New York Public Personnel Law: Decisions of interest involving Government and Administrative Law

August 20, 2011

Decisions of interest involving Government and Administrative Law

Decisions of interest involving Government and Administrative Law
Source: Justia August 19, 2011

Briscoe v. City of New Haven
Court: U.S. 2nd Circuit Court of Appeals

Docket: 10-1975 Opinion Date: August 15, 2011

Judge: Jacobs
Areas of Law: Civil Rights, Constitutional Law, Government & Administrative Law, Labor & Employment Law
Plaintiff, an African-American firefighter for the City of New Haven, alleged that the firefighter promotion exams challenged in Ricci v. DeStefano were arbitrarily weighted, yielding an impermissible disparate impact. The district court dismissed the claim as "necessarily foreclosed" by Ricci. The court vacated the judgment of the district court and remanded for further proceedings, but expressed no view as to whether dismissal was warranted based on other defenses raised by the city.

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Cash v. County of Erie, et al.
Court: U.S. 2nd Circuit Court of Appeals

Docket: 09-4707, 09-4371 Opinion Date: August 18, 2011

Judge: Raggi
Areas of Law: Civil Rights, Constitutional Law, Government & Administrative Law, Injury Law
This case stemmed from the sexual assault of plaintiff by a male sheriff's deputy while she was being held in pretrial confinement at the Erie County Holding Center. At issue was whether plaintiff adduced sufficient evidence of municipal liability for this violation of due process to support a jury verdict returned in her favor against Erie County and its then-policy maker, former County Sheriff Patrick Gallivan. The court held that defendants were not entitled to judgment as a matter of law because the evidence was sufficient to support the jury verdict in favor of plaintiff on a municipal liabilities claim under 42 U.S.C. 1983. The court also held that defendants were not entitled to a new trial because the errors they asserted in Question Two of the special verdict form and the verdict itself were not properly preserved for appellate review. Accordingly, the judgment in favor of defendants on the 1983 claim was reversed and the case remanded with instructions to enter judgment on that claim consistent with the jury verdict in favor of plaintiff.

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Sec'y of Labor v. ConocoPhillips Bayway Ref.
Court: U.S. 3rd Circuit Court of Appeals

Docket: 10-2893 Opinion Date: August 16, 2011

Judge: Garth
Areas of Law: Construction Law, Government & Administrative Law, Health Law
The Secretary of Labor cited the refinery for nine "serious" violations of the asbestos in construction standard, which prescribes protective requirements based on measurable concentration of asbestos fibers to which employees are or may be exposed. The ALJ affirmed the violations and the classification. The Occupational Safety and Health Review Commission reduced the classification to "other than serious" under 29 U.S.C. 666, in part because the Secretary failed to present case-specific evidence of possible employee exposure to asbestos. The Third Circuit vacated and remanded for the citations to be affirmed as "serious." Precedent only requires that there could be exposure to asbestos that is substantially probable to lead to serious harm. Applying this standard, the violations were "serious;" there is no need for case-specific evidence. If the Secretary has shown violations of regulations involving Class II work and the presence of asbestos, the burden shifts to the employer to show that the violations were not "serious."

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National Electrical Manufacturers Assoc. v. U.S. Dept. of Energy, et al.
Court: U.S. 4th Circuit Court of Appeals

Docket: 10-1533 Opinion Date: August 16, 2011

Judge: King
Areas of Law: Energy, Oil & Gas Law, Environmental Law, Government & Administrative Law
The National Electrical Manufacturers Association (NEMA) petitioned for review of a final rule promulgated by the U.S. Department of Energy (DOE) setting forth energy conservation standards for electric induction motors ranging in power output from .25 to 3 horsepower (Final Rule). In promulgating the Final Rule, the DOE invoked its authority to establish energy conservation standards for "small electric motor[s]," a term defined by the Energy Policy and Conservation Act (EPCA), 42 U.S.C. 6311(13)(G). NEMA contended that the relevant statutory definition unambiguously excluded all such motors exceeding 1 horsepower, as well as certain motors rated at and less than 1 horsepower, from being regulated as small electric motors. The court held that the Final Rule embodied a permissible interpretation of the statutory definition and therefore, denied the petition for review.

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Life Partners, Inc., et al. v. United States
Court: U.S. 5th Circuit Court of Appeals

Docket: 10-50354 Opinion Date: August 16, 2011

Judge: Elrod
Areas of Law: Government & Administrative Law, Injury Law, Insurance Law
Plaintiffs filed suit in district court against the United States, alleging negligence in record-keeping and the administration of a certain life insurance policy. Plaintiffs subsequently appealed from the district court's order granting the United States' motion to dismiss for lack of subject matter jurisdiction. The court held that plaintiffs did exhaust its administrative remedies, but its claim arose out of a misrepresentation and was barred by the Federal Tort Claims Act (FTCA), 28 U.S.C. 2671.

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Ameristar Airways, Inc., et al. v. Administrative Review Board
Court: U.S. 5th Circuit Court of Appeals

Docket: 10-60604 Opinion Date: August 11, 2011

Judge: Patrick E. Higgenbotham
Areas of Law: Aviation, Government & Administrative Law, Labor & Employment Law
Thomas E. Clemmons, the former director of operations for Ameristar Airways, Incorporated (Ameristar), filed a complaint with the Secretary of Labor alleging he was discharged in retaliation for reporting air safety issues to the Federal Aviation Administration. The Department of Labor Administrative Review Board (Board) found a violation of the employee protection provision of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21), 49 U.S.C. 42121, ordering an award of back pay. The court held that because Clemmons had presented a prima facie case of retaliation and adduced evidence capable of rebutting Ameristar's proffered explanations, substantial evidence supported the Board's finding of liability. The court held, however, that because the question of whether Clemmons' insubordinate email, which was after-acquired evidence, "was of such severity that [he] would have been terminated on these grounds alone" was a question of fact, the court remanded to the agency to make that determination and to adjust the back pay award if necessary.

