Franken, Coleman, the Forest and the Trees

While mindful of the very wide range of opinions that have already been expressed on the Minnesota Supreme Court's conclusion that Al Franken was elected U.S. Senator from Minnesota last fall (see, e.g., here and here), I thought that I would add a few comments of my own on Tuesday's landmark decision.

Perhaps it is the nature of those who are not involved in political campaigns to completely miss the forest for the proverbial trees, but I had a decidedly different take on the Court's decision and its significance -- different from most everyone around me. When the decision came down on Tuesday, I was not thinking about the 2008 election at all. I was thinking only of the elections that will come; the next landscape entirely.

So, quite apart from any consideration as to which candidate ended up with the election certificate (a matter that I am quite happy to leave to other commentators and other blogs), in my view, there was a good deal in the decision that Republicans, Democrats and Independents could cheer -- and cheer in unison.

No doubt imbued with the sense that everyone in the Western World would be watching the results of this case -- and nearly everyone was -- the Court rendered an opinion that is crispy written; clings closely to the questions and the record that were presented below; and provides genuinely helpful answers to the matters that were in doubt. The fact that the Court drew together as a unified Per Curiam bloc when rendering the decision, only adds to the force and utility of its written work.

Similarly helpful, the Court made clear that not every difference in election practice among Minnesota’s 4,130 precincts amounts to a denial of equal protection of the law. As the Court explained:

The unlawful administration by state officers of a state statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination.

Before Tuesday, that point was not altogether clear. To my mind, the Court’s qualifier narrows the number of likely nightmare scenarios following Bush v. Gore (and its oft-cited conclusion that the Equal Protection Clause guarantees individuals that their ballots will not be devalued by "later arbitrary and disparate treatment") to a fairly manageable number of Election Day anxiety attacks. So, election officials, you are free to put down your paper bags and begin breathing normally....

Lastly, the Court’s acquiescence to the lower court’s ruling that a post-election inspection of ballots does not extend to non-ballot materials, and its still stronger assertion that the ballots themselves may only be examined by litigants after a showing of necessity has been made, is sure to avoid some of the more mischievous kind of rummaging through election materials that candidates have enjoyed to date. Two snaps for that.

And so while the wrangling over who should sit at Desk Number 94 in the Senate Chamber will no doubt continue apace, and perhaps continue on longer than the election contest itself, I think only of the further horizon. And that looks pretty good.

The Court's complete analysis is accesssible here.

Really Clever People Get Free CLE

At its annual meeting last week, the Minnesota State Bar Association’s Administrative Law Section announced a program under which it is trading good ideas for complimentary admission to an upcoming Continuing Legal Education program sponsored by the Section.

If your idea for a CLE program on administrative law is chosen by the Section Council, you and a colleague will receive complimentary admission to that CLE.

So send in your ideas for a CLE program. Someone as clever as you shouldn’t have to pay for CLE credits.

Does Caperton Invite More or Less Danger for Judges in Retention Elections?

In the run-up to their fundraising benefit scheduled for next week, supporters of retention elections for state court judges here in Minnesota have hailed the recent U.S. Supreme Court decision in Caperton v. A.T. Massey Coal Company Co.

As readers of these pages are aware, earlier this month a divided U.S. Supreme Court held that some independent expenditures in judicial campaigns are so large and influential that the candidate-judges who benefit from these expenditures are obliged by the Due Process Clause to later recuse themselves from cases involving the donors who had “significant and disproportionate” influence.

One presumes that the supporters of retention elections in Minnesota’s regard the decision in Caperton as affirming their view that independent expenditures can have a distorting influence on the administration of justice – indeed an impact that is of constitutional significance.

This may be true, but it occurred to me that the Caperton case also includes the seeds of future difficulty for supporters of retention elections.

As the four dissenting Justices in Caperton point out, calibrating when a donor’s influence becomes “significant and disproportionate” such that when “coupled with the temporal relationship between the election and the pending case offer a possible temptation to the average judge,” is neither a simple nor straight-forward task. Reasonable people will disagree as to when that line is crossed, and, the dissenters argue, this uncertainty will result in a proliferation of claims that candidate-judges who benefitted from independent expenditures during a campaign must later recuse themselves.

Moreover, it occurred to me that the “significant and disproportionate” voices in retention election campaigns will most often be those undertaking independent expenditures – there being no candidate-challengers with that form of election. In a smaller, compressed field, the outside voices may, in fact, seem louder and more influential. And if that is true, aren’t judges who seek retention in office more vulnerable to later claims that they are “in the pocket” of those who spoke widely on their behalf? Likewise, isn’t the danger heightened when there is no other judicial candidate with whom one could compare one’s campaign? For these reasons, I think that the holding in Caperton represents more of a mixed blessing than a boon to supporters of retention elections here at home.

The High Court’s complete analysis, and the critiques of the dissenting Justices, is accessible here.

