The Response to President Trump’s Shameless Religious Photo Op Gives Me Hope for the Future

MARCI A. HAMILTON

University of Pennsylvania professor Marci A. Hamilton praises the response of liberal clergy in response to President Trump’s seemingly opportunistic photo op in front of St. John’s Episcopal Church in Washington, D.C. Hamilton calls upon these religious leaders to continue speaking out loudly in the name of inclusion, love, and truth.

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Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC

Court: US Supreme Court

Docket: 18-1334

Opinion Date: June 1, 2020

Judge: Stephen G. Breyer

Areas of Law: Constitutional Law, Government & Administrative Law

Congress invoked its Article IV power to enact the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA). PROMESA created a Financial Oversight and Management Board, whose seven voting members are to be appointed by the President without the Senate’s advice and consent. Congress authorized the Board to file for bankruptcy, to supervise and modify Puerto Rico’s laws and budget, and to conduct related investigations. President Obama selected the Board’s members. The Board filed bankruptcy petitions on behalf of the Commonwealth and five of its entities. Creditors moved to dismiss the proceedings, arguing that the Board members’ selection violated the Constitution’s Appointments Clause, under which the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . all . . . Officers of the United States.” The First Circuit held that the Board members’ selection violated the Appointments Clause. The Supreme Court reversed. Congress’ longstanding practice of requiring the Senate’s advice and consent for territorial Governors with important federal duties supports the inference that Congress expected the Appointments Clause to apply to at least some officials with supervisory authority over the Territories. A federal law’s creation of an office, however, does not automatically make its holder an officer of the United States. The Appointments Clause does not restrict the appointment of local officers that Congress vests with primarily local duties. Congress has long legislated for (non-state) entities by making local law directly and creating local government structures, staffed by local officials, who make and enforce local law. The history of Puerto Rico—whose officials with local responsibilities have been selected in ways inconsistent with the Appointments Clause—is consistent with the history of other entities that fall under Article IV and with the District of Columbia's history. The Board members here have primarily local powers and duties. PROMESA says that the Board “shall not be considered a department, agency, establishment, or instrumentality of the Federal Government.” Congress gave the Board a structure, duties, and related powers consistent with this statement.

Town of Weymouth v. Massachusetts Department of Environmental Protection

Court: US Court of Appeals for the First Circuit

Dockets: 19-1794, 19-1797, 19-1803

Opinion Date: June 3, 2020

Judge: William Joseph Kayatta, Jr.

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

The First Circuit vacated an air permit granted by the Massachusetts Department of Environmental Protection (DEP) for a proposed natural gas compression station set to be built in Weymouth, Massachusetts as part of Algonquin Gas Transmission, LLC's Atlantic Bridge Project, holding that the DEP did not follow its own established procedures for assessing whether an electric motor was the Best Available Control Technology (BACT). The Atlantic Bridge Project is a natural gas pipeline connecting the Northeastern United States and Canada. The DEP approved Algonquin's non-major comprehensive plan application for the station and granted the station's air permit, certifying its compliance with the Massachusetts Clean Air Act (CAA), Mass. Gen. Laws ch. 111, 142A-142F. Petitioners, nearby municipalities and two citizen-petition groups, argued that DEP violated the CAA and related laws and regulations. The First Circuit (1) vacated the air permit and remanded to DEP for it to conduct further proceedings, holding that the DEP's final decision excluding an electric motor was arbitrary and capricious; and (2) resolved the remaining issues in favor of DEP.

American Stewards of Liberty v. Department of Interior

Court: US Court of Appeals for the Fifth Circuit

Docket: 19-50321

Opinion Date: May 29, 2020

Judge: Per Curiam

Areas of Law: Environmental Law, Government & Administrative Law

Original petitioner filed suit under the Administrative Procedure Act (APA), challenging FWS's negative 90-day finding regarding the delisting of the Bone Cave harvestman arachnid as arbitrary and capricious. While the case was pending, the district court allowed intervening plaintiffs to separately argue that federal regulation of the purely intrastate species is unconstitutional because it exceeds Congress's power under the Commerce and Necessary and Proper Clauses. The district court subsequently rejected the intervening plaintiffs' arguments, but granted summary judgment to the original plaintiffs. FWS's negative 90-day finding was vacated and the FWS then issued a positive 90-day finding, beginning a 12-month review of whether the Bone Cave harvestman should be delisted. The Fifth Circuit dismissed the intervenor plaintiffs' appeal of the denial of their motion for summary judgment, holding that the appeal is alternatively moot or barred by sovereign immunity. Therefore, the court lacked jurisdiction to resolve the appeal.

