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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United States v. Munchel

Docket: 21-3010

Opinion Date: March 26, 2021

Judge: Wilkins

Areas of Law: Criminal Law

The DC Circuit considered an appeal of a pretrial detention order issued after a magistrate judge had previously ordered the two appellants released pursuant to a lengthy set of stringent conditions. After appellants, Eric Munchel and his mother, Lisa Eisenhart, participated in the January 6, 2021 incident at the Capitol, a grand jury sitting in the District of Columbia returned an indictment charging Munchel and Eisenhart with obstruction of an official proceeding; Munchel with unlawful entry while armed with a dangerous weapon, and violent entry while armed with a dangerous weapon; and Eisenhart with aiding and abetting unlawful entry while armed with a dangerous weapon, and aiding and abetting violent entry while armed with a dangerous weapon. The court need not reach appellants' contention that the district court erred in not deferring to the magistrate judge's factual findings as to their dangerousness where the situation here was more akin to a new hearing in light of the substantial additional evidence the government submitted to the district judge that had not been presented to the magistrate judge. The court rejected the argument that the district court inappropriately relied on a finding that appellants were unlikely to abide by release conditions to detain them, because that factor is applicable only to revocation of pretrial release. The court also rejected the argument that the charged offenses do not authorize detention. However, the court concluded that the district court did not demonstrate that it adequately considered, in light of all the record evidence, whether Munchel and Eisenhart present an identified and articulable threat to the community. In this case, the district court did not adequately demonstrate that it considered whether Munchel and Eisenhart posed an articulable threat to the community in view of their conduct on January 6, and the particular circumstances of January 6, and failed to demonstrate that it considered the specific circumstances that made it possible, on January 6, for Munchel and Eisenhart to threaten the peaceful transfer of power. Accordingly, the court remanded for further factfinding. Finally, the court rejected appellants' contention that the government's proffer of dangerousness should be weighed against the fact that the government did not seek detention of other defendants where these facts and circumstances are best evaluated by the district court in the first instance.

Shafer & Freeman Lakes Environmental Conservation Corp. v. Federal Energy Regulatory Commission

Docket: 19-1066

Opinion Date: March 26, 2021

Judge: Patricia Ann Millett

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

In 2012, U.S. Fish and Wildlife Service scientists discovered that endangered mussels were dying on the banks of Indiana's Tippecanoe River. The Service focused on the upstream Oakdale Dam, which significantly restricts the flow of water downstream in order to generate hydroelectricity and to create a lake. The Service worked with Oakdale's operator to develop new procedures that would require the dam to release more water during droughts. After a lengthy process of interagency cooperation and public dialogue, the new procedures were approved by the Federal Energy Regulatory Commission, which has licensing authority over hydroelectric dams on federally regulated waters. Local governmental entities sought review of the Commission’s decision and the Service’s Biological Opinion upon which the Commission relied. The D.C. Circuit affirmed in part. The court rejected some challenges to the validity of the Biological Opinion, which were not raised on rehearing before the Commission. There was otherwise no error in the agencies’ expert scientific analyses. The agencies failed to adequately explain why the new dam procedures do not violate a regulation prohibiting the Service from requiring more than “minor” changes to the Commission’s proposal for dam operations. Because vacating the agencies’ decisions would subject the dam operator to contradictory legal obligations imposed by separate agencies, the court remanded to the Commission without vacatur for further proceedings.

Secretary of Labor v. Knight Hawk Coal, LLC

Docket: 20-1299

Opinion Date: March 26, 2021

Judge: Henderson

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

The Federal Mine Safety and Health Amendments Act, 30 U.S.C. 801, requires the Secretary of the Department of Labor, through the Mine Safety and Health Administration (MSHA), to negotiate mine-specific ventilation plans with companies that operate the mines. In 2006-2018, Knight Hawk Coal operated its Prairie Eagle Mine pursuant to an MSHA-approved ventilation plan that permitted perimeter mining with 40-foot perimeter cuts. In 2018, MSHA conducted a ventilation survey at Prairie Eagle and concluded that the approved plan did not adequately ventilate the perimeter cuts. MSHA relied primarily on the results of chemical smoke tests, which involved survey team members observing smoke movement from a 44-foot distance. Months later, MSHA revoked the Prairie Eagle ventilation plan. After receiving a technical citation from MSHA for operating without an approved plan, Knight Hawk sought review by the Federal Mine Safety and Health Review Commission. The Commission’s ALJ found the revocation arbitrary and capricious, in part because the chemical smoke test results were unreliable and inconsistent and the Secretary ignored disagreements among MSHA ventilation survey team members regarding the results. The ALJ reinstated the previously-approved ventilation plan. The Commission affirmed, concluding that the Secretary failed to explain adequately why the existing ventilation plan was deficient. The D.C. Circuit denied the Secretary’s petition for review, finding that substantial evidence supports the ALJ’s finding.

In re: Klayman

Docket: 20-7110

Opinion Date: March 26, 2021

Judge: David S. Tatel

Areas of Law: Legal Ethics, Professional Malpractice & Ethics

Klayman founded Judicial Watch in 1994 and was its general counsel until 2003. Following a 2013 complaint to the D.C. Bar, a Hearing Committee concluded that Klayman violated Professional Conduct Rules 8.4(d) and 1.9. One client, a former Judicial Watch employee, had alleged a hostile work environment. Klayman had advised Judicial Watch about her complaints. After Klayman left Judicial Watch and without seeking its consent, he entered an appearance on her behalf. Another client was a Judicial Watch donor, seeking the return of her donation, represented by Klayman without consent. The third client, a former Judicial Watch client, sued Judicial Watch; Klayman entered an appearance without seeking consent. The Hearing Committee found that Klayman violated Rule 1.9 or its Florida equivalent in all three representations, Klayman’s representation of the third client violated Rule 8.4(d), by “[e]ngag[ing] in conduct that seriously interferes with the administration of justice,” and that Klayman gave false testimony before the Committee. The Committee recommended a 90-day suspension, with reinstatement contingent upon a showing of his fitness to practice law. The Board on Professional Responsibility agreed with respect to Rule 1.9 but disagreed concerning Rule 8.4(d) and false testimony. It rejected the reinstatement condition. Suspended for 90 days by the D.C. Court of Appeals, Klayman did not challenge the Rule 1.9 finding but sought to avoid reciprocal discipline. The D.C. Circuit imposed a reciprocal 90-day suspension and referred the matter to the Committee on Admissions and Grievances for recommendations on whether further discipline is warranted.