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Kizer v. Shelby Cnty. Gov't
Court: U.S. 6th Circuit Court of Appeals

Docket: 10-5161 Opinion Date: August 17, 2011

Judge: Van Tatenhove
Areas of Law: Civil Rights, Government & Administrative Law, Labor & Employment Law
Following their termination from appointed county positions, plaintiffs brought suit under 42 U.S.C. 1983, alleging that they were terminated without due process of law. The positions were "unclassified" and not protected under the Tennessee Civil Service Merit System. The district court granted summary judgment in favor of the county and its officials. The Sixth Circuit affirmed, holding that plaintiffs had no legitimate property right to their positions and nothing for the Due Process Clause to protect. Plaintiffs, in their positions five to 21 years, never previously challenged the unclassified nature of their jobs

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Iowa Assurance Corp., et al. v. City of Indianola, et al.
Court: U.S. 8th Circuit Court of Appeals

Docket: 10-3815 Opinion Date: August 16, 2011

Judge: Melloy
Areas of Law: Constitutional Law, Government & Administrative Law, Real Estate & Property Law
The City of Indianola (City) adopted a land-use ordinance requiring the enclosure of "figure eight cars," among other racing vehicles, when two or more such cars were present. Iowa Assurance Corporation and its co-plaintiffs (collectively referred to as "Watson") sued the City, arguing that the ordinance created an uncompensated regulatory taking in violation of the Fifth and Fourteenth Amendments. At issue was whether the district court erred in using the Penn Central Transportation Co. v. City of New York framework to analyze his takings claim. The court held that the district court correctly determined that the ordinance should not be analyzed under the standards of Loretto v. Teleprompter Manhattan CATV Corp., where the ordinance did not erode Watson's right to exclude others from property, which was central to establishing a Loretto claim. The court also held that the district court correctly concluded that the takings test articulated in Nollan v. California Coastal Commission did not apply to the ordinance where the ordinance did not require Watson to dedicate any portion of his property to either the City's or the public's use. Accordingly, the court affirmed the well-reasoned judgment of the district court in its entirety.

http://j.st/Sk7

Nat'l Labor Relations Board v. Leiferman Enterprises, LLC
Court: U.S. 8th Circuit Court of Appeals

Docket: 10-2978, 10-2801 Opinion Date: August 12, 2011

Judge: Smith
Areas of Law: Business Law, Government & Administrative Law, Labor & Employment Law
This case arose when Leiferman Enterprises LLC (Leiferman) unilaterally suspended negotiations with the International Union of Painters and Allied Trades District Council 82 (Union) regarding the renewal of the two parties' collective-bargaining agreement. The NLRB eventually filed a complaint but, during the litigation's pendency, a secured creditor forced Leiferman into receivership. During the receivership, the secured creditor sold Leiferman to Auto Glass Repair and Windshield Replacement Service (WRS), agreeing to indemnify WRS against any potential Board liability. At length, the Board found Leiferman liable for certain unfair labor practices and imposed that liability on WRS, which it determined to be a liable successor-in-interest under Golden State Bottling Co. v. NLRB. The Board subsequently petitioned the court to enforce its order and Leiferman cross-petitioned for review of the order. The court held that the record, reviewed as a whole, contained substantial evidence to support the Board's conclusion that WRS was Leiferman's Golden State successor-in-interest and therefore, the court enforced the Board's order and denied WRS's petition for review.

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United States v. Stover, Jr.
Court: U.S. 8th Circuit Court of Appeals

Docket: 10-3012 Opinion Date: August 16, 2011

Judge: Murphy
Areas of Law: Constitutional Law, Criminal Law, Government & Administrative Law, Tax Law, White Collar Crime
The United States brought this civil action under 26 U.S.C. 7408 to enjoin defendant from promoting several fraudulent tax schemes. After a court trial, the district court permanently enjoined defendant from promoting his schemes, ordered him to advise the IRS of any tax arrangements or business entities formed at his discretion, and required him to provide a copy of its order to his clients. On appeal, defendant argued that the injunction was not supported by adequate factual findings and legal conclusions, and that it was overbroad, an impermissible delegation of Article III power, and an unconstitutional prior restraint. The court rejected defendant's hypertechnical criticisms of the district court's order where section 6700 was a linguistically complex and intricate statute and where the district court need not include the entire statutory language in each of its findings and conclusions. Therefore, the court held that the district court's exhaustive order more than satisfied each of the requirements in section 6700 and affirmed the judgment of the district court.

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In Defense of Animals, et al. v. US Dept. of the Interior, et al.
Court: U.S. 9th Circuit Court of Appeals

Docket: 10-16715 Opinion Date: August 15, 2011

Judge: Per curiam
Areas of Law: Animal / Dog Law, Environmental Law, Government & Administrative Law
This interlocutory appeal arose from an action instituted in the district court to stop the government from rounding up, destroying, and auctioning off wild horses and burros in the Twin Peaks Herd Management Area on the California-Nevada border. Plaintiffs alleged that the government's actions would violate the Wild Free-Roaming Horses and Burros Act (Wild Horses Act), 16 U.S.C. 1331 et seq., and the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq. The court held that the injunction was moot because the roundup sought to be enjoined had taken place. The court noted that, in the event plaintiffs prevailed on the merits of their claims, the district court should consider what relief was appropriate.

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Dougherty, et al. v. City of Covina, et al.
Court: U.S. 9th Circuit Court of Appeals

Docket: 09-56395 Opinion Date: August 16, 2011

Judge: N.R. Smith
Areas of Law: Constitutional Law, Criminal Law, Education Law, Government & Administrative Law
This case arose when a student told a police officer that her teacher, plaintiff, inappropriately touched her and police subsequently searched plaintiff's home for child pornography. Plaintiff and his son sued the police officer, the City of Covina, and the Chief of Police for violating his constitutional rights, claiming that the city and the officers violated his and his son's Fourth Amendment right to be free from unreasonable search and seizure; the city inadequately trained and inadequately investigated complaints about its officers (Monell claim); and all defendants inadequately supervised and trained their subordinates with respect to the incidents alleged. The court held that, under the totality of the circumstances, a search warrant issued to search a suspect's home computer and electronic equipment lacked probable cause when no evidence of possession or attempt to posses child pornography was submitted to the issuing magistrate; no evidence was submitted to the magistrate regarding computer or electronics used by the suspect; and the only evidence linking the suspect's attempted child molestation to possession of child pornography was the experience of the requesting police officer, with no further explanation. The court held, however, that it had not previously addressed such issues and therefore, the officers involved in the search were entitled to qualified immunity. The court also affirmed the dismissal of plaintiff's Monell and supervisory liability claims where amending the complaint would be futile.

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Ammons v. WA Dept. of Social and Health Serv.
Court: U.S. 9th Circuit Court of Appeals

Docket: 09-36130 Opinion Date: August 17, 2011

Judge: Fletcher
Areas of Law: Civil Rights, Constitutional Law, Government & Administrative Law
Appellee sued Mary Lafond, DSHS's Child Study and Treatment Center's (CSTC) CEO, and Norman Webster, the Director of Nursing Services, under 42 U.S.C. 1983 for violating her Fourteenth Amendment substantive due process right to safe conditions while in the custody of a state-run mental institution. LaFond and Webster, relying on qualified immunity, appealed the district court's order denying their motion for summary judgment. The court held that the allegations and evidence against LaFond sufficiently supported a constitutional violation that defeated qualified immunity, while those against Webster did not. Accordingly, the court affirmed the district court's denial of summary judgment as to LaFond and reversed the district court's denial of summary judgment as to Webster. The court remanded for further proceedings.

