Latest 23 Cases This Week: Kansas v. Garcia (U.S.), BP Exploration & Production, Inc. v. Claimant ID 100191715 (5th Cir.), Consumer Financial ...

Which Laws Apply to Broker-Dealers? Federal Laws? State Laws? Both? General Principles Leading to an Answer

TAMAR FRANKEL

BU Law emerita professor Tamar Frankel explains the law of preemption as it pertains to broker-dealers and their investor clients. She predicts, among other things, that either the clients will demand that broker-dealers adhere to a fiduciary duty, or else that states will impose that duty on them.

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Kansas v. Garcia

Court: US Supreme Court

Docket: 17-834

Opinion Date: March 3, 2020

Judge: Samuel A. Alito, Jr.

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

The Immigration Reform and Control Act (IRCA) makes it unlawful to hire an alien knowing that he is unauthorized to work in the U.S., 8 U.S.C. 1324a(a)(1), (h)(3). Employers must use an I-9 form to “attest” that they have “verified” that any new employee “is not an unauthorized alien” by examining approved documents. IRCA requires all employees to complete an I–9, attest that they are authorized to work, and provide specific personal information. It is a federal crime for an employee to provide false information on an I–9 or to use fraudulent documents to show work authorization, 18 U.S.C. 1028, 1546; it is not a federal crime for an alien to work without authorization. State laws criminalizing such conduct are preempted. The I–9 forms and appended documentation and the employment verification system may only be used for enforcement of specified federal laws. Kansas makes it a crime to commit “identity theft” or engage in fraud to obtain a benefit. Unauthorized aliens were convicted for fraudulently using another person’s Social Security number on tax withholding forms that they submitted upon obtaining employment. They had used the same Social Security numbers on their I–9 forms. The Kansas Supreme Court reversed, concluding that IRCA prohibits a state from using any information contained within an I–9 as the basis for a state law identity theft prosecution of an alien who uses another’s Social Security information in an I–9. The U.S. Supreme Court reversed, rejecting the theory that no information placed on an I–9 could ever be used by any entity or person for any reason, other than the listed federal statutes. The sole function of the federal employment verification system is to establish that an employee is not barred from working in this country. The tax-withholding documents play no part in that process. Submitting withholding documents helped the defendants get jobs, but did not assist them in showing that they were authorized to work. The Kansas laws do not fall into a field that is implicitly reserved exclusively for federal regulation. Federal law does not create a unified, comprehensive system regarding the information that a state may require employees to provide. It is possible to comply with both IRCA and the Kansas statutes; the Kansas prosecutions did not frustrate any federal interests.

BP Exploration & Production, Inc. v. Claimant ID 100191715

Court: US Court of Appeals for the Fifth Circuit

Docket: 19-30264

Opinion Date: March 3, 2020

Judge: Kurt D. Engelhardt

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

In this appeal stemming from the Deepwater Horizon litigation, the Fifth Circuit reversed the district court's order granting discretionary review and affirming a $77 million award against BP. The court held that the district court failed to consider investigating credible evidence of a sole, superseding cause for the claimant's loss. Furthermore, the district court's decision was made without the benefit of this circuit's guidance on causation. In this case, claimant is a global commodities merchandiser that purchases and supplies ammonia and fertilizers around the world. BP argued that claimant passed the V-Shaped Revenue Pattern due solely to a price spike and drop in the price of fertilizer that was unrelated to the oil spill. The court remanded for the district court to examine the issue in the first instance and to determine whether to remand to the Claims Administrator for additional factfinding.

Consumer Financial Protection Bureau v. All American Check Cashing, Inc.

Court: US Court of Appeals for the Fifth Circuit

Docket: 18-60302

Opinion Date: March 3, 2020

Judge: Stephen Andrew Higginson

Areas of Law: Constitutional Law, Government & Administrative Law

Judge Higginson concluded that the restrictions on the President's removal authority under the Consumer Financial Protection Act are valid and constitutional. Judge Higginson found that neither the text of the United States Constitution nor the Supreme Court's previous decisions support appellants' arguments that the Consumer Financial Protection Bureau is unconstitutionally structured, and thus he affirmed the district court's judgment.

