Drafted and Shafted: Who Should Complain About Male-Only Registration?

SHERRY F. COLB

Cornell law professor comments on a recent opinion by the U.S. Court of Appeals for the Fifth Circuit holding that requiring men but not women to register for the draft is constitutional under mandatory U.S. Supreme Court precedents. Specifically, Colb considers what the U.S. Supreme Court should do if it agrees to hear the case and more narrowly, whether the motives of the plaintiffs in that case bear on how the case should come out.

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Franjul-Soto v. Barr

Court: US Court of Appeals for the First Circuit

Docket: 19-1859

Opinion Date: August 24, 2020

Judge: David J. Barron

Areas of Law: Government & Administrative Law, Immigration Law

The First Circuit denied Petitioner's petition for review of an order of the Board of Immigration Appeals (BIA) that denied Petitioner's motion to reconsider his motion to reopen removal proceedings, holding that the BIA did not abuse its discretion. Petitioner, a native and citizen of the Dominican Republic, was charged with being removable from the United States. The Immigration Judge (IJ) sustained the charge of removability and denied Petitioner's application for cancellation of removal. The First Circuit affirmed, holding (1) this Court's precedent forecloses the argument that the IJ lacked jurisdiction to issue the order of removal; (2) the BIA did not abuse its discretion in denying Petitioner's motion to reconsider its denial of Petitioner's motion to reopen; and (3) the BIA did not err in finding that Petitioner failed to make the requisite prima facie case.

Soto-Vittini v. Barr

Court: US Court of Appeals for the First Circuit

Docket: 19-1372

Opinion Date: August 24, 2020

Judge: Boudin

Areas of Law: Government & Administrative Law, Immigration Law

The First Circuit affirmed the judgment of the Board of Immigration Appeals (BIA) ordering Petitioner's removal, holding that Petitioner's state drug conviction was an "aggravated felony" under the Immigration and Nationality Act (INA), 8 U.S.C. 1101(a)(43); 1227(a)(2)(A)(iii). Petitioner, a native and citizen of the Dominican Republic, pled guilty to drug possession with the intent to distribute, in violation of Mass. Gen. Laws ch. 94C, 32A(a). The Department of Homeland Security sought to remove him because his drug conviction constituted an aggravated felony under the INA. An immigration judge ruled that Petitioner was removable. The BIA affirmed. The First Circuit affirmed, holding that because the mens rea to convict an accomplice under section 32A(a) is no broader than under the Controlled Substances Act, Petitioner's state drug conviction amounted to illicit trafficking in a controlled substance and thus an aggravated felony under the INA.

Alzokari v. Pompeo

Court: US Court of Appeals for the Second Circuit

Docket: 19-3133

Opinion Date: August 26, 2020

Judge: Richard C. Wesley

Areas of Law: Government & Administrative Law

The Department of State cannot revoke a citizen's United States passport on the ground that he concealed his identity in applying for the passport, where the citizen makes a statement that prior to his naturalization he was known by another name but he applied for, and was issued, his passport using his uncontested legal name. Plaintiff appealed the dismissal of his Administrative Procedure Act (APA) suit challenging the Department's revocation of his passport. The district court dismissed the complaint after determining that the revocation of plaintiff's passport was neither arbitrary nor capricious, and did not violate Due Process. The Second Circuit reversed the district court's judgment and found that plaintiff could not have fraudulently obtained his passport when he used the name and birthdate denoted on his unchallenged immigration and citizenship documents, including his certificate of naturalization. The court reversed the Department's final decision upholding the passport revocation and ordered the Department to return plaintiff's expired passport so that he may apply for a new United States passport if he so chooses.

