Some Observations on Calls for Senate Reform: Part One of a Two-Part Series

VIKRAM DAVID AMAR

In this first of a series of columns, Illinois Law dean and professor Vikram David Amar offers four observations about recent calls for reform of the filibuster device in the U.S. Senate. Dean Amar suggests looking at state experiences with supermajority rules, as well as the Senate’s own recent past, and he considers why senators might be reluctant to eliminate the filibuster. He concludes with a comment on President Joe Biden’s suggestion that the Senate return to the “talking filibuster” and praises a suggestion by Senator Tom Harkin (D-IA) that the cloture requirement (currently at 60 votes) could be lowered gradually, the longer a measure under consideration is debated.

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Cuesta-Rojas v. Garland

Court: US Court of Appeals for the First Circuit

Docket: 20-1302

Opinion Date: March 15, 2021

Judge: David J. Barron

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

The First Circuit vacated the judgment of the Board of Immigration Appeals (BIA) affirming the denial of Petitioner's application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT), holding that substantial evidence did not support the BIA's decision. The immigration judge (IJ) determined that Petitioner was not a credible witness and therefore found that he had failed to establish his burden of proof with respect to his application. The BIA dismissed Petitioner's appeal, thus declining to remand the case in light of new evidence submitted for the first time on appeal. The First Circuit vacated the BIA's decision, holding that the IJ's adverse credibility finding was not supportable.

HIRA Educational Services North America v. Augustine

Court: US Court of Appeals for the Third Circuit

Docket: 18-2377

Opinion Date: March 15, 2021

Judge: Hardiman

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

The Pennsylvania Department of General Services (DGS) solicited bids for a Shenango Township Youth Development Center, closed since 2013. HIRA, a consultant for Islamic educational groups, submitted the highest bid, $400,000, planning to establish a youth intervention center and Islamic boarding school. DGS and HIRA entered into a contract. Legislators sent a letter to Governor Wolf, claiming HIRA was not in a financial position to turn the property into an economic driver, that New Jersey had revoked HIRA’s corporate status, that HIRA reported low income, that HIRA had not returned their phone calls, and that contract paperwork remained incomplete. When Governor Wolf did not act, the Legislators spoke with the press and at a community meeting where some participants made comments about Muslims. Lawrence County opened a criminal investigation into the bidding process. The Legislators tried, unsuccessfully, to pass a law divesting DGS of authority to sell the property, then tried to persuade DGS to halt the sale. Shenango Township rezoned the property. The sale fell through. DGS solicited new bids. HIRA offered $500,000; another group offered $2,000,000. Legislators promised to ensure the new purchaser secured funding. HIRA sued the officials, including the Legislators in their individual capacities, citing the Religious Land Use and Institutionalized Persons Act, the Pennsylvania Religious Freedom Protection Act, and 42 U.S.C. 1983. The district court denied the Legislators’ motions to dismiss. The Third Circuit reversed in part. Whether HIRA alleged conduct outside the sphere of legitimate legislative activities or that violates clearly established law is a question of law over which it had jurisdiction. Some of the allegations concerned “quintessentially legislative activities” for purposes of absolute immunity. Other allegations fell “well short of showing that the rights [HIRA] seeks to vindicate here were clearly established” for purposes of qualified immunity.

Guardian Flight LLC v. Godfread

Court: US Court of Appeals for the Eighth Circuit

Dockets: 19-1343, 19-1381

Opinion Date: March 17, 2021

Judge: Roger Leland Wollman

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

At issue in this case are two provisions of North Dakota Senate Bill 2231. The first prohibits air ambulance providers from directly billing out-of-network insured patients for any amount not paid for by their insurers (the payment provision). The second prohibits air ambulance providers or their agents from selling subscription agreements (the subscription provision). Guardian Flight filed a declaratory judgment action claiming that both provisions are preempted under the Airlines Deregulation Act (ADA). Defendants responded that, even if preempted, the provisions were saved under the McCarran-Ferguson Act. The district court concluded that although the ADA preempted both provisions, the McCarran-Ferguson Act saved the subscription provision. The Eighth Circuit agreed with the district court's ADA preemption analysis and concluded that the ADA preempts both the payment provision and the subscription provision. However, the court held that the McCarran-Ferguson Act does not apply because the provisions were not enacted "for the purpose of regulating the business of insurance." Accordingly, the court affirmed in part, reversed in part, and remanded with instructions.

