First, the Court addressed whether there was an implied right of action under the Supremacy Clause. The Supremacy Clause summarizes that the United States Constitution is the supreme law of the land. U.S. Const. art. VI, cl. 2. When there is a clash between federal and state law, federal law is given priority. Gibbons v. Ogden, 22 U.S. 1 (1824). Congress has broad discretion when it comes to implementing its enumerated powers. McCulloch v. Maryland, 17 U.S. 316 (1819). The Court reasoned that while the federal law does trump state law, there is agency enforcement in place for the Medicaid Act, so it is irrational for the Supremacy Clause to limit Congress’s power by imposing mandatory private enforcement of the Medicaid Act. Thus, the Supremacy Clause cannot grant the Provider an implied right to sue the state for reimbursement under the Medicaid Act. The Court then turned to the petitioner’s second argument concerning whether the statute had precluded private action for injunctive and equitable relief. Given the complexity of the Act, the Court reasoned it improper to approve enforcement of the Medicaid Act [through the court], especially since the Secretary will not ignore the complaints of the Providers as agency enforcement is an express provision of the Medicaid Act. The Providers cannot try to get around the provisions of the Act set forth by Congress by bringing forth a suit for equitable remedy. See Douglas v. Indep. Living Ctr. of S. Cal., 132 S.Ct. 1204 (2012). Courts of equity and law cannot disregard constitutional and statutory requirements. INS v. Pangilinan, 108 S.Ct. 2210 (1988). Next, the Court looked to the legislative intent of Congress. Because the Medicaid Act is complex, it believed that Congress specifically intended to have a requirement that gives states the opportunity to make payments to providers, while acting in an efficient, and economic manner that allows the states to monitor unnecessary expenses thus allowing for the safeguard of quality care for Medicaid patients. When Congress explicitly states one method of enforcing a substantive rule, it suggests a preclusion of other methods of enforcement. Alexander v. Sandoval, 121 S.Ct. 151 (2001). Thus, the Court believed the Act “display[s] a[n] intent to foreclose the availability of equitable relief,” quoting Verizon Md. Inc. v. Public Serv. Comm’n of Md., 122 S.Ct. 1753, 1761 (2002). The safeguards to the Act were there to protect agency enforcement and provide the sort of uniform enforcement that private enforcement may not provide. Accordingly, the Provider should seek relief through the Secretary and not through the courts. The State’s failure to comply with the Act’s requirement may be a breach of the Act, but the Act explicitly precludes private enforcement. The dissent argued that statutory provisions could not restrict one’s ability to get equitable authority from the federal courts. The dissent relied on previous rulings, including Porter v. Warner Holding Co., 66 S.Ct. 395 (1946), where the Court held that unless a statute explicitly stated that a court’s jurisdiction in equity is precluded by the act itself, the court has the jurisdiction necessary to deal with issues pertaining to equity in the case being brought forth. However, the majority believed that courts of equity cannot dis- regard constitutional and statutory requirements that are built into the Medicaid Act. (Nirisi Angulo)
Survivors Network of Those Abused by Priests v. Joyce, 779 F.3d 785 (8th Cir. 2015)
A state statute prohibiting the use of profane discourse, rude or indecent behavior or making noise within a house of worship violates the First Amendment because it attempts to regulate the content of speech, rather than the time, place, and manner of the speech. Survivors Network of Those Abused by Priests, along with two individuals and Call to Action, Inc. (“SNAP”) challenged the constitutionality of the statute. The appellee is Jennifer Joyce (“Joyce”), acting in her official capacity as Circuit Attorney for the City of St. Louis, Missouri, in support of the statute. SNAP advocates for victims and seeks to prevent future sexual abuse by clergy. To achieve this, SNAP often gathers outside churches to hold signs and pictures of abused victims, distribute flyers, and talk to parishioners. To reach their intended audiences of church leaders and workers, SNAP claims they must picket the places where their audiences work and worship. Under the House of Worship Protection Act (the “Act”), the crime of disrupting a house of worship is committed if a person intentionally and unreasonably disturbs any house of worship by using profane discourse, rude or indecent behavior, or making noise in the house of worship, or near the house of worship. MO. REV. STAT. § 574.035(3)(1) (2012). Joyce argued that the Act did not violate the First Amendment because it merely regulated the time, place, and manner of speech; hence it should only be subject to intermediate scrutiny. According to SNAP, the Act violates the First Amendment because it regulates the content of the speech by limiting SNAP’s intended audience, and runs afoul of the Fourteenth Amendment because it does not define what is “rude,” “profane,” or “indecent” discourse or behavior. The United States Court of Appeals for the Eighth Circuit stated that the constitutionality of a restriction on speech depends on the type of restriction placed. Phelps–Roper v. City of Manchester, Mo., 697 F.3d 678, 686 (8th Cir. 2012). If the restriction limits the content of the speech, then the restriction is subject to strict scrutiny. Id. The court further explained that if the restriction only limits the time, place, and manner of the speech, then the restriction is subject to intermediate scrutiny. Id. To reach its conclusion, the court employed the McCullen factors, used by the United States Supreme Court for determining whether a regulation of speech is content based. McCullen v. Coakley, 134 S. Ct. 2518, 2531 (2014). First, the court considered whether enforcement authorities have to examine the content of the messages to decide if a violation has occurred. Id. If enforcement authorities must make a judgment regarding the content of the messages, it is likely a content-based restriction. Id. Second, the court considered whether the restriction seeks to limit the speech’s impact by limiting its intended audience. Id. If a restriction intends to limit the audience, then it is likely a content-based restriction. Id. The court explained that if it is found that a law restricts the content of speech and is subject to strict scrutiny, the state must show that (1) it has a compelling state interest and (2) the law is narrowly tailored to that interest. R.A.V. v. City of St. Paul, 505 U.S. 377, 395 (1992). The Eighth Circuit determined that the Act required an enforcement officer to determine whether the content of a protest is profane, rude, or indecent. In short, if a particular speech was deemed profane, rude, or indecent by an enforcement officer, then the crime of disrupting a house of worship occurred. The court concluded that because the Act requires such a determination to be made, the restriction is content based. The court further supported its decision by explaining that even if that determination did not have to be made, enforcement of the Act would limit the intended audiences of the speech in question. Joyce argued that the Act was similar to the statute upheld in Phelps – Roper, 697 F.3d at 695. In Phelps, the court upheld a statute forbidding protests at funerals and burial services. Id. That law was deemed to merely regulate the time, place, and manner of speech because it banned all protests at funerals and burials, no matter the topic. Id. However, the Eighth Circuit disagreed with Joyce’s argument. The statute at issue here sought to ban certain types of speech — indecent, rude, and profane speech and acts — rather than merely regulate the time, place, and manner of the speech. Instead, the court looked to Boos v. Barry, where the Supreme Court of the United Stated ruled that a District of Columbia’s statute regulated the content of speech, rather than the time, place, or manner, because it sought to limit listeners and to protect the dignity of intended audiences by shielding those audiences from critical speech. 