Within the Scope

Blogging on Administrative Law and the Public Sector

Thursday, November 30, 2006

In Rulemaking, Spring Cleaning is in December

In Minnesota, the agency rule writer's day for spring cleaning is December 1. On or before the first of December each year, Executive Branch agencies are obliged to submit to the Governor (and many others) "a list of any rules or portions of rules that are obsolete, unnecessary, or duplicative of other state or federal statutes or rules." Also included in the report are details as to how the agencies propose to sweep out their regulatory closets – whether by rulemaking, or by petitioning the Legislature to repeal the outdated items by way of a chapter law.

Further detail as to how the process works is available here and here.

So, be sure to hug an agency rule writer today; after all, they have been busy cleaning.

Wednesday, November 29, 2006

Go East, Young Man.... Okay, Everyone Go East....

When traveling by car between my home here on the prairie, and the rolling hills of my youth on the East Coast, one has to cross Indiana.

Passing the roadway signs declaring what time zone one is in, it has always struck me as funny that Indiana remains a divided state – with 74 counties observing Eastern Standard Time, and another 18 western and southern counties observing Central Standard Time. The skirmishes of the mid-sixties over Daylight Savings Time still rage today in the Hoosier State.

Yet, Pulkaski County, Indiana, however, wants all of this to end. Notwithstanding the fact that a majority of those submitting comments preferred to join the Central Time Zone, if given a choice, local officials have asked the U.S. Department of Transportation to move the County into the Eastern Time Zone.

The history lesson, folded into this Notice of Proposed Rulemaking from Tuesday, is accessible here.

Lunch at Your Desk? How About Some Thought-Provoking Audio?

The California Western School of Law Podcast Series "The Law in Ten," has included among its audio excerpts a 10 minute interview with CWSL Professor Barbara J. Cox. In this broadcast, Professor Cox analyses the 2006 balloting on various state same-sex marriage bans.

Among the interesting points that Professor Cox makes during the interview, and there are several, is that the addition of prohibitions on same-sex marriage to various state constitutions will result in only a temporary victory for the amendments' proponents. Cox predicts that the amendments will only impede the recognition of same-sex marriages in these states by ten to fifteen years.

The interview with Professor Cox is accessible here, and a list of other recent excerpts from "The Law in Ten" series is accessible here.

Tuesday, November 28, 2006

Ad Law Question of the Day: Is Carbon Dioxide an Air Pollutant?

On Wednesday morning, the U.S. Supreme Court will turn to this question during oral argument in Massachusetts v. Environmental Protection Agency, Case No. 05-1120.

In this case, the High Court will consider whether the EPA may lawfully decline to set regulatory standards for carbon dioxide emissions (from motor vehicles and other sources) under the Clean Air Act. In July of last year, a splintered panel of the U.S. Court of Appeals for the District of Columbia Circuit upheld the EPA’s decision not to undertake rulemaking in this area.

A list of the questions presented in the U.S. Supreme Court case is accessible here.

A copy of the D.C. Circuit decision below is accessible here.

Feds Say Boot Camps Didn't Work

Earlier this month, the Federal Bureau of Prisons proposed closing its Intensive Confinement Center program for non-violent offenders. The ICC program draws upon features of a military boot camp, within a traditional federal corrections setting.

Under its proposed rulemaking, the Federal Bureau of Prisons would, going forward, end both its ICC programs and the offer of early release benefits. As the Bureau concluded:
While there are some cost savings due to the early release of offenders who successfully complete the program, these savings are minimal compared to the additional costs of operating the program, which create a net increased cost to the agency of more than $1 million per year. The lack of significant beneficial results has led the Bureau to the conclusion that it can no longer justify the expenditure of public funds to operate the ICC program.
The complete notice is accessible here.

Interestingly enough, in February of this year, Minnesota's Legislative Auditor came to a different conclusion about our state's boot camp. The Legislative Auditor concluded that "[p]risoners who completed the Challenge Incarceration Program (a boot camp with a chemical dependency treatment component) and other prison-based treatment programs generally had lower post-release recidivism rates than those who failed treatment or completed short-term education programs."

Materials relating to Minnesota's program are accessible here.

