How the EEOC’s Maintenance of an “Alleged Offenders” Log Can Help Prevent the Next Harvey Weinstein

SAMUEL ESTREICHER, JOSEPH SCOPELITIS

NYU law professor Samuel Estreicher and recent graduate Joseph A. Scopelitis argue that the EEOC should maintain a log of “alleged offenders” to help prevent the next Harvey Weinstein. Estreicher and Scopelitis explain why such a log would effectively balance the interests of the alleged offender and victim, the employer, and the public.

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Natural Resources Defense Council, Inc. v. United States Environmental Protection Agency

Court: US Court of Appeals for the Second Circuit

Docket: 18-2121

Opinion Date: June 5, 2020

Judge: Gerard E. Lynch

Areas of Law: Environmental Law, Government & Administrative Law

The NRDC and the State of Vermont seek review of certain provisions of a rule promulgated by the EPA, pursuant to the Toxic Substances Control Act, that requires manufacturers to report information about their use of mercury. Specifically, petitioners argue that three exemptions for categories of manufacturers and importers are unlawful. The Second Circuit denied review of the exemption for manufacturers of assembled products with mercury-added components at 40 C.F.R. 713.7(b)(3) and the partial exemption for high-volume manufacturers at 40 C.F.R. 713.9(a). The court held that these exemptions are reasonable in light of Congress's directive to the EPA to avoid requiring duplicative or unnecessary reporting. However, the court granted review of and vacated the exemption for importers of assembled products with mercury-added components at 40 C.F.R. 713.7(b)(2), finding that the EPA failed to provide a reasoned explanation for this exemption.

Waterfront Commission of New York Harbor v. Governor of New Jersey

Court: US Court of Appeals for the Third Circuit

Docket: 19-2458

Opinion Date: June 5, 2020

Judge: Smith

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

New Jersey and New York agreed more than 50 years ago to enter into the Waterfront Commission Compact. Congress consented to the formation of the Waterfront Commission Compact, under the Compacts Clause in Article I, section 10, of the U.S. Constitution, 67 Stat. 541. In 2018, New Jersey enacted legislation to withdraw from the Compact. To prevent this unilateral termination, the Waterfront Commission sued the Governor of New Jersey in federal court. The district court ruled in favor of the Commission. The Third Circuit vacated. The district court had federal-question jurisdiction over this dispute because the Complaint invoked the Supremacy Clause and the Compact (28 U.S.C. 1331) but that jurisdiction does not extend to any claim barred by state sovereign immunity. Because New Jersey is the real, substantial party in interest, its immunity should have barred the exercise of subject-matter jurisdiction.

International Refugee Assistance Project v. Trump

Court: US Court of Appeals for the Fourth Circuit

Docket: 19-1990

Opinion Date: June 8, 2020

Judge: Niemeyer

Areas of Law: Government & Administrative Law, Immigration Law

Plaintiffs alleged that Proclamation 9645, which imposed certain restrictions on the entry of individuals from eight countries, violates their rights under the Establishment Clause, as well as under other clauses of the Constitution, because it lacks a rational relationship to legitimate national security concerns and is motivated solely by anti-Muslim animus. The government filed a motion to dismiss plaintiffs' complaints for failure to state a claim based mainly on the Supreme Court's recent decision in Trump v. Hawaii, 138 S. Ct. 2392 (2018), which reversed a preliminary injunction against the enforcement of Proclamation 9645 that had been issued on facts that are essentially the same as those alleged here. The Hawaii Court held that the government had "set forth a sufficient national security justification to survive rational basis review" and thus plaintiffs had not demonstrated that they were likely to succeed on the merits of their claims. The Fourth Circuit reversed the district court's judgment and held that the district court misunderstood the import of the Supreme Court's decision in Hawaii and the legal principles it applied. The court held that Proclamation 9645 restricts the entry of foreign nationals from specified countries, giving reasons for doing so that are related to national security, and it makes no reference to religion. In this case, although the district court agreed that the Mandel standard is controlling, it failed to apply the standard of review properly, moving past the face of the Proclamation to consider in its analysis external statements made by President Trump. The court proceeded beyond consideration of only the facially stated purposes of Proclamation 9645 and determined whether plaintiffs have alleged plausible constitutional claims under the rational basis standard of review. Under the rational basis standard, plaintiffs' constitutional claims failed because the Proclamation was plausibly related to the Government's stated objective to protect the country and improve vetting processes. The court remanded with instructions to dismiss the complaints.

