Not Letting Felons Vote Damages Democracy for All Citizens

AUSTIN SARAT

Austin Sarat— Associate Provost, Associate Dean of the Faculty, and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—argues that disenfranchising felons, as most American states do in some way, does substantial harm to everyone in our democracy. Sarat praises a recent decision by a federal district court in Florida striking down a state law requiring people with serious criminal convictions to pay court fines and fees before they can register to vote, but he cautions that but much more needs to be done to ensure that those who commit serious crimes can exercise one of the essential rights of citizenship.

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Club One Casino, Inc. v. Bernhardt

Court: US Court of Appeals for the Ninth Circuit

Docket: 18-16696

Opinion Date: May 27, 2020

Judge: Murguia

Areas of Law: Gaming Law, Government & Administrative Law, Native American Law

Plaintiff cardrooms, filed suit challenging the Secretary's approval of a Nevada-style casino project on off-reservation land in the County of Madera, California by the North Fork Rancheria of Mono Indians, a federally recognized tribe. The district court granted summary judgment in favor of the Department and Secretary. The Ninth Circuit held that the Tribe's jurisdiction over the Madera Parcel operates as a matter of law and the Tribe clearly exercised governmental power when it entered into agreements with local governments and enacted ordinances concerning the property; because neither the Enclave Clause nor 40 U.S.C. 3112 are implicated here, neither the State's consent nor cession is required for the Tribe to acquire any jurisdiction over the Madera Parcel; and the Indian Reorganization Act does not offend the Tenth Amendment because Congress has plenary authority to regulate Indian affairs. Therefore, the Secretary's actions were not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

Stand Up for California! v. U.S. Department of the Interior

Court: US Court of Appeals for the Ninth Circuit

Docket: 18-16830

Opinion Date: May 27, 2020

Judge: Ronald Murray Gould

Areas of Law: Environmental Law, Gaming Law, Government & Administrative Law

Plaintiffs filed suit challenging the Secretary's issuance, under the Indian Gaming Regulatory Act (IGRA), of Secretarial Procedures which authorize the North Fork Rancheria of Mono Indians to operate class III gaming activities on a parcel of land in Madera, California. The district court granted summary judgment in favor of the Secretary and intervenor. The Ninth Circuit affirmed in part as to plaintiffs' Johnson Act claim, holding that Secretarial Procedures are an exception to the prohibitions of the Johnson Act and thus they comply with the Administrative Procedure Act. The panel vacated and remanded in part as to the National Environmental Policy Act (NEPA) claim, holding that the IGRA does not categorically bar application of NEPA because the two statutes are not irreconcilable and do not displace each other, and because a contrary result would contravene congressional intent and common sense. Finally, the panel vacated and remanded in part as to the Clean Air Act (CCA) claim, holding that Secretarial Procedures are categorically exempt from the CAA's requirement of a conformity determination.

Couser v. Gay

Court: US Court of Appeals for the Tenth Circuit

Docket: 19-3088

Opinion Date: May 22, 2020

Judge: Scott Milne Matheson, Jr.

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

In August 2017, Kansas law enforcement officers, after a traffic chase, pulled over Matthew Holmes for suspected vehicular burglary. The officers were from the City of Newton Police Department (“NPD”), McPherson County Sheriff’s Office (“MCSO”), and Harvey County Sheriff’s Office (“HCSO”). After Holmes stopped and exited the car, officers wrestled him to the ground. McPherson County Sheriff’s Deputy Chris Somers shot Holmes in the back. He later died from the gunshot wound. Holmes' estate sued, alleging constitutional violations under 42 U.S.C. 1983 ad a state law claim. The district court granted in part and denied in part Defendants' Rule 12(b)(6) motions. In particular, it denied each sheriff’s motion to dismiss based on Eleventh Amendment immunity because, “with respect to local law enforcement activities, sheriffs are not arms of the state but rather of the county that they serve.” The Tenth Circuit determined the district court did not err in denying the sheriffs' motions, and therefore affirmed.

