Members

Advisory Commission on Intergovernmental Relations

July 1995

Private Citizens

Mary Ellen Joyce, Arlington, Virginia

Richard P. Nathan, Albany, New York

William F. Winter, Chairman, Jackson, Mississippi

Members of the U.S. Senate

Byron L. Dorgan, North Dakota

Bob Graham, Florida

Dirk Kempthorne, Idaho

Members of the U.S. I-Id& of Representatives

James P. Moran, Virginia

Donald M. Payne, New Jersey

Vacancy

Offkers of the Executive Branch, U.S. Government

Carol M. Browner, Administrator, Environmental Protection Agency

Marcia L. Hale, Assistant to the President and Director of Intergovernmental Affairs

Richard W. Riley, Secretary of Education

Governors

Arne H. Carlson, Minnesota

Howard Dean, Vermont

Michael 0. Leavitt, Utah

Robert J. Miller, Nevada

Mayors

Victor H. Ashe, Knoxville, Tennessee

Robert M. Isaac, Colorado Springs, Colorado

Edward G. Rendell, Philadelphia, Pennsylvania

Bruce Todd, Austin, Texas

Members of State Legislatures

Paul Bud Burke, President, Kansas Senate

Art Hamilton, Minority Leader, Arizona House of Representatives

Samuel B. Nunez, Jr., President, Louisiana Senate

Elected County Officials

Randall Franke, Marion County, Oregon, Commissioner

Gloria Molina, Los Angeles County, California, Board of Supervisors

John H. Stroger Jr., Cook County, Illinois, Commission
An Information Report

FEDERAL COURT RULINGS

INVOLVING

STATE, LOCAL,AND TRIBAL GOVERNMENTS

. .’

CALENDARYEAR 1994

A REPORT PREPARED UNDER SECTION 304

UNFUNDED MANDATES REFORM ACT OF 1995

Advisory Commission on Intergovernmental Relations July 1995

Washington, DC 20575 M-196
:

U.S. Advisory Commission on Intergovernmental Relations

800 K Street, NW, Suite 450 South Building

Washington, DC 20575

Phone: (202) 653-5540

Fax: (202) 653-5429

ii
ADVISORY COMMISSION

ON INTERGOVERNMENTAL RELATIONS

July 1995

Dear Mr. President and Members of Congress:

The Advisory Commission on Intergovernmental Relations is pleased to submit the

attached report, prepared as required by Section 304 of the Unfinded ibukztes Reform Act of

1995 (P.L. 104-4). The report describes Federal court cases to which a.State, local, or tribal

government was a party in calendar year 1994, and in which a State, local, or tribal government

was required to undertake responsibilities or activities, beyond those such government would

otherwise have undertaken, to comply with Federal statutes and regulations.

This report is required to be submitted annually, no later than March 15, but for 1994

court rulings, the report is required to be submitted no later than July 2 1,1995.

Respectfully,

William E. Davis III

Executive Director

800 K Street, NW, Suite 450, South Building, Washington, DC 20575

Telephone:(202)653-5540 Fax:(202)653-5429
iV Advisory Commission on Intergovernmental Relations
Acknowledgments

Robert Brauneis, Associate Professor at the

George Washington University National Law Center, directed this study on judicial mandates for the

Advisory Commission on Intergovernmental Relations (ACIR) and is the principal author of the

report. This ACIR report is required under Section

3b4 of the Unfunded Mandates Reform Act of

199.5.

The Commission and Professor Brauneis

wish to express their appreciation for the hard

work, diligence, and patience of the following

researchers, who together read more than 25,000

federal court opinions to prepare this report: Jennifer Bacon, Sampak Garg, David Kaufman, Erin

Leveton, Melissa Levine, Alfred Rosa, and Hillary

Tennant. We also would like to thank Lee Hofhnan

and Michael Volin.

At ACIR, Philip M. Dearborn, Director of

Government Finance Research, is directing the

mandates studies. Joan Casey edited the report, and

Stephanie Richardson was responsible for typesetting.

William E. Davis III

Executive Director

Advisory Commission on Intergovcmmcntd Relations v
V i Advisory Commission on Mergowmm~td Rdatiom
Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . .l

l-First-Tier Mandates ................ .3

2-Second-Tier Mandates .............

15

3-The Section 304 Database .......... .37

ARecommendations for Future

Reports ....................... ..3 9

Appendices ........................ .4 1

Appendix 1: Litigation Frequency

Table . . . . . . . . . . . . . . . . . .42

Appendix 2: Section 304 Database

Data Entry Form . . . . . . . . .47

Advisory Commission on Intergovernmental Relations Vii
Viii Advisory Commission on Intergovanmet~ti Relations
Introduction

The Advisory Commission on Intergovernmental

Relations is required under Section 304 of the

Unfunded Mandates Reform Act of 1995 (P.L. 104-

4,109 Stat. 48) to produce annually a report

describing any Federal court case to which

a State, local, or tribal government was a

party in the preceding calendar year that

required such State, local, or tribal govemment to undertake responsibilities or activities, beyond those such government would

otherwise have undertaken, to comply with

Federal statutes or regulations.

This is the first Section 304 report, covering

calendar year 1994. For the report, researchers read

more than 25,000 federal court opinions and created a special computer database (“Section 304 Database”) into which they entered information about

more than 3,500 opinions on issues concerning the

effect of more than 100 federal laws on state, local,

or tribal governments.

This report presents a sample of the most

important information in the database, focusing on

two groups of federal court rulings at the core of

Section 304. The “first-tier federal mandates”

encompass rulings that directly order state, local, or

tribal governments to undertake particular responsibilities or activities. The “second-tier federal

mandates” encompass rulings that order state,

local, or tribal governments to refrain from certain

activities, or that declare state, local, or tribal laws

invalid due to a conflict with federal law.

The report also contains a Litigation Frequency Table, which lists federal statutes covered by

one or more opinions in the Section 304 Database,

followed by the number of opinions that were written on each statute. This table is intended to provide a rough measure of the litigation generated by

each federal statute represented in the database, and

it responds specifically to the one piece of legislative history that is available for Section 304. In a

brief discussion on the House floor about a predecessor to Section 304, Representative Schiff made

the following comment:

I think that to say that the Advisory Commission should give its priority [to] studying those issues which are in litigation

makes a great deal of sense. I have always

Advisory Commission on Intqpvemmmtal Relations 1
felt. . . that there is a great waste of taxpayers’ money when government agencies or

levels of government go to court against

one another and the taxpayers ‘me essentially paying for both sides of a lawsuit.

Now we all understand that [it] is necessary that a sovereign State has the right to

make certain challenges to the Federal

Government, and within the laws of those

States, municipalities may be able to challenge the State.

But it seems to me to the extent we can

head this off or if [such cases] arise to the

extent we can address them rapidly, that

saves a great deal of money, of time, and of

effort of government agencies that are litigating against each other. (Remarks of Rep.

Steven H. Schiff, 141 Congressional

Record H912, January 31,1995)

METHODOLOGY

There is no single, central source containing

information about the rulings of federal courts. The

United States Supreme Court, the 94 United States

District Courts, and the 13 United States Courts of

Appeals maintain 108 independent systems for

docketing cases and rulings. No other single source

reproduces all of the information that is included in

the federal court docket systems. When a federal

court issues a ruling, it may or may not issue an

opinion describing the background of the case and

the reasons for the ruling. If the court issues an

opinion, it may or may not release that opinion to a

publisher or an on-line database service. Even

opinions that are released may not be designated

“for publication.” Information from a single, readily available source is guaranteed only for rulings

accompanied by opinions designated for publication.

Although it would be difficult and expensive

to compile exhaustive information about every federal court ruling relevant to the Section 304 report,

those available in published and on-line sources

should provide an excellent sample. First, such rulings should include all or almost all of the most

important ones. Judges usually write opinions to

accompany rulings that they believe are legally significant, and they usually decide to publish the

most important opinions. Second, there is a very

large number of opinions available. For example,

for calendar year 1994, there are more than 45,000

opinions in WESTLAW, more than 25,000 of

which contain significant text and more than

16,000 of which have been designated for publication.

For these reasons, this first Section 304 report

is based on federal court opinions that have been

published or released to an on-line database. There

is no easy, mechanical method of isolating the relevant opinions. At the time this report was in preparation, there was no exhaustive list of federal

statutes and regulations under which a Section 304

issue could arise, and it is probably not possible to

compile such a list because a federal court may

always decide to find a mandate where a researcher

thought none existed. There is no finite list of the

state, local, and tribal governments and govemmental officials that could be parties to Section 304

cases. Finally, there is no particular term or phrase,

such as “federal mandate,” that will appear in every

case involving a Section 304 issue.

Thus, research assistants-law students at

George Washington University-were employed to

scan all 16,000+ opinions designated for publication, all 12,000 of the unpublished District Court

cases, and a sample of the unpublished Courts of

Appeals cases. The research assistants entered

information about those opinions that fit the broadest “database” interpretation of Section 304 into the

Section 304 Database, which is described in detail

in Section 3 of this report. The statistics and case

abstracts were derived from that database.

The bulk of the planning, research, and production of this report was squeezed into a six-week

period. Future reports will undoubtedly benefit

from a longer production period. Specific recommendations for future reports are contained in Section 4.

2 Advisory Commission on Intergovernmental Relations
El

First-Tier Federal

Mandates: Federal

Court Rulings

Ordering State,

Local, or Tribal

Governments

to Undertake

Responsibilities or

A c tivities

The Advisory Commission on Intergovernmental

Relations has developed a broad interpretation of

Section 304 for the purpose of selecting cases to be

included in the Section 304 Database (see Section

3). This interpretation includes many rulings that

are of only marginal relevance to the issue of federal mandates, or which are interesting only as a matter of statistical trends and not necessarily as

individual rulings. Thus, for purposes of selecting

rulings to be described individually in this report,

the Commission isolated two narrower groups of

cases.

The “first-tier” group is the narrowest, and is

designed to include rulings that seem to be at the

core of the concerns underlying Section 304. It

encompasses federal court rulings directly ordering

state, local, or tribal governments to take certain

actions, or aflrming such orders. In some aspects,

this group is still defmed quite broadly. For example, the group includes cases involving both federal

statutes and the U.S. Constitution; actions brought

against government officials as well as the govemments themselves; and interim rulings as well as

final dispositions.

This first-tier definition includes only those

cases that state, local, or tribal governments “lost,”

in the sense that the plaintiffs prevailed upon the

court to enter an order against the government.

Moreover, it includes only one type of order-a

mandatory injunction, ordering the state, local, or

tribal government to take some affirmative action.

These orders may be seen by some state, local, and

tribal governments as the most intrusive type of

federal court action, and they fall within the narrowest reading of the language in Section 304

referring to cases “that requir[e] State, local, or

tribal govemment[s] to undertake responsibilities

or activities.”

The first-tier group includes cases at all levels

of the federal courts; however, here a word of caution is in order. The Courts of Appeals and the

Supreme Court rarely issue injunctions themselves.

Rather, their chief function is to affirm or reverse

the decisions of the District Courts. Although it is

relatively easy to identify appellate decisions that

merely afftrm a District Court injunction, it is far

more difficult to identify appellate decisions that

may eventually result in the granting of an injuncAdvisory Commission on Intergovemmmtal Relations 3
tion but that themselves only decide some narrower

issue of law and remand the case to the District

Court for further proceedings. A good example of

this second type of appellate decision is Service

Employees International Union v. County of San

Diego, a Ninth Circuit case on the Fair Labor Standards Act. Although this case has been identified

and included in the first tier, other cases of the

same type may not be included.

The fust-tier group does not include one type

of order mandating action by a state or local government-relief granted state prisoners under 28

U.S.C. 2254, the habeas corpus statute. Although

habeas actions generate a large amount of litigation

(see the Litigation Frequency Table in Appendix

l), most of them are closely tied to the facts of each

case, and it did not seem useful to provide an

abstract of each habeas ruling. Full information

about each ruling is available in the Section 304

Database.

Following are abstracts of 44 first-tier opinions. As the Litigation Frequency Table shows,

federal litigation involving state, local, and tribal

governments is dominated by 42 U.S.C. 1983, one

of the best-known of the Civil Rights Acts. Section

1983 allows persons to bring federal court actions

for deprivations “under color of state law” of rights

guaranteed under federal statutes or the U.S. Constitution. Thus, Section 1983 provides the most

popular vehicle for challenges by individuals,

based on federal law, to actions of states, local governments, and their officials. Section 1983 is used

most often to bring actions alleging violations of

the U.S. Constitution. Federal constitutional litigation under Section 1983 also dominates the firsttier group, with 18 of the 44 rulings.

Three other federal statutes account for three

or more opinions in the first tier. The Individuals

with Disabilities Education Act has generated six

opinions; Title XIX of the Social Security Act

(Medicaid) and the Americans with Disabilities Act

have each generated three opinions. Otherwise, the

opinions are spread over a wide range of federal

statutes.

CASE ABSTRACTS

These case abstracts are arranged by the United States Code Section number of the federal statute

they primarily concern. Cases concerning the same statute are ordered by court level (Supreme Court,

Court of Appeals, District Court), and then alphabetically by the name of the first party to the case. Each

abstract contains the case title and citation; the name of the state, local, or tribal government or govemments involved (in italics directly below the citation); and a paragraph describing the case and the ruling.

Some cases, particularly those brought under 42 U.S.C. 1983, also concern provisions of the U.S. Constitution. Those provisions, if any, are listed in bold type beneath the citation.

20 U.S.C. 1232

Family Educational Rights

and Privacy Act

Belanger v. Nashua, New Hampshire,

School District

858 F. Supp. 4-O (D.N.H. 1994)

Nashua, N./f., School District

Student brought action against the school district, seeking declaratory and injunctive relief

under the Family Educational Rights and Privacy

Act and the Individuals with Disabilities Education

Act to require the school district to give the student’s files to his mother, who was concerned about

his school placement. The district had refused to

give all of the files, asserting that certain files related to some juvenile court proceedings were sealed.

The Court held that the records were “education

records” to which the mother was entitled, and

ordered the school district to provide the mother

with the student’s education records as defined.

The court also awarded the plaintiff costs and attorney’s fees.

4 Advisory Commission cm htagovemm entd Relations
20 U.S.C. 1400 et seq.

Individuals with Disabilities

Education Act

Brimmer v. Traverse City Area Public

Schools

872 F. Supp. 1994 (W.D.#ich. 1994)

Fourteenth Amendment Due Process

CiZy of Traverse Bay

Hearing impaired students, by and through

their parents, brought action for judicial review

under IDEA challenging a decision requiring that

special education services be provided to the students at their resident school district rather than at a

hearing-impaired school where they had been educated for the last three years. The court held that

plaintiffs showed that the individualized education

programs (IEP) were the product of a defective

* procedure, and remanded to the school district so

that new IEPs can be formulated in conformity

with procedural requirements. The court instructed

the school district to perform a comprehensive

evaluation as part of the IEP report to determine

how each program might help develop the child’s

potential. The court also ordered the defendant to

set aside its change of placement decision and to

allow the plaintiff children to remain in current

placements until their IEPs could be reformulated.

Duane B. v. Chester-Upland School District

1994 WL 724991 (E.D.Pa. 1994)

State of Pennsylvania

Chester-Upland School District

Plaintiff class filed a renewed motion to have

the school district adjudged in civil contempt of

court orders and to have the Department of Education adjudged in noncompliance. The orders

require evaluating and placing all class members in

appropriate educational programs, revising disciplinary procedures, providing in-service training,

and developing new curricula. The court granted

both motions. Plaintiff originally sued under the

Individuals with Disabilities Education Act to

receive funds with which states must enact policies

and procedures to assure handicapped students the

right to a free and appropriate public education.

Hunt v. Bartman

873 F. Supp. 229 (WD.Mo. 1994)

Fourteenth Amendment Due Process

State of Missouri

Parents of a handicapped child filed action

against state education offkials under the Individuals with Disabilities Education Hct, challenging

procedures for placement of the child in state

school for the severely handicapped. The court held

that: (1) claims were not rendered moot by a consent decree between parties covering a single

school year; (2) the state’s refusal to participate in a

hearing to compare placement in the local school

district with referral for placement at the state

school violated IDEA’s requirements for due

process hearings and deprivation of federal rights

enforceable under 42 U.S.C. 1983; (3) the state’s

failure to require local school districts to consider

the least restrictive environment before referring a

child to state schools violated IDEA’s requirement

that children be removed from regular schools only

if supplemental aids and services would not allow

satisfactory educations; and (4) state procedures

violated IDEA by determining eligibility for placement in a state school without requiring prior documentation from the local school district.

