Within the Scope

Blogging on Administrative Law and the Public Sector

Sunday, September 30, 2007

Oyez! Oyez! Oyez! Draw Near to the Supreme Court Previews

Remarkably, it is the last day of September already....

Because the U.S. Supreme Court begins its 2007-2008 term tomorrow, court watchers have called a spate of "Previews" that look ahead to the new Supreme Court Term. And, as the calendar for the first five days of argument reveals (accessible here, with hyperlinks to the issues upon which certiorari was granted), there is a lot to preview.

Below are links to the preview panels that I have found, split into two categories: Those in which audio or video links are now available and those as to which podcasts will be forthcoming.

Previews that are accessible today:

n Cato Institute "2007 Constitution Day" Supreme Court Preview (accessible here).

n Federalist Society 2007 Supreme Court Preview (accessible here).

n American Constitution Society 2007 Supreme Court Preview (accessible here).

Previews that will be posted to the Internet soon:

n American Enterprise Institute 2007 Supreme Court Preview (check back here).

n Duke Law School 2007 Supreme Court Preview (check back here).

n National Public Radio's "Justice Talking" 2007 Supreme Court Preview (check back here).

As the bailiff will declare tomorrow: "Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting." It is sure to be quite a year.

Saturday, September 29, 2007

Brain Food: A Healthy Diet of New Articles

A spate of interesting new articles were posted this week to the Social Science Research Network. Below, are some of the items that I downloaded:

n In Surfin’ Safari — Why Competent Lawyers Should Research on the Web, Ellie Margolis, of the Temple University Beasley School of Law, argues that the lawyer's ethical obligations to be competent, dilligent and candid toward tribunals, all require the lawyer to be an effective legal researcher. More pointedly for lawyers who practice administrative law, Professor Margolis observes: "A lawyer who fails to use the internet, particularly when researching administrative issues, is likely to miss key sources that a judge would expect to see cited. Particularly in the context of administrative practice, failure to research on the internet could easily fall below the standard for competent research."

And, with a hat tip to Within the Scope readers, Margolis encourages "a lawyer seeking to rise above the minimum level of competence" to consider reading relevant law-related blogs. The complete article is accessible here.

n In The Battle Over Implied Preemption — Products Liability and the FDA, Mary J. Davis, of the University of Kentucky College of Law, explores the history of preemption doctrine as it relates to the food and drug laws and evaluates the application of this doctrine in the context of current product labeling suits. Davis argues that extending the implied preemption doctrine so as to bar suits that challenge the content of drug labels that were earlier approved by the FDA, "would be an expansive application of the Court’s conflict preemption doctrine" and would dampen the incentives "for manufacturers to seek better and more complete information regarding the adverse side effects of the prescriptions we take." Pointing to the considerable influence of domestic pharmaceutical companies, Davis posits that "the products liability litigation system is a critical component to create incentives for greater access to risk information to insure the public’s health." The complete article is accessible here.

n In Regulating Political Contributions by State Contractors — The First Amendment and State Pay-to-Play Legislation, Melanie D. Reed, of the Texas Tech University School of Law, analyzes the "pay-to-play" campaign finance restrictions of six states. Reed argues that the laws of Connecticut and New Jersey may be unconstitutionally overbroad because they prohibit contributions from individuals who are not directly related to state procurements, and in favor of recipients who may not be in a position to award state contracts. She urges states to more closely tailor the reach of such laws so as to focus on those contributors and recipients with direct connections to the contract award process. The complete article is accessible here.

Friday, September 28, 2007

Ad Hoc Committee Announces the Great Eight

This afternoon, Governor Tim Pawlenty announced that he has accepted the recommendations of the Ad Hoc Screening Committee that reviewed résumés and conducted interviews for the three new judgeships on the Minnesota Court of Appeals.

The names and short biographies of the eight finalists who will proceed to interview with the Governor are accessible here.

The Governor will appoint three judges to fill terms beginning on January 1, 2008.

Thursday, September 27, 2007

A Handy Refresher on Quasi-Judicial Immunity

In a published opinion issued yesterday, a panel of the U.S. Court of Appeals for Eighth Circuit clarifies the immunity rules that surround suits against government officials for their “quasi-judicial” acts.

Sorting through a familiar source of confusion, the panel reminds us that: “absolute, quasi-judicial immunity only extends to claims against defendants sued in their individual—not official—capacities.”

Stated another way, absolute immunity is a defense that is available to governmental employees, but not to government entities.

