One More for the Road: Why Congress Must Impeach Donald Trump (Again)

DEAN FALVY

Dean Falvy, a lecturer at the University of Washington School of Law in Seattle, makes the case for impeaching Donald Trump again, after the failed insurrection of January 6. Falvy describes three possible ways to disempower Trump from undermining democracy in our nation and explains why immediate impeachment by the House and removal by the Senate is the most appropriate course of action.

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Shawnee Tribe v. Mnuchin

Court: US Court of Appeals for the District of Columbia Circuit

Docket: 20-5286

Opinion Date: January 5, 2021

Judge: David S. Tatel

Areas of Law: Government & Administrative Law, Native American Law

The Oklahoma Shawnee Tribe challenged the allocation of funds under the Coronavirus Aid, Relief, and Economic Security Act, 42 U.S.C. 801(a)(1). Of the $150 billion appropriated, the Act reserved $8 billion for “Tribal governments.” The amount paid to a Tribal government is determined by the Secretary of the Treasury “based on increased expenditures of each such Tribal government . . . relative to aggregate expenditures in fiscal year 2019 by the Tribal government." Rather than using the enrollment numbers submitted by the tribes, the Secretary relied on tribal population data used by HUD in connection with the Indian Housing Block Grant program.” That data does not reflect actual enrollment. The Secretary’s decision to use IHBG data had an unfortunate impact on the Shawnee Tribe, which had over $6.6 million in expenditures in 2019, and “incurred significant medical and public health expenses in responding to the devastation resulting from the COVID-19 pandemic.” It received $100,000. The district court, finding the allocation of funds under the Act unreviewable, dismissed the case. The D.C. Circuit reversed, with directions to enter a preliminary injunction promptly. By requiring that the allocations be “based on increased expenditures,” Congress has not left the Secretary with “unbounded” discretion. The court noted that the Secretary acknowledged that the IHBG data was inadequate as a proxy for increased expenditures in some cases but did not seek alternative information for the 25 tribes with no IHBG population.

Department of Finance v. Commission on State Mandates

Court: California Courts of Appeal

Docket: B292446(Second Appellate District)

Opinion Date: January 4, 2021

Judge: Frances Rothschild

Areas of Law: Government & Administrative Law, Utilities Law

After the Regional Board issued a permit authorizing the County and certain cities (collectively, the Operators) to operate stormwater drainage systems, some of the Operators filed claims with the Commission seeking a determination that the state must reimburse them for the costs related to the trash receptacle and inspection requirements pursuant to article XIII B, section 6 of the California Constitution. After the Commission determined that the trash receptacle requirement is a reimbursable state mandate and that the inspection requirements are not, the state agencies filed a petition in the superior court for a writ of administrative mandamus to command the Commission to set aside its decision concerning the trash receptacle requirement. The local governments filed a cross-petition challenging the Commission's decision as to the inspection requirements. The superior court granted the state agencies' petition and denied the cross-petition as moot. The Court of Appeal held that, under Government Code section 17556, subdivision (d), when, as here, the state imposes on local governments a new program or higher level of service, the state is not required to provide subvention to the local government if the local government "has the authority to levy service charges, fees, or assessments sufficient to pay for the mandated program or increased level of service." The court reversed the superior court's judgment and agreed with the Commission that the local governments have the authority to levy service charges, fees, or assessments sufficient to pay for the inspection requirements, but not for the trash receptacle requirement. Therefore, the trash receptacle requirement requires subvention under section 6.

New Livable California v. Association of Bay Area Governments

Court: California Courts of Appeal

Docket: A159235(First Appellate District)

Opinion Date: January 6, 2021

Judge: Petrou

Areas of Law: Government & Administrative Law

Plaintiffs are not-for-profit corporations focused on land use, zoning, housing, transportation, and open government. ABAG is a joint power authority of San Francisco Bay Area counties and cities, focused on housing. ABAG’s governing Board, consisting of county supervisors, mayors, and city councilmembers, is subject to the Brown Act, Govt. Code 54950. Plaintiffs contend the Board violated the Act’s vote reporting requirement during a meeting concerning a regional housing and transportation development proposal (CASA). The Board: rejected a motion to postpone a vote (Substitute Motion) on the CASA motion by “a show of hands,” that was reported as a “voice vote”; approved a motion to call the question on the CASA Motion by “a show of hands,” that was not reported; adopted an amended CASA motion by a “roll call,” that was reported as a “vote,” listing the name and vote of each member present. The plaintiffs alleged that the vote procedures for the Substitute Motion and the Motion to Call the Question involved no announcement “publicly” reporting the vote or abstention of each member; that the improper vote reporting of the Substitute Motion rendered the later Amended CASA vote void because if the Substitute Motion had succeeded, no vote would have been held on the Amended CASA motion; and that the “secretive” voting undermined their ability to monitor how members voted. The court of appeal reversed the dismissal of the suit; the allegations concerning the Substitute Motion state claims under sections 54960 and 54960.1 for declaratory and injunctive relief.

