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Saturday, September 17, 2011

Decisions of interest involving Government and Administrative Law

Decisions of interest involving Government and Administrative Law
Source: Justia September 16, 2011

Court: U.S. 2nd Circuit Court of Appeals
Docket: 09-3787, 09-3742
September 15, 2011
Judge: Per curiam
Areas of Law: Family Law, Government & Administrative Law, Securities Law, White Collar Crime
This case arose out of the attempts of two federal agencies to disgorge funds from Janet Schaberg, the ex-wife of alleged Ponzi-scheme artist Stephen Walsh. Schaberg subsequently appealed from a memorandum decision and orders of the district court granting preliminary injunctions freezing Schaberg's assets. In response to certified questions, the New York Court of Appeals held that (a) proceeds of a fraud could constitute marital property, and (b) when part or all of the marital estate consisted of the proceeds of fraud, that fact did not, as a matter of law, preclude a determination that a spouse paid fair consideration according to the terms of New York's Debtor and Creditor Law section 272. The court held that because those rulings undermined the key legal assumptions supporting the preliminary injunctions, the court vacated those orders, without prejudice to further proceedings applying the legal principles pronounced by the New York Court of Appeals.
View Case


Court: U.S. 5th Circuit Court of Appeals
Docket: 08-10630
September 15, 2011
Judges: Benavides, Prado
Areas of Law: Civil Rights, Constitutional Law, Government & Administrative Law, Zoning, Planning & Land Use
Plaintiffs, five individuals with disabilities, alleged that defendant recently built and altered sidewalks that were not readily accessible to them and requested injunctive relief under Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. 12132, and section 504 of the Rehabilitation Act, 29 U.S.C. 794(e). At issue was whether Title II and section 504 extended to newly built and altered public sidewalks. Also at issue was whether that private right of action accrued at the time the city built or altered its inaccessible sidewalks, or alternatively at the time plaintiffs first knew or should have known they were being denied the benefits of those sidewalks. The court held that plaintiffs have a private right of action to enforce Title II and section 504 with respect to newly built and altered public sidewalks, and that the right accrued at the time plaintiffs first knew or should have known they were being denied the benefits of those sidewalks.
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Court: U.S. 9th Circuit Court of Appeals
Docket: 10-35590
September 9, 2011
Judge: Fogel
Areas of Law: Government & Administrative Law, Labor & Employment Law
The Secretary of Labor filed a complaint against the State of Washington, Department of Social and Health Services (DSHS), alleging that DSHS failed to pay overtime compensation to certain social workers in violation of the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. 201 et seq. The district court granted summary judgment in favor of DSHS, concluding that the social workers come within the "learned professional" exemption of the FLSA's overtime pay requirements. The court held that because the social workers positions at issue required only a degree in one of several diverse academic disciplines or sufficient coursework in any of those disciplines, DSHS had not met its burden of showing that its social workers positions "plainly and unmistakably" met the regulatory requirement. Accordingly, the court reversed and remanded for further proceedings.
View Case


Court: U.S. 9th Circuit Court of Appeals
Docket: 08-17558
September 12, 2011
Judge: Berzon
Areas of Law: Constitutional Law, Criminal Law, Government & Administrative Law
This case arose when federal law enforcement officers seized funds from passengers who were temporarily in the Atlanta airport changing planes. The travelers truthfully explained that the funds were legal gambling proceeds, not evidence of drug transactions. The travelers subsequently claimed that the seizure and later efforts to institute forfeiture proceedings were unconstitutional and sued in Las Vegas, where they were heading, lived at least part time, and suffered the inconvenience of arriving with absolutely no money, as well as other financial injuries. At issue was whether the district court properly dismissed the Bivens action against the federal officers for lack of personal jurisdiction. The court held that an officer's intentional acts with regard to the false probable cause affidavit and the consequent delay in returning the travelers' money were expressly aimed at Nevada and so satisfied the requirement for personal jurisdiction. As to the search and seizure claim, the court remanded to the district court for the exercise of discretion with regard to pendant personal jurisdiction. The court also held that venue was proper in the District of Nevada.
View Case


