Saturday, October 22, 2011

Decisions of interest involving Government and Administrative Law

Decisions of interest involving Government and Administrative Law
Source: Justia October 21, 2011

Court: U.S. 1st Circuit Court of Appeals
Docket: 10-1865
October 18, 2011
Judge: Thompson
Areas of Law: Drugs & Biotech, Environmental Law, Government & Administrative Law
Plaintiff, engaged in treatment and disposal of regulated biomedical waste, had trouble with its shredder and obtained approval from the Puerto Rico Environmental Quality Board to use autoclaves. After a few years, an inspector recommended that plaintiff's facility be shut down and ordered a landfill to stop accepting plaintiff's waste. Unable to resolve the matter with EQB, plaintiff sought a federal court injunction. The injunctions were denied, but plaintiff resumed handling waste. When a second shredder broke, an inspector again ordered the landfill to stop accepting waste and rejected several proposals for dealing with accumulated waste. Plaintiff's suit alleges more favorable treatment of a competitor and other constitutional violations. The district court dismissed for failure to link allegations to any particular defendant. The First Circuit affirmed, finding failure to meet minimal pleading standards. The complaint failed the plausibility test "spectacularly."



Court: U.S. 2nd Circuit Court of Appeals
Docket: 10-485
 October 19, 2011
Judge: Hall
Areas of Law: Constitutional Law, Government & Administrative Law, Real Estate & Property Law, Zoning, Planning & Land Use
Plaintiff brought this action against the Village Defendants alleging a violation of his constitutional rights as a result of the Zoning Board of Appeals' denial of his application for a certificate of occupancy (CO) for his newly-built home. Specifically, plaintiff asserted that the Village Zoning law, Chapter IX, Section E was void for vagueness and that the Village Defendants violated his substantive due process rights by denying him a CO. The court held that Section E was unconstitutionally vague as applied to plaintiff's property because it provided inadequate notice of the elevation point on River Road from which plaintiff should measure the height of his house to determine compliance, and because it authorized arbitrary and discriminatory enforcement. The court also held that the ordinance's constitutionality was not otherwise saved by its core meaning because a reasonable enforcement officer could find that the height of plaintiff's house was in compliance with Section E's restrictions. Therefore, the court reversed the district court's grant of summary judgment in favor of the Village Defendants on plaintiff's void-for-vagueness claim and directed that court to enter summary judgment in favor of plaintiff on this claim. The court also vacated the grant of summary judgment in favor of the Village Defendants on plaintiff's substantive due process claim and remanded for further proceedings.



Court: U.S. 7th Circuit Court of Appeals
Docket: 10-3544
 October 17, 2011
Judge: POSNER
Areas of Law: Aviation, Government & Administrative Law, Government Contracts
Airlines, users of airports owned by the City of Chicago, have use agreements that make they city responsible for runway clearing. The airlines pay a per-landing fee, based on the city's actual expenses. In 1999 and 2000 the airports were crippled by severe snowstorms. The city obtained $6,000,000 in reimbursement from FEMA under the Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121. Years later FEMA ordered the city to return the money, based on a provision of the Act concerning duplicate benefits. FEMA asserted that the use agreements entitled the city to reimbursement of costs from the airlines. After exhausting administrative remedies the city filed suit. The district court denied the airlines' motion to intervene. The Seventh Circuit reversed. Finding that the airlines have standing, the court stated that t would not be as "efficient to litigate this three-cornered dispute in two lawsuits rather than one."



Court: U.S. 8th Circuit Court of Appeals
Docket: 10-3212
 October 17, 2011
Judge: Bye
Areas of Law: Civil Rights, Constitutional Law, Election Law, Government & Administrative Law
Appellants, the Libertarian party and three candidates, challenged the constitutionality of North Dakota Century Code 16.1-11-36, contending that the statute as applied to them violated the First and Fourteenth Amendment and the Equal Protection Clause because it prevented appellants' names from appearing on the 2010 general election ballot despite their winning the party's primary. The court held that the burden imposed by the statute was not undue or excessive and the state had a compelling interest in having a minimum vote requirement before a candidate could appear on the general election ballot. Therefore, the court held that N.D.C.C. 16.1-11-36 was not unconstitutional on First or Fourteenth Amendment grounds. Furthermore, because the law applied equally to all candidates and did not result in unequal treatment, the court held that the statute did not violate the Equal Protection Clause. Accordingly, the court affirmed the district court.




