Saturday, November 26, 2011

Decisions of interest involving Government and Administrative Law

Decisions of interest involving Government and Administrative Law

Source: Justia November 25, 2011
 
Court: U.S. 5th Circuit Court of Appeals
Docket: 10-41108
 November 23, 2011
Judge: Higginbotham
Areas of Law: Energy, Oil & Gas Law, Environmental Law, Government & Administrative Law
This appeal arose out of an oil spill on the Neches River. Appellants challenged the National Pollution Funds Center's (NPFC) final claim determination denying reimbursement for costs arising from the spill. The district court rejected appellants' challenge to the agency determination. The court concluded that the NPFC's interpretation of 33 U.S.C. 2703 was entitled to deference and that appellants have not demonstrated that the NPFC's denial of the third-party affirmative defense claim should be overturned under the standard set forth in the Administrative Procedure Act, 5 U.S.C. 500 et seq.




Court: U.S. 5th Circuit Court of Appeals
Docket: 11-30082
 November 18, 2011
Judge: Prado
Areas of Law: Civil Rights, Constitutional Law, Criminal Law, Government & Administrative Law
Plaintiffs filed a civil action against St. Tammany Parish Sheriff Rodney Strain and Deputies Bryan Steinert, Julie Boynton, and Wayne Wicker, each in their individual and official capacities. Plaintiffs brought claims for negligence under Louisiana state law and for deliberate indifference based on the Eighth and Fourteenth Amendments under 42 U.S.C. 1983. The only three issues to survive summary judgment were the state-law negligence claims and the section 1983 claims against Steinert in his personal capacity and Strain in his official capacity. At issue were the two section 1983 claims. The court dismissed Steinert's appeal for lack of jurisdiction because he challenged the district court's factual conclusions on interlocutory appeal. The court dismissed Strain's appeal for lack of jurisdiction because Strain was being sued in his official capacity, the suit against him was "in essence" a suit against a municipality, and municipal governments could not raise immunity defenses on interlocutory appeal.




Court: U.S. 9th Circuit Court of Appeals
Docket: 09-16362
 November 23, 2011
Judge: Tallman
Areas of Law: Government & Administrative Law, Injury Law, Medical Malpractice, Military Law
After his unsuccessful cataract surgery, plaintiff brought a claim for battery against the United States government and his United States Navy surgeon. The United States invoked the Gonzalez Act, 10 U.S.C. 1089, immunizing individual military medical personnel from malpractice liability. At issue was whether section 1089(e) waived the government's sovereign immunity for common law battery claims. The court held that it did not and affirmed the district court's dismissal of plaintiff's complaint for lack of subject-matter jurisdiction. The court did not address plaintiff's remaining claims.




Court: U.S. 10th Circuit Court of Appeals
Docket: 11-3046
 November 22, 2011
Judge: Ebel
Areas of Law: Civil Rights, Family Law, Government & Administrative Law
Plaintiff Katherine Winters filed this lawsuit pursuant to 42 U.S.C. 1983 alleging violations of an asserted right to the care and custody of her biological grandchildren. She named the State of Kansas, the state Department of Social and Rehabilitation Services, social workers and their supervisors and the state court judge who ruled on the "Child in Need of Care" (CINC) matter relating to all three children and the adoption proceeding of her grandson "C.W.," as well as a prosecutor, guardian ad litem and court-appointed special advocates. Plaintiff requested remedies including declaratory and injunctive relief voiding state-court placement and adoption orders, plus compensatory damages of $67 million and punitive damages. The district court dismissed the action, and Plaintiff appealed. On appeal, Plaintiff argued that the district court erred in its determinations on subject-matter jurisdiction, defendants’ immunity, and the sufficiency of her complaint. Her fundamental argument was that the district court failed to give proper consideration to her claim of a constitutional right to the custody and care of C.W. Having carefully reviewed the record on appeal and the appellate briefs in the light of the governing law, the Tenth Circuit agreed with the district court’s analysis of Plaintiff's claims. The Court therefore affirmed the judgment of the district court.




