Latest 27 Cases This Week: Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania (U.S.), Trump v. Mazars USA, LLP (U.S.), Trump v. ...

A Modest Proposal: A Heartbeat Bill for Those Who Don’t Wear Masks

MARCI A. HAMILTON

University of Pennsylvania professor Marci A. Hamilton draws upon a strategy used by anti-abortion advocates in suggesting a way to encourage (or coerce) more people into wearing masks to avoid the spread of COVID-19. Hamilton proposes requiring persons who opt not to wear a mask in public (1) to watch, on a large screen, an adult's beating heart for 30 seconds, and (2) to be read a statement about how their decision unreasonably endangers others.

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Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania

Court: US Supreme Court

Docket: 19-431

Opinion Date: July 8, 2020

Judge: Clarence Thomas

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

The Patient Protection and Affordable Care Act of 2010 (ACA) requires covered employers to provide women with “preventive care and screenings” without cost-sharing requirements and relies on Preventive Care Guidelines “supported by the Health Resources and Services Administration” (HRSA) to define “preventive care and screenings,” 42 U.S.C. 300gg–13(a)(4). Those Guidelines mandate that health plans cover all FDA-approved contraceptive methods. When the Federal Departments incorporated the Guidelines, they gave HRSA the discretion to exempt religious employers from providing contraceptive coverage. Later, the Departments promulgated a rule accommodating qualifying religious organizations, allowing them to opt out of coverage by self-certifying that they met certain criteria to their health insurance issuer, which would then exclude contraceptive coverage from the employer’s plan and provide participants with separate payments for contraceptive services without any cost-sharing requirements. In its 2014 “Hobby Lobby” decision, the Supreme Court held that the contraceptive mandate substantially burdened the free exercise of closely-held corporations with sincerely held religious objections. In a later decision, the Court remanded challenges to the self-certification accommodation so that the parties could develop an approach that would accommodate employers’ concerns while providing women full and equal coverage. The Departments then promulgated interim final rules. One significantly expanded the church exemption to include an employer that objects, based on its sincerely held religious beliefs, to coverage or payments for contraceptive services. Another created an exemption for employers with sincerely held moral objections to providing contraceptive coverage. The Third Circuit affirmed a preliminary nationwide injunction against the implementation of the rules. The Supreme Court reversed. The Departments had the authority under the ACA to promulgate the exemptions. Section 300gg–13(a)(4) states that group health plans must provide preventive care and screenings “as provided for” in comprehensive guidelines, granting HRSA sweeping authority to define that preventive care and to create exemptions from its Guidelines. Concerns that the exemptions thwart Congress’ intent by making it significantly harder for women to obtain seamless access to contraception without cost-sharing cannot justify supplanting that plain meaning. “It is clear ... that the contraceptive mandate is capable of violating the Religious Freedom Restoration Act.” The rules promulgating the exemptions are free from procedural defects.

Trump v. Mazars USA, LLP

Court: US Supreme Court

Docket: 19-715

Opinion Date: July 9, 2020

Judge: John G. Roberts, Jr.

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

Committees of the U. S. House of Representatives issued subpoenas seeking information about the finances of President Trump, his children, and affiliated businesses. The subpoenas were issued to financial institutions and the President’s personal accounting firm. The President in his personal capacity, his children, and affiliated businesses argued that the subpoenas lacked a legitimate legislative purpose and violated the separation of powers. The President did not argue that any of the requested records were protected by executive privilege. The Supreme Court vacated decisions by the D.C. Circuit and the Second Circuit and remanded. The courts below did not take adequate account of the significant separation of powers concerns implicated by congressional subpoenas for the President’s information. A congressional subpoena is valid only if it is “related to, and in furtherance of, a legitimate task of the Congress” and serves a “valid legislative purpose.” Congress may not issue a subpoena for the purpose of “law enforcement,” because that power is assigned to the Executive and the Judiciary. While executive privilege protections should not be transplanted to cases involving nonprivileged, private information, a limitless subpoena power could transform the established practice of the political branches and allow Congress to aggrandize itself at the President’s expense. The subpoenas at issue represent not a run-of-the-mill legislative effort but rather a clash between rival branches of government over records of intense political interest. Separation of powers concerns are no less palpable because the subpoenas were issued to third parties. A balanced approach is necessary to address those concerns. Courts should carefully assess whether the asserted legislative purpose warrants the significant step of involving the President and his papers. Congress may not rely on the President’s information if other sources could reasonably provide Congress the information it needs in light of its particular legislative objective. Courts should insist on a subpoena no broader than reasonably necessary to support Congress’s legislative objective and should be attentive to the nature of the evidence that a subpoena advances a valid legislative purpose. Courts should assess the burdens imposed on the President and incentives to use subpoenas for institutional advantage. Other considerations may also be pertinent.