“Released from Confinement”: What it Means for Offenders, Agencies and You

In an interesting set of opinions issued on June 9, the Minnesota Court of Appeals turned away dual challenges to the risk level assessments imposed by the Department of Corrections’ End of Confinement Review Committee. As readers of these pages are aware, Minnesota law obliges the Department to assign a risk level to predatory offenders upon their “release from confinement.” The two opinions address challenges to the timing of the Committee's determinations.

In Risk Level Determination of M.D., the offender challenged the assignment of a risk level at the conclusion of his Minnesota prison term, because, due to an unrelated offense, he was immediately transferred to the state prison system in Wisconsin. As the M.D. argued, there was not a single moment that he was free from confinement, such that the DOC risk level assignment was premature. Disagreeing, the Court of Appeals held that notwithstanding the fact that undertaking community notification as to M.D. would not be particularly meaningful or eventful, “the letter of the law shall not be disregarded under the pretext of pursuing the spirit.” As the panel concluded, the release from confinement in Minnesota made the timing of the risk level determination appropriate.

Similarly, in the Risk Level Determination of D.W., the appellant challenging the risk level determination was a patient who had been earlier indefinitely committed for treatment in the Minnesota Sex Offender Program. Designated as a Sexually Dangerous Person in 1992, D.W, was making process in the treatment program toward eventual re-integration into the community. At each stage of the multi-stage treatment process, the Department of Human Services, in conjunction with the Department of Corrections, convenes an End of Confinement Review Committee for the purpose of rendering a risk level determination. The patient argued that even if he obtained privileges to walk the grounds of the St. Peter Regional Treatment Center, he would still be indefinitely committed to the program and therefore not “released from confinement.” The End of Confinement Review Committee countered that “released from confinement” under Minn. Stat. § 244.052 equals any opportunity that the patient is “permitted to leave the facility and have contact with the community.” The appellate panel held that where the words of the statute permitted either construction of the statute, it would defer to the agency’s interpretation of the law that it administered – particularly where that interpretation was “consistent with the community-protection purpose of section 244.052.”

To my mind, the significance of these decisions is that they recognize a range of policy objectives beyond community notification that are served by the risk assessment statutes. Indeed, tellingly, the panel in D.W. characterized the purposes of the law as “community protection” – a term that presumably includes, but is not limited to, community notification programs. The panels also recognize the accuracy, detail and completeness of agency records on particular offenders as important purposes fulfilled by the statute.

The complete analyses of the appellate panels are accessible here and here.

Beck Internship Turns $4,000 into $16,000 for Indigent Clients

On Wednesday of this past week, the MSBA Administrative Law and Health Law Sections' commemorated their joint underwriting of a summer internship program in Administrative Law with the Volunteer Lawyers Network. The Sections' $4,000 contribution will, in combination with federal Work-Study matching grants, translate into $16,000 worth of stipend resources for VLN as it assists indigent clients with administrative law matters. The internship is named for Administrative Law Judge George A. Beck, who recently retired from the Minnesota Office of Administrative Hearings after 29 years of service.

The presentment ceremony was made at the MSBA Administrative Law Section's Annual Meeting.

The first of the internship participants is Danielle ("Dani") Sollars, a third-year law student at the William Mitchell College of Law. Ms. Sollars, a Montana native, is a graduate of the University of Saint Thomas and has earlier worked in advocacy roles with the Legal Aid Society of Minneapolis, Minnesota Children’s Law Center and the Minnesota Advocates for Human Rights.

Photos from this year's Administrative Law Section's Annual Meeting are accessible here.

Also, a video of the presentment remarks (which requires listeners to turn up the volume on their speakers in order to hear the remarks clearly) is accessible here.

The AGO's Annual CLE Seminar and the Oral Argument Everyone is Talking About

I had a great time at the annual all-day CLE seminar hosted by the Minnesota Attorney General's Office, held this past Friday. The program was entitled “Anatomy of a Contest Case” and explored elements of effective administrative law practice from various different perspectives. The program drew about 200 lawyers, from government and the private sector, to the University of St. Thomas’ O'Shaughnessy Educational Center.

Judges Heydinger, Cervantes and I had about 45 minutes to share our suggestions on effective trial practice. Our panel was entitled: “The Facts: The ALJ’s Perspective.”

Hopefully, we were a “value-add.”

Among the most interesting features of the conference to me was that presenters in three of the eight panels that day made reference to the case of In the Matter of the Denial of Certification of the Variance Granted to Robert W. Hubbard by the City of Lakeland – a matter that will proceed to oral argument before the Minnesota Supreme Court this coming Wednesday.

In that case, the City of Lakeland granted Robert Hubbard a bluffline setback variance for Hubbard’s home on the shore of the St. Croix River. Exercising powers under Minnesota’s Lower St. Croix Wild and Scenic River Act, the Department of Natural Resources issued a notice of non-approval of the variance. Under the Act, the DNR has review powers over local variances that are granted with the St. Croix River Shoreland Management District.

