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Saturday, September 03, 2011

Decisions of interest involving Government and Administrative Law


Decisions of interest involving Government and Administrative Law
Source: Justia September 2, 2011


Court: U.S. 5th Circuit Court of Appeals


Docket: 10-30709
: August 26, 2011
Judge: Colloton
Areas of Law: Constitutional Law, Government & Administrative Law, Labor & Employment Law, Legal Ethics, Professional Malpractice & Ethics
Plaintiff was a secretary of G. Thomas Porteous, Jr. during his service as a district judge until Porteous was impeached and the Judicial Council of the Fifth Circuit suspended Porteous's authority to employ staff, which resulted in plaintiff's termination. Plaintiff sued the Judicial Council and fifteen of its members seeking declaratory relief, reinstatement to her position, monetary relief, and attorney's fees and costs. Plaintiff subsequently appealed the district court's order insofar as it dismissed her claims against the members of the Judicial Council. The court held that plaintiff lacked prudential standing to bring her constitutional challenge to the Judicial Council's action. The court rejected plaintiff's claim that the ultra vires exception applied to sovereign immunity where her claims for injunctive relief were moot in light of Porteous's removal from office; claims for back pay and retirement credits were barred by sovereign immunity; and plaintiff lacked the necessary injury-in-fact to pursue declaratory relief. The court also held that even if plaintiff had standing to seek declaratory relief, she had not pleaded a sufficient claim of ultra vires action by the Judicial Council to overcome the jurisdictional bar of sovereign immunity. Accordingly, the judgment was affirmed.



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Court: U.S. 6th Circuit Court of Appeals


Docket: 10-3200
: August 31, 2011
Judge: Stranch
Areas of Law: Government & Administrative Law, Government Contracts, Health Law, Public Benefits
A 66-year -old arrived at petitioner's center with complex ailments, but oriented, able to feed herself and able to speak. During her 18 days at the center, she was sent to the hospital twice with serious medical complications. Upon investigation, the center was found to have failed to maintain substantial compliance with federal regulations for facilities that participate in Medicare and Medicaid (42 U.S.C. § 1395) in its treatment of the resident and appealed the resulting civil money penalty. An administrative law judge, the Departmental Appeals Board, and the Sixth Circuit affirmed. The ALJ acted properly in requiring submission of written testimony, properly weighed the evidence, and found violation of the federal hydration standard, laboratory services requirement, and mandate of a care plan, resulting in "immediate jeopardy."



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Court: U.S. 7th Circuit Court of Appeals


Docket: 10-2311
: September 1, 2011
Judge: CUDAHY
Areas of Law: Government & Administrative Law, Government Contracts, Health Law, Injury Law, Medical Malpractice
A newborn suffered severe brain damage because doctors failed to promptly diagnose and treat an infection contracted at his 2003 birth. He was born prematurely and certain tests, normally done during pregnancy, were not performed by the federally-subsidized clinic where the mother received care. The clinic and its doctors are deemed federal employees under the Federally Supported Health Centers Assistance Act, 42 U.S.C. 233(g)-(n), and shielded from liability under the Federal Tort Claims Act. In 2005 the parents filed suit in state court and, in 2006, HHS denied an administrative claim for damages. Within six months of the denial the case was removed to federal court. In 2010, the district court held that the claim was filed within the two year statute of limitations under the FTCA (28 U.S.C. 2401(b)) and awarded more than $29 million in damages against the government. The Seventh Circuit affirmed. A claim only accrues when a plaintiff obtains sufficient knowledge of the government-related cause of his injury; the plaintiffs were reasonably diligent.