Uniformed Fire Officers Ass'n v. DeBlasio

Court: US Court of Appeals for the Second Circuit

Docket: 20-2400

Opinion Date: August 27, 2020

Judge: Jon O. Newman

Areas of Law: Civil Procedure, Government & Administrative Law

The Second Circuit denied a motion brought by unions representing uniformed New York City officers to stay, pending appeal the district court's July 29, 2020 order modifying the district court's July 22, 2020 order such that the order no longer applies to non-party NYCLU. This dispute arose out of the action of the New York legislature repealing section 50-a of the State's Civil Rights Law, which had shielded from public disclosure personnel records of various uniformed officers including police officers. The court stated that the effect of the modification is to permit the NYCLU publicly to disclose information concerning disciplinary records of approximately 81,000 New York City police officers, records alleged to contain unsubstantiated and nonfinal allegations. The court held that the district court properly excluded the NYCLU from the disclosure prohibition under Federal Rule of Civil Procedure 65(d)(2)(C) because it was not "in active concert" with a party bound by a TRO or a preliminary injunction. The court explained that the NYCLU could not be "in active concert" with such a party because it lawfully gained access to the information at issue before the July 22 disclosure prohibition was issued against it and obviously could not have known of a prohibition that did not then exist. Therefore, because appellants had no probability of success on the appeal from the July 29 order, the court denied the motion for a stay pending appeal, thereby terminating the emergency stay that a judge of this court had entered pending consideration of the stay motion by a three-judge panel.

Campbell v. Pennsylvania School Boards Association

Court: US Court of Appeals for the Third Circuit

Docket: 18-3112

Opinion Date: August 27, 2020

Judge: Theodore Alexander McKee

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

PSBA is a non-profit association created by Pennsylvania’s school districts. Campbell energetically used Pennsylvania's Right to Know Law (RTKL) to obtain records from PSBA’s constituent school districts. In 2017, Campell sent RTKL requests to public school agencies, seeking contact information for district employees and union representatives. PSBA’s attorney advised member districts that they were required to release publicly-available information, but they did not have to provide private data and that they could simply make the results “available for pickup.” When Campbell received copies of PSBA’s legal guidance, he established a web page entitled “PSBA Horror,” mocking PSBA's Executive Director. PSBA’s counsel threatened to sue Campbell for defamation. Campbell submitted another, 17-page, RTKL request, seeking 27 types of documentation regarding the districts' relationship with PSBA. PSBA sued Campbell, alleging defamation, tortious interference with contractual relations, and abuse of process. Campbell then filed a 42 U.S.C. 1983 suit, alleging that PSBA’s state suit was motivated by an improper desire to retaliate against him for proper RTKL requests, violating his First Amendment rights. The Third Circuit affirmed the dismissal of Campell’s suit. Campbell’s RTKL requests and PSBA’s state tort claims were both protected under the Noerr-Pennington doctrine, which shields constitutionally-protected conduct from civil liability, absent certain exceptions. The district court erred in requiring a heightened burden of proof on PSBA’s motives in bringing its state court tort claims but Campbell’s civil rights claim would fail under any standard of proof.

Sierra Club v. United States Environmental Protection Agency

Court: US Court of Appeals for the Third Circuit

Docket: 19-2562

Opinion Date: August 27, 2020

Judge: Theodore Alexander McKee

Areas of Law: Environmental Law, Government & Administrative Law

Sierra Club sought review of the EPA’s approval of new Pennsylvania National Ambient Air Quality Standards (NAAQS) to govern pollution output at coal-burning power plants, as required by the Clean Air Act, 42 U.S.C. 7408(a). Sierra Club argued that the standards wrongly claim to reduce pollution output at Pennsylvania’s most advanced plants while simply rubber-stamping an average of current pollution output as its supposed new gold standard and criticized the proposal’s minimum temperature threshold—a measure that allows plants to nearly quintuple their pollution output when operating below 600 degrees Fahrenheit—as unsupported and unsupportable given the technical record before the agency. Sierra Club claims that the approved standards lack enforceable reporting regulations. The Third Circuit remanded to the EPA, finding that “the regulatory regime which springs forth from these three defining characteristics is neither supported by adequate facts nor by reasoning found in the administrative record.” Given the EPA’s concession that technological advances may allow for a more environmentally friendly standard than the one approved, reliance on a study that is more than 25 years old is neither a persuasive nor reasonable basis for adopting the standard it approved. The EPA is able neither to offer a reasonable justification for failing to require a stricter standard nor to justify the standard it endorsed.