Daniel v. University of Texas Southwestern Medical Center

Court: US Court of Appeals for the Fifth Circuit

Docket: 19-10834

Opinion Date: June 2, 2020

Judge: Carl E. Stewart

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

Plaintiff filed suit against UTSMC, seeking recovery for UTSMC's alleged discrimination and retaliation under the Americans with Disabilities Act (ADA). The Fifth Circuit affirmed the district court's grant of UTSMC's Federal Rule of Civil Procedure 12(b)(1) motion to dismiss because UTSMC is an arm of the State of Texas and is entitled to Eleventh Amendment immunity. The court applied the Clark factors and held that UTSMC is entitled to arm-of-the-state status where statutes and legal authorities favor treating UTSMC as an arm of Texas; Texas law authorizes state treasury funds to be allocated to UTSMC from the permanent health fund for higher education and a judgment against UTSMC would interfere with Texas's fiscal autonomy; UTSMC does not operate with a level of local autonomy to consider it independent from Texas; because of UT System's statewide presence, components of the UT System shall not be confined to specific geographical areas; and the UT System has the power of eminent domain, and the land it acquires becomes property of the state.

Environmental Integrity Project v. Environmental Protection Agency

Court: US Court of Appeals for the Fifth Circuit

Docket: 18-60384

Opinion Date: May 29, 2020

Judge: Stuart Kyle Duncan

Areas of Law: Environmental Law, Government & Administrative Law

After ExxonMobil sought a revised Title V permit under the Clean Air Act concerning an expansion of a plant in Baytown, Texas, petitioners asked EPA to object on the grounds that the underlying Title I preconstruction permit allowing the expansion was invalid. EPA rejected petitioners' arguments and declined to object. The Fifth Circuit denied the petition for review, holding that EPA's interpretation that Title V permitting is not the appropriate vehicle for reexamining the substantive validity of underlying Title I preconstruction permits, is independently persuasive. Therefore, EPA's interpretation is entitled to the mild form of deference recognized by Skidmore v. Swift & Co., 323 U.S. 134 (1944).

Waid v. Earley

Court: US Court of Appeals for the Sixth Circuit

Docket: 20-1352

Opinion Date: June 2, 2020

Judge: Karen Nelson Moore

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

In a consolidated putative class action based on the Flint Water Crisis, the defendants include government officials from the State of Michigan, the City of Flint, state agencies, and private engineering companies. While government officials like former Governor Snyder and former Treasurer Dillon have been litigating the issue of qualified immunity, discovery against private parties has proceeded. In 2019, the district court granted the government officials’ motions to dismiss claims alleging 42 U.S.C. 1983 equal-protection violations, section 1985(3) conspiracy, Michigan’s Elliott Larsen Civil Rights Act, section 1983 state-created danger, and gross negligence. The court denied motions to dismiss plaintiffs’ section 1983 bodily-integrity claim on the bases of qualified and absolute immunity,. The court entered a comprehensive case management order. Snyder and Dillon claimed that they cannot be deposed as non-party fact witnesses with respect to other defendants, arguing that they are immune from all discovery until they have exhausted every opportunity for appeal from the denial of their motions to dismiss based on qualified immunity. The Sixth Circuit denied Snyder’s and Dillon’s request for a stay of non-party depositions pending resolution of their appeal from the order denying their request for a protective order, and dismissed, for lack of jurisdiction, their appeal from the denial of a protective order.

