Category: Judicial Decisions

Municipal Challenge to Affordable Housing Law Fails

I have posited as a basic economic principle “that as a general rule people will tend to act in what they perceive to be their (economic, political, social) best interest.”

What is true at the individual level remains true in the aggregate; case in point: municipal governments and housing. New Jersey has over 500 municipalities, each largely funded by the local property tax and dedicated to the concept of home rule and the political survival of incumbent office holders. The greatest and most basic gripe of the local voter is that property taxes are too high, and a major component of that tax burden is the school tax which is directly related to the number of children attending the locally supported public schools.

It is not surprising, therefore, that municipalities will encourage development that generates tax revenue without increasing the need to provide local services, especially as represented by school children. This motive is often, but not always, openly acknowledged; sometimes it will be camouflaged by citing planning concepts such as preservation of the environment or the character of the area and the prevention of suburban sprawl, some of which the advocates may actually believe (in addition to the core goal of making sure unwanted development happens elsewhere, that “someone else” will bear the cost).

To limit school children, these municipalities seek to limit the residential development that will generate school children, at least in numbers that will exceed the new housing’s proportionate contribution to the local property tax base. Techniques to do this include limiting housing to single-family homes of a certain minimum size on large lots (ironically causing the very suburban sprawl used to justify the regulation in the first place).

Home builders are in business to make a profit. Faced with these regulations they will build the expensive, luxury housing that the local government will at least tolerate. But if the regulations were otherwise, they might build significantly more homes on the same land that might be within the reach of the less wealthy.

In the 1970s New Jersey’s Supreme Court issued its decision in cases challenging this misuse of the local zoning power. In what has become known as the Mount Laurel Doctrine, the Court held as a matter of state constitutional law that developing municipalities must use their zoning power to provide a realistic opportunity for the construction of their fair share of housing affordable to low and moderate income households. The initial decision generated litigation, not housing, so in 1983 the Court created the “builders remedy,” an incentive for profit-seeking enterprises to propose the construction of housing in significantly greater density than would otherwise be permitted so long as a substantial percentage was “affordable.”

Fast forward 40 years. The Legislature responded by enacting the Fair Housing Act which created the Council on Affordable Housing (COAH) to create specific regulations to determine each town’s obligation and what housing would qualify as a credit against the obligation and grant “substantive certification” to protect compliant towns from the dreaded builder’s remedy. Municipalities that did not participate in the COAH process took the risk that they might be sued. Still, the whole idea that someone else could tell a municipality what to do, especially in a way that was inconsistent with its own parochial interests, continued to rankle. COAH was never able to adopt rules for the third housing round that passed judicial muster and ultimately the Supreme Court removed the requirement that potential Mount Laurel plaintiffs exhaust (plainly unavailable) administrative remedies before initiating exclusionary zoning litigation.

Instead of state-wide standards for determining the municipal obligation and compliance techniques, there was the potential for considerable variation depending upon where the case was tried. Most municipalities sought to settle these claims, but the parties were limited in their ability to justify the numbers offered and demanded. A few towns took the risk of litigation, resulting in trials that were battles of the planning experts and generally were not as advantageous to the municipal positions as they had hoped.

In 2024 the Legislature passed a statute eliminating COAH and providing a substitute administrative process. When the resulting municipal obligations were published, there as widespread complaint that they were too high. A coalition of towns sued to overturn that act and sought preliminary relief pausing not only its process, but the entire Mount Laurel obligation until their suit was resolved.

Last week the trial court judge denied that relief.1 There are lots of issues discussed in the decision (it’s long, but not unnecessarily so, and largely accessible even without a law degree), but many keep coming back to the point that the law which the coalition was challenging is not in reality the source of the grievance. Municipalities that are not willing to accept the numbers determined in accordance with that statue do not have to participate in the process; just as before the statute was passed they may bring their own declaratory judgment actions seeking to establish their preferred numbers or do nothing and take the risk of an exclusionary zoning lawsuit. The statute does not limit these choices.

