Within the Scope

Blogging on Administrative Law and the Public Sector

Thursday, January 31, 2008

Celebrating 10 Wonderful and Exciting Years

As part of the wider set of celebrations during Employee Recognition Week, our Office today honored some long-term state employees with applause and tokens of affection for their years of state service.

I was among the honorees because, when one knits together all of the various tours of duty I have had in state government, on or around Valentine’s Day this year, the work weeks will total ten years of service.

Included above is a rather grainy photo of the lead crystal box, embossed with the state seal, which accompanied my honors today. I assumed that the state seal is featured on the top of the box so that when Mrs. Within the Scope knocks me with it, for remaining in government service so long, one will be able to read our state’s motto "L'Etoile du Nord" on my forehead….

Even without a bruise in the shape of the state seal, there is little doubt now that I am a G-Man.... Those ten years have included a wonderful collection of assignments and days. And, I have had the special fortune to be a witness to, and a participant in, a set of remarkable improvements in state government. Sadly for Mrs. WTS, and our joint checking account, however, this was the rich reward that I was really after all along.

If those years do contain a lesson for anyone else, it is that the old aphorism is true: Find a job that you love to do and you’ll never have to work a day in your life.

Wednesday, January 30, 2008

4-You-Foods: A Licensing Case with Many Issues, Many Nuggets on Due Process

Not since law school has there been as many issues and sub-issues in the fact pattern of a licensing case, as were in an unpublished opinion issued yesterday by the Minnesota Court of Appeals. And, with the determined precision of a student who has earned top marks, Judge Doris Huspeni, sitting on the panel by designation, opens and unpacks a series of challenges from the Minneapolis grocer 4-You-Foods. In the end, the panel affirmed the Minneapolis City Council’s decision to revoke the store’s license – but along the way, practitioners and court-watchers learn a number of interesting things.

Among the challenges to the revocation action made by the licensee, were two attacks on the procedures employed by the Minneapolis City Council. The licensee claimed it was denied due process of law because the Administrative Law Judge’s report in the matter was referred to a Committee of the Council for review – a committee whose quorum and membership were each less than a majority of the entire Council. Turning away this challenge, the panel held that because the entire Council received and had access to the undelying record, an initial review by a Council Committee did not violate due process of law.

Further, the licensee argued that the Committee Chairman’s recording of a late-arriving Council Member’s vote in favor of revoking the license, after a requisite quorum of the Committee had earlier voted to take this action, entitled the licensee to a remand. While acknowledging that the City Council had pledged to follow Robert’s Rules of Order during its proceedings, and this vote tally did not follow a proper motion for reconsideration under Robert's Rules, the appellate panel declined to remand the matter “on this minor parliamentary procedure error.” As the panel reasoned, where it was clear that the later-arriving member intended to join her colleagues in urging revocation by the full Council, a remand was not appropriate.

Lastly, and perhaps of broader interest, the panel turned away the licensee’s challenge to City Charter provisions which state that business licenses may be revoked for “good cause” shown. The licensee argued this standard was unconstitutionally vague. Disagreeing, the panel noted that this standard had survived an earlier facial challenge before the Minnesota Supreme Court, and that “as-applied” to the licensee’s activities, the conditions of the license itself assured that the licensee did not have to guess as to what events might trigger a later license revocation.

The panel’s complete analysis – on these issues and more – is accessible here.

Monday, January 28, 2008

State Senate Committees Jointly Turn to Judicial Selection

The Minnesota Senate Committee on the Judiciary, Committee on State and Local Government Operations and Oversight, and the Judiciary Budget Division, jointly announced this afternoon that it will host a combined hearing on judicial selection and retention in Minnesota.

The hearing will include testimony from a range of invited panelists and touch upon proposals for reform.

The hearing will be held on Monday, February 4, 2008 at 12:30 p.m. in Room 15 of the State Capitol. This scheduling places the hearing just eight days before the full Senate returns for the 2008 Legislative Session

The Senate Calendar noting this event is accessible here.

I will post more details about the hearing on February 4.

Sunday, January 27, 2008

A $28,000 Grant that Could Pay Real Dividends

The Billings Gazette reported today that, flush with a $28,000 grant, the Supreme Court of Montana will consider developing a new set of metrics to measure Court performance.

The grant was generously awarded by the State Justice Institute – a nonprofit organization in Alexandria, Virginia that underwrites projects to improve the state court system. Montana will use the grant funds to retain a set of staff consultants from the National Center for State Courts.

Like many other state courts around the nation, the Montana courts have seen a steady increase in workload over the past two decades. With an eye toward improving the efficacy of judges and staff, Court and NCSC personnel will discuss the development of a useable set of performance measures at meetings that will begin next month.

The complete Gazette report from is accessible here.