458 U.S. 312, 318, 321 (1988). Similarly, the court recognized that the Act sought to limit listeners of profane discourse or rude or indecent behavior, by shielding parishioners and church leaders from critical speech. As a result, the court found the Act is a content-based regulation and subjected to strict scrutiny. Finally, the court explained that because (1) it was not narrowly tailored to achieve the state’s asserted interest in protecting the free exercise of religion, (2) it drew content based distinctions that were not necessary, and (3) content neutral alternatives existed, such as noise restrictions and nuisance laws, the House of Worship Protection Act violated the First Amendment. (Joseph Schmidt)
Bryant v. Texas Dep’t of Aging & Disability Servs., 781 F.3d 764 (5th Cir. 2015)
A Family and Medical Leave Act (“FMLA”) claim against an employer is barred by state sovereign immunity and qualified immunity because the employee failed to show that a reassignment interfered with, restrained, or denied her exercise or attempt to exercise any right under the FMLA. Tammy Bryant (“Bryant”), the appellee, filed suit against her employer and her direct supervisor for interfering with her FMLA leave. The appellants, the Texas Department of Aging and Disability Services (“Department”) and Kim Littleton (“supervisor”), challenged the district court’s denial of sovereign and qualified immunity under the Eleventh Amendment. Bryant was hired by the Department in May 2008 to serve as an Assistant Residence Director at the Brenham State Supported Living Center. On October 5, 2010, Bryant took six weeks off work to care for her husband, which was protected under the FMLA’s family-care provision. During this time, the Department called Bryant several times at her home. On December 31, after Bryant had returned to work, she was issued a formal warning and reassigned at a different location. Bryant had also missed multiple days of work between December and February due to high blood pressure and a mini-stroke. The Department issued Bryant formal warnings and a counseling letter based on her attendance at work. In February, Bryant’s doctor suggested she take 8 weeks off work. During this period of self-help leave, an inspector from the Texas Health and Human Service Commission’s Office of the Inspector General (“OIG investigator”) went to Bryant’s house to investigate her leave because she altered her leave paperwork before handing it in to the Department. The Department also issued Bryant a “Notice of Disciplinary Action” because of her actions with the paperwork. After returning to work for a few weeks, Bryant was terminated on August 8. Bryant claimed that the various disciplinary actions taken by the Department were in retaliation for her absences. The FMLA allows eligible employees to take up to twelve weeks of leave in any one-year period to take care of a family member’s or one’s own serious health condition. 29 U.S.C. § 2612(a)(1)(C), (D). Employers subject to the FMLA must comply with two separate “prohibited acts” provisions found in Section 2615(a). Section 2615(a)(1) provides: “It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter.” Id. Section 2615(a)(2) provides: “It shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter.” Id. The United States Court of Appeals for the Fifth Circuit explained that a FMLA violation exists (1) where an employer interfered with, restrained or denied the exercise, or attempted exercise, of FMLA rights, and that violation prejudiced the employee or (2) where an employer discharged or discriminated, in any manner, against any individual for opposing any practice made unlawful under the FMLA. 29 U.S.C. § 2615(a)(1)-(2). The court determined that the Department and the supervisor were shielded from Bryant’s FMLA claims because of the sovereign immunity protection grounded in the Eleventh Amendment. Bryant argued that the Department violated a clearly established right that was protected by the FMLA and that the Department’s conduct was unreasonable at the time of the incident. Bryant claimed that the phone calls during her family- provision leave, the job reassignment, and the OIG investigator at her home during her self-care leave interfered with her FMLA rights. In determining whether Bryant’s claims would be precluded, the court considered (1) if there was a “violation of a clearly established right” and (2) whether the conduct was “objectively reasonable” at the time of the incident. Hernandez v. Tex. Dep’t of Protective & Regulatory Servs., 380 F.3d 872, 879 (5th Cir. 2004). After analyzing Bryant’s claims under these factors, the Fifth Circuit ruled that Bryant’s reassignment was not interference because it occurred six weeks after she returned from leave. Additionally, the court found that Bryant failed to show that the reassignment “interfered with, restrained, or denied” her exercise of her FMLA rights. Ultimately, the court determined that the Department was entitled to qualified immunity concerning Bryant’s interference claim. To further support its conclusion, the Fifth Circuit stated that the actions of the OIG investigator did not constitute interference because he acted of his own volition. The court also explained that the phone calls were not considered interference with Bryant’s FMLA leave because it was a limited number of calls so there was no clear violation of a “clearly established right” and no prejudice was shown. Finally, the court ruled that the super- visor was entitled to qualified immunity because Bryant failed to show that she violated clearly established law. The Fifth Circuit dismissed most of Bryant’s FMLA claims. However the court did re- mand the question of whether Bryant’s claim for monetary damages against her supervisor is barred by state sovereign immunity. (Erica Fumagalli)
Jucha v. City of N. Chicago, 63 F. Supp. 3d 820 (N.D. Ill. 2014)