Lucus v. Saul

Court: US Court of Appeals for the Eighth Circuit

Docket: 18-3285

Opinion Date: June 3, 2020

Judge: Kobes

Areas of Law: Government & Administrative Law, Public Benefits

The Eighth Circuit reversed the district court's order affirming the ALJ's denial of plaintiff's application for disability benefits. The court held that the ALJ's error in failing to provide good reason for giving plaintiff's treating psychiatrist's opinion limited weight was not harmless error. In this case, the failure to comply with SSA regulations is more than a drafting issue, it is legal error. Furthermore, the court cannot determine whether the ALJ would have reached the same decision denying benefits, even if the ALJ had followed the proper procedure for considering and explaining the value of the psychiatrist's opinion. Accordingly, the court remanded for further administrative proceedings and for reconsideration of plaintiff's claims.

National Family Farm Coalition v. U.S. Environmental Protection Agency

Court: US Court of Appeals for the Ninth Circuit

Docket: 19-70115

Opinion Date: June 3, 2020

Judge: William A. Fletcher

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

In 2018, the EPA approved conditional registrations for three dicamba-based herbicides for an additional two years. Petitioners sought review of the 2018 decision, alleging that it violates both the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Endangered Species Act (ESA). The Ninth Circuit held that the EPA's 2018 decision, and the conditional new-use registrations of XtendiMax, Engenia, and FeXapan for use on DT soybean and cotton that are premised on that decision, violate FIFRA. The panel explained that it need not decide whether substantial evidence supports a finding that the applicants submitted satisfactory data, because the panel held that the EPA substantially understated risks that it acknowledged and failed entirely to acknowledge other risks. In this case, among other things, the EPA substantially understated the amount of DT seed acreage that had been planted in 2018, and, correspondingly, the amount of dicamba herbicide that had been sprayed on post-emergent crops; the EPA purported to be agnostic as to whether formal complaints of dicamba damage under-reported or overreported the actual damage, when record evidence clearly showed that dicamba damage was substantially under-reported; and the EPA refused to estimate the amount of dicamba damage, characterizing such damage as "potential" and "alleged," when record evidence showed that dicamba had caused substantial and undisputed damage. Therefore, the panel vacated the EPA's 2018 decision and the three registrations premised on that decision.

The Environmental Protection Commission of Hillsborough County v. Volkswagen Group of America, Inc.

Court: US Court of Appeals for the Ninth Circuit

Docket: 18-15937

Opinion Date: June 1, 2020

Judge: Sandra Segal Ikuta

Areas of Law: Environmental Law, Government & Administrative Law

This appeal stemmed from Volkswagen's installation of defeat devices in new cars for the purpose of evading compliance with federally mandated emission standards, and subsequent updating of the software in those cars so the defeat devices would do a better job of avoiding and preventing compliance. After Volkswagen settled EPA's criminal and civil actions for over $20 billion dollars, two counties sought to impose additional penalties for violation of their laws prohibiting tampering with emission control systems. The district court concluded that the claims were preempted by the Clean Air Act (CAA). The Ninth Circuit held that, although the CAA expressly preempts state and local government efforts to apply anti-tampering laws to pre-sale vehicles, the CAA does not prevent the two counties here from enforcing their regulations against Volkswagen for tampering with post-sale vehicles. Furthermore, the panel rejected Volkswagen's assertions that the counties' anti-tampering rules were preempted under ordinary preemption principles. In this case, the panel saw no indication that Congress intended to preempt state and local authority to enforce anti-tampering rules on a model-wide basis. Furthermore, the CAA's cooperative federalism scheme, its express preservation of state and local police powers post sale, and the complete absence of a congressional intent to vest in the EPA the exclusive authority to regulate every incident of post-sale tampering raised the strong inference that Congress did not intend to deprive the EPA of effective aid from local officers to combat tampering with emission control systems.

