Each summer, courts throughout the United States at all levels of the judiciary begin their publication of opinions from cases heard over the winter and spring. 1991 is no exception. However, as the five cases discussed below illustrate, 1991 was a good year for municipal power.

Barnes v. Glen Theater, Inc., __ U .S. __, __ S .Ct. __ (U.S. Supreme Court Docket No. 90-26 (June 21, 1991))

An Indiana public indecency statute was used against an adult entertainment establishment and employees of that establishment to prevent nude entertainment. A dancer at an adult entertainment nightclub and an adult bookstore featuring nude dancers brought suits challenging the statute. The federal district court upheld the statute, concluding that nude dancing is not expressive activity protected by the Constitution. The Seventh Circuit reversed, found the statute unconstitutional and held that the nude dancing is expressive conduct protected by the First Amendment.

The United States Supreme Court agreed with the holding of the federal district court and found the statute to be constitutional. The Supreme Court noted that the statute does not ban nude dancing as such, but actually proscribes any public nudity and that the statute has previously been construed by the Indiana Supreme Court as precluding nudity in places of "public accommodation," such as the adult lounge and bookstore. The opinion of the Supreme Court noted that the dancing at issue in the case was "expressive conduct within the outer perimeters of the First Amendment, though we view it as only marginally so." The Court found that the statute was limited to furthering the governmental interest prohibiting nudity in public places among strangers. By merely requiring that dancers wear minimal clothing during performances, the statute did not interfere with whatever erotic message the performance attempts to convey, only its being done in the nude.

This case must be understood before municipalities and states attempt to apply it. It does not permit the regulation or prohibition of nude dancing unless all forms of public nudity are banned. Also, this case will not effect the validity of those ordinances in Illinois communities which prohibit nude or semi-nude dancing in liquor establishments.

Fellhauer v. City of Geneva, __ Ill.2d __, __ N.E2d __, Ill.Dec. __ (111. Supreme Court Docket No. 69559 (February 22, 1991))

The former director of the City Electric Department brought an action against the Mayor, personally, for retaliatory discharge and civil rights violations. In the complaint filed in this action, Fellhauer asserted that certain actions that the Mayor directed him to take would be violative of the official misconduct statute (Ch. 38, par. 33-3, Ill.Rev.Stat, 1989, as amended). As a result of the actions taken by Fellhauer in contravention of the Mayor's direct orders, the Mayor discharged Fellhauer pursuant to procedures set out in par. 3-11-1 of the Illinois Municipal Code (Ch. 24, par. 3-11-1, Ill.Rev.Stat., 1989, as amended). The Mayor's removal of the officer was affirmed by the City Council on a divided vote. Following this removal, Fellhauer filed this action against the City of Geneva and the Mayor, individually, for retaliatory discharge.

The trial court granted the Mayor's motion to dismiss. The Appellate Court reversed, reinstating the

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complaint of Fellhauer and stating that his cause of action was set forth in the complaint. The Illinois Supreme Court affirmed the trial court's dismissal of the complaint, finding that Fellhauer (1) failed to state a cause of action for retaliatory discharge; (2) could not maintain an action against the Mayor for tortious interference with contractual relations; and (3) occupied a "policy-making position," and thus could not maintain a civil rights suit against the Mayor. The Supreme Court's reasoning with respect to the retaliatory discharge is the application of its prior decision in Palmateer v. International Harvester Co., (85111.2d 124). Palmateer requires that an employee must show he was dismissed in retaliation for his activities and that the dismissal was in contravention of a clearly mandated public policy. The Court finds that the mandated public policy component of Fellhauer's complaint is absent. Fellhauer merely cites the official misconduct statute as evidence of the public policy. According to the Illinois Supreme Court, the plaintiff alleging retaliatory discharge must also demonstrate that the public policy mandated by the cited provision was violated by the discharge.

Once again, this case must be clearly understood. The Illinois Supreme Court did not say that an action for retaliatory discharge could never be filed against an individual public employer. The Court does say that such an action can only be maintained if there is a clear statement of the public policy that is allegedly violated and an allegation, that is provable, concerning how that public policy was violated by the discharge.

