183. Appellate Practice 183 Federalism
  • 184. Appellate Practice 184 47 U.S.C. 332(c)(7)
  • 185. Appellate Practice 185 Titled “Preservation of Local Zoning Authority.”
  • 186. Appellate Practice 186 Statute imposes five limitations on State and local governments regulating cell-tower placement
  • 187. Appellate Practice 187 But begins with a broad preservation clause:
  • 188. Appellate Practice 188 Except as provided in this paragraph, nothing in this Act shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities.
  • 189. Appellate Practice 189 except here
  • 190. Appellate Practice 190 Nothing in this Act
  • 191. Appellate Practice 191 may limit
  • 192. Appellate Practice 192 or affect
  • 193. Appellate Practice 193 Leg. history:
  • 194. Appellate Practice 194 Directed FCC to terminate its rulemaking, and leave (non-RF) disputes to the courts
  • 195. Appellate Practice 195 But the FCC relied on its general authority outside of Section 332(c)(7)
  • 196. Appellate Practice 196 Made rules interpreting what it means to act on a request within a “reasonable period of time”
  • 197. Appellate Practice 197 FCC claimed “reasonable period of time” was ambiguous and merited Chevron deference
  • 198. Appellate Practice 198 But the FCC claimed that Chevron also applied to whether its general authority extends to Section 332(c)(7)
  • 199. Appellate Practice 199 The Supreme Court granted cert. only on the abstract administrative law question: does Chevron apply to jurisdictional determinations?
  • 200. Appellate Practice 200 Yes
  • 201. Appellate Practice 201 6-3
  • 202. Appellate Practice 202 “There is no principled basis for carving out some arbitrary subset of . . . claims as ‘jurisdictional.’”
  • 203. Appellate Practice 203 “[E]very new application of a broad statutory term can be reframed as a questionable extension of the agency's jurisdiction’”
  • 204. Appellate Practice 204 “[J]udges should not waste their time in the mental acrobatics needed to decide whether an agency's interpretation of a statutory provision is ‘jurisdictional’ or ‘nonjurisdictional.’”
  • 205. Appellate Practice 205 A contrary rule would jeopardize Chevron itself and encourage unelected, unaccountable judges to make policy choices.
  • 206. Appellate Practice 206 Refused to apply de novo standard to decide whether an agency’s general authority extends to the particular ambiguous term
  • 207. Appellate Practice 207 A general grant of rulemaking/adjudicative authority is enough to trigger Chevron: will not go provision-by-provision
  • 208. Appellate Practice 208 Dissents
  • 209. Appellate Practice 209 “My disagreement with the Court is fundamental. It is also easily expressed: A court should not defer to an agency until the court decides, on its own, that the agency is entitled to deference.”
  • 210. Appellate Practice 210 Administrative state would leave the Framers “rubbing their eyes.”
  • 211. Appellate Practice 211 “The appropriate question is whether the delegation covers the ‘specific provision’ and ‘particular question’ before the court. A congressional grant of authority over some portion of a statute does not necessarily mean that Congress granted the agency interpretive authority over all its provisions.”
  • 212. Appellate Practice 212 What’s the impact?
  • 213. Appellate Practice 213 More difficult to challenge a federal agency’s statutory interpretations
  • 214. Appellate Practice 214 Koontz v. St. Johns Water Management District, No. 11-1447
  • 215. Appellate Practice 215 Land use permits
  • 216. Appellate Practice 216 Takings Clause
  • 217. Appellate Practice 217 “nor shall private property be taken for public use, without just compensation”
  • 218. Appellate Practice 218 Question:
  • 219. Appellate Practice 219 When a State or local government conditions how a person may use his land
  • 220. Appellate Practice 220 Does it present a constitutional issue?
  • 221. Appellate Practice 221 A landowner, Mr. Koontz, sought to develop his property
  • 222. Appellate Practice 222 But he sought to build on wetlands
  • 223. Appellate Practice 223 Florida had adopted the Water Resources Act
  • 224. Appellate Practice 224 water districts can regulate “construction that connects to, draws water from, drains water into, or is placed in or across the waters in the state.”
  • 225. Appellate Practice 225 A district can condition that construction on
  • 226. Appellate Practice 226 Reasonable conditions “necessary to assure” that construction will “not be harmful to the water resources of the district.”