Cox v. Wilson

Court: US Court of Appeals for the Tenth Circuit

Docket: 18-1353

Opinion Date: May 22, 2020

Judge: Harris L. Hartz

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

Plaintiff Cody Cox sued Defendant Don Wilson, a deputy in the Clear Creek County Sheriff’s Department, under 42 U.S.C. 1983. Cox alleged that when Wilson shot him in his vehicle while stopped on Interstate 70, Wilson violated the constitutional prohibition against the use of excessive force by law-enforcement officers. Plaintiff appealed when the jury returned a verdict in favor of the deputy, arguing the district court erred in failing to instruct the jury to consider whether Wilson unreasonably created the need for the use of force by his own reckless conduct. The Tenth Circuit determined that although the district court incorrectly stated the Supreme Court had recently abrogated the Tenth Circuit's precedents requiring such an instruction in appropriate circumstances, the evidence in this case did not support the instruction. "No law, certainly no law clearly established at the time of the incident, suggests that Wilson acted unreasonably up to and including the time that he exited his vehicle and approached Cox’s vehicle." Therefore, the Tenth Circuit affirmed the district court's judgment in favor of Deputy Wilson.

Shands Jacksonville Medical Center, Inc. v. Azar

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

Docket: 19-5087

Opinion Date: May 26, 2020

Judge: Judith Ann Wilson Rogers

Areas of Law: Government & Administrative Law, Health Law

The district court remanded the Fiscal Year 2014 Rule to the Secretary of Health and Human Services without vacating the Rule. The district court's decision was made in response to the challenge by a group of hospitals to a 0.2% reduction in Medicare reimbursement rates for inpatient hospital services. The Secretary subsequently increased the Medicare inpatient rates by 0.6% for Fiscal Year 2017 to offset the past effects of the abandoned rate reduction. The DC Circuit affirmed the district court's grant of summary judgment for the Secretary. The court held that the district court was not required to vacate the Rule or order make whole relief as the hospitals sought, and the remedy on remand reasonably addressed the problem. The court also held that the district court did not err in partially granting and denying statutory interest to certain hospitals in accord with this court's precedent. Finally, the court affirmed the partial award and denial of statutory interest.

Arkansas Department of Finance & Administration v. Carpenter Farms Medical Group, LLC

Court: Arkansas Supreme Court

Citation: 2020 Ark. 213

Opinion Date: May 28, 2020

Judge: Rhonda K. Wood

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

In this action challenging the decision of the Arkansas Medical Marijuana Commission disqualifying Carpenter Farms Medical Group, LLC's application for a marijuana-cultivation facility the Supreme Court affirmed in part and reversed and dismissed in part the judgment of the circuit court denying the State's motion to dismiss based on sovereign immunity, holding that the complaint may go forward only under Ark. Code Ann. 25-15-207 and the declaratory judgment action alleging an equal protection violation. In its complaint, Carpenter Farms asserted (1) it was the only 100 percent minority-owned applicant and that the Commission singled out its application for disparate treatment in violation of equal protection guarantees; and (2) the Commission violated the Administrative Procedure Act by failing to adopt certain rules and improperly applying the rules it did adopt. The circuit court denied the State's motion to dismiss based on sovereign immunity. The Supreme Court reversed and dismissed in part, holding (1) the lawsuit cannot proceed regarding the Commission's application of its own rules or as an administrative appeal; and (2) Carpenter Farms can go forward with it claim that the Commission failed to adopt model rules and with its declaratory judgment action alleging an equal protection violation.

