NLC Joins Three Supreme CourtAmicus Briefs

National League of Cities Joins Three Supreme Court Amicus Briefs

By Lisa Soronen in Advocacy, CitiesSpeak, General, Supreme Court on September 8, 2017

In the summer, the Supreme Court is not in session — but outside stakeholders continue to file briefs in preparation for fall arguments.

InAugust,NLCjoinedthreeSupremeCourtamicusbriefs filed by the State and Local Legal Center (SLLC). These three diverse cases covered many facets of local government — though only one concerned a specific city.

Artis v. District of Columbia

The very simple question in Artis v. District of Columbia is: What does it mean for a statute of limitations to “toll” under28U.S.C1367(d)?TheSLLCfiledaSupremeCourt amicus brief agreeing with the District of Columbia’s interpretation of “toll. ”

A year after being terminated as a code inspector, Stephanie Artis sued the District of Columbia in federal court — bringing a number of claims both federal and state. It took the federal district court over two and a half years to rule on her claims. It dismissed her sole federal claimas“faciallydeficient”andnolongerhadjurisdiction to decide the state law claims.

28U.S.C1367(d)statesthatstatutesoflimitationsforstate law claims pending in federal court shall be “tolled” for a periodof30daysaftertheyaredismissed(unlessstatelaw provides a longer tolling period).

WhileArtiswaswaitingforthefederaldistrictcourttorule the three-year statutes of limitations on all her state law claims passed. She waited 59 days to refile her claims in state court after the federal district court dismissed her case.

Was her claim timely? The District of Columbia Court of Appeals held no.

Underthesuspensiontheory,thestatestatuteoflimitations freezeonthedaythefederalsuitisfiledandunfreezewith the addition of 30 days when the federal lawsuit is dismissed. Under this theory Artis would have about two years to refile her lawsuit in state court. Under the grace-period theory if the state statute of limitations would have expired while the federal case was pending,alitiganthas30daysfromfederalcourtdismissal to refile in state court. Under this theoryArtis’s lawsuit in state court is time barred because she waited longer the 30 days to refile in state court.

The SLLC amicus brief, which NLC joined, argues in favor of the grace-period theory. As this case illustrates, local governments are regularly sued in cases involving federal and state law claims. The longer the tolling period the greater the costs and burden are on resource constrained local governments.

Husted v.A. Philip Randolph Institute

In Husted v. A. Philip Randolph Institute, the Supreme Court will decide whether federal law allows states and local government to remove people from the voter rolls if

the state sends them a confirmation notice after they haven’t voted for two years, they don’t respond to the notice, and then they don’t vote in the next four years.

While Ohio is being sued in this case twelve other states use a similar process. The SLLC filed an amicus brief in this case, which NLC joined, supporting the state of Ohio. TheNationalVoterRegistrationAct(NVRA)saysthatroll maintenance procedures “shall not result in” people being removed from the polls for failure to vote. The Help America Vote Act modified the NVRA to say that states mayremovevotersiftheydon’trespondtoaconfirmation notice and don’t vote in the next two federal election cycles.

The Sixth Circuit struck down Ohio’s scheme reasoning that it “constitutes perhaps the plainest possible example of a process that ‘result[s] in’removal of a voter from the rolls by reason of his or her failure to vote. ”

The SLLC amicus brief points out that hundreds, if not thousands,ofstatesandlocalgovernmentsaretaskedwith registering voters and maintaining voter rolls. Processes varybasedonfactorsincludingstatelawandresources;so, states and local governments need clear direction and

flexibility regarding what process they may use to maintain voter rolls.The brief points out that while in this case Ohio is being sued for the process it uses to take people off the rolls, states and local governments have been sued for keeping ineligible voters on the rolls.

Christie v. National CollegiateAthleticAssociation

Anti-commandeering doesn’t come up often, but it has been a prominent issue in the sanctuary jurisdictions litigation. Now, another upcoming case raises similar questions.

In Christie v. National Collegiate Athletic Association New Jersey Governor Chris Christie argues that because the Professional and Amateur Sports Protection Act (PASPA)prohibitsthestatefromrepealinglawsrestricting gambling, it amounts to unconstitutional commandeering. The SLLC, joined by NLC, filed an amicus brief supporting Christie.

PASPA, adopted in 1992, makes it unlawful for states and local governments to authorize gambling.

First, New Jersey amended its constitution to allow some sports gambling. The Third Circuit held that doing so violated PASPAas an “authorization” of gambling — but concluded that repealing restrictions on sports gambling would be okay.

New Jersey then passed a law repealing restrictions on sports gambling. The Third Circuit changed course ruling the repeal violates PASPA. It reasoned that the repeal “authorizessportsgamblingbyselectivelydictatingwhere sports gambling may occur, who may place bets in such gambling, and which athletic contests are permissible Per the anti-commandeering doctrine,

“Congress ‘lacks the power directly to compel the States to require or prohibit’ acts which Congress itself may require or prohibit. ” In both cases Christie argued that PASPA unconstitutionally commandeers states in violation of the TenthAmendment.TheThird Circuit concluded PASPAis constitutional reasoning that it “does not command states to take affirmative actions, and it does not present a coercive choice. ”

The SLLC amicus brief argues that, regarding sports gambling, the Third Circuit decision leaves states with onlyoneviableoption: freezebansinplaceenactedbefore PASPA. But, “Congress cannot, on the one hand, fail to preempt the field by way of enacting a federal regime for the regulation of sports wagering and, on the other hand, prevent states from taking any meaningful action to revise their laws to reflect constituent opinion.

Beyond sports gambling, the SLLC amicus brief also argues that “rationale of the Third Circuit’s decision upholding its reading of PASPAwould permit Congress to order state and local governments to freeze state and local law . . . on other issues of critical importance, ” ranging from issues such as physician-assisted death for the terminally ill to self-driving cars.

About the author: Lisa Soronen is the executive director of the State and Local Legal Center (SLLC), which files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations, including the National League of Cities, representing state and local governments.

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