Court: U.S. D.C. Circuit Court of Appeals
Docket: 10-1184
 November 18, 2011
Judge: Tatel
Areas of Law: Communications Law, Government & Administrative Law
This case involved the FCC's Universal Service Program, which provided subsidies to ensure that low-income consumers, schools, health care providers, and libraries have access to advanced telecommunications services and that rates and services in rural areas were "reasonably comparable" to rates and services in urban areas pursuant to the Telecommunications Act of 1996, 47 U.S.C. 254. At issue was the FCC's order declining to increase subsidies under the rural rates and services component of the Universal Services Program. Here, the FCC explained that "reasonable comparability" between rural and urban areas had been largely accomplished and that expansion of the high-cost support fund would "jeopardize other statutory mandates," such as extending services to schools, hospitals, and libraries, and "ensuring affordable rates in all parts of the country." Because of this, and because the FCC had promised to address state-specific issues, like those presented by Vermont and Maine, through the waiver process, its decision to leave the high-cost support mechanism unchanged was neither arbitrary nor capricious. Thus, the court denied the petition for review.




Court: U.S. D.C. Circuit Court of Appeals
Docket: 10-5386
 November 18, 2011
Judge: Sentelle
Areas of Law: Energy, Oil & Gas Law, Entertainment & Sports Law, Government & Administrative Law
TRCP filed for declaratory and injunctive relief in the district court, arguing that the Bureau of Land Management's 2008 Record of Decision regarding the Pinedale Anticline Project Area (PAPA) violated the Federal Land Policy Management Act (FLPMA), 43 U.S.C. 1701 et seq.; that the accompanying environmental impact statement (EIS) violated the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq.; and the 2000 Record of Decision violated both acts. The district court granted summary judgment for the Bureau and TRCP appealed. The court held that the Bureau considered a reasonable range of alternatives in the EIS addressing the proposal to expand natural gas development in the PAPA. That EIS sufficiently addressed the proposed action's impact on hunting in the PAPA. The record supported the Bureau's determination that the 2008 Record of Decision would prevent unnecessary or undue degradation of the PAPA. Finally, TRCP's claims based on the Bureau's alleged non-enforcement of the 2000 Record of Decision were moot. Accordingly, the judgment of the district court was affirmed.




Court: U.S. D.C. Circuit Court of Appeals
Docket: 10-1344
 November 18, 2011
Judge: Sentelle
Areas of Law: Communications Law, Government & Administrative Law
Petitioner appealed a licensing order of the FCC affirming a decision of the Wireless Bureau denying reconsideration of licensing actions taken by the Wireless Bureau's Mobility Division. The Mobility Division granted Thomas Kurian's request to withdraw a radio spectrum assignment application and dismissed petitioner's notification of consummation of that same assignment. Petitioner argued that the FCC's order should be reversed because the FCC and Kurian engaged in unlawful ex parte communications; the FCC failed to give proper public notice of its decisions to grant Kurian's withdrawal request; and the FCC acted arbitrarily and capriciously in rendering the order. The court held that petitioner waived its ex parte and public notice arguments, and the FCC acted neither arbitrarily nor capriciously in rendering its order affirming the Wireless Bureau's order.




Court: Georgia Supreme Court
Docket: S10G1882, S10G1892
 November 21, 2011
Judge: Benham
Areas of Law: Constitutional Law, Government & Administrative Law, Real Estate & Property Law, Zoning, Planning & Land Use
These appeals arose from annexations by the City of parcels of unincorporated real property in Fayette County. At issue was whether appellee, the City resident seeking to enjoin the City from providing services to the area annexed in 2007, had standing as a citizen-taxpayer to do so; whether the appeal was moot; and whether a subsequent annexation by the City cured the flaw the Court of Appeals found in the first annexation. The court concluded that the appeal was moot when it was docketed in the Court of Appeals, and the Court of Appeals should have dismissed it as such. In light of this decision, there was no need to address the issue of appellee's standing as a citizen-taxpayer. Accordingly, the court reversed and remanded.




Court: Indiana Supreme Court
Docket: 93S02-1102-EX-90
 November 17, 2011
Judge: Rucker
Areas of Law: Government & Administrative Law, Health Law, Injury Law, Insurance Law, Labor & Employment Law
Appellant Indiana Spine Group provided medical services to employees of various businesses for injuries the employees sustained arising out of and during the course of their employment. The employers authorized the services and made partial payments. In each case, more than two years after the last payments were made to the injured employee, Appellant filed with the worker's compensation board an application for adjustment of claim seeking the balance of payments. The Board dismissed the applications as untimely. In each case the court of appeals reversed and remanded. At issue on appeal was what limitation period was applicable to a medical provider's claim seeking payment of outstanding bills for authorized treatment to an employer's employee when the Worker's Compensation Act was silent on the question. The Supreme Court reversed the Board, holding (1) the limitation period contained in the general statute of limitation enumerated in Ind. Code 34-11-1-2 controlled; and (2) because Appellant's claim was timely under the statute, the Board erred by dismissing Appellant's application.




