Within the Scope

Blogging on Administrative Law and the Public Sector

Friday, August 31, 2007

Tenth Circuit: Injury to Non-Residents From Tuition Law is Speculative

Yesterday, the U.S. Court of Appeals for the Tenth Circuit turned away a challenge by nonresident students of state universities in Kansas to a state law that permits certain illegal aliens to qualify for lower, in-state tuition rates at these institutions.

Affirming a lower court's grant of summary judgment in favor of the defendant universities, the panel held that any connection between the tuition subsidy for illegal aliens and the higher rates for nonresident tuition, was not made clear:

Here, the Plaintiffs’ failure to adduce any evidence in support of their theory of injury would force us into speculating on the inner workings of university and state budgetary mechanisms to discern a genuine issue of material fact over the existence vel non of this injury. The record is devoid of any evidence that Kansas public universities’ budgets are a zero-sum game or that the higher nonresident tuition rates that illegal aliens would pay in the absence of § 76-731a would even be available for redistribution to tuition reductions or educational services benefiting nonresident students like the Plaintiffs.
Also, the appellate panel held the nonresident plaintiffs were not the proper parties to insist that a federal law, which purportedly barred the state’s tuition practice, be applied against the universities.

The panel's complete analysis is accessible here.

What Lurks in the Hearts of Men? The Shadow (and some Multinomial Analysis) Knows

Researchers Keith S. Brown and Adam Candeub, have this week posted their analysis of the voting patterns of Commissioners of the Federal Communications Commission. Using Multinomial Logit and Multinomial Probit choice models, the duo analyzed a data set of 32,515 votes cast (over a period of 27 years) in the hopes of isolating the drivers of voting behavior among FCC Commissioners.

The two have some thought-provoking conclusions, namely that Commissioner voting behavior is better understood by the official’s individual needs and aspirations, than it is by his or her identification with a political party. As the team writes: “[W]hen there is disagreement, commissioners appear to be following the beats of their own drummers—whether they be ideological bias or some personal motivation emanating from a particular constituency or special interest…. All of which suggests that individual agendas, not raw partisanship, dominate ‘difficult’ decision-making.”

The paper piqued two reactions in me: The first is that we, as citizens, can delight in the fact that “the regulatory fix is not in;” and that party bosses apparently do not pull the levers of telecommunications policy in the United States. The second reaction I had is that if Commissioner decision-making is, as the researchers suggest, “idiosyncratic,” this fact tends to reinforce the phalanx of advocates, lobbyists and public relations teams that surrounds the agency. The flip side of the fix not being in, of course, is that it is an “open season” for advocates to frame pitches to the Commissioners' "inner drummers."

The Brown-Candeub analysis, and its counting of votes, is accessible here.

Wednesday, August 29, 2007

Two Sixth Circuit Cases are Worth Adding to Your Reading Pile

Yesterday, all of the really interesting happenings in the legal world were within the Sixth Circuit. Among the items recommended for publication by the U.S. Court of Appeals there, were:

l Operation King’s Dream v. Connerly, in which the appellate panel declined an invitation to invalidate a voter-approved amendment to the Michigan Constitution. The plaintiffs had originally filed suit to prevent the Michigan Civil Rights Initiative from being presented on the 2006 ballot, but were denied an injunction by the federal District Court. While the Sixth Circuit panel later appeared to accept the fact that there was misconduct by the petition circulators who worked to qualify the Initiative, once the measure had been approved by the voters, and was amended into the State Constitution, the panel held that it was too late in the ballot access litigation to invalidate the law. The panel’s complete analysis is accessible here.

l League of United Latin American Citizens v. Bredesen, in which the appellate panel turned away a challenge to Tennessee’s practice of limiting the issuance of driver licenses to citizens and permanent resident aliens. A group of temporary and illegal aliens to the United States had asserted that the restrictions violated the Equal Protection Clause and burdened the right to travel. Disagreeing, a divided appellate panel held that Tennessee’s driver license law did not create a suspect classification among less-than-permanent aliens nor did it substantially burden their interstate travels. The panel’s complete analysis is accessible here.
And summarized in this way, however pithily, hardly does justice to these opinions. Individually and together, they are chock full of interesting law, policy, procedural discussion and analyses. They are definitely worth some space on your night table.

Tuesday, August 28, 2007

Reissued Permit Prompts Reversal: That Was Then, This Is Now

In an interesting unpublished opinion issued today, a panel of the Minnesota Court of Appeals reversed the decision of the Minnesota Pollution Control Agency to re-issue a treatment discharge permit. The permit, which authorized the discharge of certain treated wastewater into Lake Winona, was a follow-on authorization in favor of the Alexandria Lake Area Sanitary District.

