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HomeMy WebLinkAboutRes 0598 - Payment for Participation in Litigation Against Federal Unemployment Compensation does resolve as follows: Approved as to Form: WASHINGTON RESOLUTION NO. 598 A RESOLUTION OF THE CITY OF TUKWILA, WASHINGTON, AUTHORIZING PAYMENT FOR PARTICIPATION IN PENDING LITIGATION AGAINST FEDERAL UNEMPLOYMENT COMPENSATION AMENDMENTS OF 1976, PUBLIC LAW NO. 94 -566. ATTEST: Mayor U COUNCIL ACTION MEETING DATE AGFNDA TYPE ITEM WHEREAS, a lawsuit is being prepared to challenge the constitutionality and applicability of new amendments applying the Federal Unemployment Compensation Act to states and local governments, and WHEREAS, the City Council, in the best interest of the employees, wish to participate in this lawsuit; NOW, THEREFORE, the City Council of the City of Tukwila, Washington, The Tukwila City Council authorizes payment of $250.00 to NIMLO Federal Unemployment Compensation Tax Litigation Trust Fund for participation in the lawsuit as a plaintiff in litigation attacking the constitutionality of the Federal Unemployment Compensation Amendments. PASSED BY THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, at a regular meeting thereof, this 15th day of August 1977 F. A. LESOURD WOOLVIN PATTEN DONALD D. FLEMING GEORGE M. HARTUNG, JR. LEON C. MISTEREK DWAYNE E. COPPLE THOMAS O. McLAUGHLIN PETER LESOURD JOHN F. COLGROVE C. DEAN LITTLE LAWRENCE E. HARD RODNEY J. WALDBAUM Hon. Edgar D. Bauch Mayor, City of Tukwila Tukwila City Hall 14475 59th Ave. So. Tukwila, WA 98188 Dear Ed: LEH:rc Enc. LESOURD, PATTEN, FLEMING HARTUNG ATTORNEYS AT LAW 13 00 SEATTLE TO W E R SEATTLE, WASHINGTON 98101 (206) 624 -1040 July 14, 19 RECEIVED CITY OF TUKWILAOF TUKWILA OFFICE OF THE MAYOR JUL 2 0 1877 Are you aware that there is a lawsuit being pre- pared to challenge the constitutionality and applicability of new amendments applying the Federal Unemployment Compensation. Act to states and local governments? If Tukwila is interested in being a party to that lawsuit, it must make a minimum contribution of $250. The various NIMLO flyers which I have received on this subject indicate that Tukwila will not be entitled to enjoy the benefits of the case if you are not a named party. I am enclosing a copy of the flyer so that you can review it. If you wish to participate, it is necessary to contact the NIMLO headquarters in Washington, D. C. Very truly yours, LOOURD, PATTEN, FUMING HARTUNG Lawrenc' I 'Hard COL NC CC R_ D E ACTION AGENDA TYPE THEY q4) 1 /25 I/ ?M �A VI 96 I RM R,R[F /,41,1 e' A 5 D. (ILLI M D. ILLIAM TOON JR. M. QQOLLEEr WEUL- DAryI IEL D. W00 ROT ERT L.IIPALMEF. COUNSEL STEPHEN F. CHADWICK 1894 -1975 NATIONAL INS'ITUTE OF MUNICIPAL LAW OFFICERS PRESIDENT CONARD B. MATTOX, JR. City Attorney Richmond, Virginia 1st VICE PRESIDENT THOMAS EMMET WALSH City Attorney Spartanburg, South Carolina 2nd VICE PRESIDENT SAMUEL GORLICK City A_.. Burbank, California 3rd VICE PRESIDENT AARON A. WILSON City Attorney Kansas City, Missouri TREASURER IENRY W. UNDERHILL, JR. City Attorney Charlotte, North Carolina GENERAL COUNSEL CHARLES S. RHYNE Washington, D.C. TRUSTEES, EUGENE N. COLLINS City Attorney Chattanooga, Tennessee JOHN DEKKER City Attorney Within, Kansas BURT PINES City Attorney Los Angeles, California 'AMES B. BRENNAN City Attorney Nilwaukee, Wisconsin WALDO F. BALES City Attorney Tulsa, Oklahoma BERNARD RICHLAND Corporation Counsel New York, New York WILLIAM R. QUINLAN Corporation Counsel Chicago, Illinois S.G. JOHNDROE, JR. City Attorney Fort Worth, Texas J. LAMAR SHELLEY City Attorney Mesa, Arizona BENJAMIN L. BROWN City Solicitor Baltimore, Maryland JOHN W. WITT City Attorney San Diego, California ROY D. BATES City Attorney Columbia, South Carolina 839 17th STREET, N.W. WASHINGTON, D.C. 20006 [2021 347 -7996 July 1, 1977 Memorandum to All Participants in Litigation: As of this date, the total amount received for the Litigation Trust Fund is $1,418,722.45. As of this date, the total amount received and pledged for the Litigation Trust Fund is $1,644,379.00 As of this date, there are 480 Cities, Counties and States who have agreed to be parties to the litigation. Under the authority conferred by the Trustees at their June 20 42nd ANNUAL CONFERENCE WILLIAMSBURG, VIRGINIA Lc AL REPORT ON STATUS OF AMENDMENTS APPLYING FEDERAL UNEMPLOYMENT COMPENSATION ACT TO STATES, CITIES, COUNTIES AND OTHER POLITICAL