Latest 29 Cases This Week: Babb v. Wilkie (U.S.), Republican National Committee v. Democratic National Committee (U.S.), Cascabel Cattle Co., LLC ...

How Allen v. Cooper Breaks Important New (if Dubious) Ground on Stare Decisis

VIKRAM DAVID AMAR

Illinois Law dean and professor Vikram David Amar comments on language in a recent U.S. Supreme Court decision, Allen v. Cooperdiscussing constitutional stare decisis in the context of state sovereign immunity. Amar points out some of the problems with the Court’s jurisprudence on state sovereign immunity and Congress’s Section 5 power, and he questions the Allen majority’s embrace of a “special justification” requirement for constitutional stare decisis.

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Babb v. Wilkie

Court: US Supreme Court

Docket: 18-882

Opinion Date: April 6, 2020

Judge: Samuel A. Alito, Jr.

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

Babb, a VA pharmacist, filed suit under the Age Discrimination in Employment Act, 29 U.S.C. 633a(a). The district court granted the VA summary judgment, finding that Babb had established a prima facie case but that the VA had proffered legitimate reasons for the challenged actions, and that no jury could reasonably conclude that those reasons were pretextual. The Eleventh Circuit affirmed. The Supreme Court reversed. Section 633a(a) demands that federal sector personnel actions be untainted by any consideration of age. The ADEA does not require proof that a federal employment decision would have turned out differently if age had not been taken into account. If age is a factor in an employment decision, the statute has been violated. It is not anomalous to hold the federal government to a stricter standard than private employers or state and local governments. But-for causation is important in determining the appropriate remedy. To obtain reinstatement, damages, or other relief related to the end result of an employment decision, a showing that a personnel action would have been different if age had not been taken into account is necessary, but if age discrimination played a lesser part in the decision, other remedies may be appropriate.

Republican National Committee v. Democratic National Committee

Court: US Supreme Court

Docket: 19a1016

Opinion Date: April 6, 2020

Judge: Per Curiam

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

To slow the spread of the COVID-19 pandemic, Wisconsin’s Governor ordered Wisconsinites to stay at home until April 24. An unprecedented number of voters requested absentee ballots for the state’s spring election, resulting in a severe backlog of ballots not promptly mailed to voters. Plaintiffs, including the Democratic party, sued the Wisconsin Elections Commission and, on April 2, obtained a preliminary injunction that extended the deadline for voters to request absentee ballots and extended the deadline for election officials to receive completed absentee ballots. On the day before the April 7 election, the Supreme Court stayed the preliminary injunction to the extent it required Wisconsin to count absentee ballots postmarked after April 7. The Court declined to address “the wisdom of” proceeding with the scheduled election, opting to answer “a narrow, technical question.” While the deadline for the municipal clerks to receive absentee ballots is extended to April 13, those ballots must be mailed and postmarked by election day. The plaintiffs had not asked that the court allow ballots postmarked after election day to be counted; the court unilaterally ordered that such ballots be counted if received by April 13. That extension would fundamentally alter the nature of the election and would afford relief that the plaintiffs did not seek. In its order enjoining the public release of any election results for six days after election day, the district court essentially enjoined nonparties. The Court noted no evidence that voters who requested absentee ballots at the last minute would be in a substantially different position from late-requesting voters in other Wisconsin elections with respect to receiving ballots; the deadline for receiving ballots was extended to ensure that their votes count. The Court declined to express an opinion on whether other election procedure modifications are appropriate in light of COVID–19.

Cascabel Cattle Co., LLC v. United States

Court: US Court of Appeals for the Fifth Circuit

Dockets: 19-40077, 19-40086, 19-40134

Opinion Date: April 6, 2020

Judge: Stephen Andrew Higginson

Areas of Law: Agriculture Law, Government & Administrative Law

Plaintiffs filed suit against the United States and others, alleging violations of the Federal Tort Claims Act (FTCA) and seeking monetary damages associated with their loss of livestock following the implementation of a temporary fever tick quarantine. The Fifth Circuit affirmed the district court's dismissal for lack of jurisdiction, holding that plaintiffs' claims were barred by the quarantine exception to the FTCA. The quarantine exception states that the statute's sovereign immunity waiver does not apply to any claim for damages caused by the imposition or establishment of a quarantine by the United States. In this case, plaintiffs' damages were caused by the implementation of the quarantine and thus defendants' challenged actions fell within the exception.