Saturday, January 26, 2008

3rd Circuit: Disparate Process for Emigrating Sex Offenders Violates Equal Protection Guaranty

In an interesting opinion issued on Wednesday of this week, a divided panel of the U.S. Court of Appeals for the Third Circuit held that a Pennsylvania law which subjected all sex offenders who emigrated to that state to community notification processes, while exempting many Pennsylvania sex offenders from these same processes, violated the Equal Protection Clause of the Fourteenth Amendment.

“John Doe,” a New Jersey resident and sex offender, challenged the Pennsylvania law that exempted Pennsylvania offenders who were not “sexually violent predators” from the public notification process, but did not permit offenders who emigrated from other states, like Doe, to establish that they were similarly not a “sexually violent predator” and likewise deserving of an exemption.

Dissenting, Circuit Judge Thomas L. Ambro concluded that the panel majority did not sufficiently credit the judgment of the Pennsylvania Legislature to the effect that offenders like Doe arrive in the Keystone State in a very different posture than local offenders – at least with respect to the records that detail their offenses. Wrote Judge Ambro:
Even if the majority is correct that all the relevant information [about the out-of-state offender] is readily available [to Pennsylvania officials], which seems doubtful, this mistakes our judicial role. Under rational basis review, we do not pass on the “wisdom, fairness, or (even) logic” of legislative decisionmaking. “[T]he Fourteenth Amendment gives the federal courts no power to impose upon the States their views of what constitutes wise economic or social policy.” As long as there is “any reasonably conceivable state of facts that could provide a rational basis for the classification,” we must uphold the statute against an equal protection challenge. If the “question is at least debatable,” the Commonwealth’s classification survives rational basis review.
Likewise interesting, the decision details the intricate operation of the Interstate Compact for Adult Offender Supervision, the transfers between states of offenders who are under still under supervision and the intersections of state and federal law regarding these inter-state moves by offenders. Significantly, the panel majority concludes that emigrating offenders, like Doe, do not have a right to sue under 42 U.S.C. § 1983 to seek enforcement of the provisions of the Compact against the member states.

The analyses of both the majority and dissenting judges are accessible here.

Legislative Judgment on Post-Divorce Beneficiaries Can Violate Contracts Clause

In a Memorandum Opinion and Order issued on Tuesday of this week, U.S. Court District Court Judge Richard H. Kyle held that a 2002 Minnesota law which automatically revokes the designation of a spouse as the intended beneficiary of a life insurance contract, when the couple divorces, can violate the Contracts Clause of the U.S. Constitution.

Sustaining the as-applied challenge to the statute from one Robert G. Ericson, Judge Kyle wrote that “the legislative judgment that ex-spouses often intend to change their beneficiaries,” but fail to so, “is insufficient to justify such a radical alteration of pre-existing life-insurance policies” like the one insuring Ericson’s former wife.

While it is only hinted at in the Court’s opinion, no doubt a key point in Mr. Ericson’s favor was the fact that notwithstanding his 1986 divorce from Patricia Copeland, Ericson continued for a period of ten years thereafter to make the premium payments on the insurance policy that designated him as the primary beneficiary.

The Court’s complete analysis is accessible here.

Thursday, January 24, 2008

35 Years Hence, Our Contemporary Fault Line on Abortion

If art is a hammer, then perhaps case law is our mirror. It reflects back a snapshot of our present circumstances, framing in full color our successes in presenting ourselves and the areas in which we still struggle.

Tuesday, having been 35 years to the day that the U.S. Supreme Court handed down its landmark decision in Roe v. Wade, it occurred to me that a decision from the U.S. Court of Appeals for the Eighth Circuit, involving a similarly pseudonymed plaintiff, in a challenge to state abortion regulations, issued on that anniversary, was just such a reflective marker of our time.

At issue in the contemporary challenge by Jane Roe, was whether a Missouri prison regulation that prohibited travel by women inmates outside of the facility for elective abortions, violated rights that were otherwise guaranteed to the inmates by the Eighth and Fourteenth Amendments. A lower court enjoined the Missouri jailers from enforcing the restriction against women seeking elective abortions, on the grounds that the prohibition did not comport with due process and amounted to cruel and unusual punishment.

Agreeing only in part, the appellate panel held that Missouri’s prohibition on security escorted travel outside of the prison for elective abortions was not rationally related to the goal of reducing the risk of inmate escape; because the regulation did permit travel under an escort for other types of medical care – including the prenatal care and delivery that would ordinarily follow if an abortion were not obtained. Parting company with the lower court, however, the appellate panel went on to instruct that elective abortions did not present the type of “serious medical need” which, if withheld by prison officials, would amount to “egregious treatment that the Eighth Amendment proscribes.”

The panel’s complete analysis, which includes a discussion of the earlier Roe and the cases that followed it, is accessible here.

