IPAD Sets Conference on Security Information

The Minnesota Department of Administration's Information Policy Analysis Division – IPAD – announced today that it will be hosting a meeting of data practices stakeholders on protecting "security information" held by government agencies.

The conference will be held on Monday, July 21, 2008 from 9:00 a.m. until Noon, in Room 116B of the Administration Building in St. Paul.

IPAD is further requesting that by July 11, would-be participants in the conference send to IPAD by electronic mail information on how such security information is being used by state agencies and "any other legislative ideas that you think are needed."

Our Field of Dreams … May Government Do the Leveling?

In an interesting term-ending opinion issued on Thursday, the U.S. Supreme Court struck down a portion of the Bi-Partisan Campaign Reform Act. The Court set aside the so-called "Millionaire’s Amendment;" a provision that adjusted both contribution and coordinated party expenditure limits in those federal races in which a candidate contributes more than $350,000 of personal funds to his or her own campaign.

In setting aside this provision as violative of the First Amendment, a 5-4 majority of the Court declared that preventing corruption or the appearance of corruption were the only legitimate and compelling government interests “thus far identified for restricting campaign finances.” Therefore, because Congress' interest in “leveling the playing field” among candidates of different personal wealth was not an anti-corruption objective, it was not a compelling governmental interest that justified burdening fundraising activities which are otherwise protected by the First Amendment.

As I am always reading such decisions with an eye to how they might impact events here in Minnesota, I noted two items: First, the Court majority cites approvingly the famous Eighth Circuit case from Minnesota, Day v. Holahan. The case is cited for the proposition that adjusting a candidate’s expenditure limits and eligibility for public funds based upon independent expenditures against the candidate, was a burden to the speech of those making the independent expenditures. The vibrancy of this case has waxed and waned over the 14 years since it was handed down by the Eighth Circuit – as U.S. Supreme Court jurisprudence above it has moved – and so its resurgence in the opinion on Thursday was certainly noteworthy.

Second, and much more importantly, a key feature of the October 2007 Report of the Ad Hoc Advisory Committee to Review the Minnesota Code of Judicial Conduct seems to be even more doubtful and frail following the issuance of the decision on Thursday. As readers of these pages will recall, the Ad Hoc Advisory Committee has recommended that the Minnesota Supreme Court adopt an ethics rule restricting the time period within which candidates for judicial office may raise campaign funds. The Committee urges these restrictions so as to create a “level playing field” among candidates for judicial office and to save incumbents from lengthy periods of fundraising. The Committee argues:

[The Committee's proposed] Rule 4.2(B) provides for a period of two years prior to the first applicable primary election for the candidate to engage in specified campaign activities. The committee discussed various time frames with a goal that judges should not be engaged perpetually in campaign activities during the term of office. The committee further recognized that a level playing field in terms of campaign restrictions is desirable for all candidates for judicial office. Two years appears to be reasonable.

To my mind, there is a big gap between the U.S. Supreme Court’s critique of government efforts to level electoral playing fields and the Ad Hoc Committee’s recommendation that this practice be extended with a round new state rules.

The High Court’s complete analysis in Davis v. F.E.C. is accessible here and the Ad Hoc Committee’s report is accessible here.

On 44

Appearing more like a finely-tuned interrogatory, than the whisper of one’s heart, this year my birthday wish came in four parts.

I wanted some time here; a glass or two of this; a slice of this to steady my wishing candle; and a few quiet moments to read what Justice Alito wrote yesterday here.

A modest list perhaps; but then again, in all the years that led to this one, most of my wishes for family, career and community have already been granted.

I will be sure make a few notes on precisely what the Justice said on these pages here – just as soon as the hammock releases me from its grip.

Panel to Friends of the Riverfront: A Writing is Guaranteed, Not a Hearing

In an interesting published opinion issued yesterday, a panel of the Minnesota Court of Appeals turned away a challenge to the issuance of a Certificate of Appropriateness by the Minneapolis City Council. A local advocacy group, Friends of the Riverfront, and others, challenged the Council’s issuance of the Certificate – which is a key step in DeLaSalle High School’s plans to construct an athletic facility next to the school’s campus on Nicollet Island.

