Should Animals Be Allowed to Sue?

SHERRY F. COLB

Cornell law professor Sherry F. Colb comments on case in which Animal Legal Defense Fund (ALDF) brought a civil damages suit on behalf of an abused horse, now named Justice, against the horse’s former owner. Colb dismantles three arguments critics raise in opposition to recognizing abused animals as plaintiffs in lawsuits such as this one.

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Daoud v. Barr

Court: US Court of Appeals for the First Circuit

Docket: 19-1283

Opinion Date: January 28, 2020

Judge: Sandra Lea Lynch

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

The First Circuit dismissed Petitioner's petition for review of a decision of the Bureau of Immigration Appeals (BIA) rejecting reopening and reconsideration of denial of relief from removal, holding that the limitations in 8 U.S.C. 1252(a)(2)(C)-(D) divest this Court of jurisdiction over the petition. Petitioner, a native and citizen of Sudan, was removed from the United States after his robbery conviction. Petitioner later filed a motion to reopen removal proceedings as to his requests for relief based on purported changed country conditions in Sudan. The motion was filed outside the ninety-day deadline for motions to reopen and the thirty-day deadline for motions to reconsider. The immigration judge denied the motion. The BIA dismissed Petitioner's appeal, concluding that 8 C.F.R. 1003.23(b)(1) prevented Petitioner from filing his motion to reopen and, alternatively, that the motion was denied in the exercise of the BIA's discretion. The First Circuit dismissed Petitioner's petition for review, holding that because no questions of law or constitutional claims were presented by Petitioner's challenge to the BIA's alternative discretionary holding, the jurisdictional bar set forth under 8 U.S.C. 1252(a)(2)(C)-(D) applied.

Shelby Advocates for Valid Elections v. Hargett

Court: US Court of Appeals for the Sixth Circuit

Docket: 19-6142

Opinion Date: January 24, 2020

Judge: Per Curiam

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

The plaintiffs sued, alleging that, in future elections, the defendants (various officials) will burden their right to vote, dilute their votes, and disenfranchise them in violation of the Equal Protection and Due Process clauses. The plaintiffs cited election administration problems: election workers are poorly trained, sometimes distributing the wrong ballots, sometimes recording the wrong address when registering a voter; failure to recertify the voting machines; failure to follow fair protocols for uploading votes; the use of digital voting machines, vulnerable to hacking and cyberattacks, that do not produce a paper record of each voter’s choices. The Sixth Circuit affirmed the dismissal of the suit. The complaint’s allegations with respect to injury all reference prior system vulnerabilities, previous equipment malfunctions, and past election mistakes; nearly all of the allegations of past harm stem from human error rather than errors caused by the voting machines or hacking. Fear that individual mistakes will recur, generally speaking, does not create a cognizable imminent risk of harm. The plaintiffs do not allege that Shelby County election officials always make these mistakes or that the government entities ordered the election workers to make such mistakes. The plaintiffs have not plausibly shown that there is a substantial risk of vote flipping. Without imminent harm, the individual plaintiffs have no standing to sue. The plaintiffs allege only policies that add risk to the ever-present possibility that an election worker will make a mistake.

Elston v. County of Kane

Court: US Court of Appeals for the Seventh Circuit

Docket: 19-1746

Opinion Date: January 28, 2020

Judge: Barrett

Areas of Law: Civil Rights, Government & Administrative Law, Personal Injury

Elston and his friends were playing basketball at a DuPage County park, heckling one another with salty language. Demeter, an off-duty Kane County sheriff’s deputy, watching his child’s soccer game, demanded that they stop using expletives. Demeter flashed his badge and gun. The boys refused to clean up their language. Demeter grabbed Elston by the neck, threw him to the ground, and climbed on top of him. Bystanders separated the two. Demeter called 911, identifying himself as a police officer in need of assistance. Demeter told Elston’s father that he was a police officer attempting to take Elston into custody for disorderly conduct. Elston was never charged with any offense. Demeter pleaded guilty to violating Aurora’s ordinance against battery. Elston sued Demeter under 42 U.S.C. 1983, winning a default judgment and an award of $110,000. Elston also sued Kane County under Illinois’s Tort Immunity Act. The district court rejected the suit on summary judgment. The Seventh Circuit affirmed. Demeter was acting as a private citizen, not within the scope of his duties as a deputy when he injured Elston. Demeter was not acting substantially within the time and space limits authorized by his employment; that Demeter used his badge, gun, and training in an unauthorized manner in q purely personal pursuit does not bring his conduct within the scope of his employment.