  • 227. Appellate Practice 227 Water District offered Mr. Koontz two alternatives:
  • 228. Appellate Practice 228 (1)
  • 229. Appellate Practice 229 Reduce development size and deed conservation easement to the district
  • 230. Appellate Practice 230 (2)
  • 231. Appellate Practice 231 Enhance approximately 50 acres of District-owned wetlands elsewhere
  • 232. Appellate Practice 232 Mr. Koontz refused
  • 233. Appellate Practice 233 District denied his application
  • 234. Appellate Practice 234 Mr. Koontz sued:
  • 235. Appellate Practice 235 Claimed it was “an unreasonable exercise of the state’s police power constituting a taking without just compensation.”
  • 236. Appellate Practice 236 Florida Supreme Court said there was no “takings” problem for two reasons:
  • 237. Appellate Practice 237 (1)
  • 238. Appellate Practice 238 District denied the application—so it, quite literally, did not “take” anything
  • 239. Appellate Practice 239 (2)
  • 240. Appellate Practice 240 Only required Mr. Koontz to spend $—not surrender a property interest
  • 241. Appellate Practice 241 The Supreme Court reversed
  • 242. Appellate Practice 242 5-4
  • 243. Appellate Practice 243 “unconstitutional conditions” doctrine:
  • 244. Appellate Practice 244 The government cannot coerce a person to give up constitutional rights
  • 245. Appellate Practice 245 “Land-use permit applications are especially vulnerable to this type of coercion”
  • 246. Appellate Practice 246 “the government can pressure an owner into voluntarily giving up property for which the Fifth Amendment would otherwise require just compensation”
  • 247. Appellate Practice 247 On the other hand
  • 248. Appellate Practice 248 “[M]any proposed land uses threaten to impose costs on the public that dedications of property can offset.”
  • 249. Appellate Practice 249 “Insisting that landowners internalize the negative externalities of their conduct is a hallmark of responsible land-use policy.”
  • 250. Appellate Practice 250 Dolan v. City of Tigard, 512 U.S. 374 (1994) and Nollan v. California Coastal Commission, 483 U.S. 825 (1987) “accommodate both realities.”
  • 251. Appellate Practice 251 Government may condition a land- use permit so long as there is a “nexus” and “rough proportionality” between the property that the government demands and the social costs of the applicant’s proposal
  • 252. Appellate Practice 252 Rejected both elements of Florida Supreme Court’s holding
  • 253. Appellate Practice 253 (1)
  • 254. Appellate Practice 254 Doesn’t matter that the government denied the application (instead of approving with condition)
  • 255. Appellate Practice 255 It’s true that “nothing has been taken.”
  • 256. Appellate Practice 256 No “just compensation” required under the Constitution
  • 257. Appellate Practice 257 But the cause of action may permit other damages
  • 258. Appellate Practice 258 (2)
  • 259. Appellate Practice 259 Requiring applicant to spend $ is enough—provided that there is “direct link between the government’s demand and a specific parcel of real property”
  • 260. Appellate Practice 260 Otherwise, a permitting authority could too easily evade the Nollan and Dolan tests
  • 261. Appellate Practice 261 Rejected the view that it will be too difficult to distinguish permit fees from taxes:
  • 262. Appellate Practice 262 Decision “does not affect the ability of governments to impose property taxes, user fees, and similar laws and regulations that may impose financial burdens on property owners.”
  • 263. Appellate Practice 263 Dissent
  • 264. Appellate Practice 264 The Court’s rule “threatens to subject a vast array of land-use regulations, applied daily in States and localities throughout the country, to heightened constitutional scrutiny”
  • 265. Appellate Practice 265 Agrees that a permit denial should be treated the same as a grant with conditions
  • 266. Appellate Practice 266 But strongly disagrees that Nollan and Dolan extend to cases where the government conditions a permit not on the transfer of real property, but on the payment of $$
  • 267. Appellate Practice 267 Requiring a person to pay $$ is not a taking requiring just compensation (Eastern Enterprises v. Apfel, 524 U.S. 498 (1998)).
  • 268. Appellate Practice 268 Significant practical harms:
  • 269. Appellate Practice 269 The Court “extends the Takings Clause, with its notoriously ‘difficult’ and ‘perplexing’ standards, into the very heart of local land-use regulation and service delivery.”
  • 270. Appellate Practice 270 Cities and towns across the nation impose many kinds of permitting fees every day:
  • 271. Appellate Practice 271 e.g.
  • 272. Appellate Practice 272 to mitigate a new development's impact on the community, like increased traffic or pollution
  • 273. Appellate Practice 273 To cover the direct costs of providing services like sewage or water
  • 274. Appellate Practice 274 To limit the number of landowners who engage in a certain activity, as fees for liquor licenses do.
