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Saturday, October 29, 2011

Decisions of interest involving Government and Administrative Law

Decisions of interest involving Government and Administrative Law
Source: Justia October 28, 2011

Court: U.S. 1st Circuit Court of Appeals
Docket: 11-1225
October 27, 2011
Judge: Lynch
Areas of Law: Government & Administrative Law, Labor & Employment Law
The union that represents postal workers raised concerns that newly hired non-veteran employees had begun work earlier, and thus received higher seniority rankings, than veteran employees, despite the fact that the veteran employees had applied for their positions earlier than had the non-veterans. Because the post office hiring register includes tests scores and other confidential, USPS keeps the information confidential under the Privacy Act,5 U.S.C. 552a and refused to disclose information requested by the union. In a claim under the NLRA, 29 U.S.C. 158(a)(5), an ALJ ordered USPS to furnish the union with the complete 2007 hiring register. The NLRB narrowed the order to the records of 22 employees at issue. The First Circuit vacated, holding that the employees have a legitimate, substantial privacy interest in the records, so that the Board was required to engage in a balancing of interests that was not part of its original analysis.

Court: U.S. 5th Circuit Court of Appeals
Docket: 10-60066
October 24, 2011
Judge: Smith
Areas of Law: Energy, Oil & Gas Law, Government & Administrative Law
Petitioners petitioned for review of Order 720, which adopted the Posting Rule, and 720-A of the Federal Energy Regulation Commission (FERC). Petitioners contended that the Posting Rule exceeded the authority granted to FERC by the Natural Gas Act of 1938 (NGA), 15 U.S.C. 717, in violation of section 10(e) of the Administrative Procedures Act (APA), 5 U.S.C. 706(2)(C), which prohibited any agency action "in excess of statutory jurisdiction, authority, or limitations." The court held that all attempts by FERC to show that section 1(b) did not limit the scope of section 23 of the NGA were unavailing and the NGA unambiguously precluded FERC from issuing the Posting Rule so as to require wholly intrastate pipelines to disclose and disseminate capacity and scheduling information. Therefore, under Chevron step one analysis, FERC had no statutory authority to promulgate Order 720 and 720-A and thus, violated section 10(e) of the APA. Accordingly, the petitions for review were granted and the orders vacated.

Court: U.S. 9th Circuit Court of Appeals
Docket: 09-56515
October 25, 2011
Judge: Silverman
Areas of Law: Government & Administrative Law, Public Benefits
Plaintiff appealed the district court's decision affirming the Social Security Administration's (SSA) denial of her applications for disability insurance benefits and supplemental security income. The court held that because the SSA took nearly two years to investigate whether to reopen a favorable determination on one of plaintiff's applications, much longer than the presumptive time of six months, and because the record did not show that the investigation was diligently pursued, the court reversed.

Court: U.S. 9th Circuit Court of Appeals
Docket: 10-55235
October 27, 2011
Judge: Kozinski
Areas of Law: Constitutional Law, Criminal Law, Government & Administrative Law, Injury Law
This case arose from a deadly use of force lawsuit filed by decedent's family against defendants. The district court issued an in limine order precluding defendants from arguing that decedent was armed when he was shot. In his summation, defense counsel argued that the police sergeant who shot decedent thought decedent failed to surrender because he had shot a man just moments earlier. Plaintiffs' counsel objected, apparently based on the in limine order and the court sustained the objection, instructing the jury to ignore defense counsel's statement. Plaintiffs subsequently moved for sanctions against defense counsel for his statements. The district court granted the motion and sanctioned defendants. Defendants appealed. The court reversed the district court's order imposing sanctions. On remand, the district court could, if it chose, hold further proceedings, consistent with the court's opinion, to determine whether any sanction was warranted for defense counsel's conceded violation.

