Table of Contents | | Houston Aquarium, Inc. v. Occupational Safety and Health Review Commission Government & Administrative Law, Health Law, Labor & Employment Law US Court of Appeals for the Fifth Circuit | | Delgado v. United States Department of Justice Government & Administrative Law, Labor & Employment Law US Court of Appeals for the Seventh Circuit | | Peterson v. Barr Criminal Law, Government & Administrative Law US Court of Appeals for the Seventh Circuit | | Clean Wisconsin v. Environmental Protection Agency Environmental Law, Government & Administrative Law US Court of Appeals for the District of Columbia Circuit | | National Association of Regulatory Utility Commissioners v. Federal Energy Regulatory Commission Energy, Oil & Gas Law, Government & Administrative Law US Court of Appeals for the District of Columbia Circuit | | New York v. Environmental Protection Agency Environmental Law, Government & Administrative Law US Court of Appeals for the District of Columbia Circuit | | Bachner Company, Inc. v. Alaska Department of Administration Contracts, Government & Administrative Law, Landlord - Tenant, Real Estate & Property Law Alaska Supreme Court | | Butts v. Alaska Department of Labor & Workforce Development Government & Administrative Law, Labor & Employment Law, Personal Injury Alaska Supreme Court | | Leigh v. Alaska Children's Services Government & Administrative Law, Labor & Employment Law, Personal Injury Alaska Supreme Court | | Abatti v. Imperial Irrigation Dist. Environmental Law, Government & Administrative Law, Zoning, Planning & Land Use California Courts of Appeal | | Church v. San Mateo County Assessment Appeals Board Government & Administrative Law, Tax Law California Courts of Appeal | | Newsome v. Superior Court (Gallagher) Civil Procedure, Constitutional Law, Election Law, Government & Administrative Law California Courts of Appeal | | Smith v. Superior Court Constitutional Law, Criminal Law, Government & Administrative Law California Courts of Appeal | | Talley v. County of Fresno Civil Rights, Constitutional Law, Government & Administrative Law, Labor & Employment Law California Courts of Appeal | | State, Department of Finance v. AT&T, Inc. Government & Administrative Law Delaware Court of Chancery | | In re Equalization Appeals of Target Corp. Government & Administrative Law, Tax Law Kansas Supreme Court | | Travis v. Lahm Government & Administrative Law Nebraska Supreme Court | | Arvidson v. Liberty Northwest Ins. Corp. Civil Procedure, Government & Administrative Law, Insurance Law, Labor & Employment Law, Personal Injury Oregon Supreme Court | | Athens School District et al. v. Vermont State Board of Education et al. Civil Procedure, Education Law, Government & Administrative Law Vermont Supreme Court | | Huntington School District v. Vermont State Board of Education et al. Civil Procedure, Education Law, Government & Administrative Law Vermont Supreme Court | | In re Lewis Y. Birt Government & Administrative Law, Legal Ethics Vermont Supreme Court | | Gerber v. State ex rel., Department of Workforce Services Government & Administrative Law, Labor & Employment Law Wyoming Supreme Court |
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Government & Administrative Law Opinions | | Houston Aquarium, Inc. v. Occupational Safety and Health Review Commission | | Court: US Court of Appeals for the Fifth Circuit Docket: 19-60245 Opinion Date: July 15, 2020 Judge: Stephen Andrew Higginson Areas of Law: Government & Administrative Law, Health Law, Labor & Employment Law | | The Fifth Circuit reversed the Commission's decision affirming the application of OSHA's commercial diving safety regulations to the dives its staff members perform to feed animals housed at the Aquarium and to clean the facility's tanks. A majority of the Commission panel affirmed the ALJ's determination that feeding and cleaning dives did not fall within the "scientific diving" exemption to the commercial standard. The court held that the ALJ did not err in crediting the compliance officer's testimony about the Commercial Diving Operations (CDO) standard as lay opinion testimony; even if the compliance officer testified to some matters that fell outside the realm of lay opinion testimony, the admission of the testimony was harmless; and the Aquarium's witnesses were properly treated as lay witnesses. Under a plain reading of the entire definition of "scientific diving," as well as the regulation guidelines and regulatory history, the court held that the activities performed during the feeding and cleaning dives fall within the plain text of the exemption. In this case, the Aquarium has shown that feeding and cleaning dives are a necessary component of its scientific research. | | | | Delgado v. United States Department of Justice | | Court: US Court of Appeals for the Seventh Circuit Docket: 19-2239 Opinion Date: July 16, 2020 Judge: HAMILTON Areas of Law: Government & Administrative Law, Labor & Employment Law | | Delgado, an agent with the Bureau of Alcohol, Tobacco, Firearms, and Explosives, sought relief under the Whistleblower Protection Act, 5 U.S.C. 1214(q)(1)(A), 2302(b)(8), for retaliation he suffered after reporting his suspicions that another ATF agent may have committed perjury during a federal criminal trial. In 2018, the Seventh Circuit held that the Merit Systems Protection Board had acted arbitrarily in dismissing his administrative appeal under the Act and that Delgado had properly alleged “a protected disclosure” and had exhausted his administrative remedies so that the Board had jurisdiction to evaluate his claim. On remand, the Board, acting only through an Administrative Judge (since 2017 the Board has lacked a quorum), denied relief. The Seventh Circuit remanded, only with respect to the relief Delgado is entitled-to. The Administrative Judge “paid only lip-service” to its earlier decision, “ignoring critical holdings and reasoning.” Delgado proved that he made a disclosure that was protected under the Act and proved retaliation for his protected disclosure, which affected decisions to deny him several promotions. Noting that it had “already remanded, only to be met by obduracy,” and that the government had the opportunity to offer evidence to support its affirmative defense, which fails as a matter of law, the court held that Delgado is entitled at least to pay and benefits as if he had been promoted effective March 2014. | | | | Peterson v. Barr | | Court: US Court of Appeals for the Seventh Circuit Docket: 20-2252 Opinion Date: July 12, 2020 Judge: Diane S. Sykes Areas of Law: Criminal Law, Government & Administrative Law | | In 1996 Lee murdered an Arkansas family of three in pursuit of funds for a white supremacist organization. Lee was convicted of capital murder in aid of racketeering, 18 U.S.C. 1959(a)(1), and sentenced to death. His execution was scheduled for December 9, 2019, but was stayed by one district judge in connection with Lee’s 28 U.S.C. 2241 habeas petition, and another who was hearing a challenge to the federal execution protocol. In December 2019, the Seventh Circuit vacated the stay in the section 2241 proceeding. The D.C. Circuit vacated the injunction in the execution-protocol case in April 2020. Lee’s execution was rescheduled for July 13. On July 7, family members of the victims sought an injunction; they want to attend the execution although they oppose it. The Warden authorized them to be witnesses, but they object to carrying out the execution during the COVID-19 pandemic. They raise health concerns, citing age, underlying medical conditions, and the need to travel interstate to reach the Terre Haute prison. A district judge issued a preliminary injunction. The Seventh Circuit vacated that injunction, finding the Administrative Procedures Act claim frivolous. The challenged action—setting an execution date—may not be judicially reviewable; the Bureau of Prisons observed the minimal regulatory requirements and has the unconstrained discretion to choose an execution date. In addition, the plaintiffs have no statutory or regulatory right to attend the execution and are not “adversely affected or aggrieved,” 5 U.S.C. 702. | | | | Clean Wisconsin v. Environmental Protection Agency | | Court: US Court of Appeals for the District of Columbia Circuit Docket: 18-1203 Opinion Date: July 10, 2020 Judge: Per Curiam Areas of Law: Environmental Law, Government & Administrative Law | | In these consolidated petitions, petitioners challenged area designations promulgated by the EPA for the National Ambient Air Quality Standards (NAAQS) applicable to ground-level ozone, i.e., smog. The court found that at least one petitioner has standing to challenge each of the designations at issue. In this case, Government Petitioners have adequately demonstrated standing based on direct injuries rather than parens patriae status. On the merits, the court granted Jefferson County's petition and held that EPA has, without explanation, treated similarly situated areas—Jefferson and Boles—differently and drawn conflicting conclusions from the same data. Therefore, such inconsistent treatment is the hallmark of arbitrary agency action and requires further explanation from the EPA. The court also granted petitions for review for Monroe County, Ottawa County, Weld County, Door County, and Sheboygan County. The court denied Lake County's petition for review and granted EPA's motion to remand. | | | | National Association of Regulatory Utility Commissioners v. Federal Energy Regulatory Commission | | Court: US Court of Appeals for the District of Columbia Circuit Docket: 19-1142 Opinion Date: July 10, 2020 Judge: Wilkins Areas of Law: Energy, Oil & Gas Law, Government & Administrative Law | | The DC Circuit denied a petition for review of orders related to FERC's efforts to remove existing barriers to the participation of electric storage resources (ESRs) in the Regional