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Lisa Soronen State and Local Legal Center [email protected] SLLC Members and Associate Members Members Locals: NACo, ICMA, NLC, and USCM States: NGA, NCSL, CSG Associate members IMLA, GFOA Four briefs were filed in the last term; two briefs have been filed so far in the next term Overview of Presentation Cases decided in the Court’s 2011 term Cases to be decided in the Court’s 2012 term Interesting cases the Court may accept in the near future It would take me an entire day to cover everything—I try to focus on relevant and interesting cases Affordable Care Act Case It takes 5 votes to win an issue; vote counting should be easy right? Don’t tell that to CNN or Fox News Four issues means endless possibilities In the end, only the two issues in bold matter Tax or penalty via the Anti-Injunction Act? Individual mandate constitutional? Act severable? Medicaid coercive? Individual Mandate Five Justices (including, notably, Justice Roberts) concluded the “shared responsibility payment” is constitutional as a “tax” not a “penalty” for constitutional purposes Why? Because it is far less than the cost of insurance, it is assessed not based on the state of mind of the violator, and it is collected by the Internal Revenue Services Here is the Real Coup…. Five Justices (Roberts and the conservatives) concluded that the that the individual mandate isn’t constitutional under the Commerce Clause Why doesn’t this matter? 5 votes upheld the individual mandate as a tax Why does this matter? It is a victory for federalism Why No Commerce Clause, Justice Roberts? “The power to regulate commerce presupposes the existence of commercial activity to be regulated.” (This case is about inactivity) “The phrase ‘active in the market’ cannot obscure the fact that most of those regulated by the individual mandate are not currently engaged in any commercial activity involving health care, and that fact is fatal to the Government’s efforts to ‘regulate the uninsured as a class.’” (It does not matter that they healthy will someday buy insurance, they aren’t buying it now). “[T]he Government’s logic would justify a mandatory purchase to solve almost any problem.” (No limiting principle—if you can force people to buy health insurance you can force them to buy anything--broccoli horrible) Medicaid Here is the bottom line on Medicaid: If states want to participate in the Medicaid expansion they can (but they have to follow the rules) (voluntary carrot okay) If states don’t want to participate in the Medicaid expansion they don’t have to but they can continue to participate in the unexpanded version of Medicaid (mandatory stick not okay) The Votes are In… Seven votes for the Medicaid expansion being unconstitutionally coercive (Roberts, Breyer, Kagan, Scalia, Kennedy, Thomas, and Alito) Five votes for striking down the stick (cut off all funds) but keeping the carrot (participate if you want to) (Roberts, Ginsburg, Breyer, Sotomayor, & Kagan) Why Coercive, Justice Roberts? No legitimate choice here…”it is a gun to the head” This isn’t South Dakota v. Dole (5 percent of highway funds) States stand to lose all Medicaid funding which is 20% of the average state budget The expansion is really a new program And OBTW, “We have no need to fix a line either. It is enough for today that wherever that line may be, this statute is surely beyond it.” A Good Witch or a Bad Witch? Putting how you feel about the Affordable Care Act aside there were many victories for federalism Individual mandate wasn’t upheld on Commerce Clause grounds (no broccoli horrible) For the first time ever the Court finds a federal statute coercive; what other federal laws will be held to be coercive in the future? Choice is good right? Some states want the Medicaid expansion; others don’t Big Question What was Roberts thinking (to vote with the Court’s left)? If the decision would have been 5-4 individual mandate unconstitutional this decision would have been seen as political; the Court as an institution looks better if all Justices don’t vote on political party lines Did Robert’s switch votes well after oral argument and try to bring Kennedy along? In 75 years no President’s signature piece of legislation has been struck down--Roberts’ position is one of judicial restraint (which is a conservative value) It is also possible Roberts simply believes everything he wrote Arizona v. United States As Justice Kennedy points out the federal government has “broad, undoubted” power over immigration provided in the U.S. Constitution and federal law (Immigration and Naturalization Act) But Arizona was tired of the lack of federal enforcement of federal immigration law and passed its own law Federal law may preempt state law when (1) federal law occupies the entire field or (2) state law conflicts with federal law Arizona v. United States Four provisions of Arizona’s immigration law challenged Three were held to be preempted by federal law The most controversial provision (“show me your papers”) wasn’t held to be preempted (or held unconstitutional) YET! Arizona v. United States