Within the Scope

Blogging on Administrative Law and the Public Sector

Monday, December 31, 2007

Prominent Minnesotans Are Among Amici in Photo I.D. Case

On January 9, the Supreme Court of the United States will hear oral argument in the consolidated appeals of Crawford v. Marion City Election Board, and Indiana Democratic Party v. Rokita. At issue in these cases is whether “an Indiana statute mandating that those seeking to vote in person, produce a government-issued photo identification, violates the First and Fourteenth Amendments to the United States Constitution.”

An agreement among the litigants to permit all would-be Friends of the Court to submit briefs on this question, has drawn two prominent Minnesotans into the fray – in support of different parties. A brief filed on behalf of U.S. Congressman Keith Ellison (DFL-Minneapolis), and others, in support of the Petitioners challenging the law, argues:
The requirement is unconstitutional not only because voters must initially spend money to obtain the requisite government issued photo ID or obtain related documentation, but also because voters who wish to qualify as “indigent” under the statute must make a separate trip to a county office and “affirm” their economic status before being allowed to vote. This is an unconstitutional burden on the fundamental right to vote. This Court has made clear that “[a] state violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of a fee an electoral standard.”
A brief filed on behalf of former Minnesota Secretary of State, Mary Kiffmeyer (R-Big Lake), and others, in support of the Respondent election officials, urges:
The lower courts found no evidence that Indiana’s Photo ID requirement disenfranchises voters or suppresses turnout, either generally or among any particular group. The Petitioners – like plaintiffs in similar challenges across the country – have failed to identify even a single voter whom the Photo ID requirement would disenfranchise. Indeed, the available social science data suggest that voter turnout increased among some of the purportedly disadvantaged groups in Indiana after it adopted the contested Photo ID requirements. At a minimum, there is no evidence that Indiana’s Photo ID requirements reduce voter turnout among purportedly disadvantaged groups.
The complete text of Congressman Ellison’s brief is accessible here and Secretary Kiffmeyer’s brief is accessible here. The entire collection of filings is accessible here.

Thursday, December 27, 2007

The Very Long Arm of the Patent and Trademark Office

Rosenruist-Gestao E Servicos LDA ("Rosenruist") is a Portuguese company that, in 2002, filed a trademark registration with a branch of the United States Patent and Trademark Office in the Virginia suburbs of Washington, D.C. Virgin Enterprises Ltd., a British company that owns numerous United States registrations, opposed the registration of Rosenruist’s mark and commenced an administrative proceeding before the Trademark Trial and Appeal Board to prevent the registration. When Rosenruist refused to appear voluntarily for a deposition, the United States District Court for the Eastern District of Virginia issued a subpoena directing Rosenruist to produce a designee to testify on behalf of the corporation at a deposition in Virginia.

Later, the District Court refused Rosenruist’s request to quash the subpoena and then subsequently imposed sanctions against Rosenruist when it failed to attend the scheduled deposition. Likewise important, seeking to ensure Rosenruist’s cooperation, Virgin Enterprises Ltd. filed a motion to compel Rosenruist, on pain of contempt sanctions, to designate a corporate representative who would appear at a deposition as directed by the subpoena. Notwithstanding its earlier ruling that Rosenruist had been properly served with a valid subpoena, the District Court determined that it could not require Rosenruist to produce a corporate designee for the deposition unless that designee personally resided within the Eastern District of Virginia.

Reversing, a divided panel of the U.S. Court of Appeals for the Fourth Circuit held that the District Court could compel the attendance of a representative of Rosenruist, and that Rosenruist’s failure to appeal the denial of its motion to quash the subpoena foreclosed any complaint it may have had over a lack of personal jurisdiction.

In dissent, Circuit Judge J. Harvie Wilkinson III, remarked "my colleagues hold that a foreign company that has no United States employees, locations, or business activities must produce a designee to testify at a deposition in the Eastern District of Virginia so long as it has applied for trademark registration with a government office located there. As a result, foreign witnesses can be compelled to travel to the United States and give in-person deposition testimony at the behest of any litigant in a trademark dispute, 'for use in any contested case in the Patent and Trademark Office.'"