City of Chula Vista v. Sandoval

Court: California Courts of Appeal

Docket: C080711(Third Appellate District)

Opinion Date: May 27, 2020

Judge: Vance W. Raye

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

The Court of Appeal summed up the issue before it on appeal in this matter: a fight between the tax entities who negotiated favorable passthrough agreements before their redevelopment agencies were dissolved, and those who did not, for their pro rata share of the residual pool of money in the redevelopment property tax fund left for distribution after the successor agencies first paid the passthrough agreements in full, enforceable obligations, and administrative costs. Seven cities filed a petition for mandamus and declaratory relief against Tracy Sandoval, the auditor-controller for the County of San Diego (Auditor) challenging the methodology the Auditor used to distribute the residual pool of former tax increment, a method that favored San Diego County and, at least, three community college districts, all of whom had passthrough agreements with their former redevelopment agencies. The trial court agreed with Cities and granted their petition. Auditor appealed. The Court of Appeal concluded there was no plain meaning to be attributed to the applicable statutory language. The Court felt compelled nonetheless to construe the "mangled" statutes as it found them, and offered direction to auditor-controllers throughout California. The Court accepted nearly all of Cities’ contentions, including their premise that the fundamental purpose of Health & Safety Code section 34188, was to include passthrough payments as part of a taxing entity’s Assembly Bill No. 8 (1977-1978 Reg. Sess.) pro rata share and thereby equalize the tax distributions to those taxing entities with favorable passthrough agreements and those without. The Court reversed the trial court's decision to grant the Cities' petition for a writ of mandate. "Without deciding on the constitutionality of Cities’ interpretation of the statutes, we can say their interpretation raises substantial doubt as to the constitutionality of Cities’ methodology, adding support to our conclusion the trial court erred and Auditor’s methodology must prevail."

County of Santa Clara v. Workers' Compensation Appeals Board

Court: California Courts of Appeal

Docket: H046562(Sixth Appellate District)

Opinion Date: May 27, 2020

Judge: Nathan D. Mihara

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

Justice, employed as a workers’ compensation claims adjuster since 1991, fell at work in 2011 and injured her left knee. She later developed problems in her right knee, which was found to be a compensable consequence of the first injury. In 2012-2013 Justice had total bilateral knee replacement. Dr. Anderson, an orthopedic surgeon, testified that there was significant preinjury degeneration in both knees, that knee replacement was not required because of the meniscus tear, and that the fall “hasten[ed]” the need for knee replacement by “lighting up the underlying pathology.” Anderson apportioned 50 percent of the bilateral knee disability to the nonindustrial, preexisting degeneration. The workers’ compensation judge determined that Justice had sustained permanent partial disability of 48 percent, worth $59,110.00, stating that “the need for these surgeries was at least partially non-industrial. … the surgeries appear to have significantly increased [Justice’s] ability to walk and engage in weight-bearing activities. The judge stated that before the 2017 Hikida decision, he would have awarded permanent disability with 50% apportionment but that Hikida precluded apportionment. The Appeals Board affirmed. The court of appeal annulled the decision. Justice's permanent disability should have been apportioned between industrial and nonindustrial causes. Hikida, in which a medical treatment resulted in a new compensable consequential injury, is distinguishable. Here, there was unrebutted substantial medical evidence that Justice’s permanent disability was caused, in part, by preexisting pathology. Apportionment was required. Whether or not the workplace injury “directly caused” the need for surgery, the apportionment statutes demand that the disability be sorted among direct and indirect causal factors.

Valero Refining Co. v. Bay Area Air Quality

Court: California Courts of Appeal

Docket: A151004(First Appellate District)

Opinion Date: May 28, 2020

Judge: Stewart

Areas of Law: Environmental Law, Government & Administrative Law

An oil refinery, Valero, undertook a three-year construction project to comply with a consent decree with the federal government and to upgrade its facility. The project resulted in a significant reduction in air pollution. After the construction, Valero sought approval from the regional air quality management district to bank the resulting emissions reductions as environmental credits. It was denied a significant portion of the requested credits. The superior court set aside the hearing board’s decision, holding that the board did not apply the correct standard of review in declining to consider evidence that denial of the banking application was “unfair” under the circumstances. The court of appeal reversed. The agency official charged with considering the application in the first instance denied the credits; applying a local air district regulation that prescribes the methodology for measuring emissions reductions, the official calculated a significantly lower reduction in air pollution than the refinery calculated. The hearing board upheld that interpretation of the regulation; its standard of review neither requires nor empowers it to consider whether applying the regulation to the particular case is "fair." The board is limited to a quasi-judicial inquiry entailing the exercise of its independent judgment to decide if the agency official’s interpretation of the regulation was correct. The board could, and did, appropriately consider Valero’s evidence regarding the fairness of applying the regulation to Valero in addressing Valero’s claim that the district was equitably estopped from applying it.