UPDATE: A Within the Scope reader notes that the Minnesota Department of Corrections has just issued an Outcome Evaluation Report which, among other findings, projects an $18 million cost savings arising out of our state's Challenge Incarceration Program. A summary of the Evaluation Report is accessible here, and a complete version of the Report is accessible here.

Monday, November 27, 2006

Blue Book Geeks, Rejoice!

As Within the Scope was barreling out of town to prepare Thanksgiving Dinner, we did not notice that last Tuesday the Office of the Revisor of Statutes posted on-line the 2006 version of the Minnesota Statutes.

Just in time for cite-checking those holiday briefs and memoranda, all of the latest changes from the just-concluded Legislative Session, as well as an updated look-and-feel to the Revisor’s site, are accessible here.

And, as autumn follows summer, the on-line posting can only mean that the new leather-bound volumes of the statutes are not far behind.

Blue book geeks, rejoice! Everything is up-to-date – for a few months, at least.

Friday, November 24, 2006

New House Committee Structure Announced

On Tuesday, House DFLers announced their proposed committee structure for the upcoming 2007-2008 session.

Among the most interesting features of the new design is that it expands the complement of full committees, subcommittees and finance divisions, from the current 27, to 35.

With the following links, you can compare the current complement (accessible here) with the proposal (accessible here).

Wednesday, November 22, 2006

Pelowski to Head Gov Ops Committee

The Winona Daily News is reporting that State Representative Gene Pelowski (DFL-Winona) has been tapped to lead a newly-renamed and reorganized Committee on Government Operations Reform, Technology and Elections in the Minnesota House of Representatives.

Traditionally, the House Committee on Government Operations has exercised jurisdiction over rulemaking matters.

Representative Pelowski, who will be entering his eleventh term in January, was the Chairman of the Higher Education Finance Committee when DFLers last controlled the House in 1998.

Representative Pelowski's online biography is accessible here, and the Winona Daily News story is accessible here.

Three Helpings of Administrative Law: D.C. Circuit's Thanksgiving Platter

Before going over the hills and through the woods, for the Thanksgiving holiday, the U.S. Court of Appeals for the District of Columbia Circuit issued a collection of four opinions on Tuesday – three of which are summarized below.

Helping No. 1: Our Data Is Such a Mess – So Its Very Private
In an interesting opinion from Tuesday, a Circuit panel reversed the District Court's entry of summary judgment in favor of the Department of Justice on a set of Freedom of Information Act claims. A news organization, CEI Washington Bureau, had sought disclosure of government records relating to the federal government's payment of certain local costs for detaining illegal aliens. Granting summary judgment for DOJ, the District Court held that some identifying information on the detainees could be withheld from disclosure so as to protect the privacy of the detainees.

Reversing, and remanding for further fact-finding, the appellate panel held that the proper FOIA analysis pivoted on facts which, in this case, were still in dispute. Key to the panel's inquiry was whether the agency data on detainees was accurate – if there were high error rates in the data, some persons might be misidentified as illegal detainees, and needlessly embarrassed.
The complete opinion is available here.

Helping No. 2: Agency’s Deferral of Rate-Making Question Did Not Injure State

Another Circuit panel dismissed a challenge from the Virginia State Corporation Commission to a 2004 Order of the Federal Energy Regulatory Commission. Under the 2004 Order, FERC deferred to a day in the future the question of whether a Virginia utility – Dominion – could recover certain costs in its rates beyond July 1, 2007.

The appellate panel concluded that state officials “failed to show how FERC’s decision (or non-decision) could cause them or those they represent injury-in-fact, by materially affecting either customers’ rates or the clarity of investors’ understanding of Dominion’s financial position.” Without such a showing, the state agency was without legal standing to maintain a challenge to the agency’s order.
The complete opinion is available here.

Helping No. 3: Advocate Has Standing to Sue on Claims that Application Process for Drug Trials is Too Burdensome

In May of this year, the Food and Drug Administration sought rehearing of a ruling of the D.C. Circuit which held that a patient’s advocacy group, the Abigail Alliance for Better Access to Developmental Drugs, could sue the FDA over that agency's policies on access to clinical trials for experimental drugs. In that opinion, the panel held that the advocacy group was entitled to inquire as to whether the FDA's restrictions on participating in drug trials were “narrowly tailored to address a compelling governmental interest.”

