Administrative Law Prof Blog

Policy: State regulation report card from the Institute for Policy Integrity

From the Institute for Policy Integrity at NYU School of Law, Jason A. Schwartz, 52 Experiments with Regulatory Review:  The Political and Economic Inputs into State Rulemaking (November 16th, 2010).

Nearly twenty percent of the American economy is regulated by state governments. But there are major concerns about how regulatory decisions are made. Although states routinely regulate industries whose economic footprints climb into the hundreds of millions of dollars, these rules are often made ad hoc, risking inefficient results that limit public benefit.

After more than a year of research, surveys, and analysis, Policy Integrity is the first to compile the regulatory practices of all fifty states (plus D.C. and Puerto Rico) in one document. Comparing each set of laws and guidelines on paper to direct feedback from leaders on the ground, the report assigns states a grade based on an evaluation of the quality of their review process. The results of “52 Experiments with Regulatory Review,” which finds signficant flaws with state level regulatory review, indicate that billions of dollars and important environmental and public health protections are at risk. States earned an average grade of “D+” with the lowest possible grade being a “D-.”

Download the report as a PDF file here. EMM

New administrative law articles

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

• Endres, A. Bryan and Michaela N. Tarr. United States food law update: initial food safety restructuring efforts, poultry production contract reforms and genetically engineered rice litigation. 6 J. Food L. & Pol'y 103-138 (2010). [H]|[L]|[W]
  
  
• Leibovitch, Emilie H. European Union food law update: a special look at the Treaty of Lisbon and its impact on European agricultural policy. 6 J. Food L. & Pol'y 139-149 (2010). [H]|[L]|[W]
  
  
• Levinson, Ariana R. Lawyers as problem-solvers, one meal at a time: a review of Barbara Kingsolver's Animal, Vegetable, Miracle. 15 Widener L. Rev. 289-300 (2009). [H]|[L]|[W]
  
  
• Mullins, Matt. Comment. Not COOL: the consequences of mandatory country of origin labeling. 6 J. Food L. & Pol'y 89-102 (2010). [H]|[L]|[W]

EMM

Class actions in administrative cases

Interesting discussion of an unusual action on the New York Public Personnel Law: "Class actions challenging administrative decisions".

“Class action” relief is rare in the public sector because courts have traditionally viewed expanding the “plaintiff class” to all members of a certain group unnecessary due to the legal principle called stare decisis (to abide by past decisions).

Stare decisis is the judicial doctrine that once a court has laid down a principle of law applicable to a certain set of facts, that principle will be applied in future cases involving the same facts. For example, if a public employee wins the right to overtime as a result of a court’s interpretation the Civil Service Law, all similar situated public employees would have an identical right to overtime under stare decisis.*

However, there can be exceptions to this general rule about the inappropriateness of class actions by public employees. The Appellate Division’s consolidated decision in Holcomb and Hetherington cases illustrate such an exception.

...

EMM

Policy: Barkow on institutional design to avoid agency capture

There is an interesting preprint on Texas Law Review's See Also blog, "Insulating Agencies: Avoiding Capture Through Institutional Design" by Rachel E. Barkow (NYU), to appear at 89 TEXAS L. REV. 15.

In this Article, Prof. Barkow explores the issue of insulating agencies from capture. Rather than continuing to focus on the traditional hallmarks of agency independence, she identifies elements of agency design, or “equalizing factors,” that have received minimal attention in the academic literature but that might prove useful in preventing capture. Among others, the traditional hallmark of an independent agency is that its head can only be removed for good cause, not at the President’s will. Yet, insulation from the President is generally not the reason for creating independent agencies; instead, it is to prevent the agency from being captured by the regulated entity.

The equalizing factors that the author identifies are an agency’s source of funding; qualifications for appointment and post-employment restrictions for agency officials; the agency’s relationship with other federal agencies; the agency’s relationship with state-level actors; and various political tools including the agency’s ability to generate politically powerful information, its ability to recruit political benefactors, and the potential for public advocates to become part of the agency structure.

After detailing these factors, the author compares them with the traditional elements of agency independence in an effort to demonstrate the limits of the traditional approach and the promise of the equalizing factors. To do so, she explores the comparison in the context of consumer protection, an area highly prone to capture.

As part of this discussion, the author focuses on the recently created Bureau of Consumer Financial Protection (CFPB) to illustrate the ongoing risk of capture and the importance of institutional design in guarding against it. The author highlights that the success of the CFPB will likely depend on how well its structure insulates it from capture. As a powerful example of the limitations of the traditional hallmarks of agency independence, the author considers how agency design affected the Consumer Products Safety Commission, and in light of the its fate, how agency design might affect the CFPB. As such, this article is one of the first detailed studies of the CFPB.