Court: U.S. 8th Circuit Court of Appeals
Docket: 10-2601
 October 20, 2011
Judge: Per curiam
Areas of Law: Civil Rights, Constitutional Law, Government & Administrative Law
Plaintiff brought this action to enjoin the enforcement of the Nebraska Funeral Picketing Law (NFPL), arguing that it violated her First Amendment right to free speech. Plaintiff appealed a district court order denying her motion for a preliminary injunction. The court concluded that the district court correctly applied intermediate scrutiny. The court agreed that the district court was required to follow the court's precedent, which concluded that the government was unlikely to prove a significant interest in protecting funeral attendees. Therefore, the court held that because it was bound by the previous panel decision involving a similar statute, the same procedural posture on appeal, and the identical plaintiff, the court reversed the order denying a preliminary injunction and remanded.




Court: U.S. 10th Circuit Court of Appeals
Docket: 10-9536
 October 18, 2011
Judge: Seymour
Areas of Law: Business Law, Communications Law, Government & Administrative Law
Sorenson Communications, Inc. challenged the 2010-2011 rates set by the Federal Communication Commission (FCC or Commission) to compensate Video Relay Service providers, including Sorenson. Video Relay Service (VRS) is a type of telecommunication relay service (TRS), "which enables a person with a hearing disability to remotely communicate with a hearing person by means of a video link and a communications assistant." FCC regulations provide certain minimum standards that VRS providers must meet. Among these requirements, VRS providers must operate every day, twenty-four hours a day, and must answer 80 percent of all calls within 120 seconds. TRS customers do not pay to access the service. Instead, TRS providers are compensated by the TRS Fund at a rate determined by the FCC. The TRS Fund is financed by interstate telecommunications providers on the basis of interstate enduser telecommunications revenues. Until 2007, the Commission set VRS rates annually, which resulted in significant variation in compensation each year. In 2007, the FCC adopted a three-tiered rate structure for compensating VRS providers, with rates that declined as the number of minutes per month increased. Sorenson asked the FCC to stay its 2010 Order which retained the tiered structure of the 2007 order, but reduced rates on all tiers. Upon review, the Tenth Circuit denied Sorenson's petition for review because the Commission’s order was consistent with its statutory mandate and was not arbitrary or capricious.




Court: U.S. 10th Circuit Court of Appeals
Docket: 11-6021
 October 14, 2011
Judge: Kelly
Areas of Law: Civil Rights, Constitutional Law, Criminal Law, Government & Administrative Law, Injury Law
Payne County Jail Administrator Brandon Myers appealed a district court's order that denied his motion for summary judgment that asked for qualified immunity. While held as a pretrial detainee at the Payne County Jail, Plaintiff John David Palmer suffered from an infection of the flesh-eating methicillin-resistent staphylococcus aureus (MRSA) bacteria. The jail's medical transport officer took Plaintiff to Dr. Daniel Hill who did not diagnose Plaintiff as having MRSA, but drained the boils Plaintiff had developed, administered an injection of an antibiotic, and prescribed two more antibiotics for oral use at the jail. Dr. Hill advised that Plaintiff should return in two days for a follow-up visit, but warned that if Plaintiff developed a fever, he should be taken to the hospital. Ultimately, Plaintiff developed a fever, his condition worsened, and he alleged in his complaint against prison officials that their inattention or delay in taking him to the hospital caused him tremendous suffering and caused him to accumulate $24,000 in medical bills. Upon review of the trial court record and the applicable legal authority, the Tenth Circuit affirmed the district court's decision to deny Mr. Myers qualified immunity.