The complete analyses of the majority and the dissent are accessible here.

Wednesday, December 26, 2007

Appellate Panel: Corrective Action of Special Education Laws Must Remediate Violation

In an interesting published opinion issued by the Minnesota Court of Appeals issued on Monday, an appellate panel reversed an earlier remediation order of the Minnesota Department of Education. The order directed Independent School District No. 192 to reimburse the parent of a disabled child one-half of the amounts that the parent had spent on hiring a private tutor for the child.

Concluding that any violations of federal special education law that were found by the agency could not be remedied by additional tutoring for the student, Judge Natalie Hudson wrote for the panel:

We recognize the relationship here between student’s behavioral issues and academic progress, but when, as in this case, the record plainly demonstrates and the MDE itself concluded that student made adequate academic progress, there is a fundamental disconnect between the MDE’s finding of broader, procedural [Individuals with Disabilities Education Act] violations and the remedy of reimbursement for private tutoring expenses. When a school district violates an [Individual Education Plan], any corrective action must “remediate the denial of those services.” Here, the school district’s violations were primarily related to the school district’s failure to provide appropriate behavioral services, not its denial of academic services. Monetary reimbursement for the tutor was not related to the denial of those behavioral services and, therefore, was inappropriate.
The complete opinion is accessible at this link here.

General Walker Highlights My $455,000 Second Mortgage

C-SPAN's "Podcast of the Week," is a provocative appearance by the Comptroller General of the United States, David Walker, at the National Press Club in Washington, D.C.

Building upon his earlier "Fiscal Wake-Up Tour," General Walker argues that rising health care spending in the United States could potentially "sink the ship of state," as the Baby Boom Generation retires from the workforce. Warns Walker, the fiscal gap for the total liability of future payments related to the Medicare and Medicaid programs amounts to 53 Trillion dollars; or as Walker explains, a "de facto mortgage of $455,000 for every American household – only with no house to back it up…."

Walker's concludes that "[t]he largest single domestic policy challenge that we face is the health care challenge; and that we are ultimately going to have reform our basic health care structure…." His prescription for reform includes "universal access to basic health care services," caps on the amount of federal health care spending, national best practices for health care and "to increase personal responsibility and accountability for an individual's own health and wellness."

A video of General Walker's remarks is accessible here, whereas an audio podcast is accessible here.

Tuesday, December 25, 2007

A Quiet Christmas with Mr. Adams

With the courts adjourned for Christmas Day, I have curled alongside a roaring fire with my very favorite book – The Portable John Adams – which, as it turns out, was a loving holiday gift from Mrs. Within the Scope last year.

A regulatory repealer that a young Mr. Adams posed in a diary entry, written on a similarly quiet day in 1756, while he was studying the law under James Putnam, had me thinking. The 21 year-old law clerk posited this set of legal reforms for his era (and perhaps for ours):

Suppose a nation in some distant region should take the Bible for their only law-book, and every member should regulate his conduct by the precepts there exhibited! Every member would be obliged in conscience, to temperance and frugality and industry; to justice and kindness and charity towards his fellow men. And to piety, love and reverence towards Almighty God. In this Commonwealth no man would impair his health by gluttony, drunkenness or lust; no man would sacrifice his most precious time to cards or any other trifling and mean amusement; no man would steal or lie, or in any way defraud his neighbor, but would live in peace and good will with all men; no man would blaspheme his Maker or profane his worship; but a rational and manly, a sincere and unaffected piety and devotion would reign in all hearts. What a utopia, what a paradise would this region be!”
Wishing everyone who reads the pages of WTS a joyous holiday – and if you can manage it, time for reflection and your favorite books.

Monday, December 24, 2007

Reading List for the Night Before Christmas

In the hopes that sometime this evening, all through my house, not a creature will be stirring, not even a mouse – a truly rare event indeed in my home – I have downloaded a few items that have been posted recently to the Social Science Research Network. I thought that some of you might be interested in these monographs, too.

