Dear House Judiciary Committee: In Questioning William Barr, Employ the Ethics Complaint That 27 Distinguished DC Lawyers Filed Wednesday

FREDERICK BARON, DENNIS AFTERGUT, AUSTIN SARAT

Frederick Baron, former associate deputy attorney general and director of the Executive Office for National Security in the Department of Justice, Dennis Aftergut, a former federal prosecutor, and Austin Sarat, Associate Provost and Associate Dean of the Faculty and William Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst College, call upon the House Judiciary Committee to carefully read the ethics complaint by 27 distinguished DC lawyers against William Barr before questioning him today, July 28, 2020.

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Hassoun v. Searls

Court: US Court of Appeals for the Second Circuit

Docket: 20-2056

Opinion Date: July 30, 2020

Judge: Menashi

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

The district court decided that the government was not authorized under 8 C.F.R. 241.14(d) to continue holding petitioner in immigration detention pending his removal from the United States and ordered the government to release him. The government appealed and argued that section 241.14(d) is not inconsistent with its authorizing statute, 8 U.S.C. 1231(a)(6), and that it provides adequate procedural due process. The Second Circuit granted the government's motion for a stay pending appeal, holding that the government has made a strong showing that it is likely to succeed on the merits of its argument that the district court erred in holding that section 241.14(d) is inconsistent with section 1231(a)(6) and does not provide adequate procedural due process. The court also held that the government has made a strong showing of a likelihood of success on its argument that the district court erred in holding that section 241.14(d) is not a permissible reading of section 1231(a)(6). Furthermore, considerations of irreparable harm and the equities favor a stay of petitioner's release pending appeal.

Power Authority of the State of New York v. M/V Ellen S. Bouchard

Court: US Court of Appeals for the Second Circuit

Docket: 19-1140

Opinion Date: July 30, 2020

Judge: William J. Nardini

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

The Authority appealed the district court's grant of summary judgment to defendants, two vessels and their corporate owners, in an action brought under the federal Oil Pollution Act (OPA) and state law. The claims arose from the release of thousands of gallons of oil from a submarine power-transmission cable into Long Island Sound, which the Authority alleges was caused by the defendant vessels dropping anchor. The Second Circuit vacated the district court's order and held that the submarine cable is indeed "used for" one of the enumerated "purposes" in the OPA's definition of "facility." Consequently, the panel found that the cable system is used for at least one of the enumerated purposes in the statute. Therefore, the district court erred in dismissing the Authority's OPA claims and in concluding that the Authority's New York Oil Spill Law claims had to be brought in the parallel proceeding on that basis. The court remanded for further proceedings.

Commonwealth of Pennsylvania v. Navient Corp

Court: US Court of Appeals for the Third Circuit

Docket: 19-2116

Opinion Date: July 27, 2020

Judge: Thomas L. Ambro

Areas of Law: Consumer Law, Education Law, Government & Administrative Law

Navient sells student loans to borrowers and services and collects on student loans. Its “subprime loans,” which had high variable interest rates and origination fees, benefited schools by maximizing enrollment. Student borrowers were not informed that the loans had a high likelihood of default. In 2000-2007, 68-87% of Navient’s high-risk loans defaulted. Navient allegedly steered borrowers into consecutive forbearances after they had demonstrated a long-term inability to repay their loans. Navient would sometimes place borrowers in forbearance even though they would have qualified for $0 per month payments in an Income-Driven Repayment (IDR) plan. In 2011-2015, more than 60% of Navient’s borrowers who enrolled in IDR plans failed timely to renew their enrollment, allegedly because of deficient notifications. Navient also allegedly made misrepresentations concerning releases for cosigners and misapplied payments, resulting in borrowers and cosigners being improperly charged late fees and increased interest. Pennsylvania sued Navient under the Consumer Financial Protection Act, 12 U.S.C. 5552, and the state’s Unfair Trade Practices and Consumer Protection Law. Nine months earlier, the Consumer Financial Protection Bureau and the states of Illinois and Washington had filed similar lawsuits. The Third Circuit affirmed the denial of a motion to dismiss. The federal Act permits concurrent action. The Higher Education Act, 20 U.S.C. 1001, preempts state law claims based on failures to disclose required information but does not preempt claims based on affirmative misrepresentations.