Wednesday, January 23, 2008

Court of Appeals Accepts Broad View of the Filed Rate Doctrine as a Bar to Claims

In an answer to a certified question that was rendered yesterday, a panel of the Minnesota Court of Appeals held that the “filed-rate doctrine” barred court actions against electric utilities which challenge the adequacy of services provided, at certain approved rates, under tariffs that had been earlier-approved by the Minnesota Public Utilities Commission.

The plaintiffs in the suit had sought contractual damages from Xcel Energy, a provider of electricity service to residential customers in Minnesota, for claimed failures in maintaining the points of connection between the utility’s electricity distribution wires and the homes of the plaintiff customers. The plaintiffs argued that this maintenance was required under the tariff but not rendered by Xcel Energy.

Reversing the lower court’s denial of Xcel Energy’s motion to dismiss, the appellate panel held that the filed rate doctrine barred claims challenging both the amount of utility rates charged under an approved tariff as well as the services that are delivered at those approved price levels – declaring that the distinction between these two types of challenges “as no more than semantic.”

As the panel notes, this broader view of the field rate doctrine, with its attendant greater deference to the rate-making functions of the Public Utilities Commission, places Minnesota on one side of a divide that has earlier split the federal circuit courts of appeal.

The panel’s complete analysis is accessible here.

Monday, January 21, 2008

Not Just Another Vacation Day

As I have done before on this particular court holiday, today I am taking some time out to revisit the writings Reverend Dr. Martin Luther King, Jr.

Among the catalogue of items that are now online, the letters between King and a set of religious leaders in Birmingham, Alabama, are perhaps the items that I return to most often. And, like much of history, the tempo of 1963 seems both harder and sharper when viewed through the letters that were written at the time.

To King, then the “outsider,” a set of learned and deeply religious Birmingham men wrote to signal their preference for civil rights litigation and negotiation over boycotts. They wrote:

Just as we formerly pointed out that "hatred and violence have no sanction in our religious and political traditions," we also point out that such actions as incite to hatred and violence, however technically peaceful those actions may be, have not contributed the resolution of our local problems. We do not believe that these days of new hope are days when extreme measures are justified in Birmingham.

We further strongly urge our own Negro community to withdraw support from these demonstrations, and to unite locally in working peacefully for a better Birmingham. When rights are consistently denied, a cause should be pressed in the courts and in negotiations among local leaders, and not in the streets. We appeal to both our white and Negro citizenry to observe the principles of law and order and common sense.
From a Birmingham jail cell, King delivered his answer to the charge of extremism – in ways that were stirring then, and reverberate still as to our polemics today. King replied:

But though I was initially disappointed at being categorized as an extremist, as I continued to think about the matter I gradually gained a measure of satisfaction from the label. Was not Jesus an extremist for love: "Love your enemies, bless them that curse you, do good to them that hate you, and pray for them which despitefully use you, and persecute you." Was not Amos an extremist for justice: "Let justice roll down like waters and righteousness like an ever-flowing stream." Was not Paul an extremist for the Christian gospel: "I bear in my body the marks of the Lord Jesus." Was not Martin Luther an extremist: "Here I stand; I cannot do otherwise, so help me God." And John Bunyan: "I will stay in jail to the end of my days before I make a butchery of my conscience." And Abraham Lincoln: "This nation cannot survive half slave and half free." And Thomas Jefferson: "We hold these truths to be self-evident, that all men are created equal ..." So the question is not whether we will be extremists, but what kind of extremists we will be. Will we be extremists for hate or for love? Will we be extremist for the preservation of injustice or for the extension of justice? In that dramatic scene on Calvary's hill three men were crucified. We must never forget that all three were crucified for the same crime---the crime of extremism. Two were extremists for immorality, and thus fell below their environment. The other, Jeans Christ, was an extremist for love, truth and goodness, and thereby rose above his environment. Perhaps the South, the nation and the world are in dire need of creative extremists.
A little more than two decades after King wrote his letter, President Ronald Reagan rendered the judgment of history. Signing the legislation that made today a national holiday, Reagan remarked of Dr. King:

In his own life's example, he symbolized what was right about America, what was noblest and best, what human beings have pursued since the beginning of history. He loved unconditionally. He was in constant pursuit of truth, and when he discovered it, he embraced it. His nonviolent campaigns brought about redemption, reconciliation, and justice. He taught us that only peaceful means can bring about peaceful ends, that our goal was to create the love community. America is a more democratic nation, a more just nation, a more peaceful nation because Martin Luther King, Jr., became her preeminent nonviolent commander.
Happy Martin Luther King Day, everyone.