The coalition’s real beef is with the Mount Laurel Doctrine itself. But people have to live somewhere. At its core the Mount Laurel Doctrine is not about charity housing but that municipalities may not use their governmental power to make themselves enclaves for the wealthy. If certain types of development impose what a town considers to be an unfair burden (relative to its neighbors) to pay for education, I suggest that responsibility for that public service be transferred from the local to the state level.

Jay Bohn

January 6, 2025

Copyright 2025 by Jay Bohn.

  1. Thanks to Redevelop NJ for this link: https://www.redevelopnj.com/wp-content/uploads/sites/561/2025/01/MER-L-1778-24-Order-Denying-Plaintiffs_-Requests-for-Injuctive-Relief.pdf ↩︎

We Need Better Articles (and Headlines) About Court Decisions

I hate click-bait, the headlines for on-line news articles that are designed less to elucidate the content of the article so that readers can make a more informed decision to spend their increasingly limited time (or free articles on a pay-wall site) to read it than to entice a potential reader to click the link and this generate more ad revenue. One recent example was a Newsweek article with the headline “Every Liberal Supreme Court Justice Sits Out Decision in Rare Move.”

It turns out that the particular case had three of the Supreme Court justices (Sotomayor, Kagan, and Jackson) as defendants, so there was no question that they had a conflict of interest. The case itself, Brunson v. Sotomayor, docket number 23-1073, was a frivolous sequel to Brunson v. Adams, docket number 22-380, itself frivolous and about which I have previously written, and the denial of certiorari to review the dismissal below was certainly the correct result. While I cannot say that this article was as misleading on the whole as the one I previously discussed, it does inaccurately state that the recusing justices did not provide a specific reason for doing so when the order specifically referenced “28 U. S. C. §455(b)(5)(i) and Code of Conduct for Justices of the Supreme Court of the United States, Canon 3B(2)(d)(i) (party to the proceeding).”

Jay Bohn

May 30, 2024

Supreme Court Writes Finis to Trump Ballot Challenges

Just when you thought you were free of my Section 3 rantings (my last post was about something else), they’re back. Well, on Monday the Supreme Court issued its decision in Trump v. Anderson, and I have to talk about it.

Newsflash: all nine justices agreed that the State of Colorado does not get to exclude Trump from the ballot because the presidency is a national office and individual states do not get to judge the Section 3 disqualification for it. Four of the justices wrote separate opinions (one by Justice Barrett and another jointly by Justices Sotomayer, Kagan, and Jackson) saying that was enough and the Court should have gone no farther. But the other five justices supported a per curiam opinion which indicates that at least for federal offices, Section 3 may not be enforced at all in the absence of Congressional legislation.

The end result is that the Supreme Court of Colorado was reversed, Trump gets on that ballot, and any challenge in any other State is doomed. While it is not a result with which I disagree as a legal proposition,1 I am most concerned about what it says about the ability of States to exclude otherwise ineligible candidates from their ballots, such as persons who are not citizens or do not meet the constitutional age or residency requirements, seemingly inconsistent with one of Justice Gorsuch’s decisions when he was on the Tenth Circuit Court of Appeals: “[A] state’s legitimate interest in protecting the integrity and practical functioning of the political process permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office.”2

It also leads to a greater possibility of inconsistency as I discussed in Takes on Trump v. Anderson Oral Argument 3: National or State Office Should Not Make a Difference; “if Candidate A is an insurrectionist, Candidate A should not be eligible for any office, from dog catcher to President.”

It may be that the majority wanted to foreclose piece-meal challenges to individual acts during a hypothetical second Trump administration.

I have to read the decision a few more times.

