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Wednesday, November 30, 2011

Duplicative FOIL requests

Duplicative FOIL requests
Badalamenti v Office of Dist. Attorney Nassau County, 2011 NY Slip Op 08588, Appellate Division, Second Department

The Nassau County District Attorney's Office rejected the FOIL request submitted by Anthony Badalamenti seeking the disclosure of certain telephone numbers and recordings of certain telephone calls.

In the proceeding before Supreme Court the District Attorney's Office had established that it had earlier provided Badalamenti with the information or records he sought pursuant to an earlier FOIL request or hat it did not have the records he demanded in its possession.

The Appellate Division held that FOIL does not require the custodian of the public records demanded, here the District Attorney’s Office, to furnish records it does not possess.

The court also ruled that Badalamenti was not entitled to additional copies of those records he sought that had previously be provided to him “unless he can show that the copies are no longer in his or his attorney's possession, a showing he failed to make.”

Access to documents under FOIL limited

Access to documents under FOIL limited
Sinicropi v. Nassau County, 76 AD2d 832

Sinicropi was denied access to certain records related to an administrative disciplinary proceeding.

Citing the McAulay decision (48 NY2d 659), the court refused to order the employer to give the Sinicropi the records he sought, which records the court described as intra-agency memoranda concerning an employee, notes and communications made in preparation of the disciplinary hearing and the transcript of the hearing.

The court viewed this materials as “pre-decisional intra-agency memoranda that are not reflective of final agency policy or determinations” and are therefore exempt from disclosure under the Freedom of Information Law.

Sinicropi had been given a copy of the charges preferred against an employee, the employee's answer to the charges, the "bill of particulars" of the charges and the stipulation of settlement of the disciplinary action. The Court held that further disclosure would be unnecessary and improper.

Human Rights Appeals Board review powers limited

Human Rights Appeals Board review powers limited
CBS v. State Human Rights Appeals Board, 76 AD2d 813

The Division of Human Rights had dismissed the complaint of discrimination filed by a former employee of CBS for lack of probable cause.

On appeal the Human Rights Appeals Board reversed the Division’s determination after making its own findings as to seniority and other matters concerning the complaint.

The Appellate Division held that in so doing the Appeals Board had exceeded its authority, substituting its own factual findings for that of the Division.

The Board’s function, said the court, is to determine whether the Division’s decision was based on substantial evidence or not.

The Appellate Division then reinstated the Division’s determination, stating that “in reversing [the Division] the Board must have been saying either that there was not substantial evidence or else that the ruling was arbitrary and capricious and an unwarranted exercise of discretion. There was no basis for this determination ... the Division’s expertise in evaluating discrimination claims may not be lightly disregarded.”

Annuities may be processed through one agent


Annuities may be processed through one agent
Op St Comp 80-121

A school district which purchases annuities for its employees from a number of insurance companies may make arrangements to have all payments made to one company and have that company make the distribution to the other insurance companies involved.

Such an arrangement is expected to reduce an employer’s accounting costs that may be significant when it must process a large number of accounts on behalf of its employees. The most common situation is the transmittal of funds in connection with tax-deferred annuities purchased on behalf of employees.

Tuesday, November 29, 2011

Criminal record results in removal from state job


Criminal record results in removal from state job
Disciplinary arbitration award

An arbitrator held that the State acted properly when it removed an employee form his position upon discovery that he had failed to report his earlier conviction on the application form for his job.

The employee had indicated that he had never been convicted when in fact he had been convicted of a number of crimes.

The Civil Service Law (Section 50.4) provides for the removal of an employee found to have falsified his application form. In such cases the law requires that the employee be given an opportunity to explain the matter before being removed from the position.

It appears that the reason for the employee’s removal was the falsification of the information on the application form, not the fact that he had earlier been convicted.

Generally the employee or applicant having a criminal conviction in his record may not be barred from employment unless the offense is found to be job related and has a potential for a breech of faith or a related problem.

For example, conviction for illegal possession of a drug might be a basis for disqualifying a person seeking a position in a pharmacy where controlled substances and drugs are kept but probably would not be relevant in connection with a clerical position in an office.

Inconsistent determinations void discipline finding

Inconsistent determinations void discipline finding
Fogerty v. Connelie, 76 A.D.2d 987

The three member board found the employee not guilty of one charge, but guilty of a number of other charges.

The appointing officer found the employee guilty of all the charges after “acceptance of the board’s findings and conclusions” and imposed the penalty of dismissal.

The Court annulled the determination, holding that “(a) comparison of Connelie’s decision and that of the hearing board establishes that the two determinations are inconsistent in that Connelie, but not the board, found Fogerty guilty of all the specifications in the first charge”.

Also missing from the appointing authority’s decision were the reasons relied upon by Connelie for the dismissal of Fogerty.


Employee denied additional probationary period


Employee denied additional probationary period
In Re Holbrook, 78 A.D.2d 840

The agency terminated the employee for failing to satisfactorily complete his probationary period because “his conduct towards his peers and subordinates engendered hostility, he failed to follow...policy respecting the routing and handling of legal department mail causing unnecessary delays...and he took upon himself the task of reviewing the operations of the legal department...diverting...from the work priorities his superiors had established for him”.

The employee sued and a State Supreme Court judge granting Holbrook petition and directed that the employer extend the individual’s probationary period for 12 weeks.

The Appellate Division overturned the lower court’s ruling, holding that there was a clearly ample rational justification for the termination since “(the employee) in his reply affidavit virtually confirms [the employer’s] observations” concerning his performance of his duties.

The court also rejected the employee’s representation that his dismissal was motivated by his uncovering and reporting his immediate supervisor’s poor management practices. 

Monday, November 28, 2011

Tenured teacher’s objection to submitting a challenge to termination to arbitration rejected

Tenured teacher’s objection to submitting a challenge to termination to arbitration rejected
Atwater v. Commissioner of Education, Massachusetts Supreme Court, November 21, 2011, Docket: SJC-10817

A tenured teacher was terminated for conduct unbecoming a teacher.

The teacher appealed contending that Massachusetts law compelling arbitration of a wrongful dismissal claim made by a tenured public school teacher violated Article 30 of the Massachusetts Declaration of Rights because it impermissibly delegated to a private individual (an arbitrator) a judicial function and denied meaningful judicial review.

Massachusetts Supreme Court ruled that submitted a challenge to a principal's or superintendent's dismissal decision to arbitration did not interfere with “core judicial functions” and the statute provided sufficient judicial review.

The decision is posted on the Internet at:


Dismissed employee entitled to back pay


Dismissed employee entitled to back pay
Matter of Rider, 78 A.D.2d 856

The employee was found guilty to the charges brought against him and dismissed under Section 75 of the Civil Service Law. He had been suspended without pay upon the service of the charges and continued in that status until after the hearing and his dismissal. This involved a period of more than the 30 days suspension without pay permitted by Section 75.

The Appellate Division ruled that the employee, notwithstanding the fact that he was terminated from his position, was entitled to back pay for the period beginning 30 days after his suspension until the date of dismissal.

The court noted that this was the correct result “even though there was substantial evidence to support the finding of guilt and the fact that the penalty imposed was not excessive.”

Unblemished record mitigates discipline penalty

Unblemished record mitigates discipline penalty
Matter of Gailband, 78 A.D.2d 853

The New York City Housing Authority, dismissed an employee and stated “in no uncertain terms, its view of the seriousness of the (employee’s) conduct.”

The Appellate Division, however, ruled that “under the totality of the circumstances at bar, including an unblemished record of more than 15 years duration, the penalty of dismissal was grossly disproportionate to the nature of (the employee’s) misconduct so as to be shocking to one’s sense of fairness.

The court then went on to indicate that it would ordinarily remand the case to the agency for appropriate reconsideration, but as the Authority had strongly and unequivocally condemned the conduct, and as any lesser penalty would increase the Authority’s potential liability for back pay, it would fix the penalty to be imposed.

The Appellate Division ordered the reinstatement of the employee with back pay for absence in excess of three months (including the 30 day suspension period imposed by the Authority in accordance with Section 75 of the Civil Service Law) less unemployment benefits, if any, and any amount [the employee] earned while “dismissed”.

Short v. Nassau County Civil Service Commission, 59 AD2d 157 sets forth some guidelines to be followed in cases such as this.

