Within the Scope

Blogging on Administrative Law and the Public Sector

Tuesday, October 31, 2006

Unpublished But Still Interesting: The Courts Need the Treatment Records that Sex Offenders Would Shield from View

In an unpublished decision today, a panel of the Minnesota Court of Appeals held that sex offenders who are enrolled in community-based treatment do not have a due process right to shield their treatment records from prosecutors that are eyeing a civil commitment petition for the offender.

Cary Leas asserted that he went into sex offender treatment, following his release from state prison, “understanding” that his disclosures in treatment were confidential. He claimed that his rights to due process were violated when these records were later disclosed to the Pennington County Attorney’s office. The County Attorney’s office reviewed, and used, the disclosures as part of its petition to civilly commit Leas as a sexual-psychopathic personality and a sexually dangerous person.

Affirming a lower court’s order of commitment, Judge Worke declared that the use of the treatment records was needed “in order to assure that persons are not improperly subjected to involuntary civil-commitment proceedings …. This purpose would be frustrated if the person subject to commitment was able to limit the county’s record-gathering efforts to include only those records that are neutral or that serve the person’s interest in avoiding commitment.”

The complete opinion is accessible here.

Avoiding Error in Your Own Appeal

The United States Court of Appeals for the Federal Circuit has issued a checklist “Top 10 Reasons Why Formal Briefs Are Rejected.”

For any appellate advocate this would be a handy to checklist to review before filing briefs in the Circuit Court of Appeals – as it might prompt double-checking local rules on required statements, font size and tricky appendix requirements.

The “Top Ten” list for briefs is accessible here, and the Top Ten list for appellate motions practice is accessible here.

Sunday, October 29, 2006

IPAD's Fall Newsletter Issued

The Department of Administration's Information Policy Analysis Division has issued its Fall Newsletter – FYI – which includes summaries of four recent IPAD Advisory Opinions and synopses of three recent appellate court decisions.

A copy of the latest newsletter is accessible here.

The Geography of Cyberspace: Where Do Calls to an Internet Service Provider End?

On Friday, a divided panel of the U.S. Court of Appeals for the Eighth Circuit issued an interesting ruling on the pricing of local calls from customers of non-Bell companies, to Internet Service Providers that are served by the area Bell company.

Two issues divided the appellate panel. The first was whether calls placed to an Internet Service Provider “terminated” at the local call center, or instead went on to (wherever on the globe) that the internet content was accessed? The second issue was whether the Court should review the Pubic Service Commission’s decision by way of a de novo review standard, or a more deferential “arbitrary and capricious” standard?

A majority of the panel concluded that parties to the agreement never intended that the calls to a local ISP would be treated as local calls subject to “reciprocal compensation” provisions, and that the Public Service Commission’s reading the agreement in this way was not arbitrary and capricious.

The complete opinion, and Circuit Judge Bye’s dissent on both grounds, is accessible here.

From the Get-Go: Supreme Court of Canada Will Hear Breach of Religious Contract Case

The Supreme Court of Canada has announced that it will hear the appeal of Stephanie Bruker, a woman who has sued her former husband, Jessel Marcovitz, for not complying with the terms of a prenuptial agreement signed by him. Under a 1969 agreement between Bruker and Marcovitz, Marcovitz agreed to submit himself to rabbinical authorities in Montreal and provide Bruker with a traditional Jewish divorce – known in Hebrew as a "get" – if Bruker had earlier-obtained a civil divorce from the Canadian Courts.

In 1980, Bruker obtained a civil divorce, but Marcovitz refused to grant the requested get. In 1989, Bruker instituted a civil suit for money damages, asserting both breach of contract and loss of consortium claims – as Jewish religious law did not have permit Bruker to remarry, or bear legitimate children, without first obtaining a religious divorce from Marcovitz.

Notwithstanding the fact that Marcovitz relented in 1995, and granted a get to his former wife, the trial-level Superior Court awarded Bruker $45,000 in damages, plus pre-judgment interest, for the earlier breach. Last autumn, the Quebec Court of Appeal reversed that ruling, holding that notwithstanding Marcovitz's 1969 conditional agreement to perform certain religious acts, money damages were not recoverable from the civil courts if those promised acts were not performed.

Argument in this case is scheduled for December 5.

Wednesday, October 25, 2006

Beyond the Tennessen Warning: Data Disclosures No One Could Predict

Last Friday, Judge Schiltz of the U.S. District Court for the District of Minnesota issued an interesting ruling on a Minnesota Data Practices Act claim against Koochiching County.