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Court: U.S. 7th Circuit Court of Appeals


Docket: 10-2340
: August 26, 2011
Judge: WOOD
Areas of Law: Government & Administrative Law, Transportation Law
Federal regulators limit the number of hours during which commercial truck drivers may operate their vehicles in a given day and over the course of a week, 49 C.F.R. 395.8(b) (2010). The traditional paper system for recording time is subject to manipulation and falsification. When the FMCSA considered requiring truckers to use electronic on-board records (EOBRs) instead of logbooks for documenting their records of duty status, it acknowledged that Congress contemplated rules mandating electronic monitoring, but also required the agency to ensure that any such device is not used to "harass vehicle operators." The 2010 final rule applied to motor carriers "that have demonstrated serious The Seventh Circuit held that the rule is invalid because the agency failed to consider an issue that it was statutorily required to address.



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Court: U.S. 8th Circuit Court of Appeals


Docket: 10-1092
: August 29, 2011
Judge: Colloton
Areas of Law: Family Law, Government & Administrative Law, Public Benefits, Trusts & Estates
Appellee sued the Commissioner of the Social Security Administration (SSA), seeking review of the SSA's denial of benefits to her daughter. At issue was whether a child conceived through artificial insemination more than a year after her father's death qualified for benefits under the Social Security Act, 42 U.S.C. 402, 416. The Commissioner interpreted the Act to provide that a natural child of the decedent was not entitled to benefits unless she had inheritance rights under state law or could satisfy certain additional statutory requirements. The court held that the Commissioner's interpretation was, at a minimum, reasonable and entitled to deference, and that the relevant state law did not entitle the applicant in this case to benefits. Therefore, the court reversed the district court's judgments.



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Court: U.S. 8th Circuit Court of Appeals


Docket: 10-3134
: August 30, 2011
Judge: Shepherd
Areas of Law: Civil Rights, Constitutional Law, Government & Administrative Law, Public Benefits
Appellee applied for supplemental security income under Title XVI of the Social Security Act, 42 U.S.C. 1382. The Commissioner of the Social Security Administration subsequently appealed the district court's decision, arguing that the ALJ permissibly discounted appellee's testimony and that the district court substituted its own judgment for that of the ALJ in concluding otherwise. In the alternative, the Commissioner asserted that even if the ALJ erred, the district court should have remanded for additional proceedings and erred in directing the entry of an award of benefits. The court held that valid reasons supported the ALJ's adverse credibility determination and that substantial evidence in the record supported the ALJ's determination that appellee could perform sedentary work as long as he had the option of alternating between sitting and standing. Therefore, the court reversed the district court's decision and remanded for the district court to affirm the decision of the Commissioner.



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Court: U.S. 9th Circuit Court of Appeals


Docket: 09-17479, 09-17481, 09-16375
: August 26, 2011
Judge: Thomas
Areas of Law: Constitutional Law, Criminal Law, Government & Administrative Law, Immigration Law, Injury Law
This case stemmed from plaintiff's detention as an undocumented immigrant where plaintiff claimed that various authorities deprived him of medication for his schizophrenia and that the detention resulted from the insufficient training of public defenders regarding the immigration consequences of criminal pleas. At issue was whether plaintiff properly exhausted his administrative remedies under the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346, 2671-80, where the federal agencies denied plaintiff's administrative tort claims before he amended his complaint in an ongoing civil action to name the United States as a party and allege a new cause of action under the FTCA. The court held that the claims were properly exhausted but affirmed the district court's dismissal on the alternative ground that plaintiff stated FTCA claims that fell outside the FTCA's waiver of sovereign immunity. The court also affirmed the grant of summary judgment on plaintiff's ineffective assistance of counsel claims, premised on 42 U.S.C. 1983 and Monell v. Department of Social Services.



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Court: U.S. 9th Circuit Court of Appeals


Docket: 10-55496, 09-55586
: August 26, 2011
Judge: Fletcher
Areas of Law: Government & Administrative Law, Injury Law
Plaintiff appealed the district court's decision granting defendants' motion to strike plaintiff's defamation suit under California's anti-SLAPP statute. Cal.Civ. Proc. Code 425.16. Plaintiff argued that the district court erred in concluding that plaintiff failed to make a prima facie case that various statements made by the county supervisor were false. Plaintiff also appealed the district court's order granting attorney's fee under California's anti-SLAPP statute. The court held that plaintiff failed to make a prima facie case that the "substance" of the county supervisor's statements were false. The court also held that the district court did not abuse its discretion in awarding attorney's fees incurred by defendants in bringing both anti-SLAPP motions. Therefore, the court affirmed both decisions of the district court.