  • 275. Appellate Practice 275 All now must meet Nollan and Dolan's nexus and proportionality tests
  • 276. Appellate Practice 276 How is one to tell an improper exaction from a proper tax?
  • 277. Appellate Practice 277 Also stressed that the district made no “demand”: it only suggested ways that Mr. Koontz could comply
  • 278. Appellate Practice 278 This gives District’s attorney incentive to deny, without offering alternatives
  • 279. Appellate Practice 279 “Nothing in the Takings Clause requires that folly.”
  • 280. Appellate Practice 280 What’s the impact?
  • 281. Appellate Practice 281 Threat of increased litigation about permit conditions
  • 282. Appellate Practice 282
  • 283. Appellate Practice 283 Fourth Amendment
  • 284. Appellate Practice 284 "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."
  • 285. Appellate Practice 285 If there is a “search,” it must be “reasonable”:
  • 286. Appellate Practice 286 Officers have probable cause to believe they can find evidence of a crime and (usually) judge issues search warrant;
  • 287. Appellate Practice 287
  • 288. Appellate Practice 288 (1)
  • 289. Appellate Practice 289 When does a dog sniff provide “probable cause” to justify a search?
  • 290. Appellate Practice 290 Florida v. Harris, No. 11-564
  • 291. Appellate Practice 291 (2)
  • 292. Appellate Practice 292 Does a dog sniff on your porch constitute a “search” at all (and therefore require probable cause)?
  • 293. Appellate Practice 293 Florida v. Jardines, No. 11-1447
  • 294. Appellate Practice 294 Florida v. Harris, No. 11-564
  • 295. Appellate Practice 295 When does a dog sniff provide probable cause to justify a search?
  • 296. Appellate Practice 296 Officer pulled over driver for expired license plate
  • 297. Appellate Practice 297 Driver: visibly nervous
  • 298. Appellate Practice 298 +
  • 299. Appellate Practice 299 Unopened can of beer
  • 300. Appellate Practice 300 Aldo: alerted
  • 301. Appellate Practice 301 Based on the alert, officer concluded he had probable cause to search truck
  • 302. Appellate Practice 302 Found illegal drugs—but not those that Aldo was trained to find
  • 303. Appellate Practice 303 When driver out on bail: the officer (and Aldo) pulled him over again (brake light)
  • 304. Appellate Practice 304 Aldo alerted again
  • 305. Appellate Practice 305 Officer found nothing
  • 306. Appellate Practice 306 The defendant moved to suppress the evidence found in his truck:
  • 307. Appellate Practice 307 Aldo’s alert did not give officer probable cause
  • 308. Appellate Practice 308 The Florida Supreme Court agreed:
  • 309. Appellate Practice 309 Not enough that the dog was trained and certified
  • 310. Appellate Practice 310 State must present:
  • 311. Appellate Practice 311 the dog's training and certification records, an explanation of the meaning of the particular training and certification, field performance records (including any unverified alerts), and evidence concerning the experience and training of the officer handling the dog, as well as any other objective evidence known to the officer about the dog's reliability.
  • 312. Appellate Practice 312 Court stressed evidence of performance history
  • 313. Appellate Practice 313 Under this test:
  • 314. Appellate Practice 314 An officer who did not keep full performance records could never establish probable cause
  • 315. Appellate Practice 315
  • 316. Appellate Practice 316 Is all that required?
  • 317. Appellate Practice 317 9-0
  • 318. Appellate Practice 318 No.
  • 319. Appellate Practice 319 The probable cause test asks only whether the facts would lead a reasonable person to belief that contraband or evidence of a crime is present.
  • 320. Appellate Practice 320 Test cannot be reduced to a precise definition
  • 321. Appellate Practice 321 Court has consistently used an “all-things- considered” approach
  • 322. Appellate Practice 322 The Florida Supreme Court’s “check list” approach:
  • 323. Appellate Practice 323 “the antithesis of a totality-of-the- circumstances analysis.”
  • 324. Appellate Practice 324 Performance tests often have “relatively limited import”
  • 325. Appellate Practice 325 So the Court provided a framework:
  • 326. Appellate Practice 326 A court may presume a dog’s alert provides probable cause if:
  • 327. Appellate Practice 327 bona fide organization has certified dog’s reliability; or
  • 328. Appellate Practice 328 the dog has recently and successfully completed a training program
  • 329. Appellate Practice 329 Defendant must have opportunity to challenge that evidence
  • 330. Appellate Practice 330 Key question: whether all the facts surrounding a dog's alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime
  • 331. Appellate Practice 331 “A sniff is up to snuff when it meets that test.”
