Within the Scope

Blogging on Administrative Law and the Public Sector

Friday, December 29, 2006

The Route to Winona is Key to DM&E Case

A unanimous panel of the United States Court of Appeals for the Eighth Circuit yesterday affirmed a decision of the Surface Transportation Board approving the upgrade and expansion of the DM&E rail line from South Dakota, due east, through Rochester, Minnesota. The proposed expansion has been controversial, in part, because the route runs adjacent to the health care campus of the Mayo Clinic.

While the Eighth Circuit had earlier remanded the plan back to the Board, yesterday it affirmed the agency’s approval of the plan against challenges from the City of Rochester, the Sierra Club and the Mid States Coalition for Progress.

Among the most interesting features of the panel’s analysis was the conclusion that, in order to avoid a finding of capriciousness, the Board did not need to consider alternative rail routes that undermined the essential purpose of the project. Because a key purpose to be achieved by the upgrades was a new, efficient link to the rail terminal in Winona, a circuitous path through Owatonna (that avoided Rochester), was not an alternative that the Board needed to consider in detail.

The complete opinion is accessible here.

Wednesday, December 27, 2006

Actually, Timing Isn’t Everything

Last week, the Minnesota Supreme Court issued an interesting opinion on the obligation of local zoning authorities to promptly process permit applications. Under state law, “an agency must approve or deny within 60 days a written request … for a permit, license, or other governmental approval of an action … [and that failure] of an agency to deny a request within 60 days is approval of the request.”

Appellant, Richard Breza poured fill into wetlands he owned abutting Lake Minnetonka, filling in more than a 5,000 square foot area. He later applied for an exemption from regulations prohibiting the filling of such wetlands – a request that local authorities did not later deny for more than a year.

While Breza prevailed before the District Court, winning an order directing local authorities to approve the exemption, the Minnesota Court of Appeals reversed. The Court of Appeals held that notwithstanding the city’s tardiness in rejecting the application, the exemption was beyond the city’s legal authority to grant.

Agreeing, a unanimous Supreme Court held that the 60 day time lines did not substantively expand the city’s authority, allowing it to approve, by default, a permit application it had no ordinary authority to grant in the first instance.

The complete opinion is accessible here.

House Announces Committee Line-Up

The Minnesota House of Representatives has announced the complement of committee assignments for the 2007-2008 Legislative Session.

The six-page roster is an interesting read – not only for where long-time House leaders have decided to spend their committee time; but also in where some of the smaller portfolios (such as Veterans Affairs, Telecommunications, Energy, Workforce Development, etc) have been realigned within new jurisdictional lines.

The complete roster is accessible here.

Tuesday, December 26, 2006

BCRA Opinion is a Wonderful Holiday Loaf

A special three-judge panel of the District Court of the District of Columbia, established by Congress to hear challenges to the Bi-Partisan Campaign Reform Act ("BCRA," also known as the "McCain-Feingold law"), has left election lawyers a savory gift this season: A wonderful “holiday loaf” of an opinion in the case of Wisconsin Right to Life v. FEC. “Holiday loaf” is the right analogy – as this writing is a densely-packed treat, which reveals rich morsels with every successive bite.

The case centers on a set of advertisements relating to the filibuster of President Bush's judicial nominees, that WRTL wished to air during the BCRA “blackout periods” before the federal primary election and general election in 2004. The advertisements were subject to federal regulation under the BCRA because they were to be aired in Wisconsin, and they mentioned U.S. Senator Russ Feingold, a candidate for election to the United States Senate from Wisconsin in 2004.

The majority of the panel held that WRTL was entitled to summary judgment on its claims that these advertisements were “pure issue ads” (unrelated to electioneering for or against Senator Feingold) and therefore the BCRA was unconstitutional as-applied to these communications. Further, the panel majority announced a six-factor test for courts to employ when assessing whether a given advertisement had an electioneering purpose.

The panel splintered over the question of whether this, or a future panel, should move beyond the four corners of the text and images of the advertisement when determining whether it had an electioneering purpose. Judge Richard Roberts, in dissent, rebuked the panel majority for its "facial analysis" of the advertisement in the context of an as-applied challenge. He asserted that such an analysis excluded other, relevant expressions of WRTL's intent to defeat Senator Feingold in Wisconsin’s 2004 balloting.

The opinion, that is sure to have its readers thinking about a wide-range of issues well into the New Year, is accessible here.

Friday, December 22, 2006

Lurid Details, But Interesting Analysis on Associational Standing

While it is not precisely the holiday theme one would want to sound at this time of year, the U.S. Court of Appeals for the Ninth Circuit issued a noteworthy opinion today regarding the legal standing needed to challenge a city ordinance.

Fleck and Associates, a Phoenix-based business, operated a club for gay men where club members could consort with each other -- in every sense of that word. Enforcing a 1998 ordinance which prohibited establishments “in which one or more persons may view, or may participate in, a live sex act for a consideration,” Phoenix police raided the Fleck club.

The corporate owner of the club later sued in Federal District Court asserting that the city ordinance unconstitutionally limited the privacy interests of its member-customers.