Court voids arbitrator’s award


Court voids arbitrator’s award
Uniformed Firefighters Association v. City of New York, 76 A.D.2d 392, Motion for leave to appeal denied, 52 N.Y.2d 702

The City of New York filed an petition pursuant to Article 75 of the Civil Practice Law and Rules seeking to vacate an arbitrator’s award that held that the City could not implement its plan to use civilian workers in fire prevention inspector titles.

The court held that the City had the authority and responsibility to allocate its financial resources in a manner it felt most appropriate to prevent fires.

The Appellate Division also observed that “the decision to utilize civilians rather the uniformed firefighters to perform inspection functions is consonant...with the City’s agreement with the Uniformed Firefighters Association and proper”.

Sunday, November 27, 2011

Punitive damages awarded for failure to act to prevent sexual abuse of students

Punitive damages awarded for failure to act to prevent sexual abuse of students G.G. v Grindle, U.S. 7th Circuit Court of Appeals, Docket 10-3506 

The Seventh Circuit Court of Appeals affirmed an award of compensatory and punitive damages based on a jury finding a school administrator failed to prevent the sexual abuse of several female students by their teacher.

The teacher had pled guilty to multiple counts of aggravated kidnapping and aggravated criminal sexual abuse.

The award for damages, said the court, was justified in view of the administrator’s failure to act, noting that the administrator advanced “no basis for invalidating the jury’s determination that her conduct justified the imposition of punitive damages.”

The decision is posted on the Internet at:
http://law.justia.com/cases/federal/appellate-courts/ca7/10-3506/10-3506-2011-11-23-opinion-2011-11-23.html

Saturday, November 26, 2011

Decisions of interest concerning Labor and Employment Law
Source: Justia November 25, 2011


Court: U.S. 1st Circuit Court of Appeals
Docket: 10-1607
November 22, 2011
Judge: Lipez
Areas of Law: Civil Rights, Constitutional Law, Labor & Employment Law
Employees of the fire department filed suit under 42 U.S.C. 1983, alleging cronysim and nepotism in employment decisions. The district court granted summary judgment for the department, finding that nothing linked the employment decisions to an identifiable political group, cause, or belief. The First Circuit affirmed. Preferential treatment in public employment decisions, unrelated to protected speech or association, does not infringe upon freedoms secured by the First Amendment.




Court: U.S. 9th Circuit Court of Appeals
Docket: 10-72478
November 21, 2011
Judge: Smith
Areas of Law: Contracts, Labor & Employment Law
The NLRB petitioned for enforcement of its order finding that Legacy Health violated sections 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. 158(a)(1) and (3) by not allowing its employees to simultaneously hold bargaining unit positions and non-bargaining unit positions. The court held that, under section 10(e) of the Act, the court did not have jurisdiction to hear Legacy Health's exceptions to the NLRB's remedial order. Accordingly, the court granted summary enforcement of the NLRB's order.




Court: U.S. 10th Circuit Court of Appeals
Docket: 10-4185
November 22, 2011
Judge: Gorsuch
Areas of Law: Civil Rights, Labor & Employment Law
Plaintiff-Appellant Cherie Lopez-Fisher claimed Defendant-Appellee Abbott Laboratories fired her because of her gender, race, color and national origin. After receiving extensive briefing and hearing oral argument in this Title VII case, a magistrate judge entered an order granting summary judgment to Abbott Labs. In her appellate brief, Plaintiff insisted that because she successfully passed a "Performance Improvement Plan" conducted by Abbott Labs, her termination a week later raised an inference of discrimination. The magistrate judge found no evidence in the record that Plaintiff passed the Plan. Furthermore, the magistrate concluded that Plaintiff did not overcome her burden of proof that Abbott Labs' proffered reason for terminating Plaintiff (poor performance) was pretext for discrimination. Accordingly, the Tenth Circuit adopted the magistrate judge's ruling in affirming dismissal of Plaintiff's case.




Court: U.S. D.C. Circuit Court of Appeals
Docket: 10-1411
November 22, 2011
Judge: Per curiam
Areas of Law: Labor & Employment Law
Petitioner petitioned for review of an order of the NLRB, holding that petitioner violated section 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. 158(a)(1) and (3), when it threatened and disciplined a certified nursing assistant and outspoken union supporter. Petitioner admitted that the nursing assistant's union activity was a motivating factor for her discipline; although other employees engaged in conduct similar to the nursing assistant's, petitioner neither investigated nor punished any one of them; and the nursing assistant was disciplined without an inquiry into her actions, as company policy required. Petitioner premised its discipline, at least in part, on the nursing assistant's expired disciplinary history, an impermissible consideration under company rules. Therefore, the court concluded that substantial evidence supported the NLRB's Wright Line determination. In light of these conclusions, the court need not consider the NLRB's alternative ground for its section 8(a)(3) ruling.




Court: California Supreme Court
Docket: S184059
November 21, 2011
Judge: Baxter
Areas of Law: Government Contracts, Insurance Law, Labor & Employment Law
This case stemmed from a lawsuit filed in 2007 by the Retired Employees Association of Orange County, Inc. against the County of Orange contesting the validity of certain changes the county had made to health benefits for retired employees. At the request of the Ninth Circuit, the court addressed the following question: "Whether, as a matter of California law, a California county and its employees can form an implied contract that confers vested rights to health benefits on retired county employees." In response, the court concluded that, under California law, a vested right to health benefits for retired county employees could be implied under certain circumstances from a county ordinance or resolution. Whether those circumstances existed in this case was beyond the scope of the question posed to the court by the Ninth Circuit.




Court: Connecticut Supreme Court
Docket: SC18751
November 29, 2011
Judge: Eveleigh
Areas of Law: Civil Rights, Constitutional Law, Criminal Law, Labor & Employment Law
Plaintiff, while in the course of employment as a uniformed police officer of the City's police department, was involved in a shooting and was later criminally charged in connection with the shooting. The City suspended Plaintiff without pay pending the outcome of the criminal matter. After being acquitted of all charges, Plaintiff brought an action against the City seeking reimbursement for legal fees, lost wages and lost employment benefits. The trial court awarded Plaintiff $562,277, which included Plaintiff's attorney's fees. The Supreme Court affirmed, holding (1) the trial court's finding of a contract between Plaintiff and his lawyer in which Plaintiff incurred legal fees beyond the retainer was not clearly erroneous; (2) the trial court did not abuse its discretion in awarding damages to Plaintiff for attorney's fees, and the award was not excessive; and (3) Plaintiff was entitled to damages for economic loss during his entire suspension, and the trial court's award of damages for economic loss in this case was proper.




Court: Delaware Supreme Court
Docket: 208, 2011
November 21, 2011
Judge: Jacobs
Areas of Law: Business Law, Corporate Compliance, Labor & Employment Law, Legal Ethics
Plaintiff brought this action under 8 Del. C. 220 to inspect certain books and records of defendant. More specifically, plaintiff sought to inspect one document that defendant refused voluntarily to disclose: an interim report (Covington Report) prepared by defendant's outside counsel in connection with an internal investigation into sexual harassment allegations made against defendant's former CEO. The Court of Chancery denied plaintiff relief and held that plaintiff had not demonstrated a need to inspect the Covington Report sufficient to overcome the attorney-client privilege and work product immunity protections. The court affirmed, but on the alternative ground that plaintiff had not shown that the Covington report was essential to his stated purpose, which was to investigate possible corporate wrongdoing.




Court: Indiana Supreme Court
Docket: 93S02-1102-EX-90
November 17, 2011
Judge: Rucker
Areas of Law: Government & Administrative Law, Health Law, Injury Law, Insurance Law, Labor & Employment Law
Appellant Indiana Spine Group provided medical services to employees of various businesses for injuries the employees sustained arising out of and during the course of their employment. The employers authorized the services and made partial payments. In each case, more than two years after the last payments were made to the injured employee, Appellant filed with the worker's compensation board an application for adjustment of claim seeking the balance of payments. The Board dismissed the applications as untimely. In each case the court of appeals reversed and remanded. At issue on appeal was what limitation period was applicable to a medical provider's claim seeking payment of outstanding bills for authorized treatment to an employer's employee when the Worker's Compensation Act was silent on the question. The Supreme Court reversed the Board, holding (1) the limitation period contained in the general statute of limitation enumerated in Ind. Code 34-11-1-2 controlled; and (2) because Appellant's claim was timely under the statute, the Board erred by dismissing Appellant's application.