Jay Bohn

March 8, 2024

  1. See my posts from last September, starting here. ↩︎
  2. Hassan v. Colorado, 495 F. App’x 947 (10th Cir. 2012). ↩︎

Takes on Trump v. Anderson Oral Argument 3: National or State Office Should Not Make a Difference

This is another post about a small part of the U.S. Supreme Court oral argument (transcript | audio) in Trump v. Anderson. Both Jonathan Mitchell, President Trump’s attorney, and Jason Murray, the attorney for the voters challenging Trump’s eligibility, were asked about the authority of the states to pass upon the qualification of candidates for federal office. Justice Sotomayor asked Mitchell:

Can states enforce the Insurrection Clause against their own office holders, or can they enforce it against federal officials, or can they enforce it against the president?  Those are all three different questions in my mind.

And Justice Thomas quickly jumped on Murray:

Do you have contemporaneous examples — and by contemporaneous, I mean shortly after the adoption of the Fourteenth Amendment — where the states disqualified national candidates, not its own candidates, but national candidates?

Although it may initially seem absurd to postulate that a State has any role in determining the qualification of a candidate for President or Congress, one must remember that the United States does not have national elections but 50 separate State elections (and one on the District of Columbia) for presidential electors. The States by and large choose how elections are run, what candidates need to do to qualify for the ballot and (to a somewhat limited extent) who is entitled to vote.

Disqualification under Section 3 is a question of federal law. If a State can decide that for a candidate for State or local office, it should be able to decide it at least for the election it is running.

Moreover, the standard for disqualification does not depend upon the office being sought (with the arguable exception of the presidency, see note 1 of this post). So, if Candidate A is an insurrectionist, Candidate A should not be eligible for any office, from dog catcher to President.

Jay Bohn

February 26, 2024

Takes on Trump v. Anderson Oral Argument 2: The Significance of Term Limits

This is another post about a small part of the U.S. Supreme Court oral argument (transcript | audio) in Trump v. Anderson. As part of Trump attorney Jonathan Mitchell’s presentation, he asserted that by banning Trump from the ballot the State of Colorado was effectively adding to the constitutional qualifications for the presidency, which a state cannot do.

In making this argument Mitchell was relying upon U.S. Term Limits, Inc., v. Thornton, 514 U.S. 779, 115 S. Ct. 1842; 131 L. Ed. 2d 881 (1995), which invalidated an Arkansas constitutional provision denying ballot access to three-term representatives and two-term senators.1  Mitchell says that U.S. Term Limits “only prohibits the states from adding additional qualifications or altering the Constitution’s qualifications for federal office. It does not purport to restrain Congress.”2

True, but the Court’s opinion in U.S. Term Limits relied heavily upon Powell v. McCormack, 395 U. S. 486, 89 S. Ct. 1944, 23 L. Ed. 2d 491 (1969), in which the Court decided that “the power granted to each House in Art. I, § 5, cl. 1, to judge the ‘Qualifications of its own Members’ [does not] include[] the power to impose qualifications other than those set forth in the text of the Constitution.” U.S. Term Limits, Inc., 514 U.S. at 788.

My reading of the Constitution’s provisions establishing qualifications for members of Congress and the President is that neither Congress nor the States can add to or subtract from the qualifications.3

If that is correct, then what do we make of 18 U.S. Code § 2383 (mentioned about ten times during the argument), which makes insurrection a federal crime, specifically the end of the penalty provision which directs that an insurrectionist “shall be incapable of holding any office under the United States”?

Jay Bohn

February 22, 2024

  1. U.S. Term Limits was a 5-4 decision. The only current justice who was on the Court at the time was Justice Thomas, who wrote a dissent. ↩︎
  2. Whether Congress has that power or not is irrelevant to Mitchell’s argument. ↩︎
  3. The sole exception to that rule is Congress’ explicit power under Section 3 of the Fourteenth Amendment to remove a disqualification under that section. ↩︎

Year-End Wrap Up of Section 3 News

I’ve recently wondered what I would have written about if it weren’t for all the developments in the attempts to exclude President Trump from the ballot under section 3 of the Fourteenth Amendment. Here’s what happened (so far) since the Colorado Supreme Court affirmed the trial court ruling that Trump had engaged in insurrection but reversed the holding that the President is not an officer of the United States and thus declared Trump ineligible for reelection:

  1. Yesterday, the Michigan Supreme Court denied an application for leave to appeal the Court of Appeals ruling that as a matter of Michigan law the Secretary of State must place Trump on the primary ballot regardless of whether he would be disqualified from holding office.
  2. Also yesterday, the Colorado Republican Party filed a petition for writ of certiorari seeking U.S. Supreme Court review of the Colorado Supreme Court’s decision excluding Trump from the primary election ballot in that state.1

A significant part of the public reaction has been the view that the voters rather than the courts should be the ones to decide if Trump is President again.2 My problem with that is that either you apply the Constitution, or you don’t. You cannot pick and choose which provisions you agree with (like, for the media, freedom of press) and ignore others (the Second Amendment?). I’m not a fan of term limits precisely because they limit the ability of voters to choose their preferred candidates, but that doesn’t mean that I think that the Twenty-second Amendment should be ignored to allow two-term former Presidents Clinton, Bush, or Obama to run again.

Jay Bohn

December 28, 2023

  1. I thank CBSNews.com for the link to the petition. ↩︎
  2. See, for examples, the reaction of the other Republican candidates, as here reported by ABCNews.com and Star-Ledger’s “Friendly Fire” contributors on NJ.com. ↩︎

Colorado Supreme Court’s Anderson v. Griswold Decision Tees Up U.S. Supreme Court Showdown on Whether Section 3 Will Be a Roadblock or Speed Bump in Trump’s March to Renomination

On Tuesday the Colorado Supreme Court issued its much-anticipated decision in Anderson v. Griswold, the case in which a group of Colorado voters is seeking to bar President Trump from appearing on Colorado’s primary ballot based upon the argument that his conduct on January 6, 2021, constituted “engaging” in an “insurrection” rendering him ineligible for the office of President under section 3 of the Fourteenth Amendment. The Colorado Supreme Court affirmed much of the trial court’s decision including several state-law procedural issues and the critical conclusion that the attack on the Capitol was indeed an insurrection and that Trump “engaged” in that insurrection but reversed the legal conclusion that because the President is not an “Officer” of the United States, the disqualification did not apply to him. The upshot is that, barring action by the U.S. Supreme Court, Trump’s name will not appear on Colorado’s Republican primary ballot.1

The Trump campaign has vowed an immediate appeal.2 While there probably is no alternative, there is the risk that doing so could result in an affirmance binding upon all courts in the country as to the federal issues. (At present the ruling is only binding in Colorado state court.) Of course, we really do need a national answer and sooner, rather than later.

So far, I have only had the chance to skim the opinions. (The vote was 4-3, with a majority per curiam decision and three separate dissents.) The Court disagreed with the positions that I have expressed that the President is not an “Officer” of the United States and that the presidential oath is not one to support the Constitution of the United States. My initial impression is that the reasoning on those two points is more pragmatic than legalistic. It reminded me of the Supreme Court’s reasoning in Moore v. Harper, 600 U.S. 1 (2023), in which the Court voted 6-3 to hold that “the Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.”3 Thus, I would not be surprised if the Supreme Court ultimately upholds the Colorado decision along these same lines.

Jay Bohn

December 21, 2023

  1. I have written rather extensively on the case and Section 3. See Trump Disqualification 1: Initial Thoughts on CREW Lawsuit, Trump Disqualification 2: Is the President an “Officer” of the United States?, Trump Disqualification 3: Did Trump Take an Oath to “Support” the Constitution of the United States?, Trump Disqualification 4: Did the Events of January 6, 2021, Amount to an “Insurrection”?, Trump Disqualification 5: Did Donald Trump “Engage” in the Insurrection?, Trump Disqualification 6: What Are Others Saying?, Trump Disqualification 7: Final (For Now) Thoughts, Trump Disqualification 3 Redux: Whether Trump Took an Oath to “Support” the Constitution Getting Some Attention, Courts Must (Ultimately) Decide Trump’s 14th Amendment Eligibility, Trump Wins First Round in Disqualification Fight, It is Dangerous to Rely Upon Media Explanations for Legal Issues, Michigan Follows Minnesota In Rejecting Lawsuit to Keep Trump Off Primary Ballot, and Colorado Court Rules That Trump “Engaged in Insurrection,” But That The President Is Not an “Officer of the United States,” So Trump Not Disqualified. ↩︎
  2. Although theoretically the U.S. Supreme Court could refuse to hear the case, I cannot imagine its refusal to do so. It is a matter of great importance, and I am aware of no other case likely to result in a merits decision any time soon. (All other decisions, such as in Minnesota and Michigan, have been made for procedural reasons.) ↩︎
  3. See my earlier post Furor Over “Independent State Legislature” Ignores Constitutional Text for an explanation of the issue. ↩︎