SUBDIVISIONS. We thought you would like a report on developments to date in connection with the litigation to attack the constitutionality of the amendments adopted by Congress applying the Federal Unemployment Compensation law to States, Cities and Counties by requiring that States impose the same taxes upon themselves, their Cities, their Counties and their other political subdivisions as they now impose upon private business. The amendments, in effect, preempt the whole field of unemploy- ment compensation thus nullifying all State or local legislation and replacing it with Federal legislation and Federal regulation and Federal taxation. There is an enormous penalty imposed in that all private industry in any State failing to adopt a law approved by the Secretary of Labor will lose the current deductibility on Federal taxes they pay for unemployment compensation. You have received the pamphlet outlining some of the impacts of these amendments to the States and their political subdivisions and our research and study of impact continues. Drafts of briefs on all con- stitutional issues are being prepared and those parts of the complaint that can now be written are being prepared. The Officers and Trustees of NIMLO, who are the Trustees of the Litigation Fund, met in Washington on June 20, 1977 and adopted the enclosed Resolution which is self explanatory. MEMORANDUM July 1, 1977 Page Two meeting, the Operations Committee has authorized the return to Cities under 25,000 in population who have paid more than the $.05 per capita formula a total of $180,000.00 The Firm of Rhyne and Rhyne, which has been employed to plan and carry out the litigation, has a substantial team of lawyers working on the litigation. In addition, that Firm has made recommendations to the Operations Committee for authority to employ various additional experts, the intention being to provide the best possible preparation and presentation of this matter to the Courts. Based upon the handling for local governments by Rhyne and Rhyne of some 20 other cases which could be placed in the massive category because they had a large number of participants, such as National League of Cities v. Usery, natural gas rates, antitrust cases against General Electric ana Westinghouse an d others, it is estimated that the team of lawyers working on this litigation will complete their effort about the latter part of October or the first part of November. The litigation will be filed at the earliest possible time and should the research and drafting be completed earlier, the complaint will be filed earlier. One must stress that this case is one of the most complex and difficult ever to be filed, so the greatest care must be taken to present the strongest attack against the legislation that can be prepared. The Team is experienced in this type of litigation and will do its utmost to present the strongest complaint, motions and briefs that can be developed. Because the litigation is much more complex than the salary issue that was involved in National League of Cities v. Usery, and that case took 6 months to prepare, it is believed. that the time estimate given above is fairly accurate. It is also believed that based upon the foreseeable costs all of the participants will receive a refund upon the expenses which they have advanced. Other than the refunds based on the $.05 per capita, the Trustees do not feel that now is the time to make additional refunds, although they recognize that the Litigation Trust Fund is much larger than was anticipated at the outset. Further, new participants are joining daily as anew deadline for joining of August 1, 1977 has been set. All participants are reminded that this litigation must go before a single district Judge, as the three Judge statute for constitutional challenges has been eliminated, then to the United States Court of Appeals and then on to the Supreme Court of the United States. After that there might possibly be re- argument in the Supreme Court as there was in Baker v. Carr, the "one-man, one vote" case, and in National League of Cities v. Usery. All expenditures for fees and expenses of all rendering services in this litigation must be set forth in detail and approved by the Operations Committee created in the Trustees' Resolution. A11 checks then must be signed by both the President and Treasurer of NIMLO. MEMORANDUM July 1, 1977 Page Three One of the