Latest 26 Cases This Week: Salinas v. Railroad Retirement Board (U.S.), Benitez v. Wilkinson (1st Cir.), Kirk v. Commissioner of Social Security ...

No Good Men?

SHERRY F. COLB

Cornell law professor Sherry F. Colb comments on a film called “Promising Young Women,” which purports to be a feminist movie about date rape. While Professor Colb describes the movie as interesting, thought-provoking, and “definitely” worth seeing, she argues that it suggests a view of men and sexual assault that is erroneous and potentially even anti-feminist.

Read More

Last Call at the Bar: Grading the Briefs in Trump Impeachment 2.0

DEAN FALVY

Dean Falvy, a lecturer at the University of Washington School of Law in Seattle, offers thoughts on the legal tactics and briefs filed by each side in former President Trump’s second impeachment trial. Mr. Falvy argues that if Trump can survive a second impeachment vote, it will show that he is still operating where he has always believed himself to be: well beyond the reach of the law.

Read More

Salinas v. Railroad Retirement Board

Court: US Supreme Court

Docket: 19-199

Opinion Date: February 3, 2021

Judge: Sonia Sotomayor

Areas of Law: Civil Procedure, Government & Administrative Law

In 1992, Salinas began seeking disability benefits under the Railroad Retirement Act (RRA) based on serious injuries he suffered during his 15-year railroad career. He was granted benefits after his fourth application in 2013. He timely sought reconsideration of the amount and start date. After reconsideration was denied, he filed an administrative appeal, arguing that his third application, filed in 2006, should be reopened because the U.S. Railroad Retirement Board had not considered certain medical records. The Board affirmed the denial of the request to reopen because it was not made “[w]ithin four years” of the 2006 decision. The Fifth Circuit dismissed an appeal for lack of jurisdiction. The Supreme Court reversed. The Board’s refusal to reopen a prior benefits determination is subject to judicial review as a "final decision of the Board.” The decision was the “terminal event” in the Board’s administrative review process. Salinas’ only remaining recourse was to seek judicial review. A reopening decision is one “by which rights or obligations have been determined, or from which legal consequences will flow.” Any ambiguity in the meaning of “any final decision” must be resolved in Salinas’ favor under the “strong presumption favoring judicial review of administrative action.” The Board could decline to offer reopening but, having chosen to provide it, the Board may not avoid the plain text of 45 U.S.C. 355(f ).

Benitez v. Wilkinson

Court: US Court of Appeals for the First Circuit

Docket: 20-1541

Opinion Date: January 28, 2021

Judge: Sandra Lea Lynch

Areas of Law: Government & Administrative Law, Immigration Law

The First Circuit granted Petitioner's petition for review of the Board of Immigration Appeals' (BIA) denial of his motion to reopen his removal proceedings and to remand to the immigration judge (IJ) for further consideration, holding that the BIA abused its discretion. Petitioner sought reconsideration due to the fact that he had been placed on a waiting list by the United States Citizenship and Immigration Services (USCIS) for a U-1 nonimmigrant visa pursuant to the Victims of Trafficking and Violence Protection Act (VTVPA), 8 U.S.C. 1101(a)(15)(U). In denying Petitioner's motion to reopen his removal proceedings, the BIA gave two reasons for its denial. The First Circuit reversed and remanded the case, holding that the BIA abused its discretion because it failed to render a reasoned decision that accords with its own precedent and policies and failed to consider the position of the Immigration and Customs Enforcement.

Kirk v. Commissioner of Social Security Administration

Court: US Court of Appeals for the Fourth Circuit

Docket: 19-1989

Opinion Date: February 4, 2021

Judge: James Andrew Wynn, Jr.