Court hold 8-0 that Section 2(B) requires that officers who conduct a stop, detention, or arrest must in some circumstances try to verify the person’s immigration status isn’t clearly preempted before the law has gone into effect But the checks are mandatory? “Congress has obligated ICE to respond to any request made by state officials for verification of a person’s citizenship or immigration status.” But prolonged detention is possible? “§2 could be read to avoid these concerns.” Arizona v. United States This challenge was brought before this law has gone into effect Court says it is not yet sure whether state courts will construe this section in a way that violates federal law Preemption and constitutional challenges are possible to the law as interpreted and applied after it goes into effect Arizona v. United States Court held 6-3 that Section 3 (state crime to not carry alien registration document) is preempted Federal law requires aliens to carry proof of registration so Congress has occupied the entire field making even complementary state regulation impermissible Arizona v. United States Court held 5-3 that Section 5 (state crime for unauthorized alien to work) is preempted Congress has regulated the “employment of illegal aliens” “Congress made a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment” Arizona v. United States Court held 5-3 that Section 6 (warrantless arrests for removable offenses) is preempted “Section 6 attempts to provide state officers even greater authority to arrest aliens on the basis of possible removability than Congress has given to trained federal immigration officers.” Arizona v. United States Observations about the decision “Show me your papers” survived but was interpreted narrowly (don’t detain someone just to determine immigration status; don’t detain someone for long) Will “show me your papers” really be able to survive an as applied challenge? Practically speaking, the “show me your papers” requirement annoys local cops—they don’t want to bother with checking immigration status Filarsky v. Delia SLLC filed a brief in this case What is qualified immunity? Legal doctrine that protects government officials from lawsuits when they violate someone’s constitutional or federal statutory rights as long as the person’s rights aren’t “clearly established” Free pass to violate someone’s rights and not get sued as long as the scope of his or her rights isn’t entirely clear A lot of constitutional law isn’t all that clear Before this case we knew qualified immunity applied to full-time government employees Filarsky v. Delia Issue: whether an individual temporarily hired by the government to do its work is eligible for qualified immunity Facts: private attorney Filarsky gave the City legal advice regarding searching an employee the 9th Circuit held violated the 4th Amendment but law wasn’t “clearly established” Holding: contractors are eligible for qualified immunity (unanimous) Filarsky v. Delia Issue: whether an individual temporarily hired by the government to do its work is eligible for qualified immunity Facts: private attorney Filarsky gave the City legal advice regarding searching an employee the 9th Circuit held violated the 4th Amendment but law wasn’t “clearly established” Holding: contractors are eligible for qualified immunity (unanimous) Filarsky v. Delia Court’s reasoning Under common law, part-time public servants were common and they received qualified immunity Court relies heavily on policy Ruling avoids “unwarranted timidity” by those serving the government even in a part-time capacity “Most talented candidates” may decline part-time public assignments if they are ineligible for qualified immunity “Distractions that accompany even routine lawsuits” Difficulty of determining whom is working for the government full-time and permanently Filarsky v. Delia This case is a huge win for counties for many reasons Question the Court accepted was whether outside attorneys doing internal investigations should get qualified immunity But the Court ruled on qualified immunity for individuals temporarily hired by the government to do its work Why the broad ruling? Court was unanimous so the Chief Justice decided to write broadly Reichle v. Howards SLLC filed a brief in this case This was the best case of the term until the Supreme Court ruined it by not deciding the underlying legal issue I only talk about this case because it has such great facts Facts: Secret Service agents admit they arrested Howards for negative comments he made to Dick Cheney in violation of his First Amendment rights but they also had probable cause to arrest him for lying to them about touching Dick Cheney Reichle v. Howards What was clear before this case: Supreme Court had held in 2006 in Hartman v. Moore First Amendment retaliatory prosecution cases could not be brought if probable cause existed What was unclear before this case: whether First Amendment retaliatory arrest claims could be brought if probable cause existed Court ducks this issue and unanimously grants qualified immunity to the officers Reichle v. Howards Court’s reasoning Wasn’t “clearly established” at the time of the arrest that an arrest supported by probable cause could violate the First Amendment The Supreme Court has never recognized a First Amendment right to be free from retaliatory arrests supported by probable cause “A reasonable official could have interpreted Hartman’s rationale to apply to retaliatory arrests.” Reichle v. Howards Why didn’t the Court decide the underlying issue of whether a no-probable-cause rule applies to retaliatory arrests They could get agreement on qualified immunity There was a dispute between the Justices over whether a no-probable-cause rule should apply to just Secret Service agents or all cops Reichle v. Howards Where does this decision leave all of you in the 9th Circuit? The 9th Circuit has “suggested” that Hartman’s no- probable-cause requirement applies to retaliatory arrests—see Beck v. City of Upland, 527 F.3d 853, 863-64 (9th Cir. 2008) So Reichle v. Howards may not matter in your circuit…but “suggesting” and “holding” might not be the same thing… Armour v. Indianapolis SLLC filed a brief in this case The Fourteenth Amendment Equal Protection Clause generally requires the government to treat similarly situated people the same (unless the government has good reason not to) Different levels of scrutiny are applied to different decisions by the government depending on what the decision is and who is affected Rational basis is the lowest level of scrutiny (rational relationship between disparity of treatment and some legitimate governmental purpose) Armour v. Indianapolis Issue: whether it violates equal protection to forgive the debt of sewer upgrade installment payers but not issue a refund to lump sum installment payers Facts: Indianapolis charged $9K for sewer upgrades; people could pay in a lump sum or over 10, 20, or 30 years; the next year Indianapolis changed how it financed sewers and forgave the debt of installment payers but gave no refund to lump sum payers Holding: no equal protection violation (6-3) Armour v. Indianapolis Court’s reasoning This is a tax case; rational basis applies; in tax cases administrative reasons are enough So what exactly were these administrative reasons? Maintaining a system that would collect debt for up to 30 years, for 20-plus construction projects, with monthly payments as low as $25 Adding refunds to forgiveness would only mean further administrative costs—namely processing refunds Armour v. Indianapolis SLLC brief cited by the Court in it’s decision! Insider scoop: what is the story in the unusual line up in this case? The liberals plus Kennedy plus Thomas vote for Indianapolis Paul Clement (who represented Indianapolis) told me repeatedly he would get Thomas…why? Kennedy changed his tune from oral argument United States v. Jones Unreasonable searches and seizures are prohibited by the Fourth Amendment But when does a “search” take place? United States v. Jones Issue: whether attaching a GPS device to a vehicle and then using the device to monitor the vehicle’s movements constitutes a search under the Fourth Amendment Facts: Jones is a suspected drug trafficker; police get a warrant to put GPS on the car he drives but execute it a day late in the wrong state Holding: GPS on a car is a search (unanimous) United States v. Jones Justices line up: Scalia, Roberts, Kennedy, Thomas—this would have been a trespass in the 1700s…so of course it is a search in 2012 Sotomayor—joins Scalia’s opinion but thinks the trespass theory offers “little guidance” where surveillance occurs without a physical intrusion Alito, Ginsburg, Breyer, Kagan—long term GPS monitoring in investigations of most offenses is a search (Sotomayor agrees too) United States v. Jones The outcome of this case could have been better for counties…but isn’t surprising Local police officers want to use GPS to track a variety of suspects because it is cheap, easy to use, and provides a wealth of detailed information about the suspect’s whereabouts If the use of GPS wasn’t a search no warrant, probable cause, or reasonable suspicion would be required, which would make it easy for police to use GPS United States v. Jones Million dollar question unanswered by Jones? Is a warrant required to install GPS and track movement? The Supreme Court doesn’t say Not all searches require a warrant or probable cause Until that question is answered by the Supreme Court the conservative approach will be to obtain one Florence v. Board of Chosen Freeholders Issue: whether jail detainees admitted to the general population may be strip searched Facts: Florence, who was jailed because of an erroneous warrant, was strip searched at two county jails before being admitted to the general jail population Holding: strip searching detainees before they enter the general jail population does not violate the Fourth and Fourteenth Amendments (5-4) Florence v. Board of Chosen Freeholders Court rejects Florence’s argument that because his offense was minor he should not have been strip searched People detained for minor offenses may be the most “devious and dangerous criminals” It is difficult before the intake