The Thicket at State Legislatures

Individual Development Accounts: The Basics

By Qiana Torres Flores

Almost half of all Americans are not confident that they could get $2,000 within a month to cover an emergency.  This lack of savings can result in financial hardship for families that face sudden crises such as a job loss, illness or injury.

Thirty-five states have laws to create individual development account (IDA) programs to encourage people to save.  IDAs are matched savings accounts that are most often used for long-term investments like buying a home, getting more education or starting a small business.

In this edition of the Buzz at State Legislatures (4:27), Qiana Torres Flores of the National Conference of State Legislatures (NCSL) Working Families Project talks about how IDAs work and how states have creatively used this strategy to help people save.

IDA Podcast

 

Supreme Court Decides MS4 Case Favorably

By Lisa Soronen 

As previously predicted in the Thicket, the Supreme Court’s decision involving MS4s will probably be its easiest of the term.  The Court’s decision is a mere five pages, and was issued a little over a month after oral argument.   

Now, for a brief MS4 refresher:  MS4 is short for municipal separate storm sewer systems.  MS4s are a system of sewers that collect stormwater. 

The controversy in Los Angeles County Flood Control District v. Natural Resources Defense Council was over whether the Los Angeles County Flood Control District (LACFCD) was responsible under the Clean Water Act (CWA) for the polluted water that flowed out of the concrete-lined portions of the rivers because LACFCD controlled the concrete channels, regardless of the fact that thousands of other dischargers discharged into the rivers upstream of the concrete channels.

So why was this case so simple?  Per the CWA, the “discharge of a pollutant” (which creates liability under the Act) means “any addition of any pollutant to navigable waters from any point source.”  In South Florida Water Management District v. Miccosukee Tribe the Supreme Court held that an “addition” of a pollutant only occurs if a pollutant is transferred from one “meaningfully distinct” water body into another.  In that case polluted water was removed from a canal, transported through a pump station, and deposited into a nearby reservoir.  The and Local Legal Center’s (SLLC) amicus brief, which NCSL signed onto, argued that the segments of the rivers above and below the channeled portions of the rivers in this case aren’t “meaningfully distinct,” so no addition of a pollutant has occurred.  The Supreme Court agreed that: “[i]t follows…from Miccosukee that no discharge of pollutants occurs when water, rather than being removed and then returned to a body of water, simply flows from one portion of the water body to another.”

The SLLC argued in its amicus brief that states regulate water quality in MS4s and federal regulation is redundant.  While the Court didn’t rely on this argument in its brief opinion, a win is a win.  The significance of this case is that the Court did not expand the definition of “discharge of pollutants,” a key term in the CWA.     

Supreme Court Takings Law: First came Nollan...then Dolan...and now Koontz

By Lisa Soronen

Let’s say a landowner wants a permit to develop his or her property.  State government could approve the permit on the condition that the landowner give state government some of his or her land.  But per two previous cases, Nollan and Dolan, there must be an “essential nexus” between a landowner dedicating the land and being denied the permit and “rough proportionality” between the dedication of land and the impact of the development.

Now let’s say state government wants cash instead of land or for the landowner to pay for mitigation related to his or her development.  Do Nollan and Dolan apply, and has a “taking” in violation of the Fifth Amendment occurred?  And what if the landowner says "no" to the requested cash payment or mitigation and state government issues no permit.  Has a “taking” occurred?

The State and Local Legal Center’s (SLLC) amicus brief in Koontz v. St. Johns River Water Management District, which NCSL signed onto, argues the answer to both questions should be "no."

The SLLC’s brief argues that Nollan and Dolan should not apply to permits conditioned on money because, arguably, Nollan and Dolan could apply to public taxation programs.  The SLLC’s brief argues also that Nollan and Dolan should not be applied to permit denials because doing so will discourage state and local government from engaging in permit negotiations.     

The Supreme Court will hear oral arguments in the case on Jan. 15 and will issue an opinion by June 30. 

Federal Agency Deference: Should the Fox be able to Guard the Henhouse?

By Lisa Soronen

Most Supreme Court cases cannot be neatly summarized by clever clichés.  But the fox guarding the henhouse is both a vivid and accurate description of City of Arlington & Cable, Telecommunications, and Technology Committee v. FCC.

 First, a little background: The Telecommunications Act of 1996 requires state and local governments to respond to requests to place, construct, or modify personal wireless service facilities within a “reasonable period of time.”  The Federal Communications Commission (FCC) interpreted a “reasonable period of time” as being 90 to 150 days.

