HomeMy WebLinkAbout4.5 State and Local Legal Center Request 64v -10
CITY OF DUBLIN
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AGENDA STATEMENT
CITY COUNCIL MEETING DATE: July 27 , 1987
SUBJECT Request From State and Local Legal Center
EXHIBITS ATTACHED Joint Letter dated April 28 , 1987 from National League
of Cities/U. S. Conference of Mayors/International City
Management Association
RECOMMENDATION Approve of City Participation through the payment of a
one-time assessment .
FINANCIAL STATEMENT: $250 one-time payment . Adequate funding is available
in the Legal Services Budget.
DESCRIPTION The City received a request for support to the State
and Local Legal Center . The mission of this organization is to advance the
collective interests of state and local governments before the Supreme
Court.
The Legal Center was orignially funded through a grant from the Pew Memorial
Trust . As with most grants of this type , it is now necessary to look for
continuing financial support . Local government organizations have agreed to
undertake this project . Rather than assessing annual dues , a coalition
consisting of the ' National League of Cities , United States Conference of
Mayors , and the International City Management Association , has agreed to
raise $1 . 5 million through a joint appeal for a one-time payment . This
represents the share to be contributed by municipal governments . State
Goverment Associations have a goal of raising $2. 5 million. The funding
will provide a continuing endowment for this organization. The fees are
based on population and the City of Dublin ' s share is $250.
Staff would recommend that the City Council approve of the City ' s
participation through payment of a one-time assessment .
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ITEM NO. / 4P 'S
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coNF� ICMA,the professional association
of appointed administrators
• serving cities,counties,regional councils,
end other local governments
0 37
• •• •" •
National League of Cities Z "• "• "
1301 Pennsylvania Avenue, N.W. ?� �a 1CMA
�� ,.�10 1120 G Street.NW
00
Washington, D.C. 204 �" Washington,DC 20005
1620 EYE STREET,NORTHWEST
WASHINGTON,D.C.20006
TELEPHONE(202)293-7330
April 28, 1987
IMY1 � 1 _
Richard C. Ambrose
City Manager r.1,-7-=.J
City of Dublin
P.O. Box 2340
Dublin, CA 94568
Dear Mr. Ambrose:
We are writing about a matter that needs your attention and support--the State
and Local Legal Center—the organization representing the interests of state and
local governments before the Supreme Court. We hope you will join the hundreds
of cities across the country that have already contributed to the Legal Center. To
be specific, we are asking that your city make a one-time payment to the Legal
Center to enable it to continue advocacy of municipal interests before the
U.S. Supreme Court. Here's why . . .
For more than a decade, decisions made by the United States Supreme Court have
seriously eroded the authority and fiscal integrity of local government. The Court
exposed cities to antitrust liability, required compliance with the Fair Labor
Standards Act, questioned many of our land use and zoning powers, interfered with
local labor practices and policies, expanded municipal liability on many fronts, and
redefined municipal functions—to name just a few!
Each successive term, more and more challenges to local government power and
authority are heard and decided by the Court. During its 1985 term, the
U.S. Supreme Court heard some 65 civil cases directly affecting state and local
governments.
Five years ago, we joined forces with our counterparts representing state and
county groups in creating the State and Local Legal Center as a program of the
Academy for State and Local Government. The Legal Center's mission is to
advance the collective interests of state and local governments before the
Supreme Court.
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The State and Local Legal Center was created to fill a, void in the advocacy of
state and local governmental interests before the nations highest court. No other
j organization represents the interests of the chief elected policy makers of both
state and local governments. We cannot leave those interests unprotected, nor
can we assume that others will make the Court aware of our policy choices, and
a the legal arguments in support of them, in cases before the Court.
The Legal Center's staff attorneys work closely with the National Institute of
Municipal Law Officers (NIMLO) and the National Association of Attorneys
General (NAAG). And the Legal Center staff is backed up by specialized, highly
skilled, private attorneys—experts on the intricacies of Supreme Court practice
and specific substantive areas of law--who are contributing thousands of hours of
time to the Legal Center without compensation.
The Legal Center submitted 22 amicus briefs on behalf of state and local
government during the Supreme Court's last term alone. It has conducted more
than 50 moot court sessions to assist state and local government attorneys prepare
for oral arguments before the Supreme Court. And all of this has been
accomplished with no charge or fee to the individual jurisdiction whose case was
before the Court. No other organization provides state and local government with
such horsepower.
Does legal advocacy work? Indeed it does. In a very short time, in case after
case, the State and Local Legal Center has been instrumental in protecting and
advancing the interests of local government. During last term, we won major
rulings from the Supreme Court, reducing greatly, the exposure of cities to
antitrust challenge, allowing local zoning regulations to limit the location of adult
movie theaters, protecting voluntary affirmative action plans of cities, and
restoring the ability of state regulatory agencies to limit local telephone rate
increases.
The Legal Center has been funded, to date, through a start-up grant from the
Pew Memorial Trust. The grant is now concluding, and the sponsoring state and
local government organizations have agreed to assume responsibility for ensuring
the continued support of the Legal Center. The state government associations
have a goal of raising $2.5 million and local government associations another $2.5
million.
Instead of trying to support this effort through annual dues, the National League
of Cities, United States Conference of Mayors and the International City
Management Association have agreed to raise �1.5 million as the municipal
government share through a joint appeal to our members for a one-time
payment. The results of our collective efforts will permanently finance the work
of the Legal Center. Fees are based on the population of the contributing
jurisdiction. Because we need your support and involvement, we have taken the
liberty of enclosing a statement with the amount of the proposed one-time
payment for your city.
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The Boards of Directors of the NLC, USCM, and ICMA have endorsed the Legal
Center and urge municipal governments to give it financial support. We hope we
can count on your early response to this truly worthwhile effort. Please call our
Executive Directors if you need additional information and assistance. You may
also call Joyce Holmes Benjamin, Deputy Chief Counsel of the Legal Center at
(202) 638-1445.
Thank Y PP
our ou for Y support.
Sincerely,
Cathy R olds Jorident,
ley, Jr.