Karem v. Trump

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

Docket: 19-5255

Opinion Date: June 5, 2020

Judge: David S. Tatel

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

Following an incident at President Trump's 2019 Social Media Summit involving Appellee Brian Karem, a journalist with a hard pass, and Sebastian Gorka, a Summit attendee, the Press Secretary suspended Karem's pass for thirty days on the ground that his conduct violated "professional journalistic norms." The DC Circuit affirmed the district court's grant of a preliminary injunction enjoining the enforcement of the suspension of Karem's hard pass credentials based on Fifth Amendment due process grounds. The court held that Karem is likely to succeed on his due process claim because, on this record, he lacked fair notice that the White House might punish his purportedly unprofessional conduct by suspending his hard pass for a month. The court also held that the remaining preliminary injunction factors counsel in favor of affirmance where Karem stands to suffer immediate irreparable harm absent an injunction, and the balance of the equities and the public interest factors also favor an injunction. The court limited the scope of the injunction to run only to the Press Secretary, rather than the Press Secretary and the President.

Young v. Merit Systems Protection Board

Court: US Court of Appeals for the Federal Circuit

Docket: 19-2268

Opinion Date: June 11, 2020

Judge: William Curtis Bryson

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

Young was serving a one-year probationary period working for the IRS when the agency removed her for misconduct. Young appealed to the Merit Systems Protection Board, challenging her removal as an unlawful adverse action and filed a formal Equal Employment Opportunity (EEO) complaint alleging that she had been terminated because of discrimination based on her national origin, disability, and prior protected EEO activity. An administrative judge (AJ) dismissed Young’s action, reasoning that Young was a probationary employee, not entitled to full appellate rights. Young filed a complaint with the Office of Special Counsel, alleging whistleblower retaliation. The Office did not take action. Young then filed an Individual Right of Action (IRA) appeal, claiming that she had disclosed attendance violations and a hostile work environment, including refusal to accommodate her disabilities, and that she had been removed from her position in retaliation for those disclosures. The AJ ordered Young to make a nonfrivolous showing that she had made protected disclosures that led to her removal with detailed factual support. Young did not respond. The AJ dismissed her IRA appeal. Young contends that she was unable to file a timely response because of health issues, but she never sought an extension and she submitted other filings during the period she was given for filing a response. The Federal Circuit affirmed. Young failed to make nonfrivolous allegations that she made disclosures that the Board has jurisdiction to address in an IRA appeal,

Alabama Department of Revenue v. Panama City Wholesale, Inc.

Court: Supreme Court of Alabama

Docket: 1190321

Opinion Date: June 5, 2020

Judge: Tom Parker

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

Alabama imposed a license or privilege tax on tobacco products stored or received for distribution within the State ("the tobacco tax"). Under Alabama law, the Department of Revenue could confiscate tobacco products on which the tobacco tax had not been paid. Panama City Wholesale, Inc. ("PCW") was a wholesale tobacco-products distributor located in Panama City, Florida, and owned by Ehad Ahmed. One of PCW's customers, Yafa Wholesale, LLC ("Yafa"), was an Alabama tobacco distributor owned by Sayeneddin Thiab ("Thiab"). On October 10, 2018, Hurricane Michael destroyed the roof on PCW's warehouse. Department surveillance agents observed observed one of Thiab's vehicles being unloaded at two of the recently rented storage units. The day after that, agents observed one of Thiab's delivery vehicles being loaded with tobacco products from a recently rented unit following the storm. On October 23, 2018, the Department confiscated 1,431,819 cigars from four storage units leased by persons connected to Yafa and Thiab. It is undisputed that the tobacco tax had not been paid on the cigars. Ahmed filed an action against Vernon Barnett, as Commissioner of the Department, seeking a judgment declaring that the cigars were Ahmed's and that they were not subject to confiscation. The case was transferred to the Jefferson Circuit Court, PCW was substituted for Ahmed, and the parties were realigned to make the Commissioner of the Department the plaintiff and PCW the defendant in a civil forfeiture action. On PCW's motion, the circuit court entered a summary judgment in PCW's favor, ruling that the Commissioner failed to present substantial evidence that the cigars were in the possession of a retailer or semijobber, as the court believed was required by the confiscation statute. The Commissioner appealed. A divided Alabama Supreme Court reversed, concluding the circuit court erred in interpreting the confiscation statute to apply only to untaxed tobacco products in the possession of retailers and semijobbers, and because the Commissioner presented substantial evidence that the cigars were subject to confiscation under a correct interpretation of the statute, the Court reversed summary judgment and remanded for further proceedings.