While the MPCA undertook revisions of the scientific models that it uses to assess environmental impacts, and the Sanitary District undertook construction of an expanded treatment facility, it seems that both the permit applicant and the issuer willingly extended the terms of the earlier permit. Apparently, both parties intended to return to the subject of permitted discharges once their respective upgrades were completed. Thus, the follow-on permit carried forward an earlier authorization to discharge 11.3 kilograms worth of phosphorous each day.

Reversing and remanding back to the agency, the appellate panel held that while the phosphorous “load limits” were identical to the earlier permit, the impact upon Lake Winona was not the same as before. As the panel observed, because these same load limits would result in a doubling of phosphorous concentration levels in the Lake, renewing the earlier authorizations now violated State and Federal water quality laws.

The panel’s complete analysis is accessible here.

Monday, August 27, 2007

Feeling (and Assuming) the Regulator’s Pain

Among the important regulatory questions arising out of the Washington heat this summer is how the Federal Communication Commission might direct policy so as to avoid concentration of media ownership generally, and promote minority and female ownership in media outlets in particular.

And while the Commission is eager to have suggestions on this topic, I found their recent solicitation of new methods emblematic of a much larger point. The FCC advises that while it delights in fresh ideas, regulatory advice would be put to an exacting review:
Any measures to facilitate minority and female broadcast entry that are based on racial or gender classifications must satisfy the heightened constitutional standards that apply to governmental preferences for minorities and women under the Equal Protection Clause. The Supreme Court's ruling in Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), requires that governmental classifications based on race must be analyzed under strict scrutiny, and are constitutional only if such classifications are narrowly tailored measures that further a compelling governmental interest. Gender classifications are subject to intermediate scrutiny, under which the government's action must be substantially related to the achievement of an important objective. In discussing a proposal targeted or designed to promote minority and female broadcast ownership, commenters should describe, consistent with relevant case law, how the proposal would satisfy constitutional standards. In particular, proponents of initiatives that rely on a definition of [socially and economically disadvantaged business] should explain [this] in detail.
While brusque, this disclaimer is perhaps understandable. By submitting a suggestion, the helpful advisor should be required to “stand in the shoes” of the agency, and abide by the same strictures that it faces. A suggestion has no practical value if it cannot meet such standards and actually be implemented. And this is particularly true in this case; where the prior effort at rulemaking was set-aside in a landmark 213-page opinion from the U.S. Court of Appeals for the Third Circuit (accessible here).

Sometimes, it seems, every regulatory step is fraught with peril.

So, if you have idea on how to solve the difficult riddle of promoting diverse media ownership, the federal regulators are all ears. Comments are due by October 16, 2007.

Hugs for rule writers, however, are always timely.

The Rule Writers' “Old Home Week”

The Annual “Minnesota Rulemaking Seminar” turns 12 this year, and returns to its spacious quarters in the “Mississippi Room” at the Minnesota Department of Health’s Energy Park Drive facility.

Scheduled for the morning and afternoon of Wednesday, September 26, 2007, the annual seminar is the not-to-miss event for those who are interested in state rulemaking.

Sponsored each year by the Interagency Rules Committee, this year’s seminar again includes both a morning seminar and an afternoon rule-writing clinic, for a combined total of 5.25 hours of continuing legal education credit.

And, thanks to the generosity of the IRC, this year seminar is ABSOLUTELY FREE.

Pre-registration, however is required; and that form is accessible here.

Saturday, August 25, 2007

On Remand: Regulating Greenhouse Gases (and Perhaps Lots More) Following Massachusetts v. EPA

In 2003, Massachusetts sought review of the Environmental Protection Agency's decision not to regulate carbon dioxide emissions from new motor vehicles under authority of the Clean Air Act. Massachusetts had petitioned the EPA to regulate carbon dioxide emissions because of concerns over global warming, but the EPA claimed that it did not have the authority to regulate these emissions under the Act.

Disagreeing, the High Court ruled this past April that the EPA did have this authority and that the agency's rejection of the rulemaking petition was not otherwise in accordance with law. As Justice Stevens observed: “Under the clear terms of the Clean Air Act, EPA can avoid taking further action only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do.”

