Within the Scope

Blogging on Administrative Law and the Public Sector

Monday, December 19, 2011

Zivotofsky v. Clinton: The Little Case that Raises Big Constitutional Questions

Early in November, Solicitor General Donald B. Verrilli, Jr., the Justice Department’s top lawyer, made a very consequential speech about foreign policy and the separation of powers.  It also is a speech that nearly no one has ever heard.

Verrilli made his remarks during an argument before the U.S. Supreme Court. He told the Justices that the Obama Administration “has determined that the passports it issues should not identify Israel as the place of birth for persons born in Jerusalem.” “The Constitution,” continued Verrilli, “commits that power exclusively to the Executive and neither a court nor the Congress can override that judgment.”

When one slices through his legalese, it is clear that General Verrilli makes an important claim about American foreign policy. He outlines very broad foreign policy powers that American presidents claim for themselves; powers they say are unchecked by Congress or the courts.

This very big claim arises in what many believed to be a small case. Menachem Binyamin Zivotofsky, an American citizen, was born in Jerusalem in 2002. Menachem's mother filed a consular report noting that the boy’s birth occurred abroad and requested a U.S. passport for him that listed his birthplace as "Jerusalem, Israel."

Congress allows such applications. In the Foreign Relations Authorization Act, it provided that for “a passport of a United States citizen born in the City of Jerusalem, the secretary (of state) shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.” This law notwithstanding, both the Bush Administration and the Obama Administration refused the Zivotofskys’ request. They insisted that describing Jerusalem as part of Israel “would critically compromise” the United States’ ability to advance the Middle East peace process.

Even if it were agreed that the words on a passport are a trifle, no one believes that Middle East peace is a small matter. And so scratching the surface of the Zivotofsky’s dispute uncovers an important disagreement: Is the President the only one who has a say as to U.S. foreign policy on Jerusalem?

The Administration’s claim of exclusive authority in this area is grounded in Article II, section 3 of the U.S. Constitution. This provision permits the President to “receive ambassadors and other public ministers.”

Because Congress is a multi-member body, and frequently recesses from its business at the Capitol, it made sense for the Founders to direct any newly-arriving Ambassador to a single person; namely, the President. Yet, modern Administrations have also asserted that the authority to receive Ambassadors includes the power to determine the boundaries of the countries from which those dignitaries arrive. Thus, the authority to receive Israeli Ambassador Michael Oren at the White House implies the power for the President to say, without consultation with Congress or anyone else, where Israel begins and ends.

Those who care about checks and balances in government should think about this further claim very carefully.

It had me thinking about Chaim Weizmann, the first President of Israel. Weizmann famously quipped that “[w]e will take a state even if the Jewish homeland is the size of a tablecloth.” The Zivotofsky case invites us to think about that very possibility – or at least a Presidential declaration that, as far as the United States is concerned, Israel’s borders are only wide enough for a dinner table. If a U.S. President made such a declaration, does our Constitution really require Israel’s supporters in the Congress to sit mute, with their hands folded? That seems to be a step too far.

The claim that the President is the sole author of American foreign policy is jarring because it grabs so much and so greedily. It claims far more power than is needed to “receive ambassadors and other public ministers.” Indeed, it is so over-large that it even intrudes upon the very next words of the Constitution. Immediately after authorizing the President to receive Ambassadors, Article II directs the President to “take Care that the Laws be faithfully executed.” Plainly, neither President Bush nor President Obama considered themselves bound to carry out all of the provisions of the Foreign Relations Authorization Act. Both men ignored a Congressional judgment as to where Jerusalem was; believing that such a determination was theirs alone to make.

Likewise important, even if President Bush regarded the Foreign Relations Authorization Act as dangerous meddling by Congress, he wasn't powerless.  He could have vetoed the Act; exercising a power that no one doubts is committed to the President alone.

For these reasons, it is more than a lawyer’s braggadocio for the Solicitor General to announce that President Obama has made his judgment about Jerusalem, and that “neither a court nor the Congress can override that judgment.” It raises important questions about representative government. It also begs us to ask whether, as to our relationships with other nations, the President’s voice is the only one that matters.

Friday, February 26, 2010

A Few Moments With Harvey Mackay, The Indispensable Man

Yesterday, I took a few moments out of a busy day to attend a book-signing. The event centered on the release of Harvey Mackay’s latest title, Use Your Head to Get Your Foot in the Door

As many people who know me well – and frankly, even many of those who don’t know me particularly well – could tell you, I am a huge Harvey Mackay fan.

I have read all of the items in the Mackay oeuvre – which is considerable – and have been known to press the bounds of polite conversation in urging others to read one or another of Harvey’s titles.

For someone who wasn’t lucky enough to be born here on the prairie, looking back, it is clear to me that some of the more remarkable and wonderful things that have happened for me here had their roots in that catalogue.

The books and cassettes are transformational.

A short forty word summary of Harvey Mackay’s books, articles, tapes, videos and “tweets” can be found in the epilogue of his latest book. In classic Mackay style, refurbishing a famous quote from Andrew Carnegie, Harvey declares: “You could take my money from me, my home from me, my factories … whatever … but leave my good name, my reputation, and my network…. And I will be back where I was in two years.”

The Mackay genre is a set of road maps for building one’s good name, reputation and professional network. It is jammed with strategies, every day tactics and healthy food for thought – all delivered in a home-spun style that is accessible to just about every reader. These road maps will lead you to unimagined heights in good times and help you to chart a swift return when – as happens to every one of us, sooner or later – disaster strikes. 