The City of Arlington argued that the FCC lacked statutory authority to interpret this language. The FCC disagreed and claimed that its interpretation of its jurisdiction is subject to deferential review under Chevron v. NRDC. The Fifth Circuit, relying on past circuit court precedent, applied Chevron deference to the FCC’s interpretation of its own statutory authority under the Telecommunications Act and concluded, not surprisingly, that the FCC had jurisdiction to interpret a “reasonable period of time.”

So the issue the Supreme Court will decide in this case is whether courts should defer to a federal agency’s determination that it has authority to interpret a statute. 

Now, back to the fox and the henhouse.  If an agency (fox) wants to interpret a statute (enter the henhouse) of course it is going to say it has the authority to do so.  And if a court must defer to its conclusion that it has such authority well...hens beware! 

The State and Local Legal Center’s amicus curiae brief argues, among other things, that state and local governments are often regulated by federal agencies and often regulate the same subject matter as federal agencies. As a result, allowing federal agencies to determine the scope of their own jurisdiction, with only deferential review by courts, would allow federal agencies to encroach upon the authority of state and local governments, as illustrated by this case.  NCSL signed onto the SLLC’s brief. 

Oral argument will be heard in this case on January 16, 2013.  The Supreme Court will issue an opinion in this case by June 30, 2013.

Medicaid: On the Supreme Court’s Docket Again

By Lisa Soronen

Medicaid was the show-stopper in the Supreme Court’s last term. The Court unexpectedly held in the Patient Protection and Affordable Care Act (PPACA) case that requiring states to participate in the Medicaid expansion was unconstitutionally coercive. 

Medicaid apparently was still on the Justices’ minds three months later when the Court, on its first day back in session, decided to hear another Medicaid case, albeit a much lower profile case.   

Medicaid allows states to collect medical expenses from a Medicaid recipient who recovers from a tortfeasor (someone who has injured another). But how much can a state collect when a Medicaid recipient agrees to a lump sum settlement from tortfeasor, and it is unclear how much of the settlement is for medical expenses? 

A North Carolina statute purports to answer this question by allowing the state to recover the lesser of actual medical expenses or one-third of a Medicaid recipient’s total tort settlement.  In Delia v. E.M.A. the state paid $1.9 million on behalf of E.M.A., and her parents settled a medical malpractice claim for $2.8 million.  The settlement didn’t allocate between medical expenses and other damages so the state asked for one-third of the settlement, over E.M.A.’s parents’ objections.  The question the Supreme Court must answer in Delia v. E.M.A. is whether Medicaid preempts North Carolina’s statute.    

The State and Local Legal Center (SLLC) filed an amicus curiae brief with the Supreme Court, which NCSL signed onto.  The SLLC’s brief argues that Medicaid is a huge expense for states and that Medicaid grants states substantial discretion in how they pursue recovery from tortfeasors.  The brief points out North Carolina’s statute encourages parties to allocate settlements and avoids states having to participate in burdensome settlement discussions or post-settlement allocation hearings.  The brief also argues that allowing Medicaid recipients to keep two-thirds of their tort settlement is reasonable and fair.  

Oral argument will be heard in this case on January 8, 2013.  The Supreme Court will issue an opinion in this case by June 30, 2013.

The Courts Weigh in on Election Laws

By Wendy Underhill

The U.S. Constitution (Art. 1, Sec. 4) says that "The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof…" And yet it hardly seems that way these days. Sure, legislatures have been busy fine-tuning election laws this year; 2,357 bills have been introduced since January 1, 2012. But the courts have been just as busy reviewing election-related legislation this year—so much so that it begins to feel as though it is judges, rather than state legislators, that are making election decisions.

Indeed, state courts, federal courts and the U.S. Supreme Court have all been working overtime. Just this week, the Supreme Court said it would not get involved in a case involving early voting in Ohio, letting stand a lower court's ruling that early voting must be offered during the weekend before Election Day. Then there's the case from Arizona, dealing with whether voters must prove citizenship at the time of registration. And of course, litigation surrounding voter ID laws just keeps on coming.

NCSL's October issue of The Canvass looked at "Elections and the Courts: A Busy Year;" it's a quick read on many of the hot cases, and provides lots of resources so election geeks can keep up with courtside- action. One key point: legal challenges cause uncertainty for administrators and voters. Its corollary: changes in election law and procedures in the run-up to elections may invite uncertainty and challenge, and it is never good when the words "uncertainty" and "elections" are used in the same sentence.