Bauer v. Koester

Court: US Court of Appeals for the Seventh Circuit

Docket: 19-1786

Opinion Date: March 4, 2020

Judge: Per Curiam

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

Donald and Lauretta Bauer purchased land from Donald’s parents and executed promissory notes and a mortgage. When Donald’s parents died, their interest in the notes transferred to Donald's siblings, who sought foreclosure. A state court entered a foreclosure judgment and a deficiency judgment. No judicial sale occurred. The Bauers tried to redeem the property by satisfying the judgment. The foreclosure plaintiffs issued citations to discover assets and sought additional interest. The state court found that the Bauers owed an additional $33,782.96 in interest. The Bauers paid; the plaintiffs filed a satisfaction of judgment. The Bauers then sued, alleging tampering with evidence and abuse of process by seeking to extort money through the issuance of citations to discover assets. The state appellate court upheld the dismissal of the case. The Bauers filed a federal suit, 42 U.S.C. 1983, alleging that the defendants, including the state-court judge, conspired to introduce a forged document into evidence during the foreclosure trial and that the judge and the clerk allowed the plaintiffs to issue baseless citations to discover assets. The district court dismissed the case under the Rooker-Feldman doctrine, which precludes federal district-court jurisdiction “over cases brought by state-court losers challenging state-court judgments rendered before the district court proceedings commenced.” The Seventh Circuit affirmed, rejecting the Bauers’ argument that they did not seek to set aside the state court’s order or judgment but only mean to challenge the “collection practices” of the defendants and their collusion. Any finding in favor of the Bauers would require the federal court to contradict the state court’s orders.

High Country Conservation v. United States Forest Service

Court: US Court of Appeals for the Tenth Circuit

Docket: 18-1374

Opinion Date: March 2, 2020

Judge: Carlos F. Lucero

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

The Colorado Roadless Rule, which the Forest Service adopted in 2012, prohibits road construction in designated areas but included an exception for the North Fork Coal Mining Area (the “North Fork Exception”). In prior litigation, a district court concluded agency decisions violated the National Environmental Policy Act (“NEPA”) and the Administrative Procedure Act (“APA”), and vacated the North Fork Exception. Following these decisions, the Forest Service prepared a Supplemental Final Environmental Impact Statement (“North Fork SFEIS”) and readopted the Exception, Roadless Area Conservation. Mountain Coal Company, LLC, submitted lease modification requests in connection with coal leases in the area. In response, the Forest Service and the Bureau of Land Management (“BLM”) issued a Supplemental Final Environmental Impact Statement (“Leasing SFEIS”) and approved the requests. In the lawsuit that followed, a coalition of environmental organizations alleged the agencies violated NEPA and the APA by unreasonably eliminating alternatives from detailed study in the North Fork SFEIS and the Leasing SFEIS. The district court rejected these challenges. After review, the Tenth Circuit Court of Appeals reversed as to the North Fork SFEIS, holding that the Forest Service violated NEPA by failing to study in detail the “Pilot Knob Alternative” proposed by plaintiffs. Accordingly, the matter was remanded to the district court with instructions to vacate the North Fork Exception. With respect to the Leasing SFEIS, the Tenth Circuit held NEPA did not require consideration of the “Methane Flaring Alternative” proposed by plaintiffs.