Noell Industries v. Idaho Tax Commission

Court: Idaho Supreme Court - Civil

Docket: 46941

Opinion Date: May 22, 2020

Judge: Moeller

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

In 2010, Noell Industries, Inc. sold its interest in a limited liability company for a net gain of $120 million. Noell Industries reported the income to Idaho, but paid all of the resulting tax on the gain to the Commonwealth of Virginia, its commercial domicile. Following an audit, the Idaho Tax Commission concluded the net gain was “business income” pursuant to Idaho Code section 63-3027(a)(1) and, thus, apportionable to Idaho. Noell Industries sought judicial review before the Ada County District Court pursuant to Idaho Code section 63-3049(a). The district court ruled that the Commission erred when it: (1) determined that Noell Industries paid insufficient taxes in 2010; and (2) assessed additional tax and interest against it. The Commission appealed. Finding no reversible error in the trial court's judgment, the Idaho Supreme Court affirmed.

HWCC-Tunica, Inc. v. Mississippi Dept. of Revenue

Court: Supreme Court of Mississippi

Citation: 2019-CA-00336-SCT

Opinion Date: May 28, 2020

Judge: James W. Kitchens

Areas of Law: Civil Procedure, Gaming Law, Government & Administrative Law, Tax Law

HWCC-Tunica, LLC, and BSLO, LLC, had casino members’ rewards programs that allowed members to earn entries into random computerized drawings to win prizes. In 2014, after recalculating their gross revenue and deducting the costs of prizes from their rewards programs’ drawings, HWCC and BSLO filed individual refund claims for the tax period of October 1, 2011, through August 31, 2014. The Mississippi Department of Revenue (MDOR) denied the refund claims in 2015. HWCC and BSLO appealed, and MDOR and the Mississippi Gaming Commission (MGC) filed a joint motion for summary judgment, arguing the plain language of Mississippi Code Section 75-76-193 (Rev. 2016) does not allow a casino to deduct the cost of prizes purchased for a rewards program’s drawings because “these promotional giveaways are not the result of 'a legitimate wager’ as used in [Mississippi Code Section] 75-76-193.” After a hearing on the motion, the chancellor determined that Section 75-76-193 does not allow HWCC and BSLO to deduct the cost of the prizes and that there were no genuine issues of material fact. After review, the Mississippi Supreme Court found the chancellor erred by giving deference to the MDOR’s and the MGC’s interpretations of Code Section 75-76-193. That error notwithstanding, the Supreme Court found the chancellor reached the right conclusion: that no genuine issues of material fact existed. Accordingly, the Supreme Court affirmed the chancellor’s grant of summary judgment.