Phelan Piñon Hills Community Services District v. California Water Service Co.

Court: California Courts of Appeal

Docket: F082094A(Fifth Appellate District)

Opinion Date: January 7, 2021

Judge: Rosendo Peña, Jr.

Areas of Law: Government & Administrative Law, Utilities Law

The Antelope Valley Groundwater Cases (AVGC) proceeding litigated whether the water supply from natural and imported sources, which replenishes an alluvial basin from which numerous parties pumped water, was inadequate to meet the competing annual demands of those water producers, thereby creating an "overdraft" condition. Phelan, which provides water to its customers who are located outside the Antelope Valley Adjudication Area (AVAA) boundaries, became subject to the AVGC litigation because a significant source of its water is pumping from a well (Well 14) located in the AVAA basin. The trial court's judgment and adopted Physical Solution concluded that, while Phelan held no water rights in the AVAA basin, Phelan could continue operating Well 14 to draw up to 1,200 afy to distribute to its customers outside the AVAA, on condition that Phelan's pumping causes no material harm to the AVAA basin and that Phelan pays a "Replacement Water Assessment" for any water it pumped for use outside the AVAA. The Court of Appeal concluded that substantial evidence supports the judgment as to Phelan; the trial court correctly rejected Phelan's claim that it had cognizable water rights as an appropriator for municipal purposes; Phelan was not deprived of its due process rights to present its claims; and the trial court did not err in rejecting Phelan's claim to return flows from native water it pumped from the AVAA basin. Accordingly, the court affirmed the judgment as to Phelan.

IN RE: Request of the Trustees of the Lawyers' Fund for Client Protection for an Advisory Opinion

Court: Delaware Supreme Court

Docket: 327, 2020

Opinion Date: October 12, 2020

Judge: Per Curiam

Areas of Law: Government & Administrative Law, Legal Ethics

The trustees of the Delaware Lawyers’ Fund for Client Protection (the “LFCP”) requested an advisory opinion from the Delaware Supreme Court regarding whether the trustees had discretion to consider paying claims involving misconduct by attorneys who were not members of the Delaware bar, but who were admitted pro hac vice or who had in the past received limited permission to practice. The question arose from the language of Supreme Court Rule 66(a)(ii), which stated that the purpose of the trust fund was to address “losses caused to the public by defalcations of members of the Bar;” subsections 1 and 2 of Rule 4(1) of the LFCP Rules, which provide that the Trustees will consider for reimbursement from the fund certain claims involving “a member of the Delaware Bar;” and subsection 3 of Rule 4(1) of the LFCP Rules, which provides that the trustees will consider for reimbursement certain claims involving a “member of the Bar.” The Supreme Court held that the trustees’ discretion was not limited to paying claims for reimbursement involving an attorney who was a member of the Delaware bar at the time of the defalcation that gave rise to the claim.

Olson v. Commissioner of Revenue

Court: Minnesota Supreme Court

Docket: A20-1048

Opinion Date: December 30, 2020

Judge: McKeig

Areas of Law: Government & Administrative Law, Tax Law

The Supreme Court affirmed the order of the tax court dismissing Relator's appeal of an tax order sent by the Department of Revenue by regular mail, holding that sending a tax order by regular mail provides constitutionally sufficient notice. The Department sent Relator a tax order assessing sales and use taxes covering a three-year period. The order was sent by regular mail, as authorized by Minn. Stat. 270C.33, subd. 8. Relator appealed, asserting that he only became aware of the tax liability when his bank account was levied on by the Commissioner. The tax court granted the Commissioner's motion to dismiss. The Supreme Court affirmed, holding that Relator's notice was constitutionally sufficient.

