Rethinking Retroactivity in Light of the Supreme Court’s Jury Unanimity Requirement

MICHAEL C. DORF

In light of the U.S. Supreme Court’s decision Monday in Ramos v. Louisiana, in which it held that the federal Constitution forbids states from convicting defendants except by a unanimous jury, Cornell law professor Michael C. Dorf discusses the Court’s jurisprudence on retroactivity. Dorf highlights some costs and benefits of retroactivity and argues that the Court’s refusal to issue advisory opinions limits its ability to resolve retroactivity questions in a way that responds to all the relevant considerations.

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County of Maui v. Hawaii Wildlife Fund

Court: US Supreme Court

Docket: 18-260

Opinion Date: April 23, 2020

Judge: Stephen G. Breyer

Areas of Law: Environmental Law, Government & Administrative Law

Maui’s wastewater reclamation facility collects sewage, partially treats it, and daily pumps around four million gallons of treated water into the ground through four wells. This effluent then travels about a half-mile, through groundwater, to the Pacific Ocean. Environmental groups brought a citizens’ suit under the Clean Water Act, 33 U.S.C. 1365, alleging that Maui was “discharg[ing]” a “pollutant” to “navigable waters” without the required permit. The Ninth Circuit affirmed summary judgment for the environmentalists. The Supreme Court vacated. The Act requires a permit when there is a direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge. The Court rejected both the Ninth Circuit’s broad “fairly traceable” interpretation and the total exclusion of all discharges through groundwater, as urged by Maui and reflected in the EPA’s recent Interpretive Statement, that “all releases of pollutants to groundwater” are excluded from the scope of the permitting program." That interpretation is inconsistent with the statute’s reference to “any addition” of a pollutant from a "point source" to navigable waters, given the statute’s inclusion of “wells” in the “point source” definition; wells ordinarily discharge pollutants through groundwater. The statute is intended to provide federal regulation of identifiable sources of pollutants entering navigable waters without undermining the states’ longstanding regulatory authority over land and groundwater. A permit is required when there is a discharge from a point source directly into navigable waters or when there is the functional equivalent of a direct discharge. Many factors may be relevant to determining whether a particular discharge is the functional equivalent of one directly into navigable waters. Time and distance will be the most important factors in most cases, but other relevant factors may include the nature of the material through which the pollutant travels and the extent to which the pollutant is diluted or chemically changed as it travels. Although this interpretation does not present a clear line, the EPA has applied the permitting provision to some discharges through groundwater for over 30 years, with no evidence of inadministrability or an unmanageable expansion in the statute’s scope.

Coffey v. New Hampshire Judicial Retirement Plan

Court: US Court of Appeals for the First Circuit

Docket: 19-1908

Opinion Date: April 21, 2020

Judge: Sandra Lea Lynch

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

The First Circuit held that the New Hampshire Judicial Retirement Plan (Plan) does not allow a former judge who resigned with sufficient years of creditable service, but before reaching the minimum retirement age, to receive a Service Retirement Allowance (SRA) upon later reaching the retirement age. Plaintiff was fifty-four years old when she resigned from her position as a superior court justice for the state of New Hampshire. Plaintiff served in that position for sixteen-and-a-half years. At the age of sixty-one, Plaintiff applied for an SRA. The Board of Trustees of the Board of Trustees (Board) of the Plan denied her application. Plaintiff filed suit against the Plan seeking a declaratory judgment that she was eligible for an SRA. The district court granted summary judgment in favor of the Plan as to Plaintiff's claim for violation of N.H. Rev. Stat. 100-C, 5, concluding that the plain language of the statute requires a judge to be in active service when she elects to retire and claim a service retirement allowance. The First Circuit affirmed, holding that, under the circumstances of this case, Plaintiff was not eligible to receive an SRA on her application.

