Constitutional Problems With the Kentucky Proposal (Supported by Mitch McConnell) to Change the Way U.S. Senate Vacancies Are Filled

VIKRAM DAVID AMAR

In this second of a series of columns, Illinois Law dean and professor Vikram David Amar comments on the Kentucky proposal to change the way U.S. Senate vacancies are filled. Dean Amar argues that the Seventeenth Amendment precludes such a proposal, which would allow the state legislature to substantively constrain the governor’s choices in making a temporary appointment.

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Thile v. Garland

Court: US Court of Appeals for the First Circuit

Docket: 20-1259

Opinion Date: March 19, 2021

Judge: Katzmann

Areas of Law: Government & Administrative Law, Immigration Law

The First Circuit denied Petitioner's petition for relief from removal on the grounds of asylum, withholding of removal under the Immigration and Nationality Act, and protection under the United Nations Convention Against Torture (CAT), holding that the Board of Immigration Appeals (BIA) did not err in affirming the immigration judge's (IJ) decision to deny Petitioner's application. Specifically, the First Circuit held (1) the record did not indicate that Petitioner either faced or would face persecution on the basis of his nationality, his religion, or his political beliefs; and (2) therefore, Petitioner was not able to meet the higher threshold for his claim of withholding of removal and his CAT claim.

New York State Department of Environmental Conservation v. Federal Energy Regulatory Commission

Court: US Court of Appeals for the Second Circuit

Docket: 19-1610

Opinion Date: March 23, 2021

Judge: Barrington D. Parker

Areas of Law: Environmental Law, Government & Administrative Law

The Second Circuit denied a petition for review of the Commission's orders determining that the DEC had waived its authority under Section 401 of the Clean Water Act to issue or deny a water quality certification for a natural gas pipeline project sponsored by National Fuel. The court concluded that Section 401's one-year time limit may not be extended by the type of agreement between a certifying agency and an applicant used here. In this case, the Commission reasonably concluded that the Natural Gas Act's rehearing provision did not bar National Fuel from seeking a waiver determination outside of the 30-day window to file a rehearing request, and that FERC acted within its discretion in treating National Fuel's December 2017 filing as a timely motion for a waiver determination. Therefore, the Commission properly concluded that the DEC waived its certification authority.

Benitez v. The Charlotte-Mecklenburg Hospital Authority

Court: US Court of Appeals for the Fourth Circuit

Docket: 19-2145

Opinion Date: March 23, 2021

Judge: Quattlebaum

Areas of Law: Government & Administrative Law

The Fourth Circuit affirmed the district court's dismissal of the class action antitrust claims brought by plaintiff against the Hospital Authority. The court concluded that the Hospital Authority is a "special function governmental unit" under section 34(1)(B) of the Local Government Antitrust Act of 1984. The court explained that Sandcrest Outpatient Servs., P.A. v. Cumberland Cnty. Hosp. Sys., Inc., 853 F.2d 1139, 1142 (4th Cir. 1988), did not address, much less decide, the issues here. The court was unpersuaded that either the Act's text or the statutory interpretation principle noscitur a sociis supports plaintiff's contention that "special function governmental unit" as described in section 34(1)(B) applies only to governmental entities with certain powers and/or characteristics, which the Hospital Authority lacks. The court reasoned that there is no magic combination of powers that a governmental body must have to be classified as a "special function governmental unit," however those of the Hospital Authority readily qualify. The court explained that the Hospital Authority is far more similar to the hospital in Sweeney v. Athens Regional Medical Center, than to the public trust hospital in Tarabishi v. McAlester Regional Hospital, 951 F.2d 1558 (10th Cir. 1991). Finally, the court rejected plaintiff's contention that, even if the Hospital Authority was a "local government" when it was established, it has outgrown its immunity. The court stated that the text of the Act asks only whether an organization qualifies as a "local government" as defined by the Act and that determination requires examining the state law applicable to the entity's creation. Therefore, the court agreed with the district court that the Hospital Authority is a "special function governmental unit" and is therefore a "local government" under the Act.

Texas Education Agency v. United States Department of Education

Court: US Court of Appeals for the Fifth Circuit

Docket: 20-60051

Opinion Date: March 23, 2021

Judge: Jerry E. Smith

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

Plaintiff filed suit against the DOE, alleging that the TEA had discharged her in retaliation for whistleblowing. Congress enacted a broad-based whistleblower protection program as part of the National Defense Authorization Act of 2013 (NDAA). The NDAA prohibits any recipient of federal dollars from retaliating against whistleblowers who report an abuse of that money. The Fifth Circuit granted the TEA's petition for review, vacated the offending order, and remanded for prompt entry of dismissal. The court agreed with the TEA that the DOE's investigation of plaintiff's complaint and award of damages violated Texas's sovereign immunity. The court explained that whistleblower-retaliation investigations into a state, like any other administrative proceedings brought by private parties, are barred by sovereign immunity. The court joined two other federal courts that have directly addressed the issue and held that the NDAA is not adequately clear for any waiver from sovereign immunity to be effective. Furthermore, the clarity required for a waiver of sovereign immunity to be "knowing" cannot be met by regulations clarifying an ambiguous statute. Rather, the needed clarity must come directly from the statute.

