Within the Scope

Blogging on Administrative Law and the Public Sector

Friday, June 26, 2009

Really Clever People Get Free CLE

At its annual meeting last week, the Minnesota State Bar Association’s Administrative Law Section announced a program under which it is trading good ideas for complimentary admission to an upcoming Continuing Legal Education program sponsored by the Section.

If your idea for a CLE program on administrative law is chosen by the Section Council, you and a colleague will receive complimentary admission to that CLE.

So send in your ideas for a CLE program. Someone as clever as you shouldn’t have to pay for CLE credits.

Does Caperton Invite More or Less Danger for Judges in Retention Elections?

In the run-up to their fundraising benefit scheduled for next week, supporters of retention elections for state court judges here in Minnesota have hailed the recent U.S. Supreme Court decision in Caperton v. A.T. Massey Coal Company Co.

As readers of these pages are aware, earlier this month a divided U.S. Supreme Court held that some independent expenditures in judicial campaigns are so large and influential that the candidate-judges who benefit from these expenditures are obliged by the Due Process Clause to later recuse themselves from cases involving the donors who had “significant and disproportionate” influence.

One presumes that the supporters of retention elections in Minnesota’s regard the decision in Caperton as affirming their view that independent expenditures can have a distorting influence on the administration of justice – indeed an impact that is of constitutional significance.

This may be true, but it occurred to me that the Caperton case also includes the seeds of future difficulty for supporters of retention elections.

As the four dissenting Justices in Caperton point out, calibrating when a donor’s influence becomes “significant and disproportionate” such that when “coupled with the temporal relationship between the election and the pending case offer a possible temptation to the average judge,” is neither a simple nor straight-forward task. Reasonable people will disagree as to when that line is crossed, and, the dissenters argue, this uncertainty will result in a proliferation of claims that candidate-judges who benefitted from independent expenditures during a campaign must later recuse themselves.

Moreover, it occurred to me that the “significant and disproportionate” voices in retention election campaigns will most often be those undertaking independent expenditures – there being no candidate-challengers with that form of election. In a smaller, compressed field, the outside voices may, in fact, seem louder and more influential. And if that is true, aren’t judges who seek retention in office more vulnerable to later claims that they are “in the pocket” of those who spoke widely on their behalf? Likewise, isn’t the danger heightened when there is no other judicial candidate with whom one could compare one’s campaign? For these reasons, I think that the holding in Caperton represents more of a mixed blessing than a boon to supporters of retention elections here at home.

The High Court’s complete analysis, and the critiques of the dissenting Justices, is accessible here.

Sunday, June 21, 2009

“Released from Confinement”: What it Means for Offenders, Agencies and You

In an interesting set of opinions issued on June 9, the Minnesota Court of Appeals turned away dual challenges to the risk level assessments imposed by the Department of Corrections’ End of Confinement Review Committee. As readers of these pages are aware, Minnesota law obliges the Department to assign a risk level to predatory offenders upon their “release from confinement.” The two opinions address challenges to the timing of the Committee's determinations.

In Risk Level Determination of M.D., the offender challenged the assignment of a risk level at the conclusion of his Minnesota prison term, because, due to an unrelated offense, he was immediately transferred to the state prison system in Wisconsin. As the M.D. argued, there was not a single moment that he was free from confinement, such that the DOC risk level assignment was premature. Disagreeing, the Court of Appeals held that notwithstanding the fact that undertaking community notification as to M.D. would not be particularly meaningful or eventful, “the letter of the law shall not be disregarded under the pretext of pursuing the spirit.” As the panel concluded, the release from confinement in Minnesota made the timing of the risk level determination appropriate.

Similarly, in the Risk Level Determination of D.W., the appellant challenging the risk level determination was a patient who had been earlier indefinitely committed for treatment in the Minnesota Sex Offender Program. Designated as a Sexually Dangerous Person in 1992, D.W, was making process in the treatment program toward eventual re-integration into the community. At each stage of the multi-stage treatment process, the Department of Human Services, in conjunction with the Department of Corrections, convenes an End of Confinement Review Committee for the purpose of rendering a risk level determination. The patient argued that even if he obtained privileges to walk the grounds of the St. Peter Regional Treatment Center, he would still be indefinitely committed to the program and therefore not “released from confinement.” The End of Confinement Review Committee countered that “released from confinement” under Minn. Stat. § 244.052 equals any opportunity that the patient is “permitted to leave the facility and have contact with the community.” The appellate panel held that where the words of the statute permitted either construction of the statute, it would defer to the agency’s interpretation of the law that it administered – particularly where that interpretation was “consistent with the community-protection purpose of section 244.052.”

