Justia Government & Administrative Law Opinion SummariesArticles Posted in Legal Ethics
Toman Engineering Co. v. Koch Construction, et al.
Koch Construction, Inc.; Marilyn Koch, Personal Representative of the Estate of Michael P. Koch; and Koch Property Investments, Inc. (collectively “appellants”) appealed the judgment and amended judgment entered in favor of Toman Engineering Company (“Toman”). Michael Koch owned and operated Koch Construction and Koch Property Investments (“KPI”). Toman provided engineering services to Koch Construction on various projects, including designing a stormwater management system for the Koch Meadow Hills residential development project in Dickinson, North Dakota. Michael died in August 2017. The stormwater management system included a detention pond referred to as the Marilyn Way Stormwater Pond, which was the detention pond at issue in this case. In 2016, Janet Prchal, Dean Kubas, and Geraldine Kubas, owners of property near the Koch Meadow Hills development, sued the City of Dickinson and KPI for damages, alleging the development of Koch Meadow Hills caused water to drain and collect on their properties. The Prchal lawsuit was settled in September 2018, and the settlement required modifications to be made to the Marilyn Way Stormwater Pond before June 30, 2019. The reconstruction work on the detention pond occurred during the summer and fall of 2019. Toman served a summons and complaint on Koch Construction and Marilyn Koch, to collect unpaid amounts for engineering services Toman provided to the defendants in 2017. Toman filed the complaint in the district court in June 2019. The appellants argued the district court erred in deciding they committed intentional spoliation of evidence and dismissing their counterclaim as a sanction. After review of the district court record, the North Dakota Supreme Court concluded the district court abused its discretion when it dismissed the appellants’ counterclaim as a sanction for spoliation of evidence. Judgment was reversed and the matter remanded for a new trial. View "Toman Engineering Co. v. Koch Construction, et al." on Justia Law
City of Portland v. Bartlett
Defendant Mark Bartlett requested the City of Portland to release three city attorney opinions and one legal memorandum. The parties agreed that the documents were public records, were within the scope of the attorney-client privilege, and were more than 25 years old. The city declined to release the documents, arguing that they were exempt from the public records law because of the attorney-client privilege. The specific question presented for the Oregon Supreme Court’s consideration in this case was whether the four documents that were prepared more than 25 years ago by the Portland City Attorney for the mayor and two city commissioners and that were subject to the attorney-client privilege had to be disclosed under ORS 192.390. The Court concluded those documents had to be disclosed. View "City of Portland v. Bartlett" on Justia Law
California ex rel. City of San Diego v. Experian Data Corp.
The City of San Diego (the City) sued Experian Data Corp. (Experian) on behalf of the State of California for violating the Unfair Competition Law (UCL). The City hired three private law firms to represent it in the litigation against Experian on a contingency fee basis. The trial court denied Experian’s motion to disqualify the private law firms. In affirming the trial court, the Court of Appeal found the contingency fee arrangements between the City and the private law firms in a UCL action filed by the City’s attorneys did not violate the prosecutor’s duty of neutrality and therefore did not require disqualification. Further, the Court found agreements to pay the private law firms from any penalties recovered from Experian did not violate Business and Professions Code section 17206’s requirement that all funds recovered in a UCL action be paid to the City’s treasurer. View "California ex rel. City of San Diego v. Experian Data Corp." on Justia Law
Sigcho-Lopez v. Illinois State Board of Elections
Sigcho-Lopez, the alderman for Chicago’s 25th Ward, filed a complaint with the Illinois State Board of Elections, alleging that his predecessor’s (Solis) campaign committee unlawfully paid Solis's personal legal fees from campaign funds. The Board dismissed Sigcho-Lopez’s complaint. On administrative review, the appellate court affirmed the dismissal.The Illinois Supreme Court affirmed. Legal fees incurred to pay for a public official’s criminal defense against investigations or charges of public corruption do not amount to a per se prohibited personal debt under the plain language and spirit of Election Code section 9-8.10(a)(3); whether legal defense fees amount to a personal debt that does not defray the customary and reasonable expenses of an officeholder in connection with the performance of governmental and public service functions must be evaluated on a case-by-case basis. Solis was not indicted but worked with federal investigators using his official capacity to expose public corruption. Considering the evidence before the Board, its conclusion that Solis’s legal fees amounted to a proper expenditure not prohibited as “satisfaction or repayment” of personal debt but incurred “to defray the customary and reasonable expenses of an officeholder in connection with the performance of governmental and public service functions” was not clearly erroneous. View "Sigcho-Lopez v. Illinois State Board of Elections" on Justia Law
Schoenberg v. Federal Bureau of Investigation
The Ninth Circuit affirmed the district court's order denying plaintiff's request for attorney's fees after his successful Freedom of Information Act (FOIA) action seeking to obtain redacted information from the FBI regarding a 2016 search warrant. The search warrant investigated then-Secretary of State Hillary Clinton's email practices. Although plaintiff was a prevailing party eligible for attorney's fees under FOIA, the district court denied fees after balancing the four factors that inform the entitlement inquiry.The panel applied a deferential standard of review, concluding that the district court reasonably concluded that the FBI reasonably based its nondisclosure on the SDNY sealing order, and the district court also acted within its discretion in balancing the four entitlement factors. The panel explained that, whether obligated or acting out of comity for another branch of government, the FBI was reasonable to think the SDNY sealing order limited its ability to disclose information to plaintiff. Because the FBI's reliance on the SDNY sealing order was reasonable, the panel concluded that the district court's conclusion was reasonable too. The panel also concluded that the district court acted within its discretion in denying fees even though the first three factors favored fees and only the fourth disfavored fees. View "Schoenberg v. Federal Bureau of Investigation" on Justia Law