Craft v. McCoy et al.

Court: Supreme Court of Alabama

Docket: 1180820

Opinion Date: June 5, 2020

Judge: Michael F. Bolin

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

Justin Craft and Jason Craft appealed the grant of summary judgment entered in favor of members of the Lee County Board of Education ("the Board") and the Superintendent of the Lee County Schools, Dr. James McCoy. During July, August, and September 2016, the Board hired S&A Landscaping to perform three projects of overdue lawn maintenance at Lee County schools. S&A Landscaping was owned by an aunt by marriage of Marcus Fuller, the Assistant Superintendent of the Lee County Schools. The Crafts, who were employed as HVAC technicians by the Board, questioned the propriety of hiring S&A Landscaping for those projects. The Crafts expressed their concerns with various current and former Board members and individuals at the State Ethics Commission ("the Commission") and at the Alabama Department of Examiners of Public Accounts. Although an individual at the Commission instructed Jason Craft on how to file a complaint with the Commission, neither of the Crafts did so. During this time, McCoy, Fuller, and others suspected various maintenance employees, including the Crafts, of misusing their Board-owned vehicles and misrepresenting their work hours. To investigate their suspicions, the Board had GPS data-tracking devices installed in Board-owned vehicles being used by employees to monitor their use and the employees' activities. A review of the GPS data indicated that certain employees, including the Crafts, had violated Board policy by inappropriately using the Board-owned vehicles and by inaccurately reporting their work time. McCoy sent letters to the Crafts and two other employees, advising them that he had recommended to the Board the termination of their employment. The letters detailed dates, times, and locations of specific incidents of alleged misconduct. The Crafts were placed on administrative leave, then returned to work to custodial positions that did not require them to use Board-owned vehicles. The Crafts appealed their job transfers, arguing they had not been afforded due process. An administrative law judge determined the Students First Act did not provide an opportunity for a hearing before the imposition of a job transfer. The Crafts thereafter sued the Board members and McCoy, seeking declaratory relief based on alleged violations of the anti-retaliation provision of section 36-25-24, Ala. Code 1975, arguing that they were punished for contacting the Commission. The Alabama Supreme Court determined the anti-retaliation protection was triggered only when an employee filed a complaint with the Commission. Because it was undisputed the Crafts did not file a complaint, they were not entitled to those statutory protections. Therefore, summary judgment in favor of the Board and McCoy was affirmed.

Weaver v. ASRC Federal Holding Co.

