Hard Cases

JOSEPH MARGULIES

Cornell law professor Joseph Margulies uses the killing of Rayshard Brooks in Atlanta by police to explain some lessons for reform we might learn. Margulies calls upon us to use this case to reexamine the circumstances that should result in a custodial arrest and to shrink the function of police so as to use them only in the very few situations that truly require them.

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Department of Homeland Security v. Regents of University of California

Court: US Supreme Court

Docket: 18-587

Opinion Date: June 18, 2020

Judge: John G. Roberts, Jr.

Areas of Law: Government & Administrative Law, Immigration Law

In 2012, the Department of Homeland Security (DHS) announced the Deferred Action for Childhood Arrivals (DACA) program, which allows certain unauthorized aliens who arrived in the U.S. as children to apply for a two-year forbearance of removal to become eligible for work authorization and various federal benefits. Two years later, a related program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), proposed to make 4.3 million parents of U.S. citizens or lawful permanent residents eligible for the same forbearance, work eligibility, and other benefits. States obtained a nationwide preliminary injunction barring implementation of both. The Fifth Circuit upheld the injunction, concluding that the program violated the Immigration and Nationality Act, which defines eligibility for benefits. The Supreme Court affirmed. In 2017, DHS rescinded the DAPA Memorandum. Acting Secretary of Homeland Security Duke then rescinded DACA. Following decisions by the Second, Ninth, and D.C. Circuits, the Supreme Court held that DHS’s rescission decision was arbitrary and capricious. As a preliminary matter, the Court held that the decision is reviewable under the APA, rejecting an argument that DACA is a general non-enforcement policy. The DACA Memorandum did not merely decline to institute enforcement proceedings; it created a program for conferring affirmative immigration relief. The parties did not challenge any removal proceedings so that judicial review would be barred by 8 U.S.C. 1252. The Court declined to consider additional justifications for the decision that were offered nine months later. Judicial review of agency action is limited to the grounds that the agency invoked when it took the action. The later justifications bore little relationship to those offered originally and constitute “post hoc rationalization.” Acting Secretary Duke’s rescission memorandum failed to consider important aspects of the issue, such as eliminating benefits eligibility while continuing forbearance. In failing to consider that option, Duke failed to supply the “reasoned analysis” required by the APA. Duke also failed to address whether there was “legitimate reliance” on the DACA Memorandum. DHS has flexibility in addressing reliance interests and could have considered various accommodations.

United States Forest Service v. Cowpasture River Preservation Association

Court: US Supreme Court

Docket: 18-1584

Opinion Date: June 15, 2020

Judge: Clarence Thomas

Areas of Law: Energy, Oil & Gas Law, Government & Administrative Law, Real Estate & Property Law

Atlantic sought to construct a 604-mile natural gas pipeline from West Virginia to North Carolina, crossing 16 miles of land within the George Washington National Forest. Atlantic secured a special use permit from the U.S. Forest Service, obtaining a right-of-way for a 0.1-mile segment of pipe 600 feet below a portion of the Appalachian National Scenic Trail, which also crosses the National Forest. The Fourth Circuit vacated the permit. The Supreme Court reversed. The Department of the Interior’s assignment of responsibility for the Appalachian Trail to the National Park Service did not transform the Trail land into land within the National Park System that is not eligible for a pipeline lease. The Forest Service had the authority to issue the special use permit. Under 16 U.S.C. 521, the Forest Service has jurisdiction over the National Forest. The National Trails System Act, 16 U.S.C. 244(a), applies to the Appalachian Trail; the Secretary of the Interior has delegated to the National Park System the authority to enter into “rights-of-way” agreements for the Trail. The Leasing Act enables any “appropriate agency head” to grant “[r]ights-of-way through any Federal lands . . . for pipeline purposes,” 30 U.S.C. 185(a), except lands in the National Park System. The National Park System is administered by the Secretary of the Interior, through the National Park Service, 54 U.S.C. 100501. The Forest Service “right-of-way” agreements with the National Park Service for the Appalachian Trail did not convert National Forest “Federal lands” under the Leasing Act into “lands” within the “National Park System.” A right-of-way grant only nonpossessory rights of use. Although the federal government owns all lands involved, a right-of-way between two agencies grants only an easement, not jurisdiction over the land itself.

Hernandez Lara v. Barr

Court: US Court of Appeals for the First Circuit

Docket: 19-1524

Opinion Date: June 15, 2020

Judge: Kermit Victor Lipez

Areas of Law: Government & Administrative Law, Immigration Law

The First Circuit vacated the decision of the Board of Immigration Appeals (BIA) dismissing Petitioner's appeal of the immigration judge's (IJ) claims for relief and ordering her removed to El Salvador, holding that the IJ denied Petitioner her statutory right to be represented by the counsel of her choice. Petitioner, a native and citizen of El Salvador, entered the United States without being admitted or paroled. Over the course of her removal proceedings, Petitioner retained an attorney, lost that attorney, and attempted to find another to assist her in presenting the merits of her claims for asylum, withholding of removal, and relief under the Convention Against Torture. The IJ denied relief. Petitioner appealed and filed a motion to reopen and remand. The BIA dismissed the appeal, denied Petitioner's motion, and ordered her removed to El Salvador. The First Circuit vacated the BIA's order and remanded the matter, holding that the IJ failing to meaningfully effectuate Petitioner's statutory right to counsel, and the assistance of a lawyer likely would have affected the outcome of Petitioner's removal proceedings.

Elim Romanian Pentecostal Church v. Pritzker

Court: US Court of Appeals for the Seventh Circuit

Docket: 20-1811

Opinion Date: June 16, 2020

Judge: Frank Hoover Easterbrook

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

In March 2020, Illinois Governor Pritzker issued an executive order to reduce transmission of the coronavirus that, among other things, capped at 10 the number of people who could attend religious gatherings. A list of “essential” functions exempt from the 10-person cap included organizations providing food, shelter, and social services, and other necessities of life. Other gatherings, such as concerts, are forbidden, regardless of size. The plaintiffs sued under 42 U.S.C. 1983, arguing that the limit effectively foreclosed in-person religious services, even though they were free to hold multiple 10-person services, and that alternatives—online services or services in parking lots while worshipers remain in cars—are inadequate. Before the case was argued, the Governor issued a new order, which permits the resumption of all religious services, with the 10-person cap as a “recommendation.” The Seventh Circuit found that the issue was not moot but declined to grant relief. Illinois has not discriminated against religion and has not violated the First Amendment. While warehouse workers and people who assist the needy may be at the same risk as people who gather for large religious worship, movies and concerts are a better comparison group. By that standard, any discrimination has been in favor of religion. While all theaters and concert halls in Illinois have been closed since mid-March, sanctuaries and houses of worship were open, though to smaller gatherings.