Hampstead School Board et al. v. School Administrative Unit No. 55
Defendant School Administrative Unit No. 55 (the SAU), appealed a superior court order denying its motion to dismiss the complaint filed by plaintiffs the Hampstead School District and Hampstead School Board (collectively, "Hampstead"), and granting Hampstead’s request for an order compelling the SAU to produce immediately an investigative report prepared by an attorney. In November 2018, the Hampstead School Board unanimously adopted a resolution “reject[ing] and disapprov[ing] . . . the inappropriate and unprofessional conduct and commentary engaged in by” Timberlane Regional School Board members regarding certain Hampstead School District representatives and SAU administrators. In the summer of 2019, a former SAU employee and a current SAU employee alleged that certain SAU board members had engaged in workplace harassment and/or had created a hostile work environment. The chair of the SAU board arranged for a lawyer to investigate the allegations. At a December 2019 public session, the SAU board chair stated that “[a]n independent, experienced employment attorney conducted an extensive investigation of a hostile work environment allegation,” and that the attorney had “found that the allegations had no merit.” Hampstead’s counsel subsequently requested to view the report pursuant to the New Hampshire Right-to-Know Law. The SAU declined the request, asserting the report was protected by attorney-client privilege. Hampstead then filed this suit, alleging that the report was a public document about public officials and, therefore, was subject to disclosure under RSA chapter 91-A. The New Hampshire Supreme Court affirmed the superior court, finding that the SAU’s contention that records protected by the attorney-client privilege or the work product doctrine were per se exempt from disclosure under the Right-to-Know Law rested upon "an understandable, but mistaken, interpretation of our precedent." View "Hampstead School Board et al. v. School Administrative Unit No. 55" on Justia Law
Poulsen v. Department of Defense
The Ninth Circuit reversed the district court's denial of plaintiff's motion for attorneys' fees in this Freedom of Information Act (FOIA) action against the DOJ. The panel concluded that plaintiff obtained relief through a judicial order that changed the legal relationship between the parties, and thus he is eligible for a fee award under 5 U.S.C. 552(a)(4)(E)(ii)(I). In this case, plaintiff initially submitted a FOIA request for records related to the alleged electronic surveillance of President Trump and his advisors during the 2016 election. The DOJ responded with a Glomar response. After plaintiff filed suit, President Trump declassified a memorandum that divulged the existence of responsive records and the DOJ then agreed to turn over any newly revealed, non-exempt documents by a specific date.The panel explained that Congress passed the OPEN Government Act of 2007, which provided that a plaintiff may establish eligibility for FOIA attorneys' fees in one of two ways: (1) where the relief sought resulted from a judicial order or consent decree and (2) where a voluntary change in position afforded the plaintiff relief. The panel remanded to the district court to determine whether plaintiff is entitled to fees given the unique circumstances underlying the government's change of position. View "Poulsen v. Department of Defense" on Justia Law
In re Brooks
The Supreme Court ordered that Respondent William F. Brooks be suspended without compensation from office as a Judge of the General Court of Justice, District Court Division, Judicial district Twenty-Three, for thirty days from the entry of this order, holding that Respondent violated Canons 1, 2A, 5D, and 6C of the North Carolina Code of Judicial Conduct and for conduct prejudicial to the administration of justice that brings the judicial office into disrepute.The Judicial Standards Commission recommended that Respondent be censured for violations of Canons 1, 2A, 5D, and 6C amounting to conduct prejudicial to the administration of justice that constituted willful misconduct in office. Respondent accepted responsibility for his actions, acknowledging they were wrong, and the Commission found that Respondent cooperated, admitted error and showed remorse. The Supreme Court concluded that the Commission's findings of fact were supported by clear and convincing evidence and that the Commission's conclusions of law were supported by those facts and then determined that a one-month sanction was appropriate. View "In re Brooks" on Justia Law
Bd. of County Comm’rs v. Assoc. of County Comm’rs of Okla Self-Insured Grp.
The Board of County Commissioners of Harmon County, Oklahoma, filed an action against the Association of County Commissioners of Oklahoma Self Insured Group (ACCO-SIG). ACCO-SIG sought to disqualify the Board's lawyers, alleging one of the Board's attorneys had a conflict of interest because he had previously represented ACCO-SIG in a substantially similar matter four years earlier. ACCO-SIG sought to have the lawyer, and his entire law firm, disqualified from representing the Board. After the trial court held a disqualification hearing, it denied ACCO-SIG's request to disqualify. ACCO-SIG appealed. The Oklahoma Supreme Court held that under the facts presented, disqualification was not required. View "Bd. of County Comm'rs v. Assoc. of County Comm'rs of Okla Self-Insured Grp." on Justia Law
Duke v. Georgia
In 2017, a grand jury indicted Ryan Duke for malice murder and related offenses in connection with the October 2005 death of Tara Grinstead. For approximately 17 months, Duke was represented by a public defender from the Tifton Judicial Circuit’s Public Defender’s Office. Then, in August 2018, Duke’s public defender withdrew from representation and John Merchant and Ashleigh Merchant filed an entry of appearance, indicating that they were representing Duke pro bono. The Georgia Supreme Court granted interlocutory review in this case to determine whether the trial court erred in determining whether Duke had neither a statutory right under the Indigent Defense Act of 2003, nor a constitutional right to state-funded experts and investigators needed to prepare a defense, notwithstanding private counsel as his representation. Contrary to the trial court’s conclusion, the Supreme Court found the IDA allowed an indigent defendant to obtain such ancillary defense services through a contract between pro bono counsel and either the Georgia Public Defender Council (“GPDC”) or the appropriate circuit public defender. Consequently, the Supreme Court reversed the judgment of the trial court in part, and remanded for further proceedings. View "Duke v. Georgia" on Justia Law