Sunday, January 20, 2008

When the 30-Second Ad Becomes a Pay Per View Feature

On Tuesday of this past week, a special panel of federal judges denied a challenge to the Bipartisan Campaign Reform Act – more colloquially known as the McCain-Feingold law. The plaintiffs in the suit were the producers of a film entitled “Hillary: The Movie.” The producers sought to avoid application of the disclaimer, disclosure and financing requirements of the BCRA to their film.

As the panel concludes, however, the provisions of the BCRA are applicable because the film makes claims as to Hillary Clinton's fitness for office, and these claims are slated for broadcast on cable television within “60 days before a general, special, or runoff election” or “30 days before a primary or preference election, or a [national] convention.”

The panel’s decision, which raises all sorts of interesting questions about the differences between movie houses and cable television, as venues for such messages, is accessible here.

Friday, January 18, 2008

The Road Back from Gully

Yesterday, I had the occasion to preside over a hearing in Gully, Minnesota (Population 106) (Latitude 47.769, Longitude -95.623). And, as one local leader observed during a break in the proceedings, he had not seen as many folks wearing suits and ties in town since the Congressman had last visited there….

During the drive back to the Capitol City, I had the chance to listen to more than a few podcasts. Among the items that I thought might be of interest to readers of these pages – although it is not on a matter relating directly to Administrative Law – is a broadcast on the Vioxx Settlement.

Last week, the American Enterprise Institute convened a panel discussion on the proposed settlement – exploring in detail its formation, mechanics and ethical implications. Of special interest to lawyers here on the prairie, may be the panelists’ discussion of how Minnesota’s comparatively longer statute of limitations period relates to the larger, indeed global, settlement.

Audio and video clips of this very interesting discussion are accessible here.

Thursday, January 17, 2008

Lopez-Torres: Court Rules 9 to Ø on the Merits; Splits 5 to 4 on Whether to Rebuke New York

Yesterday’s U.S. Supreme Court decision in New York State Board of Elections v. Lopez-Torres is a fascinating opinion. It is quite a read for anyone who is remotely interested in either election law or the process of judicial selection.

At issue in the case was whether Kings County Civil Court Judge Margarita Lopez Torres had rights, grounded in the U.S. Constitution, which would oblige New York State to establish primary elections for the selection of party nominees for judicial office. In New York, judicial candidates for election to courts of general jurisdiction may run on either a partisan or independent ballot line. Judge Lopez Torres complained that the dominance of the Democratic Party in certain jurisdictions of New York State, and the process of nominating party candidates for judicial office at conventions, combine to foreclose nominations to candidates like her – candidates who are not favored by the party's leadership.

All nine Justices agreed that Judge Lopez Torres had no constitutional right to insist that political parties select their most-favored judicial candidates by way of a primary election (presumably, over the objection of the New York State Legislature, which did not enact this change on its own).

Where the Justices split was over the lesser question of whether to heap contempt upon the Empire State for maintaining a convention nomination process for judges in modern day. Justice Scalia appears to try and shield New York legislators from this rebuke. He notes that Nathan L. Miller, a renowned New York Governor and Judge, famously quipped that primaries only yielded opportunity for two things: “the demagogue, and the man with money.” (One wonders, however, whether Scalia's recitation of history was meant to instruct his brethren who wrote separate opinions, or simply to subdivide the candidates who are campaigning in a different set of primary election battles today….)

Justice Stevens and Souter wrote separately to observe that the Court’s holding did not alter a lower court’s description of the convention system’s “glaring deficiencies” or undermine support for “the broader proposition that the very practice of electing judges is unwise.” Stevens and Souter jointly conclude: “The Constitution does not prohibit legislatures from enacting stupid laws.”

Justices Kennedy and Breyer, stopping just short of urging New York to repeal the convention system, assert in their own concurring opinion that this system is “unfair,” “flawed” and signals New York’s indifference to “a selection process [that is] open to manipulation, criticism and serious abuse.”

The complete set of analyses and critiques is accessible here.

Sunday, January 13, 2008

My (Not So) Funny Valentine

At the close of last year, the Chief Justice of the Minnesota Supreme Court, Russell A. Anderson, signed an Order requesting public comment on some recently proposed amendments to the Minnesota Code of Judicial Conduct.

The proposals are the work of the Ad Hoc Advisory Committee on the Code. This Committee was established in January of last year to “study the need for and advisability of further amendments to Canon 5 and other provisions of the Minnesota Code of Judicial Conduct,” following the decisions of the United States Supreme Court and the U.S. Court of Appeals for the Eighth Circuit which invalidated portions of the Code.

The close of the public comment period on the proposed Amendments is the day after Valentine’s Day – Friday, February 15, 2008.

My own personal view is that the proposed changes are a step in the wrong direction and, if adopted, will draw the State of Minnesota into yet another round of costly civil rights litigation.

I am hoping is that readers of this site will likewise take a peek at the Committee Report, and submit their own assessments of the proposed rules sometime during the next month. (I was one of only two people who submitted written comments to the Committee during its deliberations; a number which, regardless of one's views, deserves to be higher this time around....)