Court: U.S. 10th Circuit Court of Appeals
Docket: 09-8075
October 21, 2011
Judge: Holmes
Areas of Law: Environmental Law, Government & Administrative Law
Defendants the U.S. Forest Service and Defendants-Intervenors-Appellants several Environmental Groups appealed a district court's order setting aside and permanently enjoining the Roadless Area Conservation Rule (Roadless Rule) which the Forest Service promulgated in 2001. In setting aside the Rule, the district court held that the rule violated the Wilderness Act of 1964 (Wilderness Act) and the National Environmental Policy Act of 1969 (NEPA). On appeal, the Forest Service and the Environmental Groups asked the Tenth Circuit to hold that the Roadless Rule was not promulgated in violation of the Wilderness Act or NEPA. Furthermore, even if the Court concluded that the rule was promulgated in violation of federal law, they asked the Court to nevertheless reverse the district court's order establishing a permanent nationwide injunction. Plaintiff-Appellee the State of Wyoming and Intervenor-Appellee the Colorado Mining Association (CMA) asked the Court to affirm the district court's order on the grounds that rule did not violate the Wilderness Act and NEPA. Upon extensive review of the parties briefs and the applicable legal authorities, the Tenth Circuit reversed the district court's order that granted Plaintiff declaratory relief and issued a permanent injunction, and remanded the case back to the district court to vacate the injunction.

Court: U.S. 10th Circuit Court of Appeals
Docket: 10-9526
October 20, 2011
Judge: O'Brien
Areas of Law: Government & Administrative Law, Immigration Law
Petitioner Arther Deyke Kasonso petitioned the Tenth Circuit to review of a Board of Immigration Appeals (BIA) order denying his motion for reconsideration. His petition raised a single, narrow issue: whether the BIA abused its discretion in declining to apply the "disfavored group analysis" adopted by some of the other circuits, to determine whether Petitioner was entitled to restriction on removal. Petitioner, a native and citizen of Indonesia, entered the United States in 1994 on a non-immigrant visa and overstayed his six-month authorization. He received a notice to appear, conceded removability, and filed applications for asylum, restriction on removal, and relieve under the Convention Against Torture. He alleged past persecution and a well-founded fear of future persecution in Indonesia because he is a Christian. After a hearing, an immigration judge denied his applications for relief from removal, but granted him voluntary departure. The BIA dismissed his appeal. Petitioner then filed a motion for reconsideration and request to reopen his case. Upon review, the Tenth Circuit found that Petitioner did not argue that the BIA failed to follow its established policy to apply Tenth Circuit precedent or misapplied that law in his case. Nor did he provide any other basis for us to conclude that the BIA abused its discretion in denying his motion for reconsideration. Accordingly, the Court affirmed the BIA's decision and dismissed Petitioner's request for review.

Court: Connecticut Supreme Court
Docket: SC18511
November 1, 2011
Judge: Zarella
Areas of Law: Government & Administrative Law, Real Estate & Property Law, Zoning, Planning & Land Use
Defendant landowner applied for a zoning change to designate its parcel as a business and commercial zone and for a special exception permit for approval of the site plan of its shopping center project. The Town's Planning and Zoning Commission denied the zone change application and denied as moot Defendant's application for a special exception permit. Defendants appealed, and the trial court judge, Judge Owens, approved Defendant's application for a zone change. During the pendency of Defendant's zone change appeal and upon receipt of Judge Owens's decision, the Commission approved the special exception permit but took no official action regarding the zone change application. Plaintiffs, several individuals, appealed, arguing that the commission acted improperly when it approved Defendant's special exception permit. The superior court sustained the appeal. The Supreme Court reversed, holding that the trial court improperly revisited the prior judgment of Judge Owens and too narrowly construed the effect of Owens's decision as well as the actions taken by the Commission in reviewing and approving Defendant's application for the special exception permit. Remanded.

Court: Hawaii Supreme Court
Docket: SCAP-30616
October 19, 2011
Judge: McKenna
Areas of Law: Criminal Law, Government & Administrative Law
In the case underlying this appeal, the circuit court appointed Appellant David Bettencourt to represent a client in a criminal case. After the client was acquitted on all counts, Appellant filed two requests for his own fees as appointed counsel, the second if which was the subject of this appeal. The trial judge certified the total amount of fees requested in the second request, but an administrative judge reduced the amount of fees requested as necessary to provide fair compensation. At issue on appeal was the scope of the administrative judge's authority under Haw. Rev. Stat. 802-5(b). The Supreme Court vacated the administrative judge's order, holding (1) under section 802-5(b), both the trial judge and the administrative judge independently review excess fee requests to determine whether a fee award is fair compensation, and both the trial judge's and administrative judge's orders awarding fees are judicial acts subject to appellate review under the abuse of discretion standard; and (2) because the administrative judge in this case summarily reduced Appellant's fees with no reasons given, the Court could not determine whether the administrative judge abused his discretion in ordering reduced fees. Remanded.