Dakota, Minnesota & Eastern Railroad Corp. v. U.S. Department of Labor Administrative Review Board

Court: US Court of Appeals for the Eighth Circuit

Docket: 18-2888

Opinion Date: January 30, 2020

Judge: James B. Loken

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

The Eighth Circuit granted a petition for review of the ARB's final decision ruling that CP violated the whistleblower retaliation provisions of the Federal Railroad Safety Act (FRSA) when it suspended a locomotive engineer for his untimely reporting of a "work-related personal injury" or a "hazardous safety or security condition." The court agreed with CP's argument that the ARB's analysis of the contributing factor element of the employee's prima facie case used a legal causation standard contrary to controlling Eighth Circuit precedents. The court held that the ARB's reasoning was both contrary to the court's governing precedents and fatally flawed; the FRSA prohibits a rail carrier from discriminating against an employee for engaging in protected activity; the employee does not have to conclusively prove retaliatory motive but must show more than temporal proximity between the protected activity and the adverse action; and the court expressly rejected the contention that, when an employer learns about an employee's conduct warranting discipline in a protected injury report, the report and the discipline are "inextricably intertwined" and this factual connection is "sufficient to establish the contributing-factor element of his prima facie case." Because the ARB did not attempt to apply the appropriate Eighth Circuit legal standard, the court remanded to the ARB with instructions.

Renewable Fuels Assn. v. EPA

Court: US Court of Appeals for the Tenth Circuit

Docket: 18-9533

Opinion Date: January 24, 2020

Judge: Mary Beck Briscoe

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

At issue here were three EPA orders granting extensions of the small refinery exemption to the Clean Air Act (“CAA”). Those orders were not made available to the public, and were challenged by a group of renewable fuels producers who claimed they found out about the extensions through news articles or public company filings (“the Biofuels Coalition”), and their petition to the Tenth Circuit Court of Appeals raised multiple questions. The EPA opposed the Biofuels Coalition’s appeal, as did the three recipients of the small refinery extensions, who were granted leave to intervene. The Tenth Circuit concluded: (1) the Biofuels Coalition had standing to sue; (2) the Tenth Circuit had jurisdiction over this dispute; (3) the amended Clean Air Act allowed the EPA to grant an “extension” of the small refinery exemption, but not a stand-alone “exemption” in response to a convincing petition; and (4) the EPA exceeded its statutory authority in granting those petitions because there was nothing for the agency to “extend” because none of the three small refineries here consistently received an exemption in the years preceding its petition. The Tenth Circuit rejected the Biofuels Coalition’s claim that the EPA read the word “disproportionate” out of the statute, and disagreed with almost all of the Biofuels Coalition’s assertions that the EPA acted arbitrarily and capriciously in granting the extension petitions. The Tenth Circuit held the agency abused its discretion, however, by failing to address the extent to which the three refineries were able to recoup their compliance costs by charging higher prices for the fuels they sell. “The EPA has studied and staked out a policy position on this issue. One of the refineries expressly raised the issue in its extension petition. It was not reasonable for the agency to ignore it.”

Loumiet v. United States

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

Docket: 18-5020

Opinion Date: January 28, 2020

Judge: Katsas

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

The First Amendment does not create an implied damages action against officials in the Office of the Comptroller of the Currency (OCC) for retaliatory administrative enforcement actions under the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA). The DC Circuit held that, consistent with the Supreme Court's marked reluctance to extend Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), to new contexts, the First Amendment does not create such an implied damages action. In this case, plaintiff filed suit against the United States and four OCC officials, alleging Bivens claims against the officials as well as various tort claims. The Bivens claims were based on the theory that the officials caused the OCC enforcement action in retaliation for plaintiff's protected speech criticizing an OCC investigation, in violation of the First and Fifth Amendments of the Constitution. The court held that this case clearly presented a new Bivens context, and FIRREA's administrative enforcement scheme is a special factor counselling hesitation. Therefore, the court reversed the district court's judgment and remanded with instructions to dismiss plaintiff's First Amendment claims.

