Our Favorite Phrases and the Video Tape

Ever since my days as a judicial clerk, I have maintained a worn three-ring binder with copies of the "must-have" cases. Among the tabbed selections are Matsushita Elec. Industrial Co. v. Zenith Radio Corp. and Anderson v. Liberty Lobby, Inc.; both of which are among the indispensable authorities on summary judgment.

No doubt, after State v. Harris today, I will need to add a new tab. Justice Scalia, writing for a 6-3 majority on the High Court, made additions to the lexicon of summary judgment that I am certain will be cited again and again.

Below, Harris had avoided summary judgment on the Section 1983 claims which arose out of a high-speed police chase that left him a quadriplegic. In March of 2001, Mr. Harris was attempting to elude County Sherrifs when a Deputy in a squad car rammed Harris' vehicle, sending it off the roadway.

The lower federal courts denied the state's motion for summary judgment on the grounds that there were genuine issues of material fact as to what transpired during the high-speed chase. Reversing, Justice Scalia and the Court majority points to the video: "When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment. That was the case here with regard to the factual issue whether respondent was driving in such fashion as to endanger human life. Respondent’s version of events is so utterly discredited by the record that no reasonable jury could have believed him. The Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape."

The feature of this exegesis that concerns me most is that many of those who move for summary judgment believe that the opposing party's view of the case is "blatantly contradicted by the record...." As sure as morning motions practice follows late nights of billable hours, the phrase "blatantly contradicted by the record" will be the litigator’s Phrase of the Year.

Yet it is probably also true that it is the squad car video tape that gives color and context to this decision. One wonders whether the “blatant contradiction” standard that is referenced could be met with something less than a video of the events at issue; although I am certain that all good lawyers will try. Indeed, the video had such a powerful impact on the Harris majority that the High Court made it a separately downloadable exhibit to the slip opinion issued today. That has to be a first.

The full opinion is accessible here. A short, edited clip of the squad car video, which is embedded in a larger news story, is accessible here.

Venture Capital into Regulated Industries is a Real Gamble

In an opinion issued last Tuesday, the U.S. Court of Appeals for the Eighth Circuit turned away the challenges of a lottery ticket company that sued after the Iowa Legislature banned that state’s “Touch Play” lottery.

Arguing that the abolition of the “Touch Play” game decimated the firm’s lottery ticket machine business, the company asserted claims against the state under the Contracts, Takings, Equal Protection and Due Process clauses of the U.S. Constitution.

Among the interesting nuggets in this opinion was the panel’s conclusion that because the ticket company had entered a field that was highly regulated by state and federal law in the first instance, its reasonable contract expectations were not impaired (as that term is used in U.S. Constitution) by a later abolition of the state-authorized game.

The complete opinion is accessible here.

Court of Appeals: Firing Foul-Mouthed Aide is One Thing; Finding Maltreatment Another

In a published opinion issued yesterday, a panel of the Minnesota Court of Appeals reversed a maltreatment determination of the Commissioner of Health under the Vulnerable Adults Act.

At issue in the case was the angry statement of a nursing assistant to a nursing home resident to the effect that “I forgot to put my [f –––ing] gloves on and it’s your fault, now you’re going to [sh-t] all over my hands, you dumb [f––er].”

While both the Commissioner of Health and the District Court below concluded that such conduct amounted to abuse of a vulnerable adult, the appellate panel disagreed, and held that an error of law had been made. Summarized the panel:

We do not think that appellant’s single and non-malicious statement can be construed as conduct likely to produce emotional distress without diminishing the high standards that [the Vulnerable Adults Act sets] for a finding of abuse. The consequences of a finding of abuse are weighty. The entire statute clearly reflects a purpose to protect vulnerable adults, but while also ensuring that health-care workers are not subject to disqualification unless they have engaged in serious and egregious conduct. We neither condone appellant’s behavior nor rule out other forms of employment discipline, including termination as occurred here, as available means to protect vulnerable adults and deter such offensive conduct.

The complete opinion is accessible here.

When Blowing the Whistle Actually Works: The Ironic Limits of Whistleblower Protection

In an interesting opinion issued yesterday, a panel of the Minnesota Court of Appeals held that our state’s Whistleblower protection statute did not extend to an employee who successfully warned officials of the University of Minnesota off of violations of state procurement laws and later claimed that he was fired for having made the suggestion that these officials were poised to act illegally.