The court permanently enjoined the state

defendants from failing to participate in a threeparty hearing with parents and local school districts

when the defendants or their agents have recommended that the child be placed in a certain state

school and the parents have requested a hearing.

The court fhrther permanently enjoined the defendants from failing to require that local school districts consider the least restrictive environment

required by IDEA, and from notifying a local

school district that a child is eligible for the state

schools without requiring the school district to provide documentation and reasons why the child

can’t be educated locally. The court ordered the

defendants to develop and implement compliance

procedures.

Neely v. Rutherford County Schools

851 F. Supp. 888 (M.D. Tenn. 1994)

Rutherford County Schools

Plaintiffs, parents of a child having congenital

central hyperventilation syndrome, brought action

Advisory Commission on Intergovemmeutal Relations 5
against the school district under IDEA seeking to court certified the class and granted summary judghave the district provide nursing care while their ment to the plaintiffs, ordering the District of

child attends school. The court ordered the defen- Columbia to pay approximately $500,000 to the

dants to provide the requested services on the schools.

grounds that: (1) nursing care was a supportive service within the statute, (2) and absent evidence that

the care would be unduly burdensome, nursing care

fell outside medical services exclusion of IDEA.

Reusch v. Fountain

872 F. Supp. 1421 (D.Md. 1994)

State of Maryland

Disabled children filed suit claiming that a

school district violated IDEA when it systematically failed to meet its obligation to provide them with

an opportunity to obtain extended school year

(ESY) services. The court held that: (1) the district

violated the procedural requirements of IDEA by

not informing parents of their right to request ESY

services, by using a two-step process for annual

determinations of eligibility that violated IDEA in

both structure and practice, and by allowing ESY

decisions to be made so late in the academic year

that meaningful review was not possible before the

end of the academic year; (2) the district violated

the substantive requirements by evaluating eligibility on the single criterion of whether a student

would suffer some significant regression of skills

or knowledge without a summer program, without

sufftcient recoupment of those skills during the

next school year; and (3) the placement of disabled

students at nonpublic schools with academic years

in excess of the 180 days mandated for public

schools under Maryland law did not satisfy ESY

requirements. The court ordered the defendants to

comply with IDEA and awarded plaintiffs attorney’s fees.

Roisman v. District of Columbia

4 A.D.D. 929,1994 WL 114681 (D.D.C. 1994)

District of Columbia

A student at a private special education

school alleged that the District of Columbia was

not fully funding the cost of her education, in violation of the Individuals with Disabilities Education

Act. She moved for certification of the class of

approximately 75 similarly situated students. The

25 U.S.C. 2701 et seq.

Indian Gaming Regulatory Act

Ponca Tribe v. Oklahoma

37 E3d 1422 (10th Cir. 1994)

Various States

Indian tribes brought action against states and

governors to obtain an injunction requiring the

state to negotiate compacts under the Indian Gaming,ReguZatory Act (IGRA), and the District Court

ruled in favor of the tribes. This court held that: (1)

the Indian commerce clause empowers Congress to

abrogate Eleventh Amendment immunity; (2)

IGRA abrogates Eleventh Amendment immunity;

(3) the Tenth Amendment is not violated by the

requirement that states negotiate compacts in good

faith; and (4) no injunction could be issued against

governors.

29 U.S.C. 201 et seq.

Fair Labor Standards Act

Union Local 102 v. County of San Diego

35 F.3d 483 (9th Cir. 1994)

County of San Diego

County employees and their union brought

suit against the county, claiming that it failed to pay

overtime compensation in accordance with the Fair

Standards Labor Act (FLSA). The District Court

granted summary judgment for the plaintiffs, and

the county appealed. This court reverses, holding

that: (1) orders granting partial summary judgment

were appealable under the practical finality rule;

(2) for purposes of determining whether employees

were exempt from the overtime provision of FLSA

as salaried employees, a salary test in existence

prior to September 6, 1991, was invalid in its

entirety as applied to the public sector; (3) remand

was necessary to determine whether employees

were exempt from FLSA under the “duties test”;

6 Advisory Commission on Intergovemmmtal Relaiions
and (4) if county assistant deputy probation offtcers

and nurses employed at the probation facilities

were not exempt under the duties test, they were

entitled to overtime pay for stand-by duty, as such

duty was “work” within the meaning of FLSA.

29 U.S.C. 621 et seq.

Age Discrimination in Employment Act

Quinones v. City of Evanston

No. 91 C 3291,1994 WL 405963 (N.D. 111.

July 29,1994)

City of Evanston

Fire fighter plaintiff sued defendant city for

not allowing the plaintiff to join the pension fund

because of the plaintiffs age. The court held that

the defendant was guilty of age discrimination and

ordered the defendant to allow the plaintiff into the

pension fund with full credit.

29 U.S.C. 701 et seq.

Rehabilitation Act

Worlford by Mackey v. Lewis

860 F. Supp. 1123 (S.D.W.Va. 1994)

West \lirginia Department of Health

and Human Resources

Action was brought on behalf of residents of

West Virginia residential board and care facilities,

personal care facilities, and nursing homes, claiming that state regulations governing such facilities

violated both state law and the Keys Amendment to

the Supplemental Security Income program, and

further claiming that conditions at facilities had

disparate impact on disabled Medicaid-eligible residents in violation of the Rehabilitation Act and

Title II of the Americans with Disabilities Act. The

District Court held that: (1) the regulations violated

various aspects of both the Keys Amendment and

state law; (2) state enforcement of standards and

procedures violated both state law and the Keys

Amendment; (3) the state failed to rebut disabled

residents’ prima facie case that they were being

denied meaningful access to Medicaid services by

being denied transportation and that reasonable

accommodation was possible; but (4) to the extent

that disabled residents of some types of facilities

were alleging that they were being treated differently than disabled residents of other types of facilities, they did not state actionable claim under

Rehabilitqtion Act or Title II. This court orders the

parties to develop a remedial plan for correcting

and implementing proposed changes to existing

residential board and care and personal care regulations and enforcement procedures. The defendants

are required to include in the regulations transportation assurances comparable to those in existing adult family care home regulations.

42 U.S.C. 601 et seq.

Aid to Families with Dependent

Children

Brown v. Giulianl

158 F.R.D. 251 (E.D.N.Y. 1994)

City of New York

Recipients of Aid to Families with Dependent

Children (AFDC) sued New York City, claiming

that the city failed to process public assistance

grants under AFDC in a timely fashion, and moved

for a preliminary injunction and certification of a

class action. The court granted the preliminary

injunction, ordering the city to prepare a new plan

for the prompt disposition of requests for AFDC

grants, and prohibiting the city from implementing

a plan to redeploy personnel from AFDC grant processing to other activities. The court also certified

the action as a class action under Rule 23 of the

Federal Rules of Civil Procedure.

42 U.S.C. 1395

Medicare

Newman v. Kelley

848 F. Supp. 228 (D.D.C. 1994)

District of Columbia

In a class action under Medicare and Medicaid statutes, nursing home residents sought injuncAdvisory Commission on Intergovemmemal Relations 7
tive and declaratory relief to bring the District of ~ -

Columbia’s nursing home regulations into compliance with the federal Nursing Home Reform’ Law of

1987. On cross-motions for summary judgment,

the court held that the District’s regulatory scheme,

which enforces nursing facility resident transfers

and discharges based on level of care distinction,

was preempted by federal Medicaid and Medicare

law.

decision, final action needed to be taken within 90

days of appeal. The court ordered the department to

comply with the Social Security Act, and with the

time limits imposed by the act to ensure a fair hearing to plaintiffs.

42 U.S.C. 1396

Title X/X, Social Security Act

Rehabilitation Association of Virginia v.

Kozlowski

42 F.3d 1444 (4th Cir. 1994)

State of Wtginia

Providers of rehabilitative services challenged the legality of parts of Virginia’s Medicaid

plan and sought prospective injunctive relief. The

District Court found for the providers, and appeal

was taken. This court afirms, holding that Virginia’s plan for buying-in for certain Medicare

recipients involved a Medicare program to be partially funded by Medicaid resources, and, thus

Medicare reimbursement requirements governed

which plan allowed direct payment to providers of

rehabilitative services.

Shifflett v. Kozlowski

843 F. Supp. 133 (W.D. Va. 1994)

Fourteenth Amendment Due Process

Wrginia Department of Medical Assistance

Services

Plaintiffs, Medicaid applicants and recipients,

brought suit under 42 U.S.C. 1983 against the

Department of Medical Assistance Services for

violations of the Social Security AC?, alleging that

the department failed to provide rapid action on

appeal of a local decision and that it violated plaintiffs’ due process rights. Plaintiffs sought declaratory and injunctive relief. Plaintiffs moved for

summary judgment. The court held that when an

agency provided an appeal procedure for Medicaid

Sobky v. Smoley

855 F. Supp. 1123 (E.D.Cal. 1994)

California Health and Welfare Agency

Providers and recipients or potential recipients of state Medicaid-funded drug abuse treatment

services filed an action under 42 U.S.C. 1983 alleging that the practice of allowing counties to determine whether and in what amount to provide

Medicaid-funded methadone maintenance treatment violated the Medicaid statute. On plaintiffs’

motions for summary judgment and for reconsideration, the District Court held that: (1) requirement

of statewide applicability of Medicaid plans created a federal right enforceable under Sec. 1983; (2)

Medicaid recipients were entitled to preliminary

injunction; (3) fact questions as to extent of the

problem caused by the state scheme precluded

summary judgment in favor of Medicaid recipients;

(4) state practice did not violate the equal access

provision of the statute; (5) the requirement that all

categorically needy individuals receive equal medical assistance created an enforceable federal right;

(6) state failure to fund enough methadone maintenance slots violated the categorically needy equal

treatment requirement; (7) plaintiffs were not entitled to enforce the single state agency requirement;

(8) state practice violated the Medicaid requirement that services be provided with reasonable

promptness; and (9) state procedures upon denial,

termination or reduction of methadone maintenance services did not violate recipients’ due

process rights. The court granted the plaintiffs

motion for a preliminary injunction on the basis

that the state Medicaid plan was not in effect

statewide, and requested that the parties meet and

confer as to the terms of the permanent injunction.

The court contemplated a permanent injunction

that required the states to assure that all eligible

needy individuals receive methadone maintenance

treatment services equal in amount, duration, and

Scope.
42 U.S.C. 1973

Voting Rights Act

Cane v. Worcester County, Maryland

847 F. Supp. 369 (D.Md. 1994)

Worcester County, Maryland

Citizens challenged the system used by the

county to elect county commissioners. The court

held that evidence was clear and convincing that

due to community voting patterns, residential atlarge requirements for county commission elections, and past and present discrimination against

blacks, voting strength of black voters had been

diluted. The court ordered the county a cumulative

voting system to elect its county commission.

Marylanders for Fair Representation v.

Schaefer

849 F. Supp. 1072 (D. Md. 1994)

Fourteenth Amendment Equal Protection

State of Maryland

The plaintiffs brought an action against the

state under the Voting Rights Act, challenging a

redistricting plan. The court had ordered the state to

provide a new plan (reported at 849 F. Supp. 1022),

and the state had complied. The court approved the

state’s new redistricting proposal and ordered the

defendants to adopt and implement it.

42 U.S.C. 1983

Section 1983

AIDS Action Committee v. Massachusetts

Bay Transportation Authority

42 F.3d 1 (6th Cir. 1994)

First Amendment Speech/Press

State of Massachusetts

AIDS Action Committee filed a Sec. 1983

action for declaratory and injunctive relief alleging

violations of the First and Fourteenth Amendments

as a result of the transportation authority’s advertising policy, which prohibited ads containing sexually explicit and patently offensive language to

convey a substantive message. The District Court

ruled that the interiors of subways and trolley cars

were public forums, and that the policy violated the

First Amendment; it enjoined the authority from

refusing to accept and display ads and from applying its policy. The Court of Appeals affirmed, holding that: (1) the policy, which permitted an idea to

be expressed but disallowed use of certain words in

expressing that idea, was content-based and violated the First Amendment; (2) the authority’s decision not to run the AIDS committee’s ads while

running ads for movies containing sexually explicit

words and photographs constituted content discrimination that gave rise to the appearance of

viewpoint discrimination in violation of the First

Amendment; and (3) the advertising policy in its

present form was properly enjoined.

Casey v. Lewis

43.F.3d 1261 (9th Cir. 1994)

Fifth Amendment

Fourteenth Amendment Due Process

State of Arizona

Inmates brought a civil rights class action

alleging that Arizona prison officials violated their

constitutional right to access to courts. The District

Court found constitutional violations and granted

injunctive relief. This court held that the Arizona

Department of Corrections’ legal access program

unconstitutionally denied inmates meaningful

access to courts, and that the District Court did not

abuse its discretion in ordering the relief set forth in

its permanent injunction relating to the contents of

law libraries, physical access to libraries, legal

assistants, library staff, photocopy policy, and

attorney telephone calls. The injunctive relief

ordered the department to provide meaningful

access to the courts for all present and future prisoners, following the practices set forth in the order,

including access to the law library and law clerks.

Hellebust v. Brownback

42 F.3d 1331 (10th Cir. 1994)

Fourteenth Amendment Equal Protection

Fourteenth Amendment Due Process

State of Kansas

State residents brought action challenging the

system of electing the state Board of Agriculture.

The District Court entered judgment affording
relief. The Court of Appeals aEnmed, holding that:

(1) the system under Kansas Stat. Ann. 74-502 for

election by delegates from private agricultural

associations violated the “one person, one vote”

rule under the equal protection clause; (2) the state

legislature was not a necessary party to the action;

and (3) the District Court did not abuse its discretion in remedying the process by declaring terms of

members of the board expired and appointing the

governor as receiver for the board.

Hershberger v. Scaletta

33 F.3d 955 (8th Cir. 1994)

Fourteenth Amendment Equal Protection

Fourteenth Amendment Due Process

State of Illinois

Indigent inmates brought a civil rights action

against prison officials, challenging prison policy

of denying indigent inmates in administrative segregation any free legal or personal postage. The

District Court enjoined the prison’s practice as to

legal mail, but found its policy as to personal mail

was permissible, and both sides appealed. This

court affirmed, holding that: (1) indigent inmates in

administrative segregation could not be denied free

postage for legal mail, but (2) inmates did not have

a right to free postage for nonlegal mail.

Pottinger v. City of Miami

40 F.3d 1155 (11th Cir. 1994)

Fourth Amendment Search/Seizure

Eighth Amendment Cruel and Unusual

City of Miami

After a class of homeless persons was certified for purposes of a civil rights action against the

city, the District Court granted injunctive relief that

required the city to establish “safe zones” in which

the police department could not arrest homeless

people for performing harmless life-sustaining acts.

The Court of Appeals remanded, holding that the

District Court was required to reconsider the

injunction in light of recent events, such as the construction of homeless shelters.

Speer v. Miller

15 F.3d 1007 (11th Cir. 1994)

First Amendment Speech/Press

State of Georgia

Lawyer filed an action seeking a permanent

injunction against enforcement of a Georgia statute

prohibiting inspection of law enforcement records

for commercial solicitation. The District Court

denied the lawyer’s motion for a preliminary

injunction. The Court of Appeals vacated that decision, holding that a mere reading of the statute indicated that it probably impinged on the lawyer’s

First Amendment rights to commercial speech,

and, thus, the lawyer’s likelihood of success on the

merits warranted a hearing on the request for a preliminaty injunction.

Turpen v. City of Corvallis

28 F.3d 978 (U.S. Ct. App. 9th Cir.)

Fourteenth Amendment Due Process

City of Cofvallis

Tenants brought a civil rights action against

the city, alleging that the city’s termination without

notice of their water service because their landlord

failed to pay the water bill violated their due

process rights. The District Court entered judgment

in favor of the tenants, The Court of Appeals held

that the city’s failure to supply water based on the

landlord’s failure to pay the water bill deprived tenants of cause of action under Oregon law by preventing them from suing for injunctive relief before

service was terminated, and that the tenants were

deprived of property interest under the Fourteenth

Amendment by the termination of service without

notice, but did not have a property right to continuous water services from the city. The court declined

to address the issue of injunctive relief ordering

defendants to give pre-termination notice because

plaintiffs did not raise the issue on cross appeal, but

plaintiffs were entitled to damages following the

termination of service.