The FDA sought rehearing of that ruling (and also rehearing en banc), raising for the first time questions as to the advocacy group's standing to sue. The appellate panel, in an opinion issued yesterday, declared that the group had standing because the worsening health of its members who could not get access to experimental drugs, was “fairly traceable” to FDA policies that restricted participation in the clinical trials.

The complete opinion is accessible here. And thanks to Howard Bashman of the blog "How Appealing," the Order granting of en banc review of this last case is accessible here.

Now that you have been overstuffed with interesting rulings, have a safe and happy Thanksgiving!

Saturday, November 18, 2006

How to Follow the Leaders

We learned today that the Eighty-Fifth Session of the Minnesota Legislature will include an entirely new slate of legislative leaders.

One good way to learn about a legislator's concerns, interests, style and status in the institution, is to review the bills that he or she has sponsored as “Chief Author.” We know them by their bills.
A list of the bills that Senator Pogemiller, the incoming Senate Majority Leader, Chief Authored during the last Session is accessible here.

A list of the bills that Senator Senjem, the incoming Senate Minority Leader, Chief Authored during the last Session is accessible here.

A list of the bills that Representative Kelliher, the incoming Speaker of the House, Chief Authored in the last Session is accessible here.

A list of the bills that Representative Seifert, the incoming House Minority Leader, Chief Authored during the last Session is accessible here.

D.C. Circuit Vacates Pipeline Rules, Says Not All Vertical Integration is Bad

In an opinion issued yesterday, a panel of the U.S. Court of Appeals for the District of Columbia Circuit vacated an order of the Federal Regulatory Commission promulgating new rules. The revised “Standards of Conduct” issued by FERC added new restrictions on the ability of pipeline companies to enter into business relationships with other firms in the natural gas industry.

A long-standing restriction now prevents natural gas pipeline companies from favoring “marketing affiliates” – those companies that are involved in the transportation of natural gas from place to place. These rules curb the “natural monopoly power” that arises out of owning a pipeline.

Yet, the appellate panel concluded that the agency did not demonstrate the harm that would befall consumers if these restrictions were not extended to “non-marketing affiliates” – including law firms, risk management experts, and commodity traders. This lack of evidence in the record undermined the reasonableness of the agency’s plan to expand the restrictions.

The opinion vacating the agency’s order, and remanding back to FERC for further consideration, is accessible here.

Friday, November 17, 2006

Federal Court Strikes Down Portion of Judicial Code, Clears Way for Judges to Respond to Interest-Group Questionnaires

On Tuesday of this week, Judge Alan Sharp of the U.S. District Court of the Northern District of Indiana issued an opinion declaring the “pledges and promises clause” of the Indiana Code of Judicial Conduct unconstitutional. The pledges and promises clause of the Indiana Code of Judicial Conduct, as in other states, bars candidates for judicial office from making “statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court.”

In this case – which extends the earlier holding of the U.S. Supreme Court in Republican Party of Minnesota v. White to a new section of state codes of judicial conduct – a key fact may have been that the Indiana disciplinary authorities had issued an advisory opinion urging judicial candidates not to make "broad statements" on "disputed legal or social issues." The authorities warned that such speech might appear that the candidates were “pledging” to decide future cases in accordance with those views.

Indiana Right to Life, Incorporated challenged the state restrictions on “pledges and promises” asserting that, with the advisory opinion from Indiana authorities in place, fewer candidates were willing to complete the group’s election year questionnaire.

The District Court held that in such circumstances “there was no principled distinction” between the restrictions on judicial candidates announcing their views (which were set aside by the U.S. Supreme Court in White) and “pledges and promises.”

Thanks to Indiana Law Blog, the complete opinion is accessible here.