Oneida Nation v. Village of Hobart

Court: US Court of Appeals for the Seventh Circuit

Docket: 19-1981

Opinion Date: July 30, 2020

Judge: HAMILTON

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

The Oneida Nation’s Big Apple Fest is held, annually, on land partially located in the Village of Hobart. In 2016 Hobart demanded that the Nation obtain a permit and submit to some of its s laws. The Nation filed suit and held the festival without a permit. The Seventh Circuit ruled in favor of the Nation. The Oneida Reservation, established by treaty in 1838, remains intact, so federal law treats the land at issue as Indian country not subject to most state and local regulation. The Reservation was not diminished piece-by-piece when Congress allotted the Reservation among individual tribe members and allowed the land to be sold eventually to non‐Indians but can be diminished or disestablished only by Congress. The court noted the Supreme Court’s 2020 "McGirt" decision as “making it even more difficult to establish the requisite congressional intent to dis‐establish or diminish a reservation.” The statutory texts provide no clear indication that Congress intended to eliminate all tribal interests in allotted Oneida land; diminishment cannot be the result of Congress’s general expectation in the late nineteenth and early twentieth centuries that its actions would eventually end the reservation system. Hobart has not shown “exceptional circumstances” that could justify imposing its ordinance on the Nation within the boundaries of the Reservation.

Bunn v. Perdue

Court: US Court of Appeals for the Tenth Circuit

Docket: 19-2138

Opinion Date: July 28, 2020

Judge: Scott Milne Matheson, Jr.

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

In January 2011, plaintiff-appellant Virgin Bunn was hired for a one-year probationary period as a human resources assistant at the United States Forest Service’s (“USFS”) Albuquerque Service Center. Ten months into the job, Bunn's supervisor became concerned about Bunn's job performance. After his supervisor asked a colleague to oversee Bunn’s work, Bunn complained to his supervisor about the colleague’s comments to him. Bunn later contacted USFS’s Equal Employment Opportunity (“EEO”) Counselor Office about these comments. On January 6, 2012, Bunn was fired. Bunn thereafter filed an EEO complaint with the United States Equal Employment Opportunity Commission (“EEOC”) alleging harassment, a hostile work environment, and retaliation. An administrative law judge dismissed the suit, granting summary judgment to the agency on all claims. The USDA’s Office of Adjudication issued a final order implementing the EEOC’s decision. Bunn appealed. The Office of Federal Operations affirmed the USDA’s final decision. After its review of the matter, the Tenth Circuit Court of Appeals found: Bunn's appeal of the summary judgment order was untimely; and (2) there was no reversible error in the district court's order striking Bunn's motion to vacate.

El Paso Natural Gas Co., LLC v. Federal Energy Regulatory Commission

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

Docket: 15-1323

Opinion Date: July 24, 2020

Judge: Per Curiam

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

In three consolidated petitions for review, petitioners challenged five FERC orders on two intertwined El Paso rate cases under the Natural Gas Act, the 2008 Rate Case and the 2011 Rate Case. The DC Circuit denied the petitions for review, holding that FERC's removal of both the undistributed subsidiary earnings and the loan to El Paso's parent from the equity component of El Paso's capital structure was reasoned and supported by substantial evidence. The court also held that FERC's conclusion that El Paso had not demonstrated that its proposed rates would comply with the 1996 settlement was reasonable; FERC reasonably excluded the two compressor stations from El Paso's rate base; and FERC's approval of a zone-of-delivery rate design measured by contract-paths and its rejection of equilibration for lack of quantitative support were neither arbitrary nor contrary to law.