Spec's Family Partners, Ltd. v. Executive Director of the Texas Alcoholic Beverage Commission

Court: US Court of Appeals for the Fifth Circuit

Docket: 19-20661

Opinion Date: August 25, 2020

Judge: Stuart Kyle Duncan

Areas of Law: Constitutional Law, Government & Administrative Law

After TABC investigated Spec's and brought a largely unsuccessful administrative action against it, Spec's filed suit against TABC. The district court dismissed the complaint under Federal Rule of Civil Procedure 12(b)(1), reasoning that defendants were entitled to various forms of immunity. The Fifth Circuit held that the district court correctly determined that defendants are entitled to absolute immunity from Spec's' 42 U.S.C. 1983 claims regarding administrative holds, protests of applications, and denials of renewals. However, the district court erred by concluding that defendants are absolutely immune from Spec's' section 1983 individual-capacity claim regarding the concealment of evidence. The court also held that the district court correctly determined that sovereign immunity bars Spec's' official-capacity claims for damages and for injunctive and declaratory relief. The district court also correctly held that defendants are entitled to state-action immunity from Spec's' antitrust claims, and that Texas Alcoholic Beverage Code 102.07(a)(7) is not a per se violation of the Sherman Act. Finally, the court held that the district court's decision to decline supplemental jurisdiction over Spec's' state-law malicious prosecution claim must be vacated because the grounds for that decision are no longer applicable. Accordingly, the court affirmed in part, reversed in part, vacated in part, and remanded for further proceedings.

Protect Our Parks, Inc. v. Chicago Park District

Court: US Court of Appeals for the Seventh Circuit

Dockets: 19-3333, 19-2308

Opinion Date: August 21, 2020

Judge: Barrett

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

The Barack Obama Foundation selected Jackson Park in Chicago to house the Obama Presidential Center. Chicago acquired 19.3 acres from the Chicago Park District, enacted the necessary ordinances, and entered into a use agreement with the Obama Foundation. Construction will require the removal of multiple mature trees, the diversion of roadways, and will require the city to shoulder some expenses. Opponents sued, alleging that the defendants violated Illinois’s public trust doctrine, which limits the government’s ability to transfer control or ownership of public lands to private parties and that under Illinois law, the defendants acted beyond their legal authority in entering the use agreement because it delegates decision-making authority to the Foundation and grants the Foundation an illegal lease in all but name, Under federal law, they argued that, by altering the use of Jackson Park and granting control to the Foundation, the defendants took the plaintiffs’ property for a private purpose and deprived them of property in a process lacking in procedural safeguards. The district court granted the defendants summary judgment. The Seventh Circuit affirmed as to the federal claims and held that the state claims should have been dismissed for lack of jurisdiction. Federal courts are only permitted to adjudicate claims that have allegedly caused the plaintiff a concrete injury. The federal claims allege a concrete injury, but the lack of a property interest is a fundamental defect. The state claims allege only policy disagreements.

Abcarian v. Levine

Court: US Court of Appeals for the Ninth Circuit

Docket: 19-55129

Opinion Date: August 25, 2020

Judge: Daniel P. Collins

Areas of Law: Government & Administrative Law, Tax Law, Utilities Law

The Ninth Circuit affirmed the district court's dismissal of an action brought by plaintiffs, customers of the DWP, claiming that DWP overcharged for electric power and then transferred the surplus funds to the City, thereby allowing the City to receive what amounts to an unlawful tax under California law. Plaintiffs alleged claims under the Hobbs Act, the Racketeer Influenced and Corrupt Organizations Act (RICO), and 42 U.S.C. 1983, as well as claims under state law. The panel agreed with its sister circuits that the Hobbs Act does not support a private civil right of action; held that municipal entities are not subject to liability under RICO when sued in their official capacities, but the RICO claims in this case were asserted against the defendant City and DWP officials in their personal capacities; held that the RICO claim was nonetheless properly dismissed because it failed as a matter of law because it did not adequately allege a predicate act in extortion under California law or the Hobbs Act, mail and wire fraud, or obstruction of justice; and held that, under the Johnson Act, the district court lacked jurisdiction over the the section 1983 claims. Because plaintiffs have provided no basis for concluding that any of these deficiencies could be cured by an amendment of the complaint, and based upon the panel's own thorough review of the record, the panel held that amendment would be futile.

Kansas Natural Resource v. United States Dept of Interior

Court: US Court of Appeals for the Tenth Circuit

Docket: 19-3108

Opinion Date: August 24, 2020

Judge: Carolyn Baldwin McHugh

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

Plaintiff Kansas Natural Resource Coalition (“KNRC”) sought an order to enjoin the United States Department of the Interior (“DOI”) to submit its rules to Congress, pursuant to the Congressional Review Act (“CRA”), before those rules “take effect.” The district court dismissed for lack of subject matter jurisdiction because the CRA contained a provision prohibiting judicial review of any “omission under this chapter.” The Tenth Circuit affirmed based on KNRC’s lack of Article III standing. Furthermore, the Court declined to remand the case so that KNRC could amend its complaint because, in any event, the district court was correct that it lacked subject matter jurisdiction.

