Yes, Trump Is (Still) Engaged in an Attempted Coup; and Yes, It Might Lead to a Constitutional Crisis and a Breaking Point

NEIL H. BUCHANAN

UF Levin College of Law professor and economist Neil H. Buchanan explains why Donald Trump’s actions reflect an attempted coup and might still lead to a constitutional crisis. In this column, Buchanan first explains what a coup is and describes the ways that Trump has failed in his attempts thus far. Buchanan warns about how all this could still end in a constitutional crisis that Trump creates and exploits to stay in power.

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Celicourt v. Barr

Court: US Court of Appeals for the First Circuit

Docket: 20-1201

Opinion Date: November 17, 2020

Judge: Boudin

Areas of Law: Government & Administrative Law, Immigration Law

The First Circuit denied Petitioner's petition to review a decision of the Board of Immigration Appeals (BIA) denying his requests for asylum and withholding of removal under the Immigration and Naturalization Act and for protection under the Convention Against Torture (CAT), holding that substantial evidence supported the BIA's decision. Specifically, the First Circuit held (1) Petitioner failed to establish that he had been persecuted or had a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion; and (2) the record did not compel a conclusion that state actors would be complicit in torturing him in the future.

Agudath Israel of America v. Cuomo

Court: US Court of Appeals for the Second Circuit

Docket: 20-3572

Opinion Date: November 18, 2020

Judge: Per Curiam

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

The Second Circuit originally resolved the motions that are the subject of this opinion in an order entered November 9, 2020. Except in unusual circumstances, the court resolves such motions by order, not opinion. The court converted the original order and the dissent into opinions per the dissent's request. These appeals challenge Governor Andrew Cuomo's issuance of an executive order directing the New York State Department of Health to identify yellow, orange, and red "zones" based on the severity of COVID-19 outbreaks and imposing correspondingly severe restrictions on activity within each zone. Appellants, Agudath Israel and the Diocese, each challenged the executive order as a violation of the Free Exercise Clause of the First Amendment. After the district court denied appellants' motion for a preliminary injunction against enforcement of the order, appellants moved for emergency injunctions pending appeal and to expedite their appeals. Preliminarily, the Second Circuit concluded that Agudath Israel did not move first in the district court for an order granting an injunction while an appeal is pending before filing with this court its present motion for an injunction pending appeal. Rather, Agudath Israel moved for a preliminary injunction pending the district court’s final judgment. Furthermore, Agudath Israel has not explained or otherwise justified its failure to comply with the straightforward requirement of Federal Rule of Appellate Procedure 8(a). Agudath Israel has also failed to demonstrate that moving first in the district court would be impracticable, or even futile, particularly in light of the fact that a full eleven days elapsed after the district court's ruling before Agudath Israel sought relief from this court. Therefore, the court denied Agudath Israel's motion for procedural reasons. The court also denied the Diocese's motion, concluding that appellants cannot clear the high bar necessary to obtain an injunction pending appeal. The court stated that, while it is true that the challenged order burdens appellants' religious practices, the order is not substantially underinclusive given its greater or equal impact on schools, restaurants, and comparable secular public gatherings. To the contrary, the executive order extends well beyond isolated groups of religious adherents to encompass both secular and religious conduct.

National University of Health Sciences v. Council on Chiropractic Education, Inc.

Court: US Court of Appeals for the Ninth Circuit

Docket: 19-15352

Opinion Date: November 13, 2020

Judge: Michael R. Murphy

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

The Ninth Circuit filed: (1) an order granting a request for publication, recalling the mandate, and withdrawing a memorandum disposition and replacing it with an opinion; and (2) an opinion affirming in part the district court's judgment denying NUHS relief from a decision of the Council, and dismissing the appeal in part as moot. In this case, after NUHS's appeal of the Council's probation decision was denied, NUHS filed a complaint in federal court raising common law due process claims and seeking injunctive and declaratory relief. The district court denied relief and NUHS appealed. The panel expressed no opinion on the validity of common law due process claims challenging decisions relating to accreditation. The panel held that, because the Council's accreditation standards contemplate situations in which a program can remain accredited even if it is not fully in compliance with all accreditation standards, the Council did not act arbitrarily and capriciously when it simultaneously reaffirmed NUHS's accreditation and imposed probation. Furthermore, the Council's decision to impose probation was not arbitrary and capricious and did not violate the Council's obligation to apply review procedures consistent with due process under 20 U.S.C. 1099b. Finally, because NUHS has no further reporting obligations with respect to NBCE exams administered before the change in Illinois law, its appeal from the denial of injunctive relief prohibiting the Council from enforcing Policy 56 is moot.