Seaway Bank & Trust Co. v. J&A Series I, LLC, Series C

Court: US Court of Appeals for the Seventh Circuit

Docket: 19-2425

Opinion Date: June 18, 2020

Judge: ROVNER

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

In 2012, Seaway Bank sued J&A to collect on loans secured by a mortgage on Chicago property. In 2013, the court entered a judgment of foreclosure. The court approved the sale of the mortgaged property and entered a $116,381 deficiency judgment against the guarantor. In 2017, Illinois regulators closed Seaway. The FDIC was appointed as receiver, set a claims bar date, and published notice. J&A filed no timely claims. Months later, J&A filed a Petition to Quash Service in the 2012 state-court lawsuit. J&A argued that once relief was granted, it was entitled to the property. The FDIC removed the proceeding to federal court and moved to stay the proceedings to allow J&A to exhaust the mandatory claims process under the Financial Institutions Reform, Recovery, and Enforcement Act, 12 U.S.C. 1821(d). The court granted the stay; J&A did not submit any claims by the submission deadline. The FDIC moved to dismiss for failure to exhaust the Act's claims process. J&A asserted that the jurisdiction-stripping provision applied only to claims seeking payment from a failed bank and that J&A did not seek payment but only to quash service and vacate void orders; only if the court granted that non-monetary relief could they pursue “possessory relief,” so that the FDIC’s motion was not ripe because they were not yet seeking the return of the property or monetary relief. The Seventh Circuit affirmed dismissal. The district court lacked jurisdiction over the Petition because J&A failed to exhaust administrative remedies.

Carr v. Commissioner, SSA

Court: US Court of Appeals for the Tenth Circuit

Docket: 19-5079

Opinion Date: June 15, 2020

Judge: Scott Milne Matheson, Jr.

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

In separate claims, appellees Willie Carr and Kim Minor sought disability benefits from the Social Security Administration (“SSA”). In each case, the administrative law judge (“ALJ”) denied the claim, and the agency’s Appeals Council declined to review. While his case was pending in district court, the U.S. Supreme Court held that Securities and Exchange Commission (“SEC”) ALJs were “inferior officers” under the Appointments Clause, and therefore must be appointed by the President, a court, or head of the agency. Shortly thereafter, Minor also sued in district court to challenge the denial of benefits in her case. In response to the Supreme Court case, Lucia v. S.E.C., 138 S. Ct. 2044 (2018), the SSA Commissioner appointed the SSA's ALJs to address any Appointments Clause questions Lucia posed. After the Commissioner’s action, Carr and Minor each filed a supplemental brief, asserting for the first time that the ALJs who had rejected their claims had not been properly appointed under the Appointments Clause. The district court upheld the ALJs’ denials of the claims, but it agreed with the Appointments Clause challenges. The court vacated the SSA decisions and remanded for new hearings before constitutionally appointed ALJs. It held that appellees did not waive their Appointments Clause challenges by failing to raise them in their SSA proceedings. On appeal, the Commissioner argued Appellees waived their Appointments Clause challenges by failing to exhaust them before the SSA. The Tenth Circuit agreed with the Commissioner and reversed.

Wild Watershed v. Hurlocker

Court: US Court of Appeals for the Tenth Circuit

Docket: 19-2106

Opinion Date: June 12, 2020

Judge: Timothy M. Tymkovich

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

The United States Forest Service approved two forest thinning projects in the Santa Fe National Forest pursuant to authority granted by a 2014 amendment to the Healthy Forests Restoration Act (HFRA). By thinning the forest and then conducting prescribed burns in the project areas, the Forest Service sought to reduce the risk of high-intensity wildfires and tree mortality related to insects and disease. Certain environmental organizations and individuals (collectively Wild Watershed) challenged the projects’ approval under the Administrative Procedure Act (APA), asserting the Forest Service failed to comply with the National Environmental Policy Act (NEPA) and HFRA. The district court rejected these claims, and the Tenth Circuit concurred, finding the Forest Service adequately considered the projects’ cumulative impacts as well as their potential effects on sensitive species in the area and the development of old growth forest. Accordingly, the Tenth Circuit affirmed the district court.

American Great Lakes Ports Ass'n v. Schultz

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

Docket: 18-5145

Opinion Date: June 16, 2020

Judge: Rao

Areas of Law: Aviation, Government & Administrative Law

The Great Lakes Pilotage Act requires foreign vessels and American vessels participating in foreign trade to hire an American or Canadian maritime pilot to assist in navigating the difficult waters of the Great Lakes. Shippers challenged the pilot rates for the 2016 commercial shipping season under the Administrative Procedure Act (APA). Shippers claimed that the 2016 Rule set an artificially inflated pilot rate that caused significant harm to the industry. The DC Circuit affirmed the district court's decision upholding parts of the 2016 Rule setting higher compensation targets for the pilots. The court also affirmed the district court's holding that several parts of the rule are unsupported by the administrative record. The court held that, although remand without vacatur is the exception rather than the rule, the district court acted within its discretion here, given the disruption likely to occur from reallocating rates paid several years ago.

Friends of Animals v. Bernhardt

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

Dockets: 19-5147, 19-5152

Opinion Date: June 16, 2020

Judge: Laurence Hirsch Silberman

Areas of Law: Environmental Law, Government & Administrative Law

Appellants, conservative organizations and a safari guide, filed suit challenging the Service's actions governing the import of sport-hunted animal trophies from Africa. Initially, appellants challenged certain findings the Service made, the Service then withdrew some findings following the outcome of a similar case, and then the Service announced that in the future it would proceed by informal adjudication. The DC Circuit affirmed the district court's rejection of appellants' claims on appeal, holding that appellants' challenges to the 2017 Zimbabwe findings are moot because the March Memo had already eliminated their legal effects. The court rejected appellants' challenges to the March Memo's withdrawal of more than twenty prior enhancements and on-detriment findings, and held that the district court's approach of evaluating the effect of each withdrawal in the March Memo individually was proper under the circumstances. Finally, the court rejected appellants' argument that it was unlawful for the Service to announce it would proceed in the future to implement the Endangered Species Act through informal adjudication.