The panel’s complete set of reminders is accessible here.

Wednesday, September 26, 2007

Clamoring for Prison

Among the most interesting and enduring issues under Minnesota’s Sexually Dangerous Person statute, are the conditions of treatment at the Minnesota Sex Offender Program (MSOP). The SDP statute requires – so as to avoid the constitutional hazards associated with “preventive detention” – that treatment is to be provided to an SDP patient in the setting that is the least restrictive alternative.

Not surprisingly, policymakers, advocates and patients will often disagree as to whether MSOP’s rules are too restrictive or well-tailored to its difficult mission. Moreover, as the rules and conditions within MSOP change over time, the comparisons between the conditions of civil commitment, and other forensic settings, is renewed.

Against this backdrop, an unpublished opinion issued Tuesday by the Minnesota Court of Appeals is an interesting addition. Adam Leroy Meyer argued that if his SDP commitment were sustained, a court order confining him to state prison – and not the MSOP – would be the least restrictive treatment alternative.

Because Meyer had yet to complete prison-based sex offender treatment, however, the appellate panel declined to reach this issue. Yet Meyer raises a provocative question that is likely to recur – either in the context of a later review of his case or that of a similarly situated patient.

So that you might likewise consider the intersections between various forensic facilities – be they civil or criminal – the panel’s complete analysis is accessible here.

Committee Issues Report on Code of Judicial Conduct, Seeks Your Views

Posted to the state courts' website this afternoon is an electronic version of a Report issued by the Supreme Court Advisory Committee to Review the Minnesota Code of Judicial Conduct.

The Committee developed a series of proposed revisions to the Code following the decisions of the United States Supreme Court and the U.S. Court of Appeals for the Eighth Circuit in the case of Republican Party of Minnesota v. White.

The Committee would now like to hear from you as to their work.

The draft proposals are accessible here, alongside detailed instructions as to how members of the public may submit comments and suggestions.

Comments are due by the close of business on Monday, October 15 in advance of a public hearing hosted by the Committee that is scheduled for 9:00 a.m. on Wednesday, October 17, 2007.

Another Year Older: The Annual Rulemaking Seminar Celebrates its Twelfth Year

The state rule writers "old home week" was a great success today, with another near-capacity crowd filling the Department of Health’s Mississippi Room.

Photos from today's event are linked here.

Also, for the benefit of those who could not participate in the seminar today, we are working on digitizing the recordings from the various presentations, in the hopes of offering the first-ever Inter-Agency Rules Committee podcast. (Fingers crossed....)

Stay tuned to Within the Scope for additional details about accessing these items.

In the meanwhile, be sure to wish a rule writer near you a very Happy 12th Anniversary.

Tuesday, September 25, 2007

Who Should Wield the Draftsman’s Pen: Legislators or Judges?

Posted to the Social Science Research Network this week are two worthwhile articles that explore the dividing lines between the legislative and judicial branches of government.

The first article, from David Gans of the Floersheimer Center for Constitutional Democracy at the Benjamin N. Cardozo School of Law, is entitled Severability as Judicial Lawmaking. In this article Gans argues that courts should not use methods of divining legislative intent when considering whether or not to strike down a statute. As Gans details, frequently a court will inquire as to whether the legislature would prefer the court to sever the offending portion of the statute, or instead strike down the entire measure as an unseverable plan. Gans asserts that the doctrine of severability “should be seen as part of the federal common law of constitutional remedies and informed by structural constitutional values” – matters as to which “legislative intent should not govern what courts do in the remedial moment.” The complete article is accessible here.

The second article, the Struggle for Rulemaking Preeminence, from Rosanna Cavallaro of the Suffolk University Law School, explores the dozen years of history around the special Federal Rules of Evidence in sexual assault cases. Those rules provide in part that “the defendant's commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.”

Cavallo details how in promulgating this rule Congress has put it collective “thumb on the scale” as to receipt of “similar act evidence.” Likewise discussed are the claims that both the legislative and judicial branches make in favor of exercising the authority that is needed to promulgate evidentiary rules. In this instance, Cavallo prefers judges to be rulemakers. She argues that “the special rules regarding the admissibility of similar acts evidence in cases of sexual assault are within the sphere of special competence of the judiciary, as recognized by Congress in the Rules Enabling Act … admissibility of such evidence ought properly to be constrained by a robust application of Rule 403 [by the courts].” The complete article is accessible here.