Trump v. Vance

Court: US Supreme Court

Docket: 19-635

Opinion Date: July 9, 2020

Judge: John G. Roberts, Jr.

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

The New York County District Attorney’s Office served a subpoena duces tecum on the personal accounting firm of President Trump, seeking financial records relating to the President and his businesses. The President, acting in his personal capacity, sought to enjoin enforcement of the subpoena. The Second Circuit and the Supreme Court affirmed the denial of injunctive relief. Article II and the Supremacy Clause do not categorically preclude or require a heightened standard for the issuance of a state criminal subpoena to a sitting President. The Court examined precedent concerning federal subpoenas, from Aaron Burr’s motion for a subpoena directed at President Jefferson, through Monroe, Clinton, and Nixon, and concluded that, with respect to the state subpoena, the President’s “generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.” The Court rejected an argument that a state grand jury subpoena for a sitting President’s personal records must meet a heightened standard of need because of the possibility of diversion, stigma, and harassment. The President conceded that the criminal investigations are permitted under Article II and the Supremacy Clause; the receipt of a subpoena does not categorically magnify the harm to the President’s reputation and grand jury secrecy rules aim to prevent the stigma the President anticipates. Although a President cannot be treated as an “ordinary individual” when executive communications are sought, with regard to private papers, a President stands in “nearly the same situation with any other individual.” Absent a need to protect the Executive, the public interest in fair and effective law enforcement cuts in favor of comprehensive access to evidence. A President may avail himself of the same protections available to every other citizen, including the right to challenge the subpoena on grounds permitted by state law, such as bad faith and undue burden or breadth. A President can raise subpoena-specific constitutional challenges in either a state or a federal forum and can challenge the subpoena as an attempt to influence the performance of his official duties, in violation of the Supremacy Clause.

The New York Times v. Central Intelligence Agency

Court: US Court of Appeals for the Second Circuit

Docket: 18-2112

Opinion Date: July 9, 2020

Judge: John M. Walker

Areas of Law: Government & Administrative Law

The Times filed a Freedom of Information Act (FOIA) action seeking acknowledgement from the CIA that it was aware of the existence of records regarding a covert program of arming and training rebel forces in Syria. The CIA responded to the request with a Glomar response, stating that it could neither confirm nor deny the existence or nonexistence of such records. The Second Circuit affirmed the district court's grant of summary judgment in favor of the CIA. After according appropriate deference to the uniquely executive purview of national security, the court held that President Donald Trump's statements, even when coupled with General Raymond (Tony) Thomas's statements, left lingering doubts and thus were insufficient to amount to an official acknowledgement of the alleged covert program in Syria, much less the existence of records related to the program. The court stated that it is still logical or plausible that disclosing the existence or nonexistence of an intelligence interest in such a program would reveal something not already officially acknowledged and thereby harm national security interests. The court also held that President Trump's tweet and statements to the Wall Street Journal interviewer did not declassify the existence of the covert program.

Sanderson Farms, Inc. v. Occupational Safety and Health Review Commission

Court: US Court of Appeals for the Fifth Circuit

Docket: 19-60592

Opinion Date: July 9, 2020

Judge: Jacques Loeb Wiener, Jr.

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

The Fifth Circuit denied a petition for review of the Commission's determination that Sanderson violated various regulations of the Department of Labor's Occupational Safety and Health Administration (OSHA). The court held that the ALJ's determination that the compressor cutouts and the emergency stops are subject to the mechanical integrity program was not an abuse of discretion or otherwise contrary to law; the ALJ's determination that Sanderson failed to rebut the presumption of exposure to a hazard was not an abuse of discretion or otherwise contrary to law; and the Secretary bore his burden with respect to all elements of a violation regarding Items 5a and 5b.