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Court: U.S. 9th Circuit Court of Appeals


Docket: 09-16609
: August 31, 2011
Judge: Paez
Areas of Law: Constitutional Law, Criminal Law, Government & Administrative Law
Plaintiff filed a federal complaint against officers and the Mount Shasta Police Department pursuant to 42 U.S.C. 1983, alleging that the officers violated his Fourth Amendment rights when they entered his home without a warrant and obtained evidence that he had driven under the influence of alcohol. Plaintiff had pled nolo contendere to a violation of California Vehicle Code section 23103.5(a). The district court dismissed plaintiff's section 1983 complaint, concluding that the case was barred by Heck v. Humphrey and that the district court therefore lacked subject matter jurisdiction. The court held, however, that Heck did not bar the section 1983 claim where plaintiff's conviction derived from his plea, not from a verdict obtained with supposedly illegal evidence. The court also held that, even if the terms of plaintiff's appellate waiver were ambiguous, the court would construe that ambiguity against the government and conclude that the waiver in the plea agreement did not affect plaintiff's ability to pursue this separate civil law suit. The court further held that there was no collateral estoppel bar to plaintiff's Fourth Amendment claim in this civil action. Therefore, the court reversed and remanded.



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Court: U.S. 9th Circuit Court of Appeals


Docket: 09-56372
: August 26, 2011
Judge: Reinhardt
Areas of Law: Constitutional Law, Criminal Law, Government & Administrative Law, Injury Law
This case arose from a traffic stop for a seatbelt violation in which a Los Angeles County Sheriff pepper sprayed plaintiff and struck him with a baton after plaintiff exited his vehicle and disobeyed the Sheriff's order to reenter it. Plaintiff filed this action against the Sheriff and the county, claiming that the Sheriff's use of force was excessive under the Fourth Amendment and that the Sheriff's conduct constituted false imprisonment and negligence under California tort law. The court affirmed the district court's grant of summary judgment to the Sheriff with respect to plaintiff's false imprisonment claim because the Sheriff had lawful authority to arrest plaintiff on account of his violation of Cal. Penal Code 148(a)(1). The court held, however, that the use of intermediate force was unreasonable and the suspect clearly posed no threat to the officer or the public safety. Therefore, the court reversed as to the dismissal of plaintiff's excessive force and negligence claims.



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Court: U.S. 10th Circuit Court of Appeals


Docket: 10-3060
: August 30, 2011
Judge: Tymkovich
Areas of Law: Government & Administrative Law, Native American Law, Real Estate & Property Law
The Tenth Circuit considered whether the Bureau of Indian Affairs (BIA) properly exercised its discretion to reject a gift of property by a member of the Miami Tribe of Oklahoma to the tribe. The Court noted that this appeal also raised a novel jurisdictional question regarding its review of administrative decisions following a remand from district court. James Smith wanted to transfer to the tribe a portion of his property interest in the Maria Christiana Reserve No. 35 (southwest of Kansas City) where the tribe had plans to develop gaming facilities. Federal law and restrictions on Smith’s fee interest required the BIA to approve any transfer. Citing concerns regarding fractional land interests in the Reserve as well as the long-range best interests of Reserve landowners, the BIA denied Smith’s application to transfer the land. The Tribe challenged that decision. Upon review, the Tenth Circuit held the BIA properly exercised its discretion in denying the application. With regard to the jurisdictional question raised, the Court concluded that the government has not abandoned its right to challenge the district court’s remand order, even though the government substantially prevailed in the district court’s final judgment. The Court found the district court erred in its remand order reversing the BIA’s denial of Smith’s application. Therefore the Court vacated the district court’s final judgment and its order reversing the BIA, and remanded the case for further consideration of Smith’s application consistent with this opinion.