Court: Iowa Supreme Court
Docket: 091670
 November 18, 2011
Judge: Waterman
Areas of Law: Government & Administrative Law
Plaintiff, City of Riverdale, spent sixteen months in district court litigating wither Defendants, several individuals, were entitled to view security camera video of a confrontation with the mayor over earlier records requests at the city clerk's counter. The mayor filed a declaratory judgment action at the advice of a junior attorney even though a senior partner attorney earlier advised the mayor to produce the recordings. The trial court ordered the City to turn over a copy of the videotape and awarded Defendants attorney fees. The court of appeals vacated the fee award because the district court made no finding of bad faith on the part of the City. The Supreme Court vacated the court of appeals and affirmed the district court, holding (1) Iowa Code 22.10(3)(c) required the City to pay Defendants' reasonable attorney fees because the district court found the City violated the statute by withholding the video; and (2) the district court did not err by implicitly rejecting the City's good-faith, reasonable delay defense notwithstanding the City's reliance on advice of legal counsel. Remanded.




Court: Montana Supreme Court
Docket: DA 10-0651
 November 22, 2011
Judge: Wheat
Areas of Law: Government & Administrative Law, Real Estate & Property Law
The Slacks sued the County for damages due to the County's alleged failure to comply with its statutory obligation to notify the Slacks that the home they purchased was once the site of a clandestine methamphetamine laboratory. After a trial, the jury found the County was negligent and awarded the Slacks $563,592 in damages. The Supreme Court affirmed on all issues, holding (1) the County waived all the issues it raised on appeal; and (2) the district court properly denied the Slacks' motion for attorneys' fees because simply including attorneys' fees in a bill of costs does not entitle a party to recover attorneys' fees, and the County's defense was not frivolous or pursued in bad faith.




Court: Montana Supreme Court
Docket: DA 10-0615
 November 23, 2011
Judge: Cotter
Areas of Law: Constitutional Law, Government & Administrative Law
The City Police Department conducted an internal investigation of an administrative coordinator, who was placed on administrative leave after she allegedly misused public funds. The Department created a sixteen-page due process letter detailing the evidence against the coordinator, who subsequently resigned. The Billings Gazette requested the letter, but the City declined to release it. The Gazette sued the City. The district court ordered that the document be provided to the Gazette. The Supreme Court affirmed, holding (1) where two constitutional rights are implicated, including the public's right to know about the actions of public agencies and employees and the employees' right to privacy, the district court must balance the two rights to determine whether the employees' right to privacy outweighs the public's right to know; (2) in this case, the coordinator did not have a reasonable expectation of individual privacy to the document because she held a position of trust with the Department and she was accused of breaching that trust; and (3) the mere prospect of a criminal case will not deprive the public of its right to access a public document once that right has been balanced against the right to privacy.




Court: New Hampshire Supreme Court
Docket: 2010-548
 November 22, 2011
Judge: Duggan
Areas of Law: Government & Administrative Law
Defendant New Hampshire Division for Children, Yought and Families (DCYF) appealed a superior court order that it pay Plaintiff Chase Home for Children over $3 million. The dispute concerned rates the DCYF paid to the Chase home for fiscal years 2004 through 2006 pursuant to Provider Service Agreements the home had with DCYF. Due to state budget cuts, DCYF notified its contracted service providers like Chase that it would be unable to increase rates. The service providers asked DCYF to reconsider, claiming that the then-current rates were inconsistent with the agency's own rules. A hearing panel established that DCYF underpaid the service providers. The providers requested the panel order DCYF to pay them, but the panel ruled it lacked authority to do so. The providers appealed to the Supreme Court. Upon review, the Supreme Court found that the legislature specifically authorized the courts to enter a monetary judgment against the State when it breaches a contract: "to hold otherwise would require [the Court] to ignore these legislative directives and to permit a State agency to disregard its contractual obligations. Such a result finds no support in New Hampshire law." The Court therefore affirmed the hearing panel's conclusion and ordered DCYF to pay the service providers for the underpayments.