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

Plaintiffs, former recipients of Social Security disability benefits and former clients of an attorney who orchestrated one of the largest fraud schemes in the history of the SSA, argued in consolidated appeals that SSA's categorical exclusion of allegedly fraudulent medical evidence during the redetermination process was unlawful because they were never afforded any opportunity to rebut the allegation that their evidence was tainted by fraud. The Fourth Circuit joined its sister circuits and held that the SSA's redetermination procedures violate the Administrative Procedure Act (APA) and the Due Process Clause of the Fifth Amendment. The court agreed with plaintiffs that it is arbitrary and capricious for the agency to deny beneficiaries an opportunity to contest the Office of the Inspector General's fraud allegations as to their cases, while permitting other similarly situated beneficiaries to challenge similar allegations arising from SSA's own investigations. The court also agreed with plaintiffs that the SSA's redetermination procedures violated their due process rights under the Fifth Amendment because they were denied the opportunity to contest the Office of the Inspector General's fraud allegations against them. In this case, the court considered each Mathews factor and concluded that each factor supports a finding that the SSA's redetermination procedures violated plaintiffs' due process rights. Accordingly, the court affirmed in No. 19-1989 and reversed in No. 19-2028.

Joseph Forrester Trucking v. Director, Office of Workers' Compensation Programs

Court: US Court of Appeals for the Sixth Circuit

Dockets: 20-3329, 20-3331, 20-3332

Opinion Date: February 4, 2021

Judge: Chad A. Readler

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

The Sixth Circuit denied the consolidated petition for review brought by three coal mine operators challenging the Benefits Review Board's adverse black lung benefits determination. Honoring the Board's customary requirement that issues be raised first with the ALJ, the court held that the operators failed to preserve their Appointments Clause challenge. In this case, the court's review of the Department of Labor's regulations reveals a regulatory exhaustion requirement applicable to ALJ proceedings. The court explained that black lung benefits adjudication regulations require that litigants raise issues before the ALJ as a prerequisite to review by the Benefits Review Board. Moreover, the Board's longstanding practice of treating issues not raised below as forfeited confirms this conclusion. The court also concluded that by failing to comply with the Board's timeliness requirements, the operators failed to preserve their Appointments Clause challenges. Furthermore, the operators failed to identify an applicable exception that would excuse failure. Finally, the panel noted that, while it did not see evidence that the operators acted with a nefarious motive, the court is nonetheless mindful not to invite "sandbagging" or "judge-shopping" in future black lung proceedings.

Wireman v. Commissioner of Social Security

Court: US Court of Appeals for the Sixth Circuit

Dockets: 20-5159, 19-6395, 19-6396, 19-6397, 19-6398, 19-6399, 19-6400, 19-6401, 19-6402, 19-6403, 19-6412, 19-6413, 19-6414, 19-6415, 19-6419, 19-6422, 19-6432, 19-6433, 19-6438, 19-6438, 19-6440, 19-6441, 19-6442, 19-6443, 19-6444, 19-6445, 19-6446, 19-6452, 19-6453, 19-6472, 19-6473, 19-6474, 19-6487, 19-6488, 19-6489, 19-6490, 19-6491, 19-6492, 20-5057, 20-5058, 20-5059, 20-5060, 20-5061, 20-5062, 20-5063, 20-5064, 20-5065, 20-5066, 20-5067, 20-5078, 20-5079, 20-5080, 20-5106, 20-5107, 20-5108, 20-5109, 20-5146

Opinion Date: February 3, 2021

Judge: Gibbons

Areas of Law: Government & Administrative Law, Legal Ethics, Public Benefits

For many years, attorney Conn obtained social security benefits for his clients by submitting fraudulent reports and bribing an Administrative Law Judge. After the government discovered this fraud, the SSA decided to redetermine whether each of Conn’s 1,500 claimants was actually eligible for disability benefits. The SSA held hearings and allowed the claimants to submit evidence but categorically excluded medical reports created by the doctors with whom Conn had conspired because it had “reason to believe” fraud was involved in the creation of the reports (42 U.S.C. 1383(e)(7)(A)(ii))). The claimants were not permitted to challenge that finding. After the denials of their claims, 57 plaintiffs filed suit. The Sixth Circuit held that the exclusion of the reports violated the Due Process Clause and the APA. On remand, the district courts concluded that remand to the SSA was proper because “the Commissioner erred in some respect in reaching the decision to deny benefits.” The Sixth Circuit affirmed the subsequent denial of the plaintiffs’ motions for attorney’s fees under the Equal Access to Justice Act. The government’s position in the litigation was “substantially justified,” in light of the precedent cited by the government, the rationale for the decision, and the fact that district courts across the country have split on this issue. The case involved numerous issues of first impression. Despite the fact that the government’s arguments were rejected, a reasonable person could have believed them to be correct.