While the items linked below are a little dated, they are two really interesting panel discussions on the twists and turns that might occur following the High Court's remand in this case:
A breakout session from the American Constitution Society convention in July, accessible here; and,

A forum hosted by the American Enterprise Institute from May, accessible here.
Among the colloquies that I found most interesting during these sessions was the panelists' discussion of the breadth and continued viability of the Court's earlier decision in FDA v. Brown & Williamson Tobacco Corporation, 529 U.S. 120 (2000). In Brown & Williamson, the Court held that Congressional intent to have the Food and Drug Administration regulate tobacco could not be lightly inferred from a broad federal definition of the term “drug;” a conclusion that led many to suggest that “really significant” regulation could only follow from explicit Congressional directives. (Indeed, the EPA pointed to the decision in Brown & Williamson when it asserted that it was without authority to regulate carbon dioxide emissions under the terms of the Clean Air Act.)

These sessions present a lot of interesting things to think about. And your iPod will love you for it.

Thursday, August 23, 2007

Clients’ Disabilities Disable Voting Rights Challenge

In a published opinion issued today, a unanimous panel of the U.S. Court of Appeals for the Eighth Circuit turned away a challenge to Missouri laws that bar those who are under a court-ordered guardianship from registering to vote or casting a valid ballot.

Affirming a lower court’s dismissal of the complaint, the panel held that a federally-funded advocacy group for the disabled – Missouri Protections and Advocacy Services, Inc. – did not have sufficient standing to assert claims on behalf of the constituents it serves. As the panel reasoned, because MOPAS’ clients are unable to guide the organization's efforts, MOPAS was not the type of association that could assert voting rights claims on behalf of its clients.

Other, smaller points of interest include: (1) the participation on the panel of retired U.S. Supreme Court Justice Sandra Day O’Connor (who sat by designation), and (2) the panel’s quick dispatch of a government defense that the Attorney General and Secretary of State had “no real connection” with Missouri’s laws that restricted voting by incapacitated wards.

The panel’s complete analysis is accessible here.

Wednesday, August 22, 2007

National Judicial College Looks at Judges Who Blog

The just released summer issue of Case in Point, a magazine of the National Judicial College, includes a features story entitled "Are You Out There - Blogging on the Bench."

Alongside some helpful Do's and Dont's for Judges who make postings to the internet, the article includes an important admonition from Judge Susan Criss of the District Court of Texas:

In one of her blogposts, Judge Criss wrote, “I decided to publish this blog after being inspired by the bloggers who post about the justice system and the government.” While her intent is to share information and knowledge, she is mindful of judicial ethics. In her blog, she also writes, “The Judicial Code of Conduct limits my ability to discuss pending litigation in my court. I have to refrain from expressing opinions about subjects that could lead to my being recused from hearing certain lawsuits. Don’t assume that you can guess how I will rule on matters in court based on what you read here.”

That goes for me too.

Within the Scope has been my effort to share with a broader audience some of the case law and regulatory developments that have crossed my desk. In my posts, I have genuinely tried to keep to a “just the facts, ma’am” writing style. Indeed, as Justice Ruth Bader Ginsburg more elegantly described the right rule in July of 1993: “No hints. No forecasts. No previews.”

Indeed, I post despite the potential hazards because I have genuinely benefited from the colloquies on the law that have occurred here in the Twin Cities, over the wider regions of the Eighth Circuit, and yes, with the occasional international visitor, because of this blog. That learning has made me a much better person, lawyer and judge. As it has turned out, what is Within the Scope is much larger than I could have ever guessed at some 200 posts ago.

Which brings me to a very important point: If I have not told you recently, thank you reader for tuning in.

The complete (and very interesting) Case in Point article is accessible here.

Bureau of Prisons Seeks Comment on Federal Civil Commitment Rules

On August 3, 2007, the U.S. Bureau of Prisons proposed rules that would set definitions and standards for certifying persons as sexually dangerous for the purpose of the federal civil commitment law. The proposed rules are intended to fill regulatory gaps in the Adam Walsh Child Protection and Safety Act of 2006 (Pub. L. 109–248).

For those who are familiar with Minnesota's Sexually Dangerous Person and Sexual Psychopathic Personality statutes, the proposed federal regimen would be both broader and narrower than Minnesota’s civil commitment laws.

The Bureau is seeking comments on its proposed rules (which are accessible here) by October 2, 2007.

Tuesday, August 21, 2007

Civil Commitment Holds and the Internal 60-Day Clock

In an unpublished opinion issued today, a panel of the Minnesota Court of Appeals turned away a Steele County man's challenge to a pre-civil commitment order detaining him in the Minnesota Security Hospital. In a single appeal, James Ronald Christenson sought review of both the District Court's pre-civil commitment detention order and the later granting of the County's civil commitment petition.