Foster Logging, Inc. v. United States

Court: US Court of Appeals for the Eleventh Circuit

Docket: 18-15033

Opinion Date: August 24, 2020

Judge: Hull

Areas of Law: Government & Administrative Law

American Guarantee appealed the district court's dismissal of their complaint for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1). The complaint identifies the challenged conduct as the Forestry Branch's negligent failure to observe, monitor, and maintain a controlled burn once the fire was started. The Eleventh Circuit affirmed the district court's dismissal of American Guarantee's negligence claims against the United States under the Federal Tort Claims Act (FTCA). The court assumed at this stage that the Forestry Branch officials were negligent in their observation, monitoring, and maintenance during the controlled burn itself as alleged in the complaint, but held that the alleged conduct by its nature, involves an exercise of discretion and considerations of social, economic, political, and public policy. Because the government's decisions about how to monitor and maintain a controlled burn are shielded from judicial second-guessing by the discretionary function exception to the FTCA, the court held that plaintiffs failed to allege a plausible claim that falls outside the discretionary function exception. Because the discretionary-function exception applies in this case, the court held that the United States has not unequivocally waived its sovereign immunity. Therefore, the district court lacked jurisdiction over plaintiffs' FTCA claim.

WM Mobile Bay Environmental Center, Inc. v. The City of Mobile Solid Waste Authority

Court: US Court of Appeals for the Eleventh Circuit

Dockets: 15-15466, 19-10239

Opinion Date: August 26, 2020

Judge: Lagoa

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

The Eleventh Circuit certified the following questions of law to the Alabama Supreme Court under Alabama Rule of Appellate Procedure 18: (1) Can property owned by a solid waste disposal authority "belong to" a county or municipality for purposes of section 6-10-10? (2) If so, what factors should courts consider when making such a determination? (3) If section 6-10-10 can apply to property owned by a solid waste disposal authority, is such property "used for county or municipal purposes" when the authority has not used the property but is holding it for a future use? (4) Does Alabama continue to recognize a common law exemption from execution for property used for public purposes as described in Gardner v. Mobile & N.W.R. Co., 15 So. 271 (Ala. 1894)? (5) If so, does that exemption apply to public corporations like the Authority, and what standards should courts employ in applying this common law exemption?

International Longshore & Warehouse Union v. National Labor Relations Board

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

Docket: 18-1124

Opinion Date: August 21, 2020

Judge: Katsas

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

This case arose from a longstanding dispute about which of two competing unions represents a group of several dozen mechanics who maintain and repair shipping equipment. Under NLRB v. Burns International Security Services, Inc., 406 U.S. 272 (1972), a successor employer inherits the collective-bargaining obligations of its predecessor only if the previously recognized bargaining unit remains appropriate under the successor. In determining whether the unit remains appropriate, the NLRB ignores workplace changes caused by unfair labor practices of the successor. The DC Circuit held that the Board did not adequately explain its decision for extending the rule to ignore changes caused by unfair labor practices of the predecessor. Because the Board did not engage in reasoned decisionmaking in the order under review, the court granted the petition for review of the Board's final order, set aside that order, denied the Board's cross-application for enforcement, and remanded for further proceedings. The court dismissed as moot the petition for review of the Board's order refusing to set aside the partial settlement.

Machado Amadis v. United States Department of State

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

Docket: 19-5088

Opinion Date: August 21, 2020

Judge: Katsas

Areas of Law: Government & Administrative Law

Plaintiff filed three sets of requests under the Freedom of Information Act (FOIA), seeking information about the denial of his applications for a United States entry visa. The district court granted summary judgment in favor of the agencies. The DC Circuit affirmed and held that the State Department and DEA's searches were reasonably calculated to locate all responsive records; OIP properly construed plaintiff's FOIA request to exclude the DEA and FBI documents created before his appeals were filed; OIP permissibly withheld the privileged information at issue; the district court address segregability when it addressed withholding the documents at issue under the deliberative process privilege; if the district court has not adequately addressed segregability, the court did so in the first instance and concluded that OIP appropriately segregated exempt and non-exempt portions of the documents; the DEA and FBI responses were proper determinations under FOIA, which triggered plaintiff's obligation to exhaust his administrative appeals; and the court rejected plaintiff's request to excuse his failure to exhaust on policy grounds.

