NACo has signed onto two amicus curiae briefs recently filed by the State and Local Legal Center (SLLC) with the U. S. Supreme Court. The first case affects the ability of state and local government to forgive debt — but not issue refunds —related to a discontinued program. The issue in Armour v. Indianapolis is whether the City of Indianapolis violated the Equal Protection Clause of the U.S. Constitution when it forgave the assessments of homeowners who paid for sewer improvements in multi-year installments, but issued no refunds to homeowners who paid for the same improvements in a lump sum.
When the city moved from one method of financing sewer improvements to another method it forgave the debt of homeowners who chose to pay for their sewer improvements in installments but gave no refund to lump sum payers.
The Indiana Supreme Court ruled the city did not violate the Equal Protection Clause because it had three rational reasons for only forgiving debt: providing relief to less prosperous residents who could not afford to pay up front, preserving limited government resources by not issuing refunds, and the administrative efficiency that would result from not having to collect debt for up to 30 years related to a discontinued program.
The SLLC’s brief argues that the city’s decision to only forgive debt in this case passes the Equal Protection Clause’s “rational basis” test. If the city’s three reasons fail rational basis review, numerous economic policy decisions of state and local government potentially could be challenged as unconstitutional. The SLLC’s brief points out that infrastructure financing is complex and often needs modification. The Supreme Court may discourage state and local government from making much needed changes to infrastructure financing if it invalidates the city’s policy decision in this case.
Jon Laramore and Scott Chinn of Faegre Baker Daniels in Indianapolis, Ind., wrote the SLLC’s brief. The SLLC’s brief was also signed onto by the International City/County Management Association, the National Conference of State Legislatures, the National League of Cities and the United States Conference of Mayors.
The second case would affect the legal liability of state and local police officers when making lawful arrests. The issue in Reichle v. Howards is whether a First Amendment retaliatory arrest claim can be brought against a police officer even though the officer had probable cause to make the arrest.
Two Secret Service agents do not dispute that they arrested Steven Howards because of his First Amendment protected speech: telling Vice President Dick Cheney that his “policies in Iraq are disgusting.” The 10th U.S. Circuit can determined the agents had probable cause to arrest Howards for touching Cheney’s shoulder and lying to the agents about it in violation of a federal statute. The 10th Circuit held that Howards could sue the agents for First Amendment retaliatory arrest even though the agents had probable cause to arrest him. The 10th Circuit also denied qualified immunity to the agents, subjecting them to a lawsuit for money damages.
The SLLC’s brief argues to the Supreme Court that it should bar First Amendment retaliatory arrest claims supported by probable cause because retaliatory arrest claims are easy for a citizen to allege and difficult for a law enforcement officer to disprove. If such claims aren’t barred, state and local police officers may be disinclined to make lawful arrests when a citizen expresses speech protected by the First Amendment, which happens in virtually every arrest. NACo’s brief also argues that the agents in this case should be granted qualified immunity because the Supreme Court held in Hartman v. Moore, 547 U.S. 250 (2006), that retaliatory prosecution claims are barred if probable cause supports the prosecution. Until this case, it was unclear whether the 10th Circuit would apply Hartman to retaliatory arrest claims.
The SLLC’s brief was also signed onto by the International City/County Management Association, the International Municipal Lawyers Association, the National Association of Counties, the National Governors Association, the National League of Cities and the United States Conference of Mayors.
The State and Local Legal Center is partially supported by NACo, and provides an additional membership benefit for your county. If you have questions or comments about these cases, contact Ed Ferguson at 202.942.4214, or at ed.ferguson@naco.org.