Within the Scope

Zivotofsky v. Clinton: The Little Case that Raises Big Constitutional Questions

2011-12-19T12:21:00.001-06:00

Early in November, Solicitor General Donald B. Verrilli, Jr., the Justice Department’s top lawyer, made a very consequential speech about foreign policy and the separation of powers. It also is a speech that nearly no one has ever heard.

Verrilli made his remarks during an argument before the U.S. Supreme Court. He told the Justices that the Obama Administration “has determined that the passports it issues should not identify Israel as the place of birth for persons born in Jerusalem.” “The Constitution,” continued Verrilli, “commits that power exclusively to the Executive and neither a court nor the Congress can override that judgment.”

When one slices through his legalese, it is clear that General Verrilli makes an important claim about American foreign policy. He outlines very broad foreign policy powers that American presidents claim for themselves; powers they say are unchecked by Congress or the courts.

This very big claim arises in what many believed to be a small case. Menachem Binyamin Zivotofsky, an American citizen, was born in Jerusalem in 2002. Menachem's mother filed a consular report noting that the boy’s birth occurred abroad and requested a U.S. passport for him that listed his birthplace as "Jerusalem, Israel."

Congress allows such applications. In the Foreign Relations Authorization Act, it provided that for “a passport of a United States citizen born in the City of Jerusalem, the secretary (of state) shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.” This law notwithstanding, both the Bush Administration and the Obama Administration refused the Zivotofskys’ request. They insisted that describing Jerusalem as part of Israel “would critically compromise” the United States’ ability to advance the Middle East peace process.

Even if it were agreed that the words on a passport are a trifle, no one believes that Middle East peace is a small matter. And so scratching the surface of the Zivotofsky’s dispute uncovers an important disagreement: Is the President the only one who has a say as to U.S. foreign policy on Jerusalem?

The Administration’s claim of exclusive authority in this area is grounded in Article II, section 3 of the U.S. Constitution. This provision permits the President to “receive ambassadors and other public ministers.”

Because Congress is a multi-member body, and frequently recesses from its business at the Capitol, it made sense for the Founders to direct any newly-arriving Ambassador to a single person; namely, the President. Yet, modern Administrations have also asserted that the authority to receive Ambassadors includes the power to determine the boundaries of the countries from which those dignitaries arrive. Thus, the authority to receive Israeli Ambassador Michael Oren at the White House implies the power for the President to say, without consultation with Congress or anyone else, where Israel begins and ends.

Those who care about checks and balances in government should think about this further claim very carefully.

It had me thinking about Chaim Weizmann, the first President of Israel. Weizmann famously quipped that “[w]e will take a state even if the Jewish homeland is the size of a tablecloth.” The Zivotofsky case invites us to think about that very possibility – or at least a Presidential declaration that, as far as the United States is concerned, Israel’s borders are only wide enough for a dinner table. If a U.S. President made such a declaration, does our Constitution really require Israel’s supporters in the Congress to sit mute, with their hands folded? That seems to be a step too far.

The claim that the President is the sole author of American foreign policy is jarring because it grabs so much and so greedily. It claims far more power than is needed to “receive ambassadors and other public ministers.” Indeed, it is so over-large that it even intrudes upon the very next words of the Constitution. Immediately after authorizing the President to receive Ambassadors, Article II directs the President to “take Care that the Laws be faithfully executed.” Plainly, neither President Bush nor President Obama considered themselves bound to carry out all of the provisions of the Foreign Relations Authorization Act. Both men ignored a Congressional judgment as to where Jerusalem was; believing that such a determination was theirs alone to make.

Likewise important, even if President Bush regarded the Foreign Relations Authorization Act as dangerous meddling by Congress, he wasn't powerless. He could have vetoed the Act; exercising a power that no one doubts is committed to the President alone.

For these reasons, it is more than a lawyer’s braggadocio for the Solicitor General to announce that President Obama has made his judgment about Jerusalem, and that “neither a court nor the Congress can override that judgment.” It raises important questions about representative government. It also begs us to ask whether, as to our relationships with other nations, the President’s voice is the only one that matters.

A Few Moments With Harvey Mackay, The Indispensable Man

2010-02-26T23:18:00.029-06:00

Yesterday, I took a few moments out of a busy day to attend a book-signing. The event centered on the release of Harvey Mackay’s latest title, Use Your Head to Get Your Foot in the Door.

As many people who know me well – and frankly, even many of those who don’t know me particularly well – could tell you, I am a huge Harvey Mackay fan.

I have read all of the items in the Mackay oeuvre – which is considerable – and have been known to press the bounds of polite conversation in urging others to read one or another of Harvey’s titles.

For someone who wasn’t lucky enough to be born here on the prairie, looking back, it is clear to me that some of the more remarkable and wonderful things that have happened for me here had their roots in that catalogue.

The books and cassettes are transformational.

A short forty word summary of Harvey Mackay’s books, articles, tapes, videos and “tweets” can be found in the epilogue of his latest book. In classic Mackay style, refurbishing a famous quote from Andrew Carnegie, Harvey declares: “You could take my money from me, my home from me, my factories … whatever … but leave my good name, my reputation, and my network…. And I will be back where I was in two years.”

The Mackay genre is a set of road maps for building one’s good name, reputation and professional network. It is jammed with strategies, every day tactics and healthy food for thought – all delivered in a home-spun style that is accessible to just about every reader. These road maps will lead you to unimagined heights in good times and help you to chart a swift return when – as happens to every one of us, sooner or later – disaster strikes.

And, along the way, I think that they also help to make the world a better place than the way that Harvey found it. In my book, that is the highest praise that one can render.

Ever au courant, Mackay’s newest title is a field manual for Americans who are suffering in this era of economic calamity and collapse. As Mackay explains in the opening pages of what turns out to be an unbelievably useful volume, this is the book that his wife of nearly fifty years, Carol Ann, urged him to write. No doubt a lot of lives will be changed for the better because of that prompting.

More remarkable still, notwithstanding the fact that Mackay is approaching 80, this week also marks the debut of his own internet browser tool. The software provides handy, drop-down menus to Harvey's on-line content and the very best of the internet’s networking and professional research engines. The add-on is very cool and is accessible here.

So, thanks Harvey. Yesterday was good day. And for me, so is most every other one because of what you have written, said and done.

Moving Toward the Right Procurement Agenda – For Congress and For Us

2010-02-21T10:48:00.020-06:00

Steven L. Schooner, Associate Professor of Law and Co-Director of the Government Procurement Law Program at George Washington University, recently posted to the Social Science Research Network a chapter from a forthcoming book: “Framing a Public Management Research Agenda.”

For those who are interested in government acquisition issues, this is a really interesting and worthwhile read. And, folks like me, who are alumni of the program, can take genuine pride in the fact that such clear and incisive analysis continues to spring from Foggy Bottom.

Consider this provocative shot across the federal regulatory bow:

While a successful procurement regime depends upon high standards of integrity and compliance, a pervasive ‘corruption control’ focus not only stifles creativity and encourages mechanical rule adherence, but encourages timidity and risk-averse behavior. Kelman hits close to the mark in his prediction that public managers (or procurement professionals) over the next decade: “rather than transforming, learning, and challenging themselves … could be preoccupied with 'ferreting' out waste, fraud and abuse, … 'exposing mismanagement,' … 'complying with rules and procedures' … in a mode of 'hunkering down' and 'keeping out of trouble[.]”

The imperative to address this public management challenge thoughtfully and well is great. The federal government now undertakes nearly $500 billion in contracting with private firms each year – with a spending trend line that is on the rise. In such an environment, centering on ‘keeping out of trouble’ is not where I would have procurement professionals aim.

This past November, Schooner and others gathered for a conference in Washington to wrangle over this question, and others – a matter that is all to the good. For me, however, the far more difficult challenge is how we could prompt Congressional committees to take the time out for work on these complicated riddles. I wondered what it would take to get Capitol Hill to focus on some of the questions that were debated at the conference; such as:

• How can the government systematically evaluate its acquisition workforce needs and capabilities?

• How does government assess the impact of an acquisition workforce development program on acquisition outcomes? How will government know if it is successful?

• How significant are the transaction costs resulting from the administration’s commitment to transparency (generally, and specifically in the context of stimulus or recovery spending), and who will bear those costs?

• How can government develop and define better metrics on acquisition outcomes?

To me, the idea that Congressional committees would venture into these thickets – even as weighty as these questions are – seemed other worldly. Still, we can dream; and cajole; and thank Professor Schooner for such a worthwhile start – which is accessible here.

The Land Use Case that Every Minnesota Rule Writer Should Read

2010-02-13T21:42:00.011-06:00

On Thursday, the Minnesota Supreme Court issued an interesting and important opinion that the rulemaking community is certain to be thinking about, reading and discussing for weeks to come.

The opinion arises out of a challenge to the Department of Natual Resources' refusal to certify a local variance in favor of a landowner who wished to build a home along the Saint Croix River. The City of Lakeland granted the variance, but the DNR refused to certify this action -- a matter that under the state's scenic river rules purportedly deprived the variance of its legal effect.

An evidentiary hearing before an Administrative Law Judge followed. The Commissioner of Natural Resources affirmed the denial of the certification, issuing his decision within 90 days of the Administrative Law Judge's recommended decision.

In a challenge to that denial, the Minnesota Court of Appeals reversed the agency's determination. The appellate court reasoned that because the denial of the certification was not rendered within 60 days of the ALJ's decision, it was untimely and ineffective. The appellate court concluded that, under the requirements of Minnesota Statutes, section 15.99, such a decision was due within 60 rather than 90 days.

Disagreeing, the agency sought further review with the Minnesota Supreme Court.

A unanimous Supreme Court affirmed the lower court decision; albeit on very different grounds. The Supreme Court reasoned that the Legislature's delegation to the DNR to "manage and administer" the scenic river system was not broad enough to authorize the state rules which required the DNR's approval of locally-granted variances. In the view of the Court, if such a review power was intended, the grant of authority to the DNR would be both differently-worded and more explicit. Without the lawful authority to set-aside locally-granted variances, the lack of an approval from the DNR did not imperil the landowner's variance.

A question that was not reached by the high court, and thus remains unclear, is how vibrant is the Court of Appeals' analysis as to the due date for agency decisions in matters that touch upon zoning and land use? Are these decisions due in 60 days?

And while that would be helpful to know, interestingly, the longer-term impact of this decision will probably not be felt in land use cases; but rather in state rulemaking proceedings. The decision will likely sharpen an already rigorous and detailed focus on the phrasing of delegations of rulemaking authority in favor of state agencies.

For a more detailed study of the two appellate court decisions -- which each administrative lawyer should be doing these days -- the Court of Appeals' unpublished decision is accessible here; and the Supreme Court's affirmance is accessible here.

Not Just Narrowly Tailored, But Gently Tailored As Well

2010-01-22T22:39:00.019-06:00

While one could no doubt run an entire constitutional law seminar on the features that are found in yesterday’s 183-page opinion, Citizens United v. Federal Elections Commission, I was drawn to one part in particular – the majority’s contention that bureaucratic red tape can stifle political speech just as much as the censor’s blue pencil.

So, while most commentators were expressing concern over the rivers of corporate money that may cascade around political campaigns in the years ahead, I was thinking about how the decision could impact the remainder of the regulatory landscape. It seemed to me that provisions of the Bi-Partisan Campaign Reform Act may not be the only regulations that fall under the standards announced yesterday.

Try this thought experiment: Take your favorite campaign finance requirement and consider the remarks of Associate Justice Anthony Kennedy:

The First Amendment does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing research, or seek declaratory rulings before discussing the most salient political issues of our day. Prolix laws chill speech for the same reason that vague laws chill speech: People “of common intelligence must necessarily guess at [the law’s] meaning and differ as to its application.” The Government may not render a ban on political speech constitutional by carving out a limited exemption through an amorphous regulatory interpretation....
….

