Latest 37 Cases This Week: Freed v. Thomas (6th Cir.), Miller v. C.H. Robinson Worldwide, Inc. (9th Cir.), Pacific Choice Seafood Co. v. Ross (9th ...

Reflections on the Pending Supreme Court Challenge to the Affordable Care Act in California v. Texas: Part One in a Series

VIKRAM DAVID AMAR, EVAN CAMINKER, JASON MAZZONE

In this first of a series of columns on the latest prominent challenge to the Affordable Care Act (ACA), Illinois law dean Vikram David Amar, Michigan Law dean emeritus Evan Caminker, and Illinois law professor Jason Mazzone examine the stare decisis effects of the Supreme Court’s initial blockbuster decision involving the ACA. The authors demonstrate several, perhaps surprising, ways that the earlier decision should shape how the Court views the present challenge.

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Freed v. Thomas

Court: US Court of Appeals for the Sixth Circuit

Docket: 18-2312

Opinion Date: September 30, 2020

Judge: Siler

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

Freed owed $735.43 in taxes ($1,109.06 with penalties) on his property valued at about $97,000. Freed claims he did not know about the debt because he cannot read well. Gratiot County’s treasurer filed an in-rem action under Michigan's General Property Tax Act (GPTA), In a court-ordered foreclosure, the treasurer sold the property to a third party for $42,000. Freed lost his home and all its equity. Freed sued, 42 U.S.C. 1983, citing the Takings Clause and the Eighth Amendment. The district court first held that Michigan’s inverse condemnation process did not provide “reasonable, certain, and adequate” remedies and declined to dismiss the suit under the Tax Injunction Act, which tells district courts not to “enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had" in state court, 28 U.S.C. 1341. The court reasoned that the TIA did not apply to claims seeking to enjoin defendants from keeping the surplus equity and that Freed was not challenging his tax liability nor trying to stop the state from collecting. The TIA applied to claims seeking to enjoin enforcement of the GPTA and declare it unconstitutional but no adequate state court remedy existed. The court used the same reasoning to reject arguments that comity principles compelled dismissal. After discovery, the district court sua sponte dismissed Freed’s case for lack of subject matter jurisdiction, despite recognizing that it was “doubtful” Freed could win in state court. The Supreme Court subsequently overturned the "exhaustion of state remedies" requirement for takings claims. The Sixth Circuit reversed without addressing the merits of Freed’s claims. Neither the TIA nor comity principles forestall Freed’s suit from proceeding in federal court.

Miller v. C.H. Robinson Worldwide, Inc.

Court: US Court of Appeals for the Ninth Circuit

Docket: 19-15981

Opinion Date: September 28, 2020

Judge: Jacqueline H. Nguyen

Areas of Law: Aviation, Government & Administrative Law, Transportation Law

After plaintiff suffered serious injuries when he was struck by a semi-tractor trailer, he filed suit against C.H. Robinson, the freight broker that arranged for the trailer to transport goods for Costco. Plaintiff alleged that C.H. Robinson negligently selected an unsafe motor carrier. The Ninth Circuit agreed with the district court that plaintiff's claim is "related to" C.H. Robinson's services, but held that the district court erred in determining that the Federal Aviation Administration Authorization Act of 1994's (FAAAA) safety exception does not apply. The panel explained that, in enacting that exception, Congress intended to preserve the States’ broad power over safety, a power that includes the ability to regulate conduct not only through legislative and administrative enactments, but also though common-law damages awards. The panel also held that plaintiff's claim has the requisite "connection with" motor vehicles because it arises out of a motor vehicle accident. Therefore, the negligence claims against brokers, to the extent that they arise out of motor vehicle accidents, have the requisite "connection with" motor vehicles, and thus the safety exception applies to plaintiff's claims against C.H. Robinson. The panel reversed and remanded.

Pacific Choice Seafood Co. v. Ross

Court: US Court of Appeals for the Ninth Circuit

Docket: 18-15455

Opinion Date: September 25, 2020

Judge: Eric D. Miller

Areas of Law: Environmental Law, Government & Administrative Law

The Ninth Circuit affirmed the district court's grant of summary judgment in favor of the Service in an action brought by Pacific Choice challenging the agency's rule imposing a quota system for the Pacific non-whiting groundwater fishery. Pacific Choice alleged that the Service's 2.7 percent maximum share and its "control" rule exceeded its authority under the Magnuson-Stevens Fishery Conservation and Management Act of 1976 and violated the Administrative Procedure Act (APA). After determining that Pacific Choice's suit was timely, the panel held that the Service did not act arbitrarily or capriciously in setting the 2.7 percent maximum share. The panel rejected Pacific Choice's contention that the Service failed to consider market power and failed to articulate the methods by which, and the purposes for which, it set the maximum share percent. The panel also rejected Pacific Choice's statutory and APA challenges to the Service's control rule. The panel applied Chevron deference to the Service's interpretation of "hold, acquire, or use" to include "control," as well as to the Service's definition of "control," and held that nothing in the statute unambiguously foreclosed the Service's approach.

United States v. Abouselman

Court: US Court of Appeals for the Tenth Circuit

Docket: 18-2164

Opinion Date: September 29, 2020

Judge: David M. Ebel

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

The Pueblos of Jemez, Santa Ana, and Zia resided along the Jemez River at a time when their lands passed from Spanish to Mexican sovereignty, and finally to the United States. In 1983, the United States initiated a water-rights adjudication for the Jemez River Basin, claiming water rights on behalf of the Pueblos. The issue this case presented for the Tenth Circuit's review centered on whether the Pueblos' aboriginal water rights were extinguished by the imposition of Spanish authority "without any affirmative adverse act." No matter the method used, the sovereign’s intent to extinguish must be clear and unambiguous; “an extinguishment cannot be lightly implied in view of the avowed solicitude of the Federal Government for the welfare of its Indian wards.” Moreover, “if there is doubt whether aboriginal title has been validly extinguished by the United States, any 'doubtful expressions, instead of being resolved in favor of the United States, are to be resolved in favor of’ the Indians.” The Tenth Circuit reversed the district court, finding that while "All conquering sovereigns possess authority over their land and resources ... not until the sovereign exercises this authority through clear and adverse affirmative action may it extinguish aboriginal rights."

Peery v. City of Miami

Court: US Court of Appeals for the Eleventh Circuit

Dockets: 14-13287, 19-10957

Opinion Date: October 1, 2020

Judge: William Holcombe Pryor, Jr.