Court: U.S. 10th Circuit Court of Appeals
Docket: 10-9569
 October 17, 2011
Judge: Holloway
Areas of Law: Criminal Law, Government & Administrative Law, Immigration Law
Appellant Gabriela Cordova-Soto petitioned the Tenth Circuit for review of a Department of Homeland Security (DHS) order reinstating her prior removal order under 8 U.S.C. 1231 (a)(5). Appellant is a native and citizen of Mexico, who entered the United States as a child and became a lawful permanent resident in 1991 at the age of 13. In 2005, DHS initiated removal proceedings against Appellant charging her as removable on three grounds: (1) as an aggravated felon; (2) as an alien convicted of two crimes involving moral turpitude; and (3) as an alien convicted of a controlled substance offense. Appellant had three Kansas state-law convictions, including a 2005 conviction for felony possession of methamphetamine for which she was sentenced to a suspended jail term of twenty months and eighteen months' probation. Appellant was found in 2010 in Wichita, Kansas and identified as an alien who had previously been removed. No criminal charges for illegal reentry were lodged against her, but DHS issued a Notice of Intent/Decision to Reinstate Prior Order, advising Appellant that she was subject to removal. Appellant argued to the Tenth Circuit that: (1) her underlying removal order was not lawful; and (2) her reentry into the United States after her previous removal was not illegal. On these bases she maintained that reinstatement of her previous removal order was precluded. Upon review of the DHS's determination and the applicable legal authority, the Tenth Circuit concluded Appellant failed to establish that DHS misconstrued the meaning of "reenters the United States illegally" in Sec. 1231 (a)(5): she was removed from the United States in 2005, and she admittedly reentered the country without the Attorney General's authorization shortly thereafter. Because she could not have entered the United States legally at that time, her reentry was illegal and she was therefore subject to reinstatement of her previous removal order. Accordingly, the Court denied Appellant's petition for review.




Court: U.S. 10th Circuit Court of Appeals
Docket: 11-9502
 October 18, 2011
Judge: Lucero
Areas of Law: Government & Administrative Law, Immigration Law, International Law
Petitioner Sushma KC sought review of a Board of Immigration Appeals’ (BIA) denial of her motion to reopen or reconsider its previous decision denying her asylum, withholding of removal, and protection under the Convention Against Torture (CAT). After arriving in this country, KC filed timely applications for asylum, but on June 23, 2008, an immigration judge (IJ) denied her applications, and ordered her to voluntarily depart or be removed to her native Nepal. In his oral decision, the IJ noted the threats she received: "the most recent and graphic of them was that her head would be cut off [by Maoist insurgents] unless she paid 300,000 rupees." The IJ concluded, however, that KC failed to satisfy the "one central reason" test (see 8 U.S.C. 1158(b)(1)(B)(i)) which required showing that one of the central reasons the Maoists targeted her was because of her political beliefs. KC appealed to the BIA, which upheld the IJ’s decision. The BIA concluded that "[t]he Immigration Judge reasonably determined based on the record as a whole that the Maoists’ demands for money were acts of extortion not related to the respondent’s political opinion." In addition, the BIA denied KC’s motion to remand her case to the IJ so that he could consider additional evidence concerning her husband’s disappearance. Because the BIA adopted the IJ’s analysis without further explanation, both to dismiss KC’s appeal and to deny reconsideration, the Tenth Circuit held that the BIA’s decision lacked "rational explanation." Accordingly, the Court held that the BIA abused its discretion, and remanded the case for further consideration. The Court affirmed the BIA in all other respects.




