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September 24, 2011

Decisions of interest involving Government and Administrative Law

Decisions of interest involving Government and Administrative Law
Source: Justia September 23, 2011

Gonzalez-Droz v. Gonzalez-Colon
Court: U.S. 1st Circuit Court of Appeals
Docket: 10-1881 September 16, 2011
Judge: Selya
Areas of Law: Constitutional Law, Government & Administrative Law, Medical Malpractice
Until 2005, when the Puerto Rico Board of Medical Examiners promulgated a first-in-the-nation regulation that limited the practice of cosmetic medicine to particular classes of medical specialists, all licensed physicians in Puerto Rico could perform cosmetic surgery. The Board enforced the regulation against a physician who did not possess the required specialty board certification. The district court disposed of challenges on the ground that the defendants enjoyed various kinds of immunity and did not reach constitutional issues. The First Circuit affirmed, rejecting claims that the suspension of plaintiff's license amounted to a substantive due process violation and was retaliation for past testimony. The Board afforded due process protections in its hearing process. View Case

Kolev v. Euromotors West/The Auto Gallery, et al.
Court: U.S. 9th Circuit Court of Appeals
Docket: 09-55963 September 20, 2011
Judge: Reinhardt
Areas of Law: Arbitration & Mediation, Consumer Law, Contracts, Government & Administrative Law
Plaintiff brought suit against the Dealership and Porsche when the pre-owned car that she purchased from the Dealership developed serious mechanical problems during the warranty period and the Dealership refused to honor her warranty claims. Plaintiff alleged breach of implied and express warranties under the Magnuson-Moss Warranty Act (MMWA), 15 U.S.C. 2301 et seq., and breach of contract and unconscionability under California law. The district court granted the Dealership's petition to compel arbitration pursuant to the mandatory arbitration provision in the sales contract that plaintiff signed when she bought the car and stayed the action against Porsche. Plaintiff's principal argument on appeal was that the MMWA barred the provision mandating pre-dispute binding arbitration of her warranty claims against the Dealership. Although the text of the MMWA did not specifically address the validity of pre-dispute mandatory binding arbitration, Congress expressly delegated rulemaking authority under the statue to the Federal Trade Commission (FTC). The FTC construed the MMWA as barring pre-dispute mandatory binding arbitration provisions covering written warranty agreements and issued a rule prohibiting judicial enforcement of such provisions with respect to consumer claims brought under the MMWA. Because it was required to defer to the reasonable construction of a statute by the agency that Congress had authorized to interpret it, the court held that the MMWA precluded enforcement of pre-dispute agreements such as Porsche's that required mandatory binding arbitration of consumer warranty claims. The court declined to address plaintiff's remaining claims. Accordingly, the court reversed and remanded for further proceedings. View Case

Father M, et al. v. Various Tort Claimants
Court: U.S. 9th Circuit Court of Appeals
Docket: 10-35206 September 21, 2011
Judge: Ikuta
Areas of Law: Bankruptcy, Government & Administrative Law, Injury Law
This case was related to certain documents produced in discovery and filed in the bankruptcy court, containing allegations that Father M and D, two priests who were not parties to the Portland Archdiocese's bankruptcy case, had sexually abused children. The bankruptcy court held that the discovery documents at issue could be disclosed to the public, because the public's interest in disclosure of these discovery documents outweighed the priests' privacy interest under Rule 26(c) and that the documents filed in court could be disclosed because they did not contain "scandalous" allegations for purposes of 11 U.S.C. 107(b). The court affirmed the bankruptcy court's ruling as to the release of discovery documents disclosing Father M's name under Rule 26(c), because the public's serious safety concerns could not be addressed if Father M's name was redacted. But because the record did not reflect the existence of any similar significant public interest that required the disclosure of Father D's name, the court held that Father D's name must be redacted from any discovery documents that were released. Finally, because of the mandatory duty to keep scandalous material confidential at the request of a party under section 107(b), the court reversed the decision to release the punitive damages memorandum and attached documents. View Case

Comite de Jornaleros de Redondo Beach, et al. v. City of Redondo
Court: U.S. 9th Circuit Court of Appeals
Docket: 06-56869, 06-55750 September 16, 2011
Judge: Smith
Areas of Law: Civil Rights, Constitutional Law, Government & Administrative Law, Labor & Employment Law
Day-laborer organizations challenged a city anti-solicitation ordinance that barred individuals from standing on a street or highway and soliciting, or attempting to solicit, business, or contributions from an occupant of any motor vehicle. The court agreed with the day laborers that the ordinance was a facially unconstitutional restriction on speech where the ordinance failed to satisfy the narrow tailoring element of the Supreme Court's time, place, and manner test and where the ordinance was not narrowly tailored because it regulated significantly more speech than was necessary to achieve the city's purpose of improving traffic safety and traffic flow at two major intersections. Accordingly, the judgment of the district court was affirmed. View Case