Court: U.S. 10th Circuit Court of Appeals
Docket: 10-5155
September 8, 2011
Judge: Briscoe
Areas of Law: Government & Administrative Law, Public Benefits
Petitioner Becky Jean Willig appealed an opinion and order entered by a United States Magistrate Judge that affirmed the decision of the Commissioner of Social Security (Commissioner) denying her application for supplemental security income benefits. In this appeal, Petitioner raised the same issues she raised in the district court: (1) whether the ALJ failed to perform a proper evaluation of the opinion of her treating physician; (2) whether the ALJ failed to propound a proper hypothetical to the vocational expert; and (3) whether the ALJ improperly assessed her credibility. Upon review, the Tenth Circuit concluded that the magistrate judge’s opinion and order was "thorough, well-reasoned and persuasive on each point argued again by Ms. Willig in this court. We see no reason to repeat the same analysis, and we affirm for substantially the same reasons set forth in the opinion and order dated September 28, 2010."
View Case


Court: U.S. Federal Circuit Court of Appeals
Docket: 11-3100
September 9, 2011
Judge: Bryson
Areas of Law: Government & Administrative Law, Labor & Employment Law, Public Benefits
Petitioner married in 2001. Her husband had retired unmarried under the Civil Service Retirement System and elected to receive an annuity payable during his lifetime with no survivor benefits. He died in 2003, and petitioner's application for survivor annuity benefits was denied. After considering evidence about a conversation that husband purportedly had with one of its employees, the Office of Personnel Management affirmed, stating that husband could have elected to receive a reduced lifetime annuity with survivor benefits for a new wife only by notifying OPM of his intentions in a signed writing within two years of his marriage, 5 U.S.C. 8339(k)(2)(A). An administrative judge upheld the decision, stating that the decision would become final on June 21, 2004, unless a petition for review was filed. Petitioner did not file until 2010, claiming disability made her unable to attend to the matter. The Board denied her petition for review as untimely filed, finding no credible medical evidence regarding her condition. The Federal Circuit affirmed.
View Case


Court: U.S. D.C. Circuit Court of Appeals
Docket: 10-5163
September 13, 2011
Judge: Griffith
Areas of Law: Government & Administrative Law, Health Law, Public Benefits
In a 2008 administrative appeal, the Secretary of Health and Human Services ruled that a Medicare beneficiary enrolled in Medicare Part C still qualified as a person "entitled to benefits" under Medicare Part A. As a result, Beverly Hospital received a smaller reimbursement from the Secretary for services it provided to low-income Medicare beneficiaries during fiscal years 1999-2002. The district court granted summary judgment for Beverly Hospital on the ground that the Secretary's interpretation violated the plain language of the Medicare statute. The court held that the statute did not unambiguously foreclose the Secretary's intepretation. The court, nonetheless, affirmed the district court on the alternative ground that the Secretary must be held to the interpretation that guided her approach to reimbursement calculations during fiscal years 1999-2002, an interpretation that differed from the view she now advanced. Under her previous approach, the hospital would have prevailed on its claim for a larger reimbursement.
View Case


Court: Colorado Supreme Court
Docket: 10SC275
September 12, 2011
Judge: Hobbs
Areas of Law: Government & Administrative Law, Real Estate & Property Law, Zoning, Planning & Land Use
In this case, the District Court for Jefferson County dismissed a condemnation petition for a private way of necessity because the developer of the allegedly landlocked parcel did not sufficiently define the scope of and necessity for the proposed condemnation. Evidence showed that the development might vary from one to thirty residential dwellings which prevented the court from entering a condemnation order that would minimize the burden to be placed upon condemnee’s property. The court of appeals ruled that the condemnation could proceed based only upon the zoning of the condemnor’s property. The Supreme Court disagreed with the appellate court, and reinstated the district court’s judgment. The Supreme Court held that, when a petitioner seeks to condemn a private way of necessity for access to property it wishes to develop in the future, it must demonstrate a purpose for the condemnation that enables the trial court to examine both the scope of and necessity for the proposed condemnation, so that the burden to be imposed upon the condemnee’s property may be ascertained and circumscribed through the trial court’s condemnation order. The record in this case supported the trial court’s dismissal of the condemnation petition.
View Case