Bethesda Health, Inc. v. Azar

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

Docket: 19-5260

Opinion Date: November 13, 2020

Judge: Douglas Howard Ginsburg

Areas of Law: Government & Administrative Law, Health Law

Hospitals, in calculating their Medicaid fractions -- the proportion of treatment a hospital provided to Medicaid patients -- sought to include days of care funded by Florida's Low Income Pool, an approved Medicaid demonstration project. The Secretary refused to allow the Hospitals to include these patients in their Medicaid fraction, on the ground that the patients were treated out of charity rather than as designated beneficiaries of a demonstration project. The DC Circuit affirmed the district court's judgment in favor of the Hospitals, and agreed with the district court that the Secretary's own regulation states that, for the purposes of calculating the Medicaid fraction, "hospitals may include all days attributable to populations eligible for [Medicaid] matching payments through a [demonstration project]" so long as the services provided under the demonstration project include "inpatient hospital services." In this case, it was "obvious to the [c]ourt that uninsured and underinsured patients received inpatient hospital services" through the Low Income Pool, because (1) the Secretary authorized federal matching funds to reimburse hospitals for these services, and (2) the hospitals rigorously documented the services provided using funds from the Pool. Furthermore, the Fifth Circuit's opinion in Forrest Gen. Hosp. v. Azar, 926 F.3d 221 (2019), supported this conclusion.

County of Monterey v. Bosler

Court: California Courts of Appeal

Docket: C085041(Third Appellate District)

Opinion Date: November 16, 2020

Judge: Elena J. Duarte

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

Plaintiff County of Monterey (County) appealed when the trial court denied its petition for writ of mandate and complaint for declaratory and injunctive relief. The County was the successor agency for its former redevelopment agency ("RDA"), and challenged decisions by the Department of Finance (Department) relating to a development known as the East Garrison Project, which was part of the Fort Ord Redevelopment Project located on a closed military base in Monterey. The County claimed the trial court erroneously determined that a written agreement entered into between its former RDA and a private developer (real party in interest, UCP East Garrison, LLC) was not an enforceable obligation within the meaning of the dissolution law because the former RDA did not have the authority to approve the agreement on the date the governor signed the 2011 dissolution legislation. The County further contended the trial court erred in determining the County failed to show the Department abused its discretion in disapproving two separate requests for funding related to administration of the East Garrison Project. The County claimed these administrative costs were expended to complete an enforceable obligation within the meaning of the dissolution law, and therefore the Department should have approved its requests for payment of such costs. Finally, the County argued the Department’s application of the dissolution law improperly impaired UCP’s contractual rights. The Court of Appeal rejected each of the County's contentions and affirmed judgment.

Policemen's Benevolent Labor Committee v. City of Sparta

Court: Supreme Court of Illinois

Citation: 2020 IL 125508

Opinion Date: November 19, 2020

Judge: Thomas L. Kilbride

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

Sparta instituted a policy for evaluating the performance of full-time police officers. Day-shift officers must accumulate at least 82 points, while the standard for night-shift officers is 65 points. Points are awarded for traffic citations, drug task force duties, investigations that take more than one shift, shooting range training; training outside the department, court time, and extra duty shifts. Awards for Officer of the Month and of the Year will be based on the most points earned over the Officer’s monthly minimum standard. Failure to reach the minimum monthly points will result in discipline that is corrective and progressive in nature. The Union alleged the policy establishes an unlawful ticket quota in violation of the Municipal Code (65 ILCS 5/11-1-12). The circuit court granted Sparta summary judgment. The appellate court reversed, holding that the statute prohibits consideration of the number of citations issued when evaluating a police officer’s performance based on points of contact. The Illinois Supreme Court affirmed. Section 11-1-12 first provides a general statement prohibiting citation quotas, defined as “requir[ing] a police officer to issue a specific number of citations within a designated period of time.” The second paragraph, applicable here, does not prohibit evaluating police officers with points-of-contact system and defines a “point of contact” as “any quantifiable contact made in the furtherance of the police officer’s duties,” with the sole exception being “the issuance of citations or the number of citations issued.”