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Assoc. for Los Angeles Deputy Sheriffs, et al. v. County of Los Angeles, et al.
Court: U.S. 9th Circuit Court of Appeals

Docket: 08-56283 Opinion Date: August 12, 2011

Judge: Pregerson
Areas of Law: Civil Rights, Constitutional Law, Government & Administrative Law, Labor & Employment Law
This appeal concerned the requirements of due process when law enforcement officers charged with felonies were suspended without pay. The officers brought claims under 42 U.S.C. 1983 in federal district court, alleging violations of their Fourteenth Amendment due process rights. The district court subsequently granted defendants' motion to dismiss, holding that the officers had failed to state a claim against the County of Los Angeles, and that the individual defendants were entitled to qualified immunity. The court held that the officers have adequately alleged that defendants' policies caused violations of their constitutional rights and therefore, plaintiffs have stated Monell v. Dept. of Soc. Servs. claims against the county. All individual defendants, however, were entitled to qualified immunity from the claims of two of the officers (Debs and O'Donoghue), whose right to a more substantial post-suspension hearing was not clearly established at the time of the violations. The individually named Civil Service Commissioners were also entitled to qualified immunity from two of the officers' (Wilkinson and Sherr) claims because the Commission was stripped of jurisdiction by the California Court of Appeal in Zuniga v. Los Angeles Civil Service Commission. But those claims could go forward against the Sheriff and the County Supervisors, who were constitutionally required to provide post-suspension procedures for suspended deputy sheriffs who later retired. Therefore, the court remanded for further proceedings.

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United States, et al. v. Corinthain Colleges, et al.
Court: U.S. 9th Circuit Court of Appeals

Docket: 10-55037 Opinion Date: August 12, 2011

Judge: B. Fletcher
Areas of Law: Education Law, Government & Administrative Law
Qui tam relators brought this action on behalf of the United States government, appealing the district court's judgment dismissing, without leave to amend, their original complaint against the Individual Defendants and Ernst & Young (EY) under Federal Rule of Civil Procedure 12(b)(6). Relators alleged that the Individual Defendants, with the help of EY, falsely certified to the Department of Education its compliance with the Higher Education Act's (HEA), 20 U.S.C. 1094, ban on recruiter-incentive compensation in order to receive federal education funds, thereby violating the False Claims Act (FCA), 31 U.S.C. 3729(a)(1), (2), (3), (7). The court held that under the liberal standards for amending complaints, relators should be permitted to plead additional facts that could cure the complaint's deficiencies as to the allegations that Corinthian made a false statement and acted with the requisite scienter. The court also held that relators should have been allowed to amend the complaint to sufficiently state an FCA claim against the Individual Defendants. The court further held that, assuming that their complaint sufficiently alleged a false statement, relators have sufficiently pled an FCA violation as to EY. Accordingly, the court reversed the district court's Rule 12(b)(6) dismissal as to Corinthian, the Individual Defendants, and EY, and remanded with instructions to permit leave to amend the complaint.

http://j.st/5yt

NV Dept. of Corrections v. Cohen, et al.
Court: U.S. 9th Circuit Court of Appeals

Docket: 09-15753, 08-17091 Opinion Date: August 15, 2011

Judge: Hug
Areas of Law: Constitutional Law, Criminal Law, Government & Administrative Law
This consolidated appeal asked the court to consider the constitutionality of the Nevada Department of Corrections' (NDOC) policy prohibiting inmates' personal possession of typewriters. NDOC inmates appealed pro se the district court's grant of summary judgment in favor of the NDOC. The court held that the NDOC's prohibition on inmate possession of typewriters did not unconstitutionally infringe upon the rights of the inmates. The ban was enacted to reasonably advance a legitimate correctional goal of institutional safety. As applied to these inmates, it did not result in an unconstitutional denial of access to courts because they have failed to demonstrate actual injury. Therefore, the district court did not abuse its discretion in either admitting the NDOC's affidavits or ruling on summary judgment when it did. Accordingly, the judgment was affirmed.

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Yonemoto v. Dept. of Veterans Affair
Court: U.S. 9th Circuit Court of Appeals

Docket: 10-15180 Opinion Date: August 17, 2011

Judge: Berzon
Areas of Law: Constitutional Law, Government & Administrative Law, Military Law
Plaintiff, an employee of the Veterans Health Administration, submitted eight requests under the Freedom of Information Act, (FOIA), 5 U.S.C. 552, and the Privacy Act, 5 U.S.C. 552a, primarily asking for emails to and from specified individuals. At issue was whether an agency fulfilled its disclosure obligation by offering to supply the documents to the requester, but only in his capacity as an employee of that agency. Also at issue was the application to internal emails of FOIA Exemption 6, which provided that an agency could withhold "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." The court held that plaintiff's claim as to the 157 emails was not mooted by the VA's offer to provide him the records in his capacity as its employee. The court remanded for the district court to consider the VA's claimed exceptions as to those emails in the first instance. The court also held that, as to the VA's application of Exemption 6 to the nine in camera emails, the district court's decision was vacated and remanded for proceedings consistent with this opinion.

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Howard, et al. v. Oregonian Publishing Co., et al.; Rodriquez et al. v. AMPCO Parking Sys., et al.
Court: U.S. 9th Circuit Court of Appeals

Docket: 10-35779, 10-35751 Opinion Date: August 15, 2011

Judge: Clifton
Areas of Law: Class Action, Consumer Law, Government & Administrative Law, Transportation Law
These appeals involved two essentially identical actions filed in two different states by different groups of plaintiffs, each seeking to represent a class. The actions sought damages on the ground that plaintiffs' personal information was obtained by defendants in violation of the Driver's Privacy Protection Act (DPPA), 18 U.S.C. 2721-2725. Joining other courts which have dealt with similar claims, the court held that defendants' actions were not unlawful under the DPPA and affirmed the dismissal of the actions by the district courts.

