Vol. 28, No. 4, Fall 1996

The Urban Lawyer,
Vol. 28, No. 4, Fall 1996

Publication Date: December 31, 1996

Robert H. Freilich, Tonna K. Tharp & Tracy B. Weiner, The Return to State Autonomy: The Eleventh Amendment and Other Key Decisions of the U.S. Supreme Court and Lower Courts Affecting State and Local Government 1995-96, 28 Urb. Law. 563 (Fall 1996).

This year-end review of decisions, statutes, and trends highlights developments affecting state and local governments. The written version of Professor Robert H. Freilich's presentation to the Section of State and Local Government Law during the ABA Annual Meeting in Orlando, the review touches on First, Fourth, Tenth, Eleventh, Fourteenth, and Fifteenth Amendment jurisprudence, congressional legislation, and comments on trends in the U.S. Supreme Court. It forms introduction to reports of recent developments in specific areas of state and local government law by the Section's substantive committees.

Recent Developments in Emerging Crisis Law

Joseph Z. Fleming, The Militia in the Courts: Was Walter Mitty a Freeman?, 28 Urb. Law. 631 (1996).

This article examines whether the militias and Freemen (paramilitary groups opposed to the government) are becoming real threats to society and undermining the legal system. Because they "camouflage themselves in various asserted rights" rights that are universally accepted and cherished by our country the cloak they conceal themselves in can be deceiving. However, these groups' activities and actual motives are often threatening, illusory, and baseless. Various authors are used to illustrate concepts analogous to the issues involved in militia and Freemen groups, including the "Walter Mitty" character conceived by James Thurber and "post-modern terrorism" popularized by Walter Laqueur, who noted that society could become more vulnerable to these paramilitary groups because of its "dependency on the electronic storage, retrieval, analysis, and transmission of information."

Recent Developments in Environmental Law

Richard G. Opper, Rodney F. Lorang, Ronda L. Sandquist, Jonathan I.J. Goldberg & Jo-Christy Texas Brown, Recent Developments of Environmental Law, 28 Urb. Law. 641 (Fall 1996).

The Environmental Committee Report highlights three areas of recent environmental law of interest to the municipal practitioner: (1) The Clean Air Act, (2) The Clean Water Act, and (3) International issues. Formerly, the Clean Air Act allowed states not to require "operating" permits for air pollution sources, and where permits were required, coverage was limited. As a result, the EPA had difficulty in enforcing the permits leaving much of the enforcement to the issuing agencies. However, with the 1990 Amendments, "major" sources of pollution in all states must obtain a permit according to standards that are clearer and more accurate many of which are enforceable by the EPA. Under the Clean Water Act, many courts are allowing citizens and various citizen groups to have standing to sue under some of its broad requirements. Recent international developments include bi-national cooperation on the U.S./Mexico border in environmental infrastructure issues dealing with such concerns as air pollution and the North American Free Trade Agreement. These isolated "experiments" or "laboratories" may pave the way for future large-scale cooperation.

Recent Developments in Government Liability Law

Eric G. Flinn, First Amendment Liability, 28 Urb. Law. 661 (Fall 1996).

This report highlights the changes and evolution of issues in employment, religion, language, and aliens issues determining government liability under the First Amendment. In one case concerning language, for example, the Ninth Circuit found an Arizona constitutional provision declaring English Arizona's official language to be unconstitutionally over broad.

Anita R. Brown-Graham, A New First Amendment Defense for Racially Discriminatory Actions by the Government?, 30 Urb. Law. 667 (Fall 1996).

Most arguments surrounding free speech and First Amendment issues pertain to governmental acts restricting speech; however, the First Amendment may also protect government speech. "Since the ratification of the First Amendment, [f]ree speech theory has focused on the government as censor; it has had little to say about the process by which the government adds its voice to the market place.'" Analysis of legal commentary and recent court decisions seems to indicate that government, including municipalities, would have as much right to "utter racist speech as do private citizens."

Phillip E. Friduss & Ellen Gendernalik, Update on Fourth Amendment Search Cases: The New and Confused Framework, 28 Urb. Law. 679 (Fall 1996).