Monday, September 24, 2007

A Look Inside the New OAH

Chief Administrative Law Judge Raymond Krause shows us around the new Courtroom 11, with its refurbished raised benches and its generous gallery area. (Click the picture for a better view.)

Perry Mason would have loved it.

Among the innovations in the new space are larger conference rooms adjacent to the hearing rooms. These rooms are well-suited to both formal mediation sessions and impromptu settlement conferences.

Notes Chief Judge Krause: “It has worked out better than we planned.”

Sunday, September 23, 2007

A Gift to Gift Horses Everywhere

On Friday, a panel of the U.S. Court of Appeals for the Seventh Circuit issued an opinion upholding the constitutionality of an Illinois law which bans the slaughtering of horses and preparing the butchered meat for human consumption. The law was challenged by Cavel Incorporated, of DeKalb, Illinois, the nation’s sole remaining slaughterer of horses. Cavel estimated that it slaughters between 40,000 and 60,000 horses each year.

The panel’s opinion, written by Circuit Court Judge Richard Posner, appears with all of the familiar Posnerian hallmarks: It wryly skewers those whom he finds silly (the Illinois Governor and Legislature), it builds upon bon mots drawn from outside of the record (a photograph of a lion eating a horse meat birthday cake) and a sparkling summary of the applicable law (here, the reach of the interstate commerce clause).

Among the passages of the opinion that I found most interesting was the Court’s deference to legislative judgment and sequencing; even in an instance where the judges themselves find those choices fairly dubious. Writes Posner:
So when your horse is no longer useful to you, you have a choice between selling it for slaughter and either keeping it until it dies or having it killed. The option of selling the animal for slaughter is thus financially more advantageous to the owner, and this makes it likely that many horses (remember that Cavel slaughters between 40,000 and 60,000 a year) die sooner than they otherwise would because they can be killed for their meat. States have a legitimate interest in prolonging the lives of animals that their population happens to like.

Of course Illinois could do much more for horses than it does—could establish old-age pastures for them, so that they would never be killed (except by a stray cougar), or provide them with free veterinary care. But it is permitted to balance its interest in horses’ welfare against the other interests of its (human) population; and it is also permitted to take one step at a time on a road toward the humane treatment of our fellow animals.
The complete opinion is accessible here.

Friday, September 21, 2007

לשנה טובה - The Path to a Good Year

I had the special honor to deliver one of the prayers from the Bimah (or dias) at services on Rosh Hashanah this year.

And among the words that I was privileged to deliver on that day was, coincidentally, an important message to lawyers and judges everywhere; namely, that our powers reflect something far, far greater than ourselves. I thought that I would share a few lines from that passage here. It read in part:

May our daily deeds bear witness that You, who revealed Yourself to our ancestors, reveal Yourself anew through us.
It occurred to me that this might not be a bad thing to repeat to ourselves on the way to our next hearing, deposition or pro bono committee meeting.

So, I am wishing you a sweet year and work in the law that reveals what is best.

(And for those who are observing Yom Kippur tonight and tomorrow, have "an easy fast....").

Thursday, September 20, 2007

Will 35 Minutes Mean More Than 15?

While there were no opinions issued by the Minnesota Supreme Court this afternoon, the Court did grant a Petition for Further Review in The Matter of the Decision of County of Otter Tail Board of Adjustment to Deny a Variance to Cyril Stadsvold and Cynara Stadsvold.

Among the interesting features of that case is the Stadsvolds’ complaint that the local Board of Adjustment only permitted the couple between 15 to 20 minutes to establish their entitlement to a variance.

Affirming the Board’s later denial of the variance request, the Court of Appeals held that the Stadsvolds were “afforded adequate time to present their argument.” The Court’s complete analysis is accessible here.

It will be interesting to learn how much of the Stadsvolds’ additional 35 minutes of argument (before the Supreme Court) will be dedicated to their earlier 15 minute argument before the Board of Adjustment.

Extended Rebuttal: Arguments After “the Red Light” in a Key Voting Rights Case

On Tuesday morning, a special three-judge panel of federal judges heard argument in a challenge from a Texas Utility District to the continued applicability of Section 5 of the Voting Rights Act. As the Utility District argued, because it did not have a history of invidious discrimination in its election practices, it should be relieved of the obligation of having to submit changes in election procedure to the U.S. Department of Justice for “pre-clearance.”

The argument is an important one, particularly as Congress last year extended the provisions of the Voting Rights Act for an additional 25 years.