Court: New Mexico Supreme Court
Docket: 33,029
 November 21, 2011
Judge: Maes
Areas of Law: Government & Administrative Law
In the General Appropriation Act of 2011, the Legislature appropriated $150,000 to the Department of Finance and Administration "[f]or disbursement to the New Mexico mortgage finance authority to carry out the responsibilities, duties and provisions of the regional housing law. The Governor signed the General Appropriation Act of 2011; however, the Governor struck the "1" from the $150,000 appropriated by the Legislature to the Department of Finance and Administration, thereby changing or "scaling" the appropriation down to $50,000. The Governor stated that she vetoed the "1" because, although she agreed with the Legislature that regional housing oversight was a necessary expenditure, but she "disapproved of the excessive part of the appropriation." Citizens of the State of New Mexico, electors, taxpayers, and members of the New Mexico Legislature (Petitioners) subsequently filed a Verified Petition for Writ of Mandamus/Prohibition. Petitioners sought a writ restoring the full appropriation, claiming it was an unconstitutional application of the Governor's partial veto authority. The Supreme Court ordered that the Governor’s "partial veto that would allow scaling of appropriations [was] invalid and unconstitutional" and restored the $150,000 Legislative appropriation.




Court: New York Court of Appeals
Docket: 190
 November 21, 2011
Judge: Jones
Areas of Law: Constitutional Law, Government & Administrative Law
Plaintiffs, a group of 50 taxpayers of the State of New York, commenced this declaratory judgment action against the State and other defendants, challenging numerous loans and grants issued by public defendants to private entity defendants and other private companies in order to stimulate economic development. At issue was plaintiffs' challenge to appropriations in the New York State 2008-2009 budget. The court held that it could find no constitutional infirmity to the challenged appropriations. Although some could question the wisdom of the policy choices, "the legislature has made a valid legislative judgment." Accordingly, the order of the Appellate Division was reversed.




Court: Ohio Supreme Court
Docket: 2010-0734
 November 17, 2011
Judge: Per Curiam
Areas of Law: Government & Administrative Law, Injury Law, Labor & Employment Law
Patrick Donohoe died from injuries sustained in a workplace accident. His widow, Catherine, filed an application for additional workers' compensation benefits, claiming that Patrick's accident resulted from his employer's violation of specific safety requirements (VSSRs) governing the construction industry. The Industrial Commission of Ohio denied her application. The court of appeals vacated the order and returned the cause to the Commission for further consideration. Both Catherine and the employer appealed. At issue on appeal was (1) whether the Commission staff hearing officer's order, which could be interpreted in different ways, was deficient; and (2) whether the Commission erred by denying Catherine's application because there were no eyewitnesses to the accident. The Supreme Court affirmed, holding (1) an order that can engender two viable, yet irreconcilable, interpretations is too ambiguous to withstand scrutiny; (2) an order that is potentially based on an erroneous belief that a VSSR cannot issue in the absence of eyewitnesses is clearly an abuse of discretion; and (3) therefore, the court of appeals was correct in returning the cause to the Commission for clarification and consideration of all the evidence.




Court: Oregon Supreme Court
Docket: S059448
 November 23, 2011
Judge: Durham
Areas of Law: Constitutional Law, Election Law, Government & Administrative Law
Petitioners Gail Rasmussen and Bethanne Darby sought review of the Attorney General's certified ballot title for Initiative Petition 18 (2012). If approved by the voters, Initiative Petition 18 would enact a prohibition on the imposition of any state or local estate tax, inheritance tax, tax on property transferred in connection with a person's death, or tax on the transfer of property between family members. The proposed measure would supersede current statutes that imposed those taxes, and it would exclude from its prohibition certain statutes that imposed fees relating to attendant transactions following a person's death. Petitioners argued that the certified "yes" and "no" vote result statements did not comply with the applicable statutory standards. Upon review, the Supreme Court found that indeed the certified statements were inaccurate, and the Court "invited" the Attorney General to address and correct the problems with the narrative.




Court: South Carolina Supreme Court
Docket: 27065
 November 21, 2011
Judge: Plecones
Areas of Law: Environmental Law, Government & Administrative Law, Real Estate & Property Law, Zoning, Planning & Land Use
The South Carolina Coastal Conservation League (League) and the South Carolina Department of Health and Environmental Control (DHEC) appealed an administrative law judge's (ALJ) order that allowed Respondent Kiawah Development Partners to construct erosion control devices in a critical zone on Captain Sam's Spit (Spit). Respondent owend a peninsula (Spit) which lies primarily south of Kiawah Island, surrounded on three sides by the Atlantic Ocean, Kiawah River and Captain Sam's Inlet which separates the Spit from Seabrook Island. For the past sixty years, the Spit has been "growing," accreting sand on the ocean side at a greater rate than it has been losing ground to erosion on the river side. Respondent leased oceanfront property near the neck to the Charleston County Parks and Recreation Commission, which operates Beachwalker Park there. Respondent sought a permit from DHEC to erect a 2,783 foot bulkhead/revetment combination along the Kiawah River, with the structure to begin at the neck, that is, at Beachwalker Park. DHEC authorized construction of the proposed erosion control device for 270 feet, beginning at Beachwalker Park, and denied the remaining portion of the request. Both the League and Respondent requested a contested case hearing before the ALJ, the League to protest the portion of the permit request which was granted, and Respondent to challenge the portion denied. The Appellants contended the ALJ failed to give the deference due DHEC's interpretation of the statutes and regulations, and further that he exceeded his authority in rewriting the permit, resulting in one with terms neither approved by DHEC nor sought by Respondent. Upon review of the ALJ's ruling and the applicable legal standards, the Supreme Court reversed and remanded, finding the ALJ's decision was "affected by numerous errors of law … beginning with the ALJ's misunderstanding of the applicable statutes, regulations, and public policies, and concluding with his erroneous effort to craft a new permit, one which has never been sought by respondent, nor reviewed by OCRM, and which he, in any case, lack[ed] the authority to issue."