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Court: U.S. 10th Circuit Court of Appeals


Docket: 10-1410
: August 31, 2011
Judge: Baldock
Areas of Law: Government & Administrative Law
Plaintiffs Mary Hull, Nelson Phelps, and the Association of US West Retirees appealed a district court’s order that rejected their Freedom of Information Act (FOIA) claim against Defendant Internal Revenue Service (IRS). The issue central to Plaintiffs’ appeal focused primarily on whether the request on its face sought only a third party’s return information to which they were not entitled without the authorization of that third party. Upon review, the Tenth Circuit concluded it did, and therefore the IRS properly withheld the requested information in the absence of US West’s consent. Accordingly, the Court affirmed the judgment of the district court in favor of the IRS.



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Court: U.S. 10th Circuit Court of Appeals


Docket: 10-3002
: September 1, 2011
Judge: Tymkovich
Areas of Law: Business Law, Civil Rights, Gaming Law, Government & Administrative Law
The issue before the Tenth Circuit in this case pertained to a "class-of-one" equal protection lawsuit against a county government based on its demand that a property owner correct a nuisance. Kansas Penn Gaming, LLC alleged that after it and Cherokee County became involved in litigation concerning a casino development agreement, the County health department targeted Kansas Penn for a regulatory enforcement action. In particular, the County sent Kansas Penn a notice stating that the unkempt condition of its property violated state and local nuisance laws and regulations and warning that failure to clean up the property would lead to an enforcement action. Although the County never brought an enforcement action against Kansas Penn, Kansas Penn sued the County and some of its officials under 42 U.S.C. 1983. In its complaint, Kansas Penn alleged the notice of nuisance violated its right to equal protection by arbitrarily and maliciously singling it out for selective enforcement. Because the Tenth Circuit agreed with the district court that Kansas Penn failed to state a claim for relief under the standard set forth by "Bell Atl. Corp. v. Twombly," the Court affirmed dismissal of the complaint.



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Court: U.S. 11th Circuit Court of Appeals


Docket: 10-13071, 09-16246
: August 29, 2011
Judge: Edmondson
Areas of Law: Government & Administrative Law, Injury Law, International Law
Plaintiffs, citizens and residents of Bolivia, brought suit under the Alien Tort Statute (ATS), 28 U.S.C. 1350, against the former President and Defense Minister of Bolivia (defendants) for decisions these leaders allegedly made while in high office. Plaintiffs asserted that defendants violated international law by committing extrajudicial killings; by perpetrating crimes against humanity; and by violating rights to life, liberty, security of person, freedom of assembly, and freedom of association. The court held that because the pertinent international law was not already clear, definite, or universal enough to reach the alleged conduct (especially after the pleadings were stripped of conclusory statements), the court declined to expand the kinds of circumstances that could be actionable under the ATS to cover the facts alleged in this case. Accordingly, the court held that the denial of the motion to dismiss these claims was reversed.



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Court: U.S. 11th Circuit Court of Appeals


Docket: 09-12129
: August 29, 2011
Judge: Pryor
Areas of Law: Civil Rights, Constitutional Law, Government & Administrative Law, Legal Ethics, Professional Malpractice & Ethics
The United States appealed an award of attorney's fees and costs under the Hyde Amendment, Pub. L. No. 105-119, section 617, 111 Stat. 2440, 2519, and two attorneys, Sean Cronin and Andrea Hoffman, appeal public reprimands entered against them based on their work as Assistant United States Attorneys in an underlying criminal action marked by hard adversarial tactics. The court held that the district court abused its discretion when it imposed sanctions against the United States for a prosecution that was objectively reasonable, and the district court violated the constitutional right to due process of the two lead prosecutors, when it denied them notice of any charges of misconduct and an opportunity to be heard. Therefore, the court vacated the award of attorney's fees and costs against the United States and the public reprimand of Cronin and Hoffman, but the court denied the request of Cronin and Hoffman that the court reassign the case to a different district judge at this stage.