President, Pr National League of Cities erence of Mayors
Councilwoman-at-Large, Mayor,
Denver, Colorado Charleston, South Carolina
Bu M. Watson, Jr.
P ident,
International City Management Association
City Manager, -
Lawrence, Kansas
cc: Chief Legal Officer
Enclosures
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,
I
Nation's Cities
NATIONAL
LEAGUE
__. OF CITIES
Washington, D.C. 'April 13, 1987
NIMLO supports State, Local Legal Center
by William Davis
NauonRl
Instiwm
After months of discussion among r of
ep- munirio
resentatives of various state and local �•oIrKM
associations in Washington,an operating
agreement between the National Insti- l000 conri ;r,n A.enue.N W..Suite goo.Washington.D.C.2 Le al Defense u
tute of Municipal Law Officers NIMLO l Defense Fund
P (NIMLO) �Ra���National Municipal Litigation tenter of the National Municipal Leda
and the State and Local Legal Center sip A�cn•U•" VERGMCA LONGNIt'E DIRECTOR
veRON1CA LONGMIRE
(SLLC)has been forged. ^�"`EJATF3'"ES1DQ" March 27, 1987
ROY D
In a letter to NIMLO members an-
nouncing the organization's support for SECOND V P"ES'DET
WILLIAM N.TAU,E
the State and Local Legal Center, Roger
Cutler, president of NIMLO and city at- ,,,D"c,rREStoENn dear NIMLO Members:
torney of Salt Lake City, Utah, said ""•A' "Y °`� al Center Agreement
`,W.,.�ceo,o. Re: State and Weal Leg
"Prior concerns within NIMLO regard-
'"USURER i am pleased to announce to you that NIMLO has
ing the function,activities,and operation �'�'"",�,, %ORNiOH.AL crating agreement with the State and
Local Legal Center of the Academy for State and Weal
of the Legal Center have been resolved Dul.aNeMGome• entered into an op
satisfactorily." HARLELCO1K'S- al Center and
y" GENERA COUNSe Government. The agreement provides NIMLO with full
WRe
or participation in ehe .a=eiforitheoCenterLeg
The agreement, the purpose of which reflects NIMLO's supp0
ntusnees:
is to improve advocacy by local govern- poNNw.wrtT prior concerns within NIMLO regarding the
'°"du"~°� ' activities, and operation of the Legal Center
ments before the United States Supreme
C D C.Iinwn• function, resolved satisfactorily. NIMLO has a voting
Court, delineates the responsibilities of have
position on the day-to-day supervisory body of the
both organizations for assisting munici- RORER'J.ALFTON
�M..e M�e.� Legal Center; it also has two representatives pecifically
pal officials in such a way as"to comple- JAMES R.DAIOR
Advisory Board- Moreover, the agreement, odes that
identifies NIMLO's areas of service and n�ry efforts
ment each other's efforts and to avoid i�eedA°".Al.e.— parties intend to identify came activities. A
duplication of effort and overlap of activ- ,��NN.a.RAUMrs and too avoid duplication and overlappi�ur reference.
ities." ZZ-""'e1eie, copy of the agreement is enclosed for your
"Arm a.o'nAMEY.'m Your city has or will be receiving invoices for
g Wwe•Read,FWIW- legal services from the Academy for State and Local
The agreement commits both or a- p„Am M organizations
nizations to coordinating, and possibly Government on behalf of the municipal DOUGLAS N. sponsor the Legal Center; under the agreement you
collaborating,on their newsletters.It ro- ��+ that receive P W'd""°� will receive a copy of all such eoltlmunicntion8i Center
vides for re resentation of NIMLO on operating g part
will support each
P Rosearn.WANOLER A reament between NIMLO and the. g
SLLC's Advisory Board and its Legal `°'R'•°°°`°"°"I rovides that thactivities.'
wa�.me.en. otherps fund raising
Task Force and a representative of SLLC NULL-NEIL S' cer y,
Cky S p"L
to attend NIMLO meetings. Ti,6 OtwMo
O
R7SE�N t.MULLIGAN
Further, it commits NIMLO and SLLC 0, , ' F CUZLER
to support each other's fundraising activ- presiaene
ities.
In transmitting the signed agreement .Rhyne wrote, "NIMLO looks forward to joint venture will be a great success."
from NIMLO to the chairman of the the opportunities this cooperative under- Alan Beals, executive director of NLC
Board of Trustees of the Academy for taking provides and will carry out hailed the agreement as "the beginning
State and Local Government—the parent NIMLO's obligations with great enthusi- of a new era in effective advocacy on
organization of which SLLC is a part— asm." behalf of municipal governments before
NIMLO General Counsel Charles S. "I feel certain," he wrote "this new the nation's highest court." ❑
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Hill,I .---_. - -T IONAL � " N a•�,t.o n,S Cities ,
LEAGUE
-- F CITIES _
.,; ,,.:Washington, Februa 2
ry ,1987 ,
Drive opens to raise $5 million ±for yx
.. .:; Legal Center
Mayor Robert Isaac,also a member of the Court justices"and legal'scholars'whosai way.The legal center has filed more than
by Linda R.Woodhouse center's advisory board."When you had thought state and local overnments
federal assistance,you kind of ex g vv�50 amicus briefs on behalf.of Big Seven
y peeled were losing a disproportionate number of ;organizations in.the last three years.Of
The;National.League of Cities and to have strings come with it; now you cases,"said Benna Solomon,chief legal those,:14 have been filed in cases that
Y' other,public,interest organizations are have strings with no assistance. counsel for the center."Some state and:;,•, ;have been decided or are pending during
kicking off a major drive,this month to "We are experiencing the worst pre- local govemmentattomeys were also at a iw,:,the current term of,the court,said Joyce
raise$5 million for the State and Local' emption from the federal government in disadvantage'because they were unfa- ,Benjamin,,one of the legal center's three
?� Legal Center,a part of the Academy for our history,and it is really important for miliar with the operations i the high ;r,;s .lawyers.Another five or six will be writ-
State and Local Government.
t r -sties to help in the legal center's efforts court and of general law principles re-;.;,;,;;ten before the current term ends.