Transmission Organization and Independent System Operator markets (RTO/ISO markets), independent, nonprofit companies that manage segments of the federal grid. The court held that petitioners failed to show that Order Nos. 841 and 841-A run afoul of the Federal Power Act's jurisdictional bifurcation or that they are otherwise arbitrary and capricious. After determining that petitioners have standing to bring their claims and that the matters are ripe for review, the court held that because the challenged orders do nothing more than regulate matters concerning federal transactions – and reiterate ordinary principles of federal preemption – they do not facially exceed FERC's jurisdiction under the Act. The court also held that FERC's decision to reject a state opt-out was adequately explained. | | | | New York v. Environmental Protection Agency | | Court: US Court of Appeals for the District of Columbia Circuit Docket: 19-1231 Opinion Date: July 14, 2020 Judge: Patricia Ann Millett Areas of Law: Environmental Law, Government & Administrative Law | | The DC Circuit granted a petition for review of the EPA's denial of New York's petition challenging the EPA's asserted failure to address cross-border pollution under the Clean Air Act's Good Neighbor Provision, 42 U.S.C. 7410(a)(2)(D)(i). New York petitioned the EPA to find that power-generating and other facilities in nine different States were violating the Good Neighbor Provision by producing emissions that contributed significantly to New York's difficulty attaining or maintaining compliance with the 2008 and 2015 National Ambient Air Quality Standards for ozone. The court held that the EPA offered insufficient reasoning for the convoluted and seemingly unworkable showing it demanded of New York's petition. The court also held that the EPA's finding that New York did not have an air quality problem under the 2008 National Ambient Air Quality Standards for ozone relied on two faulty interpretations of the Clean Air Act that have since been invalidated. Accordingly, the court vacated the EPA's decision and remanded for further proceedings. | | | | Bachner Company, Inc. v. Alaska Department of Administration | | Court: Alaska Supreme Court Docket: S-17150 Opinion Date: July 10, 2020 Judge: Peter J. Maassen Areas of Law: Contracts, Government & Administrative Law, Landlord - Tenant, Real Estate & Property Law | | The Bachner Company leased office space to the State of Alaska. The lease stipulated that the State would occupy 15,730 square feet of space but would not have to pay rent on 1,400 square feet of that space during the lease’s initial ten-year term. The lease further specified that if it was extended beyond the initial term the parties would negotiate a rate for the free space and the State would pay for it. Toward the end of the initial term the State exercised its first renewal option and opened negotiations with the company over the free space’s value. The parties retained an expert to value the space, but the State questioned his methods and conclusions. The State also resisted the company’s claim that the State should begin paying rent for additional space, not identified in the lease, that the company contended the State had been occupying. The parties failed to reach agreement, and the State did not pay rent for any of the extra square footage. Eventually the State executed a unilateral amendment to the lease based on the expert’s valuation and, ten months after the end of the lease’s initial term, paid all past-due rent for the formerly free space identified in the lease. The company filed a claim with the Department of Administration, contending that the State had materially breached the lease, the lease was terminated, and the State owed additional rent. A contracting officer rejected the claim, and on appeal an administrative law judge found there was no material breach, the lease had been properly extended, and the company had waived any claim regarding space not identified in the lease. The Commissioner of the Department of Administration adopted the administrative law judge’s findings and conclusions. The superior court affirmed the Commissioner’s decision except with regard to the space not identified in the lease; it directed the company to pursue any such claim in a separate action. Both parties appealed to the Alaska Supreme Court. After review, the Supreme Court concluded the administrative law judge's findings were supported by substantial evidence, and because the lease did not terminate under the Supreme Court's interpretation of it, the Court affirmed the Commissioner's decision except with regard to the company's claim to rent for space not identified in the lease. The Court concluded that, to the extent it sought rent after the end of the initial term, it was not waived by the document on which the administrative law judge relied to find waiver. Only that issue was remanded to the Commissioner for further consideration. | | | | Butts