As detailed in the opinion, the County Under-Sheriff scheduled an employment-related meeting with a subordinate with whom he was involved in a series of disputes. The Under-Sheriff tape recorded the meeting and later had a transcript of the tape recording made. The Under-Sheriff then shared a copy of the transcript with his son, who in turn put the item above the visor of his truck. The transcript was later thrown from the son’s truck, and ended up in a roadside ditch, when the son was involved in an alcohol-related accident. Investigating officers found the transcript of the employee meeting in the ditch, a fact that was reported in the local newspaper.

Concluded Judge Schiltz, the employee had no claim against Koochiching County under the Data Practices Act because the disclosure of the transcript by the Under-Sheriff to his son was not within the scope of the Under-Sheriff’s employment, and in no way benefited Koochiching County.

The complete opinion is accessible here.

Tuesday, October 24, 2006

Anatomy of a Sick Day: Sipping Tea and Reading Tea Leaves

I recently had to miss a work day unexpectedly due to an injury, and had the chance to be at home with no laptop and only a stack of cases. The forced quiet gave me a chance to spend more time reflecting on last week’s order in Purcell v. Gonzalez, which I wrote about on Friday.

While the order struck election law circles with the force of a pile driver, and some experts have rushed to rebuke the Court for lending partisan advantage in the current election cycle, I think that the real impact of the order will be rendered in the cases to come. Consider the following quotations – which are unadorned by citations to authority, but provide a peak into the policy views of the Roberts Court:

“Voter fraud drives honest citizens out of the democratic process and breeds distrust of our government. Voters who fear their legitimate votes will be outweighed by fraudulent ones will feel disenfranchised.”

“Although the likely effects of Proposition 200 are much debated, the possibility that qualified voters might be turned away from the polls would caution any district judge to give careful consideration to the plaintiffs’ challenges.”

“Court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.”


My prediction is that in the hands of election lawyers of all stripes, this dictum will be quoted often and recast to very powerful effect.

Unpublished But Still Interesting: A General Attack on Truck Rental Rates is a Pre-Enforcement Challenge

Today, a unanimous panel of the Minnesota Court of Appeals affirmed a lower court’s dismissal of an action that sought to set aside the rates charged by truckers who use their own equipment on highway construction contracts. The Minnesota Department of Labor and Industry sets the rental and broker rates as part of a larger program to compensate these truckers with “the prevailing wage” on state construction contracts.

A consortium of trucking companies challenged the use of the state-developed rates in state highway construction solicitations, on the grounds that the challenged rates were unconstitutional, ultra vires and otherwise invalid.

Affirming the lower court’s dismissal of this challenge, the panel held that such attacks on the rental and broker rates could only be had by way of a declaratory judgment action in the Court of Appeals. The appellants’ claims were not challenges to the bidding process per se; actions which are otherwise directly filed with the District Courts.

The complete opinion is accessible here.

Sunday, October 22, 2006

Class Act: Gaming Commission Can't Demand Financials on the Big Tribal Games

On Friday, a panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled that the National Indian Gaming Association exceeded its delegated authority when it issued rules, and sought enforcement actions, that demanded financial and operations records from a Class III gaming facility on Indian trust land.

The panel held that Congress' grant of regulatory authority over “Class II” operations (including such games as includes bingo, “non-banking” card games, pull-tabs and lotto) did not likewise include authority over “Class III” operations (which include “most conventional forms of casino gaming such as slot machines, roulette, and blackjack”).

In its ruling, the panel made short work of the agency's contention that its oversight of Class III operations “embodies the congressional purpose to promote integrity in Indian gaming.” The panel replied that notwithstanding the agency's noble intentions, it was “bound, not only by the ultimate purposes Congress has selected, but by the means it has deemed appropriate, and prescribed, for the pursuit of those purposes.”

The complete opinion is accessible here.

Friday, October 20, 2006

How Much Fraud is Needed to Justify Limits on the Right to Vote?

On Monday, the Supreme Court of Missouri upheld the ruling of a lower court invalidating that state’s recently-enacted voter identification law.

A majority of the Court held that a law requiring voters to proffer a photo identification card before the ballots that they submit will be counted, unduly burdened the right to vote. While agreeing that the Legislature was aiming at the problem of fraudulent impersonation of registered voters, the Court determined that “[t]here was no evidence of any voter impersonation fraud,” and that the Legislature, when enacting the photo identification provisions left unaddressed the possibility of fraud in absentee voting. The Legislature’s “misperceptions” of the state’s policy problems, continued the majority, burdened the right to vote.