As additional rules are created for regulating political speech, any speech arguably within their reach is chilled. Campaign finance regulations now impose “unique and complex rules” on “71 distinct entities.” These entities are subject to separate rules for 33 different types of political speech. The FEC has adopted 568 pages of regulations, 1,278 pages of explanations and justifications for those regulations, and 1,771 advisory opinions since 1975. In fact, after this Court in [Wisconsin Right to Life v. FEC] adopted an objective “appeal to vote” test for determining whether a communication was the functional equivalent of express advocacy, the FEC adopted a two-part, 11-factor balancing test to implement WRTL’s ruling.

This regulatory scheme may not be a prior restraint on speech in the strict sense of that term, for prospective speakers are not compelled by law to seek an advisory opinion from the FEC before the speech takes place. As a practical matter, however, given the complexity of the regulations and the deference courts show to administrative determinations, a speaker who wants to avoid threats of criminal liability and the heavy costs of defending against FEC enforcement must ask a governmental agency for prior permission to speak. These onerous restrictions thus function as the equivalent of prior restraint by giving the FEC power analogous to licensing laws implemented in 16th- and 17th-century England, laws and governmental practices of the sort that the First Amendment was drawn to prohibit.

Now, not only will government regulations of political activity need to be narrowly tailored and further a compelling state interest, it appears that they will also need to be gently tailored for a comfortable fit.

OAH Releases its "Video Guide to Hearings" to Aid Unrepresented Parties

2010-01-20T18:04:00.001-06:00

The Minnesota Office of Administrative Hearings, in partnership with Senate Media Services, developed this 8-minute video as an aid to persons with contested cases who appear on their own behalf, without an attorney.

The video guide is meant as a supplement to OAH's Contested Case Hearing Guide; delivering some of that content in a format that is both more accessible and user friendly.

Oral Argument in U.S. v. Comstock Has Echos of M'Culloch v. Maryland

2010-01-18T14:23:00.008-06:00

Last Tuesday, the Supreme Court of the United States heard oral argument in the case of U.S. v. Graydon Earl Comstock, Jr. In Comstock, the court considers whether Congress has the authority to enact a statute providing for the indefinite civil commitment of "sexually dangerous persons” who are in the custody of the Bureau of Prisons, but whose federal prison sentence is at an end. Is civil commitment of dangerous persons an enumerated power of Congress – and if so, which power?

This kind of dispute is as old as our federal system. In 1816, resolving the challenge to Congress’ power to charter a Bank of the United States, Chief Justice John Marshall announced the legal standard and defined the field of combat for so many future struggles; including this one. As Marshall famously wrote in M'Culloch v. Maryland:

[S]hould congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the government; it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say, that such an act was not the law of the land. But where the law is not prohibited, and is really calculated to effect any of the objects intrusted to the government, to undertake here to inquire into the decree of its necessity, would be to pass the line which circumscribes the judicial department, and to tread on legislative ground. This court disclaims all pretensions to such a power.

Thus, whether it was a federally-chartered Bank in 1816, or a treatment facility for dangerous persons today, the central question is the connection between an enumerated federal power and the means that Congress has chosen to exercise that power.

As Tuesday’s oral argument revealed, indefinite treatment of dangerous persons without regard to an underlying prison sentence, is, at best, at the outer periphery of Congress’ Article I powers. Indeed, Solicitor General Elena Kagan had great difficulty in identifying which enumerated power Congress was exercising when enacting the commitment statute. Consider these exchanges with a skeptical Justice Antonin Scalia:

JUSTICE SCALIA: What -- what -- what power conferred upon the Federal Government by the Constitution permits the Federal Government to assure that sexual predators are not at large?

GENERAL KAGAN: I think the power, Justice Scalia, is the power to run a responsible criminal justice system, to run a criminal justice system that does not itself endanger the public.

....

JUSTICE SCALIA: .... I mean, there is no constitutional power on the part of the Federal Government to protect society from sexual predators. And, you know, once the Federal custody is at an end, it seems to me that's the only power you could be relying upon.

GENERAL KAGAN: I think that the power to run a responsible criminal justice system extends to the way in which the Federal Government releases these prisoners.

The other important echo from 1816 was Justice Stevens’ frequent reminder that it was not the province of the Supreme Court to inquire into the utility of the underlying statute – this, he asserted, the Court was obliged to assume – only the authority for the treatment program. The reminders sought to refocus his colleagues from a discussion of federal policy to one of federal power.

And as much as the United States’ position seemed to be taking on water during Tuesday’s argument, the patient-detainees also had their challenges. Assistant Federal Public Defender G. Alan DuBois had considerable difficulty in addressing whether Congress had the power to detain (and quarantine) prisoners with infectious diseases at the end of their prison sentences. Was not, Justices Breyer and Stevens wondered aloud, detaining a sexually dangerous person in federal custody analogous to quarantining a federal prisoner with drug-resistant and highly-contagious tuberculosis? Was the federal sovereign incapable of meeting such a threat?

The entire transcript from last Tuesday’s argument, which really is worth reading and thinking about, is accessible here.

Digital Remedies for Counsel with Colds

2010-01-11T20:09:00.011-06:00

Since the temperatures plummeted to well below zero a few weeks ago, I have struggled against a cold that I have not been able to shake. I am down; then I rally for a few days; and then I am down again. Up and down. Up and down. It has been awful.

During the down phases of this winter roller-coaster, I have swallowed a river of cold medicine and listened to a lot of podcasts. Much of both left a bad taste in my mouth; but occasionally, I would happen upon a dose of something really wonderful.

Here is a list of presentations that are available for downloading that will stimulate even a brain that is addled by a super-size load of pseudoephedrine:

• Professor Burt Nueborne of the Brennan Center for Justice at the New York University School of Law and Professor Randy E. Barnett of the Georgetown University Law Center discuss the benefits and hazards of reading the Bill of Rights as part of integrated whole rather than a decalogue of ten distinct provisions; accessible here.

• Judge Guido Calabresi, of the U.S. Court of Appeals for the Second Circuit, and Judge Frank H. Easterbrook, of the U.S. Court of Appeals for the Seventh Circuit, wrangle over the proper method of deciding cases when presented with applications of a statute that the Legislature never considered; accessible here.

• Clark Neily, of the Institute for Justice, and Professor Kurt Lash, of the Loyola Law School, discuss the meaning of the Privileges and Immunities Clause and whether it provides a basis for incorporating some or all of the Bill of Rights against the states; accessible here.

• An all-star panel – Justice Samuel A. Alito, of the Supreme Court of the United States, Judge Michael W. McConnell, formerly of the United States Court of Appeals for the Tenth Circuit; Walter E. Dellinger III, formerly the United States Solicitor General; Pepperdine School of Law Dean and former Solicitor General Kenneth W. Starr; and Professor of Law Douglas W. Kmiec -- discuss “Lawyering and the Craft of Judicial Opinion Writing;” accessible here.

If you like any of these podcasts, be sure to send me an E-mail.

I am not shaking anyone’s hand until at least July….

Heat and Light in Saint Paul this Winter

2009-12-20T15:13:00.017-06:00

On Wednesday of this past week, a panel of the U.S. Court of Appeals for the Eighth Circuit heard oral argument in the case of Wersal v. Sexton.

As readers of these pages will recall, in February of this year, Judge Ann H. Montgomery of the U.S. District Court for the District of Minnesota, turned away a civil rights suit challenging the provisions of Minnesota Code of Judicial Conduct.

Golden Valley attorney and sometime candidate for election to the Minnesota Supreme Court, Gregory F. Wersal, earlier claimed that he would like to seek election to the Minnesota Supreme Court, and announce his support for the election of Tim Tingelstad (to judicial office) and Michele Bachmann (to the U.S. Congress), during his candidacy. Rule 4.1 (A)(3) of the Minnesota Code of Judicial Conduct forbids judges and those running for judicial office from making such endorsements. Judge Montgomery upheld this restriction of the Code on the grounds that “a legitimate impartiality concern is created when [Wersal] endorses a candidate who may come before him in a judicial capacity.”

The most provocative claim made by Wersal is his contention that the prohibitions on judges endorsing other candidates for elective office are not meant to disentangle judges from political bias, but rather, are designed to prevent these biases from being revealed. Wersal argues: The “restrictions on judicial speech could undermine public confidence in the judiciary, [because] there is a danger that silence on the part of judicial candidates could inspire the suspicion that they are hiding their views to mask their partiality or bias.” Implicit in this charge, is that the Code’s ban on candidate endorsements is meant as an incumbent-protection mechanism; with the government deciding to shield clumsy office-holders from later being rejected at the polls because of those candidates' actual views.

To my mind, this is a far more sophisticated, nuanced and potent argument than the threadbare claim that judges are simply indistinguishable from others who enter the public square. Indeed, I think that Wersal’s arguments have their greatest force (and the Board of Judicial Standards is at its weakest) when the inquiry centers on the benefits that accrue to incumbent office-holders under the regulations.

Courtesy of Minnesota Lawyer, Judge Montgomery’s February 2009 analysis is accessible here.

An audio file of the Eighth Circuit oral argument – and the very fine job done by the advocates, James Bopp, Jr. and Deputy Attorney General Steven M. Gunn – is accessible here.

Twenty Years Ago – A Great Miracle Happened Here

2009-12-11T17:32:00.019-06:00

When I was in Israel in April, I set out to find and purchase some Israeli dreidels. As readers of these pages may know, dreidels in the United States (and other places outside of Israel) are different from the ones that are found in Israel.

In the United States, the Hebrew letters that adorn the four sides of a dreidel – נ-ג-ה-ש – form an acronym for the phrase “Nes Gadol Hayah Sham;” a great miracle happened there. In Israel, however, the fourth word of the acronym is different. For Isrealis, the great miracle of the Chanukah celebration happened “here.” Thus, the Israeli dreidel reads נ-ג-ה-פ for “Nes Gadol Hayah Po."

In fact, while I was searching for the Israeli versions of the spinning tops, I had a heated dispute with a Jerusalem vendor who wanted to sell me sham driedels with the letter representing “sham” on them. I determinedly pointed to the ground and declared in my very Americanized Hebrew: “Nes Gadol Hayah Po!” (A great miracle happened here!) This, the merchant was obliged to concede.

I was reminded of that here and there story when an official of the Chabad Lubavitch wrote to me this week about the twentieth anniversary of the U.S. Supreme Court’s decision in Allegheny County v. ACLU. Twenty years ago, the Chabad won an important victory when the High Court turned away an Establishment Clause challenge to Alleghany County’s hosting of an 18-foot Menorah outside a County office building. Like the Chanukah story itself, the story of this smaller-size miracle bears repeating; particularly on the anniversary of the decision.

The County permitted the Chabad to place its oversized Menorah in front of the building and next to the City's 45-foot Christmas tree. Also nearby was a sign with the following inscription: "During this holiday season, the City of Pittsburgh salutes liberty. Let these festive lights remind us that we are the keepers of the flame of liberty and our legacy of freedom." The inscription appeared under the name of the Mayor of the City of Pittsburgh.

When a suit challenging the hosting of the Menorah on government property was filed, the City and County were inclined to remove the display. Recalled Rabbi Yisroel Rosenfeld, of Chabad Lubavitch of Pittsburgh, “they weren’t going to follow through. That’s when we got involved. We felt, based on what the Rebbe said we should pursue it.”

“What the Rebbe said,” is a reference to a statement circulated six years earlier by Rabbi Menachem M. Schneerson, the Lubavitcher Rebbe, on the importance of publicly lighting Chanukah candles. The Rebbe wrote:

The Chanukah Lights remind us in a most obvious way that illumination begins at home, within oneself and one’s family, by increasing and intensifying the light of Torah and Mitzvos in the everyday experience, even as the Chanukah Lights are kindled in growing numbers from day to day. But though it begins at home, it does not stop there. Such is the nature of light that when one kindles the Chanukah Lights are expressly meant to illuminate the “outside,” symbolically alluding to the duty to bring light also to those who, for one reason or another, still walk in darkness.

