State & Local News Vol. 21, No. 2, Winter 1998 Recent Developments By Peter A. Buchsbaum Peter A. Buchsbaum practices law with Greenbaum, Rowe, Smith, Ravin, Davis & Himmel in Woodbridge, New Jersey. Sometimes the cases that have to be left out of a column such as this one are more remarkable than the ones that are included. Thus, we will ignore the Second Circuit's decision that a state court judge did not violate 42 U.S.C. § 1983 when he apparently let his dog nuzzle at the skirts of a woman who was doing research in a Connecticut Superior Court Clerk's office. See 66 U.S.L.W. 1230. Neither can we spend much time on the Seventh Circuit's ruling that Chicago police should not get the benefit of qualified immunity in a civil rights action seeking damages in a wrongful arrest where the legal theory under which they sought to justify the arrest was "cock-eyed." 66 U.S.L.W. 1229. The Court there held the only reason there was no authoritative state court decision rejecting the defendants theory behind their arrest was that the theory was so ridiculous that it would have never occurred to anyone to litigate it. Of more substance-perhaps the most important recent decision affecting state governments-is the Ninth Circuit's October 7, 1997, decision striking down California's lifetime term limits on state legislators. In Jones v. Bates, 66 U.S.L.W. 1217, the Ninth Circuit parted company from a California Supreme Court decision that had sustained the term limit initiative. The court of appeals held that the initiative gave insufficient notice that it was intended to impose lifetime term limits, that is, that when a legislator served the given number of terms, he or she was not merely barred from running for re-election immediately thereafter, but was also barred from running at any point in his or her lifetime for legislative office. The court found it debatable whether such lifetime terms limits could be lawful even if adequate notice of them were given. It thus held open the possibility of sustaining such limits in the future. However, the lack of clarity in the initiative, combined such a drastic restriction on the right of people to choose their representatives, doomed the initiative according to the Ninth Circuit. Will Watersheds and Water Supply be Protected? There are significant problems with New York City's plans to preserve its water supply watershed by a buyout of property rather than spending billions of dollars on a water filtration plant. The New York City plan is a significant test of a land-use control approach, as opposed to an engineering solution to water supply problems, and the issue still hangs in the balance. New York only owns about 4 percent of the land in its watershed, according to the December 3, 1997, Land Use Law Report. Further, efforts to acquire additional lands may be hobbled because there has been a jump in development activity in the vicinity of major water supply reservoirs that serve the city. Water Supply-Failure to Consider Alternatives By the same token, an engineering solution to water supply problems may not work either. The federal courts, for a second time, blocked the efforts of Marion, Illinois, to build a dam which would augment the city's insufficient and not fully pure water supplies. In its July 14, 1997, decision, the Seventh Circuit held that the Army Corps of Engineers had failed to consider alternatives, in particular obtaining water through multiple sources, as contrasted with a single dam. Simmons v. U.S. Army Corps of Engineers, LAND USE L. REP., Sept. 3, 1997. Political Buttons in Court-Free Speech The First Circuit Court of Appeals has held that a lawyer could be banned from wearing a political button in a state courtroom. The offending button at issue indicated opposition to a statewide referendum that would restrict gay rights in Maine. The attorney in question removed the button rather than face the contempt citation, but he later sued in federal court. The First Circuit held that the button, while nondisruptive, politicized the courtroom and could be banned. Berner v. Delahanty, 66 U.S.L.W. 1278 (Oct. 28, 1997). Referendum-Bar to Further Protection And the cause of gay rights suffered a further setback. The Sixth Circuit upheld a Cincinnati referendum banning future gay rights protective legislation in the city. While the referendum's language was almost identical to Colorado's statewide constitutional ban on gay rights legislation struck down in Romer v. Evans, 64 U.S.L.W. 4353 (1996), the Sixth Circuit held that a city could adopt such a ban. One gets an inkling that the Sixth Circuit did not agree with Romer and it will be interesting to see whether other courts adopt its distinction between statewide and city-only restrictions on legislation protecting gay rights. The Quality Foundation of Greater Cincinnati v. Cincinnati, 66 U.S.L.W. 1261 (Oct. 23, 1997). That's it for now. Please send any comments, suggestions, or cases. State & Local Law News home page | Table of Contents