Court: Illinois Supreme Court
Docket: 110067
October 27, 2011
Judge: Burke
Areas of Law: Government & Administrative Law, Tax Law
Effective with 1982 legislation, a portion of each motorcycle registration fee was deposited in the state treasury to fund a motorcycle safety training program. In 1993, the amount set aside for the program was increased to be the total amount of each fee, and the monies were to be placed in a trust fund outside of the state treasury. Without amending the Act, the legislature began, in 1992, to authorize the transfer of money from the motorcycle fund and other funds into the General Revenue Fund, through budget implementation acts and amendments to the State Finance Act. A nonprofit corporation initiated a class action. Summary judgment was granted for the defense, and the appellate court affirmed. The Illinois Supreme Court affirmed, finding no evidence that the cycle fees are private. The court rejected an argument based in trust-law principles, arguing that the trust was irrevocable because no power to revoke the trust was conferred by the legislation that created it. A general assembly cannot control the actions of a subsequent elected body. It has long been recognized that the legislature has the authority to order monies collected in one fund to be transferred to a different fund.

Court: Illinois Supreme Court
Docket: 110882
October 27, 2011
Judge: Thomas
Areas of Law: Environmental Law, Government & Administrative Law
Production of steel in electric arc furnaces generates toxic waste. The company, which has had an EPA permit since 1989 to store and treat hazardous waste at its facility near Peoria, developed a new process to stabilize this hazardous residue, or electric arc furnace dust, by converting it into material that is not hazardous. It filed a "delisting" petition for an adjusted standard with the Pollution Control Board, which was granted in 2009, with conditions. Delisting removes a material from regulation as hazardous.The appellate court found that opposition groups had standing, but affirmed the Board on the merits. The Illinois Supreme Court dismissed without reaching the merits. Opponents did not fall within any other statutory category which would permit them to appeal and, therefore, had to show that they were contesting a "rule or regulation," under section 29(a) of the Illinois Environmental Protection Act, to establish standing. The adjusted standard granted in this case is not, in itself, a rule or regulation. It is an individualized exception to a regulation. It is an adjudicatory determination which is quasi-judicial in nature, unlike a rule or regulation, which is legislative in nature.

Court: Louisiana Supreme Court
Docket: 2011-C-0229
October 25, 2011
Judge: Per curiam
Areas of Law: Government & Administrative Law, Injury Law
The State Department of Social Services (DSS) conducted an investigation of Petitioner Kirk Richard in response to reports of child abuse. The first investigation concluded in 2006; the second concluded in 2008. DSS reported its findings to the district attorney and closed its file. Later in 2008, the Iberia Parish Sheriff's Department arrested Petitioner for the aggravated rape of his minor children. In 2009, Petitioner filed suit against several defendants including DSS and three Iberia Parish employees. In his petition, Petitioner alleged his former wife and others "began a campaign of false accusations and manufactured false evidence in order to deprive him of access to his children." Furthermore, Petitioner asserted that as a result of the DSS' actions, he was subsequently arrested and falsely imprisoned. According to Petitioner's petition, the DSS defendants got "caught up in his former wife's campaign to falsely discredit him, and in so doing negligently and/or intentionally breached duties owed to him as part of their investigative obligations." In finding Petitioner's false arrest claim as viable, the appellate court reasoned that although the DSS defendants did not take any action in the case after May 2008, Petitioner did not suffer any harm from their actions until June 2008, thereby making his June 2009 suit timely. The Supreme Court saw "no support for such a conclusion." The Court found Petitioner's claims against the DSS defendants 'prescribed' or beyond the statute of limitations for this type of action. Accordingly, the Court reversed the appellate court and reinstated the district court's dismissal of Petitioner's suit against the DSS defendants.

Court: Maryland Court of Appeals
Docket: 12/11
October 25, 2011
Judge: Adkins
Areas of Law: Family Law, Government & Administrative Law
Petitioner Megan Cathey was a developmentally disabled adult who, pursuant to a court order, lived with her mother in New Jersey for two weeks a month and with her father in Maryland for the remaining two weeks. Petitioner's father applied for Developmental Disability Administration (DDA) services, but the Maryland Department of Health and Mental Hygiene determined that Petitioner's interstate custody did not give her the requisite Maryland residency to qualify for such services. The Department's board of review affirmed, and the circuit court upheld the board's decision. The Court of Appeals reversed, holding (1) for the purposes of developmental disabilities law, Petitioner was a "resident" of Maryland during the time she spent with her father in Maryland; (2) as such, Petitioner was eligible for DDA services during the time she lived with her father in Maryland; and (3) the concept of "residence" as presented in the relevant portion of the Code of Maryland Regulations was not exacting as the legal concept of "domicile." Remanded.