Here are some related links: The Court’s Order requesting public comment and the complete set of Committee proposals is accessible here. The comments that I submitted to the Court are accessible here. The decision of the en banc panel of the U.S. Court of Appeals for the Eighth Circuit in Republican Party of Minnesota v. White is accessible here.

Send your comments; or chocolates; or flowers – but send something to the Court this Valentine’s Day!

In Through the Out Door: Circuit Panel Splits on Whether Outside Consultants Can Make Inter-Agency Memos

In an interesting opinion issued on Friday, a panel of the U.S. Court of Appeals for the District of Columbia Circuit split on the question of whether a set of faxes and e-mails written by former government officials, who were acting as unpaid volunteers, may be considered “intra-agency memoranda” for the purposes of the Freedom of Information Act. The Department of Defense sought to shield a set of communications – which were solicited by senior DoD personnel and related to the agency’s plan to establish military commissions for trying enemy combatants – from disclosure under FOIA.

A majority of the panel concluded that “documents such as the ones here—submitted by non-agency parties in response to an agency’s request for advice—are covered by Exemption 5” of the Freedom of Information Act. Dissenting, Circuit Judge David S. Tatel urged that including non-government lawyers within the term “intra-agency” makes it “a purely conclusory term, just a label to be placed on any document the Government would find it valuable to keep confidential.”

The analyses of the majority and dissenting judges are accessible here.

Saturday, January 12, 2008

Post-Hoc Legislative History Arrives Too Late for Mine Owners

Among the interesting issues in an opinion issued on Friday by the U.S. Court of Appeals for the District of Columbia Circuit, was whether legislative history in a Senate Committee Report could be considered during a challenge to rulemaking, in a case where the Senate Report was published after the rulemaking was concluded.

In its petition for review, the National Mining Association asserted that a set of new regulations regarding the availability of mine safety equipment were in fact barred by the provisions of the Mine Improvement and New Emergency Response Act of 2006 – known by its acronym, the MINER Act. The MINER Act was enacted in June of 2006 and the Committee Report that the Mining Association found helpful to their view was published some six months later. At or about the time the Report was published, the Mine Safety and Health Administration promulgated a set of final rules regarding the availability of mine safety equipment.

Holding that the Mining Association could not base its challenge to the regulations on the later-arriving legislative history, the panel concluded that the Association did not raise its statutory argument with the agency “although it had ample opportunity to do so between the time Congress passed the MINER Act in June 2006 and December 2006 when MSHA issued the final rule.”

The panel’s complete analysis – which includes useful summaries on a number of federal rulemaking subjects – is accessible here.

Cindy Sheehan Wins a New Trial on Demonstrating Without a Permit Charge

On Friday, a panel of the U.S. Court of Appeals for the District of Columbia Circuit reversed the conviction of Cindy Sheehan, a renowned opponent of the Iraq War and a candidate for the U.S. Congress from the Eighth Congressional District of California. In November of 2005, Sheehan was convicted of violating the National Park Service’s regulations on demonstrating within the National Capitol Region. The NPS maintained that Ms. Sheehan was demonstrating in front of the White House without a valid permit.

Reversing the conviction and remanding for a new trial, the appellate panel concluded that Sheehan should have been permitted to introduce evidence to the effect that she was not “demonstrating on the day in question” and that “the police officer’s bullhorn announcement” failed to give her notice “that she was demonstrating on the White House lawn without a valid permit.”

The panel’s complete analysis is accessible here.

Letters of Recommendation are One Thing; Commutations Another

In an interesting opinion handed down yesterday, a panel of the U.S. Court of Appeals for the Eighth Circuit turned away the challenge of an Iowa prisoner to a statute that regulates the activities of the Iowa Board of Parole. The statute reduced the frequency with which the Board undertakes the review of sentences of convicted murderers. The Board reviews the files of offenders for possible later recommendation that the Governor of Iowa communte a particular sentence.

Sheryl Ann Snodgress was sentenced to life in prison following the 1981 slaying of her husband. At the time that Snodgrass was convicted, Iowa law provided that the sentence for such an offender would be reviewed by the Iowa Board of Parole within five years of the arrival of the offender at state prison “and regularly thereafter.” Later, in 1995, the Iowa Legislature further defined the intervals for the Board’s subsequent review to “no more frequently than every ten years.” Snodgrass challenged the 1995 amendment declaring that, as to her, the change was an unconstitutional ex post facto law.

Disagreeing, the appellate panel held that Snodgrass did not have an entitlement to relief. As the panel reasoned, because the Iowa Constitution vests plenary authority in the Governor to commute sentences at any time – with or without a recommendation from the Board – the 1995 law did not deprive Snodgrass of any rights that were protected by the Due Process Clause.