If the Menorah was not in the town square, reasoned the Chabad of Pittsburgh, some light might not reach those still walking in darkness. They had no choice; they were in the suit to win.

Fortunately for the Chabad, Allegheny County and those who enjoyed the Menorah, Justice Blackmun simply did not believe that the oversize lights were meant to dispel any moral darkness. He wrote:

In this country, the tradition of giving Chanukah gelt has taken on greater importance because of the temporal proximity of Chanukah to Christmas. Indeed, some have suggested that the proximity of Christmas accounts for the social prominence of Chanukah in this country. Whatever the reason, Chanukah is observed by American Jews to an extent greater than its religious importance would indicate: in the hierarchy of Jewish holidays, Chanukah ranks fairly low in religious significance. This socially heightened status of Chanukah reflects its cultural or secular dimension.

More significantly still, the happy accident that the Menorah was placed beside a colossal Christmas tree that year meant that other, later Menorahs could do their illuminating work somewhat shielded from Establishment Clause claims. As Rivka Chaya Berman of Chabad Lubavitch Headquarters reflected on the decision, “the experiences of Chabad representatives across the United States reveal just how useful or not the landmark decision has been in bringing Chanukah’s light, message of peace and religious liberty to the public square. From Montana to Mumbai, from the Western Wall to the Great Wall of China, Chabad’s public menorah lightings number in the thousands.”

For Jews who have suffered religious persecution in this country, and others, being able to undertake Jewish rituals prominently, in the open, and in safety, is a big deal. Nes Gadol Hayah Po. Mistakenly, or providentially, twenty years ago, a great miracle happened here.

Happy Chanukah, everyone.

Stras to Preview October 2009 U.S. Supreme Court Term

2009-09-27T09:12:00.001-05:00

The MSBA Administrative Law Section is co-hosting with the Appellate Practice Section an exciting CLE at the Minnesota Judicial Center.

Professor David Stras, of the University of Minnesota Law School, and a key player in the ensemble that writes SCOTUSblog, will give a detailed preview of the U.S. Supreme Court’s October Term 2009.

The event is scheduled for Monday, October 26, from 11:30 a.m. to 1:30 p.m.

Professor Stras, who clerked at the High Court during the October 2002 Term, is a very knowledgeable and engaging speaker. This will be a great event.

Plus, because the event organizers are receiving a selection of “supremely” gourmet pizzas from Cosetta’s, and because of the very courtly attendees that we are likely to draw to this talk, the 70 seats that we have allotted for the event are likely to go fast.

Details on how to RSVP for this not-to-miss event are accessible here.

On Neglect

2009-09-27T09:10:00.005-05:00

Neglect (ni-glekt′) – transitive verb: 1. to ignore or disregard; 2. to fail to care for or attend to sufficiently or properly; 3. to fail to carry out (an expected or required action) through carelessness or by intention.

I know that I have been neglectful of this blog. And I do feel bad about it.

The crawl spaces in my week that I used for reading reported decisions and writing case summaries, slowly collapsed under the weight of projects that I had piled nearby. I took on some additional responsibilities at my day job; and then the chairmanship of the Administrative Law Section of the MSBA. I agreed to do a CLE webinar for the American Bar Association; accepted some other speaking engagements around town; and pledged to lead a committee at the kids’ school; et cetera, et cetera …. The adjacent pile just got higher and higher.

As small as my crawl space for blogging has always been, it was the one enterprise that did not have a firm deadline. And so, I put it off a day. And then a week. And then some more.

In this season for turning, however, I see the error in that plan. I should not be so neglectful. My new plan is to say “no, I really can't” to more things in the future, making for larger spaces to write here. So, with any luck, there will be more postings soon. So please stay tuned.

Franken, Coleman, the Forest and the Trees

2009-07-03T23:13:00.002-05:00

While mindful of the very wide range of opinions that have already been expressed on the Minnesota Supreme Court's conclusion that Al Franken was elected U.S. Senator from Minnesota last fall (see, e.g., here and here), I thought that I would add a few comments of my own on Tuesday's landmark decision.

Perhaps it is the nature of those who are not involved in political campaigns to completely miss the forest for the proverbial trees, but I had a decidedly different take on the Court's decision and its significance -- different from most everyone around me. When the decision came down on Tuesday, I was not thinking about the 2008 election at all. I was thinking only of the elections that will come; the next landscape entirely.

So, quite apart from any consideration as to which candidate ended up with the election certificate (a matter that I am quite happy to leave to other commentators and other blogs), in my view, there was a good deal in the decision that Republicans, Democrats and Independents could cheer -- and cheer in unison.

No doubt imbued with the sense that everyone in the Western World would be watching the results of this case -- and nearly everyone was -- the Court rendered an opinion that is crispy written; clings closely to the questions and the record that were presented below; and provides genuinely helpful answers to the matters that were in doubt. The fact that the Court drew together as a unified Per Curiam bloc when rendering the decision, only adds to the force and utility of its written work.

Similarly helpful, the Court made clear that not every difference in election practice among Minnesota’s 4,130 precincts amounts to a denial of equal protection of the law. As the Court explained:

The unlawful administration by state officers of a state statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination.

Before Tuesday, that point was not altogether clear. To my mind, the Court’s qualifier narrows the number of likely nightmare scenarios following Bush v. Gore (and its oft-cited conclusion that the Equal Protection Clause guarantees individuals that their ballots will not be devalued by "later arbitrary and disparate treatment") to a fairly manageable number of Election Day anxiety attacks. So, election officials, you are free to put down your paper bags and begin breathing normally....

Lastly, the Court’s acquiescence to the lower court’s ruling that a post-election inspection of ballots does not extend to non-ballot materials, and its still stronger assertion that the ballots themselves may only be examined by litigants after a showing of necessity has been made, is sure to avoid some of the more mischievous kind of rummaging through election materials that candidates have enjoyed to date. Two snaps for that.

And so while the wrangling over who should sit at Desk Number 94 in the Senate Chamber will no doubt continue apace, and perhaps continue on longer than the election contest itself, I think only of the further horizon. And that looks pretty good.

The Court's complete analysis is accesssible here.

Really Clever People Get Free CLE

2009-06-26T20:53:00.007-05:00

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?

2009-06-26T12:55:00.009-05:00

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.

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

2009-06-21T15:45:00.010-05:00

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.

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

2009-06-20T10:56:00.018-05:00

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.

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

2009-06-07T11:11:00.014-05:00

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).

Some Thoughts on the Sotomayor Nomination – Part I

2009-06-06T19:20:00.010-05:00

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

2009-06-06T19:12:00.008-05:00

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….

Take Homes from The Big Easy

2009-05-16T15:09:00.006-05:00

As noted in an earlier post, I had spent much of the last few months preparing for a presentation that I was scheduled to give at the American Bar Association Public Contract Law Section’s 4th Annual State and Local Procurement Symposium. (That post, and a copy of the paper I presented, are accessible here).

The focus of this year’s conference was the regulatory and compliance struggles that are associated with public contracting before, during and after a disaster strikes.

It was a joy to be a part of the faculty for this event and to be in New Orleans – a city that is still working on its recovery from recent Hurricanes – for the very fast-paced and jammed-packed set of panels.

Without a doubt, a key theme that ran throughout the sessions was the value of advance planning – and better still, to have mature contracting and documentation systems in place that anticipate the very type of disasters that are likely to strike. This is because the federal regulatory structures on relief, recovery and reimbursement are so complex – and in many respects, inappropriate to the exigencies – that human suffering will be magnified greatly, and enormous financial losses for localities will follow, if the needed systems are not developed in advance.

Several of the speakers, with more than a little pathos, noted that even following the specific purchasing directions of federal officials will not prevent other or more superior officials of the Department of Homeland Security from later disallowing reimbursement applications from local governments.

The take-home advice from the experts was clear: Every state should have employees that speak “FEMA-ese;” the special dialect of the Federal Emergency Management Agency. Not having several folks who are fluent in this special tongue can be enormously costly, and increase the time and local resources that are needed to recover after a disaster has struck.

Federalism and the Predatory Offender

2009-05-16T11:41:00.021-05:00

In a remarkably interesting opinion issued on Wednesday of this week, the U.S. Court of Appeals for the Eighth Circuit reversed a lower court’s decision that had declared the civil commitment portions of the Adam Walsh Act unconstitutional. Last May, then-Chief Judge of the U.S. District Court for the District of Minnesota, Paul Magnuson, concluded that the civil commitment provisions of the Act exceeded Congress’ powers under the Commerce Clause.

Disagreeing, the appellate panel concluded that it was appropriate for federal authorities in Minnesota to indefinitely detain Roger Dean Tom for treatment, at a time that Tom was otherwise eligible for supervised release from prison. The panel concluded that:

[I]t is not unreasonable to assume that upon completion of any prison term convicted sex offenders will travel outside of the state of incarceration, and may well have the intent to commit a federally prescribed sexual offense. As we have already explained, Congress is empowered to regulate the channels of interstate commerce and people or things in interstate commerce to prevent their use for immoral and illegal purposes. [The civil commitment provision of the Adam Walsh Act] appears to be "aimed at preventing the specific harm to the community proscribed by the [federal sex crime] statutes.”

To my mind, the panel decision raises three interesting and noteworthy questions.

First, will either an en banc panel of the Eighth Circuit or the U.S. Supreme Court take an interest in this topic? In upholding the civil commitment provisions, the deciding panel sets up a potential circuit conflict with the U.S. Court of Appeals for the Fourth Circuit. In February of last year, in a case denominated as United States v. Comstock, a panel of the Fourth Circuit ruled that the civil commitment portions of the Adam Walsh Act do “indeed lie beyond the scope of Congress’s authority. The Constitution does not empower the federal government to confine a person solely because of asserted ‘sexual dangerousness’ when the Government need not allege (let alone prove) that this ‘dangerousness’ violates any federal law.”

Second, if the Eighth Circuit panel is correct, and involuntary sequestering an offender for treatment is permissible so as to guard against the danger that he or she may use interstate mail, highways, or telephone service as part of the commission of a future crime; what would be the outer reaches of Congressional power in this area? Would it be the Third Amendment – namely, that Congress could not oblige federal agents to be housed with convicted sex offenders who are under supervised release – but everything else would be permissible?

Lastly, a large – even a helpful – federal role in the treatment and detention of violent offenders begs the question of whether the approaches developed by agencies in Washington, D.C. are the best and the most effective. In my view, perhaps in a Lake Wobegon sort-of way, Minnesota’s sex offender treatment and supervision practices seem “above average;” and Congress' prescriptions in this area seem more like lowest-common-denominators amongst the states than “best practices.” I doubt whether Congress is likely to improve upon Minnesota's methods and results.

The appellate panel’s complete analysis in United States v. Tom is accessible here.

Note: In a parallel decision, also issued on Wednesday, the Eighth Circuit turned away the commerce clause, APA and non-delegation doctrine challenges of a Nebraska offender to the registration requirements Adam Walsh Act. While the challenges to the registration provisions were less in doubt than the challenges to civil commitment provisions, the panel's decision in United States v. Hacker, is accessible here.

Looking for Law in All the Wrong Places

2009-05-07T12:28:00.004-05:00

I was vacationing in Israel when the U.S. Supreme Court handed down its decision in Federal Communications Commission v. Fox Television Stations, Inc. And while details as to the holding and rationale announced by the High Court were a bit sketchy in news accounts at that time – even from the plaintiff Fox Television – since my return to the U.S., I have a chance to spend some time with the opinion.

The Court's opinion is a worthwhile read for administrative lawyers of all stripes – and not merely for those attorneys who advise broadcasters (or use “fleeting expletives”) as part of their day jobs.