Awuku-Asare v. Garland

Court: US Court of Appeals for the Tenth Circuit

Docket: 19-9516

Opinion Date: March 16, 2021

Judge: Moritz

Areas of Law: Government & Administrative Law, Immigration Law

Petitioner Daniel Awuku-Asare appealed a Board of Immigration Appeals (BIA) decision to affirmed his removal order. Awuku-Asare entered the country on a nonimmigrant F-1 visa and could lawfully remain in the United States so long as he complied with the conditions of his visa. Relevant here, maintaining an F-1 visa status requires maintaining a full course of study at an approved educational institution. But Awuku-Asare did not comply with this full-course-of-study requirement because he was incarcerated for approximately 13 months for a crime of which he was ultimately acquitted. In an issue of first impression for the Tenth Circuit, Awuku-Asare argued that “the failure to maintain status must be attributable to the nonimmigrant to render him [removable],” and that because of circumstances beyond his control caused the lapse in his status, he was not removable. The Tenth Circuit determined the plain meaning of the relevant statute did not support Awuku-Asare's interpretation, therefore his arguments were rejected and the BIA's decision affirmed.

Blanca Telephone Company v. FCC

Court: US Court of Appeals for the Tenth Circuit

Docket: 20-9510

Opinion Date: March 15, 2021

Judge: Timothy M. Tymkovich

Areas of Law: Communications Law, Government & Administrative Law, Utilities Law

Blanca Telephone Company was a rural telecommunications carrier based in Alamosa, Colorado. To be profitable, Blanca must rely in part upon subsidies from the Universal Service Fund (USF), a source of financial support governed by federal law and funded through fees on telephone customers. And in order to receive subsidies from the USF, Blanca must abide by a complex set of rules governing telecommunications carriers. The Federal Communications Commission began an investigation in 2008 into Blanca’s accounting practices, and identified overpayments Blanca had received from the USF between 2005 and 2010. According to the FCC, Blanca improperly claimed roughly $6.75 million in USF support during this period for expenses related to providing mobile cellular services both within and outside Blanca’s designated service area. Blanca was entitled only to support for “plain old telephone service,” namely land lines, and not for mobile telephone services. The FCC issued a demand letter to Blanca seeking repayment. to Blanca seeking repayment. The agency eventually used administrative offsets of payments owed to Blanca for new subsidies to begin collection of the debt. Blanca objected to the FCC’s demand letter and sought agency review of the debt collection determination. During agency proceedings, the FCC considered and rejected Blanca’s objections. Before the Tenth Circuit, Blanca challenged the FCC’s demand letter. And Blanca claimed the FCC's decision should have been set aside because: and subsequent orders on a number of grounds. Blanca claims the FCC’s decision should be set aside because: (1) it was barred by the relevant statute of limitations; (2) it violated due process; and (3) it was arbitrary and capricious. The Tenth Circuit concluded the FCC’s debt collection was not barred by any statute of limitations, Blanca was apprised of the relevant law and afforded adequate opportunity to respond to the FCC’s decision, and the FCC was not arbitrary and capricious in its justifications for the debt collection. Accordingly, the Court affirmed the FCC.