Gun Owners of America, Inc. v. Garland

Court: US Court of Appeals for the Sixth Circuit

Docket: 19-1298

Opinion Date: March 25, 2021

Judge: Batchelder

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

In 2018, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) promulgated a rule that classified bump stocks as machine guns, reversing its previous position. Bump stocks are devices designed to assist the shooter in “bump firing,” a technique that increases a semiautomatic firearm’s rate of fire. In a challenge to the rule, the district court held that the ATF’s interpretation was entitled to Chevron deference and that the classification of bump stocks as machine guns was “a permissible interpretation” of 26 U.S.C. 5845(b). The court denied a preliminary injunction. The Sixth Circuit reversed. Section 5845(b)'s definition of a machine gun applies to a machine-gun ban carrying criminal culpability and penalties; an agency’s interpretation of a criminal statute is not entitled to Chevron deference. Deference to an agency’s interpretation of a criminal statute directly conflicts with the rule of lenity, would violate the Constitution’s separation of powers, and would raise individual liberty and fair notice concerns. ATF’s rule is not the best interpretation of section 5845(b); “single function of the trigger” refers to the mechanical process of the trigger and a bump stock does not enable a semiautomatic firearm to fire more than one shot each time the trigger is pulled.

Xanthopoulos v. United States Department of Labor Administrative Review Board

Court: US Court of Appeals for the Seventh Circuit

Docket: 20-2604

Opinion Date: March 22, 2021

Judge: Joel Martin Flaum

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

Xanthopoulos, a Mercer consultant, detected securities fraud; his internal complaints failed. He went to the SEC website, and, in March 2014, Xanthopoulos submitted his first TCR Form. Unlike the Sarbanes-Oxley OSHA Form, which may be used to notify OSHA of a Sarbanes-Oxley complaint, the SEC’s TCR Form does not affirmatively indicate that submission of the form will initiate a formal lawsuit under the federal securities law. Xanthopoulos allegedly submitted seven TCR Forms through June 2018; in his 2018 submissions, he mentioned Mercer’s mistreatment of him as an employee, not just the securities fraud. Every TCR Form Xanthopoulos submitted specifically referenced a whistleblowing award. As Xanthopoulos predicted in those filings, Mercer fired him in October 2017. Xanthopoulos filed an OSHA administrative complaint in September 2018, alleging violations of Sarbanes-Oxley’s anti-retaliation provision, 18 U.S.C. 1514A. OSHA dismissed the complaint as untimely because Xanthopoulos filed 350 days after Mercer discharged him. He responded that “there was no 180-day-period in which [he] could have decided in clear conscience, that [he] had every information needed, to contact OSHA.” Xanthopoulos, then represented by counsel, argued that he filed his claim in the wrong forum, which tolled the statute of limitations: the TCR Forms constituted Sarbanes-Oxley claims mistakenly filed with the SEC. The Seventh Circuit affirmed the dismissal. The reports to the SEC did not toll the 180-day period for his Sarbanes-Oxley complaint. Xanthopoulos has not articulated a sufficient ground to equitably toll his untimely complaint.

BCP Trading and Investments, LLC v. Commissioner of Internal Revenue

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

Docket: 19-1068

Opinion Date: March 23, 2021

Judge: Henderson

Areas of Law: Government & Administrative Law, Tax Law

After the Commissioner issued tax adjustments to the partnership of BCP, members of BCP, themselves limited partnerships, challenged the adjustments, arguing they were untimely and that the Commissioner mistakenly determined that the investment partnership was a sham. The tax court found the adjustments timely and upheld the Commissioner's adjustments. The DC Circuit concluded that the tax court applied correct legal precedent and committed no clear error in its findings upholding the Commissioner's tax adjustments. The court explained that the tax court outlined various events that occurred before the taxpayers' individual extensions or the partnership extension were signed, all of which would have put the taxpayers on notice that they should not rely on E&Y's advice any longer. The court also concluded that there was no error in the tax court's determination that BCP was a "sham" partnership. The court explained that the tax court correctly applied Luna v. Commissioner, 42 T.C. 1067 (1964), to determine whether the parties intended to, and did in fact, join together for the present conduct of an undertaking or enterprise. In this case, the tax court correctly concluded that BCP failed the Luna analysis. Finally, the court concluded that the tax court did not abuse its discretion in denying a non-participating party's intervention. Accordingly, the court affirmed the tax court's judgment.