Methodist Specialty Care Center v. Mississippi Division of Medicaid

Court: Supreme Court of Mississippi

Citation: 2019-CC-00037-SCT

Opinion Date: May 28, 2020

Judge: Chamberlin

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

Methodist Specialty Care Center was the only nursing facility for the severely disabled (NFSD) in Mississippi. NFSDs generally incur higher costs than other nursing facilities, and because of this, Methodist received a percentage adjustment to its new-bed-value (NBV) calculation when the Mississippi Division of Medicaid (DOM) determined how much it should reimburse Methodist for its property costs through the DOM’s fair-rental system. A NBV was intended to reflect what it would cost to put a new bed into service in a nursing facility today. Methodist had received a NBV adjustment of 328.178 percent added to the standard NBV every year since it opened in 2004 until State Plan Amendment (SPA) 15-004 was enacted. During the 2014 Regular Session, the Mississippi Legislature passed House Bill 1275, which authorized the DOM to update and revise several provisions within the State Plan; one such amendment changed Methodist's adjustment rate, and made the facility experience a substantial decrease in its NBV, while all other nursing facilities in the state received increases. Methodist appealed the DOM’s changes to its NBV that were enacted in SPA 15-004. After a hearing, an Administrative Hearing Officer (AHO) upheld the decreased percentage adjustment to Methodist’s NBV, but also determined the DOM had miscalculated Methodist’s NBV adjustment. The DOM had planned to calculate Methodist’s adjustment as 175 percent of the base NBV, but the AHO found that Methodist’s adjusted NBV should be calculated in the same manner as it was calculated preamendment - by taking 175 percent of the standard NBV and adding that value to the standard NBV. Methodist still felt aggrieved because its NBV adjustment rate had not been restored to the preamendment rate. Methodist appealed the DOM’s final decision to the Chancery Court. When the chancellor affirmed the DOM’s final decision, Methodist appealed to the Mississippi Supreme Court. After review, the Supreme Court found the DOM’s final decision was supported by substantial evidence, was not arbitrary or capricious, did not violate Methodist’s constitutional or statutory rights and that the DOM was acting within its power in reaching and adopting its final decision.

Flathead Lakers v. Montana Department of Natural Resources & Conservation

Court: Montana Supreme Court

Citation: 2020 MT 132

Opinion Date: May 26, 2020

Judge: Beth Baker

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

The Supreme Court reversed the judgment of the district court voiding a permit issued by the Department of Natural Resources and Conservation (DNRC) allowing the Montana Artesian Water Company (MAWC) to appropriate water, holding that while the DNRC issued its preliminary determination granting MAWC the water use permit based on incomplete data, because the statutory deadline had passed, the application was deemed correct and complete as a matter of law, and DNRC could not require the missing information. DNRC failed to identify defects in the application before the statutory deadline. The district court concluded that DNRC failed to comply with its own rules to determine whether the application was correct and complete and voided the permit without addressing other issues raised on judicial review. The Supreme Court reversed and remanded the case for further proceedings, holding (1) with or without the missing information, MAWC's application became correct and complete as a matter of law after the statutory deadline had passed; and (2) Mont. Code Ann. 85-2-302(5) forecloses an argument regarding compliance with application requirements the agency imposed by rule.

Appeal of New Hampshire Department of Environmental Services

Court: New Hampshire Supreme Court

Docket: 2018-0650

Opinion Date: May 22, 2020

Judge: Anna Barbara Hantz Marconi

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

Petitioner New Hampshire Department of Environmental Services (DES) appealed a decision by the New Hampshire Wetlands Council remanding an administrative order issued by DES that directed respondents Bryan and Linda Corr to cease and desist unpermitted work on their lakefront property. The Corrs owned property in Moultonborough located on the shore of Lake Winnipesaukee. When they purchased the property, it contained a dry boathouse, positioned approximately two feet from the shore, which was partially collapsed as a result of snow load. The boathouse was considered a “grandfathered” or nonconforming structure for purposes of the Shoreland Protection Act. The Corrs made plans to replace the boathouse. They hired a land use consultant to assist them with the process, which required approvals from the Town of Moultonborough, as well as DES. After obtaining the building permit from the Town and the PBN from DES, the Corrs commenced construction. They spent over $100,000 on the permitted structure. When the structure was framed and nearing completion, DES visited the site to conduct an inspection, purportedly in response to a complaint the department had received. Subsequently, DES issued a Letter of Deficiency to the Corrs informing them that the structure was 27 feet tall, and therefore not compliant with DES regulations. The Corrs appealed DES’ administrative order to the Council. In their appeal, the Corrs raised four alternative arguments as to how DES had acted unlawfully and unreasonably in issuing its order. The New Hampshire Supreme Court agreed with the Corrs that DES did not have the authority to limit the height of their structure. The COurt affirmed the Council's decision to the extent that it concluded that a 12-foot height restriction did not apply to the Corrs’ structure. However, the Court vacated all other aspects of the Council’s decision, remanding with instructions to grant the Corrs’ appeal and to vacate DES’ administrative order, which relied solely on the alleged height violation. In light of the result reached, the Court did not address any additional arguments raised by the parties.