Court: Connecticut Supreme Court
Docket: SC18488
August 16, 2011
Judge: Eveleigh
Areas of Law: Government & Administrative Law, Real Estate & Property Law, Tax Law, Zoning, Planning & Land Use
The present matter arose from three related tax appeals involving Plaintiff Goodspeed Airport's property that consisted of a commercial utility airport and forty-three acres of open fields. The superior court denied relief on Plaintiff's claim seeking reclassification and assessment of certain of its real property as open space and disposed of all three appeals. The appellate court concluded that (1) 13.08 acres of Plaintiff's property were ineligible for open space classification; and (2) Plaintiff, notwithstanding the ongoing improper classification of its property by Defendant, the town of East Haddam, was not entitled to judicial relief from the improper assessment of its forty-three acres. The Supreme Court reversed, holding that the appellate court improperly concluded that the trial court properly determined that the 13.08 acres were ineligible for open space classification and that Plaintiff was not aggrieved pursuant to Conn. Gen. Stat. 12-117a on the basis of Defendant's ongoing overassessment of the forty-three acres. Remanded.
View Case


Court: Connecticut Supreme Court
Docket: SC18686
June 28, 2011
Judge: Zarella
Areas of Law: Constitutional Law, Government & Administrative Law, Tax Law
For several years, Plaintiff Housatonic Railroad Company purchased diesel fuel from a petroleum distributor that was used exclusively by Plaintiff as part of its interstate freight rail business. The distributor remitted the petroleum tax to Defendant, the commissioner of revenue services. The distributor separately billed Plaintiff for the amount of tax it paid to the department of revenue services, and Plaintiff paid that amount directly to the distributor. Plaintiff then submitted requests to the department for a refund of the money paid for the petroleum tax by the distributor to the department. The commissioner denied Plaintiff's request. Plaintiff appealed. The trial court granted Defendant's motion to dismiss, concluding that the state was immune from suit because Plaintiff could not establish an exception to sovereign immunity under any of three separate statutory provisions. The Supreme Court affirmed, holding that none of the statutory provisions on which Plaintiff relied permits a rail carrier to bring an action against the state for a refund of taxes paid by a petroleum distributor.
View Case


Court: Connecticut Supreme Court
Docket: SC18617
June 28, 2011
Judge: Zarella
Areas of Law: Constitutional Law, Government & Administrative Law
Complainant, an attorney and private investigator, asked the town tax assessor to provide him with an exact electronic copy of the file that the department of motor vehicles had provided to the town pursuant to Conn. Gen. Stat. 14-163 for use in preparing the town's motor vehicle grand list. The assessor denied the request, stating that the electronic file was protected from disclosure pursuant to Conn. Gen. Stat. 1-217. The freedom of information commission ordered the town to provide to complainant an exact electronic copy of the electronic file. Several parties intervened as plaintiffs, and the trial court consolidated their administrative appeals. The court then dismissed the appeals. The Supreme Court reversed the trial court, holding that section 1-217 applies to motor vehicle grand lists and their component data provided to the town assessors pursuant to section 14-163.
View Case


Court: Connecticut Supreme Court
Docket: SC18601
August 9, 2011
Judge: McLachlan
Areas of Law: Constitutional Law, Government & Administrative Law
In four decisions, Defendant, the freedom of information commission, ordered Plaintiff, a town ethics commission, to make and maintain, for three years, audio recordings of Plaintiff's executive sessions or any other session closed to the public after finding that (1) Plaintiff violated the open meetings provision of the Freedom of Information Act by convening in nonpublic sessions to discuss certain matters and (2) Plaintiff had failed to comply with the commission's orders to amend its minutes to reflect those discussions. The trial court consolidated Plaintiff's appeals and then dismissed them. The Supreme Court reversed, holding that the commission's orders exceeded its remedial authority under the Freedom of Information Act. Remanded with direction to render judgments in favor of Plaintiff.
View Case