Hawkins v. Haaland

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

Docket: 20-5074

Opinion Date: March 19, 2021

Judge: Judith Ann Wilson Rogers

Areas of Law: Civil Procedure, Government & Administrative Law, Native American Law

Ranchers in the Upper Klamath Basin region filed suit to prevent the exercise of water rights that interfere with the irrigation of their lands. The district court dismissed the complaint based on lack of standing under Article III of the Constitution. The DC Circuit affirmed the dismissal and concluded that the Protocol Agreement executed by the United States and the Tribes does not delegate federal authority to the Tribes but recognizes the Tribes' preexisting authority to control their water rights under a Treaty in 1864 with the United States. The court explained that there is no concurrence requirement imposed by federal law on the Tribes' reserved instream water rights, whether by the 1864 Klamath Treaty or the federal government’s trust relationship; the McCarran Amendment subjects the Tribes' reserved water rights to state procedural rules in its quantification proceedings, but the substance and scope of the Tribes’ rights remain governed by federal law; Oregon law does not require federal government concurrence to enforce the Tribes' water rights; and thus invalidating the Protocol, and requiring the federal government to independently assess whether it would concur in the Tribes' calls, would not remedy the Ranchers' injuries. Because the Ranchers fail to show their alleged injuries are fairly traceable to federal government action or inaction, or would be redressed by striking the Protocol, they lack Article III standing.

Kimble v. United States

Court: US Court of Appeals for the Federal Circuit

Docket: 19-1590

Opinion Date: March 22, 2021

Judge: Todd Michael Hughes

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

The Greens opened a Union Bank of Switzerland (UBS) account around 1980, with their daughter, Kimble, as a joint owner. Kimble directed UBS to maintain the account as a numbered account and to retain all correspondence at the bank. Kimble married an investment analyst who agreed to preserve the secrecy of the account. The couple’s joint federal tax returns did not report any income derived from the UBS account nor disclose the existence of the foreign account. After the couple divorced, Kimble's tax returns were prepared by a CPA, who never asked whether she had a foreign bank account. In 2003-2008, Kimble’s tax forms, signed under penalty of perjury, represented that she did not have a foreign bank account. In 2008, Kimble learned of the Treasury Department’s investigation into UBS for abetting tax fraud; she retained counsel. UBS entered into a deferred prosecution agreement that required UBS to unmask numbered accounts held by U.S. citizens. Kimble was accepted into the Offshore Voluntary Disclosure Program (OVDP) and agreed to pay a $377,309 penalty. Kimble withdrew from the OVDP without paying the penalty. The IRS determined that Kimble’s failure to report the UBS account was willful and assessed a penalty of $697,299, 50% of the account. Kimble paid the penalty but sought a refund. The Federal Circuit affirmed summary judgment against Kimble, finding that she violated 31 U.S.C. 5314 and that her conduct was “willful” under section 5321(a)(5). The IRS did not abuse its discretion in setting a 50% penalty.

Munza, et al. v. Ivey, et al.

Court: Supreme Court of Alabama

Docket: 1200003

Opinion Date: March 19, 2021

Judge: Michael F. Bolin

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

Plaintiffs Barry Munza, Larry Lewis, and Debbie Mathis appealed a circuit court order dismissing their complaint seeking certain injunctive relief and challenging a proclamation issued by Governor Kay Ivey requiring the use of facial coverings in certain circumstances, as outlined in an order issued by Dr. Scott Harris, the State Health officer, to slow the spread of COVID-19. The Alabama Supreme Court concluded plaintiffs lacked standing to bring their complaint seeking injunctive relief regarding the July 15 proclamation adopting the amended health order that, among other things, required masks or facial coverings to be worn in certain circumstances. Because the Supreme Court determined plaintiffs lacked standing, any discussion of remaining issues was pretermitted.

Clark v. Super. Ct.

Court: California Courts of Appeal

Docket: D077711(Fourth Appellate District)

Opinion Date: March 19, 2021

Judge: Cynthia Aaron

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

The issue presented for the Court of Appeal in this case centered on whether Alicia Clark exhausted her administrative remedies under the Fair Employment and Housing Act (FEHA) prior to filing suit against her former employer, Arthroscopic & Laser Surgery Center of San Diego, L.P. (ALSC). Clark filed an administrative complaint with the Department of Fair Employment and Housing (DFEH) alleging ALSC committed various acts of employment discrimination against her. While Clark’s DFEH Complaint contained an inaccuracy as to ALSC’s legal name, it clearly and unequivocally reflected Clark’s intent to name ALSC as a respondent. Specifically, Clark’s DFEH Complaint named, as respondents, “Oasis Surgery Center LLC,” and “Oasis Surgery Center, LP,” which are variants of ALSC’s registered business name, “Oasis Surgery Center.” In addition, Clark’s DFEH Complaint referenced the names of her managers, supervisors, and coworkers. The same day that Clark filed her DFEH Complaint, the DFEH issued a right-to-sue notice and Clark filed this action against “Oasis Surgery Center LLC,” and “Oasis Surgery Center, LP.” One week after filing her DFEH Complaint and the initial complaint in this action, Clark filed an amended complaint in this action, properly naming ALSC as a defendant. Notwithstanding that Clark’s DFEH Complaint clearly identified her former employer as the intended respondent, the trial court granted ALSC’s motion for summary judgment as to all of Clark’s FEHA claims brought against it because Clark “named the wrong entity in her DFEH [C]omplaint, and . . . never corrected that omission.” Clark then filed a petition for writ of mandate to the Court of Appeal, requesting that it vacate the trial court’s order granting ALSC’s motion for summary judgment. After considering the text and purpose of the relevant statutory exhaustion requirement, administrative regulations, and applicable case law, the Court of Appeal concluded Clark exhausted her administrative remedies against ALSC. "This is particularly true in a case such as this, in which the plaintiff’s error could not possibly have hampered any administrative investigation or prejudiced the defendant in any judicial proceedings." Accordingly, Clark’s writ petition was granted and the trial court directed to vacate its order granting ALSC’s motion for summary judgment.