Bakanovas v. Holder, Jr.
Court: U.S. 10th Circuit Court of Appeals
Docket: 11-9500 September 20, 2011
Judge: Hartz
Areas of Law: Constitutional Law, Government & Administrative Law, Immigration Law, International Law
Israeli citizens Arturas Bakanovas, Edita Bakanovas, and their daughter, Karolina Bakanovas, sought review of an order of the Board of Immigration Appeals (BIA) that denied their motion to reopen. In 1990 Arturas and Edita Bakanovas emigrated from Lithuania to Israel and became Israeli citizens. In 1991 they entered the United States on visitor visas and, after they overstayed their visas and the Immigration and Nationalization Service issued orders to show cause why they should not be deported, Arturas applied for asylum. The asylum application stated that Arturas had suffered persecution in Israel because of his Catholic faith and Lithuanian origin, that Edita had suffered persecution in Lithuania because of her Jewish faith, and that they both suffered persecution in Israel because of their interfaith marriage. In 1994 an immigration judge denied the Bakanovases asylum and withholding of deportation but granted their request for voluntary departure, with an alternate order of deportation to Israel or Lithuania if they remained in the United States after the voluntary-departure deadline. In October 2000 the BIA affirmed the order, and the Tenth Circuit affirmed that decision. The Bakanovases did not leave the United States, and in January 2007 they were arrested on immigration charges and released on bond. They then met with their current attorney, who informed them in April 2007 of the availability of relief under the Convention Against Torture. In March 2010, almost three years later, they filed a motion to reopen with the BIA, which the BIA denied. They petitioned the Tenth Circuit to review that decision. Because the denial of a motion to reopen is "a final, separately appealable order," the Tenth Circuit lacked jurisdiction to review the case. The Court dismissed Petitioners' appeal. View Case

Southern Ute Indian Tribe v. Sebelius
Court: U.S. 10th Circuit Court of Appeals
Docket: 09-2281 September 19, 2011
Judge: Seymour
Areas of Law: Contracts, Government & Administrative Law, Native American Law
This was the second appeal in litigation arising from the Secretary of Health and Human Services' (HHS) decision not to enter into a self-determination contract with the Southern Ute Indian Tribe (Tribe). In an initial order, the district court ruled that HHS's decision was unlawful, granted summary judgment to the Tribe, and directed the parties to prepare a proposed order for injunctive relief. After the parties were unable to agree on the proposed order, the district court issued an interlocutory order in which it endorsed HHS's approach to the contract’s start date and contract support costs. The Tribe appealed, and the Tenth Circuit dismissed the appeal for lack of jurisdiction. On remand, the district court issued a final order, directing the parties to enter a self-determination contract including HHS's proposed language regarding the contract start date and contract support costs and denying the Tribe’s request for damages. Both parties appealed. Upon review, the Tenth Circuit affirmed the district court's determination that HHS was required to contract with the Tribe and regarding the contract start date, but reversed the court's decision regarding contract support costs. View Case

Serrano v. U.S. Attorney General, et al.
Court: U.S. 11th Circuit Court of Appeals
Docket: 10-12990 September 16, 2011
Judge: Per curiam
Areas of Law: Constitutional Law, Government & Administrative Law, Immigration Law
Plaintiff appealed the district court's judgment dismissing his petition for a writ of mandamus and his complaint seeking declaratory and injunctive relief under the Administrative Procedure Act (APA), 5 U.S.C. 551 et seq. Plaintiff's complaint requested the district court to mandamus the defendants (1) to determine as a matter of law that plaintiff had been "admitted" to the United States for purposes of his application for adjustment of status under 8 U.S.C. 1255(a) and (2) to re-open and re-adjudicate plaintiff's application for adjustment of status, which was previously denied. The court held that plaintiff could not satisfy the requirements for mandamus relief and that he had not demonstrated that he lacked an adequate remedy for obtaining relief. In fact, plaintiff had sued under the APA, which provided an adequate remedy. Therefore, the court held that because plaintiff had an adequate remedy available to him, the district court properly dismissed his request for mandamus relief. The court also held that the plain language of section 1255(a) limited eligibility for status adjustment to an alien who had been inspected and admitted or paroled. That an alien with Temporary Protected Status had lawful status as a nonimmigrant for purposes of adjusting his status did not change section 1255(a)'s threshold requirement that he was eligible for adjustment of status only if he was initially inspected and admitted or paroled. Accordingly, the court held that the district court's ruling was consistent with the plain language of the statute. Furthermore, even if the statutory language was ambiguous, the court deferred to the Department of Homeland Security's consistent and well-reasoned interpretation of the interplay between section 1255(a) and section 1254a(f)(4). Therefore, the court affirmed the district court's dismissal of the petition and complaint. View Case

