Justia Government & Administrative Law Opinion Summaries

Grievant Edward von Turkovich appealed a Vermont Labor Relations Board decision denying his motion to enlarge the time for him to file a notice of appeal. Grievant filed an employment grievance with the Board in January 2017. Grievant’s employer filed an answer and a motion to dismiss the next month. Grievant filed a memorandum in opposition to the motion to dismiss in late March 2017. On the same day, the attorney representing grievant (attorney) moved offices. Prior to the move, attorney’s law firm notified the United States Postal Service (USPS) that it should forward the firm’s mail to the new address, but attorney did not update the firm’s address with the Board, as required by Board rule. On June 13, 2017, the Board dismissed the grievance. That same day, the Board mailed the order dismissing the grievance to the address attorney had provided, which was attorney’s former address. The Board’s envelope read “return service requested,” which led the USPS to return the order to the Board rather than forwarding it to attorney. The USPS took thirty-four days to do so, returning the mail on July 17, 2017. It is unknown what caused the delay in returning the mail. When returning the mail, the USPS provided the Board with attorney’s forwarding address. The Board mailed the order to attorney a second time on July 18, 2017, this time to the current address, as provided by the USPS, and attorney received it on July 20, 2017. The Board also posted the decision on its website three days after it issued the order. The Board denied the request, concluding there was no showing of excusable neglect or good cause, and therefore there was no basis to permit an extension of time. Attorney conceded he made a mistake and could not show good cause. Therefore, the only issue on appeal was whether the Board erred in finding the failure to file was not due to excusable neglect. The Vermont Supreme Court affirmed the denial: "The delayed notice was within attorney’s control and is analogous to a breakdown in internal office procedures, which we repeatedly have found is not excusable neglect." View "In re Grievance of Edward Von Turkovich" on Justia Law

Claimant Joanne Perrault appealed the Commissioner of Labor’s decision on summary judgment denying her workers’ compensation benefits. On appeal, claimant argued she was an employee of defendant Chittenden County Transportation Authority (CCTA) for the purposes of workers’ compensation and, therefore, was entitled to benefits. Claimant applied to be a driver in CCTA’s volunteer program in 2014. Once through the application process, a volunteer driver was governed by CCTA’s volunteer manual. This manual, in addition to explaining certain restrictions and requirements, also stated that the manual should not be understood to mean that any employment contract existed between CCTA and the volunteer driver. Drivers received money from CCTA based on the miles driven in a given period and calculated at the federal mileage rate. The CCTA manual referred to this monetary payment as reimbursement, and stated that CCTA would perform random checks to verify the accuracy of mileage submissions. This was the only monetary or other exchange between CCTA and drivers in the volunteer program. CCTA provided insurance on drivers’ vehicles on a secondary basis and encouraged drivers to carry more than the minimum required insurance and to name CCTA as an additional insured on their personal vehicle insurance policies. Drivers in the program were required to meet standards set by CCTA and were subject to certain restrictions, which were similar to the restrictions governing CCTA’s regular drivers. On December 1, 2015, claimant had an automobile accident. At the time of the accident, she was driving a CCTA rider to an appointment. Claimant sustained significant injuries in the accident, including a broken neck at the third and fourth vertebrae, a fractured spine, and broken ribs. She subsequently sought workers’ compensation benefits. The Vermont Supreme Court held that, because claimant did not receive wages, she could not be considered a statutory employee as that term was defined for the application of workers’ compensation. View "Perrault v. Chittenden County Transportation Authority" on Justia Law