Court: Connecticut Supreme Court
Docket: SC18426
August 16, 2011
Judge: McLauchlan
Areas of Law: Environmental Law, Government & Administrative Law, Real Estate & Property Law
Plaintiff, landowner of property consisting in part of wetland soil, filed a petition for a declaratory ruling with the Fairfield town conservation commission, seeking a determination that certain activities, including the construction of roads, were permitted as of right pursuant to section 4.1(a) of the town's inland wetlands and watercourses regulations. The commission, acting it its capacity as the town's inland wetlands and watercourses agency, denied the petition. The trial court dismissed Plaintiff's administrative appeal. The Supreme Court affirmed, holding that the trial court properly determined that Conn. Gen. Stat. 22a-40(a)(1) and section 4.1(a) of the regulations did not permit, as of right, the filling of wetlands to construct roads, irrespective of whether the roads are directly related to the farming operation.
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Court: Connecticut Supreme Court
Docket: SC18378
August 2, 2011
Judge: Harper
Areas of Law: Business Law, Corporate Compliance, Government & Administrative Law, Labor & Employment Law
Plaintiff, the commissioner of labor, applied to the superior court for a warrant to inspect the premises of Defendant, a fire company, to investigate whether the fire company was in compliance with the requirements of Connecticut's Occupational Safety and Health Act. The trial court dismissed for lack of subject matter jurisdiction the commissioner's warrant application, concluding that the fire company did not fall within the act's definition of a covered employer, which by statutory definition was "the state and any political subdivision thereof" because the fire company was an independent corporation. The Supreme Court affirmed, holding that the fire company did not fall within the core definition of a political subdivision of the state.
View Case


Court: Georgia Supreme Court
Docket: S11A1252
September 12, 2011
Judge: Nahmias
Areas of Law: Civil Rights, Constitutional Law, Government & Administrative Law
Appellant challenged his conviction for violating a county ordinance regulating the volume of noise from "mechanical sound-making devices." Appellant contended that the provision was facially invalid under the free speech clause of the Georgia Constitution. Ga. Const. of 1983, Art. I, Sec. I, Par. V. The court held that the county drew the challenged provision of its ordinance deliberately and in response to specific concerns, and the county had offered good reasons for rejecting appellant's proposed alternatives. The court also held that the provision advanced a substantial government interest in the least restrictive way. Furthermore, the provision was content neutral and left open ample alternatives for communication. Therefore, the ordinance was a reasonable, content-neutral time, place, and manner speech regulation and appellant's facial challenge to it was without merit.
View Case