10 Advisny Commission on htagovcmm cntal Relations
Aciemo v. New Castle County

1994 WL 720273 (D. Del. )

Fourteenth Amendment Due Process

Fourteenth Amendment Equal Protection

New Cast/e County

Plaintiff brought suit under Sec. 1983 asserting that the defendant’s continuing conduct in

denying him a building permit violated his due

process and equal protection rights. The court previously had entered a preliminary injunction

against the county ordering them to review the

plaintiff’s building permit application, the defendants appealed, and this court dismissed the plaintiff’s case without prejudice. The plaintiff refiled

his complaint and the court granted the preliminary

injunction ordering the building permit issued.

Aldrich v. Knab

858 F. Supp. 1480 (WD.Wash. 1994)

First Amendment Speech/Press

State of Washington

Volunteer staff members and listeners of a

noncommercial radio station owned by a public

university sued the university, the university’s

director of broadcast services, and past and current

station managers, alleging violation of the First

Amendment and wrongful termination. This court

granted plaintiffs motion for summary judgment

regarding the no criticism policy, holding that it

violates the First Amendment, and enjoined the

defendants from continuing to utilize the policy.

The court ordered the defendants to reinstate the

plaintiffs to their former positions.

Carper v. DeLand

851 F. Supp. 1506 (D. Utah 1994)

Fourteenth Amendment Due Process

State of Utah

Utah inmates brought a class action suit

against Utah Department of Corrections offtcials

alleging failure to provide inmates with adequate

access to courts. This court granted the plaintifT’s

summary judgment motion, and held that: (1) the

department’s obligation to assist inmates did not

extend beyond completion of initial petitions for

writs of habeas corpus and civil rights complaints,

and (2) budgetary reasons did not justify a prison

regulation that infringed on inmates’ constitutional

right of access to courts. The court granted plaintiffs a declaration that the scope of the present

UDC legal contract provides insufficient legal

assistance, and ordered the defendants to provide

legal assistance through the preparation and filing

of the initial complaint in all civil rights cases that

involve due process.

Dunn v. New York State

Department of Labor

1994 WL 48799 (S.D.N.Y.)

State of New York

Plaintiffs and intervenors, Municipal Labor

Committee, moved for an order adjudging defendant in civil contempt, declaring that plaintiffs are

entitled to relief to enforce this judgment, appointing a special master to recommend a long-term

remedial plan, granting relief by ordering defendants to reassign temporary administrative law

judges, and consolidating this action. The court

held that the defendant was not in civil contempt of

the 1979 order that required the New York Department of Labor to render 60% of all first-level

appeals decisions within 30 days of the appeal and

80% within 45 days of the appeal. However, the

court established a monitoring system to ensure

that the defendant achieved consistent compliance.

Faulker v. Jones

858 F. Supp. 552 (D.S.C. 1994)

Fourteenth Amendment Equal Protection

State of South Carolina

Female plaintiff brought action against members of the Board of Visitors of the Citadel, the

Military College of South Carolina, and certain of

its officials, seeking permanent injunction against

discrimination on the basis of sex and immediate

admission to the Citadel’s corps of cadets. The

court granted the injunction, requiring the defendants to admit the plaintiff to the South Carolina

Corps of Cadets, and ordered the defendants to pursue their proposed remedial plan without delay and

adopt a plan that conforms with the Equal Protection Clause.
Maraldo v. City of New Orleans

1994 WL 50246 (E.D. La. )

Fourteenth Amendment Due Process

City of New Orleans

Plaintiff filed action under Sec. 1983 against

the city and its mayor seeking a declaratory judgment that she is entitled to complete her term as a

member of the Sewerage and Water Board, and an

injunction prohibiting defendants from interfering

with her service and money damages. Plaintiff

claimed that the defendants engaged in activity that

violates her due process rights of office. The court

held that because the plaintiff had been removed

without due process, she was entitled to injunctive

relief prohibiting defendants from interfering with

her board service. The court reserved judgment on

plaintiffs claim for damages and attorney’s fees.

Nicholson v. Moran

.1994 WL 409494 (D.R.I.)

Fourteenth Amendment Due Process

State of Rhode Island

Inmate brought an action under Sec. 1983,

claiming that a disciplinary report charging him

with giving false information violated his due

process rights. The court held that the inmate was

entitled to declaratory and injunctive relief, and

attorney’s fees. The court ordered the defendants to

expunge any reference to the disciplinary board’s

finding that the plaintiff was guilty of giving false

information, and to restore 30 days of good time

credits. The court also ordered the defendants to

pay attorney’s fees and costs.

Oropallo v. Ackerman

856 F. Supp. 35 (D.N.H. 1994)

Fourteenth Amendment Due Process

Fourteenth Amendment Privileges

and Immunities

New Hampshire Depattment of Corrections

An inmate whose word processor disks were

confiscated sued, arguing that his right to the courts

was being infringed, as notes for his habeas corpus

action were contained on the disks. The court

issued a preliminary injunction requiring the prison

to give him 12 of the 60 disks.

Pratt v. Rowland

856 F. Supp. 565 (N.D. Cal. 1994)

Eighth Amendment Cruel and Unusual

First Amendment Speech/Press

California Department of Corrections

Elmer “Geronimo” Pratt, a former leader of

the Black Panther Party, sued, arguing that he was

moved and double-celled in retaliation for (1) testifying about the FBI’s counter-intelligence program

against the Black Panthers, (2) drawing media

attention, and (3) a successful civil rights action

brought by the plaintiff in 198 1. The court granted

a preliminary injunction ordering the defendants to

restore Pratt’s prior living arrangements.

Republican Party of North Carolina v. Hunt

941 F. Supp. 722 (E.D.N.C. 1994)

Fourteenth Amendment Equal Protection

State of North Carolina

Republican Party of North Carolina and other

plaintiffs brought a civil rights suit alleging that

the method of election for superior court judges

(district-wide primary nominations followed by

statewide elections) denied plaintiffs equal protection of the laws by diluting the voting franchise of

Republican voters. The District Court dismissed

the action. On appeal, the Court of Appeals

reversed, finding that the plaintiffs presented a

viable, justiciable Fourteenth Amendment claim of

vote dilution, and remanded the case. On remand,

plaintiffs renewed their motion for a preliminary

injunction. This court held that the plaintiffs were

entitled to a preliminary injunction requiring that

upcoming elections be conducted under a modified

format.

Women’s Prisoners of the District of

Columbia Department of Corrections v.

District of Columbia

877 F. Supp. 634 (D.D.C. 1994)

Eighth Amendment Cruel and Unusual

Fourteenth Amendment Due Process

District of Columbia

Plaintiffs brought this class action on behalf

of female prisoners in the District of Columbia

seeking declaratory and injunctive relief on the

12 Advisory Commission on Intergovcmmmtal Relations
grounds that: (1) they were subject to sexual

harassment in violation of the Fifth and Eighth

Amendments; (2) received unequal opportunities to

participate in prison programs in violation of Title

IX and the Fifth Amendment; (3) received inadequate obstetrical and gynecological care at the

prison in violation of the Eighth Amendment; and

(4) were subject to general conditions of confmement violating the Eighth Amendment. This court

held that: (1) the Eighth Amendment was violated

by sexual harassment., living conditions, and lack

of proper medical care; (2) Title IX was violated by

lack of educational opportunities compared with

those available to men; and (3) prison officials

were liable for civil rights violations. The court

ordered declaratory and injunctive relief to take

necessary action to remedy and prevent the violations of plaintiffs rights, including actions to be

taken to improve enviromnental health, obstetrical

and gynecological care, and diagnostic evaluations

to determine prisoners’ needs and interests for

increased programs in academic and higher learning, religion, work, and recreation.

42 U.S.C. 1988

Section 1988

AIDS Action Committee v. Massachusetts

Bay Transportation Authority

1994 WL 61614 (D. Mass. Jan. 25,1994)

First Amendment Speech/Press

Fourteenth Amendment

Massachusetts Bay Transportation

Authority

Plaintiff filed for preliminary injunction and

attorney’s fees for failure to display plaintifT’s paid

public service ads on subway cars and platforms.

The court held that the plaintiff would get a permanent injunction enjoining the defendants from

refusing to accept and display the public service

ads, and awarded the plaintiff costs and attorney’s

fees.

42 U.S.C. 20006

Title WI, Civil Rights Act

United States v. Criminal Sheriff, Parish of

Orleans

19 F.3d 236 (5th Cir. 1994)

Parish of Orleans

In Title VII litigation alleging sex discrimination by the parish criminal sheriffs office and its

sheriff, the District Court enjoined the sheriff from

failing or refusing to hire females in the position of

deputy sheriff, or failing or refusing to promote

female deputies, or failing or refusing to adopt a

program to inform women of equal employment

opportunities. Defendants appealed. The Court of

Appeals affirmed in part, holding that the magis-

,trate’s ruling impermissibly exceeded the scope of

stipulation on which the injunction was based; it

therefore vacated the part of the injunction addressing hiring and promotional practices in other areas

of the prison system.

42 U.S.C. 3001 et seq.

Older Americans Act of 1965

Southwest Missouri Office on Aging v.

Missouri Department of Social Services

850 F. Supp. 816 (W.D. MO. 1994)

Missouri Department of Social Services

Office on aging brought suit against the state

department to challenge the allocation of certain

federal monies pursuant to the federal act. The

plaintiff demanded declaratory judgment and

injunctive relief, and moved for summary judgment. The court held that the state factor-in formula did not reflect older persons in greatest economic

and social need, and thus violated the OZder Americans Act. The court enjoined the defendants from

using the current intrastate funding formula to distribute funds under the act.

Advisory Commission on htergowmmcntal Relations 13
42 U.S.C. 6961

Resource Conservation

and Recovery Act

City of Chicago v. Environmental

Defense Fund

114 s. ct. 1588 (1994)

city of Chicago

Respondent alleged that petitioner city mishandled hazardous waste from a municipal incinerator by dumping it into landfills not licensed to

accept hazardous waste. The District Court granted

summary judgment for the petitioner on grounds

that the waste was not toxic enough to be “hazardous” under EPA regulations and the Resource

Conservation and Recovery Act (RCRA). The

Court of Appeals reversed. The Supreme Court

affirmed the Court of Appeals, holding that waste

generated by the city was subject to RCRA. The

court held that RCRA is a comprehensive environmental act that leaves the determination of hazardous waste to EPA, and that the city’s waste was

within EPA’s definition.

42 U.S.C. 12101 et seq.

Americans with Disabilities Act

Concerned Parents v. City

of West Palm Beach

853 F. Supp. 424 (S.D. Fla. 1994)

City of West Palm Beach

The city discontinued special services for the

disabled, used mainly by nonresidents, at the

Dreher Park Center because of a budget crisis. The

court found that the budget cuts affected disability

programs more severely than other recreational

programs, and held that the city could not discriminate against nonresidents if there was a resulting

disadvantage to the disabled. The court granted a

preliminary injunction, concluding that plaintiffs

were denied benefits in violation of ADA. The

court ordered the city to take all necessary steps to

afford the benefits of the city’s recreational .program to persons with disabilities.

Dees v. Austin-Travis County Mental Health

and Mental Retardation

860 F. Supp. 1186 (W.D. Texas)

42 U.S.C. 7401 et seq.

Cl& Air Act

Austin-Travis County Mental Health and

~ Mental Retardation

A patient brought an action against the center

board of trustees under the Americans with DisabilAmerican Lung Association v. Kean

856 F. Supp. 903 (D. N.J. 1994)

New Jersey

Citizens groups brought suit under the Clean

Air Act to compel New Jersey to comply with a

state implementation program and a previously

entered scheduled order for reduction of ozone

emissions from consumer and commercial products. The plaintiffs moved to enforce the order and

the defendants moved to amend. The court held

that: (1) subsequent amendments to the Clean Air

Act did not excuse the state from its preexisting

obligations, and (2) there was no justification for

further delay. The court enjoined the state to comply with the program and order.

ities Act, arguing that as a result of the medication

she was required to take, she was unable to attend

regular meetings of the board of trustees. The court

held that ADA was not violated, but in the interests

of equity, ordered the board to schedule meetings at

times when the plaintiff could attend, for a trial

period of six months.

Tugg v. Towey

864 F. Supp. 1201 (S.D. Fla. 1994)

State of Florida

Deaf individuals eligible for mental health

counseling services sought a preliminary injunction

under ADA requiring the state to provide the services through counselors with sign language ability. This court granted the preliminary injunction

until permanent guidelines were approved.

14 Advisory Commission on Intergovernmental Relations
Second- Tier Federal

Mandates:

Prohibitory

Injunctions and

Declarations that

State, Local, or

Tribal Laws Violate

the U.S. Constitution

or are Preempted by

Federal Law

T0 complement the first-tier group, the Commission selected a closely related second tier of federal

court rulings that includes (I) prohibitory injunctions, which order a government to refrain from

taking some particular action, such as enforcing a

local law, and (2) declarations that a particular

state, local, or tribal law runs counter to a federal

law or regulation, or a provision of the U.S. Constitution. While the rulings falling within this second

tier do not directly require governments to undertake particular activities, they often have the same

practical effect. Like the first tier, this group

includes only those cases that state, local, or tribal

governments lost in the sense that the plaintiffs prevailed upon the court to enter a ruling against the

government.

Following are abstracts of 96 rulings falling

within this second tier. Federal constitutional litigation under Section 1983 dominates the second tier,

as it does the first, with 40 of the 96 rulings. Table

1 presents the statutes that have generated three or

more rulings in the second tier.

Table I

Second-Tier Rulings by Statute

(Three or More)

Statute Number

of Rulings

Section 1983 4 0

Voting Rights Act 9 ’

Title XIX, Social Security Act

(Medicaid) 6

National Labor Relations Act 5

Religious Freedom Restoration Act 5

Employee Retirement Income

Security Act 4

Indian Gaming Regulatory Act 3

Fair Housing Act 3

Advisory Commission on Intagovunm ental Re.ietioas 15
CASE ABSTRACTS

These case abstracts are arranged by the United States Code Section number of the federal statute

they primarily concern. Cases concerning the same statute are ordered by court level (Supreme Court,

Court of Appeals, District Court), and then alphabetically by the name of the first party to the case. Each

abstract contains the case title and citation; the name of the state, local, or tribal government or govemments involved (in italics directly below the citation); and a paragraph describing the case and the ruling.

Some cases, particularly those brought under 42 U.S.C. 1983, also concern provisions of the U.S. Constitution. Those provisions, if any, are listed in bold type beneath the citation.

2 U.S.C. 453

Federal Election Campaign Act of 1971

Bunning v. Commonwealth of Kentucky

42 F.3d 1008 (6th Cir. 1994)

State of Kentucky

A congressional representative brought action

seeking declaration that the state registry of election finance was not entitled to investigate a poll

conducted’ by the representative’s reelection committee. The District Court entered judgment for the

representative, and awarded attorney’s fees. The

Court of Appeals affirmed in part and reversed in

part, holding that the state’s attempt to investigate

the poll was preempted by the Federal Election

Campaign Act, but that the representative was not

entitled to attorney’s fees.

12 U.S.C. 92

National Bank Act

Owensboro National Bank v. Stephens

44 F.3d 388 (6th Cir. 1994)

State of Kentucky

National bank sued the commissioner of the

Kentucky Department of Insurance to require compliance with 12 U.S.C. 92, which permits national

banks to act as insurance agents in towns with

fewer than 5,000 inhabitants. The District Court

granted the bank’s motion for summary judgment.

On appeal, the Court of Appeals held that 12

U.S.C. 92 preempts a Kentucky statute prohibiting

bank holding companies from acting as insurance

agents, and that the Kentucky statute is not protected by the MCarran-Ferguson Act.

12 U.S.C. 1821 et seq.

Federal Deposit Insurance Act

Resolution Trust Corporation v. State of

California

851 F. Supp. 1453 (C.D. Cal 1994)

State of California

The Resolution Trust Corporation brought

suit against the State and the Controller of California seeking declaratory and injunctive relief preventing the state from taking custody of unclaimed

federal deposit insurance funds under California’s

Unclaimed Property Law. The court held that California’s law was preempted by 12 U.S.C. 1822,

governing disposition of insured deposits remaining unclaimed, and that the RTC was entitled to

restitution. The court also permanently enjoined the

defendants from interfering with RTC’s recovery of

such funds from acquiring institutions.