NLC President Cathy Reynolds,coun- to represent the cities:.views before the laced to their particular cases."
:.:cilwoman-at-large from Denver, called court,"Isaac said. °� -....! "They're going to act anyway,so if we
"The Supreme Court is'a ve im r
on every city—large and small=to pay 'Along with direct solicitation from tant actor in determining how federal, .;aren't presenting general arguments
its fair share based on city population NLC,five state municipal leagues have state and local'governments will work ' Dough the legal center briefs for cities as
�i (see accompanying contribution table)to '' "also agreed to solicit their members: together,"said Enivernm n is ill work a whole,we won't get a lager focus from
insure that the center will continue to '''Maryland, Virginia, New Hampshire, of the legal centefs parent organization,
the court;a more narrow opinion could
articulate city issues in cases before the Oklahoma,and Wyoming P result,"said Davis..;,r
Supreme Court. y g the Academy'for State and Local Govem-...;,. :,.In recent years,the odds of state and
The Maryland Municipal Association ment. "We are'trying to learn how to local governments winning cases before
The general issues in many cases be- sent out letters several months ago and influence the system to say the'things, __,,.the high court have been 3 to 1.Three-
q fore the Supreme Court apply to all cit- "-has received pledges from 40 of its 142 that need to be said."
' ies,'Reynolds said."It's not reasonable " `member cities so far. fourths of the time the high court ruled
" ` The'academy,which houses the cen- -_, .against our position.,The-Big Seven oga-
g for some cities to say'Let the others fund "I think our members recognize the ter,is a not-for-profit,tax-exempt public .. niza
tt value of supporting the legal enter," "' foundation operated by the Big Seven, bons hope to improve that record
"It's the strength of our numbers that said Jon Burrell,executive director of the whose purpose is to provide them with_. ugh the work of the legal center.
has always made this organization work., rte;Maryland league."It's something every- technical assistance, training and re- . >,seeevidence oth that the cbriefnwri writing and
a We need that same show of strength to , body needs to get behind because. we. ;''._search:The executive directors of the Big work with attorneys on procedure and
meet our funding goal for the legal cen- -need to have that kind of advocacy. '''
ter"Reynolds said. cl Seven serve as the academy's and the presentation have influenced Supreme
3 n "Decisions of the Supreme Court affect legal center's governing board. 1 Court decisions.
} Three organizations representing cit- everybody,"added Burrell,a member of Amonz th The court has quoted ies—NLC, the International City Man- the NLC Board of Directors."'I don't for Alan Beals who saw establishmeD t of filed on behalf of cities legal several briefs
agement Association and the U.S.Con- think this is an issue of small versus large the legal enter as"a very important and Benjamin said,and has used reasoning
ference of Mayors—have committed to cities.Whatever the decisions by the Su- critical development in preserving the put•forth in legal center briefs as the basis
raising$1.5 million by July 1988 from preme Court are,they will have an affect role of local governments in the federal for decisions.
municipalities across the nation. The across the board;they don't differentiate system.
money will be placed in a trust fund and between small cities and large cities.". "The creation and :The legal enter briefs,most at which
will be used, along with funds raised The legal center was created in 1973 by legal center builds on tthhe�work that NLC tie without charge, try p ovapresent
from counties and states,to pay for the the "Big Seven"organizations to assist did in National League of Cities V.Usery in broader principles of law that will help
center's future operations. state and local governments in present- 1975 and in other cases since," Beals develop the judicial philosophy of the
The legal center's current annual bud- ing cases before the U.S.Supreme Court. said..
get is$500,000. The center provides it Besides NLC, the organizations com- William Davis,director of'NLC's Of- feederalism will educate the mart about
services to cities,states and counties at no prising the Big Seven are:the Council of flee of Policy Analysis and Development, ,"A simple win-loss record is obviously
charge, which is why the fundraising State Governments, International City said cities giving money to support the inadequate to reflect the impact we be'-
effort is crucial to keep the program go- Management Association, National legal center"makes good sense"...be- lieve the legal center is beginning to have
Ong Association of Counties,National Con- cause"you've got a lot to lose,you are on the philosophy of the court,"stated a
"Our collective voice before the Su- ference of State Legislatures, National very vulnerable.
preme Court may be silenced,"said St. Govemors'Association and U.S.Confer- recent legal center summary of cases in
Paul, Minn. Mayor George Latimer, a ene of Mayors. "The costs to cities if a decision goes which the center intervened.
y the wrong way can be astronomical,not Sources outside the center agree.
member of the center's advisory board, Specifically,the center assists: . only in monetary terms but in terms of In the Fall 1986 issue of The Urban
"if individual mayors and council mem- §by helping attorneys in the prepara- loss of power or authority to govem at Lawyer, a quarterly publication of the
bets fail to put the legal center on secure tion of legal briefs and oral arguments; the local level," added Davis, who is American Bar Association, Robert
financial footing." § by submitting"friend of the court" spearheading NLC's fundraisin effort. Freilich,a Kansas City attorney
More than 200 cities have'already (amicus)briefs in matters of general con- "The Supreme Court will make a set fessor of law at the Universty aof M s-
pledged to help fund the center.(See list.) cem to state and local authorities, ` of judgments that is going to shape local souri,wrote,"The October 1985 Term of
Every NLC direct member city, and §by acting as an early warning system governments regardless of our involve- the U.S.Supreme Court proved to be the
many other cities across the country who to identify important legal focuses at an ment,"said Davis,
hold indirect memberships in NLC early stage*in their development,and _ most successful for state and local credit for
through their state municipal leagues, § by keeping state a d local legal that are adverse tonciti sad spa es to improevem nts in ethe outcom of Su-
will receive letters in the next two counsel abreast of developments in the cases concerning insurance issues, fair preme Court decisions must lie with the
months asking for their support, Supreme Court. labor practices,municipal antitrust ac- advocacy, brief writing and the amicus
The City of Phoenix enthusiastically Until now, the legal center has.been lions, and other important areas," said curiae_program of the State and Local
supports the legal center and its partner- funded by a start-up grant from the Pew Goddard from Phoenix."The legal center Legal Center."
ship between local governments and top Memorial Trust;through funds from its provides first-rate legal assistance and Freilich serves on the 30-member advi-
legal talent,"said Phoenix Mayor Terry parent organization, the Academy for coordination for local governments that sory board for the center.