Wooten v. Roach

Court: US Court of Appeals for the Fifth Circuit

Docket: 19-40315

Opinion Date: July 6, 2020

Judge: Stuart Kyle Duncan

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

Former Texas state judge Suzanne Wooten filed suit under 42 U.S.C. 1983 against state and local law enforcement officials, alleging that they violated the Constitution by investigating and prosecuting her in retaliation for unseating an incumbent judge and making rulings they disagreed with. At issue in this appeal was whether defendants are entitled to absolute prosecutorial immunity for their alleged acts. The Fifth Circuit held that the district court was without jurisdiction to accept Wooten's second amended complaint; that her first amended complaint remains operative; and that this appeal is not moot. The court also held that it has jurisdiction to hear defendants' appeal regarding prosecutorial immunity and Defendant White and Abbott's official immunity claims. However, the court held that it lacked jurisdiction to hear any defendant's appeal on qualified immunity and Defendants Roach and Milner's claims to official immunity. On the merits, the court held that Defendants Roach, White, and Abbott are each entitled to absolute prosecutorial immunity. However, the court held that Defendant Milner is not shielded by absolute prosecutorial immunity because he was performing investigative functions that do not qualify for absolute immunity. Accordingly, the court affirmed in part, reversed in part, and remanded for further proceedings.

Hargett v. Commissioner of Social Security

Court: US Court of Appeals for the Sixth Circuit

Docket: 19-3718

Opinion Date: July 8, 2020

Judge: R[ansey] Guy Cole, Jr.

Areas of Law: Government & Administrative Law, Public Benefits

Hargett, born in 1965, has a high-school education and previously worked as a semi-truck driver, municipal worker, maintenance mechanic, and industrial cleaner. He last worked in March 2015. Hargett applied for disability insurance benefits; he had high blood pressure, type-two diabetes, curvature of the spine, and COPD. Hargett’s primary care physician, Lucardie, referred Hargett to a physical therapist for a functional capacity evaluation (FCE), which indicated that Hargett had a maximum lifting capacity of 35 pounds and maximum carrying capacity of 20 pounds--the “medium strength” category-- but that Hargett could continuously stand for no more than five minutes; could continuously walk for no more than 0.1 miles; could never balance while standing, crouching, or walking; and could never crouch, stoop, or crawl. Lucardie reviewed and signed the FCE. An ALJ denied Hargett’s claim, finding that Hargett retained the residual functional capacity to perform light work. The ALJ gave only “partial weight” to the FCE, discounting its indication that Hargett’s ability to stand or walk did not meet any standard for work activity. The Sixth Circuit vacated. The ALJ should have considered the FCE as a treating-source opinion, which, in 2015, had to be given controlling weight if “well-supported by medically acceptable clinical and laboratory diagnostic techniques” and “not inconsistent with the other substantial evidence.” The error was not harmless.

Crow Indian Tribe v. United States

Court: US Court of Appeals for the Ninth Circuit

Dockets: 18-36030, 18-36038, 18-36050, 18-36077, 18-36078, 18-36079, 18-36080, 18-36042

Opinion Date: July 8, 2020

Judge: Mary Murphy Schroeder

Areas of Law: Environmental Law, Government & Administrative Law

In 2007, the FWS first issued a rule declaring the Yellowstone grizzly population a "distinct population segment" within the meaning of the Endangered Species Act (ESA) and removing it from the protections of the ESA. The Ninth Circuit upheld the district court's determination that further agency consideration was required and remanded, which resulted in a second delisting rule, Rule 2017, which the district court again vacated and remanded. In the remand order, the district court found three important deficiencies in the FWS's analysis. As a preliminary matter, the panel held that a remand of an agency's rulemaking is a final order as to the government and thus appealable. Furthermore, the panel has jurisdiction to consider the intervenors' appeals regarding recalibration. On the merits, the panel affirmed the district court in all respects, with the exception of the order requiring the FWS to conduct a "comprehensive review" of the remnant grizzly population. As to that order, the panel remanded for the district court to order further examination of the delisting's effect on the remnant grizzly population.

East Bay Sanctuary Convenant v. Barr

Court: US Court of Appeals for the Ninth Circuit

Docket: 19-16487

Opinion Date: July 6, 2020

Judge: William A. Fletcher

Areas of Law: Government & Administrative Law, Immigration Law

The Ninth Circuit affirmed the district court's grant of a preliminary injunction against enforcement of a Department of Homeland Security joint interim final rule which—with limited exceptions—categorically denies asylum to aliens arriving at the border with Mexico unless they have first applied for, and have been denied, asylum in Mexico or another country through which they have traveled. After determining that plaintiffs have Article III standing, the panel held that plaintiffs have shown a likelihood of success on their claim that the rule is unlawful under the Administrative Procedures Act (APA), where it is not in accordance with law and in excess of statutory limitations because it is not consistent with 8 U.S.C. 1158. The panel also held that plaintiffs have shown a likelihood of success on their claim that the rule is arbitrary and capricious because it runs counter to the evidence before the agency and entirely failed to consider important aspects of the problem. Furthermore, the panel held that plaintiffs have shown that they will suffer irreparable harm, that the balance of equities lies in their favor, and that an injunction is in the public interest. Finally, the panel held that the district court did not abuse its discretion in entering an injunction covering the four states along the border with Mexico.