Baptist Memorial Hospital - Golden Triangle, Inc. v. Azar

Court: US Court of Appeals for the Fifth Circuit

Docket: 18-60592

Opinion Date: April 20, 2020

Judge: Higginbotham

Areas of Law: Government & Administrative Law, Health Law

In this case, the parties dispute the proper method for calculating the hospital specific limit for annual DSH payments. The Hospitals filed suit challenging the 2017 final rule clarifying that hospitals' "costs incurred" are net of payments from third parties, liked Medicare and private insurers. The Hospitals contend that the Secretary's definition of "costs incurred" conflicted with the Medicaid Act, 5 U.S.C. 706(2)(C). The Fifth Circuit reversed the district court's grant of summary judgment for the Hospitals, and joined three other circuits in holding that the 2017 rule was consistent with the Medicare Act. The court could not agree with the Hospitals that the ordinary meaning and dictionary definitions of "costs" and "payments" rendered the disputed language unambiguous; the court was unpersuaded by the Hospitals' argument that the statute draws a "clear line" between costs and payments; the court rejected the Hospitals' contention that Congress, by expressly excluding payments from Medicaid and the uninsured, meant to exclude only those payments and no others; the court rejected the Hospitals' argument that the express exclusion of third-party payments in a related Medicaid provision indicates that Congress chose not to deduct third-party payments in 42 U.S.C. 1396r-4(g)(1)(A); and the court saw no basis for the Hospitals' argument that the 2017 Rule conflicts with the statutory purpose of the hospital-specific limit. Accordingly, the court remanded for further proceedings.

Valentine v. Collier

Court: US Court of Appeals for the Fifth Circuit

Docket: 20-20207

Opinion Date: April 22, 2020

Judge: Per Curiam

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

Plaintiffs filed suit alleging that TDCJ's adoption and implementation of measures guided by changing CDC recommendations in regards to the COVID-19 pandemic do not go far enough. Plaintiffs filed a class action alleging violations of the Eighth Amendment's prohibition against cruel and unusual punishment, and the Americans with Disabilities Act, seeking a preliminary injunction. The Fifth Circuit granted TDCJ's motion to stay the district court's preliminary injunction, which regulates the cleaning intervals for common areas, the types of bleach-based disinfectants the prison must use, the alcohol content of hand sanitizer that inmates must receive, mask requirements for inmates, and inmates' access to tissues (amongst many other things). The court held that TDCJ is likely to prevail on the merits of its appeal because: (1) after accounting for the protective measures TDCJ has taken, plaintiffs have not shown a "substantial risk of serious harm" that amounts to "cruel and unusual punishment"; and (2) the district court committed legal error in its application of Farmer v. Brennan, by treating inadequate measures as dispositive of defendants' mental state. In this case, even assuming that there is a substantial risk of serious harm, plaintiffs lack evidence of defendants' subjective deliberate indifference to that harm. The court also held that TDCJ has shown that it will be irreparably injured absent a stay, and that the balance of the harms and the public interest favor a stay. Finally, the court held that plaintiffs have not exhausted their administrative remedies as required in the Prison Litigation Reform Act (PLRA), and the district court's injunction goes well beyond the limits of what the PLRA would allow even if plaintiffs had properly exhausted their claims.

Lebamoff Enterprises, Inc., v. Whitmer

Court: US Court of Appeals for the Sixth Circuit

Dockets: 18-2199, 18-2200

Opinion Date: April 21, 2020

Judge: Jeffrey S. Sutton

Areas of Law: Constitutional Law, Government & Administrative Law

The Twenty-first Amendment permits the states to regulate the sales of alcohol within their borders. Michigan is among several states with a three-tier system that forbids alcohol producers (first tier) to sell directly to retailers or consumers. Producers must sell to wholesalers within the state (second tier); those wholesalers sell exclusively to in-state retailers, who sell to consumers. Businesses at each tier must be independently owned; no one may operate more than one tier, Michigan imposes minimum prices and prohibits wholesalers from offering volume discounts or selling on credit. For liquor (not wine and beer), the state is the wholesaler in Michigan. In 2016, Michigan amended its law to allow in-state retailers to deliver directly to consumers using state-licensed “third party facilitators” or common carriers like FedEx or UPS. A wine retailer based in Fort Wayne, Indiana and Michigan wine consumers alleged that the new law violated the Commerce Clause and the Privileges and Immunities Clause. The district court extended delivery rights to out-of-state retailers. Michigan obtained a stay. The Sixth Circuit reversed. The Twenty-first Amendment permits Michigan to treat in-state retailers differently from out-of-state retailers. There is no inherent right to sell intoxicating liquors by retail. Some reduction in consumer choice is inevitable in a three-tier system, which is intended to make it harder to sell alcohol.