To my mind, the significance of these decisions is that they recognize a range of policy objectives beyond community notification that are served by the risk assessment statutes. Indeed, tellingly, the panel in D.W. characterized the purposes of the law as “community protection” – a term that presumably includes, but is not limited to, community notification programs. The panels also recognize the accuracy, detail and completeness of agency records on particular offenders as important purposes fulfilled by the statute.

The complete analyses of the appellate panels are accessible here and here.

Saturday, June 20, 2009

Beck Internship Turns $4,000 into $16,000 for Indigent Clients

On Wednesday of this past week, the MSBA Administrative Law and Health Law Sections' commemorated their joint underwriting of a summer internship program in Administrative Law with the Volunteer Lawyers Network. The Sections' $4,000 contribution will, in combination with federal Work-Study matching grants, translate into $16,000 worth of stipend resources for VLN as it assists indigent clients with administrative law matters. The internship is named for Administrative Law Judge George A. Beck, who recently retired from the Minnesota Office of Administrative Hearings after 29 years of service.

The presentment ceremony was made at the MSBA Administrative Law Section's Annual Meeting.

The first of the internship participants is Danielle ("Dani") Sollars, a third-year law student at the William Mitchell College of Law. Ms. Sollars, a Montana native, is a graduate of the University of Saint Thomas and has earlier worked in advocacy roles with the Legal Aid Society of Minneapolis, Minnesota Children’s Law Center and the Minnesota Advocates for Human Rights.

Photos from this year's Administrative Law Section's Annual Meeting are accessible here.

Also, a video of the presentment remarks (which requires listeners to turn up the volume on their speakers in order to hear the remarks clearly) is accessible here.

Sunday, June 07, 2009

The AGO's Annual CLE Seminar and the Oral Argument Everyone is Talking About

I had a great time at the annual all-day CLE seminar hosted by the Minnesota Attorney General's Office, held this past Friday. The program was entitled “Anatomy of a Contest Case” and explored elements of effective administrative law practice from various different perspectives. The program drew about 200 lawyers, from government and the private sector, to the University of St. Thomas’ O'Shaughnessy Educational Center.

Judges Heydinger, Cervantes and I had about 45 minutes to share our suggestions on effective trial practice. Our panel was entitled: “The Facts: The ALJ’s Perspective.”

Hopefully, we were a “value-add.”

Among the most interesting features of the conference to me was that presenters in three of the eight panels that day made reference to the case of In the Matter of the Denial of Certification of the Variance Granted to Robert W. Hubbard by the City of Lakeland – a matter that will proceed to oral argument before the Minnesota Supreme Court this coming Wednesday.

In that case, the City of Lakeland granted Robert Hubbard a bluffline setback variance for Hubbard’s home on the shore of the St. Croix River. Exercising powers under Minnesota’s Lower St. Croix Wild and Scenic River Act, the Department of Natural Resources issued a notice of non-approval of the variance. Under the Act, the DNR has review powers over local variances that are granted with the St. Croix River Shoreland Management District.

Hubbard and Lakeland demanded a contested case hearing under the Administrative Procedures Act. The administrative law judge recommended that the Commissioner of the Department of Natural Resources affirm the denial of the variance. On September 18, 2007, the Commissioner issued an order affirming the denial of the variance. The City of Lakeland and Hubbard appealed to the Minnesota Court of Appeals, which reversed the decision of the Commissioner. As the appellate panel reasoned, Mr. Hubbard'd requested variance was automatically approved because the Commissioner did not issue his final decision within 60 days of the close of the record in the contested case hearing.

Among the issues upon which the Minnesota Supreme Court granted review is the question of whether the 60-day time period for government approvals “relating to zoning,” applies in this case, or the 90-day time period for issuance of such decisions under the Administrative Procedures Act.

As one of the panelists from the CLE on Friday exclaimed – knowing exactly what breed of lawyers had assembled in the auditorium – “whether the APA or section 15.99 applies in such cases is something you could talk about for hours!!!....”

Well, the lawyers in the case on Wednesday won’t nearly have that long to talk. The oral argument in Hubbard begins at 9:00 a.m. this Wednesday (June 10) in Courtroom 300 of the Minnesota Judicial Center (or you can see it replayed on the internet from this link here, shortly thereafter).