United States v. RaPower-3

Court: US Court of Appeals for the Tenth Circuit

Docket: 18-4119

Opinion Date: June 2, 2020

Judge: Harris L. Hartz

Areas of Law: Business Law, Government & Administrative Law, Tax Law, White Collar Crime

After a bench trial, a district court decided that Defendants RaPower-3, LLC, International Automated Systems, Inc. (IAS), LTB1, LLC, Neldon Johnson, and R. Gregory Shepard had promoted an unlawful tax scheme. Defendants’ scheme was based on a supposed project to utilize a purportedly new, commercially viable way of converting solar radiation into electricity. There was no “third party verification of any of Johnson’s designs.” Nor did he have any “record that his system ha[d] produced energy,” and “[t]here [were] no witnesses to his production of a useful product from solar energy,” a fact that he attributed to his decision to do his testing “on the weekends when no one was around because he didn’t want people to see what he was doing.” Defendants never secured a purchase agreement for the sale of electricity to an end user. The district court found that Johnson’s purported solar energy technology was not a commercial-grade solar energy system that converts sunlight into electrical power or other useful energy. Despite this, Defendants’ project generated tens of millions of dollars between 2005 and 2018. Beginning in 2006, buyers would purchase lenses from IAS or RaPower-3 for a down payment of about one-third of the purchase price. The entity would “finance” the remaining two-thirds of the purchase price with a zero- or nominal- interest, nonrecourse loan. No further payments would be due from the customer until the system had been generating revenue from electricity sales for five years. The customer would agree to lease the lens back to LTB1 for installation at a “Power Plant”; but LTB1 would not be obligated to make any rental payments until the system had begun generating revenue. The district court found that each plastic sheet for the lenses was sold to Defendants for between $52 and $70, yet the purchase price of a lens was between $3,500 and $30,000. Although Defendants sold between 45,000 and 50,000 lenses, fewer than 5% of them were ever installed. Customers were told that buying a lens would have very favorable income-tax consequences. Johnson and Shepard sold the lenses by advertising that customers could “zero out” federal income-tax liability by taking advantage of depreciation deductions and solar-energy tax credits. To remedy Defendants' misconduct, the district court enjoined Defendants from continuing to promote their scheme and ordered disgorgement of their gross receipts from the scheme. Defendants appealed. Finding no reversible error, the Tenth Circuit affirmed the district court.

Caquelin v. United States

Court: US Court of Appeals for the Federal Circuit

Docket: 19-1385

Opinion Date: May 29, 2020

Judge: Richard Gary Taranto

Areas of Law: Civil Rights, Constitutional Law, Government & Administrative Law, Real Estate & Property Law, Transportation Law, Zoning, Planning & Land Use

Caquelin's land was subject to a railroad easement. The Surface Transportation Board granted the railroad permission to abandon the line unless the process (16 U.S.C. 1247(d)) for considering the use of the easement for a public recreational trail was invoked. That process was invoked. The Board issued a Notice of Interim Trail Use or Abandonment (NITU), preventing effectuation of the abandonment approval and blocking the ending of the easement for 180 days, during which the railroad could try to reach an agreement with two entities that expressed interest in the easement for trail use. The NITU expired without such an agreement. The railroad completed its abandonment three months later. Caquelin sued, alleging that a taking occurred when the government, by issuing the NITU, prevented the termination of the easement during the 180-day period. Following a remand, the Claims Court again held that a taking had occurred. The Federal Circuit affirmed, rejecting the contention that the multi-factor approach adopted for government-created flooding in the Supreme Court’s 2012 “Arkansas Game” decision displaced the categorical-taking analysis adopted in Federal Circuit precedents for a NITU that blocks termination of an easement. The categorical taking analysis is applicable even when that NITU expires without a trail-use agreement. A NITU does not effect a taking if, even without a NITU, the railroad would not have abandoned its line during the period of the NITU. Here, the evidence permits a finding that abandonment would have occurred during the NITU period if the NITU had not issued.

