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Court Accepts Review of Tax Equality Case

Today the Supreme Court granted review of one of the petitions to watch highlighted in our Supreme Court Preview.

In Armour, et al., v. Indianapolis, et al., the City adopted a new way to finance sewer improvements, easing the transition by discharging outstanding assessments.  Taxpayers who had already paid the old assessment sued for refunds, claiming violation of the Equal Protection Clause of the Fourteenth Amendment.  The Indiana Supreme Court found that the City did not violate the Equal Protection Clause because its decision was rationally related to a legitimate governmental interest. The Supreme Court is now set to weigh in on the following question:

“Whether the Equal Protection Clause precludes a local taxing authority from refusing to refund payments made by those who have paid their assessments in full, while forgiving the obligations of identically situated taxpayers who chose to payover a multi-year installment plan.”

The SCOTUSBLOG reports that oral argument will be set for February.  Their analysis of the potential impact of this grant can be accessed here.

Is Your IT Department Keeping Old Hard Drives?

Ask your IT department if they are holding onto any old tapes, hard drives or computers.  After you read this post, their answer may turn your hair grey!

Neighborhood Alliance of Spokane County v. County Of Spokane is a significant public records ruling from the Washington Supreme Court addressing the reach of the Washington Public Records Act in the digital age.  You should read it, even if you never practice in Washington.  It has been on my list to blog about ever since it was published, but it is so jam-packed with important information,  it is hard to pick what to write about.

Neighborhood Alliance was seeking the metadata for an electronic file to determine when a document was created.  Spokane County responded to the record request using metadata from a copy of the file, created when an employee was issued a new computer. Unless done properly, the mere act of copying a computer file will change that metadata.  That is what happened here, causing the County to respond with an incorrect creation date.

That mistake might not have been critical if the County had not made a second error.  After the employee was given the new computer, the old computer was simply placed in storage with the hard drive that contained the original file with the accurate metadata. When  the County responded to the record request,  it never checked that hard drive, so the correct file information was never produced.  The Washington Supreme Court found that to be a violation of the Public Record Act.

All of this may have been innocent; computer hard drives get replaced every day. So what should government bodies do to prevent this from happing?  Before a hard drive is replaced, check it for files that would be responsive to pending public record requests or relevant to pending or reasonably anticipated litigation.  If such files are found, forensically sound copies of those files must be created for production or preservation. Once that process is complete, and the content of the old drive has been copied to the new drive, the old drive should immediately be destroyed or wiped of all data in a manner reasonably calculated to prevent recovery of its contents.

You can access a summary of the case on The Local Open Government BlogThe Supreme Court of Washington Blog links to a podcast discussion of the case with Greg Overstreet of Allied Law Group, the firm that represented newspaper interests as amicus in the case.

Petition of Interest – Byrne v. Jackler

As noted in my last post, defendants have asked the Supreme Court to review the decision of the Second Circuit in Byrne v. Jackler.  You can read the petition here.  The Second Circuit opinion is here.

In Garcetti v. Ceballos the Supreme Court held that speech of a government employee on a matter of public concern is not protected by the First Amendment when they are speaking in the course of their duties as a government employee.  In Byrne the Second Circuit found that rule did not apply to a claim of retaliation based on a refusal to make a false statement in a police report.

Jackler was a probationary officer with the Middletown, New York police department.  While on duty he witnessed a use of force by his sergeant.  As required by department policy he filed an incident report. In it he reported the sergeant as using force against a handcuffed suspect seated in the back of Jackler’s closed patrol car, apparently in retaliation for being called a name.  Jackler claimed that defendants pressured him to change his report to conceal the misconduct.  When that failed, they retaliated by recommending that that Jackler not be retained as a permanent police officer and that he be terminated as a probationary officer.  According to Jackler, they supported their recommendation with false, incomplete, and misleading information, about Jackler’s job performance.