In the Matter of John F. Russo, Jr.

Court: Supreme Court of New Jersey

Docket: d-100-18

Opinion Date: May 26, 2020

Judge: Stuart Rabner

Areas of Law: Government & Administrative Law, Legal Ethics

A complaint issued by the Advisory Committee on Judicial Conduct (ACJC) alleged four counts of misconduct against a superior court judge, Respondent John Russo, Jr. The charges and findings related to four discrete instances of misconduct. Count I, the most serious matter, concerns Respondent’s conduct at a hearing on an application for a final restraining order. The misconduct charged related to his questioning of an alleged victim of domestic violence who testified that she had been sexually assaulted, as well as his comments to staff members in open court after the hearing. Count II addressed a personal guardianship matter in which Respondent allegedly asked a Judiciary employee to contact her counterpart in another vicinage and request that a hearing be rescheduled to accommodate Respondent. Count III asserted Respondent created the appearance of a conflict of interest when he presided over a matter in the Family Division in which he knew both parties since high school. Count IV related to Respondent’s ex parte communication with an unrepresented litigant. After it conducted a hearing, the ACJC found clear and convincing evidence to support all the charges. A panel of three Judges designated by the Supreme Court then conducted a separate, additional hearing and concluded that the evidence supported a finding beyond a reasonable doubt that Respondent violated the Canons of the Code of Judicial Conduct and the Rules cited in all four counts. The panel recommended that Respondent be removed from office. Based on its review of the extensive record, the New Jersey Supreme Court found beyond a reasonable doubt that there was cause for Respondent’s removal, and ordered such removal.

S.C. v. New Jersey Department of Children and Families

Court: Supreme Court of New Jersey

Docket: a-57-18

Opinion Date: May 27, 2020

Judge: Jaynee LaVecchia

Areas of Law: Family Law, Government & Administrative Law

This appeal involved the investigation into a claim that a mother, S.C., abused her seven-year-old son by corporal punishment. The New Jersey Department of Children and Families (Department) concluded, after its investigation, that the claim of abuse was “not established.” Because the abuse allegation was deemed “not established” rather than “unfounded,” it was not eligible to be expunged. S.C. appealed the Department’s action, claiming: (1) a deprivation of her due process rights because she was not afforded a hearing; and (2) that the Department’s “not established” finding was arbitrary and capricious because the record was insufficient to support a finding that her son was harmed. S.C. did not raise a direct challenge to the validity of having a “not established” finding category in the Department’s regulations, although amici urged that the category be declared illegitimate and eliminated. The New Jersey Supreme Court reversed and remanded: (1) for the Department to provide improved notice of the basis on which its investigation has found credible evidence to support the allegation of harm; and (2) for S.C. to have an informal opportunity before the Department to rebut and/or supplement the record before the Department finalizes its finding. The Supreme Court rejected that due process considerations required the Department to conduct an adjudicative contested case proceeding either internally or at the Office of Administrative Law for a “not established” finding. That said, on the basis of the present record, the Supreme Court could not assess whether the “not established” finding in this instance was arbitrary or capricious. "It would be well worth the effort of the Department to revisit its regulatory language concerning the standard for making a 'not established' finding as well as its processes related to such findings. Our review of this matter brings to light shortcomings in fairness for parents and guardians involved in investigations that lead to such findings and which may require appellate review."

State ex rel. Feltner v. Cuyahoga County Board of Revision

Court: Supreme Court of Ohio

Citation: 2020-Ohio-3080

Opinion Date: May 28, 2020

Judge: Judith L. French

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

The Supreme Court denied the writ of prohibition sought by a property owner who was the subject of a board of revision foreclosure seeking to invalidate the foreclosure adjudication, holding that the board of revision did not patently and unambiguously lack jurisdiction when it proceeded in the foreclosure action. The Cuyahoga Board of Revision (BOR) entered a judgment of foreclosure concerning real property owned by Elliott Feltner. More than a year later, Feltner filed this original action asserting multiple prohibition and mandamus claims against the BOR and others. The Supreme Court granted an alternative writ of prohibition as to two of the claims against the BOR and its members concerning whether the statutes under which the BOR proceeded violated the separation of powers doctrine or the due process clauses of the state and federal Constitutions. The Supreme Court then made a final determination denying the writ, holding (1) at the time of its judgment, the BOR acted with presumptively valid statutory authority and therefore did not patently and unambiguously lack jurisdiction to proceed; and (2) this Court therefore has no authority to undo the BOR's final judgment and need not consider the merit of Feltner's constitutional challenge.

