Within the Scope

Blogging on Administrative Law and the Public Sector

Friday, May 30, 2008

Yowsa! Chapter 295 is Packed with Changes

Years ago, in a very different life, I used to represent candidates and political committees as an election lawyer. And while I am no longer helping clients to stay on the straight and narrow (or completing filings for my own beleaguered campaign committee), I still enjoy watching the developments in this area of the law from the proverbial “peanut gallery.”

So, how I missed the signing into law of Chapter 295, which occurred two weeks ago, I cannot precisely say for sure – but this law has features that candidates, public officials and political operatives of all stripes will want to note.

Included among the changes to the law are new rules on: the receipt of commemorative plaques by public officials; when reports of large campaign contributions must be submitted; close-captioning of political advertisements for deaf and hard-of-hearing voters; agent delivery of absentee ballots; the partisan affiliation and balance among election judges; and charitable donations that may be made by “terminating” campaign committees.

As we head into an election season with important state elections, these statutory changes could play a role – at least as to which candidates draw respectful applause for their observance of the new laws and which ones are caught with an embarrassing campaign gaffe.

If someone you love is a candidate or public official in Minnesota, you will want to have them check out Chapter 295 – which is accessible here.

Tuesday, May 27, 2008

Interagency Rules Committee to Meet Thursday

The Interagency Rules Committee – an all-volunteer group of state rule writers – will gather on Thursday afternoon to confer about recently-issued rulemaking reports and to continue planning for the (13th) annual rulemaking seminar later this year.

The meeting will be held in Room 6146 of the Minnesota Department of Human Services’ Lafayette Building, from 3:00 p.m. to 4:30 p.m.

Change on Disqualifications Does Not Violate Ex Post Facto Clause

In a very scholarly opinion issued today, a panel of the Minnesota Court of Appeals turned away the challenge of a local nurse who sought to overturn her disqualification from providing direct contact services to patients.

In 1992, Tonia Williams shot and killed a burglar who broke into her home in Philadelphia, Pennsylvania. Ms. Williams was charged with, and convicted of, involuntary manslaughter – and served two-and-one-half years in prison. Following her release from prison, Ms. Williams moved to Minnesota, became a registered nurse, and was working for a time at Abbott Northwestern Hospital. It appears that Abbott Northwestern did not, at the time Williams was hired, or thereafter, complete a background study on her or know of her manslaughter conviction.

In 2005, the Minnesota Legislature amended this state's disqualification law so as to withdraw from the Commissioner of Health the discretion to permit persons who were earlier convicted of certain crimes – including involuntary manslaughter – from later “holding a direct-contact position at a licensed facility.” After the effective date of this amendment, a permanently disqualifying crime operated as a complete and unwaivable bar to such persons later providing direct contact services at a licensed facility.

When, in 2006, Ms. Williams sought employment at another hospital, a background study was completed upon her. The study revealed the manslaughter conviction and resulted in her disqualification from providing direct contact services. Ms. Williams challenged the disqualification, arguing in part that the 2005 amendment amounted to an added punishment for involuntary manslaughter in violation of the Ex Post Facto clause.

Disagreeing, the appellate panel observed: “It is not irrational for the legislature to have taken note of those elements and determined that all persons who have committed such an offense should be permanently disqualified from providing direct care to vulnerable patients in licensed facilities. The Supreme Court in [Smith v. Doe,] ruled that the legislature has the power to make reasonable categorical judgments without violating the prohibition against ex-post-facto laws.”

The panel’s complete analysis is accessible here.

Sunday, May 25, 2008

Minnesota’s Signature Trait, Then and Now: The Very First to Volunteer

On this Memorial Day Weekend, I have spent a lot of time thinking about Minnesota’s men and women in uniform – those who are serving in a deadly conflict today and those who literally rushed into harms way a century and a half ago.

My thoughts ran to a bitterly divided country, armies mustering for war and a President’s urgent call for selfless volunteers – in 1861.

When Abraham Lincoln called for 300,000 troops to be mustered, Minnesota’s 1st Regiment was the very first state volunteer regiment to be formally tendered into Federal service. And throughout the horrible conflict that followed, these Minnesotans fought valiantly in the most important battles of the Civil War – including those at Bull Run, Antietam and Gettysburg.