Court: South Carolina Supreme Court
Docket: 27064
 November 21, 2011
Judge: Toal
Areas of Law: Government & Administrative Law, Injury Law, Insurance Law, Labor & Employment Law
Appellant Alexander Michau appealed a ruling by the Appellate Panel of the South Carolina Workers' Compensation Commission (Commission) denying his claim for repetitive trauma injuries to his shoulders. Specifically, Appellant challenged the Commission's interpretation and application of section 42-1-172 of the South Carolina Code. Prior to his injury in 2008, Appellant did not report any work-related problems with his arms to his employer, although he sought outside treatment. The Commission denied Appellant's claim on the grounds that "the greater weight of the medical evidence reflects [Appellant's] upper extremity and shoulder problems are related to pre-existing osteoarthritis and/or rheumatoid arthritis and not caused or aggravated by his employment with Georgetown County." Appellant disputed the admissibility of the Commission's expert doctor's report under South Carolina Code section 42-1-172 because it was not stated "to a reasonable degree of medical certainty." Appellant argued that without this evidence, the remaining competent evidence would support his claim of sustaining a compensable repetitive trauma injury. The Supreme Court concluded after a review of the Commission's record that the doctor was not Appellant's treating doctor, and his employer sought a medical "opinion" to decide the compensability of Appellant's claim. In this instance, the Court concluded that the doctor's testimony was indeed an "opinion" within the meaning of the Code, and therefore inadmissible against Appellant in adjudicating his claim. The Court reversed the Commission's decision to admit the doctor's medical opinion and remanded the case to determine whether the remaining competent evidence supported Appellant's claim of injury.




Court: South Carolina Supreme Court
Docket: 27069
 November 22, 2011
Judge: Toal
Areas of Law: Election Law, Government & Administrative Law
Petitioners Beaufort County and several officials from county boards of elections and registration sought a declaration from the Supreme Court in its original jurisdiction that the General Assembly has neither authorized the State Election Commission or the County Election Commissions to conduct a Presidential Preference Primary in 2012, nor mandated that Petitioners bear the financial burden of conducting the primary. The South Carolina Republican Party scheduled a Presidential Preference Primary for January 21, 2012. In the 2011-2012 Appropriations Act, the General Assembly provided that filing fees received from candidates to run in primary elections may be used by the State Election Commission to conduct the 2012 Presidential Preference Primary elections. In addition, the State Election Commission is authorized to use funds originally appropriated for ballot security to conduct the Presidential Preference Primary elections and the statewide primaries and runoffs. Petitioners contended the General Assembly did not authorize the State Election Commission or the County Election Commissions to conduct a Presidential Preference Primary in 2012 or any election cycle thereafter. In addition, Petitioners argued the amount set forth in the Appropriations Act were insufficient to cover the actual costs to the counties of conducting the 2012 primary. Because the Court was "firmly persuaded" that the General Assembly, through passage of Provisos 79.6 and 79.12 for fiscal year 2011-2012, intended to suspend the temporal limitation in S.C. Code Ann. 17-11-20(B)(2) (Supp. 2010), the Court entered judgment for Respondents the State Election Commission.




Court: South Dakota Supreme Court
Docket: 25868
 November 16, 2011
Judge: Gilbertson
Areas of Law: Government & Administrative Law, Real Estate & Property Law, Zoning, Planning & Land Use
Rapid City ordinances required a developer to complete certain public improvements before the City accepted a final plat, but in lieu of completing the improvements before the City accepted a plat, the City could accept a surety from a developer. In this case, several Developers provided sureties, which the City accepted. The sureties expired, after which the City sued Developers, seeking relief to have the required public improvements completed or repaired to meet the City's standards. The circuit court granted summary judgment in favor of Developers, concluding that when the sureties expired, Developers were no longer liable for the improvements. The Supreme Court reversed, holding that, under the ordinances and specifications, Developers remained liable until the City accepted the improvements by a final acceptance letter. Remanded.