Kapur v. Federal Communications Commission

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

Docket: 20-1047

Opinion Date: March 16, 2021

Judge: Walker

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

The Kapurs invested $300,000 in KAXT-CD, a Bay Area TV station, for 42% ownership in the Seller. In 2013, over the Kapurs' objections, the Seller proceeded with a $10.1 million sale of assets to First Buyer, which applied for the station’s FCC license. The Kapurs opposed that application, arguing that arbitration concerning the sale was ongoing. The arbitrator found that the sale did not require unanimity. The Kapurs unsuccessfully appealed in California state court and pressed on at the FCC, attacking the First Buyer’s qualifications under the “public interest” standard. The FCC concluded that the Kapurs’ allegations did not warrant a hearing and approved the application. In 2017, First Buyer sold the station to TV-49, Inc. for $2 million. The Kapurs opposed TV-49’s FCC license assignment application, arguing that First Buyer lacked the qualifications to buy the “license in the first place.” They did not challenge TV-49’s qualifications. The FCC approved the application. The D.C. Circuit dismissed an appeal for lack of standing. Even if the Kapurs prevailed on their claim of entitlement to a character hearing, they have not shown any likelihood that the FCC would find that First Buyer was of bad character or, even if it did, that it would order the unwinding of both sales and return of the station to the Seller. Nothing would stop the Seller from selling to someone else.

Akpeneye v. United States

Court: US Court of Appeals for the Federal Circuit

Docket: 20-1622

Opinion Date: March 15, 2021

Judge: Timothy B. Dyk

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

Pentagon Force Protection Agency officers filed claims for overtime compensation under the Fair Labor Standards Act, 29 U.S.C. 207(a)(1). Officers worked 8.5-hour shifts, with two 35-minute breaks, and were compensated for their entire shift except for one 30-minute meal period. Plaintiffs argue that they did not receive a bona fide meal period because they were required to work during breaks; they were not allowed to leave the Pentagon or remove their uniforms, nor to congregate in public or publicly engage in leisure activities. While on break, they had to remain ready to respond to emergencies, which occurred frequently. If an officer responded to an emergency during both break periods (unable to take a bona fide meal break), an overtime request was granted for one break period. Officers were to constantly monitor their radios and respond to questions from other employees or members of the public, which occurred frequently but could be avoided by going to a break room. They often used breaks for processing paperwork, completing mandatory training courses online, and refueling Pentagon vehicles. The Federal Circuit affirmed summary judgment in favor of the government. The Claims Court properly used the predominant benefit test and considered whether the employees were required to perform any “substantial duties” or give up a “substantial measure” of time and effort during a meal break, correctly focusing on “actual obligations,” rather than witness characterization. In the totality of the circumstances, Plaintiffs were the primary beneficiaries of their meal breaks.

Ahtna, Inc. v. Alaska, Department of Transportation & Public Facilities, et al.

Court: Alaska Supreme Court

Docket: S-17496

Opinion Date: March 12, 2021

Judge: Carney

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

The State of Alaska claimed the right under Revised Statute 2477 (RS 2477) to clear land and permit the use of boat launches, camping sites, and day use sites within an alleged 100-foot right of way centered on a road on land belonging to an Alaska Native corporation, Ahtna, Inc. Ahtna sued, arguing that its prior aboriginal title prevented the federal government from conveying a right of way to the State or, alternatively, if the right of way existed, that construction of boat launches, camping sites, and day use sites exceeded its scope. After years of litigation and motion practice the superior court issued two partial summary judgment orders: (1) holding as a matter of law that any preexisting aboriginal title did not disturb the State’s right of way over the land; and (2) holding as a matter of law that the right of way was limited to ingress and egress. To these orders, the Alaska Supreme Court concluded the superior court did not err, therefore affirming both grants of partial summary judgment.

Creekside Limited Partnership, et al. v. Alaska Housing Finance Corporation

Court: Alaska Supreme Court

Docket: S-17517

Opinion Date: March 12, 2021

Judge: Daniel E. Winfree

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

A project developer that used state-allocated federal tax credits for a low-income housing project sued the state housing authority, asserting an option to eliminate a contractual obligation to maintain the project as low-income housing for 15 years beyond the initial 15-year qualifying period. The superior court granted summary judgment in favor of the housing authority, and the developer appealed several aspects of the court’s ruling. After review of the superior court record, the Alaska Supreme Court concluded that court correctly interpreted the relevant statutes and contract documents, and correctly determined there were no material disputed facts about the formation of the parties’ agreements.

