Within the Scope

Blogging on Administrative Law and the Public Sector

Wednesday, September 24, 2008

OAH Celebrates its One Year at the Stassen Building

Yesterday, the Minnesota Office of Administrative Hearings celebrated its first anniversary since the move to its new quarters in the State Capitol Complex.

The Judges and Staff of OAH are a very hearty and rugged band; one needs to be in order to enjoy white cake and frosting at eight-thirty in the morning.

If you have not had a chance to see the new OAH courtrooms in Saint Paul -- don't let another year go by. Be sure to stop by soon.

Sunday, September 21, 2008

M.M. is Among SCOTUS Blog’s Cases to Watch

A week from tomorrow, on September 29, 2008, the United States Supreme Court will convene for what is known as the "long conference." At this meeting, the Justices will make decisions on which of the petitions for certiorari that have been filed during the summer recess will be granted – placing the underlying cases on track for presentment to the Court during the Term that officially begins on the following Monday, October 6.

According to SCOTUS Blog, among the "Petitions for Certiorari to Watch" is the petition filed in the case of M.M. v. Special School District No. 1.

As readers of these pages will recall, in April of 2007, a panel of the U.S. Court of Appeals for the Eighth Circuit held that the burden of proof in special education matters under the Individuals with Disabilities Education Act was assigned to the party seeking relief. In most cases, as it was in M.M., this burden would be borne by the parent as the next friend of the disabled student.

Among the questions presented by the petition is whether the states, like Minnesota, may legislatively assign the burden of proof in special education administrative hearings.

Details about this case from the High Court’s Docket system are accessible here. Also, through the enormously helpful resources of SCOTUS Blog, a listing of all of their noteworthy petitions is accessible here; a copy petitioner’s brief in M.M. is accessible here; and a friend of the court brief in support of granting the writ filed by the State of Minnesota, is accessible here. (Note: While the Court Docketing system states that the opposition brief of the Minneapolis Public Schools has been distributed to Justices, SCOTUSblog had not yet received a copy for its posting.)

UPDATE: As noted here, on October 20, 2008, the High Court denied the petition for the writ of certiorari.

Wednesday, September 17, 2008

Constitution Day and the Early Predictions

Happy Constitution Day, everyone!

We have been part of the Union, through thick and thin, for 219 years now.

In my reflections today, I have been thinking about how Alexander Hamilton’s predictions in Federalist 78 have become a little dated since they were first published; and precisely why that might be so. Readers of these pages will recall that in support of ratifying the Constitution that was adopted by the Philadelphia Convention on September 17, 1787, Hamilton wrote:

Whoever attentively considers the different departments of power must perceive, that in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution; because it will be least in a capacity to annoy or injure them. The executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary on the contrary has no influence over either the sword or the purse, no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

This simple view of the matter suggests several important consequences. It proves incontestably that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter: I mean, so long as the judiciary remains truly distinct from both the legislative and executive. For I agree that "there is no liberty, if the power of judging be not separated from the legislative and executive powers." And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such an union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed or influenced by its coordinate branches; and that as nothing can contribute so much to its firmness and independence, as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution; and in a great measure as the citadel of the public justice and the public security.

Still, regardless of the strength of Hamilton's predictions (or his polemics), for all of the work that has been made toward public justice since that earlier September 17th, this is day of Thanksgiving.

Does Marlowe Signal a Rebuke (and Headaches) for Washington County?

In an interesting opinion handed down yesterday from the Minnesota Court of Appeals, the appellate panel ruled that a Level II sex offender on supervised release, Brian Marlowe, could not be returned to jail following his failure, “through no fault of his own,” to secure housing in the community.

Upon his release from prison following a conviction for Criminal Sexual Conduct in the First Degree, Marlowe had difficulty finding housing in the suburban communities of Washington County. Landlords in Stillwater turned him down and so did an Aunt who lived nearby.

More noteworthy is that corrections agents in Ramsey County refused to approve a transfer of Marlowe’s supervision to their county – although there was record evidence that they would have approved such a transfer if Marlowe had been referred by agents in adjacent Anoka or Dakota Counties. Does this case signal a “push-back” from urban counties that there are limits on the numbers of sex offenders they will accept from suburban communities? The record is not altogether clear on this point.

And while it is a crude and imperfect comparison, a publicly-accessible databank at the Minnesota Department of Correction reports that, as of this posting, Washington County had no Level III sex offenders within its borders, but neighboring Ramsey County was supervising 18 such offenders.

If predatory offenders from Washington County must be “restructured” in community-based settings, does this ruling present new set of headaches for the Washington County Board?

The panel’s complete analysis is accessible here.

Sunday, September 14, 2008

What is a Judge to Do When Plain Meaning and Precedent Clash?

Two Fridays ago, a panel of the U.S. Court of Appeals for the Eighth Circuit handed down an interesting opinion on the recovery of attorneys fees under the Equal Access to Justice Act (EAJA).