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Court: U.S. Federal Circuit Court of Appeals


Docket: 11-5003
: August 29, 2011
Judge: Rader
Areas of Law: Government & Administrative Law, Military Law
The class action alleged that National Guard members were required to take correspondence courses to keep positions or advance in rank and sought compensation for time spent on the courses. At the time, 37 U.S.C. 206 provided for compensation for: "equivalent training, instruction, duty, or appropriate duties, as the Secretary may prescribe . . . . This section does not authorize compensation for work or study performed by a member of a reserve component in connection with correspondence courses of an armed force." The Federal Circuit reversed dismissal. Meanwhile, Congress amended 37 U.S.C. 206(d), retroactively clarifying that National Guard members would not be compensated for correspondence courses. Plaintiffs amended their complaint to add a claim that retroactive application of these amendments amounted to taking of vested rights. The district court granted the government summary judgment. The Federal Circuit affirmed. The earlier remand was not a holding that plaintiffs were entitled to compensation. The trial court had authority to consider and acted within its discretion in finding that none of the plaintiffs received written orders or authorizations from state commanders in connection with correspondence courses, so none were placed in a duty status necessary for federal payment.



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Court: U.S. D.C. Circuit Court of Appeals


Docket: 09-7150
: August 26, 2011
Judge: Rogers
Areas of Law: Constitutional Law, Criminal Law, Government & Administrative Law, Injury Law
Appellant, as personal representative of her brother's estate, sued to recover damages for the shooting death of her brother by a Metropolitan Police Department (MPD) detective and contended on appeal that she did not receive a fair trial. The principal issue concerned the district court's rulings on the inadmissibility of portions of an internal MPD report regarding the altercation between the detective and appellant's brother. A related issue involved a violation of the pretrial disclosure requirements of Federal Rule of Civil Procedure 26. The court held that there was no abuse of discretion by the district court. The record revealed that the district court properly excluded those parts of the report likely to confuse the jury and unfairly prejudice the government. The court held that the government failed to comply with Rule 26(a)(2)(E) by not supplementing the medical expert's disclosure to reflect an interview with the detective on which the expert intended to rely at trial, but that the violation was harmless and so the district court's refusal to strike the expert's testimony was not an abuse of discretion. Accordingly, because appellant's other claims of error and her bias claim were unpersuasive, the court affirmed the judgment.



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Court: Kentucky Supreme Court


Docket: 2010-SC-000322-TG
: August 25, 2011
Judge: Venters
Areas of Law: Government & Administrative Law, Labor & Employment Law
Appellants, a county fiscal court, a county fire district, and ten municipal corporations, appealed from a final order of the circuit court that held (1) the state labor cabinet had jurisdiction to pursue an administrative agency action against Appellants to collect, on behalf of firefighters employed by Appellants, unpaid overtime compensation; and (2) the Appellant municipalities were not cloaked with governmental or sovereign immunity from such claims. The Supreme Court granted Appellants' motion to transfer and affirmed, holding (1) the relevant statutes directing city and county governments to pay their employees in a prescribed manner necessarily implies a waiver of immunity from liability to the employees for non-payment; and (2) the labor cabinet was authorized to proceed with its action against Appellants to recover the unpaid portion of the firefighters' overtime pay for firefighters pursuant to Commonwealth, Labor Cabinet v. Hasken.



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Court: Massachusetts Supreme Court


Docket: SJC-10786
: September 1, 2011
Judge: Duffly
Areas of Law: Constitutional Law, Family Law, Government & Administrative Law
This case involved a challenge to the constitutionality of the new Massachusetts Child Support Guidelines. Plaintiffs, parents who claim that they will be subject to higher child support orders as a consequence of the new guidelines, sought declaratory and injunctive relief to enjoin the mandatory use of the new guidelines. Plaintiffs subsequently appealed the dismissal of their complaint where the Superior Court judge determined that the complaint failed to state a claim on which relief could be granted. The court affirmed the dismissal of the complaint and held that the declaratory judgment statute, G.L.c. 231A, prohibited any action for declaratory relief against the judicial department and plaintiffs would have an opportunity to challenge the new guidelines as applied in their individual cases.