Blankenship v. Kennedy

Court: Supreme Court of Alabama

Docket: 1180649

Opinion Date: May 29, 2020

Judge: Mitchell

Areas of Law: Animal / Dog Law, Environmental Law, Government & Administrative Law

Deer breeders Terry Kennedy and Johnny McDonald sought to raise and hunt bigger deer by artificially inseminating whitetail deer with mule-deer semen. Whether they could do so depended on whether the resulting hybrid deer were covered by Alabama's definition of "protected game animals" in section 9-11-30(a), Ala. Code 1975. On a motion for a judgment on the pleadings, the Circuit Court concluded that, because the hybrid deer were the offspring of a female whitetail deer, they were "protected game animals," both by virtue of the inclusion in that definition of "whitetail deer ... and their offspring," and by virtue of an old legal doctrine called partus sequitur ventrem. The trial court therefore entered a judgment in favor of the deer breeders. The Alabama Supreme Court disagreed: because the modifier "and their offspring" in section 9-11-30(a) did not reach back to apply to the term "whitetail deer," and because the Latin maxim cited as an alternative theory for relief had no application in this case, the Supreme Court reversed and remanded.

Kennamer v. City of Guntersville et al.

Court: Supreme Court of Alabama

Docket: 1180939

Opinion Date: May 29, 2020

Judge: Mendheim

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

Joel Kennamer appealed a circuit court's dismissal of his complaint seeking a declaratory judgment, a preliminary injunction, and a permanent injunction against the City of Guntersville, the City's mayor Leigh Dollar, each member of the Guntersville City Council, and Lakeside Investments, LLC ("Lakeside"). Kennamer's complaint sought to prevent the City from leasing certain City property to Lakeside. Kennamer asserted that the City had erected a pavilion on "Parcel One" for public use and that residents used Parcel One for public fishing, fishing tournaments, truck and tractor shows, and public festivals and events. As for Parcel Two, Kennamer alleged that in 2000, the City petitioned to condemn property belonging to CSX Transportation, Inc. ("CSX"), "for the purpose of constructing [a] public boat dock and a public recreational park." In 2019, the City approved an ordinance declaring the development property "is no longer needed for public or municipal purposes." The development agreement, as updated, again affirmed that the development property would be used "for a mixed-use lakefront development containing restaurants, entertainment, retail, office space, high density multi-family residential, and other appropriate commercial uses, including parking." Thereafter, Kennamer sued the City defendants arguing the City lacked the authority to lease to a third-party developer City property that had been dedicated for use as, and/or was being used as, a public park. Finding that the City had the statutory authority to lease the property to the third-party developer, the Alabama Supreme Court affirmed the circuit court's dismissal.

California Gun Rights Foundation v. Superior Court of Los Angeles Count

Court: California Courts of Appeal

Docket: B299798(Second Appellate District)

Opinion Date: May 29, 2020

Judge: Lee Anne Edmon

Areas of Law: Government & Administrative Law

Section 6259 of the California Public Records Act governs venue, not jurisdiction, and thus it does not deprive a superior court of subject matter jurisdiction over a public records dispute even if the requested records are not situated in the county where the lawsuit is brought. In this case, although the records sought are not situated in Los Angeles County, the Court of Appeal held that the Los Angeles Superior Court nonetheless has jurisdiction over this action. The court also held that the venue provision of section 6259 does not override Code of Civil Procedure section 401, which provides that if an action may be brought against the state or its agencies in Sacramento, it also may be brought anywhere the Attorney General has an office. Therefore, because this action may be brought in Sacramento County, the court held that it may also be brought in Los Angeles, where the Attorney General has an office. Accordingly, the court directed the trial court to vacate its order transferring this matter to Sacramento County.

Hernandez v. Department of Motor Vehicles

Court: California Courts of Appeal

Docket: A156062(First Appellate District)