The Regiment is best remembered for its valor during the second day of fighting in the Battle of Gettysburg. As the Union line buckled and collapsed along Cemetery Ridge, the 1st Regiment was ordered to engage a much larger brigade from Alabama that was on the march toward the Union positions. Remarkably, the Regiment's orders were to subdue the Confederate brigade and to seize their colors. Notwithstanding the grim scale of such a directive, the small Minnesota unit did directly engage the phalanx of Confederate troops, stopping their advance and obliging the massive force to retreat. The 1st Regiment suffered the highest casualty rate for a single engagement of the entire war – with 4 out of 5 of its members being either killed or wounded – so as to provide enough time for the Union line to be fortified; an act of valor that arguably saved the day, and the still later victory, for the Union forces. During their fateful charge, the unit’s battle flag fell five times and was raised again each time. And despite their horrible errand, and the piercing rate of casualties that quickly followed, not a single member of the regiment broke from the ranks.

Two decades later, the poet Hanford Lennox Gordon recounted the bravery and sacrifices of the 1st Minnesota Regiment with verses that still ring out the importance of what those soldiers did. Gordon recalls:

Hold them? They held them at bay as a bear holds the hounds on his track;
Steel to steel, banner to banner, they met them and staggered them back;
Two hundred and sixty and two, they held the mad thousands at bay;
Met them and baffled and broke them, turning the tide of the day:
Two hundred and sixty and two when the sun hung low in heaven,
But ah! when the stars rode over they numbered but forty-seven.
Dead on the field or wounded the rest of the "Old First" lay;
Never a man of them faltered or flinched in the fire of the fray,
For they bore the banner of Freedom on the Gettysburg hills that day.
Honor our fallen comrades-cover their graves with flowers,
For they fought and fell like Spartans for this glorious land of ours:
They fell, but they fell victorious, for the Rebel ranks were riven,
And over our land united-one nation from sea to sea-
Over the grave of Treason, over millions of men made free ....
To my mind, this is part of a singularly important chain that remains unbroken across our state’s history. Despite the scale of the callings, our soldiers continue to bravely say “I will go,” in the hopes that millions of others may be made free.

With gratitude this Memorial Day, and every other day, to those who served and sacrificed.

Wednesday, May 21, 2008

Some Administrative Law Notes on the 2008 Legislative Session

Among the things that happened before the Minnesota Legislature adjourned on Monday were:

Chapter 196, a measure that reforms the municipal boundary adjustment process.

Chapter 215, a measure that increases the ceilings on the amount of civil penalties that may be imposed by Administrative Law Judges in matters arising under the Minnesota Human Rights Act.

Chapter 299, a measure that revises the requirements for Minnesota’s Predatory Offender Registry – including a provision that (arguably) legislatively overturns the recent Court of Appeals ruling as to the receipt of Registry mailings.

Administrative law even played a role in the measures that did not become enacted. For example, Governor Pawleny grounded his veto of Senate File 3001, a measure relating to education policy, in part on his objection to a requirement that the Minnesota Department of Education undertake expedited rulemaking to promulgate "state and district technology standards." In his veto message, the Governor characterized this directive as an "unfunded mandate" because it was not accompanied by an appropriation for the costs of developing the new rules.

Monday, May 19, 2008

Hi and Goodbye

On the next two Wednesdays, staff of the Minnesota Judicial Center will be hosting two celebrations – one to welcome an appellate judge and another to wish a panelist a fond farewell.

This Wednesday, the State Law Library is hosting a session of “Meet Your Judges” – with Minnesota Court of Appeals Judge Matthew E. Johnson. The forum begins at 12 o’clock noon in the Lounge of the State Law Library.

A week from this Wednesday, the Judicial Center staff will be sending off Minnesota Supreme Court Chief Justice Russell A. Anderson. The May 28 farewell party will be held in the Judicial Center Cafeteria from 2:30 p.m. to 3:30 p.m.