In "Revisiting the Fable of Reform," Professor Allison Hayward of the George Mason University School of Law closely scrutinizes the history leading up to the landmark decision U.S. Supreme Court decision in United States v. UAW-CIO and the dawn of modern campaign finance regulation. Professor Hayward argues that campaign finance reform was in fact "a way to capitalize on public sentiment ... and restrict political rivals' access to financial resources." Detailing why this historical inquiry is important, Hayward explains: "Where high purpose can conceal self-interest, it does no good to adopt a fable as history, or adapt history to a fable."

The article is accessible here.

"In the Pursuit of a Next Generation Network for Public Safety Communications," Professors Phil Weiser of the University of Colorado Law School and Dale N. Hatfield of the University of Colorado at Boulder, explain the evolution of modern public safety communications systems and highlight some of the technological and regulatory challenges facing policymakers as they seek to deploy Congress' hoped-for nationwide interoperable broadband communications network for public safety.

The article is accessible here.

In "Maharam of Padua v. Giustiniani: The Sixteenth-Century Origins of the Jewish Law of Copyright," Professor Neil W. Netanel examines the famous case of Rabbi Meir ben Isaac Katzenellenbogen of Padua – known by the Hebrew acronym, the "Maharam" of Padua. In 1550, the Maharam had published a new edition of Moses Maimonides' code of Jewish law, the Mishneh Torah. When Marc Antonio Giustiniani, a local printer, published a cheaper edition of the same volume, copying the Maharam's work, the Maharam sought to bar distribution of Giustiniani's edition. While the Maharam's case predates the era that is ordinarily considered the wellspring of copyright law – the Statute of Anne in 1710 – Professor Netanel asserts that "remarkably, the ruling in that dispute reaches some of the same fundamental issues that animate copyright jurisprudence today: Is copyright a property right or a limited regulatory prerogative? What is copyright's rationale? What is its scope?"

The article is accessible here.

With such a reading pile, a "Happy Christmas to all, and to all a good-night."

Thursday, December 20, 2007

D.C. Circuit: Sure, This Delegation is Tricky … But We’ve Seen Worse

Last Friday, a panel of the U.S. Court of Appeals for the District of Columbia Circuit reversed a lower court’s earlier dismissal of claims against the Armed Forces Retirement Home of Washington, D.C. In that case, the plaintiffs asserted that federal law entitled them to a court order enjoining the administrators of the Home to “provide high quality health care” to the Home’s elderly residents. By way of reply, the Home argued that the federal requirement to provide “high quality care” to their resident veterans was so intentionally imprecise, that Congress left the determination of what kind of care amounted to “high-quality,” to the sole, un-reviewable discretion of the administrators.

Disagreeing, Circuit Judge Janice Rogers Brown remarked for the appellate panel “although ‘high quality and cost-effective’ is a tricky standard for the court to apply, that difficulty is not unique to this statute…. We have regularly found Congress has not committed decisions to agency discretion under far more permissive and indeterminate language.”

Some examples of those lesser statutes, and the panel’s complete analysis, are accessible here.

Wednesday, December 19, 2007

Two Really Interesting Podcasts from AEI

The American Enterprise Institute has recently hosted two seminars that might be interest to readers of Within the Scope.

The first, undertaken just last night, was the first Distinguished Lecture to AEI’s new Center for Regulatory and Market Studies. The lecture, entitled “Extremism,” was delivered by Professor Cass R. Sunstein of the University of Chicago Law School. In his remarks, Professor Sunstein argues that the phenomenon of "ideological amplification" can press juries, federal judges and even ordinary citizens to embrace extreme positions.

A podcast of the lecture is accessible here.

The second event, "From Registration to Recounts - A Study of Election Ecosystems," was a book forum that was held earlier this month. At the forum, researchers from the election law program at Ohio State University unveiled their recently completed review of election procedures in five key Midwestern states – one of which was Minnesota. At the forum, election administration challenges facing Minnesota (and other states) are discussed.

A podcast of the book forum is accessible here.

Tuesday, December 18, 2007

Illegality or Waste is Essential to Taxpayer Standing Analysis

A panel of the Minnesota Court of Appeals held today that absent evidence of an actual injury-in-fact, a taxpayer does not have standing (based upon his status as taxpayer) to challenge the constitutionality of an economic-development program which provides tax exemptions to other, specially-favored taxpayers.

