ItA Section of State and Local Government Law

LOCAL LAW II IIThe Section serves as a collegialforum for its members, the profession and the public to provide leadership

and educational resources in urban, state and local government law and policy.

As part of its Annual Meeting activities, the ABA planned a Public ServiceProject to give something back to the city where the meeting is held. HereSection members get ready to plant flowers and spruce up aroundLafayette Park in New Orleans. For more photos of Section activities atthe Annual Meeting, see page 4.

Get Active!Join a Section Committee

All Section members should have received, or willsoon receive, a Committee Preference questionnaire.If you are now a committee member, or you wouldlike to join a committee, you should complete thisself-mailing form and return it to Jackie Baker at ABAheadquarters.

All Section members are invited to make the bestuse of their Section membership by joining a commit-tee! Call a committee chair today and volunteer.

For a complete list of Section committees, descrip-tions of activities planned for the 1994-95 Associationyear, and names and addresses of who to call to vol-unteer, see pages 12-15 of "Section News."

Legal and Public Policy Issues in Historic PreservationOct. 26-30, 1994, Boston Park Plaza, Boston, MA, in cooperationwith the National Trustfor Historic Preservation

NOLPE SeminarNov. 17, 1994, Hiatt Islandia, San Diego's Mission Bay

Spring Council MeetingApr. 27-30, 1994, Marriott Reach, Key West, FL

Beyond Nollarn.The Constitutionality of

Land DevelopmentConditions After Dolan

By DavidL. Ca/lies

In Dolan v. City of Tigard, U.S. , 114 S. Ct.2309 (1994), the U.S. Supreme Court struck down amunicipal building permit condition that the landown-er dedicate bike path and greenway/floodplain ease-ments to the city. As the Court pointed out, hadTigard simply required such dedications, it would berequired to pay compensation under the FifthAmendment. Attaching them as building permit con-ditions required a more sophisticated analysis closelyfollowing Nollan v. California Coastal Commission, 483U.S. 825 (1987), since the police power is implicatedrather than the power of eminent domain. In theprocess, the Court signalled how far local governmentmay go in passing on the cost of public facilities tolandowners. The answer: only to the extent that therequired dedication is related both in nature and

David Callies, AICP, is professor of lawat the University of Hawaii, author ofPreserving Paradise: Why RegulationWon't Work (1994), and, with Freilich& Roberts, Cases and Materials onLand Use (2ded. 1994), anda pastChair of the Section.

* Religious School District Unconstitutional, page 5

* Supreme Court Watch, page 7" Tribute to Jefferson Fordham, page 9" Chair's Message, page 10" Section News, page 12• Washington's Labyrinthine Ways, page 16

Vol. 18, No. 1, Fall 1994

extent to the impact of the proposed development.The Dolans own and operate a 9,700 square foot

plumbing and electrical supply store on main street inTigard's central business district. Seeking to doublethe size of the store and pave a thirty-nine-space park-ing lot, the Dolans applied for a building permit fromthe City Planning Commission. Tigard had previouslyadopted a comprehensive land-use plan required bystate comprehensive land-use management statutes, inaccordance with statewide goals. (See, for discussion,Sullivan, Oregon Blazes a Trail in STATE & REGIONAL

COMPREHENSIVE PLANNING: IMPLEMENTING NEWMETHODS FOR GROWTH MANAGEMENT (Buchsbaum& Smith, eds. 1993.)) Many of the plan's features arecodified in Tigard's Commnunity Development Code(CDC). Among the plan's requirements:

1. In accordance with a pedestrian/bicycle pathwayplan, new development must dedicate land forpathways where shown on the plan.

2. In accordance with a master drainage plan, tocombat the risks of flooding in 100-year flood-plains, especially as exacerbated by increasedimpervious surface through development, devel-opers along waterways such as Fanno Creek(which borders the Dolan parcel to the west)must guarantee the floodway and floodplain arefree of structures and able to contain floodwatersby preserving the land alongside as greenway.

As a result of the plan and its codification in theCDC, the Commission granted the Dolans their per-mit upon condition that they dedicate the portion oftheir property in the floodplain as a greenway and thatan additional 15-foot strip be dedicated adjacent to thegreenway as a pedestrian bicycle path. The basis ofthese requirements is a series of Commission findings.

With respect to the bikeway, the Commissionfound that the pathway system as an alternative meansof transportation "could" offset some of the trafficdemand on nearby streets and lessen the increase intraffic congestion. The Commission also found it wasreasonable to assume that some of the Dolans' cus-tomers and staff could use the pathway for transporta-tion and recreation.

With respect to the floodplain greenway dedication,the Commission found it was reasonably related to theDolans' application since the site would have a moreimpervious surface. This would result in increasedstormwater drainage. Therefore the dedicationrequirement was related to the applicants' plans formore intensive development of their land.

After appealing to various local and state adminis-trative agencies and to the Oregon courts without suc-cess, the Dolans challenged the holding of the OregonSupreme Court that the City of Tigard could conditionthe approval of their building permit on the dedicationof property for flood control and traffic improvement.The U.S. Supreme Court granted certiorari to set out

the "required degree of connection between the exac-tions imposed by the city and the projected impacts ofthe proposed development." 114 S. Ct. at 2312.

In a concise and well-organized opinion, the Courtessentially adopted a three-part test:

1. Does the permit condition seek to promote alegitimate state interest?

2. Is there an essential nexus between the legiti-mate state interest and the permit condition?

3. Is there a required degree of connection betweenthe exactions and the projected impact of thedevelopment?

The Court disposed of the first two quickly andaffirmatively. Certainly the prevention of floodingalong the creek and the reduction of traffic in the busi-ness district ". . . qualify as the type of legitimate pub-lic purposes we have upheld." Id. at 2318 (citing Aginsv. City of Tiburon, 447 U.S. 255, 260-62 (1980)).Moreover, the court held it was "equally obvious" thata nexus exists between preventing flooding and limit-ing development within the creek's floodplain, andthat "the same may be said for the city's attempt toreduce traffic congestion by providing for alternativemeans of transportation" like a "pedestrian/bicyclepathway." 114 S. Ct. at 2318. So far, so good: we havepublic purpose (which the Court assumed withoutdeciding in Nollan) and essential nexus (which theCourt decided was lacking in Nollan). The questionremained, with respect to the third test: "Whether thedegree of the exactions demanded by the city's permitconditions bear the required relationship to the pro-jected impact of petitioner's proposed development."Id.

The Court said no: the city's "tentative findings"concerning increased stormwater flow from the moreintensively developed property, together with its state-ment that such development was "anticipated to gen-erate additional vehicular traffic thereby increasingcongestion" on nearby streets, were simply not "con-stitutionally sufficient to justify the conditionsimposed by the city on petitioner's building permit."Id. To find out why, the Court looked to state courtdecisions for guidance.

In formulating this third part of the test, the Courtreviewed and rejected the two extremes in the rangeof state exactions law: the specifically and uniquelyattributable test from Illinois (Pioneer Trust & SavingsBank v. Village of Mt. Prospect, 176 N.E.2d 799 (Ill.1961), which requires a mathematical precisionexpressly rejected by the Court) and "very generalizedstatements as to the necessary connection betweenrequired dedication and the proposed development"(from such as Jenad, Inc. v. Scarsdale, 218 N.E.2d 673(N.Y. 1966) which this author and others have charac-terized as a corruption of the reasonable relationshiptest). Instead, the Court adopted as an "intermediate

(continued on page 18)

2 State &LocalLaw News, Volume 18, Number 1, Fall 1994

Arrival

7:30 a.m.-12:00 noonExecutive Comittee Meeting

2:00 p.m.-5:00p.m."How to Try a Land Use Case-Learn from the Masters"The basis of the panel discussion will be a land-use amendment factpattern which includes water, wetlands, school overcrowding, traffic,and affordable housing issues. Panel members will discuss how thecase should be presented and what facts are important to include inthe record if they were presenting the local government, the devel-oper, and environmental group and the state agency.

2p.m..-5p.m.Public Education Committee Round Table Discussion on theimpact of federal mandates with respect to students with disabilitieson providing public education.

6:00p.m.- 7:30p.m.Welcome Reception

7.30 a.m.-9:00 a.m.Committee Chairs Breakfast Meeting

9:00 a.m.-12 noonLand Use Program:Hot Topics In Land Use...Roundtable Discussion Including the Florida Perspective..Q & A Session

9:00 a.m.-12 NoonGeneral Municipal Law Program:Privacy Rights of Public Employees andSection 1983 LitigationNumerous workplace pricacy issues will be discussed including:employee application forms and medical records to workplacesearches, E-mail, and drug and alcohol testing concerns, and the reg-ulation of off-duty employee conduct. In addition, recent develop-ments in 42 U.S.C. § 1983 litigation will be discussed and reviewedwith a special emphasis placed on liability trends impacting govern-mental enities, elected officals, and their empoyees and/or represen-tatives.