Drug enforcement, technology and the "increasingly violent welfare state" are constantly testing Fourth Amendment coverage. This report covers U.S. Supreme Court and federal appellate cases on "hot topics" such as drug testing, mechanical imaging devices, and "searchee" status. Many courts have found thermal imaging devices to be constitutional based on reasons such as societal recognized privacy and that defendants did not act to prevent heat waste from escaping. Other courts disagree with this reasoning, noting that an individual's expectation of privacy should not depend on the " insulating capacity of the walls.'" In mandatory drug testing, students have a low expectation of privacy and athletes have an even lower expectation because communal undress is inherent in sports activity.

Recent Developments in Government Operations Law

Mary A. Marshall, Regulation of Signs and Outdoor Advertising, 28 Urb. Law. 701 (Fall 1996).

This article explores some recent decisions in which municipalities have regulated areas where federal law governs or constitutional issues are involved. The first area is the municipal regulation of cigarette and alcohol advertising. Such ordinances were claimed to have violated the Federal Cigarette Labeling and Advertising Act and some state statutes. First and Fourteenth Amendment violations were also asserted; however, the court found no preemption of federal or state law by the ordinances nor constitutional violations. Other issues discussed are: (1) Health and sanitation regulations a municipal ordinance made it a misdemeanor to label food "kosher" if it did not comply with orthodox Hebrew religious rules and dietary laws; (2) Adult entertainment regulations interiors of adult video arcades were required to be visible to employees in the adjacent public room with at least one employee situated in the public room; other cases and regulations include the prohibition of touching between nude performers and customers in adult cabarets; (3) Land-use regulations municipal regulation of seaplanes when the Federal Aviation Act might preempt such regulations and size of group homes; and (4) First Amendment issues whether ordinances banning "the sale of all goods, wares, merchandise, food or refreshments on the streets, sidewalks, parks, beaches, and streets" are constitutional.

Benjamin E. Griffith, Defense Strategies in Voting Rights Litigation After Shaw and Miller, 28 Urb. Law. 715 (Fall 1996).

After decisions in Shaw v. Reno and Miller v. Johnson, which curtailed race-based districting, there has been "a wave of change in defense strategies in Voting Rights Act litigation." More productive defense strategies are emerging in not only substantive defenses under section 2 of the Voting Rights Act, but in defenses regarding redistricting remedies based on proportional representation and other group representation. Some of these strategies "focus on the current impact on electoral participation and access rather than historical discrimination." Such strategies could allow state and local government defendants to serve the public interest and reduce section 2 litigation and divisiveness by implementing "narrowly tailored" electoral system changes. They will also help prevent "allocation of political power" based on race. These "proactive defense strategies can and do succeed if they focus on the positive effects of coalition-building in multi-racial democracy."

John H. Gibbon, The Telecommunications Act of 1996 and Its Impact on Municipal Regulation, 28 Urb. Law. 737 (Fall 1996).

This article explains the ramifications and significant impact the Telecommunications Act of 1996 will have on local government's control and regulation ofr the telecommunications industry. The Act is "more conceptual than detailed" and has very broad principles. These principles could reduce municipal power to regulate, although municipal authority in managing public rights of way will remain. Localities will still be afforded reasonable and fair compensation for telecommunication provider use. The article covers key provisions of the Act, such as preventing distribution of obscene content over communications media and lowering barriers for local telephone companies to operate long distance services within and outside their regions. The impact of the Act on local management is also analyzed. The areas of traditional cable service, coverage of Open Video Systems, Direct Broadcast Satellites, wireless services, and other telecommunications services in the municipal arena are also discussed.

Gordon P. Williams, Jr., James I. Harlan & George W. Freeman, Municipal Regulation of Telecommunications: The Telecommunications Act of 1996 and the Facets of the Paradigm, 28 Urb. Law. 745 (Fall 1996).

After the passage of the Telecommunications Act of 1996, cities should be able to regulate the cable television franchises of telecommunications carriers. Any overregulation or improper regulation will be prohibited by the Act and state law will guide the resolution of such conflicts. With the increase in telecommunication infrastructure, conflicts between cities and telecommunication carriers will probably increase under the Act while it both scrutinizes municipal regulation and limits recovery against any improper regulation. The disputes and litigation will be analogous to the city/telephone company disputes brought between 1885 and 1925. This article gives an overview of the Act, analyzes state-level legislation confronting escalating city/telecommunication carrier friction, and it addresses the typical approaches courts use in deciding such issues.

Recent Developments in Human Resource Law

Brian W. Bulgar & Catherine A. Cook, Public Sector Employment Law, 28 Urb. Law. 751 (Fall 1996).