There is also a response from Nicholas Bagley (Michigan), "Agency Hygiene". EMM

Theory: Jellum on Beermann on Chevron

On Jotwell: Administrative Law, "Jettisoning Chevron" by Linda Jellum (Mercer) reviews a recent paper by Jack M. Beermann (Boston University), End the Failed Chevron Experiment Now: How Chevron Has Failed and Why It Can and Should Be Overruled, 42 Conn. L. Rev. 779 (2010), available at SSRN. (BTW, Prof. Beermann is also a contributing editor for Jotwell: Administrative Law.) It begins:

As one academic, among many, who has made my scholarly reputation based in part on the landmark case of Chevron U.S.A., Inc. v. Nat. Resources Defense Council, 467 U.S. 837 (1984), I noted with some concern Professor Jack Beermann’s latest  work entitled:  End the Failed Chevron Experiment Now:  How Chevron Has Failed and Why it Can and Should be Overruled. Overrule Chevron?  End the experiment? Say it ain’t so! Hadn’t Chevron offered “a wonderful new world … full of promise for administrative-law professors in need of tenure articles….?”  National Cable & Telecommuns. Ass’n v. Brand X Internet Serv., 545 U.S. 967, 1019 (2005) (Scalia, J., dissenting).

I approached his article with some trepidation but also with great interest.  Why would anyone want to overrule Chevron?  Professor Beermann succinctly answers this question in his abstract:  “Chevron has complicated judicial review and, at best, it is uncertain whether it has resulted in increased deference to agency interpretation. In fact, for numerous reasons, Chevron has been a failure on any reasonable measure and should be overruled.”  Intrigued, I forged ahead.

EMM

Policy: Adler on gamesmanship v. entrepreneurship

Jonathan Adler has posted "Gamesmanship Pays Better than Entrepreneurship"  on The Volokh Conspiracy. It starts with:

If you wanted to get rich, would you invest your energies in starting a business to sell an innovative new product or service, or would you move to Washington, D.C. and become a lobbyist?

Read it. EMM

Constitutional law in administrative cases

Land use law is such an interesting branch of administrative law, and profitable if you can get the clients. Patty Salkin (Albany) describes a recent Federal case on her Law of the Land blog that shows how these cases can rise above questions of regulatory interpretation to major issues of Constitutional law in "NY Federal District Court Dismisses Takings Claim but Allows Section 1983 Claims to Proceed":

Plaintiff, Soundview Associates, owned 144-acre parcel of land on which they intended to build a spa. In 1982, at the request of Soundview’s predecessor-in-interest, Riverhead Flag Corporation, the Town rezoned the site to a Recreational Use in order to enable them to improve the sites and build condominiums while continuing to use and operate the existing golf course, tavern, restaurant, and retail store. They also indicated a desire "to utilize the premises for the purposes of a health spa". The Town issued a special use permit to the Riverhead Flag Corporation. Soundview Associates asserts that that special permit “ran with the land, had no expiration date, and, was at no time revoked by the Town of Riverhead.”

However, in 1983, the Town adopted Resolution No. 161, which approved the proposed condominiums, but not the health spa.  In 1984, another predecessor-in-interest called Baiting Hollow Development Corporation, executed a “Grant of Scenic Easement with the Town of Riverhead,” providing them with a “‘recreational scenic and conservation use easement’” and restricting the site to: a golf club or course, associated facilities such as a restaurant or tavern, jogging or cycling paths, retails stores specializing in golf, swimming, and tennis, and “any other compatible recreational uses.”

In 1986, the property was acquired by Soundview Associates. Shortly thereafter, the Town passed Resolution No. 184, which allowed the addition of a restaurant to the clubhouse and the creation of a pond within the site. Soundview was also granted permission to alter the boundary of the easement for condominium units. In 1996, Soundview leased the golf course to Rugby Recreational Course, LCC. They continued to reserve seven acres of the land for themselves in order to develop a health spa. In 2002, Soundview applied for the special permit in order begin development on the health spa (which would be situated on approximately 2.5 acres of land). However, the Planning Department of the Town of Riverhead denied the application, as they determined that the health spa was “inconsistent with the easement grant.” This decision was codified under Resolution No. 1261.