In re: Gregg Abbott

Court: US Court of Appeals for the Fifth Circuit

Docket: 20-50264

Opinion Date: April 7, 2020

Judge: Stuart Kyle Duncan

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

The Fifth Circuit granted a writ of mandamus directing vacatur of the district court's issuance of a temporary restraining order (TRO) against executive order GA-09 as applied to abortion procedures. In order to preserve critical medical resources during the escalating COVID-19 pandemic, the Governor of Texas issued GA-09, which postpones non-essential surgeries and procedures until 11:59 p.m. on April 21, 2020. The court held that the drastic and extraordinary remedy of mandamus was warranted in this case because the district court ignored the framework governing emergency public health measures, like GA-09, in Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905); the district court wrongly declared GA-09 an "outright ban" on previability abortions and exempted all abortion procedures from its scope, rather than apply the Jacobson framework to decide whether GA-09 lacks a "real or substantial relation" to the public health crisis or whether it is "beyond all question, a plain, palpable invasion" of the right to abortion; the district court failed to apply the undue-burden analysis in Planned Parenthood v. Casey, 505 U.S. 833, 857 (1992), and thus failed to balance GA-09's temporary burdens on abortion against its benefits in thwarting a public health crisis; and the district court usurped the state's authority to craft emergency health measures, substituting instead its own view of the efficacy of applying GA-09 to abortion. Therefore, the court found that the requirements for a writ of mandamus are satisfied in light of the extraordinary nature of these errors, the escalating spread of COVID-19, and the state's critical interest in protecting the public health.

O'Brien v. Village of Lincolnshire

Court: US Court of Appeals for the Seventh Circuit

Docket: 19-1349

Opinion Date: April 7, 2020

Judge: ROVNER

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

An Illinois municipality may join the Municipal League, an unincorporated, nonprofit, nonpolitical association, and may pay annual membership dues and fees; member municipalities may act through the League to provide and disseminate information and research services and do other acts for improving local government, 65 ILCS 5/1-8-1. Lincolnshire is one of more than a thousand dues-paying League members and uses tax revenue to pay the dues from the Village’s General Fund. From 2013-2018, Lincolnshire paid at least $5,051 in voluntary dues and fees to the League. Individual residents and the Unions sued, claiming First Amendment and the Equal Protection Clause violations. They claimed that Lincolnshire compelled them to subsidize private speech on matters of substantial public concern because the League sent emails promoting a particular political agenda, including the adoption of “right to work” zones. The Seventh Circuit affirmed the dismissal of the suit. Lincolnshire itself has the right to speak for itself and a right to associate; it voluntarily joined the League as it is authorized to do. Local governments must be allowed to discuss, either directly or through a surrogate, ideas related to municipal government, regardless of where those ideas originated.

Stirling v. Minasian

Court: US Court of Appeals for the Ninth Circuit

Docket: 18-55834

Opinion Date: April 8, 2020

Judge: Mary Murphy Schroeder

Areas of Law: Civil Procedure, Government & Administrative Law

The Ninth Circuit affirmed the district court's order denying plaintiff's motion to remand his case to state court, where he wants to pursue his claim that a JAG colleague, defendant, is engaged in the unauthorized practice of law because defendant is licensed only in states outside of California. The panel held that defendant was "acting under" a federal officer within the meaning of 28 U.S.C. 1442(a)(2). The panel rejected plaintiff's contention that this was not a "civil action or criminal prosecution" under section 1442(a)(1), and held that defendant was a "person" within the meaning of the statute; there was a causal connection between plaintiff's claims and defendant's actions taken pursuant to a federal officer's directions; and defendant raised a colorable federal defense under the Supremacy Clause. In this case, defendant was appointed by and reports to a federal officer and is permitted by federal regulation to practice law, in a specific and limited capacity, without becoming a member of the California Bar. Therefore, defendant has a colorable defense that this federal regulatory scheme preempts a claim by a private individual that would have the effect of invalidating those federal regulations in states, like California, that do not require all JAG Trial Defense Service attorneys to become members of the California Bar.

Hamilton v. CIR

Court: US Court of Appeals for the Tenth Circuit

Docket: 19-9000

Opinion Date: April 7, 2020

Judge: Timothy M. Tymkovich

Areas of Law: Government & Administrative Law, Tax Law

Claiming insolvency, taxpayer Vincent Hamilton sought to exclude nearly $160,000 in student loans that were forgiven from his taxable income. During the same tax year, however, he had received a non-taxable partnership distribution worth more than $300,000. His wife transferred those funds into a previously-unused savings account held nominally by their adult son. Using login credentials provided by their son, Mrs. Hamilton incrementally transferred almost $120,000 back to the joint checking account she shared with her husband. The Hamiltons used these funds to support their living expenses. In a late-filed joint tax return, they excluded the discharged student-loan debt on the theory that Mr. Hamilton was insolvent. In calculating his assets and liabilities, however, the Hamiltons did not include the funds transferred into the savings account. Had they done so, Mr. Hamilton would not have met the criteria for insolvency; and the couple would have owed federal income tax on the student-loan discharge. The Commissioner of Internal Revenue eventually filed a Notice of Deficiency, reasoning that the partnership distribution rendered Mr. Hamilton solvent, such that the Hamiltons were required to pay income tax on the cancelled student loan debt. debt. The Hamiltons petitioned for review from the Tax Court, which sustained both the deficiency and a significant late-filing penalty. Finding no reversible error, the Tenth Circuit affirmed the Tax Court's judgment.