Noreja v. Commissioner, SSA

Court: US Court of Appeals for the Tenth Circuit

Docket: 18-1383

Opinion Date: March 5, 2020

Judge: Mary Beck Briscoe

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

Arthur Noreja appeals the denial of his claim for disability benefits. Noreja filed his disability claim in March 2012. In July 2013, following a hearing, an ALJ issued a detailed written order – exceeding 13 pages with single spacing – in which she denied Noreja’s claim. The ALJ found Noreja had several severe impairments, including “arthritis of the left upper extremity and right lower extremity,” “cognitive disorder,” and “headaches.” Nevertheless, the ALJ determined that these impairments (or a combination of the impairments) did not warrant relief. The ALJ found that Noreja had the residual functional capacity (“RFC”) to do “medium” work, subject to various limitations, and that there were “jobs that exist in significant numbers in the national economy” which Noreja could perform. The Appeals Council disagreed with the ALJ’s assessment, and remanded with direction for further proceedings. Once more, however, the ALJ determined that Noreja did not have “an impairment or combination of impairments” that warranted relief, reiterated that Noreja had the RFC to do "medium" work, subject to various limitations, and that there were jobs in existence "in significant numbers" which Noreja could perform. The ALJ did not obtain a new consultative mental examination before issuing her May 2016 decision, but she procured additional evidence regarding Noreja’s impairments. On appeal of the second ALJ decision, Noreja alleged the ALJ failed to follow an instruction in the Appeals Council's remand order. The Tenth Circuit held: (1) it had jurisdiction to determine whether an alleged ALJ violation of an Appeals Council order warranted reversal; but (2) the Court's “usual” review standards remained in force, meaning that the alleged violation was material only if it showed the ALJ meaningfully failed to apply the correct legal standards, or the denial of benefits was unsupported by substantial evidence; and (3) applying those standards here, the ALJ’s denial of Noreja’s application had to be affirmed.

BHC Northwest Psychiatric Hospital, LLC v. Secretary of Labor

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

Docket: 19-1089

Opinion Date: March 3, 2020

Judge: Cornelia Thayer Livingston Pillard

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

The Hospital petitioned for review of an administrative decision affirming the Secretary's citation for violating the General Duty Clause of the Occupational Safety and Health Act (OSHA) by inadequately protecting its employees from the recognized hazard of patient aggression toward staff. The DC Circuit held that, to the extent that they were preserved, the Hospital's objections failed to overcome the court's deference for the agency. In this case, substantial evidence supported the IJ's conclusion that the Hospital's incomplete and inconsistently implemented safety protocols were inadequate to materially reduce the hazard posed by patient-on-staff violence. Furthermore, the ALJ's determination that a more comprehensively considered and applied program would materially reduce the hazard was fully warranted by her legal analysis and evidentiary findings. Finally, the court held that the General Duty Clause provided fair notice in this case. Accordingly, the court dismissed in part and denied in part the petition for review.

Committee on the Judiciary of the United States House of Representatives v. McGahn

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

Docket: 19-5331

Opinion Date: February 28, 2020

Judge: Thomas Beall Griffith

Areas of Law: Constitutional Law, Government & Administrative Law

Separation-of-powers principles and historical practice compelled the DC Circuit to dismiss for lack of jurisdiction the Committee's suit to enforce the congressional subpoena against the Executive Branch. After the Committee ordered the former White House Counsel, Donald F. McGahn, II, to testify before the Committee, President Trump instructed McGahn to assert absolute testimonial immunity from compelled congressional process. The Committee then sought to invoke this court's jurisdiction to enforce its subpoena. The court held that it lacked jurisdiction to hear the case and dismissed the Committee's suit based on lack of an Article III case or controversy. The court agreed with the DOJ that Article III of the Constitution forbids federal courts from resolving this kind of interbranch information dispute. The court found unpersuasive the Committee's three core arguments: first, the Committee attempts to frame the case as a run-of-the-mill dispute about the effect of a duly issued subpoena; second, relying largely on Arizona State Legislature v. Arizona Independent Redistricting Commission, 135 S. Ct. 2652 (2015), the Committee argues that it may assert an "institutional injury" to satisfy Article III, even in a suit against the Executive Branch; and, third, the Committee insists that circuit precedent before Raines v. Byrd, 521 U.S. 811, 820 (1997), requires that the court resolve this dispute. The court vacated and remanded with instructions to dismiss the complaint.