Affirming the District Court below, the panel noted that “[a]n aggrieved party may appeal a hold order within sixty days after the order is filed,” Christenson's appeal came more than a year after the hold order was entered by the District Court and that following his civil commitment “the hold order has expired and can no longer be enforced or dismissed and … is not otherwise subject to resolution through the judicial process.” As to the pre-civil commitment hold, Christenson's challenge was both untimely and moot.

The panel's complete analysis is accessible here.

Eighth Circuit Affirms Injunction on Bible Distribution Despite the School Board’s Cafeteria Plan

A unanimous panel of the U.S. Court of Appeals for the Eighth Circuit today affirmed the entry of a lower court injunction barring representatives of the Gideons International from distributing bibles to fifth grade students of the South Iron Elementary School.

A majority of the South Iron R-1 School District sought to maintain its earlier practice of having the Gideons distribute bibles to the fifth-grade class, over the objections and contrary recommendations of the District’s counsel, its Superintendent and its insurance carrier.

At the request of local parents who later filed suit, the U.S. District Court for the Eastern District of Missouri entered a preliminary injunction barring the defendants from “distributing or allowing distribution of Bibles to elementary school children on school property at any time during the school day … until trial on the merits of the case, or until otherwise ordered by the Court.”

The School District sought to avoid the entry of an injunction by revising its policy 10 days before the injunction hearing. Under the updated policy, a broad range of literature distribution efforts were to be permitted “in front of the administrative offices of the District or at a table provided by the District in the Northwest corner of the cafeteria.”

Affirming the entry of a broader injunction until “a full trial record has been developed,” the panel was not swayed by the issuance of the updated policy or its designation of non-classroom locations. The panel's complete analysis is accessible here.

Sunday, August 19, 2007

The Gatekeepers, Scholarship and Fame

Salesman and Executive Trainer Cullen Hightower often quipped that “people seldom become famous for what they say until after they are famous for what they've done.” He could well have been speaking about the struggle that some legal academics have in placing their written works into prestigious law journals.

University of St. Thomas Law School Assistant Professors Leah M. Christensen and Julie A. Oseid have undertaken a close inquiry into how student-led law reviews make selection and publication decisions of scholarly works. Ever mindful of the aphorism that academics either “publish or perish,” Professors Christensen and Oseid inquire into what role, if any, law school journal editors have on article placement, and thus the career success, of legal academics.

Alongside a great number of really useful tips on how academic writers can improve their chances of having their work selected for publication in well-regarded journals, the duo concludes that “[e]ditors at higher-tiered law schools were highly influenced by where an author has previously published” and “not a single editor at a Top 15 school considered an author's practice experience in making a publication decision ....”

Similarly, Jason P. Nance and Dylan J. Steinberg, both of whom are clerking for federal judges this year, and are themselves former editors of the University of Pennsylvania Law Review, add their own assessment. In an article that will appear in an upcoming issue of the Albany Law Review, Nance and Steinberg pointedly conclude: “Articles Editors seek to publish articles from well-known and widely-respected authors ... [although they] do not assume that prestigious authors produce the best scholarship, but instead they pursue the work of well-known authors because it can increase their journals' prestige within the legal academic community.”

Both studies are available for downloading from the Social Science Research Network. The Christensen-Oseid article is accessible here. The Nance-Steinberg article is accessible here.

Saturday, August 18, 2007

The Sticky Wiki

As someone who loves to blog, I was immediately drawn into this morning’s Book TV discussion on Andrew Keen’s new book: The Cult of the Amateur - How the Democratization of the Digital World Is Assaulting Our Economy, Our Culture, and Our Values.

Keen’s thesis is that open access sources such as Wikipedia are in the short-term, dangerous, and in the long-term, harmful to the infrastructure that produces reliable news, information and creative content.

Among the sparks that flew during the discussion was Wired Magazine Jeff Howe’s observation to the effect that even Jimmy Wales, the founder of Wikipedia, does not intend for his website to be cited as an authoritative source.

That remark turns out to be true. In an exchange during an interview with Business Week in 2005 Mr. Wales remarked:

Business Week: Do you think students and researchers should cite Wikipedia?

Wales: No, I don't think people should cite it, and I don't think people should cite Britannica, either -- the error rate there isn't very good. People shouldn't be citing encyclopedias in the first place. Wikipedia and other encyclopedias should be solid enough to give good, solid background information to inform your studies for a deeper level. And really, it's more reliable to read Wikipedia for background than to read random Web pages on the Internet.