search to classify inmates because of incomplete or inaccurate records Even if records are complete, officers would have difficulty quickly determining whether any underlying offenses were serious enough to authorize a strip search Florence v. Board of Chosen Freeholders A victory…but be careful Concurring Justices Roberts and Alito suggest routinely admitting minor offenders to the general jail population to be strip searched could violate the constitution Justice Alito suggests that segregating temporary detainees who have committed minor offenses from the general jail population is a good idea Environmental Cases are HOT in 2012 The Court has accepted three so far Two involve the Clean Water Act; both of them involve stormwater runoff If you were the Supreme Court and you wanted to lie low after an exhausting and controversial term might stormwater runoff be a good topic to take up? Regardless of the lack of interest in these cases by your average American they are a big deal to counties Arkansas Fish & Game Commission v. U.S. The U.S. Constitution allows the government to “take” private property for public use if just compensation is provided But when does a “taking” occur? Arkansas Fish & Game Commission v. U.S. Issue: whether government flooding must be permanent for a “taking” to occur Facts: for seven years the Army Corp of Engineers temporarily deviated from a water control plan and released dammed water more slowly for seven years; then it stopped releasing the water more slowly The plot thickens: numerous trees were damages as a result—1/2 would die shortly the other ½ lost ½ of their value Arkansas Fish & Game Commission v. U.S. What is at stake in this case Other than 23,000 acres of trees near the Black River in northeast Arkansas… Legal controversy is between whether the flooding must be permanent or just the injury To the extent counties may want to do some flooding itself, the United State’s position in this case may be more attractive (which is why the SLLC didn’t file a brief...) NACo signed onto an IMLA brief supporting the United State’s position of no taking in this case LA County and Decker Unless you are an expert in the Clean Water Act (CWA) it is hard to see the forest from the sewer, I mean the trees, in these cases But really they are simple… The question in both cases is who controls the quality of stormwater runoff…the federal or state and local governments? Clean Water Act Primer for Decker & Georgia-Pacific v. NEDC Helpful background information The CWA requires National Pollutant Discharge Elimination System (NPDES) permits for the “discharge of any pollutant” from a “point source,” which includes ditches and channels, into “navigable waters of the United States” Since 1973, one year after the CWA was passed, the EPA has issued regulations exempting silvicultural (logging) activity from NPDES permitting requirements Decker & Georgia-Pacific v. NEDC Issue: whether the lower court should have deferred to the EPA’s longstanding position that channeled stormwater runoff from logging roads doesn’t require an NPDES permit Holding: it’s the Ninth Circuit so perhaps you can guess that it did not! Decker & Georgia-Pacific v. NEDC Ninth Circuit’s rationale is simple Point sources requiring NPDES permits include ditches, channels, conduits, etc. Logging roads have all of these things “Congress did not provide the EPA Administrator with discretion to define statutory terms [point sources].” If Congress wanted to exempt silvicultural runoff it could have many times But it never has Decker & Georgia-Pacific v. NEDC But, but, but Over and over again EPA has issued regulations indicating silvicultural activity isn’t a point source Could EPA have been wrong for longer than I have been alive? Are NPDES permits necessary? States and local goverments regulate stormwater runoff from logging roads General permits will be expensive, individual permits will be exorbitant Clean Water Act Primer for LACFCD v. NRDC Helpful background information Municipal separate storm sewer systems (MS4s) are a system of sewers that collect stormwater The CWA requires MS4s that add pollutant to navigable waters to obtain a NPDES permit In 2004 in South Florida Water Management District v. Miccosukee Tribe the Supreme Court held if pollutants are being transferred in one distinct body of water there is no “addition” The MS4s in this case were located in rivers LACFCD v. NRDC Facts: LACFCD was held responsible for waterquality standards being exceeded in two rivers where testing was done in an MS4..and remembers the MS4 was located in the river Issue: Whether the transfer of water within a single water body through an MS4 constitutes a “discharge” under the Clean Water Act? Ninth Circuit: Didn’t answer this question at all; non-technical summary of the Ninth Circuit’s holding: the pollution is in your MS4 so it’s your problem! LACFCD v. NRDC What’s really going on here? It sure looks like the Ninth Circuit just ignored Miccosukee Tribe The SLLC argues that the segments of the rivers above and below the MS4s in this case aren’t “meaningfully distinct,” so no