The Friends challenged the Council’s action, in part, on the grounds that the Council did not undertake a full evidentiary hearing, for the receipt of testimony from live witnesses, presided over by an independent hearing examiner. Instead, the Council received and reviewed written submissions from interested persons on the propriety of granting the Certificate.

Holding that the only procedural safeguards guaranteed to the parties to this proceeding were the rights to “present evidence and legal argument,” the appellate panel concluded that written submissions were “sufficient to permit the city council to evaluate the appropriateness of the development.” Accordingly, the panel affirmed the lower court’s dismissal of the Friends’ suit.

The panel’s complete analysis, on all of the Freinds' claims, is accessible here.

The Best Intersection in Town: The Annual Meeting of the MSBA Ad Law Section

This morning I had the great pleasure and honor to serve as the program emcee at the Annual Meeting of the Minnesota State Bar Association’s Administrative Law Section.

This morning’s program, which focused upon the intersections between state and federal administrative law, featured a series of very lively and interesting presentations.

At the following hyperlinks are photos of our all-star cast of presenters, which included: Chief Administrative Law Judge Raymond R. Krause, Associate Justice of the Minnesota Supreme Court Paul H. Anderson, Assistant Attorney General Joceyln Olson, Professor Richard W. Murphy and Professor David Schultz.

Also pictured here, is a snapshot of outgoing Section Chairman Todd J. Guerrero, Administrative Law Judge Steve M. Mihalchick and incoming Section Chairman David Aafedt.

As far as I can tell, a great time was had by all.

UPDATE: The Minnesota Bar Association has recently posted to its website copies of Professor Schultz's detailed and not-to-miss handouts from the Annual Meeting: "The 2008 Case Law Review" and "Trends in Federal-State Administrative Law" - both of which are accessible here.

Among the Chairman's Maxims, Credibility is Key

The Chairman of Minnesota’s Judicial Selection Commission, Ronald J. Schutz, was featured in Monday's issue of the National Law Journal. In this issue, Schutz, who also heads the intellectual property litigation group at Robins, Kaplan, Miller & Ciersi, shares some of his strategies for persuading juries. Among other items, he recommends: (1) Keeping the cross-examination of experts focused; (2) Treasuring your credibility with the judge – as jurors will pick up on this; and (3) Remembering that the only reality that exists for jurors is in the courtroom.

The feature likewise explores a winning closing argument in which Schutz asked jurors to compare the defendant’s words with its actions. Throughout, Shutz reminds readers that personal and professional credibility is at the heart of the litigator’s challenge when facing experts, approaching the Judge, presenting to juries or framing one’s case.

A PDF-formatted excerpt of the feature, in which these maxims are explored, is available at the RKM&C website, here.

Ear Candy

Because I am juggling a list of household chores with the some writing for work this weekend, I thought that I would leave readers with links to some my recently-acquired iPod favorites. Among the clips that you might also want to check out are:

n An unbelievably interesting and thought-provoking lecture from University of Chicago Law professor Richard Epstien entitled "Is the Administrative State Consistent with the Rule of Law?" Originally presented as part of Chicago's Best Ideas sessions, this audio clip is a wonderfully brisk and challenging aerobic workout for your synapses; accessible here.

n Federal Communication Commission Member Jonathan Adelstein, appearing on C-SPAN's "The Communicators," discusses the transition to digital television, media ownership rules and the "net neutrality" debate; accessible here.

n A panel discussion, hosted by the American Enterprise Institute, on the impact of international antitrust regulations on American companies doing business in Europe and across the globe; accessible here.

A Hum-Dinger

When I am not at my day job in the State Capitol Complex, I have the good fortune and genuine honor to serve on the Board of Directors of the recently-merged social service agency Tubman Family Alliance – Chrysalis Center for Women. The combined agency is our state’s largest battered women’s shelter and a premier provider of outpatient mental health services to families in need.

Pictured above is yours truly, along with Barb Mulkin, the agency’s indispensable volunteer coordinator, as we welcome guests to the recent Wing Ding fundraiser. In the photo, I am sporting one of the agency’s anti-violence tee-shirts, with the slogan “Start Listening” – although I admit, I chose it because I thought it might be handy to display to my own kids....

Why was I at the door of the event? Well, who better than a guy who grew up a short-drive from the very birthplace of Buffalo Wings to welcome guests to an evening that celebrates this singular advance in human civilization?!?

It was a great time for a great cause.

