Latest 13 Cases This Week: Friends of Buckingham v. State Air Pollution Control Board (4th Cir.), Johnson v. Morales (6th Cir.), National ...

Senate Secrecy: Can the Votes of Senators on President Trump’s Impeachment be Withheld from the Voting Public?

VIKRAM DAVID AMAR, JASON MAZZONE

Illinois law dean Vikram David Amar and professor Jason Mazzone evaluate the suggestion made by some that the votes of senators on President Trump’s impeachment can and should be private. Amar and Mazzone argue that while the text of the Constitution alone does not foreclose secrecy, structural, prudential, and logistical considerations strongly disfavor a secret vote on the matter.

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Friends of Buckingham v. State Air Pollution Control Board

Court: US Court of Appeals for the Fourth Circuit

Docket: 19-1152

Opinion Date: January 7, 2020

Judge: Stephanie Dawn Thacker

Areas of Law: Energy, Oil & Gas Law, Environmental Law, Government & Administrative Law

Petitioners challenged the Board's award of a permit for construction of a compressor station on behalf of ACP in the historic community of Union Hill. The compression station is one of three stations planned to support the transmission of natural gas through ACP's 600-mile pipeline. The Fourth Circuit held that the Board erred in failing to consider electric turbines as zero-emission alternatives to gas-fired turbines in the compressor station. The court also held that the Board erred in failing to assess the compressor station's potential for disproportionate health impacts on the predominantly African-American community of Union Hill, and in failing to independently evaluate the suitability of that site. Accordingly, the court vacated the permit and remanded for the Board to make findings with regard to conflicting evidence in the record, the particular studies it relied on, and the corresponding local character and degree of injury from particulate matter and toxic substances threatened by construction and operation of the compressor station.

Johnson v. Morales

Court: US Court of Appeals for the Sixth Circuit

Docket: 17-2519

Opinion Date: January 7, 2020

Judge: Nalbandian

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

Johnson rented her restaurant to a private party. For unknown reasons, individuals unaffiliated with her or the party emerged from a vehicle that night and shot at the restaurant. Police were called during the shooting but never apprehended the shooters. Less than two days later, Saginaw City Manager Morales issued Johnson a notice ordering the suspension of all business activity related to her restaurant under an ordinance that permits such suspensions “in the interest of the public health, morals, safety, or welfare[.]” There was hearing three days later. More than two months after the hearing, Human Resources Director Jordan upheld the suspension. Johnson filed suit with a motion for a temporary restraining order and, alternatively, a motion for a preliminary injunction to prevent Morales from sitting on the appeal panel expected to review Jordan’s decision. The district court denied that motion. The appeal panel, which did not include Morales, held a hearing and affirmed Jordan’s decision upholding the suspension. The Sixth Circuit reversed, in part, the dismissal of Johnson’s burden-shifting, substantive due process, and equal-protection claims. Johnson adequately alleged selective enforcement and pled that the city lacked a rational basis to suspend her license. Johnson has plausibly alleged that the procedures afforded to Johnson fell short of constitutional requirements.

National Association of the Deaf v. Florida

Court: US Court of Appeals for the Eleventh Circuit

Docket: 18-12786

Opinion Date: January 3, 2020

Judge: Martin

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

Plaintiff and the Association filed suit under Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act against several Florida entities and officials, challenging defendants' failure to provide captioning for live and archived videos of Florida legislative proceedings. The Eleventh Circuit affirmed the district court's ruling that Congress validly abrogated defendants' Eleventh Amendment immunity for the claims under Title II regardless of whether the right is "fundamental." The court agreed with the district court's holding that Congress validly abrogated defendants' Eleventh Amendment immunity because a fundamental right was at stake and, in the alternative, Congress validly abrogated defendants' Eleventh Amendment immunity even if a fundamental right was not at stake. Furthermore, Congress's identification of discrimination in public services and voting establishes the necessary history of discrimination for the rights implicated here: access to public legislative information relevant to voting, and Title II is an appropriate response to this history and pattern of unequal treatment. The court also affirmed the district court's holding that plaintiffs were entitled to pursue declaratory and injunctive relief against state officials under the doctrine of Ex parte Young for allegedly ongoing violations of Title II. Finally, the court held that the district court did not abuse is discretion in ordering discovery prior to resolving the question of sovereign immunity.