K&D LLC v. Trump Old Post Office LLC

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

Docket: 18-7185

Opinion Date: February 28, 2020

Judge: Thomas Beall Griffith

Areas of Law: Business Law, Government & Administrative Law

Cork Wine Bar, a restaurant that competes with President Trump's eponymous hotel, filed suit alleging violations of the District's common law of unfair competition. Cork alleged that President Trump's hotel attracted more of the lobbyists, advocacy groups, and diplomats that Cork had relied on to fill its events calendars, and that these customers chose the hotel because of a perception that patronizing it would be to their advantage in their dealings with the Trump Administration. After removal, the district court denied Cork's motion to remand, dismissing the complaint for failure to state a claim. The DC Circuit held that the case was properly removed based on its two-step analysis in officer-removal cases. First, the court held that President Trump's theory that the District may not impose legal conditions on the lawful performance of his presidential duties was colorable. Second, the court held that President Trump demonstrated that Cork's suit fell within the scope of 28 U.S.C. 1442(a)(1). The court also held that case law did not support Cork's claims on the merits and that Cork failed to cite any contrary precedent. In this case, Cork suggested in passing that President Trump and the hotel were impairing competition and interfering with access to its business. However, the court explained that these claims bear little resemblance to the examples listed in Ray v. Proxmire and B B & W Mgmt., Inc. v. Tasea Inv. Co. Finally, the court declined to certify the core question of District law to the District of Columbia Court of Appeals.

Ashford University, LLC v. Secretary of Veterans Affairs

Court: US Court of Appeals for the Federal Circuit

Docket: 18-1213

Opinion Date: March 3, 2020

Judge: Timothy B. Dyk

Areas of Law: Education Law, Government & Administrative Law, Military Law, Public Benefits

Under the GI Bill, the VA provides monetary benefits to veterans enrolled in “approved” “course[s] of education,” 38 U.S.C. 3483. Approval must be provided by the state approving agency (SAA) for the state where the educational institution is located. For online courses, the educational institution must obtain approval from the SAA where the institution’s “main campus” is located. The VA may discontinue educational assistance, after following certain procedures, if this requirement is not met. Ashford is a for-profit educational institution that provides online courses to veterans and others. In November 2017, the VA sent a Cure Letter to Ashford stating that Ashford’s online courses were not approved by the correct SAA, expressing its “inten[t] to suspend payment of educational assistance and suspend approval of new enrollments and re-enrollments [for Ashford’s online programs] in 60 days unless corrective action is taken.” The Letter noted the availability of a hearing before the Committee on Educational Allowances. Ashford sought review, contending that the Cure Letter “announces” new “rules” and that 38 U.S.C. 502 provided the court with jurisdiction to review those alleged rules. The Federal Circuit dismissed the petition, finding that the Cure Letter is not rulemaking or any other reviewable action; it is also not a final agency action under the Administrative Procedure Act.

Environmental Council of Sacramento v. County of Sacramento

Court: California Courts of Appeal

Docket: C076888(Third Appellate District)

Opinion Date: March 2, 2020

Judge: Vance W. Raye

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

Defendants County of Sacramento and the County Board of Supervisors (the County) approved Cordova Hills, a large master planned community comprised of residential and commercial uses and including a university (the Project). Plaintiffs Environmental Council of Sacramento and the Sierra Club (Environmental Council) filed a petition for writ of mandate challenging the Project, which the trial court denied. Environmental Council appealed, contending the Environmental Impact Report (EIR) contained a legally inadequate project description, an inadequate environmental impact analysis, failed to analyze impacts to land use, and the County failed to adopt feasible mitigation measures. Central to the Environmental Council’s appeal was the contention that the university was not likely to be built, and since the EIR assumed the buildout of a university, it was deficient in failing to analyze the Project without a university. We shall affirm the judgment. The Court of Appeal agreed with the trial court’s assessment, that the County, in drafting the EIR, was required to assume all phases of the Project, including the university, would be built. The Court affirmed the trial court in all respects.

