Administrative Law

What is "Inherently Judicial" is Inherently Difficult

Posted on November 13, 2008
As voters were streaming to the polls on the morning of Election Day, the Minnesota Supreme Court was wrestling with its own set of difficult choices: Specifically, what kind of disputes are ?inherently judicial? and, thus, must be resolved by an Article VI court?Irene Hoffman and her fellow plaintiffs sought contractual damages from Xcel Energy, a provider of electricity service to residential customers in Minnesota, for claimed failures in maintaining the points of connection between the utility?s electricity distribution wires and the homes of the plaintiff customers...

Hannah and Her Zingers

Posted on November 11, 2008
Posted this week to the Duke Law Journal website, and to Howard Bashman?s ?How Appealing,? was a copy of a forthcoming law review article by Duke third-year law student and Senior Notes Editor, Hannah L. Weiner.The Article, The Next "Great Dissenter"? How Clarence Thomas Is Using the Words and Principles of John Marshall Harlan to Craft a New Era of Civil Rights, links Justice Thomas? early experiences, with the themes announced in Justice Harlan?s famous dissent in Plessy v...

OMB Watch Task Force: The Internet is Key to Transparency in Rulemaking

Posted on November 09, 2008
Posted to the Social Science Research Network earlier this month was a report, commissioned by the Washington, D.C.-based research and advocacy group OMB Watch, on methods by which the next Administration could enhance transparency and public participation in federal rulemaking...

If You Don?t Have Something Nice to Say, Be Sure to Post It to the Net

Posted on November 07, 2008
Is your right to due process of law implicated by the things that government officials write about you and post to agency websites?Two different federal Circuit Courts of Appeal addressed this question this week and came to different results in their respective cases...

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OAH and Collateral Estoppel: We're All Inclined to Follow Klein

Posted on November 05, 2008
As I have noted before, retired Administrative Law Judge Allan Klein was fond of remarking that in proceedings before the Office of Administrative Hearings, parties who ?save? their best arguments for later decision-makers ? whether it be an agency head or a reviewing Court ? do so at their peril...

Today We Mark Our 500th Post! (And one great interview!)

Posted on November 03, 2008
Just over two years ago, I started posting to Within the Scope, and it has been among the most interesting and rewarding ventures of my professional life.Through these pages, I have been linked in with fellow lawyers (... and the just-plain curious) from every time zone on the globe; some of my case synopses have made it into Mr...

In Re: Family Room Messes

Posted on October 30, 2008
Assistant Professor Hillel Y. Levin, of the University of Georgia Law School, recently posted to the Social Science Research Network a hilarious (and very insightful) working paper on the various modes of statutory construction.In the paper, Everything I Needed to Learn About Legisprudence I Learned by the Time I Was Nine, Levin charts various instances of claimed violations of his Mother?s rule that ?no food may be eaten outside of the kitchen...

President: Prove Bi-Partisanship by Confirming My Nominees

Posted on October 29, 2008
While it is perhaps old news now ? I must have been under a rock somewhere ? I have only just learned of President Bush?s remarks in Cincinnati earlier this month regarding the confirmation of judges to the federal courts.Included in the President?s address was a call for votes on the nominations he has made to the federal bench ? urging this as a key test of bi-partisanship...

Panel: Schizophrenic Man with HIV a Danger to the Public

Posted on October 28, 2008
In an interesting opinion issued today, a panel of the Minnesota Court of Appeals held that a Hennepin County man could be indefinitely committed as a "person who is mentally ill and dangerous to the public," because he was schizophrenic, HIV positive and had a pattern of engaging in unprotected sex with others...

The Year?s Most Interesting Moot Court Recalls the ?Minnesota Model?

Posted on October 23, 2008
On Monday, the Georgetown Law Center, in conjunction with the Georgetown Law Supreme Court Institute, the Ohio State University Election Law Center at Moritz and the American Enterprise Institute-Brookings Institution Election Reform Project, hosted a not-so-hypothetical oral argument...