In response, in 2004, Soundview commenced an Article 78 proceeding [in state court] against the Town, requesting that Resolution 1261 be repealed and that Soundview’s application be granted through a declaratory judgment. The town, in response, filed a motion to dismiss. The trial court denied this request, “except as to the Soundview’s cause of action to compel the Town to process [its] application,” since “the easement grant allowed for ‘other compatible recreational uses,’ and the evidence submitted did not negate the creation of a health spa as part of this definition.” In 2005, the Town moved once again to dismiss Soundview’s claim, as the entire town had been rezoned and the site property was now located in a residential district. The trail court granted the motion to dismiss.

Soundview brought the present action, alleging that the Town threatened Rugby “that if Soundview did not withdraw its appeal and its applications…for the health spa, Rugby’s applications for the clubhouse would be denied.” Therefore, Soundview claimed that it felt pressured to accede to the demands of the Town. This provided the basis for the plaintiff’s first cause of action—mainly that Soundview’s First Amendment right to “petition the government for the redress of grievances” had been violated, specifically that the defendants interfered with Soundview’s right to file an appeal with the Appellate Division.

The plaintiff also brought a Section 1983 claim alleging violations of  procedural due process ...

With respect to the substantive due process claim, the Court found that Soundview did demonstrate a legitimate property interest. The Court found that Soundview, “vis a vis its predecessor in interest, became vested with a special permit to, inter alia, construct a health spa on the subject property” which petitioner claimed was not revoked and ran with the land.  It further argues that the Town “deliberately ignored and failed to process plaintiff’s site plan application but recommended that plaintiffs separate special permit application be denied.” This was enough to satisfy the property interest prong.  The second prong of the substantive due process test required Soundview to demonstrate that the Town had infringed on its property interest “in an arbitrary or irrational manner.” Soundview alleged that the Town acted in arbitrarily and incorrectly in reasoning that the health spa was outside the bounds of the original easement grant.  Furthermore, the plaintiff alleged that it was pressured and coerced by the defendants to abandon its application in 2006 by their refusal to grant Rugby’s application. The Court held that Soundview had a legitimate substantive due process claim in that the Town’s actions were “‘arbitrary,’ ‘conscience shocking,’ or ‘oppressive in the constitutional sense’ not merely ‘incorrect or ill-advised.” The Court also found that the Town improperly delayed Soundview’s zoning application, and that their attempts to appeal were denied due to the Town’s coercion and threat.

Soundview’s First Amendment claim, that the Town interfered with its constitutional right to access to the court to redress grievances, was also properly asserted. In order to establish this claim, the Court noted that Soundview would have to demonstrate that (1) it had a First Amendment protected interest, (2) that the Town was motivated by Soundview’s exercise of that right, and that (3) the actions of the Town effectively denied Soundview of their right. The first prong was established, as the Court found that Soundview had a First Amendment right to petition the government to redress grievances. The second prong was also recognized, as the plaintiff had a “plausible claim of First Amendment retaliation” in that the Town “‘threatened representatives of the plaintiff’s tenant, Rugby, that if Soundview did not withdraw its appeal and its applications for use and construction of the health spa, Rugby’s applications for the clubhouse would be derailed.’” Lastly, the third prong was fulfilled since “the plaintiff adequately alleged that it changed its behavior due to defendants’ alleged retaliation” (that as a result of the Town’s threat against Rugby, Soundview withdrew its appeal and applications).

Soundview also brought an individual liability claim under Section 1983 against defendants Ehlers and Thomas, two of the officials that allegedly pressured Soundview to withdraw its appeal and applications through the threatening of Rugby.  The Court held that Soundview properly demonstrated that there was personal involvement in the alleged discrimination noting that plaintiff firmly maintained that these two individuals “unequivocally told Rugby’s Manager that the Town would not process Rugby’s application…until Soundview’s appeal with the Appellate Division and its applications…were withdrawn.” Therefore, the individual defendants were personally involved in the matter. The Court further denied that qualified immunity applied here, stating that if all plaintiff’s allegations against these individuals were proven true, they would not be protected “because these were all clearly established rights and it would not be objectively reasonable for an official to believe that such conduct did not violate plaintiffs rights.”

These cases get hot when a lot of money is involved, public opinion opposes the project, or public officials behave stupidly. In this case, the first condition can be inferred, the second can be suspected, and the third is obvious. You know that if the two officials had asked the Town Attorney before talking to the tenant that the Attorney would have said "Noooooooo!" 