Meritor, Inc. v. Environmental Protection Agency

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

Docket: 18-1325

Opinion Date: July 28, 2020

Judge: Patricia Ann Millett

Areas of Law: Environmental Law, Government & Administrative Law

Meritor filed suit challenging the EPA's listing of the Rockwell facility and surrounding areas to the National Priorities List, alleging that the listing is arbitrary, capricious, and contrary to governing regulations. The National Priorities List identifies hazardous waste sites in most urgent need of cleanup based on the threat that they pose to public and environmental health and to the public welfare. The DC Circuit denied the petition for review, holding that the EPA did not act arbitrarily and capriciously by evaluating the Rockwell Site based on measurements taken before the sub-slab depressurization system was installed; by relying on a residential health benchmark when evaluating the "targets" metrics; and in calculating the "waste characteristics" component of the subsurface intrusion pathway.

Gensetix, Inc. v. Baylor College of Medicine

Court: US Court of Appeals for the Federal Circuit

Docket: 19-1424

Opinion Date: July 24, 2020

Judge: O'Malley

Areas of Law: Civil Procedure, Constitutional Law, Education Law, Government & Administrative Law, Intellectual Property, Patents

Decker developed the patented inventions while employed at the University of Texas and assigned the patents to UT. Gensetix obtained an exclusive license in the patents. The license agreement provides that, Gensetix must enforce the patents. The parties agreed to cooperate in any infringement suit and that nothing in the agreement would waive UT's sovereign immunity. Gensetix sued Baylor, alleging infringement and requested that UT join as a co-plaintiff. UT declined. Gensetix named UT as an involuntary plaintiff under FRCP 19(a). The district court dismissed, finding that UT is a sovereign state entity, so that the Eleventh Amendment barred joinder of UT, and that the suit could not proceed without UT. The Federal Circuit affirmed in part. UT did not voluntarily invoke federal jurisdiction; the Eleventh Amendment prevents “the indignity of subjecting a State to the coercive process of judicial tribunals” against its will. It is irrelevant that the license agreement requires the initiation of an infringement suit by Gensetix or cooperation by UT. The court erred in dismissing the suit without adequate analysis of Rule 19(b)'s factors: the extent to which a judgment might prejudice the missing required party or the existing parties; the extent to which any prejudice could be lessened; whether a judgment rendered in the required party’s absence would be adequate; and whether the plaintiff would have an adequate remedy if the action were dismissed.

Adams v. Alaska Workers Compensation Benefits Guaranty Fund

Court: Alaska Supreme Court

Docket: S-17227

Opinion Date: July 24, 2020

Judge: Daniel E. Winfree

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

Virgil Adams, a self-described journeyman carpenter, worked sporadically from 2009 to 2011 at a house located on Snow Bear Drive in Anchorage. He suffered a “T12 burst fracture with incomplete spinal cord injury” when he fell from the house’s roof in 2011, and became permanently and totally disabled as a result of the fall. He filed a claim with the Alaska Workers’ Compensation Board, and, because the property owner for whom he worked had no workers’ compensation insurance, the Workers’ Compensation Guaranty Fund was joined to the workers’ compensation case. The Fund disputed whether the property owner for whom the carpenter worked was an “employer” as defined in the Alaska Workers’ Compensation Act and contended the worker’s intoxication caused the accident. The Board decided the injury was compensable based on two findings: (1) the property owner was engaged in a real-estate-related “business or industry” and (2) the worker’s alleged intoxication did not proximately cause the accident. The Fund appealed to the Alaska Workers’ Compensation Appeals Commission; the Commission reversed because, in its view, the Board applied an incorrect legal test in determining whether the property owner was an employer and no evidence in the record could support a determination that the property owner was engaged in a “business or industry” at the time of the injury. The Commission decided the intoxication issue was not ripe for review. After review, the Alaska Supreme Court reversed the Commission’s decision, finding the Board did not legally err and substantial evidence supported its employment-status decision. The matter was remanded to the Commission for consideration of the intoxication issue.