Opinion Date: June 2, 2020

Judge: Mark B. Simons

Areas of Law: Civil Procedure, Government & Administrative Law

Vehicle Code section 13365(a) directs the Department of Motor Vehicles (DMV) to suspend a person’s driver’s license “[u]pon receipt of notification of a violation of" section 40508(a) (the Misdemeanor Statute), which makes it a misdemeanor for a traffic offender to “willfully violat[e]” his written promise to appear in court. Plaintiffs challenged the DMV policy of suspending driver’s licenses upon notification of a failure to appear even without notification that this failure violated the Misdemeanor Statute. The DMV provides courts with electronic and paper methods to notify it of a person’s failure to appear; both require the court to indicate the “sections violated.” The DMV will suspend a driver’s license regardless of whether the form indicates that the Misdemeanor Statute is one of the sections violated. The trial court denied the petition. The court of appeal reversed, rejecting DMV’s argument that it is authorized under section 13365(a) to suspend a license upon receiving notification pursuant to the Notification Statutes. Notification of a violation of the Misdemeanor Statute is required before the DMV suspends a license pursuant to section 13365(a). The Notification Statute is broader and authorizes permissive notification upon violation of a “written promise to appear . . . , or . . . an order to appear in court." An order to appear in court is not equivalent to a written promise to appear. The Misdemeanor Statute also requires that the failure to appear be willful.”

Williamson County Board of Commissioners v. Board of Trustees of the Illinois Municipal Retirement Fund

Court: Supreme Court of Illinois

Citation: 2020 IL 125330

Opinion Date: June 4, 2020

Judge: Thomas L. Kilbride

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

The Pension Code allowed elected county board members to participate in the Illinois Municipal Retirement Fund (IMRF) if the participant occupied a position requiring 1000 hours of service annually and the public employee filed an election to participate. A 1968 administrative rule required the governing body of a participating employer to adopt a resolution certifying that the position of elected governing body members required the hourly standard. Williamson County complied with the 1968 rule. The plaintiffs satisfied the original requirements for IMRF participation, electing to participate in 2004, 2008, and 2012. In 2016, Public Act 99-900, amended parts of the Pension Code (40 ILCS 5/7-137.2(a), requiring, for the first time, that all county boards certify within 90 days of each general election that their board members were required to work sufficient hours to meet the hourly standard for participation and that members who participate in IMRF submit monthly timesheets. The Fund issued “Special Memorandum #334” to the authorized IMRF agent in every county, explaining the change: “If the County Board fails to adopt the required IMRF participation resolution within 90 days after an election, the entire Board will become ineligible and IMRF participation will end for those Board members.” The Fund also sent a direct mailing to individual county board members participating in IMRF. Williamson County did not timely adopt the required resolution. The Fund notified the plaintiffs that they were not eligible for continued IMRF participation. The Illinois Supreme Court found Public Act 99-900 invalid under Illinois Constitution article XIII, section 5. A public employee’s membership in a pension system is an enforceable contractual relationship; continued IMRF participation was protected from unilateral legislative diminishment or impairment when the plaintiffs became IMRF participants and began accruing the service credits.

Endress v. Iowa Department of Human Services

Court: Iowa Supreme Court

Docket: 18-1329

Opinion Date: May 29, 2020

Judge: Christensen

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

The Supreme Court affirmed in part and reversed in part the judgment of the district court reversing the decision of the Iowa Department of Human Services (DHS) that a child-care provider must pay back benefits the provider received during agency review of her cancelled provider agreement, holding that DHS erred in refusing to consider the provider's unjust enrichment defense to the recoupment proceeding. At issue was whether the provider was given constitutionally sufficient notice of DHS's intent to recoup payments. DHS sent the provider a notice cancelling the provider agreement and noted that any benefits the provider got while her appeal was being decided "may have to be paid back if the Department's action is correct." DHS affirmed its decision to cancel the provider's agreement but did not find, until years later, that the provider had to pay back the $16,000. The district court reversed DHS's decision on recoupment and denied attorney fees under Iowa Code 625.29(1)(b). The Supreme Court reversed in part, holding (1) DHS's notice met procedural due process requirements, but the DHS should have been allowed an opportunity to raise unjust enrichment as an offset to DHS's effort to recoup overpayments; and (2) where DHS's role was primarily adjudicative, DHS was not liable for attorney fees.