6:00p.m.-7:00p.m.Sunset Welcome Reception

10:00p.m.-12 midnightEvening at Margaritaville CafeNo Host Blast at Jimmy Buffet's

730 a.m.-9:00 a.m.Media Board

9.00 a.m.-12:00 noonCouncil Business Meeting

7:00 p.m.-8:00 p.m.Council Dinner (Ticketed)

7.30 a.m.-9:00 a.m.Committee Meetings

9.00 a.m.-11:00 a.m.Council Meeting

11:00 a.m.-12 noonProfessional Services Meeting

Learn from the Masters...David Callies, Professor of Law, University of HawaiiThomas Cloud, Gray, Harris & RobinsonSusan Delegal, Holland & KnightHarry Stewart, Akerman, Senterfitt & EdsonThomas Pelham, Apgar, Pelham, Pfeiffer & TheriaqueRobert Freilich, Freilich, Leitner & CarlisleLarry Smith, Graham & Dunn

Representatives from the Florida Bar's Local Government Section,the Florida Association of County Attorneys, the Florida MunicipalAttorneys Association, and the Florida Institute of Government willalso participate.

Get Involved...Section meetings are open to every registrant, affording you a chanceto hear and participate in the formation of ABA policy on state andlocal government law.

Socialize...The days don't end with the meetings! Each evening will feature asocial event for you and your guest to enjoy.

Accommodations...We have negotiated a special rate of $129 per night, single or doubleoccupancy, for our meeting. The hotel is only a five minute walkfrom Old Town Key West with all its attractions, shops, restaurants,and clubs.

Key West is easy to get to, with over sixty-six daily. Nonstopflights are available from Miami, Ft. Lauderdale, Tampa, and Orlan-do.

There is complimentary shuttle service to and from the airport.

Recreation...The hotel has added a second pool. The addition encompasses awater playground, with decks and patios for the true island feeling.

Enjoy a full service health club, play tennis, or take advantage ofthe hotel's watersports department, which will arrange snorkelingtrips, deep-sea fishing, parasailing, and equipment rental includingbicycles and mopeds. Golf can be arranged at the nearby Key WestGolf resort.

1995 Spring Section MeetingMarriott Reach Hotel, Key West, Florida April 26-30, 1995

1994-95 Chair Jim BairdAnita Miller with a memenstanding contributions as thbook program.

Scenes from the New Orleans Annual MeetingSteve Conlon, author of the Section's best-seller Tax-Exempt Derivatives acceptsthe appreciation of the Section from ChairJim Baird.

Section members pitchvisit to New Orleans

presents outgoing Chair while effort.to commemorating her out-efounder of the Section's

Joseph Z. Fleming of Miami, chair of theSection's Task Force on Emerging Issues,

leads the discussion on "Coping with Chaos.Disaster Planning."

Board of Governors members David Cardwell ofOrlando and Jack Brown of Tulsa report on the delib-erations of the Association's governing body at theSection Council Meeting in New Orleans.

Law Student Liaison NotesBy Duane A. Martin

The Section of State and Local Government Lawis one of the most dynamic sections of the ABA-andthis is an exciting time to be a law student member.The relationship between the Law Student Division(LSD) and the Section seems to grow stronger eachyear. This is due in no small part to the commitmentof the Section leadership, and to the accomplish-ments of Tracie Nelson, the Law Student Liaison forthe past two years. My goal as the new Law StudentLiaison is to build upon Tracie's efforts and attemptto facilitate a stronger relationship between the twoentities.

One significant way to improve the relationship

Duane A. Martin is the Section'sLaw Student Division Liaison, theStudent Editor-in-Chief of TheUrban Lawyer, and attends theUniversity of Missouri-KansasCity School of Law inKansas City, MO.

A walking tour of the Garden Districtincluded a stop at vampire author AnnRice's home.

between the two organizations is to encourage morestudent involvement in the Section. Perhaps theSection's most notable opportunity for studentinvolvement centers on the committees of theSection. Most of the substantive work of the Sectionis accomplished through the committees. TheSection is composed of scholars and practitioners whoare on the cutting edge of their fields including LandUse, Public Finance, Environmental, PublicTransportation, Government Operations, HumanResources, Public Education, International Law, andCrisis Management. I will be contacting each studentmember of the Section to explain how to becomeinvolved in one of these committees.

As a law student, you should begin to recognizethe value of interacting with attorneys who specializein the areas of law that interest you. The Sectionoffers you the opportunity to socialize and work withpractitioners and scholars who are the best in theirrespective fields. Moreover, the Section offers youthe opportunity to become actively involved in thework of the Section and ABA, and to have fun doingit.

For more information about ways to becomeinvolved as a law student member of the Section,please contact Duane Martin at 816/235-1661.

4 State &LocalLaw News, Volume 18, Number 1, Fall 1994

in to make the ABA's7n all around worth-

School District Based on Religious BoundariesHeld Unconstitutional

By Fay Hartog-Rapp

On March 30, 1994, the U.S. Supreme Courtissued its decision in Board of Education of Kiryas JoelVillage School District v. Grumet, __ S. Ct. __, 1994 WL279673. In this case, the Court was asked to deter-mine the constitutionality of a New York specialstatute that created a separate school district that fol-lowed village lines. The Village of Kiryas Joel hadbeen described as a religious enclave of SatmarHasidim, practitioners of a strict form of Judaism.The Satmar created the settlement within the townof Monroe and ultimately formed a village within theTown of Monroe.

The village's boundaries were drawn to includethe territory owned and inhabited entirely by theSatmars. The residents of Kiryas Joel are vigorouslyreligious people, make few concessions to the mod-ern world, and go to great lengths to avoid assimila-tion into it. They interpret the Torah strictly; segre-gate the sexes outside the home; speak Yiddish astheir primary language; eschew television, radio, andany English language publication; and dress in dis-tinctive ways that include headcoverings and specialgarments for boys, and modest dresses for girls. Theirparochial education differs for boys and girls, andrequires that boys and girls attend different schools.

Within the Village of Kiryas Joel, there are dis-abled children who are entitled under state and fed-eral law to special education services. Originally, theBoard of Education of Monroe-Woodbury CentralSchool District provided such services for the chil-dren of Kiryas Joel at an annex to their religiousschool. However, after the Supreme Court issued itsdecisions in Aguillar v. Felton, 473 U.S. 402 (1985),and School District of Grand Rapids v. Ball, 473 U.S.373 (1985), the Board of Education of Monroe-Woodbury Central School District was unable to con-tinue the practice. The children of Kiryas Joel whoneeded special education, for mental retardation andother disabilities, were required to attend publicschools outside their village which their familiesfound unsatisfactory. Parents of the children believedthat the children suffered panic, fear, and trauma

Fay Hartogg Rapp is a member ofthe Section's Council and practiceslaw with Seyfarth, Shaw,Fairweather & Geraldson inChicago, IL.

State & Local Law News, Volume 18, Number 1, Fall 1994

because they were required to leave their own com-munity and be with people whose ways were so dif-ferent.

In response to the problem, the New York Statelegislature created a special school district drawnalong the village boundaries. The only studentsattending the public schools of Kiryas Joel were thosein need of special education. Disabled students fromKiryas Joel and other neighboring districts were edu-cated in the Kiryas Joel schools. The other villagechildren stayed in their parochial schools relying onthe new school district only for transportation, reme-dial education, and health and welfare services. If anondisabled student in Kiryas Joel were to seek apublic school education, the district would have topay tuition to send the child into the Monroe-Woodbury schools or to another school district near-by.

Several months before the new school district wasto begin operation, the New York State School BoardAssociation brought an action against the StateDepartment of Education challenging the statute asan unconstitutional establishment of religion. Thelower court found that the statute failed all threeprongs of the test in Lemon v.Kurtzman and was thusunconstitutional under both the national and stateconstitutions. The appellate court affirmed the deci-sion concluding that because both the District's pub-lic school population and its school board would beexclusively Hasidic, the statute created a "symbolicunion of church and state that was likely to be per-ceived by the Satmar Hasidim as an endorsement oftheir religious choices, or by non-adherence as a dis-approval of their own." 1994 WL 279673, at 4. As aresult, the Court concluded that the statute's primaryeffect was an impermissible advancement of religiousbelief.

The Supreme Court affirmed, relying less on theLemon v. Kurtzman test than on other of its decisions.It stated, "A proper respect for both the FreeExercise and the Establishment Clauses compels theState to pursue a course of 'neutrality' towards reli-gion, favoring neither one religion over others norreligious adherence collectively over non-adherence,"citing Committee for Public Education & Religious Libertyv. Nyquist, 1994 WL 279673, at 5. The Court, in itsmajority opinion, relied heavily on Larkin v. Grende'sDen, Inc., 459 U.S. 116 (1982), in which the Courtstruck down a Massachusetts statute granting reli-gious bodies, such as churches, veto power over appli-

cations for liquor licenses. In Larkin, the Court foundthat in spite of the state's valid interest in protectingchurches, schools, and like institutions from the "hur-ley burley associated with liquor outlets," the Actbrought about a "fusion of governmental and reli-gious functions by delegating important discretionaryand governmental powers to religious bodies thusimpermissible entangling of government and reli-gion." 459 U.S. 126, 127.

In Kiryas Joel, the Court found that theEstablishment Clause prevents delegating govern-mental power to any religious group and that theproblem presented by the New York statute resem-bled the issue raised in Larkin. To the extent thatLarkin teaches that a state may not delegate its civicauthority to a group chosen according to religious cri-terion, authority over public schools cannot be dele-gated to a local school district defined by the state inorder to grant political control to a religious group.1994 WL 279673, at 6. While acknowledging that reli-gious people or groups of religious people cannot bedenied the opportunity to exercise the right of citi-zens simply because of their religious affiliations orcommitments and that individuals who happen to bereligious may hold public office, does not mean that astate may deliberately delegate discretionary powerto an individual, institution, or community on thegrounds of religious identity.