Harry Blackmun Was No Bigot, Says George Mason Professor

In an interesting article posted to the Social Science Research Network today, Ross E. Davies, Professor of Law at the George Mason University School of Law and Editor-in-Chief of The Green Bag, critically analyzes a yarn told about Justice Harry Blackman in Bob Woodward and Scott Armstrong's legendary book The Brethren: Inside the Supreme Court.

In The Brethren, Woodward and Armstrong maintain that in Blackmun's first draft of his famous ode to baseball, found in the introductory paragraphs to the High Court's opinion in Flood v. Kuhn, Blackmun omitted any reference to African-American players until prompted to include them by fellow Justice, Thurgood Marshall.

Using the newly-accessible archives of U.S. Supreme Court Justices Blackmun and William Brennan, however, Davies establishes that the tale is not true: Baseball greats Satchel Paige, Jackie Robinson and Roy Campanella all appeared in Blackmun's first draft of the opinion.

Likewise interesting, Davies reports that while he sought out Woodward and Armstrong's comments on these findings, no reaction from the duo was received.

Davies' complete article is accessible here.

Parallel Habeas Petitions and the Privilege Against Self-Incrimination

In an interesting unpublished opinion issued today, the Minnesota Court of Appeals turned away the challenge of a prison inmate who was disciplined for refusing to participate in sex offender treatment.

At issue in the case are the limits of the Commissioner of Corrections’ authority to outwardly adjust the date on which an inmate will be released from prison, as a punishment for the inmate’s earlier refusal to participate in sex offender treatment. Joe Henry Bandy-Bey, whose supervised release date was adjusted outward by 15 months for his refusal to discuss his offenses with prison therapists, argued that he could not be disciplined for such a refusal while he had a habeas corpus petition pending in federal court.

As readers of these pages will recall, precisely where the Fifth Amendment privilege against self-incrimination ends and Commissioner Fabian’s power to discipline rule-breaking inmates begins, is a vigorously disputed boundary.

Adding to the overlay of earlier decided cases, the appellate panel affirmed a lower court’s denial of Bandy-Bey’s challenge. The panel held that because there was not an appreciable risk of self-incrimination following the expiration of both Bandy-Bey’s direct appeals and the denials of two separate habeas corpus petitions. Wrote Chief Judge Toussaint for the panel:

Based on this procedural history, appellant can show even less of a likelihood of success, or a “manifest injustice” waiting to be remedied, as expressed in this court’s Henderson opinion, than the offender in Henderson. The supreme court granted review in Henderson and reversed based on the risk of a perjury prosecution, without addressing the effect of the pendency or possibility of collateral-review proceedings. Because the supreme court did not reach that issue, or criticize this court’s reasoning on the issue, we choose to follow that reasoning for purposes of consistency. Thus, even if Minnesota courts were ultimately to hold that the Fifth Amendment privilege extends into the period of collateral review, based on this court’s Henderson opinion, appellant has not shown that the privilege would survive for him.

The panel’s complete analysis is accessible here.

My Father's Day Celebration with Luke's Father

Commemorating the arrival of the Star Wars memorabilia collection to the Minnesota Science Museum, the children and I had the occasion to visit with Darth Vader, Sith Lord and aide-de-camp to Emperor Palpetine.

As Lord Vader and I are both government officials, our conversation began convivially enough. He and I agreed about a great many subjects – including the satisfactions of wearing basic black at work and the need to bring greater order to the galaxy. Regrettably, however, to his core Vader remains a monarchist. And it is there that we part ways.

Because Vader is never gracious at a conversational impasse, our exchange ended with him holding me aloft with his mystic powers and choking me to the point of collapse.

Still, as our family found out, the exhibit, which runs through August 24, 2008, is great fun for fans of all ages.

University of the Automobile

A mentor of mine makes the observation that if American workers were simply to use the time that they spend in their cars commuting to and from work, listening to worthwhile broadcasts, they could “change their cars into universities.”

For those of us in the Twin Cities, where the average round-trip commute runs just shy of 45 minutes per day, a year’s worth of commuter study would amount to nearly 200 hours of mobile class time.

Inspired by that calculus, I have continued to stockpile my iPod with all sorts of useful (and completely free) offerings. Some of the podcasts that I loaded this week are:

The Duke Law Journal’s annual Administrative Law Conference – this year exploring Administrative Law, preemption and federalism – accessible here.