Court: U.S. Federal Circuit Court of Appeals
Docket: 10-5142
 October 14, 2011
Judge: O'Malley
Areas of Law: Commercial Law, Government & Administrative Law, Internet Law
The Information Security Management Act, 44 U.S.C. 3541–49, requires that federal agencies meet information security standards. Compliance is monitored by the Office of Management and Budget. The Department of Justice purchased a license for plaintiff’s compliance product. Plaintiff participated with DOJ in seeking designation as a "Center of Excellence." Without notifying plaintiff, DOJ developed an alternative product, accessing plaintiff's database to learn the system’s architecture. OMB selected DOJ as a Center of Excellence and required agencies to purchase from COEs. DOJ’s product substituted its alternative for plaintiff's software. Plaintiff filed, in district court, a Lanham Act claim; a common law unfair competition claim; and a breach of fiduciary duty claim. Months later, plaintiff filed, in the Court of Federal Claims, claims of: breach of oral or implied contract, breach of license agreement, and breach of duty of good faith and fair dealing. The district court dismissed all but the Lanham Act claim. The Claims Court dismissed all claims, applying 28 U.S.C. 1500, which precludes it from exercising jurisdiction over "any claim for or in respect to which the plaintiff … has pending in any other court any suit … against the United States." The Federal Circuit reversed, in part, reasoning that the license agreement claim does not arise from substantially the same facts as the district court claim.




Court: U.S. Federal Circuit Court of Appeals
Docket: 11-3103
 October 19, 2011
Judge: Reyna
Areas of Law: Government & Administrative Law, Labor & Employment Law
Plaintiff, employed by the federal government for almost 30 years, appealed from termination of her position with the VA. During her last months on the job she suffered depression and high blood pressure. The parties entered into a settlement in which plaintiff agreed to withdraw her appeal and forego all claims against the VA. An ALJ dismissed the appeal as settled. The March 2009 decision became final in April 2009. In November 2009, plaintiff filed a new appeal, seeking reinstatement. The appeal was docketed as a petition to enforce the agreement, but without allegation of noncompliance. The ALJ dismissed. The Board, unable to determine whether plaintiff's filing was an untimely appeal of the March decision or any basis for appeal, affirmed. The Federal Circuit affirmed. Plaintiff failed to show good cause for her untimely filing of the November 2009 appeal and the March 2009 decision implementing the agreement operated as a res judicata bar.




Court: Alabama Supreme Court
Docket: 1101198
 October 14, 2011
Judge: Woodall
Areas of Law: Family Law, Government & Administrative Law, Injury Law, Trusts & Estates
In May 2008, seven-year-old Jordan Alexander Robertson was placed in foster care at the home of Verlin Spurgeon and Carol Spurgeon. In June 2008, Jordan drowned in the Spurgeons' swimming pool. James Brakefield, as administrator of Jordan's estate, sued the Spurgeons, among others, in circuit court alleging that they had negligently and/or wantonly caused Jordan's death. The Spurgeons moved the circuit court for a summary judgment, alleging, among other things, that the claims were barred by the doctrines of parental, State, and State-agent immunity. The circuit court denied the motion. The Spurgeons petitioned the Supreme Court for a writ of mandamus to direct the circuit court to dismiss the claims against them. Upon review, the Supreme Court granted their petition in part and issued the writ to direct the circuit court to dismiss the negligence claims against the Spurgeons. In all other respects, the Court denied the petition.




Court: Georgia Supreme Court
Docket: S10G1902
 October 17, 2011
Judge: Hines
Areas of Law: Contracts, Government & Administrative Law, Injury Law, Insurance Law
This case arose from an automobile collision in which a police officer employed by the City of Newman was driving a City police car when it was struck by a motor vehicle owned and operated by the insured, who had $25,000 of motor vehicle liability coverage. The City had a Member Coverage Agreement (Agreement) with the Georgia Interlocal Risk Management Agency (GIRMA), established under OCGA 36-85-1 et seq. The officer subsequently sued the insured in tort and served a copy of the complaint on GIRMA to notify GIRMA that it might be held responsible as an uninsured motorist carrier pursuant to OCGA 33-7-11. The court subsequently granted a writ of certiorari to the court of appeals to consider whether that court properly determined that a municipality's motor vehicle liability coverage secured through an interlocal risk management agency was not statutorily obligated to satisfy the requirements for uninsured and underinsured motorist coverage that were applied to commercial insurance policies and private self-insurance plans. The court held that the district court reached the correct conclusion when it determined that there was no authority for the conclusion that an interlocal risk management program such as that offered by GIRMA must include uninsured motorist coverage pursuant to OCGA 33-7-11. Therefore, the Agreement was limited to its express terms and did not include the underinsured motorist protection that the police officer sought. Accordingly, the judgment was affirmed.




