Dog Days at the Court: Do We Have an Expectation of Privacy in the Smells that Leak from Our Homes?

This question formed an important backdrop to a decision issued by the Minnesota Supreme Court on Thursday in the appeal of Scott Evan Davis. In August of 2004, an officer with the Burnsville Police Department obtained a search warrant for Davis’s apartment, after noting as part of the warrant application that a specially-trained drug-sniffing dog had alerted to the presence of narcotics at the threshold of Davis’s apartment door.

While I know that it is horribly off-message for this blog, which ordinarily leaves the review of criminal law matters to others, but the Court’s dog-sniff cases (like this one and this one) are just too interesting to pass up.

Particularly so, because Minnesota’s recent dog-sniff cases struggle with the provocative questions raised by the 2001 decision of the U.S. Supreme Court in Kyllo v. United States. In Kyllo, the High Court held that when the government uses a “device” that is not in general public use, to explore details of a home that would previously have been unknowable without physical intrusion, this surveillance qualifies as a search under the Fourth Amendment. In Kyllo, police officers used a thermal scanner to measure the heat emanating defendant Kyllo’s home, to infer that he was using high-intensity lamps to grow marijuana inside the house.

With respect to Kyllo, I have always thought that Justice John Paul Stevens and his fellow dissenters had the better analysis; namely that “public officials should not have to avert their senses or their equipment from detecting emissions in the public domain such as excessive heat, traces of smoke, suspicious odors, odorless gases, airborne particulates, or radioactive emissions, any of which could identify hazards to the community.”

A provocative brain-teaser that had me whirling over this Memorial Day Weekend, as it earlier divided the Minnesota Supreme Court, is how, if at all, the use of a drug-sniffing dog might be different from the thermal scanner described in Kyllo.

The Court’s complete analysis in Davis, including a lively dissent from Justices Page and Meyer, is accessible here.

Unpublished, But Still Interesting – Tuesday Edition

Item 1 - Point to Pollution Plus Procedural Error: In State ex rel. Rice County Land Use Accountability, Inc. v. Rice County, a unanimous panel of the Minnesota Court of Appeals held that a complaint seeking an order directing the transfer of the County’s environmental review authority, mandating additional training for county officials, and an admonition to these officials that they follow environmental laws in the future, failed to state claims under the Minnesota Environmental Rights Act (MERA).

Affirming the lower court’s dismissal of these claims, the panel held that even if the claimed defects in the County’s environmental review process were established, a MERA claim did not lie because there were not also “legally sufficient allegations that [the] County caused pollution, impairment or destruction of a natural resource.”

The panel’s complete analysis is accessible here.

Item 2 – Legislature is Not Required to Establish Need or Reasonableness: Assistant Chief Administrative Law Judge Bruce H. Johnson is fond of reminding the students in his administrative law course that while state agencies in Minnesota must act within the confines of delegated authority, and only promulgate rules that are needed and reasonable, this latter restriction does not apply to lawmaking undertaken by the Minnesota Legislature. With a characteristic twinkle in his eye, Judge Johnson notes that as long as legislators operate within constitutional boundaries, the laws that they act need not be separately justified or demonstrably reasonable.

The decision in Wolter v. Department of Human Services, issued yesterday, seems to speak to Judge Johnson’s lesson. In Wolter, a non-custodial parent whose children were receiving health care services under Minnesota’s Medical Assistance program, challenged an agency rule that limited access to services at lower fees to custodial parents of enrolled children. Because the agency’s exclusion of non-custodial parents from eligibility followed directly from the underlying statute, the panel affirmed the Commissioner’s decision to deny Wolter’s demand for access at these lower prices. As the panel concluded, following the terms of the statute was appropriate even if the reasons that the Legislature had for excluding non-custodial parents was not known to, or explainable by, the Court.

The panel’s complete analysis is accessible here.

Timing is the Key to Quo Warranto - Government Shutdown Case

But for a quick sprint at the end of this year’s legislative session, and the needed approvals of the biennial budget bills, a decision of the Minnesota Court of Appeals issued today on the proper practice during a state government shutdown, might have been needed more than it was.

The appellate panel’s instruction on the proper use of the Writ of Quo Warranto, and the limits of this ancient Writ, will remain in the case law – perhaps ready for the next time the state budget process runs off of the proverbial rails.

Directly at issue in the case of State ex rel. Sviggum v. Hanson, was whether the Writ could be employed to confront exercises of official power that were no longer continuing. Weeks after the state government shutdown in July of 2005, and after a series of retroactive budget bills that ended the budgetary stalemate, several members of the Minnesota House and Senate filed suit challenging the earlier, court-ordered disbursement of $569,000,000 from the state treasury. The disbursements were pursuant to a series of emergency orders from the District Court for the Second Judicial District.