Lots to Talk About in Supreme Court’s Laufer Non-Decision

Last week the United States Supreme Court issued the first decision in an argued case for the 2023 Term, Acheson Hotels, LLC v. Laufer (docket listing | argument audio | argument transcript | opinions). The substantive merits of the case were never before the Court. The Court agreed to hear the case to decide a preliminary jurisdictional question (standing1), but instead vacated the decision below and ordered the case dismissed on another procedural ground, mootness.

Under regulations implementing the Americans with Disabilities Act of 1990 (ADA), P.L. 101-336, 104 Stat. 327, 42 U. S. C. §12101 et seq., hotels are required to post information on their websites regarding whether accessible accommodations are provided. The regulations have been held to create a private right of action under which a plaintiff can obtain an injunction requiring a hotel to comply with the regulation and obtain an award of attorney fees.

The plaintiff in the case, Deborah Laufer, a self-described “tester,” scours the internet to find noncompliant hotels and then sues them, over 600 to date. Laufer has no intent to stay at any of the hotels; the most charitable view of her activities is that she is a true believer seeking to enforce the mandate of the ADA.2 The defendant in this case did not settle and won at the district court level on the basis that Laufer lacked standing to bring the case as her lack of intention to stay at the hotel regardless of its disability accommodations (or lack thereof) meant that she did not suffer a concrete injury and lacked standing. The court of appeals, however, reversed. The Supreme Court granted certiorari to resolve the split between circuits.3

However, between the grant of certiorari and argument in the case, Laufer dismissed the underlying complaint with prejudice and has stated that she will file no more such cases. Her stated reason for doing so was a disciplinary action taken against an attorney who represented her in some of the cases.4 Her attorney then filed a “suggestion of mootness,” urging the Supreme Court to dismiss the appeal (and incidentally keep the First Circuit’s decision effective as precedent.)

The Supreme Court did not immediately dismiss the appeal but said it would consider the issue at oral argument. Ultimately both standing and mootness implicate whether federal courts have subject matter jurisdiction, and the Court can decide the questions in either order.

Ultimately, seven justices voted to dismiss the appeal on mootness grounds. Justice Barrett’s opinion for the Court indicated that the Court was not convinced that Laufer’s actions were taken to evade Supreme Court review but warned that the Court might exercise its discretion differently in a future case. It was not all tears for the defendant, however. The Court also vacated the judgment of the Court of appeals (called Munsingwear vacatur), removing the binding (in the First Circuit) effect of its decision.

Two of the justices did not join the opinion but concurred in the judgment. Justice Thomas would have decided the standing question first and would have found that Laufer lacked it. Justice Jackson, as she has in prior opinions, questioned the use of Munsingwear vacatur.

The Laufer decision is of course instructive on the relationship between mootness and standing, and Justice Jackson’s discussion of Munsingwear vacatur is thoughtful.

Many commentators heaved a sigh of relief when the Court dodged the standing question and I’m sure that they will tell you that the Department of Justice just does not have the resources its needs to enforce the ADA as it should (or perhaps they will complain that the DOJ is mistakenly applying its resources to other, less important, priorities). But I am concerned about private parties using a regulation to assert a private right of action for the purpose of private enforcement of the law. It is a form of vigilante justice that is particularly problematic where the plaintiff personally suffers no injury. It is just another example of the government imposing on private parties the right or obligation to do its job, just like when business owners are sued because they did not supplement the police to prevent a criminal act or a university is supposed to act like a court to determine if one student sexually harassed or assaulted another.5

The opinions are not all that long and are all well worth reading.