  • 332. Appellate Practice 332 Aldo’s sniff passed.
  • 333. Appellate Practice 333 State showed adequate training
  • 334. Appellate Practice 334 And the defendant failed to rebut based on Aldo’s performance
  • 335. Appellate Practice 335 (2)
  • 336. Appellate Practice 336 Florida v. Jardines, No. 11-1447
  • 337. Appellate Practice 337 Does a dog sniff on your porch constitute a “search” at all (and therefore require probable cause)?
  • 338. Appellate Practice 338 Yes
  • 339. Appellate Practice 339 5-4
  • 340. Appellate Practice 340 Police received an unverified tip that marijuana was being grown in defendant’s home
  • 341. Appellate Practice 341 Officer watched home for 15 minutes
  • 342. Appellate Practice 342 Approached his home with drug-sniffing dog
  • 343. Appellate Practice 343 Dog caught scent and engaged in “bracketing”
  • 344. Appellate Practice 344 After dog sniffed base of front door, he sat.
  • 345. Appellate Practice 345 This is trained behavior indicating the odor’s strongest point.
  • 346. Appellate Practice 346 Based on this, the officer received a warrant to search the residence
  • 347. Appellate Practice 347 Search revealed marijuana
  • 348. Appellate Practice 348 Defendant moved to suppress marijuana plants b/c dog investigation was an unreasonable search
  • 349. Appellate Practice 349 Florida Supreme Court: use of dog was a “search” and was not supported by probable cause
  • 350. Appellate Practice 350 5-4
  • 351. Appellate Practice 351 It was a “search.”
  • 352. Appellate Practice 352 This is a straightforward case.
  • 353. Appellate Practice 353 Found search based on “trespass” theory; no need to ask whether “reasonable expectation of privacy.”
  • 354. Appellate Practice 354 Under the Fourth Amendment, “the home is first among equals.”
  • 355. Appellate Practice 355 The Court has always ruled that curtilage—area immediately surrounding the house—enjoys the full protection of a “house.”
  • 356. Appellate Practice 356 Officers entered that protected space, and engaged in conduct not explicitly or implicitly permitted by the homeowner
  • 357. Appellate Practice 357 Homeowners do grant visitors a license
  • 358. Appellate Practice 358 It “does not require fine-grained legal knowledge; it is generally managed without incident by the Nation's Girl Scouts and trick-or- treaters.”
  • 359. Appellate Practice 359 But homeowners do not grant an implicit license to visitors to search with a dog
  • 360. Appellate Practice 360 “To find a visitor knocking on the door is routine (even if sometimes unwelcome); to spot that visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to — well, call the police.”
  • 361. Appellate Practice 361 Because this is a trespass, don’t have to ask whether officers violated defendant’s “reasonable expectation of privacy.”
  • 362. Appellate Practice 362 The Fourth Amendment's property- rights baseline “keeps easy cases easy.”
  • 363. Appellate Practice 363 Concurrence
  • 364. Appellate Practice 364 Would find search on both “property rights” and “reasonable expectation of privacy” grounds
  • 365. Appellate Practice 365 “For me, a simple analogy clinches this case.”
  • 366. Appellate Practice 366 A stranger carrying super-high- powered binoculars, stands on your porch, doesn’t knock, and can see your home’s furthest corners.
  • 367. Appellate Practice 367 The stranger has both “trespassed” by exceeding his license, and violated your reasonable expectation of privacy
  • 368. Appellate Practice 368 Dissent
  • 369. Appellate Practice 369 Not a search.
  • 370. Appellate Practice 370 The Court manufactures a rule of trespass that does not exist.
  • 371. Appellate Practice 371 Visitors have a license to use a walkway to approach a front door and remain there a brief time
  • 372. Appellate Practice 372 That’s all that occurred here
  • 373. Appellate Practice 373 And a homeowner has no expectation of privacy with respect to odors that can be smelled in places where members of the public may lawfully stand
  • 374. Appellate Practice 374 Stresses decision’s narrowness:
  • 375. Appellate Practice 375 Because it is based only on trespass, it does not apply when a dog alerts on a public sidewalk or street
  • 376. Appellate Practice 376 What’s the impact?