Fuqua v. United States Postal Service

Court: US Court of Appeals for the Seventh Circuit

Docket: 18-2415

Opinion Date: April 23, 2020

Judge: Brennan

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

Fuqua, a mail handler, was forced to transfer to a new location when his Chicago center was downsized. He did not receive placement within 30 miles of his home. He refused to appear for work in Kansas City and was fired. Fuqua alleged his termination caused him emotional distress and made an administrative claim under the Federal Tort Claims Act (FTCA), 28 U.S.C. 2671. The Postal Service denied his claim, ruling that his exclusive remedy was through the Department of Labor (DOL) under the Federal Employees’ Compensation Act (FECA), 5 U.S.C. 8101. Fuqua filed suit for intentional and negligent infliction of emotional distress under the FTCA. During a stay in the proceedings, Fuqua corresponded with the DOL alleging he was injured because of defendants’ “extreme and outrageous conduct refusing to allow [him] to become assigned a station closer to [his] residence.” The DOL denied his FECA claim, explaining “[e]motional conditions that arise out of administrative and personnel matters, such as termination of employment are usually covered only if the weight of the evidence supports that the employer acted in an abusive manner or erred.” The district court dismissed Fuqua’s case. The Seventh Circuit affirmed. FECA applied to Fuqua’s claim, its administrative scheme ran its course, and his claim was denied for lack of evidence. The district court had no subject matter jurisdiction over his FTCA claims. Fuqua’s allegation falls within the “transfer, or reassignment” definition of “personnel action.”

Mayle v. Illinois

Court: US Court of Appeals for the Seventh Circuit

Docket: 19-1691

Opinion Date: April 23, 2020

Judge: HAMILTON

Areas of Law: Civil Procedure, Civil Rights, Family Law, Government & Administrative Law

Mayle, a self-proclaimed Satanist, is a follower of The Law of Thelema, a set of beliefs developed in the early 1900s by Aleister Crowley. As part of this religion, Mayle participates in what he calls “sex magick rituals” that he believes violate Illinois laws forbidding adultery and fornication. He claims that he reasonably fears prosecution for practicing his beliefs. He also says that he wants to marry more than one person at the same time and that if he were to do so, he would violate an Illinois law against bigamy. Mayle’s first challenge to the laws was dismissed. Mayle did not appeal, but the next year he filed another suit challenging the same statutes. The Seventh Circuit affirmed the dismissal of the second suit, first rejecting a challenge to the district court’s grant of a two-day extension to allow Mayle to file a notice of appeal. Mayle’s bigamy claim was precluded by the 2017 final judgment on the merits. Mayle lacked standing to challenge the state’s adultery and fornication laws because he still showed no reasonable fear of prosecution; those laws are no longer enforced.

