Administrative Law Prof Blog

A difference between judicial and administrative hearings

Here is another case from Patty Salkin (Albany) on her Law of the Land blog, "FL Appeals Court Holds that Neighboring Landowners in a Quasi Judicial Hearing Are Not Entitled to Cross-Examine Witnesses".

Petitioners, Carillon Community Residential Association, Inc., and its President, sought second-tier certiorari review of a circuit court order upholding the approval by the County Board of County Commissioners [BCC] of an amendment to the Carillon Planned Unit Development  which  allows a mixed-use development, including a four-story, 600 bed University of Central Florida student housing complex, to be built on two parcels of land adjacent to Petitioners’ subdivision. The Court concluded that the circuit court afforded Petitioners procedural due process and did not depart from the essential requirements of law when the Board denied their request to cross-examine witnesses at the quasi-judicial hearing in which the amendment was approved.  The Court said that Florida law does not require that all participants in quasi-judicial proceedings be allowed to cross-examine witnesses.  The Court states, that “land use hearings are not in the same form as traditional adversarial hearings during which opposing parties are clearly delineated and those entitled to cross-examine witnesses can be clearly identified. Rather, land use hearings are public hearings during which any member of the public has a right to participate. At the hearing in question, in addition to the witnesses for the developers and the petitioners, twenty-five community members spoke at the hearing. It would be impractical to grant each interested party the right to cross-examine the witnesses at such a hearing, especially in light of the fact that the BCC provides a procedure by which the witnesses can be questioned.”

An administrative hearing is not a trial - not strictly speaking an adversarial procedure but rather an inquisitorial procedure. Due process does not require that the agency follow the rules of evidence or the procedures mandated by due process in litigation or criminal proceedings.  Absent specific statutory requirements, we get notice and an opportunity to be heard. EMM

State and local preemption

Patty Salkin (Albany), on her Law of the Land blog, describes an interesting (if jurisdiction-specific) state and local preemption case in "WI Appeals Court Holds Town Authority Preempted By Livestock Facility Siting Law": 

Larson Acres, Inc., applied to the Town of Magnolia for approval of an expanded livestock facility for its dairy operation to house 1,500 livestock. The Town approved the application subject to a number of conditions including a requirement mandating specified land use strategies "to substantially reduce and thereafter minimize nitrogen loading to surface and ground water." The conditions also required that Larson "exchange information with the Town concerning management practices of the Facility" and "allow access for testing well water at the Facility and access for the Town to test tile lines for water quality monitoring purposes monthly."

Larson appealed to the [state] Livestock Facility Siting Review Board challenging the imposition of several conditions. The Board ordered the issuance of the permit without the conditions. Several neighboring property owners along with the Town challenged the Board's action.

The Court of Appeals upheld the Board's actions, holding that the Town's authority to impose conditions on the issuance of the permit is preempted by the uniform standards established under the State's Livestock Facility Siting Law, Wis. Stat. § 93.90. That Law allows local governments to impose more stringent requirements than the state standards if they adopt the requirement by ordinance before an applicant files an application for approval and the standards are based on "reasonable and scientifically defensible findings of fact . . . that clearly show the requirement is necessary to protect public health or safety." The Court of Appeals concluded that the Town's conditions imposed (related to water quality concerns) did not meet these statutory requirements. The Court noted, that it did not intend, by this decision to minimize the Town's concerns, but that the Court is required "to construe statutes as written, and the language of § 93.90 reveals a clear legislative decision to prioritize uniformity in the approval process, in part by limiting the authority of political subdivisions."