Goddard,second vice president of NLC State and Local Government,and by di- has been out of our reach in the past." Cleveland Mayor George Voinovich,
and a member of the center's advisory rect contributions from the Big Seven Of the 150 cases deci
board, organizations. ded by'the court past president of NLC,wrote in a recent
each term(a term runs from October to letter to the legal center that their brief i
"I would urge everyone to assist that The legal center was established in July),more than a third of them affect Local No.93,Firefighters o.City of Cleve-
effort," said Colorado Springs, Colo, response to "criticism from Supreme state and local governments in some land"dearly was a major factor in the
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..
Legal Center
court's 6-3 decision to reject the chat- Pikula,with the law firm of Matron
lenge to Cleveland's consent decree." STATE AND LOCAL LEGAL CPJPtKR Dimauro tk Fitzgerald,is a part time as
The case involved an affirmative action sistant city solicitor. He urged citie!
plan by the city to promote more minor- PROPOSED CITY CONTRIBUTION TABLE across the country to support the lega
ity firefighters. center Fundraising effort, even if thel
The high court specifically referred to (One-time Payment) never get a case before the Supreme
the legal center's brief in its decision. Court.
"It is rare that an amicus brief plays' City Population P "Even though a city or town may not
such a decisive role in'a case of such Amount of Payment be directly involved in Supreme Court
importance,"Voinovich wrote. - litigation,the cases in which the center is
In the case, City of Renton (Wash) v. 1,000,o0o and above $50,000 involved have an impact which is nation-
Playtime Theaters,Inc.the high court de- 500,000 - 11000,000 wide," Pikula said. "The focus of their
cided last year in favor of that city's 25,000 advocacy is to protect the interests of all
power to control by ordinance the loca- 200,000 - 500,000 10,000 cities and towns across the country
tion of adult theaters. "Your support of
100,000 - 200,000 rather than any one city in particular.
our appeal has lent substantial credibility ..5,000 'The State and Local Legal Center
to our contention that our appeal raises ' 50,000 - 100,000 2,000 gives local governments a unique oppor-
issues of concern to state and local gov- 25,000 - 50,000 tunity to coordinate and strengthen their
emments across the nation,"wrote Dan- Soo presentations to the Supreme Court,'"
iel Kellogg in a letter to Benjamin.. 10,000 - 25,000 250 Goddard said."In recent years,local gov-
Kellogg is an attorney with Warren and 5,000 - lo,000 emments'probably have suffered more
Kellogg, a Renton law firm that repre- 150 from the adverse effects of Supreme
sents that city of 32,000 near Seattle. 5,000 + below 100 Court rulings than from congressional
"We are truly grateful for your menu- actions, yet cities and states until now
' mental effort on our behalf," Kellogg have not been able to effectively repre-
wrote. sent themselves in major cases before the
Even in cases where the city's position court."
did not prevail, the contribution of the sst vile Penaing case,laity 01 Springlle(d, _ lions of me supreme t.ourr, ana wno '' "�We ask cities to pay a one-time con-
legal center s work has been recognized. M°u' a Kibbe, City Solicitor Richard have.expertise in the case area. Each tribution now, or they will pay much,
In Golden State Transit Co.v.City of Los Egan said, "We would not have been session is videotaped so attorneys can much more later—through costly losses
Angeles,Pat Russell,president of the Los able to do as well"in arguing their case later Critique their style as well as being of money and authority because of the
Angeles City Council said the legal cen- before the Supreme Court if the legal critiqued by the judges during the ses- court's adverse rulings,"Davis said. ❑
ter's brief"provided unusually effective center had not put together two moot sions on the content of their arguments.
support to the City of Los Angeles'efforts courts on behalf of the city. Ed Pikula,who argued the Springfield
to limit federal interference with basic A moot court is a practice run.A panel case before the high court,said the moot
franchising decisions...While we did .of "judges" put together by the legal courts"enabled us to better prepare for
center is made up of attorneys and legal the argument and really anticipate the
not prevail in the Golden State case,it was
not for want of n scholars who are familiar with the opera- areas in which the court would focus.
