Within the Scope

Blogging on Administrative Law and the Public Sector

Wednesday, February 28, 2007

Neuville, Smith and Paymar Remark on Bi-Partisanship as to Public Safety Issues

Braving the first snows of another winter storm blast, key members of the public safety committees at the Capitol took time to address the Criminal Law Section of the state bar association. In remarks at an evening reception at the Lexington Restaurant in Saint Paul, State Senator Tom Neuville, State Representative Michael Paymar and State Representative Steve Smith all sounded themes of bi-partisan and bi-cameral cooperation on public safety issues. As Senator Neuville, Ranking Minority Member of the Senate Public Safety Budget Division summarized: “I think we are working well together as a committee, and with the other body, and frankly, we are taking a serious look at a lot of issues that we wouldn't have looked at in the past.”

Billed as a review of the “Big Reports,” the legislators' remarks came as a follow-up to presentations on special public safety-related reports that have submitted to the Minnesota Legislature in early 2007. Among the previews made were Patricia Alfredson and Brock Hunter's summary of the report on collateral consequences to sentencing, Michele Timmons' overview of the draft Model Uniform Law on Collateral Sanctions, and Dan Storkamp's outline of the evaluation reports of Felony DWI Offenders, the Challenge Incarceration Program and the Working Group on Sex Offender Management.

Monday, February 26, 2007

Eighth Circuit Announces Test for Regulatory Retaliation Claims

Today, brings an interesting published opinion from the U.S. Court of Appeals for the Eighth Circuit, in a case drawn from Minnesota.

The case of Osborn v. Grussing involved a claim of regulatory retaliation by officials in Rice County. Plaintiffs, Messrs. Osborn and Sammon, were critics of Rice County zoning officials. They complained as to what they perceived as lax zoning enforcement regarding a development spearheaded by area developers, Messrs. Anderson and Wenstrom.

Later, so as to call attention to Osborn and Sammon’s compliance with zoning ordinances, Anderson and Wenstrom filed a complaint with zoning authorities as to the claimed non-compliance of the Osborn and Sammon properties with the local shoreline ordinance.

When zoning authorities took action so as to bring the Osborn and Sammon properties into compliance with the ordinance, plaintiffs filed a civil rights claim.

The U.S. District Court for the District of Minnesota granted of summary judgment in favor of the County officials and that judgment was affirmed by the appellate panel. As the panel summarized, “a plaintiff who seeks relief from valid adverse regulatory action on the ground that it was unconstitutional retaliation for First Amendment-protected speech must [show] that he has been singled out for prosecution while others similarly situated have not been prosecuted for conduct similar to that for which he was prosecuted and that the government’s discriminatory selection of him for prosecution was based upon . . . his exercise of his first amendment right to free speech.”

The complete opinion is accessible here.

Sunday, February 25, 2007

Use of FTC Labels Shield State Deceptive Practice Claims

While it was handed down on Valentine's Day this year, the U.S. Court of Appeals for the Fifth Circuit did not make the following opinion online until this past Thursday. At issue in the case of Brown v. Brown and Williamson Tobacco Corporation was whether plaintiff-smokers could proceed with state law deceptive practice claims against tobacco companies that marketed "light" cigarettes, on the grounds that “light” cigarettes did not, in fact, have health benefits over other types of tobacco products.

Reversing a contrary District Court decision, a panel of the Fifth Circuit held that state law deceptive practice claims could not lie in those instances where the cigarette manufacturer had labeled its products in accordance with the Federal Labeling Act. As to the manufacturers’ use of the term "light" when marketing certain cigarettes, the panel concluded that “the use of FTC-approved descriptors cannot constitute fraud.”

The complete opinion is accessible here.

Friday, February 23, 2007

Work to Eliminate Bias (and Your Hunger)

On Wednesday morning, I am part of a panel discussion that will address ways to eliminate language or other barriers for witnesses in administrative hearings.

If you are looking for affordably-priced Elimination of Bias CLE credits, or a real deal on the best breakfast buffet in Saint Paul, this is a not-to-miss event!

Registration details are accessible here.

Wednesday, February 21, 2007

Hopper Watch: Wednesday

Senate File 1101 – Senator Skoe’s New Rulemaking Delegation and Streamlined Environmental Review for Smaller Biofuel Producers (accessible here).