Court: Kentucky Supreme Court
Docket: 2009-SC-000015-DG
November 23, 2011
Judge: Venters
Areas of Law: Contracts, Insurance Law, Labor & Employment Law
Travelers Insurance Company brought suit in circuit court alleging that Blackstone Mining Company had underpaid premiums under two separate workers' compensation policies issued by Travelers. Blackstone counterclaimed, alleging that it had overpaid the premiums due under the policies and was entitled to a refund. The circuit court granted summary judgment to Blackstone. The court of appeals reversed. The Supreme Court reversed the court of appeals and reinstated the judgment of the circuit court, holding (1) the court of appeals incorrectly applied well-established burden of proof principles applicable to summary judgment motions; and (2) the circuit court correctly determined that Blackstone was entitled to summary judgment.




Court: Minnesota Supreme Court
Docket: A09-2093
November 23, 2011
Judge: Stras
Areas of Law: Contracts, Insurance Law, Labor & Employment Law
At issue in this case was the interpretation of approximately sixty collective bargaining agreements (CBAs) between the City of Duluth and its employees. Subject to certain conditions and exceptions, the CBAs guaranteed retired City employees health insurance benefits "to the same extent as active employees." The dispute in this case centered on the meaning of that phrase, specifically, whether the phrase guaranteed health insurance benefits to retirees to the same extent as employees who were active at the time of a retiree's departure, or to the same extent as current City employees. Several retired City employees filed a lawsuit, alleging that the City had wrongfully changed or threatened to change their health insurance benefits and claiming that CBAs guaranteed that health insurance benefits for retirees would be frozen as of the time of retirement. The district court held for the City. The court of appeals affirmed the district court's interpretation of the active-employees clause. The Supreme Court affirmed, holding that the CBAs unambiguously guaranteed health insurance benefits to retirees to the same extent as current City employees.




Court: Montana Supreme Court
Docket: DA 11-0147
November 22, 2011
Judge: Morris
Areas of Law: Contracts, Labor & Employment Law
Employee worked as a shareholder accountant for Employer. Employee's employment contract contained a covenant not to compete. After Employer ended its employment relationship with Employee, Employee began working at Employer's competitor, where she provided accounting services for a few of Employer's former clients in violation of the restrictive covenant. Employee sought a declaration that the covenant was unenforceable. The district court determined that the covenant was reasonable and enforceable. The Supreme Court reversed, holding that Employer's covenant was unenforceable because (1) Montana law requires that an employer establish a legitimate business interest in a restrictive covenant, which demands that the restriction on post-employment activities be necessary to protect an employer's good will, customer relationships, or trade information; (2) an employer lacks a legitimate business interest in a covenant when, under ordinary circumstances, it ends the employment relationship with the employee; and (3) Employer in this case elected to end its employment relationship with Employee without any misconduct on the part of Employee.




Court: Nevada Supreme Court
Docket: 54822
November 23, 2011
Judge: Hardesty
Areas of Law: Injury Law, Insurance Law, Labor & Employment Law
Employee suffered a work-related injury to his back in 2004. Employee had also suffered previous accidents resulting in injuries to his lower back. A rating physician determined that Employee's permanent partial disability (PPD) benefits for the 2004 injury should be calculated using a net twenty-six percent impairment rating. Employer's Insurer offered an award to Employee based on a net seventeen percent impairment rating. An appeals officer ordered Insurer to offer Employee a PPD award based on the original impairment rating. The district court affirmed, concluding that Employee's prior impairment rating, which was calculated using an older version of the AMA Guides, should be deducted from his current impairment rating, which was calculated using the current edition of the AMA Guides. The Supreme Court reversed, holding (1) the governing statute required the rating physician to reconcile the different editions of the AMA Guides by first recalculating the percentage of the previous impairment rating using the current edition and then subtracting that recalculated percentage from the current level of impairment; and (2) the district court and appeals officer erred in determining the amount due, and therefore, the PPD award based on the seventeen percent impairment rating for the current injury was proper.




Court: New York Court of Appeals
Docket: 200
November 21, 2011
Judge: Pigott
Areas of Law: Construction Law, Injury Law, Labor & Employment Law
Plaintiff commenced a lawsuit against 96 Rockaway, LLC, Novalex Contracting Corp., and T-Construction Co., Inc., alleging among other things, violations of Labor Law 240(a) and 241(6). Discovery and a third-party action ensued. T-Construction moved for summary judgment, seeking dismissal of the complaint, and all cross-claims against it. 96 Rockaway and Novalex cross-moved for identical relief. Supreme Court granted defendants' motions, and dismissed plaintiff's complaint in its entirety. The Appellate Division reversed so much of Supreme Court's order as granted defendants' motions for summary judgment dismissing plaintiff's claims, denied the motions, and reinstated those claims. The court held that, given that Labor Law 240(1) should be construed with a common sense approach to the realities of the workplace at issue, defendants were entitled to summary judgment dismissing that claim. Plaintiff's Labor Law 241(6) cause of action, predicated on a violation of 12 NYCRR 23-1.7(b)(1)(i), failed for similar reasons. Accordingly, the order of the Appellate Division was reversed.




Court: Ohio Supreme Court
Docket: 2010-0734
November 17, 2011
Judge: Per Curiam
Areas of Law: Government & Administrative Law, Injury Law, Labor & Employment Law
Patrick Donohoe died from injuries sustained in a workplace accident. His widow, Catherine, filed an application for additional workers' compensation benefits, claiming that Patrick's accident resulted from his employer's violation of specific safety requirements (VSSRs) governing the construction industry. The Industrial Commission of Ohio denied her application. The court of appeals vacated the order and returned the cause to the Commission for further consideration. Both Catherine and the employer appealed. At issue on appeal was (1) whether the Commission staff hearing officer's order, which could be interpreted in different ways, was deficient; and (2) whether the Commission erred by denying Catherine's application because there were no eyewitnesses to the accident. The Supreme Court affirmed, holding (1) an order that can engender two viable, yet irreconcilable, interpretations is too ambiguous to withstand scrutiny; (2) an order that is potentially based on an erroneous belief that a VSSR cannot issue in the absence of eyewitnesses is clearly an abuse of discretion; and (3) therefore, the court of appeals was correct in returning the cause to the Commission for clarification and consideration of all the evidence.




Court: Oklahoma Supreme Court
Docket: 109003
November 22, 2011
Judge: Watt
Areas of Law: Arbitration & Mediation, Contracts, Labor & Employment Law
Plaintiffs-Appellants Eddie Lee Howard and Shane Schneider (Employees) entered an employment contract with Defendant-Appellee Nitro-Lift Technologies, L.L.C. For two years following termination, the contract prohibited employees from: working for, leasing to, or selling equipment to competitors. The contract contained an arbitration agreement requiring application of Louisiana law with disputes to be resolved in Houston, Texas. After the employees terminated their employment with Nitro-Lift, they went to work for a competitor in Arkansas. The employer filed an arbitration proceeding in Houston. Howard and Schneider filed an application for a declaratory judgment and injunctive relief in Oklahoma asserting that the non-competition agreement violated public policy. The district court initially granted the employees a temporary injunction, prohibiting Nitro-Lift from continuing the arbitration proceedings in Texas. Thereafter, the employer filed a motion to dismiss. After considering the parties' briefs and arguments, the district court found the arbitration clause to be valid on its face and reasonable in its terms, lifted the temporary restraining order, and granted the motion to dismiss. Upon review, the Supreme Court held that: (1) the existence of an arbitration agreement in an employment contract did not prohibit judicial review of the underlying agreement; and as drafted, the non-competition covenants were void and unenforceable as against Oklahoma public policy. The Court reversed the district court's judgment and remanded the case for further proceedings.




Court: South Carolina Supreme Court
Docket: 27064
November 21, 2011
Judge: Toal
Areas of Law: Government & Administrative Law, Injury Law, Insurance Law, Labor & Employment Law
Appellant Alexander Michau appealed a ruling by the Appellate Panel of the South Carolina Workers' Compensation Commission (Commission) denying his claim for repetitive trauma injuries to his shoulders. Specifically, Appellant challenged the Commission's interpretation and application of section 42-1-172 of the South Carolina Code. Prior to his injury in 2008, Appellant did not report any work-related problems with his arms to his employer, although he sought outside treatment. The Commission denied Appellant's claim on the grounds that "the greater weight of the medical evidence reflects [Appellant's] upper extremity and shoulder problems are related to pre-existing osteoarthritis and/or rheumatoid arthritis and not caused or aggravated by his employment with Georgetown County." Appellant disputed the admissibility of the Commission's expert doctor's report under South Carolina Code section 42-1-172 because it was not stated "to a reasonable degree of medical certainty." Appellant argued that without this evidence, the remaining competent evidence would support his claim of sustaining a compensable repetitive trauma injury. The Supreme Court concluded after a review of the Commission's record that the doctor was not Appellant's treating doctor, and his employer sought a medical "opinion" to decide the compensability of Appellant's claim. In this instance, the Court concluded that the doctor's testimony was indeed an "opinion" within the meaning of the Code, and therefore inadmissible against Appellant in adjudicating his claim. The Court reversed the Commission's decision to admit the doctor's medical opinion and remanded the case to determine whether the remaining competent evidence supported Appellant's claim of injury.