And, along the way, I think that they also help to make the world a better place than the way that Harvey found it.  In my book, that is the highest praise that one can render.

Ever au courant, Mackay’s newest title is a field manual for Americans who are suffering in this era of economic calamity and collapse. As Mackay explains in the opening pages of what turns out to be an unbelievably useful volume, this is the book that his wife of nearly fifty years, Carol Ann, urged him to write.  No doubt a lot of lives will be changed for the better because of that prompting.

More remarkable still, notwithstanding the fact that Mackay is approaching 80, this week also marks the debut of his own internet browser tool. The software provides handy, drop-down menus to Harvey's on-line content and the very best of the internet’s networking and professional research engines. The add-on is very cool and is accessible here.

So, thanks Harvey. Yesterday was good day. And for me, so is most every other one because of what you have written, said and done.

Sunday, February 21, 2010

Moving Toward the Right Procurement Agenda – For Congress and For Us

Steven L. Schooner, Associate Professor of Law and Co-Director of the Government Procurement Law Program at George Washington University, recently posted to the Social Science Research Network a chapter from a forthcoming book: “Framing a Public Management Research Agenda.”

For those who are interested in government acquisition issues, this is a really interesting and worthwhile read. And, folks like me, who are alumni of the program, can take genuine pride in the fact that such clear and incisive analysis continues to spring from Foggy Bottom.

Consider this provocative shot across the federal regulatory bow:
While a successful procurement regime depends upon high standards of integrity and compliance, a pervasive ‘corruption control’ focus not only stifles creativity and encourages mechanical rule adherence, but encourages timidity and risk-averse behavior. Kelman hits close to the mark in his prediction that public managers (or procurement professionals) over the next decade: “rather than transforming, learning, and challenging themselves … could be preoccupied with 'ferreting' out waste, fraud and abuse, … 'exposing mismanagement,' … 'complying with rules and procedures' … in a mode of 'hunkering down' and 'keeping out of trouble[.]”
The imperative to address this public management challenge thoughtfully and well is great. The federal government now undertakes nearly $500 billion in contracting with private firms each year – with a spending trend line that is on the rise. In such an environment, centering on ‘keeping out of trouble’ is not where I would have procurement professionals aim.

This past November, Schooner and others gathered for a conference in Washington to wrangle over this question, and others – a matter that is all to the good. For me, however, the far more difficult challenge is how we could prompt Congressional committees to take the time out for work on these complicated riddles. I wondered what it would take to get Capitol Hill to focus on some of the questions that were debated at the conference; such as:

• How can the government systematically evaluate its acquisition workforce needs and capabilities?

• How does government assess the impact of an acquisition workforce development program on acquisition outcomes? How will government know if it is successful?

• How significant are the transaction costs resulting from the administration’s commitment to transparency (generally, and specifically in the context of stimulus or recovery spending), and who will bear those costs?

• How can government develop and define better metrics on acquisition outcomes?

To me, the idea that Congressional committees would venture into these thickets – even as weighty as these questions are – seemed other worldly. Still, we can dream; and cajole; and thank Professor Schooner for such a worthwhile start – which is accessible here.

Saturday, February 13, 2010

The Land Use Case that Every Minnesota Rule Writer Should Read

On Thursday, the Minnesota Supreme Court issued an interesting and important opinion that the rulemaking community is certain to be thinking about, reading and discussing for weeks to come.

The opinion arises out of a challenge to the Department of Natual Resources' refusal to certify a local variance in favor of a landowner who wished to build a home along the Saint Croix River. The City of Lakeland granted the variance, but the DNR refused to certify this action -- a matter that under the state's scenic river rules purportedly deprived the variance of its legal effect.

An evidentiary hearing before an Administrative Law Judge followed. The Commissioner of Natural Resources affirmed the denial of the certification, issuing his decision within 90 days of the Administrative Law Judge's recommended decision.

In a challenge to that denial, the Minnesota Court of Appeals reversed the agency's determination. The appellate court reasoned that because the denial of the certification was not rendered within 60 days of the ALJ's decision, it was untimely and ineffective. The appellate court concluded that, under the requirements of Minnesota Statutes, section 15.99, such a decision was due within 60 rather than 90 days.

Disagreeing, the agency sought further review with the Minnesota Supreme Court.

A unanimous Supreme Court affirmed the lower court decision; albeit on very different grounds. The Supreme Court reasoned that the Legislature's delegation to the DNR to "manage and administer" the scenic river system was not broad enough to authorize the state rules which required the DNR's approval of locally-granted variances. In the view of the Court, if such a review power was intended, the grant of authority to the DNR would be both differently-worded and more explicit. Without the lawful authority to set-aside locally-granted variances, the lack of an approval from the DNR did not imperil the landowner's variance.

A question that was not reached by the high court, and thus remains unclear, is how vibrant is the Court of Appeals' analysis as to the due date for agency decisions in matters that touch upon zoning and land use? Are these decisions due in 60 days?

And while that would be helpful to know, interestingly, the longer-term impact of this decision will probably not be felt in land use cases; but rather in state rulemaking proceedings. The decision will likely sharpen an already rigorous and detailed focus on the phrasing of delegations of rulemaking authority in favor of state agencies.

For a more detailed study of the two appellate court decisions -- which each administrative lawyer should be doing these days -- the Court of Appeals' unpublished decision is accessible here; and the Supreme Court's affirmance is accessible here.