As the appellate panel reasoned, because the employee's complaint conceded that the more senior officials did not go through with the earlier (and unlawful) plan, the employee did not “allege facts that, if proven, would constitute a violation of law or rule.”

Likewise interesting, the panel noted that because the dismissed employee had worked as an advisor on university construction projects, it was his job “to ensure that the university did not engage in improper procurement methods.”

The complete opinion is accessible here.

Vigorous Questioning in Dayton Speech and Debate Clause Case

This morning, all of the Justices but Chief Justice (and former D.C. Circuit Judge) John Roberts, undertook vigorous questioning of counsel in the case of Office of Senator Mark Dayton v. Hanson. This employment discrimination matter raises the question of whether Members of Congress may avoid inquiry into their dismissals of legislative staffers because these inquiries are “question[s] in any other Place” prohibited by the U.S. Constitution's Speech and Debate Clause. (The Chief Justice earlier bowed out of consideration of today's case as he had participated in some of the D.C. Circuit's proceedings below.)

A summary of the case from OYEZ is accessible here and the complete transcript of today's sharp-edged argument is accessible here.

Run Out of the Circuit on a Rail

While it probably will not add much to the annals of administrative law, I found Friday’s opinion from the U.S. Court of Appeals of the District of Columbia Circuit in American Orient Express Railway Company v. Surface Transportation Board, an oddly funny and amusing read.

The American Orient Express Railway Company asserted that it was not a “covered employer” that was liable to make contributions under the Railroad Retirement Act and Railroad Unemployment Insurance Act, because the company did not own the underlying tracks upon which its vintage rail cars rode. Thus, the Orient Express argued that it was not a “railroad” or provided “railroad transportation.”

As the panel made short work of these claims, Hercule Poirot was not summoned. The complete opinion is accessible here.

The High Court Tussles Over the Best Route to Congressional Intent

In an opinion construing the meaning of the federal Impact Aid Act, and its implementing regulations, the U.S Supreme Court splintered and scuffled over the methods of divining congressional intent.

Justice Breyer, for a five Justice majority, noted that “considerations other than [the statutory] language provide us with unusually strong indications that Congress intended to leave the Secretary free to use the calculation method before us and that the Secretary’s chosen method is a reasonable one.”

Justices Scalia, Roberts, Thomas and Souter in dissent declared: “The Court’s contrary assertions aside, today’s decision is nothing other than the elevation of judge-supposed legislative intent over clear statutory text. The plain language of the federal Impact Aid statute clearly and unambiguously forecloses the Secretary of Education’s preferred methodology for determining whether a State’s school-funding system is equalized. Her selection of that methodology is therefore entitled to zero deference under Chevron ....”

The debate, and particularly the discussion over the role of the 1892 decision in Church of the Holy Trinity v. United States in the Court's jurisdprudence, is worth reading and accessible here.

FLSA Regulation Case Argued at High Court Today

Evelyn Coke, a home health care aide, brought suit against her employer Long Island Care at Home, Limited, claiming that in violation of the Fair Labor Standards Act she was denied overtime compensation.

A long-standing U.S. Department of Labor regulation interpreted the FLSA exemption for “companionship services” as excluding from coverage workers who were employed directly by the person receiving care and caregivers who are employed by third-parties, such as Long Island Care at Home. As part of her suit, Ms. Coke challenged this regulatory exclusion. Siding with Ms. Coke, a panel of the U.S. Court of Appeals for the Second Circuit invalidated the regulation as contrary to Congressional intent and other FLSA rules.

Today, in a fast-paced in oral argument, the Justices explored principles of statutory interpretation, deference to the agency construction of regulations and methods of resolving conflicting regulatory provisions.

The transcript of the oral argument is accessible here and the underlying merits briefs are accessible here.

The Last to Know of the Next Coolest Thing

I am not sure how long this has been a feature of the Information Superhighway, but the U.S. Court of Appeals for the Eighth Circuit has posted audio files for the last 7 years of oral arguments on the World Wide Web.

And so joining the legions of March Madness Widows and Golf Widows, my ever-suffering wife has been thrust into a geekier and less-well-known ghetto – the Oral Argument Widows.

I also just learned that I have a bunch of sick leave accumulated and that could be at special risk.... So, if you happen to notice that I am not at my desk for a week, or three, be sure to send batteries for my mp3 player.