Thursday, November 16, 2006

For Regulated Parties, Injury in Fact Begins with the Agency Disagreeing

On Tuesday, a panel of the United States Court of Appeals for the District of Columbia Circuit dismissed a challenge from an association of abortion providers to “freedom of conscience” provisions enacted by Congress in 2004. The association claimed that its member-clinics could not simultaneously follow both the Weldon Amendment – a measure that shields health care personnel from later discrimination if they refuse to participate in referrals for abortion services – and Title X regulations that guarantee access to abortion-related services.

Dismissing the suit, the appellate panel held that any injury in fact was of the association’s own making. The panel reasoned that because there was no evidence that the two federal requirements could not be read together, and the association had not sought the agency’s interpretation of the requirements so as to resolve any uncertainty before filing suit, the association did not have standing.

The complete opinion is accessible here.

The Young and the Restless: Minnesota’s Political Farm Team

Among the newly-elected representatives from my area is Julie Bunn; who like me, some six years earlier, vaulted from the membership of the Lake Elmo Planning Commission to the Minnesota House of Representatives.

In 2000, to me, that seemed like quite a leap indeed. Yet, upon reflection, and particularly in areas where development issues play an important role, the fact that candidates for higher office are drawn from the ranks of zoning officials is perhaps not so odd.

In Lake Elmo, where the struggles over the pace of local development are legendary, six of the candidates on this year’s ballot, and all four of the candidates for City Council, were current or former members of our Planning Commission.

Also noteworthy is that in her new assignment, Representative-Elect Bunn will hardly be alone. Among the planning commission alumni, from various communities, that will join her at the State Capitol in January, are: State Senator Terri Bonhoff, State Senator-Elect Ray Vandeveer, State Representative Debra Hillstrom, State Representative Tim Mahoney and Governor Tim Pawlenty. Clearly, the linkages between zoning and leadership are a bi-partisan affair.

Memo to Incumbents of All Parties: Keep your friends close, and your Planning Commissioners even closer.

Wednesday, November 15, 2006

An Ethical Trap for the Unwary?

Today's Hypothetical: You are a lawyer in private practice, representing a developer who is seeking approval of a Planned Unit Development proposal from the City Council of Coon Rapids, Minnesota. In preparation for your presentation to the Council, you have billed your client for 20 hours of work at your customary rate of $200 per hour. Coon Rapids, Minnesota has a population of more than 64,000 residents. Are you a “lobbyist” and is your developer-client a “lobbyist-principal”?

Jeanne Olson, Executive Director of the Campaign Finance and Public Disclosure Board, suggested to a CLE audience this morning that the answer to these questions may be “Yes.”

As Director Olson noted, Chapter 10A of Minnesota Statutes has broad definitions of both the term “lobbyists” and “metropolitan governmental unit” – and could reach activities that are far from the halls of the State Capitol. “Lobbyists” include those who receive more than $3,000 for “attempting to influence legislative or administrative action, or the official action of a metropolitan governmental unit,” and “metropolitan governmental unit” includes cities with a population of greater 50,000.

The implications for lawyers and clients with business before government officials could be profound. Some examples of state-imposed restrictions on lobbyists include:

(a) registration and reporting requirements;

(b) restrictions on gifts to “public officials;”

(c) restrictions on contributions to candidates during the legislative session;

(d) requirements that lobbyists note their registration numbers on donations made to certain candidate committees; and,

(e) special aggregation rules for the contributions to candidate committees from lobbyists.

Tuesday, November 14, 2006

Biting Comments: Hearing Officer’s Anecdote Inappropriate, But Not Evidence of Bias

In an unpublished decision today, a panel of the Minnesota Court of Appeals turned away the challenge of a Saint Paul woman to a local hearing officer’s determination that the woman’s dog was a dangerous animal.

The dog owner claimed, in part, that the hearing officer was biased against large dogs in general, following an incident involving the hearing officer’s own pet. Commenting on evidence as to the effects on smaller animals of bites from larger dogs, the hearing officer recounted the impact upon his own pet in a similar circumstance.

While the panel noted that the “hearing officer’s comment based on his personal experience was inappropriate … without further evidence of bias, we cannot conclude that the hearing officer’s comment overcomes the presumption of administrative regularity.”

The complete opinion is accessible here.

Can He Really Say That?

During the last full week of October, Judge John Jones, of the U.S. District Court for the Middle District of Pennsylvania, addressed the students and faculty of Widener University School of Law.