Court: Georgia Supreme Court
Docket: S11X0761, S11A0760
September 12, 2011
Judge: Melton
Areas of Law: Constitutional Law, Government & Administrative Law
This appeal involved the manner in which a superior court could enforce the provisions of the Open Records Act (Act), OCGA 50-14-1, against a municipality. Plaintiffs filed a complaint alleging an Open Records Act violation against the city and requested, among other things, an award of attorney fees and an injunction preventing the city from holding any future "secret" meetings. The city ultimately conceded that it had violated the Act but filed an appeal, arguing that the trial court's imposition of attorney fees was improper. The court held that OCGA 36-33-5 did not apply to plaintiffs' request for attorney fees and that the Act explicitly authorized the assessment of attorney fees. The court also held that the city's argument was defeated by the plain text of the Act. Therefore, based on this explicit grant of legislative authority, the trial court did not err. The court finally held that plaintiffs provided no evidence that the trial court abused its discretion by determining that the amount of attorney fees awarded to plaintiffs, not the amount for which they asked, was reasonable under the circumstances of the case. Accordingly, the court affirmed the trial court's award of attorney fees and expenses.
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Court: Georgia Supreme Court
Docket: S11A1102
September 12, 2011
Judge: Melton
Areas of Law: Constitutional Law, Government & Administrative Law, Injury Law
Plaintiff filed a suit against two county police officers in their individual capacities, contending that the officers negligently operated their vehicles by causing plaintiff to lose control of his vehicle and crash. Plaintiff sustained bodily injuries and plaintiff's son was killed in the crash. At issue was whether OCGA 36-92-3 was unconstitutional because it was not part of the Georgia Tort Claims Act (GTCA), OCGA 50-21-20 et seq. The court held that the trial court properly denied plaintiff's claim and properly granted summary judgment in favor of the officers where the Legislature was not limited to waiver of immunity solely in the GTCA and where the Legislature extended immunity to county employees like the officers in a section of the Georgia Code specifically applicable to counties, demonstrating that it had the constitutional authority to enact OCGA 36-92-3.
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Court: Kansas Supreme Court
Docket: 100157
September 9, 2011
Judge: Luckert
Areas of Law: Government & Administrative Law, Zoning, Planning & Land Use
This appeal stemmed from an order granting summary judgment to the Board of County Commissioners regarding its challenge to the annexation of certain land by Park City. The district court then granted Park City an extension of time to file a postjudgment motion. Twenty days after the district court's order, Park City filed a motion for postjudgment relief under Kan. Stat. Ann. 60-259(f). The district court denied the motion as untimely, observing that a motion under section 60-259(f) must be filed within ten days after entry of judgment, and Kan. Stat. Ann. 60-206(b) specifically prohibits a district court from extending this time period. After the thirty-day time limitation for filing notice of appeal had expired, Park City appealed the summary judgment ruling. The court of appeals dismissed the appeal in part for lack of jurisdiction and affirmed the district court's decision in part, concluding that the unique circumstances doctrine, which permits an appellate court to exercise jurisdiction over a late appeal if the appellant reasonably relied on some judicial action, did not save the untimely appeal. The Supreme Court affirmed, holding that the doctrine could not be used to extend a statutory deadline that was jurisdictional.
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Court: Maine Supreme Court
September 8, 2011
Judge: Alexander
Areas of Law: Government & Administrative Law, Labor & Employment Law
The Town of Millinocket appealed and Mary Walsh cross-appealed from a judgment of the superior court following a jury trial finding that Walsh, the former town recreation director, had engaged in activities protected by the state whistleblowers' protection act and that those protected activities were a substantial motivating cause for the Town's decision to eliminate her position. At issue on appeal was whether discriminatory animus expressed by one member of the town council could be found to be a cause or motivating factor for an adverse employment action or whether the lack of evidence of discriminatory animus by any other member of the town council insulated the Town from liability in Walsh's discrimination action. The Supreme Court affirmed the trial court's judgment, holding (1) an improper motive or discriminatory animus of one member of a multi-member council may create an actionable claim against the governmental entity if a plaintiff proves, and the jury finds, that the improper motive or discriminatory animus was a motivating factor or a substantial cause for an adverse employment action taken against a plaintiff who has engaged in a protected activity; and (2) evidence in the record supported the jury's verdict in this case.
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Court: Nebraska Supreme Court
Docket: S-10-894
September 9, 2011
Judge: Gerrard
Areas of Law: Government & Administrative Law, Labor & Employment Law
Employee was injured and began receiving disability benefits. Later, Employer and its workers' compensation insurance carrier (collectively Employer) stopped paying Employee benefits because of his lack of cooperation in obtaining treatment and adhering to his pain rehabilitation program. Employee petitioned for past-due benefits, rehabilitation, and future medical treatment. On February 29, 2008, the workers' compensation court ordered Employee to refrain from abusive communications and to enroll in a pain rehabilitation program. On March 28, 2008, the court dismissed Employee's petition and terminated his benefits for contempt and unreasonably refusing to cooperate. Later, Employee filed a further petition in the workers' compensation court, seeking further benefits. The trial court entered an order on January 10, 2010 vacating the March 28 order. A review panel affirmed and remanded to the trial court, holding that the workers' compensation court had no authority under the Nebraska Workers' Compensation Act to terminate Employee's right to future benefits for contemptuous behavior. The Supreme Court affirmed, holding that a compensation court is not authorized to dismiss a petition as a sanction for a party's conduct either because an injured worker failed to cooperate with treatment or rehabilitation or as an exercise of contempt authority.
View Case