Tzakis v. Maine Township

Court: Supreme Court of Illinois

Citation: 2020 IL 125017

Opinion Date: November 19, 2020

Judge: Mary Jane Theis

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

The plaintiffs filed suit concerning flood damage to their Maine Township property after heavy rains in September 2008, alleging that public entities breached duties owed to them with respect to a stormwater drainage system located near their properties. Plaintiffs claimed that certain actions by the defendants increased water flow to the area and that there has been major flooding in the past. After a 2002 event, the Illinois Department of Natural Resources discovered “numerous bottlenecks and obstructions to flow as the causes of the invasive flooding” in the community. The trial court dismissed, finding that the defendants owed no duty to plaintiffs under the public duty rule and plaintiffs had not alleged any special duty. In the meantime, the Illinois Supreme Court (Coleman) abolished the public duty rule, which provided that a local governmental entity does not owe any duty to individual members of the public to provide adequate governmental services. The trial court found that the new law set forth in Coleman should not be retroactively applied. The Illinois Supreme Court affirmed. Coleman clearly established a new principle of law, overturning decades of existing precedent. Given these circumstances and the two rationales for abolishing the public duty rule, the new law announced in Coleman would not be thwarted by its prospective application. Prospective application avoids substantial inequitable results for defendants who have relied upon the public duty rule throughout the long course of this litigation.

Zander v. Carlson

Court: Supreme Court of Illinois

Citation: 2020 IL 125691

Opinion Date: November 19, 2020

Judge: Lloyd A. Karmeier

Areas of Law: Government & Administrative Law, Labor & Employment Law, Legal Ethics, Professional Malpractice & Ethics

Fox Lake patrol officer Zander was charged with misconduct arising from multiple job-related incidents. The chief recommended termination. Zander's union, FOP, assigned Attorney Carlson, an FOP employee. Zander had no input into the choice of an attorney, had no retainer agreement with Carlson, and was not charged for Carlson’s services. Under the Illinois Municipal Code (65 ILCS 5/1-1-1), police officers who face removal or discharge are entitled to a hearing before the local board of fire and police commissioners unless a collective bargaining agreement (CBA) provides for arbitration. The CBA between Fox Lake and FOP gave officers the option of pursuing either avenue. On Carlson’s advice, Zander chose arbitration. The arbitrator upheld the termination. Zander sued, alleging legal malpractice and that FOP has no right to employ attorneys to furnish legal services under its direction to FOP members, and cannot control what attorneys assigned to help FOP members may do and “should be vicariously liable.” The circuit court dismissed, citing the U.S. Supreme Court’s "Atkinson" holding, which immunizes union members and officers against personal liability for actions taken while acting as a union representative in the context of the collective bargaining process. The court noted the parallels between federal labor law and the Illinois Public Labor Relations Act. The Illinois Supreme Court agreed. But for the collective bargaining agreement. FOP would have owed Zander no duty. Zander’s claim against the union fell within the exclusive jurisdiction of the Illinois Labor Relations Board.

In re: Justice of the Peace Cody King, Ward 6, Morehouse Parish

Court: Louisiana Supreme Court

Docket: 2020-O-01069

Opinion Date: November 19, 2020

Judge: Crichton

Areas of Law: Government & Administrative Law, Legal Ethics, Professional Malpractice & Ethics