The act of tattooing is protected under the First Amendment and Ill. Const. art I, § 4, and a city’s denial of a permit for a tattoo parlor without a hearing or an opportunity to be heard is a violation of procedural due process. Jeffrey Jucha (“Tattoo Artist”), doing business as 4 Anchors Tattoo, brought a claim against the City of North Chicago (the “City”), Illinois, for violating his and his customers’ constitutional rights under the First Amendment, the Fourteenth Amendment Due Process Clause, and the Equal Protection Clause of the United States Constitution, as well as parallel claims under the Illinois Constitution. The Tattoo Artist applied for a special use permit from the City to open a tattoo parlor. The City denied the permit without any hearing, evidence, or testimony, and the Tattoo Artist learned his application was denied on the basis that it was “not the kind of business” wanted in the City. The court first had to decide whether the Tattoo Artist had standing and could bring a First Amendment claim on behalf of his business customers. To determine whether the Tattoo Artist had standing, the Tattoo Artist had to show “(1) an injury in fact, (2) a causal connection between the injury and the conduct complained of, and (3) a likelihood that the injury will be redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Generally, litigants do not have standing on behalf of third parties. Perry v. Globe Auto Recycling, Inc. 227 F.3d 950, 953 (7th Cir. 2000). Under these requirements, the City did not believe that that Tattoo Artist had standing to bring a claim on behalf of his customers. The court disagreed with the City, citing precedent from other jurisdictions that allowed standing on behalf of third parties under the First Amendment. The court relied on Schultz v. City of Cumberland, 228 F.3d 831, 848 (7th Cir. 2000), finding that when bringing a cause of action for a violation of the First Amendment, a party has standing over third parties “whose protected expression is prohibited or substantially burdened by the regulation.” Additionally, the court followed Craig v. Boren, 429 U.S. 190, 195 (1976) which held that customers could be represented by their businesses on constitutional rights. The court then addressed the protection of tattoos under the First Amendment. The City argued that tattoos were not protected under the First Amendment, and that the First Amendment only protected “artistic expression.” The City further con- tended that tattoos were similar to accessories, haircuts, makeup, and jewelry, which were only “expressive conduct” and not “artistic ex- pression,” and therefore they were not protected under the First Amendment. The court rejected these arguments, reasoning that tattoos are permanent, while accessories, haircuts, makeup, and jewelry are not. Further, the court found that the First Amendment protected “various media of expression, includ[ing] symbols and other non- verbal expression.” Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 569 (1995). The court also relied on Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1055 (9th Cir. 2010), which indicated tattoos incorporate combinations of words, symbols, and drawings, all of which are protected by the First Amendment. Next, the court had to determine whether the First Amendment protected the act of tattooing. The City relied on Hold Fast Tattoo, LLC v. City of N. Chicago, 580 F. Supp. 2d 656 (N.D. Ill. 2008), where the court did not find the act of tattooing to be “actual expressive conduct” that is protected under the First Amendment. The City wanted to apply the Spence test, as used in Hold Fast. In order to be covered under the First Amendment, the Spence test directed the actor to establish “an intent to convey a particularized message and a great likelihood that the message would be understood by those who viewed it.” Spence v. Washington, 418 U.S. 405 (1974). The court here strayed away from the Spence test because this test applies when one is not merely creating an artistic expression, but when one is participating in a symbolic activity that produces an expression or message, such as burning a flag. The court analogized tattoos and the act of tattooing to paintings and the act of painting, both of which are protected under the First Amendment. The court further found it to be irrational to treat tattoos and the act of tattooing differently, and as such, both should be covered under the First Amendment. Lastly, the Tattoo Artist argued that he was deprived of his liberty without adequate process when the City arbitrarily tabled his special use application without providing a meaningful hearing. While the court did find that the City’s denial without a hearing constituted a violation of the Tattoo Artist’s procedural Due Process rights, it found that he could not maintain a claim for a violation of his substantive Due Process rights. In so holding, the court relied on Albright v. Oliver, 510 U.S. 266, 273 (1994), where the Supreme Court indicated that when a liberty interest of the Bill of Rights is violated, the claim should be based on the violation of that individual right and not based upon the substantive Due Process claim. The analysis regarding the City’s violations of the federal Constitution applied equally to §§ 2 and 4 of Article I of the Illinois Constitution. (Amy Jackson)
Sansotta v. Town of Nags Head, 97 F. Supp. 3d 713 (E.D.N.C. 2014)
While a town ordinance declaring a storm-damaged or erosion- damaged structure a public nuisance (so that the town can order the structure’s removal) is not a per se regulatory taking in violation of the Fifth Amendment of the United States Constitution because (1) the regulation does not authorize permanent physical occupation, and (2) the regulation does not require a property owner to relinquish all economic benefit to the property, a genuine issue of material fact may exist with respect to a temporary regulatory taking using the Penn Central balancing test. Plaintiffs (“Owners”) owned six properties located on beachfront property (“Cottages”) in Nags Head, North Carolina (“City”). A major storm struck the City, eroding the beach in front of the properties and damaging the Cottages. The City’s ordinance allowed it to declare a damaged property a nuisance if the structure would likely collapse or cause injury to person or property. NAGS HEAD, N.C. CODE § 16-31(6). The ordinance also allowed the City to declare property a nuisance if the structure was located in a public trust area or on public land. Id. The City declared the Cottages a public nuisance and ordered Owners to remove the structures from the property because the properties eroded such that the Cottages were located in a public trust area and the Cottages were likely to cause injury to people or property. The Owners argued that the City took their property without just compensation in violation of the Fifth Amendment by (1) blocking the road accessing the Cottages; (2) stating that the Cottages were located in a public trust area; and (3) refusing to allow Owners to obtain permits, thereby depriving Owners of rental income. The court stated that a per se regulatory taking exists when the regulation either authorizes a permanent physical occupation of the property or requires the property owner to relinquish all economic benefit to the property. The court rejected Owners’ first argument because it determined that in cases of necessity, the government is not liable for the destruction of real property. See Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1029 (1992). Therefore, because the safety of the contractors and anyone required to rescue the contractors was at stake, it was necessary to block the road to the Cottages, thereby denying access to the Cottages. With respect to Owners’ second argument, the court determined that the City did not require the Owners to suffer a physical occupation of their property because the City did not authorize the public to utilize Owners’ properties. The court then used the three-factor test established in Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978) to determine whether the Owners’ deprivation was sufficient to be deemed a taking. When utilizing the Penn Central factors test, the court determines (1) the regulation’s economic impact on the property owner, (2) the extent to which the property owner’s investment-back expectations are interfered with, and (3) the character of the government’s action. Id. at 124. The court determined that Owners were economically impacted because of lost rental income and because there was a total loss of property value. The court further found that the Owners’ investment-backed expectations were interfered with because the Owners expected to be able to repair the Cottages as they had been able to do in the past. Finally, the court determined that the third factor was met because Owners received no benefit from the City’s regulation. In sum, the court determined that there were genuine issues of material fact as to the three Penn Central factors; therefore, a jury would be required to determine whether the City committed a temporary regulatory taking. (Lisa Rippey)