Appellants Alec G. Olson and Butterworth Limited Partnership sought declarative and injunctive relief against state officials, seeking to bar them from “acting as authorized by the Job Opportunity Building Zone Program and the Biotechnology and Health Sciences Industry Zone Program.” A lower court dismissed the suit on the grounds that the taxpayers lacked a sufficient injury to mount the challenge.

While the taxpayer-appellants argued that they had standing to challenge legislative actions which created an increase in the overall tax burden, the panel disagreed, holding that there must be a link between the taxpayer challenge and an “illegal expenditure or waste of tax monies” in order for the taxpayers to meet the requirements of an injury-in-fact.

The panel’s complete analysis is accessible here.

And Then There Were Eleven?

The United States Senate has approved and sent to the U.S. House of Representatives a plan to eliminate a vacant 12th seat on the U.S. Court of Appeals for the District of Columbia Circuit and to add a 29th judgeship to the U.S. Court of Appeals for the Ninth Circuit. While the acquiescence of House members is predicted, this switcheroo was not part of the measure that they had earlier approved in July of this year.

The Senate version of H.R. 660, the Court Security Improvement Act of 2007, is accessible here.

No Longer Guessing Who is Coming to Dinner

Yesterday, Judge Royce C. Lamberth, of the United States District Court for the District of Columbia, issued a Memorandum Opinion and Order in which he concluded that logs of visitors to the White House were agency records subject to the Freedom of Information Act.

The Citizens for Responsibility and Ethics in Washington (CREW), filed a Freedom of Information Act request with the United States Secret Service seeking documents relating to visits by nine prominent “conservative Christian leaders” to the White House or the Vice President’s Residence. The nine leaders referenced in CREW’s document request were: Gary L. Bauer, James Dobson, Jerry Falwell, Andrea Lafferty, Tony Perkins, Louis P. Sheldon, Paul Weyrich, Donald Wildmon and Wendy Wright. When the Secret Service failed to respond to this request in a timely fashion, CREW filed suit.

Judge Lamberth’s detailed description of the various records maintained by the White House, and his FOIA analysis, is accessible here.

A “No More Mr. Nice Guy” Policy is Not Necessarily Arbitrary

In an interesting opinion issued last week, a panel of the Minnesota Court of Appeals concluded that revocation of a retailer’s tobacco and grocery licenses by the City of Minneapolis was not arbitrary and capricious merely because those revocations were harsher penalties than were applied in an earlier reported case, regarding another retailer, involving similar facts. The City alleged that Uncle Bill’s Market committed a number of license violations, including “allowing the sale of illegal narcotics on the premises.”

As Judge Randall wrote for the appellate panel:

Here, relator claims that its license violations were less egregious than the store in CUP Foods [v. City of Minneapolis, 633 N.W.2d 557 (Minn. App.), review denied (Minn. 2001)] and that it made more substantial efforts to correct the violations and deter illegal activities. Based on this comparison, relator believes the record supports a sanction short of revocation. We agree that this issue is close. The violations in CUP Foods are at least comparable to those involved here. But under the arbitrary and capricious standard, appellate review does not mete out mathematically equal sanctions to different entities for similar violations of municipal ordinances. As long as there is a rational connection between the facts found and the decision made, the city’s determination can be upheld.
The panel’s complete analysis is accessible here.

Monday, December 17, 2007

Three Cheers for the Earlier Risers

Last week, the Clerk of the Appellate Courts office announced that it will be moving back the time at which it issues opinions in decided cases by three hours – from 1:00 p.m. to 10:00 a.m. for opinions issued by the Minnesota Court of Appeals each Tuesday, and from 1:00 p.m. to 10:00 a.m. for opinions issued by the Minnesota Supreme Court each Thursday.

The welcome change places the state courts in line with the disclosure and posting practice of many federal Circuit Court of Appeal; and offers us court watchers something much better to read at the morning coffee break than the Daily Star Chart.

Indeed, the pages from the Judicial Center are better guides to our future than any assessment of how "the relocating of Jupiter will change overall prospects ...."

