Justia Government & Administrative Law Opinion Summaries

On August 14, 2017, Susan Franciere and her dog were attacked by another dog in Mandan. Two days later, she went to the Mandan Police Department, asserted her rights under Article I, section 25 of the North Dakota Constitution, and requested a copy of the police report on the incident under the open records law. On August 17, 2017, she called the police department and was informed the dog was undergoing a 10-day rabies quarantine. On August 18, 2017, Franciere sent a letter to the chief of police requesting the police report. On August 22, 2017, she received a phone call from a police lieutenant who told her she would not receive the report because the case was still active and no information would be released until the case was closed. In September 2017, she contacted the city attorney about the incident. In October, she filed suit in another attempt to get the records. On November 1, 2017, Franciere received a redacted version of the report. On January 13, 2018, she received an unredacted report. She appealed when her case was dismissed as moot, because Franciere eventually received the records she requested. The district court specifically declined to rule on the City’s motion to dismiss the proceedings for insufficient service of process and lack of personal jurisdiction. The North Dakota Supreme Court determined that because a determination of subject matter and personal jurisdiction had to precede any dismissal with prejudice, the court was required to resolve the motion to dismiss for insufficiency of service and lack of personal jurisdiction before dismissing the claims with prejudice on the grounds that they were moot. The judgment was vacated and the matter remanded for a ruling on the City's motion to dismiss. View "Franciere v. City of Mandan" on Justia Law

The North Dakota Department of Transportation (NDDOT) appealed a district court judgment reversing an administrative hearing officer's decision to revoke Ewer Alvarado's driving privileges for 180 days. NDDOT argued the district court erred in finding that a partial reading of the implied consent advisory rendered Alvarado's refusal to submit to a chemical test invalid. The North Dakota Supreme Court concluded North Dakota law required an operator to refuse a request "to submit to a test under section 39-20-01." A request for testing preceded by an incomplete or inaccurate advisory was not a request "to submit to a test under section 39-20-01." Therefore, the Supreme Court affirmed the district court and reinstated Alvarado's driving privileges. View "Alvarado v. N.D. Dept. of Transportation" on Justia Law

Two Tonasket voters petitioned to recall City Council member Jill Ritter from office. The petition made six allegations relating to improper influence over a police investigation of a relative’s son, improperly reviewing police personnel records, certain public statements made about Tonasket police, and conspiracy to disband the police force. The superior court determined all allegations were insufficient to warrant a recall election; finding no reversible error, the Washington Supreme Court affirmed that decision. View "In re Recall of Ritter" on Justia Law

Two Tonasket voters petitioned to recall City Council member Christia “Teagan” Levine from office. The petition alleged Levin committed five violations relating to certain city personnel actions, conspiracy to remove the City Attorney and cause the Mayor to resign as part of an illegal quorum, withholding public records, and conspiring to disband the city police force. After a hearing, the trial court dismissed all charges, finding them factually and legally insufficient to sustain further action. Finding no reversible error in that judgment, the Washington Supreme Court affirmed. View "In re Recall of Levine" on Justia Law

A recall petition was filed against the Mayor and three Cathlamet council members; charges stemmed from Cathlamet’s purchase of a parcel of property at 20 Butler street. The petition alleged a violation of the Washington Constitution as a gift of public funds to the seller of the Butler Street property, Bernadette Goodroe. One additional charge against one town counselor alleged violation of RCW 42.23.070(2), prohibiting municipal officials from giving or receiving gifts related to their official capacities. The Washington Supreme Court determined the charges in the recall petition was legally insufficient, because acquisition of real property is a fundamental government purpose and discretionary act that was not manifestly unreasonable under the circumstances of this case. Accordingly, the Supreme Court affirmed the superior court. View "In re Recall of Burnham" on Justia Law