People v. Fiorini, __ 111.2d __, __ N.E.2d __, __

Ill.Dec. __ (111. Supreme Court Docket Nos. 69756 and 69760, Consolidated (May 30, 1991))

In these cases, which were consolidated with the case of People v. Brockman (111. Supreme Court Docket Nos. 69932 and 69951). the Illinois Supreme Court has defined the conditions under which landowners cited for violation of dumping regulations of the Illinois Environmental Protection Act can bring a third-party action for contribution against the producers of polluting material.

One action (Fiorini) was against the owners of an illegal dump site. The other was against an owner of a legal or permitted landfill for engaging in illegal practices, including the burning of waste and pollution of surface water and ground water. The State sought injunctive relief to stop the offensive practices and money damages for the payment of cleanup expenses. In both actions, the defendants brought actions for contributions against the producers of the dumped waste. The Supreme Court, by its opinion, approved the bringing of such actions against third parties for contribution to the damages imposed.

The Fiorini case is important to municipalities because of the actions it authorizes. After this case, municipalities owning and operating landfills may file suit against persons or firms that dump material which results in pollution.

Wisconsin v. Mortier, __ U.S. __, __ S.Ct. __ (U.S. Supreme Court Docket No. 89-1905 (June 21, 1991))

A Wisconsin community adopted an ordinance which required a permit for certain applications of pesticides to private land. Mortier applied for a permit

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for the aerial spraying of his land which was granted by the community, but only for ground spraying of a certain portion of his land. Mortier brought suit against the denial of his aerial spraying permit, contending that the ordinance was preempted by state and federal law. The Supreme Court of Wisconsin affirmed the trial court's decision that the ordinance was preempted by the Federal Insecticide Fungicide and Rodenticide Act (FIFRA). The United States Supreme Court granted certiorari to resolve conflicts amongst the federal circuits and the state supreme courts on the preemptive nature of FIFRA.

The United States Supreme Court noted that federal law preempts state law if the federal law expressly so states, or if the scheme of federal regulation is "so pervasive" that there is no room for the states to supplement, or if the state and federal law conflicts so that compliance with both is impossible. The Supreme Court reviewed the history of FIFRA and determined that prior to 1972, FIFRA was principally a licensing and labelling law. In 1972, Congress amended FIFRA to make it a comprehensive regulatory scheme for certain chemicals. At that time, the amendments resulted in the Environmental Protection Agency being directed by Congress to cooperate with "any appropriate agency of any state or political subdivision thereof . . . in securing uniformity of regulations." In addition, the 1972 amendments to FIFRA also provided that a state could regulate pesticide use or sale as long as the regulation was not of the usage or sale of a chemical whose use or sale was prohibited by FIFRA. The Court concludes that FIFRA was intended to create a "regulatory partnership" between the states and their subdivisions and the federal government. The ordinance at issue did not permit the use or sale of any chemical prohibited by FIFRA and, therefore, the Court concludes that as a result of the partnership, the regulation imposed by the Town of Casey, Wisconsin, is permissible. State of Arkansas v. State of Oklahoma, (U.S. Supreme Court Docket No. 90-1266)

This action presents two issues of fundamental importance to the allocation of regulatory authority and the implementation of water quality standards under the Clean Water Act. The State of Oklahoma has prevented the issuance of certain permits for waste discharge upstream in the State of Arkansas. The trial

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court upheld the application of the Oklahoma standards and the Tenth Circuit Court of Appeals affirmed the decision of the trial court. Now, The State of Arkansas, supported by numerous municipalities and municipal organizations has sought review by the United States Supreme Court.

The first issue involves the authority of downstream states to compel facilities in upstream states to comply with downstream standards as a condition of obtaining new discharge permits. Under the Tenth Circuit's decision, downstream states have virtually unfettered discretion to set more stringent standards and give them extra-territorial effect, even to the point of blocking the issuance of new permits in upstream states.

The second issue presented involves the impact of pre-existing violations on the ability of EPA and the states to grant new permits under the Clean Water Act. According to the Tenth Circuit, a violation of water quality standards on one segment of a waterway triggers a permit ban for all upstream segments and tributaries, both in the state where the violation occurred and in any upstream state. Each of these issues have extraordinary implications for upstream states, both for the resolution of interstate disputes over water quality, and for the ability to grant new discharge permits throughout much of the nation.

The IML has joined the municipal leagues of several other states in supporting the position of the State of Arkansas urging reversal of the decision of the Tenth Circuit. •

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