Senate File 1120 – Senator Betzold's Reestablishment of the Parole Board for Release and Supervision of Certain Offenders (accessible here).

Saturday, February 17, 2007

Romeo, Romeo: Are You a Predator?

Among the most interesting debates that will occur during this year’s session of the Minnesota Legislature, is a perennial one; namely, should Minnesota adjust its sex offender registry laws so as to provide exceptions for cases in which there is non-forcible sexual contact with a minor, by a perpetrator who is close in age to the victim?

Stated more simply: Is Romeo Montague a predator, who should register as a sex offender, because he stayed the night with a 15-year old Juliet Capulet?

Teams in the Senate and House this week introduced bills that would relax the state’s regime of sex offender registration for younger offenders (accessible here and here).

The quintessential example of how registration data is used is the Dru Sjodin case. Shortly after it was suspected that Ms. Sjodin was abducted, law enforcement officials queried the BCA registry as to local sex offenders – and, quite literally, Alfonso Rodriguez, Jr. was at the top of this list. Because the registry was a robust “pointer” for investigators, the Sjodin case quickly focused on Mr. Rodriguez.

The debate of over registration exceptions for younger offenders is a difficult and recurring one; principally because the key stakeholders see the world from very different perspectives. The Bureau of Criminal Apprehension, for example, views the sex offender registry (which it operates), from a “macro” system-wide perspective. It hopes to maintain a robust registry, with clear and uniform procedures, so as to effectively draw court-related data from every county in the state. From this macro perspective, BCA officials worry that individualized exceptions to the registry requirements will degrade the effectiveness of the state’s registry as a source of leads in future investigations.

At the opposite pole, from a “micro” perspective, are equally passionate prosecutors who balk at the prospect of insisting that teenage boys who have had sex with a minor peer, register as “predatory offenders.” These prosecutors argue that as to many of the individuals who appear in local courthouses, a 10-year registry requirement is debilitating, stigmatizing and disproportionate to the underlying misconduct.

The gulf between the macro perspective and the micro perspective is very large indeed.

A key stumbling block to compromise are differences over who should bear the burden of any over-breadth in the sex offender registry. Implicit in the agency’s argument is that if an otherwise repentent Romeo Montague is obliged to register, so as to have requirements that will reach offenders who begin to commit crimes as juveniles, and continue to re-offend, the burdens of registration on Romeo are justified. As BCA officials explain, many dangerous offenders have sex offense histories that began when the offenders were teenagers. For their part, the prosecutors urging changes explain that the current system already contains ad hoc exceptions to registration – they are informally created by judges who blanche at the registry requirements and who dispose of cases so as to not trigger a later registration.

So, what light through yonder window breaks? It is an important debate.

Key Establishment Clause Case Argued, Good Lunch-Hour Listening

On Tuesday of this past week, a special panel of the U.S Court of Appeals for the Eighth Circuit considered the appeal of Prison Fellowship Ministries. The appeal arises out of an establishment clause challenge to the Ministries' program in an Iowa prison – the InnerChange Freedom Initiative, or IFI.

In June of 2006, Judge Robert Pratt of the United States District Court for the Southern District of Iowa ruled that the IFI program represented an unconstitutional violation of the Establishment Clause. Determining that the prison rehabilitation program was "pervasively sectarian," Judge Pratt ordered Prison Fellowship Ministries to repay the State of Iowa the $1.5 million which IFI received for services over the course of the last six years. Most of the panel's questioning, including that from retired U.S. Supreme Court Justice Sandra Day O'Connor, who was sitting on the panel by designation, focused on this feature of Judge Pratt's order.

An audio clip of the hour-long argument is accessible here.

Wednesday, February 14, 2007

Campaign Disclaimer Bill Moves to House Floor

A divided House Committee on Governmental Operations has approved House File 403; a measure that would forbid registered a political committee which acts in coordination with a candidate, from disseminating campaign material anonymously.

The legislation responds, in part, to the decision of the Minnesota Court of Appeals last year in Riley v. Jankowski – which invalidated Minnesota's earlier (and much broader) disclaimer requirements.

H.F. 403 would presumably oblige candidate committees and their affiliates to identify themselves when disseminating campaign literature.

The Committee discussion is accessible here.