Samish Indian Nation v. United States
Court: U.S. Federal Circuit Court of Appeals
Docket: 10-5067 September 20, 2011
Judge: Gajarsa
Areas of Law: Government & Administrative Law, Native American Law
The Court of Federal Claims dismissed, for lack of jurisdiction, the most recent claims brought by the Samish Indian Nation in its continuing quest for federal recognition and benefits. The claims court reasoned that some of the allegations were not premised upon any statute that was money-mandating, and that allegations reliant on money-mandating statutes were limited by other statutes, so that they fell outside the scope of the Tucker Act (28 U.S.C. 1491(a)) and the Indian Tucker Act (28 U.S.C. 1505). The Federal Circuit affirmed with respect to some of the allegations because the Tribal Priority Allocation system (25 CFR 46.2) is not money-mandating. The court reversed dismissal of claims under the Revenue Sharing Act, reasoning that the court's ability to provide a monetary remedy under that law is not limited by operation of the Anti-Deficiency Act, 31 U.S.C. 1341. View Case

Griffin v. Bentley
Court: Alabama Supreme Court
Docket: 1101031 September 16, 2011
Judge: Main
Areas of Law: Constitutional Law, Criminal Law, Gaming Law, Government & Administrative Law
Ashley Rich, district attorney of Mobile County, and the State filed separate petitions for a writ of mandamus directed to the Montgomery Circuit Court in an inverse-condemnation action filed by Jesse Griffin and others. Griffin filed the Montgomery action seeking compensation for property, namely electronic "bingo" machines and related equipment and money, previously confiscated by the State from Griffin's facility in Mobile County. Rich and the State each argued that the Montgomery Circuit Court was without subject-matter jurisdiction to interfere with the executive branch's enforcement of the criminal law, and without jurisdiction based on principles of sovereign immunity. In 2010, Griffin opened and operated a facility in containing 25 electronic devices Griffin promoted as lawful charitable bingo machines. That same day, members of the Governor's Task Force on Illegal Gambling seized the 25 machines, as well as other items, from the facility. The machines were transported to a state warehouse in Montgomery County to be stored temporarily. Upon review, the Supreme Court consolidated the petitions for the purpose of writing one Opinion, and granted them, issuing the writs. The Court concluded that neither the fact that the electronic-bingo machines were brought to Montgomery County to be temporarily stored nor the fact that Griffin filed the Montgomery action before the Mobile County district attorney filed the Mobile action erased the fact that the events in this case arose from a criminal action initiated by the investigation of the facility and the resulting seizure of the machines and other evidence, "[t]hus, Griffin's reliance on the duel-litigation statute and the compulsory-counterclaim rule is misplaced." The Court issued the writs and directed the circuit court to vacate its order in favor of Griffin. View Case

Jemison v. Donaldson
Court: Alabama Supreme Court
Docket: 1100768 September 16, 2011
Judge: Murdock
Areas of Law: Government & Administrative Law, Injury Law
Dallas County Sheriff Harris Huffman, Jr., and Deputy Sheriff Ernest Larry Donaldson petitioned the Supreme Court for a writ of mandamus to direct the circuit court to vacate its order denying their motion to dismiss a complaint filed by Plaintiff Marie Jemison alleging multiple claims against them in their individual capacities. Plaintiff alleged that on August 23, 2008, she was traveling in Selma while, at the same time, Deputy Donaldson "was operating a motor vehicle in the line and scope of his agency and/or employment with the Dallas County Sheriff's Department." According to Plaintiff, as she entered the intersection of Lauderdale Avenue and Dallas Avenue, she was struck by Deputy Donaldson's vehicle and, as a result, sustained serious personal injuries. Jemison sued Deputy Donaldson, Donaldson's supervisor Sheriff Huffman, the Dallas County Sheriff's Department, and the Dallas County Commission. Among other claims, Plaintiff alleged negligence and wantonness against Deputy Donaldson for the manner in which he operated his vehicle, negligent entrustment and negligent hiring, training, supervision, and retention against Sheriff Huffman, and vicarious liability against the Dallas County Sheriff's Department and the Dallas County Commission. The defendants filed a motion to dismiss all claims, asserting a lack of subject-matter jurisdiction and a failure to state a claim upon which relief could be granted. Upon review, the Supreme Court found that under the circumstances of this case, Deputy Donaldson was acting in the line and scope of his employment and was entitled to State immunity. Therefore, the trial court erred in failing to grant the motion to dismiss all claims against Deputy Donaldson and Sheriff Huffman. View Case