Standing Akimbo, LLC v. United States

Court: US Court of Appeals for the Tenth Circuit

Docket: 19-1049

Opinion Date: April 7, 2020

Judge: Gregory Alan Phillips

Areas of Law: Business Law, Government & Administrative Law, Tax Law

The IRS conducted a civil audit of Peter Hermes, Kevin Desilet, Samantha Murphy, and John Murphy (collectively, the “Taxpayers”) to verify their tax liabilities for their medical- marijuana dispensary, Standing Akimbo, LLC. The IRS was investigating whether the Taxpayers had taken improper deductions for business expenses arising from a “trade or business” that “consists of trafficking in controlled substances.” Claiming to fear criminal prosecution, the Taxpayers declined to provide the audit information to the IRS. This left the IRS to seek the information elsewhere—it issued four summonses for plant reports, gross-sales reports and license information to the Colorado Department of Revenue’s Marijuana Enforcement Division (the “Enforcement Division”), which is the state entity responsible for regulating licensed marijuana sales. In Colorado federal district court, the Taxpayers filed a petition to quash the summonses. The government moved to dismiss the petition and to enforce the summonses. The district court granted the motion to dismiss and ordered the summonses enforced. After review, the Tenth Circuit concluded the Taxpayers failed to overcome the IRS' showing of good faith, and failed to establish that enforcing the summonses would constitute an abuse of process.

Board of County Commissioners of Washington County v. United States Department of Transportation

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

Docket: 19-1210

Opinion Date: April 7, 2020

Judge: Laurence Hirsch Silberman

Areas of Law: Government & Administrative Law, Transportation Law

The DC Circuit denied a petition for review of the Department's determination that Hagerstown Airport was not eligible for federally subsidized air service because it did not meet the statutory "enplanement" requirement. In this case, petitioners argue that it was arbitrary and capricious for the Department to refuse to grant the airport a waiver as it had done four times previously. After determining that the Department's decision was subject to judicial review, the court deferred to the Department's decision not to waive the airport's failure to meet the enplanement requirement. The court was unconvinced by petitioners' contention that the Department acted arbitrarily because it had been so forgiving in the past. The court explained that the Department was entitled to credit Hagerstown's explanations and predictions less after another year of noncompliance. The court also concluded that the Department's view -- that Hagerstown's history of noncompliance and its location are superior predictors of future enplanement numbers -- is reasonable and therefore is entitled to deference. Finally, it was reasonable for the Department to rely on certain factors to distinguish another community from Hagerstown.

Natural Resources Defense Council v. Wheeler

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

Docket: 18-1172

Opinion Date: April 7, 2020

Judge: Srikanth Srinivasan

Areas of Law: Environmental Law, Government & Administrative Law

The DC Circuit granted the petitions for review of the EPA's 2018 Rule, which suspended the prior listing of hydrofluorocarbons (HFCs) as unsafe substitutes in its entirety. Consequently, even current users of ozone-depleting substances can now shift to HFCs. As a preliminary matter, the court held that it had jurisdiction to consider the petitions for review, because NRDC, like New York, has established its standing to proceed. Furthermore, the 2018 Rule meets both prongs of the Bennett test for finality. On the merits, the court held that the 2018 Rule was a legislative rule and was thus improperly promulgated without the required notice-and-comment procedures. Accordingly, the court vacated the 2018 Rule, remanding to the EPA for further proceedings.

Sierra Club v. EPA

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

Docket: 18-1167

Opinion Date: April 7, 2020

Judge: Wilkins

Areas of Law: Environmental Law, Government & Administrative Law

The DC Circuit dismissed Sierra Club's petition for review of the EPA's "Guidance on Significant Impact Levels for Ozone and Fine Particles in the Prevention of Significant Deterioration Permitting Program" (SILs Guidance). The court held that it lacked subject-matter jurisdiction under the Clean Air Act, because the SILs Guidance is not final agency action. The court explained that the SILs Guidance does not determine rights or obligations and does not effectuate direct or appreciable legal consequences as understood by the finality inquiry.

Baude v. United States

Court: US Court of Appeals for the Federal Circuit

Docket: 18-2038

Opinion Date: April 9, 2020

Judge: O'Malley

Areas of Law: Government & Administrative Law, Military Law

Air Force officers who hold the grade of major must appear before a promotion board, 10 U.S.C. 611(a), 628(k); an officer who is twice passed over for promotion is typically discharged. An officer who would otherwise be discharged may remain in active service upon selection by a continuation board. Department of Defense Instruction (DoDI) 1320.08 provides that an officer “shall normally be selected for continuation if the officer will qualify for retirement . . . within 6 years… [except] in unusual circumstances.” In 2011, then-Major Engle, who had served in active duty for over 14 years, was passed over for promotion for the second time. A Selective Continuation Board met. Engle would have been within DoDI 1320.08’s protective window and had no disqualifying information in his record. The Secretary of the Air Force had, however, instructed Boards to decrease the protective threshold and reversed the presumption in favor of continuation. Engle was discharged. Months later, Engle was involuntarily called up from the reserves, deployed to Kyrgyzstan, and promoted to Lieutenant Colonel. Engle continues to serve, without the retirement benefits and additional active duty pay for which he would have qualified if he had been continued. The Federal Circuit reversed with respect to Engle’s claim, citing the Administrative Procedures Act. The Secretary does not have the discretion to rewrite the DoDI. While the military has wide decision-making discretion, it is not wide enough to justify the process employed here. The regulation is meant to protect individuals who have spent most of their lives in service to this country