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

The City of Miami moved to terminate a consent decree that regulated how the City of Miami treats its homeless residents twenty years after its adoption based on changed circumstances, fulfillment of its purpose, and substantial compliance with its requirements. The district court ruled that the City had not violated the consent decree, granted its motion for termination, and denied the opposing motion for contempt. The district court terminated the decree because the City had substantially complied with the core purpose of the settlement agreement, that is, to stop the criminalization of homelessness. Furthermore, the district court found no evidence that would negate a finding of substantial compliance. The district court also found changed circumstances in Miami, but did not rely on those findings as a basis for termination. The Eleventh Circuit affirmed the termination of the consent decree and the denial of the contempt motion, holding that the district court correctly interpreted the decree and did not abuse its discretion by terminating the decree. Applying Florida contract law, the court held that, although the homeless identify one misinterpretation of the consent decree, they failed to identify any errors that establish noncompliance by the City. The court also held that the district court correctly applied the burden of proof on the City's motion for termination by bifurcating its analyses; did not abuse its discretion by granting the motion for termination; and did not abuse its discretion by denying the motion for contempt.

Confederated Tribes of the Chehalis Reservation v. Mnuchin

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

Docket: 20-5204

Opinion Date: September 25, 2020

Judge: Katsas

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

Title V of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) makes certain funds available to the recognized governing bodies of any "Indian Tribe" as that term is defined in the Indian Self-Determination and Education Assistance Act (ISDA). The DC Circuit held that Alaska Native Corporations (ANCs), state-chartered corporations established by Congress to receive land and money provided to Alaska Natives in settlement of aboriginal land claims, do not qualify as Indian Tribes under the CARES Act and ISDA. Therefore, ANCs are not eligible for funding under Title V of the CARES Act. The court stated that an ANC cannot qualify as an "Indian tribe" under ISDA unless it has been "recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians;" because no ANC has been federally "recognized" as an Indian tribe, as the recognition clause requires, no ANC satisfies the ISDA definition; although ANCs cannot be recognized as Indian tribes under current regulations, it was highly unsettled in 1975, when ISDA was enacted, whether Native villages or Native corporations would ultimately be recognized; and the Alaska clause does meaningful work by extending ISDA's definition of Indian tribes to whatever Native entities ultimately were recognized—even though, as things later turned out, no ANCs were recognized. Accordingly, the court reversed the district court's grant of summary judgment to the government and the intervenors, as well as the district court's denial of summary judgment to the plaintiff tribes.

United States House of Representatives v. Mnuchin

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

Docket: 19-5176

Opinion Date: September 25, 2020

Judge: Sentelle

Areas of Law: Constitutional Law, Government & Administrative Law

The House filed suit alleging that the Departments of Defense, Homeland Security, the Treasury, and the Interior, and the Secretaries of those departments violated the Appropriations Clause of the Constitution and the Administrative Procedure Act (APA) when transferring funds appropriated for other uses to finance the construction of a physical barrier along the southern border of the United States, contravening congressionally approved appropriations. The district court held that the House lacked standing to challenge defendants' actions because it failed to allege a legally cognizable injury. The DC Circuit vacated the district court's judgment insofar as it dismisses the constitutional claims. In Comm. on Judiciary of U.S. House of Representatives v. McGahn, 968 F.3d 755 (D.C. Cir. 2020), the court clearly held that a single house of Congress could have standing to pursue litigation against the Executive for injury to its legislative rights. In this case, the allegations are that the Executive interfered with the prerogative of a single chamber to limit spending under the two-string theory discussed at the time of the founding era. Therefore, the court concluded that each chamber has a distinct individual right and one chamber has a distinct injury. Accordingly, that chamber has standing to bring this litigation. The court stated that expenditures made without the House's approval—or worse, as alleged here, in the face of its specific disapproval—cause a concrete and particularized constitutional injury that the House experiences, and can seek redress for, independently. The court further stated that failure to recognize that injury in fact would fundamentally alter the separation of powers by allowing the Executive Branch to spend any funds the Senate is on board with, even if the House withheld its authorizations. The court affirmed the district court's judgment insofar as it dismisses the APA claims where those allegations in no way set forth a legislative injury distinct to the House and affording it standing. The court previously explained that Congress does not have standing to litigate a claim that the President has exceeded his statutory authority.

Mote v. Wilkie

Court: US Court of Appeals for the Federal Circuit

Docket: 19-2367

Opinion Date: September 28, 2020

Judge: Sharon Prost

Areas of Law: Government & Administrative Law, Military Law, Public Benefits

Mote served in the Air Force, 1961-1965, participating in missions to Vietnam, where Agent Orange was deployed. Mote later developed coronary artery disease and lung cancer. In 2010, Mote filed a disability claim based. In 2013, Mote filed his Notice of Disagreement with the denial of that claim. He died months later. Mrs. Mote substituted for his claim and filed a dependency-and-indemnity compensation claim. The VA denied Mrs. Mote’s claim in 2015; she filed her Notice of Disagreement and requested a Board of Veterans’ Appeals “Travel Board hearing.” Mote sought mandamus relief, 28 U.S.C. 1651, alleging unreasonable delay. The Veterans Court denied the petition, applying the “Costanza” standard. The government claimed, due to limited resources, it “could not predict how long” Mote might have to wait for a hearing. The Federal Circuit consolidated her appeal with others and held that the Veterans Court should use the Telecommunications Research & Action Center v. FCC (TRAC) standard to evaluate unreasonable-delay mandamus petitions rather than the Costanza standard. On remand, Mote requested a “reasoned decision” from the Board (within 45 days) and periodic progress reports. In March 2019. the Board scheduled her Travel Board hearing for May 2019. The Veterans Court dismissed Mrs. Mote’s mandamus petition without applying the TRAC standard. The Board subsequently remanded for further factual findings. The Federal Circuit again remanded, for a TRAC analysis, noting that Mote sought progress reports, in addition to a decision, and that the Veterans Court was not powerless to fashion other relief, such as a more lenient, specific, deadline. Whether a delay is so egregious as to justify the extraordinary writ depends on issues that are likely to arise frequently among veterans. The Veterans Court is uniquely well-positioned to address these issues first.

Alabama v. Epic Tech, LLC, et al.