Court: Alaska Supreme Court

Docket: S-17406

Opinion Date: June 5, 2020

Judge: Joel H. Bolger

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

Gregory Weaver worked at remote sites for ARCTEC Alaska1 off and on for several years as a relief station mechanic. His job involved heavy labor, and he filed several reports of injury during the times he worked for ARCTEC. He reported in December 2010 that he had “pulled something in the lower spinal area” while adjusting tire chains on a dump truck. He filed another injury report related to his back in early 2012, after he experienced back pain while installing garage door panels. Weaver passed “fit for duty” physical examinations after both of these injuries. In 2013, however, he woke up one morning with back pain that made it hard for him to walk. He said his back pain “had been building up for several months,” but he could not identify a specific task related to the onset of pain. He said “the majority of the heavy lifting” he did that summer had been at Indian Mountain, but he described work at Barter Island as including significant shoveling and pushing wheelbarrows of rocks over difficult surfaces. He thought the camp bed provided inadequate back support. He asked to be flown out because of his back pain and has not worked since. Weaver began receiving About six months later his employer controverted all benefits based on a medical opinion that the work caused only workers’ compensation benefits after experiencing severe low back pain at a remote job site. About six months later his employer controverted all benefits based on a medical opinion that the work caused only a temporary aggravation of a preexisting condition. Weaver the Alaska Workers’ Compensation Board to join a prior back injury claim against the same employer. Following a lengthy and complex administrative process, the Board denied the worker’s claim for additional benefits, and the Alaska Workers’ Compensation Appeals Commission affirmed the Board’s decision. Finding no reversible error, the Alaska Supreme Court affirmed the Board's and Commission's decisions.

North Murrieta Community, LLC v. City of Murrieta

Court: California Courts of Appeal

Docket: E072663(Fourth Appellate District)

Opinion Date: June 8, 2020

Judge: Slough

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

Appellant, North Murrieta Community, LLC (North Murrieta), was the master developer of a large development project in the City of Murrieta (the City) called the Golden City Project. North Murrieta sought to take advantage of certain statutory land use planning tools that enabled builders to lock in place regulations, conditions, and fees municipalities could enforce against them while a project proceeds. In July 1999, North Murrieta obtained approval for a vesting tentative map on part of the Golden City Project property. In March 2001, four months before the map would expire, North Murrieta and the City entered a development agreement covering the entire Golden City Project property. The agreement extended the term of the vesting tentative map for 15 years and also locked in place regulations and fees the City could enforce against the developer on the entire project for the same period. The development agreement explicitly allowed the City to impose new fees on North Murrieta to mitigate the effects of development, provided the new fees were generally applicable and designed to address effects not fully mitigated by fees or exactions in place when the parties entered the development agreement. The City subsequently passed the Western Riverside County Transportation Uniform Mitigation Fee Program Ordinance (the TUMF ordinance), which was designed for just that purpose. In 2017, the City charged the new mitigation fees to a subsequent purchaser and developer of a subset of the affected properties. The builder made $541,497 in TUMF payments from July to October 2017, and the City transferred the bulk of those funds to respondent, Western Riverside Council of Governments (WRCOG). Both the developer and North Murrieta protested the fees. North Murrieta asked the trial court to order return of the TUMF payments and requested declarations that the City couldn’t impose the new mitigation fees under the extended vesting tentative map until it expired in 2019 and can’t impose those fees under the development agreement until it expires in 2021. The trial court held the development agreement established the parties’ rights and permitted the City to impose the new fees under the TUMF ordinance. North Murrieta appealed. The Court of Appeal affirmed, agreeing with the trial court. Though the vesting tentative map limited the fees the City could collect to those in place when the City approved the map, North Murrieta agreed to modify those rights by entering the development agreement with the City. The development agreement was a contract, which the trial court correctly enforced.

Trejo v. County of Los Angeles

Court: California Courts of Appeal

Docket: B293564(Second Appellate District)

Opinion Date: June 9, 2020

Judge: White

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

When the Los Angeles County Civil Service Rules 2.01 and 12.02(B) are read together, their plain meaning is that so long as the probationer is engaged in the duties of "a position or positions" she is not "absent from duty." Plaintiff, a deputy sheriff, challenges his employer's practice of extending probation while investigating the deputy's claimed misconduct as violating the rules. The Court of Appeal upheld the trial court's issuance of a writ of mandate directing the Los Angeles County Sheriff's Department to reinstate the deputy as a permanent civil service employee. The court held that the plain language of the rules does not authorize the department's practice of extending probation by re-assigning deputies under investigation to administrative duty. In this case, plaintiff became a permanent civil service employee 12 months after his probation began. Furthermore, the County's arguments premised upon avoiding absurd and impractical interpretations are unpersuasive. The court also agreed that plaintiff did not fail to exhaust administrative remedies.