Note that this is a Rule 12(b) motion to dismiss, and the plaintiff still has come up with evidence. But this shows the elements of these claims that need to be pled and proved. EMM

New administrative law articles

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

• Braddy, Lauren. Note. Losing the race never run: how Igal v. Brightstar Information Technology Group, Inc. impacts administrative agency orders in Texas. (Igal v. Brightstar Info. Tech. Group, Inc., 250 S.W.3d 78, 2008.) 62 Baylor L. Rev. 521-536 (2010). [H]|[L]|[W]
• Deacon, Daniel T. Note. Deregulation through nonenforcement. 85 N.Y.U. L. Rev. 795-828 (2010). [H]|[L]|[W]
• Kerr, Christophir. What the real Jack Bauers really need: a new subpoena. 1 Wm. & Mary Pol'y Rev. 51-85 (2010). [H]|[L]|[W]

EMM

Conflicting rules

One of the most enjoyable times for administrative lawyers - and one of the most frustrating for our clients - is when two rules or statutes appear to be in conflict. Patty Salkin (Albany) discusses such a situation on her Law of the Land blog in "ME Supreme Court Holds that Boarding of Horses Constitutes Animal Husbandry Under the Zoning Ordinance":

Petitioner Golick appealed from the judgment of the Superior Court vacating the Code Enforcement Officer’s (CEO) decision issuing them a building permit for a horse barn and indoor riding arena. Golick planned to use the building to board others’ horses and provide an indoor riding arena to exercise the horses. Despite an abutting land owners (Rudolph) objection to Golick’s request, the CEO issued a building permit that included a prohibition on the use of the facility for horse shows or public riding lessons. Rudolph appealed the CEO’s decision to the Zoning Board which upheld the decision as a permitted use because the relevant ordinance defined “animal husbandry” as the “keeping of any domesticated animals other than household pets” and further that nothing in the Ordinance prohibited a property owner engaged in the permitted use of animal husbandry from deriving income from that use. On appeal, however, the Superior Court reversed determining that the use more closely constituted commercial recreation than animal husbandry and thus was a prohibited activity.

The Supreme Court ... found that in strictly construing the ordinance language, there existed no prohibition on earning income from the keeping of others’ domesticated animals. Further, the Court found that the Board initially considered the fact that Golick would earn money from his horse boarding but the Board found that earning profit alone did not make Golick’s proposal that of “commercial recreation.” Additionally, the Board also approved the permit restrictions that barred recreational uses by the public such as horse shows. As a result, the Court concluded the Board’s findings were not clearly erroneous and did not err in concluding that boarding horses constitutes “animal husbandry.”

There are several admin law principles involved in this decision. The Supreme Court chose the more liberal definition of the ordinance from the perspective of the regulated person. The Court largely deferred to the Board, imposing the very high "clearly erroneous" standard to support the Board's factual findings. On the issue of which category applied - "animal husbandry" or "commercial recreation" - the Superior Court erred in trying to second guess the Board's application of the ordinance. That's not a reviewing court's job. The place for arguing which category applied was before the Board. EMM

Blogs every law professor should monitor

If you are not monitoring the following blogs, you are falling behind your peers - and your students.

• LAW.COM (start at http://www.law.com/jsp/law/rss.jsp)
  
  
• JURIST - Paper Chase (http://jurist.law.pitt.edu/paperchase/)
  
  
• SCOTUSBLOG (start at http://www.scotusblog.com/2010/11/scotusblog-4-0-and-the-rss-feeds-feature/)
  
  
• Legal Scholarship Blog (start at http://legalscholarshipblog.com/2010/11/22/tip-use-our-categories/)
  
  
• And the appropriate blog(s) from the LAW PROFESSOR BLOG NETWORK (http://www.lawprofessorblogs.com/)

Except for Paper Chase (which is not terribly burdensome), each of these networks and blogs permits you to narrow your subscription to the news you need. There may be other sources you need to follow in your specific areas of interest (see the blogrolls in the subject blogs in the LAW PROFESSOR BLOG NETWORK ), but all of us need to follow these five+.

Make it so!

Shameless self-promotion: For more on keeping up, see my article "How To Drink From a Firehose Without Drowning" in SSRN.

This post: Creative Commons — Attribution-ShareAlike. EMM

No government liability for a mistake in discretionary act

Lay members of the public often don't understand this, but governments are not liable for their bad or erroneous decisions in court. See, for example, the discussion on the Law of the Land blog of Patty Salkin (Albany), "MN Appeals Court Holds City is Not Liable for Issuance of Building Permit by Mistake":

A city planner issued a permit to demolish an existing house and build a new duplex on a 6,000 square-foot lot, based on a checklist of features. The planner mistakenly believed that the existing structure was a duplex, but was not misled by the owners. The ordinance requires a minimum lot size of 10,000 square feet if a duplex is to replace a single-family dwelling. After the demolition was complete and a foundation had been laid, the city issued a stop-work order. The owners sought a variance and the planner and planning commission agreed that one should be granted. The Board of Adjustment, however, denied the variance. The owners appealed and asserted that the city was negligent in issuing a permit and further, that the city should be estopped from denying the permit. The trial court held that the city was immune from negligence claims and also that the city was not estopped from denying a permit and not liable for damages.

