Within the Scope

Blogging on Administrative Law and the Public Sector

Friday, November 28, 2008

Quasi-Legislative or Quasi-Judicial: Is it a Duty or Just a Good Idea?

In an interesting unpublished opinion issued on Tuesday of this week, a panel of the Minnesota Court of Appeals held that the Metropolitan Council’s decision to undertake a park land exchange with the Minneapolis Park Board was a “quasi-legislative” decision that was beyond the reach of the state courts to review by way of a writ of certiorari.

Notwithstanding the fact that the Metropolitan Council had earlier promulgated standards under which it would assess such proposed swaps, for the appellate panel, a key part of the analysis was the discretion retained by the Council in such circumstances. Because the Metropolitan Council could reject proposed land exchanges, even in cases where their standards had been satisfied, the decision to undertake the transaction was more “legislative” than it was “judicial.” As Judge Michelle Larkin explained:
[W]e note that Strategy 5(b) does not mandate approval of a proposed park land exchange when its criteria are satisfied. Once Met Council determines that a proposed park land exchange satisfies the mandatory criteria in Strategy 5(b), it is not obliged to automatically approve the exchange; rather, Met Council maintains discretion to nevertheless reject the proposal. The fact that Strategy 5(b) does not require Met Council to approve a park land exchange, even if the proposed land exchange satisfies Strategy 5(b)’s criteria, reinforces our view that this case does not involve a disputed claim regarding specific property but rather, a policy decision regarding the park system as a whole.
The panel's complete analysis is accessible here.

Tuesday, November 25, 2008

A Big Day at the Capitol: Three Short Stories

This was a day in which the events that I wanted to write about just kept coming in; one right after another. Among the noteworthy events occurring today in Saint Paul, any one of which could made for its own post, were:

Item One: The recently-merged agencies of the Department of Finance and Department of Employee Relations unveiled a new moniker — Minnesota Management and Budget — and a new website today. The new look of the newly combined agency is accessible here.

Item Two: Senator Yvonne Prettner Solon, Chairwoman of the Senate Energy, Utilities, Technology and Communications Committee, announced that she will convene a “stakeholder meeting” to “present and discuss ideas for legislation designed to achieve the state greenhouse gas reduction goals.” Notes Senator Solon, her intention for the meeting “is not only to present proposals but to initiate a process to legislatively advance these proposals.” The stakeholder meeting is scheduled for Wednesday, December 10, from 1:00 p.m. to 3:00 p.m. and will be held in Room 123 of the State Capitol.

Item Three: A panel of the Minnesota Court of Appeals upheld a lower court’s imposition of an indeterminate sentence for a repeat sex offender, in a case that the appellate court described as one of first impression. The indeterminate sentencing provisions were enacted by the Minnesota Legislature in 2005 as part of the reforms in House File 1, and followed from the earlier recommendations of the Governor's Commission on Sex Offender Policy. The panel affirmed the lower court’s imposition of the “minimum term of imprisonment called for by the sentencing guidelines” and a maximum term of life in prison. The panel’s published opinion, and analysis of the 2005 law, is accessible here.

And, of course, there were some unpublished opinions issued today that make for worthwhile reading; but I will turn to those in separate posts soon.

Friday, November 21, 2008

Practice Point: A New ALJ Could Mean a Whole New Schedule

As part of an opinion issued today, a panel of the U.S. Court of Appeals for the District of Columbia Circuit held that a federal Administrative Law Judge’s power to regulate the course of proceedings (under the Securities and Exchange Commission’s rules), included the power to revisit and revise the earlier orders of a predecessor ALJ.

In 2006, based upon Conrad Seghers’ earlier violations of federal securities statutes, the SEC’s Enforcement Division sought to bar him from any future association with an investment adviser. Further, during proceedings before a federal ALJ on this effort, the Division sought leave to file papers in support of a motion for summary disposition. The ALJ denied the Division’s request and set the case on for an evidentiary hearing.

Shortly thereafter, the Seghers matter was reassigned to a successor ALJ. Following a prehearing conference with counsel, the successor ALJ vacated the hearing date and granted leave for the Division to file a motion for summary disposition. (Still later, both parties moved for summary disposition.)

