I Noticed, Then Commented – Thoughts on a New Application for the Notice and Comment Process

Note: The following essay is slated for publication in the forthcoming Winter Issue of the Minnesota State Bar Association Public Law Newsletter. I thought that this item might likewise be of interest to readers of these pages.

At the close of last year, I had a something of an old home week. I had the chance to catch up with some professors – Michael Abramowicz and Thomas Colby – who are teaching at my alma mater. Abramowicz and Colby are leading lights in the faculty of the George Washington University’s National Law Center and had just posted their latest article to the Social Science Research Network.

In their article, Notice-and-Comment Judicial Decisionmaking (accessible here), Abramowicz and Colby argue that the notice and comment processes of administrative rulemaking might be useful in warding off error by state and federal courts. Noting that judicial opinions often contain errors that have far-ranging and untoward consequences, Abramowicz and Colby contend that if interested persons had an opportunity to preview yet-to-be finalized judicial opinions, commentators could assist the courts in avoiding error. As it is with administrative rulemaking, the professors explain, notice and comment procedures could improve the work product of, and public’s confidence in, our courts.

In keeping with their theme, Professors Abramowicz and Colby also suggested that I submit my reactions to their proposals for “notice and comment” by others. I decided that I would write about the professors’ work, and my own reactions to it, in these pages here. Whether you love or hate their suggestions, Abramowicz and Colby’s article presents ideas that every Public Lawyer should think about closely.

(The remainder of this essay is continued here.)

Board Urges Refusal of Money and Requirements of Adam Walsh Act

The California Sex Offender Management Board recently announced that acceptance of the requirements that are associated with full compliance under the Adam Walsh Child Protection and Safety Act of 2006 would be "costly and ill-advised." The 16-member state board oversees community management of adult sex offenders by "identifying and developing recommendations to improve policies and practices."

Urging the California State Legislature and Governor Schwarzenegger to elect not to come into compliance with the federal Act, the Board argued:

Instead of incurring the substantial - and un-reimbursed - costs associated with the Adam Walsh Act, California should absorb the comparatively small loss of federal funds that would result from not accepting the very costly and ill-advised changes to state law and policy required by the Act. Any funding cuts to the JAG / Byrne grants to local law enforcement should be offset with other funds to ensure that the vital public safety work of those programs is continued.

As the Board reasoned, in addition to "particularly problematic” policy choices made by the Act, the potential loss of $1.2 million in federal funds compared poorly with a "minimum" of $32 million in costs that would be incurred by California in order to obtain compliance with the new law.

The Board's complete statement is accessible here.

Here in Minnesota, a joint meeting of the Senate Committee on Judiciary and the House Committee on Public Safety Policy and Oversight will be held next Thursday to consider terms and requirements of the Adam Walsh Act.

Sunset Stripped

In an interesting published opinion issued on Tuesday, a panel of the Minnesota Court of Appeals set aside the assessment of penalties against a major telecommunications firm, AT&T. Among the issues in the case was whether the Minnesota Public Utilities Commission maintained the authority to penalize misconduct by a regulated party after the sunset date of the Commission’s penalty statute, but as to conduct which occurred before the statute expired.

AT&T argued that the sunset date of the statute signified the last date on which the Commission could wield the powers that were set forth in the expiring statute. The Commission countered that as it is with regulatory matters under a statute that has been later repealed by the Legislature, Minnesota’s general savings clause statute preserves the use of powers in an expiring statute for use in proceedings that have accrued before the sunset date.

Siding with the regulated party, AT&T, the appellate panel explained:

For the purpose of the general saving statute, a statute that is repealed is treated differently from one that has expired by its own terms. The due process concerns underlying the general saving statute do not exist with a statute that includes an expiration date because the original statute gives notice to all that the statute will expire on a specific date. Moreover, the statute was extended twice previously, establishing that the MPUC understood that it could seek an extension of the penalty authority when it became evident that it could not complete pending dockets before August 1, 2006. The MPUC did not do so, and such an extension should not be implied by operation of the saving statute. Accordingly, because Minn. Stat. § 237.462 is not saved by the general saving statute, the MPUC did not have the power to impose penalties after August 1, 2006.

The panel’s complete analysis is accessible here.

2008 Snapshot: Charts Depict the Work of OAH's Administrative Law Division

Circulating at the State Capitol these days are two charts which may be of interest to readers of Within the Scope.