Whenever I hear the word "clearly" I put my hand on my wallet. In this case it's an invitation to advocacy, and I wonder how badly the plaintiffs argued the public health issue. EMM

Theory with practical implications: Gluck on statutory interpretation

Statutory interpretation is often at the center of administrative law issues. Abbe R. Gluck (Columbia) has published "The States as Laboratories of Statutory Interpretation: Methodological Consensus and the New Modified Textualism", 119 YALE L.J. 1750 (2010). Abstract:

This Article offers the first close study of statutory interpretation in several state courts of last resort. While academics have spent the past decade speculating about the “death of textualism,” the utility of legislated rules of interpretation, and the capacity of judges to agree on a single set of interpretive rules, state courts, as it turns out, have been engaging in real-world experiments in precisely these areas. Several state courts have articulated governing interpretive regimes for all statutory questions. Methodological stare decisis—the practice of giving precedential effect to judicial statements about methodology—is generally absent from federal statutory interpretation, but appears to be a common feature of some states’ statutory case law. Every state legislature in the nation has enacted certain rules of interpretation, which some state courts are, in an unexpected twist, flouting. And, far from textualism being “dead,” what emerges from these state cases is a surprisingly strong consensus methodology—what this Article terms “modified textualism”—a theory that shares textualism’s core components but has broader potential appeal. These state developments offer a powerful counter-paradigm to that of the U.S. Supreme Court, where persistent interpretive divides and a refusal to treat methodological statements as precedential have made interpretive consensus seem impossible. They also highlight that, for all the energy that the statutory interpretation wars have consumed, the legal status of methodology itself—whether it is “law” or something “less”—remains entirely unresolved.

Amanda Frost comments on SCOTUSblog that

Just when you think there is nothing more to be said about statutory interpretation, a new article demonstrates that the topic is far from exhausted. ... [S]tate court judges are finding a middle ground between textualism and purposivism that has eluded federal judges and academics alike.  As Professor Gluck suggests, these developments at the state level may eventually inform and change the federal judiciary’s approach to statutory interpretation.  If nothing else, her analysis of these state practices should give both academics and federal judges a new perspective on some old problems.

I think she is right. The criticism goes back to Llewellyn. Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons about How Statutes Are to Be Construed, 3 VAND. L. REV. 399 (1949). The U.S. Supreme Court's failure to use and express a consistent set of principles for statutory interpretation invites a response - a backlash - from other Constitutional entities (Congress, Executive, states). A must-read article, and a topic we need to monitor. Thanks to SCOTUSblog for the pointer. EMM

Sowards on administrative law research

Jason R. Sowards (Reference Librarian, Wake Forest University Professional Center Library, and Adjunct Professor of Law, Wake Forest University School of Law) has published Teaching Specialized Legal Research: Administrative Law, 29 LEGAL REFERENCE SERVICES QUARTERLY 101 (2010).  Abstract:

In an effort to provide more attention to the legislative and administrative law processes than typical first year legal research instruction can provide, the author created a specialized legal research course on legislation and administrative practice and procedure. Set forth within this article is a very brief background on the substantive law an instructor for a course on this topic would need to know. Also included is an overview of the resources taught, assignments given, and evaluation tools used.

Highly recommended for both librarians and admin law professors. The resources identified are for practical purposes exhaustive, and the snappy overview of the nature of administrative law at 102-114 is worth the price of admission itself. And, sadly, the price of admission may be high if your institution does not subscribe to the LRSQ (not available on SSRN, bepress, Lexis, Westlaw, or HeinOnline; $30 on Informaworld).Hopefully you can get it by interlibrary loan. EMM

The Pacifica story

"Download of the Week" and "highly recommended" on Lawrence Solum's Legal Theory Blog: "The Story of FCC v. Pacifica Foundation (And Its Second Life)" by Adam Samaha (Chicago). Abstract:    

This chapter provides a back story to FCC v. Pacifica Foundation – the so-called seven dirty words case, which upheld the Commission’s authority to regulate broadcast indecency. The history of broadcast indecency regulation is briefly reviewed, along with the emergence of countercultural radio in the 1960s and 1970s. The chapter then turns to George Carlin and his personal transformation, Pacifica radio and its turbulent times, and the complaint of a Morality in Media board member that instigated FCC proceedings. The litigation history of the case is likewise investigated. This research provides insight into why the Department of Justice switched sides when the case reached the Supreme Court, and it identifies Justice Stevens as the likely swing voter. Apparently he was wrestling with issues of statutory interpretation. The chapter includes new interviews with several participants in the controversy, as well as some original archival research. The chapter closes with a few thoughts on the path of indecency regulation since the Pacifica case. It points up the relationship between constraint and creativity; and it suggests that technological change making the broadcast medium less important also makes broadcast regulation less problematic. The ‘just change the channel’ argument, so rhetorically effective against indecency regulation in the past, is now switching sides.