Court: Supreme Court of Alabama

Docket: 1180675

Opinion Date: September 25, 2020

Judge: Alisa Kelli Wise

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

Two appeals were consolidated for the purposes of this opinion: case no. 1180675 ("the Lowndes County case"), the State appealed the Lowndes Circuit Court's order granting the motions to dismiss filed by Epic Tech, LLC; White Hall Enrichment Advancement Team d/b/a Southern Star Entertainment; White Hall Entertainment; and the White Hall Town Council (collectively, "the Lowndes County defendants"); case no. 1180794 ("the Macon County case"), the State appealed the Macon Circuit Court's order granting the motions to dismiss filed by Epic Tech, LLC, and K.C. Economic Development, LLC, d/b/a VictoryLand Casino ("KCED")(collectively, "the Macon County defendants"). In 2017, the State sued the Lowndes County defendants asserting a public-nuisance claim. In a second amended complaint, the State asserted it was seeking declaratory and injunctive relief to abate a public nuisance of unlawful gambling through continued operation of illegal slot machines and other "unlawful gambling devices." The Lowndes County defendants moved to dismiss, raising, amongst other defenses, that the State failed to join the operators of two Wind Creek casinos. The Lowndes Circuit Court ultimately granted the motion to dismiss, finding it did not have subject-matter jurisdiction to grant the relief the State requested. The State also sued defendants in Macon County Circuit court, again alleging public nuisance from operation of illegal slot machines. Again, the State requested declaratory and injunctive relief. The Macon County court likewise dismissed on grounds it lacked subject-matter jurisdiction.The State argued on appeal to the Alabama Supreme Court that the circuit courts erred in concluding they lacked subject matter jurisdiction over their respective cases. The Supreme Court concurred with the State and reversed the circuit courts. The matters were remanded for further proceedings.

Sieg v. Fogt

Court: California Courts of Appeal

Docket: A156089(First Appellate District)

Opinion Date: September 28, 2020

Judge: Streeter

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

The California Contractors’ State License Board (CSLB) sought revocation or suspension of Sieg’s contractor’s license and restitution. The Accusation alleged that Sieg failed to follow spacing and fastening requirements when installing a hardwood floor, departing from trade standards in violation of Business & Professions Code 7109(a), and failed to complete a construction project for the agreed contract price in violation of section 7113. Sieg filed a Defense and filed a civil lawsuit against the homeowners, which was subsequently dismissed. After a hearing, the ALJ issued a proposed decision recommending a 65-day suspension and a three-year probation term including payment of $27,884.21 restitution. The Registrar adopted the ALJ’s proposed decision but eliminated the 65-day suspension term and required Sieg to obtain a disciplinary bond of $30,000.00 (section 7071.8), for three years. The trial court denied Sief relief. The court of appeal affirmed the decision as supported by substantial evidence, rejecting a due process claim. Sieg had the opportunity to cross-examine each of the CSLB’s witnesses, to present witnesses of his own, and to testify on his own behalf. The court noted that private agreements to depart from statutorily imposed workmanship standards provide no defense to an alleged violation of section 7109(a), in disciplinary enforcement proceedings.

Williams v. County of Sonoma

Court: California Courts of Appeal

Docket: A156819(First Appellate District)

Opinion Date: September 28, 2020

Judge: Simons

Areas of Law: Government & Administrative Law, Personal Injury

Williams and a friend began a 30-mile bicycle ride. As they biked down a hill on a road maintained by Sonoma County, they encountered a pothole measuring four feet long, three feet four inches wide, and four inches deep. Williams was traveling at least 25 miles per hour and, by the time she saw the pothole, was unable to avoid it. She was thrown to the pavement, incurring serious injuries. The pothole had been reported to the County more than six weeks earlier. Williams sued the County for the dangerous condition of public property (Gov. Code 835). A jury found for Williams, allocating 70 percent of the fault to the County and 30 percent to Williams. Williams was awarded about $1.3 million in damages. The court of appeal affirmed, rejecting the County’s argument that Williams’s claim was barred by the primary assumption of risk doctrine, which precludes liability for injuries arising from those risks deemed inherent in a sport. Because the County already owed a duty to other foreseeable users of the road to repair the pothole, the policy reasons underlying the primary assumption of risk doctrine support the conclusion that the County owes a duty not to increase the inherent risks of long-distance, recreational cycling.

Barnett v. State, Department of Financial Services

Court: Florida Supreme Court

Docket: SC19-87

Opinion Date: September 24, 2020

Judge: Per Curiam

Areas of Law: Government & Administrative Law, Personal Injury

The Supreme Court answered a certified question by holding that a mass shooting committed by Patrick Dell was a single "incident or occurrence" for purposes of Fla. Stat. 768.28(5) and that the cumulative liability for all claims of injury resulting from the incident may not exceed the aggregate cap of $200,000 set forth in section 768.28(5). Dell fatally shot his former wife and four of her children and severely wounded a fifth child. Plaintiffs, the two fathers of the deceased and injured children, sued the Florida Department of Children and Families (DCF) alleging wrongful death and negligence. The trial court granted partial summary judgment for Plaintiffs and determined that each wrongful death or personal injury claim was eligible for the $100,000 per person and $200,000 per claim limitation found in section 768.28(5). The court of appeal reversed, concluding that the claims arose from the same incident of negligence, and therefore, the $200,000 cap per incident or occurrence applied to limit recovery for all claims. The Supreme Court approved of the court of appeal's result, holding that the claims stemming from the mass shooting of Dell's victims were subject to the $200,000 aggregate cap for damages paid by the State, its agencies, or subdivisions.

Board of Commissioners of Lowndes County v. Mayor & Council of City of Valdosta et al.

Court: Supreme Court of Georgia

Docket: S20G0472

Opinion Date: September 28, 2020

Judge: Peterson

Areas of Law: Constitutional Law, Government & Administrative Law

Lowndes County, Georgia sued the commissioner of the Georgia Department of Community Affairs (“DCA”) and members of the DCA board over DCA’s application of the Service Delivery Strategy Act (“SDS Act”). The SDS Act authorized and promoted coordination and comprehensive planning among municipal and county governments to “minimize inefficiencies resulting from duplication of services and competition between local governments and to provide a mechanism to resolve disputes over local government service delivery, funding equity, and land use.” Lowndes County and the cities within the County (“the Cities”) operated under a service delivery strategy agreement implemented in 2008. In November 2016, when DCA had not received communication from the County and Cities that they had agreed either to revise their Strategy Agreement or to extend the existing one, DCA notified the County and Cities that they would be ineligible for state-administered financial assistance, grants, loans, or permits until DCA could verify that Lowndes County and the Cities had done so. The County sued the mayors and councils of the Cities, DCA, and DCA commissioner Camila Knowles, seeking declaratory, injunctive, and mandamus relief, as well as specific performance, arguing the 2008 Strategy Agreement remained in effect, and that the County and Cities remained eligible for state-administered financial assistance. Knowles and the DCA board members moved to dismiss on the basis that sovereign immunity barred the claims for injunctive and declaratory relief. They argued that those claims actually sought to order Knowles and the DCA board members to take action in their official capacities. The trial court granted the motion to dismiss. The Court of Appeals affirmed. The Georgia Supreme Court found the Georgia Constitution allowed only the General Assembly to waive the State’s sovereign immunity. "But that rule requires waiver only for claims that sovereign immunity actually bars." The Court found that one narrow limitation on such claims was that the State could not be the “real party in interest.” The Court of Appeals held that the relief sought here by a Lowndes County would actually control the actions of the State and potentially affect state expenditures; the Court of Appeals thus concluded that the State was the real party in interest and that sovereign immunity barred the county’s claims for injunctive and declaratory relief against the state officials in their individual capacities. "But the real-party-in-interest limitation is not so broad; our case law has applied it primarily when the claimed relief would control or take the State’s real property or interfere with contracts to which the State is a party. No such relief is sought here, and applying the limitation as broadly as the State seeks would eviscerate Georgians’ well- established rights to seek redress against their government." The Court therefore reversed the Court of Appeals and held that sovereign immunity did not bar the claims at issue in this case.