Hutchens v. Chicago Bd. of Educ., 781 F.3d 366 (7th Cir. 2015)
Summary judgment is not appropriate in a racial discrimination case when the jury could favor the employee’s evidence of better credentials and seniority and determine that race was a decisive factor in the employee’s termination. Appellant, Joyce Hutchens (“Employee”), appealed from a summary judgment entered in the United States District Court for the Northern District of Illinois in favor of co-appellees, the Chicago Board of Education and supervisor Amanda Rivera (combined, the “School”). Pursuant to a large layoff, Employee, who is black, was terminated while her white co-worker with the same job title retained her job. The fired Employee argued that her co-worker kept her job only because their supervisor preferred whites over blacks, regardless of who had better credentials. Several witnesses testified, providing two very different pictures of the terminated Employee. The fired Employee had a positive recommendation letter and supportive emails from co-workers about her work, while the School did not offer any documentary evidence to corroborate its oral testimony. Nonetheless, the district court determined that the honesty of the School’s witnesses could not be questioned. The district court also suggested that because the person who fired the Employee was black, his decision to fire her could not be discriminatory in nature. The Seventh Circuit stated that summary judgment should only be granted when there are no disputes of material fact. If there are several different motives in regards to the evidence, the jury is able to choose among them in a discrimination case. Holcomb v. Iona College, 521 F.3d 130, 141-44 (2d Cir. 2008). When the terminated employee offers evidence that rebuts the employer’s claim of “unsatisfactory conduct” there is a litigable issue. Vaughn v. Woodforest Bank, 665 F.3d 632, 638-40 (5th Cir. 2011). Further, “shifting explanations” in an employment case may give reason to believe that the motive for termination was prejudicial. Hitchcock v. Angel Corps, Inc., 718 F.3d 733, 738 (7th Cir. 2013). In Hutchens, the appellate court disagreed with the district court’s determination that the honesty of the Schools’ witnesses could not be questioned. In fact, because the witnesses disliked the Employee, there was reason to doubt their honesty. The appellate court also disagreed with the district court’s statement that the common race of the person who ultimately terminated Employee and the terminated Employee precluded the existence of race discrimination, pointing out that the Employee and ultimate supervisor had never met, nor did he have any reason to know Employee’s race. Further, that supervisor was making decisions based on what others told him about Employee. Next, the Court disagreed with the district court’s findings that working at a “prison school” makes an employee less qualified than working in a regular public school, as there was no evidence presented to support this. Moreover, there was no documentation to corroborate evidence for any of the hearsay testimony given by the School. Finally, the School offered several reasons for terminating Employee and the “shifting explanations” could be seen by a jury as a cover up of prejudicial intent. Thus, a jury could favor the testimony in favor of the Employee regarding her higher credentials, seniority, and superior work. Likewise, it is possible for a jury to decide that the termination was not prejudicial and was unrelated to race. Still, the Employee had a right to have a jury to determine these issues of fact. Summary judgment should not have been granted in this case because there are issues of material fact. The Seventh Circuit reversed the grant of summary judgment and remanded the counts relating to allegations of racial discrimination. (Taylor Spooner)
Prof ’l Massage Training Ctr. Inc. v. Accreditation Alliance of Career Sch. and Coll. (4th Cir. 2015).
An accrediting agency’s denial of reaccreditation to a private school of higher education does not violate the school’s due process rights because the denial (1) was not arbitrary or capricious but rather “conform[ed] its actions to fundamental principles of fairness” (2) was supported by substantial evidence and (3) did not stem from bias that justified a less deferential inquiry into the agency’s decision-making. Appellants, Accreditation Alliance of Career Schools and Colleges (“ACCSC”) challenged the district court’s ruling to fully reinstate accreditation for appellee, Professional Massage Training Center Inc. (“PMTC”). PMTC is a massage therapy training school in Missouri that was first accredited by ACCSC in 2000 and renewed in 2005. ACCSC is a non-profit, non-stock corporation that accredits private schools of higher education offering career-oriented programs. ACCSC sets standards for schools to qualify them for accreditation. Schools must be accredited to receive federal student aid funding. In 2010, PMTC applied for renewal of its accreditation. However, PMTC was denied after it failed to meet ACCSC’s standards. PMTC argued that ACCSC violated PMTC’s due process rights because ACCSC’s accreditation standards (1) were not clearly defined, (2) did not provide clear standards for how schools could meet the standards, (3) denied the accreditation in a manner that was arbitrary and unreasonable, and finally (4) ACCSC’s bias had “impermissibly influenced” the agency’s denial of accreditation. The United States Court of Appeals for the Fourth Circuit adopted the “most familiar standard of review” in which the court analyzes whether the decision of an accrediting agency is (1) arbitrary and unreasonable or an abuse of discretion and (2) is based on substantial evidence.” Thomas M. Cooley Law Sch. v. Am. Bar Ass’n, 459 F. 3d 705, 712 (6th Cir. 2006). The court stated that it could not conduct a de novo review or substitute its judgment for the professional judgment of the educators involved in the accreditation process. Wilfred Acad. Of Hair & Beauty Culture v. S. Ass’n of Colls & Schs., 957 F. 2d 210, 214 (5th Cir. 1992). The Fourth Circuit made clear that under the Wilfred standard, it cannot replicate the required knowledge of the specialized subjects taught at levels of higher education. Thus, the accreditation process operates as an instrument of quality control on schools. In applying the Cooley standard, the court determined that ACCSC’s decision was not arbitrary or capricious because PMTC was afforded multiple opportunities and ample time to remedy the deficiencies clearly laid out by ACCSC. Though PMTC thought ACCSC’s standards were not specific enough, the Fourth Circuit found that it would be nearly impossible to make more specific requirements for the number of schools they are accrediting, and therefore, the ACCSC standards must retain some “element of flexibility” to be effective. Next, the court employed the United States Supreme Court’s standard for substantial evidence in finding that ACCSC’s denial of accreditation did not constitute a due process violation. Like the standard used in Almy, the court stated substantial evidence means, “anything more than a mere scintilla” when “a reasonable mind might accept the evidence or other accreditation requirements.” Almy v. Sebelius, 679 F. 3d 297, 301 (4th Cir. 2012). The Fourth Circuit concluded that PMTC’s failure to comply with ACCSC’s standards, constant turnover, unqualified management, and deficiencies in its learning resource center all provided the substantial evidence needed to justify its decision to deny PMTC’s accreditation. Finally, the court acknowledged that it must give deference to accreditation agencies in the same way they would an administrative agency. (Christine Roto)