Declaring that the club owner could not assert the liberty interests of its member-customers, and that it did not have standing to challenge the ordinance either in its own right or on their behalf, the appellate panel distinguished Fleck's club and other member associations. The panel reasoned that because the principal object of the Fleck’s club's was profit, and not to “express the collective views and protect the collective interests” of their members, “the putative privacy interests of its customers ... [were] clearly not germane to the purpose of the organization.”

The complete opinion is accessible here.

Thursday, December 21, 2006

Fourth Circuit Rejects Governor's Immunity Claim in Regulatory Threat Case

Yesterday, the United States Court of Appeals for the Fourth Circuit issued an interesting opinion, affirming a lower court's rejection of the qualified immunity defense by Joe Manchin III, the Governor of West Virginia.

The case arises out of a special election campaign in June of 2005, in which the voters of West Virginia were called upon to approve the sale of over five billion dollars worth of state general obligation bonds. The proceeds from the bond measure were slated to fund shortfalls in public employee pension and disability plans.

Governor Manchin supported the bond measure; whereas Don Blakenship, the President of Massey Energy, the largest coal company in West Virginia, opposed the measure. Further, while Machin toured the state to promote the initiative, Blankenship “began to publicize his opposition through interviews and the financing of television, radio, and direct-mail advertising.” According to Blankenship's later complaint, a little more than a week before the special election, Governor Manchin remarked at a press conference that additional scrutiny of Massey Energy was “justified” because Blankenship was participating in the debate on the bond campaign and “with his personal wealth, trying to direct public policy.”

Blakenship later sued the Governor for civil rights violations.

Affirming the District Court's conclusions that the complaint adequately alleged threats suggesting imminent adverse regulatory action, and that those threats violated a clearly established right, the panel held that Governor Manchin was not immune from suit. The panel remarked: “Unlike a statement of opinion, the Governor’s remarks went beyond reflecting his own views and intent ... The 'tougher scrutiny' of his business affairs that Manchin said Blankenship should expect and that would be 'justified,' intimated that Massey would receive more scrutiny from state regulators than other, similarly situated companies."

The complete opinion is accessible here.

Tuesday, December 19, 2006

Medical Assistance (Like Partisanship) Stops at the Waters Edge

In an interesting published opinion issued today, a unanimous panel of the Minnesota Court of Appeals affirmed the denial of certain residential habilitation benefits by the Minnesota Department of Human Services (DHS).

The denial was challenged by Shaina Shagalow, a young Orthodox Jewish woman, who asserted that the agency’s refusal to pay for her receipt of residential habilitation services from a facility in Jerusalem, Israel was arbitrary; burdened her free exercise of religion; and discriminated against her on account of her disability.

While the panel agreed that there were few residential facilities where an Orthodox woman could receive habilitation services and that were also “compatible” with her Orthodox Jewish faith, it nonetheless affirmed the District Court decision denying coverage. As the panel noted, Jerusalem is a long way away from the DHS Central Office in Saint Paul: “DHS’s decision not to fund services in Jerusalem is based on its obligation to monitor the quality of waiver services, to ensure services are provided in a safe and healthy environment, and to investigate reports related to the vulnerability of recipients or misuse of public funds.”

The complete opinion, which includes perorations on a wide variety of subjects, is accessible here.

Sunday, December 17, 2006

Confession and the Political Soul

The Federal Elections Commission has proposed rules that would permit it to reduce administrative penalties (by between 50 and 75 percent), and to issue more generous findings, for those candidates and committees that alert the agency to “statutory or regulatory violations of which the Commission had no prior knowledge.”

In its introduction to the proposed policy, the FEC notes that it has seen a general increase in the number of self-reports of regulatory violations and the Commission wants to see even more. Writes the FEC: “[T]he Commission seeks to provide appropriate incentives for this demonstration of cooperation and responsibility.”

The complete draft statement of policy and request for comments is accessible here.

Friday, December 15, 2006

D.C. Circuit Sustains “Aggressive” Internet 911 Order

In an opinion issued today, a unanimous panel of the U.S. Court of Appeals for the District of Columbia Circuit sustained a July 2005 Order of the Federal Communications Commission. The Order directed providers of Voice over Internet Protocol services (VoIP) to meet certain requirements for providing 911 capabilities – and do so within 120 days of the issuance of the agency’s Order.

Several companies that use VoIP technology to provide telephone service through the Internet, chafed under the directive. Not only did the Order set demanding time frames within which the VoIP companies would need to provide new 911 capabilities (similar to those that are available to traditional telephone users), the Order further directed VoIP companies to notify their customers as to the circumstances under which 911 service “may not be available ….”

Rejecting the challenge to the Order, and finding that the Commission “considered the relevant factors and articulated a reason basis for its conclusion,” the appellate panel declared: “[T]he Commission has weighed the cost of an ‘aggressive’ implementation scheme – a 120 day deadline – against the cost in human lives, and found in favor of public safety.”

The complete opinion is accessible here.