elements of both our collection of the facts of impact, and our presentation of this case to the Courts, is the fact that the re- imbursement option is not a realistic one for States and Cities. Because of the uncertainty on the budget process, the lack of a ceiling on unemploy- ment costs under reimbursement, the threat of intrusive administration by State and Federal governments into record keeping and other local activities, and for other reasons, many Cities report that they will not elect the re- imbursement option, but must pay the tax at the same rate as private employers who can pass this on as a cost of doing business. One of the deterrents to electing reimbursement is the rigidity of the newly imposed Federal. rules. Under Federal law, States and Cities and Counties cannot be treated any differently as employers than private industrial employers. The impact of the minimal eligibility requirements for private industry on public employment (seasonal workers, school employees, for example) will be great. And it will effect greatly even those States and Cities already covered under State unemployment laws not as rigid as this Federal requirement. In this regard, the Federal Unemployment law affects local governments by irrationally preempting State and local law, much as did the wage and hour laws overturned in the Usery case. Many States are passing the required State laws conforming to this unconstitutionally rigid Federal rule with a "self- destruct" repealer to take effect on the issuance of the injunction pendente lite we will request from the Federal Court in which we file this case. Our current plan is to file in the Federal District Court: in Washington, D. C. We will frame our injunction to protect not only these jurisdictions, but also participants in States which will have to repeal or suspend their coerced laws after the injunction. For both groups of participants, we hope further to protect private Federal taxpayers from the unconstitutional penalties attaching to failure of a State's law to conform to the Federal rule. CBM: nun Enclosure Should you have any questions, we would be very glad to answer them. Sincerely, e. Conard B. Mattox, NIMLO President RESOLUTION JUN. 2 0 1977 WHEREAS, the number of participants in the litigation to enjoin and have declared unconstitutional the applicability of the new Amendments applying the Federal Unemployment Compensation Act to States and local governments could not be anticipated; and WHEREAS, the computed billions in cost required under the Federal Act have so shocked States, Cities, Counties and other local governments that the estimated cost of the proposed litigation and the number of participants have both been enormous; WHEREAS, it is apparent to these Trustees, the Board of Trustees that operate NIMLO, and who are Trustees of the NIMLO Litigation Trust Fund, created to pay for the above described litigation, that the number of participants and the amounts they have paid into or committed to said Fund is so great that a refund of a part of said funds is a distinct possibility; WHEREAS, the Trustees, have in mind that the litigation will be complex, difficult and filled with uncertainties, as well as vigorously contested by the United States Government and that said litigation must be most carefully, com- pletely and expertly prepared and presented as it faces consideration by a United States District Court, a United States Circuit Court of Appeals, the Supreme Court of the United States with costs and the nature and extent of proceedings in each Court being uncertain at this time; WHEREAS, the Trustees have created an Operations Committee of the Trustees (consisting of the President, First Vice President and Treasurer of NIMLO, and the County Counsel of Los Angeles, California ex officio) which must approve each dollar expended for services and costs in this -litigation and the Trustees have instructed a most strict accountability; WHEREAS, the NIMLO Litigation Trustees recognize that :hose jurisdictions under 25,000 population which contributed $2,500 under the original contribution formula to insure the viability of the proposed constitutional challenge to the Federal Act should not be treated differently from the later joining jurisdictions under 25,000 population which participate at the rate of $.05 per person of popu- lation; and the Trustees further recognize that any other adjustments