v. Alaska Department of Labor & Workforce Development | | Court: Alaska Supreme Court Docket: S-17283 Opinion Date: July 10, 2020 Judge: Joel H. Bolger Areas of Law: Government & Administrative Law, Labor & Employment Law, Personal Injury | | Office worker Sallyanne Butts (f/k/a Decastro) fell from her chair onto her hands and left knee. She initially suffered left knee symptoms and later developed right knee problems and lower back pain that she alleged arose from the fall. She argued the Alaska Workers’ Compensation Board erred when it performed its presumption analysis and when it awarded compensation for her left knee and back for only a limited period of time following the accident. The Alaska Supreme Court concluded: the Board appropriately considered the knee injuries and the back injury as distinct injuries and applied the presumption analysis accordingly; that the Board properly relied on the conflicting medical evidence to make its own legal decision about which of Butts’s conditions were compensable; and that the Board was not required to award compensation for knee replacement surgeries performed five years after the accident. The Court therefore affirmed the Alaska Workers’ Compensation Appeals Commission’s decision affirming the Board. | | | | Leigh v. Alaska Children's Services | | Court: Alaska Supreme Court Docket: S-17247 Opinion Date: July 10, 2020 Judge: Joel H. Bolger Areas of Law: Government & Administrative Law, Labor & Employment Law, Personal Injury | | Allison Leigh broke her ankle when she slipped and fell in her employer’s icy parking lot. Following surgery she had a complicated recovery. Her employer began to controvert benefits related to the ankle about nine months after the injury. Three years after the injury, her employer requested that she sign a release allowing it to access all of her mental health records for the preceding 19 years because of her pain complaints. Leigh asked for a protective order from the Alaska Workers’ Compensation Board. The Board’s designee granted the protective order, and the employer appealed that decision to the Board. A Board panel reversed the designee’s decision. Leigh petitioned the Alaska Workers’ Compensation Appeals Commission for review, but the Commission declined. The Alaska granted Leigh's petition for review and found that the statute permitted an employer to access the mental health records of employees when it was relevant to the claim, even if the employee did not make a claim related to a mental health condition. This matter was remanded back to the Board for further proceedings to consider reasonable limits on the release at issue here. | | | | Abatti v. Imperial Irrigation Dist. | | Court: California Courts of Appeal Docket: D072850(Fourth Appellate District) Opinion Date: July 16, 2020 Judge: Cynthia Aaron Areas of Law: Environmental Law, Government & Administrative Law, Zoning, Planning & Land Use | | The Imperial Irrigation District (District) supplied water from the Colorado River system to California's Imperial Valley, holding its water rights in trust for the benefit of its users, and was empowered by California law to manage the water supply for irrigation and other beneficial uses. In 2013, the District implemented an equitable distribution plan with an annual water apportionment for each category of users (2013 EDP). Michael Abatti presently owns and farms land in the Imperial Valley. Abatti, as trustee of the Michael and Kerri Abatti Family Trust, and Mike Abatti Farms, LLC (collectively, Abatti) filed a petition for writ of mandate to invalidate the 2013 EDP on the grounds that, among other things, the farmers possess water rights that entitle them to receive water sufficient to meet their reasonable irrigation needs—and the plan unlawfully and inequitably takes away these rights. Abatti's position, fairly construed, is that farmers are entitled to receive the amounts of water that they have historically used to irrigate their crops. The District contended the farmers possessed a right to water service, but not to specific amounts; the District was required to distribute water equitably to all users, not just to farmers; and that the 2013 DEP allowed the District to do so, while fulfilling its other obligations, such as conservation. The superior court granted the petition, entering a declaratory judgment that prohibited the District from distributing water in the manner set forth in the 2013 EDP, and required the District to use a historical method for any apportionment of water to farmers. The District appealed, and Abatti cross-appealed an earlier order sustaining the District's demurrer to his claims that the District's adoption of the 2013 EDP constitutes a breach of its fiduciary duty to farmers and a taking. The Court of Appeal concluded the farmers within the District possessed an equitable and beneficial interest in the District's water rights, which was appurtenant to their lands. "Although