Justia Government & Administrative Law Opinion Summaries

Tri-Corp, a nonprofit corporation, offered low-income housing to mentally disabled persons in Milwaukee. Its lender, the Wisconsin Housing and Economic Development Authority, filed a foreclosure action. Tri-Corp blamed others for its financial problems and named several third-party defendants. The state court allowed the foreclosure and rejected the third-party claims except those against Milwaukee Alderman Bauman, who removed the claims to federal court. Tri-Corp contends that Bauman is liable under 42 U.S.C. 1983 for issuing statements critical of its operations and for lobbying other officials to rule against it in administrative proceedings, in violation of the Fair Housing Act, the Rehabilitation Act, and the Americans with Disabilities Act. The Seventh Circuit joined six circuit courts in holding that section 1983 cannot be used to alter the categories of persons potentially liable in private actions under the Rehabilitation Act or the Americans with Disabilities Act. Tri-Corp did not allege that Bauman himself denied it any right under the Fair Housing Act, or even was a member of a public body that did so. Tri-Corp accuses Bauman of speech, not action. Public officials enjoy the right of free speech and the Noerr-Pennington doctrine applies to claims under the Act, allowing governmental officials to try to persuade other officials to take particular actions. View "Tri-Corp Hous. Inc. v. Bauman" on Justia Law

Appellant Eddie Dunley appealed a judgment extending his commitment as a mentally disordered offender (MDO). He contended that because persons subject to civil commitment after being found not guilty by reason of insanity (NGI) had a statutory right not to be compelled to testify in proceedings to extend their commitments, so should a person facing commitment as an MDO. The Court of Appeal held that MDO’s, sexually violent predators, and NGI’s are all similarly situated with respect to the testimonial privilege provided for in section 1026.5(b)(7). However, this appeal was moot because a subsequent petition for recommitment was denied by the trial court on or about March 7, 2016, based on the court’s finding that appellant no longer met the criteria for commitment as an MDO. View "California v. Dunley" on Justia Law

Indiana Code 3‐5‐9‐5, enacted in 2012, provides that “an individual is considered to have resigned as a government employee when the individual assumes an elected office of the unit that employs the individual.” A grandfather clause allowed then‐current officeholders to complete their terms before becoming subject to the law. Plaintiffs are civil servants who also serve on city and town councils that have the authority to set the annual compensation for the municipal employees (their own compensation). Most plaintiffs earn a significantly higher salary in their civil service positions than in their elected positions. They contend that if the law takes effect, they will be forced to resign from elected office. Plaintiffs argued that the law violated the First Amendment and the Equal Protection Clause. The Seventh Circuit affirmed dismissal of the complaint, reasoning that the law imposes a small burden on plaintiffs’ First Amendment rights, and any burden is outweighed​ by Indiana’s compelling interest in avoiding corruption by public officeholders and the appearance of the same. There is a clear, rational relationship between pre‐ venting actual and perceived corruption and Indiana’s treatment of municipal employees. View "Claussen v. Pence" on Justia Law

Defendants each sold a gun to an undercover police officer. Each was indicted for violation of the Puerto Rico Arms Act of 2000. While those charges were pending, federal grand juries indicted them, based on the same transactions, for violations of analogous U.S. gun-trafficking statutes. Both pleaded guilty to the federal charges and successfully moved to dismiss the Commonwealth charges on double jeopardy grounds. The Supreme Court of Puerto Rico and U.S. Supreme Court upheld the dismissals. The Double Jeopardy Clause bars Puerto Rico and the United States from successively prosecuting a person for the same conduct under equivalent criminal laws. While the Double Jeopardy Clause does not bar successive prosecutions brought by separate sovereigns, “sovereignty” in this context does not bear its ordinary meaning. The issue is the “ultimate source” of the power authorizing the prosecutions. The states are separate sovereigns from the federal government and from one another, but U. S. territories, including an earlier incarnation of Puerto Rico, are not sovereigns distinct from the United States. Federal and territorial prosecutors do not derive their powers from independent sources of authority. Although constitutional developments made Puerto Rico “sovereign” in one commonly understood sense of that term, the dual-sovereignty test focuses not on the fact of self-rule, but on where it originated. Congress conferred the authority to create the Puerto Rico Constitution, which confers the authority to bring criminal charges. That makes Congress the original source of power for Puerto Rico’s prosecutors, as it is for the federal government’s. The island’s Constitution does not break the chain. View "Puerto Rico v. Valle" on Justia Law

New Mexico Rule of Professional Conduct 16-308(E) prohibited a prosecutor from subpoenaing a lawyer to present evidence about a past or present client in a grand-jury or other criminal proceeding unless such evidence was “essential” and “there is no other feasible alternative to obtain the information.” In a lawsuit brought against the New Mexico Supreme Court and the state’s Disciplinary Board and Office of Disciplinary Counsel, the United States claimed that the enforcement of this rule against federal prosecutors licensed in New Mexico violated the Supremacy Clause of the U.S. Constitution. On cross-motions for summary judgment, the district court concluded that Rule 16-308(E) was preempted with respect to federal prosecutors practicing before grand juries, but was not preempted outside of the grand-jury context. With this conclusion, the Tenth Circuit Court of Appeals agreed and affirmed the district court's decision. View "United States v. NM Supreme Court" on Justia Law