addition of a pollutant has occurred by pollutants flowing through an MS4 This seems like a foregone conclusion; the MS4s are parts of both rivers LACFCD v. NRDC There are other problems with the Ninth Circuit’s decision (IMHO) (other than totally ignoring Supreme Court precedent) MS4s are treated differently from other dischargers under the CWA—MS4s aren’t prohibited from discharging a certain amount of pollutant, instead they must use best management practices to “reduce” the discharge of pollutants “to the maximum extent practicable” Why? MS4s have no control over the pollutants they collect contained in stormwater runoff Again, state and local governments regulate stormwater runoff in MS4s Search Cases are Hot in 2012 Three cases in total Two involve dogs (and both of these are appeals from the Florida Supreme Court) One involves an issue of extending Supreme Court precedent from 1981 United States v. Bailey Issue: whether the Fourth Amendment allows police to detain an occupant who leaves the premises during or immediately before the execution of a search warrant Facts: suspects drive away from the house police have a warrant to search; police pull them over after they have driven a mile The plot thickens: Michigan v. Summers allows detention at the premises during the execution of a search warrant United States v. Bailey The Second Circuit extends Michigan v. Summers where the person is seen leaving the premises and is detained as soon as reasonably practicable Reasoning: detaining someone leaving the scene immediately risks the officers safety and may allow the destruction of evidence and just letting them leave the scene risks the inability to detain the person if incriminating evidence is found Florida v. Jardines Issue: is a dog sniff outside a person’s house a “search” under the Fourth Amendment? Florida Supreme Court: YES, the dog sniff in this case “is a substantial government intrusion into the sanctity of the home” The plot thickens: the Supreme Court has held dog sniffs in three other cases were not searches (luggage, drug interdiction checkpoint, vehicle exterior during a traffic stop) Florida v. Jardines No search would be nice, no? County police officers routinely use drug dogs (this case involved Miami-Dade County police officers) A lot of drug activity involves private homes Being able to use drug dogs to sniff outside private residences—without probable cause—is advantageous to law enforcement Florida v. Harris Issue: whether an alert by a well-trained narcotics detection dog certified to detect illegal contraband is insufficient to establish probable cause for a vehicle search Florida Supreme Court: YES, the state must explain the dog’s training and certification, present records of the dog’s successes and failures in the field, explain the significance of any unverified alerts and the dog’s ability to detect or distinguish residual odors, and present evidence of the experience and training of the officer handling the dog Florida v. Harris The plot thickens: Aldo alerted (twice) to the driver’s side door handle of Harris’s car presumably to residual odor of meth; meth wasn’t found in the car but Harris admitted to being a meth addict The problem with this case for county police is that the Florida Supreme Court is asking for a lot from them (keep perfect field records, be able to understand and explain technical concepts like residual odor) All of which give defendants a reason to challenge dog searches FTC v. Phoebe Putney Health Systems A little primer on the state-action doctrine State-action doctrine protects states from liability under federal anti-trust laws State legislatures may pass along state-action immunity to municipalities or political subdivisions if the state authorizes the challenged action and “has clearly articulated a policy authorizing anti-competitive conduct” Private actors (as opposed to municipalities or political subdivisions) must be actively supervised FTC v. Phoebe Putney Health Systems Facts The Georgia legislature created hospital authorities where cities and counties could own and operate non-profit hospitals By statute, hospital authorities also could acquire and lease other hospitals In 1990 a hospital authority leased the Phoebe Putney Memorial Hospital to a nonprofit corporation Phoebe Putney Health Systems (PPHS) In 2011 the Authority, through PPHS, acquired Palmyra Park Hospital (the only other hospital in the area), and leased it to PPHS FTC v. Phoebe Putney Health Systems Real question in this case is how clearly did the Georgia legislature have to be about being okay with anti-competition in the hospital market? Eleventh Circuit basically says by allowing hospital authorities to acquire and lease other hospitals it was reasonably foreseeable that some of them would acquire and lease all of the hospitals in the area! Other circuit court precedent seems to disagree with the Eleventh Circuit but PPHS pretty convincingly points out that the state legislatures in the other cases clearly said they were pro-competition FTC v. Phoebe Putney Health Systems If this really was a purchase by a private