The disclaimer caught me by surprise because of the continuing trend in the case law for courts to cite Wikipedia as an authoritative source for one or another proposition.

For example, in March of this year, Mark Giangrande of Tech Law Prof Blog, catalogued 45 citations to Wikipedia in federal court opinions and an additional 28 citations by the state courts. Professor Giangrande's citations are certainly consistent with the poking around that I have done among the decisions of courts within the Eighth Circuit.

The most celebrated critique of this citation practice is from Judge Allegra of the U.S. Court of Federal Claims. Last year he rebuked a Court Special Master’s reliance upon definitions from the now-defunct Wikipedia spin-off, Explore.Medicine.com. Wrote Judge Allegra:
A review of the Wikipedia website reveals a pervasive and, for our purposes, disturbing series of disclaimers, among them, that: (i) any given Wikipedia article “may be, at any given moment, in a bad state: for example it could be in the middle of a large edit or it could have been recently vandalized;” (ii) Wikipedia articles are “also subject to remarkable oversights and omissions;” (iii) “Wikipedia articles (or series of related articles) are liable to be incomplete in ways that would be less usual in a more tightly controlled reference work;” (iv) “[a]nother problem with a lot of content on Wikipedia is that many contributors do not cite their sources, something that makes it hard for the reader to judge the credibility of what is written;” and (v) “many articles commence their lives as partisan drafts” and may be “caught up in a
heavily unbalanced viewpoint.”
Perhaps the best advice in this regard comes from Time Magazine’s Lev Grossman, who remarked during the Book TV panel discussion that Wikipedia permits quick introductions to a topic area and related primary sources, but itself is not a primary source.

Thursday, August 16, 2007

The Helping Hand that Later Becomes a Hold

On Tuesday of this week, a unanimous panel of the Minnesota Court of Appeals issued an interesting decision on the reach of Minnesota's Sexually Dangerous Person statute. At issue in the case was whether the target of a civil commitment petition could properly seek dismissal of the action (and the referral to the Minnesota Sex Offender Program) on the grounds that he was an enrolled member of the Red Lake Band of Chippewa Indians.

Under Public Law 280, Minnesota's otherwise broad criminal jurisdiction and limited civil jurisdiction over ‘Indian country’ within the state expressly excludes the Red Lake Reservation. Moreover, Congress has not otherwise expressly provided Minnesota with jurisdiction to civilly commit members of the Red Lake Band.

In ruling that the state did have sufficient jurisdiction over this band member, John Louis Beaulieu III, the panel undertakes the careful review of Public Law 280 that one would ordinarily expect. However, a surprising and thought-provoking piece of the analysis is the panel's observation that because Beaulieu had earlier-received “supportive therapeutic services” in two different government-supported residential facilities, there was “an adequate connection with the state for purposes of personal jurisdiction” on the civil commitment petition.

The panel's complete analysis is accessible here.

Leap Before You Look

Yesterday, U.S. District Court Judge Patrick J. Schiltz held argument on, and issued a ruling denying, an earlier-filed request from the Schwebel, Goetz and Sieben law firm for an Order permitting the inspection of the site of the I-35W bridge collapse. The Schwebel firm sought leave to inspect the site so as to preserve evidence for litigation on as yet unspecified claims that certain unnamed persons may have against various corporate and governmental entities. The site is presently under the control of the National Transportation Safety Board.

Denying the request, Judge Schiltz held that the Schwebel firm had not demonstrated that its clients’ claims were cognizable by the federal court, that the government officials at the site could not be relied upon to preserve relevant evidence or that the Schwebel firm’s clients were situated differently than any other person impacted by the collapse.

While an Order providing for the inspection might be well-grounded once the plaintiffs have leaped into litigation, at a minimum that they would be required to leap before they look.

The complete analysis is accessible here.

Tuesday, August 14, 2007

The Delegation of Rulemaking Authority that Occurs When a Man Says: “I do.”

While I have only recently happened along the audio clip of from the Federalist Society’s Administrative Law Section conference “Agency Preemption: Speak Softly, But Carry a Big Stick” – notwithstanding that the conference was held last November – it is certainly worth downloading to your computer.