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Court: Montana Supreme Court


Docket: DA 10-0537
: August 30, 2011
Judge: Morris
Areas of Law: Government & Administrative Law, Health Law, Real Estate & Property Law, Zoning, Planning & Land Use
Appellees Dana Headapohl and Lawrence Martin placed two buildings in the floodplain without a permit and installed an un-permitted incinerating toilet. The health department issued a notice of violation (NOV) to Appellees, informing them that the two structures constituted "increased use" of the septic system in violation of the health code and requiring Appellees to remove the buildings and incinerating toilet. The health board affirmed the Department's NOV following a hearing. The district court concluded that Appellees had not violated the health code by adding the two buildings, that the contested provisions of the health code suffered unconstitutional vagueness as applied to Appellees, and that the incinerating toilet did not qualify as a wastewater treatment and disposal system under the health code. The Supreme Court reversed, holding (1) the district court relied on an incomplete interpretation of "increased use" to determine whether the addition of the two buildings constituted increased use of the septic system that violated the health code, and (2) Appellees' incinerating toilet required a permit under the health code as a wastewater treatment and disposal system. Remanded to determine whether Appellees' changes of use could result in increased effluent flow to the septic system.



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Court: New Mexico Supreme Court


Docket: 32,475
: July 27, 2011
Judge: Serna
Areas of Law: Energy, Oil & Gas Law, Government & Administrative Law
This case consolidated appeals that challenged the Public Regulation Commission's (PRC) effort to comply with the Efficient Use of Energy Act (EUEA).  The EUEA was amended by the Legislature, requiring the PRC to identify and remove regulatory disincentives to a public utility's implementation of energy efficiency programs.  To comply with this legislative mandate, the PRC issued a Final Order amending its Energy Efficiency Rules.  The Attorney General (AG) and the New Mexico Industrial Energy Consumers (NMIEC) separately appealed the PRC's Final Order, challenging the Final Order on several grounds.  The Supreme Court consolidated both appeals, and after reviewing the record, annulled and vacated the PRC's Final Order.



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Court: New York Court of Appeals


Docket: No. 218
: August 30, 2011
Judge: Per curiam
Areas of Law: Civil Rights, Constitutional Law, Election Law, Government & Administrative Law
Plaintiffs commenced this hybrid declaratory judgment action/article 78 proceeding, seeking a declaration that the implementation of Local Law No. 3-2011 in relation to the November 8, 2011 general election was null and void for lack of compliance with the Nassau County Charter. At issue was whether the metes and bounds descriptions in Local Law No. 3-2011 applied to the 2011 general election or whether they were the first part of a three-step process to take effect in 2013. The court held that Supreme Court properly declared that Local Law No. 3-2011 was in accord with Nassau County Charter 112, but that its implementation was null and void in connection with the November 8, 2011 general election for lack of compliance with Nassau County Charter 113 and 114. Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, without costs, and the order and judgment of Supreme Court reinstated.



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Court: Ohio Supreme Court


Docket: 20091064, 20091065, 20091067, 20091071, and 20091072
: August 25, 2011
Judge: O'Donnell
Areas of Law: Contracts, Energy, Oil & Gas Law, Government & Administrative Law
Five companies entered into special contracts with the Toledo Edison Company for the sale of electricity. The Public Utilities Commission of Ohio (PUCO) established February 2008 as the termination date for the contracts, basing its finding on the language of the special contracts and its orders in earlier electric-deregulation cases. Appellants challenged the decision, contending (1) Toledo Edison agreed in 2001 that the contracts would not terminate until Toledo Edison stopped collecting regulatory-transition charges from its customers, and (2) December 31, 2008 was the date when Toledo Edison stopped collecting regulatory-transition charges. The Supreme Court reversed, holding that the PUCO ignored the plain language of the 2001 amendments to Appellants' special contracts, and accordingly, the PUCO unlawfully and unreasonably allowed Toledo Edison to terminate the special contracts in February 2008.