J.P. v. Anchorage Sch. Dist.
Court: Alaska Supreme Court
Docket: S-13624/S-13633 September 16, 2011
Judge: Christen
Areas of Law: Civil Rights, Education Law, Government & Administrative Law, Juvenile Law, Public Benefits
Parents requested that the Anchorage School District evaluate their child for eligibility for special education services. While awaiting the results of the eligibility assessment, the parents arranged for private tutoring. The school district did not assess the child’s eligibility within the statutorily-required time, and the parents requested a due process hearing. They also arranged for their child to be privately evaluated to determine whether he was eligible for special education services. The school district subsequently completed its evaluation and determined the child to be ineligible for services. At the due process hearing, the parents alleged that the school district committed procedural violations under the federal Individuals with Disabilities Education Act (IDEA), including impermissibly delaying the evaluation. They sought reimbursement for the cost of their child’s private evaluation and tutoring. An independent hearing officer presided over the due process hearing and ultimately agreed with the district that the child was ineligible for services. The hearing officer ordered the school district to pay the cost of the private eligibility assessment and to partially pay the cost of the tutoring. The superior court upheld the award of the private eligibility assessment, but reversed the award of the private tutoring cost. On appeal to the Supreme Court, the school district argued that the parents should not be reimbursed for the evaluation or the tutoring; the parents argued they are entitled to full reimbursement for both expenses. The central question the Court addressed was: where a child is ultimately determined to be ineligible for special education services, does the IDEA provide relief for procedural violations that occur during the process of evaluating the child’s eligibility for services? The Court affirmed the superior court’s decision, upholding the independent hearing officer’s award of the private assessment cost, but reversing the hearing officer’s award of the private tutoring expenses. View Case

Robinette v. Dep't of Fin. & Admin.
Court: Arkansas Supreme Court
Docket: 10-1208 September 15, 2011
Judge: Danielson
Areas of Law: Criminal Law, Government & Administrative Law
Robert Robinette was arrested for suspicion of driving while intoxicated. After Robinette received notice of suspension of his driving privileges, Robinette requested an administrative hearing before the Department of Finance and Administration's Office of Driver Services (DFA). After a hearing the hearing officer allowed the suspension. Robinette appealed, alleging that (1) the notice was deficient because rather than stating that a hearing be requested within seven "calendar" days, the notice stated seven days, thus violating Ark. Code Ann. 5-65-402 or -403; and (2) the omission of the term "calendar" rendered the notice, and any action to suspend his license, void. The circuit court denied Robinette's motion for summary judgment and sustained the decision of the DFA. The Supreme Court affirmed the circuit court's order, holding that because Robinette was granted the opportunity to be heard, he did not demonstrate any prejudice resulting from want of strict compliance in the notice provided him, and therefore, the circuit court did not abuse its discretion in denying Robinette's summary-judgment motion. View Case

Lewis, et al. v. Leon County, et al.
Court: Florida Supreme Court
Docket: SC09-1698 September 22, 2011
Judge: Quince
Areas of Law: Constitutional Law, Government & Administrative Law
Twenty-six Florida counties and the Florida Association of Counties filed suit seeking a declaratory judgment that section 19 of the Laws of Florida (Act) was unconstitutional. The district court affirmed the trial court's decision and held that section 19 of the Act unconstitutionally shifted the responsibility to fund certain costs of court-appointed counsel from the state to the counties in violation of article V, section 14, of the Florida Constitution and that section 19 was unconstitutional based on the Legislature's failure to make the constitutionally required determination of an important state interest, as provided by article VII, section 18(a) of the constitution. The court agreed with the district court and the circuit court that the plain language of article V, section 14 provided that the state was responsible for funding the Offices of Criminal Conflict and Civil Regional Counsel (RCC), including the overhead costs outlined in subsection (c). The court held that, based on its determination that the district court correctly held that section 19 was unconstitutional under article V, section 14, the court concluded that it was unnecessary to address whether section 19 violated article VII, section 18(a) of the constitution. View Case

Kiplinger v. Neb. Dep't of Natural Res.
Court: Nebraska Supreme Court
Docket: S-10-296 September 16, 2011
Judge: Stephan
Areas of Law: Constitutional Law, Environmental Law, Government & Administrative Law, Tax Law
This case involved a constitutional challenge to an occupation tax levied pursuant to Neb. Rev. Stat. 2-3226.05. Appellant landowners, who were residents and taxpayers of natural resources districts in the Republican River basin, brought an action for declaratory and injunctive relief seeking to have the occupation tax declared unconstitutional and its levy and collection enjoined. The district court upheld the constitutionality of the occupation tax, determining that it did not violate the Nebraska Constitution as (1) the occupation tax was not a property tax but, rather, an excise tax levied upon the activity of irrigation; (2) the occupation tax did not result in a commutation of taxes; and (3) section 2-3226.05 was not special legislation. The Supreme Court affirmed, holding (1) the judgment in Garey v. Nebraska Department of Natural Resources did not bar this action under the doctrine of res judicata; and (2) the landowners did not meet their burden of establishing that the occupation tax was unconstitutional. View Case