Alleva v. Municipality of Anchorage

Court: Alaska Supreme Court

Docket: S-17302

Opinion Date: July 24, 2020

Judge: Peter J. Maassen

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

Landowners Ronald and Annette Alleva settled a lawsuit against a the Municipality of Anchorage and organizations that operated a homeless shelter and a soup kitchen; the settlement agreement recited that the landowners accepted a sum of money in exchange for a release of present and future trespass and nuisance claims involving the organizations’ clients. Six years later the landowners filed this lawsuit asserting similar claims. Their complaint referred to the prior settlement, but they did not file the settlement agreement with the complaint. The defendants moved to dismiss, relying on the settlement agreement. The landowners argued that because the settlement agreement had not been filed with the complaint, it could not be used as a basis for dismissal under Alaska Civil Rule 12(b)(6). The superior court rejected the landowners’ argument, granted the motion to dismiss, and ruled in the alternative that the defendants were entitled to summary judgment. The landowners appealed. After review, the Alaska Supreme Court agreed with the superior court that the settlement agreement was properly considered on the motion to dismiss because it was addressed in the complaint and its authenticity was not questioned. The Supreme Court also agreed that the settlement barred the landowners’ current lawsuit.

In the Matter of April S.

Court: Alaska Supreme Court

Docket: S-17544

Opinion Date: July 24, 2020

Judge: Craig F. Stowers

Areas of Law: Family Law, Government & Administrative Law, Juvenile Law, Native American Law

An Alaska Native teenage minor affiliated with the Native Village of Kotzebue (Tribe) was taken into custody by the Office of Children’s Services (OCS) and placed at a residential treatment facility in Utah. She requested a placement review hearing after being injured by a facility staff member. At the time of the hearing, the minor’s mother wanted to regain custody. At the hearing the superior court had to make removal findings under the Indian Child Welfare Act (ICWA), as well as findings authorizing continued placement in a residential treatment facility under Alaska law. At the hearing, the minor’s Utah therapist testified as a mental health professional. The minor, as well as her parents and the Tribe, objected to the witness being qualified as an ICWA expert, but the superior court allowed it. The minor argued the superior court erred in determining that the witness was qualified as an expert for the purposes of ICWA. Because the superior court correctly determined that knowledge of the Indian child’s tribe was unnecessary in this situation when it relied on the expert’s testimony for its ICWA findings, the Alaska Supreme Court affirmed.

In the Matter of the Protective Proceedings of Tiffany O.

Court: Alaska Supreme Court

Docket: S-17192

Opinion Date: July 24, 2020

Judge: Joel H. Bolger

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

Tiffany O., a woman in her 60s, developed epilepsy early in childhood and suffered from regular seizures. She was also diagnosed with intellectual disability, and was described as "unable to engage in a meaningful conversation." In 2007, Tiffany's daughter Rachel petitioned for the appointment of a guardian for Tiffany. In March 2008, the superior court appointed the Office of Public Advocacy to serve as Tiffany’s public guardian. After a period of working well together, the relationship between Rachel and the public guardian soured. Rachel twice petitioned for review of the guardianship. In June 2011 Rachel was appointed as Tiffany’s guardian. The daughter relied on faith-based medicine to care for her mother, electing to, in one instance, pray over her mother after she became nonresponsive instead of calling emergency services. The superior court ultimately removed the daughter as guardian, finding that her behavior and “intractable belief system” caused her to deprive her mother of appropriate services and care. The Alaska Supreme Court found the superior court did not abuse its discretion when it removed the daughter as her mother’s guardian. The Court also concluded that removing the daughter as guardian did not violate the Alaska Constitution’s free exercise clause because the State possessed a compelling interest in preventing harm to the mother.

West v. Alaska Mental Health Trust Authority

Court: Alaska Supreme Court

Docket: S-17407

Opinion Date: July 24, 2020

Judge: Craig F. Stowers

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

In October 2017 the Alaska Trust Land Office (Land Office) issued a best interest decision in favor of selling five lots of land owned by the Alaska Mental Health Trust to Louis and Stacy Oliva. The Olivas' neighbors, Jeffrey and Bonnie West, submitted late comments opposing the sale. The Land Office accepted those comments as a request for reconsideration, but it ultimately denied the Wests' request and proceeded with the sale. The Wests appealed to the superior court, which affirmed the best interest decision. On appeal, the Wests argued the sale was not in the Trust’s best interest, the Land Office violated a number of statutes and regulations, and the agency’s public notice regulation was invalid. After review, the Alaska Supreme Court concluded the Wests' first argument lacked merit, and the remaining issues were waived for various reasons. The Court therefore affirmed the best interest decision.

