Within the Scope

Blogging on Administrative Law and the Public Sector

Thursday, October 30, 2008

In Re: Family Room Messes

Assistant Professor Hillel Y. Levin, of the University of Georgia Law School, recently posted to the Social Science Research Network a hilarious (and very insightful) working paper on the various modes of statutory construction.

In the paper, Everything I Needed to Learn About Legisprudence I Learned by the Time I Was Nine, Levin charts various instances of claimed violations of his Mother’s rule that “no food may be eaten outside of the kitchen.”

This rule is later tested in a variety of real-life and funny ways; and a set of jurists – Father, Babysitter, Uncle Rick, Grandmother – each with their own jurisprudential style, weigh in on whether the Mother’s ban on eating in the family room was violated. Does, for example, sipping a mint milkshake in the family room amount to “eating” outside of the kitchen?

As Levin summarizes, “[a]lthough the various tools seem perfectly reasonable individually,” (i.e., textualist, literalist, purposivist, legal process, precedent) “in the aggregate, they can lead to ridiculous results.” And Levin shows us how the rule that “no food may be eaten outside of the kitchen” can be understood to permit eating food outside of the kitchen.

This delightfully satirical and thought-provoking paper, which only spans six pages, is accessible here.

Wednesday, October 29, 2008

President: Prove Bi-Partisanship by Confirming My Nominees

While it is perhaps old news now – I must have been under a rock somewhere – I have only just learned of President Bush’s remarks in Cincinnati earlier this month regarding the confirmation of judges to the federal courts.

Included in the President’s address was a call for votes on the nominations he has made to the federal bench – urging this as a key test of bi-partisanship. Argued the President:

Chief Justice Roberts was so obviously well-qualified that he received overwhelming support from members of the Senate, including many senators generally considered to be well left of center. Unfortunately, the broad, bipartisan, and timely support for Chief Justice Roberts has increasingly become the exception. Over the years, the "advice and consent" clause of our Constitution has been subjected to serious abuse. Members of the Senate seem to embrace the "advice" part. It's the "consent" part that seems to be the problem.
....

Next month, the Senate will hold a "lame duck" session to finish their legislative business for the year. One item that should be at the top of their agenda is a long list of qualified judicial nominees still waiting for Senate action. If Democrats truly seek a more productive and cooperative relationship in Washington, then they have a perfect opportunity to prove it – by giving these nominees the up or down vote they deserve.
The full text of the President’s remarks is accessible here.

While Senate Democrats attempted to host a hearing in June on plans to increase the number of federal judges generally, even that was derailed because of a failure of the majority and minority parties in the Senate to agree. And, it seems that the Senate Judiciary Committee has still other inquiries of the Bush Administration in mind when it re-convenes after the November elections.

President Bush is, at least, in good company. Filling federal judgeships at the tail-end of one’s presidency has challenged chief executives since the earliest days of the Republic.

Tuesday, October 28, 2008

Panel: Schizophrenic Man with HIV a Danger to the Public

In an interesting opinion issued today, a panel of the Minnesota Court of Appeals held that a Hennepin County man could be indefinitely committed as a "person who is mentally ill and dangerous to the public," because he was schizophrenic, HIV positive and had a pattern of engaging in unprotected sex with others. Believing that David Kendall Renz could not be persuaded to engage in safe sexual practices if his mental illness were treated in the community, Judge Worke wrote for a unanimous panel:

[B]ased on Dr. Keul's testimony that appellant will continue to engage in similar behavior because appellant insists on doing what he wants to do, and because appellant's prior commitments described [above] did not change his behavior, a temporary hold would not sufficiently deter appellant from engaging his dangerous behavior.

Thus, while there is no evidence of a specific victim, there is evidence that appellant engaged in unprotected sexual activity putting others at risk of contracting HIV. Because the evidence shows that appellant has engaged in overt acts causing or attempting to cause serious physical harm to another, the requirements for commitment as mentally ill and dangerous are met, and the district court did not err in concluding that appellant meets the requirements for commitment as mentally ill and dangerous.
The panel's complete analysis is accessible here.

Thursday, October 23, 2008

The Year’s Most Interesting Moot Court Recalls the “Minnesota Model”

On Monday, the Georgetown Law Center, in conjunction with the Georgetown Law Supreme Court Institute, the Ohio State University Election Law Center at Moritz and the American Enterprise Institute-Brookings Institution Election Reform Project, hosted a not-so-hypothetical oral argument.