The first chart documents the nature and number of complaints of unfair campaign practices that were resolved by the Office of Administrative Hearings' Adminstrative Law Division in calendar year 2008. Among other items, this chart details a steady drop-off in the total number complaint filings, as OAH continues to develop a detailed body of decisional law in this area and to resolve most other disputes well in advance of Election Day.

The second chart details the nature, number and outcome of state rulemaking matters presented to the OAH during Fiscal Year 2008. This chart details both the wide variety of rulemaking approaches used by state agencies and the important role that OAH continues to play in the review of new state regulations.

For readers who have access to Microsoft Power Point, both sets of statistics appear on a single presentation slide that is accessible here.

Key Overviews: Recounts and Elections; Energy; the Courts; Metrics for Human Services

With the start of the 86th Session of the Minnesota Legislature, this past Tuesday, legislative committees are turning to a set of marquee issues in “overviews.” Importantly, these overviews could forecast the mechanics of reforms that will be undertaken later this year. Among the hearings that readers of these pages may wish to attend, or view later over the Internet, are discussions of:

“Post election issues, i.e., U.S. Senate recount and absentee ballot procedures,” Senate Committee on State and Local Government Operations and Oversight (Friday, January 9, 2009 - 10:00 AM - 123 State Capitol).

“Energy issues,” House Energy Finance and Policy Division (Monday, January 12, 2009 - 2:45 PM – Basement Hearing Room, State Office Building).

“Historical overview of Minnesota court structure,” Joint Meeting of the Senate Judiciary Budget Division and Senate Committee on Judiciary (Tuesday, January 13, 2009 - 3:00 PM - 107 State Capitol).

“Department of Human Services overview of priority areas and outcome measures,” House Energy Finance and Policy Division (Tuesday, January 13, 2009 - 2:45 PM – 200 State Office Building).

With this kind of start, one thing is certain; there won’t be any dull moments at the State Capitol.

DNA Case has Clues on Administrative Exhaustion and the RFRA

In a very interesting decision issued on Tuesday of this week, a panel of the U.S. Court of Appeals for the District of Columbia Circuit turned away the challenge of a federal prisoner to the FBI’s analysis of his DNA.

Russell Kaemmerling, the inmate, filed suit to enjoin application of the DNA Analysis Backlog Elimination Act to him, on the grounds that it violated rights that were guaranteed to him under the First Amendment and the Religious Freedom Restoration Act (“RFRA“). The DNA Analysis Backlog Elimination Act directs the Bureau of Prisons to collect DNA samples from inmates like Kaemmerling, and to forward them to the FBI for analysis and possible matching against evidence in unsolved cases. Kaemmerling asserted that while he did not object to the collection of the sample per se, he regarded the FBI’s review of the “building blocks of life” as “laying the foundation for the rise of the anti-Christ.”

Affirming a lower court’s dismissal of Kaemmerling’s suit (albeit with the instruction that it should be dismissed with prejudice), the appellate panel made two noteworthy points. First, Kaemmerling was not obliged to exhaust his administrative remedies through the Bureau of Prisons before filing suit, because the Bureau of Prisons was wholly without the power to either avoid collecting a DNA sample from him or to prevent the FBI from reviewing the same. Because of the clear directive of the statute, the panel concluded that this was the “rare case” where administrative exhaustion before filing a court action was neither useful nor required. The Bureau of Prisons simply could not offer relief to the inmate’s complaint.

Turning to the merits of Kaemmerling’s claim, the panel held that a review of Kaemmerling’s DNA did not burden the free exercise of his religion. As the panel reasoned, no religious exercise by Kaemmerling was restricted or impacted by a review of the sample by FBI scientists. Chief Judge David B. Sentelle summarized for the panel:

This case is instead more analogous to Bowen v. Roy, 476 U.S. 693 (1986), where the Supreme Court held that the state’s use of a Native American child’s Social Security number in determining eligibility for federal welfare benefit programs did not impair her parents’ freedom to exercise their religious beliefs, a tenet of which was that use of the number beyond her control would “rob [her] spirit.” The parents objected to a statutory requirement that state agencies “shall utilize” Social Security numbers “not because it [placed] any restriction on what [they could] believe or what [they could] do,” but because they believed use of the number, an entirely governmental act, would harm the child’s spirit. The Court concluded that the government’s use of the child’s Social Security number did not “in any degree” impair her parents’ freedom to believe, express, or exercise their religion, emphasizing that “[t]he Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens. . . . [A]ppellees may not demand that the Government join in their chosen religious practices by refraining from using a number to identify their daughter.”

The panel’s complete analysis is accessible here.