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Court: Ohio Supreme Court


Docket: 20111266
: August 31, 2011
Judge: Pfeifer
Areas of Law: Election Law, Government & Administrative Law, Real Estate & Property Law, Zoning, Planning & Land Use
The Liberty Township board of trustees approved a zoning amendment that rezoned three parcels of township land. Subsequently, a group of petitioners filed a referendum petition seeking to submit the board's action approving the rezoning of the property to the electors of the township. Relators, the owner of the property at issue, the developer of the property, and the developer company's president, submitted a protest to the county board of elections against the referendum petition. The board certified the referendum petition and placed the rezoning issue on the general-election ballot and rejected Relators' protest grounds. Relators then filed this action for a writ of prohibition and a writ of mandamus to compel the board to sustain their protest. The Supreme Court granted the writ of prohibition, holding that the board of elections abused its discretion by denying Relators' protest, certifying the referendum petition, and submitting the zoning amendment to the electorate because the petitioners did not timely file their referendum petition pursuant to statute.



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Court: Oregon Supreme Court


Docket: S058311
: September 1, 2011
Judge: Johnson
Areas of Law: Constitutional Law, Government & Administrative Law
Commissioner of Public Lands Peter Goldmark sought a writ of mandamus to compel Attorney General Robert McKenna to pursue an appeal of a trial court decision in a condemnation action. Although Mr. McKenna provided representation at the trial court, he refused to pursue the appeal based on his evaluation of the merits of the case. The commissioner wished to appeal, which he discussed with his general counsel, an assistant attorney general. The commissioner and the attorney general then exchanged correspondence and met on at least one occasion, but the attorney general refused to file the appeal for the commissioner. The attorney general also refused to appoint a special assistant attorney general (SAAG) to pursue the appeal for the commissioner. Upon review, the Supreme Court found that the issue in this case was one of first impression: the Court had never been "squarely presented" with an instance of the attorney general refusing to represent a state officer on an appeal. "Under the statutes, the responsibility is clear." Because the Court found no discretion within the attorney general's statutory duty, the Court issued the writ and directed the attorney general to provide the commissioner with legal representation.



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Court: South Dakota Supreme Court


Docket: 25698, 25715-a-GAS
: August 24, 2011
Judge: Severson
Areas of Law: Civil Rights, Constitutional Law, Government & Administrative Law, Real Estate & Property Law, Zoning, Planning & Land Use
Over a period of two years, the City of Sioux Falls issued Daniel Daily four citations for a concrete extension to his driveway. Daily appealed each of the citations, but a hearing was held only on the final two citations received. Daily then initiated a declaratory judgment action against the City. The trial court ultimately concluded that the City's administrative appeals process, both as written and as applied, and the City's enforcement of its zoning ordinances violated Daily's constitutional rights to procedural due process and equal protection. The Supreme Court affirmed, holding (1) because the hearing examiner in this case did not hold the City to its burden of proof, the City's administrative appeals process deprived Daily of a protected property interest without due process of law; and (2) the hearing examiner's application of the rules of evidence deprived Daily of a fair hearing.