Level the Playing Field v. Federal Election Commission

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

Docket: 19-5117

Opinion Date: June 12, 2020

Judge: Arthur Raymond Randolph

Areas of Law: Election Law, Government & Administrative Law

Plaintiffs filed suit alleging that the CPD routinely endorses and supports Republican and Democratic nominees at the expense of third-party candidates, and that the CPD uses subjective and biased criteria for selecting debate participants. Specifically, plaintiffs challenged the 15% polling criterion, which the CPD used to determine eligibility for participation in the debates preceding the 2012 Presidential election. Plaintiffs also challenged the Commission's denial of its request to initiate a rulemaking to change its rules to prohibit debate sponsors from using public opinion polls as a criterion for eligibility. Applying de novo review, the DC Circuit affirmed the district court's grant of summary judgment for the Commission. The court held that plaintiffs failed to show that the Commission's decisionmaking was arbitrary and capricious where the Commission offered detailed explanations in support of its view that plaintiffs failed to show impermissible bias against independent candidates or in favor of candidates from the two major political parties. The court also held that the Commission acted reasonably in determining that a 15% polling threshold is an objective requirement. Finally, because the court has found that the Commission acted reasonably in reaching its decisions, the court held that the Commission did not err by electing not to initiate a rulemaking.

Merck & Co., Inc. v. United States Department of Human and Health Services

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

Docket: 19-5222

Opinion Date: June 16, 2020

Judge: Patricia Ann Millett

Areas of Law: Drugs & Biotech, Government & Administrative Law, Health Law

Drug manufacturers challenged the Department's rule that broadly requires drug manufacturers to disclose in their television advertisements the wholesale acquisition cost of many prescription drugs and biological products for which payment is available under Medicare or Medicaid. The DC Circuit affirmed the district court's judgment in favor of the drug manufacturers, holding that the Department acted unreasonably in construing its regulatory authority to include the imposition of a sweeping disclosure requirement that is largely untethered to the actual administration of the Medicare or Medicaid programs. The court explained that, in the overwhelming majority of cases, the price that the rule compels manufacturers to disclose bears little resemblance to the price beneficiaries actually pay under the Medicare and Medicaid programs. Therefore, the court held that there is no reasoned statutory basis for the Department's far-flung reach and misaligned obligations, and thus the rule is invalid and is hereby set aside.

New York Stock Exchange LLC v. Securities and Exchange Commission

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

Docket: 19-1042

Opinion Date: June 16, 2020

Judge: Harry Thomas Edwards

Areas of Law: Government & Administrative Law, Securities Law

Petitioners filed suit challenging the SEC's adoption of a Pilot Program, Rule 610T, which was designed to gather data so that the Commission might be able to determine in the future whether regulatory action was necessary. The DC Circuit granted the petitions for review, holding that the SEC acted without delegated authority from Congress when it adopted Rule 610T. The court explained that the Pilot Program emanates from an aimless "one-off" regulation, i.e., a rule that imposes significant, costly, and disparate regulatory requirements on affected parties merely to allow the Commission to collect data to determine whether there might be a problem worthy of regulation. In this case, the Commission acted solely to "shock the market" to collect data so that it might ponder the "fundamental disagreements" between parties affected by Commission rules and then consider whether to regulate in the future. The court held that this was an unprecedented action that clearly exceeded the SEC's authority under the Exchange Act. Accordingly, the court vacated the rule and remanded.

Solenex LLC v. Bernhardt

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

Docket: 18-5343

Opinion Date: June 16, 2020

Judge: Patricia Ann Millett

Areas of Law: Environmental Law, Government & Administrative Law

Solenex challenged the Secretary's cancellation of its oil and gas lease in the Badger-Two Medicine Area. The district court ruled in favor of Solenex, concluding that the amount of time that had elapsed between the lease's issuance and its cancellation violated the Administrative Procedure Act (APA) and the Secretary failed to consider Solenex's reliance interests before cancelling the lease. The DC Circuit held that delay by itself is not enough to render the lease cancellation arbitrary and capricious. The court also held that the Secretary did consider, and in fact compensated, Solenex's identified reliance interests. Therefore, the district court's determinations were erroneous and the court vacated the judgment.

Alaska Police Standards Council v. Maxwell

Court: Alaska Supreme Court

Docket: S-17079

Opinion Date: June 12, 2020

Judge: Peter J. Maassen

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

A police officer applied for a Permanent Fund Dividend (PFD) for several years when he was not eligible to receive one. Following an investigation, the Executive Director of the Alaska Police Standards Council petitioned the Council to revoke the officer’s police certificate on the ground that he lacked good moral character. An administrative law judge recommended against revoking the certificate, finding that the officer’s mistakes were not sufficient to demonstrate dishonesty or a lack of respect for the law. The Council, however, concluded that the officer’s hearing testimony - that he would fill out the applications in the same way if he had to do it over again - showed dishonesty and a lack of respect for the law, and it therefore revoked his certificate. The superior court agreed with the administrative law judge’s analysis of the evidence and the law and reversed the Council’s decision. The Council appeals. The Alaska Supreme Court determined the evidence disproportionately supported the finding of the administrative law judge that the police officer’s PFD applications and hearing testimony, while mistaken about the law, were not sufficient to raise substantial doubts about the officer’s good moral character. The Court affirmed the superior court's decision reversing the Council's revocation of the police certificate.

Meyer v. Alaskans for Better Elections

Court: Alaska Supreme Court

Docket: S-17629

Opinion Date: June 12, 2020

Judge: Daniel E. Winfree

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

This appeal arose from the State’s action limiting the people's constitutional right to legislate directly by initiative. A proposed initiative instituting three substantive changes to Alaska's election laws was submitted to the lieutenant governor for review, certification and printing signature booklets. Determining the initiative violated a constitutional requirement that proposed initiative bills be confined to one subject, the lieutenant governor denied certification. The initiative's sponsors filed an action in superior court to challenge that decision. The superior court concluded, contrary to the lieutenant governor, that the initiative's various provisions were confined to the single subject of "election reform" and it accordingly should have been certified. The Court directed the State distribute petition booklets for the sponsors to collect signatures for placing the initiative on a future election ballot. The lieutenant governor and State elections officials appealed the superior court decision. The Alaska Supreme Court determined the superior court correctly adhered to the Supreme Court's prior interpretation of the relevant provisions of the constitution. Furthermore, the Court rejected the request to reverse precedent that the people's power to initiate laws generally was equivalent to that of the legislature.