In addition to the panel’s dynamic and interesting set of observations on “implied field preemption” and “implied conflict preemption,” Robert A. Cass, former Dean of the Boston University School of Law sparked a hilarious exchange on the landmark cases of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. and Skidmore v. Swift & Co. With his wife sitting in the front row of the audience, Dean Cass summarized the holdings from those cases in this way:
For those of you who are not familiar with the jargon, “Chevron deference” is what I give to my wife. I know that we are going to wind up doing what she says, so we start out with the presumption that that is what we are going to do….

Skidmore deference” is what she gives to me…. The nice thing about Skidmore deference is that we do what I say when she is persuaded that it is what she wants to do anyway….
And, as one wag playfully joined in, as no deference to him at all was also an option, the Dean was lucky and well-married to receive Skidmore deference at home.

All joking aside, while this program is a little dated, it is a very lively, provocative, not-to-miss panel (and is accessible here).

Saturday, August 11, 2007

The Wedding, the Bill and Some Surprising Metrics for the New Year

I was at a wedding reception last weekend and had the chance to reminisce with a senior state official about the good old days at the Minnesota Legislature. In a frolic that was in keeping with the festivities that evening, and a generous open bar, this official regaled a group of us with a remembrance of what he recalled as one of his “favorite legislative hearings.”

The senior official recalled an evening committee hearing for a bill sponsored by “Minnesota’s Political Odd Couple” – then State Representative, and now U.S. Congressman, Keith Ellison, and yours truly. The bill, which drew a crowd of passionate advocates on both sides, proposed to raise the different threshold amounts that trigger prison sentences for drug possession. The official recalled both the Minneapolis Star-Tribune editorial that the two upstart legislators wrote (still accessible here) and the general uproar that we sparked (see, e.g., here and here).

The argument advanced by Representative Ellison and I was pretty straightforward, if politically volatile: We said that when one compares the sentences for drug possession crimes under the laws of different states, the presumptive sentences meted out in Minnesota were the harshest in the nation. The resources that went to imprison nonviolent offenders for these comparatively longer periods of time, we continued, could be better spent on drug treatment for these same offenders.

As glasses clinked around the official and me back at the reception, some guests giggled good-naturedly over whether Representative Ellison and I were brave, or simply on leave of our senses, when proposing such a change.

Today, however, I do not feel so crazy. The Minnesota Sentencing Guidelines Commission, at the direction of the State Legislature, is looking at revising the sentencing grid that the two upstarts (now both gone from state legislative service) had once questioned. The Guidelines Commission announced plans on Friday to begin a new study of state drug sentencing and to prepare proposals for sentencing reform. And the inquiries that are being undertaken are nothing short of remarkable. Among other topics, the Legislature has directed the Commission to report on the:
· proportionality of Minnesota's drug sentencing provisions when compared to drug sentencing provisions throughout the United States, including the Federal system;

· average and the range of criminal history scores for each level of drug offender currently incarcerated in Minnesota's prisons;

· type and quantity of Minnesota correctional resources that are dedicated to all drug offenders; and

· projected annual cost to the Department of Corrections of incarcerating all drug offenders in state prisons over the next ten years, under present grid rankings and under the proposed grid rankings.
As another good friend remarked: “It’s not that you’re ahead of your time; it is just that no one listens to you in the first place….”

Well, better that than being crazy.

Wednesday, August 08, 2007

Spectrum Sale 101: Explaining the Big Auction to the Rest of Us

Under the Digital Television and Public Safety Act of 2005, Congress established a deadline of February 17, 2009 for television broadcasters to end analog transmissions on the 700 MHz band of the public airwaves; a move that is intended to make way for a spate of new technologies, applications and uses on this band. The Act also requires the Federal Communications Commission to begin a public auction of this super-valuable spectrum no later than January 28, 2008.

By way of an Order adopted on July 31, the FCC formally revised the plan and rules for the 700 MHz band spectrum and set in motion the mechanics of this much-anticipated auction.

Under the terms of this Order, the winning bidder for “the 10-megahertz Upper D Block” of the spectrum will build a nationwide, interoperable network for use by public safety entities. Public safety organizations will have priority access to this portion of the spectrum in times of emergency, but grant to the commercial licensee “preemptible, secondary access” to this same spectrum.

Additionally, the FCC provided that that licensees for the large “22-megahertz Upper C Block” will be required to provide an “open access” network platform that will permit entities that are not associated with the winning licensee – such as smaller, device manufacturers and third-party application developers – to know the operating details for the network. It is hoped that with open access to the platform’s blueprints and protocols, hundreds of smaller developers will create new, spin-off technologies that can be used on this network.