The Court noted that of the special school districtspreviously created by the New York State legislature,all such school districts had been designed to be runby private organizations serving institutionalized chil-dren. The Kiryas Joel District ran uniquely counter tostate practice of consolidation of districts, followingthe lines of a religious community where the custom-ary neutral principles would not have dictated thesame results. Thus, the Court felt there was good rea-son to treat this district as the reflection of a religiouscriterion for identifying the recipients of civil authori-ty. 1994 WL 279673, at 6.

The Court further stated that the New York lawwas not rendered unconstitutional by the fact that itfacilitated the practice of religion. However, JusticeSouter, in his majority opinion, clarified that accommo-dation of religious practices is not a principle withoutlimits, and what the Village of Kiryas Joel sought wasan adjustment to the Satmars' religiously groundedpreferences that could not be accepted. While priordecisions have allowed religious communities andinstitutions to pursue their own interests free of gov-ernmental interference, an otherwise unconstitutionaldelegation of political power to a religious group can-not be saved as a religious accommodation (at 9).

Ultimately, the statute failed the test of neutralityby delegating a power that ranks at the very apex ofthe function of a state to an electorate defined bycommon religious belief and practice in a manner that

fails to foreclose religious favoritism (at 11). TheCourt noted (in footnote 6) that the conclusion doesnot imply that any political subdivision that is co-ter-minus with the boundaries of a religiously homoge-neous community, suffers the same constitutionalinfirmity. The Kiryas Joel school district was distin-guishable from one whose boundaries are derivedaccording to neutral, historical, and geographic crite-ria, but whose population happens to comprise co-religionists.

In a concurring opinion, Justice O'Connor suggest-ed that the Religion Clauses prohibit the governmentfrom favoring religion, but they provide no warrantfor discriminating against religion. She urged that theCourt's decisions in Aguilar v. Felton and GrandRapids v. Ball be reconsidered in order to bringEstablishment Clause jurisprudence back to what shesuggested was proper-government impartialitytoward religion (at 16). Justice Kennedy also suggest-ed, in a concurring opinion, that the decisions inGrand Rapids and Aguilar "may have been erro-neous.

The DissentJustice Scalia, joined by Chief Justice Rhenquist

and Justice Thomas, dissented vigorously. The dis-sent found it ridiculous that the Satmar Hasidimcould have become "an establishment of the EmpireState." Justice Scalia made reference to the history ofour country in which many political subdivisions hadbeen established by a religious minority and cited theexamples of the states of Utah and New Mexico. In avituperative dissent, he stated:

Justice Souter's position boils down to the quitenovel proposition that any group of citizens (say, theresidents of Kiryas Joel), can be invested with politicalpower, but not if they all belong to the same religion.Of course, such disfavoring of religion is positivelyantagonistic to the purpose of the Religion Clausesand we have rejected it before. [at 25].

Clearly, Scalia's dissent will be revisited in futurecases involving public education. Justices O'Connorand Kennedy's suggestion that the Supreme Court'sdecisions in Aguilar v. Felton and Grand Rapids v. Ballhad been erroneous portends revisiting those deci-sions as well. Finally, the Court's failure to rely moreheavily on the Lemon v. Kurtzman "three-prong test"suggests an unspoken although clear suggestion thatthe Court is moving away from the traditional analysisof unconstitutionality when it comes to religion cases.While making reference to Lemon v. Kurtzman, thestatute held unconstitutional was not analyzed on thetraditional basis.

ConclusionThe conclusion of the Court was that the govern-

ment had delegated a fundamental governmental(continued on page 19)

State &Local Law News, Volume 18, Number 1, Fall 1994

C lIzIAwpw* * mumnwmnm

COURT WATCHBy Beate Bloch

In the last few weeks of the October 1993 Term,the Court decided too many cases of importance tostate and local governments to report in one column.This issue will deal with cases involving federal-staterelations; the next, with First Amendment, taking, andtaxation.

Commerce ClauseIn C & A Carbone, Inc. v. Town of Clark-

stown, New York, 114 S. Ct. 1677 (decided May 16),the Court dealt another blow to state and local wastecontrol efforts.' The town had contracted for the con-struction of a solid waste transfer station to separaterecyclable items from other waste, to be turned over tothe town for a nominal payment after five years. Theprivate contractor was permitted to charge a tippingfee higher than charged by the private market. A townordinance required that all nonrecyclable nonhaz-ardous solid waste in the town, even if it were sortedelsewhere, be brought to the transfer station. TheSupreme Court, 6-3, invoked the "dormant" Com-merce Clause to hold the ordinance invalid.

Justice Kennedy, writing for the Court, noted thatthe flow control ordinance regulates interstate com-merce. It discriminates against interstate commercebecause only the favored operator may process waste.Justice O'Connor, concurring, thought the ordinancewas invalid "because it imposes an excessive burdenon interstate commerce."

Justice Souter, joined by the Chief Justice and Jus-tice Blackmun in dissent, noted that the law did notdirectly benefit any "class of local private actors," but"directly aids" in the fulfillment of "a traditional gov-ernmental responsibility."

In West Lynn Creamery, Inc. v. Healy, 114 S.Ct. 2205 (decided June 17), the Court, 7-2, struckdown a Massachusetts assessment imposed on fluid

Beate Bloch is a legalwriting consultant inWashington, DC.

State & Local Law News, Volume 18, Number 1, Fall 1994

milk sold by dealers to Massachusetts retailers. Abouttwo-thirds of that milk is produced out of state. Theproceeds from the assessment-one-third of the differ-ence between 15 percent per hundredweight and theactual price-are distributed to Massachusetts dairyfarmers.

Justice Stevens, writing for the Court, explainedthat the purpose and effect of the law "are to enablehigher cost Massachusetts dairy farmers to competewith lower cost farmers in other states. The 'premiumpayments' are effectively a tax which makes milk pro-duced out of state more expensive." Because theeffect of the assessment on Massachusetts producers isoffset by the subsidy they receive, "the tax is thuseffectively imposed only on out-of-state products."Domestic milk producers receive not only "the taxpaid on the sale of Massachusetts milk, but also the taxpaid on the sale of the milk produced elsewhere."Hecompared the case to Bacchus Imports, Ltd. v. Dias, 468U.S. 263 (1984), where the court struck down a Hawai-ian liquor tax because it exempted certain locally pro-duced liquors. Justice Scalia was joined by JusticeThomas in a concurring opinion.

Chief Justice Rehnquist, joined by Justice Black-mun, dissented, because subsidies to local industries aregenerally upheld, and the tax is even-handed on its face.

In Associated Industries of Missouri v.Lohman, 114 S. Ct. 1815 (decided May 23), the Court,without dissent, invalidated in part a use tax of 1.5 per-cent imposed by Missouri on articles produced outsidethe state, in addition to sales taxes and correspondinguse taxes totaling 4.225 percent. The state's politicalsubdivisions are authorized to impose local sales taxes;more than 1,000 local jurisdictions have sales taxesranging from .5 percent to 3.5 percent.

Justice Thomas, writing for the Court, held that thetax, while not invalid in its entirety, discriminatesagainst interstate commerce wherever it exceeds thelocal sales tax. Although more than 93 percent of theaffected sales were made in jurisdictions where thelocal tax exceeded 2.5 percent, averaging could not beused to overcome that discriminatory effect.

On the plus side, the Court held that a state candelegate taxing power to localities so long as no dis-crimination results. The case was remanded for con-sideration of the appropriate remedy.

There was one favorable decision, Barclays Bankv. Franchise Tax Bd. of California, 114 S. Ct. 2268(decided June 20). The Court upheld a Californiaincome tax (which has since been modified) on multi-national corporations, based on "worldwide combinedreporting." The proportions of payroll, property, andsales located in California were averaged to determineincome allocable to California and subject to the tax.

Justice Ginsburg wrote the Court's opinion, notingthat Container Corp. of America v. Franchise Tax Bd., 463U.S. 159 (1983), had decided this 4tuestion for domes-tic taxpayers, and holding that the tax could be appliedto foreign corporations as well. The bank had not sub-stantiated its argument that the reporting requirementswere unduly difficult for foreign corporations.

The argument that the tax impaired the ability ofthe government to speak with "one voice" in foreignaffairs had been rejected in Wardair Canada, Inc. v.Florida Dep't of Revenue, 477 U.S. 1 (1986). It is Con-gress, and not the executive, that has the power to reg-ulate foreign commerce, and Congress has notprohibited state-mandated worldwide combinedreporting. Justices Blackmun and Scalia wrote concur-ring opinions.

Justice O'Connor, joined by Justice Thomas, con-curred with respect to domestic corporations but not asto foreign corporations.

PreemptionIn two cases, the Court upheld state law claims

against asserted preemption under federal labor law,citing Lingle v. Norge Division of Magic Chef, Inc., 486U.S. 399 (1988), which held that a state law claim forretaliatory discharge was not barred by federal laweven though the collective bargaining agreement pro-vided an arbitration remedy for unjustified discharge.