Court: Iowa Supreme Court
Docket: 090427
 October 14, 2011
Judge: Zager
Areas of Law: Government & Administrative Law, Utilities Law
Evercom Systems provided telephone services to inmates in correctional facilities throughout the country. When Evercom billed a customer for collect calls he did not accept, the customer lodged a complaint to the Iowa Utility Board. The Board imposed a civil penalty for a "cramming" violation based on improper billing for collect telephone calls under Iowa Code 476.103 and Iowa Admin. Code r. 199-22.23. The district court reversed the agency's decision and imposition of the civil penalty, concluding that the Board misinterpreted the law and that no cram occurred. The court of appeals reversed the district court and reinstated the civil penalty. The Supreme Court vacated the court of appeals and affirmed the district court, holding that Evercom's actions did not constitute a cram under rule 199-22.23. Remanded for dismissal.




Court: New York Court of Appeals
Docket: 148
 October 20, 2011
Areas of Law: Government & Administrative Law, Non-Profit Corporations
Plaintiff, the New York Coalition for Quality Assisted Living (NYCQAL), a not-for-profit association of members who operate adult homes and assisted living facilities that were regulated pursuant to 18 NYCRR Parts 485 through 48, commenced this action seeking a judgment declaring, among other things, that its guidelines were enforceable and enjoining defendants from violating such guidelines. The court held that the Appellate Division properly concluded that the guidelines impermissibly restricted advocate access to facility residents and violated 18 NYCRR 485.14 and the DOH's interpretation of that regulation. The Appellate Division had a sound basis for concluding that the guidelines, which called for facility representatives to serve as intermediaries between advocates and the residents and prohibited advocates from walking through the facility without the intention of visitng with a particular resident, conflicted with the regulations and the DOH's interpretation of them. Likewise, the Appellate Division properly concluded that the guideline providing that a vistors' failure to comply with any of the guidelines would "constitute reasonable cause to restrict access" conflicts with 18 NYCRR 485.14(g).




Court: New York Court of Appeals
Docket: 153
 October 18, 2011
Judge: Graffeo
Areas of Law: Government & Administrative Law, Injury Law
After her estranged boyfriend shot her, causing serious injuries, plaintiff sued the City of New York for failing to provide her with adequate police protection to prevent the attack. The primary issue on appeal was whether there was sufficient evidence in the record to establish the existence of a special relationship between plaintiff and the police. The court held that because plaintiff's proof was insufficient to establish a special relationship and demonstrate that the City owed her a special duty of care, the court agreed with the Appellate Division that the Supreme Court should have dismissed the negligence claims for failure to establish a prima facie case.