The appeals court affirmed, holding that issuance of a building permit is a discretionary function for which a municipality is not liable under Minn. Stat. § 466.03. The checklist approach requires the municipal employee to make a number of decisions and the applicants, in this case experienced landlords, are charged with knowledge of the law. The owners did not establish malfeasance sufficient to support a claim of estoppel by showing that the letter informing them of the problem was dated three weeks before it was received.

The remedy for government incompetence is the ballot box, unless the government says otherwise. EMM

It ain't over 'til it's over

Here is another aspect of the question of finality in agency action. See the last sentence of this post from the Law of the Land blog of Patty Salkin (Albany), "11th Circuit Court of Appeals Upholds Zoning Official’s Denial of Applications Where Former Official Did Not Sign a Certificate of Compliance":

Defendant zoning official was sued for alleged tortious interference because she denied various zoning permit applications.  Plaintiff submitted six zoning applications to be reviewed for compliance, and five were denied by Defendant. This followed a review by a former zoning official who had allegedly recommended approval of the permits, but never put such in writing. The Plaintiff alleged that the denials were based on a “re-review” of the applications and that such denials were the result of political opposition to the development project. Plaintiff challenged the denials in the Town’s Board of Adjustment but the Board rejected the challenge. The circuit court and Florida court of appeals also rejected the challenge.  Plaintiff eventually filed a federal lawsuit and the district court granted summary judgment in favor of the Defendant.  The Court of Appeals determined that that the district court correctly found that Defendant was justified in reviewing the zoning applications from Plaintiff and that she was also justified in approving or denying the applications based upon her findings.  The Court noted that the earlier review was not completed and was a work in progress, as no certificates of compliance had been signed by the former zoning official.

EMM

Hernandez Lopez on local regulation and culture clashes

New on SSRN: "LA’s Taco Truck War: How Law Cooks Food Culture Contests" by Ernesto Hernandez Lopez (Chapman). Abstract:

This paper examines the Los Angeles “Taco Truck War” (2008-9), when the city of Los Angeles and LA county used parking regulations to restrict “loncheros,” i.e. “taco trucks.” It describes the legal doctrine used by courts to invalidate these local restrictions. The California Vehicle code makes local food truck regulations illegal. Decades of court decisions affirm this. The paper sheds light, legal and cultural, on food truck debates, which will surely expand nationwide. It examines: the cultural and business arguments for food truck regulations; food’s role in migrant, community, and national identities; Mexican food’s influence in California culture; and recent trends in food trucks such as Koggi BBQ.

Interesting perspective on the use and misuse of local regulation in its cultural context. EMM

New administrative law articles

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

• Hall, Matt. Note. The role of the exhaustion and ripeness doctrines in reasonable accommodation denial suits under the Fair Housing Amendments Act. (Bryant Woods Inn, Inc. v. Howard County Maryland, 124 F.3d 597, 1997.) 24 BYU J. Pub. L. 347-370 (2010). [H]|[L]|[W]
  
  
• Roof, Brittany A. The Federal Communication Commission's new enforcement policy, which penalizes broadcasters for airing even a "fleeting expletive" in violation of the statutory indecency ban, is not arbitrary and capricious under the Administrative Procedure Act. (FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800, 2009.) 48 Duq. L. Rev. 699-722 (2010). [H]|[L]|[W]

EMM

Advising clients

There is a nice example of a client-advice-article beginning on page 4 of the Piliero Mazza PLLC LEGAL ADVISOR newsletter for the 4th Quarter of 2010, "Managing OSHA inspections and citations" by Kelly E. Buroker. Opening paragraph:

Very few things are as disruptive and potentially harmful to a company as being subjected to an Occupational Safety and Health Administration (OSHA) inspection. And while properly handling OSHA inspections is essential for any company, it is even more crucial for companies that do business with the federal government. This is particularly true given the current political climate that is likely to result in an increased number of OSHA inspections of government contractors, as well as increased consideration of OSHA violations in contract awards.

Thanks to Lexology for the pointer. EMM

Legislative history and agency authority

Here is a fun little opinion from the Arizona Court of Appeals with lessons on statutory interpretation and trying to take things too literally. Anderson v. Arizona Game and Fish Department, 2 CA-CV 2010-0098 (Nov. 8, 2010).