The District Court dismissed Jackler’s claim, finding it precluded under Garcetti.  The Second Circuit reversed, finding that plaintiff was not speaking as a government employee when he resisted the pressure to change his report.  Instead, according to the Second Circuit, Jackler was exercising a citizens First Amendment right to refuse to retract a truthful report to the police, to refuse to make a false statement, and to refuse to engage in unlawful conduct.

Interestingly, just a month before the Second Circuit issued its opinion, the DC Circuit published its decision in Bowie v. Maddox.  Bowie claimed he was fired in retaliation for exercising his First Amendment rights when he refused to sign an allegedly false affidavit his governmental employer drafted in response to an employment discrimination claim.  The DC Circuit upheld the District Courts dismissal of this claim, finding that Bowie was not speaking “as a citizen” when he refused to sign the affidavit. (Opinion here).

Bowie petitioned for rehearing the day before the Second Circuit issued its opinion in Byrne, giving the DC Circuit the opportunity to address that decision in its ruling denying rehearing.  It concluded that the standard adopted by the Second Circuit in Byrne “. . . is about as useful as a mosquito net made of chicken wire . . .” (Opinion here).

In law school I was taught that bad facts make bad cases.  If true, the facts alleged by plaintiff in Byrne v. Jackler are very bad. (A high level cover-up by police officials of an unconstitutional use of force).  The Second Circuit was clearly bothered by these facts, as was the District Court. (The Byrne opinion notes that the District Court “ruled–reluctantly”). The problem is that “bad fact” have unintended results. In this case if defendants admitted that they retaliated against plaintiff, not for his refusal to change his report, but because of what he wrote in the report in the first place, would He still get to a jury? Even the Second Circuit would agree that termination for what he wrote in the report would not be actionable under Garcetti, otherwise they need not have split the hairs so closely. But if plaintiff still gets his day in court, doesn’t that eviscerate the holding in Garcetti. After all, what plaintiff’s counsel in their right mind would allege that the retaliation was for what their client wrote, when alleging it was for they refused to write guarantees a jury trial!

The defendants are asking the Supreme Court to review two questions:

(1) May a government employer, free of First Amendment liability, discipline an employee for his refusal to prepare a job-related report?

(2) Is there an exception to Garcetti v. Ceballos for law enforcement employees?

Hopefully the Supreme Court will accept review to resolve this clear conflict between the circuits.

UPDATE: The Supreme Court denied review of both this case and Bowie on February 27, 2012.

Supreme Court – One Month Down, Eight to Go!

The past month has been a busy one for the court.  As reported here, the Court denied certiorari in four of the cases highlighted in the our Supreme Court Preview.  It has heard oral argument in two other cases, Florence v. Board of Chosen Freeholders and Rehberg v. Paulk. Prognosticators are divided on how the Court will address the strip search issue in Florence.  The Scotusblog predicts the Court will not announce a single rule while The Volokh Conspiracy sees the Court holding that all arrestees may be strip searched. No one seems ready to predict the outcome in Rehberg, which concerns the complaining witness exception to witness immunity. (The Scotusblog, Washington Post).

As for the remaining cases previewed, no date has been set for oral argument in Filarsky v. Delia and the petition in Armour v. Indianapolis will be considered by the court during its November 10th conference, which is also the due date for respondents briefs in Arizona v. United States and Reichle v. Howards.

An additional petition of interest was filed last month.  Byrne v. Jackler seeks Supreme Court review of a Second Circuit decision that created an exception to the Supreme Courts holding in Garcetti v. Ceballos.   In Garcetti the court denied First Amendment protection to public employees work related speech.  The twist in Byrne is that plaintiff seeks First Amendment protection not for what he said, but for what he refused to say.  A more complete discussion of this petition will be posted later.