Forest View Co. v. Town of Monument

Court: Colorado Supreme Court

Citation: 2020 CO 52

Opinion Date: June 8, 2020

Judge: Harris L. Hartz

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

The Town of Monument (the “Town”) purchased a piece of property on which it planned to build a water tower. Neighboring property owners objected, arguing that the property was subject to a restrictive covenant limiting construction to single-family residences. According to the property owners, if the Town were to violate that covenant by building a water tower, the Town would be taking the restrictive covenant from each of the covenant-subject properties, and it would therefore have to compensate the property owners for the diminution in value caused by that taking. The Colorado Supreme Court answered the question of whether a restrictive covenant diminished the value of property adjacent to the government property such that the change constituted a taking. In Smith v. Clifton Sanitation District, 300 P.2d 548 (Colo. 1956), the Court held that when state or local government acquires property subject to a restrictive covenant and uses it for purposes inconsistent with that covenant, “no claim for damages arises by virtue of such a covenant as in the instant case, in favor of the owners of other property” subject to the covenant. Petitioners asked the Supreme Court to confine "Smith" to its facts or overrule it entirely. The Court declined, instead reaffirming that where a government entity has obtained property for public purposes, the government may use that land for a purpose inconsistent with a restrictive covenant without compensating all of the other landowners who are subject to that restrictive covenant.

Jacobs v. Colorado

Court: Colorado Supreme Court

Citation: 2020 CO 50

Opinion Date: June 8, 2020

Judge: Gabriel

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

Dr. Steven Jacobs, Casas Limited Partnership #4, LLP, and IQ Investors, LLC (collectively, “Jacobs”) contended the water court erred in: (1) granting summary judgment to the State Engineer and the Division Engineer for Water Division No. 2 (the “Engineers”) and partial summary judgment for the Park Forest Water District (“PFWD”); (2) imposing civil penalties for Jacobs’s violations of the Division Engineer’s order requiring Jacobs to cease and desist unlawfully storing state waters in two ponds on his properties; and (3) certifying its summary judgment rulings as final pursuant to C.R.C.P. 54(b). In 2012, Casas and IQ Investors acquired certain real properties, together with associated water rights and three ponds, in unincorporated El Paso County, Colorado. In order to satisfy the water needs of the properties, Jacobs negotiated with PFWD to join the properties to PFWD, and these parties formalized their arrangement in an Inclusion Agreement. Pursuant to the Inclusion Agreement, PFWD filed an application seeking to amend its augmentation plan to add Jacobs’s ponds to it. In seeking this amendment, PFWD made clear that it was not requesting new water storage rights for the ponds but rather was simply proposing to replace evaporative losses from them. The water court granted PFWD’s application and ruled that the ponds would be augmented consistent with the requirements of PFWD’s augmentation plan. Suspecting that the initial fill after reconstruction was thus not legally obtained, the commissioner requested that Jacobs provide him with the source of the initial fill and advised that if he did not receive such confirmation, then he would seek an order requiring the release of any illegally stored water. Discussion of this issue apparently went on for more than a year. In the course of such discussions, Jacobs took the position that the Inclusion Agreement covered the initial fill. PFWD, however, contended that that Agreement did not do so and that PFWD was not obligated to provide replacement water for the ponds. On December 23, 2016, having not received satisfactory proof that Jacobs’s initial fill of the ponds was lawful, the Division Engineer issued an administrative order (the “2016 Order”) to Jacobs. Jacobs did not comply with the 2016 Order by the deadline set forth therein. The Engineers thus filed a complaint in the water court for injunctive relief, penalties, and costs to enforce the 2016 Order. The Colorado Supreme Court concluded the water court properly granted both the Engineers’ summary judgment motion and PFWD’s motion for partial summary judgment, and properly imposed civil penalties.