Lincoln Unified School Dist. v. Superior Court

Court: California Courts of Appeal

Docket: C088857(Third Appellate District)

Opinion Date: March 3, 2020

Judge: Renner

Areas of Law: Civil Procedure, Education Law, Government & Administrative Law, Personal Injury

This proceeding stemmed from a minor’s collapse during football try-outs at Lincoln High School in Stockton in 2017. Respondent Shynelle Jones presented a timely claim on behalf of her son, Jayden, to the Lincoln Unified School District under the Government Claims Act. About four months later, Jones submitted an application to the school district for leave to present a late claim on her own behalf based on her allegedly newfound realization of the severity of her son’s injuries, their impact on her own life, and her right to file her own claim. She declared that up until that point she had been able to attend to her own interests. After the application was denied, Jones filed a petition for relief from the claim presentation requirement in the superior court based on the same facts. At the hearing on her petition, her counsel, Kenneth Meleyco, presented a new explanation for the delay in submitting Jones’s claim: the day after Jones presented a claim on her son’s behalf, she retained Meleyco on her own behalf, and an error in the handling of Meleyco’s dictated memo within his office prevented the earlier preparation of Jones’s claim. The superior court granted Jones’s petition, despite noting “legitimate concerns regarding [her] credibility” because it “determined based on the directives provided in case law, to provide relief from technical rules, that [Jones] has met her burden of proof to demonstrate that her neglect was excusable.” The Court of Appeal found this ruling was an abuse of the trial court’s discretion. "[T]he general policy favoring trial on the merits cannot justify the approval of a petition that is not credible and that does not demonstrate a right to relief by a preponderance of the evidence." The Court issued a writ of mandate compelling the superior court to vacate its order and enter a new order denying Jones relief from the claim presentation requirement.

Washington v. Delaware Transit Corp

Court: Delaware Supreme Court

Docket: 333, 2019

Opinion Date: March 2, 2020

Judge: Karen L. Valihura

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

Claimant LeShawn Washington suffered an injury to his left shoulder in a work-related incident in 2016 and was placed on disability. Upon returning to work, he claimed that his shoulder symptoms had worsened. Claimant filed a petition seeking compensation for a recurrence of temporary total disability (the “TTD Petition”), which the Accident Board (the “IAB”) denied (the “TTD Opinion”). Claimant then filed a permanent impairment ("PI") Petition. Claimant's employer, Delaware Transit Corporation, successfully moved to dismiss, arguing the IAB had previously ruled on the matter during Claimant’s TTD Petition hearing when it stated that Claimant had “fully recovered” from his work injury. In preparing for the hearing on the PI Petition, both parties obtained medical expert opinions regarding the degree of Claimant’s permanent impairment. Both parties’ experts agreed that there was some degree of permanent impairment. Nevertheless, DTC moved to dismiss the PI Petition at the commencement of the hearing. The IAB agreed with the employer, and dismissed the PI petition on those grounds, before considering the permanent impairment testimony. Claimant appealed the IAB’s decision to the Superior Court, arguing that the IAB never concluded that he had “fully recovered.” Furthermore, Claimant argued: (1) the Superior Court erred in concluding that the Board had reasonably interpreted the TTD Opinion; and (2) the Superior Court erred as a matter of law in holding that the Board’s dismissal of his PI Petition was supported by substantial evidence. The Delaware Supreme Court held the Superior Court erred in affirming the Board’s decision to deny Claimant’s PI Petition. "Although the Board is permitted to interpret its own orders and rulings, the Board erred when it dismissed Claimant’s PI Petition based solely on the expert testimony presented in connection with his TTD Petition." The decision was reversed and the matter remanded for further proceedings.