Hays Medical Center et al. v. Azar

Court: US Court of Appeals for the Tenth Circuit

Docket: 17-3232

Opinion Date: April 21, 2020

Judge: Jerome A. Holmes

Areas of Law: Civil Procedure, Government & Administrative Law, Public Benefits

Plaintiff-Appellants were eleven rural hospitals (the “Hospitals”) who challenged the methodology the U.S. Secretary of Health and Human Services (the “Secretary”) used to calculate their Medicare reimbursements. After the publication of the FY 2010 Final Rule, the Hospitals took issue with the Secretary’s methodology for calculating the hospital-specific rate for new base years. And dissatisfied with their reimbursements under that methodology, the Hospitals filed administrative appeals with the Provider Reimbursement Review Board, an independent panel authorized to hear appeals from the Secretary’s final determinations. The Hospitals then sued the Secretary in the district court, arguing: (1) the Secretary applied the same cumulative budget-neutrality adjustment twice—once by using inflated normalized diagnosis-related group weights as a divisor in step two and then again in step four; (2) the Secretary’s methodology yielded different payments than “would have been made had [he] . . . applied the budget-neutrality adjustments to the DRG weights themselves;" and (3) the Secretary acted arbitrarily and capriciously by not calculating the hospital-specific rate for new base years “based on 100 percent” of a hospital’s base-year “target amount." The district court held it would “not second-guess the Secretary’s policy” just because there may have been “other ways of calculating payments.” And so the court denied the Hospitals’ summary-judgment motion, granted the Secretary’s cross-motion, and entered final judgment.The Tenth Circuit Court of Appeals, in reviewing the Hospitals’ arguments, found that their arguments rested on "flawed assumptions. And the Secretary has long understood his methodology and explained it to the public." The Court concurred with the district court and affirmed its judgment.

Hall & Assoc. v. EPA

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

Docket: 18-5241

Opinion Date: April 21, 2020

Judge: Patricia Ann Millett

Areas of Law: Environmental Law, Government & Administrative Law

Hall filed suit under the Freedom of Information Act (FOIA), seeking records from the EPA related to the agency's purported adoption of a "nonacquiescence decision." The judgment at issue is that of the United States Court of Appeals for the Eighth Circuit in Iowa League of Cities v. EPA, 711 F.3d 844 (8th Cir. 2013). The DC Circuit vacated the district court's grant of summary judgment to the EPA, holding that the date on which the EPA reached a final decision to not acquiesce remains a genuine issue of disputed material fact. In this case, the issue of whether the EPA settled on its nonacquiescence position at the time of that press statement on November 19, 2013, or in the days leading up to it, determines whether the documents regarding that nonacquiescence decision are predecisional and, as such, may qualify for withholding under the EPA's deliberative process privilege. Accordingly, the court remanded for further proceedings.

Physicians for Social Responsibility v. Wheeler

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

Docket: 19-5104

Opinion Date: April 21, 2020

Judge: David S. Tatel

Areas of Law: Government & Administrative Law

Three scientists who had previously received EPA grants and served on advisory committees, as well as several non-profit organizations, filed suit arguing that the EPA's directive, which now prohibits all grant recipients from serving on any agency advisory committee, was both arbitrary and capricious and contrary to law in violation of the Administrative Procedure Act (APA). The DC Circuit reversed the district court's grant of the EPA's motion to dismiss, holding that the mandatory language of GSA's regulations provides meaningful standards for defining the limits of the agency's discretion, giving the court law to apply under section 701(a)(2) of the APA. On the merits of the APA claim, the court held that the district court correctly dismissed plaintiffs' claim that the Directive is contrary to law merely because it differs from OGE's uniform standards; the EPA failed to rationally address its previous conclusion that EPA grantees can provide objective and unbiased advice on matters unrelated to their grants; and an agency's failure to comply with OGE's process is subject to judicial review irrespective of a disclaimer contained in the OGE regulations. Accordingly, the court remanded for further proceedings.

Sierra Club v. Wheeler

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

Docket: 18-5328

Opinion Date: April 17, 2020

Judge: Henderson

Areas of Law: Environmental Law, Government & Administrative Law

After the EPA issued guidelines for two categories of solid waste incinerator over two years ago, the Administrator has not imposed a federal plan on noncompliant States. Sierra Club filed suit under the Clean Air Act's (CAA) citizen-suit provision seeking to compel the Administrator's action. The district court dismissed the claim based on lack of subject matter jurisdiction. The DC Circuit affirmed, holding that the district court lacked subject matter jurisdiction under the CAA because the duty in question failed to qualify for section 304's conditional waiver of sovereign immunity. In the alternative, the court held that the district court lacked jurisdiction under the Administrative Procedure Act (APA), because the APA contains a carve-out that prevents a plaintiff from using its general sovereign immunity waiver to evade limitations contained in other statutes like the CAA.