Boulder County Commissioners v. Suncor Energy

Court: US Court of Appeals for the Tenth Circuit

Docket: 19-1330

Opinion Date: July 7, 2020

Judge: Carolyn Baldwin McHugh

Areas of Law: Civil Procedure, Energy, Oil & Gas Law, Environmental Law, Government & Administrative Law

The issue this case presented for the Tenth Circuit's review centered on whether federal court was the proper forum for a suit filed in Colorado state court by local governmental entities for the global warming-related damage allegedly caused by oil and gas companies in Colorado. Suncor Energy and ExxonMobil advanced seven bases for federal subject matter jurisdiction in removing the action to federal court, each of which the district court rejected in its remand order. Suncor Energy and ExxonMobil appealed, reiterating six of those bases for federal jurisdiction. After review, the Tenth Circuit held that 28 U.S.C. 1447(d) limited its appellate jurisdiction to just one of them: federal officer removal under 28 U.S.C. 1442(a)(1). And because the Court concluded ExxonMobil failed to establish grounds for federal officer removal, the Court affirmed the district court’s order on that basis and dismissed the remainder of this appeal.

United States v. Barrera-Landa

Court: US Court of Appeals for the Tenth Circuit

Docket: 20-4044

Opinion Date: July 6, 2020

Judge: Timothy M. Tymkovich

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

This appeal involved the relationship between the detention and release provisions of two statutes: the Bail Reform Act (BRA), 18 U.S.C. sections 3141-3156, and the Immigration and Nationality Act (INA), 8 U.S.C. sections 1101-1537. The district court ordered Jose Luis Barrera-Landa released pending trial subject to the conditions the magistrate judge set in an earlier order. Barrera did not appeal that portion of the district court’s release order. As part of its order granting pretrial release, the district court denied Barrera’s request to enjoin the United States Immigration Customs and Enforcement (ICE) from detaining or deporting him during the pending criminal proceedings. Barrera appealed that portion of the district court’s release order. Barrera raised two new arguments on appeal: (1) 18 U.S.C. 3142(c) authorized a district court to prohibit the United States from deporting a defendant to assure his appearance in court; and (2) the Tenth Circuit should recognize the courts’ inherent supervisory authority to enjoin the United States from arresting or deporting Barrera while the criminal case is pending. Furthermore, Barrera argued the government had to choose to either proceed with immigration enforcement or his criminal prosecution, but could not do both. He asserted that if the government chose to prosecute, it had to must submit to the detention rules that governed criminal prosecutions and ICE could not detain or remove him. The district court denied Barrera’s request to enjoin ICE, explaining that every circuit that has addressed the issue has concluded that ICE may fulfill its statutory duties under the INA to detain an illegal alien regardless of a release determination under the BRA. The Tenth Circuit found Barrera forfeited his first two arguments by failing to raise them at the district court. The Court concluded the BRA and the INA "are capable of co-existing in the circumstances presented here." It therefore affirmed the district court's release order.

Canal A Media Holding LLC v. United States Citizenship and Immigration Services

Court: US Court of Appeals for the Eleventh Circuit

Docket: 19-11193

Opinion Date: July 8, 2020

Judge: Martin

Areas of Law: Government & Administrative Law, Immigration Law

Canal A Media and Erick Archila appealed the district court's dismissal of their amended complaint for lack of subject matter jurisdiction, challenging the USCIS's decision to deny Canal A Media's petition for a work visa for Mr. Archila. The Eleventh Circuit reversed and held that the denial of Canal A Media's visa petition was final agency action under the Administrative Procedure Act (APA), because Canal A Media has gone as far as it can in obtaining administrative adjudication of the I-129 petition and neither plaintiff can displace that decision through Mr. Archila's removal proceedings. Therefore, the district court erred in dismissing the complaint for failure to satisfy the APA finality requirement. The court also held that 8 U.S.C. 1252(b)(9) and (g) do not bar plaintiffs' challenge to the visa petition denial. Section 1252(b)(9), commonly known as the "zipper clause," does not apply in this case where plaintiffs have not brought any challenge to Mr. Archila's removal proceedings. Section 1252(g) also does not apply because the I-129 petition is not a decision to commence proceedings, much less to adjudicate a case or execute a removal order. Accordingly, the court remanded for further proceedings.