Golden Door Properties, LLC v. Super. Ct.

Court: California Courts of Appeal

Docket: D076605(Fourth Appellate District)

Opinion Date: July 30, 2020

Judge: Judith McConnell

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

Under California Public Resources Code section 21167.6, documents "shall" be in the record in a CEQA challenge to an environmental impact report (EIR). The County of San Diego (County), as lead agency for the Newland Sierra project, no longer had "all" such correspondence, nor all "internal agency communications" related to the project. If those communications were by e-mail and not flagged as "official records," the County's computers automatically deleted them after 60 days. When project opponents propounded discovery to obtain copies of the destroyed e-mails and related documents to prepare the record of proceedings, the County refused to comply. After referring the discovery disputes to a referee, the superior court adopted the referee's recommendations to deny the motions to compel. The referee concluded that although section 21167.6 specified the contents of the record of proceedings, that statute did not require that such writings be retained. In effect, the referee interpreted section 21167.6 to provide that e-mails encompassed within that statute were mandated parts of the record - unless the County destroyed them first. The Court of Appeal disagreed with that interpretation, "[a] thorough record is fundamental to meaningful judicial review." The Court held the County should not have destroyed such e-mails, even under its own policies. The referee's erroneous interpretation of section 21167.6 was central to the appeals before the Court of Appeal. The Court issued a writ of mandate to direct the superior court to vacate its orders denying the motions to compel, and after receiving input from the parties, reconsider those motions.

Pasos v. Los Angeles County Civil Service Commission

Court: California Courts of Appeal

Docket: B291952(Second Appellate District)

Opinion Date: July 27, 2020

Judge: Feuer

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

After the Department discharged plaintiff based on her failure to report another deputy's use of force against an inmate and her failure to seek medical assistance for the inmate, the Commission affirmed the discharge. However, the trial court granted plaintiff's petition for writ of mandate and directed the Commission to set aside the discharge, award her back pay, and reconsider a lesser penalty. The Court of Appeal reversed and held that the Department did not abuse its discretion in discharging plaintiff where plaintiff's conduct furthered the code of silence at the Men's Central Jail, requiring the Department to take action. In this case, plaintiff's conduct in following the code of silence undermined the Department's trust and confidence in plaintiff as a deputy sheriff and negatively impacted the operation of the jail. Furthermore, at the Commission hearing, plaintiff minimized her responsibility to report the use of force. Therefore, given the Department's reasoned explanation that the discharge was necessary, the court concluded that this is not the exceptional case where reasonable minds cannot differ on the appropriate penalty. The court remanded for the trial court to enter a new judgment denying the petition for writ of mandate.

Newton v. MJK/BJK MBK Lake

Court: Idaho Supreme Court - Civil

Docket: 46334

Opinion Date: July 30, 2020

Judge: Brody

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

In 2015, the Kenworthys began construction on a two-story boat garage on Lake Coeur d’Alene. The Newtons’ property overlooked the location of the Kenworthys’ boat garage. The new structure was much larger than the original boat garage and had a second floor. After construction began, the Newtons took issue with the size of the new structure, and sued the Idaho Department of Lands (IDL) and the Kenworthys’ related family entities (the LLC Respondents), asserting claims of public and private nuisance and requesting injunctive relief to mandate the removal of the offending structure. The parties filed cross-motions for summary judgment. The district court held that the Newtons failed to establish that the boat garage was illegal and that their nuisance claims failed as a matter of law. The district court subsequently entered judgments in favor of IDL and the LLC Respondents. After the district court denied the Newtons’ motion for reconsideration, the Newtons appealed. Finding no reversible error, the Idaho Supreme Court affirmed the district court.