¶1 Ralph Anderson appeals from the superior court's order affirming the Arizona Game and Fish Commission's decision revoking his hunting, fishing and trapping licenses (referred to herein as licenses) and denying him the right to secure additional licenses for a period of ten years consecutive to a previously imposed revocation term. Anderson argues on appeal that the Commission lacked the statutory authority under A.R.S. § 17-340 to impose consecutive sanctions and lacked jurisdiction to revoke his previously revoked licenses. ...

¶2  The relevant facts are undisputed. In September 2007, Anderson was convicted of the unlawful taking of wildlife out of season. Pursuant to § 17-340, the Commission revoked his licenses and denied him the right to re-apply for additional licenses for a period of five years. In November 2007, Anderson was convicted of an unrelated second violation of game and fish laws-taking game in excess of the bag limit.

So the Commission revoked "any and all licenses" and denied him the right to new licenses for ten years, this ten year period to begin at the expiration of the previously imposed five year term. The Superior Court affirmed, finding that the Commission's decision was neither arbitrary nor capricious and that the Commission could impose consecutive sanctions. Under Arizona statutory law, the Superior Court "shall affirm the agency action unless . . . [it] is not supported by substantial evidence, is contrary to law, is arbitrary and capricious or is an abuse of discretion." Anderson argued that the Commission's penalty was contrary to law because it did not have the authority to impose consecutive sanctions for multiple violations.

¶5 Section 17-340 provides, in relevant part:

   A. Upon conviction . . . and in addition to other penalties prescribed by this title, the commission, after a public hearing, may revoke or suspend a license issued to any person under this title and deny the person the right to secure another license to take or possess wildlife for a period of not to exceed five years for:

   1. Unlawful taking, unlawful selling, unlawful offering for sale, unlawful bartering or unlawful possession of wildlife.    . . . .

   B. On conviction or after adjudication as a delinquent juvenile and in addition to any penalties prescribed by this title:    . . . .

   2. For a second conviction or a second adjudication as a delinquent juvenile, for unlawfully taking or wounding wildlife at any time or place, the commission, after a public hearing, may revoke, suspend or deny a person's privilege to take wildlife for a period of up to ten years.  

¶6 An administrative agency has only the authority granted by the legislature through its enabling legislation.  Harvey, 211 Ariz. at ¶ 13, 119 P.3d at 1030; LaWall, 212 Ariz. at ¶ 6, 134 P.3d at 397. The superior court found the Commission had authority to impose consecutive sanctions because § 17-340(B) permits the Commission to revoke a person's privilege to take wildlife for a second violation "[i]n addition to any other penalties prescribed by this title." We disagree that the Commission has such authority.

Here we get into statutory interpretation. I've omitted case citations.

¶7  "The primary rule of statutory construction is to find and give effect to legislative intent." We first look to the plain language of the statute as the best reflection of the legislature's intent. And if that language is unambiguous, we give effect to it and do not employ other rules of statutory construction to determine the statute's meaning. The phrase, "[i]n addition to any other penalties prescribed by this title," does not explicitly authorize consecutive sanctions. It instead may permit a person to be sanctioned under multiple sections of the title for one offense.  For example, the Commission may revoke a person's license under § 17-340(A) and simultaneously suspend his privileges under § 17-340(B). Or a repeat offender may have his hunting privileges revoked under § 17-340(B) and also be found guilty of a class one misdemeanor under A.R.S. § 17-340(H) for taking wildlife while his privileges are revoked.

¶8  To the extent the statutory language is ambiguous, we may look to the legislative history in order to interpret the statute and determine the legislature's intent. "[U]ncertainty about the meaning or interpretation of [a] statute's terms requires the appellate court to apply methods of statutory interpretation that go beyond the statute's literal language, [including consideration of] the statute's . . . historical background." Although neither party presented the superior court with the legislative history of § 17-340, we consider it in order to construe the statute. "[W]hen we are considering the interpretation and application of statutes, we do not believe we can be limited to the arguments made by the parties if that would cause us to reach an incorrect result.".

¶9  The legislative history of § 17-340 shows a 2006 amendment of the bill, as initially introduced, would have granted the Commission explicit authority to "deny a person's privilege to take or possess wildlife for a period of not to exceed five years per violation, which may run consecutively." H.B. 2129, 47th Leg., 2d Reg. Sess. (Ariz. 2006) (introduced version). Subsequent amendments to the 2006 bill removed the Commission's power to impose consecutive sanctions, moved all references to "privileges" to subsection (B), and specified new maximum sanction periods for subsequent violations. H.B. 2129, 47th Leg., 2d Reg. Sess. (Ariz. 2006) (Senate engrossed version); Minutes of House Comm. on Approp., 47th Leg., 2d Reg. Sess. (Feb. 22, 2006) (amendment "[r]emoves the provision that penalties imposed by the Commission may run consecutively"). Because the statute's language does not grant the Commission the express power to impose consecutive sanctions, and further because the legislature considered and rejected granting that power, we hold § 17-340(B) does not grant the Commission authority to impose consecutive sanctions on offenders for repeat offenses.