Wyle v. Lees
Court: New Hampshire Supreme Court
Docket: 2010-624 September 20, 2011
Judge: Duggan
Areas of Law: Construction Law, Government & Administrative Law, Real Estate & Property Law
Defendants Scott and Christina Lees appealed a trial court decision that found in favor of Plaintiff Stephen Wyle on his claim of negligent misrepresentation. In 2002, Defendants purchased a two-unit apartment building. Defendants wished to expand the building, and approached a contractor to add a third apartment to the back of the property. Conditional approval for the site plan was granted in November 2003 and final approval was obtained in January 2004. However, Defendants did not obtain the proper permits prior to building or occupying the unit. As a result, the town's building inspector never inspected the unit. The Lees again hired the contractor both to complete a second addition to the property. Defendants again failed to secure the necessary building permits. After the completion of construction, town officials visited the property a number of times in 2006 and 2007. The town informed Defendants that "[s]ave for acceptable field changes[,] the site plan requirements have been satisfied." Defendants listed the property for sale in 2007. After entering into the agreement, Plaintiff had a comprehensive home inspection performed and sent a list of specific concerns regarding the property to Defendants. The concerns were either remedied by the Defendants or waived by Plaintiff prior to closing. Approximately six weeks after closing, the entire property was inspected by the town building inspector and fire chief which revealed numerous building and life safety code violations. Plaintiff was ordered not to occupy the unit until he corrected the violations and made the site compliant with site plan regulations. After correcting the violations, Plaintiff then brought a single claim against Defendants for negligent misrepresentation. Following a two-day bench trial, the trial court issued an order awarding damages to the Plaintiff. Upon review of the trial court record, the Supreme Court found that the evidence at trial established that Defendants negligently misrepresented that the premises were licensed for immediate occupancy and that they had obtained all the necessary permits. Accordingly, the Court found that the trial record supported the decision in favor of Plaintiff, and the grant of damages. View Case

In the Matter of World Trade Center Bombing Litigation. Steering Committee v. The Port Authority of New York and New Jersey
Court: New York Court of Appeals
Docket: No. 217 September 22, 2011
Areas of Law: Constitutional Law, Government & Administrative Law
This appeal involved litigation that arose from the 1993 terrorist bombing incident in the parking garage of the World Trade Center complex (WTC). At issue was whether the Port Authority of New York and New Jersey (Port Authority) was performing a governmental or proprietary function in its provision of security at the premises. And if the Port Authority was engaged in such a governmental function, whether it exercised discretion in its security decision-making to entitle it to the common-law defense of governmental immunity. The court held that, pursuant to the court's precedents, the provision of security for the benefit of a greater populace involved the allocation of police resources and constituted the performance of a governmental function. The court also held that the governmental immunity doctrine required it to find that the Port Authority was insulated from tortious liability where the court afforded deference to the exercise of discretion by the officials of municipalities and governmental entities. View Case

Weeks v. Workforce Safety & Insurance
Court: North Dakota Supreme Court
Docket: 20110024 September 15, 2011
Judge: Maring
Areas of Law: Government & Administrative Law, Insurance Law, Labor & Employment Law, Public Benefits
Petitioner Toni Weeks appealed a district court judgment that affirmed a decision by Workforce Safety and Insurance (WSI) that reduced her disability benefits. Petitioner was injured at work after being exposed to anhydrous ammonia while employed by Dakota Gasification Company, in Beulah, North Dakota. In 2009, WSI received confirmation that on November 1, 2009, Weeks' social security disability benefits would convert to social security retirement benefits. WSI issued a notice of intention to discontinue or reduce benefits, in which Petitioner was informed that her permanent total disability benefits would end on October 31, 2009, and she would receive an "additional benefit payable" beginning November 1, 2009. Petitioner requested reconsideration. In November 2009, WSI issued an order denying Petitioner further disability benefits after October 31, 2009. Upon review, the Supreme Court found that because Petitioner failed to adequately brief her argument that WSI's reduction of her wage loss benefits violated equal protection under the federal and state constitutions, the Supreme Court declined to address her argument and otherwise affirmed the judgment. View Case

Interest of A.L.
Court: North Dakota Supreme Court
Docket: 20110174-20110177 September 15, 2011
Judge: Kapsner
Areas of Law: Family Law, Government & Administrative Law, Juvenile Law
R.G., father of A.L., appealed a juvenile court order confirming a judicial referee's decision to terminate his parental rights to four minor children. In 2003, R.G. was placed on criminal probation, and in March 2009, his probation was revoked and he was sentenced to a three-year prison term. In September 2009, R.G.'s four children involved in this action were all less than four years old and were residing with their mother when the children were taken into protective custody by Benson County Social Services and placed in foster care after the mother left the children with relatives and did not return. In May 2010, the State petitioned to terminate the parental rights of R.G. and the mother. In August 2010, the juvenile court terminated the mother's parental rights and also found the children were deprived as to R.G., but the evidence was not sufficient to terminate his parental rights. The juvenile court stated R.G. was anticipating being paroled in January 2011 with release to a halfway house for three to four months. The court also stated R.G.'s early release was contingent upon his completion of a drug and alcohol treatment program. After a hearing, a judicial referee terminated R.G.'s parental rights to the four children, finding R.G. was not granted his early parole as anticipated because he had not yet completed his drug and alcohol treatment program due to his conduct in the prison facility. Upon review, the Supreme Court concluded the court did not clearly err in finding the children were deprived, and did not abuse its discretion in terminating R.G.'s parental rights. View Case

