1988-89 Cases Affecting State and Local Government
| Publication year | 1989 |
| Pages | 15 |
| Citation | Vol. 2 No. 5 Pg. 15 |
Richard S. Dalebout, J.
Prepared for Brigham Young University J. Reuben Clark Law School State and Local Government Conference March 24, 1989
(Research for this paper was done by Richard Stapler, a law student at the J. Reuben Clark Law School)
This article reviews selected decisions of the United States Supreme Court, the Utah Supreme Court and the Court of Appeals of Utah which affect state and local governments. The period reviewed is February 1, 1988, through March 1, 1989.
SUMMARY
The cases are reviewed by topic. The first topical category focuses on the First Amendment and contains five cases, four by the United States Supreme Court and one by the Utah Supreme Court. These cases examine a local law prohibiting discrimination in private clubs, a state statute regulating the display of sexually explicit materials which are accessible to juveniles, a local ordinance prohibiting the solicitation of sexual conduct, a local ordinance regulating news-racks for the sale of newspapers and a local ordinance prohibiting the picketing of individual residences.
The second category focuses on the Commerce Clause and includes two cases in which the United States Supreme Court applied tests described in Complete Auto Transit, Inc. v. Brady[1] to state taxation of enterprises in interstate commerce.
The third category contains three United States Supreme Court cases relating to 42 U.S.C. Sect. 1983 liability. The first case defines which public officials have final policy-making authority which will expose a municipality to liability. The second case focuses on the inadequacy of policy training as a cause of action. The third case deals with whether state court judges should have absolute immunity for their administrative acts.
The fourth category deals with government taking or damaging private property. In this category is a United States Supreme Court case examining a local rent control ordinance and a Court of Appeals of Utah decision examining city construction of a curb, gutter and sidewalk on city property, which eliminated parking on private property.
The fifth category contains three Utah zoning cases. Two of the cases involve application of the Utah Supreme Court decision in Chambers v. Smithfield City[2]that a board of adjustment, and not a city legislative body, is the proper appellate forum for a person aggrieved by a zoning decision. The last case involves a determination of when a mobile home is "occupied, " and for that reason illegally used in a city.
The sixth category of cases is labelled Potpourri because it is a collection of six widely different cases affecting state or local governments. The cases in this category deal with federal tax limitations on the issuance in "bearer" form of state and local government bonds, federal pre-emption in relation to state regulation of businesses involved in the interstate transmission and storage of natural gas, federal pre-emption in relation to the taxation and regulation of petroleum, application of state workmen's compensation and safety rules to workers employed in federally owned facilities, state utilities regulations as a constitutionally prohibited "taking" and the surcharge pooling required by the Utah Public Service Commission's Lifeline program.
Last are some observations about the drafting of legislation to avoid constitutional and other challenges, which observations are drawn from the cases discussed herein.
FIRST AMENDMENT
In 1985, New York City amended its "Human Rights Law" in relation to discrimination in "public" clubs. Under the amendment, a club is "public" if it has more than 400 members and regularly sells goods or services to nonmembers. Benevolent organizations and religious organizations are exempted from coverage. In New York State Club Ass 'n v. City of New Yorit, [3] the United States Supreme Court held that the amended law was not facially invalid because it was capable of being applied without violating protected rights of expression and association. Nor was it overbroad in prohibiting protected rights; any problem of that kind could be handled on a case-by-case basis.
Virginia v. American Booksellers Ass'n. Inc.[4] is an apparent outgrowth of Ginsberg v. New York (1968), [5] in which the United States Supreme Court upheld restrictions on the sale of materials that are "harmful to juveniles." In Virginia, a state statute made it unlawful to display materials that are "harmful to juveniles" in such a way that "juveniles may examine and peruse" those materials. The Court could not discern from the statute: (1) what materials are prohibited as harmful to juveniles, nor (2) is a bookstore owner required to prohibit juveniles from examining the prohibited materials, or is it sufficient for a bookstore owner to step forward and stop a juvenile who is observed examining the prohibited materials. In an effort to find a "narrowing construction" that would avoid a conclusion overbroad or vague, the Court certified the two questions above to the Virginia Supreme Court for interpretation.
In Provo City Corp. v. Willden, [6] a municipal ordinance prohibited the solicitation of a broad range of sexual conduct. Admitting that his solicitation of homosexual sex would be prohibited by a properly drawn ordinance, the appellant nevertheless claimed, and the Utah Supreme Court agreed, that the ordinance was overbroad and criminalized protected behavior such as a man suggesting to his wife, during a stroll through a public park, that the two of them go to their home and engage in sexual intercourse. The Court concluded that the plain language of the ordinance prevented any narrowing interpretation that would limit the scope of the prohibition to solicitation of unlawful sexual conduct.
In City of Lakewood v. Plain Dealer Publishing Co., [7] the United States Supreme Court invalidated a permit system by which newsracks for the sale of newspapers were allowed to be placed on public property. The principal objection to the ordinance was that permits could be refused at the discretion of the mayor, and there were no standards controlling the mayor's decision. Left undecided were...
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