One of the great things about legal research in Arizona is that all of these materials are available free on the State Legislature's web site, going back to 1997. Anderson also tried several "lawnmower law" arguments. He tried estoppel:

We also disagree with Anderson's suggestion that his sanction should be limited to his initial five-year revocation because the Commission "knew" he had committed two violations at the time of his first hearing. The Commission specified that its first sanction was in response to the first violation only. Anderson offers no support for his argument that the Commission cannot address the violations separately.

Footnote 3. And he tried to argue that because his licenses had already been revoked for the first offense, he had no licenses to be revoked for the second:

¶12 Anderson notes he had no valid licenses to be revoked. However, the order simply revoked "any and all" licenses issued to Anderson. Because Anderson then had no current licenses, however, the practical current effect of the Commission's order was to revoke no license, but it ultimately would have the effect of revoking his privilege to take wildlife for the remainder of the ten-year period once the previously imposed five-year license revocation sanction expired. Although the Commission's language in this regard may have been partially superfluous, it was not improper-the Commission had the authority pursuant to § 17-340(A) to revoke any licenses Anderson may have had.

There were some other arguments that the Court did not need to address. I suggest that the last line in paragraph 8 above is important. Unless the court is really lazy, just because the parties fail to brief the legislative history doesn't mean the court won't use it anyway. Even if you firmly believe that the "plain language" of a statute or regulation supports your case, you wouldn't be in the Court of Appeals if some other smart person didn't disagree. So, do your homework and lay out your view of the history anyway. You get to put your spin on it, and it gives the court more reasons to find in your favor. And while one can admire the thoroughness of the Plaintiff's attorney in the case above, unsupported sophistry will rarely win you support from the bench. EMM

 