Hubbard and Lakeland demanded a contested case hearing under the Administrative Procedures Act. The administrative law judge recommended that the Commissioner of the Department of Natural Resources affirm the denial of the variance. On September 18, 2007, the Commissioner issued an order affirming the denial of the variance. The City of Lakeland and Hubbard appealed to the Minnesota Court of Appeals, which reversed the decision of the Commissioner. As the appellate panel reasoned, Mr. Hubbard'd requested variance was automatically approved because the Commissioner did not issue his final decision within 60 days of the close of the record in the contested case hearing.

Among the issues upon which the Minnesota Supreme Court granted review is the question of whether the 60-day time period for government approvals “relating to zoning,” applies in this case, or the 90-day time period for issuance of such decisions under the Administrative Procedures Act.

As one of the panelists from the CLE on Friday exclaimed – knowing exactly what breed of lawyers had assembled in the auditorium – “whether the APA or section 15.99 applies in such cases is something you could talk about for hours!!!....”

Well, the lawyers in the case on Wednesday won’t nearly have that long to talk. The oral argument in Hubbard begins at 9:00 a.m. this Wednesday (June 10) in Courtroom 300 of the Minnesota Judicial Center (or you can see it replayed on the internet from this link here, shortly thereafter).

Some Thoughts on the Sotomayor Nomination – Part I

On Thursday of this week, the U.S. Senate’s Committee on the Judiciary posted to the internet Judge Sonia Sotomayor’s replies to the Committee’s background questionnaire. Submission of the questionnaire replies is an important early step as Judge Sotomayor seeks confirmation to become the next Associate Justice of the Supreme Court of the United States.

Two items leaped out to me from the Judge’s detailed replies. The first is that Judge Sotomayor, like all of her would-be colleagues on the High Court, has never been a candidate for elective office. Since Justice Sandra Day O’Connor retired in July of 2005, the High Court has been without a Justice who has ever appeared on a ballot – the first time that this was true in the Court’s long history. And, if Judge Sotomayor is confirmed, this particular trend will continue for a while longer.

The second, more subtle point is that it would probably be very difficult for someone who had a significant tenure in elective office to respond fully to the questionnaire now used by the Judiciary Committee. Imagine the herculean staff effort that would be needed to respond to the Committee’s questions if Governor Christine Gregoire (of Washington), Governor Jennifer Granholm (of Michigan) or Governor Deval Patrick (of Massachusetts) was nominated to the post – any of whom was a genuine possibility last month. Among the Committee’s requests are:

12 (a): List the titles, publishers, and dates of books, articles, reports, letters to the editor, editorial pieces, or other published material you have written or edited, including material Published only on the Internet. Supply four (4) copies of all published material to the Committee.

....

12 (d): Supply four (4) copies, transcripts, or recordings of all speeches or talks delivered by you, including commencement speeches, remarks, lectures, panel discussions, conferences, political speeches, and question-and-answer sessions. Include the date and place where they were delivered and readily available press reports about the speech or talk. If you do not have a copy of the speech or a transcript or recording of your remarks, give the name and address of the group before whom the speech was given, the date of the speech, and a summary of its subject matter. If you did not speak from a prepared text, furnish a copy of any outline or notes from which you spoke.

12 (e): List all interviews you have given to newspapers, magazines, or other publications, or radio or television stations, providing the dates of these interviews and four (4) copies of the clips or transcripts of these interviews where they are available to you.

12 (f): If, in connection with any public office you have held (see 15a), there were any reports, memoranda, or policy statements prepared or produced with your participation, supply four (4) copies of these materials. Also provide four (4) copies of any resolutions, motions, legislation, nominations, or other matters on which you voted as an elected official, the corresponding votes and minutes, as well as any speeches or statements you made with regard to policy decisions or positions taken. “Participation” includes, but is not limited to, membership in any subcommittee, working group, or other such group, which produced a report, memorandum, or policy statement, even where you did not contribute to it. If any of these materials are not available to you, please give the name of the document, the date of the document, a summary of its subject matter, and where it can be found.

In such a case, would a tractor-trailer stuffed full of bankers boxes be required?

Judge Sotomayor’s more modest set of replies are accessible here and here.

Some Thoughts on the Sotomayor Nomination – Part II

While the story has already been covered in great detail by the Washington Examiner and the Washington Post, to my mind the most interesting feature of the run-up to the confirmation hearings for Circuit Judge Sonia Sotomayor to be an Associate Justice of the U.S. Supreme Court, is the role of the new GOP-lead of the Judiciary Committee, Jeff Sessions (R-Alabama).