Nike, Inc. v. Adidas AG

Court: US Court of Appeals for the Federal Circuit

Docket: 19-1262

Opinion Date: April 9, 2020

Judge: Stoll

Areas of Law: Government & Administrative Law, Intellectual Property, Patents

In an earlier appeal from inter partes review, the Federal Circuit vacated-in-part the Patent Trial and Appeal Board’s decision denying Nike’s motion to amend and remanded for the Board to address errors underlying its conclusion that Nike’s proposed substitute claims 47–50 were unpatentable for obviousness. On remand, the Board denied Nike’s request to enter substitute claims 47–50 of its patent on the ground that those claims are unpatentable under 35 U.S.C. 103. Nike asserts that the Board violated the notice provisions of the Administrative Procedure Act by finding that a limitation of substitute claim 49 was well-known in the art based on a prior art reference that, while in the record, was never cited by Adidas for disclosing that limitation. Nike also challenged the Board’s finding that Nike’s evidence of long-felt but unmet need was insufficient to establish the nonobviousness of substitute claims 47–50. The Federal Circuit affirmed in part. Substantial evidence supports the finding that Nike failed to establish a long-felt need for substitute claims 47–50. The court vacated in part. No notice was provided for the Board’s theory of unpatentability for substitute claim 49.

Sistek v. Department of Veterans Affairs

Court: US Court of Appeals for the Federal Circuit

Docket: 19-1168

Opinion Date: April 8, 2020

Judge: Stoll

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

In 2011, Sistek was appointed as a director at the VA’s Chief Business Office Purchased Care. Sistek subsequently made several protected disclosures to the VA’s Office of the Inspector General (OIG) questioning various financial practices and perceived contractual anomalies. Sistek’s supervisor became aware of Sistek’s concerns. Sistek was subsequently subjected to an investigation. Sistek filed a complaint with the Office of Special Counsel (OSC) alleging whistleblower reprisal based on several personnel actions, including the letter of reprimand. Sistek later filed an individual right of action appeal with the Merit Systems Protection Board, alleging retaliation under the Whistleblower Protection Act. The Administrative Judge declined to order any corrective action, finding that a retaliatory investigation, in itself, does not qualify as a personnel action eligible for corrective action under the Act. The OIG subsequently confirmed that the concerns raised by Sistek were justified. Sistek retired from the VA in 2018. The Federal Circuit affirmed. The Act defines qualifying personnel actions at 5 U.S.C. 2302(a)(2)(A); retaliatory investigations, in and of themselves, do not qualify. The Act provides that a retaliatory investigation may provide a basis for additional corrective action if raised in conjunction with one or more of the qualifying personnel actions.

Meyers v. Yamato Kogyo Co.

Court: Arkansas Supreme Court

Citation: 2020 Ark. 136

Opinion Date: April 9, 2020

Judge: Womack

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

The Supreme Court affirmed the order of the Arkansas Workers' Compensation Commission concluding that parent companies of a direct employer are immune from tort liability under the exclusive remedy statute, Ark. Code Ann. 11-9-105(a), holding that the Commission's decision was supported by substantial evidence. Plaintiff filed a wrongful death suit against the parent companies of her deceased husband's employer. The Commission concluded that the parent companies were statutory employers as principals and stockholders of the direct employer under section 11-9-105(a). The Commissioner further held that the parent companies' statutory entitlement to immunity was consistent with Ark. Const. art. V, 32. On appeal, Plaintiff argued that article 5, section 32 permits workers' compensation laws to extend only to "actual" employers. The Supreme Court affirmed, holding (1) the Commission's finding that the parent companies were immune under the exclusive remedy provision was supported by substantial evidence in the record; and (2) section 11-9-105(a) is constitutional because the parent companies had an employment relationship with Plaintiff's deceased husband.