20 Large: OAH Dockets its 20,000th Case for a Hearing

Posted on October 22, 2008
Raymond R. Krause, Chief Administrative Law Judge of the Minnesota Office of Administrative Hearings (OAH) announced this afternoon that the Office had docketed its 20,000th request for a hearing in its 33-year history as an administrative tribunal.OAH currently conducts administrative hearings and rulemaking oversight proceedings for over 80 state agencies and presides over hearings for large number of political subdivisions...

100 Foot Bubble Case is a Parable on Testimony to Legislative Bodies

Posted on October 18, 2008
About two or three times a year, I am asked to speak to groups of agency officials on the topic of making effective presentations to the State Legislature. For those who still remember the days when I was in the other branch, I cheerfully do this type of training; reviewing my ?Tips for Successful Legislative Relations...

Is There More to the Non-Delegation Doctrine than Duties Judges Won?t Miss?

Posted on October 13, 2008
A panel of the Minnesota Court of Appeals issued an interesting separation-of-powers opinion last Tuesday ? and one that arose in a noteworthy context; namely, a challenge by an offender to the revocation of her court-supervised probation.Elizabeth Suzanne Bradley challenged the imposition of a 15-day jail sentence as an intermediate sanction for her violation of the conditions of her probation...

Don Draper's America

Posted on October 13, 2008
With apologies, this post is not about Administrative Law, but it just might be about ?the public sector....?Mrs. WTS and I are deeply committed fans (some might say fanatical fans) of the AMC mini-series Mad Men. In fact, we are known to growl at callers who telephone us on Sundays during the broadcast, answering the phone with a perturbed ?What?!?...

Anatomy of a "Hard Look"

Posted on October 03, 2008
In an interesting opinion issued last month, the U.S. District Court for the District of Minnesota enjoined the U.S. Forest Service from further implementing its "Echo Trail Project" in St. Louis and Lake Counties, Minnesota.The Forest Service had earlier hoped to undertake a variety of forest management activities, over a 10 to 15-year period, in a 203,000-acre zone that borders, but does not include, the Boundary Waters Canoe Area Wilderness...

Annual Rulemaking Seminar a Triumph

Posted on October 01, 2008
Today was the 13th Annual Rulemaking Seminar hosted by the Inter-Agency Rules Committee. The Committee played host to over 100 attendees ? providing both plenty of food for lunch ? and plenty of food for thought.I was delighted to be a part of the faculty this year ? particularly because the Committee made a number of innovations to this important annual program...

OAH Celebrates its One Year at the Stassen Building

Posted on September 24, 2008
Yesterday, the Minnesota Office of Administrative Hearings celebrated its first anniversary since the move to its new quarters in the State Capitol Complex.The Judges and Staff of OAH are a very hearty and rugged band; one needs to be in order to enjoy white cake and frosting at eight-thirty in the morning...

M.M. is Among SCOTUS Blog?s Cases to Watch

Posted on September 21, 2008
A week from tomorrow, on September 29, 2008, the United States Supreme Court will convene for what is known as the "long conference." At this meeting, the Justices will make decisions on which of the petitions for certiorari that have been filed during the summer recess will be granted ? placing the underlying cases on track for presentment to the Court during the Term that officially begins on the following Monday, October 6...

Constitution Day and the Early Predictions

Posted on September 17, 2008
Happy Constitution Day, everyone!We have been part of the Union, through thick and thin, for 219 years now.In my reflections today, I have been thinking about how Alexander Hamilton?s predictions in Federalist 78 have become a little dated since they were first published; and precisely why that might be so...

Does Marlowe Signal a Rebuke (and Headaches) for Washington County?

Posted on September 17, 2008
In an interesting opinion handed down yesterday from the Minnesota Court of Appeals, the appellate panel ruled that a Level II sex offender on supervised release, Brian Marlowe, could not be returned to jail following his failure, ?through no fault of his own,? to secure housing in the community...

What is a Judge to Do When Plain Meaning and Precedent Clash?