Court: Vermont Supreme Court
Docket: 2010-448
 November 23, 2011
Judge: Dooley
Areas of Law: Government & Administrative Law, Injury Law, Trusts & Estates
Plaintiff Andrew Kennery, on behalf of the estate of Gladys Kennery, appealed the decision of the Windham Superior Court that granted the State's motion for summary judgment on his complaint alleging negligence, gross negligence, and civil rights violations against the State, two state troopers, and the Vermont Department of Public Safety (VDPS). Plaintiff's lawsuit stemmed from a "welfare check" the troopers performed on Plaintiff's decedent, Gladys Kennery. Gladys's daughter had requested that the troopers check on her elderly mother, but the troopers searched the wrong residence. Meanwhile, Gladys had collapsed in her backyard and was unable to get back up and reach shelter. Gladys was found the next morning and died twelve days later from hypothermia caused by prolonged exposure to the cold. The superior court held that the State owed no duty of reasonable care in performing the welfare check, thereby defeating Plaintiff's claims. Upon review, the Supreme Court held that the trial court erred in granting summary judgment to defendants. Genuine issues of material fact remained as to whether a duty of care was created under the Restatement (Second) of Torts section 324A based upon the State's undertaking to perform the welfare check and whether the troopers breached that duty such that the State was liable under the Vermont Tort Claims Act (VTCA). The Court also held that the court erred in dismissing Plaintiff's claim of gross negligence against the troopers. The case was reversed and remanded for further proceedings.




Court: Vermont Supreme Court
Docket: 2010-185
 November 23, 2011
Judge: Dooley
Areas of Law: Constitutional Law, Criminal Law, Government & Administrative Law
Plaintiff David Lay appealed a superior court’s order that granted summary judgment to Defendants William J. Pettengill, Elizabeth F. Novotny, and Daniel K. Troidl on his complaint. Plaintiff's claims stemmed from an internal investigation into his behavior as a state trooper and his subsequent resignation from the Vermont State Police (VSP). Plaintiff argued that the superior court erred in granting judgment to Defendants on his claims of fraudulent nondisclosure, retaliatory prosecution, malicious prosecution, and negligent referral. He also challenged several discovery rulings made by the court. Plaintiff was suspended from duty due to an ongoing investigation by the Internal Affairs Unit. He would later hire a lawyer and settle charges against him which included falsification and misuse of property and evidence; making a false statement; failing to follow-up or make reports in numerous cases; and abuse of authority for conducting a warrantless search. The Windham County State Attorney's office became involved in commencing a criminal prosecution against Plaintiff. A judge found probable cause to issue a warrant for Plaintiff's arrest. At the time the second investigation was pending, Plaintiff had found new work by a private company. He was terminated from his job as a result of the arrest warrant. Upon returning to Vermont, he was charged with numerous crimes. He reached a plea agreement. Subsequently, Plaintiff filed suit against defendants raising numerous claims, including fraudulent nondisclosure, violation of his civil rights, and malicious process. In April 2010, the court issued the summary judgment decision from which Plaintiff appealed. Finding no legal basis for Plaintiff's arguments on appeal, the Supreme Court affirmed the appellate court and dismissed his case.




Court: Vermont Supreme Court
Docket: 2010-245
 November 18, 2011
Areas of Law: Family Law, Government & Administrative Law, Labor & Employment Law
"This is a case of avoidable error and its consequences." The Vermont League of Cities and Towns (VLCT), the workers' compensation insurance carrier for the Town of Randolph, settled a compensation claim of Claimant Stacey Colson and paid the settlement amount to the Office of Child Support pursuant to an earlier order that OCS issued to collect Claimant's back child support payments. VLCT failed to deduct the amount of an attorney's fee lien granted by the Commissioner of the Department of Labor (DOL) to claimant’s lawyer. VLCT acted with the understanding that the lawyer would not seek the fee if, as occurred, claimant was awarded a lump-sum compensation amount. The lawyer sought her fee, but VLCT resisted double paying that amount, and the dispute has ended up before the Supreme Court after two decisions from the Commissioner and one from Superior Court. Claimant appealed the Commissioner’s grant of summary judgment to VLCT, in which the Commissioner concluded that VLCT acted appropriately in paying over the entire proceeds of claimant’s workers’ compensation award to OCS. Claimant argued that his attorney's lien had priority over OCS's claim for child support arrearages. He claimed that the Commissioner's findings were incomplete and contradictory, that the Commissioner erred when she determined his attorney’s lien did not have priority, and that DOL should be compelled to enforce his attorney’s lien for fees. Upon review of the applicable legal authority and the trial court record, the Supreme Court found that the OCS lien was first in time and therefore took priority, and affirmed the Commissioner's holding that VLCT could not be required to pay the attorney's fee amount to Claimant's attorney.