Coast Community College Dist. v. Com. on State Mandates

Court: California Courts of Appeal

Docket: C080349(Third Appellate District)

Opinion Date: April 3, 2020

Judge: Louis Mauro

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

This case involved claims for subvention by community college districts pertaining to 27 Education Code sections and 141 regulations. The regulations includes “minimum conditions” that, if satisfied, entitles the community college districts to receive state financial support. As to the minimum conditions, the Commission on State Mandates generally determined that reimbursement from the state qA not required because, among other things, the state did not compel the community college districts to comply with the minimum conditions. Coast Community College District, North Orange County Community College District, San Mateo County Community College District, Santa Monica Community College District, and State Center Community College District (the Community Colleges) filed a petition for writ of mandate challenging the Commission’s decision. The trial court denied the petition and entered judgment, and the Community Colleges appealed. The Court of Appeal concluded the minimum condition regulations imposed requirements on a community college district in connection with underlying programs legally compelled by the state. The Court surmised the Commission was. Suggesting the minimum conditions were not legally compelled because the Community Colleges were free to decline state aid, but the Court concluded that argument was inconsistent with the statutory scheme and the appellate record. Based on a detailed review of the statutes and regulations at issue, the Court reversed judgment with regard to Cal. Code Regs., tit. 5, regs. 51000, 51006, 51014, 51016, 51018, 51020, 51025, 54626, subdivision (a), 55825 through 55831, regulation 55760 in cases involving mistake, fraud, bad faith or incompetency, and the Handbook of Accreditation and Policy Manual. The Court affirmed as to Education code sections 66738, subdivision (b), 66741, 66743, 78210 through 78218, paragraphs 2, 4 and 5 of section 66740, the portion of regulation 51008 dealing with education master plans, regulations 51024, 54626, subdivisions (b) and (c), 55005, 55100, 51012, 55130, 55150, 55170, 55182, 55205 through 55219, 55300, 55316, 55316.5, 55320 through 55322, 55340, 55350, 55500 through 55534, 55600, 55602, 55602.5, 55603, 55605, 55607, 55620, 55630, 55752, 55753, 55753.5, 55758.5, 55761, 55764, 55800.5, 55805, 55806, 55807, 55808, 55809, 58102, 58107, 58108, 59404, the portion of regulation 55000 et seq. relating to community service classes, and pages A-1 to A-54 of the Chancellor’s Program and Course Approval Handbook. The matter was remanded for further further proceedings on additional challenges.

Ruiz v. County of San Diego

Court: California Courts of Appeal

Docket: D074654(Fourth Appellate District)

Opinion Date: April 7, 2020

Judge: Richard D. Huffman

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

Sonia and Hector Ruiz's (together Ruiz) home flooded because their privately owned underground storm drain pipe rusted out after 50 years of use. They sued the County of San Diego (County) for inverse condemnation, and after a bench trial the court entered judgment in their favor (essentially the cost of replacing their metal pipe (the Ruiz pipe)) with a reinforced concrete pipe. The primary issue on appeal was whether a privately owned storm drain pipe located on private property, for which a public entity had rejected an offer of dedication, nevertheless became a public improvement because "public water" drained through it. After review of the trial court record, the Court of Appeal agreed with the County that under settled law, the answer is no. The County also contended the trial court's alternative basis for imposing liability, that the County acted unreasonably in discharging water through a public drainage system that connects to the Ruiz pipe, also failed. "Even viewing the evidence most favorably to Ruiz, the evidence is insufficient to sustain the judgment on this theory." Accordingly, judgment was reversed with directions to enter judgment for the County.

Hawkins v. Southwest Kansas Co-op Service

Court: Kansas Supreme Court

Docket: 118379

Opinion Date: April 3, 2020

Judge: Atcheson

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

In this case concerning the application of the statutory scheme permitting an employer that has provided workers compensation benefits to an injured employee to obtain both a subrogation interest in any recovery the employee receives from a third party and a credit for future benefits, the Supreme Court held that the Workers Compensation Board used the improper method for determining the subrogation lien and the future credit. In Employee's third party negligence action, the jury decided both the fault of Employer and the measure of Employee's damages from his workplace injury. The Board applied the jury's finding of fault to Employee's settlement with one of several defendants in his negligence action to compute the reduction in Employer's subrogation lien and future credit for workers compensation benefits it provided or will provide to Employee. The Supreme Court reversed, holding (1) consistent with Kan. Stat. Ann. 44-504(b), Employer's credit for future benefits should have been determined using each annual settlement payment to Employee from one of the third-party defendants when the payment was received; and (2) the Board erred in aggregating those payments and relying on the total amount when Employee would not receive the last installment for twenty years.

Kirt v. Metzinger

Court: Louisiana Supreme Court

Docket: 2019-C-01162

Opinion Date: April 3, 2020

Judge: Crain

Areas of Law: Civil Procedure, Government & Administrative Law, Health Law, Medical Malpractice