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Cypert v. Ind. Sch. Dist. No. I-050 of Osage Cty.
Court: U.S. 10th Circuit Court of Appeals

Docket: 10-5122 Opinion Date: August 15, 2011

Judge: O'Brien
Areas of Law: Civil Rights, Constitutional Law, Government & Administrative Law, Government Contracts, Labor & Employment Law
Plaintiff-Appellant Louanne Cypert brought suit under 42 U.S.C. 1983 and several anti-discrimination statutes alleging that Defendant Independent School District No. I-050 of Osage County's (Prue Public Schools) failure to renew her employment contract violated her First and Fourteenth Amendment rights. Specifically, Plaintiff claimed the District discriminated against her because of her age. The district court granted the District summary judgment, finding that Plaintiff's non-renewal hearing satisfied her Fourteenth Amendment claim to due process, and that she failed to show her speech was the motivating factor that led to the District's non-renewal, and that she failed to show the District's non-renewal resulted from discrimination. In the fall of 2008, the local School Board became concerned about the District’s finances. It initiated an investigation and began terminating employment contracts. Plaintiff's contract was one of the terminated contracts. On appeal, Plaintiff proffered evidence of the Board's keeping younger, lesser-qualified personnel on staff at the time of her termination. Upon review of the trial court's record and the applicable authority, the Tenth Circuit found that Plaintiff's proffered evidence of discrimination did not amount to the requisite proof that her civil and constitutional rights were violated. The Court affirmed the lower court's grant of summary judgement in favor of the District.

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Winne v. City of Lakewood, Colorado
Court: U.S. 10th Circuit Court of Appeals

Docket: 10-1568 Opinion Date: August 15, 2011

Judge: Briscoe
Areas of Law: Civil Rights, Constitutional Law, Government & Administrative Law, Labor & Employment Law
Plaintiff-Appellant Terry Winne appealed a district court's order that dismissed his complaint for failing to state a claim under the Family and Medical Leave Act (FMLA). In 1999, Winne began working for the City of Lakewood, Colorado as an emergency dispatcher. In 2005, he was injured in an automobile accident, requiring that he take medication for headaches. A change in his medication in January 2008 caused him to “suffer cognitive problems,” and he was placed on intermittent FMLA leave throughout “the spring and summer.” On August 11, 2008, the City transferred Winne to the police department’s records section after a psychiatrist found him unfit for his dispatcher duties. Roughly two weeks later, the City fired Winne, “even though he still had available FMLA leave.” The City stated “that the termination was because of his attendance.” Upon review, the Tenth Circuit found that Plaintiff's complaint failed to allege the material elements necessary for his FMLA claim. The Court affirmed the district court's dismissal of his case.

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Aviva Life & Annuity Co. v. FDIC
Court: U.S. 10th Circuit Court of Appeals

Docket: 10-3163 Opinion Date: August 16, 2011

Judge: Murphy
Areas of Law: Banking, Government & Administrative Law, Insurance Law
Plaintiffs Aviva Life & Annuity Company and American Investors Life Insurance Company (collectively, "Aviva") contended the Federal Deposit Insurance Corporation (FDIC) acted in an arbitrary and capricious manner in rendering insurance determinations concerning certain of Plaintiffs’ bank deposit accounts. They appealed a district court’s order upholding the FDIC’s determinations. In 2008, the Kansas Bank Commissioner closed Columbian Bank & Trust Company and appointed the FDIC as receiver. At that time, Plaintiffs maintained twelve deposit accounts at Columbian. The bulk of those funds were held in two accounts (the “Challenged Accounts”). The remaining accounts bore a variety of titles. Shortly after its appointment as receiver, the FDIC determined that each Plaintiffs’ respective accounts identified as “operating” accounts, which included the Challenged Accounts, would be aggregated as corporate accounts. The FDIC further determined that the accounts designated as “benefits” accounts would be separately insured as annuity contract accounts. Upon review of the FDIC's determination and the applicable legal authority, the Tenth Circuit found that the FDIC ultimately concluded the deposit account records clearly and unambiguously indicated the Challenged Accounts were owned in the manner of “corporate accounts.” Plaintiffs’ extrinsic evidence was not, therefore, “relevant data” for purposes of the FDIC’s final insurance determination: "[t]he absence of any discussion pertaining to this evidence in the FDIC’s final determination is therefore unsurprising, and in no way arbitrary or capricious." The Court affirmed the FDIC's determination.

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State of Florida, et al. v. U. S. Dept. of Health and Human Serv., et al.
Court: U.S. 11th Circuit Court of Appeals

Docket: 11-11067, 11-11021 Opinion Date: August 12, 2011

Judges: Hull, Dubina
Areas of Law: Civil Rights, Constitutional Law, Government & Administrative Law, Health Law
Plaintiffs brought this action challenging the constitutionality of the Patient Protection and Affordable Care Act, Pub. L. 111-148, 124 Stat. 119, amended by Health Care and Education Reconciliation Act of 2010 (HCERA), Pub. L. No. 111-152, 124 Stat. 1029 (Act). The government subsequently appealed the district court's ruling that the individual mandate was unconstitutional and the district court's severability holding. The state plaintiffs cross-appealed the district court's ruling on their Medicaid expansion claim. The court held that the Act's Medicaid expansion was constitutional. The court also held that the individual mandate was enacted as a regulatory penalty, not a revenue-raising tax, and could not be sustained as an exercise of Congress's power under the Taxing and Spending Clause; the individual mandate exceeded Congress's enumerated commerce power and was unconstitutional; and the individual mandate, however, could be severed from the remainder of the Act's myriad of reforms. Accordingly, the court affirmed in part and reversed in part the judgment of the district court.

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US Dept. of Homeland Security, et al. v. Federal Labor Relations Authority
Court: U.S. D.C. Circuit Court of Appeals

Docket: 10-1282 Opinion Date: August 12, 2011

Judge: Griffith
Areas of Law: Contracts, Government & Administrative Law, Labor & Employment Law
This case arose when the U.S. Customs and Border Protection (CBP), division of the Department of Homeland Security, changed local work assignments for its inspectors without first negotiating with their union. CBP petitioned for review of the Federal Labor Relations Authority's (Authority) affirmance of an arbitrator's conclusion that this was an unfair labor practice. The court denied the petition for review and rejected CBP's argument that it had no duty to bargain over the disputed changes in work assignment policies because the changes were "covered by" the Revised National Inspectional Assignment Policy (RNIAP) and that, in the alternative, that CBP had no duty to bargain over the changes it made pursuant to the RNIAP because they did not alter inspectors' "conditions" of employment. Accordingly, the court deferred to the Authority's reasonable determination that the RNIAP was not a collective bargaining agreement subject to the "covered by" doctrine and the Authority's reasonable conclusion that the cases CBP cited did not govern the dispute here. Therefore, the court held that the Authority adequately explained its conclusion.