More ultra vires. EMM

Ultra vires

From Shook Hardy & Bacon LLP, "TSCA: Eleventh Circuit upholds regulations requiring lead warning statements by residential property lessors" by David Erickson and James Neet (Kansas City).

The Eleventh Circuit Court of Appeals has upheld regulations under TSCA and the Lead-Based Paint Hazard Reduction Act of 1992, requiring lessors of residential property built before 1978 to put a specifically worded “Lead Warning Statement” in the property’s lease and affirmatively disclose either that lead-based paint is present on the property or that the lessor has no knowledge of such paint. Vidiksis v. EPA, No. 09-12544 (11th Cir. 7/28/10).

So ruling, the court affirmed a $97,000 penalty levied against a property owner by EPA’s Environmental Appeals Board. The property owner argued that EPA did not have authority under the Lead Hazard Act to require any specific lead paint related language in leases. Disagreeing, the court ruled that the lead-based paint notice and disclosure requirements were reasonable and within the scope of TSCA and the Lead Hazard Act.

I have not seen a detailed analysis of the ultra vires argument in this case. Pointer courtesy of Lexology. To access Lexology articles, register your own free account at http://www.lexology.com/account/register.aspx. You can set up email or RSS subscriptions from their subject tags or custom searches. EMM

Laches/equitable estoppel against a municipality

From Patty Salkin (Albany) on her Law of the Land blog, "5th Circuit Remands Matter to Resolve Definition of Ambiguous Terms in Zoning Ordinance Relating in Enforcement Matter Against Two Sexually Oriented Businesses":

... The second challenge to the court’s decision was under a theory of laches, whereby the city failed to terminate the agreement when ownership changed shortly after the agreement was executed, despite having actual notice of the change.  In order to successfully assert this affirmative defense, El Paso Entertainment was required to show that the City unreasonably delayed asserting its rights under the 1995 agreement and that the company made a good faith change in its position, to its detriment based on the City’s delay in asserting its rights.  While the theory of laches usually does not apply to government entities, it is applicable when “justice requires [the application of equitable estoppel], and there is no interference with the exercise of [the City’s] governmental functions.”  The instances in which the application of this theory are permissible are few, and since El Paso Entertainment could not meet the requirements to prove that this type of estoppel had occurred (that the company had changed its position to its detriment based on the inaction of the city), the court did not rule on whether the government  exception applied. ...

EMM

New administrative law articles

From the University of Washington's Current Index to Legal Periodicals:

• Bressman, Lisa Schultz and Robert B. Thompson. The future of agency independence. 63 Vand. L. Rev. 599-672 (2010). [H]|[L]|[W]

• Gostanian, Anthony. Note. How the FDA can overturn ... (Wyeth v. Levine, 129 S. Ct. 1187, 2009.) 36 Am. J.L. & Med. 248-268 (2010). [H]|[L]|[W]

• Ho, Daniel E. Measuring agency preferences: experts, voting, and the power of chairs. 59 DePaul L. Rev. 333-370 (2010). [H]|[L]|[W]

• Sowards, Jason R. Teaching specialized legal research: administrative law. 29 Legal Ref. Serv. Q. 101-132 (2010). [H]|[L]|[W]

[Symposium] Federal Preemption of State Tort Law: A Snapshot of the Ongoing Debate. 84 Tul. L. Rev. 1127-1304 (2010). [H]|[L]|[W]

• Sherman, Edward F. Introduction. 84 Tul. L. Rev. 1127-1141 (2010). [H]|[L]|[W]