Woodring v. Jackson County

Court: US Court of Appeals for the Seventh Circuit

Docket: 20-1881

Opinion Date: February 2, 2021

Judge: St. Eve

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

Each holiday season, Jackson County, Indiana has a lighted Christmas display on the lawn of its historic courthouse. The display comprises a nativity scene, Santa Claus in his sleigh, a reindeer, carolers, and large candy-striped poles. The display has gone up each year since 2003 when the Ministerial Association purchased it; the secular Lion’s Club maintains and installs it. The County supplies electricity for the display. There is evidence that the courthouse had similar displays before 2003. Woodring, a Jackson County resident, sued, arguing that the nativity scene violates the First Amendment’s Establishment Clause. The district court permanently enjoined the County from displaying the nativity scene in its current arrangement. The Seventh Circuit reversed. Woodring has standing to sue, but the nativity scene complies with the Establishment Clause. The district court applied the “purpose” and “endorsement” tests that grew out of the Supreme Court’s 1971 "Lemon" decision but the Court’s 2019 "American Legion" decision requires the use of a different, more historical framework. The nativity scene fits within a long national tradition of using the nativity scene in broader holiday displays to celebrate the origins of Christmas—a public holiday. A governmental practice with historical support may be unconstitutional if it is intolerant or discriminatory toward differing views but Woodring supplied no good reason why the County’s nativity scene does not fit within the historical tradition outlined in Lynch.

Pincus v. American Traffic Solutions, Inc.

Court: US Court of Appeals for the Eleventh Circuit

Docket: 19-10474

Opinion Date: February 2, 2021

Judge: Jill Pryor

Areas of Law: Contracts, Government & Administrative Law

Plaintiff filed suit against ATS, a red light camera vendor, alleging three counts of unjust enrichment after ATS charged plaintiff a fee for processing his payment of a traffic ticket issued through an ATS red light photo enforcement system used in the City of North Miami Beach. The Eleventh Circuit certified the following questions to the Supreme Court of Florida: (1) Did ATS violate Florida law when it imposed a five percent fee on individuals who chose to pay their red light traffic ticket with a credit card? In particular: a. Does the challenged fee constitute a "commission from any revenue collected from violations detected through the use of a traffic infraction detector" under Fla. Stat. 316.0083(1)(b)(4)? b. Was the fee assessed under Chapter 318 and therefore subject to section 318.121's surcharge prohibition? c. Was ATS a "money transmitter" that was required to be licensed under Fla. Stat. 560.204(1)? (2) If there was a violation of a Florida statute, can that violation support a claim for unjust enrichment? In particular: a. Does plaintiff's unjust enrichment claim fail because the statutes at issue provide no private right of action? b. Does plaintiff's unjust enrichment claim fail because he received adequate consideration in exchange for the challenged fee when he took advantage of the privilege of using his credit card to pay the penalty?

Sierra Club v. Environmental Protection Agency

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

Docket: 15-1465

Opinion Date: January 29, 2021

Judge: David S. Tatel

Areas of Law: Environmental Law, Government & Administrative Law

In these consolidated cases, petitioners challenge four provisions of the EPA's 2015 and 2018 rules implementing the National Ambient Air Quality Standards for ozone. Petitioners challenge four features of the 2018 Rule: (1) the interprecursor trading program, as well as provisions (2) allowing states to demonstrate compliance with the Act’s reasonable further progress milestone requirements through an implementation-based method, (3) allowing states to choose between two options for the reasonable further progress baseline year, and (4) allowing nonattainment areas to use already-implemented measures to satisfy the Act's contingency measures requirements. The DC Circuit vacated two provisions—the interprecursor trading program and the interpretation of the Clean Air Act's contingency measures requirements—because they contravene the statute's unambiguous language. The court vacated another provision—the implementation of the milestone compliance demonstration requirement—because it rests on an unreasonable interpretation of the statute. Finally, the court denied the petition for review with respect to the alternative baseline years provision. Therefore, the court granted in part and denied in part the petitions for review.