15 U.S.C. 1 et seq.

Sherman Act

Pine Rldge Recycling , Inc. v. Butts County,

Georgia

864 F. Supp. 1338 (M.D. Ga. 1994)

Dormant Interstate Commerce

County of Butts

Developer filed an action to prevent the county from interfering with the establishment of a new

municipal solid waste landfill, seeking preliminary

injunctive relief. This court granted the preliminary

injunction on the grounds that the plaintiff showed

a likelihood of prevailing on the merits of a monop

olization claim against the county.
Santos v. City of Houston, Texas

852 F. Supp. 601 (S.D. Tex. 1994)

clfy of /fowfon

Plaintiff, an operator of a jitney service,

brought an action against the city for a declaration

that an anti-jitney ordinance violated federal

antitrust laws. This court granted the plaintiffs

summary judgment motion and held that the ordinance violated the Sherman Act and deprived the

plaintiff of his due process rights. The court permanently enjoined the city from enforcing the ordinance.

15 U.S.C. 1331 et seq.

Federal Cigarette Labeling and

Advertising Act

Vango Media, Inc. v. City of New York

.34 F.3d 68 (2nd Cir. 1994)

City of New York

Company in the business of displaying advertising signs on the exterior of privately owned taxicabs brought an action against New York City, the

New York City Department of Health and the New

York City Taxi and Limousine Commission, challenging a city ordinance requiring a minimum of

one public health message to be displayed for every

four tobacco advertisements displayed on property

and facilities licensed by the city. The District

Court granted the company’s motion for summary

judgment, and appeal was taken. This court

affiis, holding that the Federal Cigarette Labeling and Advertising Act preempted the ordinance as

applied to the company.

15 U.S.C. 2801 et seq.

Petroleum Marketing Practices Act

Mobil Oil Corporation v. Virginia Gasoline

Marketers

34 F.3d 220 (4th Cir. 1994)

Commonwealth of Mrginia

Oil company brought suit against the Attorney General of Virginia, seeking declaratory and

injunctive relief from amendments to the Krginia

Petroleum Products Franchise Act. The District

Court dismissed the suit for failure to present a justiciable case or controversy, and the oil company

appealed. The Court of Appeals reversed and

remanded. On remand, the Attorney General

moved for summary judgment and the oil company.

cross-moved for summary judgment. The District

Court granted the cross-motion in part, determining

that all but one provision of the state amendments

were federally preempted, and that the amendments

violated the state constitution’s prohibition on special laws. The oil company appealed. This court

affirms in part and reverses in part, holding that: (1)

the Petroleum Marketing Pructice Act preempted

the amendments, including the prohibitions on

quota, minimum hours, minimum renewal, and

maximum number of stations, and the rent control

provision, and (2) the amendments were not

expressly or implicitly preempted by the Lanhum

Act governing trademarks.

15 U.S.C. 3901 et seq.

Product Liability Risk Retention Act

of f981

Preferred Physicians Mutual Risk

Retention Group v. Cuomo

865 F. Supp. 1057 (S.D.N.Y.1994)

Dormant Interstate Commerce

State of New York

Plaintiffs brought suit alleging that New

York’s Excess Insurance Law violated the federal

Product Liability Risk Retention Act and the Commerce Clause, and that defendants’ actions violated

the Sherman Act. The court held that the New York

law violated the Product Liability Risk Retention

Act and prohibited the state defendants from

enforcing the offending provisions of the law in a

way that treats plaintiffs differently from licensed

insurers until the court entered a permanent injunction.

Advisory Commission on htergovemmental Relations 17
16 U.S.C. 3117

Alaska National lntemst Lands

Conservation Act

Native Village of Quinhagak v.

United States

35 F.3d 388 (9th Cir. 1994)

State of Alaska

Native Villages in Alaska and others brought

an action under the Alaska National Lands Conservation Act challenging state regulations prohibiting

subsistence rainbow trout fishing and a federal regulation excluding navigable waters from regulation

of “public lands.” The plaintiffs’ motion for a preliminary injunction entitling them to a preference

for the taking of rainbow trout for nonwasteful subsistence uses was denied by the District Court, and

plaintiffs appealed. This court reverses, holding

that: (1) there were serious questions going to the

merits as to whether there was the necessary federal “interest” in the waters in dispute so as to make

them “public lands” within the meaning of the Act,

and (2) balance of hardships tipped sharply in favor

of plaintiffs in light of threatened loss of an important subsistence food source and destruction of culture and way of life.

18 U.S.C. 922(s)

Brady Act

Mack v. United States of America

856 F. Supp. 1372 (D. Ariz. 1994)

Fifth Amendment Self-Incrimination

Tenth Amendment

Graham County Sheriff

An Arizona county sheriff brought suit

against the United States to challenge the constitutionality of the Brady Act. The court held that the

Brady Act violated the Tenth Amendment under

New York v. United States, 505 U.S. 144, and also

the Fifth Amendment due to vagueness.

i 21 U.S.C. 360

Federal Food, Drug, and Cosmetic Act

Committee of Dental Amalgam Alloy

Manufacturers v. Henry

871 F. Supp. 1278 (S.D.Cal. 1994)

Commerce Clause

State of California

Declaratory and injunctive relief action was

brought seeking determination that California’s

Safe Drinking Water and Toxic Enforcement Act

was preempted by the Medical Device Amendment

(MDA) insofar as it imposed warning requirements

for dental mercury that were different from or in

addition to requirements under MDA, and alleging

that the Act violated the Commerce Clause. The

court held that the warning requirements of the Act,

when imposed on dental mercury or products containing dental mercury, were different from, or in

addition to, specific MDA requirements and were

thus preempted. It also held that the Act was not a

“requirement of general applicability” within the

meaning of a regulation providing that the preemption provision of MDA did not preempt state or

local requirements of general applicability, and that

genuine issues of material fact, including whether

compliance with the Act was unduly burdensome,

precluded summary judgment as to whether that

statute violated the Commerce Clause.

21 U.S.C. 451 et seq.

Poultry Products Inspection Act

National Broiler Council v. Voss

44 F.3d 740 (9th Cir. 1994)

State of California

Trade associations filed an action claiming

that the Poultry Products Inspection Act (PPIA)

preempted a California statute prohibiting wholesalers from using the word “fresh” on labels for

poultry and poultry products unless poultry had

been stored at temperatures at or above 25 degrees.

Plaintiffs’ motion for summary judgment was

granted by the District Court. On appeal, this court

afftrmed in part and reversed in part, holding that

18 advisory Commission cm htugwemm ental Relations
the preemption clause in PPIA precluded labeling

requirements in addition to or different from those

made under PPIA-preempted prohibitory enactments such as the California labeling provision; the

California provision was preempted both as being

in addition to and different from federal labeling

requirements; but the California labeling provision

was severable from the remainder of the statute,

proscribing advertising, describing, holding out, or

selling as fresh poultry that was stored below 26

National Broiler Council v. Voss

851 F. Supp. 1481 (E.D. Cal. 1994)

State of California

Poultry and meat trade associations filed an

action claiming that the Pouky Products Inspection Act preempted a California statute restricting

the use by wholesalers of the term “fresh” on poula try product labels to poultry that had been stored in

temperatures above 25 degrees. This court granted

the plaintiffs motion for summary judgment, holding that: (1) California’s statute is preempted by

PPIA’s express preemption provision, and (2)

because the preemption provision is not severable

from the statute, an injunction barring the labeling

provision would also bar enforcement of the

remainder of the statute. The court therefore permanently enjoined the defendant from enforcing

the California statute until further order.

25 U.S.C. 331

Indian General Allotment Act

Cree v. Waterbury

873 F. Supp. 404 (E.D.Wash. 1994)

State of Washington

Tribe members and one non-member employee of the tribe brought actions against traffic offrcers for issuing citations for the tribe’s failure to

pay licensing fees and to obtain permits for trucks

used to haul tribal timber to market over state highways. This court granted the defendant’s motion for

summary judgment dismissing the independent

tribal sovereignty claims. The plaintiffs motion for

summary judgment regarding the meaning of “in

common with” in Article III was granted. This

court granted the plaintiffs prayer for declaratory

relief of the Yakamas’ Treaty right to travel, and

denies injunctive relief under Sec. 1983.

Southern Ute Indian Tribe v. Board of

County Commissioners

855 F. Supp. 1194 (D.Colo. 1994)

La Plata County

State of Colorado

Southern Ute Indian Tribe

Indian tribe filed a lawsuit against taxation of

real property interests by the county and the state.

Issues under consideration included: (1) whether

the district court had jurisdiction over the matter;

(2) whether the county and the state could directly

tax real property interests held by the tribe in fee

simple, and (3) whether the county and state could

tax third parties holding real property interests

within the reservation where such tax also impacts

the tribe’s derivative interest. The court held that it

did have jurisdiction over the matter, and that

absent any further congressional or presidential

action, the county and state could not directly tax

real property interests held by the tribe in fee simple, nor may they tax mineral interests owned by

the tribe relating to lands within the boundaries of

the reservation. The court entered an injunction

prohibiting the county and state from directly taxing real property interests held by the tribe in fee

simple or mineral interests on land within boundaries of the reservation.

25 U.S.C. 2701 et seq.

Indian Gaming Regulatory Act

Cabazon Band of Mission Indians v. Wilson

37 F.3d 430 (9th Cir. 1994)

State of California

Plaintiff Indian band challenged the state’s

authority to collect license fees from a racing association conducting simulcast wagering on tribal

lands. The District Court entered judgment for the

state. The Court of Appeals reversed the District

Advisory Commission on Intcrgovernm entsl Rehtims 19
Court’s decision on the grounds that the Indian / Coeur D’Alene Tribe v. State of Idaho

Gaming Regulatory Act preempted the state from

taxing off-track betting activities on tribal lands.

842 F. Supp. 1288 (D. Idaho 1994)

State of Idaho

Cabazon Band of Mission Indians v. Wilson

23 F.3d 1535 (9th Cir. 1994)

State of California

Native American tribe brought an action to

challenge the state’s authority to collect license

fees from an organization hired to administer the

off-track betting facility and activities on reservations. The District Court entered judgment for the

state. The Court of Appeals reversed on the

grounds that the Indian Gaming Regulatory Act

(IGRA) expressly withheld from the states the

authority to impose any tax, fee, charge, or other

assessment on an Indian tribe or by any other person or entity authorized by an Indian tribe to

engage in an activity within the meaning of IGRA.

Here, racing associations were expressly authorized to conduct “simulcast wagering,” an activity

covered by Class III of IGRA.

Sycuan Band v. Roache

38 F.3d 402 (9th Cir. 1994)

State of California

Indian tribes that operated gaming centers on

their reservations brought an action for declaratory

relief and injunctions against California state prosecutions of individuals employed in the tribe’s

gaming centers. The District Court granted declaratory and injunctive relief in favor of the tribes. The

Court of Appeals affied on the grounds that: (1)

California public law only grants California and

certain other states jurisdiction over criminal violations and civil causes of action on Indian reservations, but leaves civil regulatory jurisdiction in the

hands of the tribes; (2) under IGRA, the state has

no authority to prosecute employees of Indian

tribes for conducting the tribes’ gaming on Indian

reservations; and (3) IGRA made California law

against Class III gaming devices applicable in Indian country, but granted the federal government

exclusive power to enforce that law, such that the

California public law provision was impliedly

repealed by IGRA.

Indian tribes and the state brought declaratory

judgment actions regarding individual rights and

obligations under IGRA. Parties cross-motioned

for summary judgment. The court held that: (1) law

and policy at the time of the court decision, not at

the time the tribes requested negotiations, would

guide analysis; (2) the state was not required to

negotiate about gaming activities not permitted by

Idaho law; and (3) the state was not allowed to

operate a lottery absent tribal permission.

B.U.S.C. 151 et seq.

National Labor Relations Act

Livadas v. Bradshaw

114 S. Ct. 2068 (1994)

California Department of Labor

Plaintiff employee sued the Commissioner of

Labor, alleging that enforcement of state law

deprived her of benefits of federal law. State law

required employers to pay employees’ wages

immediately on discharge. The plaintiffs employer

refused to comply, so she requested that the defendant commissioner intervene. The defendant stated

that he was unable to enforce the law for the plaintiff because her employment contract was governed

by collective-bargaining agreements containing an

arbitration clause. The plaintiff sued in District

Court, alleging that the nonenforcement policy violated her rights under the National Labor Relations

Act (NLRA). The District Court held that NLRA

preempted state law, and granted summary judgment in the plaintiffs favor. The Court of Appeals

held that the plaintiff’s federal rights had not been

infringed because she was merely asserting that the

defendant had misinterpreted state law. The court

reversed the lower court and held that: (1) federal

law preempted the state’s policy of not requiring

employers to pay all wages due to discharged

employees, and (2) the plaintiff was entitled to seek

relief under 42 U.S.C. 1983 because she was

deprived of the privileges of federal law.

20 Adhay Commission on Intergovernmental Relations
Bud Antle, Inc. v. Barbosa

35 F.3d 1355 (9th Cir. 1994)

State of California

Employer brought action against members

and the executive secretary of the California Agricultural Labor Relations Board (ALRB), claiming

that the National Labor Relations Act ousted

ALRB of jurisdiction to adjudicate various unfair

labor practice charges then pending before ALRB.

The District Court held that NLRA did not preempt

ALRB jurisdiction over charges and that it was

required to abstain pursuant to the Younger doctrine. This court affiis in part and reverses in part,

holding that: (1) the Anti-Injunction Act did not

prevent relief; (2) Younger abstention was inappropriate; and (3) NLRA preempted ALRB of jurisdiction over charges.

Cannon v. Edgar

33 F.3d 880 (7th Cir. 1994)

State of Illinois

Union of gravediggers and union leaders

brought suit challenging the Illinois Burial Rights

Act. The union alleged that the Act, which requires

that cemeteries and gravediggers negotiate for

establishment of a pool of workers designated to

perform religiously required interments during

labor disputes, was preempted by NLRA. The District Court granted summary judgment for the

plaintiffs, and defendants appealed. This court

affirms, holding that: (1) exceptions to the Garmon

doctrine were not applicable to save the Burial

Rights Act from preemption, and (2) the Burial

Rights Act was also preempted by NLRA under the

Machinists preemption doctrine.

Alameda Newspapers, Inc. v. City

of Oakland

860 F. Supp. 1428 (N.D. Cal. 1994)

City of Oakland

Newspaper brought suit against the city after

the city council passed a resolution endorsing a

union boycott of the newspaper, and canceling its

advertising and subscriptions. The paper contended

that the resolution was preempted by NLRA. The

court held that the resolution was regulatory in

nature and was therefore preempted by NLRA as

an attempt by the city to interfere in the free play of

economic forces permitted by NLRA in collective

bargaining disputes, and the Norris-LaGuadia Act

(prohibiting punishment by a court for voicing an

opinion regarding labor disputes) applied only to

individuals and not to the city. The court declared

that the Oakland City Council resolution is preempted by NLR4 and thus invalid. It permanently

enjoined the defendants from enforcing the resolution, endorsing the boycott against the plaintiff by

the AFL-CIO, and requesting any citizen to stop

purchasing or advertising in the plaintiffs publications, and ordered the defendants to reinstate any

subscriptions to the plaintiff’s paper that they

directed to be canceled because of the labor dispute.

Washington Service Contractors Coalition

v. District of Columbia

858 F. Supp. 1219 (D.D.C. 1994)

District of Columbia

Private contractors challenged the District of

Columbia’s newly enacted Displaced Workers Protection Act, requiring contractors who provide certain types of services to retain many of their

predecessors’ employees after the contractors have

taken over service contracts. The court entered a

judgment declaring that NLRA preempts the District’s law, and permanently enjoined the defendants from enforcing it.

29 U.S.C. 1001 et seq.

hp/oyee Retirement income

Security Act

Associated Builders and Contractors v.

Perry

869 F. Supp. 1239 (E.D.Mich. 1994)

State of Michigan

Contractors’ association brought an action

against the director of the Michigan Department of

Labor (MDOL) challenging enforcement of the

Michigan Prevailing Wage Act. A construction

union association intervened. The union associaAdvisory Commission on Intergovemmmtal Relations 2 1
tion and the director moved for partial summary

judgment. The court held that the federal Employee

Retirement Income Security Act @USA) preempted the MDOL policy of not crediting fringe benefits paid in excess of the fringe benefit component

of the prevailing wage requirement, and preempted

the apprenticeship requirements under the Act. The

court declared the Act unenforceable as a whole

because it held that valid portions of Act were not

severable from invalid portions.

Connecticut Hospital Association v. Pogue

870 F. Supp. 444 (D.Conn. 1994)

State of Connecticut

Plaintiff Connecticut Hospital Association

sought to enjoin defendants from enforcing a Connecticut statute that abolished the pooling mechanism component of the Uncompensated Cam Pool

Act. The court held that ERISA preempted the

Connecticut statute, and enjoined the defendants

from enforcing the relevant sections of the statute.