Traugott v ARCTEC Alaska

Court: Alaska Supreme Court

Docket: S-17126

Opinion Date: June 12, 2020

Judge: Carney

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

Joseph Traugott suffered from with diabetes and a related foot condition, and developed an infection in his foot while working at a remote site. He required extensive medical treatment for his foot and did not work since developing the infection. The Alaska Workers’ Compensation Board decided the worker’s disability and need for medical treatment were compensable based on an expert opinion that work was the sole cause of the condition’s acceleration even if work was not the most significant cause of the worker’s overall condition. The Alaska Workers’ Compensation Appeals Commission reversed, because in its' view, the Board had asked the expert misleading questions. The Commission then concluded, based on a different opinion by the same expert, that the worker had not provided sufficient evidence to support his claim. Traugott appealed, raising issues about the interpretation of the new causation standard adopted in the 2005 amendments to the Alaska Workers’ Compensation Act (Act) and its application to his case. After review, the Alaska Supreme Court reversed the Commission’s decision and remanded for reinstatement of the Board’s award.

Conservatorship of Jose B.

Court: California Courts of Appeal

Docket: B292172(Second Appellate District)

Opinion Date: June 18, 2020

Judge: Feuer

Areas of Law: Government & Administrative Law, Health Law

Objector, a conservatee subject to conservatorship under the Lanterman-Petris-Short Act, contested the petition to reappoint a public guardian as his conservator. On appeal, objector contends the trial court violated Welfare and Institutions Code section 5350, subdivision (d)(2), and denied him due process by failing to commence the jury trial within 10 days of his demand for trial. The Court of Appeal was deeply troubled by the significant delay of over four months in holding a trial on objector's petition, especially given the lack of any justification by the court for most of the delay. The court emphasized the statutory obligation of trial courts to hold a jury trial within 10 days, with only a limited exception for a 15-day continuance if requested by the proposed conservatee. However, the court held that the trial court's failure to commence trial within 10 days of the jury trial demand did not support dismissal of the petition. Rather, the time limit in section 5350, subdivision (d)(2), is directory, not mandatory, because the Legislature has not expressly provided for dismissal of the conservatorship petition if a trial is not held within 10 days. Furthermore, objector was not prejudiced and denied due process. Accordingly, the court affirmed the judgment.

Delgado v. California Department of Motor Vehicles

Court: California Courts of Appeal

Docket: A156708(First Appellate District)

Opinion Date: June 15, 2020

Judge: Tucher

Areas of Law: Government & Administrative Law

Officer Walker, responding to a reported hit and run collision, found the vehicle. Delgado was standing by the driver’s door and acknowledged that she had been driving during the collision, that she had had “ 'two, maybe three’ ” beers during the evening, and that she was still feeling the alcohol's effects. Delgado showed signs of intoxication. Walker administered two breath tests. Both showed a blood-alcohol level of 0.15 percent, nearly twice the legal limit. Walker certified that he was “qualified to operate this equipment and that the test was administered pursuant to the requirements" of the California Code of Regulations. Walker signed a checklist for carrying out the test on the machine. At a continued DMV hearing, Walker did not appear. In response to Delgado's subpoena, the Contra Costa County Laboratory replied that it found no training record for Walker. The hearing officer ordered Delgado’s license suspended for four months. The DMV submitted evidence that Walker had been trained in another county but the trial court ruled in favor of Delgado. The court of appeal reversed. DMV met its initial burden by submitting the pertinent reports. There was no affirmative evidence that the test was not conducted or reported properly, so the burden did not shift to the DMV to show whether official standards were observed.

Golden Door Properties, LLC v. County of San Diego

Court: California Courts of Appeal

Docket: D075328(Fourth Appellate District)

Opinion Date: June 12, 2020

Judge: Joan Irion

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

San Diego County (County) challenged a judgment, writ of mandate, and injunction directing it to set aside its approvals of a Climate Action Plan (2018 CAP or CAP), Guidelines for Determining Significance of Climate Change, and supplemental environmental impact report (SEIR). The primary issue was whether a greenhouse gas (GHG) mitigation measure in the SEIR, called M-GHG-1, was California Environmental Quality Act (CEQA)-compliant. The superior court ordered the County to vacate its approvals of the CAP, Guidelines for Determining Significance, and the certification of the SEIR. The court also enjoined the County from relying on M-GHG-1 during review of greenhouse gas emissions impacts of development proposals on unincorporated County land. The Court of Appeal limited its holding to the facts of this case, particularly M-GHG-1. "Our decision is not intended to be, and should not be construed as blanket prohibition on using carbon offsets—even those originating outside of California—to mitigate GHG emissions under CEQA." The Court held: (1) M-GHG-1 violated CEQA because it contained unenforceable performance standards and improperly defers and delegates mitigation; (2) the CAP was not inconsistent with the County's General Plan; however (3) the County abused its discretion in approving the CAP because the CAP's projected additional greenhouse gas emissions from projects requiring a general plan amendment was not supported by substantial evidence; (4) the SEIR violated CEQA because its discussion of cumulative impacts ignores foreseeable impacts from probable future projects, (b) finding of consistency with the Regional Transportation Plan was not supported by substantial evidence, and (c) analysis of alternatives ignored a smart-growth alternative. The judgment requiring the County to set aside and vacate its approval of the CAP was affirmed because the CAP's greenhouse gas emission projections assumed effective implementation of M-GHG-1, and M-GHG-1 was itself unlawful under CEQA. Except to the extent that (1) the CAP is impacted by its reliance on M-GHG-1; and (2) the CAP's inventory of greenhouse gases was inconsistent with the SEIR, the Court found the CAP was CEQA-compliant.