Simons v. North Dakota
Court: North Dakota Supreme Court
Docket: 20110012 September 15, 2011
Judge: Sandstrom
Areas of Law: Family Law, Government & Administrative Law, Juvenile Law
Defendant Ben Simons appealed a district court judgment that affirmed an order of the Department of Human Services which found that he had abused his two-year-old child and that services were required. Defendant and his wife Traci required their children to always respond to a parent in a respectful manner and to use the phrases "yes, sir" or "yes, ma'am." In 2009, while the Simons family was attending church, their two-year-old child refused to use the phrases "yes, sir" and "yes, ma'am" when responding to his parents. Defendant took the child outside and swatted him twice on his bottom. When they went back inside, Traci Simons was able to get the child to say "yes, sir" and "yes, ma'am." Later that evening, after returning home, the child again refused to respond to Defendant with "yes, sir." Defendant took the child to an upstairs bedroom and explained to him that he would be spanked if he did not say "yes, sir." When the child continued his refusal, Defendant placed him over his knee and struck him on his buttocks three times with a wooden backscratcher. The child was wearing pants and a diaper. Defendant then hugged and consoled the child for approximately fifteen minutes, explained the consequences if he refused to say "yes, sir," and emphasized to the child that he needed to show respect to his parents. He then gave the child the opportunity to say "yes, sir," and the child again refused. Defendant repeated the three swats with the wooden backscratcher, and again consoled and spoke with the child for approximately fifteen minutes. Two days later, Stark County Social Services received a report of suspected child abuse regarding the child. A social worker investigated the report and observed the bruises on the child's buttocks. Upon completion of the investigation, Stark County Social Services found the child was an abused child and issued a "services required" finding. Upon review, the Supreme Court affirmed, concluding the Department's findings that Defendant had inflicted bodily injury upon the child and used unreasonable force were supported by a preponderance of the evidence and the relevant statutory provisions governing child abuse were not unconstitutionally overbroad or vague. View Case

Brandvold v. Lewis &Clark Public Sch. Dist.
Court: North Dakota Supreme Court
Docket: 20110039 September 15, 2011
Judge: Crothers
Areas of Law: Education Law, Government & Administrative Law, Labor & Employment Law
Plaintiffs Lee Brandvold, Steve Bigelow, Dwight Johnson, Nikki Johansen, and Bruce Peterson (collectively "Brandvold") appealed a district court judgment dismissing their petition for declaratory and injunctive relief. In 2009, the school board of the District voted to close the elementary school located in Ryder as part of an overarching reorganization plan. In February 2010, Brandvold filed a petition in district court alleging that the reorganization process had been tainted by fraud because the Berthold Public School District had not disclosed during its reorganization process information about certain outstanding debts it owed on lease-purchase transactions. Brandvold sought a declaration that the reorganization was invalid and that the District be dissolved and the former districts be reinstated. Brandvold also sought an injunction prohibiting the District from closing any school within the District. The District moved for judgment on the pleadings for Brandvold's failing to state a claim upon which relief could be granted. The district court granted the motion, and judgment was entered dismissing the petition. On appeal, Brandvold challenged only the dismissal of the request for declaratory relief, not the dismissal of the request for injunctive relief. The Supreme Court affirmed, concluding the district court did not err in granting judgment on the pleadings dismissing the petition for failure to state a claim upon which relief could be granted because the alleged irregularities in the reorganization process were rendered moot by the completion of a District-wide election: "[c]onstruing the petition in the light most favorable to Brandvold and accepting the allegations in the petition as true, we conclude no justiciable controversy was presented and the district court did not err in dismissing the petition ." View Case

State ex rel. Dolgencorp, Inc. v. Indus. Comm'n
Court: Ohio Supreme Court
Docket: 20100124 September 15, 2011
Judge: Per Curiam
Areas of Law: Government & Administrative Law, Injury Law, Labor & Employment Law
Employee splashed bleach in her left eye while working for Employer. While Employee lost little vision as a result of the accident, Employee experienced other complications, including light sensitivity and reduced depth perception. Employee subsequently underwent a corneal transplant. Employee sought scheduled-loss compensation under Ohio Rev. Code 4123.57(B), alleging she had sustained a total loss of vision in her left eye due to the removal of her cornea. A staff hearing officer for Industrial Commission of Ohio agreed and awarded Employee a total loss of use. Employer filed a complaint in mandamus. The court of appeals issued a writ ordering the commission to vacate its order, concluding that the commission had abused its discretion in awarding compensation for a total loss of vision. The Supreme Court affirmed the judgment of the court of appeals pursuant to State ex rel. Baker v. Coast to Coast Manpower, L.L.C. View Case