Nesbitt v. Candler County, Georgia

Court: US Court of Appeals for the Eleventh Circuit

Docket: 18-14484

Opinion Date: January 3, 2020

Judge: Edward Earl Carnes

Areas of Law: Government & Administrative Law, Labor & Employment Law

Plaintiff filed suit under the False Claims Act (FCA) and Georgia law, alleging that the county had engaged in a fraudulent scheme related to billing for ambulance services and had fired him in retaliation for his whistleblowing. On appeal, plaintiff challenged the district court's grant of summary judgment to the county on the FCA claim. The district court concluded that although plaintiff had engaged in "protected conduct" he had not created a genuine issue of material fact that he had been fired because of that conduct. The Eleventh Circuit held that the but-for causation standard applies to claims under the antiretaliation provision of the FCA just as it does to the antiretaliation provision of Title VII and the antidiscrimination provision of the Age Discrimination in Employment Act. The court declined to apply the motivating factor standard of causation to the FCA, explaining that it did not want to use legislative history to get around the plain meaning of a statute's text. In this case, plaintiff failed to show that the harm would not have occurred but for his protected conduct.

Western Oilfields Supply Co. v. Secretary of Labor

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

Docket: 18-1296

Opinion Date: January 7, 2020

Judge: Merrick B. Garland

Areas of Law: Government & Administrative Law

The DC Circuit denied Rain for Rent's petition for review of a $116 fine under the Federal Mine Safety and Health Act of 1977. Rain for Rent was given a citation after an employee forgot to set the parking brake on a company truck, in violation of a safety standard governing unattended vehicles. The court rejected Rain for Rent's contention that its employee was not within the jurisdiction of the Mine Act at the moment the citation was issued. The court held that, under the Mine Act, the requirement is that the contractor -- not the particular employee on whom the citation is served -- be engaged in work at the mine, which Rain for Rent was. The court also held that the inspection did not violate section 103(f) of the Mine Act, and there was no violation of Rain for Rent's walkaround rights. Furthermore, even if there had been a violation of Rain for Rent's walkaround rights, the court rejected the contention that the violation warranted vacatur or suppression. The court explained that the statute did not expressly state the consequences of violating section 103(f). Finally, the court rejected Rain for Rent's contention that the warrantless inspection of its truck violated the Fourth Amendment because Rain for Rent was not afforded an opportunity for precompliance review. The court has never held that precompliance review is necessary for the constitutionality of warrantless administrative searches in a closely regulated industry like mining.

Bom v. Superior Court

Court: California Courts of Appeal

Docket: B292788(Second Appellate District)

Opinion Date: January 7, 2020

Judge: Frances Rothschild

Areas of Law: Government & Administrative Law

The People charged petitioners, social workers with the DCFS, with felony child abuse and falsifying public records after petitioners provided emergency and family maintenance services to a child who ended up dying six weeks after the case was closed as a result of child neglect and severe head trauma inflicted by his mother and her boyfriend. The Court of Appeal explained that, because the allegations against petitioners under Penal Code section 273a, subdivision (a) are based on their alleged nonfeasance, the People would be required to prove that the petitioners either had the duty and ability to control the child's abusers or had custody or control of the child. The court held that petitioners never had the requisite duty to control the abusers and did not have care or custody of the child for purposes of Penal Code section 273a, subdivision (a). The court also held that petitioners were not officers within the meaning of Government Code section 6200 and thus there was no probable cause to hold them on charges of violating those laws. Therefore, the trial court should have granted the motions to dismiss and the court granted the petitions for review.