Oral Argument Alert

Florence v. Board of Chosen Freeholders of Burlington County, et al. will be argued on Wednesday this week.  Florence addresses the constitutionality of strip searching detainees prior to their housing at jail.  The SCOTUSBlog has a argument preview here

2011 Supreme Court Preview Update

In my Supreme Court Preview I listed seven pending petitions that government attorneys would want to track.  On the first day of the new term the Supreme Court made that task easier, denying cert in four of those cases: Alto Eldorado Partnership v. County of Santa Fe, City of San Leandro v. Int’l Church of the Foursquare Gospel, Dallas County v. Duvall, Szajer v. City of Los Angeles. Leandro and Szajer, were rulings out of the Ninth Circuit, so those of us on the west coast are bound by their holdings.

The three petitions still pending are; Arizona v. United States, Armour v. Indianapolis, Reichle v. Howards. Responses to the petition are outstanding in all three cases.  The Cities brief in the Armour is due October 14th.   The outstanding briefs in the two other cases are due November 10th.

Interestingly, in Armour the City had waived their response but the court requested that they respond anyway. Someone must be interested in that case!  The prospects for merits review of Reichle also seem better as on September 29th the United States and the State of Colorado filed amicus briefs, both urging the court to grant the petition and reverse the Tenth Circuit. (Reversing the Ninth Circuit’s decision in Skoog by implication).  Twenty other states joined in Colorado’s brief.

Beware of Court Fees

I just returned from the Multnomah County Courthouse where prominently posted was a warning that ORS 21.580 had been repealed as of October 1, 2011 and that lawyers representing public entities should be prepared to pay all fees unless they are able to point to some other exemption.  I hate to admit this was the first I had heard of this, so when I got back to the office I checked the legislative website. Sure enough the court fee bill, HB 2710, repealed that statue.

I loved this statute when I worked for Clackamas County because I could go to our courthouse without having to bring a check or cash.  Problem was that sometimes I had to go the courthouses in Marion, Multnomah and Washington County’s, and it was always a gamble if they were going to make my county pay.  Fortunately, I found ORS 20.180, which grants the state, counties, cities and school district’s (including officers, employees and agents that are parties in there official capacity) a deferral of any court fees that can be recovered under a cost bill.  The deferred fee need be paid only if that fee is included in an award of costs and the adverse party pays the cost bill.  HB 2071 did not repeal this statue.

Keep in mind that Section 5 of HB 2710 requires the caption of many pleadings to contain a citation to the statutory provision establishing the applicable fee.  A table of fees, along with the applicable statutory citation is available on the Judicial Department website. Link

If you want to take advantage of deferral under ORS 20.180, I would suggest that you follow that statutory reference with something like “Fee deferred under ORS 20.180”.

2011 Supreme Court Preview

October 3rd marks the start of the 2011 term for the United States Supreme Court. The Court has already accepted review of cases addressing the constitutionality of strip searches of jail inmates, qualified immunity for private attorneys working for government clients and absolute immunity for law enforcement officer’s testimony in grand jury proceedings. Many more petitions are awaiting the Court’s decision on if they merit review. Click here to read The Government Litigation Blog’s 2011 Supreme Court Preview and be ready for the changes the Court has in store for state and local governments this term.

Do You Know the Difference?

My first case involving computer discovery was in the mid 90’s. Then it was a brave new world, today it is a key component of litigation for which public bodies must prepared. This starts with understanding the language. Do you understand the difference between computer forensics, e-discovery, and data recovery? If not, Forensics Northwest provides a primer here.

Ninth Circuit Whiplash

The Redondo Beach City Attorney isn’t dumb.  His city had a problem with day workers soliciting drivers for jobs.  ACORN v. City of Phoenix, 798 F.2d 1260, 1262 (9th Cir. 1986) had been decided by the Ninth Circuit just six months earlier.  It found a Phoenix ordinance prohibiting just such conduct constitutional. So the solution was clear, have the city adopt the identical ordinance.  No problem, right?  Wrong, at least according to this en banc decision of the Ninth Circuit.

UPDATE  – The Supreme Court denied review on February 21, 2012.