Not since the story of Joseph in Genesis, has there been such a dramatic and ironic turn in fortune. Sessions, who 23 years ago had his own appointment to the federal bench derailed by charges that he had made racist statements (a claim he vigorously denied then, as he does today), will lead Republican inquiries into the fitness of Judge Sonia Sotomayor, who herself has been charged by critics as making racially insensitive remarks. The turnabout for Sessions did not happen overnight. Ten years after Sessions lost his bid to be a federal district court judge, the first of President Reagan’s nominees to be turned away by the Senate, he won the U.S. Senate seat of a man who voted against his confirmation – Howell Heflin. Last month, Sessions replaced as GOP-lead on the Judiciary Committee another Senator who voted against his confirmation – Arlen Specter of Pennsylvania. (Senator Specter has since said that he regretted that vote.)

And Senator Sessions, perhaps not unlike Joseph of the Bible story, has been far more gracious in power than others were to him. He’s publicly urged fellow conservatives not to label Judge Sotomayor a racist, remarking: “You know, that's such a loaded word, and I don't think it's appropriate to use it in this context.” He would know.

Now, if only the nation could have seven years of plenty….

Take Homes from The Big Easy

As noted in an earlier post, I had spent much of the last few months preparing for a presentation that I was scheduled to give at the American Bar Association Public Contract Law Section’s 4th Annual State and Local Procurement Symposium. (That post, and a copy of the paper I presented, are accessible here).

The focus of this year’s conference was the regulatory and compliance struggles that are associated with public contracting before, during and after a disaster strikes.

It was a joy to be a part of the faculty for this event and to be in New Orleans – a city that is still working on its recovery from recent Hurricanes – for the very fast-paced and jammed-packed set of panels.

Without a doubt, a key theme that ran throughout the sessions was the value of advance planning – and better still, to have mature contracting and documentation systems in place that anticipate the very type of disasters that are likely to strike. This is because the federal regulatory structures on relief, recovery and reimbursement are so complex – and in many respects, inappropriate to the exigencies – that human suffering will be magnified greatly, and enormous financial losses for localities will follow, if the needed systems are not developed in advance.

Several of the speakers, with more than a little pathos, noted that even following the specific purchasing directions of federal officials will not prevent other or more superior officials of the Department of Homeland Security from later disallowing reimbursement applications from local governments.

The take-home advice from the experts was clear: Every state should have employees that speak “FEMA-ese;” the special dialect of the Federal Emergency Management Agency. Not having several folks who are fluent in this special tongue can be enormously costly, and increase the time and local resources that are needed to recover after a disaster has struck.

Federalism and the Predatory Offender

In a remarkably interesting opinion issued on Wednesday of this week, the U.S. Court of Appeals for the Eighth Circuit reversed a lower court’s decision that had declared the civil commitment portions of the Adam Walsh Act unconstitutional. Last May, then-Chief Judge of the U.S. District Court for the District of Minnesota, Paul Magnuson, concluded that the civil commitment provisions of the Act exceeded Congress’ powers under the Commerce Clause.

Disagreeing, the appellate panel concluded that it was appropriate for federal authorities in Minnesota to indefinitely detain Roger Dean Tom for treatment, at a time that Tom was otherwise eligible for supervised release from prison. The panel concluded that:

[I]t is not unreasonable to assume that upon completion of any prison term convicted sex offenders will travel outside of the state of incarceration, and may well have the intent to commit a federally prescribed sexual offense. As we have already explained, Congress is empowered to regulate the channels of interstate commerce and people or things in interstate commerce to prevent their use for immoral and illegal purposes. [The civil commitment provision of the Adam Walsh Act] appears to be "aimed at preventing the specific harm to the community proscribed by the [federal sex crime] statutes.”

To my mind, the panel decision raises three interesting and noteworthy questions.

First, will either an en banc panel of the Eighth Circuit or the U.S. Supreme Court take an interest in this topic? In upholding the civil commitment provisions, the deciding panel sets up a potential circuit conflict with the U.S. Court of Appeals for the Fourth Circuit. In February of last year, in a case denominated as United States v. Comstock, a panel of the Fourth Circuit ruled that the civil commitment portions of the Adam Walsh Act do “indeed lie beyond the scope of Congress’s authority. The Constitution does not empower the federal government to confine a person solely because of asserted ‘sexual dangerousness’ when the Government need not allege (let alone prove) that this ‘dangerousness’ violates any federal law.”

Second, if the Eighth Circuit panel is correct, and involuntary sequestering an offender for treatment is permissible so as to guard against the danger that he or she may use interstate mail, highways, or telephone service as part of the commission of a future crime; what would be the outer reaches of Congressional power in this area? Would it be the Third Amendment – namely, that Congress could not oblige federal agents to be housed with convicted sex offenders who are under supervised release – but everything else would be permissible?

Lastly, a large – even a helpful – federal role in the treatment and detention of violent offenders begs the question of whether the approaches developed by agencies in Washington, D.C. are the best and the most effective. In my view, perhaps in a Lake Wobegon sort-of way, Minnesota’s sex offender treatment and supervision practices seem “above average;” and Congress' prescriptions in this area seem more like lowest-common-denominators amongst the states than “best practices.” I doubt whether Congress is likely to improve upon Minnesota's methods and results.