Grill v. City of Denver Cnty. Bd. of Equalization, 344 P.3d 870 (Colo. 2015)
Possessory interests in concessionary space in airports are taxable under property tax statutes because, according to the Vail factors, these interests generate revenue that is independent from the government, exclude all others from using the space, and are held for a sufficient duration. The appellants, owners of eleven bars and restaurants in the Denver National Airport (“Concessionaries”), appealed a decision from the Colorado Court of Appeals, which affirmed the trial court’s holding that the Concessionaries were taxable under Article X of the Colorado Constitution. All real and personal property is taxable, unless exempt. Colo. Const. art. X, § 3(1)(a), 4, 6, 9, 10. However, not every property interest is fee ownership. City & Cnty. of Denver v. Bd. of Assessment Appeals, 848 P.2d 355, 358 (Colo. 1993). The “unit assessment” rule governs property interests that are not fee ownerships. City & Cnty. of Denver v. Bd. of Assessment Ap- peals, 848 P.2d 355, 358 (Colo. 1993). It states that when assessing taxes, property is assessed as a whole, including all interests less than fee ownership, and is paid by the fee owner. Id. However, if the fee owner is the government, which is not subject to taxation, only the private ownership interest is taxed. Id. To determine private ownership the court examines a three factor test: (1) whether the possessory interest could exclude others from using the respective space in the same manner; (2) whether revenue could be generated independently from the government; and (3) whether the possessory interest was for a duration long enough to realize a personal benefit. Bd. of Cty. Comm’rs. v. Vail Assoc., Inc., 19 P.3d 1263 (2001). The Concessionaries conceded that the possessory interest was for a sufficient duration. However, the Concessionaries contended that their possessory interest was neither exclusive nor independent. As for exclusivity, a possession can still be exclusive if there is concurrent use. Id. The court distinguished this case from that of Barnhardt v. Hemphill, 878 P.2d 107, 113 (Colo. App. 1994), which held that a time-share contract was not exclusive because time-sharers could not reserve the unit for any particular time. In contrast, while the city of Denver can rent out spaces to other concessions and create concurrent use, it cannot rent the specific location occupied by the Concessionaries. Therefore, the court found the interest to be exclusive. Turning to whether the revenue-generating capability of the Concessionaries was independent of the city, the court examined five factors: (1) whether the government pays for the interest holder to use the specific land; (2) whether the government regulates the prices and profits of the interest holder; (3) whether the interest holder pays for the sup- plies and improvements needed for operation; (4) whether the interest holder pays for the repairs to the property; and (5) whether the interest holder is the one to supervise the operations. Mesa Verde Co. v. Bd. of Cty. Comm’rs, 495 P.2d 229 (Colo. 1972). First, the Concessionaires’ revenue was generated from the public, not from government. Second, while the city does control the Concessionaries’ profits, it does so only to protect travelers from being price gauged. Third, the Concessionaries paid for the supplies and improvements of the space, such as gas meter installation, furniture, and equipment. Fourth, the lease agreement required the Concessionaries to pay for all expenses involved in maintenance and repairs. Finally, the court looked to Mesa Verde, where the possessory interest was found to be taxable even though the contract required government approval of certain acts of the concessionaire, to determine that the city’s power over the menu and operations was not dispositive of the city’s supervisory control. Ultimately, the city was merely fulfilling its responsibilities in keeping public property safe. Therefore, the court held the possessory interest to be independent. Thus, Concessionaries’ interest was found to satisfy the Vail test, rendering it taxable under the Colorado Constitution. (Emily Pedersen)
Cannabis Action Coal. v. City of Kent, 351 P.3d 151 (Wash. 2014)
A city ordinance prohibiting “collective gardening” of medical marijuana, although permitted by state law, is a valid exercise of the city’s zoning authority and a state’s legislation does not preempt the ordinance because the ordinance regulates land use activity. The Cannabis Action Coalition, consisting of four Washington Residents (“Residents”), was enjoined by the district court from violating Kent City Code §§ 15.02.074, 15.08.280 (“Ordinance”) passed by the City of Kent (“City”). The Residents appealed to the Washington Court of Appeals, which affirmed the trial court and found that the Ordinance was a valid exercise of a city’s zoning power granted by the Medical Use of Cannabis Act, Wash. Rev. Code § 69.51A (“Act”), and held that the state law did not preempt the Ordinance. An ordinance is valid under Wash. Const. art XI. § 11 “unless: (1) the Ordinance conflicts with some general law; (2) the Ordinance is not a reasonable exercise of the [local government’s] police power; or (3) the subject matter of the Ordinance is not local.” Weden v. San Juan County, 958 P.2d 273, 280 (Wash. 1998). The Residents only contended that the Act was a general law in conflict with the Ordinance, which would mean the Act preempted the Ordinance. A state statute will preempt an ordinance in two circumstances: “(1) it will preempt the Ordinance on the same subject if the statute occupies the field, leaving no room for concurrent jurisdiction or (2) if a conflict exists such that the statute and ordinance cannot be harmonized.” Lawson v. City of Pasco, 230 P.3d 1038, 1040 (Wash. 2010). As to the first prong, the Act preempts the Ordinance and invalidates the Ordinance “if there is express legislative intent to preempt the field or if such intent is implied” Id. The Act has no express preemption clause, and the court concluded that because the Act expressly discusses local regulation or medical marijuana, the Act does not impliedly preempt the field of medical marijuana. As to the second prong, the Act preempts the Ordinance if a conflict exists such that the Act and the Ordinance cannot be harmonized. A state law conflicts with an ordinance “when an ordinance forbids what a state law permits” Id. at 1042. Under the Act, qualifying patients may participate in collective gardens for the purpose of “producing, processing, transporting and delivering marijuana for medical use” subject to six requirements. Wash. Rev. Code § 69.51A.085. However, cities and towns may adopt and enforce zoning requirements, business licensing, health and safety requirements, and business taxes pertaining to the “production, processing, or dispensing of cannabis or cannabis products within their jurisdiction.” Wash. Rev. Code § 69.51A.140(1). Whether the Act conflicts with the Ordinance rests on the reach of the City’s authority to regulate medical marijuana activities granted by the Act. The City argued that language of the statute expressly grants this power because the Ordinance is a regulation on “the production, processing, or dispensing” of medical marijuana. The Residents argue that the Act is irrelevant to collective gardens because it applies only to “commercial producers, processors, or dispensaries.” So, the Residents believed that the Act irreconcilably conflicts with the Ordinance because the Act grants the right to collective garden, while the Ordinance prohibits that right. The court concluded that a city’s zoning power is not limited to commercial, licensed producers only. The court also found that the Act’s text and statutory context prove that it provides local authorities the power to enact zoning requirements in regards to the land use activity of participating in a collective garden. Because the language of the Act draws no distinction between commercial and non-commercial operations, the court gave a broad meaning to the language to include all production, processing, and dispensing. Furthermore, the court clarified that, under the Act, a collective garden exists where multiple people pool their resources for “producing and processing, cannabis for medical use.” Consequently, because the Act enables local governments to zone land with regard to “production” and “processing” of medical marijuana, the statutory context also supports that the Act is not restricted solely to commercial producers. Lastly the court determined whether the Ordinance was consistent with state law. Under the Act an ordinance must concern a land use, and because a collective garden is clearly land use activity, the City of Kent properly exercised its authority, making the Ordinance consistent with state law. (Salvatore Cali)
Johnson v. City of Seattle, 335 P.3d 1027 (Wash. 2014)
A city ordinance scheme preventing a land owner the opportunity to present evidence of his legal nonconforming use as a defense to a citation violates the Due Process Clause because the (1) landowner was denied a meaningful opportunity to be heard, (2) procedures used placed the landowner at risk of erroneous deprivation and (3) owner’s property interest was clear. The appellant, Tyko Johnson (“Johnson”), challenged the ordinance. Johnson owns a single family home in Seattle. Since moving into his home in 1959, he has kept multiple trailers, cars, and “car type projects” on his property. The appellee is the City of Seattle (“City”), in support of the ordinance. During the years from 2010 to 2011, the City issued Johnson three separate citations for violating the ordinance. The ordinance prohibits the parking of more than three vehicles on a single family lot. SEATTLE, WASH., MUN. CODE (“SMC”) § 23.44.016 (2001). Johnson argued the citations were improper because he qualified for an exemption under the ordnance. Next, Johnson tried to defend against the citations with evidence of his legal nonconforming use. However, the hearing examiner refused to consider his defense because the ordinance prevented the examiner from doing so. SMC § 23.42.102(C). Additionally, the City claimed Johnson failed to establish his legal nonconforming use defense prior to receiving the citations. The Washington Court of Appeals for Division One stated that a legal nonconforming use is one that does not conform to a zoning law, but lawfully exists because it lawfully existed at the time the law went into effect and has continued to exist without legal abandonment since that time. Rhod- A-Zalea & 35th, Inc. v. Snohomish County, 959 P.2d 1024 (Wash. 1998). The court explained that, according to the ordinance, a nonconforming use is established if either (1) a permit is obtained or (2) the Director of the Department reviews and approves an application to establish the nonconforming use or development for the record. SMC § 23.44.016(B), (C). The Court of Appeals found that Johnson was cited for violating the parking ordinance scheme; he was not cited for failing to have a permit. Therefore, because Johnson was never in violation of the city ordinance, the City’s actions, in citing Johnson, were improper. The court determined that the City’s procedure for establishing a resident’s nonconforming use merely recognizes that a nonconforming use exists, it does not create the nonconforming use. Thus, once the nonconforming use was found to exist, it was considered to have existed throughout the entire period Johnson had more than three cars on his single family lot. The court state that procedural due process allows citizens both notice and an opportunity to be heard. To support its conclusion, the court employed the Mathews factors used by the United States Supreme Court to determine whether existing procedures are adequate to protect the plaintiff ’s interest at stake. Mathews v. Eldridge, 424 U.S. 319, 333 (1976). First, the court must ask whether the private interest at stake will be affected by the official action. Id. Second, the court must determine the landowner’s risk of erroneous deprivation due to the procedures used. Id. Last, the court must consider the government’s interest. Id. In support of his position, Johnson relied on Post v. City of Tacoma, where the Supreme Court of Washington had held that preventing a party the opportunity to present his or her defense is a clear violation of due process. 167 Wash.2d 300, 312 (2009). The court found the Post analysis applicable to the parking ordinance scheme because Johnson was unable to assert a legitimate defense and there was an apparent risk of deprivation in the procedures used by the City. The court found that Johnson was prevented from appealing subsequent penalties because the examiner refused to consider his nonconforming use defense nor was he provided any procedural safeguards. Effectively, Johnson was restricted from contesting the potential errors in the City’s assessment of the issued citations. The court concluded that the City’s parking ordinance scheme violated Johnson’s right to due process because the procedures used to enforce the ordinance were at risk of erroneous deprivation. In contrast, the City argued that Post should be distinguished because Johnson did not have a protected property interest as Johnson was required to pay for a permit, not a civil penalty. However, the court stated that Johnson did not challenge the filing fee; he challenged the monetary penalties issued to him. Next, the City looked to Scott v. City of Seattle, for its proposition that the court could not enforce due process rights affecting a property interest until the plaintiff ’s property interest is established by the court. However, the court quickly disposed of the City’s Scott-based argument. The court explained that Johnson’s property interest was clear, as it was established by the court. Finally, in addressing Johnson’s 42 U.S.C § 1983 claim, the Court of Appeals ruled that land use disputes are an appropriate subject of § 1983 actions and because the City violated Johnson’s right to procedural due process, Johnson demonstrated a valid claim for damages under § 1983. (Zach Skinner)