Manua's, Inc. v. Scalia

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

Docket: 18-1307

Opinion Date: January 28, 2020

Judge: Judith Ann Wilson Rogers

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

The DC Circuit denied a petition for review of the Commission's order finding that the company violated regulations promulgated by the Occupational Safety and Health Act (OSHA). In this case, the company had hired a construction contractor to remove steel beams from four shipping containers by crane. During unloading, the contractor crane operator touched an overhead power line with the crane, electrocuting three company employees and injuring others. The court held that the Commission adequately explained why it viewed the circumstances here as different from Sec'y of Labor v. Sasser Elec. & Mfg. Co., 11 O.S.H. Cas. (BNA) 2133, and more akin to Fabi Construction Co. v. Secretary of Labor, 508 F.3d 1077 (D.C. Cir. 2007). Unlike in Sasser, the Commission explained that this was the first time that the company had hired the contractor to perform crane work, so there was no history of safe crane practices in compliance with the Act upon which to base reasonable reliance. Furthermore, the Commission stated the potential duration of exposure to the violative condition was different. Therefore, the Commission's decision not to treat Sasser as dictating the outcome here was not arbitrary. The court also held that the Commission did not misapply the summary judgment standard, because there was no genuine dispute about the scope of the agreement between the company and the contractor, the foreseeability of the accident, and the "signaling" within OSHA regulation.

Alaska, Department of Health & Social Services v. Dara S.

Court: Alaska Supreme Court

Dockets: S-16126, S-16526, S-16527

Opinion Date: January 24, 2020

Judge: Daniel E. Winfree

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

The Alaska Supreme Court has held previously that, under some circumstances, a parent whose parental rights have been involuntarily terminated under Alaska’s child in need of aid (CINA) statutes could seek post-termination review and reinstatement of parental rights. A superior court may vacate a termination order if the child has not yet been adopted and the parent demonstrates, “by clear and convincing evidence, that reinstatement of parental rights is in the best interest of the child and that the person is rehabilitated and capable of providing the care and guidance that will serve the moral, emotional, mental, and physical welfare of the child.” Dara S. was the biological mother of Paxton, born February 2011, Paxton was born in Alaska but lived with Dara’s sister and brother-in-law, Scarlet and Monty, in Oregon since being placed with them by OCS in April 2014. Dara visited Paxton in July 2014 and decided to stay in Oregon. Dara’s parental rights to her son had were ultimately terminated as a result of her mental health issues. She timely sought review and reinstatement of her parental rights, and an Alaskan superior court granted review and ultimately granted her reinstatement request. The Office of Children’s Services (OCS) and the child’s guardian ad litem (GAL) appealed the reinstatement decision, arguing both that post-termination reinstatement of parental rights after an involuntary termination was barred as a matter of law and that the mother had not proved by clear and convincing evidence that reinstatement was in the child’s best interests. The Alaska Supreme Court rejected the argument that reinstatement was barred as a matter of law, but remanded the case to the superior court for further elucidation of its best interests determination. The superior court held a post-remand evidentiary hearing and ultimately confirmed its best interests determination. OCS, joined by the GAL, appealed that determination, arguing that some of the court’s underlying factual findings, and therefore its ultimate best interests finding, were clearly erroneous, and that the reinstatement order therefore had to be vacated, leaving the parental rights termination in place. The Supreme Court determined the disputed underlying factual findings supporting the best interests determination either were not material or not clearly erroneous. Therefore, it concluded the superior court’s reinstatement decision should have been affirmed.