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Indust. Develop. Bd. of the City of Montgomery v. Russell
Court: Alabama Supreme Court

Docket: 1091215 Opinion Date: August 12, 2011

Judge: Murdock
Areas of Law: Contracts, Government & Administrative Law, Real Estate & Property Law, Trusts & Estates, Zoning, Planning & Land Use
The Industrial Development Board of the City of Montgomery (IDB) appealed a circuit court's interlocutory order that denied its motion for summary judgment as to a breach-of-contract claim asserted against it by George and Thomas Russell as co-executors and co-trustees of the wills and testamentary trusts of Earnest and Myrtis Russell, Price and Mary McLemore and several others. In 2001, various officials of the State of Alabama, the City of Montgomery, the Montgomery County Commission, Montgomery Chamber of Commerce and the local water works board began making preparations to secure options to purchase property in the Montgomery area in an attempt to persuade Hyundai Motor Company to build an automobile plant in the area. All the trusts owned acres of land in the targeted area. The IDB signed separate options with the Russells, the McLemores and other trusts to purchase the respective properties. Hyundai's plans for its manufacturing plant changed, and subsequently, not all of the options were exercised. The Russells and the McLemores each filed breach-of-contract actions against the IDB and Hyundai alleging that neither adhered to the terms of their respective options. Upon review, the Supreme Court found that the trial court did not err in denying the IDB's motion for summary judgment. The Court affirmed the lower court's decision.

http://j.st/5Ft

Tellabs Operations, Inc. v. City of Bessemer
Court: Alabama Supreme Court

Docket: 1100393 Opinion Date: August 12, 2011

Judge: Per curiam
Areas of Law: Business Law, Government & Administrative Law, Tax Law
Tellabs Operations, Inc. appealed an administrative agency's decision in its taxpayer's refund action from the circuit court. Tellabs unsuccessfully petitioned for a refund of allegedly overpaid sales taxes to the City of Bessemer. The case was originally filed in Montgomery Circuit Court. Bessemer filed a motion to dismiss, or in the alternative, to change venue to Jefferson Circuit Court. Without holding a hearing on the motion, the circuit court transferred the appeal to Jefferson Circuit Court. In its motion for reconsideration, Tellabs argued the Montgomery Court erred in transferring the appeal. The court responded that it had lost jurisdiction, and Tellabs' only remedy was to petition the Supreme Court. Upon review of the circuit court records, the Supreme Court concluded that the Montgomery Circuit Court erred in transferring the appeal to the Jefferson Court. The Supreme Court vacated the transfer order and remanded the case for further proceedings in Montgomery Circuit Court.

http://j.st/5Fr

MPQ, Inc. v. Birmingham Realty Co.
Court: Alabama Supreme Court

Docket: 1091582 Opinion Date: August 12, 2011

Judge: Wise
Areas of Law: Contracts, Government & Administrative Law, Landlord - Tenant, Real Estate & Property Law
Two appeals between MPQ, Inc. (d/b/a Freedom Enterprises) and Birmingham Realty Company were consolidated by the Supreme Court for the purposes of this opinion. The parties entered into a commercial lease agreement. Birmingham Realty filed suit against MPQ for unpaid rent in circuit court. MPQ filed a counterclaim. Birmingham Realty filed a separate unlawful-detainer action against MPQ in district court. The district court dismissed the detainer action, reasoning that the simultaneous actions in the district and circuit courts violated Alabama's abatement statute. Birmingham Realty appealed the district court's dismissal to the circuit court and filed a motion to dismiss MPQ's counterclaim. The circuit court conducted a hearing on all pending motions. It then entered an order affirming the district court's dismissal of the unlawful-detainer action and dismissed MPQ's counterclaims in the rent action. The court suggested that Birmingham Realty move to dismiss the rent action without prejudice so it could refile its unlawful-detainer action in the district court and then later refile an action in circuit court to seek the unpaid rent. Birmingham Realty took the court's advice and filed the suggested motions. MPQ filed a motion to alter, amend or vacate the court's decision in its counterclaim. The circuit court did not rule on either motion. The parties appealed to the Supreme Court. Upon review, the Supreme Court found Birmingham Realty's appeal from the district court to the circuit court was not timely, and as such, the court did not have jurisdiction over the appeal. The Supreme Court dismissed the appeal and cross-appeal with regard to the unlawful-detainer action and remanded the remaining issues for further proceedings.

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Stevens v. Alaska Alcoholic Beverage Ctrl. Bd.
Court: Alaska Supreme Court

Docket: S-13436 Opinion Date: August 12, 2011

Judge: Winfree
Areas of Law: Business Law, Government & Administrative Law
Appellant Robert Stevens was charged with and convicted of violating local borough noise and adult entertainment ordinances. The borough later protested the continued operation of his bar under its Alcoholic Beverage Control Board (ABC Board) liquor license. The ABC Board sustained the protest and denied Appellant's continued operation. Appellant requested an adjudicatory hearing before an administrative law judge (ALJ) to review the ABC Board's decision. The ALJ recommended the ABC Board uphold its initial decision and enforce the denial of continued operation under the license. Appellant appealed to the superior court which affirmed the ABC Board's decision. Appellant appealed again to the Supreme Court, who found the evidence in the ABC Board's and ALJ's record sufficient to overcome a challenge that the borough behaved in an arbitrary and unreasonable manner in protesting Appellant's operation under his liquor license. The Court affirmed the superior court's decision.

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Baker v. Workers' Comp. App. Bd.
Court: California Supreme Court

Docket: s179194 Opinion Date: August 11, 2011

Judge: Baxter
Areas of Law: Government & Administrative Law, Labor & Employment Law, Public Benefits
In this case, the court construed Labor Code section 4659(c), which provided for the annual indexing of two categories of workers' compensation benefits, total permanent disability and life pension payments, to yearly increases in the state's average weekly wage (SAWW), so that lifetime disability payments made to the most seriously injured workers would keep pace with inflation. The indexing procedure was sometimes referred to as an "escalator," or one providing for "cost of living adjustments" (COLA's). At issue was whether the operative language of section 4659(c) required the annual COLA's for total permanent disability and life pension payments to be calculated (1) prospectively from the January 1 following the year in which the worker became "entitled to receive a life pension or total disability indemnity," (when the payments actually commenced); (2) retroactively to January 1 following the year in which the worker sustained the industrial injury; or (3) retroactively to January 2004, in every case involving a qualifying industrial injury, regardless of the date of injury or the date the first benefit payment became due. Applying fundamental rules of statutory construction, the court held that the Legislature intended that COLA's be calculated and applied prospectively commencing on the January 1 following the date on which the injured worker first became entitled to receive, and actually began receiving, such benefits payments, i.e., the permanent and stationary date in the case of total permanent disability benefits, and the date on which partial permanent disability benefits became exhausted in the case of life pension payments.

http://j.st/5vJ

Voices of the Wetlands v. CA State Water Resources Control Bd., et al.
Court: California Supreme Court