Tweedy v. Matanuska-Susitna Borough Bd. of Adjustment and Appeals, 332 P.3d 12 (Alaska 2014)
A town ordinance creating a shoreline-setback requirement does not violate a property owner’s due process rights where it is reasonably related to a legitimate government purpose. Clifton Tweedy (“Tweedy”), owner of an Alaska lakefront home, challenged the ordinance. The Matanuska-Susitna Borough Board of Adjustment & Appeals (the “Board”) supported the ordinance. The Board adopted an ordinance in 1986, which reduced the distance any structure must be in relation to the water from 75 feet to 45 feet. In 1987, the 75-foot requirement was rein- stated, but now included an exception for structures completed before January 1, 1987. Tweedy’s house on the leased property violated the shoreline-setback requirement because it was within 75 feet of the water. However, Tweedy’s home was exempted from the ordinance because it was built prior to January 1, 1987. In 1988, Tweedy improved the property by constructing a stairwell addition on the exterior of the house. Tweedy then applied to purchase the property and its improvements from the Board in 2010. However, the Board informed Tweedy that the stairwell addition was not compliant with the ordinance, which provided that “a nonconforming structure may not be enlarged or altered in any way unless the alteration or enlargement is otherwise specifically allowed by code,” and that “a nonconforming structure may not be enlarged or altered vertically or horizontally, in a way which would increase the height, width, depth, area, or volume of the structure except as specifically allowed by current code for similar new structures in that location.” Matanuska-Susitna Borough, Alaska, Ordinance 17.80.060(A)(1)-(2), (1981) (“shoreline-setback ordinance”). Further, the stairwell was not eligible for a shoreline-setback exemption because it was not constructed before January 1, 1987. Effectively, the ordinance prevented Tweedy from completing the application process until he removed the stairwell addition. The Supreme Court of Alaska analyzed (1) whether the shoreline-setback ordinance applied to Tweedy’s stairwell addition, (2) whether the ordinance violated Tweedy’s due process rights by not allowing for legal, nonconforming uses, and (3) whether enforcement of the ordinance constituted a taking. First, the court determined that the shoreline-setback ordinance applied to the structure that Tweedy built. Tweedy contended that his property, which was previously divided, was not covered under the code definition. The court found that the ordinance defined subdivisions as property that could be divided into two or more lots. However, the court concluded that the plain language of the ordinance, and the common meaning of subdivision, allows a reasonable person to conclude that the ordinance applies to both prospective and current subdivisions. Tweedy further argued that because the 75-foot requirement was not effective at the time of construction, the board should not be allowed to retroactively apply the 75-foot requirement. The court stated that even if the 75-foot requirement was not effective, the 45-foot requirement was and the structure violates both, by being within 18-feet from the water. Second, the court held that the ordinance did not violate Tweedy’s substantive due process rights because the setback requirement promoted legitimate government interests, including specifically the maintenance of fisheries, water quality, public access to water, open space, and the avoidance of congestion. Finally, the court held that the ordinance was not a taking. The court stated that a takings violation exists when one is deprived of a property interest without just compensation. Alaska Const. Art. 1, §18. The court found that Tweedy took possession of the land when the ordinance was already in place, which eliminated any property interest Tweedy possessed in the land situated within 75 feet of the shoreline. Therefore, absent a property interest, the court ruled Tweedy could not support a constitutional takings claim. (Lauren Dollar)
Get Back Up, Inc. v. City of Detroit, 2015 U.S. App. LEXIS 4049 (6th Cir. 2015)
A city ordinance requiring residential substance abuse treatment facilities (“RSAFs”) to obtain a conditional use permit to operate in a business district does not violate the Americans with Disabilities Act, the Rehabilitation Act, or the Fair Housing Act because (1) residential substance abuse treatment facilities are treated the same as many other residential uses and (2) hospitals and nursing homes, which are treated differently than RSAFs, are not materially similar to residential substance abuse facilities. Get Back Up, Inc. (“GBU”) challenged the district court’s finding that the zoning ordinance did not discriminate against the disabled, and was neutral in its treatment of disabled and non-disabled residents. The appellee is the City of Detroit (“City”), in support of the ordinance. GBU, a residential substance abuse treatment facility located in downtown Detroit, Michigan, operates a 160-bed all-male residential facility. GBU provides education, job training, advising, and treatment for substance abuse. GBU purchased, from Detroit Public Schools, an unused school building to house its operation. The zoning ordinance classifies the use of property in each zone into one of three categories: (1) “by right,” (2) prohibited altogether, or (3) permitted if certain conditions are satisfied. Businesses falling under the third category, conditional use, must obtain permission from the City before beginning operation. The ordinance mandates that because of their unique characteristics, conditional use facilities cannot be properly classified in any particular district without considering the impact of those uses upon neighboring uses. Detroit, Mich., Zoning Ordinance § 61-9-231. Such facilities, like GBU, are permitted to operate in areas zoned as B4 business di tricts, if they obtain a conditional use permit. Applications for conditional use permits are reviewed and approved based on fifteen stated criteria. One of the main provisions challenged by GBU was that the “establishment, maintenance, location, and operation of the proposed Conditional Use will not be detrimental to or endanger the social, physical, environmental or economic well-being of surrounding neighborhoods, or aggravate any preexisting physical, social or economic deterioration of surrounding neighborhoods.” Id. Another critical provision at issue, and challenged by GBU, prohibited the conditional use from being inconsistent with the goals and objectives of the City of Detroit Master plan. Id. While acknowledging the fact that RSAFs treat recovering addicts and alcoholics, GBU argued their facility is similar to nursing homes and hospitals. GBU’s property, according to the ordinance, is located in the general business zone, B4, which allows by right uses, which are grouped by (a) residential use; (b) public, civic, and institutional use; (c) retail, service, and commercial use; manufacturing and industrial use; and (d) “other” uses which are not included in the previously listed categories. The United States Court of Appeals for the Sixth Circuit stated that in order to show a constitutional violation exists, GBU must prove the ordinance discriminates against the dis- abled. The court determined that the zoning ordinance does not discriminate because it does