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NLC stays active in court cases with city impact.

The National League of Cities tracks federal and state legal cases which have the potential for outcomes that may affect municipalities in fulfilling its role as a representative of the interests of municipalities and as a liaison between the federal and local governments. NLC looks at the issues being decided in these cases and determines which side is taking a position most favorable to the nation's cities.

Often NLC decides to get involved in these cases as a "friend of the court" to represent the interests of the nation's cities as a whole and try to persuade the courts to rule in a way most favorable to these interests. The most frequent way in which NLC represents municipal interests is through the filling of an amicus or "friend of the court "brief as a party who has a relevant interest in the outcome of a particular case.

The following is a list and brief summary of upcoming court cases in which NLC has filed amicus briefs.

Civil Rights

Two of the cases in the upcoming session of the Supreme Court deal with possible civil rights infringments upon individuals by municipalities.

Albright v. Oliver: The question in this case is whether an allegation that might be a claim of malicious prosecution under state tort law is sufficient enough to comprise a claim for violation of due process under the U.S. Constitution, and as a violation of the Civil Rights Act.

The U.S. Court of Appeals, Seventh Circuit, held that the plaintiff had failed to state a federal constitutional claim and that his action under Section 1983 of the Civil Rights Act against a city detective and the city of Macomb, Ill., must therefore be dismissed.

NLC has filed a brief which urges the Supreme Court to affirm the Seventh Circuit's ruling because a decision in the plaintiff's favor would expose cities and police officers to greater liability.

Waters v. Churchill: In an other case involving section 1983 of the Civil Rights Act, Churchill, a nurse in a public hospital, is suing her supervisor and the hospital over her dismissal. Churchill claims the hospital violated her 1st Amendment right to free speech when she was fired over statements she made criticizing hospital policies.

Churchill believes her statements were protected by the Constitution because she was voicing a public concern over the quality of care patients were receiving as a result of a new nursing program.

The hospital claims it should not be held to have violated Churchill's 1st Amendment rights because they were not aware she had made constitutionally protected statements. The hospital also says that the content of these protected statements was not the motivating facor in her firing.

A decision in favor of Churchill would expand cities' liability for 1983 claims and would make dismissal of public employees for insubordination much more difficult. Therefore, NLC has filed a brief with the Supreme Court supporting the hospital.

Municipal Waste

Two other Supreme Court cases could potentially have great impacts upon how municipalities municipal waste.

Environmental Defense Fund v. City of Chicago: This case deals with the issue of whether the hazardous waste regulations that Congress extended to resource recovery facilities cover ash resulting from the burning of municipal solid waste (MSW), or is such ash exempt under Section 3001(i) of the Resource Conservation and Recovery ACT (RCRA).

The Seventh Circuit U.S. Court of Appeals has concluded Of MSW ash which possesses characteristics of hazardous waste must in fact be treated as hazardous waste. This eventhough the waste that was burned to create the ash may have been considered to be nonhazardous.

NLC has filed a brief arguing that this decision is inconsistent with the language of Section 3001(i), and that the consequences of this decision will defeat the very purpose for which Congress adopted the exemption: the encouragement of resource recovery.

An adverse decision would discourage cities from burning waste to produce energy if they were required to pay for the expensive dazardous waste disposal process instead of treating it as a non-hazardous waste.

C&A Carbone v. Town of Clarkstown: An ordinance created to control the flow of solid waste into the town of Clarkstown, New York is at the heart of this case. Clarkstown's flow control ordinance requires that all non-recyclable solid waste brought into the town, whether it was generated within the town or outside of town, must be taken to the town's transfer station for processing.

C&A brings and receives waste materials to its facility, sorts the materials into recyclables and nonrecyclables, and then ships the non-recyclables to disposal facilities outside the state. C&A claims that this ordinance violates the Commerce Clause of the Constitution because it interferes with interstake trade.

The New York Supreme Court held that the ordinance does not discriminate against interstate commerce because it applies even handedly to all solid waste processed within the town, regardless of its origin, and the difference in fees charged by the city station and C&A could only have and "incidental" effect on interstate commerce.

Oregon Dept. of Revenue v. ACF Industries: This case will decide whether a state's exemption of certain classes of nonrailroad property from ad valorem property taxes constitutes discriminatory taxation of railroad property in violation of The Railroad Revitalization and Regulatory Reform Act of 1976.

The purpose of this act was to "restore the financial stability of the railway system," and it prohibits states and local governments from imposing taxes which discriminate against rail carriers.

If the Court finds that the Oregon property tax and exemptions are discriminatory, it could then determine the only proper remedy is for there to be a complete exemption of all property, no matter who owns it, from any ad valorem property taxes.