Davis v. Kelley

Court: Arkansas Supreme Court

Citation: 2021 Ark. 63

Opinion Date: March 18, 2021

Judge: Womack

Areas of Law: Criminal Law, Government & Administrative Law

The Supreme Court affirmed the judgment of the circuit court dismissing Appellant's petition for a writ of mandamus with prejudice under Ark. R. Civ. P. 12(b)(6), holding that the circuit court did not abuse its discretion. Appellant was convicted of first degree murder and sentenced to life imprisonment. In 2010, Appellant submitted a request to the Arkansas State Crime Laboratory regarding DNA testing. The circuit court ordered the crime lab to release the information. When the file arrived at the prison, it was confiscated by prison officials based on their determination that it contained contraband. In 2019, Appellant filed a petition for writ of mandamus and complaint for conversion seeking to compel Appellees to release his crime lab file and monetary damages for conversion. The circuit court dismissed the case with prejudice and issued a strike. The Supreme Court affirmed, holding that the circuit court correctly dismissed Appellant's petition for writ of mandamus and complaint for conversion on the ground that Appellant had already obtained the crime lab file and that Appellant failed to state a claim upon which relief could be granted.

Collondrez v. City of Rio Vista

Court: California Courts of Appeal

Docket: A159246(First Appellate District)

Opinion Date: March 16, 2021

Judge: Petrou

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

Rio Vista Officer Collondrez responded to a hit-and-run accident. According to an internal affairs investigation, Collondrez falsified his report, arrested a suspect without probable cause, used excessive force, applied a carotid control hold on the suspect, and failed to request medical assistance. After hearings, the city agreed to pay Collondrez $35,000. Collondrez resigned. The agreement provides that Collondrez's disciplinary reports will only be released as required by law or upon legal process issued by a court of competent jurisdiction, after written notice to Collondrez. Penal Code section 832.71 was subsequently amended to require the disclosure of police officer personnel records concerning sustained findings of dishonesty or making false reports. The city responded to media requests under the Public Records Act for records, giving Collondrez prior notice of only some of the disclosures. Media outlets reported the misconduct allegations. His then-employer, Uber, fired Collondrez. Collondrez sued. The trial court partially granted the city’s to strike the complaint under California’s anti-SLAPP statute, Code of Civil Procedure 425.16, finding that Collondrez had shown a probability of prevailing on his claims for breach of contract and invasion of privacy but not on claims for interference with prospective economic advantage and intentional infliction of emotional distress. The court of appeal reversed in part, in favor of the city. The complaint arises from speech protected by the anti-SLAPP statute, but the trial court erred in finding Collondrez established a likelihood of prevailing two counts.

Rush v. State Teachers' Retirement System

Court: California Courts of Appeal

Docket: A160558(First Appellate District)

Opinion Date: March 18, 2021

Judge: Pollak

Areas of Law: Government & Administrative Law, Public Benefits

Rush retired in 2012. The California State Teachers Retirement System (CalSTRS) calculated his pension as 92.58 percent of his final compensation. Rush disputed the determination of his “final compensation,” defined as “the highest average annual compensation earnable by a member during any period of 12 consecutive months” For 12 consecutive months over portions of two school years, Rush served as an associate dean at a salary significantly higher than his salary during the other portions of those years. CalSTRS applied Education Code section 22115(d): If a member worked at least 90 percent of a school year at the higher pay rate, compensation earnable was to be calculated as if the member earned all service credit for the year at the higher rate. If the member worked less than 90 percent of the year at the higher rate, as Rush did, compensation earnable “shall be the quotient obtained when creditable compensation paid in that year is divided by the service credit for that year.” The court of appeal upheld CalSTRS’s calculation as within the range of reasonable statutory construction.