Lak v. Lak

Court: California Courts of Appeal

Docket: G056784(Fourth Appellate District)

Opinion Date: June 12, 2020

Judge: O'Leary

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

The Orange County Department of Child Support Services (Department) has withdrawn money from Daniel Lak’s (Father) Social Security Disability Insurance benefits (SSDI) to pay for child/spousal support arrears since 2015. Father disputed the Department's authority to withdraw money, and at a hearing, sought reimbursement for overpayments and maintained the Department violated Family Code section 5246 (d)(3) by collecting more than five percent from his SSDI. The court denied Father’s requests and determined the Department could continue withdrawing money from SSDI for support arrears. On appeal, Father maintaned the court misinterpreted the law and failed to properly consider his motion for sanctions. Finding his contentions lack merit, the Court of Appeal affirmed the court’s order the Department did not overdraw money for arrears, Father failed to demonstrate he qualified for section 5246(d)(3)’s five percent rule, and sanctions were not warranted.

State Comp. Ins. Fund v. ReadyLink Healthcare, Inc.

Court: California Courts of Appeal

Docket: D075942(Fourth Appellate District)

Opinion Date: June 12, 2020

Judge: Cynthia Aaron

Areas of Law: Civil Procedure, Contracts, Government & Administrative Law, Insurance Law, Labor & Employment Law

Defendant ReadyLink Healthcare, Inc. (ReadyLink) was a nurse staffing company that placed nurses in hospitals, typically on a short-term basis. Plaintiff State Compensation Insurance Fund (SCIF) was a public enterprise fund created by statute as a workers' compensation insurer. Premiums that SCIF charged were based in part on the employer's payroll for a particular insurance year. SCIF and ReadyLink disputed the final amount of premium ReadyLink owed to SCIF for the 2005 policy year (September 1, 2005 to September 1, 2006). ReadyLink considered certain payments made to its nurses as per diem payments; SCIF felt those should have been considered as payroll under the relevant workers' compensation regulations. The Insurance Commissioner concurred with SCIF's characterization of the payments. A trial court rejected ReadyLink's petition for a writ of administrative mandamus to prohibit the Insurance Commissioner from enforcing its decision, and an appellate court affirmed the trial court's judgment. SCIF subsequently filed the action underlying this appeal, later moving for a judgment on the pleadings, claiming the issue of the premium ReadyLink owed for the 2005 policy year had been previously determined in the administrative proceedings, which was then affirmed after judicial review. The trial court granted SCIF's motion for judgment on the pleadings. On appeal, ReadyLink conceded it previously litigated and lost its challenge to SCIF's decision to include per diem amounts as payroll for the 2005 insurance year, but argued it never had the opportunity to challenge whether SCIF otherwise properly calculated the premium amount that it claims was due pursuant to the terms of the contract between the parties, or whether SCIF's past conduct, which ReadyLink alleged included SCIF's acceptance of ReadyLink's exclusions of its per diem payments from payroll in prior policy years and SCIF's exclusion of per diem amounts in paying out on workers' compensation claims filed by ReadyLink employees, might bar SCIF from being entitled to collect that premium amount under the contract. To this, the Court of Appeal concurred the trial court erred in granting SCIF's motion for judgment on the pleadings. Judgment was reversed, and the matter remanded for further proceedings.

Colorado v. Meagher

Court: Colorado Supreme Court

Citation: 2020 CO 56

Opinion Date: June 15, 2020

Judge: Gabriel

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

The Colorado State Engineer, and the Division Engineer for Water Division 3 (the “Engineers”), brought claims against Nick Meagher for injunctive relief, civil penalties, and costs, arising from Meagher’s failure to submit Form 6.1, "Water Use Data Submittal Form," as required by Rule 6.1 of the Rules Governing the Measurement of Ground Water Diversions Located in Water Division No. 3, The Rio Grande Basin (the “Measurement Rules”). Meagher appealed the water court’s orders denying his motion to dismiss the Engineers’ claims and granting the Engineers summary judgment on those claims, contending the court erred by: (1) denying his motion to dismiss because the Engineers’ claims were mooted by his ultimate submission of Form 6.1; (2) granting summary judgment for the Engineers based on an erroneous interpretation of Rule 6.1 and section 37-92-503, C.R.S. (2019), and notwithstanding the existence of genuine issues of material fact as to his culpable mental state and the amount of the civil penalties to be imposed; (3) enjoining future violations of Rule 6.1; and (4) awarding costs and fees to the Engineers. Finding no reversible error, the Colorado Supreme Court affirmed the water court's judgment.

Travelers Insurance v. Ultimate Logistics, LLC

Court: Idaho Supreme Court - Civil

Docket: 46840

Opinion Date: June 18, 2020

Judge: Roger S. Burdick

Areas of Law: Civil Procedure, Government & Administrative Law, Insurance Law, Labor & Employment Law

Travelers Insurance Co. appealed a district court decision to affirm a final order of the Idaho Department of Insurance in favor of Ultimate Logistics, LLC (“Ultimate”). The Department of Insurance’s final order upheld a hearing officer’s determination that two mechanics working for Ultimate were improperly included in a premium-rate calculation made by Travelers. In its petition for review, Travelers argued the Department of Insurance acted outside the scope of its statutory authority in determining that the mechanics could not be included in the premium-rate calculation. The district court rejected this argument. Finding no reversible error in the district court's order, the Idaho Supreme Court affirmed.

City of Chicago v. Fraternal Order of Police, Chicago Lodge No. 7

Court: Supreme Court of Illinois

Citation: 2020 IL 124831

Opinion Date: June 18, 2020

Judge: Lloyd A. Karmeier

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

The Police Union sued the City of Chicago for failing to destroy records of police misconduct that were more than five years old, as required under the collective bargaining agreement (CBA). An arbitrator held that the CBA should prevail and directed the parties to come to an agreement regarding the destruction of the documents. The circuit court rejected the award. The appellate court agreed, finding requiring the city to destroy all records related to alleged police misconduct without consideration of whether the records have administrative, legal, research, or historical value ignored the requirements of the Local Records Act (50 ILCS 205) and resulted in diminishing the Local Records Commission’s authority to determine what records should be destroyed or maintained. The Illinois Supreme Court affirmed. The arbitration award violated an explicit, well-defined, and dominant public policy. Although the city could comply with the Local Records Act by submitting disciplinary records to the Commission, that is not required under the CBA. Submission to the Commission is only part of the statutory procedures a local government must follow under the Act. The most crucial aspect is compliance with the Commission’s ultimate decision regarding the retention or destruction of the government records.