Court: South Dakota Supreme Court
Docket: 25935
November 16, 2011
Judge: Zinter
Areas of Law: Contracts, Government Contracts, Labor & Employment Law
Two unions filed grievances against the Sioux Falls School District, alleging that that the District violated the parties' labor agreements when the District provided 2.5 percent wage increases for the 2008-2009 school year. The District and the Department of Labor denied both grievances as untimely. The circuit court judge concluded that the grievances were timely, and reversed and remanded the matter to the Department to determine the correct percentage wage increase. On remand, the Department concluded that the union members were entitled to a three percent wage increase. The circuit court affirmed. The District appealed. The Supreme Court affirmed, holding (1) the union's grievances were timely; and (2) the union members were entitled to a three percent salary increase, and the District violated the terms of the agreements by implementing a percentage wage increase other than the percentage change in the per student allocation referenced in S.D. Codified Laws 13-13-10.1(4).




Court: Vermont Supreme Court
Docket: 2010-245
November 18, 2011
Areas of Law: Family Law, Government & Administrative Law, Labor & Employment Law
"This is a case of avoidable error and its consequences." The Vermont League of Cities and Towns (VLCT), the workers' compensation insurance carrier for the Town of Randolph, settled a compensation claim of Claimant Stacey Colson and paid the settlement amount to the Office of Child Support pursuant to an earlier order that OCS issued to collect Claimant's back child support payments. VLCT failed to deduct the amount of an attorney's fee lien granted by the Commissioner of the Department of Labor (DOL) to claimant’s lawyer. VLCT acted with the understanding that the lawyer would not seek the fee if, as occurred, claimant was awarded a lump-sum compensation amount. The lawyer sought her fee, but VLCT resisted double paying that amount, and the dispute has ended up before the Supreme Court after two decisions from the Commissioner and one from Superior Court. Claimant appealed the Commissioner’s grant of summary judgment to VLCT, in which the Commissioner concluded that VLCT acted appropriately in paying over the entire proceeds of claimant’s workers’ compensation award to OCS. Claimant argued that his attorney's lien had priority over OCS's claim for child support arrearages. He claimed that the Commissioner's findings were incomplete and contradictory, that the Commissioner erred when she determined his attorney’s lien did not have priority, and that DOL should be compelled to enforce his attorney’s lien for fees. Upon review of the applicable legal authority and the trial court record, the Supreme Court found that the OCS lien was first in time and therefore took priority, and affirmed the Commissioner's holding that VLCT could not be required to pay the attorney's fee amount to Claimant's attorney.




Court: West Virginia Supreme Court of Appeals
Docket: 101414
November 18, 2011
Judge: Davis
Areas of Law: Contracts, Injury Law, Insurance Law, Labor & Employment Law
Employee submitted a claim for workers' compensation under Employer's policy with Insurer, which claim was paid in full. Employee also filed a deliberate intent lawsuit against Employer. After assuming the attorney's fees and costs associated with defending and settling the action, Employer filed a complaint against Insurer, alleging various claims related to Insurer's denial of coverage in the defense of the deliberate intent action. The circuit court granted Employer's motion for partial summary judgment on its bad faith claim against Insurer and awarded damages to Employer. The Supreme Court reversed, holding (1) Insurer met its obligation under W. Va. Code 23-4C-6 to make deliberate intent coverage available to Employer upon the Employer's voluntary request; and (2) because the language of the policy was plain, and the exclusion of deliberate intent coverage was clear, the circuit court erred in concluding that the policy was ambiguous and therefore resulted in deliberate intent coverage being included in the policy under the doctrine of reasonable expectations.




Court: West Virginia Supreme Court of Appeals
Docket: 101499
November 23, 2011
Judge: Benjamin
Areas of Law: Business Law, Injury Law, Labor & Employment Law, Legal Ethics
Employee of a railway company was accused by his Employer of stealing rail. After it was discovered that Employee was involved in the removal and sale of the rail, Employee's employment was terminated. An arbitration panel reinstated Employee's employment the next year. Employer then submitted the matter to an assistant prosecutor. Employee was never arrested or incarcerated. Employee subsequently sued Employer for malicious prosecution. During the trial, the circuit court granted Employee's motion for judgment as a matter of law on the issue of whether Employer had procured his prosecution, which was one element of his required proof. The jury then returned a verdict in favor of Employee. The circuit court denied Employer's motions for judgment as a matter of law, new trial, or remittitur. The Supreme Court reversed the circuit court's order denying Employer's post-trial motions, holding that the circuit court committed reversible error by determining as a matter of law that Employer procured the malicious prosecution of Employee where testimony of the assistant prosecutor directly contradicted the proposition that Employer had a level of control over the prosecution amounting to procurement. Remanded for a new trial.




Court: West Virginia Supreme Court of Appeals
Docket: 101503
November 18, 2011
Judge: Workman
Areas of Law: Business Law, Commercial Law, Constitutional Law, Labor & Employment Law
The Racing Commission suspended certain jockeys' occupational permits for thirty days and imposed fines for the jockeys' failure to declare an overweight amount. Afterwards, PNGI Charles Town Gaming (PNGI), a non-party in the underlying action, excluded the jockeys from its facility. The circuit court (1) entered an injunction and stayed the imposition of sanctions by the Racing Commission until the conclusion of a hearing before the Commission; and (2) extended the injunction and the stay to include PNGI, preventing PNGI from excluding the jockeys from PGNI's premises pending the outcome of the jockeys' administrative appeal. The Supreme Court affirmed, holding (1) an ejection of a permit holder by a racing association or its stewards is subject to review by the Commission, and therefore, the jockeys, as permit holders, had the right to appeal the ejection, and PNGI was bound by the Commission's decision, subject to judicial review; and (2) PNGI waived its assigned errors regarding the injunction and stay.

Decisions of interest involving Government and Administrative Law

Decisions of interest involving Government and Administrative Law

Source: Justia November 25, 2011
 
Court: U.S. 5th Circuit Court of Appeals
Docket: 10-41108
 November 23, 2011
Judge: Higginbotham
Areas of Law: Energy, Oil & Gas Law, Environmental Law, Government & Administrative Law
This appeal arose out of an oil spill on the Neches River. Appellants challenged the National Pollution Funds Center's (NPFC) final claim determination denying reimbursement for costs arising from the spill. The district court rejected appellants' challenge to the agency determination. The court concluded that the NPFC's interpretation of 33 U.S.C. 2703 was entitled to deference and that appellants have not demonstrated that the NPFC's denial of the third-party affirmative defense claim should be overturned under the standard set forth in the Administrative Procedure Act, 5 U.S.C. 500 et seq.




Court: U.S. 5th Circuit Court of Appeals
Docket: 11-30082
 November 18, 2011
Judge: Prado
Areas of Law: Civil Rights, Constitutional Law, Criminal Law, Government & Administrative Law
Plaintiffs filed a civil action against St. Tammany Parish Sheriff Rodney Strain and Deputies Bryan Steinert, Julie Boynton, and Wayne Wicker, each in their individual and official capacities. Plaintiffs brought claims for negligence under Louisiana state law and for deliberate indifference based on the Eighth and Fourteenth Amendments under 42 U.S.C. 1983. The only three issues to survive summary judgment were the state-law negligence claims and the section 1983 claims against Steinert in his personal capacity and Strain in his official capacity. At issue were the two section 1983 claims. The court dismissed Steinert's appeal for lack of jurisdiction because he challenged the district court's factual conclusions on interlocutory appeal. The court dismissed Strain's appeal for lack of jurisdiction because Strain was being sued in his official capacity, the suit against him was "in essence" a suit against a municipality, and municipal governments could not raise immunity defenses on interlocutory appeal.