Sunday, May 18, 2008

Power to Assess Big Fines, or File Liens, Does Not State Action Make

On Tuesday of this past week, the U.S. District Court for the District of Minnesota dismissed the civil rights claim of certain life estate holders and remaindermen – the Lennon Family – against their condominium association.

Complaining that the association’s assessment of $49,421.52 in fines against the Lennons, and filing a lien for this amount against the family’s condominium, violated their right to due process, the Lennons lodged a 1983 claim against the association.

Dismissing the suit, U.S. District Court Judge Michael J. Davis concluded that the plaintiffs had not established a sufficiently close nexus between the exercise of powers by the condominium association and the color of state law. Summarized Davis: “The Court finds that neither the power to file liens, nor the power to assess fines is a power reserved for the state. Both powers are exercised regularly by private entities: mechanics file liens and the [National Collegiate Athletic Association] assesses penalties.” Further, the conclusion that state action was lacking was not altered by the fact that the Dakota County Recorder, a government official, had recorded the association’s lien filing in the county land records.

The Court’s complete analysis is accessible here.

Saturday, May 17, 2008

The Sesquicentennial Gift for Lawyers and Law Clerks

In time for the 150th anniversary of Minnesota's admission to the Union, the Revisor of Statutes' office has made all of Minnesota's "Session Laws," from the Territorial days to the present, accessible through the internet. For anyone who is interested in the series of additions to, and substractions from, Minnesota law over time, this is important news.

And the Revisor's Office deserves our grateful thanks for making these items more widely accessible. As anyone who has done legal research in the online collections of other states will agree, the Revisor's Office continues to place Minnesota (and its legal collection) in a real leadership position.

This is no simple feat. As the Revisor's Office explained in a recent press release, the process for re-formatting these historical materials for online access was intricate and demanding:
The laws from 1983 to 1993 were in a customized format on a mainframe computer manufactured in 1971. As part of a larger project to develop a more modern bill-drafting and publishing system, these older laws were converted to HTML format for Web access. The laws before 1983 were converted from print. First, the original book bindings were carefully removed by staff at the University of Minnesota. The often-crumbling book pages were scanned and the results were subjected to optical character recognition (OCR) technology by Lason, Inc. Then programmers from the Revisor's Office and System Specialties Incorporated were able to transfer the data to the Web in over 40,000 searchable PDF documents. Meanwhile, U of M staff carefully rebound the original books for archiving.
Concluded the Revisor of Statutes, Michele Timmons: "I am delighted that technological advances and broad legislative support made it possible for the Revisor's office to improve public access to the historical session laws in this sesquicentennial year."

The whole, wonderful kit and kaboodle is accessible here.

Noteworthy Introductions

House File 4253: Representative Mark Olson (IR-Big Lake), introduced a measure today, proposing a prohibition upon state court judges from accepting “a gift from a party who has appeared, or who is scheduled or is likely to appear before the judge in a judicial proceeding.” The bill would also prohibit party caucuses in the Legislature from soliciting or receiving campaign contributions.

Inherently Difficult: Inherent Authority of the Courts and the Separation of Powers

An interesting Memorandum Opinion and Order issued by the U.S. District Court for the District of Minnesota earlier this month has had me thinking.

At issue in the case was whether a local federal Magistrate could direct a senior official from the U.S. Department of Justice – one with enough settlement authority to resolve a high-profile Federal Tort Claims Act suit – to participate in a settlement conference. The Department had earlier sought leave for such a high-level official to be excused from the discussions; a request that was granted. Yet, when settlement talks later broke down, in part because of the limits on the authority of the official that the Department did send to the talks, the Magistrate ordered the needed official to be available by telephone. Objecting, the Department of Justice asserted that such a directive violated the separation of powers between the Executive and Judicial branches.

Disagreeing, U.S. District Court Judge John R. Tunheim held that “district courts possess the inherent authority to ensure the efficient and orderly administration of justice;” powers that include the authority to make small and measured claims upon the time of senior Executive Branch officials.