Livadas v. Bradshaw, 114 S. Ct. 2068 (decidedJune 13), was filed under a California law that requiresan employer to pay all wages due an employee imme-diately upon discharge. The employee demanded herwages, but the employer sent a check which shereceived three days later. She filed a claim with theCalifornia Division of Labor Standards Enforcement,seeking three days' wages, as provided by the law. Thecommissioner adopted a non-enforcement policybecause the law precluded her from "interpretation orapplication of any collective bargaining agreement con-taining an arbitration clause," and that the agreementestablished the rate of wages to be paid. There was nodispute about the amount owed, and no grievance pro-cedure had been initiated. Livadas filed suit under 42U.S.C. § 1983, alleging that the non-enforcement poli-cy was preempted as conflicting with her rights underthe National Labor Relations Act (NLRA). TheSupreme Court held that her claim was viable.

Justice Souter's opinion for the unanimous Courtexplained: "A state rule predicting benefits on refrain-ing from conduct protected by federal law poses spe-cial dangers of interference with congressionalpurpose." Section 301 of the NLRA "cannot be readbroadly to preempt nonnegotiable rights conferred onindividual employees as a matter of state law." Here,there was no dispute concerning the meaning of con-tract terms, but a question only of state law.

In Hawaiian Airlines, Inc. v. Norris, 114 S. Ct.

2239 (decided June 20), Norris, a mechanic, was sus-pended for refusing to certify that satisfactory repairwork had been performed on a plane and that it was fitto fly, and called the Federal Aviation Authority toreport the problem. He then invoked the grievanceprocedure of the collective bargaining agreement and,at a hearing, was terminated for insubordination. TheSupreme Court held that Norris' suit against the airlineunder the Hawaii Whistleblowers Protection Act wasnot preempted by the NLRA. Justice Blackmunwrote the opinion for a unanimous Court.

The state also emerges victorious against a preemp-tion claim in PUD No. 1 v. Washington Dep't ofEcology, 114 S. Ct. 1900 (decided May 31), involvingthe proposed Elkhorn Hydroelectric Project on theDosewallips River, which would divert water from partof the river, run it through turbines, and then return itto the river below the bypass. The project required alicense from the Federal Energy Regulatory Commis-sion (FERC). In addition, because the project mayresult in discharges into the river, state certificationwas required under section 401 of the Clean WaterAct, 33 U.S.C. § 1341. The Washington SupremeCourt upheld the state's right to condition certificationon a minimum stream flow requirement, and theSupreme Court affirmed, 7-2, in an opinion by JusticeO'Connor. Justice Stevens wrote a concurring opinion.Justice Thomas, joined by Justice Scalia, dissented.

Voting RightsStates successfully resisted two suits brought under

section 2 of the Voting Rights Act of 1965. In Holder v.Hall, 114 S. Ct. 2581 (decided June 30), a sharply divid-ed Court held that a governing body's size is not subjectto a vote dilution challenge under section 2. BleckleyCounty, Georgia, has a single-commissioner form ofgovernment, as have twenty other Georgia counties.About 20 percent of the voting population is black. In1985, the state legislature authorized Bleckley Countyto adopt a multi-member commission of five, electedfrom single-member districts, and a chair, elected atlarge, but the plan was turned down in referendum.

Justice Kennedy, for the Court, explained that therewas "no objective and workable standard for choosing areasonable benchmark by which to evaluate a chal-lenged voting practice." The fact that most Georgiacounties have five-member commissions was not dis-positive concerning the proper size of the governingbody. The "fact that a change in voting practice mustbe precleared under § 5" does not "necessarily mean(s)that the voting practice is subject to challenge in a dilu-tion suit under § 2." Justice O'Connor wrote a concur-ring opinion. Justice Thomas, joined by Justice Scalia,concurred separately on the ground that voting dilutioncannot be challenged under section 2, which coversonly restrictions that limit citizens' access to the ballot.

(continued on page 15)

8 State &LocalLaw News, Volume 18, Number 1, Fall 1994

Past Section Chair Jefferson Fordham MemorializedBy Jerome J. Shestack

Jefferson B. Fordham died in June of this year atthe age of ninety-two. He was, in Rufus Choate'sfelicitous words, a man "who magnified the profes-sion.

This brief tribute cannot do full justice to themanifold contributions Jeff Fordham made to ourprofession and to our nation. His memorial is writ atlarge in our profession's achievements for humanworth and dignity, in the annals of legal education,and in the local and state government institutions ofour nation. Even more, his truememorial is best preserved in theminds and hearts of the many menand women, colleagues and students,whom he challenged and counseledand inspired to strive for the pinna-cles of our profession.

He was born in North Carolina,educated at Yale, taught at LSU, andwas Dean of the law schools at OhioState and then the University ofPennsylvania. He was an inspiredteacher, but even more, a remarkable

doer. When he entered the field ofmunicipal law, it was a jumble ofarcane codes, of law without vision,and parochial practitioners. Jeff was a pioneer inteaching that the tough problems of local governmentdid not lend themselves to simplistic solutions. Whatwas needed was the fusion of effort of many disci-plines and a larger vision of the community. When hebecame Chair of the ABA Section of Municipal Lawbetween 1949 and 1951, he was the first to organizeinter-disciplinary studies under bar sponsorship. HisSection projects included lawyers, engineers, plan-ners, and administrators. His studies served as modelsfor future cooperative undertakings between disci-plines. For seventeen years, he edited this Section'smonthly newsletter and guided lawyers in newmodes of thought. Because of his concepts, the Sec-tion was renamed the Section of Local Governmentas prelude to its present name. He loved this Section.

In his time, casebooks in this field were calledCasebooks on Municipal Corporations. In 1949, his

Jerome J. Shestack is a member of the ABA Board ofGovernors and a candidate for President-Elect of theAssociation. He practices law with Wolf, Block, Schorr, andSolis-Cohen, Philadelphia, PA. These remarks were deliveredto the Section Council at its August 7 meeting in NewOrleans.

State & Local Law News, Volume 18, Number 1, Fall 1994

casebook on Local Government Law revolutionized theteaching of this field. Here for the first time, headdressed planning and finance, housing and blight,transportation and congestion, in short, the wholerange of urban problems whose solutions required alarger concept of community. He pioneered the con-cepts of home rule, and the landmark decisions sus-taining home rule owe a large debt to his analysis andwriting.

Other times involved other struggles. Look backto the summer of 1963. In Alabama,civil rights workers were met bybullwhips and cattle prods. In Mis-sissippi, Negro churches were beingbombed. Throughout the South, thestrains of "We shall overcome"pierced the stillness of the summernights as the civil rights movementbegan to organize and awake thenations's sleeping conscience.

It was not easy to get a new sec-tion started in this area at that time.The point that Dean Fordham keptmaking over and over was a simpleone. The highest values in our soci-ety, he said, are associated with the

integrity and the fulfillment of the individual humanpersonality. "We must not let great problems of ourtimes concerned with the first order of human valuespass us by."

His message came through and the Section ofIndividual Rights was finally created in 1966. Hebecame its first Chair and in an unprecedented movewas re-elected Chair for a second year. He led thatSection to bring to the fore the pressing issues of histime-civil rights, rights to legal services, campusunrest, human rights treaties, and rights of minoritiesand women. These are now mainstream activities inour profession. But not then. Jefferson Fordham waspioneer, concept builder, a man ahead of his times,but with an unswerving faith in the capacity of ourbar and in our profession to advance society.

Judge Clark of the Second Circuit called Jeff Ford-ham "a mixture of Southern charm and Northerngranite." He was that. Chief Justice Earl Warren saidhe was courageous and forward looking and one ofthe bar's "most effective forces for justice." He wasthat. For me, he was a mentor, model, friend, andally. In Jefferson Fordham there was a lovely blend-ing of love of profession, devotion to individualhuman beings, and responsibility to the community.

May his memory be always green.

CHAIR'S MESSAGEOur Section Is "On a Roll"

By James Baird

As we begin a new year, our Section continues tomove forward on many different fronts. It's an excit-ing time for me, because this Section is definitely "ona roll."

New Committees:Municipal Liability and Crisis Management

We have created two new committees to helpserve Section members in the year ahead.

The Municipal Liability Committee, chaired byTerry Welsh of Dallas, Texas, will coordinate Sectionreports, activities, and CLE projects in the exceed-ingly important and ever-growing area of municipalliability.

Joe Fleming, Miami, Florida, will chair our new"Crisis Management" Committee. This committee isan outgrowth of Joe's work on our earlier task forceand will coordinate Section reports and activities inthe critical area of state and local governmentresponse to crises of all kinds, such as hurricanes, tor-nadoes, floods, or events such as the Branch Davidianstandoff.

Anyone interested in joining one of these two newcommittees, please contact the appropriate commit-tee chair or one of our Section's excellent staff, JackieBaker or Sharon Tindall, and they will see that youare immediately placed on the appropriate committeemailing list.

Anita Miller: New Section Officers Chair

Our Section is rolling within the ABA, the mostrecent example being Anita Miller's election (in thefirst contested election ever) to the position of Chairof the Section Officers' Conference. For the uniniti-ated, the Section Officers' Conference is a conferenceof all of the ABA's sections working together to coor-dinate their activities and maximize their impactwithin the ABA. We are very proud of Anita, andproud to be the Section providing this important ABAleadership function to the bar.

James Baird is Chair of theSection and practices lawwith Seyfarth, Shaw,Fairweather & Geraldsonin Chicago, IL.