In re Application of The Gas Company, LLC

Court: Supreme Court of Hawaii

Docket: SCOT-19-0000044

Opinion Date: June 9, 2020

Judge: Sabrina S. McKenna

Areas of Law: Government & Administrative Law, Utilities Law

The Supreme Court vacated the decision of the Public Utilities Commission (PUC) approving an application for a rate increase submitted by Hawai'i Gas (HG) and remanded this case to the PUC for further proceedings, holding that the PUC did not fulfill its statutory obligations under Haw. Rev. Stat. 269-6(b). Specifically, the Supreme Court held (1) as "persons aggrieved" who participated in the contested case, Appellants had standing to appeal; (2) PUC failed to carry out its mandate under section 269-6(b); (3) the PUC's limitations in sub-issue No. 1h violated Appellants' due process rights by improperly curtailing Appellants' substantive participation; and (4) the PUC did not abuse its discretion in adjudicating HG's rate case rather than proceeding through rule-making.

Flowers v. Board of Personnel Appeals, Montana Department of Fish, Wildlife & Parks

Court: Montana Supreme Court

Citation: 2020 MT 150

Opinion Date: June 9, 2020

Judge: Beth Baker

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

The Supreme Court affirmed the judgment of the district court dismissing Appellant's petition for judicial review for failure to exhaust Department of Fish, Wildlife and Parks (FWP) employee grievance remedies, holding that Appellant failed to exhaust administrative remedies. After Appellant, who worked for FWP, was reassigned to a different position, Appellant petitioned for judicial review. The district judge dismissed the petition with prejudice, determining that Appellant had not exhausted all available administrative remedies by filing a grievance regarding his reassignment. Appellant then filed a grievance, which was denied as untimely. Appellant did not file exceptions. Instead, Appellant filed a second petition for judicial review in the district court. The district court granted FWP's motion to dismiss, determining that it lacked subject matter jurisdiction over Appellant's petition based on his failure to exhaust administrative remedies. The Supreme Court affirmed, holding that the district court did not err in concluding that Appellant's failure to file exceptions barred his petition for judicial review.

Greenwood v. Department of Revenue

Court: Montana Supreme Court

Citation: 2020 MT 149

Opinion Date: June 9, 2020

Judge: Shea

Areas of Law: Government & Administrative Law, Tax Law

The Supreme Court affirmed the order of the district court affirming the administrative decision of the Montana Tax Appeal Board (MTAB) regarding Petitioner's residency status and dismissing his petition for judicial review, holding that Petitioner did not sever his Montana residency during the years 2008 to 2012 for income tax purposes. The Montana Department of Revenue determined that Petitioner was a Montana resident from 2008 to 2012 and assessed Petitioner $515,321 of Montana resident income tax, interest, and penalties. The MTAB affirmed. On review, the district court denied Petitioner's petition regarding the issue of his residency. The Supreme Court affirmed, holding that the district court did not err when it affirmed MTAB's administrative decision that Petitioner did not sever his Montana residency for income tax purposes from 2008 to 2012.

E.M. v. Nebraska Department of Health & Human Services

Court: Nebraska Supreme Court

Citation: 306 Neb. 1

Opinion Date: June 5, 2020

Judge: William B. Cassel

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

The Supreme Court affirmed the judgment of the district court affirming the decision of a state agency ruling several noncitizen applicants ineligible for all public benefits of the Bridge to Independence program (B2I), holding that the district court did not err in determining that applicants were not eligible for B2I. The applicants in this case were Guatemalan citizens who fled to Nebraska as minors. Each applicant was adjudicated pursuant to Neb. Rev. Stat. 43-247(3)(a) and placed in foster care. The applicants, who had already received special immigration juvenile status, applied to the Nebraska Department of Health and Human Services (DHHS) for B2I. DHHS denied the applications because each applicant failed to meet the citizenship and lawful presence requirements. The district court affirmed. The Supreme Court affirmed, holding that the district court did not err in determining that the applicants were not eligible for B2I because the applicants were not "lawfully present" and the legislature did not "affirmatively provide" for unlawful applicants to be eligible under the Young Adult Bridge to Independence Act, Neb. Rev. Stat. 43-4501 to 43-4514.

Appeal of Keith R. Mader 2000 Revocable Trust et al.