Monday, February 12, 2007

Yours, Mines and Hours: D.C. Circuit Opinion is Worth the Time

This past weekend I had a lengthy layover before boarding a flight home to Minnesota. It was the perfect time for an extra large cappuccino, and some time with Circuit Judge Sentelle’s opinion in Kennecott Greens Creek Mining Company – which was handed down on Friday.

Even for those of us who won’t come any closer to a mining operation than watching Charlize Theron in North Country, Judge Sentelle’s writing is worth a read. At issue in Kennecott Greens was whether upgraded standards issued by the Mine Safety and Health Administration were lawfully promulgated. The mining company made a number of challenges to the new rules, which regulated the amount of particulate matter that could be emitted in the exhaust of diesel engines which operate in a mine. Dispatching each of these challenges, and upholding the new rules, the appellate panel addressed:

· The sufficiency of the agency’s links between the elements of diesel exhaust and later health impacts among mine workers;

· Under what circumstances was it reasonable for the agency to use “surrogate” measurements in lieu of readings of particulate matter;

· Whether it was “feasible” for the regulated parties to meet the new health standards and what “feasibility” meant in this context;

· The impact of a “technology-forcing” health and safety statute; and,

· How alternative methods of regulatory compliance contributed to the reasonableness of the new and stricter standards.

So, if you have a good chunk of time, and a hot beverage, the complete opinion is accessible here.

Hopper Watch: Monday

Senate File 774: Senator Betzold proposes to require confirmation by the State Senate of any Executive Director appointed by the Board of Judicial Standards (accessible here).

Thursday, February 08, 2007

Be Careful What You Wish For (on Appeal), You Will Surely Get It

Wagging a finger that glistened with oil and matzo meal, my paternal grandmother would frequently remind me: “Be careful what you wish for, as you will surely get it….”

Bubbie, as we called her, would have made a formidable appellate litigator; and perhaps could have foretold the instruction today from the Minnesota Supreme Court in State v. Cannady (a case I noted earlier, here).

In Cannady, an offender who was convicted of possessing child pornography challenged his conviction on the grounds that Minnesota’s child pornography law unconstitutionally shifted the burden of production and persuasion to him, the defendant, as to certain elements of the crime. Minnesota’s law included an “affirmative defense” to this crime, if the defendant could establish that the persons depicted in the pornographic image were not minors. (The age of the persons in the image, not surprisingly, was also an element of the charged crime.)

No doubt, Cannady took his appeal so as to void his earlier conviction. Yet, while the Supreme Court held that the affirmative defense statute was unconstitutional, the Court went on to hold that only this portion of the statute would be deemed unenforceable; and that with respect to Cannady, this constitutional defect “had no prejudicial effect on [his] trial and was therefore harmless error.” In this way, the defense is out (presumably, a matter of interest to other, similarly-charged offenders) but the conviction is affirmed.

The complete opinion and analysis is accessible here.

Hopper Watch: Thursday

New procedures for contracting, conference committees and state licensing practice, are among the bills of special note introduced today in the Minnesota House of Representatives:

H.F. No. 729: Representative Emmer's prohibition on state contracting with firms that settled high-dollar improper billing or bid-rigging claims (accesible here).

H.F. No. 750: Representative Hosch's proposal that every provision in a conference committee report have been earlier-passed by at least one legislative chamber (accessible here).

H.F. No. 795: Representative Walker's proposal to authorize administrative law judges to make the final decision in certain maltreatment and disqualification matters (accessible here).

Chief Judge Krause Gives Overview to Senate Panel

At a hearing yesterday, before the Senate's State Government Budget Division, Chief Administrative Law Judge Raymond R. Krause provided a detailed overview of the Office of Administrative Hearings. The Chief's remarks include an interesting recap of the agency's special history and its work as a tribunal.

The audio clip of the hearing is accessible here. The Chief’s presentation, which is the second item on the hearing agenda, begins at 8 ½ minute point in the audio clip.

Wednesday, February 07, 2007

A Must Read for Federal Litigators

In the context of an opinion that publicly censures three members of the Seventh Circuit bar, and admonishes yet another, Chief Judge Frank H. Easterbrook has put forth a set of important and useful cautionary tales.

Litigators can draw a lot from this opinion on the range of permissible deposition inquiries, the perils of (the familiar practice of) instructing the deponent “not to answer” questions, and the dangers of moving to strike portions of an opponent’s brief.