Vendor Surveillance Corporation v. Henning

Court: California Courts of Appeal

Docket: D076079(Fourth Appellate District)

Opinion Date: March 18, 2021

Judge: Dato

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

Vendor Surveillance Corporation (VSC) appealed an adverse judgment in its action seeking refund unemployment insurance taxes assessed by the California Employment Development Department (EDD). The outcome turned on whether project specialists hired by VSC between January 1, 2011 and December 31, 2013 (the audit years) were classified as employees or independent contractors. The issue presented by this appeal was one of first impression: whether in making that determination, the trial court should apply (1) the ABC test announced in Dynamex Operations W. v. Superior Court, 4 Cal.5th 903, (2018); or instead (2) the Borello factors (S.G. Borello & Sons, Inc. v. Department of Industrial Relations, 48 Cal.3d 341 (1989). "With little case law for guidance and an eye on appeal," the trial court analyzed the evidence alternatively under each standard and determined that project specialists were VSC’s employees. The Court of Appeal held that Borello provided the applicable standard in assessing unemployment insurance taxes during the audit years. Because the court’s findings under that standard were supported by substantial evidence and its qualitative weighing of the Borello factors was an appropriate exercise of the court’s discretion, the Court of Appeal affirmed.

Markwell v. Cooke

Court: Colorado Supreme Court

Citation: 2021 CO 17

Opinion Date: March 15, 2021

Judge: Samour

Areas of Law: Constitutional Law, Government & Administrative Law

The issue this case presented for the Colorado Supreme Court's review centered on whether uploading the text of a bill to multiple computers and using automated software to simultaneously give voice to different portions of the bill at a speed of about 650 words per minute, complied with the the Colorado Constitution, article V, section 22: “Every bill shall be read by title when introduced, and at length on two different days in each house; provided, however, any reading at length may be dispensed with upon unanimous consent of the members present.” The Colorado Supreme Court concluded the software solution was not constitutional: "There are unquestionably different ways by which the legislature may comply with the reading requirement. But the cacophony generated by the computers here isn’t one of them. And while we have no business dictating the specifics of how the legislature might comply with the reading requirement, it is our prerogative and responsibility to declare that the legislature did not comply with that requirement in this case." The Court concurred with the district court's determination that the "unintelligible" sounds produced by the computers did not fulfill the reading requirement. But the Court affirmed in part and reversed in part because it concluded it was not within the district court's domain to dictate the form or manner by which the legislature may comply with the reading requirement. "By prescribing how the legislature must comply with the reading requirement, the district court trespassed upon the separation-of-powers tenet so essential to our constitutional system of government."

Duke v. Georgia

Court: Supreme Court of Georgia

Docket: S20A1522

Opinion Date: March 15, 2021

Judge: Harold D. Melton

Areas of Law: Constitutional Law, Criminal Law, Government & Administrative Law, Legal Ethics

In 2017, a grand jury indicted Ryan Duke for malice murder and related offenses in connection with the October 2005 death of Tara Grinstead. For approximately 17 months, Duke was represented by a public defender from the Tifton Judicial Circuit’s Public Defender’s Office. Then, in August 2018, Duke’s public defender withdrew from representation and John Merchant and Ashleigh Merchant filed an entry of appearance, indicating that they were representing Duke pro bono. The Georgia Supreme Court granted interlocutory review in this case to determine whether the trial court erred in determining whether Duke had neither a statutory right under the Indigent Defense Act of 2003, nor a constitutional right to state-funded experts and investigators needed to prepare a defense, notwithstanding private counsel as his representation. Contrary to the trial court’s conclusion, the Supreme Court found the IDA allowed an indigent defendant to obtain such ancillary defense services through a contract between pro bono counsel and either the Georgia Public Defender Council (“GPDC”) or the appropriate circuit public defender. Consequently, the Supreme Court reversed the judgment of the trial court in part, and remanded for further proceedings.

