State & Local News
Vol. 23, No. 1, Fall 1999
RECENT DEVELOPMENTS
By Peter A. Buchsbaum
The usual summer doldrums have not occurred this year. Blame it on the drought, or the jet stream, or whatever, but the Courts this summer have been full of cases involving local governments, as follows:
Local Government-Sidewalk Immunity-Palpably Unreasonable Failure to Repair
Although the unanimous New Jersey Supreme Court case declaring that the Boy Scouts could not discriminate against homosexuals (Dale v. Boy Scouts of America, A-195/196-97, decided August 4, 1999) has been grabbing the headlines, my home state's Supreme Court decision abolishing local government's common law immunity for negligent failure to maintain residential sidewalks that have suffered normal wear will have far greater impact on local government. The court unanimously found that the New Jersey Tort Claims Act provided the applicable standard for all dangerous conditions on municipal property, including residential sidewalks-that statute imposes liability for a dangerous condition, if the failure to correct that condition is palpably unreasonable. The court did, however, require that the residential owner give the municipality notice of the dangerous condition, and it did not impose liability for sidewalks in front of commercial buildings. Since four justices found an absence of notice, they granted summary judgment for the municipality in this case. Three justices would have returned the matter for trial on the notice issue. Norris v. Borough of Leonia, N.J. Sup. Ct., Docket No. A-30-98, decided July 26, 1999.
Eleventh Amendment-State Immunity From Suit-Increasing Trend Toward Immunity
The fallout from such Supreme Court decisions as Alden v. Maine, ___ S. Ct. ___ (1999) continues. In Alden, the Supreme Court barred employees from bringing suit in state, as well as federal, court to enforce their rights to adequate compensation under the Fair Labor Standards Act, holding that Congress lacked power under the Commerce Clause to require state courts to hear federal actions against the state. More recently, the Eighth Circuit, en banc, by a narrow 6-4 vote, held that the congressional power to hale states into court is sharply limited even when Congress is acting under the Fourteenth Amendment, which, unlike the Commerce Clause does authorize Congress to override a state's Eleventh Amendment immunity from suit. It refused to apply the Americans with Disability Act requirement for "reasonable modifications" for individuals with disabilities to state employees. Accordingly, an uncertified police officer with a congenital eye condition could not force the state to accept "reasonable modifications" to his conditions of employment, as long as the state's rejection of his employment was rational. Under the City of Boerne v. Flores, 521 U.S. 507 (1997), said the Court, the scope of congressional remedial power under the Fourteenth Amendment was limited to abrogating state conduct that had no rational relationship to a professed state end-Congress could not impose on the state the more intrusive standard requiring reasonable modifications to the workplace. Alsbrook v. Maumelle, 68 U.S.L.W. 1060 (8th Cir., decided July 23, 1999) (en banc).
More Immunity-Bankruptcy-State and Local Taxes
The state immunity trend has even reached bankruptcy court. The Fourth Circuit has just held that the Eleventh Amendment bars exempting debtors from state transfer and recordation taxes imposed on real estate transactions occurring during bankruptcy proceedings. Accordingly, a bankrupt homebuilder's motion to be reimbursed for $7 million in state and local real estate transfer and recordation taxes paid during the course of its reorganization was denied as contrary to the Eleventh Amendment. To reach this financially significant result, the court had to hold that the motion from relief from the taxes was a "suit" for Eleventh Amendment purposes. NVR Homes, Inc. v. Clerks of the Circuit Courts, 68 U.S.L.W. 1051 (4th Cir., decided July 12, 1999).
States-Foreign Commerce-Contracts
While states may be obtaining immunity from almost every form of federal lawsuit, they are still not allowed to conduct their own foreign policy. Thus, the First Circuit invalidated a Massachusetts statute that sharply restricted the ability of the state to offer state contracts to companies doing business in Burma. The purpose of the law was "free democratic elections in Burma." In voiding the statute, the First Circuit stated that Massachusetts' efforts to target a foreign country, monitor investment therein, and limit private transactions with that country amount to the state establishing its own foreign policy, in violation of the Constitution's Foreign Commerce Clause. The court also noted that the Massachusetts law had to be considered in conjunction with other state and local laws across the country which collectively could have a significant foreign policy impact. National Foreign Trade Council v. Natsios, 68 U.S.L.W. 1009 (1st Cir., decided July 22, 1999).
Federal Term Limits-State Ballot Initiatives-Coercion of Federal Representatives
Following the Supreme Court's ruling that states could not impose term limits on congressmen, the ever-ingenious California electorate developed Proposition 225 which instructed its federal legislators to support a term limit amendment to the U.S. Constitution. Any congressman who defied such advice was to be tarred and feathered with a phrase on the ballot stating, "DISREGARDED VOTERS' INSTRUCTIONS ON TERM LIMITS." The California Supreme Court rejected this "scarlet letter" initiative on the ground that it violated the Amendment Article of the U.S. Constitution by attempting to procure an amendment to the Constitution by means that were not sanctioned in that Article. If the state wanted to act, held the court, it had to do so through the procedures set forth in Article V. It could not attempt to coerce federal legislators to amend the Constitution by calling them names on the ballot. Bramberg v. Jones, 68 U.S.L.W. 1053 (Cal. Sup. Ct., decided July 8, 1999).
Job Eligibility-Impact on Women-Minimum Qualifications
Finally, while the states may be free to do what they want to their employees, these days, local public employers are not.
In a 2-1 decision, the Third Circuit held that the Southeast Pennsylvania Transportation Authority's requirement that transit police candidates run 1.5 miles in under twelve minutes violated Title VII of the 1964 Civil Rights Act. The court found that this physical test with a pass rate of 12 percent for women, as compared to 60 percent for men, imposed upon candidates more than the minimum aerobic capacity necessary to perform the job. It thus violated amendments to the Civil Rights Act adopted in 1991 that limited employment qualifications with disparate impacts to those that are essential to the employer. Lanning v. Southeastern Pennsylvania Transportation Authority, 68 U.S.L.W. 1026 (3d Cir., decided June 29, 1999).
We can go on a lot longer. There is a lot of other fascinating case law out there-the Oregon Supreme Court's holding that the statutory tort reform cap on non-economic damages violated the state constitution's right to a jury trial in civil cases, 68 U.S.L.W. 1062, a similar ruling involving Indiana tort reform, 68 U.S.L.W. 1055, and a fascinating Connecticut Supreme Court decision holding that personal animus directed at an applicant for municipal approval could result in unequal protection violation. Thomas v. City of West Haven, 249 Conn. 385 (Sup. Ct. 1999). Also, the en banc D.C. Circuit sustained the District of Columbia's juvenile curfew, overruling a panel decision which had voided it. 68 U.S.L.W. 1010.
As we stated at the outset, no summer doldrums this year.
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.
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