Justice Antonin Scalia’s address to the national Orthodox Jewish organization Agudath Israel of America, on the Establishment Clause; accessible here.

U.S. Congressman Keith Ellison’s (D-Minnesota) address to students of Georgetown University Law Center, on his agenda for inter-faith dialogue and social justice; accessible here.

The Federalist Society's predictions as to the Communications and Technology policies that will be undertaken in the next Administration if one of the major party nominees is elected President; accessible here.

Now my only problem is that it costs four dollars a gallon to operate “my university….” I just hope that I am still eligible for student loans….

False Claims Act Not an “All-Purpose Anti-Fraud Statute”

In an interesting opinion issued yesterday, a unanimous U.S. Supreme Court overturned a lower court ruling as to the proof that qui tam relators must assemble in order to recover damages under the False Claims Act.

At issue in the case was whether former employees of a second-tier subcontractor for the U.S. Navy, now acting as private attorneys general, could recover money damages against their misbehaving former employer and others. The second-tier subcontractor had furnished products to a first-tier subcontractor, certifying that the goods it delivered met the Navy’s contract specifications and had passed required quality testing; yet, neither of these representations were true.

At the close of the qui tam relators’ case in U.S. District Court, the contractors moved for judgment as a matter of law. As the companies argued, no jury could find a violation of the False Claims Act because the relators did not offer proof that the fraudulent invoices and certificates from the second-tier subcontractor were ever presented by the prime contractor to the Navy. In the view of the companies, the nexus between the second-tier subcontractor's misconduct and later government payments was missing. Agreeing, the District Court granted the motion.

Reversing, a panel of the U.S. Court of Appeals for the Sixth Circuit held that such claims do not require proof of an intent to cause a false claim to be paid by the Federal Government; but rather, the intent to cause a false claim to be paid with funds that earlier came from the Govern­ment was sufficient.

Disagreeing, a unanimous U.S. Supreme Court held that subcontractor liability under the False Claims Act required proof that the subcontractor presented a false claim to higher-tier contractors with the intent and purpose of inducing payment of the false claim by the Federal Government. Without such proof, continued the Court, “[r]ecognizing a cause of action under the [False Claims Act] for fraud directed at private entities would threaten to transform the FCA into an all-purpose antifraud statute.”

Likewise interesting, in rejecting the Government’s argument that the terms “paid … by the government” should have a broad construction, and include instances in which government funds were used to pay an improper invoice, the Court takes the Government to task for “colloquial” and uncustomary statutory construction techniques. Participating as amicus curiae, the U.S Government argued that “when a student says his college living expenses are ‘paid by’ his parents, he typically does not mean that his parents send checks directly to his creditors. Rather, he means that his parents are the ultimate source of the funds he uses to pay those expenses.” Countering with his own hypothetical, Justice Alito replied: “This example is unpersuasive because it involves a colloquial usage of the phrase ‘paid by’—a usage that is not customarily employed in more formal contexts. For example, if a federal employee who receives all of his income from the Government were asked in a formal inquiry to reveal who paid for, say, his new car or a vaca­tion, the employee would not say that the Federal Government had footed the bill. In statutory drafting, where precision is both important and expected, the sort of colloquial usage on which the Government relies is not customary.”

Generously, from a website at which no one has to pay in order to receive quality goods, the Court’s complete analysis is accessible here.

District Court: Per Diem Suit Would Intrude on Management of Legislature

In a Memorandum Opinion and Order issued last Friday, Judge Kathleen R. Gearin of the Ramsey County District Court dismissed an action challenging recent increases to the amounts that legislators receive for daily expenses.

Last winter, a local advocacy group, two state representatives and four citizen-taxpayers challenged the approvals of a rise in per diem payments for State Senators from $66 to $96 per day and for State Representatives from $66 to $77 per day. The plaintiffs argued that these increases violated the ban on mid-term salary raises for Legislators in Article IV, Section 9 of the state constitution.

Disagreeing, Judge Gearin noted that an earlier Minnesota Supreme Court decision held that “per diem payments, even when increased significantly, are not increased compensation” under Article IV, Section 9. Moreover, the state courts are obliged to “refrain from an intrusion into the internal management of the Legislative or Executive branches absent a showing of circumstances compelling our review of the discretionary actions taken.”