Court: U.S. 9th Circuit Court of Appeals
Docket: 09-16362
 November 23, 2011
Judge: Tallman
Areas of Law: Government & Administrative Law, Injury Law, Medical Malpractice, Military Law
After his unsuccessful cataract surgery, plaintiff brought a claim for battery against the United States government and his United States Navy surgeon. The United States invoked the Gonzalez Act, 10 U.S.C. 1089, immunizing individual military medical personnel from malpractice liability. At issue was whether section 1089(e) waived the government's sovereign immunity for common law battery claims. The court held that it did not and affirmed the district court's dismissal of plaintiff's complaint for lack of subject-matter jurisdiction. The court did not address plaintiff's remaining claims.




Court: U.S. 10th Circuit Court of Appeals
Docket: 11-3046
 November 22, 2011
Judge: Ebel
Areas of Law: Civil Rights, Family Law, Government & Administrative Law
Plaintiff Katherine Winters filed this lawsuit pursuant to 42 U.S.C. 1983 alleging violations of an asserted right to the care and custody of her biological grandchildren. She named the State of Kansas, the state Department of Social and Rehabilitation Services, social workers and their supervisors and the state court judge who ruled on the "Child in Need of Care" (CINC) matter relating to all three children and the adoption proceeding of her grandson "C.W.," as well as a prosecutor, guardian ad litem and court-appointed special advocates. Plaintiff requested remedies including declaratory and injunctive relief voiding state-court placement and adoption orders, plus compensatory damages of $67 million and punitive damages. The district court dismissed the action, and Plaintiff appealed. On appeal, Plaintiff argued that the district court erred in its determinations on subject-matter jurisdiction, defendants’ immunity, and the sufficiency of her complaint. Her fundamental argument was that the district court failed to give proper consideration to her claim of a constitutional right to the custody and care of C.W. Having carefully reviewed the record on appeal and the appellate briefs in the light of the governing law, the Tenth Circuit agreed with the district court’s analysis of Plaintiff's claims. The Court therefore affirmed the judgment of the district court.




Court: U.S. D.C. Circuit Court of Appeals
Docket: 10-1184
 November 18, 2011
Judge: Tatel
Areas of Law: Communications Law, Government & Administrative Law
This case involved the FCC's Universal Service Program, which provided subsidies to ensure that low-income consumers, schools, health care providers, and libraries have access to advanced telecommunications services and that rates and services in rural areas were "reasonably comparable" to rates and services in urban areas pursuant to the Telecommunications Act of 1996, 47 U.S.C. 254. At issue was the FCC's order declining to increase subsidies under the rural rates and services component of the Universal Services Program. Here, the FCC explained that "reasonable comparability" between rural and urban areas had been largely accomplished and that expansion of the high-cost support fund would "jeopardize other statutory mandates," such as extending services to schools, hospitals, and libraries, and "ensuring affordable rates in all parts of the country." Because of this, and because the FCC had promised to address state-specific issues, like those presented by Vermont and Maine, through the waiver process, its decision to leave the high-cost support mechanism unchanged was neither arbitrary nor capricious. Thus, the court denied the petition for review.




Court: U.S. D.C. Circuit Court of Appeals
Docket: 10-5386
 November 18, 2011
Judge: Sentelle
Areas of Law: Energy, Oil & Gas Law, Entertainment & Sports Law, Government & Administrative Law
TRCP filed for declaratory and injunctive relief in the district court, arguing that the Bureau of Land Management's 2008 Record of Decision regarding the Pinedale Anticline Project Area (PAPA) violated the Federal Land Policy Management Act (FLPMA), 43 U.S.C. 1701 et seq.; that the accompanying environmental impact statement (EIS) violated the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq.; and the 2000 Record of Decision violated both acts. The district court granted summary judgment for the Bureau and TRCP appealed. The court held that the Bureau considered a reasonable range of alternatives in the EIS addressing the proposal to expand natural gas development in the PAPA. That EIS sufficiently addressed the proposed action's impact on hunting in the PAPA. The record supported the Bureau's determination that the 2008 Record of Decision would prevent unnecessary or undue degradation of the PAPA. Finally, TRCP's claims based on the Bureau's alleged non-enforcement of the 2000 Record of Decision were moot. Accordingly, the judgment of the district court was affirmed.




Court: U.S. D.C. Circuit Court of Appeals
Docket: 10-1344
 November 18, 2011
Judge: Sentelle
Areas of Law: Communications Law, Government & Administrative Law
Petitioner appealed a licensing order of the FCC affirming a decision of the Wireless Bureau denying reconsideration of licensing actions taken by the Wireless Bureau's Mobility Division. The Mobility Division granted Thomas Kurian's request to withdraw a radio spectrum assignment application and dismissed petitioner's notification of consummation of that same assignment. Petitioner argued that the FCC's order should be reversed because the FCC and Kurian engaged in unlawful ex parte communications; the FCC failed to give proper public notice of its decisions to grant Kurian's withdrawal request; and the FCC acted arbitrarily and capriciously in rendering the order. The court held that petitioner waived its ex parte and public notice arguments, and the FCC acted neither arbitrarily nor capriciously in rendering its order affirming the Wireless Bureau's order.




Court: Georgia Supreme Court
Docket: S10G1882, S10G1892
 November 21, 2011
Judge: Benham
Areas of Law: Constitutional Law, Government & Administrative Law, Real Estate & Property Law, Zoning, Planning & Land Use
These appeals arose from annexations by the City of parcels of unincorporated real property in Fayette County. At issue was whether appellee, the City resident seeking to enjoin the City from providing services to the area annexed in 2007, had standing as a citizen-taxpayer to do so; whether the appeal was moot; and whether a subsequent annexation by the City cured the flaw the Court of Appeals found in the first annexation. The court concluded that the appeal was moot when it was docketed in the Court of Appeals, and the Court of Appeals should have dismissed it as such. In light of this decision, there was no need to address the issue of appellee's standing as a citizen-taxpayer. Accordingly, the court reversed and remanded.




Court: Indiana Supreme Court
Docket: 93S02-1102-EX-90
 November 17, 2011
Judge: Rucker
Areas of Law: Government & Administrative Law, Health Law, Injury Law, Insurance Law, Labor & Employment Law
Appellant Indiana Spine Group provided medical services to employees of various businesses for injuries the employees sustained arising out of and during the course of their employment. The employers authorized the services and made partial payments. In each case, more than two years after the last payments were made to the injured employee, Appellant filed with the worker's compensation board an application for adjustment of claim seeking the balance of payments. The Board dismissed the applications as untimely. In each case the court of appeals reversed and remanded. At issue on appeal was what limitation period was applicable to a medical provider's claim seeking payment of outstanding bills for authorized treatment to an employer's employee when the Worker's Compensation Act was silent on the question. The Supreme Court reversed the Board, holding (1) the limitation period contained in the general statute of limitation enumerated in Ind. Code 34-11-1-2 controlled; and (2) because Appellant's claim was timely under the statute, the Board erred by dismissing Appellant's application.




Court: Iowa Supreme Court
Docket: 091670
 November 18, 2011
Judge: Waterman
Areas of Law: Government & Administrative Law
Plaintiff, City of Riverdale, spent sixteen months in district court litigating wither Defendants, several individuals, were entitled to view security camera video of a confrontation with the mayor over earlier records requests at the city clerk's counter. The mayor filed a declaratory judgment action at the advice of a junior attorney even though a senior partner attorney earlier advised the mayor to produce the recordings. The trial court ordered the City to turn over a copy of the videotape and awarded Defendants attorney fees. The court of appeals vacated the fee award because the district court made no finding of bad faith on the part of the City. The Supreme Court vacated the court of appeals and affirmed the district court, holding (1) Iowa Code 22.10(3)(c) required the City to pay Defendants' reasonable attorney fees because the district court found the City violated the statute by withholding the video; and (2) the district court did not err by implicitly rejecting the City's good-faith, reasonable delay defense notwithstanding the City's reliance on advice of legal counsel. Remanded.




Court: Montana Supreme Court
Docket: DA 10-0651
 November 22, 2011
Judge: Wheat
Areas of Law: Government & Administrative Law, Real Estate & Property Law
The Slacks sued the County for damages due to the County's alleged failure to comply with its statutory obligation to notify the Slacks that the home they purchased was once the site of a clandestine methamphetamine laboratory. After a trial, the jury found the County was negligent and awarded the Slacks $563,592 in damages. The Supreme Court affirmed on all issues, holding (1) the County waived all the issues it raised on appeal; and (2) the district court properly denied the Slacks' motion for attorneys' fees because simply including attorneys' fees in a bill of costs does not entitle a party to recover attorneys' fees, and the County's defense was not frivolous or pursued in bad faith.