The Judiciary Commission of Louisiana filed a disciplinary proceeding against respondent, Justice of the Peace Cody King on one count that alleged respondent violated Canons 1, 2, 2A, 3A(1), 3A(7), and 3B(1) of the Code of Judicial Conduct (1996) and La. Const. Art. V, section 25(C). In 2018, the Attorney General's Office filed the first of three complaints against Respondent with the Office of Special Counsel of the Commission, asserting that Respondent failed to respond to constituents in his district, and likewise failed to respond to letters or calls from the Attorney General's office. In 2019, Hannah Zaunbrecher filed a complaint, asserting: (1) Respondent was difficult to reach; (2) he overcharged Ms. Zaunbrecher for an eviction she filed; (3) he did not set a court date in the eviction matter despite repeated requests from Ms. Zaunbrecher after the eviction was filed; and (4) Respondent failed to refund the unearned filing fee. The OSC sent letters to Respondent notifying him of each complaint. Respondent did not reply despite later acknowledging that he received them. After a hearing on these charges, the Commission filed a recommendation with the Louisiana Supreme Court concluding that the above violations had been proven. To this, the Supreme Court agreed with the Commission’s recommendation, and ordered the removal of Respondent from office, that he reimburse the Commission the costs incurred in the investigation and prosecution of the case, and further, that he pay restitution for an unearned filing fee he failed to return to Parish Leasing Company, LLC.

Doe v. Maine Board of Osteopathic Licensure

Court: Maine Supreme Judicial Court

Citation: 2020 ME 134

Opinion Date: November 17, 2020

Judge: Connors

Areas of Law: Government & Administrative Law

The Supreme Judicial Court affirmed the judgment of the superior court dismissing the three-count complaint filed by John Doe, DO, against the Maine Board of Osteopathic Licensure, holding that Doe failed to state a claim upon which relief may be granted as to any of his claims. Two of Doe's complaints sought a declaration that pending disciplinary complaints against him must be dismissed because the Board did not provide him the required notice, and the third count claimed that the Board failed to address the complaints in a timely manner. The superior court dismissed the first two counts for failure to state a claim and the third count for lack of subject matter jurisdiction. The Supreme Judicial Court affirmed, holding that dismissal of all three counts was proper on the grounds that Doe failed to state a claim upon which relief may be granted.

Mississippi Department of Child Protection Services v. Bynum

Court: Supreme Court of Mississippi

Citation: 2019-SA-01568-SCT

Opinion Date: November 19, 2020

Judge: Maxwell

Areas of Law: Family Law, Government & Administrative Law

The Mississippi Department of Child Protection Services (MDCPS) sought to terminate involuntarily the parental rights of Jack Bynum, the putative father of a child in MDCPS' custody. The chancery court determined Bynum was both indigent and entitled to counsel. The chancellor appointed Bynum counsel and ordered MDCPS to pay his attorney's fees. MDCPS appealed. The agency argued Covington County should have paid for Bynum’s representation, just as it would if Bynum were an indigent criminal defendant. But the Mississippi Supreme Court found this was not a criminal case. "And the statutory scheme that directs the initiating county in criminal prosecutions to pay for indigent representation is expressly limited. It only applies to those 'charged with a felony, misdemeanor punishable by confinement for ninety (90) days or more, or commission of an act of delinquency.'” Thus, absent a legislative directive to assess an indigent parent’s attorney’s fees to Covington County, the chancery court did not abuse its legislatively conferred discretion by ordering MDCPS to pay Bynum’s attorney’s fees.

Montana Environmental Information Center v. Montana Department of Environmental Quality

Court: Montana Supreme Court

Citation: 2020 MT 288

Opinion Date: November 17, 2020

Judge: Gustafson

Areas of Law: Environmental Law, Government & Administrative Law

The Supreme Court affirmed the district court's vacatur of the Montana Department of Environmental Quality's (DEQ) 2017 issuance of Montana Pollution Discharge Elimination System (MPDES) permit to Montanore Minerals Corp. (MMC), holding that the DEQ unlawfully relied upon a 1992 order of the Board of Health and Environmental Sciences (BHES) when issuing the 2017 permit. Specifically, the Supreme Court held (1) the district court correctly concluded that the 1992 BHES order expired prior to DEQ issuing the 2017 permit; and (2) because DEQ relied upon an expired BHES order when it issued the 2017 permit, the permit was not validly issued and must be vacated.