New York State Health Maintenance

Organization Conference v. Curiale

1994 WL 482951

State of New York

Plaintiffs sued to enjoin enforcement of New

York’s Pooling Regulation, which establishes a

demographic pooling arrangement whereby the

demographic characteristics of HMOs and insurers

are compared to a regional average. The court held

that ERISA preempted the Pooling Regulation and

granted the injunction.

United States v. City of Toledo

887 F. Supp. 598 (N.D. Ohio 1994)

city of Toledo

EPA and the Ohio EPA brought suit against

the city alleging that discharges of pollutants from

the city’s wastewater treatment plant exceed the

limits imposed by permits issued by the state EPA

and the Clean FGter Act. This court granted plaintiffs’ motion for partial summary judgment, holding that the city’s claims didn’t preclude EPA from

establishing that discharge of pollutants from the

city’s waste water plant exceeded limits imposed

by permits.

42 U.S.C. (no section number)

Housing and Development Act

Louisiana Landmarks Society v. City

of New Orleans

1194 WL 715606 (E.D.La. 1994)

City of New Orleans

Plaintiff Louisiana Landmarks Society

brought suit against the City of New Orleans, seeking a temporary restraining order barring demolition of the Joan of Arc Plaza until it was able to

determine whether demolition was appropriate.

The court held that, because the Plaza was funded

in part by a federal grant under Section 702 (a) of

the Housing and Development Act, the plaintiff was

entitled to a temporary restraining order prohibiting

defendants from disposing of or converting the use

of any of the property of the Plaza unless approved

by the Secretary of Interior. (There is no United

States Code cite available because the relevant sections of the Housing and Development Act have

since been repealed.)

42 U.S.C. 1396

Tit/e X/X, Social Security Act

Indiana Pharmacists Association v. Indiana

Family and Social Services Administration

881 F. Supp. 395 (S.D.lnd. 1994)

State of Indiana

Plaintiffs claimed that federal law prevents

enforcement of Indiana Medicaid regulations that

reduce the amount paid to pharmacies for medicines without regard to the ability of the pharmacy

to collect the copayment. The court held that the

Indiana regulations violated the federal Medicaid

Act, and granted declaratory and injunctive relief,

but deferred ruling on the issues of monetary damages and class certification.

22 Advisory Commission on lntorgovcmmental Relations
Little Rock Family Planning Services v.

Dalton

880 F. Supp. 809 (E.D. Ark. 1994)

Article VI Supremacy Clause

State of Arkansas

Clinics and doctors brought injunctive and

declaratory action on behalf of themselves and of

Arkansas Medicaid-eligible women on the grounds

that an amendment to the Arkansas Constitution

providing that no public funds will be used to pay

for abortion except to save mother’s life violated

the federal Hyde Amendment, which required

states participating in the federal Medicaid program to pay for abortions in cases where pregnancy

is the result of rape or incest, as well as abortions to

save the mother’s life. The court held that the state

constitutional amendment violated federal law and

declared it invalid in its entirety.

Planned Parenthood Affiliates of Michigan

v. Engler

880 F. Supp. 406 (W.D. Mich. 1994)

State of Michigan

Plaintiffs, abortion providers and patients,

filed suit after the Michigan legislature prohibited

all funding of abortions except to save the life of

the mother. The plaintiffs argued that this was preempted by the Hyde Amendment, which permits

funding in cases of rape or incest. The court agreed

that the Hyde Amendment preempted the state law

and granted summary judgment on the merits to the

plaintiffs.

Planned Parenthood v. Wright

1994 WL (N.D.III.)

State of Illinois

Plaintiff Planned Parenthood had received a

temporary restraining order prohibiting Illinois

from enforcing a state law that prohibits Medicaid

payments for abortions that were the result of rape

or incest, on the grounds that the law was preempted by the Hyde Amendment. Upon expiration of

the temporary restraining order, Planned Parenthood sought, and the court granted, a permanent

injunction.

Stephens v. Childers

1984 WL 761468 (E.D. Ky. Nov. 4,1994)

Fourteenth Amendment Due Process

State of Kentucky

Plaintiffs sought declaratory and injunctive

relief under 42 U.S.C. 1983, alleging that the

defendants’ actions in promulgating changes to the

reimbursement methodology for physicians who

participate in the Medicaid program, and an accompanying $50 million reduction in reimbursement

rates, violate the federal Medicaid Act and its

implementing regulations, and the plaintiffs’ right

to due process. In addition, the plaintiffs contend

that unless a preliminary injunction is granted prohibiting the enforcement of the new reimbursement

system, they and their patients will suffer irreparable harm. This court granted the preliminary

injunction, holding that: (1) physician reimbursement rates for services rendered to Medicaid recipients are not proper if the methods and procedures

used in formulating the rates are merely an exercise

to make the best case to support the state’s rates

and the state considers only factors favorable to its

position; (2) defendants’ actions in reducing the

reimbursement levels of physician providers of

Medicaid services were arbitrary and capricious

because they failed to articulate a rational connection between facts found as relevant factors outlined in the federal statute and their decision to

reduce the provider reimbursement rates by $50

million; (3) the state budget cannot be the deciding

factor in rate reductions; (4) defendants failed to

establish a procedurally sound rate-setting methodology that considered the relevant factors outlined

in the equal access provision; (5) defendants violated due process by cutting reimbursement rates

without due notice; and (6) plaintiffs have shown a

substantial likelihood of success on the merits and

irreparable harm, and, therefore, issuance of a preliminary injunction is appropriate.

Visiting Nurse Association

of North Shore, Inc. v. Bullen

866 F. Supp. 1444 (D. Mass. 1994)

Fourteenth Amendment Due Process

State of Massachusetts

Providers of home health services brought

suit challenging rates set by the state under the fedAdvisory Commission on Intcrgovemmmtal Relations 23
era1 Medicaid Act (42 U.S.C. 1396). The court

granted the plaintiffs motion for partial summary

judgment on the claim that the implementation of

the current class rate did not comply with the notice

requirement of the federal Medicuid Act, and granted an injunction stopping implementation until the

state complies with. the regulations. The court

stayed the judgment pending a determination of

how quickly state compliance could be effected.

Bridgeport Coalition for Fair

Representation v. City of Bridgeport

26 F.3d 271 (2nd Cir. 1994)

City of Bridgeport

Coalition for Fair Representation and others

sought and obtained a preliminary injunction prohibiting the City of Bridgeport, Connecticut, from

conducting city elections under a 1993 reapportionment plan, which the District Court held still diluted minority voting power. The Court of Appeals

affirmed, but remanded for modifications.

42 U.S.C. 1973

Voting Rights Act

Marks v. Stinson

19 F.3d 873 (3rd Cir. 1994)

City and County of Philadelphia

Losing state senate candidate, state political

committee, and eight named voters brought action

against the winning candidate, candidate’s campaign, the Board of Elections and various individuals, alleging violations of the Voting Rights Act and

the Civil Rights Act in connection with the election.

The District Court found that certain election offrcials had conspired with the winning candidate to

cause numerous illegally obtained absentee ballots

to be cast and issued a preliminary injunction

enjoining the winning candidate from exercising

any of the authority of the office of state senator

and directing the Board of Elections to certify the

losing candidate. The Court of Appeals vacates in

part, holding that: (1) the District Court did not err

in refusing to abstain and (2) the District Court was

24 Advismy Commission on Inkrgovemmental Relations

not justified in ordering certification of the losing

candidate.

Dillard v. City of Greensboro

865 F. Supp. 773 (M.D. Ala. 1994)

Fourteenth Amendment Equal Protection

City of Greensboro

Black voters filed an action challenging the

election of the city council under the Voting Rights

Act, and requested that their proposed plan be

adopted. This court held that the plaintiffs redistricting plan would be adopted, prohibiting minority vote dilution, and the defendants would be

enjoined from using the current plan in future elections.

Dye v. McKeithen

856 F. Supp. 303 (W.D. La. 1994)

Fourteenth Amendment Equal Protection

Fifteenth Amendment

Vernon Parish School Board

Voters brought an action for injunctive relief,

challenging the validity of the parish school board

reapportionment. The court held that: (1) the school

board resolution adopting the reapportionment plan

violated provisions of Louisiana law providing

authority for reapportionment by not publishing the

plan or satisfying the content requirements of the

statute; (2) population deviation between districts

in the plan exceeded the acceptable levels; and (3)

the exclusion of a census tract containing a military

base violated equal protection principles. The court

also held, however, that the mere existence of a

multimember district and residency requirements

were not sufficient to sustain the claim asserting a

violation of equal protection. The court enjoined

implementation of the plan as violative of the U.S.

Constitution and Louisiana law.

Hays v. State of Louisiana

862 F. Supp. 119 (W.D. La. 1994)

Fourteenth Amendment Equal Protection

State of Louisiana

The state adopted a new redistricting scheme

creating a second majority-minority district. This

court held that: (1) the new districting map reflect-
ed racial gerrymandering; (2) the Voting Rights Act _

. _ -..

does not compel such creation of a second majority-minority district; and (3) the creation wasn’t

necessary to remedy discrimination. Because the

state could not justify the measures, the court held

that efforts to create a second minority-majority

district violated the plaintiffs’ equal protection

rights, and declared it null and void. The court then

devised a congressional districting plan of its own.

scheme was malapportioned and violated the Fourteenth Amendment. The court declared that the

new districting plan was constitutional and enjoined

the defendants from using the current districting

system for future elections and from failing to

implement the new scheme.

Johnson v. Desoto County Board of

Commissioners

888 F. Supp. 1376 (M.D. Fla. 1994)

Helen Washington v. Arcadia City Council

First Amendment Establishment

Thirteenth Amendment

County Board of Commissioners

City Council of Arcadia

.’

African-Americans brought an action against

the county board of commissioners and city council

alleging violations of the Voting Rights Act. This

court held that the county would be enjoined from

using the at-large election method for school board

members for future elections, but not for election of

county commissioners.

Johnson v. Miller

864 F. Supp. 1354 (S.D. Ga. 1994)

Fourteenth Amendment Equal Protection

State of Georgia

Suit was brought challenging the constitutionally of congressional districts in Georgia, seeking

injunction against the further use of the districting

plan in elections. This court granted the injunction.

It held that the plan was unconstitutional because it

had been influenced by racial gerrymandering, and

that proportional representation was not a compelling state interest justifying the plan.

Straw v. Barbour County

864 F. Supp. 1148 (M.D. Ala. 1994)

Barbour County

Plaintiffs brought an action challenging the

districting scheme for the election of the county

commission. This court entered judgment for the

plaintiffs, holding that the current districting

Vera v. Richards

861 F. Supp. 1304 (S.D. Tex. 1994)

Fourteenth Amendment Equal Protection

Fifteenth Amendment

State of Texas

Voters brought suit alleging that the state

redistricting plan violated the Voting Rights Act and

the U.S. Constitution by being racially segregated.

They sought declaratory and injunctive relief. The

court held that the districts were so misshapen that

racial segregation was the only possible explanation for the location of boundaries. The court

declared the plan unconstitutional.

White v. State of Alabama

867 F. Supp. 1519 (M.D. Ala. 1994)

Fourteenth Amendment Equal Protection

State of Alabama

Black voters brought an action under the Voting Rights Act challenging the system of electing

Alabama appellate judges. The plaintiffs and

defendants submitted a final judgment for

approval, and the court approved and adopted the

proposed judgment, holding that the settlement was

fair and did not violate equal protection or the Voting Rights Act. The final judgment ordered the governor to appoint minority preferred candidates to a

limited number of appellate judgeships.

City of Ladue v. Gilleo

114 S. Ct 2038 (1994)

First Amendment Speech/Press

City of Ladue, Missouri

Plaintiff resident sued the city for a permanent injunction to enjoin the city from enforcing

the regulation preventing her from displaying a

sign reading “For Peace in the Gulf’ in the window

of her home but allowing ten exemptions to the

regulation. The city contended that it had an interAdvisory Commission on htergovcmmmtalRehtions 25
est in keeping the city free of visual clutter. The affirms, holding that: (1) the school district had not

district co& granted the plaintiffs motion for

summary judgment against the city, holding that

the ordinance violated the First Amendment protection of free speech. The Court of Appeals

affirmed and modified. The Supreme Court

affirmed the Court of Appeals, holding that the

city’s regulation violated the plaintiff’s free speech

rights.

42 U.S.C. 1983

Section 1983

Cooper v. YcBeath

11 F.3d 647 (5th Cir. 1994)

Dormant Interstate Commerce

State of Texas

An action was brought challenging the constitutionality of provisions of the Texas alcoholic beverage code imposing residency requirements on

permit holders. The District Court struck down the

provisions, and defendants appealed. The Court of

Appeals afftrms, holding that: (1) amendments to

the alcoholic beverage code did not render the case

moot; (2) plaintiffs who had the option to purchase

a majority interest in permit holder had standing;

and (3) residency requirements violate the Commerce Clause.

given notice required by statute; (2) Younger

abstention was not required, (3) the teacher had not

waived the right to have claims heard in federal

district court; and (4) award of attorney’s fees was

proper.

Day v. Holahan

34 F.3d 1356 (8th Cir. 1994)

First Amendment Speech/Press

State of Minnesofa

Political candidates, political funds, political

contributors, and a nonprofit corporation brought

constitutional challenges to Minnesota’s campaign

finance reform laws. The District Court struck

some provisions and upheld others, and appeal was

taken. This court affirms in part and reverses in

part, holding that: (1) the statute providing an

increase in a candidate’s expenditure limit and public subsidies based on amounts of independent

expenditures violated the first amendment rights of

those making independent expenditures; (2) the

statute denying exemption from prohibition against

independent expenditures by corporations was

unconstitutional as applied to the nonprofit corporation; and (3) the $100 limit on contributions to

and from political committees was so low as to

infringe on citizens’ fast amendment rights.

Cullen v. Fliegner

18 F.3d 96 (2nd Cir. 1994)

First Amendment Speech/Press

Tuxedo, New York, Union Free

School District

Teacher brought an action challenging the

school district’s method of enforcing the statutory

prohibition of electioneering within 100 feet of a

polling place during a school board election. The

school district obligated the inspector of elections

to place distance markers containing notice of the

electioneering prohibition at a distance of 100 feet

from the polling place. The District Court permanently enjoined disciplinary proceeding, and the

school district appealed. The Court of Appeals

Harris v. Joint School District No. 241

41 F.3d 447 (9th Cir. 1994)

First Amendment Establishment

City of Grangeville,ldaho

Students and parents of students brought suit

challenging the constitutionality of prayer during a

public high school graduation ceremony. The District Court held that the prayers did not violate the

Establishment Clause and declined to rule on the

state law issues. The Court of Appeals affirmed in

part and reversed in part, holding that: (1) declining

to decide whether school prayers violated the Idaho

constitution was not an abuse of discretion; (2)

school prayer violated the First Amendment establishment clause; and (3) prohibiting prayer did not

violate speech or free exercise rights of students

desiring prayer.

26 Advisory Commission on htergovemmental Relations
Loschiavo v. City of Dearborn

33 F.3d 646 (6th Cir. 1994)

First Amendment Speech/Press

Fourteenth Amendment Due Process

City of Dearborn, Michigan

Homeowners who installed a receive-only

satellite dish antenna sued the city, claiming that a

city zoning ordinance forbidding antennas exceeding size limitations violated their rights under the

First and Fourteenth Amendments and that the

ordinance was preempted by a Federal Communications Commission (FCC) regulation. The District

Court granted summary judgment for the city on

the claims that plaintiffs were denied constitutional

rights, but held that the FCC regulation preempted

the city ordinance and enjoined enforcement. The

Court of Appeals reversed and affiied the entry

of the permanent injunction, holding that: (1) FCC

regulation prohibiting enforcement of local zoning

ordinances that unduly interfered with installation

of individual satellite antennas created a private

right of action under 42 U.S.C. 1983, and (2) permanent injunction precluding city enforcement of

this zoning ordinance was proper.

Louisiana Debating and Literary

Association v. City of New Orleans

42 F.3d 1463 (5th Cir. 1995)

First Amendment Speech/Press

City of New Orleans

Private clubs sued the city, challenging the

ordinance prohibiting discrimination in places of

public accommodation as applied. The District

Court declared the ordinance unconstitutional. The

Court of Appeals affirmed, holding that: (1) the

federal court was not required to abstain to allow

the discrimination claim against the clubs to proceed as provided under the ordinance; (2) the clubs

were social in nature, as opposed to having a business purpose, and were entitled to the fullest protection of the associational rights under the First

Amendment; and (3) ordinance procedures governing administrative adjudication of claims, although

Nichols v. Nix

1994 WL 20653 (6th Cir. Jan. 26,1994)

First Amendment Speech/Press

State of Iowa

Prisoner brought an action against a prison

maihoom clerk for violating his First Amendment

rights by denying him access to three publications

from the Church of Jesus Christ Christian. The District Court granted injunctive relief in favor of the

prisoner, and the mail clerk appealed, arguing that

there was no evidence of any conduct by him on

which to establish liability. The Court of Appeals

aflirmed the grant of injunctive relief, holding that

the evidence showed that the defendant had signed

the rejection notice for the magazines and could

therefore be held liable.