Calloway County Sheriff's Department v. Woodall

Court: Kentucky Supreme Court

Dockets: 2019-SC-0391-WC, 2019-SC-0419-WC

Opinion Date: September 24, 2020

Judge: Vanmeter

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

The Supreme Court affirmed the court of appeals' opinion affirming the decision of the Workers' Compensation Board, holding that Karen Woodall, the surviving spouse of an employee who died as a result of a workplace accident, was entitled to a statutory income benefit and that the time limitation as to the lump-sum benefit does not violate the United States and Kentucky constitutional guarantees of equal protection or Kentucky's prohibition against special legislation. Ten years after a workplace injury, Steven Spillman died as a result of a surgery required by that injury. Woodall, Spillman's surviving spouse, sought income benefits under Ky. Rev. Stat. 342.750(1)(a), and Spillman's estate sought a lump-sum benefit under Ky. Rev. Stat. 342.750(6). The Board found that Woodall was eligible for the surviving spouse income benefits but that the Estate was not entitled to the lump-sum death benefit. The court of appeals affirmed. The Supreme Court affirmed, holding (1) section 342.750(1)(a) contains no temporal limitation on Woodall's receipt of income benefits; and (2) the time limitation as to the lump-sum benefit is constitutional.

Elder v. Kentucky Retirement Systems

Court: Kentucky Supreme Court

Docket: 2017-SC-0258-DG

Opinion Date: September 24, 2020

Judge: Nickell

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

The Supreme Court reversed the opinion of the court of appeals affirming the decision of the Board of Trustees of the Kentucky Retirement Systems denying Edward Elder's application for disability retirement benefits, holding that the circuit court and the court of appeals misinterpreted this Court's holding in Kentucky Retirement Systems v. West, 413 S.W.3d 578 (Ky. 2013). Elder applied for disability retirement benefits due to a genetic disorder. Systems denied benefits because Elder submitted no pre-employment medical records. In affirming Systems' denial of benefits, the circuit court read West to require submission of pre-employment medical records to prove a disabling condition was asymptomatic and reasonably undiscoverable prior to hiring. The court of appeals affirmed the circuit court's reading of West and its denial of Elder's claim for disability retirement benefits. The Supreme Court reversed and remanded the case, holding that West imposed no requirement that a claimant submit pre-employment records to disprove the pre-existence of his genetic disorder.

Family Trust Foundation of Kentucky, Inc. v. Kentucky Horse Racing Commission

Court: Kentucky Supreme Court

Docket: 2018-SC-0630-TG

Opinion Date: September 24, 2020

Judge: Vanmeter

Areas of Law: Gaming Law, Government & Administrative Law

In this case considering the Kentucky Horse Racing Commission's regulations as applied to historical horse racing the Supreme Court reversed the order of the circuit court determining that the Encore system constitutes a "pari-mutuel system of wagering," holding that the trial court misapplied the applicable regulation as a matter of law. The Commission, the Department of Revenue and several horse racing associations sought judicial approval for wagering on historical horse racing. The Family Foundation of Kentucky, Inc. was permitted to intervene and challenged both the validity of regulations and the premise that wagering on historical horse races was truly pari-mutuel wagering. The trial court concluded that the Encore system constituted a pari-mutuel system of wagering approved by the Commission. The Supreme Court reversed, holding that the Encore system does not create a wagering pool among patrons such that they are wagering among themselves, as required for pari-mutuel wagering.

Kenton County Board of Adjustment v. Meitzen

Court: Kentucky Supreme Court

Docket: 2018-SC-0677-DG

Opinion Date: September 24, 2020

Judge: Hughes

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

The Supreme Court reversed the court of appeals' decision reversing the circuit court's order dismissing Property Owners' appeal from the decision of the Kenton County Board of Adjustment granting approval of a conditional use application to allow the operation of a nursery school in a residential zone, holding that Kentucky law requires that a party must claim to be "injured or aggrieved" to perfect an appeal to circuit court under Ky. Rev. Stat. 100.347(1). After the Board unanimously granted the conditional use application Property Owners filed an appeal, alleging that the Board's action was improper because it did not meet certain statutory requirements and the requirements of the Kenton County Zoning Ordinance. The circuit court dismissed the appeal, concluding that Property Owners failed to allege that they were injured or aggrieved by the final action of the Board, and therefore, the court lacked subject matter jurisdiction. The court of appeals reversed, interpreting the "injured or aggrieved" language to be a standing requirement rather than a jurisdiction requirement. The Supreme Court reversed, holding that Property Owners failed to follow the appeal procedures in section 100.347(1) by not claiming in the complaint to be injured or aggrieved, and therefore, the circuit court appeals properly dismissed the action for lack of jurisdiction.

Slaughter v. Tube Turns

Court: Kentucky Supreme Court

Docket: 2020-SC-0013-WC

Opinion Date: September 24, 2020

Judge: Nickell

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

The Supreme Court affirmed the decision of the court of appeals and Workers' Compensation Board affirming the determination of the Chief Administrative Law Judge (CALJ) denying Appellant's motion to reopen his workers' compensation claim as time barred, holding that the CALJ correctly denied Appellant's motion to reopen as untimely. In 1996 and 1997, Appellant incurred work-related injuries to his right and left shoulders. Income benefits were paid for his right shoulder injury, but no mention of the left shoulder injury appeared in the settlement agreement. In 2018, Appellant moved to reopen the left shoulder claim, asserting that he was entitled to income benefits based on a recent surgery and resulting increased impairment. The CALJ denied the motion. The Board and the court of appeals affirmed. The Supreme Court affirmed, holding that Appellant's motion was untimely.