On Tuesday afternoon, at the conclusion of the arguments in court, the American Enterprise Institute hosted the lawyers for a post-mortem on their submissions. Audio and video of the event -- moderated by the National Journal's Stuart Taylor -- is accessible here.

Also, thanks to the Mortiz College of Law at Ohio State University, the filings in Northwest Austin Municipal Utility District Number One v. Gonzales (and many other important election law related cases) are accessible here.

Wednesday, September 19, 2007

Pride Comes Before the Discovery Request

Yesterday, Judge John D. Bates of the U.S. District Court for the District of Columbia issued a discovery order that obliges three U.S. Congressmen to provide documents responsive to a subpoena request from the Jewish War Veterans. The Veterans had earlier sued the Department of Defense claiming that the Federal Government's 2004 acquisition of the Mt. Soledad Latin Cross violated the Establishment Clause of the U.S. Constitution.

The Veterans served on the legislators a wide-ranging series of requests for the production of documents, including one that sought: "All documents concerning or relating to your contacts, communications, discussions, lobbying of, financial contributions to or received, or interactions with the Thomas More Law Center, the Pacific Justice Institute, American Center for Law & Justice, Horizon Christian Fellowship, St. Vincent DePaul Management, San Diegans for the Mt. Soledad National War Memorial, the Admiral Jeremiah Denton Foundation, or any other interest group regarding Mt. Soledad or the Mt. Soledad Latin Cross."

Sustaining the request in part, the District Court reasoned that the Congressman should have expected that there would be later inquiries into their activities, given that the legislators had publicly trumpeted their own roles in shepherding the legislation that provided for the acquisition. As Judge Bates explains, this self-promotion all but provoked a later subpoena:
Nor is there any reason to suspect that these or other plaintiffs will routinely seek discovery from every legislator who supported a statute – a practice the Members believe to be the logical outcome of JWV's position. Even were such a fear justified, Congressmen Hunter, Issa, and Bilbray can hardly be equated with the run-of-the-mill legislator who votes for a statute. These Members in particular had every reason to suspect that their words and deeds as the Act's sponsors would be the subject of post-enactment scrutiny; they played a high-profile role in the federal government's acquisition of a large Latin cross that had been the subject of extensive prior litigation, made numerous public statements, and boasted of their role in campaign literature. The Members were therefore obvious sources uniquely positioned to provide information on the course of events that culminated in federal legislation and the transfer of the Memorial to federal control. This Court's case-specific ruling allowing discovery from these three Members neither works an injustice to them nor opens a proverbial can of worms for legislators generally.
Because of "the sensitive constitutional interests at stake," however, the District Court provided the Members a first opportunity to develop a privilege log and to disclose those documents that are not protected by the Speech and Debate Clause.

And because you are likely to demand production of it as well, Judge Bates' complete Memorandum Opinion and Order is accessible here.

Chenery Analysis Leads Panel to Approve County's Choices on Methods and Law

In a published opinion issued yesterday, a unanimous panel of the Minnesota Court of Appeals held that a County Board could reach and decide, in the context of reviewing a Conditional Use Permit application, which zoning standards it would apply. At issue in the case was whether the Becker County Board could apply the zoning standards that were in effect at the time the application was originally filed, or whether it was obliged to apply the standards that were in effect at the time the application was presented to the Board for a decision. Following submission of the CUP application, Becker County’s zoning code was modified in ways that would sharply limit the applicants’ ability to develop the project.

Concluding that a rule as to which standards the Board would apply in these cases could be developed by way of adjudication, Judge David Minge, citing the famous case of Securities and Exchange Commission v. Chenery Corporation, observed: “An administrative agency’s exercise of the adjudicative function to evolve a policy on a case-by-case basis, even if it is not yet embodied in a legislative rule, is well recognized…. And regardless of whether policies or standards are specifically spelled out in rules or regulations, agencies must have the discretion to carry out their judicial function and decide issues at hand.”

The panel’s complete analysis is accessible here.

Tuesday, September 18, 2007

OAH is on the Move – Arriving Monday in Saint Paul

The Minnesota Office of Administrative Hearings will have limited operations on Thursday and Friday of this week as it moves its offices to brand-new facilities in the Stassen Building in the State Capitol Complex.

The first day of full operations in the new facility will be Monday, September 24.

To hear the song that Judges and staff are humming as they pack boxes for the moving vans, click here.