the superior court acknowledged certain of these principles, its rulings reflect that it took an unduly narrow view of the District's purposes, thus failing to account for the District's broader obligations, and took an overly expansive view of the rights of farmers." The superior court was directed to enter a new judgment: (1) granting the petition on ground that the District's failure to provide for equitable apportionment among categories of water users constituted an abuse of discretion; and (2) denying the petition on all other grounds, including as to declaratory relief. | | | | Church v. San Mateo County Assessment Appeals Board | | Court: California Courts of Appeal Docket: A155034(First Appellate District) Opinion Date: July 16, 2020 Judge: Stuart R. Pollak Areas of Law: Government & Administrative Law, Tax Law | | The San Mateo County Assessment Appeals Board invalidated escape assessments imposed by the County Assessor based on the value of machinery and equipment (M&E) at Genentech’s San Mateo County facility. The fair market value of the M&E on which property tax is imposed is determined with reference to either the cost of equipment purchased in a finished state or, if the equipment is not purchased in a finished state, costs incurred to bring the equipment to a finished state. The Board determined that Genentech purchased all of the M&E in a finished state and that the assembly of the equipment into a production line did not render the equipment “self-constructed property” justifying the inclusion of the additional costs in determining fair market value. The trial court determined that none of the equipment was in a finished state until put to use in a functioning production line and that the additional costs capitalized for accounting purposes add to the value of the property for purposes of the property tax. The court of appeal reversed. The trial court adopted a standard for determining when equipment is in a finished state for which there is no justification, and erroneously rejected Board findings that are supported by substantial evidence. Fair market value and net book value are separate concepts with separate purposes; the assessor may not rely on Genentech’s capitalization of expenses for accounting purposes to establish that those expenses increase the value of the equipment and are subject to assessment. | | | | Newsome v. Superior Court (Gallagher) | | Court: California Courts of Appeal Docket: C092070(Third Appellate District) Opinion Date: July 10, 2020 Judge: Vance W. Raye Areas of Law: Civil Procedure, Constitutional Law, Election Law, Government & Administrative Law | | In May 2020, the chairs of the California Assembly and Senate committees that consider election-related matters prepared a formal letter to Governor Gavin Newsom indicating they were working on legislation to ensure Californians could vote by mail in light of the emergency occasioned by COVID-19. The Governor issued Executive Order No. N-64-20 on May 8, 2020, which required all voters to be provided vote-by-mail ballots. That order affirmed, however, that the administration continued to work “in partnership with the Secretary of State and the Legislature on requirements for in-person voting opportunities and how other details of the November election will be implemented” and “[n]othing in this Order is intended, or shall be construed, to limit the enactment of legislation on that subject.” The order was signed on June 3, 2020. The issue presented for the Court of Appeal's review concerned an order of the Sutter County Superior Court, entered on June 12, 2020, granting a temporary restraining order against the Executive Order, finding it constituted “an impermissible use of legislative powers in violation of the California Constitution and the laws of the State of California.” The Court of Appeal determined there was no basis for the superior court to grant real parties in interest relief using ex parte procedures prescribed by California law. "The hearing on the ex parte application, conducted only one day after the underlying action was filed in superior court, was held without proper notice to the Governor or his appearance. Apart from these procedural deficiencies, real parties in interest also failed to make the requisite substantive showing for use of an ex parte proceeding. In short, the real parties in interest failed to present competent evidence establishing imminent harm from the Governor’s executive order requiring immediate action." | | | | Smith v. Superior Court | | Court: California Courts of Appeal Docket: C088817(Third Appellate District) Opinion Date: July 14, 2020 Judge: Ronald B. Robie Areas of Law: Constitutional Law, Criminal Law, Government & Administrative Law | | Petitioner Shaun Smith filed, as an indigent defendant representing himself in propria persona (pro. per.) in a pending criminal action, a petition for writ of mandate, prohibition, or other appropriate relief