actor it is hard for me to tell from the facts how strong PPHS’s active supervision argument would be The lease of Palmyra is the same as the lease to PPHS which makes it seem the Authority is calling the shots But the money came from PPHS The argument this was action by the Authority (a public entity) seems reasonable The Authority does the owning and the leasing Fisher v. University of Texas This case cannot be ignored even though it has nothing to do with counties: it is the most prominent, controversial case of the term (accepted so far!) Why? Because it involves affirmative action, which is a hot button issue Key background information In 2004 in Grutter the Supreme Court held that under the 14th Amendment the use of race in college admissions can be permissible (diversity is a compelling state interest; the use of race must be narrowly tailored) Fisher v. University of Texas Timeline of crucial events 1996: the Fifth Circuit held UT couldn’t use race as a factor in law school admissions; minority enrollment dropped immediately 1997: the Texas legislature adopts the Top Ten Percent law 2002: UT study looking at classes with 10-24 students (where discussion would be likely) finds 89% had 0-1 black students, 41% has 0-1 Asian students, and 37% had 0-1 Hispanic students 2004: minority enrollment was 21.4% (without the use of race); UT begins using race as a factor in admissions And the Fifth Circuit Holds… This affirmative action plan is constitutional Courts should defer to the university’s educational judgments No racial balancing, no quota here, okay to look at Texas’s racial make-up, critical mass was the goal Critical mass isn’t a fixed number But, but, but! The Top Ten Percent law puts UT’s policy in jeopardy. BUT UT’s policy compliments its failings (“Perversely, this system negatively impacts minority students (who nationally have lower standardized test scores) in the second decile of their classes at competitive high schools). Fisher v. University of Texas Everyone agrees race is used in the “right” way “By the book” individualized consideration of race (“holistic file readers” review an applicant’s essay in light of race—88% of the time these trained professionals give scores within one point of each other) But race isn’t much of a factor… In only 12% of seats available to residents (1,216) could race be considered as a factor A Dissenting Judge Makes Some Good Points… Is over 20% of minority students (produced by the Top Ten Percent law) a critical mass? Is achieving diversity at the classroom level realistic/a good idea? “Will the University accept this ‘goal’ as carte blanche to add minorities until a ‘critical mass’ chooses nuclear physics as a major? Will classroom diversity ‘suffer’ in areas like applied math, kinesiology, chemistry, Farsi of hundreds of other subjects if, by chance, few or no students of a certain race are enrolled?” Use of race has very little impact in this case (maybe a couple hundred students would be affected) Fisher Wants More, More, More Overrule Grutter please! Might the Court be receptive? At least 5 Justices aren’t big fans of affirmative action: Roberts, Alito, Scalia, Kennedy, and Thomas But PICS v. Seattle School District already provided the Court an opportunity to overrule Grutter I think this case will come down to the Court’s view of critical mass (and maybe the minor use of race which the Fifth Circuit points out presents a Catch-22) Possible Grants of Interest Maryland v. King Whether states can collect DNA when someone is arrested (and not yet convicted) Maryland Court of Appeals said this violates the Fourth Amendments; other courts have disagreed Chief Justice, acting on his own, has issued a stay of this the Maryland Court of Appeals decision Possible Grants of Interest Nix v. Holder & Shelby County v. Holder Is Section 5 of the Voting Rights Act unconstitutional? (“covered” jurisdictions have to have changes to election procedures pre-cleared by a three-judge panel or DOJ) D.C. Circuit Court has upheld the law but the Supreme Court has recently expressed some doubts about it Not that many jurisdictions are covered but still this case is huge Possible Grants of Interest Gay marriage…the Justices can run but they cannot hide! Last I checked…seven case and two issues are before the court Defense of Marriage Act (DOMA) allows only same sex couple to receive federal benefits like FMLA and Social Security CA’s Prop 8 bans gay marriage Cases don’t necessarily raise the issue of a right to gay marriage No circuit split Vacancies The two oldest Justices on the left and right are as follows: Ginsburg (left); Scalia (right) Things will get really interesting if Romney is elected and gets to replace Ginsburg (or another liberal) or Obama is re-elected gets to replace Scalia (or another conservative) Either potential president would relish the opportunity to replace Kennedy (who is the “swing” Justice who leans slightly right) What to Learn More? Supreme Court Preview Webinar October 17, 2012 1PM Eastern time Sign up at the SLLC’s website: http://www.statelocallc.org/ FREE, geared towards B7 members