Becerra v. Superior Court

Court: California Courts of Appeal

Docket: A157998(First Appellate District)

Opinion Date: January 30, 2020

Judge: Fujisaki

Areas of Law: Government & Administrative Law

Plaintiffs requested from the Department of Justice all records within its possession subject to disclosure under newly-amended California Public Records Act (CPRA) (Gov. Code 6250) section 832.7, which recognizes the right of the public to know about incidents involving shootings or the use of force by an officer that results in death or great bodily injury and findings of sexual assault or dishonesty by an officer. The Department denied the records in part, stating: “To the extent that the Attorney General has obtained records from other state and local law enforcement agencies, the Attorney General is not the agency that 'maintains’ those documents. [T]he employing agency … will be best situated to assess any applicable exceptions…. [T]o the extent that the Attorney General has obtained such records in relation to investigations or proceedings that the Attorney General is conducting, the disclosure provisions ... do not apply" under section 832.7(a). The court of appeal denied the Department's mandamus petition. Section 832.7 generally requires disclosure of all responsive records in the possession of the Department, regardless of whether the records pertain to officers employed by the Department or whether the Department created the records. While a “catchall" CPRA exemption, section 6255, may apply to records that are subject to disclosure under section 832.7, the Department did not adequately demonstrate that the public interest served by nondisclosure of the records clearly outweighs the public interest in their disclosure.

Brome v. California Highway Patrol

Court: California Courts of Appeal

Docket: A154612(First Appellate District)

Opinion Date: January 28, 2020

Judge: Burns

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

Brome started with the California Highway Patrol in 1996; he transferred offices twice. Other officers subjected Brome, who was openly gay, to derogatory comments; singled him out for pranks; and refused to provide him with backup assistance. Brome filed administrative complaints, including with the Department of Fair Employment and Housing. The incidents continued. Brome won the Solano Area Officer of the Year Award in 2013, but the Patrol never displayed his photograph, in a break from office practice. Through 2014, Brome complained to his superiors. The problems continued and Brome feared for his life during enforcement stops, experienced headaches, muscle pain, stomach issues, anxiety, and stress, and became suicidal. Brome went on medical leave and filed a successful workers’ compensation claim. He took industrial disability retirement. The court dismissed his claims under the California Fair Employment and Housing Act (Gov. Code 12900), as untimely, rejecting Brome’s claim that he was constructively discharged. The court of appeal reversed. The filing of the workers’ compensation claim could equitably toll the one-year deadline for filing his discrimination claim; equitable tolling would not prejudice the Patrol. After years of harassment, Brome was struggling to recover; although 11 months elapsed, Brome can meet the good faith requirement. While it is not the only possible conclusion, there is enough evidence for a reasonable trier of fact to conclude that the Patrol knowingly permitted the conditions and should have known that a reasonable employee would resign.

People ex rel. Lacey v. Robles

Court: California Courts of Appeal

Docket: B290697(Second Appellate District)

Opinion Date: January 29, 2020

Judge: Baker

Areas of Law: Civil Procedure, Government & Administrative Law

The District Attorney sued defendant in quo warranto, contending that defendant was violating Government Code section 1099, which makes it unlawful to simultaneously hold incompatible public offices. In this case, defendant served simultaneously as a member of the board of directors of the Water Replenishment District of Southern California (WRD) and as mayor of Carson, California. The Court of Appeal held that the District Attorney properly initiated the quo warranto action under Code of Civil Procedure section 803. The court also held that defendant's dual offices were incompatible because they gave rise to a possibility of conflict in duties or loyalties and there was no law compelling or expressly authorizing him to hold both offices. Finally, the court held that the District Attorney was not required to reapply for leave to maintain the quo warranto suit; the order precluding defendant from deposing the District Attorney was not an abuse of discretion; and the trial court did not rely on evidence previously excluded as inadmissible.

Thimon v. City of Newark

Court: California Courts of Appeal

Docket: A152093(First Appellate District)

Opinion Date: January 27, 2020

Judge: Stewart

Areas of Law: Government & Administrative Law, Personal Injury

Thimon, 14 years old, was crossing Cherry Street in Newark, when she was hit by a car driven by Soudachanh. Thimon was seriously injured and sued the city, asserting that the intersection lacked any mechanisms to alert a driver of a pedestrian’s use of the crosswalk and noting the “forced use of an unprotected, uncontrolled crosswalk particularly at a time of year and time of day when glare from the morning sun obscures visibility of pedestrians” for more than four lanes of commuter traffic traveling at 45 mph. The court of appeal affirmed summary judgment in favor of the city. The court noted Soudachanh’s negligence in continuing to drive, despite being blinded by glare; a public entity is not required to assume that third parties will act negligently. Newark presented evidence regarding each of Thimon’s allegedly dangerous features. A study by a consulting company conducted shortly after the accident, based on the California Manual on Uniform Traffic Control Devices, concluded a traffic signal was not warranted. Thimon did not explain how Newark’s painting of lines demarcating the crosswalk, with signs warning motorists of the pedestrian crossing, “increased or intensified” the risk of injury. The lack of any similar collisions over 10 years preceding the accident indicated that Thimon’s injury was caused entirely by the driver's negligence and not by any dangerous condition of public property.