Key West Section Meeting:April 26 through 30, 1995

A section on a roll has to have a great place to meetand we have ours-in Key West, Florida. All Sectionmembers are invited to attend this meeting on April26 through April 30, 1995. We will have CLE pro-grams Thursday afternoon, April 27, and Fridaymorning, April 28. Then it's on to Jimmy Buffett'sMargaritaville for a late Friday evening "seminar,"with various committee and Council meetings sched-uled for Saturday and Sunday morning. This is a greatopportunity to make new friends and professionalcontacts, and to reestablish old ties with experts inthe field. We have obtained very favorable roomrates, so you have no excuse. Feel free to bring yourspouse, friend, or family, but be sure to make yourreservations early, because plane transportation maybe a problem if you wait until the last moment (it'sthe back end of spring vacation).

Crisis Video in the WorksA section on a roll certainly has to have its own

video program. No, ours isn't MTV, but it is an excel-lent video for use by state and local government attor-neys, elected officials, and others on the critical sub-

STATE& NEWsLOCAL LAWState &LocalLaw News (ISSN: 0195-7686) is published quar-terly, as a service to its members, by the Section of State andLocal Government Law of the American Bar Association,750 North Lake Shore Drive, Chicago, IL 60611-4497.

State & Local Law News provides information concern-ing current developments in the law of interest to state andlocal government lawyers, news about the activities of theSection, and other information of professional interest toSection members.

Any member of the ABA may join the Section by pay-ing its annual dues of $35. Subscriptions to State &LocalLawNews are available to nonlawyers for $39.95 a year ($44.95 forforeign subscribers).

The views expressed herein are not necessarily those ofthe American Bar Association or its Section of State andLocal Government Law.

EditorPatricia E. Salkin

Government Law CenterAlbany Law School

80 New Scotland AvenueAlbany, NY 12208-3494

Staff Managing EditorRichard W. Bright

Chicago, IL

Address corrections should be sent to theAmerican Bar Association,

Central Records Department.

Copyright © 1994 American Bar Association.

State & Local Law News, Volume 18, Number 1, Fall 1994

ject of coping with unexpected community crises.The video is approximately forty-five minutes longand is now in the editing stage. It contains numeroushelpful tips, both legal and practical, for state andlocal governments in responding to crisis situationsand should be an exceedingly important contributionfrom our Section to the bar and the entire country.

New Section Books AvailableAs befitting a section on a roll, we have recently

published exciting new books of assistance to ourSection's members. These include our highlyacclaimed Tax-Exempt Derivatives and an update toone of our previous bestsellers, The ABCs of Arbitrage.In addition, our new book on Privacy Rights of PublicEmployees should be available soon. Larry Ethridge,Louisville, Kentucky, our Section's outstandingCommunications Director, who is ably assisted byPublications Director Tom Roberts of Wake ForestUniversity, reports that an additional four books arenow in the drafting and/or production stages. If youhave an idea for a book which you would like to havethe Section consider, please don't hesitate to contactLarry directly.

Your Section on a Roll: More Bang for the BuckAll of us are concerned when we pay money for

any activity or item that we receive full value for ourinvestment. This obviously applies to our Sectiondues. I am happy to report that over 81 percent of allSection dues money this past year was returned toSection members in the form of direct Section mem-bership services. These member services include thisnewsletter and The Urban Lawyer, plus the Section'sCLE programs and publications. However, if ourSection expects to stay on a roll, we will have to do aneven better job to expand our membership servicesand help our Section grow. For this next year, weintend to further expand our services to Sectionmembers in the areas of CLE, new publications, ourSection video, CEELI activities, liaison activities toother sections, and through the Section's SpringMeeting in Key West, Florida.

If you have any ideas or suggestions as to how theSection can better serve you, please do not hesitate tocontact me directly. If I don't hear from you before-hand, I certainly will expect to see you in Key West,when our Section rolls on to Margaritaville.

Percentage of Dues Spent on Member Benefits, 1993-94

19 E]Administrative cost

61% 2% The Section Newsletter

The Urban Lawyer

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State &Local Law News, Volume 18, Number 1, Fall 1994 11

ON

Section Committees Gear Upfor an Exciting Year

It has been said that its committees are thelifeblood of the Section. We hope all Section mem-bers have joined one of the following committees andwill become actively inovlved in your committee'snumerous activities. If you haven't yet, call a commit-tee chair today and volunteer.

Crisis ManagementJoseph Fleming620 Ingraham Building25 S.E. Second Ave.Miami, FL 33131305/373-0791FAX 305/358-5933

The Crisis Management Committee emerges so-to-speak from the Emerging Crisis Task Force begunin 1994. The Task Force was responsible for "Copingwith Chaos: Disaster Planning" at the ABA AnnualMeeting, which was taped and supplemented withwritten materials to enable planning for coping withdisasters. Among the disasters discussed at the pro-gram were natural (such as Hurricane Andrew andflooding), human (such as the bombing of the WorldTrade Center), and other problems that must be dealtwith under emergency situations.

While the success of the Task Force resulted information of the Crisis Management Committee, theCommittee plans to focus on more than emergingcrises. It will consider as its scope of work under theheading of Crisis Management not only "emergingcrises" but the evaluation of continuing and long-standing problems that face state, local, and urbangovernments. These include, but are not necessarilylimited to, the following types of issues:

1. Environmental and Land- Use Issues-Theseinclude coping with emerging and long-standing traf-fic problems and resolving natural resources issues,such as those that confront many areas of the country

with either too much or too little water.2. Urban Problems and Issues-These include emerg-

ing crime problems and the underlying causes thatmay be responsible for escalating crime throughout ourcountry.

3. Civil Rights Issues-Including those which relate toenvironmental justice.

4. The Mixed Effects of Efforts to Improve Communi-ties-These include, for example, blockades establishedin many communities throughout the nation to providefor public safety, police protection, and environmentalquality, which simultaneously create physical barriersthat have long-term implications for the areas and peo-ple excluded because of such barriers.

5. Promoting Interest Groups Activities That Create Con-flicts with Other Interest Groups-These include specialschools and facilities and also monuments that becomedesirable symbols for some groups, but that focus theattention of other groups and become symbols forprotests.

The Committee is planning activities that willinclude programs at future meetings and publications.In the next year we plan to catalog cases that haveresolved issues in these areas and make this informa-tion available. It is hoped that when governmentalissues arise, the Committee will have provided sourcesof information to evaluate, which include not only com-promises that may be possible but analogies as well.

The Committee is open to any interested Sectionmember and ideas for projects, or areas of considera-tion, would be greatly appreciated. If there are otherareas that should be explored, similar to those listedabove or entirely different areas, we would welcomeyour comments, your suggestions, and also your mem-bership on the Committee.

Government LiabilityTerrence S. Welsh1717 Main St.Dallas, TX 75201214/712-4616FAX 214/712-4402

The Government Liability Committee focuses onthe various bases upon which state and local govern-mental liability is predicated, including liabilitypremised upon 42 U.S.C. § 1983, Title VII, tort, and"special duty" relationships between individuals andgovernmental entities. Since this is an emerging areaof the law, the Committee's goal is to provideupdates on new cases and educational outreach forSection members and local government law practi-tioners. Subcommittees are in the process of beingformed and your involvement will be invaluable inassisting local government lawyers address the myriadof issues they confront on a daily basis.

At present, the Government Liability Committee

State &Local Law News, Volume 18, Number 1, Fall 1994

has two seminars planned. The first will be a one-dayseminar in Dallas on March 10, 1995, and is entitled"The Challenges Facing Local Governments-Puttingthe Pieces Together." The cost for this seminar willbe approximately $100 and CLE credit will be givento those attending. The second seminar, scheduledfor April 28, will be held in conjunction with the Sec-tion's 1995 Spring Meeting in Key West and willaddress local governments and § 1983 liability. TheCommittee will provide an analysis of recent govern-ment liability cases and new theories of recoveryagainst local governments.

Government OperationsMary Massaron-Ross900 Marquette Bldg.Detroit, MI 48226313/983-4801FAX 313/983-4350

The Government Operations Committee ischarged with addressing a variety of issues includinglocal government organization and management, ordi-nances and administrative regulations, and publicelection law. The Committee has established sub-committees to focus on these areas. Other areas forwhich subcommittees have been suggested includefederal mandates and ethics. Subcommittees arerequested to prepare a report addressing aspects oftheir subject area for inclusion in The Urban Lawyer.Past reports have addressed public election law, ordi-nances, and housing.

The Government Operations Committee is plan-ning a program for the ABA's 1995 Annual Meetingin Chicago, Illinois. The Committee intends to focuson drafting defensible ordinances and public policiesrelating to sign ordinances and/or public forum accessin light of recent First Amendment challenges to gov-ernment action in this area. We are looking for casestudies from Section member's personal experiencesand sample ordinances or policies.

The Government Operations Committee held abusiness meeting in New Orleans to discuss 1995organization and program issues and will be meetingat intervals throughout the new year.

Human ResourcesBrian W. Bulger8300 Sears Tower233 S. Wacker DriveChicago, IL 60606312/474-7990FAX 312/474-7898

New Orleans was hot, but great, and while wewere there the Human Resources Committeeplanned a number of exciting activities for 1994-95.

In 1995, we will be presenting a CLE program at theSection's Key West Spring Meeting at the end ofApril. The major human resources presentation at themeeting will cover privacy rights of public sectoremployees, including cutting-edge issues regardingcomputer confidentiality.