• Hazard, Geoffrey C., Jr. Quasi-preemption: nervous breakdown in our constitutional system. 84 Tul. L. Rev. 1143-1183 (2010). [H]|[L]|[W]

• Peck, Robert S. A separation-of-powers defense of the "presumption against preemption." 84 Tul. L. Rev. 1185-1201 (2010). [H]|[L]|[W]

• Schwartz, Victor E. and Cary Silverman. Preemption of common state law by federal agency action: striking the appropriate balance that protects public safety. 84 Tul. L. Rev. 1203-1232 (2010). [H]|[L]|[W]

• Funk, William. Judicial deference and regulatory preemption by federal agencies. 84 Tul. L. Rev. 1233-1256 (2010). [H]|[L]|[W]

• Untereiner, Alan. The defense of preemption: a view from the trenches. 84 Tul. L. Rev. 1257-1273 (2010). [H]|[L]|[W]

• Cabraser, Elizabeth J. When worlds collide: the Supreme Court confronts federal agencies with federalism in Wyeth v. Levine. 84 Tul. L. Rev. 1275-1304 (2010). [H]|[L]|[W]

EMM

Daniels on "regulatory nukes"

New on SSRN: "When Agencies Go Nuclear: A Game Theoretical Approach to the Biggest Sticks in an Agency’s Arsenal" by Brigham Daniels (BYU). Abstract:

A regulatory agency’s arsenal often contains multiple weapons with varying strengths. Occasionally, however, an agency has a power beyond ordinary regulation: perhaps it has the power to obliterate its regulatory targets or to make major waves in a large segment of society. When an agency has such a tool, often the agency comes to see the regulatory tool as politically unavailable in all but the most extreme or peculiar of circumstances. These are regulatory nukes. Regulatory nukes are found in many corners of the federal bureaucracy, from the Environmental Protection Agency to the Internal Revenue Service. While many have made the casual comparison between nuclear weapons and powerful regulatory tool, this Article takes the comparison to another level. This Article shows that the comparison is not only apt but also provides great leverage to help us understand this underappreciated category of regulatory tools. Once the Article has defined and provided ten examples of regulatory nukes, it then applies the game theory developed by game theorists to explain the strategy surrounding nuclear weapons (particularly the work of Thomas Schelling) to regulatory nukes. This game theory provides a power lens to understand how agencies use regulatory nukes.

This is important for future practitioners.  When I was in practice, I defended the first DOT organizational out of service order the agency had attempted - one of these 'regulatory nukes'.  If the supervising area non-lawyer had not botched it up by demanding her counsel put his doubts about the case in writing to people outside the zone of privilege, the Department might have won.  After the order was dismissed, we dumped the client.  I hope that subsequent enforcement efforts against this trucker were more successful.  This is a "you bet your business" situation, and attorneys need to understand how to advise their clients about the risks involved. EMM

Theory: Cole on administrative creation of property rights

New on SSRN, Daniel H. Cole (Indiana), "Property Creation by Regulation: Rights to Clean Air and Rights to Pollute". Abstract:    

This paper, prepared for a Lincoln Institute conference on "Evolution of Property Rights Related to Land and Natural Resources," argues that, contrary to both the suppositions of some legal scholars and the theoretical underpinnings of Regulatory Takings doctrine, government regulations do not only impose on existing private property rights but also vindicate, and sometimes even create, public, private, and/or common property rights.

After examining conflicting common law and Roman law rules relating to property rights in the atmosphere, the paper focuses on how assertions of state sovereignty and regulations combine to create Hohfeldian rights and duties respecting the atmosphere, where none previously existed or were unclear. An explicit (but hardly novel) claim is advanced that acts of sovereignty themselves amount to assertions of public property. The claim is supported by evidence from both civil aviation regulation and air pollution control. The paper also addresses how regulations have created private property rights to pollute in emissions trading programs (regardless of congressional assertions to the contrary). In some cases, assertions of public property via acts of sovereignty are a prerequisite to the allocation of private property rights, and not just in the atmosphere but in other natural resources, such as marine fisheries.