Senior Disability Action v. Weber

Court: California Courts of Appeal

Docket: A159540(First Appellate District)

Opinion Date: March 23, 2021

Judge: Wiseman

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

The 1993 National Voter Registration Act, 52 U.S.C. 20501(b)(1), requires states to register voters for federal elections, including “by application in person” at designated state offices. Each state must designate all offices that provide public assistance, all offices that provide state-funded programs primarily engaged in providing services to persons with disabilities, and “other offices. ” Each designated agency must offer certain voter registration services and, in California, must assign an employee to be responsible for the agency’s compliance (Elec. Code, 2406.) California’s Secretary of State coordinates the state’s responsibilities under the Act. The plaintiffs sought additional designations. The Secretary committed to designating as voter registration agencies programs for students with disabilities at community colleges, certain county welfare departments, and the Office of Services to the Blind. The trial court held, and the court of appeal affirmed, that the Secretary had a mandatory duty to designate as voter registration agencies state offices that administer General Assistance or General Relief programs and California Student Aid Commission Financial Aid Programs, as well as all private entities under contract to provide services on behalf of a voter registration agency. The court found that no mandatory designation duty existed as to offices administering the California Department of Education Nutrition Programs, special education offices, and Area Agencies on Aging.

Travis v. Brand

Court: California Courts of Appeal

Dockets: B298104(Second Appellate District) , B301479(Second Appellate District)

Opinion Date: March 19, 2021

Judge: Wiley

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

After a political action committee and two political candidates successfully campaigned for a ballot measure in a Redondo Beach municipal election, two citizens filed suit against the committee and the candidates, claiming the candidates had controlled the committee, which had used an improper title for itself. The trial court ruled in favor of the committee and candidates, awarding them attorney fees. In consolidated appeals, the Court of Appeal concluded that the nonparties have standing to appeal the judgment; substantial evidence supported the trial court's finding that Rescue was a general purpose committee and that neither candidate controlled it; and the trial court acted beyond its authority by issuing a judgment against nonparties to the action. The court affirmed the trial court's award of attorney fees to defendants, who were unquestionably the prevailing party. Finally, the court denied the request for sanctions because the appeal of the attorney fees was not frivolous.

Shoreline Shellfish, LLC v. Branford

Court: Connecticut Supreme Court

Docket: SC20392

Opinion Date: March 30, 2021

Judge: D’Auria

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

In this dispute over who had the authority to lease shellfishing beds on behalf of the Town of Branford, the Supreme Court reversed the trial court's grant of summary judgment in favor of the Town, holding that summary judgment was improper. Plaintiffs had been granted the right of first refusal by Branford's Shellfish Commission to lease certain shellfishing grounds located in the Town, but the Commission leased the grounds to Plaintiffs' competitor. Plaintiff brought this action alleging breach of contract and promissory estoppel and that it enjoyed a right of first refusal. The Town moved for summary judgment, arguing that the right of first refusal was no a valid or enforceable contract because the Commission lacked authority to enter into it. The trial court agreed, holding that only the Town's Board of Selectmen had authority to lease the shellfishing beds on behalf of the Town. The Supreme Court reversed, holding that there was a genuine issue of material fact precluding summary judgment.

Citizens Against Linscott v. Bonner County Board of Commissioners

Court: Idaho Supreme Court - Civil

Docket: 47909

Opinion Date: March 22, 2021

Judge: Roger S. Burdick

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

Citizens Against Linscott/Interstate Asphalt Plant (“CAL”) challenged a conditional use permit (“CUP”) issued by the Bonner County, Idaho Board of Commissioners (“the County”). The CUP was based on a recent amendment to Bonner County zoning ordinances (“the Amendment”) and authorized Interstate Concrete and Asphalt Company (“Interstate”) to operate an asphalt batch plant within Frank and Carol Linscott’s gravel mine in Sagle, Idaho. In its petition for judicial review by the Bonner County district court, CAL challenged both the validity of the Amendment and the County’s decision to issue the CUP. The district court determined that CAL had standing to file its petition for judicial review of the CUP and that CAL had timely filed its petition. However, the district court concluded that it could not declare the Amendment invalid in a proceeding for judicial review under Idaho Local Land Use Planning Act (“LLUPA”) and the Idaho Administrative Procedure Act (“IDAPA”). Accordingly, the district court upheld the County’s decision to grant the CUP, giving the County deference in applying its own land-use ordinances. During the pendency of this appeal, CAL filed an action for declaratory relief before another district court judge to have the Amendment declared void. In that proceeding, the County admitted that the Amendment had been adopted without proper public notice and stipulated to a judgment and order declaring the Amendment void. On appeal of the administrative decision to the Idaho Supreme Court, CAL argued, among other things, that the subsequent voiding of the Amendment also invalidated the CUP or that the CUP was not issued in conformity with Bonner County zoning laws. After review, the Supreme Court affirmed in part, and reversed in part. The Court found the CUP authorizing the relocation of the Interstate asphalt batch plant to the Linscotts’ gravel mine was invalid because it was based on a void amendment to Bonner County Code. Further, the County acted in a manner that was arbitrary and capricious in refusing to address the gravel pit’s compliance with the nonconforming use provisions of BCRC.