Following the issuance of an Order granting the Division’s motion, and an Agency Order “permanently barring Seghers from associating with any investment advisor,” Seghers sought review of the Agency action. Segher argued, in part, that the successor ALJ was without the authority to vacate the original scheduling order and to decide the matter on motions for summary disposition.

Disagreeing, Circuit Judge Karen LeCraft Henderson wrote for the panel:
We reject Seghers’s argument that ALJ Mahony was without authority to vacate the scheduled hearing and reconsider the Division’s motion for summary disposition. The SEC’s Rules of Practice authorize the ALJ to “[regulate] the course of a proceeding and the conduct of the parties and their counsel.” The ALJ was authorized — as part of regulating the course of the proceeding — to consider the Division’s motion for summary disposition notwithstanding his predecessor’s denial thereof.
The panel’s complete analysis is accessible here.

Thursday, November 20, 2008

MPR Hosts a Fantasy Canvassing Board in the U.S. Senate Recount

Ever wish that you could you could be a part of the State Canvassing Board during a hotly-disputed election? Well, perhaps, now you can.

Thanks to the creative and very clever folks at Minnesota Public Radio, anyone can join this all-star Fantasy Canvassing Board. MPR has posted to its website excerpts of eleven ballots that have been challenged during the recount in the Minnesota U.S. Senate race alongside a link to Minnesota’s standards for determining voter intent.

More interesting still, visitors to the website can match their determinations on the proper counting of the disputed ballots against other canvassing board “members” in this internet-wide panel.

This not-to-miss civics lesson is accessible here.

(And as we make our pretend assessments at the MPR site, may God bless the actual panelists of the State Canvassing Board….)

Wednesday, November 19, 2008

Judge Lindman Orders the Release of Absentee Ballot Data

By an Order issued earlier today, Judge Dale B. Lindman, of the District Court for Ramsey County, Minnesota, entered an injunction directing the disclosure of “the names and addresses of all persons who submitted absentee ballots [in Ramsey County] in connection with the general election of November 4, 2008, but whose absentee ballots were rejected or otherwise not counted.”

The Al Franken for Senate Committee had earlier sued under the Minnesota Government Data Practices Act to obtain release of this data. Agreeing that disclosure of this information was both appropriate and required, Judge Lindman wrote: “[T]he names of absentee voters private until the close of voting, at which time the general rule set forth in Minn. Stat. § 13.03, subd. 1 again applies, and the data are no longer classified as anything other than public data.”

The District Court’s complete analysis is accessible here.

A Room with a View ... of the Disputed Ballots

Apropos of not very much, I thought that the ex parte order issued by the District Court for Sterns County, Minnesota, securing the ballots in the contested U.S. Senate election, was of interest. The Order provides for securing the ballots in a room with windows, such that the containers of ballots may be seen (during normal business hours) by the “visual guards” appointed by Al Franken’s and Norm Coleman’s campaign committees.

In the election contests with which I was involved as a lawyer – admittedly, in down-ballot races – the familiar practice was to secure the disputed ballot materials in the property room of the local constables; an arrangement that, presumably, was insufficient to ward off later claims of ballot tampering in this case.

The complete Order is accessible here.

Tuesday, November 18, 2008

Paulsen: Written Textualism is the Sole Approach for Interpretation

In an article posted on Sunday to the Social Science Research Network, Professor Michael Stokes Paulsen, of the University of St. Thomas School of Law, writes that the U.S. Constitution “both as a consequence of its nature as a written document, and by virtue of its specific words, prescribes written textualism as the sole appropriate approach to understanding and applying its provisions.”

As part of a forthcoming issue of the Northwestern University Law Review, Professor Paulsen carefully details his claim that the Constitution itself presses for the use of written textualism in constitutional interpretation; although, says Paulsen, it does so in way that is “free of the language of interpretive theory, hermeneutic principles, or the academic gobbledygook that so pervades, and perverts, much law-review discussion of how the Constitution is to be interpreted.” Paulsen argues:
The document’s instruction to look to the document – “this Constitution” – commands an internal perspective, forbidding external, private assignments of meaning. The fact that the document specifies the document as the sole source of binding authority also implies the exclusivity of the text. It precludes treating any “thing” external to the text as authoritative.
Similarly bold, Professor Paulsen contends that unless a constitutional provision has been formally amended, its meaning was fixed on the date of ratification, September 17, 1787.
Written textualism also implies that the meaning of the text is fixed. It is fixed not only as against private assignments of meaning but as against shifting understandings of words and phrases over time – that is, it is fixed as against sudden or gradual anachronistic readings of its words. The meaning of the text is fixed at a point in time. Again, the text appears to command this perspective, stating in Article VII that the text was written at a particular designated point in historical time, September 17, 1787, and stating in Article V that subsequent amendments become operative as “Part of this Constitution” at the time “when ratified.”
Paulsen’s complete analysis, which starts slowly but quickly builds real speed, is accessible here.