Recent developments in employment law in the public sector are the focus of this report. It covers the following areas: (1) Affirmative action, (2) the American with Disabilities Act and the Rehabilitation Act of 1973, (3) the First Amendment, (4) 1983 and 1981 of Title VII, and (5) the Fair Labor Standards Act. The cases discussed in this article provide standards for state and local governments to model their employment policies and practices after. Because of the unique characteristics of public sector employment, especially since many of these cases are decided based on specific factual situations, courts should and must "remain sensitive to these issues and continue to balance the interest of the state and local governments as employers and their respective employees in an attempt to sustain fair and equal employment."

Recent Developments in Land Use, Planning and Zoning Law

Thomas E. Roberts, Karen Edginton Milner & Robert I. McMurry, Land-Use Litigation: Doctrinal Confusion Under the Fifth and Fourteenth Amendments, 28 Urb. Law. 765 (Fall 1996).

This report begins by examining problems caused by the failure to differentiate Fourteenth Amendment substantive due process claims from Fifth Amendment takings claims. It then turns to due process and looks at certain issues that have arisen with some frequency, namely the nature of protectible property interests and the appropriate test to apply to determine when violations of due process rights occur. With takings, questions raised by the recent Lucas v. South Carolina Coastal Council and Dolan v. City of Tigard give ample material. Two of the problems left in Lucas' wake, which the authors examine, include the issue of partial takings and the segmentation of property units. The article also looks at a narrow issue arising in Dolan-type cases, specifically the question of how the ripeness doctrine applies in impact fee and exaction challenges. Recent takings legislation, enacted in a few states to enhances private property rights, closes the discussion.

Daniel J. Curtin, Jr., Jonathan Davidson & Adam U. Lindgren, Nolan/Dolan: The Emerging Wing in Regulatory Takings Analysis, 28 Urb. Law. 789 (Fall 1996).

This report first gives an overview of the Nollan and Dolan decisions (Nolan v. California Coastal Comm'n, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994)). Then, it discusses whether Dolan "applies only to land dedications as well as impact fees and other conditions [and] whether legislatively adopted exactions should be excluded from a rough proportionality inquiry." Next several state court determinations on how close the fit between a city's funding and exactions are in the rough proportionality test is reviewed. Finally, recent state law impact fee cases are considered. The report's concluding observations note that attorneys of both private and governmental entities are provided some guidance from the emerging doctrines interpreting the Nolan/Dolan decisions.

Mary Massaron Ross, Larry J. Smith & Robert D. Pritt, The Zoning Process: Private Land Use Controls and Gated Communities, the Impact of Private Property Rights Legislation, and other Recent Developments in the Law, 28 Urb. Law. 801 (Fall 1996).

Private land-use controls used to be sufficient in protecting the environment preserving property value while assuring the reasonable use of surface waters. However, rapid increases in subdivision development have encouraged the trend "away from increased governmental control over land-use and governmental provision of services and toward an increased reliance on privately created controls and privately supplied services." This can lead to restrictions "far more extensive than any state statute or local ordinance." Often, they go beyond governmental regulations found to be a "taking . . . for which compensation must be paid" because "constitutional and statutory limitations do not apply to private agreements." Such trends raise serious concerns leading many modern communities to believe governmental intervention is necessary for many of their needs. This creates a "tension between private property rights and government regulation." As these issues are being raised, there has been a "shift away from a regulatory governmental involvement in land-use decision making" in some areas. In other areas, "there are movements limiting governmental powers resulting in legislation similar to takings legislation in Florida."

Edward J. Sullivan & Thomas G. Pelham, Comprehensive Planning and Growth Management, 28 Urb. Law. 819 (Fall 1996).

This report first looks at comprehensive planning issues that develop when ordinances must be set " in accordance with a (local) comprehensive plan,' but no separate comprehensive plan exists, the zoning designations are inconsistent with the plan, or when the existing plan is invalid due to some defect." The article reviews a number of methods states use to deal with these issues. For example, in Maine, "[a]n existing plan is not a prerequisite to the implementation of a shoreland zoning ordinance." In New Mexico, "[p]lans may exist in substance,' rather than as a final document." However, in South Dakota, a "[t]wenty-year-old ordinance was [held] invalid due to [the] absence of a valid plan." The report also looks at growth management by examining cases whose issues pertain to growth management law and systems. The "most significant decision involved the relationship between state growth management laws, the local referundum, and the validity of residential development control systems."