At issue in the case that the sponsors conjured up, was: What result should follow from a County election official’s decision to extend polling place hours in Denver, and permit voters to cast provisional ballots after the ordinary 7:00 p.m. closing time for the polls, because a snow storm had hit the area on Election Day?

Under the facts of this hypothetical case (stylized as McCain v. Obama), the decision as to whether or not to count the provisional ballots that were cast during these extended hours in the Denver polling places will determine both which presidential candidate receives Colorado’s votes in the Electoral College and thereby wins the presidential election.

This special moot court drew together an all-star cast. Serving as Chief Justice of the United States was Duke Law School Dean, and former Chief Judge of the United States District Court for the Eastern District of California, David F. Levi. Joining him as Associate Justices were Thomas R. Phillips, a former Chief Justice of the Supreme Court of Texas, now with the law firm of Baker Botts LLP, and Patricia M. Wald, former Chief Judge of the United States Court of Appeals for the District of Columbia Circuit. Arguing on behalf of hypothetical petitioner John McCain, was Glen D. Nager, of the law firm Jones Day. Arguing on behalf of hypothetical petitioner Barack Obama was Walter Dellinger, of the law firm of O'Melveny & Myers LLP.

Likewise interesting, the event’s sponsors featured what they termed as the “Minnesota Model” of resolving bitterly-contested recount battles (and boosting public confidence in the judicially-determined outcome). The sponsors pointed to the 134-day Gubernatorial election contest between Elmer A. Andersen and Karl Rolvaag, in 1960, during which a special three-judge panel was established by having judges who were earlier-identified with a particular political party jointly agree upon the selection of a presiding judge who was not particularly disposed to either party. As Governor Andersen recalled later in his biography, A Man’s Reach:

The recount was a slow process. Oscar Knutson, the Chief Justice of the [Minnesota] Supreme Court, reflected the impatience of many Minnesotans when in early December he decided he wanted to get things moving – and get the matter off his calendar. He and other justices resented the implication in some national media reports that because four of the seven court members had been appointed or promoted by me, they were sure to rule in my favor in the end. The high court was determined to play the recount perfectly straight. Knutson directed the recount managers for both candidates to agree on the names of three mutually-acceptable jurists to formulate a three-judge panel to oversee the recount. The managers were told to go into a room and not come out until they had three names – even if it took all night. It very nearly did. But on December 10, the high court had three names. The appointed judges were Sidney Kaner of Duluth, J. H. Sylvestre of Crookston, and Leonard J. Keyes, Jr. of St. Paul. Kaner was a former DFLer appointed to the bench by Governor Orville Freeman. Sylvestre had been appointed by Republican Governor Luther Youngdahl. Keyes had a mixed political history. He had been named a municipal judge by Freeman and a district judge by me.
In order “to ensure bi-partisanship” for Monday’s Moot Court event, the sponsors likewise directed the two Associate Justices to jointly agree as to whom would serve as the Chief Justice.

Audio of this fascinating, important and instructive "moot court" oral argument is accessible here.

Wednesday, October 22, 2008

20 Large: OAH Dockets its 20,000th Case for a Hearing

Raymond R. Krause, Chief Administrative Law Judge of the Minnesota Office of Administrative Hearings (OAH) announced this afternoon that the Office had docketed its 20,000th request for a hearing in its 33-year history as an administrative tribunal.

OAH currently conducts administrative hearings and rulemaking oversight proceedings for over 80 state agencies and presides over hearings for large number of political subdivisions. For most of its 33-year history, the Administrative Law Division of OAH has docketed, on average, 50 requests for hearing services each month.

As the Chief Judge noted in his remarks on the event, perhaps it is a sign of both the general distress in the financial markets, and OAH’s role in addressing disputes on contemporary issues, that the 20,000th case involves an effort to impose professional discipline upon a licensed mortgage originator. In this case, the Minnesota Department of Commerce seeks to sanction a licensed mortgage originator whom the Department claims engaged in a scheme to defraud real estate investors.

Remarked Chief Judge Krause: “This 20,000th request for hearing services makes clear how important our work to the state has been and continues to be. It is another important milestone in our agency’s history.”