The Black Lung Benefits Act, 30 U.S.C. 901–44, provides federal funds to individuals totally disabled by a respiratory disease commonly caused by coal mine employment. The Secretary of Labor has broad implementation authority. When a miner applies for benefits, a Labor Department “district director” investigates and issues a proposed order, from which a party may request a hearing before an administrative law judge. The ALJ holds a hearing and issues a decision. A party may appeal a “substantial question of law or fact” to the Benefits Review Board. After exhausting these steps, a party may obtain judicial review of the Board's final order.Labor Department staff (not the Secretary) had been appointing the ALJs. The Constitution’s Appointments Clause dictates that Congress may place the appointment power for “inferior Officers” only in the President, the courts, or the “Heads of Departments.” In 2017, anticipating that the Supreme Court might address the issue, the Secretary ratified the appointments of existing ALJs. Months later, the Court held (Lucia) that an SEC ALJ was an inferior officer who had been unconstitutionally appointed.A former miner and an operator unsuccessfully moved for reconsideration of adverse decisions, arguing for the first time that the Secretary had not appointed their ALJs. The Board found the arguments “waived.” The Sixth Circuit agreed. The Act requires exhaustion. Parties are normally prohibited from raising new issues at the rehearing stage. The Board had the authority to address this constitutional issue and provide effective relief; there were many cases in which it did so for parties who preserved their claims. No exception applies; the parties did not demonstrate exceptional circumstances. View "Island Creek Coal Co. v. Bryan" on Justia Law

This appeal arose from the final order of the New Mexico Public Regulation Commission (Commission) granting part, but not all, of the increase in retail electric rates sought by the Public Service Company of New Mexico (PNM). The Commission’s final order was appealed by PNM and cross-appealed by the Albuquerque Bernalillo County Water Utility Authority (ABCWUA), New Energy Economy (NEE), and the New Mexico Industrial Energy Consumers (NMIEC). On appeal, PNM, NEE, ABCWUA, and NMIEC all raised numerous issues with the Commission’s final order. In this opinion the New Mexico Supreme Court addressed challenges made to the Commission’s decisions regarding Palo Verde Nuclear Generating Station, the installation of balanced draft technology at San Juan Generating Station, the new coal supply agreement at Four Corners Power Plant, the inclusion of Rate 11B in rate banding, PNM’s prepaid pension asset, and the adoption of Method A. The Supreme Court rejected each of the arguments on appeal except one: the Court concluded that, by denying PNM any future recovery for its nuclear decommissioning costs related to the Palo Verde capacity at issue in this case, the Commission denied PNM due process of law. Therefore, the Court declared all other aspects of the Commission’s final order to be lawful and reasonable, yet annulled and vacated the final order in its entirety pursuant to NMSA 1978, Section 62-11-5 (1982). The matter was remanded to the Commission for further proceedings as required and the entry of an order consistent with the Court’s opinion. View "Public Serv. Co. of N.M. v. N.M. Pub. Regulation Comm'n" on Justia Law

A minor died in a motorized watercraft accident on a lake managed in part by a municipality: the State owned the lake but shared management authority with the City. State law at the relevant time allowed motorized watercraft on the lake as long as they did not degrade or damage the lake or its surroundings. A State land use plan also covered the lake, but the plan did not appear to regulate watercraft use. Like the State’s land use plan, the City’s comprehensive land use plan required only that the lake be managed to preserve the area’s natural features. The City did not have a separate land use plan for the lake. The minor’s mother sued, claiming that the municipality negligently failed to take measures to ensure safe operation of motorized watercraft on the lake. The municipality sought summary judgment based on discretionary function immunity, which the superior court granted. Because the superior court correctly applied the doctrine of discretionary function immunity, the Alaska Supreme Court affirmed its decision. View "Haight,v. City & Borough of Juneau" on Justia Law