NIKA Technologies, Inc. v. United States

Court: US Court of Appeals for the Federal Circuit

Docket: 20-1924

Opinion Date: February 4, 2021

Judge: Todd Michael Hughes

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

The Army Corps of Engineers issued a request for proposals. NIKA bid but was not awarded a contract. NIKA made a timely request for debriefing. The Corps sent NIKA a written debriefing and alerted NIKA of the right to submit additional questions. NIKA did not submit additional questions. NIKA filed a protest at the Government Accountability Office (GAO) six days after the written debriefing. Under 31 U.S.C. 3553(d), bid protests filed at the GAO invoke an automatic stay of procurement during the pendency of the protest if the federal agency awarding the contract receives notice within five days of debriefing. GAO denied the stay as untimely. NIKA filed suit, citing 10 U.S.C. 2305(b)(5)(B)(vii), which states that “[t]he debriefing shall include . . . an opportunity for a disappointed offeror to submit, within two business days after receiving a post-award debriefing, additional questions related to the debriefing.” The Claims Court instituted the stay. The bid protest concluded and the stay has ended. The Federal Circuit reversed, first holding that the issue was not moot, being capable of repetition but evading review. The text of 31 U.S.C. 3553(d) indicates that when no additional questions are submitted, the “debriefing date” is the date upon which the party receives its debriefing. The five-day period begins on the debriefing date, rather than two days later. Because NIKA did not file at the GAO within the five-day period, it did not timely invoke the stay.

Cherokee Nation Businesses, LLC v. Gulfside Casino Partnership

Court: Arkansas Supreme Court

Citation: 2021 Ark. 17

Opinion Date: February 4, 2021

Judge: Womack

Areas of Law: Gaming Law, Government & Administrative Law

The Supreme Court reversed the decision of the circuit court refusing to allow Cherokee Nation Businesses, LLC to intervene in litigation brought by Gulfside Casino Partnership against the Arkansas Department of Finance and Administration and the Arkansas Racing Commission, holding that Cherokee was entitled to intervention as a matter of right. Five applicants, including Gulfside and Cherokee, applied for a casino license during the May 2019 application period. The Commission denied each application on the grounds that each failed to include a letter of support from the county judge or a resolution from the county quorum court. Gulfside filed the underlying suit asking the circuit court to reverse the Commission's denial of its application. The application period was reopened in August 2019, at which time Cherokee submitted its application. Cherokee then moved for intervention to defend its right to have its application considered. The circuit court denied intervention. The Supreme Court reversed, holding that Cherokee was entitled to intervention as of right under Ark. R. Civ. P. 24(a)(2).

Rent-A-Center East, Inc. v. Walther

Court: Arkansas Supreme Court

Citation: 2021 Ark. 10

Opinion Date: January 28, 2021

Judge: Wynne

Areas of Law: Government & Administrative Law, Tax Law

The Supreme Court affirmed the judgment of the circuit court finding that certain rent-to-own leases were subject to the special excise tax on short-term rentals of tangible personal property levied by Ark. Code Ann. 26-63-301(b), holding that the circuit court did not err. At issue was the assessment of short-term rental tax on transactions between Appellant, Rent-A-Center East, Inc., and its customers. The Arkansas Department of Finance (DFA) and Administration issued a notice of proposed assessment to Appellant for short-term rental tax, compensating-use tax, and interest. The proposed assessment was upheld. Appellant then filed a complaint seeking judicial relief from the tax assessment, alleging that DFA wrongly classified the rental-purchase-agreement transactions as "leases" or "rentals." The circuit court granted summary judgment for DFA. The Supreme Court affirmed, holding that the transactions at issue were taxable short-term leases and not nontaxable long-term leases.

