Administrative Law

I Noticed, Then Commented ? Thoughts on a New Application for the Notice and Comment Process

Posted on January 20, 2009
Note: The following essay is slated for publication in the forthcoming Winter Issue of the Minnesota State Bar Association Public Law Newsletter. I thought that this item might likewise be of interest to readers of these pages. At the close of last year, I had a something of an old home week...

Sunset Stripped

Posted on January 15, 2009
In an interesting published opinion issued on Tuesday, a panel of the Minnesota Court of Appeals set aside the assessment of penalties against a major telecommunications firm, AT&T. Among the issues in the case was whether the Minnesota Public Utilities Commission maintained the authority to penalize misconduct by a regulated party after the sunset date of the Commission?s penalty statute, but as to conduct which occurred before the statute expired...

Board Urges Refusal of Money and Requirements of Adam Walsh Act

Posted on January 15, 2009
The California Sex Offender Management Board recently announced that acceptance of the requirements that are associated with full compliance under the Adam Walsh Child Protection and Safety Act of 2006 would be "costly and ill-advised." The 16-member state board oversees community management of adult sex offenders by "identifying and developing recommendations to improve policies and practices...

2008 Snapshot: Charts Depict the Work of OAH's Administrative Law Division

Posted on January 13, 2009
Circulating at the State Capitol these days are two charts which may be of interest to readers of Within the Scope. The first chart documents the nature and number of complaints of unfair campaign practices that were resolved by the Office of Administrative Hearings' Adminstrative Law Division in calendar year 2008...

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Key Overviews: Recounts and Elections; Energy; the Courts; Metrics for Human Services

Posted on January 08, 2009
With the start of the 86th Session of the Minnesota Legislature, this past Tuesday, legislative committees are turning to a set of marquee issues in ?overviews.? Importantly, these overviews could forecast the mechanics of reforms that will be undertaken later this year...

DNA Case has Clues on Administrative Exhaustion and the RFRA

Posted on January 03, 2009
In a very interesting decision issued on Tuesday of this week, a panel of the U.S. Court of Appeals for the District of Columbia Circuit turned away the challenge of a federal prisoner to the FBI?s analysis of his DNA.Russell Kaemmerling, the inmate, filed suit to enjoin application of the DNA Analysis Backlog Elimination Act to him, on the grounds that it violated rights that were guaranteed to him under the First Amendment and the Religious Freedom Restoration Act (?RFRA?)...

Sierra Club v. EPA: A Wider Doctrine on the Time to File Rulemaking Challenges?

Posted on December 24, 2008
In an interesting opinion issued last Friday, a divided panel of the U.S. Court of Appeals for the District of Columbia Circuit held that a set of 2006 revisions to certain Clean Air Act rules ?constructively reopened? the rules to collateral attack.The Clean Air Act provides that ?[a]ny petition for review under this subsection shall be filed within sixty days from the date notice of such promulgation, approval, or action appears in the Federal Register...

RTO Government Affairs Expenses Survive ?Compelled Speech? Challenge

Posted on December 20, 2008
In an interesting opinion issued on Tuesday of this week, a panel of the U.S. Court of Appeals for the District of Columbia Circuit turned away the challenge of three northeastern utilities to the tariff sheets submitted by their Regional Transmission Organization ? the ISO New England, Inc...

Minnesota U.S. Senate Recount: Oral Argument Video Posted to the Web

Posted on December 18, 2008
And is accessible a href="http://www.tpt.org/courts/MNJudicialBranchvideo_NEW.php?number=A08-2169"here/a.

A New Code of Judicial Conduct! (Minus the Most Worrisome Parts)

Posted on December 18, 2008
By way an Order issued today, the Minnesota Supreme Court promulgated a revised Code of Judicial Conduct that will take effect on July 1, 2009.br /br /The revised Code sets forth ?overarching principles of judicial ethics that all judges must observe? and includes specific prohibitions with respect to extra-judicial activities ? most notably, standards for ethical conduct during campaigns for judicial office...