Noting both that the budget bills later ratified these disbursements, and that the orders of the District Court expired by their own terms, the panel reasoned that any usurpation of the Legislature’s budgeting and spending powers was not “continuing,” such that issuance of a Writ of Quo Warranto was not appropriate. Concluded the panel, if “the events of 2005 repeat themselves, the legislators can raise a timely challenge to seek a judicial remedy for their asserted injury.”

Likewise interesting, for those who are wont to watch the clock, the panel concluded that in a case where the Commissioner of Finance could not demonstrate specific prejudice, the doctrine of laches did not bar the legislators from filing of their own claims eight weeks after the original shutdown litigation petition was filed.

The panel’s complete analysis is accessible here.

The Privileges of "Next Friends"

While the special education hearing officers tussled over this case in Seattle last week (see post below), the United States Supreme Court made the call yesterday in an eagerly awaited decision in Winkelman v. Parma City School District.

The question raised by Winkelman was whether the parents of a disabled child could proceed in federal court, without a lawyer, as the child's "next friend," when challenging the special education rulings of an administrative judge.

While many in Seattle (and around the country) clashed over whether it is a good policy choice to permit non-attorney parents to represent themselves in these cases, the High Court, in my view, rightly focused on this case as a matter of statutory construction – namely, the specifics of Congress’ authorization when it enacted the Individuals with Disabilities Education Act.

All nine justices agreed that parents could proceed in their own name when making claims for reimbursement of private school expenses, following a denial of required services, and yet Justices Scalia and Thomas did not join the majority's broader holding that parents could proceed on claims as to whether their children had received a free and appropriate education.

The Court’s complete analysis is accessible here.

Sleeping Less in Seattle

While I was very lucky to have the chance to participate in this year's National Academy for I.D.E.A. Administrative Law Judges and Hearing Officers held at the Seattle University School of Law, the conference was a dizzying four-day swim through an alphabet soup of federal special education acronyms.

Having safely made this swim to the other academic shore, however, I am now well-tutored on BIPs, DVRs, FAPE, FERPA, IDEA, IEPs, LEAs, NCLB, OSEP, OSERS, RTI, SEAs and, as it happens, even a little bit about TBI.

As special as my education was, this week, I am glad to return to the prairie and our land of whole words.

A Real APA Case Decided by the Minnesota Supreme Court Today

The Minnesota Supreme Court grappled with the question of how broadly the doctrine of deferring to the agency's interpretation of its "own regulations" should be applied – namely, whether deference is appropriate for state agency interpretations of regulations promulgated by federal entities, when a state agency has local enforcement and administration roles under those regulations.

As a majority of the Court concluded, a state agency’s interpretation of a federal environmental regulation was entitled to deference in cases where the regulation was capable of more than one reasonable construction and the agency was charged with enforcing and administering the regulation at issue. In such cases, the federal rules can be characterized as the agency’s "own regulation."

The complete analysis, and interesting dissent of Justices Page and Meyer, is accessible here.

Sued If You Do, Sued If You Don't

On Tuesday of this week, a panel of the U.S. Court of Appeals for the Ninth Circuit handed down an interesting opinion in a "reverse" Establishment Clause challenge. The suit took aim at the removal of a cross from the Seal of the County of Los Angeles, and substituting this cross with an image of Mission San Gabriel, the first mission established in the county.

In a challenge to this substitution as an official act of anti-Christian hostility, Ernesto Vasquez sued the County in federal court; a suit that was later dismissed by the District Court.

Affirming the decision, the appellate panel concluded both that Mr. Vasquez had suffered sufficient injury to present a claim for relief following the removal of the cross, but that the County's purpose in avoiding a contrary suit by the Americans for Civil Liberties Union if the cross remained in the seal, was a "valid secular purpose" under Lemon v. Kurtzman.

Fans of the Hugh Hewitt radio show will also delight in finding that both of Hewitt's legal "Smart Guys" emerge in this opinion: "Smart Guy" John Eastman appears as counsel for amicus curiae the Claremont Institute, and "Smart Guy" Erwin Chemerinsky (and his tome on Federal Jurisdiction) is cited twice by the appellate panel.

The complete analysis, complete with its celebrity appearances, is accessible here.

The Fall of Roman

The United States Supreme Court has issued a draft of proposed modifications to its rules, which would change the practice at the High Court on a variety of subjects, including the size of the font type face to be used in briefs and appendices.

The current rule obliges filings in “Roman 11-point or larger type,” whereas as the new fashion after August 1, for the new term, would be “New Century Schoolbook 12-point type” or larger for briefs and “New Century Schoolbook 10-point type” or larger for footnotes.