Court: Montana Supreme Court
Docket: DA 10-0615
 November 23, 2011
Judge: Cotter
Areas of Law: Constitutional Law, Government & Administrative Law
The City Police Department conducted an internal investigation of an administrative coordinator, who was placed on administrative leave after she allegedly misused public funds. The Department created a sixteen-page due process letter detailing the evidence against the coordinator, who subsequently resigned. The Billings Gazette requested the letter, but the City declined to release it. The Gazette sued the City. The district court ordered that the document be provided to the Gazette. The Supreme Court affirmed, holding (1) where two constitutional rights are implicated, including the public's right to know about the actions of public agencies and employees and the employees' right to privacy, the district court must balance the two rights to determine whether the employees' right to privacy outweighs the public's right to know; (2) in this case, the coordinator did not have a reasonable expectation of individual privacy to the document because she held a position of trust with the Department and she was accused of breaching that trust; and (3) the mere prospect of a criminal case will not deprive the public of its right to access a public document once that right has been balanced against the right to privacy.




Court: New Hampshire Supreme Court
Docket: 2010-548
 November 22, 2011
Judge: Duggan
Areas of Law: Government & Administrative Law
Defendant New Hampshire Division for Children, Yought and Families (DCYF) appealed a superior court order that it pay Plaintiff Chase Home for Children over $3 million. The dispute concerned rates the DCYF paid to the Chase home for fiscal years 2004 through 2006 pursuant to Provider Service Agreements the home had with DCYF. Due to state budget cuts, DCYF notified its contracted service providers like Chase that it would be unable to increase rates. The service providers asked DCYF to reconsider, claiming that the then-current rates were inconsistent with the agency's own rules. A hearing panel established that DCYF underpaid the service providers. The providers requested the panel order DCYF to pay them, but the panel ruled it lacked authority to do so. The providers appealed to the Supreme Court. Upon review, the Supreme Court found that the legislature specifically authorized the courts to enter a monetary judgment against the State when it breaches a contract: "to hold otherwise would require [the Court] to ignore these legislative directives and to permit a State agency to disregard its contractual obligations. Such a result finds no support in New Hampshire law." The Court therefore affirmed the hearing panel's conclusion and ordered DCYF to pay the service providers for the underpayments.




Court: New Mexico Supreme Court
Docket: 33,029
 November 21, 2011
Judge: Maes
Areas of Law: Government & Administrative Law
In the General Appropriation Act of 2011, the Legislature appropriated $150,000 to the Department of Finance and Administration "[f]or disbursement to the New Mexico mortgage finance authority to carry out the responsibilities, duties and provisions of the regional housing law. The Governor signed the General Appropriation Act of 2011; however, the Governor struck the "1" from the $150,000 appropriated by the Legislature to the Department of Finance and Administration, thereby changing or "scaling" the appropriation down to $50,000. The Governor stated that she vetoed the "1" because, although she agreed with the Legislature that regional housing oversight was a necessary expenditure, but she "disapproved of the excessive part of the appropriation." Citizens of the State of New Mexico, electors, taxpayers, and members of the New Mexico Legislature (Petitioners) subsequently filed a Verified Petition for Writ of Mandamus/Prohibition. Petitioners sought a writ restoring the full appropriation, claiming it was an unconstitutional application of the Governor's partial veto authority. The Supreme Court ordered that the Governor’s "partial veto that would allow scaling of appropriations [was] invalid and unconstitutional" and restored the $150,000 Legislative appropriation.




Court: New York Court of Appeals
Docket: 190
 November 21, 2011
Judge: Jones
Areas of Law: Constitutional Law, Government & Administrative Law
Plaintiffs, a group of 50 taxpayers of the State of New York, commenced this declaratory judgment action against the State and other defendants, challenging numerous loans and grants issued by public defendants to private entity defendants and other private companies in order to stimulate economic development. At issue was plaintiffs' challenge to appropriations in the New York State 2008-2009 budget. The court held that it could find no constitutional infirmity to the challenged appropriations. Although some could question the wisdom of the policy choices, "the legislature has made a valid legislative judgment." Accordingly, the order of the Appellate Division was reversed.




Court: Ohio Supreme Court
Docket: 2010-0734
 November 17, 2011
Judge: Per Curiam
Areas of Law: Government & Administrative Law, Injury Law, Labor & Employment Law
Patrick Donohoe died from injuries sustained in a workplace accident. His widow, Catherine, filed an application for additional workers' compensation benefits, claiming that Patrick's accident resulted from his employer's violation of specific safety requirements (VSSRs) governing the construction industry. The Industrial Commission of Ohio denied her application. The court of appeals vacated the order and returned the cause to the Commission for further consideration. Both Catherine and the employer appealed. At issue on appeal was (1) whether the Commission staff hearing officer's order, which could be interpreted in different ways, was deficient; and (2) whether the Commission erred by denying Catherine's application because there were no eyewitnesses to the accident. The Supreme Court affirmed, holding (1) an order that can engender two viable, yet irreconcilable, interpretations is too ambiguous to withstand scrutiny; (2) an order that is potentially based on an erroneous belief that a VSSR cannot issue in the absence of eyewitnesses is clearly an abuse of discretion; and (3) therefore, the court of appeals was correct in returning the cause to the Commission for clarification and consideration of all the evidence.




Court: Oregon Supreme Court
Docket: S059448
 November 23, 2011
Judge: Durham
Areas of Law: Constitutional Law, Election Law, Government & Administrative Law
Petitioners Gail Rasmussen and Bethanne Darby sought review of the Attorney General's certified ballot title for Initiative Petition 18 (2012). If approved by the voters, Initiative Petition 18 would enact a prohibition on the imposition of any state or local estate tax, inheritance tax, tax on property transferred in connection with a person's death, or tax on the transfer of property between family members. The proposed measure would supersede current statutes that imposed those taxes, and it would exclude from its prohibition certain statutes that imposed fees relating to attendant transactions following a person's death. Petitioners argued that the certified "yes" and "no" vote result statements did not comply with the applicable statutory standards. Upon review, the Supreme Court found that indeed the certified statements were inaccurate, and the Court "invited" the Attorney General to address and correct the problems with the narrative.




Court: South Carolina Supreme Court
Docket: 27065
 November 21, 2011
Judge: Plecones
Areas of Law: Environmental Law, Government & Administrative Law, Real Estate & Property Law, Zoning, Planning & Land Use
The South Carolina Coastal Conservation League (League) and the South Carolina Department of Health and Environmental Control (DHEC) appealed an administrative law judge's (ALJ) order that allowed Respondent Kiawah Development Partners to construct erosion control devices in a critical zone on Captain Sam's Spit (Spit). Respondent owend a peninsula (Spit) which lies primarily south of Kiawah Island, surrounded on three sides by the Atlantic Ocean, Kiawah River and Captain Sam's Inlet which separates the Spit from Seabrook Island. For the past sixty years, the Spit has been "growing," accreting sand on the ocean side at a greater rate than it has been losing ground to erosion on the river side. Respondent leased oceanfront property near the neck to the Charleston County Parks and Recreation Commission, which operates Beachwalker Park there. Respondent sought a permit from DHEC to erect a 2,783 foot bulkhead/revetment combination along the Kiawah River, with the structure to begin at the neck, that is, at Beachwalker Park. DHEC authorized construction of the proposed erosion control device for 270 feet, beginning at Beachwalker Park, and denied the remaining portion of the request. Both the League and Respondent requested a contested case hearing before the ALJ, the League to protest the portion of the permit request which was granted, and Respondent to challenge the portion denied. The Appellants contended the ALJ failed to give the deference due DHEC's interpretation of the statutes and regulations, and further that he exceeded his authority in rewriting the permit, resulting in one with terms neither approved by DHEC nor sought by Respondent. Upon review of the ALJ's ruling and the applicable legal standards, the Supreme Court reversed and remanded, finding the ALJ's decision was "affected by numerous errors of law … beginning with the ALJ's misunderstanding of the applicable statutes, regulations, and public policies, and concluding with his erroneous effort to craft a new permit, one which has never been sought by respondent, nor reviewed by OCRM, and which he, in any case, lack[ed] the authority to issue."