Cities already pledged to aid Legal Center
ALABAMA ILLINOIS Indus Head
Albertville Bellwood Laurel MONTANA OHIO CONTINUED WASHINGTON
Pine Hill Ellin sa Anaconda Wyoming Fife
Leonardtowo Butte-Silver Bow Lynwood
Franklin Park Luke
ALASKA Freeport Manchester OKLAHOMA ter Oak Harbor
Fairbanks Hazel Crest Antlers
Redmond
Middletown NEBRASKA Edmond Se dm
Kenai Lake Forest Morningside SeottaDtuff Guymon Niles Want Airy York The Village Vancouver
ARIZONA Normal Poolesviuc:
Flagstaff Waukegan Princess Anne PENNSYLVANIA WISCONSIN
Nogales _ Ridgley Eau Claire
Phoenix IOWA NEVADA Lancaster Watertown
Scottsdale Rock Rockville N. ne Vegas New Castle Ames Roekrille Wauwatosa
Springerville Winnemucca New Castle
Somerset Yeriagtoa Sharon WYOMING
KANSAS Sykesville
ARKANSAS Dodge City Take=Park NEW HAMPSHIRE York Basin
Batesville Emporia Tancytown Basin
Overland Park Walkersville Dover RHODE!BLAND Clearmoot
CALIFORNIA Russell Franklin Lincoln Dayton
Westminster Douglas
Davis Dra Salina NEW MEXICO SOUTH CAROLINA East Thermopolis
gV10 MASSACHUSETTS
Inglewood LOUISIANA Lawrence Artesia Charleston Glendo
Los Angeles '. Monroe Gallup Myrtle Beach Gillette
Norwalk Port Allen MICHIGAN Las Cruces Green River
Palo Alto Rayville Beaton Harbor SOUTH DAKOTA Hartville
Sunnyvale
Westlake NEW JERSEY Watertown Kemmerer
Highland Park Freehold Lost Springs
COLORADO MAIN[ Holland Randolph TENNESSEE Lovell
Colorado Springs
Huntington Woods East Ridge Medicine Bow
Auburn Madison Heights NEW YORK Fayetteville
Frisco Bath Pontiac Jamestown Fayetteville hulls
Thornton Lewiston Port Huron New Rochelle Maryville Pine Bluffs
Portland Roehester y Powell
Scarsdale Morristown
CONNECTICUT Taylor Rock River
Ansonia MARYLAND Wayne Rock Springs
MARY A NORTH CAROLINA TEXAS Saratoga
DELAWARE Barnesville MINNESOTA Canton Grand Praire Sheridan
Dover Barton Charlotte University Park Shoshoni
Alberta Lea Chapel Hill
C�mOitC a Artesia Concord UTAH Sinclair p
FLORIDA Teu Sleep
Atlantic Beach Ceeilton g MaIYID Lumberton Brigham
Mankato Mocksville Bountiful
Clearwater Cheverly Mount Air
Lauderhill Town of N w Ulmrove y Ogden
Maitland Cher Chase Newton
Melbourne r Northfield Scotland Neck VIRGINIA
Village of St Paul
Sanibel Whiteville Charlottesville
Chevy Chase Wilmin
Sunrise Elkton MISSISSIPPI B Chatham
Forest Heights Flowood Winston-Salem Culpepper
GEORGIA Frederick Lucedale NORTH DAKOTA Falls Demur CHurch
Gaithersburg Grand Forks Fairfax
LaGrange Garrett Park MISSOURI
Marietta Greenbelt Fredericksburg
Thomson Florissant OHIO Newport News
Greensboro Hazelwood Brunswick Pamplia -
Hampstead Liberty Cleveland Rocky Mount
IDAHO Highland Beach N.Kansas City Columbus Virginia Beach
Nampa o Hurloek St.Charles Cuyahoya Falls Wise
Nampa Hyattsville Warrensburg Huron
�q CO�It;� ICMA,the professional association
of appointed administrators
serving cities,counties,regional councils,
and other local governments
O M
. '• .' , .
National League of Cities �� '• " a
1301 Pennsylvania Avenue, N.W. ,� 1CMA
Washington, D.C. 20004 �`t 5�0 Washington.DC 20005
1620 EYE STREET,NORTHWEST
WASHINGTON,D.C. 20006
TELEPHONE(202)293-7330
April 24, 1987
QUESTIONS AND ANSWERS
STATE AND LOCAL LEGAL CENTER
1 . What is the State and Local Legal Center?
The State and Local Legal Center, a project of the Academy
for State and Local Government, was established in 1983 by the
seven major national organizations of state and local general
purpose government officials . 1/ Governors , legislators , and
local government officials thought it important to find a way to
advance and defend the interests of state and local governments
within our federal system, and, specifically, to provide an
enhanced presence for state and local governments before the
Supreme Court of the United States .
The Academy is a non-profit, tax-exempt corporation governed
by these organizations of state and local government elected and
appointed officials as their joint policy center. The executive
directors of the organizations serve as the Academy's Board of
Trustees and direct all activities of the Legal Center.
1/ The National Governors ' Association, National Conference of
State Legislatures , Council of State Governments , National
Association of Counties, National League of Cities, U.S.
Conference of Mayors, and International City Management
Association are the trustee organizations of the State and
Local Legal Center.
2. Why was the State and Local Legal Center established?
Each year, out of the thousands of cases in which review is
requested, the Supreme Court chooses about 150 for a full
hearing, almost half of which are civil cases involving state or
local governments. Before the creation of the Legal Center, the
Court was deciding these cases without understanding the
viewpoint of state and local government officials other than the
party to the case. The Court routinely heard cases involving
federal preemption, state and local regulatory authority, and
taxation; and it decided those issues case by case on the argu-
ments of the parties involved. The larger perspective of state
and local governments generally was not offered to the Court to
help the Court in its decisions because there was no organization
charged with that task. At the time that the Legal Center was
established, there was no legal office or organization in the
country--and there still is none other--that represented state
and local government officials united in their common concerns.
The absence of an effective, organized voice for federalism
led to the establishment of the Legal Center. In its simplest
terms , the Legal Center provides a mechanism for state and local
government officials to follow the Supreme Court 's docket and
respond with their views in appropriate cases. State and local
governments seemed to be among the last major players before the
Supreme Court to appreciate the value of thoughtful, well-
prepared amicus curiae briefs . An effective amicus brief lets
the Court know that others care about the case, how strongly they
care, and why they care. It may also provide the Court with
views that differ -- in legal theory, in breadth, in implica-
tions, or otherwise -- from those expressed by the party to the
case. Amicus briefs are often instrumental in winning the case
before the Court or in laying the groundwork for winning another
case down the line. The federal government, public interest
groups, and business interests frequently file such briefs to
provide the Court with their views.
In less than four years, the Legal Center has filed more than
50 amicus briefs in the Supreme Court. Frequently, the Legal
Center's brief has been the only amicus brief filed in the case
on behalf of any state or local governments or officials ; and it
is always the only brief filed on behalf of state and local offi-
cials . Although other organizations , notably the National
Association of Attorneys General or the National Institute of
Municipal Law Officers, may file or facilitate the filing of
briefs on behalf of their members, neither offers the Legal
Center' s voice of state and local officials in unison. The Legal
Center' s amicus briefs, which have been expressly cited or
obviously followed by the Court in many cases, fulfill the vision
of the Legal Center' s founders : a means for state and local
governments , acting together, to advance their common interests
and the interests of federalism in the Supreme Court. (The Legal
Center's other programs , which are described in other answers,
are also designed to enhance the presentation of the views of
state and local governments to the Court. )
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3... My city or state does not expect to be directly involved as a
party in a Supreme Court case . How will we benefit from the
State and Local Legal Center?