Monday, September 17, 2007

Unenviable Positions: Audio From Government Leaders with Especially Challenging Jobs

Thanks to C-SPAN, while gliding over a very weedy lawn with the riding mower this weekend, I had the chance to spend some time with some officials who have particularly challenging government jobs. Available for download as podcasts are:

n An interview with Michelle Rhee, Chancellor of the District of Columbia Public Schools: In a very interesting exchange, accessible here, Chancellor Rhee describes how she is using new metrics of performance to transform a hidebound management culture within the school district’s “central office.”

n A Rare Speech by the Director of Central Intelligence: In remarks to the Council on Foreign Relations (and more remarkably still a Question and Answer session following the speech), accessible here, General Michael Hayden speaks bluntly about the changes occasioned by the decision last June in Hamdan v. Rumsfeld and the impact of recent press accounts on U.S. intelligence gathering methods.

n Insight into the General Patraeus’ Book: C-SPAN’s After Words series interviews Lt. Colonel John Nagl, best-selling author of Learning to Eat Soup with a Knife, on his role in the development of “The U.S. Army - Marine Corps Counterinsurgency Field Manual.” The new, publicly available Manual is the work of General David Patraeus, and the team he assembled, which included in Nagl. The wide-ranging interview, accessible here, touches upon the tactics and strategy behind the Bush Administration's surge policy and its conduct of the War on Terror.

Sunday, September 16, 2007

Hammock Helpers

With the weatherman forecasting the approach of warmer temperatures this week, and the onset of “Indian Summer” before the return of colder autumn breezes, I figured that this is the last opportunity I had for quality hammock time this year.

Packing the Cortland apples that I bought today, I will be adjourning to the hammock with two articles that were posted to the Social Science Research Network this week. They are:

n Fee Shifting as a Congressional Response to Adventurous Presidential Signing Statements: In this forthcoming article from the William and Mary Bill of Rights Journal, Professor and Associate Dean Harold Krent, of the Chicago-Kent College of Law, argues that one method of changing the incentive structure around Presidential Signing Statements would be for Congress to subject the executive branch to attorney fee awards in certain cases. Krent would award fees in every case in which the executive branch loses after: (1) declaring that it will decline to enforce the law as written for reasons of presidential prerogative, and (2) has, in a signing statement, previously articulated its intent to disregard the law. Dean Krent argues that not only would fee-shifting operate to inspire more public interest law suits, “[s]uch legislation could send a powerful message to Presidents that attachment of routine messages taking exception to legislative encroachment on presidential prerogatives is not cost free.” The complete article is accessible here.

n A Taste of Things to Come? Eminent Domain in the Name of Population Control: Syracuse Law School student Matthew Stoloff takes aim at the acquisition of property detailed in Mount Laurel Township v. Mipro Homes, LLC. In that case, the Township acquired property that was zoned and slated for residential development, for the purpose of open space preservation, through the use of its eminent domain powers. Stoloff argues that there was no public purpose achieved by the acquisition, such that the eminent domain power was exercised in bad faith. Key to Stolloff's argument is that the Mount Laurel case was not sufficiently distinguishable from the case of Borough of Essex Fells v. Kessler Inst. For Rehab., Inc., where the New Jersey Supreme Court set aside as improper the effort of local officials to condemn a site that was previosuly slated for development as an assisted living facility. The complete article is accessible here.

Saturday, September 15, 2007

Procedural Complexity and Doing Justice

A brain teaser that had a group of us (both lawyers and non-lawyers) debating this weekend, were the facts of a case that similarly divided Minnesota Supreme Court on Thursday.

In the case, a set of property owners sought to appeal the amount of a compensation award that followed the taking of real property by the Minnesota Department of Transportation. During the time between the beginning of the condemnation proceeding, and the later appeal, the roster of owners who continued to have a legal interest in the target property had become smaller. And, notwithstanding the statutory provision requiring service of the appeal upon all of the parties who participated in the condemnation proceeding, appellants only served those parties who continued to have an interest in the property at the time of the appeal.

Affirming a series of lower court decisions holding that the failure to effect proper service upon all of the earlier litigants deprived the District Court of jurisdiction to hear the appeal, Justice Helen Meyer noted: “Appellants failed to serve notice of appeal on all parties entitled to service under Minn. Stat. § 117.145, and therefore the district court has no subject matter jurisdiction over appellants’ condemnation appeals.”

In dissent, Justices Paul H. Anderson and Alan Page, wrote that an overly strict reading of the procedural requirements is at odds with the broader constitutional obligation to effect “just compensation” following the taking of private land for public purposes. Remarked the dissenters: “I regret that our jurisprudence has evolved to the point where we confuse the issues of subject matter jurisdiction and personal jurisdiction such that a failure to give notice to someone who does not have an interest in the condemned property can potentially thwart an owner’s ability to receive 'just compensation.'”