Court: Washington Supreme Court
Docket: 62613-2-i, 62711-2 , 84379-1
 November 23, 2011
Judge: Wiggins
Areas of Law: Family Law, Government & Administrative Law
James R. Hardman and his mother Alice Hardman, certified professional guardians, are the court-appointed guardians of more than twenty Department of Social and Health Services (DSHS) clients residing at the Fircrest School, a residential habilitation center (RHC) in the city of Shoreline. The Hardmans also engage in extensive advocacy activities, lobbying officials at the local, state, and federal levels to keep Fircrest and other RHCs open and to oppose efforts to place Fircrest residents in community-based programs that the Hardmans believe provide inadequate care. In their triennial guardian reports, the Hardmans requested compensation for their advocacy activities. DSHS opposed the fee requests, arguing that the advocacy work was outside the scope of the guardians' duties. The Court of Appeals denied the Hardmans' request for advocacy fees, finding that the advocacy work did not provide a direct benefit to the indidivual wards. Upon review of the trial court record and the parties' appellate briefs, the Supreme Court found that the Hardmans were not entitled to the compensation because the advocacy activities were neither individualized to serve a particular ward's best interests nor necessary to perform their guardianship duties. The Court affirmed the Court of Appeals.




Court: West Virginia Supreme Court of Appeals
Docket: 100916
 November 21, 2011
Judge: Workman
Areas of Law: Government & Administrative Law
The assessor and sheriff of Mingo County sought to remove Gregory Smith from his position as commissioner on the Mingo County Commission. A three-judge court empaneled by the Supreme Court denied the petition for removal and dismissed the case. Smith subsequently filed a petition for a writ a mandamus, seeking to compel the Commission to reimburse him for attorney's fees and costs that he spent in defending against the removal petition. The circuit court denied the petition. The Supreme Court reversed, holding that the circuit court erred in (1) finding that Smith could have sought reimbursement of attorney's fees from the three-judge panel, and (2) determining that Powers v. Goodwin, which authorizes the use of mandamus to obtain reimbursement of attorney's fees following a successful defense in a removal action, was no longer good law. The Court (1) remanded for reconsideration of whether Smith established the three necessary elements entitling him to a writ of mandamus, and (2) directed the circuit court, in considering whether Smith had a clear legal right to the relief sought, to determine if Smith met the three-part test set forth in Powers.




Court: West Virginia Supreme Court of Appeals
Docket: 101540
 November 18, 2011
Judge: Workman
Areas of Law: Government & Administrative Law, Health Law
Respondent, who had a diagnosis of autism with obsessive compulsive disorder traits and hyperactive traits, had participated for several years in the federal Mentally Retarded / Developmentally Delayed Home and Community-Based Waiver Program, which provided in-home and community-based services for persons with mental retardation or a delayed development condition. The state Department of Health and Human Resources (DHHR) subsequently terminated Respondent's benefits. The circuit court reversed the DHHR's decision based on the DHHR's failure to present evidence that Respondent's condition had improved since he first began receiving benefits. DHHR appealed, arguing that the circuit court erred in placing the burden of proof on it rather than on Respondent. The Supreme Court affirmed, holding (1) when the DHHR seeks to reduce or terminate benefits that a claimant is receiving under the Waiver Program, the DHHR has the burden of proof to show a change in circumstances warranting such action, and therefore, the circuit court did not err in determining that the DHHUR had the burden to show some medical improvement in Respondent's condition; and (2) the circuit court did not abuse its discretion in finding that the DHHR had failed to meet its burden of proof.