What to do about that? "Look at the possibility of working with the courts to put a moratorium on election litigation 90 days or so before an election," suggests Doug Lewis, executive director of The Election Center.

Or, divert election cases to a "structurally nonpartisan three-member 'amicus court'—one Democrat, one Republican, and the third chosen by the first two—that would issue opinions in high-profile election cases in advance of the Supreme Court (or whatever court actually had the authority to adjudicate the particular case)." This idea comes from Ned Foley, from the Ohio State University Moritz College of Law.

These ideas will take time to season. And while they do, let's all hope that nothing happens in the November 6 presidential election that adds to the already-full plate for state or federal courts.

Does Colorado Have a Republican Form of Government?

by Karen Shanton

Tucked into Article IV, §4 of the U.S. Constitution is the following promise: "The United States shall guarantee to every State in the Union a Republican Form of Government." This obscure and tricky-to-interpret promise – known as the Guarantee Clause – could upend a two-decade-old constitutional amendment in Colorado.

In 1992, Colorado voters added the Taxpayer's Bill of Rights (TABOR) to their state constitution via the initiative process. This amendment, which was sought by small government advocates as a check on government expansion, effectively shifted tax-levying powers from the state legislature to the electorate. Under TABOR, tax increases are limited to the rate of inflation plus population growth; heftier bumps must be okayed by voters.

TABOR's opponents argue that this shift has hamstrung Colorado's government. Without the ability to raise revenue, they argue, legislators can't fulfill their obligations to constituents – including a state constitutionally-mandated duty to provide a "thorough and uniform system of free public schools throughout the state."

This has prompted a bipartisan group of elected officials, educators and private citizens to bring suit against the measure. In their brief for Kerr v. Hickenlooper (2011), the plaintiffs contend that TABOR caused a "slow, inexorable slide into fiscal dysfunction" in the state. By preventing the legislature from functioning effectively, they argue, TABOR violates the Guarantee Clause and a closely-related clause in the Colorado Enabling Act of 1875. (The Colorado Enabling Act admitted Colorado to the Union on the condition that it form a constitution that was "republican in form.")

Photo credit: The Colorado Statesman, 5/27/2011

Historically, Guarantee Clause-based challenges have not fared well in the courts. In Luther v. Borden (1849), the U.S. Supreme Court dismissed a Guarantee Clause-based claim as a 'political question,' to be settled by Congress rather than the courts. With a few early exceptions [see, for example, Minor v. Happersett (1875)], this 'political question doctrine' has been the standard ever since. Justices routinely invoke the doctrine to rule Guarantee Clause cases 'nonjudiciable,' or not decidable by the courts.

Two Supreme Court Wins for State and Local Government

by Lisa Soronen

June 4^th was a good day for state legislatures and the State and Local Legal Center (SLLC). The Supreme Court issued opinions in two cases in which the State and Local Legal Center had filed amicus briefs:  Armour v. Indianapolis and Reichle v. Howards.  NCSL signed onto the brief in Armour v. Indianapolis, which was cited in the ruling – a rare and exciting event.    

In Armour v. Indianapolis, the Court held 6-3 that Indianapolis didn't violate the Equal Protection Clause of the U.S. Constitution when it forgave the debt of those who paid for sewer upgrades in installments but not the debt of those who paid in lump sums. The Court concluded Indianapolis had a rational basis for this decision, which was made after the city changed its method of funding sewer upgrades – namely avoiding the administrative inconvenience of having to continue to collect monthly payments for a discontinued program that were as low as $25 a month for 30 years.  Justice Breyer cited the Legal Center's brief that described exactly what Indianapolis would have to do to keep collecting installment payments and what it would cost. 

Why is this case so great for state legislatures?  Lyle Denniston of SCOTUS blog says the opinion was "full of admonitions against courts' second-guessing of state and local tax policy."

In the unanimous decision in Reichle v. Howards, the Court granted qualified immunity to two Secret Service agents who allegedly arrested someone in retaliation for his political speech, when the agents had probable cause to arrest him for committing a federal crime. Howards told the vice president his "policies in Iraq are disgusting" and then touched him. When a Secret Service agent questioned Howards about assaulting or touching the vice president, he denied it and was arrested.  Making a materially false statement to a federal official violates a federal statute. Howards sued the agents claiming they violated his First Amendment rights by arresting him for his speech.  Government official are immune from lawsuits claiming they have violated someone's constitutional or statutory rights if the law violated wasn't "clearly established."