Plaintiffs Startley General Contractors, Inc. ("Startley"), and Mandy Powrzanas, appealed the denial of their renewed motion to have Jefferson Circuit Court Judge Robert Vance, Jr. recuse himself from the underlying action the plaintiffs filed against the Water Works Board of the City of Birmingham ("BWWB"), Board members, Jones Utility and Contracting Co., Inc., and Richard Jones (collectively, “defendants.”). Plaintiffs alleged the defendants conspired to violate Alabama's competitive-bid law in ways that resulted in financial harm to the plaintiffs. Plaintiffs contended that Judge Vance had received monetary contributions to his 2018 campaign for Chief Justice of the Alabama Supreme Court from law firms and attorneys representing the defendants. The Alabama Supreme Court concluded the renewed motion to recuse did not fall under the auspices of section 12–24–3, Ala. Code 1975, because it was not based on campaign contributions in "the immediately preceding election." Moreover, “even if [section] 12–24–3 did apply, the plaintiffs failed to establish a rebuttable presumption for recusal because, in order to meet the required threshold, the plaintiffs: (1) included contributions from law firms and individuals who were not ‘parties,’ as that term is defined in 12–24–3(c), to the case; (2) aggregated campaign contributions from multiple parties in contravention to 12–24–3(b) addressing campaign contributions made by ‘a party to the judge or justice’; and (3) incorrectly assumed that ‘total campaign contributions raised during the election cycle’ refers to one-month totals for campaign contributions rather than the ordinary meaning of an ‘election cycle,’ which concerns a longer period.” The Court concluded plaintiffs did not establish that a single, actual "party" to this case gave a "substantial campaign contribution" that would give rise to the conclusion that "[a] reasonable person would perceive that [Judge Vance's] ability to carry out his ... judicial responsibilities with impartiality is impaired." View "Startley General Contractors, Inc. v. Water Works Board of the City of Birmingham et al." on Justia Law

The Department of Water Resources (DWR) applied to the Federal Energy Regulatory Commission (FERC or Commission) to extend its federal license to operate Oroville Dam and its facilities as a hydroelectric dam, the “Oroville Facilities Project.” A Settlement Agreement (SA)) by which the affected parties agreed to conditions for extending the license. “ DWR filed a programmatic (informational) Environmental Impact Report (EIR) as the lead agency in support of the application pursuant to the California Environmental Quality Act (CEQA). Plaintiffs challenged the sufficiency of the EIR, and the failure to consider the import of climate change, in the state courts and sought to enjoin the issuance of an extended license until their environmental claims were reviewed. The trial court denied the petition on grounds the environmental claims were speculative. In an earlier opinion the Court of Appeal held that the authority to review the EIR was preempted by the Federal Power Act (FPA), that the superior court lacked subject matter jurisdiction of the matter, and ordered that the case be dismissed. Plaintiffs petitioned for review in the Supreme Court, review was granted, and the matter was transferred back to the Court of Appeal with directions to reconsider the case in light of Friends of the Eel River v. North Coast Railroad Authority, 3 Cal.5th 677 (2017). The Court determined the Interstate Commerce Commission Termination Act (ICCTA), at issue in Eel River, was materially distinguishable from the FPA. Therefore, the Court concluded Eel River did not apply in this case. The plaintiffs could not challenge the environmental sufficiency of the program because review of that program lied with FERC and they did not seek review as required by 18 Code of Federal Regulations part 4.34(i)(6)(vii) (2003). The plaintiffs could not challenge the environmental predicate to the Certificate contained in the CEQA document because that was subject to review by FERC. The plaintiffs could not challenge the Certificate because it did not exist when this action was filed, and they could not challenge the physical changes made by the SWRCB in the Certificate until they were implemented. For these reasons the parties did not tender a federal issue over which the Court of Appeal had state CEQA jurisdiction. Accordingly, it dismissed the appeal with directions to the trial court to vacate its judgment and dismiss the action for lack of subject matter jurisdiction. View "County of Butte v. Dept. of Water Resources" on Justia Law