Mirror Lake Village, LLC v. Wolf

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

Docket: 19-5025

Opinion Date: August 21, 2020

Judge: Merrick B. Garland

Areas of Law: Government & Administrative Law, Immigration Law

Five foreign nationals who each contributed $500,000 to Mirror Lake, a new commercial enterprise set to construct and operate a senior living facility, sought to obtain lawful permanent resident status under the EB-5 immigrant-investor program. The USCIS denied the EB-5 visa petitions on the stated ground that none had made a qualifying investment. The DC Circuit held that USCIS's denial of the EB-5 immigrant-investor visa petitions were arbitrary and capricious because the agency failed to offer a reasoned explanation for its denials. In this case, plaintiffs put their capital at risk because the redemption of their investments is dependent on the success of the business. Therefore, USCIS's decision to deny the visas on the purported ground that the investments are not at risk at all is neither reasonably explained nor supported by agency precedent. The court reversed and remanded with instructions to set aside the denials of the EB-5 petitions.

United States v. Dynamic Visions Inc.

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

Docket: 17-5265

Opinion Date: August 21, 2020

Judge: Srikanth Srinivasan

Areas of Law: Government & Administrative Law

After the federal government brought an action against Dynamic Visions and its owner under the False Claims Act (FCA) for submitting false claims for reimbursement, the district court granted summary judgment to the government. The DC Circuit affirmed the grant of summary judgment in large part but vacated the judgment as to a limited subset of the alleged false claims. The court affirmed the district court's grant of summary judgment as to those claims for which the falsity stems from the absence of any Plan of Care (POC), or from a POC with no signature from a physician, an untimely signature, or an authorization of services more confined in scope than the services for which reimbursement was sought. However, because the government's evidence does not foreclose a genuine dispute as to whether Dynamic Visions forged physician signatures, the court vacated the grant of summary judgment as to the corresponding subset of claims. The court rejected Dynamic Visions' remaining challenges. Finally, the court vacated the district court's order as to both damages and civil penalties, remanding for further proceedings.

Dyer v. Department of the Air Force

Court: US Court of Appeals for the Federal Circuit

Docket: 19-2185

Opinion Date: August 21, 2020

Judge: Sharon Prost

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

The West Virginia adjutant general terminated Dyer from his position as a dual-status military technician with the U.S. Air Force. The National Guard Technicians Act of 1968 (NGTA) established authority for dual-status positions like Dyer’s. Under 32 U.S.C. 709, the NGTA requires dual-status technicians to maintain military membership with the National Guard. Dyer met this requirement by maintaining membership with the West Virginia Air National Guard (WVANG) until 2018 when Dyer was separated from the WVANG. The WV adjutant general terminated his dual-status position because he no longer met the military membership requirement of his employment. The Merit Systems Protection Board affirmed, rejecting Dyer’s argument that he was not provided the due process he is entitled to under Title 5. The Federal Circuit directed the Board to dismiss the appeal. According to 32 U.S.C. 709, the Board does not have jurisdiction over the termination of a dual-status employee to the extent the termination was required under the statute because the employee had been separated from the National Guard.

Harris v. Securities and Exchange Commission

Court: US Court of Appeals for the Federal Circuit

Docket: 19-1676

Opinion Date: August 25, 2020

Judge: Todd Michael Hughes

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

In 2014-2018, Harris was the Branch Chief of the Continuity of Operations (COOP) branch, a division of the SEC’s Office of Support Operations (OSO) in Washington, D.C. In mid-2017, performance issues began to surface with respect to the Achieving Results in Occupation and Teamwork and Collaboration critical elements of her performance evaluations. The notice described examples such as disregarding supervisory guidance, coming to meetings unprepared, and demonstrating inflexibility. Harris had 90 days to improve her performance by satisfying 15 Performance Improvement Requirements (PIP). In January 2018, after that period ended, Harris received a notice of proposed removal, identifying eight instances of failing to meet the Performance Improvement Requirements. In February 2018, Harris was removed from the agency for “unacceptable performance” of her duties, 5 U.S.C. 4303(a). The Merit Systems Protection Board and Federal Circuit upheld her removal. Substantial evidence indicates that Harris was sufficiently warned of her inadequate performance. Harris has not shown that her PIP standards were unreasonable. None of the agency’s actions during the PIP amount to sufficient evidence of pretext to call into question the well-supported conclusion that Harris received a meaningful opportunity to improve her performance. The court noted that Harris had waived any claims of discrimination or retaliation.