Dept. of Public Safety v. Ragsdale

Court: Supreme Court of Georgia

Docket: S19G0422

Opinion Date: February 28, 2020

Judge: Ellington

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

Matthew Ragsdale filed this personal injury action against the Georgia Department of Public Safety (“DPS”) after he was injured during an October 31, 2014 motor vehicle accident that occurred when Ross Singleton, the driver of another vehicle, fled from law enforcement. Ragsdale sent an ante litem notice to the Department of Administrative Services (“DOAS”) on December 3, 2014. The notice provided on that date failed to include all the information required by OCGA 50-21-26 (a) (5). Ragsdale filed suit, but dismissed this initial filing based on the deficiency of his first ante litem notice. Thereafter, in March 2017, Ragsdale sent a second ante litem notice to DOAS. Ragsdale then renewed the action, and [DPS] filed its motion to dismiss the appeal, contending that the March 2017 ante litem notice was untimely. In response, Ragsdale argued that because he was the victim of Singleton’s crime, the time for filing the ante litem notice had been tolled “from the date of the commission of the alleged crime or the act giving rise to such action in tort until the prosecution of such crime or act has become final or otherwise terminated” pursuant to OCGA 9-3-99. The trial court agreed and denied the motion to dismiss in a single-sentence order, citing Ragsdale's arguments in response to the motion to dismiss. The Court of Appeals affirmed the denial of DPS’s motion to dismiss, following cases in which that court had previously “determined that limitation period tolling statutes apply to the period for filing ante litem notice as well as for filing suit.” The Georgia Supreme Court found the Georgia Tort Claims Act's ante litem notice period was not subject to tolling under OCGA 9-3-99.

Parham v. Stewart

Court: Supreme Court of Georgia

Docket: S19A1498

Opinion Date: February 28, 2020

Judge: Harold D. Melton

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

This case stemmed from a challenge to the results of the March 2018 special election for the mayor of the City of Blythe, Georgia, wherein Appellee Phillip Stewart defeated Appellant Cynthia Parham by a margin of four votes. Appellant filed a petition contesting the election results, alleging that illegal votes had been cast in the mayoral election. After a bench trial, the court concluded that Appellant had failed to show that enough illegal votes had been cast to change or place in doubt the result of the election. Appellant filed a notice of appeal to the Georgia Supreme Court and, finding no reversible error, the Supreme Court affirmed the trial court.

In re J.M.

Court: North Carolina Supreme Court

Docket: 220A19

Opinion Date: February 28, 2020

Judge: Earls

Areas of Law: Family Law, Government & Administrative Law

The Supreme Court affirmed the order of the trial court terminating Mother's parental rights to her five minor children, holding that the trial court's findings supported its conclusion that grounds existed to terminate Mother's parental rights to the children pursuant to N.C. Gen. Stat. 7B-1111(a)(3). The trial court concluded that grounds existed to terminate Mother's parental rights based on neglect, failure to make reasonable progress toward correcting the conditions that led to the children's removal from her care, failure to pay a reasonable portion of the cost of the children's care while they were in the custody of the Department of Social Services (DSS), and dependency. The court further concluded that terminating Mother's parental rights was in the best interests of the children. The Supreme Court affirmed, holding that the record supported the trial court's conclusion that grounds existed to terminate Mother's parental rights for failure to pay a reasonable portion of the cost of the children's care while they were in DSS custody.

North Carolina Department of Revenue v. Graybar Electric Co.

Court: North Carolina Supreme Court

Docket: 153A19

Opinion Date: February 28, 2020

Judge: Bledsoe

Areas of Law: Government & Administrative Law, Tax Law

In this tax dispute, the Supreme Court reversed the final decision of the Office of Administrative Hearings (OAH) entering summary judgment in favor of Graybar Electric Company, Inc., holding that dividends deducted on a corporation's federal corporate income tax return under the dividends-received deduction (DRD) of section 243 of the Internal Revenue Code do constitute "income not taxable" for purposes of calculating the corporation's net economic loss (NEL) deduction under N.C. Gen. Stat. 105-130.8(a) for North Carolina corporate income tax purposes. The Department found that the dividends received constituted "income not taxable" and that, therefore, Graybar was required to reduce its NEL deductions by the amount of the dividends apportioned to North Carolina. On appeal, (OAH) entered summary judgment for Graybar, holding that the dividends were taxable as a matter of law and were not "income not taxable." The Supreme Court reversed, holding (1) the dividends deducted pursuant too I.R.C. 243(a)(3) were "income not taxable" under section 105-130.8(a)(3); and (2) therefore, Graybar failed to bring itself within the statutory provisions authorizing the NEL deduction calculation it sought.