Cigar Association of America v. Food and Drug Administration

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

Docket: 18-5195

Opinion Date: July 7, 2020

Judge: Katsas

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

Plaintiffs, three cigar and pipe tobacco industry associations, filed suit challenging various provisions of the FDA's Deeming Rule, which subjects newly regulated tobacco products, including cigars and pipe tobacco, to requirements akin to those previously imposed by statute on cigarettes, cigarette tobacco, roll-your-own tobacco, and smokeless tobacco. Plaintiffs contend that the warning requirements for cigars and pipe tobacco violate the Tobacco Control Act and the Administrative Procedure Act because the FDA did not adequately consider how the warnings would affect smoking. Plaintiffs also argued that the warning requirements violate the First Amendment. The DC Circuit held that Congress required the FDA to consider whether any regulation under section 906(d)(1) of the Federal Food, Drug, and Cosmetic Act would likely affect the number of tobacco users. In promulgating the warning requirements for cigars and pipe tobacco, the court held that the FDA failed to satisfy that obligation. Therefore, the court reversed the district court's grant of summary judgment to the FDA and the denial of summary judgment to plaintiffs. The court dismissed as moot plaintiffs' appeal from the denial of their motion for a preliminary injunction. Finally, the court remanded for further proceedings.

In re: In the Matter of the Application of Jason Leopold to Unseal Certain Electronic Surveillance Applications and Orders

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

Docket: 18-5276

Opinion Date: July 7, 2020

Judge: Merrick B. Garland

Areas of Law: Government & Administrative Law

The burden of producing judicial records may not permanently foreclose their unsealing. After plaintiffs, a journalist and the Reporters Committee for Freedom of the Press, applied to the district court to unseal certain electronic surveillance orders and related filings in closed investigations, the district court withheld some of the requests due to the administrative burden of unsealing. The requests relate to judicial warrants issued under the Stored Communications Act (SCA) and court orders issued under the Pen Register Act. The DC Circuit held that the public's right of access to judicial records is a fundamental element of the rule of law. Administrative burden is relevant to how and when a judicial record may be unsealed, but not to whether it may be released at all. The court explained that precluding public access because of the personnel-hours required to produce those records is no more warranted than precluding public access to high-profile trials because of the costs of crowd control. Therefore, the court reversed and remanded for the district court to determine, in its sound discretion, how and when greater access can be provided.

Louie v. Dickson

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

Docket: 18-1022

Opinion Date: July 7, 2020

Judge: Srikanth Srinivasan

Areas of Law: Aviation, Government & Administrative Law

The DC Circuit dismissed petitions for review of several Federal Aviation Administration actions related to the proposed expansion of the Paulding Northwest Atlanta Airport. The court held that it lacked jurisdiction because none of petitioners' challenges involves an ongoing case or controversy. In this case, petitioners lack standing to pursue their challenge to the FAA's decision to withdraw its concurrence in GDOT's written reevaluation, because petitioners' injuries are not fairly traceable to the challenged action. Furthermore, petitioners' remaining challenges concerning the FAA's concurrence in GDOT's written re-evaluation, the FAA's denial of reconsideration of that concurrence, and the FAA's withdrawal of the airport expansion from the then-pending commercial service environmental assessment are all moot.

American Chemistry Council v. Office of Environmental Health etc.

Court: California Courts of Appeal

Docket: C079260(Third Appellate District)

Opinion Date: July 8, 2020

Judge: Vance W. Raye

Areas of Law: Government & Administrative Law

In 2013 the Carcinogen Identification Committee (Committee) voted to list the chemical diisononyl phthalate (DINP) as a cancer causing chemical. DINP was used to soften vinyl for use in flooring, wire insulation, gloves, garden hoses, artificial leather, and roofing materials. The Committee concluded DINP caused various types of cancer in animals and that the mechanisms by which DINP caused cancer in animals were relevant to humans. Subsequently, the Office of Environmental Health Hazard Assessment (OEHHA) added DINP to the Proposition 65 list. Plaintiff American Chemistry Council (Chemistry) challenged the action, arguing it was arbitrary and capricious. The Chamber of Commerce of the United States filed an amicus curiae brief in support of Chemistry. Chemistry appealed the trial court’s denial of its petition for writ of mandate, arguing there was insufficient evidence that DINP causes cancer in humans. The Court of Appeal found, after its review of the record, that the Committee considered much of the evidence Chemistry accused it of ignoring. "The record reveals the Committee review was not rushed and did not render the Committee’s decision arbitrary and capricious." The Court therefore affirmed the trial court’s denial of its petition for writ of mandate.