If you too would like to become part of this Circuit’s “disappeared,” the library of audio files is accessible here.

When the Agency is not as Fast as Mercury, What’s a Mom to Do?

On Friday, a panel of the U.S. Court of Appeals for the District of Columbia Circuit issued an interesting opinion on the ability to challenge delays in regulatory action.

At issue in the case was the proper classification under the federal Food, Drug and Cosmetics Act of a set of composites that are used in dental fillings. Each of the individual components of the set – one of which was “dental mercury” – had been earlier classified by the FDA under the Act, but the combination of these items into a single “device” had not yet been passed upon by the agency. While the agency teams were reviewing the health impacts of the combined set, as an interim measure, it classified the combination as a “Class II” product – the highest level of classification for any of the component parts.

Seeking a court order “removing the device from commerce” until the agency issued a final classification of the set, a citizens group, the Moms Against Mercury, appealed the failure of the agency to issue the classification at an earlier time.

As the Court read the underlying Act, it could assume jurisdiction where it was claimed that the agency had misclassified a “device” or was purposefully delaying final action on a classification so as to deprive the court of meaningful review. Holding that neither circumstance was applicable, the panel held that it was without jurisdiction over the controversy.

The panel's analysis, and the complete opinion, is accessible here.

A Useful Refresher Course on Interpretative Rules

One of the more difficult tasks in administrative law is divining the precise dividing line between interpretative guidance as to existing rules, on the one hand, and substantive additions to current regulations, on the other. Where interpretation ends, and augmentation (or subtraction) begins, is not always a simple matter to discern.

An opinion issued by a panel of the U.S. Court of Appeals for the District of Columbia Circuit on Tuesday, however, provides a helpful refresher course on this otherwise vexing subject.

In a challenge to the terms of formal guidance issued by the Federal Trade Commission, as to fair pricing practices among funeral homes, a national consumer group asserted that the FTC's statements on the regulations were more than mere interpretation and should have been subject to notice and comment rulemaking. Under the Federal Administrative Procedure Act, interpretative guidance as to existing rules is not subject to rulemaking procedures.

Turning away this challenge, the appellate panel held that the agency's description of the reach of certain terms in the fair trade practice regulations did not substantively add to current regulations but "merely interpreted the rule."

The complete opinion and analysis is accessible here.

Heresy! Apostasy! Sedition!

The Minnesota Supreme Court has invited comment on the February petition of the Minnesota Board of Law Examiners urging revisions to the rules relating to admission to the Bar.

Among the changes proposed by the Board is that administrative law be dropped from the range of subjects that might be tested in the six essay questions that appear in the Minnesota Bar Examination.

While readers of Within the Scope may wonder if one can possibly establish “a fitness to practice law” without first demonstrating a knowledge administrative law (note: tongue placed firmly in cheek), one benefit of the change would be that aging lawyers like me will be able to harrumph “that in my day, the bar was really challenging – we had to write on administrative law!”

One voice of calm that is close to the recommendation, has observed that many of the procedural due process matters that were the focal point of administrative law essay questions in the past, can be (and were) touched upon in the context of other subject areas; such as constitutional law. Indeed, the Board's petition (accessible here) makes just this argument.

The complete set of the Board’s proposed revisions – both heretical and generally helpful – are accessible here. The Court has requested comments no later than May 18, 2007.

The Zen of Being 4th Runner-Up

I have two sneaking suspicions: The first is that former Speaker of the U.S. House Newt Gingrich would like to be President one day. The second is that the last four months of polling – which show him to be the choice of between 8 to 14 percent of likely GOP voters (and roughly 20 points behind the current front-runner, Rudy Giuliani) – has to be rough on him.

That is why the Speaker's apparent response to these events seems so remarkable to me.

Perhaps mindful that 50 percent of voters responding to a Rasmussen poll claimed that they would cast a vote against the former Speaker if given that chance, he may realize that winning the Oval Office may be out of reach for him. Yet, he doesn’t pout; or churlishly rebuke these voters; or angrily storm off the public stage. Well, at least not publicly....

What he has done is join with other one-time Presidential aspirants, Mario Cuomo and John Kerry, for a series of longer conversations modeled upon the 1858 Lincoln-Douglas debates.