Pfaltzgraff v. Iowa Department of Human Services

Court: Iowa Supreme Court

Docket: 18-0189

Opinion Date: May 29, 2020

Judge: Christensen

Areas of Law: Constitutional Law, Government & Administrative Law

The Supreme Court affirmed in part and vacated in part the court of appeals' decision and affirmed in part and reversed in part the judgment of the district court, holding that a child-care provider whose provider agreement and registration was cancelled should be allowed to raise unjust enrichment as an offset to the Iowa Department of Human Services' (DHS) effort to recoup $31,815 for child-care services the provider rendered during agency review. This appeal was a companion case to Endress v. Iowa Department of Human Services, __ N.W.2d __ (Iowa 2020), also decided today. DHS attempted to recoup child-care service payments during agency review of the provider's cancelled provider agreement and registration. On appeal, the court of appeals held that DHS's notice concerning recoupment of overpayments was constitutionally deficient. The Supreme Court (1) vacated the court of appeals' decision on the constitutional issue, holding that DHS's notice of recoupment met procedural due process requirements; and (2) remanded the case to the district court to remand to DHS for consideration of the provider's equitable relief, holding that the provider should have been allowed to pursue her claim for unjust enrichment.

The Williams Companies, Inc. v. Mississippi Department of Revenue

Court: Supreme Court of Mississippi

Citation: 2018-CA-01487-SCT

Opinion Date: June 4, 2020

Judge: Ishee

Areas of Law: Government & Administrative Law, Tax Law

The Mississippi Department of Revenue (Department) conducted an audit of the Mississippi corporate tax returns of The Williams Companies, Inc. (Williams), for the years 2008 through 2010. During the course of the audit, Williams filed amended returns removing the capital of its single-member limited-liability companies (SMLLCs) from its calculation of capital employed in the state, seeking a refund of franchise tax in the amount of $981,419. After the Department’s review of Williams’ records and returns, the Department issued an assessment. The calculation included the capital of Williams’ SMLLCs in Williams’ Mississippi franchise-tax base. This resulted in a refund of $231,641. Williams objected, arguing it should not have been assessed a franchise-tax on capital employed by its Mississippi subsidiaries because of ambiguous language in the Mississippi franchise tax statutes. After review, the Mississippi Supreme Court affirmed the holding of the chancery court that Williams could not exclude the capital of its SMLLCs from its franchise-tax base.

Kansas City Chiefs Football Club, Inc. v. Director of Revenue

Court: Supreme Court of Missouri

Docket: SC97730

Opinion Date: June 2, 2020

Judge: Laura Denvir Stith

Areas of Law: Government & Administrative Law, Tax Law

The Supreme Court reversed the decision of the Administrative Hearing Commission (AHC) holding that The Kansas City Chiefs Football Club, Inc. (the team) was the "purchaser" of certain items used in the renovation of Arrowhead Stadium and its related facilities and was, therefore, liable for sales and use tax on those items, holding that the AHC erred in determining that the team was the purchaser of the items. After the renovation was complete, the Director of Revenue conducted a sales and use tax audit and determined that the team was liable for sales and use tax on seven categories of contested items purchased from the nine vendors at issue in this appeal. The team appealed to the AHC, which found the team liable for sales tax and use tax on the items. The Supreme Court reversed, holding that the team was not the source of the consideration for the contested items and, therefore, was not the purchaser of the items, as that term is used in Missouri's sales and use tax statutes.

Seacoast Newspapers, Inc. v. City of Portsmouth

Court: New Hampshire Supreme Court

Docket: 2019-0135

Opinion Date: May 29, 2020

Judge: Donovan

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

Plaintiff Seacoast Newspapers, Inc. appealed a superior court order denying its petition to disclose an arbitration decision concerning the termination of a police officer by defendant City of Portsmouth. Seacoast primarily argued that the New Hampshire Supreme Court previously misconstrued the “internal personnel practices” exemption of our Right-to-Know Law. See RSA 91-A:5, IV (2013). In this opinion, the Court took the opportunity to redefine what falls under the “internal personnel practices” exemption, overruling its prior interpretation set forth in Union Leader Corp. v. Fenniman, 136 N.H. 624 (1993). The Court concluded that only a narrow set of governmental records, namely those pertaining to an agency’s internal rules and practices governing operations and employee relations, fell within that exemption. Accordingly, the Court held the arbitration decision at issue here did not fall under the “internal personnel practices” exemption, vacated the trial court’s order, and remanded for the trial court’s consideration of whether, or to what extent, the arbitration decision was exempt from disclosure because it is a “personnel . . . file[ ].”