Court: Nebraska Supreme Court
Docket: S-10-710
September 9, 2011
Judge: McCormack
Areas of Law: Government & Administrative Law, Labor & Employment Law
The Commission of Industrial Relations was presented with an industrial dispute between the Professional Firefighters Association of Omaha, Local 385, and the City of Omaha. Prior to resolution of the industrial dispute, the Commission issued a status quo order requiring the City to adhere to the employment terms in place at the time. Local 385 then instituted proceedings in the district court, alleging that the City was in violation of the status quo order. The district court entered an order (1) finding that the City was in violation of the status quo order by failing to retain the required minimum number of fire personnel, and (2) determining that the City was not in violation of the status quo order by failing to maintain a specific number of fire captains based on the Commission's previous determination that the issue was one of management prerogative. The City appealed and Local 385 cross-appealed. The Supreme Court dismissed the appeal, holding the appeal was moot because the industrial dispute between the parties had been resolved in an order that also dissolved the status quo order.
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Court: New Hampshire Supreme Court
Docket: 2010-610
September 15, 2011
Judge: Duggan
Areas of Law: Government & Administrative Law, Landlord - Tenant, Real Estate & Property Law
Defendant-Tenant Wendy Wilson appealed a district court ruling that she breached her lease with Plaintiff Nashua Housing Authority. She rented an apartment in a public housing development. The lease provided that tenants "shall not engage in any drug related criminal activity on or off NHA property." Breach of that clause is cause for eviction from the leased unit. After reading a newspaper article about Defendant's arrest, the landlord sent her an eviction notice and subsequently brought a possessory action against Defendant for breach of the lease. At the eviction proceeding, the landlord introduced three criminal drug complaints that alleged Defendant "unlawfully dispensed and sold a certain narcotic drug, to wit: morphine." Defendant contended on appeal that the criminal complaints were not sufficient to prove she breached her lease. Upon review of the matter, the Supreme Court found that the criminal complaints were not sufficient to prove that Defendant had actually engaged in the alleged activity. As such, the Court reversed the eviction court's decision to the contrary.
View Case


Court: New Hampshire Supreme Court
Docket: 2010-707
September 15, 2011
Judge: Lynn
Areas of Law: Criminal Law, Government & Administrative Law, Injury Law
Plaintiff Dana Chatman appealed a superior court decision that dismissed his lawsuit against Defendants James Brady and the Lee Country Fair brought pursuant to RSA 651:70 (2007), an immunity statute. In May 2007, Plaintiff pleaded guilty to felony operating a vehicle while certified as a habitual offender. The trial court sentenced him to one year in the Strafford County House of Corrections, with all but fourteen days to be served on administrative home confinement. As a condition of his release, he was required to wear a monitoring bracelet. Because he could not afford the daily fee associated with the bracelet, he was required to work to cover its costs. On or about September 9, 2007, Plaintiff’s work assignment was to help clean up the grounds at the site of defendant Lee Country Fair, assisting in loading tables and chairs onto a trailer owned by Defendant Brady. While the loaded trailer was being hitched to the truck, a weld on the trailer hitch failed causing the trailer to fall on the plaintiff’s leg. Plaintiff sued alleging that Brady was negligent and that Lee Country Fair was vicariously liable for that negligence. He alleged that Brady knew or should have known that loading the trailer prior to hitching it to the truck would cause excessive stress to the trailer hitch and welds, and that maneuvering the fully loaded trailer to the truck while on soft, uneven ground was unreasonably dangerous. Upon review, the Supreme Court concluded that RSA 651:70 did not afford Defendants immunity under the facts alleged in this case, and therefore, the trial court erred in dismissing Plaintiff’s lawsuit.
View Case