Coloring Outside of the Lines: Is State Law a Boundary on VRA Remedies?

Posted on December 17, 2008
In a genuinely fascinating opinion issued yesterday, a divided panel of the U.S. Court of Appeals for the Eighth Circuit upheld a lower court?s order abolishing the city council ward system in Martin, South Dakota and replacing it with an at-large council system...

Not Everything is a Potential Blog Post!

Posted on December 15, 2008
How true....There are lots of interesting articles and legal news items that cross my desk, but for one or another reason are simply not matters that oblige a separate post. Presumably, that is why there is Twitter.Twitter is an online posting site where short messages (of no more than 140 characters) can be shared with subscribers and a wide range of others...

In a One-Horse Open Sleigh (Hey!): Podcasts for Administrative Lawyers

Posted on December 14, 2008
Mindful that many of the readers of these pages will be going over the river and through the woods to Grandmother?s house, I have listed a few items that might be worth downloading for your holiday travels.n A panel discussion reflecting upon the 25th anniversary of the landmark case Chevron U...

Timing is Everything: Panels Explain Deadlines for Final Action

Posted on December 11, 2008
Within the last four weeks, the Minnesota Court of Appeals has twice addressed the question of when an agency head must make a final decision upon a contested case record ? both times providing the instruction in unpublished opinions.As readers of these pages will recall, Minnesota law provides that ?[u]nless otherwise provided by law, the report or order of the administrative law judge constitutes the final decision in the case unless the agency modifies or rejects it ? within 90 days after the record of the proceeding closes ?...

Until the Cows Come Home: Stray Voltage and the Filed Rate Doctrine

Posted on December 10, 2008
While the Minnesota Supreme Court continues to consider the reach of the filed-rate doctrine as a bar to judicial consideration of claims filed by ratepayers against their utilities (as I noted here and here), yesterday, a panel of the Minnesota Court of Appeals touched upon this same question in a parallel and unrelated case...

Senator Craig, the First Amendment and Our Collective Struggles for Modesty

Posted on December 09, 2008
In an unpublished opinion issued earlier today, a panel of the Minnesota Court of Appeals turned away dual challenges to the August 2007 conviction of U.S. Senator Larry Craig (R ? Idaho) on charges of disorderly conduct.The appellate panel denied both Senator Craig?s request to withdraw his earlier guilty plea as well as the Senator?s and the American Civil Liberties Union?s challenges to the constitutionality of Minnesota?s disorderly conduct statute...

Bagenstos: Courts' Focus on Process Doesn?t Aid Disabled Students Much

Posted on December 08, 2008
Among the most interesting posts to the Social Science Research Network in recent weeks is a draft article by Professor Samuel R. Bagenstos of the Washington University School of Law: ?Where Have All the Lawsuits Gone? The Shockingly Small Role of the Courts in Implementing the Individuals with Disabilities Education Act...

Speaker Kelliher Unveils Slimmer Committee Structure

Posted on December 08, 2008
On Friday, Speaker of the House Margaret Anderson Kelliher unveiled a slimmer and more compressed committee structure for the Minnesota House of Representatives.Among the features of the new committee structure is a retooling of the Biosciences and Emerging Technology and the Local Government and Metropolitan Affairs committees into divisions of other committees; a shuttering of many of the smaller policy subcommittees; and the splintering of civil justice and criminal justice policy jurisdictions between two separate policy committees...

Chanukah Arrives Early This Year

Posted on December 04, 2008
With grateful thanks to the very generous staff of the Minnesota State Law Library, who named Within the Scope its "Blog of the Month."As someone who is a very frequent visitor to the Law Libray's collection in the Judicial Center, and a great admirer of the materials and services that the Library offers, this is a real honor...

Chief Justice Links Courts Funding with an Orderly Society

Posted on December 04, 2008
Following the announcement earlier today by state forecasters that Minnesota faces a budget deficit in Fiscal Year 2009 of $426 million, and is predicted to experience a $4.847 billion shortfall during Fiscal Years 2010-2011, Chief Justice of Minnesota Eric J...