Yet, there is a catch. The administrative law question presented to the Court was fairly straight-forward: Namely, had the Federal Communication Commission adequately explained and justified its pronouncement of a stricter, and less-forgiving policy, on the airing of “fleeting expletives” during network television broadcasts? Five justices of the Court concluded that the FCC had done so. In the view of the Court majority, when jettisoning the older, more flexible policy on the use of objectionable language during telecasts, the FCC reasonably concluded that “a safe harbor for single words would ‘likely lead to more widespread use of the offensive language ….’”

For me, the far-more interesting set of readings were the opinions as to which no other Justice subscribed. In Part III-E of Justice Scalia’s majority opinion, from which the other justices in the majority retreated (most likely because of its sharp and brusque treatment of the dissenting Justices), Scalia holds forth on the “increased subservience” of independent agencies to Congressional direction, the level of scrutiny to be rendered by the federal courts as to brand new regulatory approaches, and the differences between notice-and-comment rulemaking and a review of agency adjudicatory decisions. As a former Chairman of the Administrative Conference of the United States, and a former editor of Regulation Magazine, Justice Scalia is simply without a match at the Court on matters of administrative law.

Likewise interesting were the lone concurrences of Justices Thomas and Kennedy. Justice Thomas, noting the changes that have occurred in media, broadcasting and information technology during the past 40 years, expressed doubt over the FCC's assertion of authority to regulate broadcast programming in ways that are different from transmission of the very same content on cable systems, the internet or in print. Concludes Thomas: “I am open to reconsideration of Red Lion and Pacifica in the proper case.”

For his part, Justice Kennedy urges a continued program of very “searching and careful review by the courts” of federal agency actions under the Administrative Procedures Act – seemingly, because of the dangers that are invited by Congressional delegations of decision-making authority to these agencies. Writes Justice Kennedy: “The dynamics of the three branches of Government are well understood as a general matter. But the role and position of the agency, and the exact locus of its powers, present questions that are delicate, subtle, and complex. The Federal Government could not perform its duties in a responsible and effective way without administrative agencies. Yet the amorphous character of the administrative agency in the constitutional system escapes simple explanation.”

So, if an opinion that explores both the fault lines at the High Court on separation of powers issues and some important contemporary debates in administrative law, is of interest to you, the opinion in Fox Television Stations is a very worthwhile read.

Just remember that the really good stuff is in all of the wrong places.

The Court’s complete analysis is accessible here.

Gabba Gabba Hey: Is the Decision "In Re Gabby’s" a Big Deal or Not a Big Deal?

2009-04-02T07:10:00.008-05:00

On Tuesday of this week, the Minnesota Court of Appeals issued a published decision which has had me thinking.

At issue in the case was the propriety of the City of Minneapolis’ imposition of licensing conditions on the liquor license held by Gabby’s Saloon and Eatery in Northeast Minneapolis. Finding that Gabby’s patrons acted boisterously and unlawfully following their exiting of the premises, the City imposed a series of strict licensing conditions on the operation of the saloon. The conditions were imposed despite a lack of evidence that Gabby’s personnel had violated state or local liquor control laws or that Gabby’s had “encouraged or tolerated illegal conduct.”

Reversing, the appellate panel held that the Minneapolis licensing ordinance neither permitted the imposition of conditions – short of revoking or suspending the license outright – nor did it put licensees on notice that the conduct of patrons outside of the licensed premises could result in adverse regulatory action.

Because Minneapolis had not formally claimed the power to impose conditions on such licenses, by ordinance, and “the power to impose conditions on a liquor license is not a ‘lesser’ subsidiary power within the authority to grant or revoke a liquor license,” the panel concluded that the particular licensing conditions could not stand.

What has had me thinking is whether the defects in the ordinance pointed out by the appellate panel are widespread in Minnesota – involving dozens or hundreds of local liquor ordinances – or rather a shortcoming only in Minneapolis’ regulatory regime? Is this case a really big deal or not so much?

The Saint Paul Legislative Code, for example, appears to place licensees on notice that conditions short of suspension or revocation may be placed on their licenses. It reads in part:

When a reasonable basis is found to impose reasonable conditions and/or restrictions upon a license issued or held under these chapters, any one (1) or more such reasonable conditions and/or restrictions may be imposed upon such license for the purpose of promoting public health, safety and welfare, of advancing the public peace and the elimination of conditions or actions that constitute a nuisance or a detriment to the peaceful enjoyment of urban life, or promoting security and safety in nearby neighborhoods.

A similarly important question is how the localities that have defects in their licensing ordinances can rebuild their regulatory machinery. Even assuming that new, and more specific ordinances can be enacted in short order, can a municipality impose enforceable conditions before the license comes up for renewal? Are all regulatory bets off until then? And if this is true, will the practice of automatically renewing licenses upon the payment of the appropriate fee be suspended, as local licensing agencies stop to impose specific conditions before renewing any liquor or restaurant licenses?

The panel’s complete analysis – which I have taken to reading and re-reading at my local saloon while humming to myself – is accessible here.

Mankato Diary, Our Federal Bargain and Some Heretical Ideas

2009-03-26T12:48:00.021-05:00

I have had the good fortune to spend the last two days with some of the state’s brightest and most dedicated professionals. Yesterday and today, the Minnesota State University at Mankato has hosted the Third Annual Midwest Regional Special Education Law Conference.

The raison d’être of the Annual Conference is to provide learning and best-practice sharing opportunities for those who are administering our state's special education programs. The conference follows from the premise that understanding the interlocking mechanisms of the Individuals with Disabilities Education Act (known as "IDEA"), and the Act’s accompanying regulations, is an enormous task.

Under current U.S. Supreme Court case law, IDEA is regarded as a “contract” between the federal government and the enrolling states – under which a set of “federally imposed conditions” are accepted “voluntarily and knowingly” by the state recipients of federal special education funds.

Noting also that the federal sovereign is only now covering 20 percent of the costs associated with Minnesota’s delivery of special education services under the Act, the government manager in me wondered: When it comes to delivering special education services, how much is the “complexity premium”?

Would we, for example, actually deliver more resources to disabled students in Minnesota if we: (a) refused federal IDEA funds; (b) made the same state appropriations that we are making today in favor of special education services; and (c) operated under a much simpler set of state rules? Do the costs associated with implementing, training on, reporting under and litigating provisions of the federal statute and regulations exceed the amounts that Minnesota school districts receive from the federal sovereign for the overall costs of special education programs?

Another side benefit “opting out” of the special education “contract, in favor of a set of simpler state special education rules, presumably would be that local school districts would be closer to the source of regulatory guidance. I would wager that the Minnesota Department of Education has a better record of responding to inquiries from local school districts on the meaning of applicable regulations, than, say, the Office of Special Education Programs in Washington, D.C.

Thus, it would be interesting to know: Could Minnesota deliver more and better special education services, with the same money, by going it alone? (Even raising such a question suggests some of the Byzantine complexities that are associated with the federal requirements.)

My very informal survey of state regulators at the Conference cast doubt on such a heretical idea; but raised a still more interesting question. While it was agreed that there is a “complexity premium” associated with the Act, the costs of this federal complexity are guessed to be smaller than the 20 percent of the state’s special education costs now underwritten by the federal government. Thus, it is calculated that refusing federal funds would actually do more harm than good to local special education programs.

Accordingly, it is likewise predicted that the current system will remain in place, even after next year’s reauthorization of the Act, so long as the federal government transmits more money than is expended by the states to administer the federal Act -- the federal government has never covered Minnesota’s costs of complying with the Act. And in this way, stave off such heretical ideas....

Thanks for Being Patient

2009-03-22T10:04:00.009-05:00

I am scheduled to make a presentation at the American Bar Association's 4th Annual State and Local Procurement Symposium in May, and, as noted immediately below, suspended my blogging for a few weeks so that I could complete the article requested by the symposium organizers.

What I addressed in the article is a set of recent upgrades to federal procurement rules that oblige mid-size and large federal contractors to have robust ethics compliance systems. In the monograph, I describe: (1) how the federal government is using the new ethics rules to manage growing portfolios of contract risk; (2) how applying the new ethics regimens to state and local contractors will likely be the next frontier for government regulators; and (3) how contractors of all sizes can begin to think through some of the difficult issues prompted by these new rules.

While the article is fairly lengthy (certainly by blog post standards), I would be grateful for any feedback that the readers of these pages had for me on this piece; which is accessible here.

And thanks for sticking with me….

With Apologies, Gone Writin'

2009-02-27T18:22:00.005-06:00

With apologies to WTS readers for the long gap between posts - particularly because that gap will grow a little wider still.

I have been spending nights and weekends penning a longer monograph (around 10,000 words) on contractor ethics; and it has been a larger undertaking than I first imagined.

I promise to be back as soon as I can - and I hope to see you here on these pages. Please tune in again soon.

For Wersal’s Challenges to the Code of Judicial Conduct, Tomorrow is Another Day

2009-02-15T13:44:00.028-06:00

I only recently received a copy of the Memorandum Opinion and Order issued by Judge Ann H. Montgomery, of the U.S. District Court for the District of Minnesota, in Wersal v. Sexton.

As readers of these pages will recall, in March of last year, Golden Valley attorney and sometime candidate for election to the Minnesota Supreme Court, Gregory F. Wersal, filed a civil rights suit challenging the provisions of the Minnesota Code of Judicial Conduct. Wersal’s 2008 suit follows on from his earlier role as a key plaintiff in the landmark case of Republican Party of Minnesota v. White. In the various decisions in that case, the federal courts struck down as violating the First Amendment several state restrictions on the speech and campaign practices of judicial candidates. (And awarded his lawyers the fees that they earned in the case.)

Wersal’s 2008 suit challenges ethical rules that prohibit candidates for judicial office from either endorsing candidates for other elective office or soliciting campaign contributions from individual donors. In affidavits submitted to the District Court, Wersal averred that he would like to seek election to the Minnesota Supreme Court, and announce his electoral support for the election of Tim Tingelstad (to judicial office) and Michele Bachmann (to the U.S. Congress), during his candidacy.

Judge Montgomery began her analysis of the restrictions upon Wersal’s proposed endorsements, by quoting the discussion of “compelling government interests” by the U.S. Court of Appeals for the Eighth Circuit in White II:

A clear indicator of the degree to which an interest is “compelling” is the tightness of the fit between the regulation and the purported interest: where the regulation fails to address significant influences that impact the purported interest, it usually flushes out the fact that the interest does not rise to the level of being “compelling.” If an interest is compelling enough to justify abridging core constitutional rights, a state will enact regulations that substantially protect that interest from similarly significant threats.
….

The court … considered whether the partisan-activities clause was narrowly tailored to address this interest. It found that to the extent that the clause sought “to keep judges from aligning with particular views on issues by keeping them from aligning with a particular political party, the clause is . . . ‘barely tailored’ to affect any interest in impartiality toward [litigants]….” [I]n cases where a political party is a litigant, the court found that “recusal is the least restrictive means of accomplishing the state’s interest in impartiality articulated as a lack of bias for or against parties to the case.” Id. Similarly, recusal is the best way of serving the interest of protecting the appearance of bias in such situations. Therefore, the court found the partisan-activities clause unconstitutional.

Applying these standards, Judge Montgomery upheld the endorsement restriction of the Code because “a legitimate impartiality concern is created when [Wersal] endorses a candidate who may come before him in a judicial capacity.”

With all due modesty, to my mind, that conclusion seems particularly vulnerable to attack on appeal. If, as the Eighth Circuit reasoned in White II, recusal is a sufficient cure for the rare occasion in which a political party that endorsed a judge, later appears before the same judge as a litigant; surely, recusal is sufficient remedy for the even more remote possibilities that a Member of Congress (in the case of Wersal’s proposed endorsement of Michele Bachmann) or a fellow Supreme Court Justice (if Tim Tingelstad were successful) are to appear before the judge as litigants.