Likewise interesting, the Court specifically credits the testimony of two Missouri Secretaries of State – the officials who are charged with election administration – to the effect that the elections administered during their tenure in office were “fraud-free.”

In dissent, Judge Stephen N. Limbaugh, Jr. asserted that the evidence of past impersonation of voters was both understated and irrelevant. Argued Judge Limbaugh, “even if there were no substantial evidence of existing voter impersonation fraud, legislatures are permitted to respond to the potential for such fraud, and they may do so ‘with foresight’ rather than ‘reactively.’”

The complete opinion is accessible here.

The same arguments have arisen here in Minnesota. In September, political figures sparred over how much of a history of voter fraud is needed in order to justify a photo identification requirement for elections in this state.

Lastly, on Wednesday of this week, the U.S. Court of Appeals for the Seventh Circuit explored some of these same contentions, as to the Indiana law, in oral argument in Crawford v. Rokita. Circuit Judge Richard Posner leads the questioning in a case that might be before the U.S. Supreme Court in the next term. An audio clip of the not-to-miss argument is accessible here.

SPECIAL UPDATE: In a Per Curiam Order issued this afternoon, the U.S. Supreme Court has vacated an interlocutory injunction entered by the U.S. Court of Appeals for the Ninth Circuit. The injunction barred enforcement of an Arizona law that requires voters to present proof of citizenship when they register to vote and to present identification when they vote on election day. The Order is accessible here.

Thursday, October 19, 2006

2nd Circuit: “Substantial Compliance” is a Performance Standard for the States and Not a Limit on Student Access

Last week, a panel of the U.S. Court of Appeals for the Second Circuit issued an important ruling in the area of special education. In proceedings before the District Court, a group of disabled students sought an injunction directing the local school board, and others, to immediately deliver the services outlined in the students’ Individual Education Plans. The District Court denied this request for injunctive relief. While agreeing that the government defendants were overdue on their delivery of the services, the District Court found that they were in “substantial compliance” with their obligations under federal law.

Reversing the District Court’s judgment, and remanding for further proceedings, the appellate panel held that the “substantial compliance” standard was a performance benchmark for the states and not a limitation upon the rights of students to receive services. The student plaintiffs had a right to receive the services outlined in the education plans “as soon as possible,” apart from whether the local school district, or the state, performed well enough overall to be in substantial compliance with their obligations.

The full opinion is accessible here.

When Law Enforcement Looks for Love in All of the Wrong Places ... They Cite Lawrence

Former Arkansas State Trooper Alex Sylvester claims that the Arkansas State Patrol violated his fundamental rights when it dismissed him from the Criminal Investigation Division and then later bumped him to the Highway Patrol. Trooper Sylvester was disciplined after the Patrol discovered that he had met, and had sexual relations with, a crime victim during an active criminal investigation.

Yesterday, a panel of the U.S. Court of Appeals for Eighth Circuit rejected the Trooper's claim that constitutional protections of privacy and sexual intimacy gave him an “unfettered right to engage in sexual intercourse with crime victims during the course of his investigation of the underlying crime without interference from the [State Patrol].” The full opinion, and the panel's discussion of Lawrence v. Texas, is accessible here.

While ordinarily this kind of fact pattern would be odd and aberrant – in a Jerry Springer sort of way – it is noteworthy in our local context. In July, the Minnesota Court of Appeals rejected a similar challenge from the Minnesota Fraternal Order of Police. In a case involving a patrol officer's on-duty sex with an underage female, the FOP argued that a broad view of who was "a person in a position of authority," might “infringe on the ability of younger police officers to have sexual relationships .....” The state court panel’s ruling is accessible here.

Monday, October 16, 2006

Must See TV

At the annual conference of the American Civil Liberties Union, Associate Justice of the U.S. Supreme Court Antonin Scalia debated ACLU President Nadine Strossen on constitutional law and civil liberties.

Their fast-paced, hour-long exchange touched upon a wide variety of subjects including the underpinnings of substantive due process, the establishment clause and the right of privacy.

A video clip is accessible here.

Sunday, October 15, 2006

Thanks for Waiting, You Can't Sue Us Now

On Thursday, the U.S. District Court for the District of Minnesota issued an interesting opinion on the exhaustion of administrative remedies in Freedom of Information cases.