While the matter is no doubt correctly decided under existing precedent, the case had me wondering about the tensions between the court’s role as a stakeholder in this separation of powers dispute – after all, it wants efficient and orderly settlement processes for the cases on its own docket – and its role as the arbiter of the separation of powers dispute. I wondered how the federal courts might react if the roles in the case were reversed: For example, what would be the reply if Congress used its budget authority to require that if agency officials were summoned by the District Courts, the hourly wage rate of these officials would be deducted from the court’s appropriations and transferred to the agency sending the official? Similarly, what would be the response if the President insisted that District Court Judges who sentence federal criminals be made available for later questioning by the President, as an indispensable support to the exercise of the President’s pardon powers? And if these examples are not quite right, are there instances in which court personnel must unquestionably yield to processes managed solely by another branch?

The Memorandum Opinion and Order, and the Court’s complete analysis, is accessible here.

Friday, May 16, 2008

Gallo, Edblad Saluted by the Minnesota Bar

I had the great privilege today to participate in the Public Law Section’s annual award ceremony honoring distinguished lawyers in the public sector. I was asked by the Section to present the William E. McGee Public Defender Excellence Award, to this year’s honoree, F. Richard Gallo, Jr.

The award is named for the late William E. McGee, the legendary Hennepin County Chief Public Defender, and is conferred to recognize innovation and special energy in the representation of indigent clients.

Rick Gallo is a very deserving honoree. Among his many credits are his victories in this case here and this one here.

And characteristically self-effacing, Gallo did not to speak of himself, or of his own career in the state public defender’s service, during his acceptance speech; but rather the challenges that are faced by his organization as agency budgets tighten. (Pictured above is Rick Gallo, center, joined by his workmates and yours truly).

Likewise important, was the fact that Jeffrey R. Edblad, the Isanti County Attorney, received the Julius E. Gernes Prosecutor Excellence Award. Jeff – who pulls triple-duty as a full-time prosecutor, a lecturer in Government and History at Anoka-Ramsey Community College and the Chairman of the Minnesota Sentencing Guidelines Commission – was an inspired selection to receive this year’s award.

Tuesday, May 13, 2008

How Broad is the Longoria Rule: Enough to Change Failure-to-Register Practice?

In an interesting published opinion issued today, a unanimous panel of the Minnesota Court of Appeals upheld the imposition of a 10-year period of conditional release for an offender whose failure to register as predatory offender began before the effective date of the statute authorizing this penalty, but continued after the date on which the new penalty became effective.

In May of 2005, Ernesto Longoria, a Level III predatory offender, registered that he was living at an address on Robie Street in Saint Paul. Sometime thereafter, Longoria left this address and began residing elsewhere. However, Longoria did not, as required by Minnesota’s predatory offender statute, apprise state officials of his new address more than 5 days before his move. Still later, in late August of 2005, St. Paul Police Officers verified that Longoria was no longer living at the Robie Street address – and, according to a fellow tenant, had not lived there for months.

On August 1, 2005, a new Minnesota statute, imposing a ten-year conditional release period upon Level III offenders who are convicted of failing to maintain their registration information, became effective.

Longoria later pled guilty to a failure to register offense. As part of the sentence for that crime, the District Court imposed the new, ten-year period of conditional release. Through a motion for post-conviction relief, Longoria sought to set-aside this portion of his sentence.

Denying Longoria’s request for post-conviction relief, the appellate panel cited approvingly the District Court’s holding that “even if petitioner was in violation of the statute by moving from the Robie address prior to August 1, 2005, he continued to be in violation each and every day thereafter until such time as he properly registered. Under the registration statute, the state is only required to establish the element of non-registration on any particular date, as opposed to establishing the date upon which a defendant moved.”

This last observation had me thinking. A frequent source of conflict between state law enforcement officials and the prosecutors that pursue failure to register crimes is whether proof of the address that a predatory offender has relocated to is required in order to mount a successful prosecution of a failure to register crime. As with Longoria, for example, St. Paul Police officers knew that he was no longer living at his registered address on Robie Street – although they may not have been certain where he had gone from there. Some prosecutors will insist that police first establish “the new, destination address” before they will pursue a failure to register charge against an offender; whereas some other prosecutors are willing to file a criminal complaint knowing only that the predatory offender is not where he said he would be.