The District Court’s complete analysis is accessible here.

Power to the Paralegals! Just Be Sure to Keep Track of Your Time….

In an interesting opinion issued this morning, the United States Supreme Court reversed a lower court's ruling that paralegal costs were not recoverable as “expenses” under the Equal Access to Justice Act.

In 2005, the U.S. Department of Transportation’s Board of Contract Appeals denied in part the fee petition of Richlin Security Service Company, a government contractor that had earlier prevailed in litigation against the agency under the Service Contract Act. On appeal, a divided panel of the U.S. Court of Appeals for the Federal Circuit affirmed the Board's conclusion. The panel reasoned that the EAJA authorizes the recovery of the fees of attorneys, experts and agents – but not paralegals.

Reversing that decision, and siding with the U.S. Court of Appeals for the Eleventh Circuit on this issue, the High Court reasoned: “Since §504(b)(1)(A) awards fees at 'prevailing market rates,' a straightforward reading of the statute leads to the conclusion that Richlin was entitled to recover fees for the paralegal services it purchased at the market rate for such services.”

Likewise noteworthy, was Justice Alito's pointed rejoinder to the agency's claim that any right to recover paralegal fees under EAJA must be read narrowly, in light of the canon urging a strict construction of waivers of sovereign immunity. In a passage that is certain to be cited often by the Contract Bar, Justice Alito wrote: “The sovereign immunity canon is just that — a canon of construction. It is a tool for interpreting the law, and we have never held that it displaces the other traditional tools of statutory construction.... There is no need for us to resort to the sovereign immunity canon because there is no ambiguity left for us to construe.”

The Court's complete (and nearly unanimous) opinion is accessible here.

Big Enough to Cover, Too Small to Let Out

In an interesting opinion issued on Friday, a special three-judge panel turned aside the challenges of the Northwest Austin Municipal Utility District to the “preclearance” requirements of Section 5 of the Voting Rights Act. The Utility District sought a declaratory judgment exempting it from the requirement to submit changes in voting procedures for review. Alternatively, the Utility District challenged the constitutionality of Congress’ recent 25-year extension of section 5 of the Act as lacking a sufficient record of present-day racial discrimination in voting. Argued the Utility District, the annual rate at which the Attorney General now objects to new voting procedures has become “so vanishingly small” as to refute all claims that section 5 “acts as anything other than a symbolic assertion of federal supremacy intended to perpetuate the fiction that states and localities cannot be trusted to enact fair and nondiscriminatory voting practices and procedures.”

Rejecting both claims, the panel held that the Utility District was not the type of jurisdiction that Congress permitted to seek an exemption from the Act and that “the extensive legislative record documenting contemporary racial discrimination in voting in covered jurisdictions,” justified Congress’s decision to extend the preclearance procedures of section 5.

For me, the most interesting part of the opinion is the panel’s conclusion that the Utility District was large enough to be bound by the preclearance procedures, but too small a jurisdiction to be permitted to demonstrate that its own history of voting practices did not justify federal oversight. Quoting a 1982 Report of the U.S. Senate, the panel notes that Congress considered and rejected the claim now made by smaller jurisdictions like the Utility District:

As a practical matter, if every political subdivision were eligible to seek separate bailout, we could not expect that the Justice Department or private groups could remotely hope to monitor and to defend the bailout suits. It would be one thing for the Department and outside civil rights litigators to appear in hundreds of bailout suits. It would be quite another for them to have to face many thousands of such actions because each of the smallest political subunits could separately bail out.

Further, citing with approval the brief of the NAACP, the panel continued “[i]f the District’s claim were accepted … it would require Congress to determine the appropriateness of Section 5’s coverage of every single state, county, city, village, utility district, special purpose district, or any other entity that holds elections…. The District’s position would also open the door to as-applied challenges by thousands of entities that conduct elections within covered jurisdictions, upsetting the balance Congress struck when it expanded bailout eligibility in 1982.”

Likewise interesting, the panel includes as an Appendix to its opinion excerpts from recent objection letters from the U.S. Attorney General; excerpts that the panel concludes demonstrate both contemporary practices of discrimination and the continuing need for remediation.

The panel’s complete analysis and appendix is accessible here.