West Bend Mutual Insurance Co. v. TRRS Corp.

Court: Supreme Court of Illinois

Citation: 2019 IL 124690

Opinion Date: January 24, 2020

Judge: Thomas L. Kilbride

Areas of Law: Civil Procedure, Government & Administrative Law

West Bend's insurance policy required that TRRS provide timely notice of a covered worker’s injury. TRRS employee Bernardino was injured in the scope of his employment. West Bend claimed that TRRS did not timely report Bernardino’s injury but paid Bernardino’s lost wages and medical expenses relating to the injury without West Bend’s knowledge or permission. West Bend sent TRRS a reservation of rights letter, stating that West Bend would not reimburse any voluntary payments they made in connection with Bernardino’s injury. Bernardino filed a claim with the Illinois Workers’ Compensation Commission (IWCC) and filed a separate negligence action against several defendants, including his employers. West Bend sought a judgment declaring that it did not have a duty to defend or indemnify TRRS then filed an emergency motion to stay the pending IWCC proceeding. Bernardino argued that West Bend had not sufficiently proved that it had issued an insurance policy covering the worksite where he was injured, precluding the circuit court from making a coverage determination. The circuit court entered an order staying the IWCC proceedings, finding that it had "primary jurisdiction." The appellate court and Illinois Supreme Court disagreed. The primary jurisdiction doctrine generally “provides that where a court has jurisdiction over a matter, it should in some instances stay the judicial proceedings pending referral of a controversy, or some portion of it, to an administrative agency.” A trial court cannot rely on that doctrine to stay IWCC proceedings.

Crooks v. Dept. of Natural Res.

Court: Louisiana Supreme Court

Docket: 2019-C-00160

Opinion Date: January 29, 2020

Judge: Kirby

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

In 1962, the United States began constructing various structures in and around the Catahoula Basin pursuant to a congressionally-approved navigation project under the River and Harbor Act of 1960 to promote navigation on the Ouachita and Black Rivers. In conjunction with that project, the State of Louisiana signed an “Act of Assurances,” which obligated the State to provide the federal government with all lands and property interests necessary to the project free of charge, and to indemnify the federal government from any damages resulting from the project. In 2006, plaintiffs Steve Crooks and Era Lea Crooks filed a “Class Action Petition to Fix Boundary, For Damages and For Declaration [sic] Judgment.” The Crookses alleged they represented a class of landowners in the Catahoula Basin whose property was affected by increased water levels from the project. Ultimately, the trial court certified the plaintiffs as one class, but subdivided that class into two groups – the “Lake Plaintiffs” and the “Swamp Plaintiffs” – depending on the location of the properties affected. The Louisiana Supreme Court granted certiorari in this case to determine whether the plaintiffs’ inverse condemnation claims for compensation against the State were prescribed under La. R.S. 13:5111 and/or 28 U.S.C. 2501. The lower courts relied on the decision in Cooper v. Louisiana Department of Public Works, 870 So. 2d 315 (2004), to conclude the one-year prescriptive period for damage to immovable property found in La. C.C. art. 3493 governed, and the continuing tort doctrine applied to prevent the running of prescription on the plaintiffs’ claims. The Supreme Court found the lower courts erred in relying on Cooper and held that the three-year prescriptive period for actions for compensation for property taken by the state set forth in La. R. S. 13:5111 governed and the plaintiffs’ inverse condemnation claims were prescribed.