For those who may be headed to the High Court soon, all of the proposed changes are accessible here.

Cautionary Tales on Regulations Which Incorporate Future Updates by Reference

Last Friday, a panel of the U.S. Court of Appeals for the District of Columbia Circuit issued an opinion that would be a worthwhile read for anyone who reviews draft regulations on behalf of clients.

The case involved the adjustment (and expansion) of the regulatory designations of "dangerous chemicals" under the federal Occupational Safety and Health Act. In 1983, the U.S. Department of Labor promulgated a regulation which obliged disclosures to workers regarding workplace chemicals that were listed in the “latest edition” of the “Threshold Limit Values for Chemical Substances and Physical Agents in the Work Environment” (“TLV list”), as published by the American Conference of Governmental Industrial Hygienists (ACGIH). No one apparently complained at the time that the regulation was first promulgated, about the prospect of incorporating into the regulatory standards changes later made by ACGIH.

When the ACGIH updated its TLV List in 2006, however, adding five new substances to the list, and lowering the "threshold limit values" on nine other substances, the National Association of Manufacturers (NAM) howled and then filed suit.

Dismissing the challenge, the appellate panel makes two important points about timeliness: The panel emphasized the fact that NAM neither complained at the time that the regulations were first promulgated that future changes by the ACGIH were incorporated by reference, nor did it assert in its petition for review of the 2006 changes that it was denied "a meaningful opportunity to challenge the agency action during the review period." As to the latter point, Circuit Judge Tatel points out that "[a]t oral argument, NAM did make a stab at such a claim, but that came too late for us to consider it."

The complete analysis, and its ever-timely reminders, is accessible here.

Challenge to Restrictions at the MSOP Annex Turned Away

In an interesting unpublished opinion issued on Tuesday, a panel of the Minnesota Court of Appeals turned away the due process challenges of two patients who have been indefinitely committed to the Minnesota Sex Offender Program. The challenges take aim at the stricter conditions of the new "MSOP Annex," at the now-expanded Moose Lake campus. Patient-appellants Larry Schultz and Rodger Robb claimed, among other items, that policies forbidding Annex patients to have personal computers in their rooms, and limiting computer use to those that are available in the common areas of the Annex, violated the due process guarantees of the federal and state constitutions.

Disagreeing, the panel noted that these claims did not state "a clear violation of the patients' rights," and that "the state must exercise its professional judgment to accommodate a growing patient population and provide a safe and secure facility for patients and staff."

One detail, perhaps only interesting to state trivia buffs, is that while the panel alludes to the fact that "[f]ollowing an escape of four patients at MSOP’s St. Peter location, patients’ computers were immediately removed from their rooms for security inspections," no mention is made of the fact that appellant Robb was among the escapees.

The panel's complete analysis is accessible here.

Petition All You Like; We Just Might Get Back to You

A unanimous panel of the U.S. Court of Appeals for the District of Columbia Circuit held today that while the First Amendment protects the right of citizens to “petition the Government for a redress of grievances,” it “does not impose any affirmative obligation on the government to listen [or] to respond” to those petitions.

Members of the group “We the People” challenged both the lack of official responses to questions they had propounded to government officials in earlier petitions and the IRS's “retaliation” against group members who refused to pay federal taxes until those inquiries were answered. As the panel summarized, “Executive and Legislative responses to and consideration of petitions are entrusted to the discretion of those Branches.”

The panel's complete and courteous reply on the topic of official silence, is accessible here.

Eighth Circuit: Withdrawal of Sentence-Reduction Credits as a Sanction for Treatment Refusal Does Not Compel Testimony

As detailed in an interesting opinion issued yesterday, North Dakota sex offender Bruce Entzi challenged the withdrawal of nearly a year’s worth of performance-based “sentence-reduction credits;” credits that would have otherwise shortened his prison stay on a criminal sexual conduct conviction. North Dakota officials withdrew the credits as a disciplinary sanction for Entzi’s refusal to participate in prison-based sex offender treatment.

As the Circuit panel concluded, notwithstanding the fact that North Dakota’s sex offender treatment program obliges offenders to discuss the events which resulted in their convictions, this treatment does not amount to “compelled testimony” barred by the Fifth Amendment.

The analysis of the Eighth Circuit panel is accessible here.

The contrary views of the Minnesota Court of Appeals on this same subject are accessible here and here.

Up to Date on State Data Practices

The Information Policy Analysis Division – or IPAD – today announced its updated index of Advisory Opinions on data practice matters.

The new interactive guide, which includes handy hyperlinks to the underlying opinions, is accessible here.