Our national treasure, C-SPAN, has done a wonderful series of interviews with key players in and around the spectrum sale. Geared as they are to a general (non-technical) audience, these interviews form a good tutorial on the interesting economic and regulatory issues that are prompted by the sale. The interview with:
· Amol Sarva, with the application developer’s perspective, is accessible here;

· Reed Hundt, with a bidder’s perspective, is accessible here;

· Congressman Frederick Upton, with a policy and budgetary perspective, is accessible here;

· Paul Gallant, with a market and investor perspective, is accessible here.

Tuesday, August 07, 2007

Profanity, Maltreatment and the Art of Reading Closely

While the facts are perhaps distinguishable, particularly by able counsel, there seems to be quite a small space between the caregiver misconduct in this case from April and the misconduct in this case, handed down today.

Both cases involve profane and inappropriate behavior by caregivers of vulnerable adults; both are precedential instruction from the Court; and yet have quite different outcomes. Thus, they deserve close reading, together.

And, until caregivers and counsel have the chance to read both opinions side-by-side, my Mother's advice seems best: "If you don't have something nice to say, don't say anything at all…."

Blockbuster First Week Slated for High Court in October

The United States Supreme Court has recently issued its oral argument calendar for its first days of the new term. Among the listings are two cases that involve the associational rights of political parties and another that raises important questions as to the ability of parents to recover special education expenses.

Monday, Oct. 1: Washington State Grange v. Washington State Republican Party.

By way of direct initiative, the voters of the State of Washington enacted a primary election process in which the two candidates with the highest vote totals in the primary election, regardless of party designation, proceed to the general election. Additionally, this law permits the candidates who advance from the primary to designate, and have listed on the general election ballot, the names of the political party (if any) that those candidates personally prefer.

Washington State Republicans objected to this statute, regarding it as compelling them to associate (and to have their name used on the ballot) with candidates not of their own choosing. Agreeing, the U.S. Court of Appeals for the Ninth Circuit invalidated this system, holding that the First Amendment prohibits a State from permitting a candidate to so disclose the name of the party he or she personally prefers on the ballot.

The Ninth Circuit opinion is accessible here and the Petitioner’s Merits Brief is accessible here.
Monday, Oct. 1: Board of Education of the City of New York v. Tom F.

Tom F is the parent of a disabled child, Gilbert F., who resides within the boundaries of the New York City School District. Since the time that Gilbert was eligible to receive a public education, he has attended private schools that were not approved by the Commissioner of Education of the State of New York for the provision of special education services.

Tom F. sought reimbursement of the tuition expenses he paid for Gilbert’s schooling and both the District Court and the U.S. Court of Appeals for the Second Circuit agreed that he was entitled to recover these expenses under the Individuals with Disabilities Education Act.

The question for the High Court is to what extent must a parent and child try the special education placement offered by the public schools before seeking reimbursement of private school expenses?

The Second Circuit’s opinion in a related case, Frank G, is accessible here and the Petitioner Board of Education’s Merits Brief is accessible here.
Wednesday, Oct. 3: New York Board of Elections v. Torres

In August of 2006, the U.S. Court of Appeals for the Second Circuit affirmed a lower court’s entry of an injunction directing the State of New York to determine party nomination for state trial judges by way of direct primary and not, as had previously been the practice, by party nominating convention.

The Second Circuit’s opinion is accessible here and the Petitioner Board of Election’s Merits Brief is accessible here.

Sunday, August 05, 2007

D.C. Circuit Directs the Return of Some of Congressman Jefferson’s Papers

On Friday, a divided panel of the U.S. Court of Appeals for the District of Columbia Circuit held that the first-ever execution of a search warrant at the office of a sitting Member of Congress violated the Speech and Debate Clause of the federal constitution.

On Thursday, May 18, 2006, the Department of Justice filed an application for a search warrant for Room 2113 of the Rayburn House Office Building, the congressional office of Congressman William J. Jefferson. The FBI affidavit in support of the warrant described how the apparent victim of a fraud scheme led agents to investigate bribery of a public official, wire fraud, bribery of a foreign official, and conspiracy to commit these crimes. The investigation included speaking with a member of the Congressman’s staff, who stated that records relevant to the investigation remained in the congressional office. Based upon their investigation, FBI agents believed that Congressman Jefferson sought and accepted payments in exchange for undertaking certain official acts. A team of FBI agents executed the warrant on the following Saturday evening.

Concluding that execution of the warrant “did not impermissibly interfere with Congressman Jefferson’s legislative activities,” the district court denied the Congressman’s later motion for return of the seized materials.

