Monday, September 10, 2007


From last week:

The Joel Bieber blog has this post on the case of illegal use of a musical device in Portsmouth, involving ice cream trucks - which reminds of another case, the one with the preacher singing too loud in his case.

On the farm in Blacksburg, the scientists are converting poultry litter into fuel.

This incredibly interesting article deals with funky predictors that defy the experts, and the resulting decline of expert discretion, against the background of how Virginia predicts which sex offenders need to be committed, post-incarceration. Evidently, the Commonwealth uses some scoring system to big the worst offenders:

"You see, Virginia’s version of the SVPA contained a super-crunching innovation. The statute included a “tripwire” that automatically sets the commitment process in motion if a super-crunching algorithm predicts that the inmate has a high risk of sexual offence recidivism. Under the statute, commissioners of the Virginia Department of Corrections were directed to review for possible commitment all prisoners about to be released who “receive a score of four or more on the Rapid Risk Assessment for Sexual Offender Recidivism”. The Rapid Risk Assessment for Sexual Offender Recidivism (RRASOR, and pronounced “razor”) is a points system based on a regression analysis of male offenders in Canada. A score of four or more on the RRASOR translates into a prediction that the inmate, if released, would in the next 10 years have a 55 per cent chance of committing another sex offence."

And, last, someone sent me this link to a website with some rather downhome constitutional arguments, on the topic of whether the Clean Water Act preempts Virginia's Dillon Rule, as regards the regulation of biosolids as fertilizer - that describes the history of litigation over anti-biosolid ordinances, in state and federal court in Virginia. It is interesting to me in part because of its characterization of the Bristol fiber case, in which I was a more than interested spectator. (One point omitted is that the Supreme Court eventually ruled in the Missouri case that Judge Jones got it wrong on the preemption issue.) In the Bristol case, we had to deal with making the claim, can a Virginia city have standing to sue the Commonwealth to enforce federal rights?

On that point, this is part of what we argued:

"There can be no doubt that there are constitutional constraints on the states’ regulation of local government. See Romer v. Evans, 517 U.S. 620, 626, 629-31 (1996) (upholding Equal Protection challenge brought by municipalities and others against a state law prohibiting municipalities from adopting laws designed to protect homosexual persons from discrimination); Lawrence County v. Lead-Deadwood School District, 469 U.S. 256, 268-69 (1985) (upholding school district’s Supremacy Clause challenge to state law requiring distribution of federal funds received by local school district); Washington v. Seattle School Dist. No. 1, 458 U.S. 457 (1982) (upholding school district’s challenge to state law prohibiting school districts from using mandatory busing to achieve racial integration); Board of Education v. Allen, 392 U.S. 236 (1968) (upholding school district’s attack on state statute requiring school districts to supply books to parochial schools). Where the interests of state and local government diverge on constitutional issues, local government meets the requirements for standing. In particular, local government has standing to bring a Supremacy Clause challenge to state statutes limiting local government in violation of federal law.

“Courts that have faced suits based on federal statutes . . . have concluded that subdivisions do have standing to sue the state.” 13A WRIGHT, MILLER, AND COOPER, FED. PRAC. & PROC. JURIS. 2d § 3531.11. See Branson School District RE-82 v. Romer, 161 F.3d 619, 628-30 (10th Cir. 1998), cert. denied, 526 U.S. 1068 (1999) (“A political subdivision has standing to sue its political parent on a Supremacy Clause claim”); Rogers v. Brockette, 588 F.2d 1057, 1067-1071 (5th Cir.), cert. denied, 444 U.S. 827 (1979) (local school board has standing to bring action against state and others challenging constitutionality of state statute which required certain school districts to participate in subsidized breakfast program); Atlantic Coast Demolition & Recycling, Inc. v. Board of Chosen Freeholders of Atlantic County, 893 F. Supp. 301, 315 (D.N.J. 1995) (“municipalities may assert claims against the creating state under the Supremacy Clause”); San Diego Unified Port District v. Gianturco, 457 F. Supp 283, 289-290 (S.D. Cal. 1978), aff’d on other grounds, 651 F.2d 1306, 1309 n.7 (9th Cir. 1981) (“If the Supremacy Clause is to be effective in achieving its purpose, its dictates must be enforceable by political subdivisions of states as well as by individuals”). “Decisions ruling that state-created municipalities or other government districts lack Fourteenth Amendment rights against the states creating them do not apply to suits brought to challenge state activities under the Supremacy Clause on grounds of preemption by federal law.” 13A WRIGHT, MILLER, AND COOPER, supra, § 3531.11 at n.55. “[No] Supreme Court case has held that a political subdivision is barred from asserting the structural protections of the Supremacy Clause of Article VI in a suit against its creating state.” Branson School Dist. RE-82, 161 F.3d at 629.

Even under other provisions of the Constitution, standing for a political subdivision might be found. See Washington, 458 U.S. at 487 n.31 (upholding attorneys’ fee award to local school board against state; “[w]hile appellants suggest that it is incongruous for a State to pay attorney’s fees to one of its school boards, it seems no less incongruous that a local board would feel the need to sue the State for a violation of the Fourteenth Amendment”); City of South Lake Tahoe v. California Tahoe Regional Planning Agency, 449 U.S. 1039, 1041-42 (1980) (White, J., dissenting from denial of certiorari) (arguing that denial of political subdivision standing was “inconsistent” with the Court’s holding in Board of Education v. Allen); City of Charleston v. Public Service Commission of West Virginia, 57 F.3d 385, 389-90 (4th Cir.), cert. denied, 516 U.S. 974 (1995) (in Contract Clause case, “whether the cities have standing to bring this suit is unclear”); Amato v. Wilentz, 952 F.2d 742, 755 (3d Cir. 1991) (“Judicial support for [rule against standing] may be waning with time”); School Bd. of the City of Richmond, Va. v. Baliles, 829 F.2d 1308, 1311 (4th Cir. 1987) (upholding standing of school district of the City of Richmond in appeal against the Commonwealth in part “because of the direct economic injury it has suffered as a result of the state defendants’ unconstitutional conduct”); Benjamin v. Malcolm, 803 F.2d 46, 54 (2d Cir. 1986), cert. denied, 480 U.S. 910 (1987) (city has standing for third-party claim against state as to claims based on prison overcrowding); United States v. Alabama, 791 F.2d 1450, 1455 (11th Cir. 1986), cert. denied, 475 U.S. 1085 (1987) (citing Rogers, there is no per se rule against municipality suits in the Eleventh Circuit); South Macomb Disposal Authority v. Township of Washington, 790 F.2d 500, 504-05 (6th Cir. 1986) (“There may be occasions in which a political subdivision is not prevented, by virtue of its status as a subdivision of the state, from challenging the constitutionality of state legislation”); Akron Board of Education v. State Board of Education of Ohio, 490 F.2d 1285 (6th Cir.), cert. denied, 417 U.S. 932 (1974) (Fourteenth Amendment claim of local board against state)."

Finally, on judicial selection, the appointment of judges (such as we do in Virginia) is taking a beating lately. This article from the K.C. Star describes the furor over the "Missouri" plan right there in Missouri, while this post describes a study that says appointed judges are no better than elected judges (even though they write more).

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