The appellate panel’s complete analysis in United States v. Tom is accessible here.

Note: In a parallel decision, also issued on Wednesday, the Eighth Circuit turned away the commerce clause, APA and non-delegation doctrine challenges of a Nebraska offender to the registration requirements Adam Walsh Act. While the challenges to the registration provisions were less in doubt than the challenges to civil commitment provisions, the panel's decision in United States v. Hacker, is accessible here.

Looking for Law in All the Wrong Places

I was vacationing in Israel when the U.S. Supreme Court handed down its decision in Federal Communications Commission v. Fox Television Stations, Inc. And while details as to the holding and rationale announced by the High Court were a bit sketchy in news accounts at that time – even from the plaintiff Fox Television – since my return to the U.S., I have a chance to spend some time with the opinion.

The Court's opinion is a worthwhile read for administrative lawyers of all stripes – and not merely for those attorneys who advise broadcasters (or use “fleeting expletives”) as part of their day jobs.

Yet, there is a catch. The administrative law question presented to the Court was fairly straight-forward: Namely, had the Federal Communication Commission adequately explained and justified its pronouncement of a stricter, and less-forgiving policy, on the airing of “fleeting expletives” during network television broadcasts? Five justices of the Court concluded that the FCC had done so. In the view of the Court majority, when jettisoning the older, more flexible policy on the use of objectionable language during telecasts, the FCC reasonably concluded that “a safe harbor for single words would ‘likely lead to more widespread use of the offensive language ….’”

For me, the far-more interesting set of readings were the opinions as to which no other Justice subscribed. In Part III-E of Justice Scalia’s majority opinion, from which the other justices in the majority retreated (most likely because of its sharp and brusque treatment of the dissenting Justices), Scalia holds forth on the “increased subservience” of independent agencies to Congressional direction, the level of scrutiny to be rendered by the federal courts as to brand new regulatory approaches, and the differences between notice-and-comment rulemaking and a review of agency adjudicatory decisions. As a former Chairman of the Administrative Conference of the United States, and a former editor of Regulation Magazine, Justice Scalia is simply without a match at the Court on matters of administrative law.

Likewise interesting were the lone concurrences of Justices Thomas and Kennedy. Justice Thomas, noting the changes that have occurred in media, broadcasting and information technology during the past 40 years, expressed doubt over the FCC's assertion of authority to regulate broadcast programming in ways that are different from transmission of the very same content on cable systems, the internet or in print. Concludes Thomas: “I am open to reconsideration of Red Lion and Pacifica in the proper case.”

For his part, Justice Kennedy urges a continued program of very “searching and careful review by the courts” of federal agency actions under the Administrative Procedures Act – seemingly, because of the dangers that are invited by Congressional delegations of decision-making authority to these agencies. Writes Justice Kennedy: “The dynamics of the three branches of Government are well understood as a general matter. But the role and position of the agency, and the exact locus of its powers, present questions that are delicate, subtle, and complex. The Federal Government could not perform its duties in a responsible and effective way without administrative agencies. Yet the amorphous character of the administrative agency in the constitutional system escapes simple explanation.”

So, if an opinion that explores both the fault lines at the High Court on separation of powers issues and some important contemporary debates in administrative law, is of interest to you, the opinion in Fox Television Stations is a very worthwhile read.

Just remember that the really good stuff is in all of the wrong places.

The Court’s complete analysis is accessible here.

Gabba Gabba Hey: Is the Decision "In Re Gabby’s" a Big Deal or Not a Big Deal?

On Tuesday of this week, the Minnesota Court of Appeals issued a published decision which has had me thinking.

At issue in the case was the propriety of the City of Minneapolis’ imposition of licensing conditions on the liquor license held by Gabby’s Saloon and Eatery in Northeast Minneapolis. Finding that Gabby’s patrons acted boisterously and unlawfully following their exiting of the premises, the City imposed a series of strict licensing conditions on the operation of the saloon. The conditions were imposed despite a lack of evidence that Gabby’s personnel had violated state or local liquor control laws or that Gabby’s had “encouraged or tolerated illegal conduct.”

Reversing, the appellate panel held that the Minneapolis licensing ordinance neither permitted the imposition of conditions – short of revoking or suspending the license outright – nor did it put licensees on notice that the conduct of patrons outside of the licensed premises could result in adverse regulatory action.

Because Minneapolis had not formally claimed the power to impose conditions on such licenses, by ordinance, and “the power to impose conditions on a liquor license is not a ‘lesser’ subsidiary power within the authority to grant or revoke a liquor license,” the panel concluded that the particular licensing conditions could not stand.

What has had me thinking is whether the defects in the ordinance pointed out by the appellate panel are widespread in Minnesota – involving dozens or hundreds of local liquor ordinances – or rather a shortcoming only in Minneapolis’ regulatory regime? Is this case a really big deal or not so much?