Stewart v. McPherson

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

Docket: 18-5370

Opinion Date: April 21, 2020

Judge: Per Curiam

Areas of Law: Aviation, Government & Administrative Law

Plaintiff filed suit challenging the Navy Secretary's refusal to grant him a waiver of statutory requirements that govern his eligibility for incentive pay. After determining that plaintiff has abandoned his substantive challenge to the waiver denial, the DC Circuit held that the question of whether the Secretary complied with the process outlined in the applicable regulation is judicially reviewable. On the merits of plaintiff's procedural claim, the court held that nothing in Instruction 7220.87 obligates the Secretary to seek updated endorsements, and plaintiff gave the court no reason to conclude that the Secretary abused his discretion by relying on the old endorsements or by considering plaintiff's performance data. Accordingly, the court affirmed the district court's grant of summary judgment to the Secretary.

Higgins v. Department of Veterans Affairs

Court: US Court of Appeals for the Federal Circuit

Docket: 18-2352

Opinion Date: April 17, 2020

Judge: Stoll

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

Higgins began working at the Memphis VA Medical Center (VAMC) in 2007. Throughout his employment, Higgins reported unlawful activity ranging from misuse of agency letterhead to improper disposal of biohazardous material. Higgins had a history of conflict with his supervisors and coworkers. In 2016, a psychologist diagnosed Higgins as meeting the criteria for PTSD, chronic, concluding that “Higgins cannot work, even with restrictions, and this is permanent.” In March 2017, the VAMC suspended Higgins for using profanity with his supervisor. It was “the third incident of a similar type.” Because of his whistleblower status and PTSD, Higgins was offered a suspension without loss of pay. In June 2017, the VAMC removed Higgins based on charges of disruptive behavior and the use of profane language during three incidents. The VAMC’s Chief of Police considered Higgins’s statements a valid threat and recommended that the Director wear a bulletproof vest and receive a police escort to and from his car. The Director successfully filed a workers’ compensation claim for PTSD. An Administrative Judge determined that removal was “within the range of reasonableness” and promoted “the efficiency of the service.” Higgins had established a prima facie whistleblower retaliation defense but the agency would have removed Higgins even absent his protected whistleblowing activity. The Federal Circuit affirmed, rejecting arguments that the Board improperly discounted evidence of Higgins’s PTSD and that the AJ abused his discretion by excluding testimony relevant to institutional motive to retaliate.

Inter-tribal Council of Arizona v. United States

Court: US Court of Appeals for the Federal Circuit

Docket: 19-1758

Opinion Date: April 17, 2020

Judge: Wallach

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

Under the Arizona-Florida Land Exchange Act (AFLEA), 102 Stat. 4571, 72 acres of the Phoenix Indian School Property were conveyed to Collier in exchange for Collier’s Florida lands plus $34.9 million. The Arizona InterTribal Trust Fund (AITF) was established for the benefit of ITCA-member Arizona tribes for “the cash amount required to be paid . . . by Collier upon closing.” In 1991, over ITCA's objections, the Secretary of the Interior agreed to allow Collier to make annual payments rather than full payment at closing. For several years, the Government released its liens on the Phoenix property. In 2013, Collier stated its intent to “no longer make payments” because the value of the remaining 15-acre Phoenix Property had decreased. Under a 2017 settlement agreement, Collier paid $16 million to the Government, which then sold the 15-acre Property for $18.5 million. ITCA sued, alleging that the Government breached its AFLEA fiduciary duties. The Claims Court dismissed in part. The Federal Circuit reversed in part. The Claims Court erred in dismissing the failure-to-maintain-sufficient-security portion of Claim I but properly dismissed the portion of that claim regarding the Government’s alleged failure to ensure adequate security when it negotiated the TFPA. The court properly dismissed Claim II, which alleged that the AFLEA “required the [Government] to collect from Collier all Trust Fund Payments required under the [AFLEA], and that the [Government’s] failure to collect all of the payments is a breach of trust.”