to contri- butions received cannot accurately be made at this time when the costs of litigation are not known or predictable; NOW THEREFORE, BE IT RESOLVED that the NIMLO Litigation Trust Fund make an immediate refund to each participating jurisdiction under 25,000 population of all amounts contributed in excess of the larger of $.05 per person of population or $250; and that a general refund pro rata to all participating jurisdictions be deferred for future consideration by the NIMLO Litigation Trustees; and that at all times the Trust Fund shall be maintained in a liquid, interest- bearing medium under the exclusive control of the Operations Committee until disbursement is necessary; BE IT FURTHER RESOLVED that this RESOLUTION be forwarded to each participating City, County and State so that they may be assured that the funds they have con- tributed to the Trust Fund will be expended and accounted for with the utmost of care and responsibility. AND BE IT FURTHER RESOLVED that on behalf of NIMLO these Trustees express their appreciation of the tremendous support they have received in considering and carrying forward this difficult, complex and important litigation. NIMLO PLANS WILLIAMSBURG CONFERENCE Work Session Suggestions Invited NIMLO WILL HOLD ITS 42nd Annual Conference October 30 November 2, 1977, in historic Williamsburg, Virginia. Municipal attorneys from throughout the nation will have the opportunity to meet and discuss important recent legal developments affecting municipalities. Municipal attorneys and others attending NIMLO Confer- ences indicate that one of the most valuable features of the Conference are the Work Sessions, where they have the opportunity to listen to, question and talk with municipal law experts who have faced similar problems. As the persons who have the most immediate contact with practical municipal problems, municipal attorneys are the most qualified experts on the legal issues facing America's municipalities. Following is a partial and tentative list of topics to be covered at the Work Sessions. NIMLO welcomes any comments on this list, as well as any suggestions for speakers to discuss these or other topics. CIVIL RIGHTS ACTIONS: Municipal Immunity from Civil Rights Actions Arising from Zoning Enforcement. Lack of Notice in Negligence Civil Rights Actions. No Direct Cause of Action Against Municipalities under Fourteenth Amendment. ELECTIONS, POLITICAL SIGNS: Invalidity of Political Signs Restrictions. Validity of At -Large Election Systems. ENVIRONMENT, NOISE: The Concorde and JFR. Airport. Water Conservation Ordinances. Enforcement of Pollution Nuisance Ordinances. Noise Controls: Airports, Loudspeakers, Rock Concerts. HEALTH, SAFETY AND MORALS: Regulation of Newsracks. Controlling Vandalism. Regulation of Solicitation in Public Places. Residential Parking Permit Systems. Obscenity Ordinances and the Miller Test: Jury Instructions on Community Standards. -2- HOUSING, URBAN DEVELOPMENT AND ZONING: Validity of Pre -Sale Housing Inspections. Prohibition of Residential 'For Sale' Signs: Linmark Associates v. Township of Willingboro. Downtown Redevelopment Financing. State Convict Rehabilitation Centers in Residential Districts. MUNICIPAL FEDERAL RELATIONS: The Clean Air Act Cases. Unemployment Compensation Legislation and Litigation. Accommodating the Handicapped: Federal Regulations. MUNICIPAL EMPLOYEES: Local "Hatch Acts." Residency Requirements. Refusal to Withhold Union Dues. MUNICIPAL GOVERNMENT, TAXATION AND FINANCE, SERVICES: Sunshine Laws: Extent of Attorney Client Privilege for Municipal Attorneys. ConRail Tax Liability. Due Process Requirements for Utilities Termination. Each year at NIMLO's Conference, resolutions are adopted and presented to the appropriate govern nental, quasi governmental, or private organization con- cerned, especially to the Congress and the Federal Executive Branch. So that NIMLO will present to its members the broadest possible subjects for consideration, we ask you to offer your suggestions to be considered at the Conference. NIMLO also solicits suggestions for its Distinguished Public Service Awards for a Municipal Attorney and an Assistant Municipal Attorney. Plan now to attend this important and informative Conference. A more detailed program, as well as Conference registration materials, are being sent to NIMLO members; for further information, contact NIMLO's Washington office.