Eighth Circuit: Administrative Exhaustion First, Jury Later

Posted on December 02, 2008
In an interesting published opinion issued on Monday, a panel of the U.S. Court of Appeals for the Eighth Circuit turned aside the challenge of a set of Arkansas landowners. The landowners challenged the requirement that they first present their takings claims for review by a state administrative tribunal - the Arkansas State Claims Commission - before being permitted to proceed in federal court...

Quasi-Legislative or Quasi-Judicial: Is it a duty or just a good idea?

Posted on November 28, 2008
In an interesting unpublished opinion issued on Tuesday of this week, a panel of the Minnesota Court of Appeals held that the Metropolitan Council?s decision to undertake a park land exchange with the Minneapolis Park Board was a ?quasi-legislative? decision that was beyond the reach of the state courts to review by way of a writ of certiorari...

A Big Day at the Capitol: Three Short Stories

Posted on November 25, 2008
This was a day in which the events that I wanted to write about just kept coming in; one right after another. Among the noteworthy events occurring today in Saint Paul, any one of which could made for its own post, were:Item One: The recently-merged agencies of the Department of Finance and Department of Employee Relations unveiled its new moniker ? Minnesota Management and Budget ? and a new website today...

Practice Point: A New ALJ Could Mean a Whole New Schedule

Posted on November 21, 2008
As part of an opinion issued today, a panel of the U.S. Court of Appeals for the District of Columbia Circuit held that a federal Administrative Law Judge?s power to regulate the course of proceedings (under the Securities and Exchange Commission?s rules), included the power to revisit and revise the earlier orders of a predecessor ALJ...

MPR Hosts a Fantasy Canvassing Board in the U.S. Senate Recount

Posted on November 20, 2008
Ever wish that you could you could be a part of the State Canvassing Board during a hotly-disputed election? Well, perhaps, now you can.Thanks to the creative and very clever folks at Minnesota Public Radio, anyone can join this all-star Fantasy Canvassing Board...

Judge Lindman Orders the Release of Absentee Ballot Data

Posted on November 19, 2008
By an Order issued earlier today, Judge Dale B. Lindman, of the District Court for Ramsey County, Minnesota, entered an injunction directing the disclosure of ?the names and addresses of all persons who submitted absentee ballots [in Ramsey County] in connection with the general election of November 4, 2008, but whose absentee ballots were rejected or otherwise not counted...

A Room with a View ... of the Disputed Ballots

Posted on November 19, 2008
Apropos of not very much, I thought that the ex parte order issued by the District Court for Sterns County, Minnesota, securing the ballots in the contested U.S. Senate election, was of interest. The Order provides for securing the ballots in a room with windows, such that the containers of ballots may be seen (during normal business hours) by the ?visual guards? appointed by Al Franken?s and Norm Coleman?s campaign committees...

Paulsen: Written Textualism is the Sole Approach for Interpretation

Posted on November 18, 2008
In an article posted on Sunday to the Social Science Research Network, Professor Michael Stokes Paulsen, of the University of St. Thomas School of Law, writes that the U.S. Constitution ?both as a consequence of its nature as a written document, and by virtue of its specific words, prescribes written textualism as the sole appropriate approach to understanding and applying its provisions...

Free Speech and Free Markets: Where Should They Cross?

Posted on November 17, 2008
Last week, Professor Eugene Volokh made a post to his blog The Volokh Conspiracy that had me thinking. The post equated the controversy that is now swirling around Scott Eckern, the former artistic director of the California Musical Theater, with the fracas that Dixie Chicks lead singer Natalie Maines faced in 2003...

In Memoriam: Former Chief Judge Johnson Passes Away

Posted on November 16, 2008
Kevin E. Johnson, former Chief Administrative Law Judge of the Minnesota Office of Administrative Hearings, died this past Tuesday, the victim of an apparent heart attack. He was 57.Having served with distinction as both a public defender and an Assistant Hennepin County Attorney, Judge Johnson was appointed by Governor Arne Carlson to head the OAH in 1993...

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