Elaine Kirt died in 2010, due to complications that developed shortly after undergoing eye surgery. On September 23, 2011, her son, Neville Kirt, appearing in person and on behalf of his deceased mother and his two brothers, filed a request with the Division of Administration asking for a medical review panel to review the care provided to his mother by three defendants: Dr. Rebecca Metzinger, the attending surgeon; Dr. Theodore Strickland III, the anesthesiologist for the procedure; and Tulane Medical Center. In a reply letter to Neville, the Patient’s Compensation Fund Oversight Board (PCF) acknowledged receipt of the request; confirmed Dr. Metzinger, Dr. Strickland, and Tulane University Hospital & Clinic were qualified under the Louisiana Medical Malpractice Act (Act); informed Kirt a filing fee of $100 per qualified defendant was due; and requested payment of $300. The notice stated the failure to pay would render the request invalid, without effect, and would not suspend the time to file suit. Days later, then appearing through counsel, the Kirts sent a second letter asking to amend its previous request, adding two additional nurses. The Kirts included a $500 check to cover filing fees. A medical review panel convened, reviewed the care provided by all named healthcare providers, and found no breach of the standard of care. The Kirts thereafter filed against the doctors and nurses. Claims against the doctors were dismissed by summary judgments because there was no proof they breached the standard of care while treating Elaine Kirt. Those judgments expressly barred allocating fault to the dismissed parties and prohibited introducing evidence at trial to establish their fault. The nurses then filed peremptory exceptions of prescription, claiming the request for a medical review panel was invalid because the Kirts failed to pay the final $100 filing fee, and prescription was not suspended for any claims. The trial court concurred with the nurses and granted an exception of prescription. The Supreme Court determined that because the Kirts paid filing fees for five of six named defendants, dismissal of one of the nurses was proper for lack of a filing fee. The Court determined the lower courts did not consider or decide the merits of the Kirts' argument that they could not have reasonable known about the claims against two of the nurse defendants until one was deposed. Because the lower courts did not consider or decide the merits of the Kirts' basis for the exception of prescription, which could have turned on factual findings, the Supreme Court pretermitted consideration of these arguments and remanded the matter to the trial court for further disposition of the exception.

In re Reliability Plans of Electric Utilities for 2017-2021

Court: Michigan Supreme Court

Dockets: 158306, 158305

Opinion Date: April 2, 2020

Judge: Bridget Mary McCormack

Areas of Law: Government & Administrative Law, Utilities Law

The Association of Businesses Advocating Tariff Equity (ABATE) (Docket Nos. 158305 and 158306) and Energy Michigan, Inc. (Docket Nos. 158307 and 158308) each appealed an order of the Michigan Public Service Commission (MPSC) implementing MCL 460.6w. The MPSC order imposed a local clearing requirement on individual alternative electric suppliers. The local clearing requirement represented the amount of capacity resources that were required to be in the local resource zone in which the electric supplier’s demand was served. ABATE and Energy Michigan challenged the MPSC’s interpretation of MCL 460.6w, and Energy Michigan further asserted that the MPSC order improperly imposed new rules that were not promulgated in compliance with the Administrative Procedures Act (APA). The Court of Appeals consolidated the appeals and reversed the MPSC’s decision, holding that no provision of MCL 460.6w clearly and unmistakably authorized the MPSC to impose a local clearing requirement on individual alternative electric suppliers and that the MPSC could impose a local clearing requirement only exactly as MISO does—on a zonal basis. Accordingly, the Court of Appeals concluded that the MPSC was not permitted to impose a local clearing requirement on any provider individually. Because the Court of Appeals held that MCL 460.6w did not provide the MPSC with the authority to impose a local clearing requirement on individual alternative electric suppliers, the Court of Appeals did not reach the APA argument. The Michigan Supreme Court reversed, finding that despite the identical language describing the MPSC’s authority for determining both elements of its capacity obligation, the Court of Appeals concluded that there was a difference based on its review of the entire statute. The Court surmised that conclusion was unfounded; in fact, a contextual review of the statute supported the opposite conclusion. The Supreme Court determined the Court of Appeals misread MCL 460.6w when it read into the statutory text a requirement that the MPSC impose Michigan’s local clearing requirement using the same methodology the Mid-continent Independent System Operator did. The Court of Appeals further misunderstood the differences between the wholesale and retail capacity markets when it held that the MPSC could not impose a local clearing requirement on alternative electric suppliers individually.

City of Vicksburg v. Williams

Court: Supreme Court of Mississippi

Citation: 2019-CA-00209-SCT

Opinion Date: April 9, 2020

Judge: Griffis

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

In the early morning hours of February 7, 2013, Vicksburg Police Officers Russell Dorsey and Diawardrick Grover were dispatched to Herbert Williams’s residence as a result of a 911. Williams called 911 because he discharged his firearm at his neighbor’s dog. After Officer Dorsey arrived at Williams’s house, Williams explained his reasons for discharging his firearm. Williams stated that he shot at the ground near the dog in an attempt to prevent an attack by the dog. Officer Grover arrived a few minutes after Officer Dorsey, and he interviewed Jacqueline Knight Holt, the owner of the dog. Officer Grover observed the dog, and he described the dog as "small and scared." After Officers Dorsey and Grover conducted an investigation, Officer Dorsey arrested Williams for unnecessarily discharging a firearm in the city in violation of Vicksburg’s city ordinance. In July 2014, Williams filed a complaint against the City under the MTCA in the Circuit Court of Warren County. Williams alleged that “said Police Officers grossly and negligently arrested Plaintiff for no good cause, causing Plaintiff damages physically and psychologically.” Williams sued the City of Vicksburg (City) for injuries he allegedly sustained after his arrest. The Circuit Court, sitting without a jury under the Mississippi Tort Claims Act (MTCA), entered a judgment in favor of Williams. However, because the City was entitled to immunity, the Mississippi Supreme Court reversed.