The complete opinion is accessible here.

Hopper Watch: Wednesday

Two items of special note today, each from the State Senate:

Senate File 649: Senator Marty's Clean Campaigns Bill (accesible here).

Senate File 669: Senator Ingebrigtsen's proposal to add the right to keep and bear arms, to Minnesota's Bill of Rights (accesible here).

The Least Restrictive (and Affordable) Alternative

On Tuesday, a panel of the Minnesota Court of Appeals issued interesting opinion in the appeal of a civil commitment determination by the District Court for the Fourth Judicial District.

Darrin Scott Rick challenged his commitment to the Minnesota Sex Offender Program, in part, on the grounds that there was a less restrictive alternative under which he could (consistent with public safety) receive needed treatment.

Rejecting this claim, the appellate panel held that because Rick’s proposed treatment plan included an extended stay in a halfway house – a matter as to which state funding was not certain – “the district court correctly found that his proposed alternative treatment is not available.”

The complete opinion is accessible here.

Monday, February 05, 2007

Hopper Watch: Monday

One question explored in today's introduction of bills at the Minnesota Legislature is what makes a mandate?

House File 600: Representative Eken would oblige certain state officials to recieve a majority of the balloting in order to win election to office (accessible here).

House File 616: Representative Hilstrom proposes to repeal the requirement that one nominee of a major party nominee garner at least 10 percent of the votes cast in the last general election (accessible here).

Roberts Rules of ... Qualified Immunity

On Friday, a divided panel of the U.S. Court of Appeals for the Sixth Circuit issued an opinion regarding the criminalization of profane speech at government meetings.

The case arose out of the arrest of Thomas Leonard. Leonard, whose family owned a trucking company that performed services for the Township government of Montrose, Michigan, was angry following the Township’s sudden severing of business relations with the firm. While the Leonard family was litigating the loss of these business opportunities, Mr. Leonard, during the public portion of a Township meeting, queried Township supervisors as to the apparent about face. Unsatisfied with the answers he received, Leonard exclaimed “Well … That’s why you’re in a God damn lawsuit….” Shortly after, Leonard was arrested for obscene and disorderly conduct.

In a later civil rights suit by Leonard against the arresting officer, the U.S. District Court for the Eastern District of Michigan granted summary judgment for the police officer; ruling that the officer enjoyed qualified immunity from suit.

Reversing, the appellate panel held that the police officer was not entitled to qualified immunity because, until such time as Leonard was gaveled to order by Township officials, no reasonable officer would believe that there was probable cause to make an arrest. Dissenting, Circuit Judge Jeffrey S. Sutton poked a little fun at the panel majority: “It may be true that Robinson did not wait for the chair to call Leonard ‘out of order.’ But I am not aware of any requirement—under Michigan law, the First Amendment or any other law—that an officer may restore order to such a gathering only by following Robert’s Rules of Order.”

The complete opinion is accessible here.

Sunday, February 04, 2007

Judge Schiltz Decries the Limits of Federal Privacy Act

Notwithstanding the finding that a physician with the Veterans Administration Center in Minneapolis made “deplorable – indeed almost incomprehensible” disclosures of a fellow employee’s private medical data, on Wednesday, U.S. District Court Judge Patrick J. Schiltz dismissed the employee’s Privacy Act suit against the Veterans Department.

“Joe Doe,” the employee, while seeking medical care and rendering information as part of a medical history, disclosed to one of the physicians at the Center that he was HIV-positive and used marijuana to stimulate a reduced appetite. The physician later had a colloquy with Doe’s supervisor about Doe’s absenteeism. Upon arrival at work some days later, Doe was instructed to see the physician. Alarmed, Doe requested that his union shop steward likewise attend the meeting with the physician. After the shop steward arrived at this meeting, the physician made reference to Doe being HIV-positive.

Underlying the Court’s dismissal of the employee’s claims was the fact that the private information was obtained by the physician through oral disclosures from Doe and not from government records – thereby placing Doe’s claims outside of the ambit of the Privacy Act. Summarized Judge Schiltz:
[A]s the Eighth Circuit interprets the Privacy Act, Dr. Hall was free (under the Act, at least) to disclose this extraordinarily private information to anyone and everyone. Indeed, Dr. Hall could have walked down to the [Veterans Administration Center] cafeteria, stood on a chair, and, using a megaphone, told the patients and staff that Doe was HIV-positive and using marijuana — all without violating the Privacy Act. But if Dr. Hall had learned these facts from reading a record rather than from talking with Doe, then the Privacy Act would protect Doe.
The complete opinion is accessible here.