For next summer's ABA Annual Meeting we havelined up David Fram, chief ADA policy attorney atthe Equal Employment Opportunity Commission.We plan to have a symposium with Mr. Fram andlocal government law attorneys addressing the partic-ular disability compliance problems faced by the pub-lic sector. We think our members will find Mr. Framboth knowledgeable and frank about the govern-ment's thinking on ADA compliance. We plan tohave a lengthy question and answer session, so savethose tough questions.

International LawJohn R. SalterFive Chancery LaneLondon, EnglandEC4A 1BU044-71-242-1212FAX 044-71-404-0087

Following the success of the Committee's programon the utilization of land-use controls to achieve envi-ronmental objectives and the impact of environmen-tal standards on free trade at the ABA AnnualMeeting in New Orleans, the International LawCommittee is now actively preparing a program on"Economic Instruments as a Vehicle for Environmen-tal Policy" for discussion at the 1995 Annual Meetingin Chicago. The topic was discussed and cleared bythe ABA's Standing Committee on EnvironmentalLaw meeting in New Orleans.

Anyone who would like to make a contribution tothe program, either in written form, or by presentinga paper in Chicago, or by joining a discussion panel isinvited to contact Committee Chair John Salter orSharon Tindall at 312/988-5649. Contributions deal-ing with actual experience in the use of economic orfiscal instruments would be extremely valuable andmuch welcomed.

Land Use, Planning and ZoningLarry J. Smith1420 Fifth Ave.33rd FloorSeattle, WA 98101-2390206/624-8300FAX 206/340-9599

The Land Use Committee will make a consciousattempt this year to solidify it's external connectionsin several ways. First, the Committee has a new Vice-

State & Local Law News, Volume 18, Number 1, Fall 1994 13

Chair for Membership, Mary Massaron Ross. Unlikemost membership positions, Mary will not focus sole-ly on seeking new members, but rather will help theCommittee to better serve existing members. We willreach out to our "alumni" and to members whoseactivity has been sporadic and encourage them toremain in communication with the Committee andtake advantage of the knowledge and networkingthat the Committee offers. Second, the Committee'soutreach will include solidifying our relationship with"sister" committees in the ABA and with similar com-mittees in other organizations such as the APA andNIMLO. Third, we will resume our prior success inco-sponsoring our spring programs with local bar asso-ciations. At the Key West program in April, for exam-ple, we will put on two programs designed not only toserve our Committee members, but to be useful tolocal Florida Bar members as well. One program willfeature national and Florida litigators sharing theirthoughts on "How to Try a Land Use Case." Thesecond program will feature the chairs of our subcom-mittees presenting "Focus on Land Use," our annualin-depth look into eleven specific areas of land-uselaw. The first program will feature practical tips anddemonstrations, while the second will include theroundtable discussions that are the Land Use Com-mittee's trademark. Finally, we will continue our tra-dition of guided historic "land use" walks in the citywhere our meetings are held. The New Orleans walkwas a true highlight and we look forward to newinsights about the development history of Key West.

The summer meeting will return to Chicago in1995 and we have several programs on the drawingboard. Our feature program will continue our "out-reach" theme, in that we will seek to involve severalother committees from State and Local Governmentto make the program a comprehensive Section-wideeffort. The wide range of issues including technicalinnovations and the types of transit options in usetoday, financing issues, planning and social issues, aswell as governance and legal questions. The Commit-tee will have its annual "Know the City" program,this time featuring special insights about Chicago.Finally, we are considering a program focusing on"Environmental Equity" issues.

Public EducationEdgar H. Bittle100 Court AvenueDes Moines, IA 50309515/243-7611FAX 515/243-2149

The Public Education Committee has been reor-ganized to provide programs and publications thatwill be useful to members of the Section and their

clients. Jane Little Horton of Bracewell and Patter-son, Houston, Texas, will serve as Vice-Chair/Pro-grams for the 1994-95 year. James Hanks of Klass,Hanks, Stoos, Carter, & Villone, Sioux City, Iowa,past chair of the NSBA National Council of SchoolAttorneys will serve as Vice-Chair/Planning. Lelia B.Helms, professor at the University of Iowa, will serveas Vice-Chair/Reports and Publications.

The Committee will co-sponsor a seminar with theNational Organization on Legal Problems of Educa-tion (NOLPE) on November 17, 1994, from 1:00 to4:00 p.m., at the Hyatt Islandia Hotel, San Diego,California, in conjunction with the NOLPE AnnualMeeting. The topic will be "Planning and DoingBuilding and Procurement Projects-An Overview ofLegal Issues: Competitive Bidding, Contracting ADACompliance, Taxation of Bonds, and Security LawIssues." Presenters at this seminar will includeCommittee Chair Edgar H. Bittle, Janet Horton, andMichael Reppe and Dennis Holsapple of the KutakRock firm.

The Committee is also planning a seminar to beco-sponsored with NOLPE in November 1995 inKansas City. The topic for that seminar will be"Legal Procedures Governing Local GovernmentAdministrative and Grievance Hearings: EmployeeHearings, Student Hearings, and Other Administra-tive Hearings."

All Section members are invited to participate inthe activities of the Committee. Those with involve-ment in elementary/secondary or higher educationlaw are invited to contact the chair or co-chairs. Mem-bers of the Committee are invited to submit synopsesof cases of interest to be included in the Committee'sannual report, or to participate in the work of the sub-committees. The Committee will meet at the time ofthe Section's Spring Meeting, April 26-30, at the Mar-riott Reach Hotel, Key West, Florida.

Public FinanceRobert H. Baker77 W. Wacker Dr.Suite 3500Chicago, IL 60601312/269-4280FAX 312/872-8585

The activities of the Public Finance Committeeare focused on financing activities of state and localgovernments. Committee members in private prac-tice represent public issuers, underwriters, creditproviders, trustees, and other participants in the pub-lic debt market while other members are employedby government agencies. Issues relating to regulationof the tax-exempt debt market and securities by theSecurities and Exchange Commission and the Inter-

State & Local Law News, Volume 18, Number 1, Fall 1994

nal Revenue Service, the financing needs of state andlocal government, and professional education in thearea receive attention by separate subcommittees.

Last year the Committee conducted a program atthe Midyear Meeting with the staff of the SEC dis-cussing the SEC's project to further regulate disclo-sure by state and local governments in the securitiesmarkets. Following the SEC's subsequent issuance ofreleases concerning disclosure obligations, the Com-mittee prepared a Comment Letter to the SEC forthe Section. During the year, the Second Edition ofDisclosure Roles of Counsel was published, a project inwhich the Section was both a participant and thepublisher. The Section also published the very suc-cessful book, Tax-Exempt Derivatives, which was writ-ten by Committee members.

This year the Committee will continue to beinvolved with issues relating to disclosure by publicissuers and the related duties of lawyers. Work isunder way to present a program either to the Sectionor another group about required disclosure at thetime of the original offering as well as throughout theterm of the securities. The Committee is also consid-ering writing a book on disclosure practices to bepublished by the Section.

Public TransportationDale F. RubinWillamette UniversityCollege of Law250 Winer St., S.E.Salem, OR 97301503/370-6391FAX 503/370-6375

The Public Transportation Committee will beinvolved in several important national public trans-portation issues during the year. I propose that theCommittee devote its attention to the following areas,which are not necessarily listed in order of importance:(1) the level of federal assistance for local public trans-portation; (2) the implementation of ISTEA, particu-larly with respect to Joint Planning Regulations andFlexible Funding; (3) revision of Minority BusinessEnterprise regulations as applied to pubic transitgrants; (4) compliance with the Americans with Dis-abilities Act; (5) the status of the development of anational transportation system by the Department ofTransportation and its relationship to the nationalhighway system called for under ISTEA; and (6)implementation of section 13(c) of the Federal TransitAct, particularly the labor protection provisions.

These are only suggested topics. You will bereceiving a questionnaire requesting that you specifycertain areas of interest. If you are interested in servingas a vice chair or as a chair of a subcommittee, pleasewrite Sharon Tindall at the Section office.

Task Force onEmerging IssuesRuth Kleinfeld207 Hooksett, NorthManchester, NH 03104-2641603/666-7546FAX 603/623-4050

The Task Force on Emerging Issues is charged withidentifying and developing new issues that can beexpected to confront the practicing attorney withimportant demands for expertise and action. The TaskForce serves as an incubator for such issues by facilitat-ing and documenting their emergence and import, andby encouraging the dissemination of knowledge aboutthem. As Task Force chair, I welcome participation bySection members as we begin to think about implica-tions for practice in the new millennium. If this getsyou thinking about cyberspace, good-we need to beable to harness the new technology to benefit the rangeof attorneys and clients involved in public sector law.

Supreme Court Watch(continued from page 8)

Justice Blackmun was joined in dissent by JusticesStevens, Souter, and Ginsburg. Justice Stevens, joinedby the other three dissenters, wrote a separate opinionin reply to Justice Thomas.

In Johnson v. De Grandy, 114 S. Ct. 2647 (decid-ed June 30), the Court upheld Florida's redistrictingplan. This district court had upheld the Senate plan,but struck down the House plan, ruling that the statecould create more Hispanic districts without a regres-sive effect on blacks. The Supreme Court affirmed asto the Senate plan, but reversed as to the House

Justice Souter wrote the Court's opinion, holdingthe plan did not on its face violate section 2 because,"in spite of continuing discrimination and racial blocvoting, minority voters form effective voting majoritiesin a number of districts roughly proportional to theminority voters' respective shares in the voting agepopulation." Although proportionality is not a "safeharbor," the district court failed to "address the statu-tory standards or unequal political and electoral oppor-tunity," but instead mistakenly equated dilution undersection 2 with failure to "maximize the number of rea-sonably compact majority-minority districts." JusticesO'Connor and Kennedy wrote concurring opinions.