The paper concludes with a discussion of normative implications for property theory generally and Regulatory Takings doctrine in particular. A more dignified treatment of public regulations that are designed to protect public rights would raise a serious question about which set of property rights should prevail in the several Regulatory Takings cases where privately-owned lands meet publicly-owned waters. That question cannot, however, be answered reasonably until a theory (or multiple theories) of public property are better developed to complement existing theories of private and common property. So, the paper ends with a call for more research into the theory and empirics of res publica (beyond equally naive public interest and public choice models).

EMM

Pre- v. post-determination hearings

Under the "how much process is due" category is the question of when an agency must offer a hearing before it takes action.  That's the general rule, but there are exceptions.  Harvey Randall reports a New York case on point on his New York Public Personnel Law blog, "Pre-determination hearings not required unless a deprivation of a property or liberty interest is threatened":

A psychologist advised a correctional facility’s superintendent that State Corrections Officer Mark Taylor “was dangerous and may lose impulse control at any time.” ...

The superintendent then prohibited Taylor from carrying a concealed weapon while off-duty.*

Taylor complained that he was denied due process because he was not provided with a “predetermination hearing” before the superintendent prohibited him from carrying a weapon while he was off duty.

The rules of the state Correctional Services Department allow it to prohibit an employee from carrying a weapon while off duty if it determines “the employee’s mental or emotional condition is such that his or her possession of a weapon represents a threat to the safety of the employee, the facility or the community.”

According to the Appellate Division’s ruling in the Taylor case, the right to a pre-determination hearing depends on whether or not the individual can demonstrate that administrative decision constituted involved [sic] some deprivation of a “property interest” or a “liberty interest.” The Appellate Division said the superintendent had not deprived Taylor of any such “liberty interest.”

The Court next addressed the “property interest” aspect of the case. How does an individual establish a property interest? By showing, said the Court, that he or she has a “legitimate claim of entitlement to it.”

The Appellate Division pointed out that it had previously ruled that the exemption set out in Section 265.20 [a correctional officer may legally carry a concealed weapon] “is not a vested right.” Accordingly, it did not constitute a property interest for the purposes of invoking claims to any right of due process.

EMM

Why admin law is important to lawyers who don't practice admin law

Jim Beck (Dechert, Philadelphia), on his Drug and Device Law blog, gives another example of why administrative law is important to many lawyers who think they do not practice administrative law in "More on FASB":

Last week we put up a lengthy post addressing proposed new accounting disclosure rules that amount to yet another huge informational giveaway to the plaintiff's bar.  In drafting that post, we looked around the web, and we were, frankly, surprised by the lack of comment on the revised (but still awful) FASB proposal by the mainstream business-oriented media.  But now, at the eleventh hour (Friday's the deadline for comment on the proposal), that seems to have changed.  The Wall Street Journal today (subscription required) takes a scathing look at the FASB proposal, quite correctly calling it a "tort bar gift."

If you go to Mr. Beck's post and surf back to his previous post on the subject, you see why the proposed accounting rules (boring stuff, no?) might make a major difference in the balance between parties in litigation that has nothing to do with regulation or accounting. Regulations often have consequences well beyond their reason for existence. EMM

Policy: Shifting risk by regulation

On his Customs Law blog, Lawrence Friedman (Barnes/Richardson, Chicago) points out a specific problem of risk being shifted to regulated entities by regulation in "The DR-CAFTA Bind".

At what point is compliance with a trade agreement so risky that it becomes unworkable? Do the powers that be know that the trade agreements they negotiate might be effectively nullified by the cost of compliance? These are questions raised by the Federal Register Notice Customs and Border Protection published today.

Mr. Friedman points out that the use of undefined terms such as "reasonable care" leave decision makers in the dark.

Conceptually, "reasonable care" should be based upon the standard of care that would be exercised by a similarly situated importer acting reasonably. Unfortunately, we have no real idea what that means in everyday practice. In retrospect, it will be easy for Customs to say that the importer should not have trusted the supplier.