On December 6, 2005, Ren Song Yang sent the Internal Revenue Service a request for disclosure of information in its files regarding Yang's federal income taxes. After receiving the request, the IRS notified his counsel that it was unable to respond within the twenty business-day period established by FOIA. Citing the need to collect Yang’s records from multiple locations, the IRS invoked a ten business-day statutory extension until January 23, 2006, and stated further that it would actually need until February 15, 2006, in order to provide a final response to the disclosure request. The letter also informed Yang of his right to file suit against the agency after January 23, 2006, if he did not consent to the time extension. Disappointed with the disclosures that the IRS was later willing to make on February 16, Yang filed suit.

The District Court dismissed the action. Judge Montgomery noted: “If Yang had filed suit in the time period from January 23, 2006 until before the IRS responded on February 16, 2006, his administrative remedies would have been deemed exhausted .... [But because] the IRS responded before Yang filed suit, Yang was required to exhaust his administrative remedies before initiating this lawsuit.”

The complete opinion is accessible here.

Saturday, October 14, 2006

Manufacturers to Feds: You're Just Not Regulating Us Enough!

On Friday, a panel of the U.S. District Court of Appeals for the District of Columbia Circuit dismissed a challenge from the American Chemical Council to rules promulgated by the U.S. Department of Transportation. The challenged rules related to, among other things, the transportation of hazardous materials in interstate commerce.

On behalf of its corporate members, the Council challenged the rulemaking on the grounds that the final rules did not go far enough – and leaves in place a patchwork of local regulations on subjects that are related to the new federal rules. In its comments to the agency, and the later litigation, the Council urged broader federal preemption of local environmental rules than the DOT undertook.

A divided panel dismissed the suit on the grounds that the Council did not have standing to pursue its challenge. As the panel majority reasoned, because the Council could not establish that a future rule promulgated by the DOT would necessarily preempt local environmental regulations, or that compliance with both the federal rules and local standards was not now possible, the Council's suit was not a “case and controversy.”

Circuit Judge Griffith, in dissent, disagreed. Judge Griffith reasoned that the Council did have standing to pursue its challenge, because the regulatory "gap" left by federal authorities increased the possibility of accidental injuries among the employees of the Council's corporate members. The Council asserted that in the absence of a single federal standard for unloading hazardous materials, there is both greater confusion and workplace accidents.

The complete opinion is accessible here.

Friday, October 13, 2006

Open Meeting Law: Three (Separate) Strikes and You're Out

On Tuesday, a panel of the Minnesota Court of Appeals provided some useful and interesting instruction on Minnesota's Open Meeting Law. In the context of whether Canon Falls Township Board Members should have provided notice of their meetings on certain topics, as was requested by a local resident, the appellate panel held that:

(a) The forfeiture of office provisions of Minnesota law, for those officials who violate the Open Meeting Law, requires three separate intentional violations of the law that are established by three separate adjudications;

(b) The $13,000 statutory limit on the award of attorneys fees to prevailing parties under the Open Meeting Law, applies to all phases of the litigation;

(c) There are certain factual circumstances which make an official’s reliance upon counsel’s advice (as to whether official meetings should be open to the public), objectively unreasonable.

The complete opinion is accessible here.

Saturday, October 07, 2006

This Week at the FEC: Two Items of Note

Item One – Fundraising for Recounts: Election lawyers with mortgage payments and college tuition bills collectively rejoiced this week as the Federal Election Commission issued its latest Advisory Opinion. The advisory declares that sums raised by federal candidates and state party committees for the purposes of conducting post-election recounts are monies raised “in connection with a federal election,” but are not sums that are associated with a “general election campaign.”

This bit of regulatory parsing means that fundraising efforts undertaken for post-election recount battles are subject to federal contribution limits, but will not be aggregated with sums that might have been raised from donors during the general election campaign. Accordingly, the contribution limits start anew when one raises money for the recount war chests.

The Commission’s spirited hour long debate on the subject is accessible here.

Item Two – Puffy is Cleared! As rapper Sean Combs (a.k.a. Puff Daddy, Puffy, P Diddy, and Diddy) crosses the globe to promote his first rap album in five years, Press Play, which will be released on the 17th of this month, the Federal Election Commission gave the hip-hop legend its own boost. This week the Commission dismissed a 2004 complaint which charged that Combs' charity, Citizen Change, had unlawfully coordinated its Get-Out-The-Vote activities with the Presidential campaign of John Kerry.

The Commission’s announcement is accessible here.

A Judge’s Judge: Chief Judge Johnson is Steady in the Storm

I have long believed that much like beauty (which is in the eye of the beholder), and obscenity (which one instantly knows when one sees it), “judicial temperament” is an idea that eludes easy or precise description.

