Justia Government & Administrative Law Opinion Summaries

Ethiopian native, petitioner Thewodros Wolie Birhanu petitioned the Tenth Circuit Court of Appeals for review of a final order of removal issued by the Board of Immigration Appeals (“BIA”). The BIA dismissed Birhanu’s appeal of the Immigration Judge's (“IJ”) decision finding him removable. The BIA and the IJ found: (1) Birhanu was removable as an alien convicted of two or more crimes involving moral turpitude (“CIMTs”) not arising out of a single scheme of criminal misconduct; (2) he was not entitled to asylum or withholding of removal because his convictions qualified as particularly serious crimes; and (3) he was not entitled to relief under the Convention Against Torture (“CAT”). The Tenth Circuit dismissed Birhanu's claims under Section 504 of the Rehabilitation Act as unexhausted, and denied the balance of his petition for review on the merits. View "Birhanu v. Wilkinson" on Justia Law

Senate Bill No. 1421 amended Penal Code section 832.7 to allow disclosure under the California Public Records Act (CPRA) of records relating to officer-involved shootings, serious use of force and sustained findings of sexual assault or serious dishonesty. VCDSA filed suit against defendants to enjoin section 832.7’s application to records involving peace officer conduct and incidents occurring before January 1, 2019, the statute's effective date. The trial court issued a preliminary injunction.In the meantime, the First District issued Walnut Creek Police Officers' Ass'n v. City of Walnut Creek (2019) 33 Cal.App.5th 940, which rejected the assertion "that applying the 2019 amendments to compel disclosure of records created prior to 2019 constitutes an improper retroactive application of the new law." In the absence of a reason to depart from Walnut Creek, and for reasons stated in Becerra v. Superior Court (2020) 44 Cal.App.5th 897, the Court of Appeal reversed the judgment and dissolved the permanent injunction. The court agreed with Walnut Creek that section 832.7 does not attach new legal consequences to or increase a peace officer's liability for conduct that occurred before the statute's effective date. The court explained that because the statute merely broadens the public's right to access records regarding that conduct, it applies retroactively. View "Ventura County Deputy Sheriffs' Ass'n. v. County of Ventura" on Justia Law

Petitioner Andrew Panaggio appealed a New Hampshire Compensation Appeals Board (Board) determination that respondent, CNA Insurance Company (the insurer), could not be ordered to reimburse him for his purchase of medical marijuana because such reimbursement would have constituted aiding and abetting his commission of a federal crime under the federal Controlled Substances Act (CSA). When Panaggio appealed the insurer’s denial to the New Hampshire Department of Labor, a hearing officer agreed with the insurer. Panaggio appealed the hearing officer’s decision to the Board, which unanimously found that his use of medical marijuana was reasonable and medically necessary. Nonetheless, the Board upheld the insurer’s refusal to reimburse Panaggio, concluding that “the carrier is not able to provide medical marijuana because such reimbursement is not legal under state or federal law.” The New Hampshire Supreme Court surmised the issue on appeal raised a question of federal preemption, "which is essentially a matter of statutory interpretation and construction." Although it was an issue of first impression for the New Hampshire Court, other courts considered whether the CSA preempted a state order requiring reimbursement of an employee’s purchase of medical marijuana. Panaggio reasoned that “[b]ecause New Hampshire law unambiguously requires the insurer to pay for the claimant’s medically related treatment,” an insurer that reimburses a claimant for the purchase of medical marijuana acts without the volition required by the federal aiding and abetting statute. The insurer asserted Panaggio’s argument leads to an absurd result, observing that “[c]onflict preemption applies because state law requires what federal law forbids.” The New Hampshire Supreme Court ultimately concluded the CSA did not make it illegal for an insurer to reimburse an employee for his or her purchase of medical marijuana. "[A] Board order to reimburse Panaggio does not interfere with the federal government’s ability to enforce the CSA. Regardless of whether the insurer is ordered to reimburse Panaggio for his medical marijuana purchase, the federal government is free to prosecute him for simple possession of marijuana under the CSA." Under these circumstances, the Court concluded the “high threshold” for preemption “is not met here.” The Board's decision was reversed and the matter remanded for further proceedings. View "Appeal of Andrew Panaggio" on Justia Law

The issue this case presented was one of first impression for the Court of Appeal: whether a licensee can rebut an Evidence Code presumption that chemical blood tests were properly conducted, and the results are thus reliable. Plaintiff William Lee Gerwig crashed into the back of another vehicle at an intersection. He was thrown from his motorcycle and landed on the asphalt. California Highway Patrol Officer Jacob Rebelo responded to the scene and spoke with Gerwig while he was receiving medical attention. Based on his lethargic responses, the smell of alcohol, and his inability to recall the collision details, Rebelo suspected Gerwig was intoxicated. Rebelo arrested Gerwig for driving under the influence of alcohol (DUI), and watched while state-certified phlebotomist Francisco Moreno collected two vials of blood using a nonalcoholic swab to clean the site. Rebelo took the vials himself and entered them into evidence. Test results from Gerwig’s blood draw showed a blood-alcohol concentration (BAC) of .25 percent. At the Department of Motor Vehicle hearing, Gerwig’s counsel called an employee of Specimen Specialists of America, Inc. (SSI), the company that dispatched phlebotomist Moreno to draw Gerwig’s blood. Through the employee’s testimony, counsel demonstrated that certain SSI procedures were out of compliance with state regulations that govern blood test procedures. In particular, Moreno was functionally unsupervised and the manual that SSI provided for phlebotomists had not been approved by a physician and surgeon. After eliciting testimony to demonstrate these procedural failings, counsel argued that the test results could not be relied on due to SSI’s regulatory violations. The Court of Appeal concluded that licensees rebut the Evidence Code presumption only when they cast doubt on the integrity of the test. "It is not enough to show a violation of governing regulations that has only a tenuous connection to the accuracy of the results. Here, because plaintiff proved a regulatory violation with only an indirect and speculative relationship to the manner in which the blood test was conducted, and thus the reliability of the test results," the Court affirmed the order denying mandamus relief. View "Gerwig v. Gordon" on Justia Law