The Saint Paul Legislative Code, for example, appears to place licensees on notice that conditions short of suspension or revocation may be placed on their licenses. It reads in part:

When a reasonable basis is found to impose reasonable conditions and/or restrictions upon a license issued or held under these chapters, any one (1) or more such reasonable conditions and/or restrictions may be imposed upon such license for the purpose of promoting public health, safety and welfare, of advancing the public peace and the elimination of conditions or actions that constitute a nuisance or a detriment to the peaceful enjoyment of urban life, or promoting security and safety in nearby neighborhoods.

A similarly important question is how the localities that have defects in their licensing ordinances can rebuild their regulatory machinery. Even assuming that new, and more specific ordinances can be enacted in short order, can a municipality impose enforceable conditions before the license comes up for renewal? Are all regulatory bets off until then? And if this is true, will the practice of automatically renewing licenses upon the payment of the appropriate fee be suspended, as local licensing agencies stop to impose specific conditions before renewing any liquor or restaurant licenses?

The panel’s complete analysis – which I have taken to reading and re-reading at my local saloon while humming to myself – is accessible here.

Mankato Diary, Our Federal Bargain and Some Heretical Ideas

I have had the good fortune to spend the last two days with some of the state’s brightest and most dedicated professionals. Yesterday and today, the Minnesota State University at Mankato has hosted the Third Annual Midwest Regional Special Education Law Conference.

The raison d’être of the Annual Conference is to provide learning and best-practice sharing opportunities for those who are administering our state's special education programs. The conference follows from the premise that understanding the interlocking mechanisms of the Individuals with Disabilities Education Act (known as "IDEA"), and the Act’s accompanying regulations, is an enormous task.

Under current U.S. Supreme Court case law, IDEA is regarded as a “contract” between the federal government and the enrolling states – under which a set of “federally imposed conditions” are accepted “voluntarily and knowingly” by the state recipients of federal special education funds.

Noting also that the federal sovereign is only now covering 20 percent of the costs associated with Minnesota’s delivery of special education services under the Act, the government manager in me wondered: When it comes to delivering special education services, how much is the “complexity premium”?

Would we, for example, actually deliver more resources to disabled students in Minnesota if we: (a) refused federal IDEA funds; (b) made the same state appropriations that we are making today in favor of special education services; and (c) operated under a much simpler set of state rules? Do the costs associated with implementing, training on, reporting under and litigating provisions of the federal statute and regulations exceed the amounts that Minnesota school districts receive from the federal sovereign for the overall costs of special education programs?

Another side benefit “opting out” of the special education “contract, in favor of a set of simpler state special education rules, presumably would be that local school districts would be closer to the source of regulatory guidance. I would wager that the Minnesota Department of Education has a better record of responding to inquiries from local school districts on the meaning of applicable regulations, than, say, the Office of Special Education Programs in Washington, D.C.

Thus, it would be interesting to know: Could Minnesota deliver more and better special education services, with the same money, by going it alone? (Even raising such a question suggests some of the Byzantine complexities that are associated with the federal requirements.)

My very informal survey of state regulators at the Conference cast doubt on such a heretical idea; but raised a still more interesting question. While it was agreed that there is a “complexity premium” associated with the Act, the costs of this federal complexity are guessed to be smaller than the 20 percent of the state’s special education costs now underwritten by the federal government. Thus, it is calculated that refusing federal funds would actually do more harm than good to local special education programs.

Accordingly, it is likewise predicted that the current system will remain in place, even after next year’s reauthorization of the Act, so long as the federal government transmits more money than is expended by the states to administer the federal Act -- the federal government has never covered Minnesota’s costs of complying with the Act. And in this way, stave off such heretical ideas....

Thanks for Being Patient

I am scheduled to make a presentation at the American Bar Association's 4th Annual State and Local Procurement Symposium in May, and, as noted immediately below, suspended my blogging for a few weeks so that I could complete the article requested by the symposium organizers.

What I addressed in the article is a set of recent upgrades to federal procurement rules that oblige mid-size and large federal contractors to have robust ethics compliance systems. In the monograph, I describe: (1) how the federal government is using the new ethics rules to manage growing portfolios of contract risk; (2) how applying the new ethics regimens to state and local contractors will likely be the next frontier for government regulators; and (3) how contractors of all sizes can begin to think through some of the difficult issues prompted by these new rules.

While the article is fairly lengthy (certainly by blog post standards), I would be grateful for any feedback that the readers of these pages had for me on this piece; which is accessible here.

And thanks for sticking with me….

With Apologies, Gone Writin'

With apologies to WTS readers for the long gap between posts - particularly because that gap will grow a little wider still.

I have been spending nights and weekends penning a longer monograph (around 10,000 words) on contractor ethics; and it has been a larger undertaking than I first imagined.