Justice Thomas, joined by Justice Scalia, thoughtthat an apportionment plan is not a "standard, practice,or procedure" subject to challenge under section 2.

Endnotes1. See discussion of Oregon Waste Systems, Inc. v. Department of

Environmental Quality of State of Oregon, 62 U.S.L.W. 4209 (decidedApr. 4, 1994), in Supreme Court Watch, 17 ST. & Loc. L. News No. 4, at7 (Summer 1994).

State &Local Law News, Volume 18, Number 1, Fall 1994 15

WASHINGTON'SLABYRIUHINE WAYS

By Otto J. Hetzel

A Most Acrimonious Close for the 103rdCongress. Bodies of unenacted legislation lay strewnaround on Capitol Hill in various stages of the enact-ment process. They were the victims of filibustersand delaying tactics by Republicans who saw anopportunity to trash Clinton's reform agenda andhelp themselves by directing voter ire at incumbents,more of whom are Democrats. Perhaps it was the realpotential of a Republican takeover of the next Senatethat emboldened their actions, or just the opportunityto attack the President. Whatever the rationale,Senator Dole and his colleagues in the Senate provid-ed a textbook demonstration of the effectiveness offilibusters in the closing days of Congress to limit thatbody's output. Almost indifferent to voters' reactionsto its use, the Senate GOP mounted twenty-six fili-busters in this Congress, roughly one quarter of themin the last weeks.

Coming at the end of the session, their tacticswere particularly effective, not only preventing thebill under discussion from proceeding, but with a lim-ited number of days before adjournment for theupcoming elections, the filibusters prevented manyother items from even being brought up for final con-sideration. The result was that many worthwhile bills,which earlier had substantial bipartisan support, werenever enacted.

Dole's tactics, labelled a "scorched earth policy"by one Democratic senator and termed "unprece-dented obstructionist actions" by Majority LeaderMitchell, combined five major filibusters along withprocedurally authorized thirty-hour debate periods,not normally utilized, to hold up most action. Theadditional time for debate is permitted following clo-ture before a vote or before bills approved by bothHouses could even be sent to conference committeesto resolve differences.

Thus, few bills got acted upon during the closing

Otto J. Hetzel is aprofessor of law atWayne State Universityand also practices lawin Washington, D.C.,with the firm of Pepper,Hamilton & Scheetz.

weeks before adjournment on October 8. The onlymajor area of agreement for most members was toscold the President for his unilateral action of goinginto Haiti. Even the General Agreement on Tariffsand Trade (GATT), initiated and supported byRepublicans, was delayed for consideration until a"lame duck" session after the November elections.The President, of course, took several swings at theobstructionist actions. Whether their tactics were suc-cessful will have to await November's elections.

With the anticipated change in membership ofboth Houses of Congress that is expected to accordmore power to Republicans, versions of legislationthat will be renewed in the next session are unlikelyto achieve the same policy goals that would havebeen acceptable to current members of both Houses.In the House, visions of a speakership dangled beforeRepublican leader Newt Gingrich. While it is a long-shot, there is a tangible possibility that theRepublicans could achieve enough gains in conjunc-tion with retirements from the House to take overeffective control of that body. The temptation, there-fore, to delay matters until then was too much forRepublicans in both Houses.

Not many pending measures survived. At the closeof the session, unrelated subjects were tacked on billstreated as the last train leaving the station in order toprovide a vehicle for passage. For instance, fundingfor operations of the Securities and ExchangeCommission was endangered because many nonger-mane amendments on other matters were incorporat-ed in it when it became the last appropriation billunder consideration, meaning that it would ultimate-ly be enacted before Congress adjourned.

Democrats also bear some responsibility for whatoccurred. Too many bills were stacked up awaitingconsideration once health-care legislation died late inthe session. The weakness of the President becameapparent when a procedural vote on the crime billwas lost and only last-minute scrambling rescuedwhat otherwise seemed a sure thing. The circum-stances invited Republican delaying tactics thatallowed only a few senators to hold up a bill's consid-eration.

States and local governments had significant inter-est in a few measures salvaged in the remaining time,as well as in many of those which were abandoned.Among those enacted, the crime bill, preservation ofCalifornia desert land, and a new approach to educa-tional funding had the most importance. The latteronly made it when a 75-24 cloture vote cut off debateon one of the Republican filibusters.

Congress was unable to act on a number of mea-sures affecting itself that may come back to "bite"

16 State &Local Law News, Volume 18, Number 1, Fall 1994

those who prevented enactment. These includedeliminating congressional exemptions from manyworker protection measures, reform of lobbying andgift restrictions, new procedures for streamlining con-gressional action, and campaign finance reform.Among those prominent measures lost that hadpotential impact on state and local governments were:housing and community development reauthoriza-tion; revisions in the Superfund hazardous wastecleanup; new Clean Water Act standards for munici-palities; relief from unfunded federal mandates; and,authorization of the telecommunications highway.

Mixed Reactions to the Crime Bill UltimatelyEnacted. The Crime Bill became law but only after ahard battle and procedural setbacks demonstratinggreat concern by many in Congress about its specificprovisions. Disproportionate impact on minoritiesinfluenced many black legislators to oppose initiatingfifty-eight new crimes for which the death penaltycould be imposed. Even greater resistance came fromthose opposing assault weapon restrictions covered inthe bill. The NRA lost another battle to a determinedAdministration that made enactment of the bill itsprimary objective.

The bill was seen as essential for theAdministration's survival, so many members whomight have objected to specific provisions in it ralliedaround the President, whose remaining prestige wason the line after the procedural rule vote went downto defeat. It was also important to many representa-tives running for re-election and wanting to demon-strate a tough posture addressing the top issue on theminds of their constituents. Only after some $4 bil-lion in "preventative programs" were dropped fromthe measure could a majority be found to support it.At the end, support from moderate Republicansbecame critical and the reduction was their price forsupport.

As enacted, the bill creates a $30.2 billion trustfund (funded from the anticipated savings of severing252,000 federal workers from the payroll) that wouldprovide: (1) $13.4 billion for grants, from which $8.8billion will go to localities to hire police officers toperform community policing, with the remainder formore border patrol officers to limit illegal alien immi-gration that sorely burdens border states, and forother federal agents; (2) $9.9 billion for grants tostates for prisons and boot camps to encouragetougher sentencing that will increase prison popula-tions; (3) $5.5 billion in grants for recreation such as"midnight basketball" to distract potential offenders,for education and anti-gang programs, along withshelters for women subjected to violence; and, (4)$1.4 billion for anti-drug efforts including specialcourts to provide treatment and close monitoring offirst-time, nonviolent drug offenders.

State & Local Law News, Volume 18, Number 1, Fall 1994

The Act is to fund 100,000 new police officers forlocal jurisdictions, assist states in building new pris-ons, and launch a variety of crime prevention pro-grams. The "three strikes and you're out" provisionimposing life imprisonment on repeat violent offend-ers was the most popular provision for many legisla-tors. Other significant provisions relate to allowingnotification of residents when violent sexual offend-ers are released into a community, and requiring alife-time, quarterly-updated registration by theoffenders. Sex-based violence was also made a civilrights violation and grants are provided to encouragedomestic violence arrests without consent of abusevictims. Federal penalties are now created for inter-state stalking or spouse abuse. Of the amounts to beprovided, $170 million is for technical improvementsincluding DNA testing research. Has O.J.'s defenseteam checked this out?

Education Act Refocus Survives Logjam.Funding for elementary and secondary education wasonly shaken loose from a Republican filibuster bySenator Helms, arguing over school prayer, by a clo-ture vote. The compromise on this issue in the con-ference report was upheld. It would bar funds to dis-tricts that violated federal court orders upholding stu-dent rights to unsupervised prayer in school.

The Act authorizes $7.4 billion in formula grants tolocal school districts to educate low-income students.Aid to poorer districts will increase starting in 1996.Compensating for costs of educating children livingon federal enclaves, another $866 million will go toschool districts responsible for educating children offederal workers on such sites. Leadership grantsunder the Eisenhower Professional DevelopmentProgram will get another $800 million.

Special grants are also authorized for: combatingviolence and drugs in schools ($630 million); improv-ing teaching of disadvantaged and handicapped chil-dren ($370 million); for migrant workers ($310 mil-lion); for technology instruction and equipment ($215million); for immigrant children ($215 million); con-struction of facilities in poor districts ($200 million);improvement of teaching and curriculum in tax-poorurban and rural districts ($150 million); for magnetschools ($120 million); for the "Even Start" FamilyLiteracy Program ($118 million); to encourage experi-mental teaching techniques ($59 million); for equip-ment for private school pupils ($41 million); and, foreducation of dropouts and delinquents ($40 million).Of course, the next question is what funds will actual-ly be made available for these programs by the nextCongress since the appropriation bill enacted earlierwas several billion dollars short of these totals. Thefight was over re-directing more aid to districts withpoorer students starting in 1996, which finally pre-vailed, but barely.