Burnett v. Hinds County, Mississippi

Court: Supreme Court of Mississippi

Citation: 2018-CA-00547-SCT

Opinion Date: October 1, 2020

Judge: Leslie D. King

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

Murphy Burnett was arrested and detained for several years. The State eventually moved to nolle prosequi its criminal case against Burnett, and he was released from detention. Burnett filed suit against several governmental entities based on torts connected to his arrest, prosecution, and detention. All the entities moved to dismiss based on a failure to file proper notices of claims and based on the statutes of limitation. The trial court granted these motions. Because proper notices of claims were not sent, because most of the claims were barred by one-year statutes of limitation, and because Burnett did not specifically raise the remaining claims on appeal, the Mississippi Supreme Court affirmed the trial court's judgment.

Petition of New Hampshire Division for Children, Youth & Families

Court: New Hampshire Supreme Court

Docket: 2019-0535

Opinion Date: September 30, 2020

Judge: Donovan

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

The New Hampshire Supreme Court accepted review of the Division for Children, Youth and Families' (DCYF) petition in its original jurisdiction to determine whether the superior court erred in denying DCYF's motions to dismiss respondent's claims on statute of limitation grounds. While under the care of DCYF, separate individuals sexually assaulted respondent on two separate occasions. The first assault occurred in February 2011, when respondent was approximately 12 years old, after DCYF placed her in the care of a foster family. While living with the foster family, a neighbor’s cousin raped respondent. The second assault occurred in June 2015 when respondent was approximately 16 years olf, after DCYF placed her in a children's home. An employee of the children’s home inappropriately touched, threatened, and raped respondent. In November and December 2018, the respondent filed two complaints alleging, in relevant part, claims of negligence, breach of fiduciary duty, and vicarious liability against DCYF, all relating to the sexual assaults that occurred while she was in DCYF custody. DCYF moved to dismiss the claims, arguing that they were barred by the three-year statute of limitations provided in RSA 541-B:14, IV. The respondent objected and argued, among other things, that she could not have discovered DCYF’s potential legal fault until December 19, 2016, when an independent audit of DCYF was publicly released that detailed DCYF’s various shortcomings regarding child welfare and safety. The Supreme Court determined the discovery rule in RSA 508:4, I (2010) applied to actions brought under RSA chapter 541-B (2007 & Supp. 2019), and, accordingly, affirmed the trial court’s order and remanded for further proceedings.

Fraternal Order of Police, Newark Lodge No. 12 v. City of Newark

Court: Supreme Court of New Jersey

Docket: a-15-19

Opinion Date: August 19, 2020

Judge: Jaynee LaVecchia

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

This appeal involved a challenge to the City of Newark’s authority to create by ordinance a civilian oversight board to provide a greater role for civilian participation in the review of police internal investigations and in the resolution of civilian complaints. The Fraternal Order of Police, Newark Lodge No. 12 (FOP) filed a complaint claiming that the Ordinance was unlawful. Based on the record and arguments presented on cross-motions for summary judgment, the trial court held the Ordinance invalid and enjoined its operation in virtually all respects. The court left intact, however, the Ordinance’s grant of authority to the Civilian Complaint Review Board (CCRB) to conduct general oversight functions, including aiding in the development of a disciplinary matrix for use by the police force. The Appellate Division invalidated the Ordinance’s required treatment of the CCRB’s investigatory findings, determining that the binding nature of the CCRB’s findings, absent clear error, impermissibly “makes the CCRB’s factual findings paramount to the findings of the IA department.” The New Jersey Supreme Court modified the Appellate Division's judgment, concluding: (1) state law permitted the creation by ordinance of this civilian board with its overall beneficial oversight purpose; (2) the board’s powers must comply with current legislative enactments unless the Legislature refines the law to specifically authorize certain functions that Newark intends to confer on its review board; (3) board can investigate citizen complaints alleging police misconduct, and those investigations may result in recommendations to the Public Safety Director for the pursuit of discipline against a police officer; (4) the board cannot exercise its investigatory powers when a concurrent investigation is conducted by the Newark Police Department’s Internal Affairs (IA) unit; and (5) where there is no existing IA investigation, the review board may conduct investigations in its own right. In addition, the review board could conduct its oversight function by reviewing the overall operation of the police force, including the performance of its IA function in its totality or its pattern of conduct, and provide the called-for periodic reports to the officials and entities as prescribed by municipal ordinance.

In the Matter of Ridgefield Park Board of Education

Court: Supreme Court of New Jersey

Docket: a-2-19

Opinion Date: August 17, 2020

Judge: Anne M. Patterson

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

The Ridgefield Park Board of Education (Board) and the Ridgefield Park Education Association (Association) negotiated a collective negotiations agreement (CNA) covering 2011-2014 that went into effect three days after the New Jersey Legislature enacted Chapter 78. The 2011-2014 CNA expired before the employees achieved full implementation of the premium share set forth in N.J.S.A. 52:14-17.28c (Tier 4). After the 2011-2014 CNA expired, the Board and the Association negotiated a CNA covering 2014-2018, which, like its predecessor, stated that employees would contribute 1.5% of their salary towards health insurance or the minimum set forth by statute, regulation, or code. During the 2014-2015 school year, the employees contributed to the cost of their health care at the full premium share required by Tier 4. The Board and the Association disputed Chapter 78’s impact on employee contributions for the CNA’s remaining three years. The Board contended that Chapter 78 preempted any negotiated term for those contributions and that the Association’s members were required to contribute to their health benefits at the Tier 4 level for the duration of the CNA. The Association contended that Chapter 78 did not preempt the 1.5% contribution rate set forth in the 2014-2018 CNA. PERC held that the health insurance premium contribution rate set forth in the 2014-2018 CNA was preempted by Chapter 78 and granted the Board’s request for a restraint of binding arbitration as to that issue. The Appellate Division reversed, determining that adherence to Chapter 78’s plain language would bring about an “absurd result” contravening legislative intent, and required the employees to contribute only 1.5% of their salaries for the three contested years. The New Jersey Supreme Court reversed, finding the health insurance premium contribution rates paid by the Association’s members were preempted by statute and therefore non-negotiable. PERC’s construction of Chapter 78 comported with the statute’s language and the Legislature’s stated objective to achieve a long-term solution to a fiscal crisis.

In the Matter of the Civil Commitment of P.D.