Richard J. Roddewig & Glenn C. Sechen, The Second Circuit Defines the Limits of Carbone, 28 Urb. Law. 847 (Fall 1996).

This report discusses two important Second Circuit Court of Appeals decisions since C & A Carbone, Inc., v. Town of Clarkstown, 114 S. Ct. 1677 (1994), that recognize, similarly to Carbone, that the market participation exception should be relied on "in the context of municipal contracting and franchising solid waste services." Further, "Carbone left the vitality and scope of the market participant existence in doubt." The Second Circuit had determined the bounds of Carbone in such a way to allow municipal governments to utilize their police powers in regulating the collection and disposal of solid wastes generated "by [their] citizens" and to "control [their] own destiny" regarding these matters.

Anita P. Miller, The War for the West: At Issue, 28 Urb. Law. 861 (Fall 1996).

Wise Use Movement proponents believe that states and their corresponding counties should own and regulate the national forests and counties should have the authority to manage them instead of the federal government. Further, they believe that there are no public grazing privileges, but rather "rights." However, recent district court decisions have decided against these interests although many challenges to the ordinances themselves frequently fail. The "stage should be set" for appellate courts to review the district courts determination that "there are no private rights in public lands." An addendum to this report examines a very recent decision and victory by the federal government in challenges against its ownership of public lands in U.S. v. Nye County, No. CV-S-95-232-LDG (RJJ) (D. Nev. filed Mar. 14, 1996) . Also, in an appellate case, Boundary Backpacker's v. Boundary County, No. 21287 (Idaho filed Mar. 18, 1996), the federal government again prevailed, and to date, it has "prevailed in challenges to every tenet of the Wise Use Movement." A "final round" of challenges will await at the U.S. Supreme Court.

Bradford J. White, Historic Preservation and Architectural Control Laws, 28 Urb. Law. 879 (Fall 1996).

This article outlines developments in historic preservation law over the past two years in the areas of the free exercise of religion, takings, and due process. Federal cases are examined, particularly those stemming from the National Historic Preservation Act and the Abandoned Shipwreck Act (ASA), which deals with salvor's rights. State case law is also examined. Cases range from historic preservation and due process violations to legislation enabling enforceability by the state and state court decisions in First Amendment violations. Finally, preservation and conservation easement issues are explored.

Recent Developments in Public Education Law

Edgar H. Bittle, Elizabeth A. Grob & Felia B. Helms, Recent Developments in Public Education Law, 28 Urb. Law. 895 (Fall 1996).

This report first looks at legal implications and issues for school districts. For example, the Telecommunications Reform Bill of 1996 may present new liabilities to school districts when providing students access to the Internet, if "indecent" material is "displayed" to students. Other issues discussed concern speech and expression in employee rights and responsibilities in school districts. The Massachusetts Supreme Court ruled that a teacher's termination for "engaging in a brief pedagogical discussion of vulgar words'" violated the teacher's free speech rights when the school district did not have a policy in place banning the articulation of vulgar words in the classroom. In forcing teachers to disclose a prior criminal record, a school district may expunge such information because "unlawful behavior is not protected by the right to privacy and the judicial expungement order does not privatized criminal activity." The second part of the report looks at postsecondary education. First Amendment rights are the first subject discussed. Some cases grappled with schools, such as medical schools, invoking liability for failing to follow their own procedures in expelling students for cheating or bringing guns on campus. Hopwood v. State of Texas, 78 F.3d 932 (5th Cir. 1996), is discussed where the court "barred the used of race as practiced in admissions at the University of Texas School of Law. The status and governance of postsecondary institutions are among host of issues explored. In one case examined, a university's agreement with a local school district to manage it was challenged by a teacher's union "a public-private partnership to run a failing system." The state court found the agreement constitutional because " nothing in the concept of a public agent precludes a private university from performing as an agent of the public.'"

Recent Developments in Public Finance Law

Edsell M. Eady, Jr., A Municipal Official's Safety Manual for Municipal Securities Disclosure, 28 Urb. Law. 943 (Fall 1996).

Because public officials are ordinary people, and most are volunteers, they are particularly susceptible to being punished by the U.S. Securities Exchange Commission (SEC). This article serves as a "practitioner's guide" in explaining SEC responsibility in municipal securities for local public officials. This becomes especially critical for educating public officials because the SEC expects to treat disclosure and enforcement of municipal bond issues the same as the private sector in implementing federal securities law anti-fraud provisions.

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