Drafted and Shafted: Who Should Complain About Male-Only Registration?

SHERRY F. COLB

Cornell law professor comments on a recent opinion by the U.S. Court of Appeals for the Fifth Circuit holding that requiring men but not women to register for the draft is constitutional under mandatory U.S. Supreme Court precedents. Specifically, Colb considers what the U.S. Supreme Court should do if it agrees to hear the case and more narrowly, whether the motives of the plaintiffs in that case bear on how the case should come out.

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Reagan National Advertising of Austin, Inc. v. City of Austin

Court: US Court of Appeals for the Fifth Circuit

Docket: 19-50354

Opinion Date: August 26, 2020

Judge: Jennifer Walker Elrod

Areas of Law: Civil Rights, Constitutional Law, Zoning, Planning & Land Use

After the City of Austin denied applications to digitize existing billboards, Reagan and Lamar filed suit alleging that the distinction in the City's Sign Code between on-premises and off-premises signs violates the First Amendment. The Fifth Circuit held that the City's Sign Code's on-premises/off-premises distinction is content based and the commercial speech exception does not apply. The court held that the Sign Code runs afoul of the First Amendment because the relevant provisions of the Sign Code are not narrowly tailored to serve the compelling government interest of protecting the aesthetic value of the City and public safety. In this case, the ordinance is underinclusive. Accordingly, the court reversed the district court's decision to the contrary and remanded.

Protect Our Parks, Inc. v. Chicago Park District

Court: US Court of Appeals for the Seventh Circuit

Dockets: 19-3333, 19-2308

Opinion Date: August 21, 2020

Judge: Barrett

Areas of Law: Constitutional Law, Government & Administrative Law, Real Estate & Property Law, Zoning, Planning & Land Use

The Barack Obama Foundation selected Jackson Park in Chicago to house the Obama Presidential Center. Chicago acquired 19.3 acres from the Chicago Park District, enacted the necessary ordinances, and entered into a use agreement with the Obama Foundation. Construction will require the removal of multiple mature trees, the diversion of roadways, and will require the city to shoulder some expenses. Opponents sued, alleging that the defendants violated Illinois’s public trust doctrine, which limits the government’s ability to transfer control or ownership of public lands to private parties and that under Illinois law, the defendants acted beyond their legal authority in entering the use agreement because it delegates decision-making authority to the Foundation and grants the Foundation an illegal lease in all but name, Under federal law, they argued that, by altering the use of Jackson Park and granting control to the Foundation, the defendants took the plaintiffs’ property for a private purpose and deprived them of property in a process lacking in procedural safeguards. The district court granted the defendants summary judgment. The Seventh Circuit affirmed as to the federal claims and held that the state claims should have been dismissed for lack of jurisdiction. Federal courts are only permitted to adjudicate claims that have allegedly caused the plaintiff a concrete injury. The federal claims allege a concrete injury, but the lack of a property interest is a fundamental defect. The state claims allege only policy disagreements.

Southeast Alaska Conservation Council, Inc., v. Alaska, Department of Natural Resources

Court: Alaska Supreme Court

Docket: S-16793

Opinion Date: August 21, 2020

Judge: Joel H. Bolger

Areas of Law: Zoning, Planning & Land Use

The State of Alaska selected the land at issue in this appeal in 1989 under an Alaska Statehood Act provision allowing State selections of federal lands for community centers and recreational areas. In the 1990s, in order to settle litigation about the State’s management of lands granted to Alaska under the Alaska Mental Health Enabling Act (Mental Health Act), the State agreed to create a mental health trust. There were extensive negotiations over which lands would be included in this trust. In the course of these negotiations, the State agreed that the parcel selected under the Statehood Act would not be conveyed to the mental health trust, but rather would be classified and managed by the State as wildlife habitat. For years after this settlement, the State managed the parcel as wildlife habitat. In 2009 the State and the federal government executed an agreement finalizing the Mental Health Act selections. One of the terms of the agreement was that the parcel selected under the Statehood Act would be converted to a Mental Health Act selection. The parcel was conveyed by the federal government to the State, and the State subsequently conveyed the parcel to the mental health trust. A lawsuit was filed against the State to invalidate the transfer of the parcel to the mental health trust, based primarily on the arguments that the transaction violated contractual and statutory terms of the earlier mental health trust settlement and violated the constitutional public notice requirement for disposing of an interest in State land. The superior court ruled for the State, and Southeast Alaska Conservation Council appealed. After review, the Alaska Supreme Court determined the State violated the public notice clause of the Alaska Constitution by disposing of an interest in state land without providing the public prior notice. Further, the Court held the State's exchange of interests in the parcel was inconsistent with House Bill 201 (1994). The matter was therefore affirmed in part and reversed in part. The Supreme Court remanded for the superior court to "fashion a remedy" consistent withe the Supreme Court's opinion.

Riverside County Transportation Comm. v. Southern Cal. Gas Co.