Accordingly, if the meaning of the Longoria case is that offenders with registration crimes that span the first week of August 2005, will be subject to conditional release periods, the impact of today’s holding will be fairly modest. There are not that many offenders whose crimes involve these particular facts. However, if the panel’s instruction is to be understood that “the state is only required to establish the element of non-registration on any particular date,” and presumably not the “destination address,” this could have an impact upon a wide-range of cases.

The panel’s complete analysis is accessible here.

Monday, May 12, 2008

When More is More: The Joy of Wide Open Spaces

As a very early Father’s Day-Statehood Day-Summer Solstice-Birthday-Fourth of July present, I recently received an 8 Gigabyte iPod Nano.

Between a somewhat modest cache of the music that I enjoy and a not-modest-at-all collection of podcasts that I am interested in, I had badly outgrown my much slimmer 2 Gigabyte model. I was forever uploading and off-loading recordings so as to fit within the confines of my allotted space.

The quadrupling of the memory banks, however, has been a real relief. This weekend I was able to load the entire queue of things I have been waiting to listen to – over 40 hours of recordings in all – plus generous slices of 3 audiobooks, in one fell swoop and without denting even half of the available space.

So, for those of you looking to escape the summer season of television re-runs with a more edifying set of programming, I have found the exit out. But you will have to get your own.

Sunday, May 11, 2008

Past and Prologue: The Importance of Agency Precedent

In an interesting published opinion issued on Tuesday of this week, a unanimous panel of the Minnesota Court of Appeals reversed and remanded a determination of the Public Utilities Commission denying certain cost recoveries to CenterPoint Energy Minnesota Gas.

CenterPoint Energy sells natural gas to customers in Minnesota on a “pass-through basis,” and is entitled to recover a portion of its annual overhead costs upon these sales. As a result of accounting errors, the utility overstated the amount of gas that it delivered to customers in Minnesota and thereby understated its true marginal costs on the products that it did sell. Over the five year period that these accounting errors went undetected, CenterPoint asserted that it did not recover a total of $21 million in costs.

Because the applicable rule limits natural gas providers to recovery of costs on sales from the prior year, CenterPoint sought a variance from the Commission of the one-year cost recovery limitation. An equally-divided Commission denied the variance request.

Reversing that determination and remanding for further proceedings, the appellate panel held that the Commission did not “consistently apply the principles that it articulated and applied” in two earlier requests to recover costs beyond the one-year limitations period. Further, the panel concluded, the Commission’s reasons for departing from these precedents in CenterPoint’s case were not clearly set forth in the record.

The panel’s complete analysis is accessible here.

Sunday, May 04, 2008

District Court: Landlords Have No Standing to Challenge Inspection Ordinance

In an interesting opinion issued on Thursday, the U.S. District Court for the District of Minnesota turned away the challenge of landlords in Red Wing, Minnesota to a City ordinance that regulated rental housing. (An earlier photograph of a few of the plaintiff-landlords is accessible here.)

At issue in the case was the constitutionality of requirements which, in the view of the landlords, conditioned the right to rent housing on a landlord’s willingness to have government housing inspectors tour buildings where the rental properties are sited. The landlords argued that these tri-annual inspections abridged rights that were guaranteed to them by the Fourth Amendment.

U.S. District Court Judge John R. Tunheim concluded that the landlords did not have sufficient Article III standing to challenge the ordinance under the federal civil rights laws. As Judge Tunheim reasoned, the existence of intermediate state processes made the claims of the landlords’ injury unsubstantial and speculative: “If landlords refuse consent to the City’s request for an inspection, the [Rental Dwelling Licensing Code] requires the City to seek an administrative search warrant. The reviewing judge is specifically authorized to condition or limit the scope of the warrant as appropriate. Plaintiffs’ argument that the inspection ordinance creates an imminent constitutional injury presumes that a state court judge, with the benefit of a full adversarial hearing, will be unable to condition or limit the scope of the warrant in a manner that complies with the Fourth Amendment. The Court finds the possibility of such injury to be highly speculative." Further, the District Court concluded that even the risk of state court litigation was not “sufficient to establish and actual or imminent injury for Article III standing.”