Cabarrus County Board of Education v. Department of State Treasurer

Court: North Carolina Supreme Court

Docket: 369PA18

Opinion Date: April 3, 2020

Judge: Ervin

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

In this dispute concerning the manner in which the cost of pensions for certain retirees should be funded, the Supreme Court held that the Administrative Procedure Act's (APA) rulemaking procedures bind how the Retirement System's Board of Trustees adopt "cap factors" under the anti-pension spiking provision at issue in this case. In order to calculate the retirement benefit cap applicable to each retiree, the Act to Enact Anti-Pension-Spiking Legislation by Establishing a Contribution-Based Benefit Cap directs the Retirement System's Board of Trustees to adopt a contribution-based benefit cap factor recommended by an actuary, which the Board had traditionally adopted by resolution. Here, the Retirement System determined that Dr. Barry Shepherd's pension benefits were subject the contribution-based benefit cap. The trial court concluded that the Board of Trustees' adoption of the cap factor was void because the action was subject to rulemaking under the APA. The Supreme Court affirmed, holding (1) the Board of Trustees was required to adopt the statutorily mandated cap factor utilizing the rulemaking procedures required by the APA; and (2) the Retirement System erred by billing the Board of Education an additional amount relating to Dr. Shepherd's pension, in light of the Board of Trustees' failure to adopt the necessary cap factor in an appropriate manner.

PHG Asheville, LLC v. City of Asheville

Court: North Carolina Supreme Court

Docket: 434PA18

Opinion Date: April 3, 2020

Judge: Ervin

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

The Supreme Court affirmed the decisions of the court of appeals and the trial court holding that the City of Asheville improperly denied an application for the issuance of a conditional use permit submitted by PHG Asheville, LLC seeking authorization to construct a hotel in downtown Asheville, holding that the City lacked the authority to deny the requested conditional use permit. The trial court determined that PHG was entitled to the issuance of the requested conditional use permit because the City had improperly concluded that PHG failed to present competent, material, and substantial evidence tending to show that the proposed hotel satisfied the standards of a conditional use permit set out in the City's unified development ordinance. The court of appeals affirmed. The Supreme Court affirmed, holding that PHG presented competent, material, and substantial evidence that the proposed hotel satisfied the relevant conditional use permit standards set out in the City's unified development ordinance.

Town of Pinebluff v. Moore County

Court: North Carolina Supreme Court

Docket: 398PA18

Opinion Date: April 3, 2020

Judge: Robin E. Hudson

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

The Supreme Court reversed the judgment of the court of appeals affirming the trial court's summary judgment for the Town of Pinebluff, holding that the court of appeals erred in concluding that Session Law 1999-35 required Moore County to approve Pinebluff's expansion request. Session Law 1999-35 amended North Carolina's extraterritorial jurisdiction (ETJ) statute, N.C. Gen. Stat. 160A-360, as it pertained to Pinebluff. After Pinebluff annexed land extending beyond the town's corporate boundaries, Pinebluff requested that the Moore County Board of Commissioners adopt a resolution to authorize the expansion of Pinebluff's ETJ two miles beyond the annexed boundary, pursuant to section 160A-360. The Board denied the request. Pinebluff filed a complaint against Moore County seeking a writ of mandamus. The trial court granted summary judgment for Pinebluff and directed Moore County to adopt a resolution authorizing Pinebluff to exercise its ETJ within the proposed area. The court of appeals affirmed. The Supreme Court reversed, holding that there is no irreconcilable conflict between subsections (e) and (f) of section 160A-360, as modified by Session Law 1999-35, and that subsection (e) prohibits Pinebluff from extending its ETJ into the requested areas within an agreement between Pinebluff and Moore County.

Christianson v. NDDOT

Court: North Dakota Supreme Court

Citation: 2020 ND 76

Opinion Date: April 6, 2020

Judge: Daniel J. Crothers

Areas of Law: Civil Procedure, Government & Administrative Law

Kyle Christianson appealed a district court’s judgment affirming the North Dakota Department of Transportation’s suspension of his driving privileges. Christianson claimed the Department’s hearing file, which was admitted at the adjudication hearing, was improperly certified as a true copy of the Department’s official records. After review, the North Dakota Supreme Court concluded Christianson rebutted the presumption that the individual whose signature certified the record had authority to do so. Therefore, the Court reversed the hearing officer’s decision to admit the hearing file and vacated the Department’s suspension of Christianson’s driving privileges.