Union Leader Corporation v. Town of Salem

Court: New Hampshire Supreme Court

Docket: 2019-0206

Opinion Date: May 29, 2020

Judge: Gary E. Hicks

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

Plaintiffs Union Leader Corporation and American Civil Liberties Union of New Hampshire (ACLU-NH), appealed a superior court order denying their petition for the release of “complete, unredacted copies” of: (1) “the 120-page audit report of the Salem Police Department . . . dated October 12, 2018 focusing on internal affairs complaint investigations”; (2) “the 15-page addendum focused on the [Salem Police] Department’s culture”; and (3) “the 42-page audit report of the [Salem Police] Department dated September 19, 2018 focusing on time and attendance practices” (collectively referred to as the “Audit Report”). The trial court upheld many of the redactions made to the Audit Report by defendant Town of Salem (Town), concluding that they were required by the “internal personnel practices” exemption to the Right-to-Know Law, RSA chapter 91-A, as interpreted in Union Leader Corp. v. Fenniman, 136 N.H. 624 (1993), and its progeny. In a separate opinion, the New Hampshire Supreme Court overruled Fenniman to the extent that it broadly interpreted the “internal personnel practices” exemption and overruled our prior decisions to the extent that they relied on that broad interpretation. Here, the Court overruled Fenniman to the extent that it decided that records related to “internal personnel practices” were categorically exempt from disclosure under the Right-to-Know Law instead of being subject to a balancing test to determine whether such materials are exempt from disclosure. The Court overruled prior decisions to the extent that they applied the per se rule established in Fenniman. The Court vacated the trial court’s order and remanded for further proceedings in light of these changes.

Lamar Advertising Of South Dakota, LLC v. City of Rapid City

Court: South Dakota Supreme Court

Citation: L.L.C. v. CITY OF RAPID CITY, 2020 S.D. 30

Opinion Date: June 3, 2020

Judge: Devaney

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

The Supreme Court affirmed the circuit court's judgment declining to declare that the City of Rapid City unlawfully bargained away its police power when it entered into a settlement agreement with Epic Outdoor Advertising under which the City agreed to amend certain sign ordinances and grant Epic two sign permits, holding that the circuit court did not err. Lamar Advertising brought this appeal. By notice of review, Epic asserted that the circuit court erred in denying its request that the court declare invalid a similar settlement agreement executed between Lamar and the City. The Supreme Court affirmed in all respects, holding (1) because the City did not contract away its police powers by agreeing to amend the sign code, and because Lamar did not establish that the City acted unreasonably or arbitrarily when it amended the sign code, the circuit court did not err in denying Lamar's motion for summary judgment requesting a declaration that the settlement agreement and the ordinance agreements were invalid; (2) challenges to the granting of permits, such as those brought by Lamar, must be pursued through the administrative process; and (3) the circuit court did not err in failing to find the settlement agreement previously entered into between Lamar and the City invalid.

In re Parental Rights to D.H.

Court: Washington Supreme Court

Docket: 97311-3

Opinion Date: June 4, 2020

Judge: Johnson

Areas of Law: Family Law, Government & Administrative Law

The issue case raised centered whether the Washington Department of Social and Health Services (Department) fulfilled its statutory obligation under RCW 13.34.180(1)(d) to provide a mother necessary services before terminating her parental rights. B.B., the mother of D.H., S.T., L.L., and T.L., had her parental rights terminated after a nearly three-year long dependency. B.B. contended that the Department failed to provide her timely dialectical behavior therapy (DBT) and neuropsychological services and that the parenting education services she received were not properly tailored to her mental health needs. A Court of Appeals commissioner affirmed the termination, finding that the Department provided and properly tailored all necessary services to B.B. After review, the Washington Supreme Court affirmed, finding substantial evidence supported the trial court’s finding that all necessary and ordered services were offered or provided.