Lona v. City of Fullerton Police Dept.

Court: California Courts of Appeal

Docket: G058257(Fourth Appellate District)

Opinion Date: August 24, 2020

Judge: Goethals

Areas of Law: Criminal Law, Government & Administrative Law

Ruben Lona admitted he had been a member of a criminal street gang, but claimed he left the gang in 2016. In 2018, invoking the procedure in Penal Code section 186.34, Lona asked the City of Fullerton Police Department (the Department) to remove his name from a shared gang database that listed him as a suspected gang member or associate. The Department denied his request; Lona then filed a petition for removal pursuant to section 186.35. The trial court denied his petition, based in large part on Lona’s sworn statements that he left the gang only three years earlier, still possessed attire that violated the gang injunction applicable to his former gang, and still bore gang tattoos. Lona appealed, asserting the trial court erred by admitting the Department’s 2018 denial letter and by denying him an opportunity to respond to the letter’s contents. He further contended the Department did not prove his “active gang membership” by clear and convincing evidence. Finding no reversible error, the Court of Appeal affirmed the trial court.

Riverside County Transportation Comm. v. Southern Cal. Gas Co.

Court: California Courts of Appeal

Docket: E069462(Fourth Appellate District)

Opinion Date: August 24, 2020

Judge: Manuel A. Ramirez

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

The Riverside County Transportation Commission (Commission) sought to extend its Metrolink commuter rail line from Riverside to Perris, using the route of a preexisting rail line that it had acquired. At five points, however, the new rail line would cross gas pipelines owned by the Southern California Gas Company. The Gas Company had installed these pipelines under city streets decades earlier, pursuant to franchises granted by the relevant cities and, in some instances, pursuant to licenses granted by the then-owner of the preexisting rail line. The new rail line could not be built as long as the pipelines remained in place. The Commission terminated the licenses and demanded that the Gas Company relocate its pipelines at its own expense. The parties agreed that the Gas Company would relocate its pipelines, to other points also owned by the Commission, and the Commission would pay the estimated expenses, but only provisionally; the Commission could still sue for reimbursement, and the Gas Company could then sue for any additional expenses. The trial court ruled that the Gas Company had to bear all of the costs of relocation; however, it also ruled that the Gas Company had never trespassed on the Commission’s land. Both sides appealed. After review, the Court of Appeal held the Gas Company did have to bear all of the costs of relocation. However, the Court also held that, at those points where the Gas Company held licenses for its pipelines, once the Commission terminated the licenses, the Gas Company could be held liable for trespass.

Vote Solar v. Montana Department of Public Service Regulation

Court: Montana Supreme Court

Citation: 2020 MT 213

Opinion Date: August 24, 2020

Judge: Mike McGrath

Areas of Law: Government & Administrative Law, Government Contracts, Utilities Law

The Supreme Court affirmed the order of the district court vacating and modifying the orders of the Montana Public Service Commission (PSC) reducing standard-offer contract rates and maximum contract lengths for small solar qualifying facilities (QFs), holding that the district court did not err. Specifically, the Supreme Court held (1) the district court did not err in determining that the PSC's calculation of the avoided-cost rate was arbitrary and unlawful; and (2) the district court did not err in concluding that the PSC arbitrarily and unreasonably calculated QF capacity contribution values and arbitrarily and unreasonably reduced maximum-length QF-1 contracts to fifteen years.

Bellevue Properties, Inc. v. Town of Conway

Court: New Hampshire Supreme Court

Docket: 2019-0302

Opinion Date: August 25, 2020

Judge: Donovan

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

Plaintiff Bellevue Properties, Inc. appealed a superior court order affirming the Town of Conway’s decision to discontinue a public way that provided access to the plaintiff’s property. Plaintiff argued the trial court applied an incorrect legal standard to evaluate the Town’s decision and erred in concluding that the Town’s interests in discontinuing the road outweighed plaintiff’s interest in its continuance. After review, the New Hampshire Supreme Court determined the trial court applied the proper legal standard, and its decision was supported by the record.