Saturday, October 18, 2008

100 Foot Bubble Case is a Parable on Testimony to Legislative Bodies

About two or three times a year, I am asked to speak to groups of agency officials on the topic of making effective presentations to the State Legislature. For those who still remember the days when I was in the other branch, I cheerfully do this type of training; reviewing my “Tips for Successful Legislative Relations.” (Secretly, I hope that one day I can parlay these training sessions into my very own How-To show on the local cable access channel: This Old State House….)

In future presentations, I will no doubt add a summary of the decision issued this week by the U.S. District Court for the District of Minnesota on exit-polling.

On Wednesday, the District Court enjoined the application of a Minnesota statute that imposed a 100-foot exclusion zone from polling places against those who work as exit pollsters. The state statute provided that “[n]o one except an election official or an individual who is waiting to register or to vote shall stand within 100 feet of the building in which a polling place is located.” Several national television networks had filed suit to bar application of the prohibition to their pollsters, who routinely stand within 100 feet of the building line to a polling place when conducting post-balloting “exit interviews” with voters.

The case is noteworthy because it presents a number of interesting lessons about statutory reform and legislative history.

The predecessor statute on lingering outside of a polling place on Election Day, established a no-lingering zone that was measured 100 feet from the doorway or entrance to the area where polling was occurring. Confusingly, a wholly different statute bars electioneering or campaigning within 100 feet of the building line of a building in which a polling place is situated. Having two buffer zones, of different sizes, and based upon different types of conduct – namely, whether one was congregating or electioneering – made for a set of rules that were difficult to remember and administer. So, in 2008, the Legislature revised the anti-congregating statute so as to establish a single zone, measured from the building line, excluding all of those who might impede access to the polls, for whatever reason.

The television networks objected to the statutory change, as it applied to their pollsters, because a wider exclusion zone would undermine both the accuracy of their Election Day exit polls and the later Election Night projections the networks’ analysts make. As the networks argued, as the exclusion zone increases, the more voters are able to “escape” the solicitation for interviews by pollsters – a happening that undermines the pollsters’ ability to interview voters who are exiting at certain preselected intervals and thus the statistical reliability of the overall survey results.

A key part of the District Court’s analysis of the constitutionality of the statutory change, was testimony that an official of the Secretary of State’s office had earlier rendered to a legislative committee on the proposal. During legislative hearings, the official was asked by a legislator whether the then-proposed exclusion zone of 100 feet measured from the building line, would oblige children in a playground next to a school-based polling place to leave the playground on Election Day. The official replied that the statute would not be interpreted to “force the children to go to the slide instead of the swing set because of the distance [requirement], but it will give [election judges] the authority they need to move people who need to be moved.” As Chief Judge Davis reasoned, this testimony (from an official in the Executive Branch) established that the “statute was aimed at moving persons involved in expressive activity away from the polling building, and not aimed generally at all persons who happened to be within 100 feet of the polling building;” and thus, granted polling election officials “more discretion, not less” than the earlier rule.

In my own experience, it is not uncommon for agency officials who testify before legislative committees to get the jitters. Against the backdrop of this latest ruling – which makes clear that the understanding of statutory terms can follow from such remarks – the stakes of such testimony just got higher. (But who knows, I might be asked to do more trainings ….)

The Court’s complete analysis is accessible here.

Monday, October 13, 2008

Is There More to the Non-Delegation Doctrine than Duties Judges Won’t Miss?

A panel of the Minnesota Court of Appeals issued an interesting separation-of-powers opinion last Tuesday – and one that arose in a noteworthy context; namely, a challenge by an offender to the revocation of her court-supervised probation.

Elizabeth Suzanne Bradley challenged the imposition of a 15-day jail sentence as an intermediate sanction for her violation of the conditions of her probation. Bradley asserted that the District Court could not punish her for failing to either submit to a chemical health assessment or to follow the treatment recommendations made by the reviewing alcohol and drug counselor. As Bradley argued, the delegation of the authority to set the scope and intensity of any later chemical dependency treatment (and presumably whether that treatment occurs in an inpatient or outpatient setting), to the alcohol and drug counselor, was an impermissible surrender of the District Court’s judicial powers to an executive branch official.

Disagreeing, the appellate panel held that the “administrative implementation of probation conditions is appropriately delegated to an administrative body. [The Minnesota Supreme Court in State v. Henderson, 527 N.W.2d 827] concluded that it is appropriate to delegate as administrative implementation the authority to determine appropriate levels of probation supervision. The Supreme Court noted that 'some flexibility in the administrative implementation of probation conditions is desirable and . . . trial judges should not be burdened with administrative issues relating to the implementation of conditions of probation.'”