The trial court granted the Lincoln County Board of Supervisors’ and the City of Brookhaven, Mississippi’s motions to dismiss Samuel Wilcher, Jr.’s personal injury suit, finding both governmental entities enjoyed discretionary-function immunity. In doing so, the judge employed the Mississsippi Supreme Court’s recently created test announced in Brantley v. City of Horn Lake, 152 So.3d 1106 (Miss. 2014). On appeal, the Court faced "head on one of the unintended but predicted consequences of Brantley—that the test forces parties and judges to wade through an ever-deepening quagmire of regulations and ordinances to locate 'ministerial' or 'discretionary' duties, overcomplicating the process of litigating and deciding claims involving governmental entities." Unfortunately, this methodology had proved unworkable. "Instead of trying to retool the Brantley test to somehow make it workable, we concede this short-lived idea, which was meant to be a course correction, has ultimately led this Court even farther adrift." The Court found it best to return to its original course of applying the widely recognized public-policy function test—the original Mississippi Tort Claims Act (MTCA) test first adopted by the Court in 1999. Applying the latter test to this case, the Supreme Court held that Wilcher’s claim that County and City employees negligently left an unfinished culvert installation overnight, without warning drivers they had removed but not yet replaced a bridge, was not barred by discretionary-function immunity. "Wilcher is not trying to second-guess a policy decision through tort. He is seeking to recover for injuries caused by run-of-the-mill negligence." Because, from the face of the complaint, the County and City were not immune, the Court reversed the grant of their motions to dismiss. View "Wilcher, Jr. v. Lincoln County Board of Supervisors" on Justia Law

Between 1853 and 1995, the Port Gamble Bay facility in Kitsap County, Washington operated as a sawmill and forest products manufacturing facility by Pope & Talbot and its corporate predecessors. Close to four decades after Puget Mill Co., predecessor to Pope & Talbot, began operating the sawmill, the legislature authorized the disposal of certain occupied state-owned aquatic lands, including the tidal lands within Port Gamble Bay. The Washington Department of Natural Resources (DNR) issued the first lease for Pope & Talbot's use of the Port Gamble Bay submerged lands in 1974. In 1985, Pope & Talbot transferred 71,363 acres of its timberlands, timber, land development, and resort businesses in the State of Washington to Pope Resources, LP, which in turn leased the mill area to Pope & Talbot. Pope & Talbot ceased mill operations in 1995. Pope sought to develop their Port Gamble holdings for a large, high-density community with a marina. However, the Port Gamble site was contaminated, in part from the operation of sawmill buildings to saw logs for lumber, operation of chip barge loading facilities and a log-transfer facility, particulate sawmill emissions from wood and wood waste burning, in-water log rafting and storage, and creosote treated pilings placed throughout the bay to facilitate storage and transport of logs and wood products. After entering into a consent decree with the Washington Department of Ecology in 2013 for remediation of portions of the site exposed to hazardous substances, Pope/OPG filed a complaint in 2014 seeking a declaration that DNR was liable for natural resources damages and remedial costs, and for contribution of costs. The Superior Court granted summary judgment in favor of DNR in 2016. The Court of Appeals reversed, holding that DNR was an "owner or operator" with potential liability under the Washington Model Toxics Control Act (MTCA). DNR appealed, and the Washington Supreme Court reversed, finding DNR was neither an "owner" nor an "operator" of the Port Gamble Bay facility for purposes of MTCA. View "Pope Res., LP v. Dep't of Nat. Res." on Justia Law

At issue before the South Carolina Supreme Court in this appeal was a question of whether Appellant Hilton Head Island-Bluffton Chamber of Commerce (Chamber) was subject to the Freedom of Information Act (FOIA) due to its receipt and expenditure of certain funds designated for promoting tourism ("accommodation tax funds"). The Chamber's receipt and expenditure of these funds was pursuant to, and governed by, the Accommodations Tax (A-Tax) statute and Proviso 39.2 of the Appropriation Act for Budget Year 2012–2013. Respondent DomainsNewMedia.com, LLC (Domains) filed a declaratory judgment action, seeking a declaration and corresponding injunctive relief on the basis that the Chamber's receipt of these funds renders the Chamber a "public body" pursuant to FOIA, thus subjecting the Chamber to all of FOIA's requirements. The Chamber countered that FOIA did not apply, for the receipt, expenditure, and reporting requirements concerning these funds were governed by the more specific A-Tax statute and Proviso 39.2. The trial court held that the Chamber was a public body and, thus, was subject to FOIA's provisions. The Supreme Court, however, reversed, holding as a matter of discerning legislative intent, that the General Assembly did not intend the Chamber to be considered a public body for purposes of FOIA as a result of its receipt and expenditure of these specific funds. View "DomainsNewMedia.com v. Hilton Head Island-Bluffton Chamber of Commerce" on Justia Law

