Within the Scope

Blogging on Administrative Law and the Public Sector

Thursday, July 17, 2008

Minnesota Supreme Court Grants Review of Cost Recovery Case

In an Order issued this morning, the Minnesota Supreme Court has granted further review of a decision of the Court of Appeals, from May, as to the recovery of certain overhead costs by CenterPoint Energy.

In May, the appellate panel had reversed the decision of the Public Utilities Commission disallowing the recovery of costs that were presented to the Commission after more than a year; holding that the PUC did not “consistently apply the principles that it articulated and applied” in two earlier requests to recover costs beyond the one-year limitations period.

The post I made about the decision in May is accessible here, and the Court of Appeals' decision below is accessible here.

Saturday, July 12, 2008

Legislative Reform: Which Do You Prefer, an Army of One or the Committee of the Whole?

I have followed with interest the legislative reform discussions now being undertaken by the House Governmental Operations, Reform, Technology and Elections Committee. This week, the Committee held the first of three hearings on potential changes to the parliamentary rules of the House. Among the topics being discussed are the practices for referring bills to committees, the length of legislative debates and the amendment process. (A video of the Committee’s deliberations on this topic is accessible here.)

I was interested in the subject because, years ago, I was a Vice-Chairman of a predecessor committee and the Chairman of one of its subcommittees. The challenges involved with managing the legislative machinery to productive ends, was familiar to me.

In my view, the pressures points for today’s House Majority are the same that bedeviled the majority that I served way back when – namely: Are the best traditions of the House those that are associated with the ability of each Member to represent his or her constituents as the Member sees fit? Or are the House’s finest hours when it works efficiently as a collective? Stated another way: Do we more closely identify with an “Army of One” or the “Committee of the Whole”?

In Defense of an Army of One: In comparison to other state legislative bodies around our country, the Minnesota House of Representatives and Senate are remarkably open, accessible and transparent places. Only one legislator is required to introduce a bill, offer an amendment, oblige the House to vote first on a minority report, or to make procedural motions to slow the pace of deliberations. In the tradition of Mr. Smith Goes to Washington, one Member of the Minnesota Legislature can make long and very brave stands, if conscience requires it – and I have always thought that this procedural and cultural feature of our lawmaking ultimately makes our state better and a more decent place to live. (In the interests of full disclosure, however, my own “Mr. Smith moment,” and the bi-partisan bollixing that resulted for a time, can still be viewed here at the 30 minute point in the tape.)

An Ode to the Committee of the Whole: I also know what it means to run a legislative committee, and to have the political fortunes of one’s legislative teammates rest, in part, upon the committee timely completing its work. Legislative majorities are held to account if the proverbial trains do not run on time. And one’s record while governing is an important part of the messaging for any majority party at election time.

And so how can these two different and competing institutional interests be reconciled?

In my view, the solution lies in managing the volume of legislation on the agenda. With fewer topics, there is time for detailed reviews and exploring alternatives, while still leaving spacious opportunities for small minorities – even minorities of one – to be heard.

Hearing time during the legislative session is a precious resource. In order to impose some discipline on the range of topics covered, I have always favored using “market incentives” – such as awarding preferences certain Member-designated priority bills or bills that were pre-filed before the start of the legislative session; setting a much earlier deadline for the receipt of agency bills (preferably a date that precedes the legislative session); and having more detailed reviews of, and planning around, the legislation that was pre-filed. By making a set of early choices, I believe that the Legislature can have it all – thoughtful debates and the time to hear from everyone.

Friday, July 11, 2008

Boyd to Lead PUC, Wergin to Help

Governor Tim Pawlenty announced today that he has appointed Dr. David C. Boyd, to lead the Minnesota Public Utilities Commission.

Boyd, of Lakeville, is a Professor of Chemistry and, before his appointment to the Commission, chaired the Chemistry Department at the University of St. Thomas in St. Paul. He succeeds LeRoy Koppendrayer – who recently retired from the PUC after serving as a Commission Member for a little over ten years, and as its Chairman for roughly half that time.

Filling the vacancy on the Commission left by Koppendrayer’s departure is Betsy Wergin, Minnesota State Senator from District 16. Wergin has served as a legislator since 2003. Previously, she was a Sherburne County Commissioner from 1995 through 2002.

The Governor's announcement is accessible here.

A Good Story for the Sabbath: Jews at Sea

This item is over a year old – but I only just learned about it; thought that it was kind of cool and wanted to share it.

The Nimitz-class aircraft carrier U.S.S. Harry S. Truman is carrying a wooden ark and torah scroll (see a U.S. Navy photo here) that was rescued from the Holocaust by Lithuanian Jews. The item is on loan to the ship and is available throughout the carrier’s commission.

Likewise interesting the carrier’s Commanding Officer, Captain Herman Shelanski, is an observant Jew who hosts kosher meals in his quarters and participates in Shabbat services with other Jewish sailors and airmen aboard the ship.

Those connections are particularly meaningful in light of the fact that President Harry S. Truman was among the first leaders to recognize Israel in 1948 – issuing a recognition directive just hours after the Provisional Government of Israel proclaimed the new State of Israel. And, as Providence would have it, the carrier named for that President, with its Jewish Captain, was steaming by Israel’s shores during Israel's 60th Anniversary celebrations in May – prompting an opportunity for Israeli dignitaries to have a ceremonial visit the ship by way of fighter aircraft.

Good shabbos, everyone.

Thursday, July 10, 2008

D. Haw: 45-Day Time Limit Under IDEA is Not Jurisdictional; Just Motivational

In an interesting opinion from the Aloha State, the U.S. District Court for District Court of Hawaii vacated the dismissal of a disabled child’s petition in a special education case – instructing that the hearing officer still had jurisdiction to resolve the child’s claims under the Individuals with Disabilities Education Act.