Court: North Dakota Supreme Court
Docket: 20110083
 October 20, 2011
Judge: VandeWalle
Areas of Law: Environmental Law, Government & Administrative Law, Real Estate & Property Law, Zoning, Planning & Land Use
Petitioner Alvin Peterson appealed and the State Engineer, Todd Sando, cross-appealed a district court judgment affirming in part and reversing in part a State Engineer order that determined there was an unauthorized dam on Petitioner's property in Walsh County and required Petitioner to construct a drainage ditch to maintain water impounded by the dam at a level of 1543.5 feet mean sea level. The primary issue in this case involved the determination of the natural elevation of land at the site of the dam for purposes of deciding if the land impounded sufficient water to necessitate a water or construction permit. Petitioner owned land in Walsh County, which, along with other land in the area, contains a slough in a closed basin. Sometime before 1973, Petitioner dug a ditch to drain the slough. In 1973, the United States Department of Interior, Fish and Wildlife Service, the holder of wetland conservation easement for the slough, required Petitioner to restore the drained wetland. In 2009, Petitioner's neighbor filed a complaint with the State Engineer alleging an unauthorized dam existed on Petitioner's land. The neighbor claimed Petitioner had raised the height of the ditch plug above the slough's natural overflow elevation, which resulted in the impoundment of additional water in the slough without necessary water or construction permits. Upon review, the Supreme Court affirmed the district court's judgment in part, and reversed in part, and affirmed the State Engineer's order. Specifically, the Court found that the district court's decision pertaining to costs was "a boilerplate, conclusory statement awarding the State Engineer 'costs as allowed by law,' and the State thereafter caused entry of a judgment that awarded [the Engineer] costs" without any delineation of those costs, or discussion of whether costs are allowed. "Under our jurisprudence disfavoring piecemeal appeals, [the Supreme Court] conclude[d] the State Engineer's failure to include any further delineation for costs in the final judgment constitutes a waiver of any costs it may have been entitled to in a proceeding before a district court acting as an appellate court in an administrative proceeding." Accordingly, the Court reversed the district court's order pertaining to costs, and declined the State Engineer's request to remand for a determination of the costs, if any, to which it may be entitled in the Engineer's cross-appeal. The Court affirmed the district court's order in all other respects.




Court: North Dakota Supreme Court
Docket: 20110127
 October 18, 2011
Judge: Maring
Areas of Law: Government & Administrative Law, Labor & Employment Law, Public Benefits
Petitioner Wanda Gottus appealed a district court judgment that affirmed a decision of Job Service North Dakota denying her unemployment benefits and concluding she was discharged for actions constituting misconduct. In January 2008, Petitioner began working as a cashier for Service Oil Inc. d/b/a Stamart. In addition to acting as a cashier, Petitioner's job duties included attending to the store's shelves, light cleaning, and other similar tasks. Petitioner's employment with Stamart ended in August 2010 when she was discharged for poor job performance. Petitioner subsequently filed for unemployment insurance benefits. Job Service initially approved Petitioner for unemployment benefits indicating she was not discharged for misconduct. Stamart appealed this decision, and a telephone hearing was held before an appeals referee. Testimony and evidence presented during the hearing revealed there were at least sixteen instances when Petitioner's job performance fell below the level expected of Stamart employees. The Job Service reviewed the record and affirmed the referee's decision. Petitioner argued on appeal her job performance was merely unsatisfactory but did not constitute misconduct. The district court rejected her argument and affirmed Job Service's decision. The Supreme Court concluded Job Service's findings of fact were supported by a preponderance of the evidence, and its conclusion that Petitioner's actions constituted disqualifying misconduct was supported by the findings.




Court: Oregon Supreme Court
Docket: S058915
 October 20, 2011
Judge: Kistler
Areas of Law: Government & Administrative Law, Real Estate & Property Law, Zoning, Planning & Land Use
The question before the Supreme Court in this case was whether a landowner holding a "Measure 37" waiver had a common law vested right to construct a residential subdivision that he had begun but not completed by the effective date of "Measure 49." Yamhill County found that the costs that the landowner had incurred were sufficient to establish a vested right to complete construction of the subdivision, and the circuit court upheld the county's decision on a writ of review. The Court of Appeals reversed the circuit court's judgment and remanded the case for further proceedings. The Court of Appeals started from the proposition that, in the context of Measure 49, a common law vested right turns primarily on the ratio between the costs that a landowner has incurred and the projected cost of the development. It reversed because the county had given too little weight to that factor. The Supreme Court allowed the landowner's petition for review to clarify the standard for determining when, in the context of Measure 49, a common law right to complete a development will vest. The Court then affirmed the Court of Appeals decision, although for different reasons than those stated in the Court of Appeals opinion.