Court: Ohio Supreme Court
Docket: 20111371
September 9, 2011
Judge: Per Curiam
Areas of Law: Election Law, Government & Administrative Law
On May 23, 2011, John Coble filed with the board of elections a nominating petition to run for municipal court judge at the November 8, 2011 election. On June 1, 2011, Coble withdrew his candidacy. On June 13, 2011, Coble filed a new nominating petition for the same office and the same election. On July 29, 2011, the board rejected Coble's petition and refused to certify him as a candidate for municipal court judge based on a directive issued on July 22, 2011 by the secretary of state declaring that a person who withdraws his candidacy for office cannot file a new declaration and petition for the same office at the same election. Coble subsequently filed an expedited election action for a writ of mandamus to compel the board to certify him and place his name on the November 8, 2011 election ballot. The Supreme Court granted the writ, holding that the board of elections abused its discretion and clearly disregarded applicable law by rejecting Coble's candidacy for municipal court judge due to an applicable exception in Coble's case.
View Case


Court: Vermont Supreme Court
Docket: 2010-372
September 9, 2011
Judge: Skoglund
Areas of Law: Contracts, Government & Administrative Law, Government Contracts
This appeal stemmed from a written agreement between the City of Rutland and the Vermont Swim Association (VSA) that granted VSA the right to host its annual swim meet at a facility in a city park. VSA appealed the trial court's award of attorney's fees to the City. Because the plain language of the parties' contract did not require VSA to pay attorney's fees incurred by the City in pursuing either indemnity from VSA or other third-party actions, the Supreme Court reversed the trial court's ruling and remanded the case for further proceedings.
View Case


Court: Vermont Supreme Court
Docket: 2010-361
September 9, 2011
Judge: Dooley
Areas of Law: Energy, Oil & Gas Law, Environmental Law, Government & Administrative Law, Injury Law
The issue on this appeal centers on who should bear responsibility for the cost of cleaning up petroleum contamination caused by releases from a gas station's underground storage tanks. The controversy in this appeal was between the State of Vermont, which runs the Vermont Petroleum Cleanup Fund (VPCF) and Stonington Insurance Co. (Stonington), which insured Bradford Oil, the owner of the underground storage tanks, for approximately a three-and-a-half-year period. The State appealed the trial court's judgment limiting Stonington's liability to a 4/27 share of past and future cleanup costs and awarded the State $45,172.05. On appeal, the State argued: (1) the Supreme Court's application of time-on-the-risk allocation in "Towns v. Northern Security Insurance Co." did not preclude joint and several liability under all standard occurrence-based policy language; (2) the circumstances here, including the reasonable expectations of the insured and the equity and policy considerations, support imposing joint and several liability on Stonington for all of the State's VPCF expenditures; and (3) even if time-on-the-risk allocation would otherwise be appropriate, Stonington was not entitled to such allocation because it failed to show sufficient facts to apply this allocation method in this case. Upon review, the Supreme Court concluded that "Towns" was the controlling case law here, and the Court was unconvinced by the State's reasonable expectations, equity, and policy arguments to distinguish the "Towns" decision. Accordingly, the Court affirmed the lower court's decision.
View Case


Court: Washington Supreme Court
Docket: 84555-7
September 15, 2011
Judge: Fairhurst
Areas of Law: Government & Administrative Law, Real Estate & Property Law
RCW 60.04.091(2) requires mechanics' liens to be "acknowledged pursuant to chapter 64.08 RCW." In other words, an authorized person must certify in writing that the signor executed the lien freely and voluntarily. RCW 60.04.091(2) also includes a sample claim of lien that the statute states "shall be sufficient" but that does not include language satisfying the acknowledgment requirement. Contractors Athletic Fields Inc. and Hos Bros.Construction Inc. each filed claims of lien that used the sample form and did not contain certificates of acknowledgment. In each case, the lower court concluded the lien was invalid. Upon review, the Supreme Court disagreed with the trial courts and held that a claim of lien in the sample form is valid despite the absence of a proper acknowledgment.
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