Court: South Carolina Supreme Court
Docket: 27064
 November 21, 2011
Judge: Toal
Areas of Law: Government & Administrative Law, Injury Law, Insurance Law, Labor & Employment Law
Appellant Alexander Michau appealed a ruling by the Appellate Panel of the South Carolina Workers' Compensation Commission (Commission) denying his claim for repetitive trauma injuries to his shoulders. Specifically, Appellant challenged the Commission's interpretation and application of section 42-1-172 of the South Carolina Code. Prior to his injury in 2008, Appellant did not report any work-related problems with his arms to his employer, although he sought outside treatment. The Commission denied Appellant's claim on the grounds that "the greater weight of the medical evidence reflects [Appellant's] upper extremity and shoulder problems are related to pre-existing osteoarthritis and/or rheumatoid arthritis and not caused or aggravated by his employment with Georgetown County." Appellant disputed the admissibility of the Commission's expert doctor's report under South Carolina Code section 42-1-172 because it was not stated "to a reasonable degree of medical certainty." Appellant argued that without this evidence, the remaining competent evidence would support his claim of sustaining a compensable repetitive trauma injury. The Supreme Court concluded after a review of the Commission's record that the doctor was not Appellant's treating doctor, and his employer sought a medical "opinion" to decide the compensability of Appellant's claim. In this instance, the Court concluded that the doctor's testimony was indeed an "opinion" within the meaning of the Code, and therefore inadmissible against Appellant in adjudicating his claim. The Court reversed the Commission's decision to admit the doctor's medical opinion and remanded the case to determine whether the remaining competent evidence supported Appellant's claim of injury.




Court: South Carolina Supreme Court
Docket: 27069
 November 22, 2011
Judge: Toal
Areas of Law: Election Law, Government & Administrative Law
Petitioners Beaufort County and several officials from county boards of elections and registration sought a declaration from the Supreme Court in its original jurisdiction that the General Assembly has neither authorized the State Election Commission or the County Election Commissions to conduct a Presidential Preference Primary in 2012, nor mandated that Petitioners bear the financial burden of conducting the primary. The South Carolina Republican Party scheduled a Presidential Preference Primary for January 21, 2012. In the 2011-2012 Appropriations Act, the General Assembly provided that filing fees received from candidates to run in primary elections may be used by the State Election Commission to conduct the 2012 Presidential Preference Primary elections. In addition, the State Election Commission is authorized to use funds originally appropriated for ballot security to conduct the Presidential Preference Primary elections and the statewide primaries and runoffs. Petitioners contended the General Assembly did not authorize the State Election Commission or the County Election Commissions to conduct a Presidential Preference Primary in 2012 or any election cycle thereafter. In addition, Petitioners argued the amount set forth in the Appropriations Act were insufficient to cover the actual costs to the counties of conducting the 2012 primary. Because the Court was "firmly persuaded" that the General Assembly, through passage of Provisos 79.6 and 79.12 for fiscal year 2011-2012, intended to suspend the temporal limitation in S.C. Code Ann. 17-11-20(B)(2) (Supp. 2010), the Court entered judgment for Respondents the State Election Commission.




Court: South Dakota Supreme Court
Docket: 25868
 November 16, 2011
Judge: Gilbertson
Areas of Law: Government & Administrative Law, Real Estate & Property Law, Zoning, Planning & Land Use
Rapid City ordinances required a developer to complete certain public improvements before the City accepted a final plat, but in lieu of completing the improvements before the City accepted a plat, the City could accept a surety from a developer. In this case, several Developers provided sureties, which the City accepted. The sureties expired, after which the City sued Developers, seeking relief to have the required public improvements completed or repaired to meet the City's standards. The circuit court granted summary judgment in favor of Developers, concluding that when the sureties expired, Developers were no longer liable for the improvements. The Supreme Court reversed, holding that, under the ordinances and specifications, Developers remained liable until the City accepted the improvements by a final acceptance letter. Remanded.




Court: Vermont Supreme Court
Docket: 2010-448
 November 23, 2011
Judge: Dooley
Areas of Law: Government & Administrative Law, Injury Law, Trusts & Estates
Plaintiff Andrew Kennery, on behalf of the estate of Gladys Kennery, appealed the decision of the Windham Superior Court that granted the State's motion for summary judgment on his complaint alleging negligence, gross negligence, and civil rights violations against the State, two state troopers, and the Vermont Department of Public Safety (VDPS). Plaintiff's lawsuit stemmed from a "welfare check" the troopers performed on Plaintiff's decedent, Gladys Kennery. Gladys's daughter had requested that the troopers check on her elderly mother, but the troopers searched the wrong residence. Meanwhile, Gladys had collapsed in her backyard and was unable to get back up and reach shelter. Gladys was found the next morning and died twelve days later from hypothermia caused by prolonged exposure to the cold. The superior court held that the State owed no duty of reasonable care in performing the welfare check, thereby defeating Plaintiff's claims. Upon review, the Supreme Court held that the trial court erred in granting summary judgment to defendants. Genuine issues of material fact remained as to whether a duty of care was created under the Restatement (Second) of Torts section 324A based upon the State's undertaking to perform the welfare check and whether the troopers breached that duty such that the State was liable under the Vermont Tort Claims Act (VTCA). The Court also held that the court erred in dismissing Plaintiff's claim of gross negligence against the troopers. The case was reversed and remanded for further proceedings.




Court: Vermont Supreme Court
Docket: 2010-185
 November 23, 2011
Judge: Dooley
Areas of Law: Constitutional Law, Criminal Law, Government & Administrative Law
Plaintiff David Lay appealed a superior court’s order that granted summary judgment to Defendants William J. Pettengill, Elizabeth F. Novotny, and Daniel K. Troidl on his complaint. Plaintiff's claims stemmed from an internal investigation into his behavior as a state trooper and his subsequent resignation from the Vermont State Police (VSP). Plaintiff argued that the superior court erred in granting judgment to Defendants on his claims of fraudulent nondisclosure, retaliatory prosecution, malicious prosecution, and negligent referral. He also challenged several discovery rulings made by the court. Plaintiff was suspended from duty due to an ongoing investigation by the Internal Affairs Unit. He would later hire a lawyer and settle charges against him which included falsification and misuse of property and evidence; making a false statement; failing to follow-up or make reports in numerous cases; and abuse of authority for conducting a warrantless search. The Windham County State Attorney's office became involved in commencing a criminal prosecution against Plaintiff. A judge found probable cause to issue a warrant for Plaintiff's arrest. At the time the second investigation was pending, Plaintiff had found new work by a private company. He was terminated from his job as a result of the arrest warrant. Upon returning to Vermont, he was charged with numerous crimes. He reached a plea agreement. Subsequently, Plaintiff filed suit against defendants raising numerous claims, including fraudulent nondisclosure, violation of his civil rights, and malicious process. In April 2010, the court issued the summary judgment decision from which Plaintiff appealed. Finding no legal basis for Plaintiff's arguments on appeal, the Supreme Court affirmed the appellate court and dismissed his case.




Court: Vermont Supreme Court
Docket: 2010-245
 November 18, 2011
Areas of Law: Family Law, Government & Administrative Law, Labor & Employment Law
"This is a case of avoidable error and its consequences." The Vermont League of Cities and Towns (VLCT), the workers' compensation insurance carrier for the Town of Randolph, settled a compensation claim of Claimant Stacey Colson and paid the settlement amount to the Office of Child Support pursuant to an earlier order that OCS issued to collect Claimant's back child support payments. VLCT failed to deduct the amount of an attorney's fee lien granted by the Commissioner of the Department of Labor (DOL) to claimant’s lawyer. VLCT acted with the understanding that the lawyer would not seek the fee if, as occurred, claimant was awarded a lump-sum compensation amount. The lawyer sought her fee, but VLCT resisted double paying that amount, and the dispute has ended up before the Supreme Court after two decisions from the Commissioner and one from Superior Court. Claimant appealed the Commissioner’s grant of summary judgment to VLCT, in which the Commissioner concluded that VLCT acted appropriately in paying over the entire proceeds of claimant’s workers’ compensation award to OCS. Claimant argued that his attorney's lien had priority over OCS's claim for child support arrearages. He claimed that the Commissioner's findings were incomplete and contradictory, that the Commissioner erred when she determined his attorney’s lien did not have priority, and that DOL should be compelled to enforce his attorney’s lien for fees. Upon review of the applicable legal authority and the trial court record, the Supreme Court found that the OCS lien was first in time and therefore took priority, and affirmed the Commissioner's holding that VLCT could not be required to pay the attorney's fee amount to Claimant's attorney.