Normand v. Wal-Mart.com USA, LLC

Court: Louisiana Supreme Court

Docket: 2019-C-00263

Opinion Date: January 29, 2020

Judge: John L. Weimer

Areas of Law: Business Law, Government & Administrative Law, Internet Law, Tax Law

The Louisiana Supreme Court granted certiorari to determine whether the lower courts correctly ruled an online marketplace was obligated as a "dealer" under La. R.S. 47:301(4)(l) and/or by contract to collect sales tax on the property sold by third party retailers through the marketplace’s website. Wal-Mart.com USA, LLC (“Wal-Mart.com”) operated an online marketplace at which website visitors could buy products from Wal-Mart.com or third party retailers. From 2009 through 2015, Wal-Mart.com reported its online sales in Jefferson Parish, Louisiana of its products and remitted the required sales tax to the Louisiana Department of Revenue and ex-officio tax collector, then Sheriff Newell Normand (Tax Collector). The reported sales amount did not include proceeds from online sales made by third party retailers through Wal-Mart.com’s marketplace. Following an attempted audit for this period, Tax Collector filed a “Rule for Taxes” alleging Wal-Mart.com “engaged in the business of selling, and sold tangible personal property at retail as a dealer in the Parish of Jefferson,” but had “failed to collect, and remit . . . local sales taxes from its customers for transactions subject to Jefferson Parish sales taxation.” In addition, Tax Collector alleged that an audit of Wal-Mart.com’s sales transactions was attempted, but Wal-Mart.com “refused to provide [Tax Collector] with complete information and records” of Jefferson Parish sales transactions, particularly, those conducted on behalf of third party retailers. In connection with online marketplace sales by third party retailers, Tax Collector sought an estimated $1,896,882.15 in unpaid sales tax, interest, penalties, audit fees, and attorney fees. The Supreme Court determined an online marketplace was not a “dealer” under La. R.S. 47:301(4)(l) for sales made by third party retailers through its website and because the online marketplace did not contractually assume the statutory obligation of the actual dealers (the third party retailers), the judgment of the trial court and the decision of the court of appeal were reversed and vacated.

Motor Vehicle Administration v. Barrett

Court: Maryland Court of Appeals

Docket: 22/19

Opinion Date: January 24, 2020

Judge: Barbera J.

Areas of Law: Government & Administrative Law

In this case involving application of Maryland's "implied consent" statute, Md. Code Ann., Trans. (TR) 16-205.1(b), the Court of Appeals held that Defendant was fully advised of his rights under TR 16-205.1(b)(1) despite two police officers speaking to him simultaneously, because he was not prevented from understanding his rights and the sanctions for refusing to submit to a blood alcohol concentration test, as outlined by the Motor Vehicle Administration's DR-15 "Advice of Rights" form. Defendant's driver's license was suspended because he refused to take a blood alcohol concentration test after being detained for suspicion of driving while under the influence of alcohol. An ALJ upheld the order of suspicion, finding that Defendant had been advised in conformity with the DR-15. The circuit court reversed, holding that Defendnat was not fully advised of his rights because he was distracted while trying to understand his rights. The Court of Appeals reversed, holding that the circuit court improperly substituted its judgment for that of the ALJ in determining that Defendant incur no sanctions for his violation of the implied consent statute.

Boyle v. City of Portsmouth

Court: New Hampshire Supreme Court

Docket: 2018-0327

Opinion Date: January 24, 2020

Judge: Donovan

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

Plaintiff James Boyle, individually and as Trustee of the 150 Greenleaf Avenue Realty Trust, appealed, and defendant City of Portsmouth (City), cross-appealed, after a jury awarded Boyle damages for trespass and nuisance arising from the City’s sewer line on his property. On appeal, Boyle contended the trial court erred in: (1) determining as a matter of law that the City’s trespass began in 2013; and (2) excluding all evidence of future lost profits after 2016. The City argued the trial court erred in: (1) permitting Boyle’s lost profits claims to go to the jury and refusing to set aside the jury’s award; and (2) determining that the City did not have permanent rights in the sewer line. After review, the New Hampshire Supreme Court affirmed the trial court’s ruling that the City had only a revocable license in the sewer line, reversed, in part, the court’s rulings concerning the timing of Boyle’s damages, reversed the court’s ruling on Boyle’s lost profits claim and vacated the jury award, and remanded.