In re Palmer

Court: Supreme Court of California

Docket: S256149

Opinion Date: January 28, 2021

Judge: Cuellar

Areas of Law: Criminal Law, Government & Administrative Law

The Supreme Court reversed the judgment of the court of appeal concluding that William Palmer was entitled to release from all forms of custody, including parole supervision, holding that to the extent Palmer's continued incarceration at some point became constitutionally excessive, that alone did not justify ending his parole under the current statutory scheme. Palmer first sought release on parole in 1995. The Board of Parole Hearings denied parole. Palmer continued to seek release. After the Board's tenth denial, Palmer filed a petition for writ of habeas corpus alleging that the thirty years he had served on a life sentence for an aggravated kidnapping committed when he was a juvenile was constitutionally excessive. The Board subsequently ordered Palmer released on parole. Ruling on Palmer's writ, the court of appeals concluded that Palmer's now-completed term of imprisonment had become unconstitutional and ended his parole. The Supreme Court reversed, holding that, in the absence of any persuasive argument from Palmer that his parole term had become constitutionally excessive, his parole remained valid.

California Advocates for Nursing Home Reform v. Aragon

Court: California Courts of Appeal

Docket: A158035(First Appellate District)

Opinion Date: February 1, 2021

Judge: Petrou

Areas of Law: Consumer Law, Government & Administrative Law

The plaintiffs are a non-profit organization “dedicated to improving the care, quality of life, and choices for California’s long-term care customers,” residents and former residents of facilities managed by CVSC, and the estates of formers residents at the defendant's facility. The defendant is licensed by the California Department of Public Health (CDPH) to operate or manage a skilled nursing facility (SNF). The defendant had an agreement with CVSC, a corporation engaged in the nursing home business as a management company, to operate the SNF. This Management Services Agreement is allegedly representative of similar agreements executed by CVSC to operate other California SNFs. The plaintiffs asserted that state law requires that an SNF be operated and managed by the entity that holds the license to operate the SNF, not by a management company. The trial court held that approval of unlicensed management companies to operate licensed SNFs does not violate state or federal law. The court of appeal affirmed, rejecting an argument that the management agreements are illegal because the licensee (not an unlicensed management company) must operate and manage the SNF. The operation of a SNF by an unlicensed management company does not diminish the continuing responsibility of a licensee to its SNF.

Schmid v. City & County of San Francisco

Court: California Courts of Appeal

Docket: A158861(First Appellate District)

Opinion Date: February 1, 2021

Judge: Streeter

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

A bronze sculpture, “Early Days,” was originally part of a Civic Center monument to California's pioneer period. In 2018, at the request of the San Francisco Arts Commission, the San Francisco Historic Preservation Commission (HPC) granted a Certificate of Appropriateness to take down “Early Days” and place it in storage. Early Days displayed a racist attitude toward Native Americans. Acting upon evidence of “significant adverse public reaction over an extended period of time,” the HPC authorized the removal; the Board of Appeals affirmed. Opponents of the removal asserted “a potpourri of claims,” including a claim under the Tom Bane Civil Rights Act (Civ. Code 52). They alleged that the Board of Appeals abused its discretion in authorizing the removal and that the manner of the removal, in the pre-dawn hours of the day following the Board's decision, was illegal. The court of appeal affirmed the dismissal of the suit. Even if the opponents had adequately alleged the violation of rights amenable to Bane Act enforcement, their complaint does not allege anything that might reasonably be construed as “threats, intimidation or coercion” to violate those rights. There is no support for conclusory allegations that the Board acted in excess of its authority or abused its discretion.

Tansavatdi v. City of Rancho Palos Verdes

Court: California Courts of Appeal

Docket: B293670(Second Appellate District)

Opinion Date: January 29, 2021

Judge: Nora M. Manella

Areas of Law: Government & Administrative Law, Personal Injury

Plaintiff filed suit against the city after her son was killed in a collision with a turning truck while riding his bike. Plaintiff alleged a dangerous condition of public property under Government Code section 835. The trial court granted the city's motion for summary judgment, concluding that the city had proved entitlement to design immunity as a matter of law under section 830.6. The court concluded that design immunity shields the city from liability for the absence of a bicycle lane. However, following the state Supreme Court's binding precedent Cameron v. State of California (1972) 7 Cal.3d 318, 327, the court held that even where design immunity covers a dangerous condition, it does not categorically preclude liability for failure to warn about that dangerous condition. In this case, the city's entitlement to design immunity for its failure to include a bicycle lane at the site of the accident does not, as a matter of law, necessarily preclude its liability under a theory of failure to warn. The court remanded for the trial court to consider the failure to warn theory in the first instance. The court affirmed in part and vacated in part.