While the appellate panel accurately summarizes the instruction from the Supreme Court, and correctly decided Ms. Bradley’s appeal, I wondered whether the convenience to the state courts is the best method of marking the dividing line between the judicial and executive branches.

The panel’s complete analysis is accessible here.

Don Draper's America

With apologies, this post is not about Administrative Law, but it just might be about “the public sector....”

Mrs. WTS and I are deeply committed fans (some might say fanatical fans) of the AMC mini-series Mad Men. In fact, we are known to growl at callers who telephone us on Sundays during the broadcast, answering the phone with a perturbed “What?!?....

For those of you who are not familiar with this series, it is a highly-stylized portrayal of the early 1960’s, and marks America's tumble toward the sexual, gender and political revolutions that would come at the end of that decade. At the center of the weekly drama is advertising executive Don Draper, whose career ascendancy and crumbling marriage make for plenty of ... well, drama.

And as it is with most Mondays, the latest installment had me thinking. At a key point in last evening's episode, Draper, now estranged from his wife, is approached by Joy, a beautiful siren half his age. She wants Draper to join her at the Palm Springs estate of a friend. Draper, who was on his way to a meeting with clients when he was propositioned, must choose. Provocatively, the young woman purrs: “Why deny yourself what you want?....”

Apparently unable to muster a single good answer to that question, Draper turns from the path toward his meeting and joins the woman for the car ride into the desert.

The jarring message that Draper communicates is that any of the other possible answers to the young woman's entreaty (such as "I am married to another woman," "I have obligations to my firm," "It would be rude to drive off with you without saying a word to my colleagues who are waiting," etcetera, etcetera, etcetera) would be the replies of a dummy – or as they might have said in the sixties, "a real square."

While my Mrs. and I await the comeuppance that the show has in store for Draper (if any), the episode had me wondering whether the executive's live for this minute attitude wasn't something we see a lot of today in more ordinary Americans. Given our penchant for consumption, our pyramidding personal and public debts and our woeful inability to save for tomorrow, do any of us today have the strength for self-denial? Do we Americans turn away from the proverbial "Joy" when we really ought to?

And if not, aren't we all Mad Men now?

Friday, October 03, 2008

Anatomy of a "Hard Look"

In an interesting opinion issued last month, the U.S. District Court for the District of Minnesota enjoined the U.S. Forest Service from further implementing its "Echo Trail Project" in St. Louis and Lake Counties, Minnesota.

The Forest Service had earlier hoped to undertake a variety of forest management activities, over a 10 to 15-year period, in a 203,000-acre zone that borders, but does not include, the Boundary Waters Canoe Area Wilderness.

A number of environmental organizations sought to enjoin implementation of the plan, on the grounds that the Forest Service failed to undertake the "hard look" into the environmental impacts of its proposals, as is required by the National Environmental Policy Act (NEPA).

Agreeing, U.S. District Court Judge Ann D. Montgomery held that the Forest Service failed to "explain whether the Project will have any direct, indirect, or cumulative impacts on the Project area and how it arrived at its conclusion." Particularly problematic for the agency was the fact that no explanation was provided "as to why there would be no direct or indirect negative impacts to the Boundary Waters despite the anticipation of direct and indirect negative impacts in the [adjacent] Project area."

The Court's complete analysis is accessible here.

Wednesday, October 01, 2008

Annual Rulemaking Seminar a Triumph

Today was the 13th Annual Rulemaking Seminar hosted by the Inter-Agency Rules Committee. The Committee played host to over 100 attendees – providing both plenty of food for lunch … and plenty of food for thought.

I was delighted to be a part of the faculty this year – particularly because the Committee made a number of innovations to this important annual program. Added to the perennial review of recent updates to the Minnesota Rulemaking Manual and remarks from both OAH and the Governor’s Office, were expanded skill-building sessions on legal writing and solving difficult rulemaking problems.

Also, among the best bits of “take-home value” from this day-long seminar was a handout that summarized the disposition of rulemaking proceedings occurring in Fiscal Year 2008 (which ran from July 1, 2007 through June 30, 2008). This summary charts both the types of petitions that were successful during the past year as well as areas that have presented legal problems for state agencies. A copy of the summary handout is accessible here.

This event was so interesting and helpful, that I can hardly wait until next year’s Seminar.