Monday, November 17, 2008

Free Speech and Free Markets: Where Should They Cross?

Last week, Professor Eugene Volokh made a post to his blog The Volokh Conspiracy that had me thinking. The post equated the controversy that is now swirling around Scott Eckern, the former artistic director of the California Musical Theater, with the fracas that Dixie Chicks lead singer Natalie Maines faced in 2003.

As the readers of these pages will recall, Mr. Eckern resigned his position with the Theater last Wednesday, after news of his $1,000 contribution to the “Yes on 8 Campaign” became public. The “Yes on 8 Campaign” spearheaded the successful referendum to add the words “only marriage between a man and a woman is valid or recognized in California” to the California State Constitution. California law obliged Mr. Eckern to disclose his name and employer along with such a contribution to the referendum committee. When news of Mr. Eckern’s contribution was posted on several blogs after Election Day, a cadre of performers and writers threatened to boycott the California Musical Theatre for as a long as Eckern continued to work there.

Professor Volokh recalls that in March of 2003, the Dixie Chicks faced their own firestorm. The group's lead singer, Maines, told a London concert audience, “Just so you know, we're ashamed the president of the United States is from Texas;” a remark that sparked a round of boycotts against the Dixie Chicks’ recordings and concert dates. Notes Volokh, the threatened boycott of the California Musical Theater “helps provide a counterpoint to the criticism of people and organizations [that] boycotted the Dixie Chicks for their statements.”

Moral equivalence? Perhaps. But are theater director Eckern, and the pop star Maines, really flip sides of the same coin? Or do the differences in their respective notoriety (and, presumably, the size of their 401(k) plans), make the two boycotts different? Similarly, is the content of their respective speech a reason to link the two boycotts together or to distinguish among them? And is either embargo an example of how free markets should operate?

As thought-provoking, Eckern’s experience has prompted Scott Parnell, President of the Alexandria-based Center for Competitive Politics, to call for the elimination of all laws requiring the disclosure of campaign contributions to ballot initiative committees. Argues Parnell, in his essay here, the required disclosure of contributions, meant to combat corruption, can too easily be retooled as a list of targets for those who are angry after Election Day. Says Parnell, “disclosure of donors stifles citizen voices and exposes donors to retribution from those who do not share their beliefs, and should be ended.”

When thinking about where the right dividing line should be, I have taken Professor Volokh up on one more invitation – namely, to spend time with his 2005 article Deterring Speech: When Is It “McCarthyism”? When Is It Proper?, which is accessible here.

Sunday, November 16, 2008

In Memoriam: Former Chief Judge Johnson Passes Away

Kevin E. Johnson, former Chief Administrative Law Judge of the Minnesota Office of Administrative Hearings, died this past Tuesday, the victim of an apparent heart attack. He was 57.

Having served with distinction as both a public defender and an Assistant Hennepin County Attorney, Judge Johnson was appointed by Governor Arne Carlson to head the OAH in 1993. Judge Johnson served as Chief Administrative Law Judge from 1993 through 1997.

Details as to a public visitation and a Mass of Christian Burial are accessible here and an obituary appearing in the Minneapolis Star-Tribune today is accessible here.

Thursday, November 13, 2008

What is "Inherently Judicial" is Inherently Difficult

As voters were streaming to the polls on the morning of Election Day, the Minnesota Supreme Court was wrestling with its own set of difficult choices: Specifically, what kind of disputes are “inherently judicial” and, thus, must be resolved by an Article VI court?

Irene Hoffman and her fellow plaintiffs sought contractual damages from Xcel Energy, a provider of electricity service to residential customers in Minnesota, for claimed failures in maintaining the points of connection between the utility’s electricity distribution wires and the homes of the plaintiff customers. The plaintiffs argued that this maintenance was required under the applicable tariff but was not rendered by Xcel Energy.

