Administrative Law

Big Start Tomorrow for the Minnesota Legislature

Posted on February 11, 2008
Legislators will lose no time whatsoever starting on the big issues of the day, when they reconvene in Saint Paul tomorrow. And topping the agenda will be measures relating to the state court system. Among the bills that will be introduced on the first day of the 2008 regular session will be:S...

Running One?s Mouth is One Thing; Running with the Land Another

Posted on February 09, 2008
In an interesting unpublished opinion handed down on Tuesday, a panel of the Minnesota Court of Appeals held that request for approval of an amendment to an existing Conditional Use Permit did not provide the occasion for local zoning authorities to revisit and narrow the approved uses under the original permit...

Shot With Its Own Gun: Lessons from the Personal Protection Act

Posted on February 07, 2008
As widely reported in the media, on Tuesday of this week, a panel of the Minnesota Court of Appeals affirmed-in-part a lower court?s injunction which barred the enforcement of certain provisions of Minnesota?s Personal Protection Act against two metro-area churches...

Update on Judicial Selection and Retention Hearing

Posted on February 06, 2008
The audio and video from a State Senate hearing on judicial selection and retention reform, held this past Monday, is now available on-line.The testimony included remarks from a celebrity cast of witnesses ? including former Vice President Walter Mondale; former Minnesota Governors Al Quie and Arne Carlson; former Speaker of the Minnesota House Phil Carruthers; Chief Justice Russell Anderson; Associate Justice Alan Page; and President of the Minnesota State Bar Association, Brian Melendez...

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Commissioner Fabian Files a Petition for Review of Decision in Rud

Posted on February 03, 2008
As readers of these pages will recall, on the last day of 2007 a panel of the Minnesota Court of Appeals held that, James John Rud, an inmate who was sentenced to state prison in 1985, could not be disciplined for his refusal to participate in prison-based sex offender treatment...

Lots and Lots of Provocative Audio

Posted on February 02, 2008
During the month of January, the Federalist Society ? both as a national organization and as a local, Minnesota Chapter ? hosted a series of thought-provoking events, with audio recordings that are now on-line.Among the dynamite megabytes for your mp3 player are:n A discussion on the Judicial Confirmation process with Senator Arlen Specter (Ranking Minority Member of the U...

Celebrating 10 Wonderful and Exciting Years

Posted on January 31, 2008
As part of the wider set of celebrations during Employee Recognition Week, our Office today honored some long-term state employees with applause and tokens of affection for their years of state service.I was among the honorees because, when one knits together all of the various tours of duty I have had in state government, on or around Valentine?s Day this year, the work weeks will total ten years of service...

4-You-Foods: A Licensing Case with Many Issues, Many Nuggets on Due Process

Posted on January 30, 2008
Not since law school has there been as many issues and sub-issues in the fact pattern of a licensing case, as were in an unpublished opinion issued yesterday by the Minnesota Court of Appeals. And, with the determined precision of a student who has earned top marks, Judge Doris Huspeni, sitting on the panel by designation, opens and unpacks a series of challenges from the Minneapolis grocer 4-You-Foods...

State Senate Committees Jointly Turn to Judicial Selection

Posted on January 28, 2008
The Minnesota Senate Committee on the Judiciary, Committee on State and Local Government Operations and Oversight, and the Judiciary Budget Division, jointly announced this afternoon that it will host a combined hearing on judicial selection and retention in Minnesota...

A $28,000 Grant that Could Pay Real Dividends

Posted on January 27, 2008
The Billings Gazette reported today that, flush with a $28,000 grant, the Supreme Court of Montana will consider developing a new set of metrics to measure Court performance.The grant was generously awarded by the State Justice Institute ? a nonprofit organization in Alexandria, Virginia that underwrites projects to improve the state court system...