Hurst/Van Dusen v. Rosenblum

Court: Oregon Supreme Court

Docket: S067329

Opinion Date: April 9, 2020

Judge: Nakamoto

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

In consolidated ballot title review cases, petitioner Hurst and petitioners Van Dusen and Steele challenged the Oregon Attorney General’s certified ballot title for Initiative Petition 50 (2020) (IP 50). If adopted, IP 50 would amend ORS 468A.205, which set aspirational greenhouse gas emissions reduction goals, including the goal of achieving greenhouse gas levels that were at least 75% below 1990 levels by the year 2050. ORS 468A.205(1)(c). The current statute also expressly provided that it did not create any additional regulatory authority for any agency of the executive department. IP 50 would amend ORS 468A.205 to mandate staged reductions in greenhouse gas emissions from fossil fuel and industrial sources (including achieving greenhouse gas emissions levels that are “at least 100 percent below 1990 levels” by 2050); to require the Environmental Quality Commission (EQC) to adopt rules to ensure compliance with the new greenhouse gas emissions limits; and to require the Department of Environmental Quality to enforce the rules that the EQC adopts. The Oregon Supreme Court concluded that certain of petitioner Hurst’s arguments that the ballot title did not substantially comply with ORS 250.035(2) were well taken, and thus the Court referred the ballot title to the Attorney General for modification.

In re Cumberland Bail Bonding

Court: Tennessee Supreme Court

Docket: M2017-02172-SC-R11-CD

Opinion Date: April 6, 2020

Judge: Clark

Areas of Law: Criminal Law, Government & Administrative Law

The Supreme Court reversed the judgment of the court of criminal appeals and reinstated the judgment of the trial court suspending a bonding company for violating a local rule of court requiring an agent of the bonding company to be present at court appearances of defendants for whom the bonding company serves as surety, holding that the local rule is valid and enforceable. The bonding company in this case conceded that it violated the local rule but asserted that the local rule was inconsistent with Tennessee statutes and was arbitrary and capricious. The court of criminal appeals concluded that the part of the local rule requiring an agent of the bonding company to attend all court appearances was arbitrary, capricious, and illegal. The Supreme Court reversed, holding (1) the local rule does not conflict with state statutes and is not arbitrary, capricious, or unreasonable; and (2) the trial court did not err by suspending the bonding company for violating the local rule.

Civetti v. Turner

Court: Vermont Supreme Court

Citation: 2020 VT 23

Opinion Date: April 3, 2020

Judge: Beth Robinson

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

The trial court dismissed plaintiff Paul Civetti's negligence action against the Town of Isle La Motte and the Town Road Commissioner on grounds that: (1) because the Road Commissioner was an “appointed or elected municipal officer,” plaintiff was required by 24 V.S.A. section 901(a) to bring his action against the Town, rather than the Road Commissioner; and (2) the Town was, in turn, immune from suit based on municipal immunity. In his complaint, plaintiff alleged that: the Town has formally adopted road standards for its town roads; the Road Commissioner is responsible for assuring that the Town’s roads meet those standards; Main Street did not comply with those standards, including standards relating to the “width and shoulder”; the Road Commissioner knew or should have known that Main Street did not comply; and plaintiff was injured in a motor vehicle accident because of the non-compliant road. After review, the Vermont Supreme Court concluded that if the Road Commissioner was negligent in performing a ministerial function, the Town assumes the Road Commissioner’s place in defending the action and therefore may not assert municipal immunity from the claim pursuant to section 901(a) or § 901a, and that dismissal of this claim on the basis of qualified immunity was premature. Accordingly, the Court reversed and remanded for further proceedings.

Rocha v. King County

Court: Washington Supreme Court

Docket: 96990-6

Opinion Date: April 9, 2020

Judge: Johnson

Areas of Law: Civil Procedure, Class Action, Government & Administrative Law

This case involved claims against King County, Washington regarding jury selection and compensation. In 2016, petitioners filed a class action complaint in Pierce County, Washington Superior Court. They contended: (1) they had standing to file suit under the Uniform Declaratory Judgments Act; (2) jurors were employees entitled to minimum wage under Washington's Minimum Wage Act; and (3) RCW 2.36.080(3) created an implied cause of action for increased juror reimbursement based on economic status. Petitioners alleged that low rates of expense reimbursement have a greater impact on low-income jurors and asserted that this causes many jurors to seek excusal on the basis of financial hardship or to simply not respond to summons. Petitioners Nicole Bednarczyk and Catherine Selin sought reversal of a Court of Appeals decision affirming the superior court’s summary judgment dismissal of their declaratory relief, minimum wage, and disparate impact claims regarding jury service in King County. The Washington Supreme Court found standing was satisfied, but that jurors were not employees entitled to minimum wage, and there was no implied cause of action for requiring increased pay for jurors under RCW 2.36.080(3). "While we do not reach the inherent authority arguments, we take this opportunity to comment that low juror reimbursement is a serious issue that has contributed to poor juror summons response rates. The concerns raised by amici and petitioners as to the impact of low juror reimbursement on juror diversity, low-income jurors, and the administration of justice as a whole are valid points. While we should continue to cooperate with the other branches of government in an effort to address the long-standing problems identified by petitioners and amici, these concerns are best resolved in the legislative arena."