Court: Supreme Court of New Jersey

Docket: a-94-18

Opinion Date: August 11, 2020

Judge: Anne M. Patterson

Areas of Law: Criminal Law, Government & Administrative Law

In August 2017, the State filed a petition to civilly commit P.D., relying on P.D.’s conviction for an offense that qualified as a “sexually violent offense” as defined in N.J.S.A. 30:4-27.26, and other offenses. The State submitted two clinical certificates from psychiatrists who opined that P.D. suffered from a mental abnormality or personality disorder that made him “likely to engage in acts of sexual violence if not confined to a secure facility for control, care and treatment.” The trial court entered an order temporarily civilly committing P.D. to the Special Treatment Unit. P.D. waived his right under the SVPA to a court hearing within twenty days of the court’s temporary commitment order. P.D. thereafter filed a motion to compel discovery, which the trial court denied. The court found no support for P.D.’s contention that a person facing an SVPA commitment hearing could seek discovery under the general civil discovery rule, Rule 4:10-1, or other rules governing civil cases. The Appellate Division denied P.D.’s motion for leave to appeal the trial court’s decision. Finding no reversible error in the trial or appellate court orders, the New Jersey Supreme Court affirmed.

New Jersey Republican State Committee v. Murphy

Court: Supreme Court of New Jersey

Docket: a-82-19

Opinion Date: August 12, 2020

Judge: Stuart Rabner

Areas of Law: Constitutional Law, Government & Administrative Law

To make up for the tax revenue shortfall COVID-19 created and to maintain the State’s fiscal integrity, the New Jersey Legislature passed, and the Governor signed into law a bill that authorized the State to borrow up to $9.9 billion. Under the new law, the “New Jersey COVID-19 Emergency Bond Act” (Bond Act or Act), the State could issue bonds for private sale or borrow funds from the federal government. Up to $2.7 billion in borrowing could be used for the period from July 1, 2019 through September 30, 2020, and up to $7.2 billion for the period from October 1, 2020 through June 30, 2021. Before the Bond Act was enacted, the Assembly Minority Leader asked the Office of Legislative Services (OLS) to offer an opinion on “whether or not the State may issue general obligation bonds without voter approval to meet the needs of the State arising from the COVID-19 pandemic.” OLS issued an opinion letter on May 7, 2020, answering in the affirmative: “the COVID-19 pandemic is a disaster contemplated by the [Emergency Exception], and the State therefore may issue bonds, without the usual requirement for voter approval, to meet COVID-19 related emergency needs.” The opinion letter drew a distinction between “borrowing to supplement revenue for future fiscal year budgets,” which OLS believed would violate the Constitution, and “borrowing money where the anticipated revenue certified in accordance with . . . the Constitution becomes insufficient due to an unexpected event” -- a reference to FY2020 -- which OLS found permissible. The New Jersey Republican State Committee filed a complaint contending the asserted legislation violated the Debt Limitation Clause of the State Constitution, and sought to restrain the Governor from signing or enforcing the bill. After review, the Supreme Court determined the Bond Act did not violate the Constitution, subject to limits imposed by the Court in this opinion.

Jones v. N.M. Dep't of Public Safety

Court: New Mexico Supreme Court

Citation: 2020-NMSC-013

Opinion Date: July 14, 2020

Judge: Barbara J. Vigil

Areas of Law: Constitutional Law, Government & Administrative Law

Plaintiff Andrew Jones appealed the grant of summary judgment to the Department of Public Safety (DPS), dismissing Jones’s Inspection of Public Records Act (IPRA) enforcement action. Jones argued the district court misconstrued Section 14-2-1(A)(4) and incorrectly allowed DPS to withhold requested public records solely because the records related to an ongoing criminal investigation. Jones further argued the Court of Appeals was incorrect to hold that he acquiesced to the district court’s interpretation of Section 14-2-1(A)(4), was incorrect to hold that his lawsuit was moot, and wrongly dismissed his appeal. After review, the New Mexico Supreme Court concluded Jones was correct. The Court of Appeals was reversed, and the district court's grant of summary judgment to DPS was too, concluding that the district court’s interpretation of Section 14-2-1(A)(4) was overbroad and contrary to the plain language of the statute. "That misinterpretation also led the district court to incorrectly deny summary judgment to Jones at an earlier point in the case. Accordingly, we reverse that judgment as well."

Morper v. Oliver

Court: New Mexico Supreme Court

Citation: 2020-NMSC-012

Opinion Date: July 14, 2020

Judge: Thomson

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

Anastacia Morper sought preprimary designation as a candidate for the office of United States Representative from New Mexico’s Third Congressional District at the 2020 Republican Party Pre-Primary Convention. The Secretary of State invalidated forty-four of Morper’s nominating petitions because those petitions omitted the heading “2020 PRIMARY NOMINATING PETITION,” which the Secretary deemed to be critical information required by law. By extension, the Secretary invalidated the signatures on those forty-four nominating petitions. In doing so, the Secretary invalidated over seven hundred signatures, leaving only forty-three signatures on the five nominating petitions the Secretary did not invalidate. The Secretary informed Morper that she had not received the “minimum number of signatures required” to be “qualified as a candidate” for the preprimary convention. Morper appealed the Secretary’s decision to the district court. The district court upheld the Secretary’s decision concluding that “the Secretary of State has the right to reject . . . nominating petitions that were not on the form prescribed by law.” The Supreme Court reversed. "We appreciate that the reviewing official at the Secretary’s office may have been required to give the nominating petitions that Morper filed more than a cursory glance to ascertain that the petitions were in the form that Section 1-8-30(C) prescribes, contained the information that Section 1-1-26(A) requires, and were identical to the Secretary’s Form except for the omitted heading. However, this additional attention does not justify the Secretary’s argument that allowing her to invalidate any form that omitted the heading that she approved—regardless of whether the remainder of the form is identical to the Secretary’s Form—protects the integrity and fairness of the elective franchise."

Defender Security Co. v. McClain

Court: Supreme Court of Ohio

Citation: 2020-Ohio-4594

Opinion Date: September 29, 2020

Judge: Maureen O'Connor

Areas of Law: Government & Administrative Law, Tax Law

The Supreme Court reversed the judgment of the Board of Tax Appeals (BTA) and the court of appeals affirming the decision of the tax commissioner that gross receipts earned by Defender Security Company between January 2011 and December 2013 were Ohio-taxable receipts under the commercial activity tax (CAT) law, holding that Appellant was entitled to relief on its statutory claim. The receipts at issue consisted of payments made to Defender by ADT Security Services, Inc. Defender filed a refund claim seeking the return of $73,334 for commercial activity tax paid on gross receipts for approximately three years. The tax commission denied the refund claim. The BTA agreed with the tax commissioner's conclusion that the proper situs of ADT funding should be Ohio and affirmed. The court of appeals affirmed. The Supreme Court reversed, holding that, under Ohio Rev. Code 5751.033(I), the situs of ADT funding receipts is ADT's physical location outside Ohio. The Court remanded the case to the tax commissioner with instructions that he issue refunds in the amount set forth in the refund claim, plus interest.