While Justice Anderson's writing stirred many of those in our mini-debate, the focal point of the exchange was the logical end point of the rule of lenity that he and Justice Page urged. Would the principal from Deuteronomy, that “justice, justice shall thou pursue,” be enough; say, in the case of a very careless appellant?

On the other hand, with the majority relying upon the most infamous of the canons of construction, the Doctrine of Last Antecedent – a canon upon which many fortunes have been both won and lost – the claim that justice turns upon the reach of certain words of limitation is harder pressed. Or so some of our debaters thought.

If you wish to join the debate, the Court's analysis is accessible here.

Friday, September 14, 2007

Eighth Circuit: Untried Anti-Harassment Procedures Not Necessarily Defective

In a detailed opinion that is worth reading, a panel of the U.S. Court of Appeals for the Eighth Circuit yesterday affirmed a lower court's dismissal of workplace retaliation claims against the City of Ladue, Missouri.

Plaintiffs, who were female dispatchers in the City Police Department's communications unit, asserted that the Police Department failed to take appropriate steps to confront and correct harassing behavior by a supervising Police Captain.

Among the more interesting aspects of the decision is the panel's dispatch of plaintiffs' claim that the Department's anti-harassment policy was legally defective because the Department did not also offer training or counseling regarding sexual harassment and employees of the Police Department did not otherwise report acts of harassment.

Disagreeing, the panel majority noted “we find that the Department acted reasonably to prevent harassment as a matter of law because it had a facially valid antiharassment policy that, when invoked by Plaintiffs, brought an immediate end to [the] harassment.”

The complete analysis, and partial dissent from Circuit Judge Bye, is accessible here.

Tuesday, September 11, 2007

Federalist Society Panel Examines Oberstar Bill

Last Thursday, the Federalist Society's Environmental Law and Property Rights Section hosted a panel discussion on the proper scope of federal government authority under the Clean Water Act.

A key focus for the panel members – which included one private attorney and four academics – was H.R. 2421, U.S. Representative Jim Oberstar's Clean Water Restoration Act of 2007.

H.R. 2421 would revise the definition of “the waters of the United States,” so as to extend federal regulatory jurisdiction “to the fullest extent that these waters, or activities affecting these waters, are subject to the legislative power of Congress under the Constitution.”

A 2006 plurality decision of the U.S. Supreme Court in Rapanos v. United States, held that the Clean Water Act was limited to regulating bodies of water that are “permanent, standing or continuously flowing.”

Congressman Oberstar's bill, as it was introduced, is accessible here.

The hour and forty-five minute panel discussion is accessible here.

Our Criminal-Prohibitory Civil Commitment Law

In an interesting unpublished opinion issued today, a panel of the Minnesota Court of Appeals held that Minnesota's Sexually Dangerous Person law is “criminal-prohibitory” in nature for purposes of the state exercising jurisdiction over enrolled members of certain Indian tribes, but not so punitive as to violate “double jeopardy” prohibitions barring a second criminal sanction for the same sexual misconduct.

The appellant, Mr. Green, argued that the district court did not have jurisdiction to commit him as a sexually dangerous person, because he is a Reservation-domiciled Tribal Member of the White Earth Band of Ojibwa. Public Law 280 preempts the district court’s “civil-regulatory” jurisdiction on Indian land.

The panel disagreed, declaring that the SDP law was “criminal-prohibitory” in nature, thereby supporting the lower court's jurisdiction, but not violative of double jeopardy because “civil commitment is a remedial, not a punitive, course of action.”

The problem is that our Public Law 280 jurisprudence – particularly in relation to Native American predatory offenders – is overly binary.

As I have noted in earlier postings, those “civil-regulatory” programs that are nimble enough to meet a wide-ranging set of public safety threats (and which can be modified when new threats emerge) spark jurisdictional debates when they are applied against members of tribes protected by Public Law 280. Likewise, categorizing every public safety program as a “criminal-prohibitory” law is not a solution because it invites (as it did in this case) difficult ex post facto and double jeopardy problems.