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Court: Tennessee Supreme Court


Docket: M2010-02093-SC-R3-WC
: August 25, 2011
Judge: Per Curiam
Areas of Law: Constitutional Law, Government & Administrative Law, Injury Law, Labor & Employment Law
Employee suffered a work-related injury and sought benefits. The benefit review conference at the Department of Labor and Workforce Development (DOL) ended in an impasse after a dispute about the degree of Employee's medical impairment. Employee filed suit. Subsequently, Employer filed an application for medical impairment rating (MIR) with the DOL, seeking the appointment of an independent medical examiner pursuant to Tenn. Code Ann. 50-6-204(d)(5). The trial court granted Employee's motion to quash the MIR, holding that the statute was established for the purpose of resolving workers' compensation claims while the claim was before an administrative body, and therefore, DOL had relinquished jurisdiction when the benefit review process reached an impasse. The trial court then adopted the higher of the disputed impairment ratings. The Supreme Court vacated the judgment of the trial court, holding (1) the constitutional separation of powers question was not properly presented, argued, or litigated before the trial court; and (2) whether the Employer may attempt to resolve the dispute of degree of medical impairment by seeking the opinion of an independent medical examiner pursuant to the statute was an issue for the Employee, Employer, and Attorney General to address on remand.



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Court: Washington Supreme Court


Docket: 84704-5
: September 1, 2011
Judge: Johnson
Areas of Law: Constitutional Law, Government & Administrative Law
Commissioner of Public Lands Peter Goldmark sought a writ of mandamus to compel Attorney General Robert McKenna to pursue an appeal of a trial court decision in a condemnation action. Although Mr. McKenna provided representation at the trial court, he refused to pursue the appeal based on his evaluation of the merits of the case. The commissioner wished to appeal, which he discussed with his general counsel, an assistant attorney general. Then the commissioner and the attorney general exchanged correspondence and met on at least one occasion, but the attorney general refused to file the appeal for the commissioner. The attorney general also refused to appoint a special assistant attorney general (SAAG) to pursue the appeal for the commissioner. Upon review, the Supreme Court found that the issue in this case was one of first impression: the Court had never been "squarely presented" with an instance of the attorney general refusing to represent a state officer on an appeal. "Under the statutes, the responsibility is clear." Because the Court found no discretion within the attorney general’s statutory duty, the Court issued the writ and directed the attorney general to provide the commissioner with legal representation.



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Court: Washington Supreme Court


Docket: 84483-6
: September 1, 2011
Judge: Owens
Areas of Law: Constitutional Law, Government & Administrative Law
The attorney general of Washington made the State a plaintiff in a multistate lawsuit in federal court challenging the constitutionality of the health care reform legislation recently passed by Congress. The city of Seattle sought a writ of mandamus directing the attorney general to withdraw the State of Washington from the litigation. Upon review of the applicable statutory authority, the Supreme Court held that a writ of mandamus was not available because the attorney general had no clear duty to withdraw the State of Washington from the federal litigation: "[s]tatutory authority vests the attorney general with the discretionary authority to participate in the litigation at issue. [The Court] also determine[d], however, that this result is not constitutionally compelled; the Washington Constitution does not vest the attorney general with any common law authority. It is for the people of the state of Washington, through their elected representatives or through the initiative process, to define the role of the attorney general."



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Court: Washington Supreme Court


Docket: 83124-6
: September 1, 2011
Judge: Owens
Areas of Law: Constitutional Law, Government & Administrative Law, Injury Law
On certification from the U.S. District Court for the Eastern District of Washington, the Supreme Court considered whether the Washington Industrial Safety and Health Act of 1973 (WISHA), and Washington’s laws prohibiting driving while under the influence (DUI) are inadequate to promote the public policies underlying them. Plaintiff Matthew Cudney, whose employment was terminated by ALSCO Inc., asserted a claim in federal court for wrongful discharge in violation of public policy. Plaintiff alleged that he was terminated in retaliation for reporting that a managerial employee drove a company vehicle during business hours while that employee was intoxicated. The issues presented for certification pertained to (1) whether WISHA adequately promotes the public policy of insuring workplace safety and protecting workers who report safety violations so as to preclude a separate claim by a terminated employee for wrongful discharge in violation of public policy; and (2) whether the DUI laws adequately promote the public policy of protecting the public from drunken drivers so as to preclude a separate claim by a terminated employee for wrongful discharge in violation of public policy. In response, the Court held that both WISHA and the state’s DUI laws adequately promote the stated public policies.



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