The panel’s complete analysis is accessible here.

Thursday, January 10, 2008

Transcripts are Now Available in Photo ID Case

The transcripts from yesterday's oral arguments in the consolidated appeals of Crawford v. Marion City Election Board, and Indiana Democratic Party v. Rokita have been posted to the U.S. Supreme Court's website, and are accessible here.

As noted earlier, 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.”

Wednesday, January 09, 2008

A Few Short Notes on Tuesday's Big Cases

As if to herald that the holiday season really is over, yesterday was a big day in courts close to home and around the country. Here are a few short notes:

In Advantage Media, LLC v. City of Hopkins, a unanimous panel of the U.S. Court of Appeals for the Eighth Circuit turned away the attorney fee petition of a local billboard company that had earlier won a preliminary injunction against the City of Hopkins' sign ordinance. While the District Court entering the injunction had concluded that the sign ordinance was unconstitutionally overbroad, the panel noted that "as to Advantage [Media], the unconstitutional provisions of the Hopkins's sign code had no impact." Without such an impact, and a "material alteration in the parties' legal relationship," the panel concluded that the advertiser was not a prevailing party that was entitled to recover its attorneys fees.

The panel's complete analysis is accessible here.

In John R. Sand & Gravel Company v. United States, a 7 to 2 majority of the United States Supreme Court affirmed an earlier decision of the U.S. Court of Appeals for the Federal Circuit that as to claims against the federal government under the Tucker Act, courts must, sua sponte if necessary, assess whether the claims are timely filed. In John R., the government had conceded that the plaintiff's taking claims were timely raised; but the Federal Circuit went on to consider the issue on its own, and hold that the actions were time barred, notwithstanding the government's apparent waiver on this issue.

Agreeing, a majority of the Court concluded that the "ordinary legal principle that limitation is a defense that a defendant must plead has no application to suits [in the Court of Federal Claims] against the United States." The Court's complete analysis is accessible here.

As time permits, I will be writing more on other events that occurred during this big day.... Please stay tuned.

Tuesday, January 08, 2008

Benson to Become CEO of Minnesota Sex Offender Program

The Commissioner of Corrections announced this morning that her Deputy Commissioner for the Facilities Division, Dennis L. Benson, will be leaving the agency after 33 years of service to take a new assignment in the Department of Human Services. On March 5, Benson will become the Chief Executive Officer of the Minnesota Sex Offender Program (MSOP).

In this new role, Benson will oversee MSOP operations, strategic planning, facility development and a $60 million annual budget.

In my personal view, the Department of Human Services has made an inspired choice for a new executive. Benson, in his role at DOC, was one of the key architects of the inter-agency cooperation and joint planning that is now occurring between the adjacent DOC – DHS facilities in Moose Lake, Minnesota; an effort that is certain save the state millions in construction and operational costs over the coming decades. Further, his keen understanding of the best security practices, and his ability to see beyond narrow bureaucratic boundaries toward a much broader forensic mission, will be a boost to our state’s sex offender treatment program.

January 9, Update: The Commissioner of Corrections announced today that Lynn Dingle, formerly the Warden of MCF-Oak Park Heights and currently the Warden of MCF-Stillwater, will succeed Benson in the post as Deputy Commissioner for the Facilities Division.

Eighth Circuit: Don’t Save Claims of Physician-Examiner Bias for Trial

In an interesting opinion issued yesterday, a panel of the U.S. Court of Appeals for the Eighth Circuit denied the appeal of the widow of one Cloyd Hepp, from the earlier denial of Social Security disability benefits to Mr. Hepp. Mrs. Hepp sought to set aside the decision of the Social Security Administration, in part, because at the hearing below, the Administrative Law Judge refused to permit cross-examination of the agency’s physician examiner as to other cases in which the physician had rendered an opinion that was unfavorable to the claimant. Mrs. Hepp argued that this evidence would have shown that the physician was “biased against disability claimants” and that he has “consistently found ‘no restrictions’ for a substantial number of claimants referred to him for consultative examinations.”

Holding that such inquiries were not required, the panel detailed:
[D]ue process is not violated in social security disability hearings when the claimant fails to exercise the procedural safeguards that would have addressed his concerns. Because Hepp did not exercise his procedural right to object to Dr. Blankenship’s lack of objectivity under § 404.1519j, the ALJ did not violate Hepp’s due process rights by denying such a challenge on cross-examination. In addition, to permit Hepp the right to submit evidence from other claimants’ cases to challenge the consultative examiner’s lack of objectivity would substantially burden the social security disability hearings process because it would almost certainly result in mini-trials of unrelated and irrelevant claims. Furthermore, such a procedure would raise considerable privacy concerns as each patient’s medical records were necessarily scrutinized. These reasons, in combination with the procedural safeguards already available under § 404.1519j, outweigh Hepp’s private interest in obtaining benefits ....
The panel’s complete analysis is accessible here.