Now it may well be, as Judge Montgomery forcefully points out, that judicial candidate endorsements of candidates for County Attorney or Sheriff may present problems for which later (and very frequent) recusals are simply not sufficient. Yet, it bears mentioning that this is not Wersal’s claim – he wants to endorse folks who are not at all likely to be litigants. Moreover, sustaining a broad ban on endorsements on those grounds seems to flip the traditional First Amendment analysis: To avoid unconstitutional over-breadth, a speech-curtailing regulation must be “narrowly-tailored” to meet compelling needs; not merely be appropriate in some other circumstances.

Perhaps more ominous still, as I noted here, a divided Minnesota Supreme Court recently approved amendments to the Code of Judicial Conduct that authorize state court judges to solicit and receive campaign contributions from fellow judges; provided that the judge who makes the solicitation “does not exercise supervisory or appellate authority” over the would-be donor judges. Thus, after July 1, one could imagine the Board of Judicial Standards being obliged to argue that it is wholly proper for Supreme Court candidate Gregory Wersal to give a $200 check to Supreme Court candidate Tim Tingelstad’s campaign committee (and presumably, for Tingelstad’s committee to publicize this fact widely to others in fundraising mailings), but that Wersal should be subject to sanctions if he publicly urges Tingelstad’s victory on Election Day.

While I am not a betting man, I think that such a scenario is a Twister-like tangle that the U.S. Court of Appeals for Eighth Circuit is unlikely to indulge. And reflecting that tomorrow is another day, I shudder over the possibility of a new $1,619,129.06 attorney fee petition.

Courtesy of Minnesota Lawyer, Judge Montgomery’s complete analysis is accessible here.

Our Ratings Wars: Court Puts Advisory Committee to Work on Courtroom Camera Pilot Project

2009-02-13T17:48:00.012-06:00

Today, a divided Minnesota Supreme Court directed the Advisory Committee on the General Rules of Practice to “recommend draft rules establishing a pilot project on cameras in the court that includes … effective mechanisms for measuring the impact of: cameras on the proceedings and on the participants before, during and after the proceedings, and the financial impact of both the pilot project and study, and the ongoing administration of cameras in the courtroom ….”

Associate Justice Alan Page dissented from the Court’s charge to the Advisory Committee, arguing that the “right to due process and a fair trial before an impartial tribunal militate against expanding the use of cameras in our trial courts.” “An issue raised but not fully considered by the advisory committee,” continued Justice Page, “was the impact that the expanded use of cameras in our trial courts would have on people of color who use our judicial system.... [T]he expanded use of cameras will do nothing to assist in the elimination of racial bias from our judicial system and will, in fact, exacerbate the problem."

In my own view, the public would learn more, the overall level of practice would be improved, and Justice Page's critique would be met (for a time, anyway), if the Court made dissemination of audio or video recordings of Court of Appeals arguments a higher priority than electronic access to District Court proceedings. And while there is a genuine concern as to whether there is an actual demand for these materials (other than by me, of course); that issue, it seems, is apart from whether us viewers would be better off. I think that we would be. As successful as the Supreme Court’s collaboration with Twin Cities Public Television has been (see here), extending webcam coverage to other courtrooms in the Judicial Center would be a real advance. We'd learn a lot.

Yet, because Boston Legal has a far broader audience than America and the Courts, the Court was obliged to tackle the thorny issue it was presented. The Justices' analyses, and the accompanying Order, are accessible here.

Session Update: Bills for Administrative Lawyers to Note (and Watch)

2009-02-11T20:15:00.004-06:00

HF 347 (Lenczewski) Repeals the Mandatory Retirement Age for Administrative Law Judges.

HF 385 / SF 215 (Anderson, B. / Koch and Dille) would establish a Board of Oversight of Human Services Appeals to review “challenges by aggrieved parties to the commissioner's final orders from fair hearings and contested case hearings under chapter 245, 245A, 245B, 245C, 252, 253B, 256, 256B, 256C, 256D, 256J, 256L, 257, or 626 ….”

SF 532 (Rest, Lourey and Robling) would authorize enrolling for, and receipt of, agency rulemaking notices by electronic mail.

SF 563 (Moua, Betzold, Higgins and Olson) would authorize alternate methods of receiving child testimony in a "trial or hearing before a court or state agency having judicial or quasi-judicial powers, other than a criminal proceeding."

SF 574 (Dahle) provides that the Minnesota Public Utilities Commission could “require the public utility to refund to its customers, in a manner approved by the commission, any revenues the commission finds were collected as a result of the unlawful conduct."

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

2009-01-20T12:37:00.006-06:00

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

2009-01-15T17:52:00.006-06:00

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

2009-01-15T07:18:00.003-06:00

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

2009-01-13T18:19:00.006-06:00

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

2009-01-08T22:02:00.003-06:00

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

2009-01-03T19:10:00.015-06:00

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.

Sierra Club v. EPA: A Wider Doctrine on the Time to File Rulemaking Challenges?

2008-12-24T07:42:00.006-06:00

In an interesting opinion issued last Friday, a divided panel of the U.S. Court of Appeals for the District of Columbia Circuit held that a set of 2006 revisions to certain Clean Air Act rules “constructively reopened” the rules to collateral attack.

The Clean Air Act provides that “[a]ny petition for review under this subsection shall be filed within sixty days from the date notice of such promulgation, approval, or action appears in the Federal Register.” In the case decided on Friday, the EPA argued that the Sierra Club had waived its challenge to certain exemptions from the Clean Air Act emission standards by not challenging the exemptions when they were first promulgated in 1994.

The Sierra Club argued, and a majority of the Court agreed, that the agency’s later revisions to the exemptions “constructively reopened” the rulemaking so as to restart the time period for a proper court challenge. Circuit Court Judith W. Rogers wrote:

Petitioners recount, and EPA does not dispute, that: To avoid creating a “blanket exemption from emission limits,” EPA’s 1994 rule required that (1) sources comply with their [startups, shutdowns, and malfunctions (“SSM”)] plans during periods of SSM; (2) SSM plans be reviewed and approved by permitting authorities like any other applicable requirement; (3) SSM plans be unconditionally available to the public, which could participate in evaluating their adequacy in the permit approval process; and (4) SSM plan provisions be directly enforceable requirements. In the rulemakings challenged here, however, EPA has eliminated all of these safeguards. SSM plans are no longer enforceable requirements, and EPA has expressly retracted the requirement that sources comply with them. EPA also has eliminated any requirement that SSM plans be vetted for adequacy and any opportunity for citizens to see or object to them.
….

Shifting from a regulatory scheme based on a mandatory SSM plan that was part of a source’s Title V permit, which is subject to prior approval with public involvement, to a regulatory scheme with a non-mandatory plan providing for no such approval or involvement but only after-the-fact reporting changed the calculus for petitioners in seeking judicial review, and thereby constructively reopened consideration of the exemption from section 112 emission standards during SSM events.

Dissenting, Senior Circuit Judge A. Raymond Randolph argued that the “constructive reopening” doctrine as announced by the court majority in this case widened the doctrine to new and unwise limits.

Of course an agency may give notice and ask for comment on whether an existing regulation should be modified or repealed or retained, or it may indicate in response to comments that it has reconsidered the regulation. Or an agency may give its regulation new significance by altering other regulations incorporating it by reference. In any one of these situations the 60-day period would begin to run again. But nothing of the sort occurred here. According to Sierra Club, EPA’s rulemakings in 2002, 2003, and 2006 rendered enforcement of the 1994 startup, shutdown, and malfunction regulations more difficult. Even if true, that could hardly have amounted to agency “action” re-promulgating the 1994 regulations, which is what § 7607(b)(1) requires as a prerequisite for judicial review….
….

In Kennecott Utah Copper Corp. v. Dep’t of Interior, 88 F.3d 1191, 1214 (D.C. Cir. 1996), regulated industries sought judicial review of an allegedly invalid regulation after changes in related regulations made its enforcement more likely and more punitive. Sierra Club has no comparable financial incentives capable of assessment by a court; instead, it presumably has an incentive to challenge any regulatory change that might lead to increased pollution. The majority’s rationale implies that each time EPA changes an emissions regulation, it risks subjecting every related regulation to challenges from third parties. Such a regime, and the instability it generates, is intolerable. Perhaps that is why, until today, we have limited the constructive reopening doctrine to cases involving regulated entities.

The panel’s complete set of analyses are accessible here.

RTO Government Affairs Expenses Survive “Compelled Speech” Challenge

2008-12-20T21:38:00.006-06:00

In an interesting opinion 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 three northeastern utilities to the tariff sheets submitted by their Regional Transmission Organization – the ISO New England, Inc.

Regional Transmission Organizations – RTOs – consolidate operational control over electricity transmission services within a particular geographic area and are obliged to submit tariffs for review by the Federal Regulatory Energy Commission. The utilities complained that FERC should have disallowed $2 million in governmental affairs expenses that ISO New England sought to recover from its customer-utilities. The utilities argued that the Commission’s acquiescence to the recovery of such expenses obliged them to underwrite speech on legislative and regulatory issues with which they did not agree; in violation of the First Amendment.

Disagreeing, the panel held that permitting recovery of such expenses by the larger organization did not violate the associational or free speech rights of the utilities. As the panel reasoned, “a government may adopt rules making it very costly for a person to avoid membership in a group, and yet allow the group to charge members (including dissenters) for the costs of expressing views ‘germane’ to the group’s mission.”

The panel’s complete analysis is accessible here.

A New Code of Judicial Conduct! (Minus the Most Worrisome Parts)

2008-12-18T17:39:00.013-06:00

By way of an Order issued today, the Minnesota Supreme Court promulgated a revised Code of Judicial Conduct that will take effect on July 1, 2009.

The revised Code sets forth “overarching principles of judicial ethics that all judges must observe” and includes specific prohibitions with respect to extra-judicial activities – most notably, standards for ethical conduct during campaigns for judicial office.

Significantly, the Court jettisoned recommendations that the Code of Judicial Conduct punish campaigning for judicial office at any time outside of a two-year interval which precedes an election. Because state court judges in Minnesota typically serve six year terms, I worried that a wholesale ban on campaign activities during two-thirds of this time period would draw the state into expensive civil rights litigation. In written comments submitted in 2007, I urged the Court not to adopt this proposal. It is a real holiday blessing that the Court moved away from such prohibitions when issuing the new standards.

The most surprising addition to the new Code is a special exception to the general ban on judges contributing money “to a candidate for public office.” The exception permits state court judges to solicit campaign contributions from fellow judges; provided that the judge who makes the solicitation “does not exercise supervisory or appellate authority” over the would-be donor judges. See, Canons 4.1 (a) and 4.2 (b)(3) (c). It is not clear from the accompanying Comment how this exception to the general ban on judges contributing to political campaigns is helpful.

Lastly, it is worthy of note that two Justices (G. Barry Anderson and Helen Meyer) withheld their votes from the final plan. In dissent, Justice G. Barry Anderson argued that under the new Code the Board of Judicial Standards would be asked to operate as a “campaign finance regulatory agency;” a mission for which it was not now equipped. He wrote:

As a practical matter, I fear we have asked the underfunded Board on Judicial Standards, which enforces the Minnesota Code of Judicial Conduct, to undertake a task for which it is ill-equipped and without experience….
….

I question the wisdom of kicking the judicial disciplinary machinery into high gear for minor and inadvertent violations of the contribution limits but it might be equally problematic to give the Board on Judicial Standards, and its executive secretary, discretion to decide what is, or is not, a de minimis violation of those standards.

Justice Anderson speaks with genuine authority on the topic of “operating a campaign finance regulatory agency” – having run the Minnesota Campaign Finance and Public Disclosure Board, as its Chairman, in 1997 and 1998.

The entire Order, dissent, and accompanying Code text is accessible here.

Minnesota U.S. Senate Recount: Oral Argument Video Posted to the Web

2008-12-18T07:15:00.001-06:00

And is accessible here.

Coloring Outside of the Lines: Is State Law a Boundary on VRA Remedies?