Ravin v. Wilkie

Court: US Court of Appeals for the Federal Circuit

Docket: 19-1532

Opinion Date: April 20, 2020

Judge: Raymond T. Chen

Areas of Law: Government & Administrative Law, Legal Ethics, Military Law, Public Benefits

Attorney Ravin represented veteran Cook on a claim for past-due disability benefits. Their agreement provided for a contingent fee and contemplated that VA would withhold the fee from any past-due benefits awarded and pay that amount directly to Ravin under 38 U.S.C. 5904(d)(3). Within days of executing that agreement, Ravin sent a copy to the Board of Veterans’ Appeals, where it was date-stamped on December 11, 2009. No copy of the agreement was submitted to the Regional Office (RO) “within 30 days of the date of execution,” as required by 38 C.F.R. 14.636(h)(4). The RO awarded Cook past-due benefits in April 2010. On April 13, 2010, the RO’s Attorney Fee Coordinator searched for any attorney fee agreement and determined that “no attorney fee decision is required” and “[a]ll retroactive benefits may be paid directly to the veteran.” The RO paid the past-due benefits to Cook. On April 27, 2010, Ravin mailed a copy of Cook’s direct-pay fee agreement to the RO. The RO informed Ravin that it had not withheld his attorney’s fees because the agreement was “not timely filed.” The Veterans Court and Federal Circuit affirmed the Board’s denial of Ravin’s claim. Section 5904(d)(3) does not mandate withholding and direct payment; 38 C.F.R. 14.636(h)(4)'s submission requirement is valid. Ravin’s fees have not been forfeited; he may use all available remedies to obtain them from Cook, per their agreement.

Antenor v. Alaska, Department of Corrections

Court: Alaska Supreme Court

Docket: S-17005

Opinion Date: April 17, 2020

Judge: Carney

Areas of Law: Civil Procedure, Criminal Law, Government & Administrative Law

Several Alaska Department of Corrections inmates challenged the DOC's policy to charge for local telephone calls, arguing the rates they and call recipients had to pay for calls violated their constitutional right to rehabilitation, their statutory right to reasonable telephone access, and DOC’s contractual obligations under a prior settlement and consent decree. In addition, one of the prisoners challenged DOC officers’ decision to deny him access to a computer programming book he ordered from outside the prison. He contended that DOC placed a content-specific restriction on the educational materials and publications prisoners were allowed, violating the Alaska Constitution’s free speech provisions as well as prisoners’ right to reformation. Each of these challenges reached the Alaska Supreme Court after inmates exhausted the administrative process from prison. Inmates then appealed to the superior court, which denied relief. The Alaska Supreme Court determined the superior court record did not provide enough evidence for it to meaningfully determine the reasonableness of the rates charged inmates for local telephone calls; therefore the Court reversed denial of relief and remanded for further fact-finding by the trial court. The Court concluded that the facility's restrictions on programming-related books were rationally related to a legitimate interest, and because they did not infringe on the right to rehabilitation, it affirmed denial of a prisoner's motion to enforce his claimed right to a particular text about computer programming.

Santa Maria Reservoir Co. v. Warner

Court: Colorado Supreme Court

Citation: 2020 CO 27

Opinion Date: April 20, 2020

Judge: Samour

Areas of Law: Civil Procedure, Environmental Law, Government & Administrative Law, Zoning, Planning & Land Use