Mohamed v. Eckelberry

Court: Supreme Court of Ohio

Citation: 2020-Ohio-4585

Opinion Date: September 25, 2020

Judge: Per Curiam

Areas of Law: Criminal Law, Government & Administrative Law

The Supreme Court adopted the recommendation of the master commissioner and granted Petitioner's petition for writ of habeas corpus challenging the amount of his pretrial bond, holding that the master commissioner properly stated the facts and applied the law. Petitioner was in jail awaiting trial on multiple charges when he filed his habeas petition. The Supreme Court referred the matter to a master commissioner to conduct a hearing to determine whether Petitioner was being held unlawfully due to an excessive bond. The master commissioner concluded that the $1,000,000 bond on which Petitioner was being held was excessive and recommended modifying the bail to $200,000. The Supreme Court adopted the recommendation and granted the petition for writ of habeas corpus but with certain additional nonfinancial conditions.

State ex rel. McDougald v. Sehlmeyer

Court: Supreme Court of Ohio

Citation: 2020-Ohio-4637

Opinion Date: October 1, 2020

Judge: Per Curiam

Areas of Law: Government & Administrative Law

The Supreme Court denied Relator's request for a writ of mandamus seeking to compel Respondent to permit him to inspect certain public records, holding that Relator failed to establish by clear and convincing evidence that he was entitled to a writ of mandamus. Relator, an inmate at the Toledo Correctional Institution, send a public-records request to Respondent, the warden's administrative assistant, asking to inspect two use-of-force reports and a review of a particular use-of-force incident. Respondent refused to permit Relator to inspect the requested records due to concerns over safety and security. Relator then brought this action. The Supreme Court denied relief, holding (1) where Relator did not refute the evidence that he presented a security risk, Relator did not establish his entitlement to a writ of mandamus; and (2) Relator was not entitled to statutory damages or court costs.

Toch, LLC v. City of Tulsa

Court: Oklahoma Supreme Court

Citation: 2020 OK 81

Opinion Date: September 29, 2020

Judge: Darby

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

Defendant the City of Tulsa (City), passed an ordinance creating a tourism improvement district that encompassed all properties within City which had hotels or motels with 110 or more rooms available for occupancy. Plaintiff-appellee Toch, LLC owned Aloft Downtown Tulsa (Aloft) with 180 rooms. Toch petitioned for a declaratory judgment that the ordinance was invalid for a variety of reasons, including that the district did not include all hotels with at least 50 rooms available. The court granted summary judgment to Toch based on its determination that City exceeded the authority granted in title 11, section 39-103.1. The question before Oklahoma Supreme Court was whether section 39-103.1 granted authority to municipalities to limit a tourism improvement district to a minimum room-count of a number larger than 50. To this, the Court answered in the affirmative, reversed the trial court, and remanded for further proceedings.

Fouse v. Saratoga Partners, et al

Court: Supreme Court of Pennsylvania

Docket: 67 MAP 2019

Opinion Date: October 1, 2020

Judge: Max Baer

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

Appellants Fred and Jolene Fouse owned two parcels of land in Huntingdon County, Pennsylvania, identified which they used as their primary residence from the time they acquired the two parcels in 1976 and 1987, respectively. Eventually, the Fouses fell behind in paying their property taxes. As mandated by the Real Estate Tax Sale Law (RETSL), the Huntington County Tax Claim Bureau scheduled an upset tax sale. Appellees Saratoga Partners, LP submitted the highest bid. Three months later, in December 2016, the Fouses filed a “petition to redeem property sold at tax sale,” even though Huntington County, a sixth class county, prohibited post-sale redemptions. Instead, the Fouses asserted, inter alia, a right to redeem under section 7293 of the Municipal Claims and Tax Liens Act (MCTLA), by paying the amount paid by Saratoga at the tax sale. In their brief, the Fouses acknowledged that the MCTLA applied only to first and second class counties, but the absence of a right of redemption provision in the RETSL resulted in citizens of second class A through eighth class counties being treated less favorably than citizens of first and second class counties, in violation of the equal protection provisions of the federal and state constitutions. After review, the Pennsylvania Supreme Court concluded the General Assembly’s decision to omit the right of post-sale redemption from the RETSL was constitutional because it was rationally related to a legitimate state interest. Accordingly, the Court affirmed the Commonwealth Court's order upholding the denial of the Fouses' petition for redemption.

In Re: Consol Apl of Chester-Upland SD, et al -

Court: Supreme Court of Pennsylvania

Docket: 55-57 MAP 2019

Opinion Date: October 1, 2020

Judge: Thomas G. Saylor

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

The appellant property owners (“Taxpayers”) allowed billboards to be placed their lands. The appellee local taxing authorities, Chester-Upland School District and Chichester School District (the “School Districts”), filed 22 assessment appeals relating to the subject properties for tax years 2014 and forward. In their appeals, the School Districts sought to increase the assessed value based on the presence of the billboards. After relief was denied by the county assessment board, the School Districts appealed to the Court of Common Pleas. Separately, four property owners also appealed to that court after their properties were reassessed due to the presence of billboards. The issue presented for the Pennsylvania Supreme Court's review was whether the presence of a billboard on a property could affect the valuation of that property, such as where the landowner was entitled to ongoing payments pursuant to a lease with the billboard company. The Supreme Court found the Pennsylvania General Assembly has directed that billboards and their supporting structures were not real estate for tax assessment purposes. Here, the Court concluded the Commonwealth Court appropriately concluded that, although a billboard’s value may not itself be considered when assessing the underlying real property’s value, any increase in such value attributable to the billboard’s presence could be considered.