Docket: s160211 Opinion Date: August 15, 2011

Judge: Baxter
Areas of Law: Constitutional Law, Energy, Oil & Gas Law, Environmental Law, Government & Administrative Law, Utilities Law
Plaintiff, an environmental organization, filed this administrative mandamus action to challenge the issuance of a federally required permit authorizing the Moss Landing Powerplant (MLPP) to draw cooling water from the adjacent Moss Landing Harbor and Elkhorn Slough. This case presented issues concerning the technological and environmental standards, and the procedures for administrative and judicial review, that apply when a thermal powerplant, while pursuing the issuance or renewal of a cooling water intake permit from a regional board, also sought necessary approval from the State Energy Resources Conservation and Development Commission (Energy Commission), of a plan to add additional generating units to the plant, with related modifications to the cooling intake system. The court held that the superior court had jurisdiction to entertain the administrative mandamus petition here under review. The court also held that the trial court erred when it deferred a final judgment, ordered an interlocutory remand to the board for further "comprehensive" examination of that issue, then denied mandamus after determining that the additional evidence and analysis considered by the board on remand supported the board's reaffirmed findings. The court further held that recent Supreme Court authority confirmed that, when applying federal Clean Water Act (CWA), 33 U.S.C. 1326(b), standards for the issuance of this permit, the Regional Water Board properly utilized cost-benefit analysis. The court declined to address several other issues discussed by the parties. Accordingly, the court affirmed the judgment of the Court of Appeals.

http://j.st/SZJ

Comm'n on Human Rights & Opportunities v. Litchfield Housing Auth.
Court: Connecticut Supreme Court

Docket: SC18487 Opinion Date: August 23, 2011

Judge: Per Curiam
Areas of Law: Civil Rights, Constitutional Law, Government & Administrative Law, Real Estate & Property Law, Zoning, Planning & Land Use
Letitia Kilby filed a complaint with the Commission on Human Rights and Opportunities, claiming unlawful housing discrimination by Defendants, the town housing authority and a property management company. The Commission found reasonable cause to believe that unlawful discrimination occurred. The trial court then granted Defendants' request to file a civil action in the trial court. Kilby moved to intervene, claiming both intervention as of right and permissive intervention. The trial court denied the motion. The appellate court reversed, concluding that although the statute at issue, Conn. Gen. Stat. 46a-83(d)(2), did not expressly grant Kilby a right of intervention, it impliedly granted Kilby a right of intervention. The Supreme Court granted Defendants' petition for certification to appeal, but while the case was pending, the legislature enacted Conn. Pub. Acts 11-237, which amended the text of section 46a-83 to allow a complainant to intervene as of right in a housing discrimination action brought by the commission on behalf of the complainant. The Court dismissed the appeal, concluding that the significance of Defendants' appeal was substantially undermined by Conn. Pub. Acts 11-237, and, thus, certification was improvidently granted.

http://j.st/S4K

Whiley v. Hon. Rick Scott, etc.
Court: Florida Supreme Court

Docket: SC11-592 Opinion Date: August 16, 2011

Judge: Per curiam
Areas of Law: Constitutional Law, Government & Administrative Law
This case was before the court on the petition of Rosalie Whiley for a writ of quo warranto seeking an order directing the Governor of the State of Florida to demonstrate that he had not exceeded his authority, in part, by suspending rulemaking through Executive Order 11-01. The court granted relief and held that the Governor impermissibly suspended agency rulemaking to the extent that Executive Orders 11-01 and 11-72 included a requirement that the Office of Fiscal Accountability and Regulatory Reform (OFARR) must first permit an agency to engage in the rulemaking which had been delegated by the Florida Legislature. Absent an amendment to the Administrative Procedure Act, 5 U.S.C. 500 et seq., itself or other delegation of such authority to the Governor's office by the Florida Legislature, the Governor had overstepped his constitutional authority and violated the separation of powers.

http://j.st/SZi

Welch v. Iowa Dep't of Transp.
Court: Iowa Supreme Court

Docket: 102029 Opinion Date: August 12, 2011

Judge: Mansfield
Areas of Law: Criminal Law, Government & Administrative Law
After Toby Welch was arrested for operating a vehicle while intoxicated, police officers requested a breath specimen to be used for chemical testing. Welch refused the request. After talking to his attorney, however, Welch told officers that he wanted to consent to the breath test. The officers declined the request, commenting that because Welch had already refused, it was too late to submit to the test. Based on his refusal to submit to chemical testing, the Iowa DOT revoked Welch's driver's license for one year. The DOT's administrative law judge sustained the revocation, and the reviewing officer affirmed. The district court affirmed the revocation. At issue on appeal was whether the "one refusal is determinative" rule set forth in Krueger v. Fulton should be abrogated in favor of a more flexible standard permitting a motorist's subsequent consent to cure a prior initial refusal to submit to chemical testing. The Supreme Court rejected Welch's appeal and upheld the revocation of his license, concluding that a rule treating the motorist's initial refusal as determinative was supported by Court precedents, was consistent with the general assembly's intent, and was easier for police and courts to administer.

http://j.st/5ti

Herrell v. Nat'l Beef Packing Co.
Court: Kansas Supreme Court

Docket: 99451 Opinion Date: August 12, 2011

Judge: Beier
Areas of Law: Government & Administrative Law, Injury Law, Labor & Employment Law
Shelly Herrell filed suit against National Beef Packing Company to recover for a knee injury she suffered while working in its plant as an independent contractor, alleging negligence in maintaining a dangerous condition and failing to warn of a dangerous condition. The district court denied National Beef's motion for summary judgment and motion for judgment as a matter of law on the duty issue, and the jury entered a verdict in favor of Herrell. The court of appeals reversed and remanded for entry of judgment as a matter of law in favor of National Beef, holding that Herrell's remedy was limited to workers compensation because National Beef did not maintain substantial control over Herrell's employer's activities on the premises. The Supreme Court affirmed in part and reversed in part, holding (1) the district court correctly denied judgment as a matter of law to National Beef because National Beef owed Herrell a duty of reasonable care under the circumstances; and (2) the inclusion in the jury instruction a description of an OSHA regulation, with no opportunity for the jury to differentiate any liability based upon it in the general verdict form, polluted the trial of the case and necessitated reversal. Remanded.

http://j.st/5tT

Lawson v. Bowie State Univ.
Court: Maryland Court of Appeals

Docket: 119/10 Opinion Date: August 16, 2011

Judge: Adkins
Areas of Law: Government & Administrative Law, Labor & Employment Law
Tyrone Lawson was a seventeen-year veteran of the Bowie State University Police Department until his termination for violating the Department's chain of command policy. Specifically, Lawson had drafted a letter disclosing alleged abuses by his fellow officers, and instead of reporting the violations to the Department's Chief of Police, Lawson presented the letter to the university's vice president of student affairs. Lawson was later fired for, among other things, insubordination. Lawson sought relief, arguing that he was entitled to whistleblower protection because the letter constituted a "protected disclosure" as contemplated by Md. Code Ann. State Pers. & Pens. 5-305. The ALJ concluded that Lawson's letter was not a protected disclosure because it was part of Lawson's crusade to improve the Department. The circuit court affirmed. The Court of Appeals issued a writ of certiorari and reversed, holding that the ALJ improperly conflated Lawson's personal motivation for disclosure with the statutory requirement that an employee have a reasonable belief that the information disclosed evidences a violation. Remanded.