Haugen, et al. v. Jaeger, et al.

Court: North Dakota Supreme Court

Citation: 2020 ND 177

Opinion Date: August 25, 2020

Judge: Per Curiam

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

Petitioners Michael Haugen, Jacob Stutzman, Trent Barkus, and the Brighter Future Alliance sought a writ to enjoin North Dakota Secretary of State Alvin Jaeger from placing an initiated measure on the November 3, 2020 ballot. The measure sought to amend the North Dakota Constitution concerning elections and legislative districting. After review, the North Dakota Supreme Court granted the writ, concluding the petition did not comply with the constitutional requirement that it contain the full text of the measure. The Court set aside the Secretary of State’s decision to place Measure 3 on the November ballot and enjoined him from doing so.

State ex rel. Drouhard v. Morrow County Board of Commissioners

Court: Supreme Court of Ohio

Citation: 2020-Ohio-4160

Opinion Date: August 25, 2020

Judge: DeWine

Areas of Law: Government & Administrative Law

The Supreme Court denied a writ of prohibition to prevent the three members of a board of county commissioners from going forward with a show-cause hearing to consider the removal of a member of the board of trustees of the county hospital, holding that the commissioners did not patently and unambiguously lack jurisdiction to proceed with the show-cause hearing. The Morrow County Board of Commissioners claimed that the authority to appoint and remove members of the Morrow County Hospital Board of Trustees was a five-member body, with each commissioner having one vote. Patrick Drouhard, the chairman of the Board of Trustees, claimed that the appointing authority was a three-member body, with the board of commissioners having a single collective vote and the other votes belonging to the judges of the Morrow County Court of Common Pleas. When the Commissioners sought to schedule a show-cause hearing to remove Drouhard as chairman of the Hospital Board Drouhard filed this complaint for a writ of prohibition. The Supreme Court denied the writ, holding (1) the three commissioners constitute the majority of the appointing authority that is empowered by law to remove a member of the county hospital board; and (2) Drouhard possessed an adequate remedy by way of an appeal following the show-cause hearing.

State ex rel. Nauth v. Dirham

Court: Supreme Court of Ohio

Citation: 2020-Ohio-4208

Opinion Date: August 26, 2020

Judge: Per Curiam

Areas of Law: Election Law, Government & Administrative Law

The Supreme Court denied the writs of mandamus sought by Relators, Marie Nauth and the group Concerned Citizens of Medina City (CCMC), seeking an order directing members of the Medina County Board of Elections (collectively, the Board) to certify as valid forty-seven signatures that Relators say the Board invalidated as not genuine, holding that Relators did not meet their burden to show an abuse of discretion by the Board. Relators filed a referendum petition that fell forty-four signatures short of qualifying for the November 3, 2020 general election ballot. Relators then commenced this action seeking a writ of mandamus that would direct the Board to reexamine the signatures on the referendum petition and certify as valid the signatures of qualified electors that they signed the referendum petition. The Supreme Court denied the writs, holding that Relators failed to prove by clear and convincing evidence that the forty-seven signatures at issue were invalidated in the first place and for what reasons.

75-80 Properties v. RALE, Inc.

Court: Maryland Court of Appeals

Docket: 59/19

Opinion Date: August 24, 2020

Judge: Booth

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

The Court of Appeals affirmed the judgment of the Court of Special Appeals affirming the judgment of the circuit court vacating original development approvals by the Frederick Council Council so that the Council could proceed with a de novo reconsideration proceeding, holding that the circuit court did not err in vacating the development approvals after the Developers refused to participate in a de novo reconsideration proceeding. A local citizens group opposed the Developers' rezoning and development application and sought judicial review. The circuit court found that a former member of the Frederick County Board of Commissioners had violated the ethics statute by engaging in an ex parte communication and remanded the case for reconsideration. The Frederick County Council reconsidered the Developers' application in a de novo proceeding, but the Developers refused to participate. Thereafter, the circuit court vacated the original development approvals and remanded the matter. The Court of Special Appeals affirmed. The Court of Appeals affirmed, holding (1) the County Council had the discretion to determine the scope of the reconsideration proceeding; (2) the doctrine of zoning estoppel does not apply under the facts of this case; and (3) there is no ambiguity in the Ethics Statute.