Santa Maria Reservoir Company (“SMRC” or the “Company”) was a mutual reservoir company responsible for storing and releasing water to its shareholders, who owned the right to use that water. SMRC’s water was stored in its two reservoirs: the Santa Maria Reservoir and the Continental Reservoir. SMRC was contacted about leasing water from SMRC’s shareholders to replace depletions to the Rio Grande. In May 2013, the Division Engineer submitted a written report in which he recommended “that th[e] requested change of water right be granted” with one condition: “that such change . . . not expand the consumption of the water right beyond that which has been the historical practice for agricultural purposes.” SMRC met with various opposers to explore what terms and conditions might assuage their concerns. Based on their input, it drafted a proposed decree in which it agreed to replicate accretions (including return flows) to the Rio Grande to prevent injury to other water rights diverting from the Rio Grande. By April 2016, all opposers except appellant Jim Warner had stipulated to the entry of SMRC’s proposed decree. Warner’s opposition was premised on his concern that SMRC’s application, if granted, would interfere with his downstream surface and groundwater rights. Warner, a rancher, owned two parcels of land on which he grew hay for his livestock using flood irrigation. His properties were located in the Closed Basin, generally east and north of land that received the water SMRC delivered through the Rio Grande Canal. Because he flood irrigated, Warner needed the groundwater beneath his lands to stay at a level close enough to the surface to reduce ditch losses and allow water to carry further across his crop land. After review of the water rights at issue and proposed uses, the Colorado Supreme Court concluded Warner was not injured by the water court’s approval of the change-of-use application submitted by SMRC with respect to the water it diverted from the Rio Grande into the Closed Basin. "Because that water is imported water, SMRC is entitled to fully consume all of it. The water would not be in the Closed Basin, much less available for use by Warner and other water users in the Closed Basin, without its importation by SMRC. Thus, rather than cause an injury to Warner, the approval of SMRC’s application simply revealed to him that his past use of return flows from SMRC’s imported water in the Closed Basin was a benefit to which he had no enforceable right; Warner just didn’t know what he had 'til it was gone."

Nampa Hwy Dist #1 v. Knight

Court: Idaho Supreme Court - Civil

Dockets: 47029, 47071, 47086

Opinion Date: April 17, 2020

Judge: Moeller

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

Nampa Highway District No. 1 (NHD) brought this action seeking to quiet title to a thirty-three-foot-wide strip of land constituting the south half of West Orchard Avenue in Canyon County, Idaho. NHD claimed that a 1941 deed conveyed the land to NHD. Appellants (defendants-below) argued that because the deed was not recorded until 1989, it did not affect their interests pursuant to the “Shelter Rule,” which protected a purchaser with notice if their predecessor in interest was an innocent purchaser. The district court granted summary judgment in NHD’s favor. After review, the Idaho Supreme Court reversed, finding the district court erred in granting summary judgment when there was a genuine issue of material fact as to what a reasonable investigation by Appellants' predecessors in interest would have revealed. The Supreme Court vacated the district court's declaration that NHD was the fee simple titleholder of the right-of-way, and the matter was remanded for further proceedings.

In re Application of Otter Tail Power Company for Authority to Increase Rates for Electric Service in Minnesota

Court: Minnesota Supreme Court

Docket: A17-1300

Opinion Date: April 22, 2020

Judge: Thissen

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

The Supreme Court held that the Minnesota Public Utilities Commission (MPUC) lacks the authority to require Otter Tail Power Company to amend an existing transmission cost-recovery rider (TCRR) approved under Minn. Stat. 216B.16, subd. 7b(b) to include the costs and revenues associated with two high-voltage interstate transmission lines, known as the Big Stone Access Transmission Lines (Big Stone Lines). In 2013, the MPUC approved Otter Tail's request for a TCRR for three transmission projects. In 2016, Otter Tail filed this general rate case with the MPUC seeking an annual-rate increase on its retail electricity sales to help offset company-wide investment costs and asserted that the costs and revenues associated with the Big Stone Lines should not be considered when setting the retail rates. The MPUC directed Otter Tail to amend the TCRR approved in 2013 to include the costs and revenues of the Big Stone Lines. The court of appeals reversed. The Supreme Court affirmed, holding that the MPUC does not have statutory authority to compel Otter Tail to include the Big Stone Lines in the TCRR.