Reagan v. Idaho Transportation Department

Court: Idaho Supreme Court - Civil

Docket: 47865

Opinion Date: March 23, 2021

Judge: Moeller

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

In this case, the Idaho Supreme Court was asked to revisit its decision in Idaho v. Clarke, 446 P.3d 451 (2019), and determine whether its holding was applicable in an administrative proceeding regarding the suspension of driving privileges based on an alleged case of driving under the influence (“DUI”). The Idaho Transportation Department (“ITD”) appealed a district court’s decision overturning its one-year suspension of Jasmine Reagan’s driving privileges. ITD based the administrative license suspension (“ALS”) on Reagan’s arrest for misdemeanor driving under the influence of alcohol and the results of subsequent testing of her blood alcohol content (“BAC”). The arresting officer, acting on a citizen’s report of a possible intoxicated driver, did not personally witness Reagan operating or in control of a vehicle. Reagan failed field sobriety tests administered at her home and, after being arrested, failed a breathalyzer test. Reagan received notice that her driver’s license was suspended for one year, which she appealed. An administrative hearing officer for ITD, relying on Idaho Code section 49-1405, upheld the license suspension. However, on appeal the district court overturned the suspension pursuant to Clarke, reasoning that because the misdemeanor DUI was completed outside the officer’s presence, the arrest required a warrant. On certiorari review, the issues presented were: (1) whether the breathalyzer test was administered pursuant to a lawful arrest; and (2) if the arrest was unlawful, whether test results obtained pursuant to an unlawful arrest are admissible in an ALS hearing before the ITD. The SupremeCourt concluded Idaho Code section 49-1405, as applied in this case, violated the Idaho Constitution. Accordingly, the Court affirmed the district court's decision to overturn ITD's suspension of Reagan's license.

Anderson v. Mountain Comprehensive Health Corp.

Court: Kentucky Supreme Court

Docket: 2020-SC-0133-WC

Opinion Date: March 25, 2021

Judge: Michelle M. Keller

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

The Supreme Court reversed the judgment of the court of appeals affirming the decision of the Workers' Compensation Board affirming the decision of the administrative law judge (ALJ) dismissing Appellant's workers' compensation claim upon finding that Appellant failed to provide reasonable notice of her injury to her employer, holding that the ALJ applied the incorrect provision of Ky. Rev. Stat. 342.185(1). Appellant filed a workers' compensation claim alleging that she sustained cumulative trauma injuries to her neck, back, and hands while working as a nurse. Applying the notice provisions of section 342.185(1), the ALJ found that Appellant's delay of almost two years from the original manifestation date was untimely. The Board and court of appeals affirmed. The Supreme Court reversed, holding (1) the ALJ erred in applying section 342.185(1) to Plaintiff's claim because, as of July 14, 2018, the notice provisions of section 342.185(1) do not apply to cumulative trauma injuries; and (2) under section 341.285(3), which specifically addresses a claimant's notice requirements for cumulative trauma injuries, Appellant's claim was timely.

Maysey v. Express Services, Inc.

Court: Kentucky Supreme Court

Docket: 2020-SC-0132-WC

Opinion Date: March 25, 2021

Judge: Hughes

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

The Supreme Court affirmed the opinion of the court of appeals affirming the decision of the Workers' Compensation Board upholding the order of the administrative law judge (ALJ) denying Plaintiff a thirty percent enhancement of benefits from his employer, Defendant, as a result of workplace safety violations, holding that the safety-violation benefit enhancement did not apply. Plaintiff sustained a serious work-related injury while employed by Defendant, a temporary staffing company. At issue before the ALJ was whether Plaintiff was entitled to the thirty percent enhancement under Ky. Rev. Stat. 342.165(1) for Defendant's alleged workplace violations. The ALJ denied enhanced benefits. The Board and court of appeals affirmed. The Supreme Court affirmed, holding that Defendant was not liable for section 342.165's enhancement of benefits because extending liability for the safety violations at the facility where Defendant sustained his injuries to Defendant pursuant to the "intentional failure" standard in section 342.165(1) was contrary to the current statute and caselaw.