Dignity Health v. Local Initiative Health Care Authority of Los Angeles County

Court: California Courts of Appeal

Docket: B288886(Second Appellate District)

Opinion Date: January 9, 2020

Judge: Bendix

Areas of Law: Government & Administrative Law, Health Law

The Court of Appeal affirmed the trial court's grant of summary judgment for defendant, a managed care health plan that provides health coverage to low-income individuals under Medi-Cal. The court held that the legislative history of Welfare and Institutions Code section 14105.28, along with the statement of legislative intent within the statute itself, indicate that the Legislature intended the APR-DRG (All Patient Refined Diagnosis Related Group) rates to apply to out-of-network inpatient poststabilization services under Medi-Cal. Consistent with the legislature's intent, the court interpreted the phrase "managed care inpatient days" to refer to services provided pursuant to a managed care contract, that is, in-network services.

O.C. v. Super. Ct.

Court: California Courts of Appeal

Docket: G058416(Fourth Appellate District)

Opinion Date: January 8, 2020

Judge: Dunning

Areas of Law: Government & Administrative Law, Immigration Law

O.C., a 14-year-old refugee from Guatemala, asked the superior court to make the required Special immigrant juvenile findings, a necessary first step under the federal immigration law that allowed abandoned, unaccompanied minors living in the United States to apply for status as permanent legal residents (SIJ findings). A mandatory Judicial Council form was created for this purpose. Items 4(b), 5, and 6 on the form required the superior court to detail its findings, citing California law. The Court of Appeal determined the superior court failed to cite California statutory or case law in items 4(b) and 6, and did not check the box in item 5 to indicate O.C. could not reunify with her mother, who was deceased. Treating O.C.'s appeal as a petition for a writ of mandate, the Court of Appeal granted the petition and ordered the probate court to vacate its SIJ findings and issue new findings for items 4(b) and 6 of the mandatory Judicial Council form baed on state law, as proposed by O.C. and in compliance with federal rules and regulations.

Delaware Bd. of Med. Licensure & Discipline v. Grossinger

Court: Delaware Supreme Court

Docket: 53, 2019

Opinion Date: January 8, 2020

Judge: Traynor

Areas of Law: Constitutional Law, Government & Administrative Law, Labor & Employment Law, Professional Malpractice & Ethics

The Delaware Board of Medical Licensure and Discipline (the “Board”) reprimanded Dr. Bruce Grossinger, for violating various regulations governing the use of controlled substances for the treatment of pain. Specifically, the Board adopted the detailed report and recommendation of a Division of Professional Regulation hearing officer, who had found that Dr. Grossinger, in his care of a heroin-addicted patient (“Michael”), had not complied with the Board’s rules and regulations. The Board found that Dr. Grossinger failed to, among other things, document Michael’s history of substance abuse, discuss with Michael the risks and benefits of treatment with controlled substances, order urine samples or require pill counts, and keep accurate and complete treatment records. After a hearing, the hearing officer recommended that the Board find Dr. Grossinger guilty of unprofessional conduct and discipline him by placing his medical license on probation for six months and requiring him to complete additional medical education and pay a fine. Board adopted the hearing officer’s findings but reduced Dr. Grossinger’s discipline from probation to a letter of reprimand. Dr. Grossinger appealed the Board’s decision to the Superior Court, which reversed on all but one of the five findings. The Superior Court’s reversal of the Board rested on several legal conclusions, including that some of the regulations that Dr. Grossinger was said to have violated were unconstitutionally vague as applied to him, that expert testimony was required to establish the standard of care under the regulations, and that Dr. Grossinger’s due process rights were violated because the Board relied on evidence - its own expertise - outside the record. The parties cross- appealed: the Board appealed the Superior Court’s reversal of all but one of the findings; and Dr. Bruce Grossinger appealed the Superior Court’s failure to reverse the final finding. The Delaware Supreme Court disagreed with the Superior Court’s reversal of the Board’s decision and, therefore, reversed.