3rd Circuit: Disparate Process for Emigrating Sex Offenders Violates Equal Protection Guaranty

Posted on January 26, 2008
In an interesting opinion issued on Wednesday of this week, a divided panel of the U.S. Court of Appeals for the Third Circuit held that a Pennsylvania law which subjected all sex offenders who emigrated to that state to community notification processes, while exempting many Pennsylvania sex offenders from these same processes, violated the Equal Protection Clause of the Fourteenth Amendment...

Legislative Judgment on Post-Divorce Beneficiaries Can Violate Contracts Clause

Posted on January 26, 2008
In a Memorandum Opinion and Order issued on Tuesday of this week, U.S. Court District Court Judge Richard H. Kyle held that a 2002 Minnesota law which automatically revokes the designation of a spouse as the intended beneficiary of a life insurance contract, when the couple divorces, can violate the Contracts Clause of the U...

35 Years Hence, Our Contemporary Fault Line on Abortion

Posted on January 24, 2008
If art is a hammer, then perhaps case law is our mirror. It reflects back a snapshot of our present circumstances, framing in full color our successes in presenting ourselves and the areas in which we still struggle.Tuesday, having been 35 years to the day that the U...

Court of Appeals Accepts Broad View of the Filed Rate Doctrine as a Bar to Claims

Posted on January 23, 2008
In an answer to a certified question that was rendered yesterday, a panel of the Minnesota Court of Appeals held that the ?filed-rate doctrine? barred court actions against electric utilities which challenge the adequacy of services provided, at certain approved rates, under tariffs that had been earlier-approved by the Minnesota Public Utilities Commission...

Not Just Another Vacation Day

Posted on January 21, 2008
As I have done before on this particular court holiday, today I am taking some time out to revisit the writings Reverend Dr. Martin Luther King, Jr.Among the catalogue of items that are now online, the letters between King and a set of religious leaders in Birmingham, Alabama, are perhaps the items that I return to most often...

When the 30-Second Ad Becomes a Pay Per View Feature

Posted on January 20, 2008
On Tuesday of this past week, a special panel of federal judges denied a challenge to the Bipartisan Campaign Reform Act ? more colloquially known as the McCain-Feingold law. The plaintiffs in the suit were the producers of a film entitled ?Hillary: The Movie...

The Road Back from Gully

Posted on January 18, 2008
Yesterday, I had the occasion to preside over a hearing in Gully, Minnesota (Population 106) (Latitude 47.769, Longitude -95.623). And, as one local leader observed during a break in the proceedings, he had not seen as many folks wearing suits and ties in town since the Congressman had last visited there?...

Lopez-Torres: Court Rules 9 to Ø on the Merits; Splits 5 to 4 on Whether to Rebuke New York

Posted on January 17, 2008
Yesterday?s U.S. Supreme Court decision in New York State Board of Elections v. Lopez-Torres is a fascinating opinion. It is quite a read for anyone who is remotely interested in either election law or the process of judicial selection.At issue in the case was whether Kings County Civil Court Judge Margarita Lopez Torres had rights, grounded in the U...

My (Not So) Funny Valentine

Posted on January 13, 2008
At the close of last year, the Chief Justice of the Minnesota Supreme Court, Russell A. Anderson, signed an Order requesting public comment on some recently proposed amendments to the Minnesota Code of Judicial Conduct.The proposals are the work of the Ad Hoc Advisory Committee on the Code...

In Through the Out Door: Circuit Panel Splits on Whether Outside Consultants Can Make Inter-Agency Memos

Posted on January 13, 2008
In an interesting opinion issued on Friday, a panel of the U.S. Court of Appeals for the District of Columbia Circuit split on the question of whether a set of faxes and e-mails written by former government officials, who were acting as unpaid volunteers, may be considered ?intra-agency memoranda? for the purposes of the Freedom of Information Act...

Post-Hoc Legislative History Arrives Too Late for Mine Owners

Posted on January 12, 2008
Among the interesting issues in an opinion issued on Friday by the U.S. Court of Appeals for the District of Columbia Circuit, was whether legislative history in a Senate Committee Report could be considered during a challenge to rulemaking, in a case where the Senate Report was published after the rulemaking was concluded...