To my mind, for those on either side of the border with Indian County, the best way out of this trap is along the lines suggested by Justices G. Barry Anderson and Lorie Gildea, here. In State v. Jones, the Justices, writing separately from their colleagues, suggested an alternative to this binary trap: A third legal category to include “exceptional circumstances.” As I read their concurring opinion in Jones, this third category would account for important public safety programs that straddle the otherwise blurry dividing lines between civil and criminal laws – such as restrictions on driving after consuming alcohol, predatory offender registration and civil commitment.

Indeed, this third category would be worthwhile if only to avoid the curious designation “criminal-prohibitory civil laws.”

The panel's complete analysis is accessible here.

Monday, September 10, 2007

Online Temptations: The Help and Hazards in Someone Else’s Brief

The Judge whom I clerked for after law school claims that she knows the precise date on which the art of legal drafting died: “Since the ‘cut and paste’ functions were invented,” she would observe morosely, “I haven't read an original word....”

As for me, her young clerk, having often looked to the work of my betters for inspiration (or as a blunt wedge against writer's block), I was easy prey to the Dean Inge, all-art-is-derivative brand of writers. Inge once quipped: “What is originality? Undetected plagiarism….”

Yet Brian Craig, a staff attorney with Thomson-West here in Minnesota, calls our attention to the very real dangers of cutting and pasting from the briefs of others. In an article posted to the Social Science Research Network this week, Craig notes that the rise of electronic filing of court documents has led to an explosion in the availability of legal briefs; materials that can serve as genuinely helpful guides to attorneys of all experience levels. Yet Craig also details how using the work of others can prompt thorny issues of professional responsibility, academic honesty and infringement of intellectual property rights.

In a short article that is worth reading, Craig’s review of the ethical and legal traps is accessible here.

Special Session in a Special Season

I was joking with a senior Administration official about the timing of the Special Session of the Minnesota Legislature. While the Governor’s summons calling legislators to Saint Paul tomorrow thoughtfully avoids intrusion upon the Jewish holidays of Rosh Hashanah and Yom Kippur, from a Jewish perspective the return of the State Legislature could not have been any better set.

In this season, rabbis traditionally deliver sermons that are meant to awaken their congregations; urging congregants to recall their shortcomings and to undertake needed changes.

As Jews literally make their way to Yom Kippur (a day upon which they ask for God's mercy), there is – as lawyers might say – “a last clear chance” to make things right. Before presenting oneself to the Creator as deserving of forgiveness, prudence suggests that we first complete our own self-assessment, turn from bad habits and reconcile with those whom we have hurt.

Thus, reassembling at the Capitol during a season that urges everyone to abandon old grudges, to work more selflessly than before, and to repair that which has not worked, seems, well ….. heaven sent.

Come to think of it, the Legislature probably shouldn't meet at any other time.

Sunday, September 09, 2007


As anyone who has spent any time with me since the blessed day that I unpacked my iPod Nano from its box, will attest, I love my iPod. It has permitted me to access a whole new world of interesting content – and frankly, has made the "honey do list" of weekend chores a lot more bearable.

And with Apple's debut of “iTunesU” this past May, the value of my iPod has only increased. As Apple Execs describe, iTunesU is a "dedicated area within the iTunes Store featuring free content such as course lectures, language lessons, lab demonstrations, sports highlights and campus tours provided by top US colleges and universities ...." Here some downloads for the busy lawyer that I found interesting:

From Stanford Law School:

Larry Kramer: Popular Constitutionalism and Judicial Review
Charles Ogeltree: The Reparations Debate in America
From Duke Law School:

Douglas Kmeic: Terrorist Surveillance Program - Constitutional or Impeachable?
Kenneth Starr: Practical Politics and the Law
Linda Greenhouse: Great Lives in the Law
From Yale Law School:

Lord Woolf of Barnes: How to Change the Litigation Culture
Chief Justice of Massachusetts Margaret Marshall: The Importance of the Rule of Law
The iTunes Store is accessible here.

Saturday, September 08, 2007

2d Circuit Rejects the “Law Clerk Exception” to Jurisdictional Rules

As autumn is the season of the annual changing of the guard at local courts, with the new roster of law clerks arriving after completion of the July bar exam, an opinion issued Thursday from the U.S. Court of Appeals for the Second Circuit seems particularly timely.

American Safety Indemnity Company appealed an October 12, 2006 order of the District Court dismissing its claims. Two weeks later, the District Court issued an amended order correcting a typographical error in the earlier order. During its preparations for its appeal, counsel for ASIC inquired of the lower court judge's law clerk whether the time limit for filing an appeal ran from entry of the original or the amended order. The law clerk opined, incorrectly, that the time limit ran from date of the later, amended order.