  • 377. Appellate Practice 377 Harris:
  • 378. Appellate Practice 378 States can use dogs without satisfying “inflexible checklist”
  • 379. Appellate Practice 379 Jardines:
  • 380. Appellate Practice 380 Clarifies contours of permissible police behavior
  • 381. Appellate Practice 381 Physical intrusions of “houses, papers, and effects” will constitute a “search.”
  • 382. Appellate Practice 382 Investigations in or near a house likely to be subject to closer judicial scrutiny
  • 383. Appellate Practice 383 Dan’s City Used Cars, Inc. v. Pelkey, No. 12-52
  • 384. Appellate Practice 384 Does federal law preempt state-law claims about the storage and disposal of a car after it has been towed?
  • 385. Appellate Practice 385 9-0
  • 386. Appellate Practice 386 No.
  • 387. Appellate Practice 387 The case is the story of Robert Pelkey.
  • 388. Appellate Practice 388 During a February snowstorm, Mr. Pelkey had been confined to his bed with a serious medical condition
  • 389. Appellate Practice 389 His apartment building towed his car
  • 390. Appellate Practice 390 (Pelkey didn’t know)
  • 391. Appellate Practice 391 Soon after, Mr. Pelkey was admitted to the hospital for a procedure to amputate his foot
  • 392. Appellate Practice 392 During the procedure, he had a heart attack
  • 393. Appellate Practice 393 He remained in the hospital until April
  • 394. Appellate Practice 394 (Pelkey still didn’t know)
  • 395. Appellate Practice 395 The towing company, Dan’s City, scheduled an auction
  • 396. Appellate Practice 396 Even after Pelkey asked Dan’s not to proceed,
  • 397. Appellate Practice 397 Dan’s disposed of the car— and kept the proceeds
  • 398. Appellate Practice 398 Pelkey claimed Dan’s violated the New Hampshire Consumer Protection Act
  • 399. Appellate Practice 399 Dan’s argued that Pelkey’s claims were preempted by federal law.
  • 400. Appellate Practice 400 Specifically:
  • 401. Appellate Practice 401 Federal Aviation Administration Authorization Act of 1994
  • 402. Appellate Practice 402 "[A] State ... may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier ... with respect to the transportation of property."
  • 403. Appellate Practice 403 Enacted in 1980
  • 404. Appellate Practice 404 Deregulates trucking industry (following model of airline industry)
  • 405. Appellate Practice 405 Goal: Ensure that States would not undo federal deregulation with regulation of their own
  • 406. Appellate Practice 406 Pelkey’s claims escape preemption.
  • 407. Appellate Practice 407 Claims are not “related to” the service of a motor carrier “with respect to the transportation of property.” "[A] State ... may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier ... with respect to the transportation of property."
  • 408. Appellate Practice 408 The state law regulates disposal of vehicles “once their transportation—here, by towing— has ended.”
  • 409. Appellate Practice 409 Claims are also unrelated to a “service” the motor carrier provides its customers
  • 410. Appellate Practice 410 Here, the only “service” ended months before the conduct on which Pelkey’s claims are based
  • 411. Appellate Practice 411 Pelkey's claims are far removed from Congress' driving concern.
  • 412. Appellate Practice 412 Pelkey's claims are far removed from Congress‘s driving concern.
  • 413. Appellate Practice 413 Rejects argument that because the statute lists exceptions to preemption, and those exceptions do not reach these claims, the claims must be preempted.
  • 414. Appellate Practice 414 “Exceptions to a general rule, while sometimes a helpful interpretive guide, do not in themselves delineate the scope of the rule.”
  • 415. Appellate Practice 415 What’s the impact?
  • 416. Appellate Practice 416 Reinforces limits of express preemption
  • 417. Thank you for attending. Matthew K. Schettenhelm Best Best & Krieger LLP Washington D.C. Phone: (202) 785-0600 Email: matthew.schettenhelm@bbklaw.com www.bbklaw.com Appellate Practice 417
  • 418. Credits • Images (creative commons licensed via Flickr):  Selma March - Trading Cards NPS: http://www.flickr.com/photos/tradingcardsnpsyahoocom/7222972614/  Supreme Court Bldg-Mark Fischer: http://www.flickr.com/photos/fischerfotos/7432022562/  U.S. Capitol-TexasGOPVote.com: http://www.flickr.com/photos/60064824@N03/5486339525/  Police dog-Clotee Allochuku: http://www.flickr.com/photos/clotee_allochuku/6069598467/ • Presentation style: Lessig (roughly) Appellate Practice 418