Thursday, December 14, 2006

Even if the Clerk Prefers PDF Files, the Judges Want Paper

The U.S. District Court for the District of Minnesota announced this morning that notwithstanding its ordinary rules on the electronic submission of documents that are filed with the Court, the presiding Judge (and presumably the Judge's staff) still hopes for paper copies of motion papers and responsive briefs.

Accordingly, as the Court announced this morning, it is changing its rules: “When an attorney files motions, responses, or reply briefs on [the Court's Electronic Case Filing system], they must provide the paper copies of these documents to the Judge or Magistrate Judge hearing the motion. The paper copies should be mailed or delivered in an envelope addressed to the Judge’s calendar clerk contemporaneously with the documents being posted on [the Electronic Case Filing system].”

The complete announcement is accessible here, and general information about the Electronic Case Filing system in Minnesota is accessible here.

Wednesday, December 13, 2006

The Thin Line Between Contract Defenses and Tort Counterclaims

In an interesting opinion on governmental immunity issued yesterday, a panel of the Minnesota Court of Appeals held that a local real estate development company could not sue the Minneapolis Community Development Agency, in tort, for fraudulent misrepresentations, but that these same allegations might form the basis of a legitimate defense to claims for recovery by the MCDA against the developer.

In 1999, a Minneapolis developer entered an agreement with the Minneapolis Community Development Agency. The agreement provided that the developer would finance the construction of a certain parking lot in the Warehouse District of Minneapolis; the MCDA would later purchase the lot with proceeds from parking revenue bonds; and that, in the event that the parking lot receipts were not sufficient to pay the annual debt service on the revenue bonds, the developer would pay the shortfall. When the hoped-for parking receipts did not materialize, the MCDA demanded payment of the shortfalls by the developer, which the developer refused to pay. The MCDA sued the developer for breach of contract and the developer counterclaimed against the agency, in tort, for fraudulent misrepresentation. The developer asserted that officials of the MCDA knew, at the time that the agency entered the contract, that the parking receipts would not be sufficient to pay the debt service on the bonds, and yet provided the developer with financial projections suggesting that the plan was viable.

Reversing the District Court’s decision denying the MCDA summary judgment on the developer’s counterclaims, the appellate panel held that both statutory and official immunity barred these counterclaims. The underlying allegations of MCDA misconduct, however, would survive summary judgment and might provide a viable defense, in contract, to the recovery sought by the agency.

The complete opinion is accessible here.

Tuesday, December 12, 2006

It’s Good to Be King

Yesterday was an Administrative Law day at the High Court, as the U.S. Supreme Court released its opinion in BP America Production Co. v. Burton. This case involved the enforceability of certain administrative orders of the Department of Interior, against BP America; orders which demanded additional royalty payments under oil and gas leases that the petroleum company had with the U.S Government. Central to BP America’s defense against making the payments was that the order was a “claim for money damages” that was barred by the ordinary six year statute of limitations on government claims.

Rejecting this defense, and affirming lower court decisions in favor of the Government, the Court held that Congress did not intend to apply the six year statute of limitations to administrative orders under the Federal Oil and Gas Royalty Simplification and Fairness Act. Further, the Justices noted that statutes by which the sovereign limits its own rights of recovery are to be construed narrowly, against government forfeitures. Remarked Justice Alito, for all of the Justices who participated in this case, “[t]his canon is rooted in the traditional rule quod nullum tempus occurrit regi—time does not run against the King.“

The complete opinion is accessible here, and the briefs filed in the case are accessible here.

Thursday, December 07, 2006

Minnesota Senate Announces New Committees

The Minnesota Senate has announced the proposed Committee structure for the 85th Legislative Session.

Among the most interesting features of the revised organizational structure is that it collapses the current complement of 11 policy committees, to 8 standing committees, and expands the number of Budget Divisions of the Senate Finance Committee from the current complement of 8 Divisions, to 10, with 2 new Budget Subdivisions.

For a complete view of the changes, a copy of the Senate's (current) 2005-2006 committee structure is accessible here, and a copy of the proposed Senate committee structure is accessible here.

Tuesday, December 05, 2006

A Listing of All the Ways that Crime Does Not Pay

In 2005, the Minnesota Legislature directed the Revisor of Statutes to create a new chapter of law which included a listing of, and cross-references to, the “collateral sanctions” that follow a criminal conviction. These sanctions – which number more than 200 separate prohibitions scattered throughout our state code – place restrictions on a wide range of post-conviction activity. For example, included among our state’s collateral consequences are post-conviction restrictions on voting, holding certain jobs, participation in recreational activities -- and even handling seed potatoes.

The Revisor’s listing – Chapter 609B – is now online, and accessible here. A handy court-sized pamphlet version of this list will apparently make its debut later this month.

Minnesota Supreme Court Sets Hearing on Judicial Records Report

By way of an Order issued yesterday, the Minnesota Supreme Court announced that it will conduct a hearing on the recently issued Report of the Supreme Court Advisory Committee on the Rules of Public Access to Records of the Judicial Branch.

The hearing will be held in Courtroom 300 of the Minnesota Judicial Center, on January 24, 2007 at 2:00 p.m.

The Advisory Committee Report (including an interesting Minority Report in which the State Court Administrator joins) is accessible here.