http://j.st/S4p

Continental Retail, L.L.C. v. County of Hennepin
Court: Minnesota Supreme Court

Docket: A11-345 Opinion Date: August 17, 2011

Judge: Dietzen
Areas of Law: Government & Administrative Law, Real Estate & Property Law, Tax Law
Continental Retail sought certiorari review of the market value determinations by the Minnesota Tax Court for a Continental commercial building for the assessment dates of 2006, 2007, and 2008. Continental filed petitions challenging the county assessor's estimated market value for the three years, and at trial, the tax court increased the market value determinations for all three years. On appeal, Continental argued that the tax court's value determinations were excessive and not supported by the record over the assessed value of the property. The Supreme Court affirmed, holding that the tax court's value determinations were supported by the record and were not clearly erroneous.

http://j.st/SJ4

King v. Hays Lodge Pole Sch. Board of Trs.
Court: Montana Supreme Court

Docket: DA 11-0099 Opinion Date: August 17, 2011

Judge: Cotter
Areas of Law: Education Law, Government & Administrative Law, Labor & Employment Law
Norma Jean King worked for the Hays/Lodge Pole School District for more than thirty-five years, holding positions of elementary school teacher, elementary school principal, and high school principal. After serving as the high school principal for three years, the school district board of trustees reassigned her to an elementary school teaching position. On appeal, the county superintendent and, subsequently, the state superintendent affirmed the board's reassignment decision. The district court reversed the state superintendent's ruling, holding that the state superintendent erred in ruling that a principal position was comparable to a teaching position. The Supreme Court reversed the judgment of the district court, holding that the district court erred in concluding that the positions of teacher and principal were not comparable positions of employment under the applicable statutes. Remanded.

http://j.st/SJT

Whirlpool Properties, Inc. v. Div. of Taxation
Court: New Jersey Supreme Court

Docket: a-25-10 Opinion Date: July 28, 2011

Judge: LaVecchia
Areas of Law: Government & Administrative Law, Tax Law
New Jersey uses a three-factor formula to calculate a multi-state corporation’s New Jersey Corporate Business Tax (CBT) by apportioning income between New Jersey and the rest of the world. For taxpayers with regular places of business outside of New Jersey, the portion of entire net worth and entire net income that is subject to New Jersey tax is determined by multiplying each by an allocation factor that is the sum of the property fraction, the payroll fraction, and two times the sales fraction, divided by four. The sales fraction is at issue in this case. Without the "Throw-Out Rule," the sales fraction is calculated by dividing the taxpayer’s receipts (sales of tangible personal property, services, and all other business receipts) in New Jersey by total receipts. The Throw-Out Rule increases a corporation’s New Jersey tax liability by “throwing out” sales receipts that are not taxed by other jurisdictions from the denominator of the sales fraction. This always increases the sales fraction, causing the apportionment formula and resulting CBT to increase. Whirlpool Properties, Inc. appealed its assessment from 2002, arguing that the Throw-Out Rule was unconstitutional. Upon review of the applicable legal authorities, the Supreme Court held that corporate taxpayers having a substantial nexus to New Jersey may constitutionally apply the Throw-Out Rule to untaxed receipts from states that lack jurisdiction to tax it due to an insufficient connection with the corporation but not to receipts that are untaxed because a state chooses not to impose an income tax.

http://j.st/5t3

Luchejko v. City of Hoboken
Court: New Jersey Supreme Court

Docket: a-38-10 Opinion Date: July 11, 2011

Judge: LaVecchia
Areas of Law: Government & Administrative Law, Injury Law, Real Estate & Property Law
The issue on appeal before the Supreme Court is whether a condominium complex is liable in tort for injury sustained by a pedestrian on its abutting sidewalk. "551 Observer Highway" is the site of a 104-unit condominium complex (the Building). Each unit is owned in fee simple by individual residents who have an undivided interest in the common elements. Every unit owner is a member of the Skyline at Hoboken Condominium Association, Inc. (Skyline), and only an owner may be a Skyline member. The Master Deed requires owners to pay an “Annual Common Expense” assessment, which is used for, among other things, maintaining the common elements and paying insurance premiums. According to the Master Deed, “common elements” included “[a]ll curbs, sidewalks, stoops, hallways, stairwells, porches and patios.” On the morning of February 14, 2006, while walking on the sidewalk abutting the Building, Plaintiff Richard Luchejko slipped on a sheet of ice and was injured. Plaintiff sued Skyline, CM3 (its property manager), the City of Hoboken, and D&D (a snow-clearing services company) alleging negligence for an unsafe sidewalk. All Defendants moved for summary judgment. The trial court granted summary judgment to Skyline, CM3, and Hoboken, but not to D&D. Plaintiff then settled his claim with D&D and unsuccessfully moved for reconsideration of the grant of summary judgment to the remaining Defendants. Upon review of the appellate record, the Supreme Court found that the Appellate Division properly analyzed the facts of this case and concluded that no sidewalk liability attached for the injury to Plaintiff.

http://j.st/5tZ

Hilton Head Automotive, LLC v. So. Carolina Dept. of Transportation
Court: South Carolina Supreme Court

Docket: 27026 Opinion Date: August 15, 2011

Judge: Kittredge
Areas of Law: Constitutional Law, Government & Administrative Law, Real Estate & Property Law
In response to population growth and business development along U.S. Highway 278 in Beaufort County, the South Carolina Department of Transportation ("the Department") engaged experts for the purpose of streamlining the flow of traffic on that highway. The properties on the north side of Highway 278 agreed among themselves to share the cost of modifying and/or building private roads that would allow left turn access to all of their properties by way of the new median crossover. The properties on the south side of the highway, however, were unable to reach such an agreement. As a result, Appellant Hilton Head Automotive's (HHA) property—which is on the south side of the highway—lost its immediate left turn access to and from Highway 278. Nonetheless, HHA retained direct right turn access to and from the eastbound lanes of Highway 278. HHA argued on appeal to the Supreme Court that the Department's reconfiguration of the median crossovers on U.S. Highway 278 was a taking because it deprived Appellant and its customers of the ability to enter or exit the highway by making a left turn. Upon review of the applicable legal authority and the trial court record, the Supreme Court affirmed the decision of the circuit court granting summary judgment in favor of the Department of Transportation.