Triplet-t Grille, Inc. v. City of Akron

40 F.3d 129 (6th Cir. 1994)

First Amendment Speech/Press

City of Akron

Operator of the club brought an action against

the City of Akron, challenging the constitutionality

of a public indecency ordinance. The District Court

held that the ordinance was substantially overbroad

and violated the First Amendment, and the city

appealed. The Court of Appeals affumed, holding

that: (1) the indecency ordinance did not violate the

First Amendment as applied to prohibit nude dancing at the club, despite the claim that the ordinance

was not enacted to combat the secondary effects of

adult entertainment, but (2) the ordinance, facially

banning all nudity in public places, was unconstitutional under the First Amendment’s overbreadth

doctrine, as the city had failed to demonstrate a link

between nudity in nonadult entertainment and secondary effects.

Washegesic v. Bloomingdale Public

Schools

33 F.3d 679 (6th Cir. 1994)

First Amendment Establishment

they furthered compelling state interest in eradicating discrimination, were not the least intrusive City of Bloomingdale

means of accomplishing the objective because they Student brought an action to compel the

impermissibly impinged on the privacy rights of school district to remove a portrait of Jesus Christ

members. from display in a hallway. The District Court

Advisory Commission on III-&al Rclatiam 27
ordered the removal of the portrait, and the school

district appealed. The Court of Appeals affirmed,

holding that the (1) the student’s graduation from

school did not render the action moot, and (2) display of the portrait violated the Establishment

Clause.

Yniguez v. Arizonans for Official English

42 F.3d 1217 (9th Cir. 1994)

First Amendment Speech/Press

Fourteenth Amendment Due Process

State of Arizona

State employee filed an action against the

state, governor, attorney general, state senator, and

director of the Arizona Department of Administration seeking an injunction against state enforcement of the article of the Arizona Constitution

entitled “English as the Official Language,” and a

declaration that the article violated the First and

Fourteenth Amendments of the constitution, as

well as the federal civil rights laws. The District

Court found that the article was facially overbroad

in violation of the First Amendment and granted

declaratory relief. The sponsor of the article

appealed the declaratory judgment, and the

employee cross-appealed, requesting nominal damages. The Court of Appeals affirmed in part and

reversed in part, holding that: (1) the article was

unconstitutionally overbroad and (2) the employee

was entitled to nominal damages.

Alpine Christian Fellowship v. Pitkin

County

870 F. Supp. 991 (D.Coio. 1994)

First Amendment Free Exercise

Fourteenth Amendment Privileges

and immunities

Pitkin County

Church brought a civil rights action seeking

declaratory and injunctive relief, challenging the

county’s denial of a special permit allowing the

church to operate a religious school in the church

building. This court held that the county’s denial of

a special permit that would allow the church to

operate the religious school in a residential neighborhood not zoned for schools violated the

church’s First Amendment right to free exercise of

religion. The plaintiffs claim for the declaratory

judgment was granted, as well as a permanent

injunction restraining the county from enforcing

the special use requirement of its land use code to

preclude this school use of the church building.

American Constitutional Law

Foundation, inc. v. Meyer

870 F. Supp. 995 (DCoio. 1994)

First Amendment Speech/Press

Fourteenth Amendment Equal Protection

State of Colorado

Public interest organization and Colorado residents brought an action for declaratory and injunctive relief from restrictions on circulation and

submission of petitions to propose state laws and

constitutional amendments. The court held that: (1)

the provision compelling circulators to wear identification badges was an unconstitutional burden on

political liberty; (2) requiring circulators to be registered voters eligible to vote on the measure which

is the subject of the petition was valid, (3) requiring

monthly reports on paid circulators was an invalid

restriction on core political speech; (4) requiring

petitions to be circulated within a six-month period

was not an undue restriction; and (5) the state had

compelling need for names and addresses of circulators in the affidavit attesting to the validity of signatures. The court entered a judgment declaring

that the specified provisions of the Colorado

Revised Statutes were invalid and permanently

enjoining the Colorado Secretary of State from

enforcing those provisions.

AyersSchaffner v. DiStefano

860 F. Supp. 918 (D.R.I. 1994)

First Amendment Speech/Press

Fourteenth Amendment Equal Protection

Rhode Island Board of Elections

Registered voters who did not vote in the first

primary election for school committee, but wished

to vote in a new election after the first election was

invalidated, brought suit against members of the

board of elections. The judge held that limiting voters to those who voted in the first election violated

the plaintiffs’ rights. The court permanently

enjoined the defendants from limiting the primary

28 AdvisotyCommksion on Intergov~ental Relations
election to those voters who voted in the June 7 pri- - - mary election, and requited the defendants to permit all duly registered voters to vote in the October

primaries.

the board violated the doctrine of separation of

powers and the Appointments Clause.

Illinois Sporting Goods Association v.

County of Cook

846 F. Supp. 683 (N.D.III. 1994)

Fourteenth Amendment Due Process

Central Avenue Enterprises v. City

of Las Cruces

845 F. Supp. 1499 (N.D.M. 1994)

First Amendment Speech/Press

Fourteenth Amendment Due Process

city of Las truces

Action was brought challenging an ordiice

requiring a special use permit to operate an adult

bookstore or adult amusement establishment. On

the plaintiffs motion for preliminary injunction,

the court held that the ordinance, which described

an adult bookstore or video store as providing

materials relating to “specified sexual activities or

specified anatomical areas” without defining these

tettns, was impermissibly vague and violated both

first amendment and due process guarantees.

Goluba v. School District of Ripon

874 F. Supp. 242 (E.D.Wis. 1994)

First Amendment Establishment

State of Wisconsin

Student sought and obtained an injunction

prohibiting school authorities from including religious prayer in school commencement proceedings. After school officials failed to stop students

from praying before the commencement proceedings, the student moved for a finding of civil contempt. The court held that school officials’ failure

to try to stop student prayer did not violate the

injunction prohibiting offtcials from knowingly

allowing student prayer.

Hechlnger v. Metropolitan Washington

Airports Authority

846 F. Supp. 902 (D.D.C. 1994)

Article II

District of Columbia

Citizens group brought an action challenging

constitutionality of the Metropolitan Washington

Airports Authority’s board of review. Parties crossmoved for summary judgment. Tbe court held that

county of Cook

Gun shop operators filed a declaratory action

to challenge a county ordinance prohibiting operation of gun shops within one-half mile of a park or

school, and to request preliminary injunctive relief.

The court granted the preliminary injunction

Ingebretsen v. Jackson Public School

District

864 F. Supp. 1473 (S.D. Miss. 1994)

First Amendment Establishment

Jackson Public School District

State of Mississippi

Students and parents brought action against

the school district, school officials, and state attorney general, challenging a state statute that permitted public school students to initiate nonsectarian

prayer at school events as violative of the Establishment Clause. This court enjoined the enforcement of all parts of tbe statut& except the provision

allowing nonsectarian voluntary prayer at high

school commencement ceremonies.

International Caucus v. City of

Montgomery

856 F. Supp. 1552 (M.D. Ala. 1994)

First Amendment Speech/Press

City of Montgomery

A political organization challenged a ban on

the placement of tables on public sidewalks for the

distribution of literature. The court held that

although there was a significant governmental

interest in protecting the safety and convenience of

the people using the sidewalk, the ban was overbroad because it suppressed a great quantity of

speech that did not cause problems. The court

declared the ban unconstitutional.
Johnson v. County of Los Angeles

Fire Department

865 F. Supp. 1430 (C.D. Cal. 1994)

First Amendment Speech/Press

Fourteenth Amendment Due Process

County of Los Angeles

Captain in the county fire department sued the

department, claiming that the department’s sexual

harassment policy violated his right to free speech,

and seeking a declaratory judgment that the policy

was unconstitutional and a permanent injunction

preventing enforcement of the policy. The court

held that the policy was invalid as applied to the

plaintiffs private reading of a pornographic magazine, and ordered the defendant to not ban such

activity.

Johnston-Loehner v. O’Brien

859 F. Supp. 575 (M.D.Fla. 1994)

First Amendment Speech/Press

Fourteenth Amendment Due Process

State of Florida

Suit was brought on behalf of an elementary

school student, challenging the constitutionality of

a school policy requiring prior approval by the

superintendent before distribution of non-school

materials. The court held that the restriction was an

impermissible content-based prior restraint on

speech in violation of the First and Fourteenth

Amendments. The court enjoined the defendants

from enforcing that portion of the school policy

requiring that students obtain the review and

approval of school offtcials before distributing

written material, and held that the student was entitled to attorney’s fees.

Lee v. State of Oregon

869 F. Supp. 1491 (D.Or. 1994)

Fourteenth Amendment Equal Protection

Fourteenth Amendment Due Process

State of Oregon

Physicians, terminally ill patients, and residential care facilities sued the state, challenging the

constitutionality of Measure 16, passed by Oregon

voters, which authorizes physician-assisted suicide

for the terminally ill. Plaintiffs moved for preliminary injunction. This court held that: (1) the plaintiff had standing; (2) serious questions were presented as to whether Measure 16 violated the

plaintiffs freedom of association, freedom of religion, due process, and equal protection rights; and

(3) balance of hardships favored the plaintiffs. This

court granted a preliminary injunction enjoining

defendant Attorney General and District Attorney

from recognizing the exception from the homicide

laws created by Measure 16. The court also (1) permanently enjoined members of the state board of

medical examiners from recognizing the exception

from the standard of professional conduct created

by Measure 16; (2) permanently enjoined defendant Oregon Health Sciences University Hospital

from allowing assisted suicides; and (3) preliminarily enjoined defendants from bringing any suit

.‘based on Measure 16 against any plaintiff for refusing to assist or advise a patient on the basis of a

religious objection.

Limit v. Maleng

847 F. Supp. 1138 (W.D.Wash. 1994)

First Amendment Speech/Press

King county

Political action group and its president

brought an action challenging the constitutionality

of the Washington statute criminalizing payment of

signature gatherers on a per signature basis for initiative and referendum petitions. The group and

president moved for summary judgment. The court

held that the statute was an unconstitutional

infringement on freedom of political speech.

McCormack v. Township of Clinton

872 F. Supp. 1320 (D.N.J. 1994)

First Amendment Speech/Press

Township of Clinton

Plaintiff challenged a township ordinance that

restricted the time range for placement of political

signs. On motion for preliminary injunctive relief,

the court held that: (1) the plaintiff established the

likelihood of success on merit of the claim that the

ordinance violated the First Amendment, as the

ordinance was not content neutral and was not narrowly tailored to further the township’s goals; (2)

~ the plaintiff established irreparable harm; (3) the

30 Advisory Commission an htergovcmmentai Relaticns
balance of equities and public interest weighed in

the plaintiff’s favor; and (4) the waiver of security

bond for the plaintiff for a preliminary injunction

was appropriate. This court ordered the defendant

preliminarily restrained from prohibiting the posting of political signs 10 days before an election.

National Collegiate Athletic Association v.

RObMtS

1994 WL 750585 (N.D. Fla. Nov. 8,1994)

Commerce Clause

First Amendment Speech/Press

State of Florida

Plaintiffs brought this action challenging a

state statute that provides that a collegiate athletic

association may not impose a penalty on any institution of higher education operating in the state

unless the association first provides the procedural

due process protections required by the statute. The

plaintiff alleges the statute violates the Commerce

Clause, the Contract Clause, and the First Amendment. This court grants the plaintiffs’ motion for a

permanent injunction, holding that the statute violates the commerce clause and the contract clause

in that universities choosing to participate in

NCAA sports would be treated differently from

state to state.

National Association of Social Workers v.

Hatwood

860 F. Supp. 943 (D.R.I. 1994)

First Amendment Speech/Press

Rhode Island House of Representatives

Organizations brought action questioning the

constitutionality of the rule of the Rhode Island

House of Representatives as interpreted and

enforced so as to allow governmental lobbyists

onto the floor of the House while the House was in

session while denying lobbyists for private organizations the same access. The court held that

enforcement of the rule was an improper regulation

of time, place, and manner of expressive activity in

that private lobbyists lacked ample alternative

channels for communication, but that the remedy

was more properly for the House of Representatives than the court.

O’Keefe v. Murphy

860 F. Supp. 748 (E.D. Wash. 1994)

First Amendment Speech/Press

Fourth Amendment Search/Seizure

Washington State Penitentiary

An inmate filed suit arguing that mail sent to

grievance authorities was treated as regular mail

instead of legal mail, which was protected. The

court held that the mail was protected. The court

later addressed whether a mail room sign left up

after judgment was violative of the injunction

enjoining the defendants from reading prisoners’

grievances to government agencies except in the

presence of those prisoners. It found the sign to be

a violation, and granted sanctions. The court

ordered the defendants either to remove mail room

signs containing the text of the policy concerning

legal mail, or to amend mail room signs by stating

that grievance mail will be treated as legal mail.

The declaratory and permanent injunctions granted

in the order apply also to incoming responses to

inmate grievance mail from government agencies.

One World One Family Now, Inc. v. State of

Nevada

860 F. Supp. 1457 (D. Nev. 1994)

First Amendment Speech/Press

State of Nevada

Nevada Department of Transportation

Charitable nonprofit organization brought a

claim seeking a preliminary injunction to prevent

the Nevada Department of Transportation from

enforcing a state licensing scheme with respect to

organizations’ placement of portable tables, chairs,

umbrellas, boxes, and signs on public sidewalks in

front of hotels and casinos located on “the Strip” in

order to sell their message-bearing T-shirts. The

court held that the organizations succeeded in

demonstrating that there was a strong likelihood of

success with regard to portable tables (and thus

merited a preliminary injunction) but did not do so

with regard to the chairs, umbrellas, and boxes. The

court enjoined the defendants from enforcing the

state statute against the plaintiffs by requiring the

plaintiffs to obtain licenses for portable tables and

signs, and from fming plaintiffs.

Advisory Commission on Intergovernmental Relations 3 1
Planned Parenthood, Sioux Falls Clinic v.

Miller

880 F. Supp. 1409 (D.S.D. 1994)

Fourteenth Amendment Due Process

of “vulgar” speech was constitutional, but the prohibition of speech which “harasses”~ violated the

First Amendment.

State of South Dakota

Action was brought challenging South Dakota statutes regulating abortions. The court held that:

(1) the parental notification provision that did not

include a bypass other than for abused and neglected minors was unconstitutional; (2) the requirement that parents be given 4%hour notice of

minor’s intent to have an abortion was valid; (3)

the civil penalty statute providing for liability damages against persons who performed or attempted

to perform abortions without complying with statutory requirements was unconstitutional; (4) the

criminal penalty statute that included no state-ofmind requirement was unconstitutional; and (5) the

informed consent statute’s failure to provide an

exception for rape victims or women on whom certain information would have adverse effect did not

render the statute unconstitutional.

Ruff v. City of Leavenworth, Kansas

858 F. Supp. 1646 (D.Kan. 1994)

First Amendment Speech/Press

Fourteenth Amendment Due Process

City of Leavenwotth

Members of the police department brought an

action against the city and police chief alleging that

personnel policies, which prohibited employees

from engaging in political activity or activities with

respect to city elections, violated the First Amendment. This court entered judgment for the plaintiffs

on grounds that the policies were unconstitutionally’overbroad and vague, and enjoined the city from

enforcing those policies. The court ordered the city

to rescind the discipline imposed on the officers

and held that the plaintiffs may recover attorney’s

fees and costs.

Simmons v. Hooks

Pogany v. Yedeiros

847 F. Supp. 10 (D.R.I. 1994)

Fourteenth Amendment Equal Protection

City of Pawtucket

State of Rhode Island

843 F. Supp. 1296 (E.D. Ark. 1994)

Fourteenth Amendment Equal Protection

Board of Education of the Augusta School

District No. 10

Public employee brought an action seeking a

declaration that the state election statute was unconstitutional. The court held that the statute prohibiting

public employees from serving as election officials,

but exempting public school teachers and residents

of particular towns, violated equal protection.