Friday, January 22, 2010

Not Just Narrowly Tailored, But Gently Tailored As Well

While one could no doubt run an entire constitutional law seminar on the features that are found in yesterday’s 183-page opinion, Citizens United v. Federal Elections Commission, I was drawn to one part in particular – the majority’s contention that bureaucratic red tape can stifle political speech just as much as the censor’s blue pencil.

So, while most commentators were expressing concern over the rivers of corporate money that may cascade around political campaigns in the years ahead, I was thinking about how the decision could impact the remainder of the regulatory landscape. It seemed to me that provisions of the Bi-Partisan Campaign Reform Act may not be the only regulations that fall under the standards announced yesterday.

Try this thought experiment: Take your favorite campaign finance requirement and consider the remarks of Associate Justice Anthony Kennedy:

The First Amendment does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing research, or seek declaratory rulings before discussing the most salient political issues of our day. Prolix laws chill speech for the same reason that vague laws chill speech: People “of common intelligence must necessarily guess at [the law’s] meaning and differ as to its application.” The Government may not render a ban on political speech constitutional by carving out a limited exemption through an amorphous regulatory interpretation....


As additional rules are created for regulating political speech, any speech arguably within their reach is chilled. Campaign finance regulations now impose “unique and complex rules” on “71 distinct entities.” These entities are subject to separate rules for 33 different types of political speech. The FEC has adopted 568 pages of regulations, 1,278 pages of explanations and justifications for those regulations, and 1,771 advisory opinions since 1975. In fact, after this Court in [Wisconsin Right to Life v. FEC] adopted an objective “appeal to vote” test for determining whether a communication was the functional equivalent of express advocacy, the FEC adopted a two-part, 11-factor balancing test to implement WRTL’s ruling.

This regulatory scheme may not be a prior restraint on speech in the strict sense of that term, for prospective speakers are not compelled by law to seek an advisory opinion from the FEC before the speech takes place. As a practical matter, however, given the complexity of the regulations and the deference courts show to administrative determinations, a speaker who wants to avoid threats of criminal liability and the heavy costs of defending against FEC enforcement must ask a governmental agency for prior permission to speak. These onerous restrictions thus function as the equivalent of prior restraint by giving the FEC power analogous to licensing laws implemented in 16th- and 17th-century England, laws and governmental practices of the sort that the First Amendment was drawn to prohibit.

Now, not only will government regulations of political activity need to be narrowly tailored and further a compelling state interest, it appears that they will also need to be gently tailored for a comfortable fit.

Wednesday, January 20, 2010

OAH Releases its "Video Guide to Hearings" to Aid Unrepresented Parties

The Minnesota Office of Administrative Hearings, in partnership with Senate Media Services, developed this 8-minute video as an aid to persons with contested cases who appear on their own behalf, without an attorney.

The video guide is meant as a supplement to OAH's Contested Case Hearing Guide; delivering some of that content in a format that is both more accessible and user friendly.

Monday, January 18, 2010

Oral Argument in U.S. v. Comstock Has Echos of M'Culloch v. Maryland

Last Tuesday, the Supreme Court of the United States heard oral argument in the case of U.S. v. Graydon Earl Comstock, Jr. In Comstock, the court considers whether Congress has the authority to enact a statute providing for the indefinite civil commitment of "sexually dangerous persons” who are in the custody of the Bureau of Prisons, but whose federal prison sentence is at an end. Is civil commitment of dangerous persons an enumerated power of Congress – and if so, which power?

This kind of dispute is as old as our federal system. In 1816, resolving the challenge to Congress’ power to charter a Bank of the United States, Chief Justice John Marshall announced the legal standard and defined the field of combat for so many future struggles; including this one. As Marshall famously wrote in M'Culloch v. Maryland:
[S]hould congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the government; it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say, that such an act was not the law of the land. But where the law is not prohibited, and is really calculated to effect any of the objects intrusted to the government, to undertake here to inquire into the decree of its necessity, would be to pass the line which circumscribes the judicial department, and to tread on legislative ground. This court disclaims all pretensions to such a power.
Thus, whether it was a federally-chartered Bank in 1816, or a treatment facility for dangerous persons today, the central question is the connection between an enumerated federal power and the means that Congress has chosen to exercise that power.

As Tuesday’s oral argument revealed, indefinite treatment of dangerous persons without regard to an underlying prison sentence, is, at best, at the outer periphery of Congress’ Article I powers. Indeed, Solicitor General Elena Kagan had great difficulty in identifying which enumerated power Congress was exercising when enacting the commitment statute. Consider these exchanges with a skeptical Justice Antonin Scalia:
JUSTICE SCALIA: What -- what -- what power conferred upon the Federal Government by the Constitution permits the Federal Government to assure that sexual predators are not at large?

GENERAL KAGAN: I think the power, Justice Scalia, is the power to run a responsible criminal justice system, to run a criminal justice system that does not itself endanger the public.


JUSTICE SCALIA: .... I mean, there is no constitutional power on the part of the Federal Government to protect society from sexual predators. And, you know, once the Federal custody is at an end, it seems to me that's the only power you could be relying upon.

GENERAL KAGAN: I think that the power to run a responsible criminal justice system extends to the way in which the Federal Government releases these prisoners.
The other important echo from 1816 was Justice Stevens’ frequent reminder that it was not the province of the Supreme Court to inquire into the utility of the underlying statute – this, he asserted, the Court was obliged to assume – only the authority for the treatment program. The reminders sought to refocus his colleagues from a discussion of federal policy to one of federal power.