Catherine G. Ratliff, an attorney in Hot Springs, South Dakota, successfully represented two claimants in their efforts to receive benefits from the Social Security Administration. Ratcliff then sought the award of fees and costs under the EAJA. The court granted the motion but reduced the overall amount of the recovery by setting off the amount of other debts that the claimants owed to the federal government. As the District Court reasoned, the EAJA provided for the recovery of fees by “prevailing parties” – not their attorneys. As against those parties, the amount of any recovery was subject to setoffs.

Reversing, the appellate panel held that “that the attorney’s fees in this case are awarded to the parties’ attorney.”

Noteworthy, however, is that none of the three panelists seemed to believe that this was a result that was provided for under the Act. Wrote Circuit Judge Michael J. Malloy: “Were we deciding this case in the first instance, we may well agree with our sister circuits and be persuaded by a literal interpretation of the EAJA, providing that ‘a court may award reasonable fees and expenses of attorneys . . . to the prevailing party.’ However, case law from this circuit compels a contrary conclusion.”

Concurring in the judgment, Circuit Judge Raymond W. Gruender, made the point even more sharply: "I agree with the Court that [the earlier decision in Curtis v. City of Des Moines] compels the conclusion that the attorney’s fees awarded pursuant to the EAJA are awarded to the attorney, not her clients ... [but] ... our conclusion that EAJA attorney’s fees are awarded to a prevailing party’s attorney also contradicts the plain language of the EAJA."

The panel’s complete analysis is accessible here.

Welcome Back Judges and Staff

Tomorrow marks the triumphal return of the Judges and Staff of the Saint Paul Division of the United States District Court for the District of Minnesota.

For months court personnel have been working out of adjacent space on Fifth Street, but are now able to return to a newly renovated Warren E. Burger Courthouse.

A description of the renovations – including a list of some of the new technologies that will be available to the Court and counsel in the upgraded courtrooms – is accessible here.

Friday, September 12, 2008

House Research Updates its Rulemaking Summaries

The Minnesota House of Representatives Research Department recently updated its summary publications on rulemaking.

Individually, and in combination, these items are concise and useful overviews of our state's rulemaking process. Among the two-page summaries are Rulemaking: Process for Adopting Rules; Rulemaking: Expedited Process and Exemptions, and Rulemaking: Review of Adopted Rules (and accessible through the highlighted links).

Penned by veteran researcher and Staff Coordinator for the Department, Mark Shepard, these items are both a useful introduction to someone who is new to Minnesota’s administrative procedures and a handy set of refreshers for more-experienced practitioners.

How Broad an Inquiry Do We Need for Court-Ordered Expungements?

In an interesting opinion handed down by the Minnesota Supreme Court last Thursday, the Court divided over the question of how broad the inquiry over the expungement of records held by other agencies needed to be.

All six of the justices who participated in the decision agreed that the appellant, S.L.H., was not entitled to a court order directing the expungement of certain records that are now held by state, county and city criminal justice agencies. These justices likewise agreed that the Court’s earlier precedent instructed that the state courts should only direct the expungement of records that are held outside of the courts “under appropriate circumstances.” Where the court was equally divided was over the breadth of the analysis of such “appropriate circumstances.”

Justices Lorie Gildea, G. Barry Anderson and Christopher Dietzen announced an appropriateness analysis that began with “due consideration” of whether a particular handing of the documents at issue was required by “equally important executive and legislative functions.” As Justice Gildea summarized: “We have … recognized what is, in essence, a presumption in favor of the other branches of government when there is a possible separation of powers conflict between the branches.”

Disagreeing that such a presumption was warranted, Justices Paul H. Anderson, Helen Meyer and Alan Page concurred only in the result. This second plurality of judges announced that the expungement of records held in other branches was warranted “when such relief is essential to the existence, dignity, and function of a court” – presumably an analysis that was limited to an assessment of only one branch’s role.

Both set of analyses are accessible here.

Sunday, September 07, 2008

Seizing the Moment: Investigations and Pre-Hearing Deprivations

In an opinion issued on Tuesday, a panel of the Minnesota Court of Appeals addressed a very interesting question: Does the fact that the Department of Natural Resources conducted a six-month investigation into the destruction of 19,838 pounds of buffalo fish argue for, or against, a prehearing revocation of the game and fish licenses held by the person that the Department accused of destroying the fish?

The panel held, in part, that because the Licensee, Dean Mertins, had the use of his game and fish licenses while the DNR investigation into the destruction of the fish was underway, a later pre-hearing seizure of Mertins' licenses by state conservation officers comported with due process. As Judge Minge summarized for the panel: “[C]onservation officers are directed to seize all licenses held by a person when the restitution value is $5,000 or more. The immediate and mandatory nature of the license seizure contemplated by the statute heightens the risk of erroneous deprivation. But we also note that Officer Heyn conducted a thorough examination of the fish-kill, that approximately six months elapsed before he served Mertins with a seizure notice, and that Mertins had the use of his license throughout the DNR’s investigation.”

The panel’s complete analysis of the license seizure statute, and the three-factor test set out in Mathews v. Eldridge, is accessible here.