Court: New Hampshire Supreme Court

Docket: 2019-0061

Opinion Date: June 5, 2020

Judge: Anna Barbara Hantz Marconi

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

Eighteen petitioners appealed a New Hampshire Board of Tax and Land Appeals (BTLA) decision to dismiss their respective appeals of denials of applications for abatements of real estate taxes issued by respondent Town of Bartlett. he BTLA dismissed the appeals because the petitioners’ abatement applications failed to comply with the signature and certification requirement of New Hampshire Administrative Rules, Tax 203.02, and because the BTLA found that the petitioners did not demonstrate that these failures were “due to reasonable cause and not willful neglect.” There was no dispute in this case that petitioners did not personally sign or certify their abatement applications. Instead, petitioners contested the BTLA’s ruling that they did not demonstrate that the lack of signatures and certifications was due to reasonable cause and not willful neglect. "Although the question of whether reasonable cause or willful neglect exists in a particular case is one of fact for the BTLA, the questions of what elements constitute reasonable cause or willful neglect under Tax 203.02 are ones of law." Because the BTLA did not have the benefit of the construction of Tax 203.02(d) that the New Hampshire announced in its opinion of this case, BTLA's decisions were vacated, and each matter remanded for further consideration.

Martin v. City of Rochester

Court: New Hampshire Supreme Court

Docket: 2019-0150

Opinion Date: June 9, 2020

Judge: Gary E. Hicks

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

Plaintiff Paul Martin appealed a superior court order denying his request for declaratory and injunctive relief against defendant City of Rochester (city), ruling that the city’s technical review group (TRG) was not a public body for purposes of New Hampshire's Right-to-Know Law, and that the city’s copy fee schedule was in compliance with RSA 91-A:4, IV (Supp. 2016). On appeal, plaintiff argued that: (1) the TRG was a “public body,” as defined by RSA 91-A:1-a, VI(d) (2013), because it was an “advisory committee,” and is therefore subject to the open-meeting requirement of RSA 91-A:2 (Supp. 2019); and (2) the city’s copy fee schedule was prohibited by RSA 91-A:4, IV, because it charged citizens requesting a copy of a public record more than the “actual cost” of making the copy. Plaintiff requested copies of certain documents from the city relating to the planning board and the TRG. The city charged a fee for making copies of city records or files: for black and white photocopies, the fee was fifty cents per page for the first ten pages and ten cents per page thereafter. After a bench trial, the court denied plaintiff’s prayers for relief. The New Hampshire Supreme Court disagreed with plaintiff's interpretation of RSA 91- A:1-a, I: plaintiff read the phrase "primary purpose" as relating only to the TRG’s role in “considering” an application, not necessarily “advising” on it. Under this reading, plaintiff contended the TRG’s primary purpose was to consider whatever “subject matter . . . the city manager has designated for consideration.” Further, the Supreme Court concurred with the superior court's finding that the City's fee for photocopying was based upon the actual cost of copying, and not the labor associated with making the copies. Accordingly, the trial court's judgment was affirmed.

Township of Manalapan v. Gentile

Court: Supreme Court of New Jersey

Docket: a-14-19

Opinion Date: June 2, 2020

Judge: Solomon

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

The Township of Manalapan challenged the condemnation award in favor of defendants entered after a jury trial. The issue was whether the trial court erred in admitting testimony that the condemned property’s highest and best use would require a variance without first determining whether there was a reasonable probability the variance would be granted. The New Jersey Supreme Court concluded evidence that risks misleading the jury into assuming a zoning variance for purposes of calculating a property’s value must not be admitted absent a judicial finding it was reasonably probable that the variance will be obtained. Therefore, the trial court erred by allowing the jury to consider testimony that the highest and best use of the subject property would require a variance without first confirming the probability of securing that variance.