Sunday, January 06, 2008

Fifth Circuit: Remedy for Abuse of Administrative Warrants is a Bivens Action

In an interesting opinion issued by the U.S. Court of Appeals for the Fifth Circuit before the close of 2007, the appellate panel held that manufacturers do not have a constitutional right to pre-execution hearings on the sufficiency of administrative warrants issued by the federal Occupational Health and Safety Administration; and that OSHA officials may execute such warrants through force, if necessary, by enlisting the aid of the U.S. Marshals Service.

The manufacturer originally refused to permit OSHA investigators to inspect its facility; but did so under protest after the investigators returned to the plant with three armed deputies from the Marshals Service.

As part of a later petition for review, the appellate panel rejected the manufacturer's argument that a pre-execution review of administrative warrants was the only possible check upon official over-zealousness. Disagreeing, the panel remarked: "There is another route to remedy whatever constitutional violations may occur in an OSHA search: a Bivens action…. [And] Bivens has an advantage that Trinity's proposal does not: We need not recognize a constitutional right to defy a duly-issued warrant."

The panel's complete analysis is accessible here – and for an early-morning, unannounced walk down memory lane, the U.S. Supreme Court's opinion in Bivens v. Six Unknown Fed. Narcotics Agents is accessible here.

Saturday, January 05, 2008

Chevron Reformulated

The most recent issue of the Administrative Law Review (which is a quarterly project of American University’s Washington College of Law and the American Bar Association's Section on Administrative Law and Regulatory Practice) examines the changes and continued viability of the U.S. Supreme Court’s decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.

As regular readers of these pages will know, in Chevron the High Court addressed the circumstances in which courts should defer to the statutory interpretations of executive branch agencies and those in which courts should construe those terms independently of the agency’s reading. In that case, Justice John Paul Stevens famously summarized: “When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency's policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail. In such a case, federal judges – who have no constituency – have a duty to respect legitimate policy choices made by those who do.”

Three scholars – Elizabeth V. Foote of Boston College Law School, Linda Jellum of Mercer University’s George School of Law and (our state’s own) Daniel J. Gifford of the University of Minnesota Law School – examine the advent of the Chevron doctrine in 1984 and how it has changed and been recast by the federal courts over the past two and half decades.

The Foote and Jellum articles were earlier posted to the Social Science Research Network and are accessible here and here. I used the remarkably helpfulAsk a Librarian” service at the Minnesota State Law Library in order to get a look at the Professor Gifford’s piece.

All three articles in this series are worth reading – however you come by them….

Friday, January 04, 2008

Eighth Circuit Renders a “Must Read” Special Ed Decision

A unanimous panel of the U.S. Court of Appeals for the Eighth Circuit today handed down a decision that is certain to be studied, discussed and debated among our state’s Special Education Bar.

Reversing a lower court’s decision that a disabled Minneapolis teenager, M.M., was denied a free and appropriate education, the appellate panel rendered a series of important holdings on the burden of proof in special education proceedings, the meaning and effect of federal “stay put” provisions and the notice that is to be rendered for certain claims under the Individuals with Disabilities Education Act (or IDEA).

For those with an interest in special education law, this decision is a “must read” opinion, and is accessible here.

Happy Birthday, Mr. Vice President

Former Vice President, Ambassador and U.S. Senator from Minnesota, Walter Mondale, will turn 80 tomorrow.

A still vigorous Mondale will apparently mark the occasion by delivering remarks to a State Senate Committee next Friday, January 11. Alongside former Minnesota Governor Arne Carlson, Vice President Mondale will urge state legislators to create a bipartisan commission on legislative redistricting.

A website established by the University of Minnesota Law School to commemorate Mondale's special milestone (and forward him birthday wishes) is accessible here, whereas copies of the two redistricting bills under consideration by the Committee are accessible here and here.

Thursday, January 03, 2008

Legislators are from Mars, Judges are from Venus

As noted in the posting immediately below, the Chief Justice of the United States issued his 2007 Year-End Report on the Federal Judiciary earlier this week. In the Report, Chief Justice Roberts declares that his first initiative in the New Year will be to “carry on the efforts to improve communications with the Executive and Legislative Branches of government.” As the Chief Justice explains:

I am committed to continuing three of my predecessor’s important but unfinished initiatives to maintain the quality of our courts.

First, I will carry on the efforts to improve communications with the Executive and Legislative Branches of government. The Constitution’s provision for three separate but coordinate Branches envisions that the Branches will communicate through appropriate means on administrative matters of common concern. Each has a valuable perspective on the other. The Branches already engage in constructive dialogue through a number of familiar forums, including the Judicial Conference, congressional hearings, and advisory committee meetings. But the familiar avenues are not necessarily the only ones.