Wyatt v. City of Sacramento

Court: California Courts of Appeal

Docket: C089702(Third Appellate District)

Opinion Date: January 29, 2021

Judge: Renner

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

After the passage of Proposition 218, Sacramento voters approved a requirement that city enterprises providing water, sewer, storm drainage, and solid waste services pay a total tax of 11% of their gross revenues from user fees and charges. Nineteen years later, plaintiff-respondent Russell Wyatt brought a petition for writ of mandate and complaint for declaratory relief against the City challenging its fees and charges for utility services under article XIII D, section 6, subdivision (b) of the California Constitution (added by Prop. 218, as approved by voters, Gen. Elec. (Nov. 5, 1996)). It was undisputed that the City set these fees and charges at rates sufficient to fund the payment of the tax to its general fund. The trial court issued a writ of mandate and judgment in Wyatt’s favor. The Court of Appeal reversed the judgment and directed the trial court to vacate its writ of mandate. By approving the tax in 1998, Sacramento voters increased the cost of providing utility services, rendering those costs recoverable as part of their utility rates and the subsequent transfer of funds permissible under article XIII D.

In re Raven v. Polis

Court: Colorado Supreme Court

Citation: 2021 CO 8

Opinion Date: February 1, 2021

Judge: Hart

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

In a case brought in the Colorado Supreme Court's original jurisdiction, Governor Jared Polis sought a declaration he was not a proper named defendant in a suit challenging the implementation of Colorado law and policy by the Colorado Department of Corrections (“CDOC”), an executive agency over which he had ultimate authority. The underlying suit challenged the treatment of transgender women in CDOC custody. The named plaintiffs representing the class were seven transgender women who were confined in CDOC correctional facilities. Plaintiffs’ amended complaint named the Governor, the CDOC, the CDOC Executive Director, and multiple current and former CDOC employees as defendants. The amended complaint alleged Defendants’ policies and practices discriminated against transgender women by refusing to recognize them as women and thus subjecting them to unreasonable risks of violence, failing to provide necessary accommodations, and offering inadequate medical and mental health care. The Governor argued that after the Supreme Court's decision in Developmental Pathways v. Ritter, 178 P.3d 524 (Colo. 2008), he should have no longer been named as a defendant if there was an identifiable agency, official, or employee responsible for administering a challenged law. Here, he argued the CDOC and its employees were the only appropriate defendants. To this, the Supreme Court disagreed: Developmental Pathways did not alter the longstanding rule that the Governor was an appropriate defendant in cases involving “his constitutional responsibility to uphold the laws of the state and to oversee Colorado’s executive agencies.”

Oconee County v. Cannon et al.

Court: Supreme Court of Georgia

Docket: S20G0584

Opinion Date: February 1, 2021

Judge: Peterson

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

Ronald and Christy Cannon sued Oconee County, Georgia after a vehicle chase initiated by an Oconee County sheriff’s deputy ended in their daughter’s death. The trial court granted the County’s motion for summary judgment, holding that: (1) the Sheriff of Oconee County in his official capacity, not the County, was liable for the deputy’s actions; and (2) the Cannons could not substitute the Oconee County Sheriff in his official capacity as the defendant in place of Oconee County because the statute of limitations had expired and the relation-back doctrine embodied in OCGA 9-11-15 (c) did not apply. The Court of Appeals affirmed the trial court’s determination as to the proper defendant but reversed its ruling that relation-back did not apply. The Georgia Supreme Court held that the application of the relation-back doctrine depended on whether the proper defendant knew or should have known that the action would have been brought against him but for the plaintiff’s mistake, not on what the plaintiff knew or should have known and not on whether the plaintiff’s mistake was legal or factual. The Supreme Court vacated the decision of the Court of Appeals and remanded with direction for the trial court for application of the proper standard.

Polo Golf & Country Club Homeowners Association, Inc. v. Cunard et al.