Court: West Virginia Supreme Court of Appeals
Docket: 101596
 November 23, 2011
Judge: McHugh
Areas of Law: Civil Rights, Constitutional Law, Government & Administrative Law
Appellee was allegedly hit in the head by a law enforcement officer during a confrontation. Appellee filed a civil complaint against the city and the two officers involved in the incident (Appellants), alleging that his civil rights had been violated due to the use of excessive force by the officers. Appellants moved for summary judgment, asserting immunity from suit both on qualified immunity and statutory immunity grounds. The circuit court denied the motion. The Supreme Court reversed the denial of summary judgment, holding (1) a public officer is entitled to qualified immunity from civil damages for performance of discretionary functions where (i) a trial court finds the alleged facts do not demonstrate that the officer's conduct violated a constitutional right, or (ii) a trial court finds the evidence could establish the officer's conduct violated a constitutional right but further finds that it would be clear to any reasonable officer that such conduct was lawful in the situation confronted; and (2) Appellants were entitled to qualified immunity from suit, either because (i) no constitutional violated was established by the facts alleged, or (ii) a reasonable officer confronting the same situation, without notice to the contrary, would have considered the action lawful.




Court: West Virginia Supreme Court of Appeals
Docket: 101632
 November 17, 2011
Judge: Benjamin
Areas of Law: Civil Rights, Constitutional Law, Contracts, Education Law, Government & Administrative Law
Petitioners were fifteen employees of the county Board of Education, who filed a grievance regarding changes made to the subsequent year's extracurricular coaching contracts, claiming they were entitled to receive notice and a hearing prior to the adoption of the changes and that they received neither. The ALJ and the circuit court denied the grievance. Petitioners appealed, contending that W. Va. Code 18A-2-7 gave them the right to receive a hearing before the Board could unilaterally alter the terms of the coaching contracts. The Supreme Court affirmed the circuit court's denial of Petitioners' grievance, holding that the circuit court's decision was not clearly wrong nor was it arbitrary, capricious, an abuse of discretion, or contrary to law.




Court: West Virginia Supreme Court of Appeals
Docket: 101627
 November 17, 2011
Judge: McHugh
Areas of Law: Agriculture Law, Government & Administrative Law, Tax Law
Taxpayer, related corporations that operated a vertically-integrated poultry production business, sought an exemption from ad valorem taxes on five industrial personal property tax returns it filed with the State Tax Department, claiming it was exempt from such taxation under either the "subsistence of livestock" or the "farm" exemption under W. Va. Code 11-3-9-(a)(21), (28). The State Tax Commissioner concluded that Taxpayer was not entitled to either exemption. The trial court (1) ruled that Taxpayer was entitled to claim the "subsistence of livestock" exemption in connection with its hatchery operation but not with regard to personal property used at its live haul center and feed mill operation; and (2) concluded that none of Taxpayer's operation qualified for the "farm" exemption. The Supreme Court affirmed, holding that the trial court did not err in ruling that Taxpayer was not entitled to any exemptions from personal property taxation in connection with its commercial poultry operation other than the exemption afforded to its hatchery operation.




Court: West Virginia Supreme Court of Appeals
Docket: 11-0081
 November 17, 2011
Judge: McHugh
Areas of Law: Civil Rights, Constitutional Law, Criminal Law, Government & Administrative Law
After Appellee was arrested for DUI, the Division of Motor Vehicles (DMV) revoked Appellee's driver's license for two years. Appellee filed a request for an administrative hearing, which was conducted on May 6, 2008. By final order dated October 13, 2009, the DMV Commissioner ordered that Appellee's privilege to drive a motor vehicle be revoked for six months. Appellee appealed the revocation order, arguing that the seventeen-month delay between the administrative hearing and entry of the final order revoking his driver's license violated his procedural due process rights. The circuit court reversed the order, concluding that the excessive delay violated Appellee's due process rights. The Supreme Court reversed, holding that Appellee was required to show actual and substantial prejudice as a result of the delay. Remanded to (1) give Appellee the opportunity to present evidence of prejudice and to give the Commissioner the opportunity to present evidence regarding the reasons for the delay; and (2) balance the resulting prejudice against the reasons for the delay in order to determine whether the delay violated Appellee's right to due process.




Court: West Virginia Supreme Court of Appeals
Docket: 101420
 November 18, 2011
Judge: McHugh
Areas of Law: Government & Administrative Law, Health Law
Petitioner, who had a diagnosis of severe autism, had been participating in the federal Mentally Retarded / Developmentally Delayed Home and Community-Based Waiver Program, which provided in-home and community-based services for persons with mental retardation or a delayed development condition. The state Department of Health and Human Resources (DHHR) terminated Petitioner's benefits after determining that Petitioner did not demonstrate substantial adaptive deficits in three or more major life areas. A hearing officer upheld the DHHR's decision. The circuit court affirmed without holding any further proceedings. The Supreme Court reversed, holding that the trial court committed error by failing to make an independent review of Petitioner's eligibility for participation in the Waiver Program. Remanded.

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