After settlement talks between the litigants had languished for weeks, the hearing officer concluded that the forty-five day time limit for issuance of a decision in 34 C.F.R § 300.515 divested him of jurisdiction to issue a ruling after that deadline had lapsed. Under 34 C.F.R. § 300.515 (a), “[t]he public agency must ensure that not later than 45 days after the expiration of the 30 day period . . . [a] final decision is reached in the hearing.”

Far from imposing a jurisdictional limitation on the powers of the Hawaii Department of Education and its hearing officers, however, the District Court concluded that the federal regulation merley directed state education agencies to work harder to resolve these cases. Reasoned United States District Judge Susan Oki Mollway:
The hearing officer’s interpretation conflicts not only with the spirit of the IDEA, but also with the letter of the law. The applicable rules and regulations clearly place the burden on the [Department of Education] to ensure that a decision is timely made. See 34 C.F.R. § 300.515(a) (requiring “[t]he public agency” to ensure that a decision is reached within the stated period (emphasis added)); Haw. Admin. R. § 8-56-77 (requiring “[t]he department” to ensure a timely decision (emphasis added)). When the hearing officer invited the DOE to move to dismiss and the DOE then successfully did move to dismiss Plaintiffs’ petition, the DOE was not “ensuring” that the hearing officer made an expeditious decision. Instead, the DOE was taking advantage of its own failure to ensure a timely decision.
The Court's complete analysis is accessible here.

Wednesday, July 09, 2008

Eighth Circuit: Hearing Subpoenas Not Required by the Due Process Clause

In an interesting opinion issued today, a panel of the U.S. Court of Appeals for the Eighth Circuit held that Social Security claimants do not have an unqualified right to summon and cross-examine agency physicians who render unfavorable medical assessments in their cases.

The panel reasoned that because federal regulations qualify the right to obtain subpoenas in social security disability cases, and, in this case, another agency physician was available for cross-examination by the claimant, the Due Process Clause did not require the attendance of the author of the unfavorable report.

The panel’s complete analysis (and why it chose to side with the Second and Sixth Circuits in this emerging split of among the Circuit Courts of Appeal), is accessible here.

Tuesday, July 08, 2008

Right, Center, Left: A Supreme Court Roundup for Lawyers of Every Stripe

For me, the signature sounds of July are crickets, fireworks and lawyers arguing over the just-recently concluded U.S. Supreme Court Term.

So you won’t miss out on any of the last item, below, I have linked to four different Term-ending reviews. Individually, and collectively, these broadcasts will have you longing for the High Court’s return on October 6.

The American Constitution Society’s review is accessible here.

The Federalist Society’s review is accessible here

The Heritage Foundation’s review is accessible here

The Brookings Institution’s review is accessible here.

Friday, July 04, 2008

Why July 4th is Such a Big Deal

I occasionally have the chance to speak to high school, college and civic groups on topics relating to public service and self-government. To set a larger context for the messages that I will deliver, I frequently ask these audiences: What made the American Revolution so Revolutionary?

And while defeat of the British is certainly part of an answer to that question, to me – a former political science major – it is the smaller portion of the answer.

In 2005, I detailed my answer and some of the history leading up to the drafting of the Declaration of Independence, as a chapter in a larger monograph. For the history lovers among WTS readers, who have some time between grilling and fireworks, I have posted a 2,000 word excerpt from the 2005 piece here.

And Happy July 4th!

Thursday, July 03, 2008

An Outer Edge to Johnson v. Fabian?

In an interesting, and no doubt important ruling in Minnesota’s development of the law on the right to avoid self-incrimination, a panel of the Minnesota Court of Appeals has turned away the Fifth Amendment challenge of a civilly-committed sex offender, Brad Ronald Stevens.

Stevens challenged the continuation of his involuntary civil commitment in the Minnesota Sex Offender Program on the grounds that sex offender treatment in MSOP obliges him to both discuss the specifics of prior offenses and forfeit his right against self-incrimination.

Disagreeing, the appellate panel, in an unpublished opinion issued on Tuesday, held that because Stevens could acknowledge past misconduct during treatment without disclosing incriminating details to government officials, he had not “demonstrated that he must necessarily incriminate himself to participate in treatment or that he has suffered any consequences related to a failure to self-incriminate.”

Likewise important, the panel distinguished extensions of the length of a term of incarceration for determinately-sentenced prison inmates who refuse to participate in sex offender treatment, as was the case in Johnson v. Fabian, and extending the length of treatment for an involuntarily and indefinitely-committed Sexually Dangerous Person. As the panel concluded: “Although the treatment consent form makes it clear that failure to participate in treatment will prolong a patient’s stay at MSOP, participation in treatment does not guarantee release. Unlike the [Department of Corrections] inmates in Johnson, whose period of incarceration was extended as discipline for failure to consent to treatment, extended commitment is not imposed as discipline for refusing treatment at MSOP.”

The panel’s complete analysis is accessible here.

Same Time, Different Perspectives on Our Record of Preserving Privacy and Liberty

In an interesting juxtaposition, even for the Federal City, Secretary of Homeland Security Michael Chertoff, and former FBI Special Agent and Minneapolis Chief Division Counsel, Coleen Rowley, were each addressing Washington audiences, at nearly the same time, on the same subject: The recent record of maintaining personal privacy and civil liberties during the War on Terror.

Agent Rowley's Keynote Address to a conference last Thursday, on "Whistleblower Rights and the Public's Right to Know," is accessible here, whereas Secretary Chertoff's remarks, made across town at that hour, are accessible here.