Pyle by and through Pyle v. So. Hadley

School Committee

861 F. Supp. 157 (D. Mass. 1994)

First Amendment Speech/Press

Simmons, a black parent of three children,

brought suit against the school district and its officials, alleging race discrimination. The court held

that the district’s use of ability grouping and placement for special education was unconstitutional. (It

held that intraclass grouping was not segregative

and that special education and gifted programs did

not violate children’s rights.) The court granted

) nominal damages ($3) to Simmons. The court

ordered defendants to stop the ability grouping by

class for the 1994-95 school year.

South Hadley School Committee

Defendant school prohibited plaintiff students

from wearing certain T-shirts as violating the

school’s dress code. The students brought an action

claiming that the dress code, which prohibited

“vulgar” dress and dress which “harasses,” was

unconstitutional. The court held that the regulation

United Food and Commercial Workers v.

City of Valdosta

861 F. Supp. 1570 (M.D. Ga. 1994)

First Amendment Speech/Press

City of Valdosta

Local unions that had attempted to picket

brought a declaratory action against the city and the

32 Advisory Commission on lntergovemmentai Relations
chief of police challenging the constitutionality of a

city code limiting public demonstrations. The court

held that restrictions on time, place, and manner

were overbroad and unconstitutional. Additionally,

provisions prohibiting picketing and distributing

handbills in streets, alleys, roads, highways, driveways, or other public traffic places were unconstitutional, as was a ban on parades in all residential

zones and the prohibition on judicial review of the

permit process. However, the city’s parade permit

fee scheme did not violate the First Amendment,

nor did a restriction on dangerous instruments.

Warms v. Springfield Township

1994 WL 613660 (E.D. Pa. Nov. 1,1994)

First Amendment Speech/Press

Springfield Township

Plaintiffs brought this action challenging a

city ordinance that prohibited political opinion

signs except for the 15 days preceding an election.

The plaintiffs sought a preliminary injunction. This

court grants the injunction, holding that: (1) plaintiffs are entitled to a preliminary injunction because

they have demonstrated a likelihood of success on

the merits and likelihood of irreparable harm; (2)

the ordinance is a content-based regulation on

speech because it distinguishes between permissible and impermissible signs based on substance;

and (3) content-based regulations must be narrowly

tailored to fit a compelling governmental interest,

and aesthetics and trafic safety are not compelling

interests.

Warner v. Orange County Department

of Probation

870 F. Supp. 69 (S.D.N.Y. 1994)

First Amendment Establishment

Orange County

Motorist who had been convicted of an alcohol-related driving offense brought an action

against the county department of probation challenging the constitutionality of a probation condition requiring the motorist to attend Alcoholics

Anonymous meetings. The court held that the

department violated the Establishment Clause by

requiring Alcoholics Anonymous meeting attendance, and granted the motorist nominal damages.

Campos v. Coughlin

854 F. Supp. 194 (S.D.N.Y. 1994)

First Amendment Free Exercise

New York State Department of Correctional

Services

Plaintiff Campos, an inmate at Sing Sing Correctional Facility, practiced a religion known as

Santeria, which required the wearing of Orisha

beads. Campos was permitted to possess and wear

the beads until 1993, when the Department of Correctional Services prohibited the wearing of the

beads. Campos sued under the First Amendment

and the Religious Freedom Restoration Act, seeking injunctive and monetary relief for constitutional and statutory violations. The court held that there

was enough evidence to conclude there was

irreparable harm to Campos in not allowing him to

wear the beads, and granted a preliminary injunction.

Lawson v. Dugger

844 F. Supp. 1538 (S.D. Fla. 1994)

Fourteenth Amendment Due Process

First Amendment Speech/Press

State of FIofida

Inmates brought a class action challenging the

refusal of prison officials to permit inmates of the

Hebrew Israelite faith to receive religious literature

of that faith as violating their First Amendment,

equal protection, due process rights and RFRA.

This court, on remand, held that RFRA and the

First Amendment were violated, and enjoined the

defendants from taking further action in violation

of the plaintiffs’ rights to freely exercise their religion during incarceration.

Rodriguez v. Coughlin

No. 94 CIV. 2290,1994 WL 174298 (S.D.N.Y.

May 4,1994)

NY State Department of Corrections

Greenhaven Correctional Facility

Inmate plaintiffs alleged that the defendants

violated their rights by not allowing them to display their religious beads when worn. Plaintiffs

moved for preliminary injunction to enjoin defendants from preventing plaintiffs from displaying

Advisory Gnnmissicm on Ma-govanm~ntal Relations 33
the beads. The court granted the preliminary

injunction, holding that the defendants did not

prove that not allowing beads was the best way to

prevent gang activity or other violence.

42 U.S.C. 2000bb

Religious Freedom Restoration Act

Western Presbyterian Church v. Board of

Zoning Adjustment

849 F. Supp. 77 (D.D.C. 1994)

First Amendment Free Exercise

Fifth Amendment Due Process

Board of Zoning Adjustment of the

District of Columbia

Church brought suit to enjoin the board from

requiring the church to obtain a zoning variance to

*operate a homeless feeding program. The plaintiff

moved for a preliminary injunction. The court held

that the plaintiff showed high likelihood of success

on the merits, and granted the injunction.

Western Presbyterian Church v. Board of

Zoning Adjustment of the

District of Columbia

882 F. Supp. 538 (D.D.C. 1994)

First Amendment Speech/Press

District of Columbia

Church brought an action against the board

seeking to enjoin enforcement of zoning regulations prohibiting the church from feeding homeless

persons on its premises. The court held that the ’

defendant’s actions substantially burden their right

to free exercise of religion in violation of the First

Amendment and RFRA. The court permanently

enjoined the defendants from preventing the church

from feeding the homeless on their premises.

Hopwood v. State of Texas

861 F. Supp. 551 (W.D. Tex. 1994)

Fourteenth Amendment Equal Protection

University of Texas Board of Regents

Four white applicants to the University of

Texas Law School filed suit, alleging that the affumative action admissions program discriminated

against white applicants. The court held that the

program was not sufficiently narrowly tailored to

achieve the governmental interest of remedying

past discrimination, and therefore violated the

Fourteenth Amendment. The court also found,

however, that sufficient reason existed to deny the

plaintiffs admission to the Law School even in the

absence of the affirmative action program; therefore, the only remedy available to the plaintiff was

nominal damages and the permission to reapply for

admission.

Bessard v. California Community Colleges

867 F. Supp. 1454 (E.D. Cal. 1994)

state of California

.’ Jehovah’s Witness plaintiffs brought an action

under RFRA against the community college district

and the state challenging the loyalty oath that was

required as a condition precedent to consideration

for employment at the college. This court held that

the loyalty oath violated RFRA, and entered an

injunction prohibiting its use.

Legault v. Arusso

842 F. Supp. 1479 (D.N.H. 1994)

City of Johnston

Johnston Fire Department

Legault, a rejected female applicant for a

position as a Johnston fire fighter, brought suit

against the city and the fire department, challenging the physical ability tests used to select recruits.

Legault moved for a preliminary injunction. The

court held that: (1) Legault showed likelihood of

success on the merits of a claim of disparate impact

and (2) loss of experience if not hired immediately

was irreparable harm that supported the preliminary injunction. The court ordered defendants to

hire the plaintiff immediately, pending a determination on the merits, and enjoined further use of the

defendant’s agility and obstacle course tests and

eligibility lists.

34 Advisory Commission on lntergowmmental Relations
42 U.S.C. 3601 etseq.

Fair Housing Act

City of Edmonds v. Washington State

Building Code Council

18 F.3d 802 (9th Cir. 1994)

city of Edmonds

Washington State

City filed a declaratory judgment action,

seeking a ruling that the single-family residential

zoning provision limiting the maximum number of

unrelated occupants of a single-family residence

did not violate the Fair Housing Act (FHA) prohibition against handicap discrimination. The federal

government filed an action alleging that the city’s

failure to make reasonable accommodation for a

group home of more than five unrelated recovering

alcoholics and drug addicts violated the Act. After

consolidation of the actions, the District Court

granted summary judgment for the city, ruling that

the zoning provision was exempted from requirements of the Act because it was a restriction

regarding the maximum number of occupants permitted to occupy a dwelling. The group home and

the government appealed. The Court of Appeals

reversed, holding that a maximum occupancy

exemption of FHA exempts only occupancy

restrictions that apply to all occupants, whether

related or not, and thus that the ordinance was not

exempted from prohibition against handicap discrimination.

Oxford House-C v. City of St. Louis

843 F. Supp. 1556 (E.D. MO. 1994)

City of St. Louis

Home for recovering alcoholics and drug

addicts brought suit against the City of St. Louis,

seeking an injunction and declaratory judgment to

prevent the city from enforcing zoning ordinances

that would prevent the plaintiff from operating

homes. The court held that: (1) the city’s ordinance

allowing at most eight unrelated handicapped persons within a single-family dwelling violated the

Fair Housing Act and the Rehabilitation Act; (2)

Oxford House was not entitled to a broad injunction as to all zoning ordinances; and (3) Oxford

House did not have a private right of action under

the Housing and Community DeveIopment Act. The

court entered judgment for the plaintiff and permanently enjoined the defendant from enforcing its

zoning ordinance to prevent the plaintiff from operating with 10 or 12 unrelated handicapped residents

at its current location.

Michigan Protection and Advocacy Service

v. Miller

849 F. Supp. 1202 (W.D. Mich. 1994)

Department of Social Services

Corporation that provides advocacy for developmentally disabled persons brought suit against

the Michigan Department of Social Services, seeking a declaration that its director violated federal

law. The corporation moved for summary judgment. The court held that: (1) the corporation had a

right to sue under the Developmental Disabilities

Assistance and Bill of Rights Act and the Protection

and Advocacy for Mentally Ill Individuals Act; (2)

the acts gave the corporation authority to access

state facilities and review records; and (3) the corporation’s right to access state facilities was not

reduced by the fact that state courts oversaw state

facilities. This court granted the plaintiffs motion

for summary judgment and referred the case to a

special master for determination of the appropriate

level of access to which the plaintiff is entitled.

47 U.S.C. 521

Cable Television Consumer Protection

And Competition Act of f992

Cablevision Systems Corporation v. Town

of East Hampton

862 F. Supp. 875 (E.D.N.Y. 1994)

Town of East Hampton

Cable television company brought an action

for declaratory relief against the town and injunctive relief against the town and town board, challenging the town’s revocation of the plaintiff’s

cable television franchise and the town’s denial of

the plaintifPs request for modification of the franchise agreement to bring it into compliance with

federal law. This court granted the plaintiffs sumAdvisory Commission on Intergovernmental Rehtica 35
mary judgment motion, holding that the Cable TV

Consumer Protection and Competition Act preempted the requirement in the franchise agreement

that the entry level tier of cable services requires

more than a minimum number of stations required

by the Act. The court granted declaratory relief to

the plaintiffs and enjoined the defendants from taking further steps to implement their decision to

revoke the franchise.

Chlorine Institute v. California Highway

Patrol

29 F.3d 495 (9th Cit. 1994)

State of California

Plaintiffs, manufacturers and shippers of

chlorine and oleum, brought suit against the California Highway Patrol (CHP), seeking a declaratory judgment and injunctive relief against CHP

regulations requiring that shipments of certain hazardous materials on California highways be’accompanied by escort vehicles and prescribing

requirements regarding those vehicles. The District

Court granted summary judgment for the plaintiffs.

The Court of Appeals afiirmed on the grounds that

CHP regulations were preempted by the HUZ&OM

Materials Transportation Uniform Safety Act.

49 U.S.C. 11503

Railroad Revitalization and Regulatory

Reform Act

ACF Industries, Inc. v. California State

Board of Equalization

42 F.3d 1288 (9th Cir. 1994)

State of California

Independent car lines brought an action pursuant to the Railroad Revitalization and Regulatory

Reform Act, challenging California’s collection of

,ad valorem property taxes for specialty railroad

‘cars that independent car lines leased to shippers.

The District Court granted preliminary injunctive

relief, and thereafter denied motions to dismiss, for

summary judgment, and to mod@ the preliminary

injunction. This court aBirms in part and reverses

in part, holding that the provision of the Railroad

Revitahation and Regulatory Reform Act prohibiting states from assessing ‘“rail transportation property” at a higher assessment ratio than other

commercial industrial property applied to the specialty railroad cars at issue.
q

The Section 304

Database: Federal

Law Cases to which

State, Local, or

Tribal Governments

are Patties

The first- and second-tier groups together contain

fewer than 200 federal court opinions; the database

on which this report is based contains information

on more than 3,500 opinions. A far broader set of

criteria is used for determining whether an opinion

should be included in the Section 304 Database.

Although the first- and second-tier groups may be

at the core of Section 304, many opinions that do

not fall within those groups are relevant to Section

304 issues. The larger database is a powerful

research tool for discovering other groups of cases

that bear on particular mandates issues and provides flexibility for this and future reports. The criteria for inclusion in the Section 304 Database are:

(1) Include cases at all levels of the federal

courts. Strictly speaking, usually only federal

: District Courts “require” governments to do

anything; federal Courts of Appeals and the

Supreme Court only affirm or reverse the

judgments of lower courts. The Section 304

Database, however, includes opinions at all

federal court levels.

(2) Include cases concerning alleged violations

of the U.S. Constitution as well as federal

statutes and regulations. Section 304 refers

specifically to compliance “with Federal

statutes or regulations.” Read narrowly, this

would exclude cases in which a plaintiff

claims that a state, local, or tribal government

has violated the U.S. Constitution. Such an

interpretation would exclude the vast majority

of cases filed under the habeas corpus statute

(28 U.S.C. 2254) and the Civil Rights Acts,

particularly 42 U.S.C. 1983. In fact, constitutional litigation under these two statutes

accounts for the majority of federal court

opinions concerning state, local, and tribal

governments. This type of litigation is included because it is extremely important to these

governments and because federal statutes provide the procedural context in which constitutional issues are litigated.

(3) Include both cases won and lost. Read narrowly, Section 304 suggests that the report

should contain only federal mandate cases

that state, local, or tribal governments have

lost-cases that “required” governments to do

something that they would not otherwise have

Advisory Commission on Intergovernmental Relations 37
done. However, for purposes of building a

database on mandates issues and for determining how frequently particular statutes are

litigated, the Section 304 Database includes

cases in which state, local, or tribal governments prevailed.

(4) Include cases to tihich ofJicials of state, local,

or tribal governments, in their oflcial capacities, are parties. Read narrowly, Section 304

requires a report about only cases to which

state, local, or tribal governments were named

parties. Many cases, however, are brought

against officials of those governments, (This

is due in part to the Eleventh Amendment to

the U.S. Constitution, which prohibits individuals from suing state governments directly

in federal courts.) Because these cases are, for

most practical purposes, the same as cases

that name the governments, the Section 304

Database includes them.

(5) Include cases involving damage awards as

well as cases requesting injunctive and

declaratory reliej Section 304 orders a report

about cases that require governments “to

undertake responsibilities and activities.” On

a narrow reading, this encompasses only

cases in which a government is enjoined to

take some future action. For database and litiP-5)

gation frequency purposes, however, it makes

sense also to include cases in which damages

may be awarded because a government has

failed to satis@ some duty imposed by a federal statute or regulation.

Include significant interim judicial actions

taken in federal mandate cases, as well as

final orders and dispositions. Many federal

mandate cases will not begin and end in the

same calendar year. Some will remain pending for years, during which time the trial court

may issue rulings on subsidiary issues-for

example, whether certain discovery is permissible or whether there are disputed facts that

would necessitate a trial. In some instances,

the trial court’s rulings on these issues may be

appealed. For database and litigation fiequency purposes, it makes sense to include not

only final determinations on the merits of a

plaintiff’s claim but also these interim, subsidiary rulings.

The list below contains those statutes in the

Section 304 Database that were the subject of litigation in five or more cases. A detailed Frequency

Litigation Table is included as Appendix 1. A sample data entry form for the Section 304 Database is

included as Appendix 2.

Litigation Frequency at a Glance

(Five or More Cases*)

Section 1983 (Civil Rights) 2,095

Habeas Corpus 137

Title VII (Civil Rights) 185

Individuals with Disabilities Education Act 61

Fair Labor Standards Act 59

Voting Rights Act 56

Americans with Disabilities Act 55

Age Discrimination in Employment Act 47

Rehabilitation Act 46

Title XIX, Social Security Act (Medicaid) 39

Employee Retirement Income Security Act 19

Religious Freedom Restoration Act 17

Civil Rights Act of 187 1 15

Fair Housing Act 14

Clean Water Act 1 3

National Labor Relations Act 12

* Some case rulings are based on more than one law.