Viwin Tech Windows & Doors, Inc. v. Ivey

Court: Kentucky Supreme Court

Docket: 2019-SC-0370-WC

Opinion Date: March 25, 2021

Judge: Vanmeter

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

The Supreme Court remanded this case to the Workers' Compensation Board, holding that Mark Ivey's pre-employment lower back disc herniation and two surgeries required an impairment rating to be carved out of his permanent partial disability rating for which his employer, ViWin Tech, would be responsible. An ALJ assigned a whole-person impairment of twenty-eight percent and rejected a carve-out for a pre-existing injury. The Board and court of appeals affirmed. The Supreme Court reversed, holding that, based on a plain reading of the relevant statutes and the AMA Guides, the ALJ erred in concluding that a carve-out was unwarranted.

In re Issuance of Air Emissions Permit No. 13700345-101 for PolyMet Mining, Inc.

Court: Minnesota Supreme Court

Dockets: A19-0115, A19-0134

Opinion Date: February 24, 2021

Judge: Chutich

Areas of Law: Environmental Law, Government & Administrative Law

The Supreme Court reversed the decision of the court of appeals concluding that the factual findings of the Minnesota Pollution Control Agency were "insufficient to facilitate judicial review" of a permitting decision, holding that the Agency is not required under the Clean Air Act, 42 U.S.C. 7401-7671q, and its applicable regulations to investigate allegations of "sham" permitting when a source first applies for a synthetic minor source permit. At issue was whether the Agency was required to investigate allegations of sham permitting when consider whether to approve the air-emissions permit of PolyMet Mining, Inc. for a proposed mine. Respondents challenged the Agency's decision to issue the synthetic minor source permit, asserting that the Agency failed to conduct an adequate investigation into whether PolyMet intended to operate within the limits of the permit or whether it was instead seeking a sham permit. The court of appeals concluded that the Agency's short response to the concerns of Respondents was not the "hard look" required under the Minnesota Administrative Procedure Act, Minn. Stat. 14.69. The Supreme Court reversed, holding that the applicable federal regulations and guidance contemplate retrospective enforcement after the applicant has obtained a synthetic minor source permit and do not mandate prospective investigation.

In re Year 2019 Salary of Freeborn County Sheriff

Court: Minnesota Supreme Court

Docket: A19-1363

Opinion Date: March 10, 2021

Judge: Lorie Skjerven Gildea

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

The Supreme Court reversed the judgment of the court of appeals reversing the determination of the district court that the Freeborn County Board of Commissioners acted arbitrarily when it set the 2019 salary of the Freeborn County Sheriff at $97,020, holding that the district court did not clearly err. In the salary appeal, the district court concluded that the Board acted arbitrarily and without sufficiently taking into account the responsibilities and duties of the sheriff's office because the testifying commissioners did not explain why they decided on a salary of $97,020. The court of appeals reversed, concluding that the district court's findings and conclusions were clearly erroneous. The Supreme Court reversed, holding that the district court did not clearly err in setting aside the Board's salary decision because there was reasonable support in the record for the court's determination that the Board's salary decision was arbitrary.

Contoocook Valley School District v. New Hampshire

Court: New Hampshire Supreme Court

Docket: 2019-0500

Opinion Date: March 23, 2021

Judge: Donovan

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

Defendants, the State of New Hampshire, the New Hampshire Department of Education (DOE), Governor Christopher Sununu, and the Commissioner of DOE, Frank Edelblut (collectively, the State), appealed a superior court decision denying, in part, the State’s motion to dismiss and denying its cross-motion for summary judgment, granting plaintiffs’ motion for summary judgment on grounds that the amount of per- pupil base adequacy aid set forth in RSA 198:40-a, II(a) (Supp. 2020) to fund an adequate education was unconstitutional as applied to the plaintiff school districts, and awarding plaintiffs attorney’s fees. Plaintiffs, Contoocook Valley School District, Myron Steere, III, Richard Cahoon, Richard Dunning, Winchester School District, Mascenic Regional School District, and Monadnock Regional School District, cross-appealed the trial court’s failure to find RSA 198:40-a, II(a) facially unconstitutional; its determinations regarding the sufficiency of the State’s funding of transportation, teacher benefits, facilities operations and maintenance, and certain services; its failure to find that the State’s system of funding education violates Part II, Article 5 of the State Constitution; and its denial of their request for injunctive relief; and its dismissal of their claims against the Governor and the Commissioner. The New Hampshire Supreme Court affirmed the trial court’s dismissal of the Governor and the Commissioner in their individual capacities, and its denials of the State’s motion to dismiss for failure to state a claim, the State’s cross-motion for summary judgment, and plaintiffs’ request for injunctive relief. However, the Court reversed that portion of the trial court’s order granting plaintiffs’ motion for summary judgment and awarding attorney’s fees, and remanded for further proceedings.

Breeze v. NDDOT

Court: North Dakota Supreme Court

Citation: 2021 ND 43

Opinion Date: March 24, 2021

Judge: Jerod E. Tufte

Areas of Law: Criminal Law, Government & Administrative Law

Joshua Breeze appeals a district court judgment affirming the North Dakota Department of Transportation’s suspension of his driving privileges based on a conviction for driving under the influence. On appeal, Breeze argued that Waltz, a UND police officer, was outside of his jurisdiction when he stopped Breeze, and therefore had no authority for the stop or the subsequent chemical test. The Department argued that Waltz was in “hot pursuit” and therefore had authority for the stop. After review of the trial court record, the North Dakota Supreme Court determined Waltz did not have authority to arrest Breeze: "a reasoning mind could not have reasonably concluded the preponderance of the evidence supports that Waltz was in 'hot pursuit,' as defined by section 15-10-17(2)(d), N.D.C.C., when he continued beyond his jurisdictional boundary to arrest Breeze." The Department's order suspending Breeze's driving privileges, and the district court's judgment affirming the Department's order were reversed.