Cindy Sheehan Wins a New Trial on Demonstrating Without a Permit Charge

Posted on January 12, 2008
On Friday, a panel of the U.S. Court of Appeals for the District of Columbia Circuit reversed the conviction of Cindy Sheehan, a renowned opponent of the Iraq War and a candidate for the U.S. Congress from the Eighth Congressional District of California...

Letters of Recommendation are One Thing; Commutations Another

Posted on January 12, 2008
In an interesting opinion handed down yesterday, a panel of the U.S. Court of Appeals for the Eighth Circuit turned away the challenge of an Iowa prisoner to a statute that regulates the activities of the Iowa Board of Parole. The statute reduced the frequency with which the Board undertakes the review of sentences of convicted murderers...

Transcripts are Now Available in Photo ID Case

Posted on January 10, 2008
The transcripts from yesterday's oral arguments in the consolidated appeals of Crawford v. Marion City Election Board, and Indiana Democratic Party v. Rokita have been posted to the U.S. Supreme Court's website, and are accessible here.As noted earlier, at issue in these cases is whether ?an Indiana statute mandating that those seeking to vote in person, produce a government-issued photo identification, violates the First and Fourteenth Amendments to the United States Constitution...

A Few Short Notes on Tuesday's Big Cases

Posted on January 09, 2008
As if to herald that the holiday season really is over, yesterday was a big day in courts close to home and around the country. Here are a few short notes:In Advantage Media, LLC v. City of Hopkins, a unanimous panel of the U.S. Court of Appeals for the Eighth Circuit turned away the attorney fee petition of a local billboard company that had earlier won a preliminary injunction against the City of Hopkins' sign ordinance...

Benson to Become CEO of Minnesota Sex Offender Program

Posted on January 08, 2008
The Commissioner of Corrections announced this morning that her Deputy Commissioner for the Facilities Division, Dennis L. Benson, will be leaving the agency after 33 years of service to take a new assignment in the Department of Human Services. On March 5, Benson will become the Chief Executive Officer of the Minnesota Sex Offender Program (MSOP)...

Eighth Circuit: Don?t Save Claims of Physician-Examiner Bias for Trial

Posted on January 08, 2008
In an interesting opinion issued yesterday, a panel of the U.S. Court of Appeals for the Eighth Circuit denied the appeal of the widow of one Cloyd Hepp, from the earlier denial of Social Security disability benefits to Mr. Hepp. Mrs. Hepp sought to set aside the decision of the Social Security Administration, in part, because at the hearing below, the Administrative Law Judge refused to permit cross-examination of the agency?s physician examiner as to other cases in which the physician had rendered an opinion that was unfavorable to the claimant...

Fifth Circuit: Remedy for Abuse of Administrative Warrants is a Bivens Action

Posted on January 06, 2008
In an interesting opinion issued by the U.S. Court of Appeals for the Fifth Circuit before the close of 2007, the appellate panel held that manufacturers do not have a constitutional right to pre-execution hearings on the sufficiency of administrative warrants issued by the federal Occupational Health and Safety Administration; and that OSHA officials may execute such warrants through force, if necessary, by enlisting the aid of the U...

Chevron Reformulated

Posted on January 05, 2008
The most recent issue of the Administrative Law Review (which is a quarterly project of American University?s Washington College of Law and the American Bar Association's Section on Administrative Law and Regulatory Practice) examines the changes and continued viability of the U...

Eighth Circuit Renders a ?Must Read? Special Ed Decision

Posted on January 04, 2008
A unanimous panel of the U.S. Court of Appeals for the Eighth Circuit today handed down a decision that is certain to be studied, discussed and debated among our state?s Special Education Bar.Reversing a lower court?s decision that a disabled Minneapolis teenager, M...

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