http://j.st/5vt

Clarendon County v. TYKAT
Court: South Carolina Supreme Court

Docket: 27025 Opinion Date: August 15, 2011

Judge: Kittredge
Areas of Law: Government & Administrative Law, Real Estate & Property Law, Tax Law
Appellant-Respondent Tykat, Inc. appealed an Administrative Law Court's (ALC) decision that upheld Clarendon County's tax assessment on real property Tykat leased from the South Carolina Public Service Authority. Tykat contended the leased property was exempt from tax because the South Carolina Public Service Authority is constitutionally exempt from paying taxes and because Tykat's use of the property may be classified as a public purpose. Clarendon County (through its Assessor) cross-appealed the Administrative Law Court's denial of its request for attorneys' fees and costs. Upon review of the lower court's record and the applicable legal authority, the Supreme Court affirmed the decision of the ALC. Based on the limited challenge raised by Tykat, its leasehold interest was subject to ad valorem taxation under the plain language of section 12-37-950 of the South Carolina Code (2000): "[t]hus, [the Court was] bound to apply the statute as written." Furthermore, the Court affirmed the denial of Clarendon County's request for attorneys' fees and costs.

http://j.st/5vv

Howell v. Nissan N. Am., Inc.
Court: Tennessee Supreme Court

Docket: M2009-02567-SC-WCM-WC Opinion Date: August 11, 2011

Judge: Lee
Areas of Law: Government & Administrative Law, Injury Law, Labor & Employment Law
While Alicia Howell worked on an assembly production line at Nissan North America, she was diagnosed with bilateral carpal tunnel syndrome. After surgery, Howell and Nissan settled Howell's workers' compensation claim for her carpal tunnel injuries. When Howell attempted to return to work, she was told she would be returning to the fast-paced assembly line. Howell resigned and was hired at minimum wage for a temporary staffing agency. Howell then filed a petition for reconsideration of her earlier settlement. The trial court held that Howell was eligible for reconsideration of her workers' compensation benefits because she did not have a meaningful return to work and awarded her a twenty-five percent permanent partial disability rating to each upper extremity. The Special Workers' Compensation Appeals Panel reversed. The Supreme Court reversed the judgment of the appeals panel and reinstated the judgment of the trial court, holding (1) the appeals panel erred in holding that Howell had a meaningful return to work and her decision to resign rather than returning to work was unreasonable, and (2) the trial court's award was not excessive.

http://j.st/5Cj

Bainbridge Island Police Guild v. City Of Puyallup
Court: Washington Supreme Court

Docket: 82374-0 Opinion Date: August 18, 2011

Judge: Fairhurst
Areas of Law: Constitutional Law, Criminal Law, Government & Administrative Law
Appellants Kim Koenig, Lawrence Koss and Althea Paulson sought review of two separate superior court orders that enjoined disclosure of investigative records compiled by the Cities of Puyallup and Mercer Island. The records contained results of internal police department investigations whereby Appellants complained of gross officer misconduct. Appellants argued the records were wrongfully withheld. The appellate court affirmed withholding the records, interpreting case law that held police investigative records relating to an arrest was exempt from retention and copying under state law. The Supreme Court rejected the appellate court's interpretation: "the statute does not exempt information relating to the conduct of the police during the investigation." The Court reversed the trial courts with direction that the trial courts redact the offending officers' identities, but that the description of the police department's investigation should have been produced.

http://j.st/SUi

Dolan v. King County
Court: Washington Supreme Court

Docket: 82842-3 Opinion Date: August 18, 2011

Judge: Chambers
Areas of Law: Government & Administrative Law, Non-Profit Corporations, Public Benefits
King County sought ways to provide legal defense services to indigent criminal defendants. The County settled on a system of using nonprofit corporations to provide services funded through and monitored by the County's Office of the Public Defender (OPD). Over time, the County took steps to improve and make these nonprofit organizations more accountable to the County. In so doing, it asserted more control over the groups that provided defender services. Respondents are employees of the defender organizations who sued the County for state employee benefits. They argued the County's funding and control over their "independent" organizations essentially made them state employees for the purposes of participating in the Public Employees Retirement System (PERS). Applying the pertinent statues and common law principles, the Supreme Court agreed that employees of the defender organizations are "employees" under state law, and, as such, are entitled to be enrolled in the PERS.

http://j.st/SU4

Feil v. E. Wash. Growth Mgmt. Hearings Bd.
Court: Washington Supreme Court

Docket: 84369-4 Opinion Date: August 18, 2011

Judge: Alexander
Areas of Law: Environmental Law, Government & Administrative Law, Zoning, Planning & Land Use
Petitioners Jack and Delaphine Feil appealed the issuance of development permits for the construction of a pedestrian and bike trail by the Washington State Parks and Recreation Commission. "Rocky Reach Trail" was scheduled for development entirely on public property. The Feils are orchardists and members of the Right to Farm Association of Baker Flats. Their property abuts the public property on which the proposed trail would be sited. They contended a developed trail would force the removal of mature fruit trees within the right-of-way, and that the trail violated multiple zoning ordinances that governed the area at issue. The Feils brought several unsuccessful appeals through the Commission and state development-management boards before taking their appeal to the superior court. The superior court dismissed their claims. Upon review, the Supreme Court found that the site's comprehensive plan supported the proposed Rocky Reach Trail and affirmed the lower court's decision to dismiss the orchardists' claims.

http://j.st/S3v

Citizens for Rational Shoreline Planning v. Whatcom County
Court: Washington Supreme Court

Docket: 84675-8 Opinion Date: August 18, 2011

Judge: Johnson
Areas of Law: Environmental Law, Government & Administrative Law, Zoning, Planning & Land Use
The issue on appeal to the Supreme Court was whether RCW 82.02.020, which generally prohibits local governmental bodies from imposing taxes or fees on development, applied to shoreline master programs (SMP) created pursuant to the Shoreline Management Act of 1981. Members of the Citizens for Rational Shoreline Planning (CRSP) owned land regulated under Whatcom County's SMP. The group filed a complaint alleging, in part, that the regulations contained in the SMP constituted a direct or indirect tax, fee or charge on development in violation of RCW 8202.020. The superior court dismissed the claim for failure to state a claim for which relief could be granted. The appellate court affirmed. Upon review of the implicated legal authorities, the Supreme Court affirmed the appellate court: "[w]hile local jurisdictions play a role in tailoring SMPs to local conditions, the Shoreline Management Act dictates that the Department of Ecology retains control over the final contents and approval of SMPs. Therefore, SMP regulations are the product of state action and are not subject to RCW 82.02.020."

http://j.st/SU3

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