And as much as the United States’ position seemed to be taking on water during Tuesday’s argument, the patient-detainees also had their challenges. Assistant Federal Public Defender G. Alan DuBois had considerable difficulty in addressing whether Congress had the power to detain (and quarantine) prisoners with infectious diseases at the end of their prison sentences. Was not, Justices Breyer and Stevens wondered aloud, detaining a sexually dangerous person in federal custody analogous to quarantining a federal prisoner with drug-resistant and highly-contagious tuberculosis? Was the federal sovereign incapable of meeting such a threat?

The entire transcript from last Tuesday’s argument, which really is worth reading and thinking about, is accessible here.

Monday, January 11, 2010

Digital Remedies for Counsel with Colds

Since the temperatures plummeted to well below zero a few weeks ago, I have struggled against a cold that I have not been able to shake. I am down; then I rally for a few days; and then I am down again. Up and down. Up and down. It has been awful.

During the down phases of this winter roller-coaster, I have swallowed a river of cold medicine and listened to a lot of podcasts. Much of both left a bad taste in my mouth; but occasionally, I would happen upon a dose of something really wonderful.

Here is a list of presentations that are available for downloading that will stimulate even a brain that is addled by a super-size load of pseudoephedrine:

• Professor Burt Nueborne of the Brennan Center for Justice at the New York University School of Law and Professor Randy E. Barnett of the Georgetown University Law Center discuss the benefits and hazards of reading the Bill of Rights as part of integrated whole rather than a decalogue of ten distinct provisions; accessible here.

• Judge Guido Calabresi, of the U.S. Court of Appeals for the Second Circuit, and Judge Frank H. Easterbrook, of the U.S. Court of Appeals for the Seventh Circuit, wrangle over the proper method of deciding cases when presented with applications of a statute that the Legislature never considered; accessible here.

• Clark Neily, of the Institute for Justice, and Professor Kurt Lash, of the Loyola Law School, discuss the meaning of the Privileges and Immunities Clause and whether it provides a basis for incorporating some or all of the Bill of Rights against the states; accessible here.

• An all-star panel – Justice Samuel A. Alito, of the Supreme Court of the United States, Judge Michael W. McConnell, formerly of the United States Court of Appeals for the Tenth Circuit; Walter E. Dellinger III, formerly the United States Solicitor General; Pepperdine School of Law Dean and former Solicitor General Kenneth W. Starr; and Professor of Law Douglas W. Kmiec -- discuss “Lawyering and the Craft of Judicial Opinion Writing;” accessible here.

If you like any of these podcasts, be sure to send me an E-mail.

I am not shaking anyone’s hand until at least July….

Sunday, December 20, 2009

Heat and Light in Saint Paul this Winter

On Wednesday of this past week, a panel of the U.S. Court of Appeals for the Eighth Circuit heard oral argument in the case of Wersal v. Sexton.

As readers of these pages will recall, in February of this year, Judge Ann H. Montgomery of the U.S. District Court for the District of Minnesota, turned away a civil rights suit challenging the provisions of Minnesota Code of Judicial Conduct.

Golden Valley attorney and sometime candidate for election to the Minnesota Supreme Court, Gregory F. Wersal, earlier claimed that he would like to seek election to the Minnesota Supreme Court, and announce his support for the election of Tim Tingelstad (to judicial office) and Michele Bachmann (to the U.S. Congress), during his candidacy. Rule 4.1 (A)(3) of the Minnesota Code of Judicial Conduct forbids judges and those running for judicial office from making such endorsements. Judge Montgomery upheld this restriction of the Code on the grounds that “a legitimate impartiality concern is created when [Wersal] endorses a candidate who may come before him in a judicial capacity.”

The most provocative claim made by Wersal is his contention that the prohibitions on judges endorsing other candidates for elective office are not meant to disentangle judges from political bias, but rather, are designed to prevent these biases from being revealed. Wersal argues: The “restrictions on judicial speech could undermine public confidence in the judiciary, [because] there is a danger that silence on the part of judicial candidates could inspire the suspicion that they are hiding their views to mask their partiality or bias.” Implicit in this charge, is that the Code’s ban on candidate endorsements is meant as an incumbent-protection mechanism; with the government deciding to shield clumsy office-holders from later being rejected at the polls because of those candidates' actual views.

To my mind, this is a far more sophisticated, nuanced and potent argument than the threadbare claim that judges are simply indistinguishable from others who enter the public square. Indeed, I think that Wersal’s arguments have their greatest force (and the Board of Judicial Standards is at its weakest) when the inquiry centers on the benefits that accrue to incumbent office-holders under the regulations.

Courtesy of Minnesota Lawyer, Judge Montgomery’s February 2009 analysis is accessible here.

An audio file of the Eighth Circuit oral argument – and the very fine job done by the advocates, James Bopp, Jr. and Deputy Attorney General Steven M. Gunn – is accessible here.

Friday, December 11, 2009

Twenty Years Ago – A Great Miracle Happened Here

When I was in Israel in April, I set out to find and purchase some Israeli dreidels. As readers of these pages may know, dreidels in the United States (and other places outside of Israel) are different from the ones that are found in Israel.