Court: Nevada Supreme Court
Docket: 55183
October 20, 2011
Judge: Per Curiam
Areas of Law: Government & Administrative Law, Tax Law
Taxpayer requested a tax refund from the Nevada Department of Taxation without filing a formal refund claim based on an understanding Taxpayer had with the Department. The Department denied the request. Taxpayer then filed a formal refund claim as part of a petition for redetermination. An ALJ determined that Taxpayer was entitled to a refund despite its late filing of the formal refund claim. The Tax Commission reversed, concluding that Taxpayer's failure to timely file a formal refund claim rendered a portion of its refund request time-barred. The district court reinstated the ALJ's determination that Taxypayer was entitled to a refund, concluding that the Tax Commission had improperly substituted its own judgment for that of the ALJ. The Supreme Court affirmed, holding (1) the Tax Commission improperly substituted its own judgment for that of the ALJ in reversing the ALJ's determination; and (2) because the Tax Department played an active role in causing Taxpayer's formal refund claim to be untimely, the statute of limitations was equitably tolled during the time in which the Department hindered Taxpayer from filing its formal written claim.

Court: New Hampshire Supreme Court
Docket: 2010-764
October 27, 2011
Judge: Dalianis
Areas of Law: Government & Administrative Law, Labor & Employment Law
Respondent Town of Deerfield (Town) appealed a Public Employee Labor Relations Board (PELRB) decision that certified Petitioner New England Police Benevolent Association (Association) as the exclusive bargaining representative for a police department bargaining unit. The Town objected to the Association's petition, arguing that the proposed bargaining unit did not include the statutory minimum of ten employees because three of the proposed members were not proper members. After unsuccessful appeals to the PELRB, the Town appealed to the Supreme Court. Upon review, the Supreme Court disagreed with Petitioner's contention that the PELRB could lawfully decide that as long as there were ten employees in a proposed unit, the ten-employee rule was satisfied. Here, the applicable statute plainly stated that the PELRB could not "add to, detract from, or modify the statute which they are intended to implement" by certifying a bargaining unit that contained fewer than ten employees. Accordingly, the Court reversed the PELRB's decision.

Court: New Hampshire Supreme Court
Docket: 2010-798
October 27, 2011
Judge: Hicks
Areas of Law: Constitutional Law, Government & Administrative Law, Real Estate & Property Law, Zoning, Planning & Land Use
Petitioners Curtis and Deborah Avery appealed a superior court order that dismissed their petition for a declaratory judgment for pertaining to a lot size waiver that was granted to Respondent Concord School District (District) by Respondent New Hampshire Department of Education (DOE). In 2009, the School Board for the District voted to demolish and rebuild Kimball School. The lot size for the proposed new building did not meet the minimum lot size requirements in the state Administrative Rules. As a result, the District applied for a waiver of the lot size requirements with the DOE. Petitioners owned rental property adjacent to the school lot. In 2010, they sought a declaratory judgment that the waiver was "invalid and void." Upon review, the Supreme Court found that the trial court's ruling that Petitioners lacked standing to challenge the waiver was correct. The Court affirmed the trial court's decision to dismiss Petitioner's case.

Court: New York Court of Appeals
Docket: 163
October 25, 2011
Judge: Smith
Areas of Law: Government & Administrative Law
This case arose when petitioner formally requested the list of names and addresses of veterinarians licensed by the Department of Schenectady County under the Freedom of Information Law (FOIL), Public Officers law 87[2][b], 89[2-a]. The Department offered to provide names and cities but refused to provide street addresses because the Department's computerized files were unable to distinguish a licensee's business address from a residential address. The court held that an agency responding to a demand under FOIL could not withhold a record solely because some of the information in that record could be exempted from disclosure. Where it could do so without unreasonable difficulty, the agency must redact the record to take out the exempt information.