New Hampshire v. Beattie

Court: New Hampshire Supreme Court

Docket: 2019-0460

Opinion Date: November 19, 2020

Judge: James P. Bassett

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

Defendants Shane and Trina Beattie appealed a superior court orderthat dismissed with prejudice their preliminary objection challenging the State’s taking of 0.93 acres of their land in fee simple, as well as permanent and temporary easements. The Beatties argued the trial court erred when, in dismissing their preliminary objection which challenged the necessity and net-public benefit of the taking, the trial court applied the fraud or gross mistake standard of review set forth in RSA chapter 230 rather than a de novo standard pursuant to RSA chapter 498-A. The State contended the trial court did not err because RSA chapter 230, not RSA chapter 498-A governed the outcome of the case. The New Hampshire Supreme Court agreed with the Beatties, reversed and remanded.

Request for an Opinion of the Justices (Quorum under Part II, Article 20)

Court: New Hampshire Supreme Court

Docket: 2020-0414

Opinion Date: November 17, 2020

Areas of Law: Constitutional Law, Government & Administrative Law

The New Hampshire House of Representatives certified a question of law to the New Hampshire Supreme Court. The House asked a single question: whether holding a House session remotely, either wholly or in part, whereby a quorum could be determined electronically, would violated Part II, Article 20, of the New Hampshire Constitution. The Supreme Court responded in the negative. "As long as the requisite number of representatives is 'present,' either in person or virtually, meaning that the requisite number is 'at hand' and '[n]ot absent,' Part II, Article 20 is satisfied."

Christianson v. NDDOT

Court: North Dakota Supreme Court

Citation: 2020 ND 245

Opinion Date: November 19, 2020

Judge: Jerod E. Tufte

Areas of Law: Criminal Law, Government & Administrative Law

Kyle Christianson appealed a district court’s judgment affirming the North Dakota Department of Transportation’s suspension of his driving privileges based on his conviction in Canada for a driving under the influence offense. Christianson argued the Department lacked jurisdiction because the Canadian statute did not define an equivalent offense, and that the hearing officer failed to provide a fair and impartial hearing. The North Dakota Supreme Court affirmed the Department’s suspension and disqualification of Christianson’s noncommercial and commercial driving privileges.

Jundt v. NDDOT

Court: North Dakota Supreme Court

Citation: 2020 ND 232

Opinion Date: November 19, 2020

Judge: Daniel J. Crothers

Areas of Law: Criminal Law, Government & Administrative Law

Corey Jundt appealed a district court judgment affirming an administrative hearing officer’s decision to suspend Jundt’s driving privileges for 180 days for driving under the influence. Jundt argued the hearing officer erred in suspending his driving privileges because the arresting officer failed to read him the implied consent advisory. The North Dakota Supreme Court affirmed, concluding the implied consent requirements of N.D.C.C. 39-20-01 did not apply when an individual consented to a chemical test.

WSI v. Oden

Court: North Dakota Supreme Court

Citation: 2020 ND 243

Opinion Date: November 19, 2020

Judge: Jon J. Jensen

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

Chris Oden appealed a judgment entered against him in a collection action after the district court granted summary judgment in favor of the State, through Workforce Safety and Insurance, (“WSI”). In May 2010, Oden was injured in Missouri while employed by Minot Builders Supply Associates as a truck driver. After review, the North Dakota Supreme Court concluded the court did not abuse its discretion in denying Oden’s motion to dismiss for insufficient service of process, and did not err in granting summary judgment to WSI.

Comanche Nation v. Coffey

Court: Oklahoma Supreme Court

Citation: 2020 OK 90

Opinion Date: November 17, 2020

Judge: Kane

Areas of Law: Civil Procedure, Government & Administrative Law

Plaintiff-appellant Comanche Nation of Oklahoma ex rel. Comanche Nation Tourism Center, filed a lawsuit seeking a declaratory judgment that defendant-appellant Wallace Coffey was indebted to it for the amount of the outstanding balance on an open account. The trial court granted Coffey's motion to dismiss for lack of subject matter jurisdiction and dismissed the case with prejudice. Thereafter, Coffey filed an application for prevailing party attorney fees pursuant to 12 O.S.2011 section 936. The trial court denied Coffey's request for attorney fees, finding he was not the prevailing party because he had not prevailed on the merits of the action. Coffey appealed the order denying attorney fees, and the Oklahoma Supreme Court retained the appeal, holding a defendant was not a "prevailing party" within the meaning of section 936 when the trial court dismissed the action with prejudice for lack of subject matter jurisdiction. The trial court's order denying Coffey's motion for attorney fees was therefore affirmed.