Cass County Joint Water Resource District v. Aaland, et al.

Court: North Dakota Supreme Court

Citations: 2020 ND 196, 2021 ND 57

Opinion Date: March 24, 2021

Judge: Jerod E. Tufte

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

Landowners Cash Aaland, Larry Bakko, and Penny Cirks, appealed orders granting the Cass County Joint Water Resource District (the “District”) a right of entry onto their properties to conduct surveys and examinations related to the Fargo-Moorhead Flood Diversion Project. The Landowners argued these surveys and examinations are beyond the scope of N.D.C.C. 32-15-06. After review, the North Dakota Supreme Court reversed, concluding the District’s right of entry exceeded the limited testing permitted under the statute. The matter was remanded for a determination on attorney’s fees and costs.

North Dakota v. Bee

Court: North Dakota Supreme Court

Citation: 2021 ND 61

Opinion Date: March 24, 2021

Judge: Jerod E. Tufte

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

Dakota Bee appealed a criminal judgment entered on a conditional plea of guilty, reserving the right to appeal a district court order denying her motion to suppress evidence. Burleigh County Social Services (BCSS) contacted the Bismarck Police Department requesting assistance in removing a child from Bee’s care. Officers accompanied BCSS social workers to Bee’s residence and informed her that they were there to remove her child. Bee refused, backing up into the home, picking up the child, and then running towards the rear of the home. Officers pursued Bee through the home and out the back door. Fleeing out the back, Bee fell while holding the child, and officers separated her from the child. After Bee had been detained outside the residence, a social worker entered the residence to obtain personal belongings for the child, and an officer followed. Once the officer was inside, the social worker pointed out a glass smoking pipe. Bee was subsequently charged with Child Neglect; Possession of Methamphetamine; Possession of Drug Paraphernalia; and Refusal to Halt. The district court found that the officers entered “the residence with BCSS to retrieve personal belongings for the child” after Bee had been detained and the child was in BCSS’s custody. The court further found that the officers observed the glass smoking device on a shelf in plain view. The court concluded the officers’ actions did not violate Bee’s Fourth Amendment rights. On appeal, Bee argued the court erred in concluding that her Fourth Amendment rights were not violated when the officers entered her home. The North Dakota Supreme Court found that during the first entry to the residence, the officers observed nothing that Bee sought to suppress. The second entry of the residence was justified only by a need to collect clothing and other personal items needed by the child. Because the search was concededly warrantless and no exception applies, the Court concluded Bee was entitled to claim the protection of the exclusionary rule. The district court erred by denying Bee’s motion to suppress the results of the warrantless search. Judgment was reversed and the matter remanded to allow Bee to withdraw her guilty plea.

Somerset Court, et al. v. Burgum, et al.

Court: North Dakota Supreme Court

Citation: 2021 ND 58

Opinion Date: March 24, 2021

Judge: Lisa K. Fair McEvers

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

Appellants Somerset Court, LLC, and Kari Riggin appealed a district court judgment dismissing their action seeking a declaratory judgment regarding the validity of the North Dakota Governor’s executive orders. This case began as a challenge to the Governor’s statutory powers in issuing executive orders during the COVID-19 pandemic relating to the operations of certain North Dakota businesses. In April 2020, Somerset, an assisted living facility with an in-house salon, and Riggin, a licensed cosmetologist operating the salon as an independent contractor, claimed the executive orders prohibited Somerset and Riggin from engaging in their business and profession, and placed limitations as to their business and profession. Appellants argued the executive orders were beyond the Governor’s statutory powers; the executive orders involved fundamental rights requiring the application of the strict scrutiny standard of review; and that a declaratory judgment should have been issued as a matter of law and enforced by an appropriate writ. Because Appellants failed to adequately challenge the district court’s conclusion the case was moot, the North Dakota Supreme Court affirmed.

Com. v. Chesapeake Energy, et al (Anadarko, Aplt.)

Court: Supreme Court of Pennsylvania

Docket: 81 MAP 2019

Opinion Date: March 24, 2021

Judge: Mundy

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

In an appeal by allowance, the Pennsylvania Supreme Court considered whether the Commonwealth, by the Office of Attorney General (OAG), could bring claims under the Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL) on behalf of private landowners against a natural gas exploration and production company for its alleged deceptive, misleading, and unfair practices in obtaining natural gas leases from the landowners. The Supreme Court concluded the OAG could not bring claims under the UTPCPL on behalf of private landowners against Anadarko Petroleum Corporation and Anadarko E&P Onshore, L.L.C. (Anadarko) for its alleged unfair and deceptive practices in acquiring natural gas leases from the landowners. Furthermore, the Court found its resolution of the first issue rendered the second issue moot. The Court affirmed the portion of the Commonwealth Court’s decision that reversed the trial court order overruling Anadarko’s preliminary objections to Count III of the OAG’s second amended complaint, and otherwise reversed the order of the Commonwealth Court.