I have asked the Administrative Office of the United States Courts to consider other opportunities for improving inter-Branch communication and cooperation. The separate Branches may not always agree on matters of mutual interest, but each should strive, through respectful exchange of insights and ideas, to know and appreciate where the others stand.
The Chief Justice’s remarks had me thinking. Among the key difficulties facing the current Court is that unlike any other time in American history, none of those now serving as Justices has ever been a candidate for elective office. At other points in the Court’s history there has been at least one former candidate – and at many times several – with some of these being the best known and most revered Justices: Sandra Day O’Connor; Potter Stewart; Hugo Black; Joseph McKenna; John Marshall and John Jay; to name just a few.

When I was a member of the House Judiciary Finance Committee, at budget time, the State Courts Administrator’s office was sharp enough to send along those judges who were former office-holders. During the visits with appropriators that followed, these judges knew the lingua franca of the Legislature and never had to guess where the “others” stood.

I suspect that as the Chief Justice presses for pay raises for those on the federal bench, or even more convivial relations across First Avenue, N.E., he wishes that he had a few of those kind of “old-hands” nearby. It must be more difficult to “appreciate where the others stand,” when you have not had the chance to walk – or should I say campaign – in their proverbial shoes.

And while I cannot substantiate the claim, my guess is that the Chief Justice would also not need to list the improving of “inter-Branch communication and cooperation” as one of his initiatives, if a few of those “old hands” were serving with him on the High Court. I surmise, but cannot prove, that the writing style of a Senator (or a Cabinet Secretary) turned judge is both softer and different on separation of powers questions – and in ways that are not nearly so provocative to former colleagues in the other branches. But, right now, that is just a theory of mine.

What is free from doubt is that as long as governments are instituted among men, these questions of tone and genuine understanding will be important. Legislators are from Mars and Judges are from Venus.

Perhaps one or more of those folks in Iowa tonight might be a good fit for the Court?

And Now, a Word from the Chief Justice of the United States ….

In his 2007 Year-End Report on the Federal Judiciary, Chief Justice of the United States, John G. Roberts, Jr., requests a moment of our time:

[A]s we begin the New Year, I ask a moment’s reflection on how our country might look in the absence of a skilled and independent Judiciary. We do not need to look far beyond our borders, or beyond the front page of any newspaper, to see what is at stake. More than two hundred years after the American Revolution, much of the world remains subject to judicial systems that provide doubtful opportunities for challenging government action as contrary to law, or receiving a fair adjudication of criminal charges, or securing a fair remedy for wrongful injury, or protecting rights in property, or obtaining an impartial resolution of a commercial dispute. Many foreign judges cannot exercise independent judgment on matters of law without fear of reprisal or removal. Americans should take enormous pride in our judicial system. But there is no cause for complacency. Our judicial system inspires the world because of the commitment of each new generation of judges who build upon the vision and accomplishments of those who came before.
The complete Year-End Report is accessible here.

Wednesday, January 02, 2008

A Rough Day for Commissioner Fabian

On Monday, the same panel of the Minnesota Court of Appeals rendered defeats to the Commissioner of Corrections, Joan Fabian, in two separate appeals.

In the first of the two appeals, the panel reversed a lower court dismissal of a suit for injunctive relief and money damages following the Commissioner’s denial of parole to one Lillian Simmons. The District Court had earlier dismissed these claims on the grounds that the Commissioner was absolutely immune from suit in such circumstances.

In the second of the two appeals, the panel affirmed a lower court ruling that the Commissioner could not sanction those inmates who were serving sentences for crimes that occurred before August 1, 1993, if those inmates refused to participate in prison-based sex offender treatment. The panel held that as to inmates like James John Rud, who was sentenced to a 463-month prison term in 1985, a 1993 statute that provided for the discipline of inmates who refuse to participate in prison-based treatment programs operated as an ex post facto law.

While the analysis and result in each case was no doubt constrained by parallel sets of existing U.S. Supreme Court precedent, both opinions narrowly frame the challenges (and powers) of the Commissioner of Corrections when administering the state prison system. In the Simmons case, for example, the panel credits the view that the judicial function of the state courts is particularly vulnerable to the chilling effect of claims for injunctive relief, but does not point to this same hazard when the Commissioner decides which inmates are to be released on parole. Similarly, in the Rud case, the panel discounted the Commissioner’s argument that prison-based treatment for convicted sex offenders was related to the maintenance of order in the state prisons or enhancing the safety of other inmates and prison staff.

Dicta aside, the win in each case adds to the many successes of Bradford Colbert and his team of lawyers and law students at LAMP – Legal Assistance for Minnesota Prisoners.

The panel’s analysis in the Simmons case is accessible here and the Rud case, here.