TOMRA of North America, Inc. v. Dept. of Treasury

Court: Michigan Supreme Court

Docket: 158335

Opinion Date: June 16, 2020

Judge: David F. Viviano

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

Plaintiff TOMRA of North America, Inc., brought two separate actions in the Court of Claims against the Michigan Department of Treasury, seeking a refund for use tax and sales tax that plaintiff had paid on the basis that plaintiff’s sales of container-recycling machines and repair parts were exempt from taxation under the General Sales Tax Act, and the Use Tax Act. Plaintiff moved for summary judgment, seeking a ruling on the question whether plaintiff’s container-recycling machines and repair parts performed, or were used in, an industrial-processing activity. The Court of Claims denied plaintiff’s motion and instead granted summary disposition in favor of defendant, holding that plaintiff’s container-recycling machines and repair parts were not used in an industrial-processing activity and that plaintiff therefore was not entitled to exemption from sales and use tax for the sale and lease of the machines and their repair parts. The Court of Claims found that the tasks that plaintiff’s machines performed occurred before the industrial process began, reasoning that the activities listed in MCL 205.54t(3) and MCL 205.94o(3) were only industrial-processing activities when they occurred between the start and end of the industrial process as defined by MCL 205.54t(7)(a) and MCL 205.94o(7)(a), respectively. Plaintiff appealed, and the Court of Appeals reversed, declining to interpret MCL 205.54t(7)(a) and MCL 205.94o(7)(a) as placing a temporal limitation on the activities listed in MCL 205.54t(3) and MCL 205.94o(3), respectively. To this, the Michigan Supreme Court concurred and affirmed the Court of Appeals. The matter was remanded to the Court of Claims for further proceedings.

Dreyer Electric Co., LLC v. Director of Revenue

Court: Supreme Court of Missouri

Docket: SC98007

Opinion Date: June 16, 2020

Judge: Laura Denvir Stith

Areas of Law: Government & Administrative Law, Tax Law

The Supreme Court reversed the decision of the Administrative Hearing Commission (AHC) that certain equipment purchased by Dreyer Electric Co. was exempt from sales tax because it was "replacement equipment" "used directly in the manufacturing process," as those terms are used in Mo. Rev. Stat. 144.030.2(5), holding that the AHC erred. Specifically, the Supreme Court held (1) the AHC correctly applied the three-factor "integrated plant doctrine" test set out in Floyd Charcoal Co. v. Director of Revenue, 599 S.W.2d 173 (Mo. banc 1980), to determine whether the subject replacement parts and equipment were "used directly in manufacturing"; but (2) the AHC erred in making specific findings as to some parts and then grouping all the parts together, including those it had not mentioned specifically in its decision, to find they were collectively integral to the electrical system that powered the machinery. The Court remanded the case for application of the integrated plant test to each type of replacement part or equipment purchased.

In re Trenton Farms RE, LLC Permit No. MOGS10520

Court: Supreme Court of Missouri

Docket: SC97695

Opinion Date: June 16, 2020

Judge: Patricia Breckenridge

Areas of Law: Agriculture Law, Animal / Dog Law, Government & Administrative Law, Real Estate & Property Law

The Supreme Court affirmed the decision of the clean water commission approving Trenton Farms' permit to establish a twin concentrated animal feeding operation (CAFO), holding that House Bill No. 1713 (HB 1713) does not violate the original purpose, single subject, or clear title requirements of the Missouri Constitution and that there was sufficient evidence regarding the CAFO's protection from a 100-year flood. The clean water commission affirmed the department of natural resource's issuance of a permit to Trenton Farms to establish a CAFO. Hickory Neighbors United, Inc. appealed, arguing (1) HB 1713, which amended Mo. Rev. Stat. 644.021.1 to change the criteria for members of the commission, violated Missouri Constitution article III's original purpose requirement and single subject and clear title requirements; and (2) there was insufficient evidence that CAFO's manure containment structures would be protected from inundation or damages in the event of a 100-year flood, a requirement of 10 C.S.R. 20-8.300. The Supreme Court affirmed, holding (1) HB 1713 is constitutionally valid; and (2) there was sufficient evidence that CAFO structures met regulatory requirements.

Stalowy v. Flathead Conservation District

Court: Montana Supreme Court

Citation: 2020 MT 155

Opinion Date: June 16, 2020

Judge: Beth Baker

Areas of Law: Government & Administrative Law, Real Estate & Property Law

The Supreme Court affirmed the judgment of the district court upholding the declaratory ruling of the Flathead Conservation District asserting jurisdiction over David and Jacqueline Stalowy's dredging project, holding that the district court did not err. The Stalowys applied for permits with the District to conduct dredging activities on their Flathead County property. For the District to have jurisdiction under the Natural Streambed and Land Preservation Act of 1975 (Act), Title 75, chapter 7, Mont. Code Ann., the proposed dredging work must result in a "change in the state" of a "natural, perennial-flowing stream." At issue was whether North Bear Creek and other waterbodies on the Stalowys' property met the definition of a “stream." The District issued a declaratory ruling asserting jurisdiction over the Stalowys' property and projects. The district court affirmed. The Supreme Court affirmed, holding that the District had jurisdiction over the project.

ACLU of PA v. PA State Police

Court: Supreme Court of Pennsylvania

Docket: 66 MAP 2018

Opinion Date: June 16, 2020

Judge: Wecht

Areas of Law: Constitutional Law, Government & Administrative Law

In March of 2017, the American Civil Liberties Union (“ACLU”) filed a Right-to-Know Law (“RTKL”) request with the Pennsylvania State Police (“PSP”) seeking disclosure of PSP’s “complete, un-redacted AR 6-9 regulation, which established policies and procedures for PSP personnel when using social media monitoring software.” The PSP provided the ACLU with “a heavily-redacted nine-page document entitled 'AR 6-9 Real-Time Open-Source-Based Investigation and Research’” (hereinafter, “the Policy”). On April 3, 2017, ACLU filed an appeal and brief with the Office of Open Records ("OOR"), asserting that PSP had not provided a sufficient basis for its invocation of the public safety exception. After an in camera review, OOR characterized the Policy as “describ[ing] best practices, authorization procedures, purposes and limitations for PSP Troopers when using internet resources— including, but not limited to, sites commonly described as 'social media’ sites—in a professional capacity.” OOR characterized PSP as contending that “the disclosure of the record would be reasonably likely to threaten public safety because knowledge of the restrictions and techniques under which PSP Troopers work could permit third parties to more easily evade PSP’s online efforts and hinder PSP’s attempts to investigate criminal matters or perform background checks.” The Commonwealth Court overturned OOR's "reasoned decision", but the Pennsylvania Supreme Court reversed the Commonwealth Court, holding only that the lower court did not conduct an "equally careful inquiry" as OOR: "The Commonwealth Court unnecessarily denied itself the opportunity to conduct the fact-finding that the RTKL asks of it. But because the Commonwealth Court is the ultimate finder of fact under the RTKL, it would be inappropriate for us to step into its place. On remand, the court at a minimum should compare the Affidavit to the provisions of the unredacted Policy that the Affidavit describes. In keeping with its authority under the RTKL, the court also retains discretion to further develop the record." Judgment was vacated and the matter remanded to the Commonwealth Court for further proceedings.