Court: Supreme Court of Georgia

Docket: S20A1205

Opinion Date: February 1, 2021

Judge: Warren

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

At heart of this case was a dispute between the Polo Golf and Country Club Homeowners’ Association (the “HOA”) and Forsyth County, Georgia over the validity of Section 4.2.2 of Forsyth County’s Addendum to the Georgia Stormwater Management Manual, an ordinance that made HOAs “responsible for maintenance of all drainage easements and all stormwater facilities within the entire development.” The HOA argued Section 4.2.2 was unconstitutional and otherwise invalid, and that individual lot owners were responsible for maintaining stormwater infrastructure on their lots. Variants of this case have been litigated and appealed multiple times before other Georgia courts, including a 2019 appeal the Georgia Supreme Court. On remand from the Supreme Court's "Polo Golf II" decision, the trial court evaluated and rejected the HOA’s remaining claims that Section 4.2.2 was invalid because it required the HOA to trespass on the private property of homeowners, constituted involuntary servitude under the United States and Georgia Constitutions, and exceeded the scope of the ordinance that authorized Forsyth County to promulgate the Addendum. The trial court thus denied the HOA’s motion for summary judgment and granted the defendants’ cross-motion for summary judgment. The HOA appealed, and finding no reversible error, the Supreme Court affirmed.

Doe v. Sex Offender Registry Board

Court: Massachusetts Supreme Judicial Court

Docket: SJC-12933

Opinion Date: February 2, 2021

Judge: Kafker

Areas of Law: Criminal Law, Government & Administrative Law

The Supreme Judicial Court affirmed the decision of the Sex Offender Registry Board ordering John Doe to register as a level three offender, holding that the Board's decision was not arbitrary or capricious and was supported by substantial evidence. On appeal, Doe argued that the Board should be required to prove new sex offenses by clear and convincing evidence and that the Board's decision was improper because it was not based on new information and the hearing was not held within a reasonable time. The Supreme Judicial Court disagreed, holding (1) subsidiary facts, including new sex offenses, need be proved by a preponderance of the evidence, and regardless, there was clear and convincing evidence supporting the level three upward reclassification; and (2) because the Board initiated the reclassification process shortly after receiving information of the new sex offense charges, and because the delays in reaching a final decision were not unreasonable, the Board's decision was proper.

Thoden d/b/a ETC FBO Pierre H. Thoden IRA 47473 v. Hallford

Court: Supreme Court of Mississippi

Citation: 2019-CA-01159-SCT

Opinion Date: February 4, 2021

Judge: Chamberlin

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

A tax sale was found void due to the Jackson County, Mississippi Chancery Clerk's failure to comply with the notice requirements of Mississippi Code Section 27-43-3 (Rev. 2017). After Deborah Hallford came home to find that her locks had been changed, she went to the tax collector’s office and learned that the issue was delinquent property tax. Hallford had never received notice in person or through certified mail that the redemption period on her property was soon expiring. Hallford filed a complaint seeking to set aside the tax sale of her property to Pierre Thoden, d/b/a ETC FBO Pierre H. Thoden IRA 47473. The chancery court set aside the tax sale and awarded Thoden the amount he paid for the property at the tax sale, plus interest. Thoden, believing he was owed for the taxes he paid on the property in the years following his purchase at the tax sale and for the value of the improvements he made on the land, appealed. The Mississippi Supreme Court affirmed the chancellor’s decision to void the tax sale for lack of notice. This matter was remanded for a hearing on any damages, statutory and otherwise, to which Thoden was entitled.

Appeal of Conservation Law Foundation

Court: New Hampshire Supreme Court

Docket: 2020-0049

Opinion Date: February 2, 2021

Judge: Donovan

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

Petitioner Conservation Law Foundation (CLF) appealed an order of the New Hampshire Waste Management Council (Council) denying CLF’s appeal of a permit, issued by the New Hampshire Department of Environmental Services (DES), which authorized the expansion of a landfill owned by respondent Waste Management of New Hampshire, Inc. (WMNH). CLF argued the Council erred in: (1) determining DES acted reasonably in granting the permit despite finding that a condition therein was ambiguous; and (2) premising its decision on the occurrence of future negotiations between DES and WMNH to resolve the ambiguity. After review, the New Hampshire Supreme Court affirmed, finding the permit’s ambiguities did not render the Council’s decision unlawful.