He then describes the unattractive choices facing the importer.

In the end, each importer needs to weigh the risks and rewards of compliance. Keep in mind that this issue runs throughout most of our preference programs ...

But,

It did not need to be this way. Look at NAFTA. Under that agreement, the importer is pretty clearly (note important hedge) permitted to rely on the certificate of origin from the exporter. The CO and the verification system put the burden of proof on the exporter, not the importer. Granted, the importer might be on the hook for additional duties if the exporter fails a verification. Further, if the importer's reliance on the document was unreasonable, it could be subject to penalties. But, the focus under NAFTA is clearly on the exporter.

For some reason, the US does not like the NAFTA verification model. The newer trade agreements shift the verification to the importer. And, Customs has made efforts ... to use reasonable care and record keeping to shift that burden to the importer. How successful they will be in that effort remains to be seen.

Regardless of what happens with NAFTA, the DR-CAFTA, GSP, AGOA, and other trade preference programs put importers in a bind. Reliance on the exporter is not likely to satisfy Customs and Border Protection as evidence of the exercise of reasonable care. Audits of suppliers are expensive and time consuming. If the duty avoidance is minimal or the potential penalty substantial, the cost of compliance might make the trade agreement a bad deal for importers.

That leads to the last question: Do the policy makers at USTR and in the White House know that the on-the-ground implementation of trade agreements might actually nullify the benefits they were intended to generate? Does it help Central America or Sub-Saharan Africa to have a trade preference program that is so risky that importers think twice about using it?

Read it.  Useful for a discussion on crafting regulations and the interaction among policies, statutes,  regulations, and enforcement.  EMM

A lesson to be learned

The stereotype of administrative law is that it is a bloodless activity, devoid of passion.  Not necessarily.  John Pacenti of the Daily Business Review discusses a July case where anger may have led to a bad result for the government in "O'Connor, 11th Circuit Panel Side With Tax Preparer Against IRS". 

Those few short years when the Internal Revenue Service tried to revamp its public image as a kinder, gentler agency is pretty much in the past. ...

Nobody knows this better than Abelardo Ernest Cruz, who found the IRS aiming to shut down his Miami tax preparation service for good.

Yet Cruz won a big battle last month that will give his industry some muscle if the federal tax agency comes looking to levy the "business death penalty" for preparer services that run afoul of the agency.

The 11th U.S. Circuit Court of Appeals, with retired U.S. Supreme Court Justice Sandra Day O'Connor writing for a three-judge panel, upheld a district court order that the IRS was not entitled to shut down Cruz's tax preparation company  ...

Garvin [attorney for Cruz] ... said he warned the IRS before going after Nations Business Center. He said the Justice Department wanted to negotiate but said the IRS was calling the shots.

"I told the IRS, 'You do not want to bring this case. You are going to make bad law for yourself. You are going to undo all the work you have done,'" Garvin said.

"They did not listen, and to some extent, I think it became personal."

There is a reason why administrative law should be passionless.  When the eight hundred pound gorilla gets angry, it can break things.  EMM

Procedural due process

From Albany Dean Patty Salkin's Law of the Land blog, "Decision Maker Bias and Ex Parte Communications in the Zoning Process Results in Due Process Violation".

Plaintiff ... purchased an option on property ... with the intention of developing high rise condos and townhomes, known as Parc Centrale.  The property was zoned in the OR3 district, which restricts the height of buildings to 6 stories or 84 feet, and due to its location near the ordinary high water mark, it was also subject to Shoreland Overlay District standards, which impose a height restriction of 2.5 stories or 35 feet.  In July of 2004, Plaintiff applied for [variances] to increase the maximum permitted height to 21 stories or 230 feet and to allow for a multiple family project with 104 units, and 2 variances to reduce the corner side yard and rear yard setback.  In August of 2004, the City of Minneapolis Planning Commission, acting on recommendation by the CPED, denied the application.