Dana Holding Corp. v. WCAB (Smuck)

Court: Supreme Court of Pennsylvania

Docket: 44 MAP 2019

Opinion Date: June 16, 2020

Judge: Thomas G. Saylor

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

In Protz v. Workers’ Compensation Appeal Board (Derry Area School District), 161 A.3d 827 (2017), the Pennsylvania Supreme Court ruled that a statutory regime per which the duration of workers’ compensation benefits could be curtailed was invalid, since integral terms of the enactment yielded an unconstitutional delegation of legislative power. The issue this case presented for the Court's review concerned the retroactive application of Protz to a scenario in which the pertinent constitutional challenge to the statute was advanced during the course of direct appellate review. In 2000, Appellee David Smuck (“Claimant”) suffered a work-related back injury, for which he received total disability benefits since 2003. Appellant Dana Holding Corporation (“Employer”) requested an IRE pursuant to the then-extant impairment rating regime. Claimant appealed to the Workers’ Compensation Appeal Board (the “WCAB” or the “Board”), and the proceedings before the Board were stayed at Employer’s behest pending the Protz decsion. Ultimately, Claimant's total disability status was reinstated as of the date of the disputed IRE. The Employer appealed, but the Commonwealth Court affirmed, finding Protz did not apply retroactively. The Supreme Court agreed: "a disability modification is not vested when it remains subject to a preserved challenge pursued by a presently aggrieved claimant."

Easton Area Sch. Dist. v. Miller

Court: Supreme Court of Pennsylvania

Docket: 13 MAP 2019

Opinion Date: June 18, 2020

Judge: Dougherty

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

The Pennsylvania Supreme Court granted discretionary review to consider whether the Commonwealth Court erred in determining a school bus surveillance video sought in a request for public records pursuant to the Right-to-Know Law (RTKL) was not exempt from disclosure under the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. 1232g. Rudy Miller, on behalf of The Express Times (collectively, Requester), submitted a RTKL request to the District. Therein, Requester sought information in connection with an incident involving an elementary school teacher who, according to Requester, had roughly physically disciplined a child on a school bus outside of the school. Although its rationale departed from the analysis of the Commonwealth Court, the Supreme Court affirmed the lower court’s order, with instructions to redact students’ images from the video prior to disclosure.

Gass et al. v. 52nd Judicial District

Court: Supreme Court of Pennsylvania

Docket: 118 MM 2019

Opinion Date: June 18, 2020

Judge: Thomas G. Saylor

Areas of Law: Class Action, Government & Administrative Law, Health Law

At issue before the Pennsylvania Supreme Court was a challenge to a local judicial district’s policy prohibiting the use of medical marijuana by individuals under court supervision, such as probationers. Relevant here, the applicable statutory authority, the Pennsylvania Medical Marijuana Act, contained an immunity provision protecting patients from government sanctions. In September 2019, the 52nd Judicial District -- comprised of the Lebanon County Court of Common Pleas (the “District”) -- announced a “Medical Marijuana Policy” under the issuing authority of the president judge. The Policy prohibited “the active use of medical marijuana, regardless of whether the defendant has a medical marijuana card, while the defendant is under supervision by the Lebanon County Probation Services Department.” Petitioners were individuals under the supervision of the Lebanon County probation agency who filed suit in the Commonwealth Court's original jurisdiction to challenge the validity of the Policy in light of the MMA's immunity provision. Separately, Petitioners filed an application for special relief in the nature of a preliminary injunction. Soon thereafter, the Commonwealth Court proceeded, sua sponte, to transfer the case to this Court, concluding that it lacked jurisdiction to grant the requested relief. The District then filed its response in this Court opposing preliminary injunctive relief. It claimed, among other things, that Petitioners were unlikely to prevail on the merits, arguing, inter alia, that the General Assembly didn’t intend the MMA to override the courts’ ability to supervise probationers and parolees. After review, the Pennsylvania Supreme Court granted Petitioners' request for declaratory and injunctive relief. The Policy was deemed to be contrary to the immunity accorded by the MMA, and as such, should not be enforced. "[N]othing impedes a revocation hearing or other lawful form of redress, where there is reasonable cause to believe that a probationer or other person under court supervision has possessed or used marijuana in a manner that has not been made lawful by the enactment."

In the Interest of: D.R.

Court: Supreme Court of Pennsylvania

Docket: 45 WAP 2019

Opinion Date: June 16, 2020

Judge: Mundy

Areas of Law: Family Law, Government & Administrative Law

D.R. (Father) and J.R. (Mother) (collectively, Parents) resided in Greene County, Pennsylvania with their five children, ranging in age from six to sixteen years old. Father was an attorney who, as part of his private practice, represented parents under investigation by Greene County Children and Youth Services (CYS). On October 29, 2018, Greene County CYS received a report that on October 12, 2018, Father was observed to be impaired or under the influence while in the presence of one of his children. Because Father was a practicing attorney in Greene County, and to avoid a conflict of interest, the matter was referred to Fayette County CYS (the Agency). The Agency received three reports regarding Father, one of which was an allegation of abuse towards Mother (criminal charges were dropped because she refused to testify). The Agency thereafter moved to compel Parents' cooperation with a General Protective Services Assessment. Following a hearing, orders directing Parents to permit the Agency into their home to assess the living conditions of the children, and directing Parents to cooperate with the Agency were issued. The court also ordered Father to submit observed urine samples for purposes of drug and alcohol assessments. The orders further noted that Parents’ failure to comply would subject them to sanctions. Parents appealed, and a superior court reversed, finding no link between the alleged abuse and conditions in the home. Further, though there were reports of Father's intoxication, there was no specificity as to the type of impairment or whether such impairment caused the children to be abused or neglected. The Agency argued on appeal that the Superior Court erred in holding that it was without authorization to require urine samples as part of its duty to investigate reports of suspected child abuse. Finding no reversible error in the superior court judgment, the Pennsylvania Supreme Court affirmed.