In re: Initiative Petition No. 426 State Question No. 810

Court: Oklahoma Supreme Court

Citation: 2020 OK 43

Opinion Date: May 27, 2020

Judge: Douglas L. Combs

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

In October 2019, the Respondents-Proponents Andrew Moore, Janet Ann Largent, and Lynda Johnson filed Initiative Petition No. 420, State Question No. 804 (IP 420), with the Secretary of State of Oklahoma. The initiative measure proposed for submission to the voters the creation of a new constitutional article, Article V-A, which would create the Citizens' Independent Redistricting Commission (Commission). IP 420 was challenged in two separate cases. On February 4, 2020, the Oklahoma Supreme Court handed down its decisions in both matters. Two days later, February 6, 2020, the proponents of IP 420 filed a new initiative petition (Initiative Petition No. 426, State Question 810). The Secretary of State published the required notice of the initiative petition on February 13, 2020. Initiative Petition No. 426 (IP 426) was nearly identical to IP 420, creating a new constitutional article, Article V-A, which would create the Citizens' Independent Redistricting Commission (Commission). Like IP 420, it would vest the power to redistrict the State's House of Representatives and Senatorial districts, as well as Federal Congressional Districts, in this newly created Commission. Initiative Petition No. 426, like IP 420, requires the Commission's Secretary to gather information from the Department of Corrections about the home address of state and federal inmates and add this information to the Federal Decennial Census data so that incarcerated people can be counted in their home communities rather than place of incarceration. The issue presented to the Supreme Court's original jurisdiction involved the legal sufficiency of Initiative Petition No. 426, State Question No. 810. The Petitioners contended the petition was unconstitutional because it violated Article 1, section 2, the Equal Protection Clause and the First Amendment of the United States Constitution. Upon review, the Supreme Court held Petitioners did not meet their burden to show Initiative Petition No. 426 contained "clear or manifest facial constitutional infirmities." On the grounds alleged, the petition is legally sufficient for submission to the people of Oklahoma.

Bailey v. SC State Election

Court: South Carolina Supreme Court

Docket: 27975

Opinion Date: May 27, 2020

Judges: John W. Kittredge, Few, James

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

"The right to vote is a cornerstone of our constitutional republic." The voting laws implicated in this case were South Carolina statutes governing absentee voting. Pursuant to subsection 7-15-320(A) of the South Carolina Code (2019), absentee ballots could be used by certain voters who were unable to vote in person because they were absent from their county of residence on election day during the hours the polls are open. Subsection 7-15-320(B) allowed voters to cast absentee ballots when they were not absent from the county, but only if they fit into one of the listed categories of people eligible to vote by absentee ballot. Plaintiffs contended that in the face of the COVID-19 pandemic, existing South Carolina law permitted all South Carolina registered voters to vote by absentee ballot in the June 9, 2020 primary election and the November 3, 2020 general election. Plaintiffs implicitly contended that if existing law did not permit this, it should. Plaintiffs asked the South Carolina Supreme Court to hear this case in its original jurisdiction. The South Carolina Republican Party was granted permission to intervene, and moved to dismiss. The Supreme Court granted the request to hear the case in its original jurisdiction, declined to dismiss on grounds raised by the South Carolina Republican Party, but dismissed on alternate grounds: the case did not present a justiciable controversy.