City of Portsmouth v. 150 Greenleaf Avenue Realty Trust

Court: New Hampshire Supreme Court

Docket: 2018-0649

Opinion Date: January 24, 2020

Judge: Donovan

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

Plaintiff City of Portsmouth (City) appealed a superior court ruling that the City’s taking by eminent domain of 4.6 acres of land owned by defendants 150 Greenleaf Avenue Realty Trust and Minato Auto, LLC, was unlawful. On appeal the City argued the trial court erred in: (1) setting aside the taking based on a finding that the City did not set forth statutory authority for taking the wetlands; (2) determining that the City failed to demonstrate a reasonable present public need for taking the wetlands; (3) finding that the City’s taking of the sewer line in fee simple was improper and that the burden on the condemnee outweighed the public necessity; and (4) finding that the City’s purported improper motivation to end litigation with the defendants was a basis to set aside the taking. Finding no reversible error, the New Hampshire Supreme Court affirmed.

Melnyk v. Board of Education of the Delsea Regional High School District

Court: Supreme Court of New Jersey

Docket: a-77-18

Opinion Date: January 30, 2020

Judge: Jaynee LaVecchia

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

By calling a teacher’s instructional work in a specialized and separate school district educational program, provided outside of regular school instructional hours, an “extracurricular assignment,” the school district claimed the teacher had no tenure protection to that position and had no recourse when she was replaced by a non-tenured teacher and suffered a loss in compensation. The district wrapped the label “extracurricular” around the assignment even though the after-hours instructional program was provided by the school district in order to fulfill core curriculum requirements for certain students unable to fulfill those requirements through the school district’s day program. The teaching position in which petitioner served in the alternative education program was tenure eligible. Indeed, the Board of Education and the Commissioner both conceded that a person serving in that “BookBinders” position exclusively for the requisite period of time would have been entitled to tenure. But petitioner was denied tenure because she already held tenure in a teaching position in the district’s regular-education day-instruction program. After review, of the Commissioner of Education’s decision regarding the teacher’s tenure, the New Jersey Supreme Court concluded petitioner met the statutory criteria for tenure, and that she was entitled to a remedy for the violation of her right not to be removed or reduced in salary while protected by tenure for her work in the BookBinders program.

Aftem Lake Developments Inc. v. Riverview Homeowners Assoc.

Court: North Dakota Supreme Court

Citation: 2020 ND 26

Opinion Date: January 29, 2020

Judge: Gerald W. VandeWalle

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

Gerald Aftem and Aftem Lake Developments Inc. (Aftem) appealed a district court judgment dismissing its lawsuit against the Riverview Homeowners Association. In 1998, Aftem purchased 10.69 acres of real property in Mountrail County. Aftem subdivided part of the property into three platted subdivisions; Arrowhead Point, Bridgeview, and Riverview Estates, collectively referred to as the Riverview Subdivisions. Each subdivision plat stated the roads and public rights of way were dedicated to the public. In 2015, the Riverview HOA developed and built a water utility system for the subdivisions. Portions of the water system were located underneath the platted subdivision roads. Aftem sued the Riverview HOA for trespass and negligence, alleging it did not have permission to run its water lines underneath the subdivision roads to which Aftem claimed ownership. Aftem claimed it owned the roads within the subdivision because, although the County Commission approved the plats, the County did not maintain the roads. Riverview HOA denied the allegations, claiming the County Commission’s approval of the subdivision plats divested Aftem of ownership in the subdivision roads. The district court granted Riverview HOA’s motion and concluded Aftem had no ownership interest in the subdivision roads. The North Dakota Supreme Court affirmed, finding Aftem’s subdivision plats satisfied N.D.C.C. section§ 40-50.1-01, 40-50.1-03, and 40-50.1-04. "The plats dedicated the use of the subdivision roads and public rights of way to the public forever. Thus, under N.D.C.C. 40-50.1-05, Aftem’s dedication of the subdivision roads and public rights of way divested Aftem of ownership in the roads."