.No city or state expects to be involved in a Supreme Court
case, and few become directly involved . But your government may
become involved in unexpected litigation, or litigation that
unexpectedly makes its way to the Supreme Court.
Moreover, your government is affected by Supreme Court deci-
sions , even though no statute, ordinance, administrative deci-
sion, or tax from your jurisdiction is ever challenged in court.
The Supreme Court makes law for the nation; each city, county
and state must obey its rulings . If the Supreme Court had
decided that an ordinance restricting the location of "adult"
motion picture theaters to commercial areas violated the First
Amendment, that decision would have 'imperiled similar ordinances
all over the country . The Legal Center helped to persuade the
Court to sustain such an ordinance in Renton v. Playtime
Theatres. Had the Court ruled that Congress granted t e. Federal
Commun cations Commission authority to order California,
Louisiana, Ohio, and Florida ' s regulatory agencies to use the
federal depreciation rate schedules in setting state telephone
rates , regulation of utilities by all states would have been
severely curtailed. The Legal Center helped to protect the
challenged regulations in Louisiana Public Service Commission v.
FCC.
As these cases illustrate, state and local governments in
general benefit by having the State and Local Legal Center moni-
toring the Court, ready to help make the best case for federalism
by defending the authority and responsibility vested by our
Constitution in the hands of elected state , county, and city
officials .
4. How did the Legal Center begin?
The concept of a center for Supreme Court advocacy for state
and local governments was developed over time and by many par-
ticipants . Governors , legislators , and local government offi-
cials worked through their own membership organizations for its
establishment. In 1983, as a result of their efforts, the Legal
Center was established with a grant from the Pew Memorial Trust,
one of the major national foundations. The seven trustee organi-
zations have each made direct annual contributions to the Legal
Center, which also receives substantial support from the Academy.
5. How does the Legal Center reconcile a possible conflict be-
tween state and local governments?
State and local officials agree about the principles of
federalism and the importance of maintaining a strong voice for
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state and local authority before the Supreme Court of the United
States. In the rare case (perhaps one a year) that reaches the
Court in which the interests of state and local qovernments
diverge, the Legal Center does not participate.
6. Why the focus on the Supreme Court?
A Supreme Court case differs from litigation at lower levels
of the judicial system in several important respects . The
Supreme Court makes law 'for the nation; what the Supreme Court
decides not only governs the disposition of the particular case,
and possibly a great many other cases as well, but provides a
standard of conduct for individuals and government officials for
the future. The very fact that the case has reached the highest
court in the land demands the very best advocacy obtainable.
When a case reaches the Supreme Court, the issues have been
distilled to one or more clearly defined points of law, requiring
careful concentration and techniques very different from those
that may be effective at trial or in an intermediate appellate
court. The type of issue considered by the Supreme Court differs
from the issues that typically control the disposition of cases
at lower levels. In addition, the Justices have an unparalleled
depth of knowledge of constitutional issues that demands a high
degree of expertise on the part of attorneys appearing before
them. Special training is required to compress the presentation
of complex issues into the limited time allowed by the Court,
which is generally reduced by questions from the Justices . The
stakes are high, and state and local government attorneys are
frequently opposed by the best legal talent in the country.
7. Do the activities of the State and Local Legal Center dupli-
cate those of other organizations?
No. The Legal Center was established to meet a recognized
unmet need, discussed previously .
The National Association of Attorneys General (NAAG) is the
primary service organization of the state attorneys general ; it
provides substantial assistance only to its members and their
staffs. The National Institute of Municipal Law Officers
(NIMLO) , in which municipalities participate through their chief
legal officers, assists those municipal attorneys through a
variety of programs . State agencies and many cities are fre-
quently represented by attorneys who are not served by NAAG or
NIMLO. The Legal Center has a number of programs designed to
assist these attorneys. More important, the Legal Center's
programs advance the common concerns of state and local govern-
ments when cases before the Supreme Court of the United States
will affect their interests and their authority.
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8. What is the relationship of the National Association of
Attorneys General (NAAG) and its members, who usually repre-
sent the states , with the Legal enter? what is the rela-
tionship of the National Institute of Municipal Law Of icers
(NIMLO) with the Legal Center?
The Legal Center has cooperative and non-duplicative rela-
tionships with NAAG and with NIMLO that have been described in
formal operating agreements to clarify the respective roles of
the organizations.
The NAAG agreement recognizes that NAAG is the service orga-
nization of first resort in all cases where an Attorney General
is the state 's legal representative, with primary responsibility
to aid Attorneys General by assisting in writing briefs, by coor-
dinating briefs amicus curiae by states, and by providing moot
courts . The NIMLO agreement recognizes that NIMLO is the service
organization of primary resort in all cases where a party to a
case before the Supreme Court is represented by a NIMLO member,
with primary responsibility to aid its members by providing
assistance in writing briefs and holding moot courts.
In all cases in which the party is not represented by a state
attorney general or a NIMLO member, the Legal Center is the ser-
vice organization of first resort, with primary responsibility to
aid the attorney representing the party by assisting in writing
briefs and providing moot courts. The Legal Center also has sole
responsibility to aid the trustee organizations in their filings
of amicus briefs and in other actions in which they are named
partiT- As set out in other answers , there are numerous areas
in which the organizations cooperate in jointly providing
assistance toward their mutual goal of improving the advocacy of
state and local government lawyers before the Supreme Court.
9. How does the Legal Center decide in which cases to par-
ticipate?
The decision to prepare an amicus brief is initially the
responsibility of a Legal Task Force which meets perhaps 20 times
a year. Each of the seven trustee organizations and NIMLO is
represented on the Legal Task Force by a staff member. The Task
Force uses written guidelines for case selection that were
adopted by the Board of Trustees . 2/ The representatives of the
organizations are highly experienced attorneys familiar with
state , municipal , and constitutional law. A representative of
the National Association of Attorneys General and the Chairman of
the Advisory Board of the Legal Center sit as nonvoting members
of the Task Force.