2008-12-17T22:52:00.008-06:00

In a genuinely fascinating opinion issued yesterday, a divided panel of the U.S. Court of Appeals for the Eighth Circuit upheld a lower court’s order abolishing the city council ward system in Martin, South Dakota and replacing it with an at-large council system.

Two Native American voters in Martin had earlier sued to set aside the city’s ward system as violative of Section 2 of the Voting Rights Act. These voters asserted that the aldermanic system in Martin diluted Native American votes so that none of the candidates preferred by their community were able to win elective office. For its part, the City replied that it was simply not possible to draw a single-member council district in Martin that included a majority of Native American voters.

Agreeing that it could not draw such a district itself, the trial court ordered that the ward system of electing city council members be supplanted with an at-large election system. Presumably, by “bullet balloting,” Native American voters in Martin could then elect at least one member (and perhaps more members) to the city council. This innovation, however, would be the only at-large city council election system in South Dakota; that state's law does not otherwise provide for such an arrangement.

A divided appellate panel affirmed the lower court’s entry of the injunction, concluding that the remedy did not “intrude on state policy any more than necessary” to implement the Voting Rights Act. Dissenting, Circuit Judge Steven M. Colloton wrote:

To the extent the plaintiffs made a sufficient showing to justify a finding of liability for vote dilution under § 2, this showing required proof that Native Americans were “sufficiently large and compact to constitute a majority in a single-member district.” Thornburg v. Gingles. If the record supports that conclusion (the so-called first Gingles precondition), then it was unnecessary for the district court to impose a remedy contrary to South Dakota law. The appropriate remedy would have been to create a district (or ward) in which Native Americans constitute a majority. The district court concluded, however, that it “could not draw a three-ward plan that contains an effective majority of Indian voters in one ward.” If this conclusion is correct, then there was no liability for vote dilution in the first place, because the first Gingles precondition was not satisfied. Accordingly, I would remand the case to the district court with directions either to revisit the finding of liability and dismiss the case if the plaintiffs have failed to meet the first Gingles precondition, or to implement a remedy that conforms to South Dakota law by creating a ward in which Native Americans constitute a majority.

The complete set of analyses in the case, Cottier v. City of Martin, are accessible here.

Not Everything is a Potential Blog Post!

2008-12-15T22:03:00.017-06:00

How true....

There are lots of interesting articles and legal news items that cross my desk, but for one or another reason are simply not matters that oblige a separate post. Presumably, that is why there is Twitter.

Twitter is an online posting site where short messages (of no more than 140 characters) can be shared with subscribers and a wide range of others. It's raison d'être is to facilitate short, frequent updates with one's network.

So, as an experiment, I will post to Twitter (and simultaneously to the bottom right hand sidebar of this blog under "My Reading Table,") internet links to some of the worthwhile items that I am reading, but which are not otherwise summarized in more detail on these pages.

So, hopefully, there will be more to browse. More to share. And more to learn.

In a One-Horse Open Sleigh (Hey!): Podcasts for Administrative Lawyers

2008-12-14T10:50:00.009-06:00

Mindful that many of the readers of these pages will be going over the river and through the woods to Grandmother’s house, I have listed a few items that might be worth downloading for your holiday travels.

n A panel discussion reflecting upon the 25th anniversary of the landmark case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. The discussion, held at the National Convention of the Federalist Society, and featuring University of Minnesota Law School Associate Professor of Law, Kristin E. Hickman, is accessible here.

n The American Constitution’s Society’s briefing on the U.S. Supreme Court case of Pleasant Grove City, Utah v. Summum. (By way of background, Pleasant Grove City owns and displays a number of monuments in a municipal park. Respondent Summum sued in federal court contending that because the city had accepted monuments donated by local civic groups, the First Amendment obliged the city to accept and display Summum's “Seven Aphorisms” monument as well. The district court denied Summum’s request for a preliminary injunction, but a panel of the U.S. Court of Appeals for Tenth Circuit reversed this decision, holding that the city must immediately erect and display Summum’s monument.) The panel discussion, which occurred one week prior to the November 12 argument at the High Court, is accessible here.

n The Indiana Department of Education has recently posted a set of downloadable real player recordings from its October 15, 2008 conference on Response to Intervention. RTI, a concept that is familiar to special education lawyers, is a set of assessment and intervention processes that identify, monitor and address student academic difficulties. Videos from the wide-ranging set of conference presentations that occurred on that day are accessible here.

n On Wednesday of this week, the American Enterprise Institute hosted a panel discussion entitled Regulation and Oversight: Advice for the New Administration. Audio and video from this panel discussion is accessible here.

Timing is Everything: Panels Explain Deadlines for Final Action

2008-12-11T17:47:00.023-06:00

Within the last four weeks, the Minnesota Court of Appeals has twice addressed the question of when an agency head must make a final decision upon a contested case record – both times providing the instruction in unpublished opinions.

As readers of these pages will recall, Minnesota law provides that “[u]nless otherwise provided by law, the report or order of the administrative law judge constitutes the final decision in the case unless the agency modifies or rejects it … within 90 days after the record of the proceeding closes ….”

In mid-November, an appellate panel held that unless another date is set by the agency, a final decision is due within 90 days of the last presentation of arguments to the agency head. If the agency’s decision is not forthcoming within that period, continued the panel, the Administrative Law Judge’s decision below becomes final.

On Tuesday, a separate panel, in a different case, added other gloss. In “matters relating to zoning,” a final decision by the agency head is due within 60 days of the deadline for filing exceptions and arguments to the Administrative Law Judge’s report. As the panel reasoned, a narrowing of the timeline is required because Minn. Stat. § 15.99 provides that “an agency must approve or deny within 60 days a written request relating to zoning … [and that failure] of an agency to deny a request within 60 days is approval of the request.”

Read together, the opinions make clear that these are uncertain times for agency heads. This is so because the boundaries of “the 60-day rule” are not clearly marked. Final agency action is due within 60 days on “a written application related to zoning, septic systems, watershed district review, soil and water conservation district review, or the expansion of the metropolitan urban service area, for a permit, license, or other governmental approval of an action.” Arguably, this description could include a wide array of agency decisions from contested cases.

The opinion in the first case referenced above is accessible here. The opinion in the second case is accessible here.

Until the Cows Come Home: Stray Voltage and the Filed Rate Doctrine

2008-12-10T21:06:00.008-06:00

While the Minnesota Supreme Court continues to consider the reach of the filed-rate doctrine as a bar to judicial consideration of claims filed by ratepayers against their utilities (as I noted here and here), yesterday, a panel of the Minnesota Court of Appeals touched upon this same question in a parallel and unrelated case.

In a rigorous and very scholarly opinion by Judge Harriet Lansing, the panel held that the filed-rate doctrine barred claims for injunctive relief, but would not foreclose court consideration of certain other claims for monetary relief. At issue in the specific case was whether a set of dairy farmers could maintain tort claims against their electric utility for the damage to their farm’s milk production. The farmers claimed that the utility negligently permitted excessive stray voltage to escape from a transmission line that traversed the farm - damaging their cows and suppressing the production of milk.

Concluding that the proper resolution of such claims were not within the special competence of the Minnesota Public Utilities Commission, but instead “inherently judicial,” Judge Lansing wrote:

First, the MPUC does not have the capacity to address the Siewerts’ claims for compensatory damages in tort, because nowhere in the enabling statutes does the legislature give it authority to provide this type of damages.
Second, even acknowledging the relative complexity of electrical-distribution systems, resolving the issues of fact presented by the Siewerts is not beyond “the conventional experience of judges.”
And, third, the resolution of fact issues underlying the Siewerts’ claims does not require “the exercise of administrative discretion” or create an administrative need for “uniformity and consistency.” Deciding whether specific facts meet the elements of a tort claim is not uniquely suited to an administrative agency, but instead is regularly decided by juries. The claims do not turn on a safety standard that requires definitive uniformity. The common-law principles underlying resolution of negligence actions will provide the necessary uniformity and consistency.

The panel’s complete analysis is accessible here.

Senator Craig, the First Amendment and Our Collective Struggles for Modesty

2008-12-09T17:43:00.002-06:00

In an unpublished opinion issued earlier today, a panel of the Minnesota Court of Appeals turned away dual challenges to the August 2007 conviction of U.S. Senator Larry Craig (R – Idaho) on charges of disorderly conduct.

The appellate panel denied both Senator Craig’s request to withdraw his earlier guilty plea as well as the Senator’s and the American Civil Liberties Union’s challenges to the constitutionality of Minnesota’s disorderly conduct statute.

On the constitutional claims, the panel “assume[d] without deciding” that Senator Craig’s gestures underneath a public bathroom divider merited First Amendment protection as expressive “speech;” going on to hold that even if the signals were speech, the disorderly conduct statute was sufficiently detailed and necessary to pass constitutional muster.

While agreeing that courts should, whenever possible, avoid deciding constitutional questions, I wondered whether the public would have benefitted more if the panel had addressed the question of whether Senator Craig’s bathroom entreaties qualified as protected speech.

While there are solid arguments that such communiqués are outside of First Amendment protections, such a conclusion is not as sturdy or as widely shared as one might guess. Before the District Court below, for example, the ACLU argued that Senator Craig’s conviction was void "because individuals engaging in consensual sex in a public restroom stall have a reasonable expectation of privacy ….” As to this point, the District Court replied that “depending on the facts of any particular case, that may be true, [yet] the acts alleged in this case are the solicitations ….” Before the District Court, and still today, there is a real tussle over whether the Seantor's conduct is protected speech.

Likewise important, because the appellate panel assumed that the Senator’s gestures qualified as speech, a jump to the second step in the legal analysis presumably placed upon the government the burden of establishing a compelling need and a narrow tailoring of any restrictions in the disorderly conduct statute. The government cleared those hurdles in what appeared to be short work; but against such a murky legal backdrop, I wondered whether taking the questions in that order was the right course.

Thus, without having any particular answer in mind, it is fascinating to ask: Was the court acting more modestly by assuming First Amendment protection for the Senator's "message;" or would it have pursued an even smaller agenda if it addressed first the question of hand signals as "speech"? Which is the more the modest and limited approach?

Similarly, mindful that the appellate court would face a “constitutional issue” regardless of how it answered this first question, is the propriety of a statute a better question for it to tackle than the nature of "speech"?

The panel’s complete analysis is accessible here.

Senator Craig’s own statement on the panel’s ruling is accessible here.

Bagenstos: Courts' Focus on Process Doesn’t Aid Disabled Students Much

2008-12-08T17:47:00.010-06:00

Among the most interesting posts to the Social Science Research Network in recent weeks is a draft article by Professor Samuel R. Bagenstos of the Washington University School of Law: “Where Have All the Lawsuits Gone? The Shockingly Small Role of the Courts in Implementing the Individuals with Disabilities Education Act.” In this draft, Professor Bagenstos argues that when assessing the role of the courts in implementing the Individuals with Disabilities Education Act, “[p]erhaps the most surprising empirical conclusion is that courts do not have much of a role in implementing the statute.”

Bagenstos points out that the great majority of special education-related litigation is concentrated in just 6 jurisdictions – with the remaining federal court districts handling an average of just 4 special education-related suits each year.

Moreover, as Bagenstos reasons, the applicable standard of review makes for more exacting scrutiny of procedural matters than it does of the substantive benefits conferred upon disabled children. Notes Bagenstos:

Under the [Board of Education v. Rowley] test, the instruction school districts provide to children with disabilities must satisfy all of the statute’s procedural requirements for the development of an IEP, but it need meet only a very minimal substantive standard: It must “permit the child to benefit educationally from that instruction.” The Court specifically rejected the notion that the instruction provided to children with disabilities must provide children with disabilities the same educational benefit as other children receive—or even an equal opportunity to benefit.
….

The more wide-ranging the case, and the more process-oriented the remedy, the less likely is litigation to be successful in achieving desirable outcomes.

Moreover, Bagenstos disclaims that the current focus on process-oriented matters is an “inherent limitation of courts and judges,” but rather follows from a set of legislative and regulatory policy choices.