Hensley v. SCDSS

Court: South Carolina Supreme Court

Docket: 27941

Opinion Date: January 29, 2020

Judge: Few

Areas of Law: Civil Procedure, Class Action, Family Law, Government & Administrative Law

Kenneth and Angela Hensley filed suit against the South Carolina Department of Social Services on behalf of their adopted minor child BLH and a class of approximately 4000 similarly situated adopted children. The central allegation of the lawsuit was that DSS breached an Adoption Subsidy Agreement with the parents of each member of the class by reducing each parent's adoption subsidy by $20 a month, beginning in 2002. The circuit court issued an order finding the Hensleys satisfied the requirements of Rule 23(a) of the South Carolina Rules of Civil Procedure, and certifying the proposed class. The court of appeals reversed. The South Carolina Supreme Court found the circuit court's order was not immediately appealable, and vacated the court of appeals' opinion and dismissed the appeal.

Rose v. SC Department of Probation, Parole and Pardon Services

Court: South Carolina Supreme Court

Docket: 27940

Opinion Date: January 29, 2020

Judge: John W. Kittredge

Areas of Law: Criminal Law, Government & Administrative Law

For years, the South Carolina Department of Probation, Parole, and Pardon Services (DPPPS) improperly denied inmates parole based on an incorrect interpretation of the statute setting forth the number of votes required by the parole board. Because DPPPS had a policy of destroying records of parole hearings, it was difficult to determine which inmates were wrongly denied parole. Nevertheless, in 2013, following the South Carolina Supreme Court's decision in Barton v. South Carolina Department of Probation, Parole & Pardon Services, 745 S.E.2d 110 (2013), DPPPS undertook a process to attempt to identify which inmates were improperly denied parole. Petitioner David Rose was one of the inmates who claimed he was improperly denied parole; in Rose's situation, the parole hearing occurred in 2001. The evidence manifestly established Rose received the requisite number of votes in favor of parole in 2001, but remained in jail. Rose persistently sought relief through the years, often in circuit court, where DPPPS contended that Rose had to pursue relief through the administrative process rather than through the judicial process. At the agency level, DPPPS denied relief to Rose because the agency records did not establish the actual vote count from the 2001 hearing, but DPPPS had destroyed the very records it claimed were necessary for Rose to prevail. Following DPPPS's final agency decision, the administrative law court (ALC) granted Rose relief, finding the only evidence as to the parole board's 2001 vote demonstrated Rose was entitled to parole. The court of appeals reversed. The Supreme Court reversed the court of appeals, finding the ALC's decision was supported by substantial evidence.

Chittenden County Sheriff's Department v. Department of Labor

Court: Vermont Supreme Court

Citation: 2020 VT 4

Opinion Date: January 24, 2020

Judge: Eaton

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

The Chittenden County, Vermont Sheriff’s Department (CCSD) appealed the Vermont Employment Security Board’s ruling that the CCSD was not entitled to relief from several weeks of unemployment compensation benefits which it paid to a former CCSD employee, Michael Major, due to an alleged erroneous determination by a Board claims adjudicator. The CCSD and the State both appealed a claims adjudicator’s decision to an Administrative Law Judge (ALJ), who, following a hearing, reversed the claims adjudicator’s determination and found that Major had voluntarily quit and was therefore not entitled to unemployment benefits. As part of that determination, the ALJ waived any requirement that Major repay the benefits he had received because the ordered payments were not a result of any nondisclosure or material misrepresentation on his part. The ALJ also refused to allow the CCSD or the State relief from benefits already paid to Major as a result of the claims adjudicator’s determination. Although the ALJ concluded the State was Major’s last employing unit, the ALJ further determined that neither Major nor the sheriff made any distinction between Major’s employment by the State or the CCSD and that, in practice, Major’s position as a State transport deputy and his duties from the CCSD were one and the same. The ALJ refused to allow the CCSD and the State to be relieved of benefits they had paid to Major because both employers had chosen not to pay quarterly unemployment insurance tax, but instead elected to make reimbursement payments to the unemployment compensation fund for benefits they were ordered to pay. As a result of being a reimbursing employer, rather than a contributing one, the CCSD was liable to reimburse the unemployment fund, and could not be relieved of those charges. The Vermont Supreme Court affirmed, finding the plain language of 21 V.S.A. 1321(f) made it “abundantly clear to all eligible employers” that, should they select reimbursing status, they would assume responsibility for benefits paid but denied on appeal. “Having availed itself of this advantage, the CCSD cannot now avoid the financial obligations, including the risk of liability for benefits paid in error, it accepted in exchange.”