against respondent Sacramento County Superior Court, challenging respondent’s policies and procedures pertaining to pro. per. defendants then in effect. Central to petitioner’s grievance were the duties the court assigned to the pro. per. coordinator -- an individual hired and supervised by, and subject to the control and direction of, Sacramento County (the county). The court revised its policies and procedures pertaining to pro. per. defendants in response to a Court of Appeal order to show cause. The revisions did not quell petitioner’s concerns pertaining to the pro. per. coordinator’s role in the disposition of investigative and ancillary defense services requests and the review of subpoenas. Considering the nature of those duties delegated to the pro. per. coordinator, as provided in respondent’s revised policies and procedures, the Court of Appeal concluded respondent impermissibly delegated its judicial powers in contravention of the separation of powers clause of the California Constitution. The Court of Appeal thus issued a writ of mandate directing the respondent-trial-court to cease and desist from applying and implementing the pertinent portions of its revised pro. per. policies and procedures, and directed the trial court to revise those policies and procedures in a manner consistent with the Court of Appeal's opinion in this case. | | | | Talley v. County of Fresno | | Court: California Courts of Appeal Docket: F078541(Fifth Appellate District) Opinion Date: July 10, 2020 Judge: Meehan Areas of Law: Civil Rights, Constitutional Law, Government & Administrative Law, Labor & Employment Law | | After plaintiff was injured while performing work in the Adult Offender Work Program (AOWP), he filed suit against the county for its failure to accommodate his preexisting physical disability and failure to engage in the interactive process under the Fair Employment and Housing Act (FEHA). The Court of Appeal affirmed the trial court's grant of summary judgment in favor of the county. The court held that an individual sentenced to perform work activities in lieu of incarceration in the absence of any financial remuneration, is precluded, as a matter of law, from being an "employee" within the meaning of the FEHA. The court explained that, while remuneration alone is not a sufficient condition to establish an individual is an employee under the statute, it is an essential one. Because plaintiff earned no sufficient financial remuneration as a result of participation in the AOWP, he could not be deemed an employee under the FEHA. The court did not reach plaintiff's remaining arguments. | | | | State, Department of Finance v. AT&T, Inc. | | Court: Delaware Court of Chancery Docket: C.A. No. 2019-0985-JTL Opinion Date: July 10, 2020 Judge: Laster Areas of Law: Government & Administrative Law | | The Court of Chancery quashed a subpoena the Department of Finance, acting on behalf of the State Escheator, used to AT&T Inc. in its current form, holding that the State Escheator had the authority to issue the subpoena but that AT&T met its burden to show that the scope of the subpoena was so expansive that enforcement would constitute an abuse. The Escheat Law authorizes the State Escheator to conduct examinations of companies' books and records to determine whether they had complied with statutory requirements of the Escheat Law, 12 Del. C. 1130-1190. When the Department began examining the books and records of AT&T and AT&T refused to produce two categories of information, the Department issued an administrative subpoena for the missing information. AT&T refused to comply and filed a federal action alleging that the State Escheator and two other state officials took actions that violated federal law and the Constitution. The Department responded by bringing this action to enforce the subpoena. AT&T responded with a motion to modify or quash the subpoena. The Court of Chancery quashed the subpoena in its current form, holding that enforcing the subpoena as written would be an abuse of the court's process. | | | | In re Equalization Appeals of Target Corp. | | Court: Kansas Supreme Court Docket: 119228 Opinion Date: July 10, 2020 Judge: Dan Biles Areas of Law: Government & Administrative Law, Tax Law | | The Supreme Court affirmed in part and reversed in part the decision of the court of appeals that it lacked jurisdiction to review the failure by the Board of Tax Appeals (BOTA) to issue a full and complete opinion in an ad valorem tax dispute after the opinion was requested, holding that the court erred when it concluded that it lacked jurisdiction to review the allegation that BOTA illegally failed timely to issue a full and complete opinion. Taxpayers appealed Johnson County's ad valorem tax valuations for the 2016 tax year on seven commercial properties. The BOTA entered a written summary decision ordering lower values for each property. Five weeks later, the County asked BOTA to issue the full and