City of Eagle v. Two Rivers Subdivision HOA

Court: Idaho Supreme Court - Civil

Docket: 47193

Opinion Date: July 7, 2020

Judge: Brody

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

This appeal involved a dispute between a homeowners’ association and the City of Eagle (“the City”) over the public’s right to use a parking lot located on land owned by a homeowners’ association. T.R. Company, LLC (“T.R.”) was the developer of a subdivision. In November 2002, the City held a public hearing on T.R.’s request for certain concessions from the City associated with the subdivision. The City argued that T.R. offered to dedicate an easement for public parking on Lot 35 at that hearing, and that the offer was accepted when, a few months later, the City approved T.R.’s design review application showing the specific location and design of the parking lot. Respondent Two Rivers Subdivision Homeowners Association, Inc. (“the Association”) argued that no dedication occurred because T.R.’s intent to dedicate was not clear and unequivocal. The district court granted summary judgment in favor of the Association. After review, the Idaho Supreme Court vacated the district court’s judgment, reversed the district court’s decision on summary judgment, and remanded with instructions to enter judgment in favor of the City and to consider whether the City was entitled to any injunctive relief.

IDHW & John Doe v. GAL & 4th Judicial District Casa

Court: Idaho Supreme Court - Civil

Docket: 47789

Opinion Date: July 9, 2020

Judge: Stegner

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

A guardian ad litem (GAL) for two minor children appealed after a magistrate court determined the children should have been placed with their biological father in Mexico. Jane Doe I (Daughter) and John Doe II (Son) were removed from the care of their mother (Mother) along with another half-sibling on after a preliminary investigation revealed the children were homeless and living in a car. At the time Daughter and Son were taken into foster care, the specific whereabouts of their biological father, John Doe (Father), were unknown, other than that he had been deported to Mexico in December 2014. Father had last seen the children at that time. In addition, his paternity had not yet been established and he had not had any contact with his children since his deportation. A little more than a year after the proceedings had begun, Father’s paternity was established. Shortly after the Department filed an amended petition, it sought a case plan for Father. The Department also attempted to obtain a home study for Father but faced difficulty accomplishing this task because he lived in Mexico. The children’s GAL opposed placing the children with Father without more information about him and his living situation. Ultimately, the magistrate court ordered that the children be placed with Father as soon as possible without a home study being conducted, apparently relying on In re Doe, 281 P.3d 95 (2012). On motions to reconsider filed by the Department and the GAL, newly-discovered evidence was presented that Father was a registered sex offender who had previously pleaded guilty to failing to register as such. Nevertheless, the magistrate court denied the motions to reconsider. The GAL appealed. After review, the Idaho Supreme Court reversed the magistrate court, holding that while it continued "to recognize that the biological parent’s presumption of fitness is and should be very strong. However, it is not irrefutable. . . . Where the legislature has unequivocally placed a duty on the court and the Department to consider its primary concern 'the health and safety of the child,' it is incumbent on a court to ensure that diligent investigation occurs regarding questions pertaining to children’s safety."

Tomasino v. Town of Casco

Court: Maine Supreme Judicial Court

Citation: 2020 ME 96

Opinion Date: July 7, 2020

Judge: Ellen A. Gorman

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

The Supreme Judicial Court affirmed the judgment of the superior court affirming the decision of the Town of Casco Zoning Board of Appeals in which the Board denied the request for a shoreline zoning permit filed by Mark and Valerie Tomasino, holding that the Tomasinos lacked standing to seek such a permit. On appeal, the Tomasinos argued that the Board erred in determining that they demonstrated insufficient right, title, or interest in the property to obtain a permit to remove three trees from property owned by Lake Shore Realty Trust, the abutting property owner, over which the Tomasinos claimed a deeded easement. The Supreme Judicial Court affirmed, holding that, even assuming that the Tomasinos demonstrated that they had some interest in the particular portion of property at issue in this case, they failed to demonstrate that they had the kind of interest that would allow them to cut the trees if they were granted a permit to do so.