In the United States, the Hebrew letters that adorn the four sides of a dreidel – נ-ג-ה-ש – form an acronym for the phrase “Nes Gadol Hayah Sham;” a great miracle happened there. In Israel, however, the fourth word of the acronym is different. For Isrealis, the great miracle of the Chanukah celebration happened “here.” Thus, the Israeli dreidel reads נ-ג-ה-פ for “Nes Gadol Hayah Po."

In fact, while I was searching for the Israeli versions of the spinning tops, I had a heated dispute with a Jerusalem vendor who wanted to sell me sham driedels with the letter representing “sham” on them. I determinedly pointed to the ground and declared in my very Americanized Hebrew: “Nes Gadol Hayah Po!” (A great miracle happened here!) This, the merchant was obliged to concede.

I was reminded of that here and there story when an official of the Chabad Lubavitch wrote to me this week about the twentieth anniversary of the U.S. Supreme Court’s decision in Allegheny County v. ACLU. Twenty years ago, the Chabad won an important victory when the High Court turned away an Establishment Clause challenge to Alleghany County’s hosting of an 18-foot Menorah outside a County office building. Like the Chanukah story itself, the story of this smaller-size miracle bears repeating; particularly on the anniversary of the decision.

The County permitted the Chabad to place its oversized Menorah in front of the building and next to the City's 45-foot Christmas tree. Also nearby was a sign with the following inscription: "During this holiday season, the City of Pittsburgh salutes liberty. Let these festive lights remind us that we are the keepers of the flame of liberty and our legacy of freedom." The inscription appeared under the name of the Mayor of the City of Pittsburgh.

When a suit challenging the hosting of the Menorah on government property was filed, the City and County were inclined to remove the display. Recalled Rabbi Yisroel Rosenfeld, of Chabad Lubavitch of Pittsburgh, “they weren’t going to follow through. That’s when we got involved. We felt, based on what the Rebbe said we should pursue it.”

“What the Rebbe said,” is a reference to a statement circulated six years earlier by Rabbi Menachem M. Schneerson, the Lubavitcher Rebbe, on the importance of publicly lighting Chanukah candles. The Rebbe wrote:

The Chanukah Lights remind us in a most obvious way that illumination begins at home, within oneself and one’s family, by increasing and intensifying the light of Torah and Mitzvos in the everyday experience, even as the Chanukah Lights are kindled in growing numbers from day to day. But though it begins at home, it does not stop there. Such is the nature of light that when one kindles the Chanukah Lights are expressly meant to illuminate the “outside,” symbolically alluding to the duty to bring light also to those who, for one reason or another, still walk in darkness.

If the Menorah was not in the town square, reasoned the Chabad of Pittsburgh, some light might not reach those still walking in darkness. They had no choice; they were in the suit to win.

Fortunately for the Chabad, Allegheny County and those who enjoyed the Menorah, Justice Blackmun simply did not believe that the oversize lights were meant to dispel any moral darkness. He wrote:
In this country, the tradition of giving Chanukah gelt has taken on greater importance because of the temporal proximity of Chanukah to Christmas. Indeed, some have suggested that the proximity of Christmas accounts for the social prominence of Chanukah in this country. Whatever the reason, Chanukah is observed by American Jews to an extent greater than its religious importance would indicate: in the hierarchy of Jewish holidays, Chanukah ranks fairly low in religious significance. This socially heightened status of Chanukah reflects its cultural or secular dimension.
More significantly still, the happy accident that the Menorah was placed beside a colossal Christmas tree that year meant that other, later Menorahs could do their illuminating work somewhat shielded from Establishment Clause claims. As Rivka Chaya Berman of Chabad Lubavitch Headquarters reflected on the decision, “the experiences of Chabad representatives across the United States reveal just how useful or not the landmark decision has been in bringing Chanukah’s light, message of peace and religious liberty to the public square. From Montana to Mumbai, from the Western Wall to the Great Wall of China, Chabad’s public menorah lightings number in the thousands.”

For Jews who have suffered religious persecution in this country, and others, being able to undertake Jewish rituals prominently, in the open, and in safety, is a big deal. Nes Gadol Hayah Po. Mistakenly, or providentially, twenty years ago, a great miracle happened here.

Happy Chanukah, everyone.

Sunday, September 27, 2009

Stras to Preview October 2009 U.S. Supreme Court Term

The MSBA Administrative Law Section is co-hosting with the Appellate Practice Section an exciting CLE at the Minnesota Judicial Center.

Professor David Stras, of the University of Minnesota Law School, and a key player in the ensemble that writes SCOTUSblog, will give a detailed preview of the U.S. Supreme Court’s October Term 2009.

The event is scheduled for Monday, October 26, from 11:30 a.m. to 1:30 p.m.

Professor Stras, who clerked at the High Court during the October 2002 Term, is a very knowledgeable and engaging speaker. This will be a great event.

Plus, because the event organizers are receiving a selection of “supremely” gourmet pizzas from Cosetta’s, and because of the very courtly attendees that we are likely to draw to this talk, the 70 seats that we have allotted for the event are likely to go fast.

Details on how to RSVP for this not-to-miss event are accessible here.

On Neglect

Neglect (ni-glekt′) – transitive verb: 1. to ignore or disregard; 2. to fail to care for or attend to sufficiently or properly; 3. to fail to carry out (an expected or required action) through carelessness or by intention.

I know that I have been neglectful of this blog. And I do feel bad about it.