Clear Channel Outdoor, Inc. v. Department of Finance of Baltimore City

Court: Maryland Court of Appeals

Docket: 9/20

Opinion Date: March 15, 2021

Judge: Robert N. McDonald

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

The Court of Appeals affirmed the denial of Clear Channel Outdoor, Inc.'s request for a refund of the taxes that it paid pursuant to a Baltimore City ordinance for the privilege of selling advertising on billboards that are not located on the premises where the goods or services being advertised were offered or sold, holding that the ordinance is constitutional. Clear Channel, which was in the business of selling advertising on its billboards in Baltimore City, sought a refund from the City Director of Finances of the taxes it paid pursuant to the city ordinance at issue. Clear Channel claimed that the ordinance was unconstitutional under the First and Fourteenth Amendments and Article 40 of the Maryland Declaration of Rights. The City denied a refund, and the Maryland Tax Court affirmed. The circuit court and court of appeals affirmed. The Supreme Court affirmed, holding that the ordinance survives the application of a rational basis test and, accordingly, is constitutional.

Williams v. City of Batesville

Court: Supreme Court of Mississippi

Citation: 2019-CA-01300-SCT

Opinion Date: March 18, 2021

Judge: Beam

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

Sherry Williams sued the City of Batesville, Mississippi for negligence in maintaining its sewer system after her home and property were flooded by raw sewage. The circuit court granted the City’s summary-judgment motion, finding the City immune from suit. After review, the Mississippi Supreme Court determined that because Williams could possibly prove a set of facts under the MTCA for actions by the City that were not exempt from immunity, therefore the circuit court erred in dismissing the claims of basic negligence. Furthermore, the Court held the trial court erred by granting judgment in favor of the City as to the Williams' inverse-condemnation claim. The matter was remanded for further proceedings.

Debuff v. Montana Department of Natural Resources & Conservation

Court: Montana Supreme Court

Citation: 2021 MT 68

Opinion Date: March 16, 2021

Judge: James A. Rice

Areas of Law: Environmental Law, Government & Administrative Law

The Supreme Court reversed in part and affirmed in part the order of the Montana Water Court reversing the order of the Montana Department of Natural Resources and Conservation (DNRC) denying Daniel and Sandra DeBuff's amended application for a beneficial water use permit, holding that the application satisfied the statutory criteria for a preliminary determination and may move forward to face objections. Specifically, the Supreme Court held (1) DNRC did not improperly relied upon either a geologic map or a 1987 final order in making its determination; (2) the Water Court erred by holding that DNRC's determination that the source aquifer was not discontinuous was clearly erroneous; (3) the Water Court correctly determined that DNRC's failure to consider evapotranspiration evidence provided by DeBuff was arbitrary and capricious; and (4) DNRC's determination that the water was not legally available and would have an adverse effect on senior appropriators was arbitrary and capricious.

Christopherson v. Nebraska Dept. of Health & Human Servs.

Court: Nebraska Supreme Court

Citation: 308 Neb. 610

Opinion Date: March 12, 2021

Judge: Lindsey Miller-Lerman

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

The Supreme Court affirmed the order of the district court affirming the decision of the State Personnel Board determining that an award of "front pay," commonly viewed as money awarded in lieu of employment reinstatement, was not appropriate, holding that there were no errors in the record. After the Nebraska Department of Health and Human Services (DHHS) terminated Appellant's job as a health program manager, Appellant challenged the termination. Appellant sought lost wages, including lost benefits, front pay, and back pay. DHHS eventually withdrew the allegations against Appellant but contested his claim for front pay. The district court concluded that the Personnel Board lacked authority to grant the equitable relief of front pay. The Supreme Court affirmed, holding that the district court did not err when it found that Appellant could be reinstated and, therefore, Appellant's claim for front pay was properly denied.