The District Court denied the utility's motion for judgment on the pleadings, but did certify two questions to the Court of Appeals as important and doubtful; namely: (1) does the “filed rate doctrine,” which bars judicial challenges to the reasonableness of rates approved by regulatory agencies, bar the plaintiffs’ claims; and (2) does the primary jurisdiction doctrine, which requires a court to defer to the responsible agency on issues within the agency’s special expertise, require the court to defer resolution of the services required by the applicable tariffs to the public utilities commission?

In January, a panel of the Minnesota Court of Appeals held that the filed-rate doctrine barred court actions against electric utilities which challenge the adequacy of services provided, at certain approved rates, under tariffs that had been earlier-approved by the Minnesota Public Utilities Commission. The panel did not reach the second certified question concerning the applicability of the doctrine of primary jurisdiction.

The oral argument heard by the Supreme Court in this case is chock full of interesting brain teasers – such as what kind of questions must be presented to courts for resolution as opposed to administrative agencies? This argument is certainly worth a listen.

The underlying decision of the Court of Appeals is accessible here. A video of the Supreme Court oral argument is accessible here.

Tuesday, November 11, 2008

Hannah and Her Zingers

Posted this week to the Duke Law Journal website, and to Howard Bashman’s “How Appealing,” was a copy of a forthcoming law review article by Duke third-year law student and Senior Notes Editor, Hannah L. Weiner.

The Article, The Next "Great Dissenter"? How Clarence Thomas Is Using the Words and Principles of John Marshall Harlan to Craft a New Era of Civil Rights, links Justice Thomas’ early experiences, with the themes announced in Justice Harlan’s famous dissent in Plessy v. Ferguson and with recent race-based preference cases decided by the High Court.

To her credit, Ms. Weiner’s law review note is artfully structured, scrupulously annotated and beautifully written. It carries readers along an important and very sophisticated path of analysis, making this item a worthwhile read for court-watchers of all stripes. Indeed, as close as a law review article might hope to come to being a “page-turner,” this is it.

The caution that I would make to readers, is that as devoted as Ms. Weiner is to clarity in her the presentation she has an obvious and unshielded contempt for her subject, Clarence Thomas. Thus, during what would otherwise be a gentle glide between themes, readers are buffeted by the swipes she takes at Justice Thomas; jabs that vary in intensity from the snidely snotty to the caustically mean. Discounting the comparisons that Justice Thomas has made between the critiques that have been leveled at his work, and those that were made earlier against leaders of the civil rights movement, for example, Weiner writes: “The civil rights protestors of the mid-twentieth century were forced to endure tear gas, fire hoses, and billy clubs, whereas Thomas’s ‘modern-day flogging’ mostly consists of fairly ordinary public scrutiny. Thomas, who is notoriously sensitive to criticism, is nothing if not dramatic.”


Still, if one can look past Ms. Weiner’s determination to take the Associate Justice down a peg or two, her article provides a provocative and genuinely useful frame for Clarence Thomas’ work on race-based preferences.

Ms. Weiner’s journal note, zingers and all, is accessible here.

Sunday, November 09, 2008

OMB Watch Task Force: The Internet is Key to Transparency in Rulemaking

Posted to the Social Science Research Network earlier this month was a report, commissioned by the Washington, D.C.-based research and advocacy group OMB Watch, on methods by which the next Administration could enhance transparency and public participation in federal rulemaking.

At the core of the Task Force’s recommendations are leveraging the power of the Internet to make a wider range of materials accessible to interested members of the public, at low cost. Among the Task Force’s recommendations are:
Agencies should streamline the FOIA request process by publishing electronically not only (i) the records that FOIA requires an agency to release without first receiving a request, but also (ii) any documents that an agency or court has previously determined not to fall within a FOIA exemption.

Agencies should [adopt], as government-wide best practices for docket-related transparency, the requirements of Clean Air Act § 307(d) that call for promptly including in each rule’s docket, among other records, all communications with OMB and other documents of “central relevance.”

Individual agencies should also improve search capabilities on their own websites and, for significant rulemakings, create pages that hyperlink to http://www.regulations.gov/.
In addition to the Task Force on Transparency and Public Participation, OMB Watch has also established three other task forces – exploring “scientific integrity in regulatory decision-making,” “regulatory tools” and “government management.”