A Must Read Opinion on Civil Commitment Practice

Last Thursday, the Minnesota Supreme Court issued an opinion clarifying the meaning of the statutory deadlines for court proceedings under Minnesota’s Sexually Dangerous Person and Sexual Psychopathic Personality statutes. As the Court acknowledges, the issues in this area are important because the timelines that were enacted by the state legislature “relate to the core of liberty protected by the Due Process Clause.” Indeed, finding a substantial violation of those timelines, the Court ordered that the target of the commitment petition, one Terrance John Giem, “be released from confinement.”

From beginning to end, the opinion has noteworthy features. Among those that stood out for me, and there were several, was the Court’s conclusion that the Minnesota Legislature could not enact a statute that operates to withdraw subject matter jurisdiction from the District Courts as to particular causes of action, following the passage of time, once the Legislature has established a broader type of civil action. As Justice Gildea summarized for a unanimous Court, because commitment petitions are civil actions under the District Court’s Article VI jurisdiction, a statute that purports to strip jurisdiction over particular petitions that have been too long on the court’s calendar, invades the judicial sphere and impermissibly interferes with the exercise of authority by a coordinate branch of government.

The Court’s complete analysis is accessible here.

Former Councilmember's Conviction Affirmed

A panel of the U.S. Court of Appeals for the Eighth Circuit concluded today that there was evidence sufficient to support the conviction of former Minneapolis City Councilman Gary D. Zimmermann on charges of accepting a gratuity in violation of federal law.

The panel's opinion is accesible here.

Sunday, December 16, 2007

Federal Holiday

As noted below, because I had a few days off in the sun, I finally had a chance to tune into the longer seminar podcasts from last month's 25th National Convention of the Federalist Society.

While the tilt of the presenting panels was, perhaps not surprisingly, a little lopsided in favor of conservative viewpoints over progressive ones, the convention featured a truly dazzling roster of luminaries from the world of law and politics from a very wide array of perspectives.

Likewise a credit to the Society was how fast-paced and thought-provoking the seminars were on such a broad range of topics. Among the convention's audio offerings are very interesting presentations on the independence of federal prosecutors, the impact of U.S. regulatory requirements upon American competitiveness and the early history and jurisprudence of the Establishment Clause – alongside nearly two dozens other segments that are worth downloading.

An extended treat for your ears, the audio segments for the seminars and keynote speeches are accessible here.

The Week Off in Wonderland

With apologies for the drop off in posts recently – as shown in the accompanying photograph, things have just been mad lately.

But with a few days off for tea parties in Wonderland, we're back through the looking glass, and customs, and re-adjusting to the 70 degree drop in temperature.

Happily, however, I learned that both the Hatter and the Queen of Hearts are frequent readers of Within the Scope; particularly the Queen, who at her court has taken to announcing "blog post first, verdict afterwards...."

Wednesday, December 12, 2007

"Credit the Opinion of My Son.... The Doctor."

In a result that would have delighted my Mother (who gave up much as my brother was working his way through medical school), earlier this month a panel of the U.S. Court of Appeals for the Eighth Circuit overturned the Social Security Administration's denial of disability benefits to one Michael R. Dewey.

As the panel detailed, the Agency's error was in accepting the Administrative Law Judge's report which credited the conclusions of the Commissioner's non-physician "medical consultant" over the opinions offered by Dewey's physician.

Likewise interesting and noteworthy for all practitioners, is the panel's (and the parties') conjecture that the Administrative Law Judge simply assumed that the Commissioner's "medical consultant" was a physician; a matter that turned out not to be true.

The panel's complete analysis, and its discussion of the boundaries of lay opinion, is accessible here.

Tuesday, December 11, 2007

Between a Rock (Upon Which to Build a Church) and a Hard Place

In an interesting opinion issued last week, a unanimous panel of the U.S. Court of Appeals for the Eighth Circuit affirmed-in-part, and reversed-in-part, a lower court decision concluding that the State of Iowa's support for InnerChange Freedom Initiative of Prison Fellowship Ministries, Inc. violated the Establishment Clause of the U.S. Constitution.

A variety of plaintiffs had challenged a state contract under which a parallel prison program was established (and partially funded by the state) where inmates received religious programming and different privileges and discipline regimes than inmates in the general prison population.