Court: Ohio Supreme Court
Docket: 2010-1769
October 26, 2011
Judge: Per Curiam
Areas of Law: Agriculture Law, Government & Administrative Law, Real Estate & Property Law, Tax Law
A family partnership purchased 749-acres for use as a farm. The entire farm enjoyed current-agricultural-use-valuation (CAUV) status until a seventy-acre parcel was transferred to Maralgate, LLC, after which the county auditor denied the CAUV application. Maralgate filed a complaint with the County Board of Revision, which also denied the application. The Board of Tax Appeals reversed and granted CAUV status. At issue on appeal was whether the parcel was under common ownership with the rest of the farm for purposes of Ohio Rev. Code 5713.30(A)(1) because almost sixty percent of the parcel had trees that were not grown for commercial purposes. The Supreme Court affirmed, holding (1) the parcel was under common ownership with the rest of the farm because the family partnership owned Maralgate; (2) the statute does not require that the trees in question be grown as a crop; and (3) a land survey showing how much of the parcel is devoted to different uses is required only if there is a commercial use of part of a parcel that is not an agricultural use, and, in this instance, those portions of the parcel not actively cultivated were not used for any commercial purpose.

Court: Oklahoma Supreme Court
Docket: 107661
October 25, 2011
Judge: Winchester
Areas of Law: Government & Administrative Law, Public Benefits
Petitioners-Appellants Donald and Paula Thompson appealed a district court's decision that affirmed the Board of the Public Employees Retirement System's ruling to forfeit Mr. Thompson's retirement benefits earned in his state retirement account. The district court determined that Mr. Thompson's state retirement benefits had to be forfeited after he was convicted of felonies that violated his oath of office as a district court judge. The court determined that Mrs. Thompson did not have standing in the administrative proceedings and was not a proper party therein. On appeal to the Supreme Court, Mr. Thompson alleged the Board violated the Oklahoma Administrative Procedures Act when it forced him to forfeit his retirement benefits without proper notice. In addition, he argued he did not receive an individual proceeding to provide him an opportunity to proffer evidence and present witnesses pursuant to the Act. Furthermore, Mr. Thompson alleged that the strict construction of the applicable forfeiture statute requires that it apply only to the last oath of office he took. According to this logic, Mr. Thompson argued he should have only been forced to forfeit the benefits he would have earned from his last term in office. Upon review, the Supreme Court found none of Mr. Thompson's arguments persuasive, and affirmed the district court's decision.

Court: Oklahoma Supreme Court
Docket: 108037
October 25, 2011
Judge: Kauger
Areas of Law: Banking, Business Law, Government & Administrative Law, Real Estate & Property Law
The issue before the Supreme Court was whether the appearance of impartiality/conflict of interest in disciplinary proceedings before the Oklahoma Real Estate Appraiser Board (the Board) required invalidation of the proceedings. In December of 2005, Appellee real estate appraiser Beverly Bowen appraised a parcel of real property for her client BancFirst (Bank). By July of 2007, after having sat vacant for 19 months, the property sold at a sheriff's sale which resulted in a loss to the private mortgage insurer (insurer). The insurer filed a grievance against the appraiser with the Board alleging possible appraisal fraud. The insurer hired another local appraiser, JoElla Jones (Jones/review appraiser), to reappraise the property nineteen months after Bowen's initial appraisal. Apparently, the property remained unoccupied the entire time, and it may have been vandalized. Jones reviewed Bowen's work. She valued the property at $197,000.00 or $58,000 below Bowen's appraisal. While the dispute between the bank and the insurer regarding the property's value was ongoing, the bank discovered that Jones had a personal and direct history with Bowen: the appraisers had known one another for more than 26 years. Learning this information prompted the bank to write a letter to the insurer notifying them of the unmistakable conflict of interest and alleging that if a mistake in an appraisal occurred, it was made by the review appraiser. Soon thereafter, the Board brought disciplinary proceedings against Bowen. Notwithstanding the conflict of interest, a probable cause committee (committee) of the Board held a hearing. The Board adopted the committee's findings of fact and conclusions of law but modified the disciplinary recommendation. The trial court held another hearing reversing the Board's discipline, finding that the appearance of impropriety was so apparent on the face of the record that reversible legal error occurred. The Board appealed and the Court of Civil Appeals reversed the trial court. Upon review, the Supreme Court found that under the fact of this case, the disciplinary proceedings required invalidating proceedings because of the appearance of impartiality. The Court affirmed the trial court.