Dolezal-Soukup v. Dodge County Board of Adjustment

Court: Nebraska Supreme Court

Citation: 308 Neb. 63

Opinion Date: December 31, 2020

Judge: Funke

Areas of Law: Government & Administrative Law, Real Estate & Property Law, Zoning, Planning & Land Use

The Supreme Court affirmed the order of the district court approving the Dodge County Board of Adjustment's grant of variance for a 4-H pigpen built in violation of county setback requirements, holding that competent evidence supported the district court's factual findings and that the district court did not err or abuse its discretion in approving the variance. The variance was based on, within the meaning of Neb. Rev. Stat. 23-168.03(1)(c), peculiar and exceptional practical difficulties or exceptional and undue hardships. In affirming the Board's decision to grant a variance, the district court found that the Board's decision was reasonable, well considered, and within the Board's discretion. The Supreme Court affirmed, holding that the district court did not make an error of law or abuse its discretion in determining that the narrowness or shape of the property resulted in sufficient hardship to justify upholding the Board's decision to grant the variance.

Egan v. County of Lancaster

Court: Nebraska Supreme Court

Citation: 308 Neb. 48

Opinion Date: December 31, 2020

Judge: Papik

Areas of Law: Government & Administrative Law, Personal Injury, Real Estate & Property Law, Zoning, Planning & Land Use

The Supreme Court affirmed the decision of the district court finding that E. Jane Egan lacked standing to challenge the Lancaster County Board of Commissioners' issuance of a special use permit allowing Randy Essink to construct and operate a poultry production facility on land within the county's agricultural zoning district and that the permit was appropriately issued, holding that the district court did not err. Egan and Janis Howlett challenged the Board's decision in the district court, asserting that the proposed poultry production facility would lead to adverse effects on the environment, properly values, public health, and local infrastructure. The district court affirmed the issuance of the special use permit, concluding that Egan did not have standing and that the permit was appropriately issued. The Supreme Court affirmed, holding that the district court did not err by failing to find that Egan had standing and finding that the special use permit was properly approved.

Associated Risk Management, Inc. v. Ibanez

Court: Supreme Court of Nevada

Citation: 136 Nev. Adv. Op. No. 91

Opinion Date: December 31, 2020

Judge: Stiglich

Areas of Law: Government & Administrative Law, Insurance Law, International Law, Personal Injury

The Supreme Court reaffirmed in this case that undocumented aliens who are injured while working for a Nevada employer may be eligible for monetary disability benefits, holding that these monetary benefits, paid by the insurer, do not conflict with federal law or undermine the Legislature's intent. Respondent, an undocumented Nevadan, was severely injured while working for High Point Construction and applied for permanent total disability (PTD) status. Associated Risk Management (ARM), High Point's insurance administrator, denied the request. An appeals officer reversed and granted Respondent PTD status pursuant to the "odd-lot doctrine." ARM petitioned for judicial review, arguing that the appeals officer committed legal error by granting PTD to an undocumented alien. The Supreme Court affirmed, holding (1) undocumented aliens are not precluded from receiving disability benefits under Nevada's workers' compensation laws; (2) although federal law prohibits employers from knowingly employing an undocumented alien, it does not prohibit insurers from compensating undocumented aliens for injuries they sustain while working; and (3) the appeals officer's decision was based on substantial evidence.

State v. Gideon

Court: Supreme Court of Ohio

Citation: 2020-Ohio-6961

Opinion Date: December 31, 2020

Judge: Stewart

Areas of Law: Civil Rights, Constitutional Law, Criminal Law, Government & Administrative Law

The Supreme Court reversed the court of appeals' decision reversing Defendant-doctor's convictions on the ground that the trial court should have granted Defendant's motion to suppress incriminating answers he gave during a medical board investigation, holding that the State may use incriminating answers given by a doctor during a medical board investigation in a subsequent criminal prosecution of the doctor. Defendant was convicted of three third-degree misdemeanor counts of sexual imposition. The court of appeals reversed the denial of Defendant's motion to suppress statements he had made to the medical board investigator as having been illegally compelled in violation of the Fifth Amendment. The Supreme Court reversed, holding (1) a medical license is a property right, the threatened loss of which is a form of coercion that can compromise the constitutional privilege against self-incrimination; (2) for coercion to be sufficient to warrant the suppression of statements made during a medical board investigative interview, the person making the statements must subjectively believe that asserting the privilege against self-incrimination could cause the loss of the person's medical license, and that belief must be objectively reasonable; and (3) Defendant's belief that he could lose his medical license if he refused to truthfully answer questions posed by the medical-board investigator was not objectively reasonable.