Indian Gaming Regulatory Act 12

Aid to Families with Dependent Children 1 1

Title IX, Education Amendments of 1972 8

Sherman Act 8

Racketeer Influenced and Corrupt

Organizations Act

Housing Act of 1937

Bankruptcy Code

Wire and Electronic Communications Interception

Family Educational Rights and privacy Act

Social Security Act

Gun Control Act

Resource Conservation and Recovery Act

Labor-Management Relations Act

Comprehensive Environmental Response

Compensation and Liability Act 5

38 Advisory Commission on lntergovemmental Relations
The recommendations for future reports fall into

two groups-modifications to the database file, and

other methods of gathering and presenting information on rulings

DATABASE MODIFICATIONS

The computer database proved to be of

tremendous help in preparing this report; without it,

the task of coordinating and organizing the information gathered by nine researchers could not have

been accomplished in such a short time. A number

of modifications to the database file, however, will

increase its flexibility as a research tool and the

quality of the information it contains.

When the research assistants began entering

information into the database, they had no list of

standardized names and citations of federal

statutes; such a list could be developed only as

statutes were discovered. Precision and efficiency

0

A

will be greatly increased by incorporating into the

data entry form a list of standard citations for the

most common 100 or so statutes. Technical modifiRecommendations

for Future Reports

cations to the fields containing these citations

should also increase the usefulness of the database,

particularly with regard to compiling information

about rulings that concern more than one federal

statute. Finally, the quality of the information in the

database will be enhanced by providing a more

complete set of instructions, based on the experience of developing the first sample of 3,500

entries.

OTHER METHODS

Future reports may also benefit from other

methods of gathering information about federal

court cases. Each federal trial and appellate court

maintains a computerized docketing system, called

the Integrated Case Management System (ICMS).

There are 107 of these courts, each with a separate

system, as well as a different system for the

Supreme Court, and they are not linked together.

Some of the information in the systems, however,

is maintained in a standard form and is used by the

Administrative Office of the United States Courts

in compiling statistics about the federal court system as a whole. It may be possible to gather information from these systems that would be useful for

future Section 304 reports. This will likely require

Advisory Commission on Intergowmm ental Relations 39
modifications to the systems themselves, which

would need to be made before the beginning of the

calendar year covered by the report. This means

that the Calendar Year 1996 report is the first that

could benefit from this information.

It may also be useful to form a group of

experts in different fields of federal law to evaluate

rulings and their significance for state, local, and

tribal governments. Federal law covers an extraordinary range of topics that may affect these

governments, including labor and employment discrimination, education, civil rights, voting rights,

the environment, social security, criminal law, food

and drugs, Indian law, bankruptcy, banking, communications, transportation, and maritime law. No

single person can be an expert in all these fields,

but it may take an expert to understand the significance of a ruling that appears trivial to the ordinary

observer.

Given the time constraints on this report, it

was not possible to send groups of opinions out to

experts and gather their comments; inevitably,

therefore, the selection of opinions to be abstracted

in this first report depended chiefly on formal characteristics-whether they obviously concerned

injunctions and declarations-rather than on substantive evaluation. Future reports may be able to

focus more on substantive importance.

40 Advisory Commission cm htcrgovemmeotal Relations
Appendices

Advisory Commission o n Intergovcrmnentd Relatiws 41
4 2 Advisory Commission on htergovemmental Relations
Appendix I

Litigation Frequency Table

This table lists the number of opinions in the Section 304 Database that address each federal statute that is represented in that Database. Its purpose is to provide a rough measure of the

amount of litigation that each statute generates in the federal courts. Because not every federal

court action generates a published opinion, this is not a table of the number of actions filed, but

it does provide a measure of those cases that were significant enough to generate rulings accompanied by opinions. Approximately 100 of the 3,500 federal court opinions in the Section 304

Database do not refer to a particular federal statute; most of these involve federal constitutional

issues, and were probably brought under one of the civil rights statutes, such as 42 U.S.C. 1983.

Statute by United States Code Citation and Popular Name

Title 2

Number of

Opinions

2 U.S.C. 453 Federal Election Campaign Act of 197 1 1

Title 4

4 U.S.C. 106 Buck Act 1

Title 5

5 U.S.C. 1101 Civil Service Reform Act 2

5 U.S.C. 1501 Hatch Act 1

5 U.S.C. 5305 Federal Law Enforcement Pay Reform Act 1

Title 7

7 U.S.C. 1921 Agricultural Act of 196 1 1

7 U.S.C. 2014 Food Stamp Act 2

Title 8

8 U.S.C. 1342 Immigration Reform and Control Act 1

Title 11

11 U.S.C. 1 et seq. Bankruptcy Code 6

Title 12

12 U.S.C. 92 National Bank Act 4

Advisory Commission on Intergovemmenti Relations 43
Statute by United States Code Citation and Popular Name Number of

Opinions

12 U.S.C. 1461 et seq.

12 U.S.C. 1821 et seq.

12 U.S.C. 1823

Title 13

13 U.S.C. 131

Title 14

14 C.F.R. 77

Title 15

15 U.S.C. 1 et seq.

15 U.S.C. 12 et seq.

15 U.S.C. 1331 et seq.

15 U.S.C. 1381 et seq.

15 U.S.C. 1692

15 U.S.C. 2801 et seq.

15 U.S.C. 3901 et seq.

Title 16

16 U.S.C. 5 15

16 U.S.C. 791a et seq.

16 U.S.C. 836

16 U.S.C. 1456

16 U.S.C. 1531 et seq.

16 U.S.C. 1604

16 U.S.C. 2621

16 U.S.C. 3117

Tile 16

18 U.S.C. 921 et seq.

18 U.S.C. 922(s)

18 U.S.C. 1151 et seq.

18 U.S.C. 1301

18 U.S.C. 1341

18 U.S.C. 1951

18 U.S.C. 1961 et seq.

18 U.S.C. 25 10 et seq.

18 U.S.C. 3181 et seq.

18 U.S.C. 3500

18 U.S.C. 3626(c)

Home Owners’ Loan Act

Federal Deposit Insurance Act

Garn-St. Germain Depository

Census Act

FAA Regulations

Sherman Act

Clayton Act

Federal Cigarette Labeling and Advertising Act

National TrafIic and Motor Vehicle Safety Act of 1966

Fair Debt Collection Practices Act

Petroleum Marketing Practices Act

Product Liability Risk Retention Act of 198 1

Weeks Law

Electric Consumers Protection Act

Niagara Redevelopment Act

Coastal Zone Management Act of 1972

Endangered Species Act

National Forest Management Act of 1976

Public Utility Regulatory Policies Act

Alaska National Interest Lands Conservation Act

Gun Control Act

Brady Act

Indian Crimes

Lotteries

Mail Fraud

Hobbs Act

Racketeer Influenced and Corrupt Organizations Act

Wire and Electronic Communications Interception

Extradition

Jencks Act

Violent Crime Control and Law Enforcement Act

1

4

1

1

1

5

1

2

1

1

2

7

6

1

1

1

44 Advisory Commission on lntcrgovernmcntd Relations
Statute by United States Code Citation and Popular Name Number of

Title 20

20 U.S.C. 107 Randolph-Sheppard Vending Stand Act 3

20 U.S.C. 1071 Higher Education Act of 1965 1

20 U.S.C. 1232 Family Educational Rights and Privacy Act 6

20 U.S.C. 1400 et seq. Individuals with Disabilities Education Act 6 1

20 U.S.C. 1681 Title IX, Education Amendments of 1972 8

Title 21

21 U.S.C. 360

21 U.S.C. 451 et seq.

21 U.S.C. 848

Federal Food, Drug, and Cosmetic Act 1

Poultry Products Inspection Act 2

Comprehensive Drug Abuse Prevention and Control Act 1

Title 25

25 U.S.C. 70

25 U.S.C. 177

25 U.S.C. 233

25 U.S.C. 261

25 U.S.C. 33 1

25 U.S.C. 677

25 U.S.C. 13OOg

25 U.S.C. 1301 et seq.

25 U.S.C. 1901

25 U.S.C. 2206

25 U.S.C. 2701 et seq.

Indian Claims Commission Act

Indian Nonintercourse Act

NY State Indian Jurisdiction

Indian Trader Statutes

Indian General Allotment Act

Ute Partition Act

Ysleta de1 Sur Pueblo and Alabama and Coushatta

Indian Tribes of Texas Restoration Act

Indian Civil Rights Act

Indian Child Welfare Act

Indian Land Consolidation Act

Indian Gaming Regulatory Act

Title 28

28 U.S.C. 1331

28 U.S.C. 1341

28 U.S.C. 1446

28 U.S.C. 1661

28 U.S.C. 1915

28 USC. 1961

28 U.S.C. 2201

28 U.S.C. 2254

28 U.S.C. 2409

28 U.S.C. 24 12

Subject Matter Jurisdiction of USDC

Tax Injunction Act

Removal Jurisdiction

Writ of Mandamus

In Forma Pauperis

Interest on Money Judgments

Declaratory Judgment Act

Habeas Corpus

Quiet Title Act

Equal Access to Justice Act

Title 29

29 U.S.C. 151 et seq.

29 U.S.C. 185

National Labor Relations Act

Labor-Management Relations Act

2

1

1

1

4

1

1

3

1

1

1 4

1

1

1

1

1

3

1

737

1

1

1 2

5

Opinions

Advisory Commission on Intergovernmental Relations 45
Statute by United States Code Citation and Popular Name Number of

Opinions

29 U.K. 201 et seq.

29 U.S.C. 206(d)

29 U.S.C. 621 et seq.

29 U.S.C. 65 1

29 U.S.C. 701 et seq.

29 U.S.C. 1001 et seq.

29 U.S.C. 10901

Fair Labor Standards Act

Equal Pay Act

Age Discrimination in Employment Act

Occupational Safety and Health Act

Rehabilitation Act

Employee Retirement Income Security Act

5 9

2

4 7

1

4 6

1 9

1

Title 31

31 U.S.C. 3729 False Claims Act 2

Title 33 .’

33 U.S.C. 901 et seq. Longshore and Harbor Workers’ Compensation Act 1

33 USC. 1251 et seq. Clean Water Act 1 3

33 U.S.C. 1401 et seq. Marine Protection Act 2

Title 3%

38 U.S.C. 2021 et seq. Veterans’ Reemployment Rights Act 4

38 U.S.C. 4212 Vietnam Era Veterans Readjustment Assistance Act 2

38 U.K. 4301 et seq. Veterans’ Reemployment Rights Act 2

Title 42

42 U.S.C. (no section number) Housing and Development Act 1

42 U.S.C. 300f Public Health Service Act 1

42 U.K. 405 Social Security Act 4

42 U.S.C. 503 Unemployment Compensation 4

42 U.S.C. 601 et seq. Aid to Families with Dependent Children 1 1

42 U.S.C. 722(e)(3) Stewart B. McKinney Homeless Assistance Act 2

42 U.S.C. 1395 Medicare 4

42 U.S.C. 1395dd Federal Patient Anti-Dumping Act 3

42 U.S.C. 1396 Title XIX, Social Security Act 3 9

42 U.S.C. 1404 Housing and Community Development Act 1

42 U.S.C. 1437 Housing Act of 1937 7

42 U.S.C. 1902 Social Security Act 2

42 U.S.C. 1973 Voting Rights Act 5 6

42 U.S.C. 1981 Civil Rights Act of 1871 1 5

42 U.S.C. 1983 Section 1983 2095

42 U.S.C. 1985 Section 1985 5

42 U.S.C. 1986 Civil Rights Act 1

42 U.K. 1988 Civil Rights Act-Attorney’s Fees 4 1

42 U.S.C. 1997 Civil Rights of Institutionalized Persons Act 1

42 U.S.C. 2000bb Religious Freedom Restoration Act 1 7

46 Advisory Commission on Intergovermnmtal Relations
Statute by United States Code Citation and Popular Name

42 U.S.C. 2000d

42 U.S.C. 2000e

42 U.S.C. 2239

42 U.S.C. 3001 et seq.

42 U.S.C. 3601 et seq.

42 U.S.C. 4321 et seq.

42 U.S.C. 6042

Title VI

Title VII

Atomic Energy Act

Older Americans Act

Fair Housing Act

National Environmental Policy Act

Mental Retardation Facilities and Community

Mental Health Centers Construction Act

Resource Conservation and Recovery Act

Clean Air Act

Comprehensive Environmental Response

Compensation and Liability Act

Community Economic Development Act

Americans with Disabilities Act

4

185

2

3

1 4

8

42 U.S.C. 6961

42 U.S.C. 7401 et seq.

42 U.S.C. 9601 et seq.

42 U.S.C. 9839

42 U.S.C. 12101 et seq.

Title 43

2

5

3

6

1

5 5

43 U.S.C. 1061 Unlawful Inclosures of Public Lands Act

43 U.S.C. 2106 Abandoned Shipwreck Act of 1987

Title 46

45 U.S.C. 51 et seq. Federal Employees’ Liability Act

45 U.S.C. 151 Railway Labor Act

Title 46

46 App. U.S.C. 688 Jones Act 2

46 U.S.C. 13 109 Federal Boat Safety Act 2

Title 47

47 U.S.C. 52 1 Cable Television Consumer Protection and Competition

Act of 1992 1

Title 49

49 App. U.S.C. 1486 Federal Aviation Act 1

49 App. U.S.C. 1513 Anti-Head Tax Act 3

49 App. U.S.C. 1801 Hazardous Materials Transportation Uniform Safety Act 2

49 U.S.C. 11503 Railroad Revitalization and Regulatory Reform Act 2

49 U.S.C. 11506 Intermodal Surface Transportation Efficiency Act 1

Title 50

50 App. U.S.C. 2406 Export Administration Act 1

Number of

Opinions

Advisory Commission on Intqovmmentd Relations 47
48 Advisory Commission on htergovemmental Relations
Appendix 2

Sample Data Entry Form

for Section 304 Database

Advisory Commission on Intngovemmatal Rchtions 49
50 Advisory Commission on Intagovernmcntal Relations
Worlford by Mackey v. Lewis,

880 f. Supp. 1123 (S.D.W.Va. 1994)

Named Parties

I

/

/

E

Paul Worlford by his next

Henry Bias by his next friend,

Coy Burdette

pbhtiffkl or ptitionerlsl TlllsL if any

Gretchen Lewis Secretary, West Virginia Dept.

Ann Stottlemyer Director, Medical Services,

Lynda G. Kramer Director, Office of Health

Sandra L. Daubman Program Administrator, Office

Gaston Caperton Governor of the State of West

Dofmht~sl or nspon&ntIsl Tiisl if any

.’

Federal Government Information

29 U.S.C. 701 et seq. 42 U.S.C. 12101

St8tuta/RegulationCite[sl

Rehabilitation Act Americans with Disabilities Act

StatutelRqulation Name[s]

Constitutional Provhion[s]

hdenl Avncio[s]

:asa description notes

Court Information

Southern District of West Virginia

Court Name

312 1194

Opinion Data

Complaint Oat0

District Court

Court Typo

2:92-l 151

Dockrt Numbw

State, local, or Tribal Government Information

West Virginia Dept. of Health & Human Resources

6owmnwnt Nmme[s]

State

Tvpebl lmrotvad

West Virginia

state nomdsl

Action taken in this opinion

Summary judgment awarded in part to plaintiffs

Action Tub

Permanent Injunction

Major R&of type [s] granbd

Subsequent Hittory

Action was brought on behalf of residents of West Virginia residential board and care facilities, personal care facilities, and

nursing homes, claiming that state regulations governing such facilities violated both state law and Keys Amendment to

Supplemental Security Income program, and further claiming that conditions at facilities had disparate impact on disabled

Medicaid-eligible residents in violation of Rehabilitation Act and Title II of the Americans with Disabilities Act (ADA). The

District Court held that (1) the regulations violated various aspects of both the Keys Amendment and state law; (2) state’s

enforcement of standards and procedures violated both state law and the Keys amendment; (3) the state failed to rebut

disabled residents’ prima facie case that they were being denied meaningful access to Medicaid services by being denied

transportation and that reasonable accommodation was possible; but (4) to the extent that disabled residents of some types

of facilities were alleging that they were being treated differently than disabled residents of other types of facilities, they did

not state actionable claim under Rehabilitation Act or Title II. This court orders the parties to develop a remedial plan for

correcting and implementing proposed changes to existing residential board and care and personal care regulations and

enforcement procedures. The defendants are required to include in the regulations transportation assurances comparable to

those in existing adult family care home regulations.

Advisory Commission on Intergovernmental Relations 5 1

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