Girls Hockey Case May Send Feds to Penalty Box

On Wednesday, Judge Michael J. Davis of the U.S. District Court for the District of Minnesota issued an interesting decision in a case arising under Title IX.

Plaintiffs Amelia Cobb and Diana Saly were players in interscholastic girls’ hockey in Minnesota during the 2001 and 2002 seasons. The athletes asserted that the federal Department of Education played a role in their discriminatory treatment by approving the State High School League's plans to hold the final tournament for the girls hockey program in the State Fair Coliseum, while, at the same time, the final tournament for the boys hockey program was being hosted in the qualitatively superior Xcel Energy Center. Plaintiffs alleged that DOE Office of Civil Rights "lent its imprimatur to MSHSL’s ongoing discriminatory behavior and ensured that the discriminatory practices would continue."

Denying the federal agency's motion for summary judgment, in part, the District Court concluded that "a private right of action against federal funding agencies exists when the funding agency itself is accused of acting to violate Title IX and foster discrimination."

The complete opinion is accessible here.

The Really Small Print

Yesterday, the House State Government Finance Division issued its draft Omnibus State Government Finance bill.

Tucked among the bill’s many provisions is language that would legislatively overturn the OAH decision in Frederickson v. Nelson (accessible here), in which the panel held that it was not a manifestly false claim for a once-defeated legislator to use the term “re-elect” in campaign material during a follow-on bid to win back her former office.

The draft omnibus bill would prospectively limit the use of the term “re-elect” in campaign material to incumbents who are “seated in office … as of the last date for filing as a candidate for election to that office.”

Quie Commission Urges Retention Elections; I Had Some Other Ideas

At the end of a year-long odyssey, the Minnesota Citizens Commission for the Preservation of an Impartial Judiciary – otherwise known as the “Quie Commission” – issued its Final Report today.

As the Commission expressed in its charter last year, the group assembled to “identify and assess current and prospective threats to the preservation of an impartial judiciary in Minnesota in the wake of the U.S. Supreme Court and Eighth Circuit Court of Appeals decisions in Republican Party of Minnesota v. White … [and] recommend the optimal means for preserving a fair and impartial judiciary in Minnesota.”

I was named to the Commission by Governor Al Quie because, for a time, I was part of Gregory Wersal’s legal team in the White case and had served as the Chairman of the House Subcommittee on Elections.

Today, a majority of the Quie Commission has urged changing the Minnesota Constitution so as to establish retention elections for state judges. This system would have judicial incumbents appear alone on the canary ballot for approval – or not – for follow-on terms of office.

I wrote separately; joining neither the Majority Report, which urged this retention system, nor the Minority Report, which urged a strong appointive system.

The complete Report (downloadble as a 1.87 megabyte PDF file) is accessible here, and a copy of my separate remarks is accessible here.

State Supreme Court Shocker Ends P.O.R. Blackouts, Raises Other Questions

On Thursday, a splintered Minnesota Supreme Court issued a decision on the reach of the state’s registry of “predatory offenders.”

In December 2004, the Cass County Attorney filed a complaint against Peter John Jones, an offender who had been earlier convicted of kidnapping, for failing to register his address with the state officials who maintain the Predatory Offender Registry – or POR. Under Minnesota law, kidnappers, as well as those who commit criminal sexual conduct crimes, must disclose certain information (including their addresses) to state authorities. This data is maintained on a central registry, the POR, for use by law enforcement.

In reply to the failure-to-register complaint, Jones asserted that the state registration requirement was a “civil-regulatory” matter, rather than a “criminal-prohibitory” one; and that as a result, he could not be prosecuted by state authorities for any violations. Jones argued that because he was an enrolled member of the Leech Lake Band, and lived on the Band’s reservation, prosecution of any civil-regulatory violations must be made by tribal authorities in tribal court. The District Court agreed, dismissing the suit; a judgment that was later affirmed by the Court of Appeals.