In a surprisingly blunt set of remarks, Judge Jones’ touched upon a wide variety of topics, including: the punditry and public comment that followed his decision (in Kitzmiller v. Dover Area School District) as to constitutionality of “intelligent design” curricula; the connections between charges of “judicial activism” and later violence against judges; and general public literacy as to the role of the federal courts.

Thanks to C-SPAN’s America and the Courts series, this must-see TV is accessible here.

Monday, November 13, 2006

Sixth Circuit Sets Aside Bar to Multiple Judicial Bypass Requests

In a published opinion issued this morning, a panel of the U.S. Court of Appeals for the Sixth Circuit has struck down an Ohio law that limited minors seeking an abortion without notifying either parent, to one judicial bypass petition for each pregnancy. The panel held that the state bar to subsequent filings from a minor whose earlier authorization request was not approved, amounted to an undue burden on the rights of the affected minors.

Particularly interesting was the panel's discussion of the "large fraction test," and the legal requirements for parties that mount facial challenges to abortion regulations.

The complete opinion is accessible here.

Short Profiles of Newly-Elected State Legislators Now Available

More than a quarter of the state legislators that were elected last Tuesday will be arriving in their respective legislative chambers for their first terms in January.

There are 35 new arrivals in the Minnesota House of Representatives and 18 new members of the Minnesota Senate.

And, as the old saying goes, “you can’t tell the players without a program.” So, links to short profiles of members who will be a part of the Eighty-Fifth Session of the Minnesota Senate are accessible here; and profiles of the House Members are accessible here.

Sunday, November 12, 2006

Affirmative Action Ban Challenged in District Court

On Tuesday – by a vote margin of 58 percent in favor, to 42 percent opposed – voters in Michigan approved a change to that state's constitution which prohibits racial, gender and ethnic preferences in public university admissions and government hiring. Michigan’s measure was a response to a 2003 ruling of the U.S. Supreme Court which upheld the use of racial preferences in admissions to the University of Michigan law school.

On Wednesday, the advocacy group By Any Means Necessary filed suit in the U.S. District Court for the Eastern District of Michigan seeking to block the amendment, which would otherwise go into effect on December 22. BAMN asserted that the new addition to the Michigan Constitution violated various federally-enacted Civil Rights Acts. Argued the plaintiffs: “In the absence of affirmative action, state actors will be prohibited from utilizing the only effective policies ever designed to desegregate universities, employment and public contracting. No state constitution can prohibit its state bodies from fulfilling the federal mandate to desegregate.”

Thanks to the Detroit Free Press a complete copy of the BAMN Complaint is accessible here.

Saturday, November 11, 2006

Just Because the Agency is Late, Doesn’t Mean that You Can Be Late Too

On Monday, a panel of the U.S. Court of Appeals for the Federal Circuit issued an interesting published opinion on agency compliance with its own procedural rules.

Under the Continued Dumping and Subsidy Offset Act, the U.S. Customs and Border Protection Service distributes the proceeds of assessed duties that it levies against foreign concerns that violate our antidumping laws. In any fiscal year that there are proceeds to be distributed, the Customs Service is required to publish a notice in the Federal Register at least 90 days before the close of the fiscal year. Following the published notice, affected domestic companies have 60 days to submit an application for a distribution from the fund.

In 2003, the Customs Service published a notice that proceeds from assessed duties were available for distribution 78 days before the close of the fiscal year – or 12 days over the regulatory deadline. Dixon Ticonderoga Company, a domestic pencil manufacturer, filed a claim to share in the distributions 102 days after the published notice – some 42 days late.

Reversing a contrary decision of the Court of International Trade below, the appellate panel held that the failure by the Customs Service to timely publish a notice did not confer upon Dixon the right to untimely file its claims, particularly where the manufacturer did not show that the agency’s delay in publishing prejudiced its ability to file.

The complete opinion is accessible here.

Friday, November 10, 2006

The Reach of the Watershed District: Is Ditch Work “Cleaning” or “Unblocking”?