In Re: Canvassing Observ.

Court: Supreme Court of Pennsylvania

Docket: 30 EAP 2020

Opinion Date: November 17, 2020

Judge: Debra McCloskey Todd

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

This appeal arose from the processing of mail-in and absentee ballots received from voters in Philadelphia County in the November 3, 2020 General Election. Specifically, Appellee Donald J. Trump, Inc. (the “Campaign”) orally moved for the Philadelphia County Court of Common Pleas to give its representative more proximate access to the canvassing activities being carried out by Appellant, the Philadelphia County Board of Elections (the “Board”). The trial court denied relief, the Commonwealth Court reversed, and the Board appealed that order. The Pennsylvania Supreme Court concluded the Board did not act contrary to law in fashioning its regulations governing the positioning of candidate representatives during the pre-canvassing and canvassing process, as the Election Code did not specify minimum distance parameters for the location of such representatives. Critically, the Court found the Board’s regulations as applied herein were reasonable in that they allowed candidate representatives to observe the Board conducting its activities as prescribed under the Election Code. Accordingly, the Court determined the Commonwealth Court’s order was erroneous, and vacated that order. The trial court's order was reinstated.

In re Grundstein

Court: Vermont Supreme Court

Citation: 2020 VT 102

Opinion Date: November 13, 2020

Judge: Eaton

Areas of Law: Government & Administrative Law, Legal Ethics

Robert Grundstein appealed the Vermont Board of Bar Examiners’ determination that he failed to establish his eligibility for admission to the Vermont bar in connection with his 2019 application for admission by examination. He argued that, for numerous reasons, the Board erred in evaluating his application pursuant to the Rules of Admission to the Bar of the Vermont Supreme Court in effect at the time his application was submitted. After its review, the Vermont Supreme Court concluded the Board correctly applied the Rules and affirmed.

Frazier v. Bragg

Court: Supreme Court of Appeals of West Virginia

Docket: 19-0519

Opinion Date: November 16, 2020

Judge: Hutchison

Areas of Law: Government & Administrative Law

The Supreme Court reversed the order of the circuit court affirming the decision of the Office of Administrative Hearings (OAH) reversing the administrative order revoking Gary Bragg's driving privileges for driving a motor vehicle while under the influence of alcohol, controlled substances and/or drugs (DUI), holding that the OAH erred in reversing the order of revocation. Specifically, the Supreme Court held (1) the OAH erred in reversing the order of revocation based solely upon the fact that a blood sample withdrawn from Bragg was not tested or made available to Bragg for independent testing; and (2) because the OAH failed otherwise to evaluate the record evidence, the case must be remanded for a determination of whether sufficient evidence supported the administrative revocation of Bragg's driver's license.

Owens v. Lincoln County Board of Education

Court: Supreme Court of Appeals of West Virginia

Dockets: 19-0684, 19-0687

Opinion Date: November 17, 2020

Judge: Walker

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

The Supreme Court affirmed the decision of the circuit court reversing the decision of the Public Employees Grievance Board (PEGB) determining that Petitioners, employees of the Lincoln County Board of Education, did not qualify as Executive Secretaries under W. Va. 18A-4-8(i)(45), holding that the circuit court did not err. Petitioners filed grievances with the PEGB seeking reclassification from Secretary III to Executive Secretary. The PEGB found that Petitioners did not meet section 18A-4-8(i)(45)'s definition of Executive Secretary but that they were entitled to reclassification because they met the Board's definition of Executive Secretary. The circuit court affirmed the PEGB's determination that Petitioners did not qualify as Executive Secretaries under the Code but reversed the decision granting Petitioners' requested classification, concluding that the Board's definition of Executive Secretary contravened state law because it conflicted with section 18A-4-8(i)(45). The Supreme Court affirmed, holding that the Board's definition of the Executive Secretary title was unquestionably contrary to the law.