While the District Court’s Court-Web service has yet to post this item, a copy of the decision is accessible here.

Saturday, May 03, 2008

First Ever Rule Veto, Stirs Memories and Old Debate

On Friday, Governor Tim Pawlenty exercised the powers the granted to him under Minnesota Statutes § 14.05 to “veto all or a severable portion of a rule.” The Governor’s veto bars certain proposed revisions to the state’s voter registration rules from going into effect.

The Office of Governor Pawlenty had earlier expressed concern that the Secretary of State’s proposed rules with respect to registering voters who reside in residential facilities or who are enrolled in post-secondary educational institutions, exceeded the terms of the statutes authorizing those rules. The matter is now referred to the Legislature for its consideration, as with the veto “the governor shall notify the chairs of the legislative committees having jurisdiction over the agency whose rule was vetoed.”

While the regulatory veto has been threatened a few times since it was first enacted in 1999, this is apparently the first time that a Governor has exercised this power. This is perhaps not surprising, because most of the executive branch officials who are promulgating state rules are appointees of the Governor. In the ordinary course, the Governor need only direct his ministers on the favored course – neither a threat nor a veto is necessary.

The matter is not altogether the same when the executive branch official promulgating rules is a member of a different political party from the Governor, elected with a separate electoral mandate and not subject to dismissal at the pleasure of the Governor. In 2000, Governor Jesse Ventura (I-Minnesota) objected to revisions to the same-day voter registration rule proposed by Secretary of State Mary Kiffmeyer (R-Minnesota). Secretary Kiffmeyer and her team chaffed under this pressure – arguing that her role in the process for election-related rules flowed from wholly separate constitutional and electoral mandates than that which underlay the Governor’s powers. The contrary argument, of course, was that the Legislature was fully entitled to place whatever conditions it saw fit on the delegation of its law-making powers to executive branch officials. The Legislature, so the argument goes, could condition the later effectiveness of administrative rules upon the Governor’s acquiescence, the spin of a roulette wheel or even the vote tallies on American Idol – matters as to which the Secretary of State could not complain.

In 2001, these two views clashed in a Conference Committee on rules legislation that I shall never forget. While a junior Member of the House and the most-junior of three House conferees, I argued the former position; whereas the latter position was advanced by then-Senate Assistant Majority Leader, John Hottinger. (He would move into the top spot in the State Senate in the following session). The two of us circled in an ever-sharper set of exchanges over my proposal to strip the Governor of the power to veto rules promulgated by fellow Constitutional Officers. With each treatise I cited, and law review that I circulated to the conferees, the tension in the room only tightened. Then Senator Hottinger ended our argument as only a senior leader of the Senate can, declaring: “Representative Lipman, listening to you, I have gone from being un-persuaded, to being un-persuadable !” The regulatory veto was not to be touched or altered; and has not been since.

For me, someone who is long since gone from these battles, yesterday’s events have all of the sharp pathos of an arty French film: “Plus ça change, plus c'est la même chose.” (The more that our Constitutional Officers change, the more our regulatory debates remain the same).

Representative Hansen Seeks Greater Disclosure from State Court Judges, County Commissioners

While the Legislative Session is winding into its final weeks, there are still introductions of new bills – whether for position-taking by Members, or as a “vehicles” for other collections of legislative proposals or as previews of the work that Members hope to do in upcoming legislative sessions.

Perhaps for this last reason, the introduction of a measure by Representative Rick Hansen (DFL-South St. Paul) to include state court judges and county commissioners under the definition of “public officials,” is noteworthy.

Under Chapter 10A, certain high-ranking government officials are denominated as “public officials.” These officials are restricted as to their receipt of gifts from lobbyists or the principals of lobbyists and must submit certain disclosures on their finances for public view. For example, “public officials” must annually detail amounts in excess of $50 that the official received in compensation for labor or personal services, the names of securities that the official owns which have a value over $2,500 and the location of non-homestead property in which the official has an interest.

A copy of Representative Hansen’s Bill, House File 4227, is accessible here, and a copy of the Statement of Economic Interests to be completed by public officials is accessible here.