In September 2004, the Zoning and Planning Committee denied the application and ten days later the full City Council upheld the decision.  Plaintiff purchased property later that month ...

Plaintiff alleged that the City violated the equal protection clause by routinely issuing variances to similarly situated applicants without requiring a showing of hardship. The projects Plaintiff compared itself to, however, were not similarly situated, as they were subject to different zoning requirements and criteria, involved different settings, circumstances and time periods.  Even if the other projects were similarly situated, the fact that Parc Centrale did not meet applicable zoning standards and requirements gave the City a rational basis for giving differential treatment.  Plaintiff also failed to offer applications of the other applicants to show they did not demonstrate hardship, but were nevertheless granted a variance.

As to the substantive due process claim that the City acted arbitrarily and capriciously in denying Plaintiff’s application, ... the existence of one reasonable, factually based ground for denial was legally sufficient to survive substantive due process scrutiny.  Here, the City’s finding that Parc Centrale was inconsistent with the Comprehensive Plan, which was to ensure new residential developments contribute to the sense of neighborhoods through appropriate site planning and design, was rational because Parc Centrale called for a 21 story glass façade slender tower amidst a neighborhood consisting entirely of low rise residential and office buildings.

Plaintiff’s procedural due process rights were violated when City Council member Lisa Goodman took a position in opposition to Parc Centrale and exhibited a “closed mind” prior to hearing Plaintiff’s appeal and the meeting of the full City Council.  The timeline of events showed she “was clearly involved in an effort not only to assist to organize and mobilize neighborhood opposition to the project, but also to sway the opinions of her fellow council members.”  Instances where Goodman demonstrated a bias or conflict of interest include several critical communications to other Zoning and Planning members that were not included in the “official record,” depriving Plaintiff of the entitlement to a public hearing that was to be conducted full and open disclosure and in a fair and meaningful manner.  Since the City condoned the unlawful conduct of Goodman, she acted under the color of state law giving Plaintiff a cause of action under 42 USC § 1983.  The court awarded $500,000 in damages to Plaintiff  ... for out of pocket expenses and attorney’s fees...

The City plans to appeal.  It is not clear to me that one prejudiced member on an elected City Council is enough to demonstrate the level of bias necessary to show a violation of procedural due process.  Would her recusal have made a difference in the result?  When we have an explicitly political body in the approval process, we expect political behavior.  The Planning Commission and Zoning and Planning Committee hearings, if fair, should have provided sufficient due process protections.  Also, note the remedy did not include the difference in value between the property with and without the variances.  Both parties have something to lose on appeal.   EMM

New administrative law articles

From the University of Washington's Current Index to Legal Periodicals:

• Goering, J. Lyn Entrikin. Tailoring deference to variety with a wink and a nod to Chevron: the Roberts Court and the amorphous doctrine of judicial review of agency interpretations of law. 36 J. Legis. 18-90 (2010). [H]|[L]|[W]

• Rubenstein, David S. "Relative checks": towards optimal control of administrative power. 51 Wm. & Mary L. Rev. 2169-2241 (2010). [H]|[L]|[W]

• Saunders, Raymond M. and Patrick Butler. A timely reform: impose timeliness rules for filing bid protests at the Court of Federal Claims. 39 Pub. Cont. L.J. 539-581 (2010). [H]|[L]|[W]

EMM

Following the rules

Governments have the authority to do many things, but whatever they do they must follow their own rules.  They can change their rules, but in doing so must follow the rules for changing rules.  "Amending local civil service commission rules" on Harvey Randall's New York Public Personnel Law blog describes an opinion of the New York Attorney General counseling the City Council of New York City on this rule.

The New York City Council “jurisdictionally reclassified” a number of city positions without first holding a public hearing concerning the change. New York City’s Director of Personnel advised the State Civil Service Commission that under the circumstances he believed that the State Commission had “no authority to disapprove the proposed changes and should simply note them in its records.”