Warehouse Market v. Oklahoma ex rel. Ok. Tax Comm.

Court: Oklahoma Supreme Court

Citation: 2021 OK 6

Opinion Date: February 2, 2021

Judge: Yvonne Kauger

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

Plaintiff-appellee Warehouse Market subleased a commercial building from defendant Pinnacle Management, Inc. The building was on federally restricted Indian land. Subsequently, defendant-appellant, Oklahoma Tax Commission (OTC) and the Muscogee (Creek) Nation Office of Tax Commission (Tribe) both sought to collect sales tax from Warehouse Market. Warehouse Market filed an interpleader action in an attempt to have the court determine which entity to pay. However, the trial court dismissed the Tribe because it had no jurisdiction over it because of the Tribe's sovereign immunity. The trial court then determined that the OTC could not be entitled to the sales tax unless and until the dispute between the OTC and the Tribe was resolved in another forum or tribunal. The Oklahoma Supreme Court held that because the substance of Warehouse Market's action/request for relief was a tax protest, exhaustion of administrative remedies was a jurisdictional prerequisite to seeking relief in the trial court.

Patients Medical Center v. Facility Insurance Corp.

Court: Supreme Court of Texas

Docket: 19-0533

Opinion Date: January 29, 2021

Judge: Debra Lehrmann

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

The Supreme Court reversed the judgment of the court of appeals remanding this medical fee dispute between a health care provider and a worker's compensation insurance carrier over the proper amount of reimbursement for services rendered to a covered patient, holding that that administrative law judge (ALJ) who heard the case properly applied the rules of the Texas Department of Insurance, Division of Workers' Compensation in allocating the burden of proof. The provider initiated a dispute resolution proceeding, and the Division determined that the provider was entitled to more than the carrier believed was due. The Division ordered the carrier to pay the additional amount. The State Office of Administrative Hearings (SOAH) upheld the Division's determination. The court of appeals reversed, holding that the ALJ erred in placing the burden of proof on the carrier at the SOAH hearing and that the error prejudiced the carrier's substantial rights. The Supreme Court reversed, holding that the ALJ properly applied the Division's rules in concluding that the carrier had failed to meet its burden of proof.

Texas Board of Chiropractic Examiners v. Texas Medical Ass'n

Court: Supreme Court of Texas

Docket: 18-1223

Opinion Date: January 29, 2021

Judge: Nathan L. Hecht

Areas of Law: Government & Administrative Law, Professional Malpractice & Ethics

The Supreme Court reversed the portion of the court of appeals' judgment declaring that the rules issued by the Texas Board of Chiropractic Examiners authorizing chiropractors to perform an eye-movement test for neurological problems known as VONT, holding that the challenged rules do not exceed the statutory scope of the chiropractic practice. The Texas Chiropractic Act defines the practice of chiropractic to include evaluating the musculoskeletal system and improving the subluxation complex. In 2006, the Board adopted a rule defining both terms as involving nerves in addition to muscles and bones. In 2010, the Board adopted a rule authorizing chiropractors to perform vestibular-ocular-nystagmus testing, or VONT. The Texas Medical Association (TMA) challenged the rules in court. The court of appeals concluded that the rules exceeded the scope of practice prescribed in the Act. The Supreme Court reversed, holding that the challenged provisions are valid.

Asphalt Specialties Co., Inc. v. Laramie County Planning Commission

Court: Wyoming Supreme Court

Citation: 2021 WY 19

Opinion Date: February 1, 2021

Judge: Boomgaarden

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

The Supreme Court reversed the decision of the Laramie County Planning Commission denying Asphalt Specialities Co., Inc.'s (ASCI) site plan application for a hard rock quarry operation in Laramie County, holding that the Commission's decision was unlawful and must be set aside under Wyo. Stat. Ann. 16-3-114(c)(ii). At issue on appeal was whether the Commission's decision to deny ASCI's application was in excess of statutory jurisdiction, authority or limits or lacking statutory right. The Supreme Court concluded that it was, holding that the Commission exceeded its statutory authority when it utilized its comprehensive land use plan and the site plan review process to deny ASCI use of its land for a limited gravel mining operation.