A draft of Professor Bagenstos’ article is accessible here. Also, a still-earlier lecture and powerpoint that he rendered on the same topic, at a day-long education conference hosted by the American Enterprise Institute, is accessible here. (Professor Bagenstos' remarks begin at the 4 hour and 22 minute point in the AEI recording – but the entire series of panel discussions is pretty interesting, too.)

Speaker Kelliher Unveils Slimmer Committee Structure

2008-12-08T17:46:00.005-06:00

On Friday, Speaker of the House Margaret Anderson Kelliher unveiled a slimmer and more compressed committee structure for the Minnesota House of Representatives.

Among the features of the new committee structure is a retooling of the Biosciences and Emerging Technology and the Local Government and Metropolitan Affairs committees into divisions of other committees; a shuttering of many of the smaller policy subcommittees; and the splintering of civil justice and criminal justice policy jurisdictions between two separate policy committees.

As to this last innovation, Republican and Democratic majorities have drawn the committee jurisdictions both ways in recent years – with civil and criminal justice issues at times being considered in the same committee, and in other years, split between two different panels.

A copy of the Speaker’s announcement of the new committees, and their respective Chairmen and Chairwomen, is accessible here.

Chanukah Arrives Early This Year

2008-12-04T17:46:00.008-06:00

With grateful thanks to the very generous staff of the Minnesota State Law Library, who named Within the Scope its "Blog of the Month."

As someone who is a very frequent visitor to the Law Libray's collection in the Judicial Center, and a great admirer of the materials and services that the Library offers, this is a real honor.

It is like all of the days of Chanukah were rolled into one....

Chief Justice Links Courts Funding with an Orderly Society

2008-12-04T17:37:00.004-06:00

Following the announcement earlier today by state forecasters that Minnesota faces a budget deficit in Fiscal Year 2009 of $426 million, and is predicted to experience a $4.847 billion shortfall during Fiscal Years 2010-2011, Chief Justice of Minnesota Eric J. Magnuson issued an important statement. In a letter made public this afternoon, the Chief Justice details how funding for the state courts system is not just another budget line item; but rather a constitutional imperative and indispensible to “an orderly society.”

The Chief Justice’s statement, “Funding Core Government Services Should Be Top Priority,” is reprinted in full below:

"Today's state budget forecast underscores the most important task ahead for legislators - funding core government functions with limited resources. This includes the justice system. Minnesota's courts not only resolve two million cases a year for Minnesota's citizens and businesses, they protect public safety, and play a key role in preserving the rule of law and an orderly society.

To date, Minnesota's courts have proven to be some of the most innovative and efficient in the nation, employing cutting-edge management and case processing strategies. We continue to work closely with our partners in the justice system to identify new ways to improve efficiency. The courts will continue to share in the sacrifices being made at all levels of government. But we cannot innovate our way out of the sizeable funding shortfall the judiciary currently faces. The vast majority of our budget funds the judges and staff who operate a system already straining under the workload. By design, we are a personnel-dependent branch of government with unique constitutional obligations to resolve whatever disputes are brought to our doors.

Of great concern to me is the fact that during economic downturns, court business goes up as conflicts and crime tends to increase. The Minnesota Judicial Branch is already at a tipping point, operating short nine percent of our staff need and having cut services dramatically throughout the state. The very last thing we can afford during a time of unprecedented national and state financial crises is a further cut in funding to the court system. The consequences for public safety, our constitutional obligations, and the people we serve are too great.

We look forward to working with the Governor and the Legislature in the upcoming session to preserve the effective operation of this core government function."

Eighth Circuit: Administrative Exhaustion First, Jury Later

2008-12-02T20:19:00.001-06:00

In an interesting published opinion issued on Monday, a panel of the U.S. Court of Appeals for the Eighth Circuit turned aside the challenge of a set of Arkansas landowners. The landowners challenged the requirement that they first present their takings claims for review by a state administrative tribunal - the Arkansas State Claims Commission - before being permitted to proceed in federal court.

The landowners argued that the exhaustion requirement violated constitutional guarantees because the state administrative process did not afford the landowners with access to a jury on their claims. Disagreeing, the appellate panel held that only the later federal suit, following exhaustion of administrative remedies, was an “action at law” where the right to a jury trial was guaranteed.

The panel’s complete analysis is accessible here.

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

2008-11-28T18:44:00.004-06:00

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.

A Big Day at the Capitol: Three Short Stories

2008-11-25T21:30:00.009-06:00

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.

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

2008-11-21T17:44:00.006-06:00

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.

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

2008-11-20T17:39:00.006-06:00

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….)

Judge Lindman Orders the Release of Absentee Ballot Data

2008-11-19T22:45:00.003-06:00

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

2008-11-19T17:39:00.003-06:00

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.

Paulsen: Written Textualism is the Sole Approach for Interpretation

2008-11-18T07:05:00.002-06:00

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.

Free Speech and Free Markets: Where Should They Cross?

2008-11-17T07:01:00.013-06:00

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.

In Memoriam: Former Chief Judge Johnson Passes Away

2008-11-16T12:06:00.009-06:00

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.

What is "Inherently Judicial" is Inherently Difficult

2008-11-13T22:57:00.006-06:00

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.

Hannah and Her Zingers

2008-11-11T09:57:00.007-06:00

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.”

Meow.

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.

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

2008-11-09T18:15:00.005-06:00

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.

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

2008-11-07T17:39:00.009-06:00

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.

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

2008-11-05T17:44:00.012-06:00

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.

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

2008-11-03T12:10:00.002-06:00

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.

In Re: Family Room Messes

2008-10-30T06:46:00.001-05:00

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.

President: Prove Bi-Partisanship by Confirming My Nominees

2008-10-29T18:09:00.009-05:00

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.

Panel: Schizophrenic Man with HIV a Danger to the Public

2008-10-28T17:35:00.004-05:00

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.

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

2008-10-23T17:26:00.002-05:00

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.

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

2008-10-22T17:32:00.008-05:00

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.”

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

2008-10-18T10:57:00.014-05:00

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.

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

2008-10-13T22:47:00.001-05:00

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

2008-10-13T22:38:00.017-05:00

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?

Anatomy of a "Hard Look"

2008-10-03T17:38:00.002-05:00

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.

Annual Rulemaking Seminar a Triumph

2008-10-01T22:12:00.005-05:00

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.

OAH Celebrates its One Year at the Stassen Building

2008-09-24T20:02:00.003-05:00

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.

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

2008-09-21T17:25:00.009-05:00

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.

Constitution Day and the Early Predictions

2008-09-17T17:45:00.002-05:00

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?

2008-09-17T07:34:00.002-05:00

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.

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

2008-09-14T12:15:00.004-05:00

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

2008-09-14T11:21:00.004-05:00

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.

House Research Updates its Rulemaking Summaries

2008-09-12T17:42:00.006-05:00

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?

2008-09-12T07:44:00.003-05:00

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.

Seizing the Moment: Investigations and Pre-Hearing Deprivations

2008-09-07T18:10:00.016-05:00

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.

Latching on to Errors and Omissions in Ballots

2008-09-06T21:35:00.011-05:00

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.

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

2008-09-04T19:49:00.017-05:00

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.

Dueling Claims to Plain Meaning Divide High Court

2008-09-01T11:16:00.002-05:00

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.

If You Only Read a Handful of Articles This Year … Read These ….

2008-08-31T11:28:00.022-05:00

In the latest issue of the Minnesota State Bar Association’s Public Law Newsletter, published on Friday, I included a summary of some important research coming out of the University of Chicago.

Relying upon a database of 4,500 Court of Appeals decisions that have been issued since 1995, Professor Cass Sunstein and his team argue that while the ideology of judges has an important effect on the outcome of decided cases, the ideology of a judge’s colleagues is a better predictor of a judge’s vote in a particular proceeding than the judge’s own views. Sunstein asserts that this is because dissenting opinions on a three-judge panel are likely to be both futile and burdensome to produce – what Sunstein calls “a difficult combination....” As he writes:

Dissenting opinions might also cause a degree of tension among judges, a particular problem in light of the fact that judges must work together for many years. According to informal lore, a kind of implicit bargain is struck within many courts of appeals, in the form of, “I won’t dissent from your opinions if you won’t dissent from mine, at least not unless the disagreement is very great.” All of these points help to account for the great power of “the ideology of one’s colleagues” in producing judicial votes.

Comparing actual panel votes against a stereotypically liberal position (and the numbers likewise work in reverse if you were to measure panel members against the stereotypical conservative position), Sunstein asserts that the greater the concentrations there are of particular types of appointees on an appellate panel (whether Republican or Democrat) the greater the movement there will be away from a neutral position. Thus, the more unified panels of Republican appointees there are, the more conservative results; the more unified panels of Democratic appointees there are, the more liberal the outcomes.

In fact, Sunstein and his authors make the claim that, if anything, the effects that they detail are understated. The authors claim that experienced appellate lawyers already have an informal version of their findings in their head; and that when advocates are facing unified panels of judges with an ideologically opposite point of view – those cases settle. The authors argue that if every appeal went all of the way through the process to a written decision, the effects that they document would be larger.

Judge Richard Posner, of the U.S. Court of Appeals for the Seventh Circuit – someone who certainly knows about the behavior of appellate court judges – apparently agrees. In his own study, Judge Posner writes about what he calls the “triple-whammy” that occurs when a conservative appointee replaces a more liberal judge. Judge Posner says:

There is thus a triple effect of a change in the ideological composition of a court when a member of the minority bloc on the court (say judges appointed by Democratic Presidents) is replaced by a member of the majority bloc: The majority becomes larger and therefore the court becomes more conservative irrespective of any group effects; the members of the majority become more conservative than they were when there were fewer of them; and the minority becomes more docile—more likely to go along with the majority than before.

While it may well be that the pressures of collegiality on appellate panels trump the personal ideology of the judges (and readers of these pages may well reasonably differ on whether that is a good thing or a bad thing), but these studies goes on to suggest that these pressures have genuinely substantive impact on the outcomes of cases. In Administrative Law, for example, Sunstein posits that there is a cohort of close cases – perhaps as many as 1 in every 6 – where a decision on whether the agency’s action is sustained or not, is a function of the composition of the appellate panel.

As someone who believes that it is “emphatically the province and duty of the judicial department to say what the law IS,” and that it should be a trifle who the appellate panel members ARE, I find these studies chilling. Are we really at the point where we say: “Tell me who has been assigned to the three-judge panel and I’ll tell you whether or not the agency acted lawfully?”

Whatever your view, this is a literature as to which every lawyer should be familiar.

A copy of my article for the Public Law Newsletter is accessible here. Professor Sunstein’s articles on his findings are accessible here and here. Judge Posner’s study, which points up some of the same findings, using data sets that span back to 1925, is accessible here.

If you only read a handful of scholarly articles this year; be sure to read these.

Election Reporting, Yes.… Although Not for the Truth of the Matter Asserted

2008-08-21T21:48:00.003-05:00

In an interesting opinion issued late last month, a unanimous panel of the U.S. Court of Appeals for the Eighth Circuit upheld a trial court’s exclusion, as inadmissible hearsay, certain election-related reports made by the Missouri Secretary of State’s office.

The U.S. Government had sued the State of Missouri, seeking orders that would compel the state to upgrade the processes by which it culls deceased and ineligible persons from Missouri's voter rolls.

Earlier, in 2005, as part of its preparation for a biennial report to Congress on election matters, the federal Election Assistance Commission sent survey forms to Missouri, requesting data regarding the performance of local election officials. When state officials sought an extension of the time to compile this data, the EAC “denied Missouri’s request for an extension of time and told Missouri to do the best it could.”

When the federal government later sought to introduce these reports as evidence of Missouri's failure to meet federal election standards, the district court received the survey responses to demonstrate that Missouri had notice of possible election-related problems, but did not admit the responses for the truth of the matters asserted in the reports. The district court found that the statements about the performance of local election officials were hearsay. In its appeal, the United States challenged this ruling.