Disagreeing, the appellate panel held that “the compelled disclosure of privileged material to the Executive during execution of the search warrant for Rayburn House Office Building Room 2113 violated the Speech or Debate Clause and that the Congressman is entitled to the return of documents that the court determines to be privileged under the Clause.” The panel majority went on to caution, however, that “in the absence of a claim by the Congressman that the operations of his office have been disrupted as a result of not having the original versions of the non-privileged documents, that remedying the violation also requires the return of the non-privileged documents.”

The panel’s discussion on the reach of the Speech and Debate Clause, and Circuit Judge Henderson’s separate concurrence that has a very different take on matters, is accessible here.

Saturday, August 04, 2007

Federal Circuit: D.C. Drug Pricing Law Violates the Patent Clause of the Constitution

In a decision issued on Wednesday of this week, a panel of the U.S. Court of Appeals for the Federal Circuit affirmed a lower court's decision to enjoin the District of Columbia's Prescription Drug Excessive Pricing Act.

Under the Act, drug manufacturers were subject to suit if they had undertook actions that resulted in patented prescription drugs being sold in the District of Columbia at prices that exceeded retail prices in Australia, Canada, Germany or the United Kingdom by more than 30 percent. Moreover, the Act conferred standing to file suit upon “any person directly or indirectly affected by excessive prices of patented prescription drugs....”

Affirming the lower court's injunction, the panel held that the District of Columbia exceeded its powers when it sought to “change federal patent policy within its borders.” As the panel reasoned, “[t]he underlying determination about the proper balance between innovators’ profit and consumer access to medication, though, is exclusively one for Congress to make.”

The complete opinion is accessible here.

Friday, August 03, 2007

Rapid Round-Up – Brief Reviews of a Fascinating Week at the Minnesota Court of Appeals:

Exhibits are for Filing: Retired Administrative Law Judge Allan Klein would often remark that an OAH litigant who “saves” the best arguments and materials for presentation to the Commissioner, on the grounds that the agency head is the real decision-maker, makes a grievous error. This week, the Court of Appeals issued a decision that confirms Judge Klein’s axiom; albeit in an unpublished opinion. The panel upheld the Commissioner’s determination to exclude from consideration materials that were not part of the record assembled by the Administrative Law Judge below. The complete opinion is accessible here.

That’s a Manufactured Home, Not a Mobile Home: In an unpublished opinion, the panel makes short work of the appellant’s claim that because its park hosted “manufactured homes,” without wheels, it was beyond the reach of the regulations in Part 4630. Part 4630 is titled “Camps and Mobile-Home Parks.” The complete opinion is accessible here.

I Really Hate Them; I'll Think of a Reason Later: Reminiscent of Lee Ann Womack’s hit song, this week an appellate panel turned away the challenge of a charter school whose sponsorship agreement had been terminated by the local school board. The panel affirmed the termination notwithstanding the fact that the rationale for the Board’s action (as expressed in a letter and later affidavits) was not detailed until after the statutory deadline for the termination action had passed. The complete opinion is accessible here.

Equitable Compensation is a Goal, Not a Mandate: In a published opinion, the Court affirmed the earlier dismissal of a declaratory judgment action filed by the Minnesota Association of Professional Employees. The employee union had hoped to establish government liability for pay differentials among workers of different genders, based upon the Hay Corporation’s analysis of various job duties. The panel concluded that the Commissioner of Employee Relations only had a duty to report apparent pay disparities to the Legislature; and was not to duty-bound to affect specific cures. The complete opinion is accessible here.

Wednesday, August 01, 2007

Modeh Ani - For the Ten Minutes I Needed

Modeh Ani ” – Hebrew for the phrase “I give thanks” – are the first words of a longer prayer that observant Jews say immediately upon waking in the morning. These first words of the day set an important context for everything that is to follow; gratitude for what God has given us, and humility as to what we might amount to on our own account.

Like everyone in Minnesota, our family was horrified to learn that the Interstate 35-W overpass across the Mississippi River collapsed at 6:05 p.m. this evening; injuring many; some fatally.

Tonight I crossed this same overpass, safely, at approximately 5:55 p.m. I know that had one of the phone calls from today lasted a tiny bit longer than it in fact did; had I struggled with this or that letter more than was the case; had I lollygagged on my way from the office to the parking ramp; had any one of a hundred things been different than it was, I could have been among the victims of the collapse.

Modeh Ani: For the ten minutes I needed. For another day with my family. For everything.

Modeh Ani.