... The Attorney General began his analysis by noting that in such matters the courts “have required strict compliance with Section 20.2,” citing Joyce v Ortiz, 108 AD2d 158. ...

The key to resolving the issue turned on whether a municipal legislative body was to be equated to the State Legislature for the purposes of Section 20.2, because that Section provides an exception for the Legislature. Section 20.2 specifically indicates that no public hearing is required upon the adoption or modification of a rule required “by reason of a change in any statute in order to confirm the rule to the statute.”

The Attorney General concluded that exception set out in Section 20.2 for conforming to a change in the law “is best given effect by reading ‘statute’ as a reference to a State law, rather than a local enactment.” Accordingly, he advised the State Commission that a political subdivision of the state must comply with the notice, hearing and approval procedures set out in Section 20 if it wishes to amend its personnel rules, including adopting amendments establishing new titles in other than the competitive class and jurisdictionally reclassifying existing positions.

EMM

Judicial deference: Court sends one to the agency

U.S. Law Week highlights an interesting case in "‘Unfunded Mandate' Claims Not Ripe In Connecticut No Child Left Behind Case", 79 U.S.L.W. 1165 (Aug. 8, 2010).

Connecticut's claims that it is being forced to use its own funds to comply with the No Child Left Behind Act—in violation of the statute's “Unfunded Mandate Provision”—are unripe, and would benefit from an initial round of administrative proceedings, the U.S. Court of Appeals for the Second Circuit held July 13 (Connecticut v. Duncan, 2d Cir., No. 08-2437-cv, 7/13/10). ...

However, while Judge Barrington D. Parker Jr. conceded that a district court could resolve the dispute on its own, he concluded that the development of an administrative record would both aid the trial court and also increase the chance of the parties resolving the dispute on their own.

And told the state to take the matter up with the Department of Education first. EMM

Regulatory takings: Penn Central pwns Nollan/Dolan in the 9th Circuit

I'm not sure if "regulatory taking" falls under Administrative Law, but if you think it does you might glance at "Ninth Circuit Rejects Takings Challenge to Affordable Housing Regulations and Endangered Species Protections" on The Public Blawg from Myers Nave (California).

... In Mead v. City of Cotati, Ninth Circuit Case No. 09-15005, PLF [Pacific Legal Foundation] sued the City and state and federal wildlife agencies on behalf of a housing developer alleging various constitutional claims resulting from two conditions included in the Cotati Planning Commission's decision to issue a permit for his project - (1) comply with the City's affordable housing regulations and (2) comply with guidance issued by the wildlife agencies for the protection of the endangered CTS [an endangered species].

The Pacific Legal Foundation argued that both conditions were exactions and therefore should be analyzed under the takings test set forth in Nollan v. California Coastal Commission, 483 U.S. 825 (1987) and Dolan v. City of Tigard, 512 U.S. 374 (1994). They then argued that equitable relief is an available remedy under the Nollan/Dolan test and asked the court to enjoin the City from enforcing the two conditions. The City, represented by Meyers Nave, disagreed and explained that (1) the issues were not ripe for review, (2) a generally applicable development fee is not a land use exaction, and 3) the proper test to determine whether a taking had occurred was the Penn Central test, not the Nollan/Dolan test. ...

EMM

Theory: Rao on legal interpretation from the Executive's perspective

On SSRN, "The President’s Sphere of Action" by Neomi Rao (George Mason). Abstract:

To what extent can the President say what the law is? An answer to this question is usually sought by focusing on the President’s affirmative powers and duties. This article takes a different approach by examining the constitutional limits on the President’s interpretive authority. The Constitution confers on each branch the means of self-defense commensurate to its constitutional powers, and it gives the President the ability to check the other branches quickly and with precision. By contrast, Congress and the Supreme Court may challenge the President, but their processes require greater consensus and move more slowly. The President enjoys a wide sphere of action as seen by the type of limits placed on his powers and the significant means given to the President to defend his office from the other branches. The structure and design of these constitutional limits supports a powerful and independent authority for the President to say what the law is.

EMM