Darl Hehn appealed a district court order denying his petition for discharge from civil commitment as a sexually dangerous individual. The North Dakota Supreme Court the case to the district court for further findings and retained jurisdiction under N.D.R.App.P. 35(a)(3). Upon return, the Supreme Court concluded the trial court did not err in holding the State proved Hehn remained a sexually dangerous individual. The Court affirmed the trial court’s order as supplemented by its order entered on remand. View "Matter of Hehn" on Justia Law

The North Dakota Department of Transportation appealed a district court judgment reversing a Department hearing officer’s decision suspending James McClintock’s driving privileges for a period of 91 days. The Department argued the court erred in reversing because the greater weight of the evidence showed the Intoxilyzer 8000 was installed by a field inspector before its use. To this the North Dakota Supreme Court concurred, reversed the judgment and reinstated the hearing officer’s decision. View "McClintock v. NDDOT" on Justia Law

The State appealed a circuit court order denying its request for a preliminary injunction against TY Green's Massage Therapy, Inc., Yuping Tang, and Jiao Liu a/k/a Serena Tang (collectively, "the defendants"). In September 2018, police received an anonymous tip that a customer had gone into the defendants' Madison location for a massage and that he had been touched inappropriately. As a result, the police started an investigation of TY Green's Massage Therapy that included, among other things, sending multiple men into the business locations undercover to get massages and conducting surveillance of the business locations and of the houses where the employees of the business were housed. During the investigation, some of the massage therapists touched clients in places they were not supposed to touch, according to Board of Massage Therapy guidelines; that some massage therapists straddled clients and/or touched the clients with the intimate parts of their bodies and/or touched the intimate parts of the clients' bodies; and that at least one massage therapist engaged in sexual acts, including intercourse, with a client. The investigation also revealed that the massage therapists lived in houses owned by the Tangs; that the Tangs provided transportation for the therapists each day to get to the business locations where they worked; and that the therapists normally worked 12 hours per day, 7 days per week. The State filed a complaint against TY Green's Massage Therapy, Inc. that included 41 counts, including first- and second degree human trafficking, and deceptive trade practices. Among other things, the State requested injunctive and declaratory relief, damages and civil penalties. After review, the Alabama Supreme Court concluded the trial court did not exceed its discretion in denying the State's request for a preliminary injunction. Accordingly, the trial court's order was affirmed. View "Alabama v. TY Green's Massage Therapy, Inc." on Justia Law

Petitioner-appellant Anthony Hernandez was convicted of misdemeanor domestic violence after choking his girlfriend. The California Department of Correction and Rehabilitation (Department) terminated him from his position as a correctional officer, stating that because of his domestic violence conviction, federal law prohibited him from carrying a firearm, which he needed for the job. The issue this case presented for the Court of Appeal's review was whether the Department acted reasonably in terminating Hernandez. It was undisputed that federal law makes it a felony to possess a firearm after being convicted in any court of misdemeanor domestic violence, which was defined in part as the use of physical force by “a person similarly situated to a spouse” of a victim. Disputed here was whether Hernandez was “similarly situated to a spouse” of his girlfriend, given that he had been dating her five or six months and did not share a permanent residence with her. In line with the federal case law, the Court found the evidence was sufficient to support the Department’s determination that Hernandez was “similarly situated to a spouse” of his victim under these circumstances. Accordingly, the Department acted reasonably in terminating him. View "Hernandez v. State Personnel Board" on Justia Law

The Supreme Judicial Court affirmed the decision of the Sex Offender Registry Board ordering John Doe to register as a level three offender, holding that the Board's decision was not arbitrary or capricious and was supported by substantial evidence.On appeal, Doe argued that the Board should be required to prove new sex offenses by clear and convincing evidence and that the Board's decision was improper because it was not based on new information and the hearing was not held within a reasonable time. The Supreme Judicial Court disagreed, holding (1) subsidiary facts, including new sex offenses, need be proved by a preponderance of the evidence, and regardless, there was clear and convincing evidence supporting the level three upward reclassification; and (2) because the Board initiated the reclassification process shortly after receiving information of the new sex offense charges, and because the delays in reaching a final decision were not unreasonable, the Board's decision was proper. View "Doe v. Sex Offender Registry Board" on Justia Law

The Supreme Court reversed the judgment of the court of appeal concluding that William Palmer was entitled to release from all forms of custody, including parole supervision, holding that to the extent Palmer's continued incarceration at some point became constitutionally excessive, that alone did not justify ending his parole under the current statutory scheme.Palmer first sought release on parole in 1995. The Board of Parole Hearings denied parole. Palmer continued to seek release. After the Board's tenth denial, Palmer filed a petition for writ of habeas corpus alleging that the thirty years he had served on a life sentence for an aggravated kidnapping committed when he was a juvenile was constitutionally excessive. The Board subsequently ordered Palmer released on parole. Ruling on Palmer's writ, the court of appeals concluded that Palmer's now-completed term of imprisonment had become unconstitutional and ended his parole. The Supreme Court reversed, holding that, in the absence of any persuasive argument from Palmer that his parole term had become constitutionally excessive, his parole remained valid. View "In re Palmer" on Justia Law