Saturday, February 03, 2007

My Wife, and Some State Senators, Are Sick of My Excuses

When I was working in the Secretary of State’s office, and then later as a State Representative, I was a proponent of policies that encouraged the casting of ballots at the polls on Election Day – as opposed to one or another method of voting that is remote from the polling place. In this effort, I was known for rendering windy speeches that celebrated the near-mystical joining together of the whole community, precinct by precinct, each year at the polls.

My wife hated these speeches. The sticking point for her was that while I was all too eager to deliver a lengthy homage to balloting at the local Fire Hall, invariably, my work as an election official, or as a lawyer, had me away from our precinct on Election Day. Worse still, as I jumped to glorify the communion of the polling place, seemingly for others, many times my own plans were to have an absentee ballot carry in my selections. And that was intolerable to her.

Apparently, some members of the State Senate have grown as weary of this situation as my wife. Two bills that will remove all of the special eligibility restrictions from absentee balloting – such as illness, religious observance, absence from the precinct, etc. – will advance to a Subcommittee hearing next Wednesday. The “no excuses” bills are accessible here and here.

Friday, February 02, 2007

Affirming New Rates, Appeals Court Keeps on Truckin’

On Tuesday, a panel of the Minnesota Court of Appeals turned away the challenge of a consortium of Minnesota trucking firms to updated truck rental rates issued by the Department of Labor and Industry (DOLI). The updated schedules will be used to set the required compensation rates to truckers performing services on state highway contracts.

Among the most interesting features of the panel’s analysis was its review of the trucking firms’ constitutional challenge to the schedules. Several relators in the appeal claimed that their long-term fixed subcontracts were adversely affected by the certified truck rental rates – such that the new rates unconstitutionally impaired the obligation of contracts.

In an unpublished opinion, the appellate panel disagreed. Important parts of the panel’s analysis were that the application of the new rates was prospective and the “relators have acknowledged that they were aware of the pending certification of truck rental rates when their long-term subcontracts were signed; however, they proceeded with the contracts without prescribing a method to resolve any conflict that might result by certification.”

The complete opinion is accessible here.

Thursday, February 01, 2007

Hopper Watch: Thursday

Rulemaking, pensions, electioneering communications, annexations and the non-work activities of court employees, were among the topics raised in the introductions of bills made today at the Minnesota Legislature.

Senate File 387: Senator Wiger’s Extension of Rulemaking Authority for the Board of School Administrators (accessible here).

Senate File 427: Senator Betzold’s Requirements for Early, Pre-Submission of Public Pension Legislation (accessible here).

House File 322 / Senate File 472: Rukavina-Tomassoni Limitations on the State Court’s Imposition of Restrictions on the Outside Political Activities of Union Member Employees (accessible here).

House File 483: Representative Slawick's Minnesota False Claims Act (accessible here).

House File 490: Representative Hilstrom's Repeal of Reorganization Order 192, Relating to Municipal Annexation (accessible here).

House File 524: Representative Neil Peterson's Minnesota version of the "McCain-Feingold" Regulation of Electioneering Communications (accessible here).

In Hearing Practice, the JIG is Up

In a published opinion handed down on Tuesday, a panel of the Minnesota Court of Appeals directed agency tribunals to consider the Civil Jury Instruction Guide – or “JIGs” – when passing on the credibility of witnesses at a contested hearing. Specifically, the panel pointed to CIVJIG 12.15, relating to “the instructions given to a jury for evaluating the credibility of witnesses in a civil trial,” as containing “a list of other factors that may be relevant in determining the credibility of a witness.”

The appeal arose out of dispute over an employee's right to unemployment benefits, and centered on whether the employee had been offered another assignment by her employer or had quit the job on her own. Because the versions of events offered by the employer and employee diverged sharply, the unemployment law judge below needed to make credibility determinations as to the testifying witnesses.

The analysis and instruction from the appelate panel, and its order affirming the ULJ’s decision, is accessible here.