Motor Vehicle Administration v. Geppert

Court: Maryland Court of Appeals

Docket: 61/19

Opinion Date: July 27, 2020

Judge: Robert N. McDonald

Areas of Law: Government & Administrative Law

The Court of Appeals held that a circuit court asked to enforce an administrative order based on a final administrative decision under the State Administrative Procedure Act (APA) is not precluded from considering whether the relief ordered would violate the law on which the administrative decision is based. The Motor Vehicle Administration denied Karl Geppert's application for a learner's permit because he did not have a social security number. Geppert, however, was eligible for a social security number. An administrative law judge (ALJ) ordered that a learner's permit be issued to Geppert. Geppert requested a writ of mandamus to enforce the ALJ's ruling. The circuit court concluded that the ALJ's decision was based on an incorrect legal premise and denied the writ. The Court of Special Appeals reversed, holding that the circuit court was barred from considering the legal soundness of the ALJ's decision. The Court of Appeals reversed, holding that the circuit court did not err in declining to afford binding effect to the ALJ's erroneous legal conclusions.

Bisio v. City of the Village of Clarkson

Court: Michigan Supreme Court

Docket: 158240

Opinion Date: July 24, 2020

Judge: Stephen J. Markman

Areas of Law: Civil Procedure, Government & Administrative Law

Susan Bisio sued the City of the Village of Clarkston for allegedly violating the Michigan Freedom of Information Act (FOIA). Bisio filed a FOIA request with Clarkston seeking documents related to city business, including correspondence between Clarkston’s city attorney and a consulting firm concerning a development project and vacant property in the city. Clarkston denied Bisio’s request with regard to certain documents in the city attorney’s file. The city attorney, a private attorney who contracted with the city to serve as its city attorney, claimed that the requested documents were not “public records” as defined by MCL 15.232(i). The city attorney reasoned that he was not a “public body,” as defined by MCL 15.232(h), and because the requested documents were never in the possession of the city, which was a public body, the requested documents were not public records subject to a FOIA request. The trial court granted summary judgment in favor of Clarkston, concluding that the documents at issue were not public records because there was no evidence to show that Clarkston had used or retained them in the performance of an official function or that the city attorney had shared the documents with Clarkston to assist the city in making any decisions. The Court of Appeals affirmed the trial court, finding the city attorney was merely an agent of Clarkston and the definition of “public body” in MCL 15.232(h) did not encompass an agent of a public body. After its review, the Michigan Supreme Court reversed, finding the documents at issue did satisfy the statutory definition of "public records."

Mays v. Snyder

Court: Michigan Supreme Court

Dockets: 157335, 157336, 157337

Opinion Date: July 29, 2020

Judge: Bernstein

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

Water users and property owners in Flint, Michigan (plaintiffs) brought a class action at the Court of Claims against defendants Governor Rick Snyder, the state of Michigan, the Michigan Department of Environmental Quality (the MDEQ), and the Michigan Department of Health and Human Services (collectively, the state defendants) and against defendants Darnell Earley and Jerry Ambrose (the city defendants). Plaintiffs alleged the Governor and these officials had knowledge of a 2011 study commissioned by Flint officials that cautioned against the use of Flint River water as a source of drinking water. In 2014, under the direction of Earley and the MDEQ, Flint switched its water source from the Detroit Water and Sewage Department (DWSD) to the Flint River. Less than a month after the switch, state officials began to receive complaints from Flint water users about the quality of the water coming out of their taps. Plaintiffs alleged state officials failed to take any significant remedial measures to address the growing health threat and instead continued to downplay the health risk, advising Flint water users that it was safe to drink the tap water while simultaneously arranging for state employees in Flint to drink water from water coolers installed in state buildings. The state and city defendants separately moved for summary disposition on all four counts, arguing that plaintiffs had failed to satisfy the statutory notice requirements in MCL 600.6431 of the Court of Claims Act, failed to allege facts to establish a constitutional violation for which a judicially inferred damages remedy was appropriate, and failed to allege facts to establish the elements of any of their claims. The Court of Claims granted defendants’ motions for summary disposition on plaintiffs’ causes of action under the state-created-danger doctrine and the Fair and Just Treatment Clause of the 1963 Michigan Constitution, art 1, section 17, after concluding that neither cause of action was cognizable under Michigan law. However, the Court of Claims denied summary disposition on all of defendants’ remaining grounds, concluding that plaintiffs satisfied the statutory notice requirements and adequately pleaded claims of inverse condemnation and a violation of their right to bodily integrity. The Court of Appeals affirmed the Court of Claims. After hearing oral argument on defendants’ applications, a majority of the Michigan Supreme Court expressly affirmed the Court of Appeals’ conclusion regarding plaintiffs’ inverse-condemnation claim. The Court of Appeals opinion was otherwise affirmed by equal division.