Schulke v. NDDOT

Court: North Dakota Supreme Court

Citation: 2020 ND 53

Opinion Date: March 2, 2020

Judge: Jensen

Areas of Law: Criminal Law, Government & Administrative Law

The North Dakota Department of Transportation (NDDOT) appealed a district court’s judgment reversing an administrative hearing officer’s decision to revoke Carter Schulke’s driving privileges for a period of three years. On May 11, 2019, following a high-speed pursuit, Schulke was stopped by law enforcement, arrested for fleeing, driving under suspension, reckless endangerment, and possession of drug paraphernalia, handcuffed, and placed in a patrol car. While Schulke was seated in the backseat of the patrol car the arresting officer smelled alcohol emanating from Schulke. Because of safety concerns and Schulke’s behavior, the arresting officer did not conduct field sobriety tests or request an alcohol related screening test at the location of the stop. At the correctional center, the arresting officer requested Schulke perform field sobriety tests. Schulke refused to perform the field sobriety tests. Schulke was then read the implied consent warning for the screening test and asked to submit to a screening test pursuant to N.D.C.C. 39-20-14(1). Schulke refused to submit to the screening test. Schulke was then read the implied consent advisory for an Intoxilyzer breath test pursuant to N.D.C.C. 39-20-01. Schulke refused to take the breath test, became extremely uncooperative, and was eventually placed in confinement. Schulke was informed that in addition to the other charges, he was being arrested for “DUI Refusal.” The NDDOT argued the district court erred in reversing the administrative hearing officer’s determination that Schulke refused an alcohol related screening test in violation of N.D.C.C. 39-20-14(1). The North Dakota Supreme Court determined the administrative hearing officer's determination was supported by a preponderance of the evidence. It therefore reversed the district court's judgment and reinstated the administrative hearing officer's decision.

State ex rel. Digiacinto v. Industrial Commission

Court: Supreme Court of Ohio

Citation: 2020-Ohio-707

Opinion Date: March 3, 2020

Judge: Per Curiam

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

The Supreme Court reversed the judgment of the court of appeals granting a limited writ of mandamus ordering the Industrial Commission of Ohio to vacate its decision denying the request of Paul Digiacinto for permanent total disability (PTD) compensation and to hold a new hearing on Digiacinto's PTD application, holding that the Tenth District erred in holding that the Commission's failure to mention an ALJ's earlier decision granting Digiacinto's request for social security disability benefits in its order was an abuse of discretion. In 2001, Digiacinto suffered a workplace injury. In 2003, an ALJ granted Digiacinto's request for social security disability benefits. In 2015, Digiacinto filed a third application for PTD compensation. The Commission denied the application, concluding that Digiacinto had voluntarily abandoned the workforce, rendering him ineligible for compensation. Digiacinto then brought this mandamus action seeking an order for the Commission to vacate its order denying his PTD application. The court of appeals granted a limited writ, holding that the Commission's failure to mention the ALJ's decision in its order was an abuse of discretion. The Supreme Court reversed, holding (1) the Commission was not required to discuss the ALJ's decision; and (2) the ALJ's decision was not key to the success or failure of the PTD application.