According to the Court, it was not "clearly established" at the time of the arrest that an arrest supported by probable cause could violate the First Amendment.  Justice Thomas, writing for the Court, noted that the Supreme Court has never held that a person has a First Amendment right to be free from a retaliatory arrest supported by probable cause. 

While this case is a win, it also is a disappointment. The Court accepted, but declined to decide, the underlying legal issue in this case:  whether probable cause bars First Amendment retaliatory arrest claims.  Why?  I think Mike Dorf of Dorf on Law had it correct when he said, "One strong possibility is that while the Court was able to reach agreement (all eight participating Justices, with Justice Kagan recused) on qualified immunity, there was no consensus on the merits."

To learn more about these and other big cases from this term, sign up for the SLLC's Supreme Court webinar on July 19. It will cover all cases from the Supreme Court's October 2011 term affecting state and local government.  Speakers include Paul Clement who argued Armour v. Indianapolis (and the Affordable Care Act and the Arizona immigration cases) and Patricia Millett who has argued more cases before the Supreme Court than any other woman.   

Lisa Soronen is executive director of the State and Local Legal Center.

Can Children Conceived After A Parent’s Death Collect Social Security? States May Decide

By Lisa Soronen

As summer approaches, U.S. Supreme Court decisions trickle out. One of the latest cases concerned the rights of children to inherit Social Security benefits after the death of a parent. The decision could spur statehouses across the country to respond.

In Astrue v. Capato, the court unanimously held that children conceived after their parent’s death may only receive Social Security survivor benefits if they qualify to inherit from their deceased parent under state law.

Karen Capato’s twins were born 18 months after her husband died of cancer with the help of in vitro fertilization using her husband’s frozen sperm.

Capato argued the Social Security Act’s initial definition of “child,” “child of an [insured] individual,” applies to her children. She said a later section of the Social Security Act entitled “determination of family status,” which allows biological children to receive benefits only if they qualify for inheritance from their deceased parent under state law, does not apply to “the biological child of a married couple” because such a child’s family status does not need to be determined.

The court rejected this argument, noting that Capato’s children might not be “the biological child[ren] of a married couple” because in Florida a marriage ends with a death of a spouse. The court also noted the aim of the Social Security Act is to provide benefits to those dependent on a wage earner’s support. If a child is eligible to inherit from a parent under state law, he or she is likely dependent on that parent.

The court pointed out that some states--California, Colorado, Iowa, Louisiana and North Dakota--grant inheritance rights to children conceived posthumously while a number of states-- New York, Georgia, Idaho, Minnesota, South Carolina, and South Dakota—along with Florida, do not.  Proposed state legislation responding to this case is possible.

Lisa Soronen is the executive director of the State & Local Legal Center.

State Hard Pressed to Address Drugged Driving

by Alex Fitzsimmons

Everyone knows the dangers of drunk driving and every state in the country sets blood alcohol level limits. But state lawmakers have recently turned their attention to another deadly behavior:  drugged driving.

Colorado became the latest state to debate drugged driving, as the House voted last week on whether to set a limit of 5 nanograms of THC (the psychoactive ingredient in marijuana) per millimeter of blood. The bill fell one vote short of advancing in the Senate, failing on a 17-17 tie.

More than 30 million people drove drunk and more than 10 million drove drugged in 2009, according to government data. While there is a nationwide standard of .08 g/ml blood alcohol concentration, states like Colorado are finding that regulating drugged driving is a much trickier endeavor.

Determining the point at which a driver is sufficiently impaired so as to pose a risk to society is no easy task not only for states, but also for the scientific community. States have taken a variety of approaches to address impairment levels. More than 30 bills related to drugged driving have been introduced in state legislatures this year, according to NCSL’s Drugged Driving LegisBrief. At NCSL’s 2011 Legislative Summit, state lawmakers explored the challenges of crafting drugged driving legislation.

Seventeen states have passed “per se” laws that make it illegal for drivers to have any prohibited drug in their systems while driving. In these states, the mere presence of drugs in the body is illegal. But not all of these blanket bans are created equal:  Minnesota, for example, exempts marijuana.

Other states address impairment levels with laws that set a blood content threshold. Ohio and Nevada established a threshold of 2 nanograms of illegal substances, while Pennsylvania’s administrative rule sets the level at 5 nanograms.

At the federal level, Congress is considering legislation to fund research on new driving technologies and training for police officers to identify drugged drivers.