Progress Michigan v. Schuette

Court: Michigan Supreme Court

Dockets: 158151, 158150

Opinion Date: July 27, 2020

Judge: Michael F. Cavanagh

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

Progress Michigan filed a complaint against then Attorney General Bill Schuette in his official capacity, alleging that defendant violated the Michigan Freedom of Information Act (FOIA), and failed to preserve state records under the Management and Budget Act. Plaintiff sought certain e-mail messages between Attorney General Schuette and his staff that were sent using personal e-mail accounts. Defendant denied the request on October 19, 2016, and on November 26, 2016, defendant denied plaintiff’s subsequent departmental appeal of that decision. Seeking to compel disclosure, plaintiff filed its complaint in the Court of Claims. Defendant moved for summary judgment, arguing that dismissal was appropriate because plaintiff failed to comply with the signature and verification requirement of MCL 600.6431 of the Court of Claims Act. Plaintiff amended its complaint which contained allegations identical to those in the original complaint, but was also signed by plaintiff’s executive director and sworn to before the Ingham County Clerk. Defendant again moved for summary judgment, this time arguing that the amended complaint was untimely because it was filed outside FOIA’s 180-day period of limitations. The Court of Claims dismissed plaintiff’s Management and Budget Act claim but denied the summary-judgment motion with respect to defendant’s FOIA claim, holding that plaintiff had complied with the MCL 600.6431 signature and verification requirement and that the complaint was timely filed within that statute’s one-year limitations period. The Court concluded that the amended complaint complied with FOIA’s statute of limitations because the amendment related back to the filing of the original complaint, which had been timely filed. The Court of Appeals reversed, reasoning that the Michigan Supreme Court’s decision in Scarsella v. Pollak, 607 NW2d 711 (2000), rendered plaintiff’s initial complaint a nullity, such that it could not be amended, and that the statutory period of limitations elapsed before the second complaint was filed. The Supreme Court reversed the appellate court, finding Scarsella did not apply in this context, and plaintiff complied with the statutory requirements necessary to sustain its claim under the FOIA.

Krile v. Lawyer

Court: North Dakota Supreme Court

Citation: 2020 ND 176

Opinion Date: July 30, 2020

Judge: Gerald W. VandeWalle

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

Robyn Krile appealed from a district court order granting defendant Julie Lawyer’s motion to dismiss under N.D.R.Civ.P. 12(b)(6). In February 2017, Assistant State’s Attorney Julie Lawyer received an anonymous letter concerning a Bismarck police officer's destruction of evidence. Lawyer averred her decision to review the officer files was to ensure the state’s attorney’s office was fulfilling its disclosure obligations under Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). As part of her investigation, Lawyer reviewed the file of Sergeant Robyn Krile. In Krile’s file, Lawyer discovered two letters of reprimand and several performance evaluations, which Lawyer believed raised Giglio issues. Lawyer further investigated the incidents for which the letters of reprimand were issued, and concluded Krile had made false statements as a Bismarck police officer. Lawyer shared her belief that the letters of reprimand and performance evaluations raised Giglio concerns with Bismarck Police Chief Dan Donlin. Chief Donlin disagreed and advised Lawyer that he did not see the incidents for which the letters of reprimand were issued as amounting to Giglio issues. Despite Chief Donlin’s pleas, Lawyer continued to believe Krile’s conduct amounted to a Giglio issue. Lawyer informed Chief Donlin that the results of her investigation would have to be disclosed to defense in cases in which Krile was involved pursuant to Giglio and, as a result, the Burleigh County State’s Attorney’s Office would no longer use Krile as a witness in its cases. Because the Burleigh County State’s Attorney’s Office was no longer willing to use Krile as a witness in its cases, the Bismarck Police Department terminated Krile’s employment. Krile filed a complaint with the Department of Labor and Human Rights claiming the Bismarck Police Department discriminated against her. After review, the North Dakota Supreme Court reversed dismissal of Krile's defamation claims for Lawyer's disclosure of the results of her investigation (the Giglio letter) to Chief Donlin. The Court affirmed dismissal of Krile’s defamation claims for Lawyer’s disclosure of the Giglio letter and affidavits to the Department of Labor and Human Rights because the communications were absolutely privileged. On remand, the district court may decide whether Lawyer’s communications to Chief Donlin and the POST Board are entitled to a qualified privilege.