Beyond Nollan(continuedfrom page 2)

position" a "reasonable relationship" test, which themajority of the states addressing this issue appear tohave adopted. See, e.g., Jordan v. Menomonee Falls, 137N.W.2d 442 (Wis. 1965); Call v. West Jordan, 606 P.2d217 (Utah 1979); and College Station v. Turtle Rock Corp.,680 S.W.2d 802 (Tex. 1984). However, the Courtterms it instead a "rough proportionality" test to avoid(according to the Court) confusion with "rationalbasis" (which describes the minimum level of scrutinyunder the Fourteenth Amendment's Equal ProtectionClause): "[Tihe city must make some sort of individu-alized determination that the required dedication isrelated both in nature and extent to the impact of theproposed development." 114 S. Ct. at 2319-20.

What does this mean? First, the Court cites andquotes as its principal source a case which equates rea-sonable relationship with nexus. (Simpson v. NorthPlatte, 292 N.W.2d 297, 301 (Neb. 1980).) Second,many of the state courts use "rational nexus" as theusual term applied to the "middle ground" test adopt-ed by the Dolan court. The tests-rational nexus andreasonable relationship-are therefore arguably thesame for this third part, and represent an affirmation ofwhat most state courts have been doing with exactionslaw for the past twenty years (see especially Contractors& Builders Association v. City of Dunedin, 329 So. 2d 314(Fla. 1976), and commentary in NICHOLAS, NELSON

AND JUERGENSMEYER, A PRACTITIONER'S GUIDE TO

DEVELOPMENT IMPACT FEES (1991), and CALLIES,PRESERVING PARADISE: WHY REGULATION WON'T

WORK (1994), at ch. 4).In sum, the Court has adopted what most recent

cases and commentary had hitherto called the "rationalnexus" test, after first describing it as the (more gener-al) "reasonable relationship" test, and finally settlingon a brand-new term, "rough proportionality"-whichit never uses for the rest of the opinion.

Applying the test to the Dolan hardware store prop-erty, the Court concludes that the City of Tigarddemanded too much to pass this third nexus/roughproportionality test. Simply concluding that a bikewayeasement could offset some of the traffic demandwhich the new hardware store would generate did notconstitute sufficiently quantified findings for the tak-ing of an easement. While the Court

[has] no doubt that the city was correct in finding thatthe larger retail sales facility proposed by petitionerwill increase traffic on the streets ... the city has notmet its burden of demonstrating that the additionalnumber of vehicle and bicycle trips generated by peti-tioner's development reasonably relate to the city'srequirement for a dedication of the pedestrian/bicycle

pathway easement. The city simply found that thecreation of the pathway "could offset some of the traf-fic demand ... and lessen the increase in traffic con-gestion .... " The city must make some effort to quan-tify its findings . . . beyond the conclusory statement[quoted above].

114 S. Ct. at 2322.As to the greenway easement, while the Court said,

It is axiomatic that increasing the amount of impervi-ous surface will increase the quantity and rate ofstormwater flow from petitioner's property... the citydemanded more-it not only wanted petitioner not tobuild in the floodplain, but it also wanted petitioner'sproperty along Fanno Creek for its greenway system.The city has never said why a public greenway, asopposed to a private one, was required in the interestsof flood control.

Id. at 2320 (emphasis added).The constitutional problem in both instances is

"the loss of [their] ability to exclude" which the Courtreminds us is one of the most essential sticks in thebundle of rights that are characterized as property.Indeed, Chief Justice Rehnquist has previously andfrequently written about the fundamental nature ofproperty rights: "[We] hold that the 'right to exclude'so universally held to be a fundamental element of theproperty right, falls within the category of interests thatthe Government cannot take without compensation."Kaiser Aetna v. United States, 444 U.S. 164, 179-80(1979). The Court generally has said much the samething in Loretto v. Teleprompter Manhattan CATV Corp.,458 U.S. 419 (1982). This is a critical point, to whichthe Court returns several times. Property rights mattermightily to this Court:

We see no reason why the Takings Clause of the FifthAmendment, as much a part of the Bill of Rights asthe First Amendment [free speech, press, religion,association, assembly] or the Fourth Amendment[search and seizure] should be relegated to the statusof a poor relation in these comparable circumstances.

114 S. Ct. at 2320.This "right to exclude" languagemay persuade

some that the decision should be restricted in its appli-cation to land dedication exactions. There is much inthe opinion which would bear such an interpretation.Most of the state cases cited by the court are land dedi-cation cases (as was the Nollan case), and except in rareinstances, the Court consistently refers to the proposed"dedication" (not condition or exaction) throughout theopinion. Based on the philosophy behind the Court'sother recent land-use decisions-particularly afterNollan-a broader interpretation makes more sense.

This is particularly true following the Supreme

18 State & Local Law News, Volume 18, Number 1, Fall 1994

Court's vacating and remanding the impact fees case ofEhrlich v. City of Culver City, 19 Cal. Rptr. 2d 468 (Cal.Ct. App. 1993), vacated, 114 S. Ct. 2731 (1994), to thecourt of appeals in California only days after its deci-sion in Dolan. Culver City had imposed a $280,000 feeto "mitigate" the loss of "community" facilities as acondition of Ehrlich's tearing down his private-andunprofitable-tennis and recreation club and buildingsomething of a residential nature. Also a condition ofthe same city zoning and map amendment approval:an "in lieu" art fee of $33,220. No property dedicationcase, this. Both fees were levied only after the cityfound that providing recreational facilities and art workwere public benefits and the fees were appropriatemethods to obtain those benefits. Observing that mon-etary exactions compelled as a condition of approvalrequired only a rational relationship to a governmentalpurpose, as compared to the heightened scrutinyrequired where the condition on approval constitutes aphysical taking, the California Court of Appeals upheldboth fees, citing not only Nollan but also the Californiacases of Blue Jeans Equities West v. City and County ofSan Francisco, 4 Cal. Rptr. 2d 114 (Cal. Ct. App. 1992),cert. denied, 113 S. Ct. 191 (1992), and CommercialBuilders of Northern California v. City of Sacramento, 941F.2d 872 (9th Cir. 1991), cert. denied, 112 S. Ct. 1997(1992). It remains to be seen whether either the differ-ence in tests applied or the fees themselves survivethe Dolan rough proportionality test.

Procedurally, the Court also changed the way theburden of proof is allocated in land-use litigation.Typically, it is the landowner which carries the sub-stantial burden of proving that the challenged regula-tion represents an arbitrary regulation of propertyrights (for which proposition the Court cites no less anauthority than Euclid v. Ambler Realty Co., 304 U.S. 365(1926)). Noting that Tigard made an "adjudicativedecision" to condition the Dolans' application for abuilding permit, the Court held that "[i]n this situa-tion, the burden properly rests on the city," citing theNollan case. 114 S. Ct. at 2320.

Dolan is quickly making its mark in state courts. InHomebuilders Assocation of Central Arizona v. City ofScottsdale, 875 P.2d 1310 (Ariz. Ct. App. 1993), anArizona court of appeals decision upholding a waterresources development fee on new developments wasremanded for reconsideration in light of Dolan on July6 after review had been previously granted. In TrimenDevelopment Company v. King County, 877 P.2d 187(Wash. 1994), the Supreme Court of Washingtonupheld a park development fee only after finding that"the fees imposed in lieu of dedication were reason-ably necessary as a direct result of Trimen's proposeddevelopment," specifically citing Dolan and its roughproportionality requirement between dedication andimpact of proposed development. See also Third &Catalina Associates v. City of Phoenix, No. 1 CA-CV 93-

0337 (Ariz. Ct. App. Aug. 18, 1994), upholding a sprin-kler retrofit ordinance on the questionable ground that"[h]ere we do not have a situation of private propertybeing pressed into public service as in Dolan v. City ofTigard." Id., slip op. at 5.

In a recent Florida inverse condemnation case, StateDepartment of Transportation v. Heckman, No. 93-0978(Fla. Ct. App. Sept. 14, 1994), the City of OaklandPark waived a platting requirement needed for a build-ing permit in return for a seven foot right-of-way andsubsequently gave it to the state Department ofTransportation for highway-widening. The court citedDolan's "rough proportionality" test and "assum[ed][the city] was not entitled to require the dedication;"however the court held that the inverse condemnationclaim against the state transportation department(rather than the city) could not be supported by a prin-ciple of agency by estoppel. Id., slip op. at 3.

For local government, the message is clear: exac-tions-particularly those of the land dedication vari-ety-must clearly and unequivocally solve problemsgenerated by the landowner upon whom they arelevied, and in proportion to the impact the proposeddevelopment is likely to have. For example, the needfor parks (indeed public spaces generally) and schoolsare generated by residential developments, not com-mercial and industrial developments. Golf coursesdon't generate a need for so-called affordable housing.For that matter, neither does a market-rate housingdevelopment. On the other hand, state and local gov-ernment has a responsibility to provide needed publicfacilities, and the development community can be con-stitutionally required to bear its proportionate share ofthe costs of those facilities, the need for which itsdevelopment generates. After all, the Court said inclosing:

Cities have long engaged in the commendable task ofland use planning, made necessary by increasingurbanization particularly in the metropolitan areas. ...The city's goals of reducing flooding hazards and traf-fic congestion, and providing for public greenways arelaudable, but there are outer limits to how this may bedone.

114 S. Ct. at 2322.

Religious School District(continued from page 6)

responsibility for the provision of public education toa single religious group, and as such, violated theEstablishment Clause. While the conclusions of theCourt were not unforeseeable, the rationale and thereaction may well signal a different future for freeexercise and establishment cases.

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