While it is not detailed in Thursday’s opinion, the practical implications of the District Court’s dismissal worried state officials immediately. If the registration statute could not be enforced against Native American offenders on tribal land, there would, for a time, be gaps in the state’s ability to monitor these offenders. At the time the District Court decision was announced there was little infrastructure for tribal authorities to do this work. Worse still, the contours of the “blackout areas” were not altogether clear – as there are disputes over the boundaries of tribal land that are very long-standing in some communities in Minnesota.

Reversing the judgment of the Court of Appeals, the Supreme Court splintered into three groups: Justices Paul Anderson, Samuel Hanson and Helen Meyer held that the registration requirements were part of a criminal-prohibitory statute; Justices G. Barry Anderson and Laurie Gildea, concurring in the judgment, wrote that categorizing the registration statute as either civil-regulatory or criminal-prohibitory was not required in order to permit failure to register prosecutions of tribal members; and Justice Alan Page and Chief Justice Russell Anderson in dissent, asserted that the statute was civil-regulatory.

For its part, in 2006, the Minnesota Legislature considered and rejected its own declaration that the POR statute was “criminal-prohibitory.” This is so because the traditional understanding was that changes to a criminal-prohibitory statute may, consistent with the prohibition on ex post facto laws, only be applied prospectively. And the POR statute has changed many times since it was first enacted; with retroactive application of these changes upon those who must register. The nimble, retroactive application of these changes in requirements was justified on the grounds that the registration statute was merely “civil-regulatory.” One wonders whether Thursday’s decision will give new life to ex post facto challenges by offenders to changes that have been made in the POR program.

The complete opinion is accessible here.

Unpublished Civil Commitment Opinion Still Raises Super-Size Ideas

In an unpublished opinion issued yesterday, a panel of the Minnesota Court of Appeals turned to questions which have surfaced in the context of civil commitment petitions in the past, but which continue to provoke vigorous debate; namely: the extent to which admissions that are made by a person during a polygraph examination may later be considered as substantive evidence in a civil commitment proceeding; the extent to which dismissal of an earlier petition for civil commitment later bars the government from seeking to commit the same person, in a new proceeding; and whether the low rates of "graduation" from the Minnesota Sex Offender Program overall, imperils the due process rights of patients committed for treatment there.

The analysis of retired Judge Crippen, who returns to the court and sits by designation in this case, and rejects the committed patient's arguments on each of these grounds, is accessible here.

I’m Back to School: Posts May Be Delayed

In the coming week, I will be substitute teaching at the Hamline Law School for Assistant Chief Administrative Law Judge (and adjunct professor extraordinaire) Bruce Johnson, who has been called away.

Of all the weeks that I could have been called up from the minors for the big game, this is probably a good one: Among the subjects to be covered this week is an introduction to rulemaking.

With any luck, I will be a better lecturer than Rodney Dangerfield's Thorton Melon was a student.

Search for the Small Print in Pregnancy Discrimination Act Opinion

Perhaps I cannot see the forest for the trees; or perhaps it is just that I know what I like; but while other commentators were aflutter over the Eighth Circuit’s holding today that the federal Pregnancy Discrimination Act of 1978 does not require employers to cover contraceptives when providing health insurance benefits to their employees, my interest was piqued by other, lesser-noticed features of the panel’s decision.

What I found most interesting and instructive in today’s opinion was how the majority analyzed a contrary decision of the federal Equal Employment Opportunity Commission and its dispatch of the arguments made by 32 Members of Congress who joined the suit as amicus curiae.

As to the EEOC decision, a majority of the panel noted that when the Commission opines as to matters that are not the subject of a delegation of rule-making authority from Congress, the court will defer to those views only to the extent that they have the “power to persuade.” (In this case, the majority found that the Commission decision was not persuasive.)