The panel's analysis is worth reading -- not only for its treatment of the question of the programming bargain that the state received for its dollars (and the role funding shortages generally had in bringing about the accord), but also for the discussion on why the District Court's order requiring InnerChange to repay the contract sums to the State of Iowa was an abuse of discretion.

The complete opinion is accessible here.

Saturday, December 01, 2007

The Most Important Year

This weekend, I made a short day trip from the prairie to Washington, D.C. to celebrate (what will be, next month) 25 years of distinguished service on the federal bench by Judge Christine Odell Cook Miller, of the U.S. Court of Federal Claims.

Judge Miller’s law clerks, past and present, gathered from across the country to clink glasses, swap funny stories about our respective years at the Court and jointly marvel at the Judge’s important contributions to the case law over two and one-half decades.

For reasons which remain unclear to me to this day, she generously hired me as her law clerk for the 1989 – 1990 Clerkship Year. To everyone but the Judge, it must have seemed like a wildly improvident, indeed fevered choice; there being literally hundreds of other candidates who sported better grade-point averages and sturdier writing experience than I did.

Yet, because of that year’s transformative effect upon me, I have never questioned the selection process very deeply. I was just glad to have had the opportunity to learn from her.

Quite simply, the clerkship year did for me what my law school years did not. It was that year that I fell in love with writing and the writing process. That year I saw and understood the nobility of the larger enterprise that lawyers have the good fortune of joining. That year I learned about the genuine satisfactions of public service.

For all of the steps that followed, it was the most important year.

While five decades from now Judge Miller’s written decisions will continue to be studied by advocates and judges, the dinner this evening reminded me that there is another, subtler legacy she built. Judge Miller has sent into the profession a troop of lawyers, who imbibed her commitment to excellence over the course of a special year and are, in a myriad of ways, transforming the profession as she transformed us.

Developing Agency Intrepretations Through Adjudications and Ensuring Due Process of Law

On Tuesday of this week, a panel of the U.S. Court of Appeals for the District of Columbia Circuit issued an interesting opinion in an appeal from a set of federal occupational health and safety citations. The Occupational Health and Safety Administration issued several citations to the Fabi Construction Company following the collapse of a partially-constructed parking garage that the firm was building in Atlantic City.

Among the issues in the case was whether the regulatory definition of “formwork” – which refers to the supports at a construction site that hold freshly poured concrete in place until the concrete hardens – was broad enough to include both temporary and permanent features of the project. The agency cited Fabi Construction for poor quality of a permanent feature of the parking garage under regulations that prohibit flimsy formwork.

The contractor argued that OSHA's complaint as to the quality of the permanent features of the parking garage could not be cited (and punished) under the formwork regulations, because those provisions only govern temporary, and not permanent, structures.

Agreeing, the appellate panel held that the agency’s reading of the regulation was not only at odds with the plain meaning of the regulatory text, but that the interpretation was so startling that if it was applied, it would deny the contractor due process of law. As the panel reasoned, a construction contractor could not reasonably know – either from the words of the regulation or other texts that are regularly used in the construction industry – that the agency would interpret “formwork” so broadly as to include permanent structures.

What intrigued me about the about the appellate panel’s discussion is the seeming tension between the analysis in this case and the familiar doctrine that agencies may develop regulatory interpretations piecemeal, through litigation. While there are, no doubt, several different ways to align these two different themes in the case law, the Court’s decision gives one a lot to think about.

The panel’s complete analysis is accessible here.

Candid Cameras

This week the Minnesota Supreme Court issued a set of procedures that will govern media requests from television stations for the placement of cameras in appellate courtrooms – presumably for particular arguments.

The procedures build upon the earlier (and in my view, very successful) experiment with Twin Cities Public Television to archive video streams of Supreme Court oral arguments. As with the streaming video-casts, the new procedures permit stationing of a single camera, unobtrusive recording by non-motorized cameras, use of only of the courtroom’s existing lighting, and recording in instances where the equipment has been prepared and tested at least 45 minutes in the advance of the argument.

A noteworthy innovation is that, unlike the video-casts, these procedures also apply to arguments before the Minnesota Court of Appeals.

The complete text of the new procedures is accessible here.