While the recent Supreme Court decisions on same-sex marriage and health care subsidies have dominated the national news, the term that just ended included many significant decisions that will affect local government practices. These cases touch on everything from sign ordinances to excessive force to tax credits for low-income housing.

Below are summaries of the opinions which will have the biggest impact on local governments:

• Supreme Court’s Sign Ordinance May Require Altering Sign Codes Nationwide:
  
  In Reed v. Town of Gilbert, Arizona, the Supreme Court held unanimously that Gilbert’s sign ordinance, which treats various categories of signs differently based on the information they convey, violates the First Amendment. The town’s sign ordinance treated temporary directional signs less favorably (in terms of size, location, duration, etc.) than political and ideological signs. Such content-based laws are only constitutional if they pass strict scrutiny – that is, if they are narrowly tailored to serve a compelling government interest. The Court concluded that the sign categories in this case were based on content because they draw distinctions based on the message a speaker conveys. Gilbert’s sign ordinance failed the strict scrutiny test because its two asserted compelling interests – preserving aesthetics and traffic safety – were “hopelessly under-inclusive.” Temporary directional signs are “no greater an eyesore” and pose no greater threat to public safety than ideological or political signs. In his concurring opinion, Justice Samuel Alito (see pages 22-23) laid out a short guide to the types of sign laws that could still pass constitutional muster, including those limiting their size or the locations in which they can be displayed.

• Supreme Court Rules in Favor of Disparate Impact Fair Housing Claims:
  
  In Texas Department of Housing and Community Affairs v. Inclusive Communities Project, the Court held 5-4 that plaintiffs suing under the Fair Housing Act of 1968 (FHA) could prove discrimination using statistics to show that the challenged practice had produced a “disparate impact.” The case was brought by a Texas group that helps mostly lower-income black families find housing in the Dallas suburbs, which are mostly white. The families use housing vouchers, but not all landlords accept them, particularly not in predominately white suburban neighborhoods. Landlords receiving federal low-income tax credits, however, are required to accept the vouchers, and a disproportionate share of the tax credits goes to landlords in minority neighborhoods. In prior cases, the Court held that disparate impact claims could be brought under Title VII (prohibiting discrimination based on race, etc. in employment) and the Age Discrimination in Employment Act, relying on those statutes’ “otherwise adversely affect” language. The FHA uses similar language – “otherwise make unavailable” – in prohibiting discrimination based on race, etc. in housing.

• Supreme Court Decides Significant Government Speech Case:
  
  In Walker v. Sons of Confederate Veterans, the Court held 5-4 that Texas may deny a proposed specialty license plate design featuring the Confederate flag because specialty license plate designs are government speech. The Court relied heavily on a previous ruling in Summum, where the Court held that monuments in a public park are government speech and that a city may accept some privately donated monuments and reject others. First, just as governments have a long history of using monuments to speak to the public, states have a long history of using license plates to communicate messages. Second, just as observers of monuments associate the monument’s message with the land owner, observers identify license plate designs with the state because the name of the state appears on the plate, the state requires license plates, etc. Third, per state law, Texas maintains control over messages conveyed on specialty plates and has rejected at least a dozen designs, just as the city in Summum maintained control monument selection.

• Supreme Court Holds Hotel Registry Ordinances and Statutes Unconstitutional:
  
  In City of Los Angeles v. Patel, the Supreme Court held 5-4 that a Los Angeles ordinance requiring hotel and motel operators to make their guest registries available to police without at least a subpoena violates the Fourth Amendment. The searches permitted by the ordinance are “administrative”—that is, they are done to ensure compliance with recordkeeping requirements. While administrative searches do not require warrants, they do require “pre-compliance review before a neutral decision maker.” Absent this, “the ordinance creates an intolerable risk that searches authorized by it will exceed statutory limits, or be used as a pretext to harass hotel operators and their guests.” Facial challenges—to a statute itself rather than a particular application of a statute—aren’t “categorically barred or especially disfavored.” On numerous occasions the Court has declared statutes facially invalid under the Fourth Amendment.