Johnson v. Wetzel

Court: Supreme Court of Pennsylvania

Docket: 18 EAP 2019

Opinion Date: October 1, 2020

Judge: Thomas G. Saylor

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

Appellant Aquil Johnson claimed he was entitled to a refund of monies deducted from his inmate account pursuant to Act 84 because no procedural safeguards were in place when the deductions began. Recent decisions by the Pennsylvania Supreme Court and the Third Circuit Court of Appeals confirmed that, under the Due Process Clause of the Fourteenth Amendment, certain safeguards had to be applied before the first Act 84 deduction was made in connection with a given criminal sentence. The issue before the Pennsylvania Supreme Court in this case was whether relief was available where the first deduction was made before those decisions were announced. The Supreme Court found that due process mandated the Department of Corrections afford post-deprivation process analogous to the pre-deprivation procedures required by Bundy v. Wetzel, 184 A.3d 551 (2018). Further development was required to determine whether the Department already supplied Appellant with adequate post-deprivation process. The Court found Appellant failed to set forth a valid basis to implicate an administrative ability-to-pay hearing. The Commonwealth Court was affirmed insofar as it dismissed Appellant’s claims relating to negligence and the administrative ability-to-pay hearing; it was vacated to the extent it dismissed Appellant’s claim relating to due process. The matter is remanded for further proceedings.

Seda-Cog Joint Rail Auth v. Carload Express et al

Court: Supreme Court of Pennsylvania

Docket: 12 MAP 2019

Opinion Date: October 1, 2020

Judge: Donohue

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

Appellant SEDA-COG Joint Rail Authority (the “JRA”) was a joint authority formed pursuant to the MAA, governed by a sixteen member Board, with each of the eight member counties appointing two members. In addition to the MAA, the Board’s operations were governed by the JRA’s bylaws and a code of conduct. Appellee Susquehanna Union Railroad Company (“SURC”) was a third-party rail line operator. The JRA began the process to award a new operating agreement. At an October 2014 Board meeting, the JRA’s counsel announced because the Board had sixteen members, a nine-vote majority was required for the Board to act. Carload Express received twenty-four points, SURC received twenty-three, and Northern Plains Railroad received thirteen. A roll call vote was taken on the motion to award the contract to Carload and, of the ten voting Board members, seven voted in favor and three against. When certain Board members questioned the nine vote requirement for action, the Board voted unanimously to table the decision to award the operating agreement to Carload pending further review of the JRA’s bylaws and the applicable law. After the meeting, Carload submitted its position to the JRA, arguing that it had been awarded the operating agreement based upon the seven-to-three vote. The JRA responded by filing an action requesting a declaration upholding its use of the nine vote requirement. The Supreme Court granted discretionary appeal to determine whether Section 5610(e) of the Pennsylvania Municipality Authorities Act's use of the phrase “members present” abrogated the common law rule that a simple majority (a majority vote of the voting members who make up the quorum of a municipal authority) carried a vote. Because the Court concluded that it did not, it affirmed the Commonwealth Court.

Sivick v. State Ethics Commission

Court: Supreme Court of Pennsylvania

Docket: 62 MAP 2019

Opinion Date: October 1, 2020

Judge: Wecht

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

John Sivick, a Lehman Township Supervisor, wanted his son to have a job, and hoped to arranged a position for his son with the Township. After leaning on his fellow Supervisors, Sivick successfully found work for his son on a Township road crew. Following an ethics complaint and an investigation, the State Ethics Commission found Sivick violated the Public Official and Employee Ethics Act in several respects. As the lone sanction relative to this aspect of the ethics complaint, the Commission imposed $30,000 in restitution. Sivick filed a petition for review of the Commission’s adjudication and restitution order in the Commonwealth Court, challenging, inter alia, the Commission’s adjudication of a conflict of interest violation as well as the legal authority to impose restitution. The Commonwealth Court affirmed the Commission's decision, and Sivick appealed further to the Pennsylvania Supreme Court. After review, the Supreme Court reversed on both points. The Court found the Commission’s adjudication identified three distinct but interrelated actions as violating Subsection 1103(a) without making clear whether each cited basis was sufficient by itself, or whether the violation was based upon aggregating the cited wrongdoing into one course of conduct. "This creates a degree of uncertainty that is only exacerbated by the Commission's imposition of a single sanction. It is exacerbated further still, now, by this Court’s determination that the lone sanction imposed lacked a statutory basis - and was, in a sense, an illegal sentence." The case was remanded for further proceedings, including, in the Commission's discretion, the entry of a new adjudication, and if appropriate, the imposition of any sanction available under the Act.

In re C.B., Juvenile

Court: Vermont Supreme Court

Citation: 2020 VT 80

Opinion Date: September 25, 2020

Judge: Paul L. Reiber

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

Father appealed a family division order terminating his parental rights to his son C.B., born in August 2016. The State filed a petition alleging that C.B. was a child in need of care or supervision (CHINS) in October 2017 based on allegations that father had repeatedly engaged in domestic violence and mother continued to allow father to be around her and C.B. despite repeated abuse and court orders barring contact. A January 2018 order gave father the right to supervised parent-child contact, but he did not follow through and no visits took place. Father had a lengthy criminal history including a conviction for attempted aggravated assault with a deadly weapon. At the time of the final hearing, he had several charges still pending. Father required safe housing, employment, therapy, parenting classes, and time to develop a relationship with C.B. Given father’s lack of progress towards achieving case-plan goals, the trial court found there was no possibility he could safely parent C.B. in a time reasonable for C.B., given C.B.’s need for permanency, thus termination of his rights was granted. Father alleged on appeal that the court committed several errors related to paternal grandmother’s requests for a guardianship of C.B. in the probate division, and for visitation with C.B. in the family division. Father also claimed the court deprived him of standing at the merits stage, failed to assign him counsel, and erred in not directing a suitability assessment of paternal grandmother at the initial temporary-care hearing. Finding no reversible error, the Vermont Supreme Court affirmed.

Tata Chemicals Soda Ash Partners, Ltd v. Vinson

Court: Wyoming Supreme Court

Citation: 2020 WY 126

Opinion Date: September 28, 2020

Judge: Kate M. Fox

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

The Supreme Court remanded this case to the district court with instructions to determine whether excusable neglect extended Plaintiff's time to file the petition for review of the decision of the Office of Administrative Hearings (OAH) concluding that Plaintiff's infection was not compensable, holding that the record did not reveal whether the district court considered the question of excusable neglect. Plaintiff scraped his knuckle on a locker as he was getting ready to leave a trona mine, where he worked. The scrape developed necrotizing fasciitis, causing serious injuries. The Department of Workforce Services, Workers' Compensation Division, deemed Plaintiff's injury compensable. The OAH served an order concluding that Plaintiff's injuries were not compensable. The district court reversed, concluding that Plaintiff's infection was compensable. Plaintiff's employer appealed, arguing that the district court lacked jurisdiction because the petition for judicial review was untimely filed. The Supreme Court remanded the case for the limited purpose of determining whether excusable neglect extended the time for filing a petition for review.