The crawl spaces in my week that I used for reading reported decisions and writing case summaries, slowly collapsed under the weight of projects that I had piled nearby. I took on some additional responsibilities at my day job; and then the chairmanship of the Administrative Law Section of the MSBA. I agreed to do a CLE webinar for the American Bar Association; accepted some other speaking engagements around town; and pledged to lead a committee at the kids’ school; et cetera, et cetera …. The adjacent pile just got higher and higher.

As small as my crawl space for blogging has always been, it was the one enterprise that did not have a firm deadline. And so, I put it off a day. And then a week. And then some more.

In this season for turning, however, I see the error in that plan. I should not be so neglectful. My new plan is to say “no, I really can't” to more things in the future, making for larger spaces to write here. So, with any luck, there will be more postings soon. So please stay tuned.

Friday, July 03, 2009

Franken, Coleman, the Forest and the Trees

While mindful of the very wide range of opinions that have already been expressed on the Minnesota Supreme Court's conclusion that Al Franken was elected U.S. Senator from Minnesota last fall (see, e.g., here and here), I thought that I would add a few comments of my own on Tuesday's landmark decision.

Perhaps it is the nature of those who are not involved in political campaigns to completely miss the forest for the proverbial trees, but I had a decidedly different take on the Court's decision and its significance -- different from most everyone around me. When the decision came down on Tuesday, I was not thinking about the 2008 election at all. I was thinking only of the elections that will come; the next landscape entirely.

So, quite apart from any consideration as to which candidate ended up with the election certificate (a matter that I am quite happy to leave to other commentators and other blogs), in my view, there was a good deal in the decision that Republicans, Democrats and Independents could cheer -- and cheer in unison.

No doubt imbued with the sense that everyone in the Western World would be watching the results of this case -- and nearly everyone was -- the Court rendered an opinion that is crispy written; clings closely to the questions and the record that were presented below; and provides genuinely helpful answers to the matters that were in doubt. The fact that the Court drew together as a unified Per Curiam bloc when rendering the decision, only adds to the force and utility of its written work.

Similarly helpful, the Court made clear that not every difference in election practice among Minnesota’s 4,130 precincts amounts to a denial of equal protection of the law. As the Court explained:
The unlawful administration by state officers of a state statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination.
Before Tuesday, that point was not altogether clear. To my mind, the Court’s qualifier narrows the number of likely nightmare scenarios following Bush v. Gore (and its oft-cited conclusion that the Equal Protection Clause guarantees individuals that their ballots will not be devalued by "later arbitrary and disparate treatment") to a fairly manageable number of Election Day anxiety attacks. So, election officials, you are free to put down your paper bags and begin breathing normally....

Lastly, the Court’s acquiescence to the lower court’s ruling that a post-election inspection of ballots does not extend to non-ballot materials, and its still stronger assertion that the ballots themselves may only be examined by litigants after a showing of necessity has been made, is sure to avoid some of the more mischievous kind of rummaging through election materials that candidates have enjoyed to date. Two snaps for that.

And so while the wrangling over who should sit at Desk Number 94 in the Senate Chamber will no doubt continue apace, and perhaps continue on longer than the election contest itself, I think only of the further horizon. And that looks pretty good.

The Court's complete analysis is accesssible here.

Friday, June 26, 2009

Really Clever People Get Free CLE

At its annual meeting last week, the Minnesota State Bar Association’s Administrative Law Section announced a program under which it is trading good ideas for complimentary admission to an upcoming Continuing Legal Education program sponsored by the Section.

If your idea for a CLE program on administrative law is chosen by the Section Council, you and a colleague will receive complimentary admission to that CLE.

So send in your ideas for a CLE program. Someone as clever as you shouldn’t have to pay for CLE credits.

Does Caperton Invite More or Less Danger for Judges in Retention Elections?

In the run-up to their fundraising benefit scheduled for next week, supporters of retention elections for state court judges here in Minnesota have hailed the recent U.S. Supreme Court decision in Caperton v. A.T. Massey Coal Company Co.

As readers of these pages are aware, earlier this month a divided U.S. Supreme Court held that some independent expenditures in judicial campaigns are so large and influential that the candidate-judges who benefit from these expenditures are obliged by the Due Process Clause to later recuse themselves from cases involving the donors who had “significant and disproportionate” influence.

One presumes that the supporters of retention elections in Minnesota’s regard the decision in Caperton as affirming their view that independent expenditures can have a distorting influence on the administration of justice – indeed an impact that is of constitutional significance.

This may be true, but it occurred to me that the Caperton case also includes the seeds of future difficulty for supporters of retention elections.

As the four dissenting Justices in Caperton point out, calibrating when a donor’s influence becomes “significant and disproportionate” such that when “coupled with the temporal relationship between the election and the pending case offer a possible temptation to the average judge,” is neither a simple nor straight-forward task. Reasonable people will disagree as to when that line is crossed, and, the dissenters argue, this uncertainty will result in a proliferation of claims that candidate-judges who benefitted from independent expenditures during a campaign must later recuse themselves.

Moreover, it occurred to me that the “significant and disproportionate” voices in retention election campaigns will most often be those undertaking independent expenditures – there being no candidate-challengers with that form of election. In a smaller, compressed field, the outside voices may, in fact, seem louder and more influential. And if that is true, aren’t judges who seek retention in office more vulnerable to later claims that they are “in the pocket” of those who spoke widely on their behalf? Likewise, isn’t the danger heightened when there is no other judicial candidate with whom one could compare one’s campaign? For these reasons, I think that the holding in Caperton represents more of a mixed blessing than a boon to supporters of retention elections here at home.