Court: South Carolina Supreme Court
Docket: 27059
October 24, 2011
Judge: Pleicones
Areas of Law: Government & Administrative Law, Injury Law, Insurance Law, Labor & Employment Law
Petitioner Carolyn Holmes began working for linen company Respondent National Service Industries (National). According to Petitioner, the work environment at the facility was "very hot" and "sticky" with "a lot of lint and dust in the air," and was poorly ventilated. Petitioner was exposed to the fumes of bleach and did not wear a protective mask. In 1992, she began experiencing breathing and sinus problems. Petitioner never experienced breathing or sinus problems prior to working for National. In 1995, Petitioner was diagnosed with sarcoidosis, a respiratory and pulmonary condition. Petitioner testified that her doctor did not know what caused her sarcoidosis and that, in light of this statement, she took no further steps to determine the cause of her condition. In July 2005, Petitioner got a second opinion. Petitioner's second doctor stated in his report that it was unclear whether Petitioner's work exposure at National caused her sarcoidosis, but that it was more likely that her exposure to the airborne particles and fumes worsened her condition, which had previously developed. Based on this, Petitioner filed a workers' compensation claim alleging a compensable injury by accident to her lungs and respiratory system arising out of and in the scope of her employment with National on July 12, 2005, the date she alleges she first discovered her sarcoidosis was related to her employment. A single commissioner found Petitioner sustained a compensable injury. The full commission reversed the commissioner, finding petitioner's claim was barred by a two-year statute of limitations. Specifically, the full commission found petitioner was aware of her working conditions and, with some diligence on her part, could have discovered she had a claim more than two years before her filing date. Petitioner appealed. The circuit court and Court of Appeals affirmed the full commission's determination that petitioner failed to file her claim within the statute of limitations. Upon review, the Supreme Court found that the trial and appellate courts correctly found substantial evidence in the record to support the full commission's findings that Petitioner's claim was barred by the statute of limitations. Accordingly, the Court affirmed the appellate courts' decisions.

Court: Washington Supreme Court
Docket: 83343-5
October 27, 2011
Judge: Stephens
Areas of Law: Communications Law, Government & Administrative Law
Petitioner Helen Immelt sounded a car horn at length in front of a neighbor’s house in the early morning hours. She was arrested for violating a Snohomish County noise ordinance that included amongst its prohibited noise disturbances horn honking for a purpose other than public safety, or originating from an officially sanctioned parade or other public event. She challenged the horn ordinance as overbroad and in violation of free speech protections. Upon review, the Supreme Court found that the ordinance was overbroad, and reversed Petitioner's conviction.

Court: Wyoming Supreme Court
Docket: S-11-0084
October 20, 2011
Judge: Burke
Areas of Law: Civil Rights, Constitutional Law, Criminal Law, Government & Administrative Law
Appellant Mark Orchard was arrested for driving while under the influence of alcohol. As a result, the Wyoming Department of Transportation (DOT) advised Appellant that it was suspending his driver's license. Appellant contested the suspension before the Office of Administrative Hearings (OAH), and the OAH upheld the suspension. The district court affirmed. Appellant appealed, contending that the police officer who arrested him lacked reasonable suspicion to initiate the traffic stop. The Supreme Court affirmed, holding that the DOT's certified record, which included the arresting officer's signed statement, constituted relevant evidence that a reasonable mind might accept as adequate to support the determination that the arrested office had probable cause or reasonable suspicion to initiate a traffic stop of Appellant's vehicle.

Court: Wyoming Supreme Court
Docket: S-11-0002
October 21, 2011
Judge: Kite
Areas of Law: Business Law, Government & Administrative Law, Tax Law
After an audit, the Department of Revenue (DOR) determined that Qwest was not entitled to a refund of sales tax. The tax was incorrectly collected from Qwest's customers and remitted to the state because Qwest did not provide data showing the actual amount of tax collected and remitted by month and by country. Qwest subsequently produced to the DOR the actual sales tax information. The State Board of Equalization (SBOE) supplemented the record with the actual data and reversed the DOR's decision. The district court affirmed. At issue on appeal was whether the SBOE erred by considering the newly produced evidence. The Supreme Court (1)affirmed the SBOE's decision that Qwest was entitled to a refund, but concluded the SBOE erred by considering Qwest's evidence, which was not produced to the DOR during the audit; and (2) remanded so the refund amount could be calculated using an estimate procedure and information available during the audit.

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