In re Schmalz

Court: Minnesota Supreme Court

Docket: A18-2156

Opinion Date: June 24, 2020

Judge: G. Barry Anderson

Areas of Law: Government & Administrative Law, Health Law, Public Benefits

The Supreme Court reversed the decision of the court of appeals affirming the order of the district court that non-homestead life estates should not be included in Marvin Schmalz's assets, holding that the term "individual" in Minn. Stat. 256B.056, subd. 4a applies only to the applicant for medical assistance. Esther Schmalz was living at a long-term-care facility when she submitted an application for medical assistance for long-term-care benefits. As part of the assessment of her husband Marvin's assets, Renville County Human Services (RCHS) included Marvin's portion of several non-homestead life estate interests that he and Esther owned. Esther appealed, arguing that the life estates should not be included in the total amount of assets that Marvin may retain. The human services judge concluded that RCHS properly denied Esther's application for medical assistance based on the inclusion of the life estate assets owned by Marvin. The Commissioner of Minnesota Department of Human Services adopted the human services judge's recommendation. The district court concluded that the non-homestead life estates should not be included in Marvin's assets, ruling that the term "individual" in section 256B.056, subd. 4a included Marvin. The Supreme Court reversed, holding that an "individual" in the statute refers to the medical assistance applicant and not a community spouse.

Monadnock Regional School District v. Monadnock District Education Association, NEA-NH

Court: New Hampshire Supreme Court

Docket: 2019-0134

Opinion Date: July 8, 2020

Judge: Anna Barbara Hantz Marconi

Areas of Law: Civil Procedure, Government & Administrative Law

Defendant Monadnock District Education Association, NEA-NH (the Association) appealed a superior court order granting summary judgment to plaintiff Monadnock Regional School District (the District), and denying the Association’s cross-motion for summary judgment. The superior court ruled that $392,381 in unexpended appropriations set aside over a period of four years pursuant to the parties’ collective bargaining agreement had lapsed. The New Hampshire Supreme Court determined the funds at issue did not lapse because they were encumbered by an enforceable obligation for their expenditure that arose prior to the end of the fiscal years for which they were appropriated. The Court therefore reversed trial court's ruling to the contrary.

City of Asbury Park v. Star Insurance Company

Court: Supreme Court of New Jersey

Docket: a-20-19

Opinion Date: June 29, 2020

Judge: Faustino J. Fernandez-Vina

Areas of Law: Government & Administrative Law, Insurance Law, Personal Injury

The Third Circuit Court of Appeals certified a question of law to the New Jersey Supreme Court. The matter before the federal court involved a dispute between a workers' compensation insurance carrier and its insured, a public employer. Both plaintiff, the City of Asbury Park (the City), and its insurance carrier, defendant Star Insurance Company (Star), sought reimbursement of monies paid toward an injured firefighter’s workers’ compensation claim from funds he recouped through settlement with a third-party tortfeasor. The funds available for reimbursement will not cover the full amount paid collectively by the City and Star. The question was whether, under the equitable “made-whole” or “make-whole” doctrine, the City had priority to recover what it paid before Star could recover any of its losses. The Supreme Court answered the certified question in the negative. Under equitable principles of New Jersey law, the made-whole doctrine did not apply to first-dollar risk, such as a self-insured retention or deductible, that is allocated to an insured under an insurance policy.

Gourmet Dining, LLC v. Union Township

Court: Supreme Court of New Jersey

Docket: a-8-19

Opinion Date: June 30, 2020

Judge: Jaynee LaVecchia

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

The issue before the New Jersey Supreme Court in this appeal was whether a high-end restaurant operated by a for-profit entity, but housed in a building on the Kean University campus, qualified for a local property tax exemption. Gourmet Dining, LLC, owned and operated a fine dining restaurant named Ursino in a Kean University building. In October 2011, the Kean University Foundation, Inc., and Gourmet Dining entered into a Management Subcontract Agreement (MSA), which conferred on Gourmet Dining the exclusive right to operate, manage, and control Ursino. Gourmet Dining agreed to pay the Foundation an annual “management fee” and a percentage of Ursino’s gross revenue. The Tax Court granted summary judgment in favor of Union Township. Concluding that Gourmet Dining had not established that the subject property is used for a public purpose pursuant to N.J.S.A. 54:4-3.3, or that its actual use of the property was for “colleges, schools, academies or seminaries” as required by N.J.S.A 54:4-3.6, the court held that Gourmet Dining was not entitled to tax exemption under either provision. The Appellate Division reversed, relying on a holistic view: the restaurant is located on-campus; University students and their parents regularly dined there; Gourmet Dining’s annual management fees were used for scholarships; many of the restaurant’s employees are students; and the restaurant used produce grown on theUniversity grounds and provides the University with compostable waste. The Supreme Court reversed, holding the arrangement by which Gourmet Dining operates Ursino was taxable as a lease or lease-like interest. The public-benefit-oriented exemption provisions in issue were not intended to exempt the for-profit operator of a high-end, regionally renowned restaurant situated on a college campus, when the overriding purpose of the endeavor was focused on profitmaking. "Gourmet Dining, as the exclusive operator and manager of this restaurant establishment, must bear its fair share of the local real property tax burden."