Jay Bohn

December 14, 2023

  1. I discussed the concept of “standing” in a bit of detail here. ↩︎
  2. Another motive could be money. Her attorneys do not give the hotels pre-litigation warning and a chance to come into compliance. The often file the lawsuit and then offer to settle, demanding a $10,000 attorney fee. Some of this money seems to have found its way to Laufer’s family. Slip op. at 2. ↩︎
  3. For the most part federal appeals courts have geographic jurisdiction over decisions made by district courts in their respective circuits. Because the Supreme Court is the only tribunal that can review court of appeals decisions, a disagreement between circuits on a principle of law results in federal law being different in different parts of the country. As the Court’s opinion states: “Laufer has singlehandedly generated a circuit split. The Second, Fifth, and Tenth Circuits have held that she lacks standing; the First, Fourth, and Eleventh Circuits have held that she has it.” ↩︎
  4. It could of course be that she was trying to leave the filed open for other testers to continue to file suits, at least in hospitable circuits. ↩︎
  5. That is a whole other topic, especially when the government mandates that the university not afford the accused party rights to which a criminal or even civil defendant would be entitled. ↩︎

N.J. Appellate Division Addresses Tyler Issues in Published Opinion

Back in the spring I reported on a Supreme Court case, Tyler v. Hennepin County, Minnesota, that has the potential to disrupt substantially the way in which New Jersey’s municipalities enforce the collection of real estate taxes. A delinquent property owner who does not pay outstanding taxes and interest faces the possibility of loss of all equity. The Supreme Court ruled that the loss of the equity in the property over and above the amount actually due was an unconstitutional taking. Weeks later I posted about an unpublished appellate case that suggested that the municipality could be the entity required to compensate the property owner for the taking.

On Monday the Appellate Division issued a published opinion relying in part on Tyler to affirm the trial court’s grant of the property owner’s application for relief from the tax foreclosure judgment and deciding that Tyler had, at least, pipeline retroactivity (it applies to cases pending (“in the pipeline”) when it was decided).

In a footnote the appellate court’s opinion stated that a bill had been introduced to reform New Jersey’s law to comply with Tyler. I presume that it will be among the many bills approved in the lame duck session. I wish that the professional media would provide more coverage of this important issue.

Jay Bohn

December 7, 2023

Colorado Court Rules That Trump “Engaged in Insurrection,” But That The President Is Not an “Officer of the United States,” So Trump Not Disqualified

On Friday Colorado district judge Sarah Wallace issued her decision in the only legal case seeking Trump’s removal from the ballot to come to trial (so far). It was certainly a win for President Trump, in that the court ruled that he is not disqualified, but only because the President is not an “officer” of the United States. Importantly, Judge Wallace found that Trump did “engage” in “insurrection.” It also appears that Judge Wallace agreed with what I have started to think of as my argument that the difference in wording of the presidential oath is significant. (See ¶313 and n. 19 at pp. 100-101.) CNN.com has a good article about the decision here.

While the organization behind the litigation has promised to file an appeal, I don’t see it going anywhere. They may be better taking the significant victory they got, a judicial declaration that the (sadly) likely Republican presidential candidate is an insurrectionist. (While I do not profess to know Colorado appellate procedure, I expect that you cannot appeal from a judgment in your favor, so unless the petitioners file an appeal, Trump may not be able to challenge that finding.)

I do want to comment on Trump’s argument that disqualifying him rather than letting the voters decide is anti-democratic. It certainly is, but no more so than the application of any other qualification for office, like being a natural born citizen at least 35 years of age. And it’s a little bit rich coming from someone who supported the racist-motivated “birther” challenges to the eligibility of Barack Obama.

Jay Bohn

November 20, 2023