While these discussions make interesting and provocative television, I have been struck by the underlying message that they send to the ambitious whose dearest designs will not come to pass. The lesson of the Gingrich-Cuomo-Kerry dialogues for me is that notwithstanding dashed hopes, even monumentally important ones, there is still much useful and public-spirited work to do. Life – and a public life – goes on....

The Gingrich-Cuomo debate at New York's Cooper Union is accessible here. The Gingrich-Kerry exchange this past week in Washington is accessible here.

Let me know what, if anything, they say to you. (E-mail link below.)

Worth Every Penny: Study Says Smart, Experienced Appellate Advocates Do Drive Results

David Stras, Associate Professor of Law at University of Minnesota Law School, has posted at SCOTUSblog a draft of a forthcoming article from the Washington University Law Review entitled “Supreme Court Oral Advocacy: Does it affect the Justices’ Decisions?”

The article codes and tracks the “grades” that U.S. Supreme Court Associate Justice Harry Blackmun privately assigned to advocates in oral arguments before the High Court during Blackmun's 24-year tenure.

The review of the Blackmun papers by Professors Johnson (of the University of Minnesota), Spriggs (of Washington University in St. Louis) and Wahlbeck (of George Washington University) inquires into several different possible drivers of success among appellate advocates – such as prior experience appearing before the Court, law school training, an earlier clerkship – and makes for compelling reading.

As interesting as the researchers’ claims – namely, that the “data analysis shows clearly that the justices are more likely to vote for the litigant whose attorney provided a stronger showing during oral arguments,” and that the Justices give decisional cues to one another during these arguments – are the reflections of the Justices themselves on oral argument. I, for one, particularly identified with former Chief Justice William Rehnquist's observation that: “One can do his level best to digest from the briefs...what he believes necessary to decide the case, and still find himself falling short in one aspect or another of either the law or the facts. Oral argument can cure these shortcomings.”

The detailed coding of performance factors and the related analysis is accessible here.

Georgia on My Mind

In late March, Judge Clarence Cooper of the U.S. District Court for the Northern District of Georgia issued a Memorandum Opinion and Order sustaining, in part, a series of challenges to a Georgia law restricting where registered sex offenders may live.

The opinion is interesting reading for a number of reasons – not only for the Court’s dispatch of the plaintiff-offenders’ claims under the Free Exercise Clause, Takings Clause, Eighth Amendment and the Religious Land Use and Institutionalized Persons Act, but also for its Ex Post Facto Clause analysis. While granting the state’s motion to dismiss as to many of the offenders’ claims, the District Court held that Georgia’s ban on sex offenders residing within 1,000 feet of a bus stop, with no “grandfather clause” exempting pre-enactment housing arrangements, “raise[d] grave doubts of the constitutionality of the Act ….”

In reaching this conclusion, the District Court specifically distinguished the decision of the U.S. Court of Appeals for the Eighth Circuit in Doe v. Miller, which sustained Iowa’s statewide sex offender residency restrictions against a similar Ex Post Facto Clause challenge. In the view of the Eighth Circuit panel, Iowa’s law did not amount to complete “banishment” of offenders from their respective communities.

Following the Georgia court’s ruling, I have wondered whether (if the Georgia law is set aside, and that holding is sustained by the Eleventh Circuit on appeal) the Circuit clash would be sufficient for the U.S. Supreme Court to consider the question of “banishment” in the context of state restrictions on offender housing.

More provocative still, one reader of Within the Scope has suggested that the Georgia law had the unintended consequence of creating remote sex offender housing enclaves, where the children of offenders – such as in the recent case of Christopher Michael Barrios – are especially at risk for predation from other offenders.

The U.S. District Court opinion in Whitaker v. Perdue is accessible here, and the earlier U.S. Court of Appeals for the Eighth Circuit in Doe v. Miller is accessible here.

Randall Special Concurrence Bristles

Yesterday, in an unpublished opinion in a habeas corpus challenge to the Minnesota Sex Offender Program, Minnesota Court of Appeals Judge R.A. "Jim" Randall specially concurred with the majority's holding denying the challenge; yet in the most remarkable terms.

Writing separately, Judge Randall declared that Minnesota's civil commitment law “is a deviation from the Bill of Rights,” which obliges judges to engage in “lying about it,” and which like “Plessy v. Ferguson, this issue will have to be revisited, rethought, debated, and redebated, and then, down the road, finally made right.”

The majority's habeas analysis and Judge Randall's special concurrence are accessible here.