The High Court’s complete analysis, and the critiques of the dissenting Justices, is accessible here.

Sunday, June 21, 2009

“Released from Confinement”: What it Means for Offenders, Agencies and You

In an interesting set of opinions issued on June 9, the Minnesota Court of Appeals turned away dual challenges to the risk level assessments imposed by the Department of Corrections’ End of Confinement Review Committee. As readers of these pages are aware, Minnesota law obliges the Department to assign a risk level to predatory offenders upon their “release from confinement.” The two opinions address challenges to the timing of the Committee's determinations.

In Risk Level Determination of M.D., the offender challenged the assignment of a risk level at the conclusion of his Minnesota prison term, because, due to an unrelated offense, he was immediately transferred to the state prison system in Wisconsin. As the M.D. argued, there was not a single moment that he was free from confinement, such that the DOC risk level assignment was premature. Disagreeing, the Court of Appeals held that notwithstanding the fact that undertaking community notification as to M.D. would not be particularly meaningful or eventful, “the letter of the law shall not be disregarded under the pretext of pursuing the spirit.” As the panel concluded, the release from confinement in Minnesota made the timing of the risk level determination appropriate.

Similarly, in the Risk Level Determination of D.W., the appellant challenging the risk level determination was a patient who had been earlier indefinitely committed for treatment in the Minnesota Sex Offender Program. Designated as a Sexually Dangerous Person in 1992, D.W, was making process in the treatment program toward eventual re-integration into the community. At each stage of the multi-stage treatment process, the Department of Human Services, in conjunction with the Department of Corrections, convenes an End of Confinement Review Committee for the purpose of rendering a risk level determination. The patient argued that even if he obtained privileges to walk the grounds of the St. Peter Regional Treatment Center, he would still be indefinitely committed to the program and therefore not “released from confinement.” The End of Confinement Review Committee countered that “released from confinement” under Minn. Stat. § 244.052 equals any opportunity that the patient is “permitted to leave the facility and have contact with the community.” The appellate panel held that where the words of the statute permitted either construction of the statute, it would defer to the agency’s interpretation of the law that it administered – particularly where that interpretation was “consistent with the community-protection purpose of section 244.052.”

To my mind, the significance of these decisions is that they recognize a range of policy objectives beyond community notification that are served by the risk assessment statutes. Indeed, tellingly, the panel in D.W. characterized the purposes of the law as “community protection” – a term that presumably includes, but is not limited to, community notification programs. The panels also recognize the accuracy, detail and completeness of agency records on particular offenders as important purposes fulfilled by the statute.

The complete analyses of the appellate panels are accessible here and here.

Saturday, June 20, 2009

Beck Internship Turns $4,000 into $16,000 for Indigent Clients

On Wednesday of this past week, the MSBA Administrative Law and Health Law Sections' commemorated their joint underwriting of a summer internship program in Administrative Law with the Volunteer Lawyers Network. The Sections' $4,000 contribution will, in combination with federal Work-Study matching grants, translate into $16,000 worth of stipend resources for VLN as it assists indigent clients with administrative law matters. The internship is named for Administrative Law Judge George A. Beck, who recently retired from the Minnesota Office of Administrative Hearings after 29 years of service.

The presentment ceremony was made at the MSBA Administrative Law Section's Annual Meeting.

The first of the internship participants is Danielle ("Dani") Sollars, a third-year law student at the William Mitchell College of Law. Ms. Sollars, a Montana native, is a graduate of the University of Saint Thomas and has earlier worked in advocacy roles with the Legal Aid Society of Minneapolis, Minnesota Children’s Law Center and the Minnesota Advocates for Human Rights.

Photos from this year's Administrative Law Section's Annual Meeting are accessible here.

Also, a video of the presentment remarks (which requires listeners to turn up the volume on their speakers in order to hear the remarks clearly) is accessible here.

Sunday, June 07, 2009

The AGO's Annual CLE Seminar and the Oral Argument Everyone is Talking About

I had a great time at the annual all-day CLE seminar hosted by the Minnesota Attorney General's Office, held this past Friday. The program was entitled “Anatomy of a Contest Case” and explored elements of effective administrative law practice from various different perspectives. The program drew about 200 lawyers, from government and the private sector, to the University of St. Thomas’ O'Shaughnessy Educational Center.

Judges Heydinger, Cervantes and I had about 45 minutes to share our suggestions on effective trial practice. Our panel was entitled: “The Facts: The ALJ’s Perspective.”

Hopefully, we were a “value-add.”

Among the most interesting features of the conference to me was that presenters in three of the eight panels that day made reference to the case of In the Matter of the Denial of Certification of the Variance Granted to Robert W. Hubbard by the City of Lakeland – a matter that will proceed to oral argument before the Minnesota Supreme Court this coming Wednesday.

In that case, the City of Lakeland granted Robert Hubbard a bluffline setback variance for Hubbard’s home on the shore of the St. Croix River. Exercising powers under Minnesota’s Lower St. Croix Wild and Scenic River Act, the Department of Natural Resources issued a notice of non-approval of the variance. Under the Act, the DNR has review powers over local variances that are granted with the St. Croix River Shoreland Management District.

Hubbard and Lakeland demanded a contested case hearing under the Administrative Procedures Act. The administrative law judge recommended that the Commissioner of the Department of Natural Resources affirm the denial of the variance. On September 18, 2007, the Commissioner issued an order affirming the denial of the variance. The City of Lakeland and Hubbard appealed to the Minnesota Court of Appeals, which reversed the decision of the Commissioner. As the appellate panel reasoned, Mr. Hubbard'd requested variance was automatically approved because the Commissioner did not issue his final decision within 60 days of the close of the record in the contested case hearing.

