State & Local News Vol. 22, No. 2, Winter 1999 Recent Developments By Peter A. Buchsbaum So what’s been happening over the last three months? State Employees-Family and Medical Leave Act Rejecting district court decisions from Virginia, Texas, and Maryland, a Florida district court has held that the Eleventh Amendment bars application of the Family and Medical Leave Act to state employees. Since the FMLA, the court found, was primarily adopted pursuant to the Commerce Clause, rather than the Fourteenth Amendment, Congress lacked authority to abrogate the state’s Eleventh Amendment immunity from FMLA actions by state employees. Driesse v. Florida Board of Regents, 67 U.S.L.W. 1268 (M.D. Fla. Oct. 20, 1998). Two issues ago we reported in this column that the Maine Supreme Court had, on similar Eleventh Amendment grounds, dismissed a state employee’s claims under the Fair Labor Standards Act. My comment at that time was that the opinion appeared to toll the death knell for any effort by state employees to take advantage of the Fair Labor Standards Act. The Supreme Court apparently is concerned about the opinion as well. On November 9, 1998, it granted certiorari in Alden v. Maine. See 67 U.S.L.W. 3315. The ruling below was 715 A.2d 172 (Me 1998). Towing Services - Interstate Commerce According to the U.S. Court of Appeals for the Eleventh Circuit, the Interstate Commerce Act preempts municipal attempts to license and regulate the rates of automobile towing done with the driver’s consent. The court held that the ICA, specifically 49 U.S.C. § 14501(c)(1), preempts the state or its subdivisions from regulating prices, routes, or services provided by towing companies. Further, a 1995 amendment which allowed municipalities to set rates for nonconsensual towing, that is where a car is towed for law enforcement reasons such as a violation of an overtime parking requirement, demonstrates Congress’ intent to continue the preemption of local regulation of voluntary towing. Therefore, the Atlanta towing price control and licensing scheme was invalid. R. Mayer of Atlanta, Inc. v. Atlanta, 67 U.S.L.W. 1251 (11th Cir. Oct. 23, 1998). Juvenile Curfews - Due Process - First Amendment In a continuation of a pronounced judicial trend, the Fourth Circuit upheld a Charlottesville, Virginia juvenile curfew ordinance modeled on the Dallas curfew ordinance sustained by the Fifth Circuit in QUTB v. Straus, 11 F.3d 488 (5th Cir. 1993), an oft-cited 1993 decision. Although the Charlottesville, Virginia ordinance was somewhat stricter than its Dallas counterpart - it was one hour shorter each day - the court found persuasive the city’s evidence that 85 percent of juvenile crime in 1995-96 was committed by youths aged ten to sixteen who were covered by the curfew. Also, the court believed the city’s proofs that certain types of serious crimes were considerably more likely to occur during the curfew hours than earlier in the day. Dissenting, Judge M. Blaine Michael would have applied a strict scrutiny test, which he believed the ordinance failed because it swept too broadly, usurping parental authority of child rearing. Schleifer v. Charlottesville, 67 U.S.L.W. 1252 (4th Cir. Oct. 20, 1998). Compare Hutchin’s v. District of Columbia, 144 F.3d 7798 (D.C. Cir. 1998), which struck down the District of Columbia curfew. It is interesting that the presentation of facts by the municipality about its particular crime situation appears to be an important factor in the courts’ constitutional evaluations of curfews. Anti-Prayer Prayer - First Amendment - Public Meetings What happens when a citizen seeks to open a city council meeting with a prayer that declares that all prayers at city council meetings are inappropriate? That happened in Murray City, Utah, which had since 1982 invited citizens to begin council meetings with a prayer. The plaintiff, unsolicited, proposed a prayer asking "Our Mother Who Art in Heaven" to guide Utah’s leaders toward the separation of church and state and the ending of prayers at official government functions. The plaintiff sued when the city attorney rejected the prayer. In response, a divided panel of the Tenth Circuit upheld the city. According to the majority, the town acted appropriately in excluding a prayer which sought to proselytize, in the court’s words, by attacking prayer itself. Two dissenting judges declared it was inappropriate to censor prayers on a basis of their content. It is interesting that this case arose in Utah, which perhaps has the closest bond between church and state in the country. Snyder v. Murray City, 67 U.S.L.W. 1267 (10th Cir. Oct. 27, 1998). Forced Hook-up - Township Water Supply - Substantive Due Process This decision hardly comes as a surprise. But in case anyone was wondering, the Constitution authorizes a locality to require a property owner¾ even one with a safe and pure well¾ to hook-up to a public water supply and to disconnect his well, when public water service is extended to the property. The court found that the forced hook-up requirement was at least minimally related to a legitimate government interest in the health of its residents’ water supply as a whole. Stern v. Halligan, 67 U.S.L.W. 1212 (3d Cir. Oct. 7, 1998). Business Improvements Districts-Board of Directors-One Man One Vote The Second Circuit has rejected an attack on the voting scheme for the Grand Central Business Improvement District (BID) in New York City. The BID bylaws had given property owners the right to elect a majority of the directors. The court held that the limited purposes of BID, and the fact that its assessments for services in the district only were levied on property owners, exempted the board from the one-person, one-vote mandate in Reynolds v. Sims. Kessler v. Grand Central District Management Ass’n, 67 U.S.L.W. 1233 (2d Cir. Oct. 13, 1998). And finally, from my home in New Jersey, I give you the following. The Borough of Flemington, which I represent, was disturbed to find that its website, www.flemingtonnj.net, was being outflanked by a commercial site, www.flemington-nj.com. So we wrote a letter asking the proprietress of the commercial site to stop on the ground of confusion. Immediately, to our amazement, we were besieged by calls from the press, television, and even a commentary in the state’s legal news journal, the New Jersey Law Journal, which put us in its "losers" column because it said the other website was better. But we still think that we, not someone else, should decide how to publicize our name. The real surprise, however, was the intensity of interest in the issue. What do you think? Also, our Superior Court has held that a homing pigeon coop is a valid accessory structure to a residential dwelling, even in one of our highest priced communities. Although Colt’s Neck denizens have typically not raised pigeons as a hobby, the court found that pigeon raising was a not uncommon hobby among less favored citizens and thus could be a valid accessory use in a town known more for the beat of horse hooves than the cooing of doves. Colt’s Run Civic Association v. Colt’s Neck Township Board of Adjustment, 717 A.2d 456 (Super Ct. L. Div. 1998). As always, your suggestions and input are welcome. Peter A. Buchsbaum is chair of the Section’s Land Use Committee and practices law with Greenbaum, Rowe, Smith, Ravins, Davis & Himmel in Woodbridge, New Jersey. State & Local Law News home page | Table of Contents