Appellants, Algonquin Gas Transmission, LLC (Algonquin) and Public Service Company of New Hampshire d/b/a Eversource Energy (Eversource), appealed a New Hampshire Public Utilities Commission (PUC) order dismissing Eversource’s petition for approval of a proposed contract for natural gas capacity, as well as a program to set parameters for the release of capacity and the sale of liquefied natural gas made available to electric generators, and/or an associated tariff. Appellees, NextEra Energy Resources, LLC (NextEra), Conservation Law Foundation (CLF), and the Office of the Consumer Advocate (OCA), appeared in opposition to this appeal. In denying Eversource’s petition, the PUC first ruled “that the overriding purpose of the Restructuring Statute is to introduce competition to the generation of electricity” with the “long-term results [to] be lower prices and a more productive economy.” The PUC then further ruled that “[t]o achieve that purpose, RSA 374-F:3, III directs the restructuring of the industry, separating generation activities from transmission and distribution activities, and unbundling the rates associated with each of the separate services.” Given these rulings, the PUC concluded that “the basic premise of Eversource’s proposal — having an EDC purchase long-term gas capacity to be used by electric generators — runs afoul of the Restructuring Statute’s functional separation requirement.” The NEw Hampshire Supreme Court disagreed. Pursuant to its plain language, and reading the statute as a whole, the Court discerned the primary intent of the legislature in enacting RSA chapter 374- F was to reduce electricity costs to consumers. The Court disagreed with the PUC’s ruling that the legislature’s “overriding purpose” was “to introduce competition to the generation of electricity.” Rather, as the statute provides, the legislature intended to “harness[ ] the power of competitive markets,” as a means to reduce costs to consumers, not as an end in itself. Likewise, the Court disagreed with the PUC’s ruling that RSA 374-F:3, III directed the “functional separation” of generation services from transmission and distribution services and elevates that single policy principle over the others identified in the statute. Therefore, the Supreme Court held the PUC erred in dismissing Eversource’s petition as a matter of law. In light of its decision, the Court did not address the appellant’s remaining arguments. View "Appeal of Algonquin Gas Transmission, LLC" on Justia Law

Doreen Heyboer was a passenger on a motorcycle involved in an accident with an automobile in Denver and suffered catastrophic injuries. As a result of her injuries, her conservator sued the City and County of Denver, alleging that the street’s deteriorated condition contributed to the accident. Denver responded by asserting its immunity under the Colorado Governmental Immunity Act (“CGIA”). Heyboer argued Denver waived its immunity because the road was a dangerous condition that physically interfered with the movement of traffic, and thus, her suit fits an express exception found in the CGIA. After review, the Colorado Supreme Court determined her evidence did not establish that the road constituted an unreasonable risk of harm to the health and safety of the public, nor did her evidence establish that the road physically interfered with the movement of traffic. Accordingly, Denver retained its immunity under the CGIA; the Supreme Court reversed the court of appeals which held to the contrary. View "City & Cty. of Denver v. Dennis ex. rel. Heyboer" on Justia Law