Among the issues upon which the Minnesota Supreme Court granted review is the question of whether the 60-day time period for government approvals “relating to zoning,” applies in this case, or the 90-day time period for issuance of such decisions under the Administrative Procedures Act.

As one of the panelists from the CLE on Friday exclaimed – knowing exactly what breed of lawyers had assembled in the auditorium – “whether the APA or section 15.99 applies in such cases is something you could talk about for hours!!!....”

Well, the lawyers in the case on Wednesday won’t nearly have that long to talk. The oral argument in Hubbard begins at 9:00 a.m. this Wednesday (June 10) in Courtroom 300 of the Minnesota Judicial Center (or you can see it replayed on the internet from this link here, shortly thereafter).

Saturday, June 06, 2009

Some Thoughts on the Sotomayor Nomination – Part I

On Thursday of this week, the U.S. Senate’s Committee on the Judiciary posted to the internet Judge Sonia Sotomayor’s replies to the Committee’s background questionnaire. Submission of the questionnaire replies is an important early step as Judge Sotomayor seeks confirmation to become the next Associate Justice of the Supreme Court of the United States.

Two items leaped out to me from the Judge’s detailed replies. The first is that Judge Sotomayor, like all of her would-be colleagues on the High Court, has never been a candidate for elective office. Since Justice Sandra Day O’Connor retired in July of 2005, the High Court has been without a Justice who has ever appeared on a ballot – the first time that this was true in the Court’s long history. And, if Judge Sotomayor is confirmed, this particular trend will continue for a while longer.

The second, more subtle point is that it would probably be very difficult for someone who had a significant tenure in elective office to respond fully to the questionnaire now used by the Judiciary Committee. Imagine the herculean staff effort that would be needed to respond to the Committee’s questions if Governor Christine Gregoire (of Washington), Governor Jennifer Granholm (of Michigan) or Governor Deval Patrick (of Massachusetts) was nominated to the post – any of whom was a genuine possibility last month. Among the Committee’s requests are:

12 (a): List the titles, publishers, and dates of books, articles, reports, letters to the editor, editorial pieces, or other published material you have written or edited, including material Published only on the Internet. Supply four (4) copies of all published material to the Committee.


12 (d): Supply four (4) copies, transcripts, or recordings of all speeches or talks delivered by you, including commencement speeches, remarks, lectures, panel discussions, conferences, political speeches, and question-and-answer sessions. Include the date and place where they were delivered and readily available press reports about the speech or talk. If you do not have a copy of the speech or a transcript or recording of your remarks, give the name and address of the group before whom the speech was given, the date of the speech, and a summary of its subject matter. If you did not speak from a prepared text, furnish a copy of any outline or notes from which you spoke.

12 (e): List all interviews you have given to newspapers, magazines, or other publications, or radio or television stations, providing the dates of these interviews and four (4) copies of the clips or transcripts of these interviews where they are available to you.

12 (f): If, in connection with any public office you have held (see 15a), there were any reports, memoranda, or policy statements prepared or produced with your participation, supply four (4) copies of these materials. Also provide four (4) copies of any resolutions, motions, legislation, nominations, or other matters on which you voted as an elected official, the corresponding votes and minutes, as well as any speeches or statements you made with regard to policy decisions or positions taken. “Participation” includes, but is not limited to, membership in any subcommittee, working group, or other such group, which produced a report, memorandum, or policy statement, even where you did not contribute to it. If any of these materials are not available to you, please give the name of the document, the date of the document, a summary of its subject matter, and where it can be found.
In such a case, would a tractor-trailer stuffed full of bankers boxes be required?

Judge Sotomayor’s more modest set of replies are accessible here and here.

Some Thoughts on the Sotomayor Nomination – Part II

While the story has already been covered in great detail by the Washington Examiner and the Washington Post, to my mind the most interesting feature of the run-up to the confirmation hearings for Circuit Judge Sonia Sotomayor to be an Associate Justice of the U.S. Supreme Court, is the role of the new GOP-lead of the Judiciary Committee, Jeff Sessions (R-Alabama).

Not since the story of Joseph in Genesis, has there been such a dramatic and ironic turn in fortune. Sessions, who 23 years ago had his own appointment to the federal bench derailed by charges that he had made racist statements (a claim he vigorously denied then, as he does today), will lead Republican inquiries into the fitness of Judge Sonia Sotomayor, who herself has been charged by critics as making racially insensitive remarks. The turnabout for Sessions did not happen overnight. Ten years after Sessions lost his bid to be a federal district court judge, the first of President Reagan’s nominees to be turned away by the Senate, he won the U.S. Senate seat of a man who voted against his confirmation – Howell Heflin. Last month, Sessions replaced as GOP-lead on the Judiciary Committee another Senator who voted against his confirmation – Arlen Specter of Pennsylvania. (Senator Specter has since said that he regretted that vote.)

And Senator Sessions, perhaps not unlike Joseph of the Bible story, has been far more gracious in power than others were to him. He’s publicly urged fellow conservatives not to label Judge Sotomayor a racist, remarking: “You know, that's such a loaded word, and I don't think it's appropriate to use it in this context.” He would know.

Now, if only the nation could have seven years of plenty….