Saturday, June 06, 2009

Some Thoughts on the Sotomayor Nomination – Part I

On Thursday of this week, the U.S. Senate’s Committee on the Judiciary posted to the internet Judge Sonia Sotomayor’s replies to the Committee’s background questionnaire. Submission of the questionnaire replies is an important early step as Judge Sotomayor seeks confirmation to become the next Associate Justice of the Supreme Court of the United States.

Two items leaped out to me from the Judge’s detailed replies. The first is that Judge Sotomayor, like all of her would-be colleagues on the High Court, has never been a candidate for elective office. Since Justice Sandra Day O’Connor retired in July of 2005, the High Court has been without a Justice who has ever appeared on a ballot – the first time that this was true in the Court’s long history. And, if Judge Sotomayor is confirmed, this particular trend will continue for a while longer.

The second, more subtle point is that it would probably be very difficult for someone who had a significant tenure in elective office to respond fully to the questionnaire now used by the Judiciary Committee. Imagine the herculean staff effort that would be needed to respond to the Committee’s questions if Governor Christine Gregoire (of Washington), Governor Jennifer Granholm (of Michigan) or Governor Deval Patrick (of Massachusetts) was nominated to the post – any of whom was a genuine possibility last month. Among the Committee’s requests are:

12 (a): List the titles, publishers, and dates of books, articles, reports, letters to the editor, editorial pieces, or other published material you have written or edited, including material Published only on the Internet. Supply four (4) copies of all published material to the Committee.


12 (d): Supply four (4) copies, transcripts, or recordings of all speeches or talks delivered by you, including commencement speeches, remarks, lectures, panel discussions, conferences, political speeches, and question-and-answer sessions. Include the date and place where they were delivered and readily available press reports about the speech or talk. If you do not have a copy of the speech or a transcript or recording of your remarks, give the name and address of the group before whom the speech was given, the date of the speech, and a summary of its subject matter. If you did not speak from a prepared text, furnish a copy of any outline or notes from which you spoke.

12 (e): List all interviews you have given to newspapers, magazines, or other publications, or radio or television stations, providing the dates of these interviews and four (4) copies of the clips or transcripts of these interviews where they are available to you.

12 (f): If, in connection with any public office you have held (see 15a), there were any reports, memoranda, or policy statements prepared or produced with your participation, supply four (4) copies of these materials. Also provide four (4) copies of any resolutions, motions, legislation, nominations, or other matters on which you voted as an elected official, the corresponding votes and minutes, as well as any speeches or statements you made with regard to policy decisions or positions taken. “Participation” includes, but is not limited to, membership in any subcommittee, working group, or other such group, which produced a report, memorandum, or policy statement, even where you did not contribute to it. If any of these materials are not available to you, please give the name of the document, the date of the document, a summary of its subject matter, and where it can be found.
In such a case, would a tractor-trailer stuffed full of bankers boxes be required?

Judge Sotomayor’s more modest set of replies are accessible here and here.

Some Thoughts on the Sotomayor Nomination – Part II

While the story has already been covered in great detail by the Washington Examiner and the Washington Post, to my mind the most interesting feature of the run-up to the confirmation hearings for Circuit Judge Sonia Sotomayor to be an Associate Justice of the U.S. Supreme Court, is the role of the new GOP-lead of the Judiciary Committee, Jeff Sessions (R-Alabama).

Not since the story of Joseph in Genesis, has there been such a dramatic and ironic turn in fortune. Sessions, who 23 years ago had his own appointment to the federal bench derailed by charges that he had made racist statements (a claim he vigorously denied then, as he does today), will lead Republican inquiries into the fitness of Judge Sonia Sotomayor, who herself has been charged by critics as making racially insensitive remarks. The turnabout for Sessions did not happen overnight. Ten years after Sessions lost his bid to be a federal district court judge, the first of President Reagan’s nominees to be turned away by the Senate, he won the U.S. Senate seat of a man who voted against his confirmation – Howell Heflin. Last month, Sessions replaced as GOP-lead on the Judiciary Committee another Senator who voted against his confirmation – Arlen Specter of Pennsylvania. (Senator Specter has since said that he regretted that vote.)

And Senator Sessions, perhaps not unlike Joseph of the Bible story, has been far more gracious in power than others were to him. He’s publicly urged fellow conservatives not to label Judge Sotomayor a racist, remarking: “You know, that's such a loaded word, and I don't think it's appropriate to use it in this context.” He would know.

Now, if only the nation could have seven years of plenty….