RECENT DEVELOPMENTS

By Peter A. Buchsbaum

Peter A. Buchsbaum practices law with Greenbaum, Rowe, Smith, Ravins, Davis & Himmel in Woodbridge, New Jersey.

A spate of recent decisions has bucked the judicial trend toward enhancing state power vis-à-vis the federal government. The cases involve a variety of subjects, from the Religious Land Use and Institutional Persons Act to clean water regulation and even pork production.

Religious Land Use and Institutional Persons Act (RLUIPA)

The Ninth Circuit upheld the controversial federal RLUIPA legislation. An action was brought by California inmates challenging prison rules penalizing attendance at Muslim Friday afternoon services. RLUIPA forbids such burdens on religious exercise unless they are in furtherance of a compelling governmental interest and constitute the least restrictive means of furthering that interest. California defended its regulation by contending that RLUIPA was unconstitutional, that is, that Congress had exceeded its power to regulate the actions of state government. The court disagreed. It found that the federal government, acting under the Spending Clause of the Constitution, had the power to condition monies given to states for prisons upon compliance with RLUIPA. The court also held that the statute did not establish religion because its purpose was simply to protect the free exercise of religion from unwarranted and substantial infringement. It likewise found no Tenth Amendment violation because the federal government was acting under the Spending Clause and was not directly ordering California how to run its prisons. Finally, the court determined there was no violation of the Eleventh Amendment, which bars suits against states, because the inmates had only sought injunctive relief against individual state officials and had not sought money damages from the state treasury. Mayweathers v. Newland, 314 F.3d 1062 (9th Cir. 2002).

It should be noted that this case involved the "institutional persons" portion of RLUIPA. It leaves open the question of the statute's constitutionality when it impacts neutral local land-use decisions that have the effect of restricting the construction of churches. In those cases, the Spending Clause may not be applicable as a basis for federal imposition of the compelling interest test on state or local government.

Pork Processing-Interstate Commerce

This challenged legislation was pure pork. An Iowa statute prohibited processors from owning pork production facilities in Iowa. Smithfield Foods challenged the ordinance as an imposition on interstate commerce. Smithfield was an integrated operation involved in both processing pork and producing hogs. It ran afoul of the statute when it began purchasing hog production facilities in Iowa to complement the processing operations.

The statute contained an exemption allowing Iowa cooperatives to engage in both production and processing. Its passage was accompanied by statements from Iowa legislators that it was designed to protect the states' farmers from large meat packing firms and to ensure that the majority of wealth created by Iowa agricultural productivity was retained in the state. The court, given these facts, held the statute to be naked protectionism, enacted with an eye toward nothing more than protecting local economic interests. As a result, this particular piece of pork legislation was struck down. Smithfield Foods, Inc. v. Miller, 71 U.S.L.W. 1459 (S.D. Ia. Jan. 22, 2003).

Slave Labor Law-California-War Powers

Also struck down recently was a 1999 California law that established a cause of action permitting suits by World War II slave laborers against companies for whom the labor was performed. When a German holocaust survivor and an individual subject to the Japanese slave labor program sued German and Japanese entities in the California courts, the suits were dismissed after they had been removed to federal court. The Ninth Circuit held that California was conducting its own foreign policy. The statute trenched upon "the power of the federal government to make and resolve war, including the power to establish the procedure for resolving war claims." Because the United States' treaty ending World War II did not encompass a private right of action, California's attempt to add one violated the exclusive power of the federal government to make rules regarding war. Thus, while California might have the sixth largest economy in the world, it cannot conduct foreign policy. Deutsch v. Turner Corp., 317 F.3d 1005 (9th Cir. 2003).

Commerce Clause-Project Labor Agreements

An Ohio law forbade any public authority awarding construction contracts from requiring that contractors or subcontractors hire only union workers or people who pay union dues. Montana and Utah had enacted similar laws. The statute was challenged in state court by the Ohio State Building and Construction Trades Council. In response, the Ohio Supreme Court voided the statute as being preempted by the National Labor Relations Act. Reviewing 1959 amendments to the NLRA, the court found an explicit congressional directive to leave such construction industry project labor agreements to the operation of economic forces. The state's complete ban was incompatible with this goal. Further, the statute did not come within the exemption set up by the Supreme Court in the Boston Harbor case in 1993 for those situations in which the state itself acts as a market participant on its own projects. Here, the state enacted a blanket across the board regulatory prohibition that barred any case-by-case determination of the benefits of project labor agreements in particular situations by any governmental entity. Because the state was thus acting in a regulatory, not a proprietary capacity, the statute violated the over-riding policy of the NLRA. Ohio State Bldg. and Constr. Trades Council v. Cuyahoga County Bd. of Comm'rs., 71 U.S.L.W. 1401 (Ohio Sup. Ct. Dec. 27, 2002).

There was other news as well.

Group Homes-Unregistered Sex Offenders-State Preemption

A Northglenn, Colorado ordinance forbade unrelated unregistered sex offenders from living together in single-family homes in residential districts. The ordinance was challenged by a foster care provider housing three unrelated children who were the victims and perpetrators of incest; the three were registered offenders under state law. On appeal, the Colorado Supreme Court held that the ordinance was preempted. When the state approved foster care providers, it demonstrated an interest in placing children uniformly under the statewide criteria set forth in the Colorado Children's Code. The ordinance impeded this goal of uniform placement criteria by establishing local standards that removed foster children from homes and decreased the total number of foster care homes available. The court noted that at least seventeen other Colorado counties and municipalities had similar ordinances. Thus, the threat to placements was real. City of Northglenn v. Ibarra, 31 LAND USE L. REP. 19 (Colo. Jan. 13, 2003).

Finally, an interesting piece of legislation. In a number of states, municipalities have adopted ordinances substantially reducing permitted residential densities to alleviate growth pressures. A recent California law restricts this practice. It prohibits local governments from requiring or permitting the reduction of residential density below densities used by the state in determining compliance with the state's housing element law. Localities can obtain an exception only if they show that the density reduction is consistent with their general plan and that they can continue to accommodate their share of the regional housing need notwithstanding the density reduction. See 2001 Cal. A.B. 2292, adopted Sept. 19, 2002, reported in 55 LAND USE L. & ZONING DIG. 32 (2003), also cited as 55 ZD 1001 (2003).