complete opinion. BOTA failed to do so. The County petitioned the court of appeals for judicial review. The court of appeals dismissed the appeal for lack of jurisdiction. The Supreme Court reversed in part and remanded, holding that the court of appeals (1) had jurisdiction over the issue of whether BOTA acted properly in failing timely to issue a full and complete opinion; and (2) correctly dismissed the appeal as it pertained to the County's effort to obtain judicial review of the summary decision. | | | | Travis v. Lahm | | Court: Nebraska Supreme Court Citation: 306 Neb. 418 Opinion Date: July 10, 2020 Judge: Papik Areas of Law: Government & Administrative Law | | The Supreme Court affirmed the order of the district court affirming the revocation of Appellant's motor vehicle operator's license for refusing to submit to a chemical test of his breath, holding that the district court's decision was not contrary to law and was supported by competent evidence. On appeal, Appellant argued that the district court erred in failing to find that the requirements for revocation of his driver's license were not satisfied. The Supreme Court disagreed, holding (1) the district court applied the correct legal framework; and (2) the district court's decision that Appellant failed to carry his burden to show that he took the chemical test was supported by competent evidence. | | | | Arvidson v. Liberty Northwest Ins. Corp. | | Court: Oregon Supreme Court Docket: S066746 Opinion Date: July 16, 2020 Judge: Christopher L. Garrett Areas of Law: Civil Procedure, Government & Administrative Law, Insurance Law, Labor & Employment Law, Personal Injury | | After claimant Danny Arvidson received an award of permanent total disability, insurer Liberty Northwest Insurance Corporation requested a hearing before an administrative law judge (ALJ) to review the award. The ALJ dismissed insurer’s hearing request as time-barred. The question on review before the Oregon Supreme Court was whether that dismissal entitled claimant to attorney fees under ORS 656.382(2), which provided that, if an insurer initiates review of a compensation award and the reviewing body “finds that ... all or part of the compensation awarded ... should not be reduced or disallowed,” the insurer shall pay the claimant’s attorney a “reasonable attorney fee.” The ALJ determined that the statute applied to the dismissal of insurer’s claim and awarded fees to claimant. The Workers’ Compensation Board reached a different conclusion and reversed that decision. The Court of Appeals affirmed without opinion. The Oregon Supreme Court reversed, finding the ALJ correctly determined that his dismissal of insurer’s request for hearing entitled claimant to attorney fees. The board erred in concluding otherwise. | | | | Athens School District et al. v. Vermont State Board of Education et al. | | Court: Vermont Supreme Court Citation: 2020 VT 52 Opinion Date: July 10, 2020 Judge: Paul L. Reiber Areas of Law: Civil Procedure, Education Law, Government & Administrative Law | | Plaintiffs, a number of independent school districts, school boards, parents, students, and citizens, challenged the implementation of Act 46, as amended by Act 49, regarding the involuntary merger of school districts. The Vermont Legislature enacted those laws in 2015 and 2017, respectively, to improve educational outcomes and equity by designing more efficient school governance structures in response to long-term declining student enrollment and balkanized educational governance and delivery systems. In separate decisions, the civil division dismissed several counts of plaintiffs’ amended complaint and then later granted defendants’ motion for summary judgment on the remaining counts. In two consolidated appeals, plaintiffs argued that: (1) the State Board of Education and the Agency of Education failed to carry out the plain-language mandate of Act 46; and (2) the Board’s implementation of the law, as manifested in its final order, violated other statutes in Title 16 and several provisions of the Vermont Constitution. The Vermont Supreme Court concluded that the Agency’s and Board’s implementation of the law was consistent with the challenged Acts and other statutes in Title 16, did not result from an unlawful delegation of legislative authority, and did not violate any other constitutional provisions. Accordingly, the civil division’s decisions were affirmed. | | | | Huntington School District v. Vermont State Board of Education et al. | | Court: Vermont Supreme Court Citation: 2020 VT 53 Opinion Date: July 10, 2020 Judge: Paul L. Reiber Areas of Law: Civil Procedure, Education Law, Government & Administrative Law | | Plaintiff Huntington School District appealed the civil division’s order dismissing its complaint on motion of the two state defendants and granting defendant Mount Mansfield Modified Unified Union School District's motion for judgment on the pleadings. This case was one of several