• Supreme Court Rules Motive and Knowledge Not the Same in Religious Accommodation Case:
  
  In EEOC v. Abercrombie & Fitch Stores, the Supreme Court held 8-1 that, in order to bring a religious accommodation claim, an applicant or employee need only show that his or her need for a religious accommodation was a motivating factor in an employment decision. Abercrombie & Fitch refused to hire Samantha Elauf because she wore a headscarf to her interview. Abercrombie suspected she wore it for religious reasons but she did not ask for an accommodation. The EEOC sued Abercrombie alleging it violated Title VII by failing to accommodate Elauf’s religious beliefs. The Court concluded that to bring a religious accommodation claim an applicant/employee need not show that the employer had “actual knowledge” of the need for an accommodation. Instead the employee/applicant only must show that his or her need for an accommodation was a motivating factor in the employer’s decision. Simply put, the Court would not add an “actual knowledge” requirement to Title VII’s “motivating factor” language.

• Supreme Court Rules Against Jails in Excessive Force Case:
  
  In Kingsley v. Hendrickson, the Supreme Court held 5-4 that to prove an excessive force claim a pretrial detainee must show that the officer’s force was objectively unreasonable, rejecting the subjectively unreasonable standard that is more deferential to law enforcement. Pretrial detainee Michael Kingsley and the officers in this case agree that Kingsley refused to remove a piece of paper covering a light fixture and was forcibly removed from his jail cell so that officers could remove it. While Kingsley claims, and the officers disagree, that Kingsley resisted their efforts to remove his handcuffs and in the process the officers slammed his head against the concrete bunk, the parties agree that Kingsley was tasered. The Court held that the objective standard should apply to excessive force claims brought by pretrial detainees, relying partially on precedent. In a previous case involving prison conditions affecting pretrial detainees, Bell v. Wolfish (1979), the Court used an objective standard to evaluate a prison’s practice of double bunking. And the Court pointed out that the objective standard applies to those who, like Kingsley, have been accused but not convicted of a crime, but who unlike Kingsley are free on bail. 

• Supreme Court Declines to Decide (Most of) Disability Arrest Case:
  
  In a 6-2 decision in City and County of San Francisco v. Sheehan, the Supreme Court declined to decide whether Title II of the Americans with Disabilities Act (ADA) requires police officers to accommodate suspects who are armed, violent, and mentally ill when bringing them into custody. When police officers entered Teresa Sheehan’s room in a group home for persons with mental illness she threatened to kill them with a knife she held, so they retreated. The officers reentered her room and she still had the knife in her hand. One officer pepper sprayed Sheehan but she refused to drop the knife so the officers shot her multiple times. San Francisco agreed with Sheehan that Title II of the ADA applies to arrests but argued that Sheehan wasn’t a qualified individual with a disability because she was a “direct threat” to the officers. Because the parties agreed that Title II applies to arrests, the Court dismissed this issue as improvidently granted. The Court held the officers were entitled to qualified immunity though they reentered her room rather than attempted to accommodate her disability. Even assuming that “any reasonable, competent officer on notice that it is unreasonable to forcibly enter the home of an armed, mentally ill suspect who had been acting irrationally and had threatened anyone who entered when there was no objective need for immediate entry,” no precedent clearly establishes there was no objective need for immediate entry here where Sheehan could have gathered more weapons or escaped.

• Supreme Court Rules Maryland May Not Double Tax 
  
  In a 5-4 decision in Comptroller v. Wynne, the Supreme Court held that Maryland’s failure to offer residents a full credit against income taxes paid to other states violates the dormant Commerce Clause. Maryland taxes residents’ income earned in- and out-of-state. If Maryland residents pay income tax to another state for income earned there, Maryland allows them a credit against Maryland’s “state” tax but not its “county” tax. Nonresidents who earn income in Maryland pay Maryland “state” tax and a “special nonresident tax” equivalent to Maryland’s lowest “county” tax. The problem with Maryland’s tax scheme the Court reasoned was that it had the potential to result in double taxation of income earned out-of-state. More specifically, it failed the “internal consistency” test. If all states had a tax scheme like Maryland’s “county” and “special nonresident tax” that taxed income residents earned in-state, income residents earned in other jurisdictions, and nonresidents income earned in-state, residents who earn income out-of-state would be taxed by their state of residence and the state where they earned the income. 

ICMA will be hosting a webinar on August 13, 2015, featuring Lisa Soronen - Executive Director of the State and Local Legal Center, to discuss the impact these opinions will have for local government managers. Find out more about the webinar and register here.