Court: Pennsylvania Supreme Court
Docket: 29 WAP 2009
 October 19, 2011
Judge: Orie Melvin
Areas of Law: Government & Administrative Law, Injury Law, Insurance Law
In this discretionary appeal, the Supreme Court was asked to address whether the "regular use" exclusion in a personal automobile insurance police was valid to preclude payment of underinsured motorist benefits (UIM) to a police officer injured in the course of employment while operating his police vehicle for which the officer did not have an ability to obtain UIM coverage. Appellant Robert Williams was a Pennsylvania State Trooper seriously injured in an accident involving his police vehicle. At the time of the accident, Appellant maintained a personal automobile insurance policy with Government Employees Insurance Company (GEICO). He sought to recover UIM benefits from GEICO from the accident, but GEICO denied coverage citing the "regular use" exclusion contained in the policy. The trial court granted GEICO's motion to dismiss, and the Superior Court affirmed in an unpublished memorandum. Appellant argued on appeal that because of the special factual circumstances and challenges he faces as a state trooper, his insurer should have provided him with UIM coverage "despite the unambiguous policy exclusion because Pennsylvania has a strong public policy of protecting police officers and other first responders such that they are entitled to special treatment." Upon review, the Supreme Court concluded "Appellant's argument simply fails." The Court held that the trial and superior courts were correct in denying Appellant coverage under his UIM policy, and affirmed their decisions.




Court: Pennsylvania Supreme Court
Docket: 60, of the International Assocation of Fire Fighters, AFL-CIO, Aplt - Nos. 35 - 38 MAP 2010
 October 19, 2011
Judge: Saylor
Areas of Law: Arbitration & Mediation, Constitutional Law, Government & Administrative Law, Labor & Employment Law
Consolidating several appeals, the Supreme Court addressed the effect of a municipality's financial distress and recovery planning on an arbitration award agreed to pursuant to the Policemen and Firemen Collective Bargaining Act (Act). For approximately twenty years, the City of Scranton has been designated a distressed municipality under the Municipalities Financial Recovery Act. Pursuant to the Recovery Act, the City has its Commonwealth-mandated financial advisors who assist in creating a financial recovery plan (essentially a budget). In the most recent collective bargaining agreements between the City of Scranton and its Police and Firefighter Unions expired at the close of 2002. Negotiations as to future terms and work conditions for union members resulted in impasses. Accordingly, pursuant to the Act, arbitrators were selected to establish appropriate terms and conditions. Throughout the arbitrations, the City maintained that the arbitrators lacked legal authority to award relief impinging on the City's financial recovery plan. The City attempted to resist paying the ensuing award that resulted from the arbitration. The Commonwealth Court found that it was required to vacate the awards, holding that they did not conform to the City's Recovery Plan and would result in increased financial and operational burdens on an already distressed municipality. The Unions appealed to the Supreme Court. The Court focused on the distinction between the terms "arbitration award" and "arbitration settlement": the City argued that it was not mandated to pay "awards" but "settlements." The Supreme Court found the term "settlement" ambiguous, and the plain meaning could include the "award" given by the arbitrators in this case. Accordingly, the Court reversed the Commonwealth Court's order that the award negatively impacted the City's Recovery Plan.




Court: Pennsylvania Supreme Court
Docket: 16 WAP 2009
 October 19, 2011
Judge: Orie Melvin
Areas of Law: Contracts, Government & Administrative Law, Injury Law, Insurance Law
At issue before the Supreme Court was whether it was a violation of public policy to exclude from underinsured motorist coverage (UIM) a claim by an individual eligible for workers' compensation benefits. Appellant Frank Heller was severely injured from an automobile accident that happened during the course of his employment as a police officer for Sugarcreek Borough. Workers' Compensation covered his medical expenses and two-thirds of his salary. The Borough paid the remainder of Appellant's salary. Appellant's losses and damages far exceeded the policy limit from the tortfeasor's insurance carrier. Accordingly, Appellant notified his insurer of a potential UIM claim and sought UIM benefits from the Borough pursuant to a policy issued by the Pennsylvania League of Cities and Municipalities. Ultimately, Appellant's claim was denied. Upon review, the Supreme Court concluded that an exclusion in Appellant's workers' compensation policy violated public policy and was therefore unenforceable. The Court reversed the Commonwealth Court which held that the policy considerations favored the insurer: "Invalidating the workers' compensation exclusion would not force [the UIM insurer] to underwrite an unknown risk for which it did not receive compensation. The Borough voluntarily elected to purchase optional UIM coverage. .. [W]e find [Appellant's] assertion that the Borough purchased illusory coverage persuasive… the vast majority of all UIM claims likely will be made by Borough employees who are eligible for workers' compensation. The subject exclusion operates to deny UIM benefits to anyone who is eligible for workers' compensation."