2/ A more detailed description of the process is available on
request.
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The Legal Center staff reviews all cases that the Supreme
Court has decided to hear for issues that affect state or local
governments . A written analysis is prepared whenever, in the
judgment of the staff , the case warrants consideration by the
Legal Task Force, or whenever any trustee organization requests
that a case be considered . Cases are also brought to the atten-
tion of the Legal Center by a state or local government attorney
asking the Court to accept a case for review.
When the Legal Task Force selects a case for Legal Center
participation, the staff works closely with the attorney repre-
senting the state, city, or county that is a party to the case .
One of the Legal Center' s primary goals is to help attorneys
representing state or local governments make the best possible
case to the Supreme Court.
10. How does the Legal Center help an attorney representing a
city, a county, or a state?
The Legal Center offers direct assistance to the attorneys in
the form of substantive or editorial suggestions on their briefs
and arguments . In addition, in working with local government
attorneys , the Legal Center lends video tapes developed for
training on Supreme Court briefing and argument prepared in
cooperation with NAAG (with funding by the U.S. Department of
Justice ) . The Legal Center sponsors moot courts in which
experienced Supreme Court lawyers act as judges in rehearsal of
oral arguments . NAAG provides the tapes and moot courts for the
Attorneys General and their staffs and NIMLO also offers a moot
court program to its members. The Legal Center offers indirect
assistance by filing amicus briefs in 20 to 25 cases a Term; the
Legal Center staff works closely with the attorneys in developing
a�-�d drafting amicus briefs . In fact , state, city, and county
party briefs frequently refer to the Legal Center amicus briefs
_n cases as a way of supplementing arguments in their own party
briefs .
The Legal Center has sponsored publication of in-depth scho-
larly analyses of state/federal constitutional issues . 3/ Most
recently , the Legal Center sponsored an issue of the Urban Lawyer
(the publication of the American Bar Association Section on
Urban, State and Local Government Law) dealing entirely with
federalism questions . Distinguished legal scholars contributed
the articles for this publication.
The Legal Center has also, in conjunction with the National
Association of Attorneys General, organized and conducted
training conferences on Supreme Court advocacy for state and
local government attorneys .
3/ Copies of the publications are available on request.
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Each month, the Legal Center publishes its newsletter, COURT
REPORT, to help state, city, and county officials keep informed
about developments in the Supreme Court that may affect them.
a11. What is the Legal Center's moot court program?
J The moot court is a rehearsal of a Supreme Court argument
before a panel of "justices" who are familiar with the issues in
the case and with the techniques of appellate argument. Many
highly experienced Supreme Court advocates invariably participate
in moot courts before argument. For an attorney making a first
j appearance before the Court -- as most state and local government
attorneys are -- a moot court is essential .
'1 The Legal Center moot court program is designed to help a
government attorney prepare the best possible argument to present
to the Court. (NAAG provides the moot court program for Attor-
neys General and their staffs, and NIMLO offers a moot court
program for its members . ) State and local attorneys frequently
face formidable opponents, like the Solicitor General of the
United States or an attorney from a large law firm with extensive
Supreme Court experience ; many state and local government attor-
neys find a moot court the best preparation for the oral argument
itself .
The Legal Center provides videotapes on Supreme Court advo-
cacy to the attorney. One or more moot court sessions are then
scheduled for the attorney, if possible at a time when they can
also watch arguments before the Court. The Legal Center and NAAG
work cooperatively in finding moot court panelists and in sche-
duling the moot courts .
Attorneys to date have been unanimously appreciative of the
moot court sessions and typically say, after the actual Supreme
Court argument, " I wasn ' t asked a question that I hadn ' t heard
before. "
12. What is an amicus brief , and why are they filed?
An amicus curiae (or friend of the court) brief is filed by a
person or organs at on who is not a party in the case, but is
vitally interested in its outcome because of the potential effect
of the decision . The Solicitor General of the United States is
the most active amicus before the Supreme Court, sometimes on the
Solicitor ' s own init ative and sometimes at the request of the
Court in cases in which the Justices think it important to have
the views of the United States Government . Amicus briefs are
also filed frequently by the American Civil Liberties Union and
other organizations including business groups and professional
associations .
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Amicus briefs are filed for a number of reasons. One is to
present an argument or point of view that differs somewhat from
the party 's presentation . The party generally has a single goal
in mind : to win the case . The amicus may view the case from a
broader or different perspective . For example, in Fisher v.
City of Berkeley , the city 's principal concern was to defend its
rent control ordinance from preemption under the federal
antitrust laws . The Legal Center' s amicus brief argued that all
unilateral rate requlation was valid because it did not involve
the concerted action prohibited by the antitrust laws. In Welch
v. Texas Department of Highways , the state argued that it was not
liable under the Jones Act, a federal statute regulating the
employers of seamen, because that Act did not apply to the
states . The Legal Center's amicus brief argued that the state
was not liable in that case ecause it was brought in federal
court and the Eleventh Amendment barred federal courts from
awarding damages against the state.
Another reason is to bring to the attention of the Court
facts or arguments which, although not essential to the decision
of a particular case, may persuade the Court to frame its opinion
in a way that will be helpful in later cases . For example, in
Hillsborough County v. Automated Medical Laboratories , the Legal
Center argued that county ordinances regulating the collection of
blood plasma were not preempted because federal agency regula-
tions should never be construed to preempt state or local requla-
tion that is not in conflict with federal law unless the federal
agency has expressed its intent to preempt the regulation in
question. This theory was instrumental not only in winning the
particular case, but it has already been important to victories
in other cases involving preemption by a federal agency,
including telephone rate regulation and environmental regulation
of mining on federal land . California Federal Savings & Loan v.