The complete report of the Task Force on Transparency and Public Participation, including all 26 of the panel’s recommendations, is accessible here.

Friday, November 07, 2008

If You Don’t Have Something Nice to Say, Be Sure to Post It to the Net

Is your right to due process of law implicated by the things that government officials write about you and post to agency websites?

Two different federal Circuit Courts of Appeal addressed this question this week and came to different results in their respective cases. How those two cases differed in their underlying facts, and the later results, raise interesting and important questions about due process.

Specifically, to what extent may a citizen challenge the accuracy of government claims of alleged misconduct, when those claims are not made in the context of either a prosecution or an administrative action against the citizen, but are nonetheless accessible to many (or everyone) through the Internet?

Because my summary of the two cases is slightly longer than my usual posts, my description (and a few additional thoughts) are accessible at this link here.

Wednesday, November 05, 2008

OAH and Collateral Estoppel: We're All Inclined to Follow Klein

As I have noted before, retired Administrative Law Judge Allan Klein was fond of remarking that in proceedings before the Office of Administrative Hearings, parties who “save” their best arguments for later decision-makers – whether it be an agency head or a reviewing Court – do so at their peril. An unpublished decision issued yesterday by a panel of the Minnesota Court of Appeals gives further support to Judge Klein’s view (and, ironically enough, was rendered in a case that was first presented to Judge Klein himself).

Lake of the Woods County real estate developer, Gary Bailey, proposed the development of 13 acres of lakeshore property. While the Minnesota Pollution Control Agency had initially issued a certification to the effect that the proposed project complied with Section 401 of the Clean Water Act, it later reversed that determination and revoked the certificate. Bailey complained that the Agency’s withdrawal of the certification amounted to a regulatory taking.

Turning away the developer’s appeal, the panel held that a 2003 determination by Judge Klein of OAH that Bailey’s proposed project would create a nuisance, was binding upon Bailey and disposed of his regulatory taking claim. Writing for the panel, Judge Michelle Larkin observed:
The MPCA concluded that revocation was appropriate because appellant had failed to fully disclose the nature of the wetlands on his property and because appellant’s proposed development would endanger public health by creating a nuisance condition where septic systems installed in the wetland soil would fail and discharge untreated sewage into the water supply.

Appellant appealed the MPCA’s findings to an administrative law judge (ALJ), who affirmed the MPCA’s conclusions after a contested-case hearing.… The MPCA adopted the ALJ’s findings and recommendation and revoked the certification. Appellant did not seek review of the MPCA’s decision by writ of certiorari.

The ALJ’s conclusion that appellant’s proposed development would create a nuisance is binding in this case….

Given the binding determination that appellant’s proposed development would create a nuisance, summary judgment was appropriate because the enforcement of regulations in an effort to abate a nuisance does not result in an unconstitutional taking.
Judge Klein’s opinion on the propriety of the revocation of the certification is accessible here and the panel’s analysis from yesterday is accessible here.

Monday, November 03, 2008

Today We Mark Our 500th Post! (And one great interview!)

Just over two years ago, I started posting to Within the Scope, and it has been among the most interesting and rewarding ventures of my professional life.

Through these pages, I have been linked in with fellow lawyers (... and the just-plain curious) from every time zone on the globe; some of my case synopses have made it into Mr. Jefferson's library; and, best of all, I have had many more than 500 wonderful conversations about developments in the case law with you.

To celebrate this milestone, I imposed upon five celebrity readers of this web log to jointly write the 500th post.

At the link below, Chief Justice of Minnesota Eric J. Magnuson, Associate Justice of the Minnesota Supreme Court G. Barry Anderson, Counsel to the Governor Karen Janisch, Assistant Hennepin County Attorney Peter Orput and Associate Editor of the Minnesota Lawyer Barbara Jones, answer a series of five questions. Those questions were:

1. In what way has the internet had the greatest impact upon the practice of law?

2. What book should every lawyer read (and why)?

3. What written decision, handed down by a federal court in 2008, should every lawyer read (and why)?

4. Reflecting upon the examples of bad lawyering that you have seen over the course of your career, is there are particular trait that lawyers who perform poorly share?

5. What should "Within the Scope" try to highlight over the course of the next 500 posts?

The panelists' fascinating replies are accessible here.