Such an action would greatly reduce state tax revenues which may be allocated for municipal projects. NLC has therefore filed a brief in support of the Department of Revenue.

Florence County School District Four v. Carter: This case deals with whether a federal district court can, pursuant to the remedial provision of the Individuals with Disabilities Education ACT (IDEA), order a local school district to reimburse parents for a unilateral parental placement of learning -disabled child in a school that does not meet state education standards.

The court of appeals held that reimbursement is permissible in these circumstances. NLC's brief argues that the court of appeals erred because its holding is irreconcilable with the purposes of IDEA.

Northwest Airlines v. Kent County, Michigan: Northwest along with most of the other major airlines, is suing Kent County which operates the Kent County Airport. The airline argues that the user fee system at the airport unfairly burdens commercial airlines with the cost of maintaining the airport runways and facilities.

Airlines have to pay 100 per cent of their share of the airport costs while non-commercial aircraft only have to pay 20 per cent of their share, and concessions (restaurants, parking, and rental cars) pay a flat 10 per cent of their profits. Kent County uses any excess revenues from concessions payments to pay for airport expansion and development projects.

Northwest wants these excess revenue to be used to offset their cost of maintaining the airport. This would deprive Kent County of control over airport development and put it into the hands of the airlines.

Like Kent County, many municipal airports use excess revenues from concessions to pay for airport development, so a decision in the airlines' favor could have serious effect on many other municipal airports. NLC has therefore filed a brief with the Supreme Court supporting Kent County.

City of Chicago v. Billish: Chicago's affirmative action program for city firefighters is being challenged in this case. The U.S. Court of Appeals, 7th Circuit, in a 5-4 decision rejected the necessity of Chicago's affirmative action hiring and promotion program and called into question the authority and ability of local governments to enact affirmative action programs designed to offset prior discrimination.

The 7th Circuit held that statistical evidence of racial inequities does not by itself constitute evidence of unconstitutional discrimination.. The court also ruled that since the firefighters union was not a party to the consent decree Chicago entered into requiring it to promote more minorities to make each rank more racially representative, the decree was not relevating Chicago's reason for instituting this affirmative action program.

An adverse decision in this case would call into question the authority of any state or local government to engage in affirmative action. NLC will file a brief to the Supreme Court supporting Chicago's position and the ability of local governments to engage in affirmative action.

U.S. Circuit Court Briefs

Morgan City v. South Louisiana Electric Cooperative Assoc. (SLECA): This case deals with a municipality's power of eminent domain over private property within its borders. Morgan City annexed a small area adjacent to its borders in 1986, and in 1990, filed a petition to acquire SLECA's power distribution equipment and property located in the annexed area.

SLECA is a customer and member of a power cooperative which has received loans from the Rural Electrification Agency (REA) under the authority of the Rural Electrification Act. Section 7 of this act specifies that those entities who receive loans from the REA must first gain REA approval before they may property.

Under section 7, the REA has claimed that it has the authority to decide whether or not Morgan City should be allowed to condemn SLECA's property and has stated it disapproves of Morgan City's actions. A U.S. District Court found in favor of the RFA. NLC has filed a brief supporting Morgan City and arguing that the REA has overstepped its authority and is interfering with a municipality's exercise of its sovereign powers.

Greenpeace v. Waste Technologies Industries. This case involves two suits filed against an East Liverpool, Ohio, incinerator. Environmentalists filed suit seeking a preliminary injunction to prohibit the project from conducting an EPA-certified test burn. The facility has met all the state and EPA licensing requirements. If the injunction is granted, it would set a precedent for all municipal incinerators.

NLC filed an amicus brief with the Sixth Circuit urging the court to recognize that cities must be able to rely on licenses and certifications already granted by a federal agency, and that the federal courts should be unwilling to substitute their judgment for that of a federal agency on technical matters within the scope of the agency's expertise.

State Court Brief

United States v. Minnesota Public Utilities Commission: This case is very similar to the Morgan City case because it involves the question of whether a municipality can condemn the service rights or property of a Rural Electric Administration (REA) borrower without the REA's approval. The City of Rochester, Minnesota, annexed the Willow Creek Sanitary Sewer District and initiated condemnation proceedings to acquire the right to provide electric service to the area. The REA objected, asserting the power to preempt state law in an area that has traditionally been considered within the historic police powers of a state.

NLC filed an amicus brief on behalf of Rochester arguing there is a strong presumption against federal preemption and that federal law does not grant the REA authority to approve a municipality's condemnation of a customer service area belonging to an REA borrower.
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Title Annotation:National League of Cities
Author:Provost, Thomas
Publication:Nation's Cities Weekly
Date:Aug 30, 1993
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