lawsuits challenging the implementation of Act 46 (as amended by Act 49) regarding the involuntary merger of school districts. Plaintiff raised four issues on appeal; three of those were resolved by the Vermont Supreme Court in a contemporaneously issued opinion concerning another challenge to the implementation of Acts 46 and 49, Athens Sch. Dist. et al. v. State Board of Education, 2020 VT 52. In this opinion, the Supreme Court set forth only the law and procedural history relevant to plaintiff’s single claim of error not decided in Athens School District: that the State Board of Education exceeded its delegated authority under Act 46 “by designating Huntington as a member of Mount Mansfield and purporting to subdelegate to Mount Mansfield the power to merge Huntington.” In relevant part, plaintiff alleged in its complaint that because Mount Mansfield was a union school district receiving incentives under Acts 153 and 156, the Board could not order Huntington to merge or otherwise alter its governance structure pursuant to Act 46, section 10(b). Plaintiff also alleged that the Board acted beyond its authority by calling for Mount Mansfield to vote on merger pursuant to 16 V.S.A. 721, while at the same time not allowing plaintiff to veto the merger by its own vote under the same statute. The state defendants moved to dismiss plaintiff’s complaint for failure to state a viable claim for relief, and Mount Mansfield moved for judgment on the pleadings. The Supreme Court found "unavailing" plaintiff's argument that Act 46 as amended did not authorize the Board to order Huntington to merge with Mount Mansfield, conditioned upon the consent of coters in Mount Mansfield's member districts. Nor did the Court found any merit to plaintiff's argument that the Board's authority was unlawfully subdelegated. As we stated with respect to the plaintiffs in Athens School District, plaintiff in this case did not demonstrate the Board failed to apply any Title 16 provisions in circumstances in which they were applicable. | | | | In re Lewis Y. Birt | | Court: Vermont Supreme Court Citation: 2020 VT 55 Opinion Date: July 10, 2020 Judge: Eaton Areas of Law: Government & Administrative Law, Legal Ethics | | Applicant Lewis Birt successfully completed Vermont’s Law Office Study (LOS) Program in April 2000. Thereafter, applicant sat for the Vermont bar exam four times between 2002 and 2004, failing each time. In July 2019, applicant filed an application with the Vermont Board of Bar Examiners (BBE) to sit for the February 2020 bar exam. Licensing Counsel reviewed the application and raised concerns about both the length of time between applicant’s completion of the LOS Program, the 2019 application, and the number of applicant’s prior unsuccessful examination attempts. In light of those concerns, Licensing Counsel asked applicant if he wished to go forward with the application. Applicant elected to do so, and, in November 2019, supplied additional information directed at the concerns Licensing Counsel raised. At its December 2019 meeting, the BBE decided to deny applicant’s request to sit for the 2020 bar examination. In doing so, it relied on Rule of Admission to the Bar of the Vermont Supreme Court 9(b)(1), which requires an applicant to sit for the bar exam within five years of completing the LOS Program unless the time is extended for good cause, and Rule 9(b)(4), which limits an applicant to four attempts to pass the examination unless the BBE waives the limitation upon a proper showing. The Vermont Supreme Court agreed with the BBE's finding that there was no cause to extend the five-year limit. Since his last exam in 2004, applicant worked as a musician, church residential real-estate manager, paralegal studies teacher for a for=profit school, and as a court reporter. Absent a waiver, applicant was deemed ineligible to sit for the 2020 bar examination because he did not meet the requirements of Rule 9(b)(1), and the Supreme Court concurred his application was properly denied. | | | | Gerber v. State ex rel., Department of Workforce Services | | Court: Wyoming Supreme Court Citation: 2020 WY 90 Opinion Date: July 13, 2020 Judge: Gray Areas of Law: Government & Administrative Law, Labor & Employment Law | | The Supreme Court affirmed the decision of the Department of Workforce Services, Unemployment Insurance Commission denying Jesse Gerber unemployment benefits, holding that the Commission correctly determined that Gerber was not eligible for employment benefits. The Commission determined that Gerber had left work voluntarily without good cause and did not qualify for the "returning to approved training" exception in Wyo. Stat. Ann. 27-3-311(a)(i)(B). The Supreme Court affirmed, holding that Gerber did not meet the conditions of the statutory exception, and therefore, the Commission's decision denying Gerber unemployment benefits conformed with the law. | | |
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