Lowman v. Unemp. Comp. Bd. of Review

Court: Supreme Court of Pennsylvania

Docket: 41 EAP 2018

Opinion Date: July 24, 2020

Judge: Donohue

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

In a matter of first impression, the issue this case presented for the Pennsylvania Supreme Court's review was the appropriate test to determine whether a claimant who is otherwise entitled to receive unemployment compensation benefits due to a separation from employment becomes ineligible for those benefits as a result of being self-employed pursuant to Section 402(h) of the Unemployment Compensation Law (the Act, known as the self-employment exclusion). The Court held that Section 4(l)((2)(B), 43 P.S. section 753(l)(2)(B), contained the appropriate test for determining whether or not an individual is in self-employment. If an individual was not in “self-employment,” then he remained eligible for benefits. Applying that test to the facts of this case, the Supreme Court affirmed the Commonwealth Court's ruling that the claimant was not self-employed.

In re Mountain Top Inn & Resort, JO 1-391 (Hall, Appellant)

Court: Vermont Supreme Court

Citation: 2020 VT 57

Opinion Date: July 24, 2020

Judge: Carroll

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

Katherine Hall appealed an Environmental Division decision granting summary judgment to Chittenden Resorts, LLC and RMT Associates, d/b/a Mountain Top Inn & Resort (the Resort). The Environmental Division concluded the Resort did not need an amended Act 250 permit to run a rental program where, pursuant to a contractual agreement, the Resort rented out private homes near the Resort. On appeal, Hall argued that the Environmental Division erred in determining that the Resort did not need an amended Act 250 permit. Specifically, she argued the Resort needed an amended Act 250 permit because under 10 V.S.A. 6001(14)(A), the Resort and owners of the homes involved in the rental program were a collective "person." Alternatively, she argued the Resort exercised "control" over the rental homes within the meaning of section 6001(3)(A)(i). The Vermont Supreme Court disagreed with Hall's characterization of the Resort and home owners as a collective "person." Further, the Court found the Resort did not control the rented homes contemplated by section 6001(3)(i). Therefore, the Supreme Court affirmed the Environmental Division's judgment.

HB Family Limited Partnership v. Teton County Board of County Commissioners

Court: Wyoming Supreme Court

Citation: 2020 WY 98

Opinion Date: July 28, 2020

Judge: Gray

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

The Supreme Court affirmed the judgment of the Teton County Board of County Commissioners approving an application by the Teton Raptor Center for an amended conditional use permit (CUP) to expand the use of its property, holding that the Board's decision was not arbitrary and capricious and did not violate the law. In 2008, after obtaining variances to address nonconformities on structures on its property the Raptor Center obtained a CUP allowing the Raptor Center to operate its bird care and education facility. In 2017, the Raptor Center decided to expand its use of the site and applied to amend its 2008 CUP. The Board approved the application. Petitioners - nearby landowners and other parties - appealed, and the district court affirmed. The Supreme Court affirmed, holding (1) Petitioners had standing to appeal the Board's decision; and (2) the Board reasonably concluded that the amended CUP complied with all relevant standards and resolutions and that the amended CUP substantially complied with the requirements of the 2008 variance.