Himmelreich, a federal prisoner, sued the United States, alleging that he was severely beaten by a fellow inmate as the result of negligence by prison officials. The government treated the suit as a claim under the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b). The court granted the defendants summary judgment on the ground that the claim fell into the exception for “[a]ny claim based upon . . . the exercise or performance . . . [of] a discretionary function,” namely, deciding where to house inmates. While the motion was pending, Himmelreich filed a second suit: a constitutional tort suit against individual Bureau of Prison employees, again alleging that his beating was the result of officials’ negligence. After the dismissal of Himmelreich’s first suit, the court dismissed the second suit as foreclosed by the FTCA’s judgment bar provision. The Sixth Circuit reversed. The Supreme Court affirmed. The FTCA “Exceptions” section’s plain text dictates that the judgment bar does “not apply” to cases that, like Himmelreich’s first suit, are based on the performance of a discretionary function. Had the court dismissed Himmelreich’s first suit because, e.g., the employees were not negligent, it would make sense that the judgment bar provision would prevent a second suit against the employees. Where an FTCA claim is dismissed because it falls within one of the “Exceptions,” the dismissal signals merely that the United States cannot be held liable for the claim; it has no logical bearing on whether an employee can be liable instead. View "Simmons v. Himmelreich" on Justia Law

Applicants Cynthia and Charles Burns wanted to make modifications to a two-unit residential building they owned in Burlington. A group of nineteen Burlington residents (neighbors) appealed a Superior Court, Environmental Division decision declining to reach the merits of neighbors’ claim that applicants converted their home into a duplex without a zoning permit on the grounds that the challenge was precluded by a prior decision under 24 V.S.A. 4472(d) or to consider whether a permit was required for applicants’ other modifications. On appeal to the Vermont Supreme Court, neighbors argued: (1) that their challenge was not precluded under section 4472(d) because the prior decision had not been rendered by the Burlington Zoning Administrator as the statute requires; (2) that preventing an appeal without affording notice and opportunity to be heard violated their due process rights; and (3) that they were entitled to a determination by the Environmental Division of whether applicants’ other modifications violated the zoning ordinance because they were done without a permit. The Supreme Court agreed, reversed and remanded for further proceedings. View "In re Burns Two-Unit Residential Building (Long, et al. Appellants)" on Justia Law

The Attorney General prepared and filed a modified ballot title following remand from the Supreme Court. In its second trip to the Oregon Supreme Court, two petitioners challenged the modified title. IP 62 applies to public employees (employees) and public employee labor organizations (unions). If adopted by the voters, IP 62 would have amended several provisions of the Oregon Public Employee Collective Bargaining Act. Petitioners Neel and Forest set out two main objections to the modified caption: (1) they claimed that the phrase “limits public employee union members’ obligations” was vague and overbroad and was likely to mislead and confuse voters; (2) the phrase “employees might benefit without sharing bargaining costs" petitioners contended that, as used to describe IP 62, that phrase was “underinclusive, inaccurate, misleading, politically loaded,” and failed to reasonably identify the actual major effect of the proposed initiative measure. The Supreme Court found certain of the objections to be well taken, and referred the modified ballot title to the Attorney General for additional modification. View "Conroy v. Rosenblum" on Justia Law

Appellants sought reversal of a King County Superior Court order declaring Initiative 1366 (I-1366) unconstitutional. At the center of this case, the fact that I-1366, if enacted, would "result[] in either a onetime reduction in the sales tax or [the proposal of a constitutional amendment]." Based on the plain language of the initiative, the Supreme Court held that I -13 66 required the legislature to choose between two operative provisions. "This does not constitute valid contingent legislation. Instead, this is the kind of logrolling of unrelated measures article II, section 19 of the Washington State Constitution was adopted to prevent." The Supreme Court affirmed the trial court and held that I-1366 violated the single-subject rule of article II, section 19, and that it was void in its entirety. View "Lee v. Washington" on Justia Law

California’s Online Privacy Protection Act of 2003 (OPPA), under the unfair competition law (Bus. & Prof. Code 17200 et. seq.), addresses the obligations of an operator of a commercial Web site or online service regarding the posting of a privacy policy on the Internet. The state sought damages and injunctive relief under OPPA, alleging that Delta’s Fly Delta mobile application violated the privacy policy requirements. The trial court dismissed, finding the suit expressly preempted by the Airline Deregulation Act of 1978 (49 U.S.C. 41713 (b)(1)). The court of appeal affirmed. To compel Delta to comply with the OPPA would effectively interfere with the airline’s “selection and design” of its mobile application, a marketing mechanism “appropriate to the furnishing of air transportation service,” for which state enforcement has been held to be expressly preempted. View "Harris v. Delta Air Lines" on Justia Law