   |
RECENT DEVELOPMENTS
Peter A. Buchsbaum practices law with Greenbaum, Rowe, Smith, Ravins, Davis & Himmel in Woodbridge, New Jersey.
Some critical issues involving both politics and law have been on the front burner.
Reapportionment—Mid-Decade Congressional Redistricting—Elections Clause. A three-judge district court has sustained the constitutionality of the Texas mid-decade redistricting, which had been passed by the Republican legislature. The court acknowledged that mid-decade redistricting may be unwise. It could undermine democratic accountability and exact a heavy cost on state independence if federal congressional leaders influenced state redistricting behavior. According to the court, however, these arguments, were directed to the wrong forum. Neither the Elections Clause of the U.S. Constitution, which allows Congress to regulate elections, nor the Census Clause, which provides for apportionment of congressmen among the states once every ten years, bar mid-decade redistricting. Although Congress, under the Elections Clause, might have the power to do so, it has not so acted. Accordingly, mid-term redistricting for the time being is permissible, under the federal Constitution. Session v. Perry, 298 F. Supp. 2d 451 (E.D. Tex. 2004).
Mid-Decade Redistricting—Colorado—State Constitution. In contrast to Session, the Colorado Supreme Court struck down that state’s mid-decade redistricting. The court interpreted Article 5, § 44, of the Colorado Constitution as barring more than one redistricting in ten years. That section provides that the General Assembly of the State of Colorado is to divide the state into congressional districts “when a new apportionment shall be made by Congress.” The court applied this limit to the proposed second redistricting, even though the first redistricting had been imposed by order of a state court, rather than the General Assembly itself. In coming to its conclusion, the court noted that no decision by any state’s highest court had interpreted a state constitution to allow mid-decade redistricting; many courts had in fact concluded that it could only occur once. The Colorado court case was decided before the Texas case, but after reading the two, one wonders what might have happened had the Texas plaintiffs sued in state rather than federal court. People ex rel. Salazar v. Davidson, 79 P.3d 1221 (Colo. 2003).
Residential Picketing—First Amendment—Time, Manner, and Place Regulations. Feeling discriminated by the State Bar of Michigan, Stephen Dean, and two persons paid by him, picketed the home of the director of professional standards for the state bar. A lawsuit ensued when Dean alleged his First Amendment rights were violated during a confrontation that occurred in the midst of such picketing. Byerley defended on various grounds, including the right to privacy in his home. The Sixth Circuit reversed a grant of summary judgment, however, and held that Dean had raised a colorable First Amendment claim. Michigan statutes banned only labor picketing in front of a residence. In the absence of an appropriate time, manner, and place regulation of other kinds of residential picketing, Dean had the First Amendment right to use the streets to express his feelings about his treatment by the Michigan Bar. The court also held it arguable that Byerley in confronting Dean’s picketing had acted under color of state law even though he was not a law enforcement officer. One judge dissented, on the ground that the state law barring labor picketing was intended to apply to all residential picketing and that Byerley had no law enforcement authority. The opinion suggests that a properly drafted and narrow law or ordinance banning residential picketing would pass constitutional muster. Dean v. Byerley, 354 F.3d 540 (6th Cir. 2004).
Wal-Mart—Revenue Bonds—Donation of Public Funds to Private Interests. As part of the ongoing debate about a Wal-Mart in an historic New Orleans neighborhood, city taxpayers, property owners, and citizens opposed the determination of the New Orleans Industrial Development Board (IDB) approving the issuance of $28 million in revenue bonds to finance the construction of a Wal-Mart Super Center. The objectors argued that IDB had failed to establish a public purpose. The agency argued that the Super Center was part of a larger redevelopment project that would create 1,000 jobs, and over 800 market-rate and 323 affordable housing units. The appeals court agreed with the IDB. It found that the bonds were not a donation of public funds. Further, since the IDB owned the land, it was entitled to tax exemption and such tax exemption was therefore not a gift to a developer. Board of Directors of the Industrial Development Board v. All Taxpayers, 848 So. 2d 740 (La. Ct. App. 2003).
Adult Businesses—Restrictive Covenants—Industrial Parks. In another case involving industrial parks, the Tenth Circuit upheld Ogden, Utah’s use of restrictive covenants covering a publicly owned industrial park to bar a topless dancing club. The en banc ruling overturned a contrary ruling by a three-judge panel of the court. The covenants at issue required tenants in the industrial park to create a wholesome environment and not violate city ordinances or state law. The city attorney had ruled that a nude dancing establishment did not violate this covenant. A review board and the mayor disagreed stating that the nude dancing establishment conflicted with the allowed uses in the park. The en banc court held that covenants were applicable to all tenants and did not seek to regulate expression. Thus, even though they were general, the covenants were not unconstitutionally vague. The Tool Box v. Ogden City Corp., 355 F.3d 1236 (10th Cir. 2004), digested in 32 Land Use L. Rep. 11 (Jan. 28, 2004).
Permit Coordination—Environmental Impact Statements—Coastal Reviews. This case addresses the common issue of overlapping land use reviews. In Southhampton, on Long Island in New York, landowners sought local coastal erosion hazard and state wetlands permits to install steel bulkheads seaward of the dune line to prevent further shore erosion. After the town declined to do so, the New York Department of Environmental Conservation agreed to act as lead agency. The state then insisted on certain mitigation measures with which the landowners complied. As a result, the state issued a negative declaration of environmental impact and a wetlands permit.
At this point the town re-assumed jurisdiction and denied the coastal erosion permits as a violation of its own code. The trial, intermediate, and highest state courts in New York rejected the board’s re-assumption of jurisdiction and attempt to conduct its own environmental impact review. Instead of taking matters into its own hands, the local board should have appealed the state’s determination of no environmental impact or notified the state of its concerns. Further, the court was satisfied that the state had seriously looked at the environmental issues. Gordon v. Rush, 792 N.E.2d 168 (N.Y. 2003).
And finally, the latest news on RLUIPA, the Religious Land Use and Institutionalized Persons Act. On December 29, 2003, the U.S. District Court for Hawaii sustained the constitutionality of the statute in a ruling that allowed a Department of Justice RLUIPA case against Maui County to proceed. Because the determination is not a final judgment, it may be some time before an appeal takes place. See 32 Land Use L. Rep. 7 (Jan. 14, 2004).
All in all, a rather interesting time.