Guerra involved a preemption c allenge under Title VII , the
e decal employment discrimination statute, to a California sta-
tute that required employers to allow unpaid maternity disability
leave. The Legal Center argued not only that the challenged sta-
tute was valid under a technical reading of Title VII , but also
that it was valid because preemption under Title VII should never
be found if the employer could comply with both federal and state
law. The theory , which the Court accepted , will be important not
only in other Title VII preemption cases but in other areas where
state and local governments share concurrent regulatory authority
with the federal qovernment.
Yet another reason is to emphasize the importance of the
issue before the Court by affirmatively indicating the interest
of a large or representative group; the Legal Center speaks for
all or some of the seven major organizations of general purpose
state and local government elected and appointed officials .
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13. Who writes the Legal Center amicus briefs?
Many of the amicus briefs are written by the Legal Center
staff . The three attorneys presently on the staff have diverse
backgrounds , which include federal appellate and Supreme Court
clerkships , federal government service, a municipal attorney 's
office, and the private practice of law. Their combined
experience totals more than 55 years in the practice of law,
including , extensive experience in the briefing and argument of
appeals before the United States Courts of Appeals and state
appellate courts, and in reading and writing Supreme Court briefs
and watching Supreme Court arguments .
The remainder of the briefs are written by pro bono attorneys
under staff supervision. The Legal Center has been able to par-
ticipate in an additional number of significant cases by
enlisting the help of distinguished attorneys, in Washington and
elsewhere, who have volunteered to assist the Legal Center' in
attaining its goal of enhancing the legal presence of state and
local governments in the Supreme Court . These pro bono attorneys
provide a variety of services to the Center: tFiey serve on the
Legal Center Advisory Board ; they give advice on the selection of
and approach to particular cases ; and they serve on moot court
panels , in addition to drafting some of the Legal Center's amicus
briefs. 4/
In selecting an attorney to prepare an amicus brief in a
particular case, the Legal Center seeks someone who is knowledge-
able in the substantive area of law, familiar with Supreme Court
practice, interested in the issue, and sympathetic to the
viewpoint of state and local governments . Whether an attorney
works on a particular case will depend , of course, upon the time
he or she has available and on the absence of any conflict of
interest .
The Legal Center staff is always intensively involved in the
preparation of the brief , consulting frequently with the pro bono
attorney. The Legal Center also serves as liaison with tFe
attorney representing the government on whose side we are par-
ticipating in the case. The staff , subject to the guidance
received from the trustee organizations, retains final editorial
control over the brief , and also manages the printing and filing.
Although the dollar figure for the value of the services that
pro bono attorneys provide to the Legal Center is necessarily
inexact , a number of these attorneys have said that their amicus
4/ A list of the attorneys who have drafted amicus briefs for
the Legal Center on a pro bono basis, and a description of
the Advisory Board and a list of its members, are available
on request.
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briefs would have cost a payinq client between $35, 000 and
$65, 000. To date, 35 of the Legal Center's briefs have been pre-
pared with the help of these public-spirited law firms. Thus, we
estimate $1, 225, 000 to $2, 275, 000 in legal advice generously
contributed to assist state and local governments.
14. Why did the Board of Trustees choose a range of funding
options for funding the Legal Center?
Although the Academy for State and Local Government was suc-
cessful in persuading the Pew Memorial Trust of the efficacy of
supporting the creation of the Center, that foundation and others
approached for long-term support asked a simple question: What
are the states and localities doing to protect their own
interests? The trustees recognized the legitimacy of the
question. In consultation with the governing structure of each
of the seven national organizations , optional funding plans were
presented that recognized the wide array of resource allocation
preferences of states and localities .
The three city organizations , the National League of Cities ,
the United States Conference of Mayors , and the International
City Management Association, decided that one-time payments to an
endowment fund would best generate the stable financial support
necessary for a small core staff for the Leqal Center, without
the need for annual campaigns among their many jurisdictions .
The three city organizations felt strongly that city governments
would prefer to make one-time payments to establish the Legal
Center rather than to create another organization in Washington
asking local governments annually for dues . Members were polled
and indicated their preference for this fundinq mechanism.
The National Association of Counties decided to defray its
share of the annual cost of the Legal Center out of its organiza-
tion ' s budget.
The three state-based organizations , the National Governors '
Association, the National Conference of State Legislatures , and
the Council of State Governments, developed a three-tiered stra-
tegy for the states . In brief , the three-tier option plan allows
a state to select the funding method best meeting its needs . A
state may make an annual appropriation, or an equivalent, one-
time, special assessment, which may be paid over one or three
years .
The Academy has established a legally binding set of proce-
dures to assure that funds collected to carry out the activities
of the Legal Center are used for that purpose . Payments are
deposited in an irrevocable secured trust fund to be used only to
support the Legal Center; the income from the fund (none of the
principal ) will be used to support the Legal Center's annual
operating budget.
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Control. over the Legal Center and the endowment fund remains
:+ with the Academy Board of Trustees, who are the directors of the
seven organizations . Those directors, in turn, work for their
boards of directors, who are governors, state legislators,
mayors, members of city councils, county officials, or local
j government professional managers.
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i 15. Do cities have the authority to contribute to such an
endowment?
i
That question was referred to outside legal counsel , who
concluded that such payments are a legitimate expense for city
and county governments . Copies of that legal opinion are
available from the National League of Cities.
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If you wish further information about the Legal Center or its
funding , the followinq documents are available:
1 . Guidelines for selecting cases and list of Legal Task
Force members .
2. Case list of briefs filed by the Legal Center.
3. Purpose of the Advisory Board and list of its members .
4 . List of pro bono attorneys who have assisted the Legal
Center by draft ng of amicus briefs.
5. Copies of the following symposia:
a . Symposium: State and Local Government Issues Before
the Supreme Court, 31 Cath. L. Rev. ,
Spring 1982.
b. Symposium: Supreme Court Advocacy, 33 Cath. L.
Rev. , Spring 1984.
C . Federalism: Issues Before the Supreme Court, 18
Ur ,an Lawyer, Summer 1986.
Call or write Joyce Holmes Benjamin, Deputy Chief Counsel, at
( 202) 638-1445, 444 North Capitol Street, N.W. , Suite 349,
Washington, D.C. 20001 .
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