Winkler v. N.C. State Board of Plumbing, Heating & Fire Sprinkler Contractors

Court: North Carolina Supreme Court

Docket: 319PA18

Opinion Date: June 5, 2020

Judge: Cheri Beasley

Areas of Law: Government & Administrative Law

The Supreme Court modified and affirmed the judgment of the court of appeals reversing the trial court's award of attorney fees to Defendant, holding that N.C. Gen. Stat. 6-19.1 does not preclude a trial court from awarding attorney's fees in disciplinary actions by a licensing board, but when there is substantial justification for the agency's claims, the award of attorney's fees is unjust. The North Carolina State Board of Plumbing, Heater, & Fire Sprinkler Contractors disciplined Dale Winkler for working on a pool heater without proper licensure. The trial court affirmed. The court of appeals concluded that the Board lacked jurisdiction to discipline Winkler for conducting the pool heater inspection and vacated the portion of the Board's order relating to Winkler's inspection of the pool heater. Winkler then filed a motion for attorney's fees and costs. The trial court awarded Winkler attorney's fees and costs. The court of appeals held that the trial court erred in awarding attorney's fees because section 6-19.1 excludes cases arising out of the defense of a disciplinary action by a licensing board. The Supreme Court affirmed on different grounds, holding that the trial court erred in awarding Winkler attorney's fees because there was substantial justification for the Board's claims.

State ex rel. Cook v. Bowling Green City Schools Board of Education

Court: Supreme Court of Ohio

Citation: 2020-Ohio-3252

Opinion Date: June 8, 2020

Judge: Per Curiam

Areas of Law: Election Law, Government & Administrative Law

The Supreme Court granted a writ of mandamus ordering the school board to certify a petition proposing the transfer of territory from one school district to another and certify the transfer proposal to the board of elections for placement on the ballot at the August 4 special election, holding that a writ of mandamus was warranted. Petitioner, a qualified elector in the territory proposed to be transferred, filed a mandamus complaint alleging that the school board failed to comply with its statutory obligations to promptly certify the petition and the proposal to the board of elections and that the school board's unwarranted delay caused the transfer proposal to miss the deadline for certification to the August 4 ballot. Petitioner also sought a writ ordering the board of elections to place the proposal on the August 4 ballot. The Supreme Court granted the writ as to the school board and denied it as to the elections board, holding (1) the school board had the opportunity to certify the proposal for placement on the August 4 special election ballot but declined to do so for reasons outside its authority; and (2) Petitioner's mandamus claim against the elections board was not ripe.

Sosebee v. Franklin County School Board

Court: Supreme Court of Virginia

Docket: 190620

Opinion Date: June 11, 2020

Judge: Donald W. Lemons

Areas of Law: Education Law, Government & Administrative Law

The Supreme Court reversed the judgment of the circuit court denying a request for declaratory and injunctive relief to bar enforcement of the Franklin County School Board's policy requiring parents to provide a birth certificate and proof of residence in the county for any child who is homeschooled, holding that the policy was contrary to the Homeschool Statute, Va. Code 22.1-254.1. In denying declaratory and injunctive relief the circuit court found that the board's policy was not contrary to the Code, was not ultra vires, and addressed the "valid public policy of ensuring the children monitored by [the Board] are between the ages of five (5) and eighteen (18) and are residents of Franklin County." The Supreme Court reversed, holding that the Board did not have authority to adopt the policy pursuant to section 22.1-78 because that statute only allows school boards to adopt regulations for the supervision of public schools, not home instruction.

McMillan v. State, ex rel. Department of Workforce Services, Workers' Compensation Division

Court: Wyoming Supreme Court

Citation: 2020 WY 68

Opinion Date: June 5, 2020

Judge: Boomgaarden

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

The Supreme Court affirmed the decision of the Medical Commission upholding that decision of the Wyoming Workers' Safety and Compensation Division denying workers' compensation benefits because Appellant failed to establish a causal connection between his injury and employment, holding that the Commission's decision was not contrary to the overwhelming weight of the evidence. The Division denied benefits because Appellant did not submit evidence establishing a causal connection between his injury and employment as required by Wyo. Stat. Ann. 27-14-603(a). The Commission upheld the denial of benefits after rejecting the opinions of Appellant's medical experts. The Supreme Court affirmed, holding that the Commission's determination that Appellant failed to meet his burden under section 27-14-603(a) for an injury occurring over a substantial period of time was not contrary to the overwhelming weight of the evidence.