Within the Scope

Blogging on Administrative Law and the Public Sector

Thursday, August 31, 2006

Pod Casts for Law Geeks

Tom Goldstein of SCOTUS-Blog gives the rest of the world an intersting 7-minute overview of the factors that Justices on the High Court consider when reviewing petitions for writs of certiorari. Tune into the MP3 file here.

Eighth Circuit: Minnesotans Do Not Have a Fundamental Right to Hunt Game in North Dakota

North Dakota excludes nonresidents from hunting during the opening week of waterfowl season and from all hunting during the first week of pheasant season on land that is owned or leased by the North Dakota Game and Fish Department. Minnesota officials, including the Attorney General and Congressman Colin Peterson challenged these restrictions as violative of the federal constitution.

In rejecting the Minneostans' claims, the U.S. Court of Appeals for the Eighth Circuit reasoned that the right to shoot North Dakota waterfowl during the first week of hunting reason was not among the "‘privileges’ and ‘immunities’ bearing upon the vitality of the Nation as a single entity must the State treat all citizens, resident and nonresident, equally.” Continued the Court:

[W]aterfowl hunting in North Dakota is a recreation and a sport. Waterfowl hunting does not provide a means to the nonresident’s livelihood. Equality in access to North Dakota waterfowl does not constitute a fundamental right basic to the maintenance or well-being of the Union.
Read the full opinion here.

Wednesday, August 30, 2006

Federal Elections Commission Defers Rulemaking on “Grassroots Communications”

In February of this year, the A.F.L.-C.I.O., the U.S. Chamber of Commerce and the National Education Association, among others, together requested that the Federal Elections Commission use its rulemaking powers to exempt “grassroots communications” from the reach of the McCain-Feingold restrictions on electioneering.

Under the McCain-Feingold law (the Bipartisan Campaign Reform Act, or BCRA) certain communications that refer to a candidate for federal office within 60 days before a general election, or 30 days before a primary election, are regulated.

The membership groups complained that regulating television advertisements which simply mention a covered federal officeholder, but which do not seek to promote the election or defeat of that person, hampers their ability to communicate with members of the public about issues that are before Congress. During much of the regulation period, these groups continue, Congress remains in Session and is transacting important public business.

While acknowledging the importance of the issues, yesterday the FEC declined these groups' invitation to develop a rule that would exempt them from the BCRA regulations, and deferred to another day (perhaps until 2008) the possibility of providing regulatory relief. An audio excerpt from the Commission’s deliberations can be found here.

Unpublished, But Still Interesting: Completion of Treatment and Civil Commitment

The case of In the Matter of the Civil Commitment of Brian Peter Braaten, raises issues that treatment professionals inside and outside of the Department of Corrections often discuss -- namely, what is signified by the successful completion of prison-based sex offender treatment?

In Bratten, the offender who was the subject of a civil commitment petition had dutifully completed two prison-based sex offender tretament programs, and yet he was still adjudged to have "an existing disorder or dysfunction that results in inadequate impulse control, making it highly likely that the person will reoffend." For a unanimous panel, Judge Lansing observed:

Despite Braaten’s knowledge of treatment principles, both experts were skeptical about his ability to internalize and implement these principles. Neither expert gave great weight to Braaten’s completion of role-playing exercises in the transition phase of the prison’s treatment program because they occurred within a controlled and confined environment....

Braaten testified that, when he was released in 1998, he felt good and was committed to not reoffending. But he also testified that after his release, he attended only one AA meeting, and that, although he went to SAA meetings, he went to bars afterward and tried to meet women. He withdrew from his family and others he currently lists as persons he would rely on for support if released. Despite completing a four-year sex-offender program in which therapists deemed him an active and sincere participant who developed an understanding of his offense cycle, Braaten isolated himself when he was released and later reoffended when he felt rejected.

Both experts and the district court took into account that Braaten completed a sex-offender program while incarcerated in Minnesota. But Braaten’s own history demonstrates why treatment history is only a factor and is not dispositive on the issue of whether civil commitment is appropriate.
The complete opinion is available here.

Sunday, August 27, 2006

Unpublished, But Still Interesting: Zoning Variances and Equal Protection

Last Tuesday, the Minnesota Court of Appeals held that the fact that one's neighbors received relief from zoning authorities does not necessarily amount to a denial of equal protection, if the City Council later rejects your request for a variance. Instructs Judge Peterson:
The district court’s analysis focuses on the similarity in time between Nelson’s application and the other variances that were granted. But, except for the fact that all lots were qualifying small lots, the district court did not address similarities among the lots or the variances that were granted and Nelson’s request. Such factors are relevant to an equal-protection analysis.
The full opinion, and a description of how the landowner’s request differed from those of her Minnetonka neighbors, can be found here.

Saturday, August 26, 2006

Pension Commission Continues its Review of the State’s Post Fund

The Legislative Commission on Pensions and Retirement has scheduled an interim meeting for Tuesday, which includes, among other items, review of the “Post-retirement adjustment mechanism structure” and “continued review of the Minnesota Taxpayers Association pension report.”

A KARE-11 News Extra Report (accessible here) and a Minnesota Taxpayers Association pension report (accessible here), from last May, renewed legislative interest in these topics.

Friday, August 25, 2006

Minnesota Rulemaking Seminar - September 27th

Save the Date:
11th Annual Minnesota Rulemaking Seminar
Sponsored by the Interagency Rules Committee

Wednesday, September 27, 2006
Minnesota Department of Health – Mississippi Room
1645 Energy Park Drive, St. Paul, MN 55108