With respect to the opinion of the amici legislators as to the Congressional intent underlying the Pregnancy Discrimination Act, the majority noted that it could not assume that these Members “represent the viewpoints of a majority of both houses of Congress in 1978.” This conclusion was no doubt a disappointment to Minnesota’s Fourth District Congresswoman Betty McCollum, who was among the Members of Congress urging a decision in favor of the plaintiff employees.

The complete opinion, with features both large and small, is accessible here.

The Intersections Between Plain Meaning and Unpromulgated Rules

A divided Minnesota Supreme Court issued an interesting opinion today in a case arising out of a dispute over the costs that could be reimbursed under the state’s Medical Assistance program.

Following the guidance in an internal policy memorandum, state Human Services officials limited the amount of self-insurance costs that could be included in a health care facility’s reimbursement rate to the amounts of “actual claims paid during the reporting year.” A Duluth nursing home, Benedictine Health Center, had sought to include a larger sum in the rate calculation; namely the amounts that it had earlier set aside to pay this kind of claim.

Reversing a Court of Appeals judgment that upheld the agency’s reading of the reimbursement rules, the Court concluded that because the interpretation in the policy memorandum was inconsistent with the plain language of the cited rule, the policy memorandum represented a second, unpromulgated rule. Wrote Justice Hanson for the Court’s majority: “Because the not-to-exceed-claims-paid policy stated in the 1992 Memorandum, at least as applied here, does not reflect a proper interpretation of Rule 50’s related organization rule, and is inconsistent with DHS’s not-to-exceed-premiums policy, we conclude that it is an unpromulgated rule that is not entitled to deference.”

Justice Paul Anderson, in dissent, asserted that because the policy memorandum could be read in accord with the agency’s “Rule 50,” the policy memorandum was not an unpromulgated rule.

The complete opinion is accessible here.

UPDATE: Counsel for Benedictine Health Center (who, as it happens, are readers of Within the Scope) sent along this further description of the implications of the Court's opinion; which is accessible from their firm's website, here.

A Broad Definition of “Public Official” on Defamation Claims

Last Thursday, a panel of the U.S. Court of Appeals for the Eighth Circuit issued an interesting opinion on a case arising out of Minnesota.

In turning away the defamation claims of a former Dakota County employee, the appellate panel held that a social worker in the County’s child and family intake unit was a “public official” for purposes of applying the absence of malice standards of New York Times v. Sullivan.

The complete opinion is accessible here.

Revised House Rules Now Online

Late last week, the Minnesota House of Representatives posted on online the March 1 revisions to the Permanent Rules of the House. Among the changes this year are broader restrictions on fundraising during legislative sessions and a one-year post-service ban on a Member working as a lobbyist.

A complete set of revised Rules is accessible here.

A Run on Resume Paper

Kinko's copy centers across Minnesota will no doubt be bracing for large, turn-away crowds following yesterday’s announcement from the Judicial Conference of the United States that it will ask Congress to fund 67 new federal judgeships — including an additional judgeship for the U.S. District Court for the District of Minnesota and an additional Circuit Judge for the U.S. Court of Appeals for the Eighth Circuit.

The news release from the Judicial Conference is accessible here and the Conference’s complete list of recommendations is accessible here.

Nature of the Federal Enclave at the Center of Blockbuster Second Amendment Case

In an opinion that shook American legal circles on Friday, a panel of the U.S. Court of Appeals for the District of Columbia Circuit struck down the District of Columbia’s restrictive firearm laws as violative of the Second Amendment of the federal Constitution.

An important backdrop for both the majority opinion and the dissent in this case was the “incorporation doctrine” – a legal doctrine that applies certain provisions of the Bill of Rights to the states, through the due process clause of the Fourteenth Amendment. While both the majority and the dissent agree that the guarantees of the Second Amendment have not been broadly applied to the states through the “incorporation doctrine,” Circuit Judges Silberman and Griffith held that because the District of Columbia is a federal enclave, regulated directly by the Congress, the provisions of the Second Amendment are applicable to that city. In dissent, Judge Henderson disagreed, asserting that because the District of Columbia was not a “state,” the Second Amendment’s object of achieving a well-regulated state militia did not apply.