not allow any materially similar use to operate by right in a B4 zoning district. To support its conclusion, the court explained how nursing homes and hospitals were different from RSAFs, and how other residential entities falling under the conditional use category were treated the same. The court found nursing homes differ from RSAFs in their impact on traditional zoning and their need for a conditional use application. Residents of nursing homes are often physically disabled and rarely leave. The court noted that nursing homes are unique in the fact that they are a relatively sedate, an unburdensome use, and have little impact on zoning concerns like noise and traffic. The court determined that given their use, there are not materially similar uses that may operate by right in B4 zoning district, thus the ordinance is not facially discriminatory. The court differentiated hospitals, which are a non-residential use, be- cause of their contribution to noise, traffic, parking, and utility usage. Hospitals usually have a significant impact on their surrounding areas and the health of the community, and therefore are a good fit for commercial districts like B4, which justifies allowing hospitals to operate by right in such districts. (Hillary Bourquin)
Cleveland MHC, LLC v. City of Richland, 2015 Miss. LEXIS 230 (Miss. 2015)
A city zoning ordinance prohibiting a mobile-home park operator from replacing individual mobile-homes after removal from the property violates the operator’s constitutional right to enjoy his property because re-filling the lots is a continuation of an established use, not an expansion of a non-conforming use. Cleveland Mobile Home Community LLC (“MHC”) challenged the ordinance. Appellee is the City of Richland (“City”), in support of the ordinance. The ordinance provides that nonconforming lots, uses, or structures are allowed to continue until they are removed but the survival of the nonconformity is not encouraged. Further, nonconformities shall not be enlarged upon, expanded, or extended, nor be used as grounds for adding other structures or uses prohibited elsewhere in the same district. RICHLAND, MISS., CODE § 405 (1975). Since the trailer park began operating in 1950, it was designated as “I-1, Light Industrial Zoning.” However, on July 5, 2011, the City informed MHC that it would begin enforcing the ordinance. Effectively, MHC was allowed to continue its nonconforming use, but when an existing mobile home was removed, it could not be replaced. MHC argued that replacing a mobile home with a new one was a lawful continuation of the property’s nonconforming use and not an enlargement or expansion of that use. The Supreme Court of Mississippi ruled that the ordinance’s nonconforming use governs the use of the mobile home park as a whole, not individual mobile homes. The court analysis focused on whether the City’s interpretation of the nonconforming use ordinance was arbitrary, capricious, and illegal. The City relied on the court’s previous decision in Palazzola, where it was held that a property owner could not rebuild or replace one nonconforming structure with another. Palazzola v. City of Gulfport, 211 Miss. 737, 52 So. 2d 611 (Miss. 1951). The court, however, found Palazzolo inapplicable because MHC is not a single nonconforming structure. The court explained that here the nonconforming use related to the owner of the land and the entirety of its use. The nonconformity at issue here was the use of the property as a whole, as a mobile home park. This determination reinforced the court’s finding that the City’s interpretation of the ordinance was arbitrary and capricious because to interpret the ordinance in such a way after years of not doing so makes the interpretation seem to be without reason and implies a disregard for the surrounding facts and settled controlling principles. The court held that the City’s interpretation of the ordinance — applying it to individual mobile home replacement after thirty years of non-enforcement — was both arbitrary and capricious, violating the mobile home park operator’s constitutional right to enjoy his property. (Bobby Taylor)
Kitsap Cnty. v. Kitsap Rifle and Revolver Club, 337 P.3d 328 (Wash. Ct. App. 2014)
A county ordinance restricting a shooting range’s activities is upheld where the nonconforming use is expanded rather than merely intensified. Challenging the ordinance is the appellant, Kitsap Rifle and Revolver Club (the “Club”). The Club was founded in 1926, when it leased a 72-acre plot of land. Until 1993, the use of the property as a shooting range was considered a lawfully established nonconforming use. However, in 1993, the Club expanded (1) its hours from 7:00 a.m. to 10:00 p.m., seven days a week, (2) the type of weapons used, including fully automatic weapons and exploding targets and cannons, and (3) its commercial activities, including private for-profit companies using the Club for a variety of firearms courses. The appellee is Kitsap County, in support of the ordinance. The County argued that the expanded activities constituted an impermissible expansion of the Club’s nonconforming use. The Washington Court of Appeals for the Second Division stated that nonconforming uses are allowed to continue because it would be unfair, and perhaps a violation of due process, to require an immediate cessation of such use. Rhod-A-Zalea & 35th, Inc. v. Snohomish County, 136 Wash.2d 1, 7 (1998). However, nonconforming uses are subject to subsequently enacted regulations, unless the regulation would immediately terminate the non- conforming use. Id. at 9, 12. The court employed the McGuire standard, which held that nonconforming uses may be intensified, but not expanded. City of University Place v. McGuire, 144 Wash.2d 640, 649, 30 P.3d 453 (2001). The Washington Court of Appeals addressed in turn each of the Club’s challenged activities: (1) the expanded hours, (2) the increased noise levels, and (3) the commercial use. To support its holding, the court used the Keller test, which deter- mines whether a nonconforming use is an “intensification” or an “expansion.” Keller v. City of Bellingham, 600 P.2d 1276 (1979). The court must determine whether the nature and character of the Club’s nonconforming use is “different in kind” and whether the activities effect a “fundamental change” in use. Id. First, the court determined that shooting was historically allowed only during daylight hours and a change to expanded hours (7:00 a.m. to 10:00 p.m., seven days a week) is a mere intensification of the nonconforming use because the increased hours do not effect a fundamental change in the use, nor do they involve a use that is “different in kind.” Second, the court found that prior to 2002, the Club was never used for profit firearm training, but from 2002 to 2010, three for-profit companies regularly provided firearms courses at the Club. This change did represent an impermissible expansion of the nonconforming use because it represented a “fundamental change” in use and was completely different in kind. Finally, the court found that regular use of automatic and semi-automatic firearms, cannons, and exploding targets exposed nearby residents to “sounds of war.” This change in noise level created a fundamental change in use, such that it constituted an expansion. Although the Club’s expanded hours was merely found to be an intensification, the change in weapons and the change in commercial use both constituted expansions, ultimately making the Club’s nonconforming use unlawful. (Mollie Harmon)