Byrne v. City of Alexandria

Court: Supreme Court of Virginia

Docket: 190449

Opinion Date: May 28, 2020

Judge: Charles S. Russell

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

In this land use case, the Supreme Court affirmed the judgment of the circuit court sustaining a demurrer and dismissing a landowner's appeal from the decision of the city council, holding that the circuit court did not err in granting a motion craving oyer of the legislative record upon which the city council's decision was based and in thereafter sustaining a demurrer. Plaintiff, who owned a house in the historic district of the City of Alexandria, submitted a plan to install a Victorian metal "wicket and spear" fence pierced by two gates. The Board of Architectural Review (BAR) approved a certificate of appropriateness as to the materials and fence design but with the condition that the width of the double gate not exceed six feet. The City Council affirmed the BAR's decision. Plaintiff appealed to the circuit court. In response, the City filed a demurrer and a motion craving oyer of the legislative record that had been before the city council when it made its decision. The court granted the motion craving oyer and then sustained the demurrer. The Supreme Court affirmed, holding that the circuit court did not err in granting the motion craving oyer of the legislative record in Plaintiff's appeal or in sustaining the demurrer.

Cole v. Smyth County Board of Supervisors

Court: Supreme Court of Virginia

Docket: 171205

Opinion Date: May 28, 2020

Judge: S. Bernard Goodwyn

Areas of Law: Government & Administrative Law

The Supreme Court held that closed sessions conducted by the Smyth County Board of Supervisors (the Board) regarding actual or probable litigation violated the Virginia Freedom of Information Act (VFOIA), Va. Code 2.2-13700 through -3715. In 2016, the Board voted to remove its seven appointees to the Smyth-Bland Regional Library's board of trustees and named its own seven members as new trustees on the Library's board of trustees. Three of the removed trustees sued the Board asking reinstatement to the Library's board of trustees. The Board subsequently held closed sessions discussing the pending litigation and the potential disbandment of the Library. The Board then held a special meeting open to the public adopting a resolution to disband the Library. Plaintiff filed a petition for injunction alleging that the Board failed to comply with several provisions of VFOIA. The circuit court ruled that the closed sessions were properly held and that the discussions in the closed sessions were exempted from the open meeting requirements of VFOIA. The Supreme Court reversed, holding that the Board violated VFOIA.

Fairfax Board of Supervisors v. Ratcliff

Court: Supreme Court of Virginia

Docket: 191128

Opinion Date: May 28, 2020

Judge: Per Curiam

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

The Supreme Court dismissed this appeal from a decision of the circuit court reversing the decision of the Board of Zoning Appeals (BZA) holding that short-term rentals were not authorized by Fairfax County zoning ordinances, holding that this case was moot. The Ratcliffs owned a home in Fairfax County that they made available as a short-term rental. After the decisions of the BZA and circuit court, the Board of Supervisors of Fairfax County filed a petition for appeal with the Supreme Court. The Ratcliffs filed a motion to dismiss the appeal as moot because they had sold the home. The Supreme Court dismissed the appeal as moot because there was no live controversy. The Court then ordered that the circuit court's judgment be vacated, holding that vacatur of the lower court judgment was appropriate.

Rowland v. Town Council of Warrenton

Court: Supreme Court of Virginia

Docket: 190580

Opinion Date: May 28, 2020

Judge: Lawrence L. Koontz, Jr.

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

The Supreme Court affirmed the judgment of the circuit court upholding the town council's approval of the developers' conditional zoning application, holding that a local government may accept a conditional proffer from a property owner as part of a rezoning application that alters a minimum mixed-use requirement of a zoning district below that specified in the local zoning ordinance. Ten property owners filed an application with the Warrenton Planning Commission to rezone thirty-one acres of land within Warrenton from industrial to industrial planned unit development (I-PUD). The developers' proffer statement included mixed land use percentages that did not comport with the target of the town's zoning ordinance percentages. The town council approved the rezoning. Several residents jointly filed a complaint challenging the approval of the rezoning. The circuit court granted judgment in favor of the town council and the developers. The Supreme Court affirmed, holding that the circuit court correctly interpreted the language of the ordinance to be in accord with the authorizing statutes and the definitional section of Va. Code 15.2-2201.