Milligan v. Ottumwa Police Department

Court: Iowa Supreme Court

Docket: 17-1961

Opinion Date: January 3, 2020

Judge: Edward M. Mansfield

Areas of Law: Civil Rights, Government & Administrative Law

The Supreme Court reversed the judgment of the district court granting Plaintiff's petition for mandamus and ordering the City of Ottumwa to disclose names of all persons who had and had not been issued automated traffic enforcement (ATE) citations by the City after their vehicles were detected as speeding by an ATE camera, holding that the district court erred in ordering the production of records whose disclosure was prohibited by the Driver's Privacy Protection Act of 1994 (DPPA), 18 U.S.C. 2721-2725, and a corresponding Iowa state law, Iowa Code 321.11. In denying the request for names, the City argued that the DPPA and section 321.11 prohibited disclosure of the requested information. The district court disagreed, concluding that the names of speed regulation violators was information on driving violations and therefore was not confidential information under the DPPA or section 321.11. The Supreme Court reversed, holding that where the personal identifying information sought by Petitioner came from a vehicle registration and driver's license database, its public disclosure was presumptively prohibited under the DPPA and section 321.11.

Ewing v. Print Craft, Inc.

Court: Minnesota Supreme Court

Docket: A19-0534

Opinion Date: January 2, 2020

Judge: Hudson

Areas of Law: Government & Administrative Law, Labor & Employment Law

The Supreme Court reversed the judgment of the Workers' Compensation Court of Appeals (WCCA) reversing the judgment of the compensation judge denying a qualified rehabilitation consultant's reimbursement claim for rehabilitation services provided during a period in which an employee was no longer suffering from a work-related injury, holding that the WCCA erred by imposing liability on the employer for rehabilitation services provided after the date that the employee's injury had resolved. In reversing the compensation judge, the WCCA concluded that the employer must pay for rehabilitation services until the employer filed a rehabilitation request for assistance. The Supreme Court reversed the WCCA's decision and reinstated the decision of the compensation judge, holding that the WCCA erred in concluding that the employer was required to show good cause to terminate the employee's rehabilitation services provided after the date that the employee's injury resolved.

State ex rel. Dunn v. Plain Local School District Board of Education

Court: Supreme Court of Ohio

Citation: 2020-Ohio-40

Opinion Date: January 9, 2020

Judge: Per Curiam

Areas of Law: Election Law, Government & Administrative Law

In this expedited election case, the Supreme Court granted a writ of mandamus to compel the Plain Local School District Board of Education to forward to the Stark County Board of Elections a petition proposing the transfer of some of Plain Local School District's territory to Jackson Local School District, holding that the school board had a clear legal duty to forward the transfer petition to the board of elections. The petition sought to have a proposal to transfer the territory at issue placed on the March 17, 2020 primary election ballot. Under Ohio Rev. Code 3311.242(B)(2), the school board was required to certify the proposal to the board of elections by December 18, 2019. The school board stated that it would not act on the petition until there was a final determination of its claims in a previously filed lawsuit challenging the constitutionality of section 3311.242. Relators sought mandamus relief against the school board. The Supreme Court granted mandamus relief and ordered the school board to cause the board of elections to check the sufficiency of the signatures on the petition, holding that Relators established a clear legal right to the requested relief and a clear legal duty on the part of the school board to provide it.

Hayse v. Wyoming Board of Coroner Standards

Court: Wyoming Supreme Court

Citation: 2020 WY 4

Opinion Date: January 8, 2020

Judge: Kate M. Fox

Areas of Law: Government & Administrative Law

The Supreme Court affirmed the order of the district court affirming the decision of the Board of Coroner Standards refusing to investigate the Teton County Coroner's alleged misconduct during a coroner's inquest, holding that the Board does not have the authority to review a complaint that a coroner failed to comply with the Board's standards dealing with the investigation of coroner cases. In a related action, the Supreme Court affirmed the district court's dismissal of an action seeking to set aside the coroner's inquest verdict in In re Birkholz, 434 P.3d 1102 (Wyo. 2019). While that action was pending, Plaintiffs requested that the Board investigate the coroner's alleged misconduct. The Board refused to investigate the inquest, concluding that it did not have the statutory authority to do so. The district court affirmed the Board's refusal to investigate. The Supreme Court affirmed, holding that the legislature did not authorize the Board to investigate a coroner's conduct during an inquest.