Posted on September 14, 2008
Two Fridays ago, a panel of the U.S. Court of Appeals for the Eighth Circuit handed down an interesting opinion on the recovery of attorneys fees under the Equal Access to Justice Act (EAJA).Catherine G. Ratliff, an attorney in Hot Springs, South Dakota, successfully represented two claimants in their efforts to receive benefits from the Social Security Administration...

Welcome Back Judges and Staff

Posted on September 14, 2008
Tomorrow marks the triumphal return of the Judges and Staff of the Saint Paul Division of the United States District Court for the District of Minnesota.For months court personnel have been working out of adjacent space on Fifth Street, but are now able to return to a newly renovated Warren E...

House Research Updates its Rulemaking Summaries

Posted on September 12, 2008
The Minnesota House of Representatives Research Department recently updated its summary publications on rulemaking.Individually, and in combination, these items are concise and useful overviews of our state's rulemaking process. Among the two-page summaries are Rulemaking: Process for Adopting Rules; Rulemaking: Expedited Process and Exemptions, and Rulemaking: Review of Adopted Rules (and accessible through the highlighted links)...

How Broad an Inquiry Do We Need for Court-Ordered Expungements?

Posted on September 12, 2008
In an interesting opinion handed down by the Minnesota Supreme Court last Thursday, the Court divided over the question of how broad the inquiry over the expungement of records held by other agencies needed to be.All six of the justices who participated in the decision agreed that the appellant, S...

Seizing the Moment: Investigations and Pre-Hearing Deprivations

Posted on September 07, 2008
In an opinion issued on Tuesday, a panel of the Minnesota Court of Appeals addressed a very interesting question: Does the fact that the Department of Natural Resources conducted a six-month investigation into the destruction of 19,838 pounds of buffalo fish argue for, or against, a prehearing revocation of the game and fish licenses held by the person that the Department accused of destroying the fish?The panel held, in part, that because the Licensee, Dean Mertins, had the use of his game and fish licenses while the DNR investigation into the destruction of the fish was underway, a later pre-hearing seizure of Mertins' licenses by state conservation officers comported with due process...

Latching on to Errors and Omissions in Ballots

Posted on September 06, 2008
Yesterday, a special substitute panel of the Minnesota Supreme Court issued an opinion resolving recent challenges to designating judicial officers as "incumbents" on the canary ballot.Golden Valley attorney, Jill Clark, is a candidate for Seat 4 on the Minnesota Supreme Court...

The Right Training, the Right Folks, the Right Price (Right Now)

Posted on September 04, 2008
Minnesota's Annual Rulemaking Seminar turns 13 on October 1.Today, the Seminar's sponsor, the Inter-Agency Rules Committee, announced its plans for a thirteenth autumn training conference; featuring 5.25 hours of continuing legal education programming, and a catered lunch, all for the breathtakingly low price of $20...

Dueling Claims to Plain Meaning Divide High Court

Posted on September 01, 2008
In an interesting opinion issued on Thursday, a divided Minnesota Supreme Court ruled that an enrolled member of the Minnesota Chippewa Tribe, Buddie Green, was obliged to receive employment services from her Tribe?s social service office and was not permitted to access these services, alongside non-tribal members, through Aitken County...

If You Only Read a Handful of Articles This Year ? Read These ?.

Posted on August 31, 2008
In the latest issue of the Minnesota State Bar Association?s Public Law Newsletter, published yesterday, I included a summary of some important research coming out of the University of Chicago. Relying upon a database of 4,500 Court of Appeals decisions that have been issued since 1995, Professor Cass Sunstein and his team argue that while the ideology of judges has an important effect on the outcome of decided cases, the ideology of a judge?s colleagues is a better predictor of a judge?s vote in a particular proceeding than the judge?s own views...

Election Reporting, Yes.? Although Not for the Truth of the Matter Asserted

Posted on August 21, 2008
In an interesting opinion issued late last month, a unanimous panel of the U.S. Court of Appeals for the Eighth Circuit upheld a trial court?s exclusion, as inadmissible hearsay, certain election-related reports made by the Missouri Secretary of State?s office...

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