State ex rel. Navistar, Inc. v. Industrial Commission

Court: Supreme Court of Ohio

Citation: 2020-Ohio-712

Opinion Date: March 4, 2020

Judge: Per Curiam

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

The Supreme Court affirmed the judgment of the court of appeals denying the request of Gary Bisdorf's former employer, Navistar, Inc., for a writ of mandamus ordering the Industrial Commission of Ohio to vacate its award of permanent total disability (PTD) compensation to Bisdorf, holding that Navistar was not entitled to an extraordinary remedy in mandamus. In its complaint for a writ of mandamus Navistar asserted that the Commission had abused its discretion in several ways. The magistrate recommended that the court of appeals deny the writ. The court adopted the magistrate's recommendation. Navistar appealed and moved for oral argument. After briefing in the Supreme Court was complete, Bisdorf died. Navistar filed a motion to continue the case. The Supreme Court granted Navistar's motion to continue the case, affirmed the judgment of the court of appeals, and denied Navistar's motion for oral argument, holding that Navistar did not make a showing by clear and convincing evidence that the Commission abused its discretion by entering an order not supported by evidence in the record.

Abdulrazzak v. South Dakota Board of Pardons & Paroles

Court: South Dakota Supreme Court

Citation: 2020 S.D. 10

Opinion Date: March 4, 2020

Judges: Salter, Glen A. Severson

Areas of Law: Criminal Law, Government & Administrative Law

The Supreme Court affirmed the order of the circuit court dismissing as untimely Appellant's appeal of an order of the Board of Pardons and Paroles revoking Appellant's parole, holding that the circuit court did not err. Thirty-four days after the Board entered an amended order revoking Appellant's parole the clerk of court received and filed Appellant's pro se notice of appeal. The Board filed a motion to dismiss the appeal for lack of jurisdiction, claiming it was untimely. The circuit court dismissed the appeal for lack of jurisdiction. The Supreme Court affirmed, holding that the circuit court (1) did not err when it dismissed as untimely Appellant's appeal of the Board's decision revoking Appellant's parole; and (2) did not abuse its discretion by denying Appellant's request for a standby attorney at the hearing on the motion to dismiss his appeal.

Town of Bennington v. Knight

Court: Vermont Supreme Court

Citation: 2020 VT 17

Opinion Date: February 28, 2020

Judge: Beth Robinson

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

Defendant Clay Knight appealed the civil division’s affirming a small-claims award to the Town of Bennington for reimbursement of defendant’s salary and benefits pursuant to a contract between defendant and the Town. Defendant signed an “employment agreement” with the Bennington Police Department under which, in exchange for receiving full-time training, he agreed to repay the Town a portion of his salary if he was unable or unwilling to remain employed by the Town for three years. The issue this case presented for the Vermont Supreme Court’s review was whether this agreement conflicted with the collective bargaining agreement (CBA) that set defendant’s rate of pay during training. After review, the Supreme Court concluded that the employment agreement indeed conflicted with the CBA, and therefore reversed.

Lower v. Peabody Powder River Services, LLC

Court: Wyoming Supreme Court

Citation: 2020 WY 33

Opinion Date: March 4, 2020

Judge: Gray

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

The Supreme Court affirmed the decision of the district court upholding the decision oft he Office of Administrative Hearings (OAH) denying workers' compensation benefits to Appellant, holding that a previous order by the OAH was not a final, appealable order and that collateral estoppel was not applicable. Appellant filed for workers' compensation benefits after his leg was amputated below the knee. The Department of Workforce Services, Workers' Compensation Division (the Division) denied the claim. Appellant appealed, but while the contested case hearing was pending the Division withdrew its denial of benefits. In response, the OAH issued an order vacating the hearing and directing the Division to award workers' compensation benefits. The Division issued a redetermination in favor of Appellant. Appellant's employer objected, and after a contested case hearing, OAH denied workers' compensation benefits. The district court upheld the OAH decision denying benefits. On appeal, Appellant claimed that the first OAH order was a final appealable order awarding benefits and that his employer was collaterally estopped from objecting to the Division's redetermination awarding benefits. The Supreme Court disagreed, holding that the first OAH order was not a "prior adjudication" of workers' compensation benefits and provided no basis to implicate the principle of collateral estoppel.