State ex rel. Tindira v. Ohio Police & Fire Pension Fund
Court: Ohio Supreme Court
Docket: 20102065 September 20, 2011
Judge: Per Curiam
Areas of Law: Government & Administrative Law, Insurance Law, Labor & Employment Law
Thomas Tindira was a member of Ohio Police and Fire Pension Fund (OP&F) while working as a police officer with Lakewood Police Department. Before he resigned from the department, Tindira filed his application for disability benefits with OP&F, including in his list of disabling conditions PTSD, anxiety disorder, and major depression. The OP&F board of trustees determined that Tindira was disabled but denied his claim for disability benefits. The court of appeals denied Tindira a writ of mandamus to compel appellees, OP&F and its board of trustees, to vacate the board's denial of his claim and to award him disability benefits and attorney fees. The Supreme Court reversed and granted the writ, holding that the pension fund and its board abused their discretion in denying disability benefits as Tindira had established his entitlement to the benefits. View Case

State ex rel. Miller v. Warren County Bd. of Elections
Court: Ohio Supreme Court
Docket: 20111469 September 15, 2011
Judge: Per Curiam
Areas of Law: Election Law, Government & Administrative Law
Mike Gilb, who had been appointed to fulfill a second unexpired term on the Mason City Council, took out candidate petitions for the upcoming general election for city council. Relators, registered voters and city residents, sent Respondents, the county board of elections, a letter claiming that Gilb was ineligible pursuant to the term-limit provisions of the city charter. The board considered the letter at its regular meeting, determining that there was no action for it to take at the time. Subsequently, Relators filed an expedited election action, requesting a writ of prohibition to prevent Respondents from certifying Gilb as a candidate and a writ of mandamus to compel Respondents to sustain their protest. The Supreme Court (1) denied Relators' prohibition claim because they failed to establish their entitlement to the requested relief as (a) Respondents had not exercised or were not about to exercise quasi-judicial power, and (b) Relators did not establish that they lacked an adequate remedy in the ordinary course of law to challenge Gilb's candidacy; and (2) dismissed Relators' mandamus claim for lack of jurisdiction. View Case

Smith v. McBride
Court: Ohio Supreme Court
Docket: 20100809 September 20, 2011
Judge: Cupp
Areas of Law: Constitutional Law, Government & Administrative Law, Injury Law
Travis Carpenter, a Clinton Township police officer, was involved in a motor vehicle accident outside his own jurisdiction while responding to a general dispatch call for assistance from an officer in another jurisdiction. The passenger in the vehicle that collided with Carpenter's vehicle filed a personal-injury suit naming as defendants, inter alia, Carpenter and Clinton Township. The trial court granted summary judgment to Carpenter and Clinton Township, concluding that they were entitled to immunity under Ohio Rev. Code 2744 because Carpenter was on an emergency call for purposes of the statute as he had a professional obligation to respond to the dispatch. The appellate court affirmed. The Supreme Court affirmed, holding that Carpenter could be considered to have been on an emergency call at the time of the accident for purposes of chapter 2744 when the evidence was insufficient to establish the existence of a mutual-aid agreement between the jurisdictions because application of the immunity statutes in this case did not depend on whether a mutual-aid agreement existed. View Case

Sandlands C&D v. County of Horry
Court: South Carolina Supreme Court
Docket: 27042 September 19, 2011
Judge: Toal
Areas of Law: Constitutional Law, Government & Administrative Law, Zoning, Planning & Land Use
The Supreme Court accepted the certified question from the United States District Court for the District of South Carolina on whether the South Carolina Solid Waste Policy and Management Act, (SWPMA) preempted Horry County Ordinance 02-09 entitled "An Ordinance Regulating the County-Wide Collection and Disposal of Solid Waste Generated within Horry County and for the Prohibition of the Disposal of Solid Waste Materials in any Manner Except as Set Forth Herein; and Providing Penalties for Violation Thereof."  Plaintiffs Sandlands C&D, LLC (Sandlands) and Express Disposal Service, LLC (EDS) are related, privately-owned South Carolina companies.  Sandlands owned and operated a landfill in Marion County, approximately two miles across the Horry County border, and EDS hauls waste originating in South Carolina and North Carolina to Sandlands' landfill.  DHEC granted Sandlands a permit to accept construction and demolition (C & D) waste at the Marion County site.  Prior to the passage of Horry County Ordinance 02-09, Sandlands received C & D waste originating in Horry County and hauled by EDS, accounting for a large portion of the waste processed at its landfill. Upon review of the applicable legal authority, the Supreme Court responded in the negative: the county ordinance was not preempted by the SWPMA. View Case