In re Application No. C-4973 of Skrdlant

Court: Nebraska Supreme Court

Citation: 305 Neb. 635

Opinion Date: April 23, 2020

Judge: Lindsey Miller-Lerman

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

The Supreme Court dismissed Appellant's appeals from orders of the Nebraska Public Service Commission (PSC) that granted applications requesting changes to existing boundaries so that the applicants could receive advanced telecommunications services from another service provider in lieu of service from Appellant, holding that Appellant's notices of intention to appeal were not timely filed with the PSC. The PSC entered orders in both cases on July 10, 2018. Appellant subsequently submitted motions for rehearing requesting that the PSC reconsider its orders. Each motion was file stamped as having been received by the PSC on July 23. On August 21, the PSC entered orders denying the motions for rehearing. On September 13, in each case, Appellant filed a notice of intention to appeal with the PSC. The Supreme Court dismissed the appeals for lack of jurisdiction, holding (1) based on the file stamps, the motions for rehearing were not filed within ten days of the effective date of the respective orders; (2) under Neb. Rev. Stat. 75-134.02, the motions did not suspend the time for filing a notice of intention to appeal; and (3) therefore, Appellant's notices of intention to appeal were filed beyond the thirty-day time limit allowed under section 75-136(2) to perfect appeals from the July 10 orders.

Linn County v. Brown

Court: Oregon Supreme Court

Docket: S066856

Opinion Date: April 23, 2020

Judge: Thomas A. Balmer

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

The original plaintiffs in this action were nine Oregon counties that sought declaratory relief, alleging that the Oregon paid sick leave law required them to spend money on a program without sufficient state reimbursement, as required by Article XI, section 15 of the state Constitution, and that they consequently were not required to comply with that statute. Defendants, the governor and the Commissioner of the Bureau of Labor and Industries, responded that the constitutional provision did not apply to the paid sick leave law because that law was not a “program” within the meaning of Article XI, section 15(1), and, additionally, that not all nine plaintiff counties met the cost threshold required to make Article XI, section 15(3), applicable to them. The Oregon Supreme Court concluded that the paid sick leave law did not require local governments to implement a “program” under that provision and, therefore, that the counties were not exempt from that statute.

Multnomah County v. Mehrwein

Court: Oregon Supreme Court

Docket: S066445

Opinion Date: April 23, 2020

Judge: Martha Lee Walters

Areas of Law: Constitutional Law, Election Law, Government & Administrative Law

In the November 2016 election, Multnomah County voters approved Measure 26-184, an amendment to the Multnomah County Home Rule Charter containing campaign finance provisions. Multnomah County then adopted new ordinances, Multnomah County Code (MCC) sections 5.200-203, mirroring and implementing those charter provisions. At issue before the Oregon Supreme Court was the validity of those ordinances under the free speech provisions of both the Oregon and United States Constitutions - Article I, section 8, and the First Amendment. The Court reached four conclusions: (1) the county’s contribution limits did not, on their face, violate Article I, section 8, of the Oregon Constitution; (2) the case had to be remanded for factual findings and to consider, in the first instance, whether the contribution limits violated the First Amendment; (3) the county’s expenditure limits were invalid under both constitutional provisions; and (4) the parties’ dispute with respect to the disclosure provisions was moot.

Wilfong v. Randolph County Board of Education

Court: Supreme Court of Appeals of West Virginia

Docket: 18-0776

Opinion Date: April 22, 2020

Judge: Walker

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

The Supreme Court affirmed the order of the circuit court affirming the order of the Public Grievance Board denying as untimely the grievance brought by Melissa Wilfong challenging the alleged failure to the Board of Education of Randolph County to place her in a full-time administrative position, holding that Wilfong's grievance was untimely. Wilfong was employed as a half-time principal and half-time teacher at Valley Head Elementary School, which closed at the end of the 2016-2017 school year. In April 2017 the Board notified Wilfong that she had been approved for transfer to another position but informed her that she did not yet have an assignment for the following school year. In August 2017, Wilfong accepted a full-time teaching position. That same day, Wilfong filed her grievance complaining that the Board failed to place her in an administrative position. The Grievance Board denied the grievance as untimely. The circuit court affirmed. The Supreme Court affirmed, holding that because Wilfong filed her grievance outside the fifteen-day window provided by W. Va. Code 6C-2-4(a)(1), the grievance was not timely filed.