Kinzua Resources v. DEQ

Court: Oregon Supreme Court

Docket: S066676

Opinion Date: July 9, 2020

Judge: Flynn

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

The dispute in this case arose from an Environmental Quality Commission order, which concluded that petitioners were persons “controlling” an inactive landfill site and imposed liability on them for failing to per- form the statutory closure requirements. At issue here was whether the legislature intended that the category of persons “controlling” the landfill site would extend to those having the legal authority to control the site, as the commission concluded, or would be limited to “those persons actively involved in the operation or management of a landfill site,” as the Court of Appeals concluded. The Oregon Supreme Court concluded the legislature intended the category of persons “controlling” the site to include persons having the authority to control the site, regardless of whether that authority has been exercised. The matter was remanded to the Court of Appeals to consider petitioners’ remaining challenges to the order in light of the correct legal standard.

Christensen v. Utah State Tax Commission

Court: Utah Supreme Court

Citation: 2020 UT 45

Opinion Date: July 6, 2020

Judge: Pearce

Areas of Law: Government & Administrative Law

The Supreme Court reversed the order of the district court denying the Utah State Tax Commission's motion to dismiss Gail and Margaret Christensens' petition seeking judicial review of an order of an administrative law judge (ALJ) requiring Gail to pay income tax and interest on income he earned while working in the Republic of Angola, holding that the Christensens did not exhaust their administrative remedies prior to seeking judicial review. Gail did not file Utah tax returns for the three years he was working in Angola. The Auditing Division of the Commission ordered Gail to pay his taxes, along with interest and penalties. Gail challenged that decision, and an ALJ ordered him to pay taxes and interest but not a penalty. Gail did not request a formal hearing before the Commission but, instead, sought review of the order, along with his wife, in the district court. The Commission moved to dismiss the petition on the grounds that the district court lacked jurisdiction. The district court denied the motion to dismiss. The Supreme Court reversed, holding that, by failing to request a formal hearing, the Christensens did not exhaust their administrative remedies, as required by the Utah Administrative Procedures Act.

Wal-Mart Stores East, LP v. State Corporation Commission

Court: Supreme Court of Virginia

Docket: 191159

Opinion Date: July 9, 2020

Judge: Kelsey

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

The Supreme Court affirmed an order of the State Corporation Commission denying Walmart's petitions filed pursuant to Va. Code 56-577(A)(4) seeking the Commission's permission to combine the electric-energy demand of separate Walmart locations to qualify to buy electricity from sources other than the incumbent public utilities regulated by the Commission, holding that the Commission exercised its delegated discretion in a manner consistent with its statutory authority. On appeal, Walmart conceded that the Commission was given the discretion under section 56-577(A)(4) to grant or deny Walmart's request but that the Commission acted arbitrarily and capriciously and erred as a matter of law in denying its petitions. The Supreme Court affirmed, holding (1) the Commission interpreted section 56-577(A)(4) correctly; (2) there was no error in the Commission's fact-finding; and (3) the Commission did not abuse its discretion in denying Walmart's motion to reconsider.

Papa v. Wisconsin Department of Health Services

Court: Wisconsin Supreme Court

Dockets: 2017AP000634, 2016AP002082

Opinion Date: July 9, 2020

Judge: Annette Kingsland Ziegler

Areas of Law: Government & Administrative Law, Health Law, Public Benefits

In this case requiring the Supreme Court to determine the scope of the authority of the Wisconsin Department of Health Services (DHS) to recoup payments made to Medicaid service providers the Supreme Court held that DHS does not have the authority to enforce its recoupment policy. Plaintiffs, Kathleen Papa and Professional Homecare Providers, Inc. (collectively, PHP), challenged DHS's recoupment policy as it had been enforced against PHP nurses to recover payments made for services they provided to Medicaid patients. PHP claimed that DHS recoups payments nurses earned and received for their Medicaid services because the nurses' supporting records contained documentation shortcomings. The Supreme Court held (1) DHS may recoup Medicaid payments from service providers only in cases where DHS cannot verify certain facts; and (2) DHS's recoupment policy exceeds its authority.