Linkosky v. PennDOT

Court: Supreme Court of Pennsylvania

Docket: 16 WAP 2020

Opinion Date: March 25, 2021

Judge: Max Baer

Areas of Law: Government & Administrative Law

Appellee John Linkosky applied for renewal of his Pennsylvania driver’s license. The Department of Transportation (PennDOT) granted the renewal application and issued him a temporary internet driver’s license, which was valid from October 4 to October 18, 2018. The accompanying instructions advised Linkosky that he would receive a camera card within ten days. The instructions further directed Linkosky to present the camera card at any Department photo center and have a new photo taken for purposes of receiving a renewed photo driver’s license. On October 16, 2018, Linkosky pled guilty in Ohio to DUI. As a result, his operating privileges were suspended in that state for a period of twelve months, with credit awarded to him from June 30, 2018. At some point during October 2018, Linkosky received his camera card from the Department, but misplaced it. Nearly two months after his Ohio DUI conviction, Linkosky asked for a replacement camera card from PennDOT. PennDOT denied Linkosky’s request, finding that as of the date of his application for a replacement camera card, the National Driver Register (“NDR” or “Register”) indicated that his operating privileges were suspended in Ohio. The issue this case presented for the Pennsylvania Supreme Court's review centered on whether PennDOT erred in denying Linkosky a replacement camera card. The Supreme Court found PennDOT did not err in denying the replacement card; the Commonwealth Court's judgment, which affirmed the trial court's sustaining of the licensee's statutory appeal, was reversed.

Torrence v. SCDOC

Court: South Carolina Supreme Court

Docket: 28017

Opinion Date: March 24, 2021

Judge: John W. Kittredge

Areas of Law: Civil Procedure, Government & Administrative Law

The issue this case presented for the South Carolina Supreme Court's review centered on whether an order of the Administrative Law Court (ALC) that includes a remand to a state agency is a final decision, and thus appealable. Petitioner South Carolina Department of Corrections (SCDC) appealed an adverse ruling rendered by the ALC. The court of appeals dismissed the appeal as interlocutory. After review, the Supreme Court determined the ALC's order here was a final decision notwithstanding the remand to the SCDC. Accordingly, judgment was reversed and the matter remanded for the court of appeals to address the merits of SCDC's appeal.

In re Panda Power Infrastructure Fund, LLC

Court: Supreme Court of Texas

Docket: 18-0792

Opinion Date: March 19, 2021

Judge: Jeffrey S. Boyd

Areas of Law: Government & Administrative Law, Utilities Law

The Supreme Court dismissed these two petitions - one for writ of mandamus and the other for review - arising from a lawsuit that thirteen Panda Power companies (collectively, Panda) filed against the Electric Reliability Council of Texas, Inc. (ERCOT), holding that this Court lacked jurisdiction to hear the petitions. Panda sued ERCOT and three of its officers for fraud, negligent misrepresentation, and breach of fiduciary duty. ERCOT filed a plea to the jurisdiction, arguing that the Public Utility Commission had exclusive jurisdiction over Panda's claims. The trial court denied the motion. ERCOT appealed and, as an alternative, filed a petition for a writ of mandamus, arguing that sovereign immunity barred Panda's claims. The court of appeals (1) dismissed ERCOT's interlocutory appeal for want of jurisdiction, holding that ERCOT was not a governmental unit under the Tort Claims Act; but (2) granted ERCOT's mandamus petition, holding that sovereign immunity applied and barred Panda's claims. The Supreme Court dismissed both the mandamus petition and the petition for review, holding that the trial court's entry of a final judgment rendered this causes arising from the interlocutory order moot.

Hester v. Washington

Court: Washington Supreme Court

Docket: 98495-6

Opinion Date: March 25, 2021

Judge: Johnson

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

This case involved a challenge to former RCW 43.43.120(23)(a) (2001), which excluded certain overtime from the calculation of the monthly pension benefit granted under the Washington State Patrol Retirement System (WSPRS). Four Washington State troopers (Troopers) hired before the statute became effective claimed this exclusion of voluntary overtime from the calculation of their monthly pensions was an unconstitutional impairment of their contract with the State in violation of article I, section 10 of the United States Constitution and article I, section 23 of the Washington State Constitution. On cross motions for summary judgment, the trial court ruled: (1) the statute of limitations was three years and accrued at retirement; (2) there remained issues of material fact regarding whether the change was offset by comparable benefits; and (3) the change was reasonable and necessary to serve a legitimate public purpose. After review of that ruling, the Washington Supreme Court affirmed the trial court’s rulings on the statute of limitations and on comparable benefits. However, the Court vacated its legitimate public purpose ruling as premature given that the issue of comparable benefits remained for trial. The matter was remanded for additional proceedings.