I promise to be back as soon as I can - and I hope to see you here on these pages. Please tune in again soon.

For Wersal’s Challenges to the Code of Judicial Conduct, Tomorrow is Another Day

I only recently received a copy of the Memorandum Opinion and Order issued by Judge Ann H. Montgomery, of the U.S. District Court for the District of Minnesota, in Wersal v. Sexton.

As readers of these pages will recall, in March of last year, Golden Valley attorney and sometime candidate for election to the Minnesota Supreme Court, Gregory F. Wersal, filed a civil rights suit challenging the provisions of the Minnesota Code of Judicial Conduct. Wersal’s 2008 suit follows on from his earlier role as a key plaintiff in the landmark case of Republican Party of Minnesota v. White. In the various decisions in that case, the federal courts struck down as violating the First Amendment several state restrictions on the speech and campaign practices of judicial candidates. (And awarded his lawyers the fees that they earned in the case.)

Wersal’s 2008 suit challenges ethical rules that prohibit candidates for judicial office from either endorsing candidates for other elective office or soliciting campaign contributions from individual donors. In affidavits submitted to the District Court, Wersal averred that he would like to seek election to the Minnesota Supreme Court, and announce his electoral support for the election of Tim Tingelstad (to judicial office) and Michele Bachmann (to the U.S. Congress), during his candidacy.

Judge Montgomery began her analysis of the restrictions upon Wersal’s proposed endorsements, by quoting the discussion of “compelling government interests” by the U.S. Court of Appeals for the Eighth Circuit in White II:

A clear indicator of the degree to which an interest is “compelling” is the tightness of the fit between the regulation and the purported interest: where the regulation fails to address significant influences that impact the purported interest, it usually flushes out the fact that the interest does not rise to the level of being “compelling.” If an interest is compelling enough to justify abridging core constitutional rights, a state will enact regulations that substantially protect that interest from similarly significant threats.

….

The court … considered whether the partisan-activities clause was narrowly tailored to address this interest. It found that to the extent that the clause sought “to keep judges from aligning with particular views on issues by keeping them from aligning with a particular political party, the clause is . . . ‘barely tailored’ to affect any interest in impartiality toward [litigants]….” [I]n cases where a political party is a litigant, the court found that “recusal is the least restrictive means of accomplishing the state’s interest in impartiality articulated as a lack of bias for or against parties to the case.” Id. Similarly, recusal is the best way of serving the interest of protecting the appearance of bias in such situations. Therefore, the court found the partisan-activities clause unconstitutional.

Applying these standards, Judge Montgomery upheld the endorsement restriction of the Code because “a legitimate impartiality concern is created when [Wersal] endorses a candidate who may come before him in a judicial capacity.”

With all due modesty, to my mind, that conclusion seems particularly vulnerable to attack on appeal. If, as the Eighth Circuit reasoned in White II, recusal is a sufficient cure for the rare occasion in which a political party that endorsed a judge, later appears before the same judge as a litigant; surely, recusal is sufficient remedy for the even more remote possibilities that a Member of Congress (in the case of Wersal’s proposed endorsement of Michele Bachmann) or a fellow Supreme Court Justice (if Tim Tingelstad were successful) are to appear before the judge as litigants.

Now it may well be, as Judge Montgomery forcefully points out, that judicial candidate endorsements of candidates for County Attorney or Sheriff may present problems for which later (and very frequent) recusals are simply not sufficient. Yet, it bears mentioning that this is not Wersal’s claim – he wants to endorse folks who are not at all likely to be litigants. Moreover, sustaining a broad ban on endorsements on those grounds seems to flip the traditional First Amendment analysis: To avoid unconstitutional over-breadth, a speech-curtailing regulation must be “narrowly-tailored” to meet compelling needs; not merely be appropriate in some other circumstances.

Perhaps more ominous still, as I noted here, a divided Minnesota Supreme Court recently approved amendments to the Code of Judicial Conduct that authorize state court judges to solicit and receive campaign contributions from fellow judges; provided that the judge who makes the solicitation “does not exercise supervisory or appellate authority” over the would-be donor judges. Thus, after July 1, one could imagine the Board of Judicial Standards being obliged to argue that it is wholly proper for Supreme Court candidate Gregory Wersal to give a $200 check to Supreme Court candidate Tim Tingelstad’s campaign committee (and presumably, for Tingelstad’s committee to publicize this fact widely to others in fundraising mailings), but that Wersal should be subject to sanctions if he publicly urges Tingelstad’s victory on Election Day.

While I am not a betting man, I think that such a scenario is a Twister-like tangle that the U.S. Court of Appeals for Eighth Circuit is unlikely to indulge. And reflecting that tomorrow is another day, I shudder over the possibility of a new $1,619,129.06 attorney fee petition.

Courtesy of Minnesota Lawyer, Judge Montgomery’s complete analysis is accessible here.