On Tuesday, the Minnesota Court of Appeals reversed a District Court’s decision to deny an injunction to a Clay County man, who had been ordered by Watershed District officials to remove soil and silt that had accumulated in a ditch that ran along the man’s property. The property owner, A.R. Minch, argued that the directive to clean out the ditch was beyond the Watershed’s authority to order.

Agreeing in part, and remanding to the District Court for further proceedings, the Court of Appeals held that the Watershed’s authority was limited to orders to remove “obstructions.” Whether or not the silt in the ditch qualified as an “obstruction,” would require additional fact-finding to determine.

The complete opinion is accessible here.

On Election Eve, the Minnesota Supreme Court was Busy with Election Matters

Monday was a busy day for the Minnesota Supreme Court, as it focused upon matters relating to Tuesday’s election and the earlier 2004 general election.

With respect to Tuesday’s balloting, the Court turned away a request (filed at 4:30 in the afternoon on the Friday before the election), for an order directing the Minnesota Secretary of State to correct certain voting-related information on her office’s website. Hinting that the errors in the website were known well before the petition’s filing, the Court dismissed the petition on the grounds of laches.

Also on Monday, the court had an occasion to consider claims arising out of the 2004 race between Mark Kennedy and Patty Wetterling, in the Sixth Congressional District of Minnesota. Luke Otterstad and Robert Rudick were convicted for violating Anoka’s public nuisance ordinance for having, on two occasions, held up a large photo image of an aborted fetus and a message declaring that “Patty Wetterling Is Proabortion” on an overpass that straddled Highway 10.

The 2005 Court of Appeals decision affirming the duo’s convictions is accessible here.

Monday’s oral argument, and the Court’s consideration of the defendants’ First Amendment claims, is accessible here.

Wednesday, November 08, 2006

Law Clerk Bests His Former Boss for Judgeship

The Minnesota Secretary of State's website is reporting that Ninth District Court Judge Terrance C. Holter has been defeated for re-election by his former law clerk, John Melbye, by more than 1500 votes.

The Bemidji Pioneer's earlier description of what it called "an odd match-up" is accessible here.

Sunday, November 05, 2006

Government Data for the Goose, May Not be for the Gander

On Wednesday, a divided Minnesota Supreme Court issued an interesting opinion regarding access to sensitive business information that is held by government agencies. At issue in the case was the correct taxable valuation of the US Bancorp building on Nicollet Mall in Minneapolis. The building owner, in preparation for trial, sought discovery of appraisal information held by the County Assessor’s office relating to 20 other commercial properties in downtown Minneapolis.

A majority of the Minnesota Supreme Court affirmed the Tax Court’s denial of the request, reasoning that the prejudice to the other property owners outweighed the potential benefits of disclosure to the taxpayer challenging the County’s assessment. The Court however did agree, as did the Tax Court below, that the specific data relied upon by the County Assessor could be disclosed to the taxpayer under a protective order.

In dissent, Justices Hanson and Page argued that the more limited disclosures were not sufficient. As the dissenters reasoned, disclosure of only those government records that were included in the Assessor’s analysis presumably permitted the County to avoid accounting for contradictory tax data and the risk that any selective omissions would be highlighted during cross-examination.

The complete opinion is accessible here.

Friday, November 03, 2006

Following the Election, High Court Hears Argument in Abortion Cases

While the rest of the nation will be sorting out the election results from the evening before, on Wednesday, November 8th the U.S. Supreme Court will be turning its attention to the constitutionality of the federal ban on partial-birth abortions.

The Partial-Birth Abortion Ban Act of 2003 prohibits a physician from performing a “partial-birth abortion” in, or affecting, interstate commerce. The Act contains an exception to the ban in cases in which the abortion was necessary to preserve the life of the mother. However, following a determination that “partial-birth abortion is never medically indicated to preserve the health of the mother,” Congress declined to include an exception to its ban for cases in which the health of the mother would be at risk by carrying the pregnancy to term.

The question presented in the consolidated cases from the Eighth and Ninth Circuits is "whether, notwithstanding Congress's determination that a health exception was unnecessary to preserve the health of the mother, the Partial-Birth Abortion Ban Act of 2003 is invalid because it lacks a health exception or is otherwise unconstitutional on its face."