Court: California Courts of Appeal

Docket: E069462(Fourth Appellate District)

Opinion Date: August 24, 2020

Judge: Manuel A. Ramirez

Areas of Law: Civil Procedure, Government & Administrative Law, Utilities Law, Zoning, Planning & Land Use

The Riverside County Transportation Commission (Commission) sought to extend its Metrolink commuter rail line from Riverside to Perris, using the route of a preexisting rail line that it had acquired. At five points, however, the new rail line would cross gas pipelines owned by the Southern California Gas Company. The Gas Company had installed these pipelines under city streets decades earlier, pursuant to franchises granted by the relevant cities and, in some instances, pursuant to licenses granted by the then-owner of the preexisting rail line. The new rail line could not be built as long as the pipelines remained in place. The Commission terminated the licenses and demanded that the Gas Company relocate its pipelines at its own expense. The parties agreed that the Gas Company would relocate its pipelines, to other points also owned by the Commission, and the Commission would pay the estimated expenses, but only provisionally; the Commission could still sue for reimbursement, and the Gas Company could then sue for any additional expenses. The trial court ruled that the Gas Company had to bear all of the costs of relocation; however, it also ruled that the Gas Company had never trespassed on the Commission’s land. Both sides appealed. After review, the Court of Appeal held the Gas Company did have to bear all of the costs of relocation. However, the Court also held that, at those points where the Gas Company held licenses for its pipelines, once the Commission terminated the licenses, the Gas Company could be held liable for trespass.

Bellevue Properties, Inc. v. Town of Conway

Court: New Hampshire Supreme Court

Docket: 2019-0302

Opinion Date: August 25, 2020

Judge: Donovan

Areas of Law: Civil Procedure, Government & Administrative Law, Zoning, Planning & Land Use

Plaintiff Bellevue Properties, Inc. appealed a superior court order affirming the Town of Conway’s decision to discontinue a public way that provided access to the plaintiff’s property. Plaintiff argued the trial court applied an incorrect legal standard to evaluate the Town’s decision and erred in concluding that the Town’s interests in discontinuing the road outweighed plaintiff’s interest in its continuance. After review, the New Hampshire Supreme Court determined the trial court applied the proper legal standard, and its decision was supported by the record.

City of Glen Ullin, et al. v. Schirado, et al.

Court: North Dakota Supreme Court

Citation: 2020 ND 185

Opinion Date: August 27, 2020

Judge: Jerod E. Tufte

Areas of Law: Civil Procedure, Real Estate & Property Law, Zoning, Planning & Land Use

The dispute concerned lots, streets, and alleys within or near the City of Glen Ullin. The lots, streets, and alleys were all surveyed and platted, but undeveloped. The Park District owned or had authority over the lots. The City had authority over the streets and alleys, which ran adjacent to and between the lots. The Schirados owned land near both the Park District property and the City property. The Shirados appealed after the district court granted summary judgment in favor of the City and the Park District, concluding the case was res judicata due to a prior lawsuit between the Park District and the Schirados. The court entered judgment enjoining the Schirados from placing any obstruction or personal property on certain City lands and on certain Park District lands and awarded attorney’s fees. After its review, the North Dakota Supreme Court concluded the court properly applied the doctrine of res judicata to the Park District lands, which were the subject of the prior lawsuit, but it erred when it applied res judicata to the City lands, which were not included in the prior lawsuit. The Court therefore affirmed in part, reversed in part, vacated the award of attorney’s fees and costs, and remanded the case for further proceedings.

Wilkinson, et al. v. Board of University and School Lands of the State of N.D.

Court: North Dakota Supreme Court

Citation: 2020 ND 183

Opinion Date: August 27, 2020

Judge: Daniel J. Crothers

Areas of Law: Civil Procedure, Energy, Oil & Gas Law, Real Estate & Property Law, Zoning, Planning & Land Use

The Board of University and School Lands of the State of North Dakota, the State Engineer, and Statoil Oil & Gas LP appeal from a judgment determining William Wilkinson and the other plaintiffs owned mineral interests in certain North Dakota land. Although the judgment was not appealable because it did not dispose of all claims against all parties, the North Dakota Supreme Court exercised its supervisory jurisdiction to review the summary judgment. The Court concluded the district court did not err in concluding N.D.C.C. ch. 61-33.1 applied and the disputed mineral interests were above the ordinary high water mark of the historical Missouri riverbed channel, but the court erred in quieting title and failing to comply with the statutory process. Therefore, the Court affirmed in part, reversed in part, and remanded for further proceedings.

75-80 Properties v. RALE, Inc.

Court: Maryland Court of Appeals

Docket: 59/19

Opinion Date: August 24, 2020

Judge: Booth

Areas of Law: Government & Administrative Law, Real Estate & Property Law, Zoning, Planning & Land Use

The Court of Appeals affirmed the judgment of the Court of Special Appeals affirming the judgment of the circuit court vacating original development approvals by the Frederick Council Council so that the Council could proceed with a de novo reconsideration proceeding, holding that the circuit court did not err in vacating the development approvals after the Developers refused to participate in a de novo reconsideration proceeding. A local citizens group opposed the Developers' rezoning and development application and sought judicial review. The circuit court found that a former member of the Frederick County Board of Commissioners had violated the ethics statute by engaging in an ex parte communication and remanded the case for reconsideration. The Frederick County Council reconsidered the Developers' application in a de novo proceeding, but the Developers refused to participate. Thereafter, the circuit court vacated the original development approvals and remanded the matter. The Court of Special Appeals affirmed. The Court of Appeals affirmed, holding (1) the County Council had the discretion to determine the scope of the reconsideration proceeding; (2) the doctrine of zoning estoppel does not apply under the facts of this case; and (3) there is no ambiguity in the Ethics Statute.