Skinner v. Westinghouse Electric Corp.
Court: South Carolina Supreme Court
Docket: 27037 September 6, 2011
Judge: Hearn
Areas of Law: Government & Administrative Law, Injury Law, Insurance Law, Labor & Employment Law
Thomas Skinner received an award of benefits from the Workers' Compensation Commission for asbestosis under the scheduled loss provisions of Section 42-9-30 of the South Carolina Code.  Westinghouse Electric Corporation, Skinner's former employer, appealed that decision, arguing Skinner could not recover for a scheduled loss and must proceed under the "general disability" statutes found in Sections 42-9-10 and 42-9-20 of the South Carolina Code. Westinghouse's arguments on appeal concerned the impact of section 42-11-60 on Skinner's right to recover for his pulmonary disease.  In particular, it argued Skinner could only recover for total or partial disability under sections 42-9-10 and 42-9-20, respectively.  The Supreme Court agreed with Westinghouse and reversed the special referee's affirmation of Skinner's award based upon the clear language of section 42-11-60: "[i]n that section, the General Assembly specified that recovery for a pulmonary disease such as Skinner's hinges upon a showing of lost wages under section 42-9-10 and 42-9-20.  Because our resolution of this issue is dispositive of the appeal, it is not necessary for us to address the remaining issues raised by the parties." View Case

Law v. City of Sioux Falls
Court: South Dakota Supreme Court
Docket: 25897 September 21, 2011
Judge: Konenkamp
Areas of Law: Constitutional Law, Gaming Law, Government & Administrative Law, Zoning, Planning & Land Use
At issue in this appeal was a zoning ordinance adopted by the City of Sioux Falls requiring that an on-sale alcoholic beverage business seeking to place video lottery machines in the establishment must meet certain location requirements and apply for a conditional use permit. Plaintiff Rick Law, who conditionally held a liquor license, brought a declaratory action against the City to determine the constitutionality of the ordinance. The South Dakota Lottery intervened in the action. The circuit court ruled that the City exceeded its authority when it enacted the ordinance, concluding that South Dakota's constitutional and statutory scheme indicated that the State intended to fully occupy the field of video lottery to the exclusion of municipal regulation. The Supreme Court affirmed, holding that (1) municipalities do not have the freedom or power to regulate video lottery as the South Dakota Constitution specifically reserves that right to the State and (2) existing legislation does not give municipalities power to license video lottery establishments or otherwise control the location of such establishments. View Case

Summit Water Distrib. Co. v. Utah State Tax Comm'n
Court: Utah Supreme Court
Docket: 20090921 July 29, 2011
Judge: Durham
Areas of Law: Environmental Law, Government & Administrative Law, Tax Law
Summit Water was a mutual water company providing culinary grade water to residential and commercial shareholders. After the Utah State Tax Commission audited Summit Water's annual property tax affidavit and concluded that the value of the distribution facilities was substantially higher than Summit Water reported that year, Summit County assessed Summit Water for the back taxes owed for the previous four years. In all, Summit County assessed Summit Water $204,020 in additional taxes. The Summit County Board of Equalization determined that Summit Water failed to establish that the taxation of the property was incorrect or illegal, concluding (1) Summit Water was not eligible for the constitutional tax exemption afforded to entities that own a water distribution system providing water for irrigating lands because the water used by Summit Water's shareholders was for nonagricultural purposes, and (2) there was no double taxation of Summit Water's property. The Commission affirmed. The district court reversed in part, holding that the constitutional exemption at issue includes any artificial watering of land, including nonagricultural properties. The Supreme Court affirmed, concluding that the constitutional exemption encompasses the nonagricultural watering of lands and that no double taxation occurred. View Case

State ex rel. Wyo. Workers' Safety & Comp. Div. v. Cave
Court: Wyoming Supreme Court
Docket: S-10-0126 September 20, 2011
Judge: Golden
Areas of Law: Government & Administrative Law, Injury Law, Insurance Law, Labor & Employment Law
Shannon Cave suffered a work-related injury and was awarded temporary total disability (TTD) benefits during her recovery. After Cave rejected an offer of temporary light duty work from her employer, the Wyoming Workers' Safety and Compensation Division (Division) reduced Cave's TTD benefits to one-third of the previously authorized amount in accordance with Wyo. Stat. Ann. 27-14-404(j). The Office of Administrative Hearings (OAH) upheld the reduction of TTD benefits. The district court reversed the OAH decision. The Supreme Court reversed the district court's order, holding that the OAH decision was supported by substantial evidence and was not contrary to law as the hearing examiner properly determined that the offer of light duty employment tendered to Cave was bona fide, and therefore, the OAH was obligated to reduce Cave's TTD benefits. View Case


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Subsequent court and administrative rulings, or additions or amendments to laws, rules and regulations may have modified or clarified or vacated or reversed or otherwise have had an impact on the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.



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Text prepared by Harvey Randall except as otherwise noted. Randall, former Principal Attorney, New York State Department of Civil Service, also served as Director of Personnel for the State University System; as Director of Research, Governor’s Office of Employee Relations; and as Staff Judge Advocate General, New York Guard. He has an MPA from the Maxwell School, Syracuse University and a J.D. from Albany Law School.