Colwell v. Managed Care of North America

Court: Nebraska Supreme Court

Citation: 308 Neb. 597

Opinion Date: March 12, 2021

Judge: Stacy

Areas of Law: Government & Administrative Law, Public Benefits

In these consolidated appeals, the Supreme Court affirmed the district court's dismissal of separate actions challenging the Nebraska Department of Health and Human Services' (DHHS) denial of an administrative appeal hearing, holding that the district court correctly determined that the hearing request was untimely submitted to DHHS under the governing regulation. Robert Colwell, DDS, P.C., was a Nebraska corporation through which Colwell (collectively, Colwell) provided medical services. Colwell entered into an agreement with Managed Care of North America (MCNA), which provided managed care services to Nebraska's Medicaid program, agreeing to provide dental services for individuals enrolled in Nebraska Medicaid. When MCNA allegedly failed to compensate Colwell for covered services, Colwell filed one action challenging the MCNA's decision to terminate the Medicaid provider agreement with Colwell. In this action, Colwell filed a request for a fair hearing with DHHS, which DHHS denied and dismissed. Colwell then filed another action challenging the DHHS order of dismissal. The district court dismissed both appeals for lack of subject matter jurisdiction. The Supreme Court affirmed, holding that Colwell's request for a hearing before DHHS was not timely filed within ninety days of the "date of the action."

State ex rel. Walker v. LaRose

Court: Supreme Court of Ohio

Citation: 2021-Ohio-825

Opinion Date: March 17, 2021

Judge: Per Curiam

Areas of Law: Government & Administrative Law

The Supreme Court denied a writ of mandamus sought by Relators compelling Respondents - the Ohio Secretary of State, the Medina County Board of Elections, and the City of Medina - to change the ballot language of a local issue on the May 4, 2021 primary-election ballot, holding that there was no abuse of discretion. In this case arising out of the City's efforts to move the Medina Municipal Court to the Medina County courthouse building and citizen opposition to those efforts, Relators filed a complaint seeking a writ of mandamus to compel Respondents to amend the ballot language for Ordinance No. 222-20, as Relators requested. The Supreme Court denied the writ, holding (1) Relators failed to show that the Secretary of State and the City were proper respondents for the relief they sought; and (2) the Board did not abuse its discretion or disregard applicable law in approving the ballot language.

Scherich v. Wheeling Creek Watershed Protection & Flood Prevention Commission

Court: Supreme Court of Appeals of West Virginia

Docket: 19-1065

Opinion Date: March 15, 2021

Judge: Armstead

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

The Supreme Court reversed the order of the circuit court dismissing the underlying eminent domain action, holding that the sua sponte dismissal of this action without notice and an opportunity to be heard required reversal of the circuit court's order. In 1990, Respondent, the Wheeling Creek Watershed Protection and Flood Prevention Commission, filed a condemnation proceeding against Petitioners' property. In 1991, Respondent received right of entry and Petitioners received Respondent's statement of just compensation. The matter lay dormant until 2018 when Petitioners filed a motion for further proceedings to determine just compensation. The circuit court (1) concluded that estoppel, laches, and applicable statutes of limitation or repose prevented Petitioners from resurrecting the matter; and (2) sua sponte found that Petitioners' withdrawal of Respondent's estimate of just compensation without further proceedings until now was sufficient proof of accord and satisfaction. The Supreme Court reversed, holding (1) the circuit court erred by failing to notify the parties of its intent to dispose of the matter and provide them a meaningful opportunity to respond and be heard; and (2) none of the doctrines espoused by the circuit court to preclude further prosecution prevented Petitioners from resurrecting this matter.

Smith v. Van Meter

Court: Supreme Court of Appeals of West Virginia

Docket: 19-0679

Opinion Date: March 15, 2021

Judge: Walker

Areas of Law: Government & Administrative Law

The Supreme Court reversed the judgment of the circuit court dismissing Petitioner's complaint for declaratory and injunctive relief seeking to prohibit Respondents from enforcing any policy restricting the use of devices to make a recording of public documents, holding that the circuit court erred. Respondents in this case were Grant County Circuit Clerk Angela Van Meter, the Grant County Circuit Clerk's Office, and the Grant County Commission. Petitioner planned to photograph several documents in the public file at the Grant County Circuit Clerk's Office, but he was instructed that he would be required to pay a one dollar fee per page for each photograph. Petitioner then brought this action. The circuit court ruled that W. Va. Code 59-1-11(b)(2) permitted the circuit clerk's office to impose the fee for photographs taken of public documents. The Supreme Court reversed, holding that the clear language of the statute limits limits the imposition of the statutory per-page fee to papers made by the clerk and does not apply to photographs taken by an individual member of the public.