Declaring that the subsequent appeal was untimely filed, the panel held that “it is well established that where a judgment is reentered, and the subsequent judgment does not alter the substantive rights affected by the first judgment, the time for appeal runs from the first judgment.”

Further, the panel rejected ACIS' argument that the Court should recognize an exception to the ordinary rules of appellate procedure because of the representations by the lower court clerk. Pointing to “the mischief that would be spawned by excusing untimeliness on the basis of law clerk statements,” the panel observed: “Litigants should not seek legal advice from judges or judicial staff, and in any case, attorneys should know better than to rely on such advice. Moreover, ad hoc inquiries regarding purported advice are difficult to conduct, lead to uncertain results and meddle in the internal workings of judges’ chambers.”

The complete analysis is accessible here.

Tuesday, September 04, 2007

Civil Commitment and Federalism: Ramsey County Would Rather Not Wait for Uncle Sam

Today, a unanimous panel of the Minnesota Court of Appeals denied the appeal of a civilly committed patient, Hayden Michael Richards, from a lower court’s order that committed him to the Minnesota Sex Offender Program. Richards is a citizen of Trinidad and had been earlier ordered deported by the U.S. Department of Homeland Security. Richards argued that the pending deportation order deprived the state courts of authority to civilly commit him to the MSOP.

Disagreeing, the appellate panel held that the fact that Richards would actually be deported was far from certain; and that in the meantime, a civil commitment order would not necessarily be a snub to the federal sovereign. Wrote Judge Willis: “[B]ecause Richards’s civil commitment does not conflict with any enforcement of the deportation order that [DHS] elects to initiate, there is no conflict with federal law;” the federal government “may deport Richards at any time, regardless of his commitment.”

Concluded the panel: “Unless and until Richards is deported—an action that neither the district court nor this court is able to compel—the state must continue to address his need for [sex offender] treatment.”

The panel’s complete analysis is accessible here.

Saturday, September 01, 2007

Black Robes and Shades of Gray

It is true what they say, you know: Nothing is so real as that which appears in the New York Times.

The proof has come to me once or twice during my career. I would be laboring away on an issue that others did not think twice about – until, of course, the same item was mentioned in The Gray Lady. Love it or hate it, the Times is an agenda-setting newspaper. A line or two written there has a transformative power; over people, politicians and issues in the public eye.

This is certainly what Chief Judge Dennis G. Jacobs of the U.S. Court of Appeals for the Second Circuit must be thinking this week.

Nine and one-half months ago, in November of 2006, the Chief Judge gave the John F. Sonnett Memorial Lecture at Fordham Law School. The talk was well received; and hailed by those who heard it delivered as a thought-provoking speech on institutional biases in the legal profession.

Recast into a full column on Monday of this week by Adam Liptak of the Times, however, this same address is now regarded as an earth-shattering assault on the judicial system. Summarizes Liptak:

Dennis G. Jacobs, the chief judge of the federal appeals court in New York, is a candid man, and in a speech last year he admitted that he and his colleagues had “a serious and secret bias.” Perhaps unthinkingly but quite consistently, he said, judges can be counted on to rule in favor of anything that protects and empowers lawyers.
At the risk of quarreling with those who buy ink by the barrel, I understood the Chief Judge’s remarks to be much more nuanced and not the claimed howitzer blast upon his own courthouse. The Chief Judge observed:

When lawyers present big issues to courts, the judges receive the big issues with grateful hands, and tell the bar it has made inroads on jurisdiction and independence and praise the expansion of legal authority and together we smugly congratulate ourselves on expanding what we are pleased to call the rule of law …. Among the results is the displacement of legislative and executive power, the subordination of other disciplines and professions, and the reduction of whole enterprises and industries through damages.

The country could do worse than suffer rule by lawyers …. I would prefer a tyranny of law to life under a military regime. But outside our professional sphere, the dominance of law, the legal profession and the judiciary is resented more than we appreciate. As a matter of self-awareness and conscience, judges should accept that the legal mind is not the best policy instrument and that lawyer-driven processes and lawyer-centered solutions can be unwise, insufficient and unjust.… For the judiciary this would mean a reduced role, but not a diminished one.

Nine months out, Chief Judge Jacobs’ speech remains an important call for institutional modesty; a modesty that would presumably make greater room for contributing roles by other officials, with other skills, in other coordinate branches of government. It might even leave room for new roles for the governed themselves.

A matter that makes the Gray Lady pretty lively after all.