First Amendment

Tomorrow in the U.S. Supreme Court: Prayer and Local Government

November 5, 2013, by Deborah J. Fox, David S. Warner

In a case that local governments are watching closely because of the impact it could have on the practice of opening city council meetings with prayer, the U.S. Supreme Court will hear arguments tomorrow in Town of Greece v. Galloway. The matter involves the town of Greece, New York, where two citizens challenged the town council’s years-long practice of beginning its monthly meetings with prayers that were almost exclusively Christian. The practical effect has been to endorse Christianity as the town’s religion—a violation of the Constitution’s Establishment Clause, the citizens argue. The town contends that its practice has been sound; its brief to the Supreme Court leans heavily on the Supreme Court’s decision 30 years ago in Marsh v. Chambers, which found that the state of Nebraska had not violated the Constitution by employing a Presbyterian minister for 16 years to lead the legislature in prayer. Meyers Nave presented on this issue at last month’s annual International Municipal Lawyers Association conference and will be monitoring tomorrow’s arguments and providing analysis when the Court hands down its decision (due by June 2014). On Friday, a complete audio recording of tomorrow’s arguments will be available here.

Appellate Court Holds that Due Process Prevents Partners From the Same Law Firm From Serving as Adviser and Advocate on Contested Hearings

April 22, 2013, by Arthur A. Hartinger, Steven T. Mattas, Ruthann G. Ziegler

The Second District Court of Appeal, in Sabey v. City of Pomona (B239916), remanded a decision related to discipline of a police officer on the basis that his due process rights were violated  when one partner from a law firm represented the Police Department in the officer's arbitration matter, and a different partner from the same firm represented the city council in the officer's appeal of his termination.  Even though there was no evidence of bias, the court believed the risk of bias, when two partners from the same firm were involved in different levels of the contested hearing, "too high to be acceptable under constitutional principles."  As explained by the court, "[t]he rule we announce is simple.  Agencies are barred from using a partner in a law firm as an advocate in a contested matter and another partner from the same law firm as an advisor to the decision maker in the same matter."

Due process requires impartiality in administrative hearings, and prevents an attorney from performing dual roles in contested quasi-judicial hearings such as administrative, disciplinary or code enforcement hearings.  Based on that principle, agencies have used one attorney to represent the agency in an administrative hearing, while allowing another attorney to represent the board that reviews the  decision stemming from that hearing.  This approach was permissible as long as there existed "assurances that the adviser for the decision maker is screened from any inappropriate contact with the advocate."  (Howitt v. Superior Court (1992) 3 Cal.App.4th 1575.)  "Ethical walls" were set up by law firms in order to comply with Howitt and to ensure an attorney did not communicate about the matter or access the files of the other attorney participating in the matter.

Neutral Government Policy for Privately Led Prayers at City Council Meetings Does Not Violate the Establishment Clause of the First Amendment or the California Constitution

April 1, 2013, by Deborah J. Fox, Dawn McIntosh

On March 26, 2013, the Ninth Circuit affirmed a district court ruling upholding the constitutionality of the City of Lancaster's policy and practice of allowing local congregations of any denomination to give an invocation at the beginning of City Council meetings.  Plaintiffs challenged the policy and practice as a violation of the Establishment Clause of the U.S. Constitution and the California Constitution because the invocations used sectarian references and because a majority of invocations were given by Christian denominations, which they contended had the effect of promoting one religious sect over others.  The Ninth Circuit disagreed, finding that neither the City's policy nor practice promoted any particular religion in violation of the Establishment Clause or the California Constitution (which employs the same language and standards as the Establishment Clause). 

What is the Difference Between a City Council Meeting and a Public Park?

March 28, 2013, by Deborah J. Fox, Dawn McIntosh

On February 25, 2013, the Ninth Circuit Court of Appeals agreed to rehear a case in which it had found a Costa Mesa ordinance governing rules of decorum at city council meetings to be unconstitutionally overbroad because the ordinance prohibited insolent behavior by someone attending the meeting even if such behavior did not cause a disruption of the meeting.  (Acosta v. City of Costa Mesa (2012) 694 Fl.3d 960.) 

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