The result represents a victory for the Minnesota Attorney General's Office, which was among the 11 state offices to join Attorney General Abbott of Texas as amicus curiae, urging a ruling in favor of the District residents who were challenging the firearm laws.

The panel’s lengthy exegesis – numbering 75 single-spaced pages in all – includes a really interesting review of American history and case law, but requires a genuine commitment of arm-chair time.

The complete opinion is accessible here.

Hopper Watch: March 6

Representatives Simon and Berns propose to apply campaign contribution limits to judicial campaigns (House file 1494, accessible here) and to extend the mandatory retirement age for state court judges from age 70 to age 75 (House File 1647, accessible here).

Senator Rummel and Representative Johnson propose to relax the ban on ex parte contacts with Members of the Public Utilities Commission (accessible here).

Representative Loeffler proposes to have each school district annually report to the Minnesota Department of Education, which would in turn compile and report to the Legislature, the amounts spent on special education litigation costs by school district (House File 1696, accessible here).

Murphy Plays the Role of the Contrarian at the Administrative Law Forum

This past week, Professor Richard Murphy's article from last year's Administrative Law Discussion Forum (a biennial conference among administrative law aficionados) was posted on-line at the Social Science Research Network. As a project for the Forum, Professor Murphy, of the William Mitchell College of Law in Saint Paul, seeks to rehabilitate a court opinion that is roundly "underrated" in the community of administrative lawyers. Professor Murphy tries to prop up the ruling of the U.S. Court of Appeals for the District of Columbia Circuit in Ruling in Alaska Professional Hunters Association v. FAA.

The case arose out of the Federal Aviation Administration’s adoption of a regulatory interpretation that would have subjected Alaskan hunting guides, who use planes to fly their customers about the wilderness, to rules governing the “commercial operators” of aircraft. This interpretation of the FAA regulations was at odds with the agency's reading of its rules over the prior three decades.

In a later lawsuit, the D.C. Circuit sided with the guides, holding that the long-standing interpretation had hardened into a kind of “administrative common law,” and that the FAA could only change this “precedent” through notice and comment rulemaking.

As part of his resuscitation efforts, Professor Murphy tries to blaze a third path between outright rejection of the ruling and its extension in new settings. He argues that federal agencies should be permitted to change long-standing interpretations that have proven to be “unworkable or badly reasoned,” by these nimble, non-legislative means; but would reserve the rule of the Alaskan Hunters case to prevent sudden about-faces on policy that represent a reasonable alternative.

The complete essay is accessible from the Social Science Research Network here.

Forget Free Speech, He Who Pays the Piper Calls the Tune

On Tuesday of this past week, a panel of the U.S. District Court of Appeals for the District of Columbia Circuit issued an interesting opinion on the intersections between government grants and speech protected under the First Amendment.

When it set aside sums for programs to combat the spread of HIV and AIDS in the developing world, Congress insisted that any grantees for these funds have a policy expressing opposition to prostitution and sex trafficking. DKT International, an aid organization, was deemed ineligible for receipt of program funds because it did not have such a policy and it steadfastly refused to promulgate one. In DKT’s view, a policy that expressed the organization’s disapproval of prostitution might stigmatize and alienate those whom it hoped to reach with its interventions – namely those who work in sex-related trades.

DKT challenged the program’s restriction on First Amendment grounds and the U.S. District Court for the District of Columbia agreed that this restriction was invalid. Reversing, a unanimous appellate panel concluded: “The Act does not compel DKT to advocate the government’s position on prostitution and sex trafficking; it requires only that if DKT wishes to receive funds it must communicate the message the government chooses to fund. This does not violate the First Amendment.”

The complete opinion is accessible here.