The decision below from the U.S. Court of Appeals for the Eighth Circuit is accessible here. The decision below from the U.S. Court of Appeals for the Ninth Circuit is accessible here.

These cases present some of the contentions that the U.S. Supreme Court did not reach last term, because of procedural issues, in Ayotte v. Planned Parenthood of Northern New England.

Because of the wide-spread in interest in the cases, the Court announced yesterday that it will make audio tapes of the proceedings available “as soon as possible following the conclusion of each of the oral arguments.”

Fulfill FOIA Format Requests – Even Ironic Ones

My grandmother was fond of remarking: “Be careful what you wish for, because you will surely get it.” That aphorism could certainly apply to a decision issued this morning from the U.S. Court of Appeals for the District of Columbia Circuit.

A federal prisoner, Brandon Sample, made a request for a large amount of documents under the Freedom of Information Act to the agency that held him in custody, the Federal Bureau of Prisons. Sample requested that the requested documents be provided to him in an electronic format and that he be provided with computer equipment necessary to review the agency disclosures.

Noting that prison rules did not permit Sample to access computer equipment, the Bureau of Prisons provided Sample with paper copies of the requested documents. When Sample later sued over the failure to provide him with copies of items in the requested format, the District Court granted summary judgment to the government on Sample’s FOIA claims.

Reversing, the appellate panel held that the Bureau’s considerations of Sample’s ability to ultimately access the documents was improper; the request for electronic versions of documents was required under FOIA even if other rules prevented Sample from accessing the material.

The complete opinion is accessible here.

Thursday, November 02, 2006

Minnesota Supreme Court Schedules the Big Sex Offender Cases for Late November

The Minnesota Supreme Court has announced that oral argument, in what are perhaps the three biggest cases involving sex offenders this year, will be had on successive days in late November.

November 27 - State v. Cannady: Minnesota's child pornography prohibitions permit an "affirmative defense to a charge of violating this section that the pornographic work was produced using only persons who were 18 years or older.”

As part of his defense at trial, on charges that he possessed child pornography, Scott Edward Cannady asserted that the persons in the images on his computer were not minors. During the appeal of his later conviction, he challenged the constitutionality of the child pornography statute on the grounds that the law impermissibly shifted the burden of persuasion on an element of the crime – namely whether the person in the prohibited image was a minor – to the accused.

The Court of Appeals decision rejecting this argument is accessible here.

November 28 - State v. Johnson and State v. Henderson: In these consolidated cases, the Minnesota Supreme Court will explore whether and when the fraction of a determinate sentence that a sex offender spends in state prison, can be adjusted if the offender refuses to participate in prison-based sex offender treatment. In Minnesota, offenders with determinate sentences typically spend two-thirds of their pronounced sentence in state prison, and the last one-third of that sentence under supervision in the community. Following both Johnson's and Henderson's refusal to participate in prison-based sex offender treatment, the Commissioner of Corrections disciplined them by adjusting outward by 45 days the date on which they would have otherwise been released for supervision in the community. The offenders complained that because, in Minnesota, participation in sex offender treatment requires inmates to discuss their underlying offense, the right against self-incrimination prohibits the imposition of sanctions for their refusal to discuss their prior crimes.

The Court of Appeals decisions accepting these arguments in part are accessible here and here.

You’re Only a Whistleblower if You’re Believable

Yesterday, a panel of the U.S. Court of Appeals for Eighth Circuit turned away a Minnesota man’s claim that he was discharged from his executive position with a local telephone company in retaliation for his disclosure to the company’s board of directors that its mileage reimbursement practices violated federal tax laws.

Affirming the earlier entry of summary judgment by U.S District Court Judge Michael Davis, the panel held that the plaintiff’s announcement of his concerns to the Board on the very day that Board members told him that he was under investigation for misconduct, did not transform plaintiff’s later dismissal into retaliation for “whistleblowing.” As Circuit Judge Arnold noted, summary judgment for the employer was appropriate because “[we] believe that no reasonable person could conclude on this record that Mr. Freeman's report to the board about its mileage policy was causally related to the decision to fire him.”

The complete opinion is accessible here.