U.S. Supreme Court Midterm Update 
by Lisa Soronen, State and Local Legal Center 

The Supreme Court's docket for its current term is now set. The Court will decide a number of cases with potential impacts for local government, including a case challenging the addition of a question regarding U.S. citizenship to the 2020 census, a case regarding a religious display on public land, a significant procedural employment case, and a case involving money damages against a local government employee who allegedly fabricated evidence used in a trial. 

• In Department of Commerce v. New York, the Supreme Court will decide whether the Secretary of Commerce violated the Administrative Procedures Act (APA) by adding a question about U.S. citizenship to the 2020 census. In March 2018, Secretary of Commerce Wilbur Ross issued a memorandum stating that he would add the question (for the firs time since 1960), claiming that the Department of Justice wanted the data to enforce the Voting Rights Act's prohibition against diluting the voting power of minority groups. Following the issuance of this memo, the Census Bureau "strenuously" objected, warning that "adding a citizenship question would harm the quality of census data and increase costs significantly" and that it would do so for no good reason because there was an alternative way to satisfy DOJ's purported needs which would not cause those harms. Subsequently, a number of state and local governments and nonprofits sued the Secretary claiming that this question is arbitrary and violates the APA, which prohibits federal agencies from acting in a manner that is arbitrary and capricious or not in accordance with law.
• In Maryland - National Capital Park and Planning Commission v. American Humanist Association, the Court will decide whether a local government has violated the First Amendment by displaying and maintaining a 93-year-old, 40-foot tall Latin cross memorializing soldiers who died in World War I. In making its ruling on whether the cross violates the Establishment Clause, the Court will use the three-prong Lemon test to determine if it 1.) has a significant secular (non-religious) purpose, 2.) its principal or primary effect is one that neither advances nor inhibits religion, and 3.) does not foster an excessive government entanglement with religion. 
• The question the Supreme Court will decide in Fort Bend County v. Davis is whether or not a lawsuit is barred if an employee fails to exhaust administrative remedies with the EEOC before filing the lawsuit. In this case, a County employee claims she was fired for not reporting to work on a Sunday (she attended a Church service) in retaliation for reporting that she was sexually harassed and assaulted by a superior. The employee filed a complaint with the Texas Workforce Commission, and also brought a retaliation and religious discrimination lawsuit against the county, before her EEOC case with the Texas Workforce Commission was resolved. 
• The issue the Supreme Court will decide in McDonough v. Smith is whether the statute of limitations for a due process fabrication of evidence claim begins to run when the criminal proceedings terminate in the defendant’s favor, or when the defendant becomes aware of the tainted evidence and its improper use.

For more information on these cases, view the Supreme Court Update presentation made by the State and Local Legal Center's Executive Director Lisa Soronen to ICMA's Governmental Affairs and Policy Committee at its March 2019 meeting.