Geller v. Henry County Board of Education

Court: Tennessee Supreme Court

Docket: W2017-01678-SC-R11-CV

Opinion Date: June 15, 2020

Judge: Kirby

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

The Supreme Court reversed the decision of the court of appeals reversing the judgment of the trial court upholding the transfer of a tenured teacher (Plaintiff), working as a school administrator, to a teaching position because Plaintiff did not have an administrator license, holding that Plaintiff failed to prove that the transfer decision was not made in good faith and was arbitrary, capricious, or improperly motivated. In reversing the trial court, the court of appeals held that a regulation required the director of the school system to review the administrative duties Plaintiff had performed in the past in order to determine whether an administrator license was required, and the director's failure to do so rendered his transfer decision arbitrary and capricious. The Supreme Court reversed, holding (1) Plaintiff pointed to no provision in the Teacher Tenure Act that prevents a school system from establishing instructional leadership by school administrators as a priority; (2) consistent with the school system's priorities, Plaintiff was precluded from having administrative duties in the upcoming school year that involved more than fifty percent instructional leadership absent an administrator license; and (3) consequently, the director's failure to consider Plaintiff's past work did not render the transfer decision either arbitrary or capricious.

GTECH Corp. v. Steele

Court: Supreme Court of Texas

Docket: 18-0159

Opinion Date: June 12, 2020

Judge: Busby

Areas of Law: Contracts, Government & Administrative Law

The Supreme Court concluded that, as to Plaintiffs' fraud claims, GTECH Corporation, a private contractor, would not qualify for derivative sovereign immunity for services it provided to the Texas Lottery Commission even if the Court recognized that doctrine but that GTECH was entitled to immunity from Plaintiffs' allegations of aiding and abetting the Commission's fraud and of conspiracy with the Commission. The Commission contracted with GTECH for instant ticket manufacturing and services. Plaintiffs filed two separate suits alleging that the instructions on a scratch-off lottery ticket mistakenly caused them to believe they had winning tickets. GTECH filed pleas to the jurisdiction, arguing that it was entitled to the Commission's immunity. The Dallas County trial court granted GTECH's plea to the jurisdiction. The Travis County trial court denied the plea. The Dallas Court of Appeals affirmed. The Austin Court of Appeals affirmed in part and reversed in part. The Supreme Court held (1) GTECH was not entitled to immunity from Plaintiffs' fraud claims because the Commission did not control GTECH's choices in writing the game instructions; and (2) GTECH was entitled to immunity from the theories of conspiracy and of aiding and abetting because Plaintiffs must necessarily override the substance of the Commission's underlying decisions in order to impose derivative liability on GTECH.

Lakehaven Water & Sewer Dist. v. City of Federal Way

Court: Washington Supreme Court

Docket: 96585-4

Opinion Date: June 18, 2020

Judge: Debra Stephens

Areas of Law: Government & Administrative Law, Tax Law

The city of Federal Way (City) is a noncharter code city incorporated under Title 35A RCW. To address a budget deficit, the City identified and implemented cost-saving measures, but the spending cuts did not close the deficit. The City thus considered several potential sources of new revenue, including levying an excise tax on water and sewer utilities. The council found it necessary to expand the kinds of excises levied in order to pay for basic municipal services and to meet the budget deficit. In passing the ordinance, the council relied on RCW 35A.82.020, which it concluded gave the City broad authority to impose excises for regulation or revenue regarding all places and kinds of businesses. The issue this case presented for the Washington Supreme Court's review reduced to a decision on a municipal corporation's authority to impose an excise tax on another municipal corporation doing business within its borders. Several water-sewer districts petitioned for declaratory judgment, arguing the City lacked express legislative authority to impose the tax on them. The districts also raised a governmental immunity defense, and further challenged the ordinance on constitutional grounds, arguing it violated both due process vagueness principles and privileges and immunities antifavoritism principles. The parties cross moved for summary judgment, and the superior court granted summary judgment in the City’s favor. The Washington Supreme Court affirmed, finding the legislature granted code cities broad authority to levy excises on all places and kinds of business. "That policy prescription contemplates code cities may choose to exercise their local taxing power by imposing excises for regulation or revenue on the business of providing water-sewer services to ratepayers. We hold the governmental immunity doctrine does not bar the city from taxing the districts because they perform a proprietary function when they engage in this business. As for the districts’ constitutional claims, they lack standing to bring such claims."

W.H. v. Olympia School Dist.

Court: Washington Supreme Court

Docket: 97630-9

Opinion Date: June 18, 2020

Judge: Charles Wiggins

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

The United States District Court for the Western District of Washington certified two questions to the Washington Supreme Court in connection with the meaning of the Washington Law Against Discrimination (WLAD), chapter 49.60 RCW. The federal trial court asked: (1) whether a school district was subject to strict liability for discrimination by its employees in violation of the WLAD; and (2) if yes, then did "discrimination," for the purposes of this cause of action, encompass intentional sexual misconduct, including physical abuse and assault? Gary Shafer was hired by the Olympia School District in 2005 as a school bus driver. It was undisputed that Shafer, during his employment, abused passengers on school buses, including P.H. and S.A., the minor plaintiffs in this case. Plaintiffs sued the school district in federal court, naming multiple defendants, and claiming both state and federal causes of action. Defendants moved for summary judgment, which was granted in part and denied in part. In response to the Washington Supreme Court's decision in Floeting v. Group Health Cooperative, 434 P.3d 39 (2019), plaintiffs successfully moved to amend their complaint to include a claim under the WLAD. The amended complaint alleges that the minor plaintiffs’ treatment constituted sex discrimination in a place of public accommodation. The Supreme Court answered "yes" to both certified questions: a school district may be subject to strict liability for discrimination in places of public accommodation by its employees in violation of the WLAD; and under the WLAD, discrimination can encompass intentional sexual misconduct, including physical abuse and assault.