Court: Washington Supreme Court
Docket: 62613-2-i, 62711-2 , 84379-1
 November 23, 2011
Judge: Wiggins
Areas of Law: Family Law, Government & Administrative Law
James R. Hardman and his mother Alice Hardman, certified professional guardians, are the court-appointed guardians of more than twenty Department of Social and Health Services (DSHS) clients residing at the Fircrest School, a residential habilitation center (RHC) in the city of Shoreline. The Hardmans also engage in extensive advocacy activities, lobbying officials at the local, state, and federal levels to keep Fircrest and other RHCs open and to oppose efforts to place Fircrest residents in community-based programs that the Hardmans believe provide inadequate care. In their triennial guardian reports, the Hardmans requested compensation for their advocacy activities. DSHS opposed the fee requests, arguing that the advocacy work was outside the scope of the guardians' duties. The Court of Appeals denied the Hardmans' request for advocacy fees, finding that the advocacy work did not provide a direct benefit to the indidivual wards. Upon review of the trial court record and the parties' appellate briefs, the Supreme Court found that the Hardmans were not entitled to the compensation because the advocacy activities were neither individualized to serve a particular ward's best interests nor necessary to perform their guardianship duties. The Court affirmed the Court of Appeals.




Court: West Virginia Supreme Court of Appeals
Docket: 100916
 November 21, 2011
Judge: Workman
Areas of Law: Government & Administrative Law
The assessor and sheriff of Mingo County sought to remove Gregory Smith from his position as commissioner on the Mingo County Commission. A three-judge court empaneled by the Supreme Court denied the petition for removal and dismissed the case. Smith subsequently filed a petition for a writ a mandamus, seeking to compel the Commission to reimburse him for attorney's fees and costs that he spent in defending against the removal petition. The circuit court denied the petition. The Supreme Court reversed, holding that the circuit court erred in (1) finding that Smith could have sought reimbursement of attorney's fees from the three-judge panel, and (2) determining that Powers v. Goodwin, which authorizes the use of mandamus to obtain reimbursement of attorney's fees following a successful defense in a removal action, was no longer good law. The Court (1) remanded for reconsideration of whether Smith established the three necessary elements entitling him to a writ of mandamus, and (2) directed the circuit court, in considering whether Smith had a clear legal right to the relief sought, to determine if Smith met the three-part test set forth in Powers.




Court: West Virginia Supreme Court of Appeals
Docket: 101540
 November 18, 2011
Judge: Workman
Areas of Law: Government & Administrative Law, Health Law
Respondent, who had a diagnosis of autism with obsessive compulsive disorder traits and hyperactive traits, had participated for several years in the federal Mentally Retarded / Developmentally Delayed Home and Community-Based Waiver Program, which provided in-home and community-based services for persons with mental retardation or a delayed development condition. The state Department of Health and Human Resources (DHHR) subsequently terminated Respondent's benefits. The circuit court reversed the DHHR's decision based on the DHHR's failure to present evidence that Respondent's condition had improved since he first began receiving benefits. DHHR appealed, arguing that the circuit court erred in placing the burden of proof on it rather than on Respondent. The Supreme Court affirmed, holding (1) when the DHHR seeks to reduce or terminate benefits that a claimant is receiving under the Waiver Program, the DHHR has the burden of proof to show a change in circumstances warranting such action, and therefore, the circuit court did not err in determining that the DHHUR had the burden to show some medical improvement in Respondent's condition; and (2) the circuit court did not abuse its discretion in finding that the DHHR had failed to meet its burden of proof.




Court: West Virginia Supreme Court of Appeals
Docket: 101596
 November 23, 2011
Judge: McHugh
Areas of Law: Civil Rights, Constitutional Law, Government & Administrative Law
Appellee was allegedly hit in the head by a law enforcement officer during a confrontation. Appellee filed a civil complaint against the city and the two officers involved in the incident (Appellants), alleging that his civil rights had been violated due to the use of excessive force by the officers. Appellants moved for summary judgment, asserting immunity from suit both on qualified immunity and statutory immunity grounds. The circuit court denied the motion. The Supreme Court reversed the denial of summary judgment, holding (1) a public officer is entitled to qualified immunity from civil damages for performance of discretionary functions where (i) a trial court finds the alleged facts do not demonstrate that the officer's conduct violated a constitutional right, or (ii) a trial court finds the evidence could establish the officer's conduct violated a constitutional right but further finds that it would be clear to any reasonable officer that such conduct was lawful in the situation confronted; and (2) Appellants were entitled to qualified immunity from suit, either because (i) no constitutional violated was established by the facts alleged, or (ii) a reasonable officer confronting the same situation, without notice to the contrary, would have considered the action lawful.




Court: West Virginia Supreme Court of Appeals
Docket: 101632
 November 17, 2011
Judge: Benjamin
Areas of Law: Civil Rights, Constitutional Law, Contracts, Education Law, Government & Administrative Law
Petitioners were fifteen employees of the county Board of Education, who filed a grievance regarding changes made to the subsequent year's extracurricular coaching contracts, claiming they were entitled to receive notice and a hearing prior to the adoption of the changes and that they received neither. The ALJ and the circuit court denied the grievance. Petitioners appealed, contending that W. Va. Code 18A-2-7 gave them the right to receive a hearing before the Board could unilaterally alter the terms of the coaching contracts. The Supreme Court affirmed the circuit court's denial of Petitioners' grievance, holding that the circuit court's decision was not clearly wrong nor was it arbitrary, capricious, an abuse of discretion, or contrary to law.




Court: West Virginia Supreme Court of Appeals
Docket: 101627
 November 17, 2011
Judge: McHugh
Areas of Law: Agriculture Law, Government & Administrative Law, Tax Law
Taxpayer, related corporations that operated a vertically-integrated poultry production business, sought an exemption from ad valorem taxes on five industrial personal property tax returns it filed with the State Tax Department, claiming it was exempt from such taxation under either the "subsistence of livestock" or the "farm" exemption under W. Va. Code 11-3-9-(a)(21), (28). The State Tax Commissioner concluded that Taxpayer was not entitled to either exemption. The trial court (1) ruled that Taxpayer was entitled to claim the "subsistence of livestock" exemption in connection with its hatchery operation but not with regard to personal property used at its live haul center and feed mill operation; and (2) concluded that none of Taxpayer's operation qualified for the "farm" exemption. The Supreme Court affirmed, holding that the trial court did not err in ruling that Taxpayer was not entitled to any exemptions from personal property taxation in connection with its commercial poultry operation other than the exemption afforded to its hatchery operation.




Court: West Virginia Supreme Court of Appeals
Docket: 11-0081
 November 17, 2011
Judge: McHugh
Areas of Law: Civil Rights, Constitutional Law, Criminal Law, Government & Administrative Law
After Appellee was arrested for DUI, the Division of Motor Vehicles (DMV) revoked Appellee's driver's license for two years. Appellee filed a request for an administrative hearing, which was conducted on May 6, 2008. By final order dated October 13, 2009, the DMV Commissioner ordered that Appellee's privilege to drive a motor vehicle be revoked for six months. Appellee appealed the revocation order, arguing that the seventeen-month delay between the administrative hearing and entry of the final order revoking his driver's license violated his procedural due process rights. The circuit court reversed the order, concluding that the excessive delay violated Appellee's due process rights. The Supreme Court reversed, holding that Appellee was required to show actual and substantial prejudice as a result of the delay. Remanded to (1) give Appellee the opportunity to present evidence of prejudice and to give the Commissioner the opportunity to present evidence regarding the reasons for the delay; and (2) balance the resulting prejudice against the reasons for the delay in order to determine whether the delay violated Appellee's right to due process.




Court: West Virginia Supreme Court of Appeals
Docket: 101420
 November 18, 2011
Judge: McHugh
Areas of Law: Government & Administrative Law, Health Law
Petitioner, who had a diagnosis of severe autism, had been participating in the federal Mentally Retarded / Developmentally Delayed Home and Community-Based Waiver Program, which provided in-home and community-based services for persons with mental retardation or a delayed development condition. The state Department of Health and Human Resources (DHHR) terminated Petitioner's benefits after determining that Petitioner did not demonstrate substantial adaptive deficits in three or more major life areas. A hearing officer upheld the DHHR's decision. The circuit court affirmed without holding any further proceedings. The Supreme Court reversed, holding that the trial court committed error by failing to make an independent review of Petitioner's eligibility for participation in the Waiver Program. Remanded.
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