The best that lawyers and judges can hope for, it seems, is to discover and hold up exemplars of sturdy temperament for all judicial officers to emulate. U.S. District Court Judge Donovan W. Frank does his part by evangelizing other judges, and lawyers who are newly admitted to the federal court bar, with copies of the “Ten Commandments for New Judges” – authored by the Court's former Chief Judge, Edward Devitt.

I would add to the list that is circulated by Judge Frank, the Order and Memorandum Opinion issued yesterday by Second Judicial District Chief Judge Gregg E. Johnson, in State v. Messerli & Kramer, et. al. Notwithstanding the swirl of media interest in this case, the ethics complaint that sprouted from the litigation, and the obvious tie-ins with this year’s neck-and-neck Gubernatorial race, Johnson’s opinion was a model of dignified restraint. His description and dispatch of the otherwise red-hot claims of misconduct, was steady, thoughtful and scrupulously matter-of-fact. Read in the context of events outside of the Courthouse, his writing is a fine example of judicial temperament, and a good template for all judges and would-be judges.

Chief Judge Johnson’s opinion is available as a (39 kilobyte) download, here.

Friday, October 06, 2006

A Special Briefing on the New Special Education Rules

In August of this year, the U.S. Department of Education promulgated final regulations regarding assistance to states under the Education of Children with Disabilities Program and the Preschool Grants for Children with Disabilities Program. The regulations issued in August implement the earlier changes made by Congress in the Individuals with
Disabilities Education Improvement Act of 2004.

The Federal Register excerpt that describes and details the regulatory changes weighs in at more than 300 pages, and is accessible (as a 1 ½ megabyte download) here.

Thankfully, however, Minnesotans will not be left alone to parse through the new rules, which go into effect a week from today. The Parent Advocacy Coalition for Educational Rights (PACER), a local special education advocacy group, is hosting a community briefing with John Hager, Assistant Secretary of the Office of Special Education and Rehabilitation Services, and Alexa Posny, the Director of the Office of Special Education Programs.

Online registration for this October 25 seminar is free and accessible here.

My Bad: Confronting the Confrontation Clause

During my second term in the Minnesota House of Representatives, I was approached by officials of the Minnesota Department of Public Safety and asked to help solve a problem. The officials explained that in order to establish the “chain of custody” of evidence in criminal cases, state scientists are frequently called away from their laboratories, on short notice, to testify as to the procedures for handling samples of crime scene evidence. While acknowledging that live testimony was sometimes important in these cases, the scientists objected to being called to courtrooms across the state if their appearance was not, in fact, required. They urged adding to an existing rule, then twenty years in existence, which provided for 10 days advance notice if there were challenges to the admissibility of certain reports: The scientists wanted to add verified chain of custody reports to the list of documents as to which advance notice of challenges was required. With this advance notice, argued state officials, they could better manage both their work in the crime lab and their duties to appear as witnesses for the state.

The change in statute was approved by a broad margin in the both the state House and Senate.

However, a divided Minnesota Supreme Court yesterday held that this law is unconstitutional, declaring that “[at] a minimum, any statute purporting to admit testimonial reports without the testimony of the preparer must provide adequate notice to the defendant of the contents of the report and the likely consequences of his failure to request the testimony of the preparer.”

The full opinion, and the dissent of three Justices, is accessible here.

The list of the 15 very forward-seeing legislators who voted against my 2003 amendment is accessible here.

Wednesday, October 04, 2006

All Work and No Play ....

It is perhaps undignified for a serious blog to mention, but I found this lampoon of redistricting cases from The Onion very silly and very funny.

The Onion takes aim at King Friday XIII and those closer to home.

Monday, October 02, 2006

A Potomac Morality Play: The Rough Road for the Man Who Had Everything

Upon its adjournment on Thursday, the U.S. Senate returned to President Bush the nomination of Michael B. Wallace, to be a Circuit Judge of the U.S. Court of Appeals for the Fifth Circuit.

Wallace, who is a graduate of both Harvard University and University of Virginia Law School, and a former law clerk to Chief Justice William H. Rehnquist, faced a stunning rebuke earlier this year when the American Bar Association's Standing Committee on the Federal Judiciary unanimously rated him “unqualified” to be a Circuit Court Judge. The Committee appears to concede his colleagues' characterizations that Wallace is “brilliant” and a “quick legal mind,” but questions whether Wallace understands “the plight and issues of so many of the people he would have to serve as a judge.”

The Standing Committee's interesting and detailed report is accessible here.

An excerpt from Wallace's appearance before the Senate Judiciary Committee is accessible here, in Real Player format.