Saturday, September 06, 2008

Latching on to Errors and Omissions in Ballots

Yesterday, a special substitute panel of the Minnesota Supreme Court issued an opinion resolving recent challenges to designating judicial officers as "incumbents" on the canary ballot.

Golden Valley attorney, Jill Clark, is a candidate for Seat 4 on the Minnesota Supreme Court. On August 14 of this year, thirty days after the close of filings for state judicial office, Ms. Clark filed an Errors and Omissions challenge to use of the moniker "incumbent" on the ballot lines adjacent to the name of her opponent, Justice Lorie Skjerven Gildea.

While Clark's attack upon the incumbent designation statute had several prongs to it, for me, the most interesting aspect of the Court’s opinion was its resolution of the Respondent election officials’ defense of laches. Respondents asserted that given the requirements for ballot preparation and programming assistive technologies for disabled voters, Clark’s challenge was filed much too late for her to obtain relief.

This defense follows on from where an earlier case, filed in 2004, left off. In 2004, a Carver County voter, Bonn Clayton, filed an Error and Omissions challenge to the re-election filing of Court of Appeals Judge David Minge. Clayton’s challenge was filed on the day after the close of candidate filings, but nonetheless drew a laches defense from the respondent election officials. In Clayton, however, the Court declined to address this defense; leaving open the question of how promptly such challenges need to be filed.

By contrast, in yesterday’s opinion, the laches analysis is more detailed – providing a sharper, outer boundary on the filing of such challenges. The Court wrote:
In this case, in the absence of the relief requested, petitioner Clark has not been barred from the primary ballot and petitioner Robins will not be barred from voting for her (or any other candidate on the primary ballot). Given petitioners' unreasonable delay in asserting the interpretations of the constitution and election statutes that they espouse here, and balanced against the significant potential prejudice to respondents, to other election officials, to Justice Gildea and potentially to other candidates, and to the electorate, we conclude that it would be inequitable to grant the relief sought by petitioners with respect to the primary ballot even if we were to conclude that their arguments had merit. Accordingly, we deny the petition on grounds of laches with respect to the primary ballot.
The Court’s complete laches analysis, as well as an interesting discussion of the Governor’s appointment powers, is accessible here.

Thursday, September 04, 2008

The Right Training, the Right Folks, the Right Price (Right Now)

Minnesota's Annual Rulemaking Seminar turns 13 on October 1.

Today, the Seminar's sponsor, the Inter-Agency Rules Committee, announced its plans for a thirteenth autumn training conference; featuring 5.25 hours of continuing legal education programming, and a catered lunch, all for the breathtakingly low price of $20.

The Seminar, which routinely draws more than 100 registrants each year, is the premier training session for agency rule writers and Administrative lawyers.

I am delighted to be a part of the Seminar faculty this year and believe that the 2008 program could be the best yet.

Because registration for this event is likely to fill up fast, I am urging my friends and colleagues (and the readers of these pages) to send in their completed registration form as soon as they can. The form is accessible at this link here.

It would be great to see you there.

Monday, September 01, 2008

Dueling Claims to Plain Meaning Divide High Court

In an interesting opinion issued on Thursday, a divided Minnesota Supreme Court ruled that an enrolled member of the Minnesota Chippewa Tribe, Buddie Green, was obliged to receive employment services from her Tribe’s social service office and was not permitted to access these services, alongside non-tribal members, through Aitken County.

Dividing the majority from the dissenters in this case were views on what the plain meaning of the Minnesota Family Investment Program (MFIP) statute provided – and, interestingly enough, dueling claims that the other bloc of Justices were reading into the statute text that was not there. As Justice Dietzen concluded for the majority: “According to the dissent, ‘the plain language of MFIP entitles Greene to receive employment services through Aitkin County.’ The argument rests on the premise that the statute grants to a tribal member the right to ‘opt-out’ or select whether to receive employment services from the Indian tribe or the County. But section 256J.645, subd. 4, does not contain any language that expressly grants to tribal members either the right to decline receiving employment services through the Tribe or the right to receive those services through the County. Had the legislature intended to provide a tribal member with the right to select where the individual would receive employment services, it would have expressly provided that right.”

In dissent, Justices G. Barry Anderson, Paul Anderson and Alan Page replied: “While it is true that section 256J.645, subd. 2, requires tribes to 'agree to fulfill the responsibilities provided under the employment services component of MFIP regarding operation of MFIP employment services,' the statute contains no requirement that tribes 'assume' the duty of providing MFIP employment services to the exclusion of counties. Section 256J.645, subd. 2, sets forth what tribes are required to do, but it in no way limits the services to which tribal members are entitled. I would not read this 'assumption' language into the statute.... Had the legislature intended to prohibit tribal members from receiving employment services through their counties, it could have said so. It did not, and it is not our prerogative to read an exclusivity requirement into [the statute].”

The Court’s complete analysis, including an interesting section on deference to the agency’s interpretation of this statute, is accessible here.