In 2011, the City of Aspen adopted an ordinance which imposed a regulatory scheme designed to meet the city council’s “duty to protect the natural environment and the health of its citizens and visitors.” Under the ordinance, grocery stores within Aspen’s city limits were prohibited from providing disposable plastic bags to customers, though they could still provide paper bags to customers, but each bag is subject to a $0.20 “waste reduction fee,” unless the customer was a participant in a “Colorado Food Assistance Program.” This case presented the question of whether Aspen’s $0.20 paper bag charge was a tax subject to voter approval under the Taxpayer’s Bill of Rights (“TABOR”). The trial court held that this charge was not subject to TABOR because it was not a tax, but a fee. The court of appeals concurred with this holding. The Colorado Supreme Court also agreed, finding the bag charge was not a tax subject to TABOR. View "Colorado Union of Taxpayers Found. v City of Aspen" on Justia Law

Defendants the Alabama Secretary of State, John Merrill, and a member of his staff, Ed Packard, the director of elections, petitioned the Alabama Supreme Court for a writ of mandamus to direct the Montgomery Circuit Court to vacate a preliminary injunction and to dismiss for lack of jurisdiction the underlying action seeking injunctive and declaratory relief. On December 7, 2017, plaintiffs Pamela Miles, Dan Dannemueller, Paul Hard, and Victoria Tuggle (hereinafter referred to collectively as "the plaintiffs") filed a civil action against Merrill and Packard, in their official capacities, alleging certain electronic voting machines used in Alabama elections created digital images of the paper ballots scanned and counted by the machines, and that defendants "do not and will not instruct election officials" to preserve the digital ballot images. Those images, it was argued, were public records that, under Alabama law, had to be preserved. Plaintiffs also appeared to allege that federal law, specifically, 52 U.S.C. 20701, required those images be retained. This failure "to require that all election materials" be preserved, the plaintiffs contended, "infringe[d] upon their right to a fair and accurate election." The Alabama Supreme Court determined plaintiffs' allegations did not demonstrate how the "challenged practices harm[ed]" plaintiffs in a concrete way; how they would personally suffer the threatened injury, which is itself described only as a mere speculative possibility; or how they would benefit in a "tangible way" by a judgment in their favor. Instead, the Court found they alleged only that they "could" be harmed." Therefore, because the complaint insufficiently alleged that plaintiffs have standing, the trial court lacked jurisdiction over the action. The Court therefore directed that the case be dismissed. View "Ex parte Alabama Secretary of State John Merrill and Director of Elections Ed Packard." on Justia Law

Defendants the Alabama Secretary of State, John Merrill, and a member of his staff, Ed Packard, the director of elections, petitioned the Alabama Supreme Court for a writ of mandamus to direct the Montgomery Circuit Court to vacate a preliminary injunction and to dismiss for lack of jurisdiction the underlying action seeking injunctive and declaratory relief. On December 7, 2017, plaintiffs Pamela Miles, Dan Dannemueller, Paul Hard, and Victoria Tuggle (hereinafter referred to collectively as "the plaintiffs") filed a civil action against Merrill and Packard, in their official capacities, alleging certain electronic voting machines used in Alabama elections created digital images of the paper ballots scanned and counted by the machines, and that defendants "do not and will not instruct election officials" to preserve the digital ballot images. Those images, it was argued, were public records that, under Alabama law, had to be preserved. Plaintiffs also appeared to allege that federal law, specifically, 52 U.S.C. 20701, required those images be retained. This failure "to require that all election materials" be preserved, the plaintiffs contended, "infringe[d] upon their right to a fair and accurate election." The Alabama Supreme Court determined plaintiffs' allegations did not demonstrate how the "challenged practices harm[ed]" plaintiffs in a concrete way; how they would personally suffer the threatened injury, which is itself described only as a mere speculative possibility; or how they would benefit in a "tangible way" by a judgment in their favor. Instead, the Court found they alleged only that they "could" be harmed." Therefore, because the complaint insufficiently alleged that plaintiffs have standing, the trial court lacked jurisdiction over the action. The Court therefore directed that the case be dismissed. View "Ex parte Alabama Secretary of State John Merrill and Director of Elections Ed Packard." on Justia Law