Our Ratings Wars: Court Puts Advisory Committee to Work on Courtroom Camera Pilot Project

Today, a divided Minnesota Supreme Court directed the Advisory Committee on the General Rules of Practice to “recommend draft rules establishing a pilot project on cameras in the court that includes … effective mechanisms for measuring the impact of: cameras on the proceedings and on the participants before, during and after the proceedings, and the financial impact of both the pilot project and study, and the ongoing administration of cameras in the courtroom ….”

Associate Justice Alan Page dissented from the Court’s charge to the Advisory Committee, arguing that the “right to due process and a fair trial before an impartial tribunal militate against expanding the use of cameras in our trial courts.” “An issue raised but not fully considered by the advisory committee,” continued Justice Page, “was the impact that the expanded use of cameras in our trial courts would have on people of color who use our judicial system.... [T]he expanded use of cameras will do nothing to assist in the elimination of racial bias from our judicial system and will, in fact, exacerbate the problem."

In my own view, the public would learn more, the overall level of practice would be improved, and Justice Page's critique would be met (for a time, anyway), if the Court made dissemination of audio or video recordings of Court of Appeals arguments a higher priority than electronic access to District Court proceedings. And while there is a genuine concern as to whether there is an actual demand for these materials (other than by me, of course); that issue, it seems, is apart from whether us viewers would be better off. I think that we would be. As successful as the Supreme Court’s collaboration with Twin Cities Public Television has been (see here), extending webcam coverage to other courtrooms in the Judicial Center would be a real advance. We'd learn a lot.

Yet, because Boston Legal has a far broader audience than America and the Courts, the Court was obliged to tackle the thorny issue it was presented. The Justices' analyses, and the accompanying Order, are accessible here.

Session Update: Bills for Administrative Lawyers to Note (and Watch)

HF 347 (Lenczewski) Repeals the Mandatory Retirement Age for Administrative Law Judges.

HF 385 / SF 215 (Anderson, B. / Koch and Dille) would establish a Board of Oversight of Human Services Appeals to review “challenges by aggrieved parties to the commissioner's final orders from fair hearings and contested case hearings under chapter 245, 245A, 245B, 245C, 252, 253B, 256, 256B, 256C, 256D, 256J, 256L, 257, or 626 ….”

SF 532 (Rest, Lourey and Robling) would authorize enrolling for, and receipt of, agency rulemaking notices by electronic mail.

SF 563 (Moua, Betzold, Higgins and Olson) would authorize alternate methods of receiving child testimony in a "trial or hearing before a court or state agency having judicial or quasi-judicial powers, other than a criminal proceeding."

SF 574 (Dahle) provides that the Minnesota Public Utilities Commission could “require the public utility to refund to its customers, in a manner approved by the commission, any revenues the commission finds were collected as a result of the unlawful conduct."

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

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. I had the chance to catch up with some professors – Michael Abramowicz and Thomas Colby – who are teaching at my alma mater. Abramowicz and Colby are leading lights in the faculty of the George Washington University’s National Law Center and had just posted their latest article to the Social Science Research Network.

In their article, Notice-and-Comment Judicial Decisionmaking (accessible here), Abramowicz and Colby argue that the notice and comment processes of administrative rulemaking might be useful in warding off error by state and federal courts. Noting that judicial opinions often contain errors that have far-ranging and untoward consequences, Abramowicz and Colby contend that if interested persons had an opportunity to preview yet-to-be finalized judicial opinions, commentators could assist the courts in avoiding error. As it is with administrative rulemaking, the professors explain, notice and comment procedures could improve the work product of, and public’s confidence in, our courts.

In keeping with their theme, Professors Abramowicz and Colby also suggested that I submit my reactions to their proposals for “notice and comment” by others. I decided that I would write about the professors’ work, and my own reactions to it, in these pages here. Whether you love or hate their suggestions, Abramowicz and Colby’s article presents ideas that every Public Lawyer should think about closely.

(The remainder of this essay is continued here.)

Board Urges Refusal of Money and Requirements of Adam Walsh Act

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."

Urging the California State Legislature and Governor Schwarzenegger to elect not to come into compliance with the federal Act, the Board argued:

Instead of incurring the substantial - and un-reimbursed - costs associated with the Adam Walsh Act, California should absorb the comparatively small loss of federal funds that would result from not accepting the very costly and ill-advised changes to state law and policy required by the Act. Any funding cuts to the JAG / Byrne grants to local law enforcement should be offset with other funds to ensure that the vital public safety work of those programs is continued.

As the Board reasoned, in addition to "particularly problematic” policy choices made by the Act, the potential loss of $1.2 million in federal funds compared poorly with a "minimum" of $32 million in costs that would be incurred by California in order to obtain compliance with the new law.

The Board's complete statement is accessible here.

Here in Minnesota, a joint meeting of the Senate Committee on Judiciary and the House Committee on Public Safety Policy and Oversight will be held next Thursday to consider terms and requirements of the Adam Walsh Act.