Applegate-Bader Farm, LLC v. Wisconsin Department of Revenue

Court: Wisconsin Supreme Court

Docket: 2018AP001239

Opinion Date: March 16, 2021

Judge: Patience Drake Roggensack

Areas of Law: Environmental Law, Government & Administrative Law

The Supreme Court reversed the decision of the court of appeals affirming the circuit court's grant of summary judgment to the Department of Revenue and determining that Applegate-Bader Farm, LLC did not raise a claim that triggered judicial review, holding that Applegate met its threshold burden to show that there was an environmental injury. Applegate challenged the Department's decision not to prepare an Environmental Impact Statement (EIS) under the Wisconsin Environmental Police Act (WEPA) when it promulgated the administrative rule set out in Wis. Admin. Code Tax 18.05(1)(d). The court of appeals affirmed the circuit court's dismissal, holding that Applegate had not raised a bona fide claim because it alleged only indirect environmental effects. The Supreme Court reversed, holding (1) administrative agencies must consider indirect, along with direct, environmental effects of their proposed rules when deciding whether to prepare an EIS; and (2) the Department failed to comply with WEPA.

2 Crooked Creek, LLC v. Cass Cty. Treas.

Court: Michigan Supreme Court

Docket: 159856

Opinion Date: March 16, 2021

Judge: Brian K. Zahra

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

2 Crooked Creek, LLC (2CC) and Russian Ferro Alloys, Inc. (RFA) filed an action against the Cass County Treasurer, seeking to recover monetary damages under the Michigan General Property Tax Act (the GPTA) in connection with defendant’s foreclosure of certain property. In 2010, 2CC purchased property for development, but failed to pay the 2011 real-property taxes and, in 2013, forfeited the property to defendant. From January through May 2013, defendant’s agent, Title Check, LLC, mailed via first-class and certified mail a series of notices to the address listed in the deed. The certified mail was returned as “Unclaimed—Unable to Forward,” but the first-class mail was not returned. Meanwhile, 2CC constructed a home on the property, obtaining a mortgage for the construction from RFA. A land examiner working for Title Check visited the property; determined it to be occupied; and being unable to personally meet with any occupant, posted notice of the show-cause hearing and judicial-foreclosure hearing on a window next to the front door of the newly constructed home. Title Check continued its notice efforts through the rest of 2013 and into 2014, mailing various notices as well as publishing notice in a local newspaper for three consecutive weeks. After no one appeared on 2CC’s behalf at the show-cause hearing or the 2014 judicial-foreclosure hearing, the Cass Circuit Court entered the judgment of foreclosure. The property was not redeemed by the March 31, 2014 deadline, and fee simple title vested with defendant. 2CC learned of the foreclosure a few weeks later. In July 2014, 2CC moved to set aside the foreclosure judgment on due-process grounds. These efforts failed because the circuit court concluded defendant’s combined efforts of mailing, posting, and publishing notice under the GPTA provided 2CC with notice sufficient to satisfy due process. In an unpublished per curiam opinion, the Court of Appeals affirmed. 2CC moved to set aside the foreclosure judgment, filing a separate action in the Court of Claims for monetary damages under MCL 211.78l(1), alleging it had not received any notice required under the GPTA. After a bench trial at the Court of Claims and at the close of 2CC’s proofs, the court granted an involuntary dismissal in favor of defendant, holding, in relevant part, that 2CC had received at least constructive notice of the foreclosure proceedings when the land examiner posted notice on the home. 2CC appealed as of right, and the Court of Appeals also affirmed. Finding no reversible error, the Michigan Supreme Court affirmed too.