Sustaining the trial court’s limited use of the reports, the panel held that the state’s responses to the EAC survey did not qualify for an introduction as an admission of a party opponent, an adoptive admission, a public record or as a “record of a regularly conducted activity” of the state.

The panel’s complete analysis – including a worthwhile discussion of the Elections Clause of the U.S. Constitution – is accessible here.

Minnesota …. Also the Land of Lincoln

2008-08-21T20:30:00.007-05:00

Today, the Minneapolis-based Center of the American Experiment released its latest symposium of essays – Learning from Lincoln: Principle and Pragmatism, Getting the Balance Right.

Individually, and collectively, these essays touch upon President Lincoln’s special brand of statecraft and the methods that he used to overcome practical challenges.

As shown in the accompanying photograph, which was taken from inside the chamber of the Minnesota House of Representatives, Lincoln’s work, presidency and example still forms an important backdrop to policy discussions in Saint Paul. Indeed, Lincoln, who himself was a prairie legislator for four terms, remains something of a patron saint to all of those who struggle with difficult questions at the State Capitol. In part, this is because any Minnesota Representative who vies for recognition from the Speaker of the House, first meets Lincoln’s eyes, as the President gazes back from the portrait above the presiding officer. I am certain that over the years, recalling how Lincoln remained decorous and calm in times of bitter conflict, has helped his successors here to choose better and softer words in floor debates. Lincoln reminds us of our best hopes and our better natures. He certainly did for me.

You can see how each of the symposium authors addressed Lincoln’s continuing leadership legacy – including my submission on page 28 – from this link here.

"Making Your Case": The Gift for a Lawyer You Love

2008-08-15T07:16:00.012-05:00

This past weekend I had the occasion to fly home to Minnesota from the East Coast, by way of a discount airline carrier. With this particular carrier, comparatively low fares were combined with a bewilderingly long layover in Atlanta before passengers and crew could depart for the prairie.

Thankfully, however, someone who loves me sent me on this trip with a copy of Justice Antonin Scalia and Bryan Garner’s new book: Making Your Case: The Art of Persuading Judges. My layover flew by in an instant.

This is a profoundly useful book – and my great wish was that I could have had such a volume when I was starting out in the practice of law two decades ago.

The book is useful because the authors practice precisely what they preach to every other lawyer: It is crispy written, with vivid language that moves directly to the points the two hope to make.

Moreover, the recommendations that the authors make on style and tone for professional advocacy ring very true. Early on in my career, I learned some of these same lessons the hard way – by doing the opposite and failing to persuade the tribunal.

For the junior lawyer who is just starting out on his or her career, the book’s recommendations could represent an end run around 10 years or more of searing education in the School of Hard Knocks. Indeed, for every professional who cares about advocacy, Making Your Case is a volume that is worth reading and studying closely.

Mindful that some readers of these pages would rather eat nails than remit a dime in royalties to Justice Scalia, I recommending that these readers do themselves a favor and borrow the book from their favorite library.

Or ask to borrow my copy. Although not for long….. This is a book that is worth reading again and again.

Damn, This Traffic Jam. It Hurts My Car to Go So Slow.

2008-08-13T17:31:00.003-05:00

The City of St. Paul has released its Traffic Management Plan for the downtown area during the upcoming Republican National Convention. The plan will begin after the evening rush hour on Friday, August 29, and will end by Saturday, September 6.

Current information on Capitol-area road closures during the Convention includes the exit from Route 94-East to 5th Street and the exit from Route 35E to Kellogg Boulevard.

A map of the security perimeter around the convention site is accessible here and some additional specifics on the City's Traffic Management Plan are accessible here.

Construing Statutes and the Art of the Possible

2008-08-13T07:18:00.005-05:00

In an interesting opinion issued yesterday, a panel of the U.S. Court of Appeals for the Eighth Circuit turned away the challenge of an Iowa landowner to her exclusion from certain farm payment programs administered by the U.S. Department of Agriculture.

In order to deter the conversion of wetlands, federal law excludes from participation in farm program payments those persons who have been determined by the USDA to have converted wetlands to areas for crop production – penalizing those manipulations of designated wetlands “for the purpose or to have the effect of making the production of an agricultural commodity possible if-- (i) such production would not have been possible but for such action . . . .”

Focusing upon the “possibility” of growing items on her land, the landowner argued that because the areas that the USDA designated as wetlands could have sustained some planting, however small, before she filled them in to support broader production, her actions did not amount to prohibited manipulation of wetlands.

Disagreeing, the panel sustained the agency’s interpretation of the exclusion statute, construing the term “possible” “in a practical sense, treating as conversion those actions that make a wetland more suitable for growing agricultural commodities.” Concluded the panel: “As aptly noted by the district court, Clark’s position, if accepted, would exclude from protection all wetlands that were in any measure farmable prior to manipulation. The USDA described Clark’s position as follows, ‘[Clark’s] construction would mean that, if the land could have occasionally produced one stunted ear of corn or pod of soybeans prior to being filled, there could be no conversion of a wetland triggering the [16 U.S.C.] § 3821 bar on participation in federal farm programs.’ We agree that such a result would be absurd as it would remove from protection vast areas of wetlands.”

The Panel’s complete analysis, including an interesting discussion of Chevron and Skidmore deference for agency interpretations of statutes, is accessible here.

Our Neighbors and Friends: District Court Seeks Comment on Pro Hac Vice Rules

2008-08-12T21:57:00.001-05:00

The United States District Court for the District of Minnesota has circulated for public comment proposed changes to Local Rule 83.5. Under the proposed rules, the District Court would jettison the requirement that “local counsel” be a resident of Minnesota – presumably making appearances by attorneys who reside in Wisconsin or the Dakotas, but who are licensed to practice law in Minnesota, to serve in this capacity.

Comments on the proposed revisions should be provided in writing to the Clerk of Court, or by e-mail to MnFedRules@mnd.uscourts.gov, on or before September 8, 2008. The rules will be adopted by the full Court following consideration of any comments or suggestions received by the Clerk during the public notice period.

The text of the proposed revisions is accessible here.

Hello…. Are You Still There?

2008-08-12T21:37:00.002-05:00

To the regular readers of these pages, please accept my apologies for the drop off in posts recently.

As always, work comes first before blogging – and in recent weeks I had some important writings to complete for my day job.

Also, I was away from my writing desk on a bit of extended travel that I will describe in more detail in subsequent posts. I have some good stories from the road to share with you.

So, if you are still there, please stay tuned … And thanks for checking in.

Minnesota Supreme Court Grants Review of Cost Recovery Case

2008-07-17T12:36:00.006-05:00

In an Order issued this morning, the Minnesota Supreme Court has granted further review of a decision of the Court of Appeals, from May, as to the recovery of certain overhead costs by CenterPoint Energy.

In May, the appellate panel had reversed the decision of the Public Utilities Commission disallowing the recovery of costs that were presented to the Commission after more than a year; holding that the PUC did not “consistently apply the principles that it articulated and applied” in two earlier requests to recover costs beyond the one-year limitations period.

The post I made about the decision in May is accessible here, and the Court of Appeals' decision below is accessible here.

Legislative Reform: Which Do You Prefer, an Army of One or the Committee of the Whole?

2008-07-12T07:31:00.021-05:00

I have followed with interest the legislative reform discussions now being undertaken by the House Governmental Operations, Reform, Technology and Elections Committee. This week, the Committee held the first of three hearings on potential changes to the parliamentary rules of the House. Among the topics being discussed are the practices for referring bills to committees, the length of legislative debates and the amendment process. (A video of the Committee’s deliberations on this topic is accessible here.)

I was interested in the subject because, years ago, I was a Vice-Chairman of a predecessor committee and the Chairman of one of its subcommittees. The challenges involved with managing the legislative machinery to productive ends, was familiar to me.

In my view, the pressures points for today’s House Majority are the same that bedeviled the majority that I served way back when – namely: Are the best traditions of the House those that are associated with the ability of each Member to represent his or her constituents as the Member sees fit? Or are the House’s finest hours when it works efficiently as a collective? Stated another way: Do we more closely identify with an “Army of One” or the “Committee of the Whole”?

In Defense of an Army of One: In comparison to other state legislative bodies around our country, the Minnesota House of Representatives and Senate are remarkably open, accessible and transparent places. Only one legislator is required to introduce a bill, offer an amendment, oblige the House to vote first on a minority report, or to make procedural motions to slow the pace of deliberations. In the tradition of Mr. Smith Goes to Washington, one Member of the Minnesota Legislature can make long and very brave stands, if conscience requires it – and I have always thought that this procedural and cultural feature of our lawmaking ultimately makes our state better and a more decent place to live. (In the interests of full disclosure, however, my own “Mr. Smith moment,” and the bi-partisan bollixing that resulted for a time, can still be viewed here at the 30 minute point in the tape.)

An Ode to the Committee of the Whole: I also know what it means to run a legislative committee, and to have the political fortunes of one’s legislative teammates rest, in part, upon the committee timely completing its work. Legislative majorities are held to account if the proverbial trains do not run on time. And one’s record while governing is an important part of the messaging for any majority party at election time.

And so how can these two different and competing institutional interests be reconciled?

In my view, the solution lies in managing the volume of legislation on the agenda. With fewer topics, there is time for detailed reviews and exploring alternatives, while still leaving spacious opportunities for small minorities – even minorities of one – to be heard.

Hearing time during the legislative session is a precious resource. In order to impose some discipline on the range of topics covered, I have always favored using “market incentives” – such as awarding preferences certain Member-designated priority bills or bills that were pre-filed before the start of the legislative session; setting a much earlier deadline for the receipt of agency bills (preferably a date that precedes the legislative session); and having more detailed reviews of, and planning around, the legislation that was pre-filed. By making a set of early choices, I believe that the Legislature can have it all – thoughtful debates and the time to hear from everyone.

Boyd to Lead PUC, Wergin to Help

2008-07-11T17:21:00.003-05:00

Governor Tim Pawlenty announced today that he has appointed Dr. David C. Boyd, to lead the Minnesota Public Utilities Commission.

Boyd, of Lakeville, is a Professor of Chemistry and, before his appointment to the Commission, chaired the Chemistry Department at the University of St. Thomas in St. Paul. He succeeds LeRoy Koppendrayer – who recently retired from the PUC after serving as a Commission Member for a little over ten years, and as its Chairman for roughly half that time.

Filling the vacancy on the Commission left by Koppendrayer’s departure is Betsy Wergin, Minnesota State Senator from District 16. Wergin has served as a legislator since 2003. Previously, she was a Sherburne County Commissioner from 1995 through 2002.

The Governor's announcement is accessible here.

A Good Story for the Sabbath: Jews at Sea

2008-07-11T07:36:00.006-05:00

This item is over a year old – but I only just learned about it; thought that it was kind of cool and wanted to share it.

The Nimitz-class aircraft carrier U.S.S. Harry S. Truman is carrying a wooden ark and torah scroll (see a U.S. Navy photo here) that was rescued from the Holocaust by Lithuanian Jews. The item is on loan to the ship and is available throughout the carrier’s commission.

Likewise interesting the carrier’s Commanding Officer, Captain Herman Shelanski, is an observant Jew who hosts kosher meals in his quarters and participates in Shabbat services with other Jewish sailors and airmen aboard the ship.

Those connections are particularly meaningful in light of the fact that President Harry S. Truman was among the first leaders to recognize Israel in 1948 – issuing a recognition directive just hours after the Provisional Government of Israel proclaimed the new State of Israel. And, as Providence would have it, the carrier named for that President, with its Jewish Captain, was steaming by Israel’s shores during Israel's 60th Anniversary celebrations in May – prompting an opportunity for Israeli dignitaries to have a ceremonial visit the ship by way of fighter aircraft.

Good shabbos, everyone.