Court: Pennsylvania Supreme Court
Docket: 49 EAP 2010
 October 19, 2011
Judge: Orie Melvin
Areas of Law: Government & Administrative Law, Injury Law, Insurance Law, Labor & Employment Law
At issue before the Supreme Court was whether an opinion rendered by a medical expert was sufficient to rebut the presumption of disease causation under the Pennsylvania Workers' Compensation Act. Joseph Kriebel worked for the City of Philadelphia as a firefighter from 1974 to 2003. He died in 2004 from liver disease caused by hepatitis C. His widow Appellant Patricia Kriebel, filed a claim petition under the Act in 2005, alleging that her husband contracted hepatitis C in the course of his employment. Appellant sought to raise the presumption of occupational exposure. In support of her claim, Appellant presented the testimony of her husband's treating physician. The City rebutted the presumption of disease causation with testimony of its own medical expert. Upon review, the Supreme Court held that an expert's opinion does not constitute substantial competent evidence where it is based on a series of assumptions that lack the necessary factual predicate. Since the medical opinions in this case were based on unfounded suppositions, they were legally insufficient to overcome the presumption of disease causation. The Supreme Court reversed the Commonwealth Court that held that the City overcame the presumption with its' medical expert's testimony, and reinstated the order of the superior court which held in favor of Appellant.




Court: Utah Supreme Court
Docket: 20081054
 October 18, 2011
Judge: Parrish
Areas of Law: Government & Administrative Law, Real Estate & Property Law, Zoning, Planning & Land Use
The Utah Department of Transportation (UDOT) condemned real property belonging to Admiral Beverage Corporation, and Admiral was entitled to compensation from the State for the taking of its property. During the condemnation proceedings, Admiral sought to introduce evidence of the fair market value of its property, including evidence of its damages arising from the loss of view and visibility of its remaining property. The district court ruled that evidence of the fair market value of Admiral's property was not admissible under the holding in Ivers v. UDOT. The court of appeals affirmed. The Supreme Court reversed, holding (1) the part of Ivers that allowed severance damages only for "recognized property rights" was too restrictive to accord the full protection of the Utah Constitution, was inconsistent with both Utah statutes and the Court's prior case law, and was therefore overruled; and (2) Admiral had the right to recover from UDOT for the decrease in the fair market value of its remaining property resulting from the condemnation.




Court: Utah Supreme Court
Docket: 20090569
 October 18, 2011
Judge: Lee
Areas of Law: Government & Administrative Law, Real Estate & Property Law, Zoning, Planning & Land Use
L.C. Canyon filed an application with Salt Lake County to rezone several acres of its property to allow the construction of a residence on the property. The County Planning Commission recommended its approval to the Salt Lake County Council. The Council then passed an ordinance amending the zoning map to grant L.C. Canyon's requested rezoning. Before the ordinance was to take effect, the Council rescinded the rezoning ordinance. L.C. Canyon filed a complaint against the County, asserting that the Council had no authority to rescind the rezoning ordinance and that the rescission effected a taking of L.C. Canyon's property. The district court entered summary judgment against L.C. Canyon. The Supreme Court affirmed, holding (1) the County had a rational basis for its zoning decision, (2) the Council had the authority to rescind its rezoning ordinance before it became effective, and (3) because L.C. Canyon had only a unilateral hope that the rezoning ordinance ultimately would take effect, it had no viable takings claim.





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