New administrative law articles

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

• Bales, Richard A. and student Kelli Ann Kleisinger. The validity of the two-member NLRB. 6 Seton Hall Cir. Rev. 261-287 (2010). [H]|[L]|[W]
• Boling, Ted. Making the connection: NEPA processes for national environmental policy. 32 Wash. U. J.L. & Pol'y 313-331 (2010). [H]|[L]|[W]
• Cunniff, Sean. Note. Texas v. United States: mind the gap. (Texas v. United States, 497 F.3d 491, 2007.) 39 N.M. L. Rev. 527-548 (2009). [H]|[L]|[W]
• Ekstrom, Julia A., et al. Gauging agency involvement in environmental management using text analysis of laws and regulations. 6 I/S 189-219 (2010). [H]|[L]|[W]
• Gates, Harrison M. Closing the gap: the Fourth Circuit's narrowing of the ex parte Young exception in Virginia v. Reinhard and the implications for federal rights. 6 Seton Hall Cir. Rev. 221-259 (2010). [H]|[L]|[W]
• Howard, Robert M., Patricia Guerrero and Jason M. Ohta. Test methods matter: representative sampling and Clean Air Act test methods can survive EPA's credible evidence rule. 25 J. Envtl. L. & Litig. 37-84 (2010). [H]|[L]|[W]
• Lavine, Amy and Norman Oder. Urban redevelopment policy, judicial deference to unaccountable agencies, and reality in Brooklyn's Atlantic Yards project. 42 Urb. Law. 287-373 (2010). [H]|[L]|[W]
• Mandelker, Daniel R. The National Environmental Policy Act: a review of its experience and problems. 32 Wash. U. J.L. & Pol'y 293-312 (2010). [H]|[L]|[W]
• Shanor, Marianne Kunz. Case note. Administrative law--the Supreme Court's impingement of Chevron's two-step. (Entergy Corp. v. Riverkeeper, Inc., 129 S. Ct. 1498, 2009.) 10 Wyoming L. Rev. 537-556 (2010). [H]|[L]|[W]
• Straszewski, Glen. The Federal Inaction Commission. 59 Emory L.J. 369-422 (2009). [H]|[L]|[W]
• Thurman, Michael and Michael L. Mallow. "Hid[ing] elephants in mouseholes": the FTC's unwarranted attempt to regulate the debt-relief-services industry using rulemaking authority purportedly granted by the Telemarketing and Consumer Fraud and Abuse Prevention Act. 14 Tex. Rev. L. & Pol. 301-342 (2010). [H]|[L]|[W]
• White-Domain, Rachel. Comment. Making rules and unmaking choice: the federal conscience clauses, the provider conscience regulation, and the war on reproductive freedom. 59 DePaul L. Rev. 1249-1281 (2010). [H]|[L]|[W]
• Annual Review of Administrative Law. Foreword by Jerry L. Mashaw, case study by Wayne A. Logan; student essays by Matthew Albanese, Robert Hatch, Joseph A. Peters, Peter E. Shapiro, Paul T. Stepnowsky and Mark Taticchi. 78 Geo. Wash. L. Rev. 975-1121 (2010). [H]|[L]|[W]
  • Mashaw, Jerry L. The American model of federal administrative law: remembering the first one hundred years. 78 Geo. Wash. L. Rev. 975-992 (2010). [H]|[L]|[W]
  • Logan, Wayne A. The Adam Walsh Act and the failed promise of administrative federalism. 78 Geo. Wash. L. Rev. 993-1013 (2010). [H]|[L]|[W]
  • Albanese, Matthew. Student essay. Reasonably untimely: the difficulty of knowing when to file a claim for attorney's fees in Social Security disability cases, and an administrative solution. 78 Geo. Wash. L. Rev. 1014-1031 (2010). [H]|[L]|[W]
  • Hatch, Robert. Student essay. Reforming the murky depths of Wall Street: putting the spotlight on the Security and Exchange Commission's regulatory proposal concerning dark pools of liquidity. 78 Geo. Wash. L. Rev. 1032-1050 (2010). [H]|[L]|[W]
  • Peters, Joseph A. Student essay. The Meaningful Vote Commission: restraining gerrymanders with a federal agency. 78 Geo. Wash. L. Rev. 1051-1068 (2010). [H]|[L]|[W]
  • Shapiro, Peter E. Student essay. Union shops, not border stops: updating NLRB sanctions to help organize immigrant workers after ... (Hoffman Plastic Compounds v. NLRB, 535 U.S. 137, 2002.) 78 Geo. Wash. L. Rev. 1069-1085 (2010). [H]|[L]|[W]
  • Stepnowsky, Paul T. Deference to presidential signing statements in administrative law. (United States v. Mead Corp., 533 U.S. 218, 2001; Skidmore v. Swift & Co., 323 U.S. 134, 1944.) 78 Geo. Wash. L. Rev. 1086-1101 (2010). [H]|[L]|[W]
  • Taticchi, Mark. Student essay. Avoiding the chill: a proposal to impose the avoidance canon on the FCC. 78 Geo. Wash. L. Rev. 1102-1121 (2010). [H]|[L]|[W]

EMM

Oral assurances by officials - worth the paper they are printed on

From the Law of the Land blog of Patty Salkin (Albany), "TN Appeals Court Rules that Side Bar Conversations by City Officials do not Estopp City Council from Refusing to Take Action":

Plaintiff, before purchasing land, sought approval from the Mayor and other officials of the City and received verbal [oral?] assurances that they would support the plaintiff’s efforts to have the land annexed into the defendant City and have it rezoned so as to permit the building of condominiums.  The council then refused to go forward with the annexation and rezoning until a comprehensive land plan was completed, against the repeated recommendations of the planning commission to just pass a “general” plan. ...

The court then addressed the plaintiff’s argument of estoppel.  The court noted that Tennessee does not liberally apply the doctrine of promissory estoppel, that government entities are not treated the same as private entities under equitable estoppel, and that it takes “‘very exceptional circumstances’ to invoke the doctrine of estoppel against a municipality.”  Given this heightened standard, the court determined the facts alleged did not support a claim of estoppel.  The problem with the estoppel claim was that the plaintiff was trying to use private meetings with public officials to make the defendant do something which requires public meetings and action by the City Council.

EMM

Policy: Privatization and §1983

A debate on The Legal Workshop: "Regulating Privatized Government through § 1983" by Richard Frankel (Drexel) versus "Accounting for the Limitations of Congress's Enforcement Power: A Response to Regulating Privatized Government through § 1983" by Alexander Reinert (Cardozo). EMM

Theory: Ginsburg on "the constitutional character of administrative law"

New on SSRN: "Written Constitutions and the Administrative State: On the Constitutional Character of Administrative Law" by Tom Ginsburg (Chicago). Abstract:

This forthcoming book chapter makes three arguments. First, it argues that the conceptual division between administrative and constitutional law is quite porous, and that along many dimensions, administrative law can be considered more constitutional in character than constitutions. Administrative law is more enduring and at least as constraining as are constitutions. Second, it shows that written constitutions do relatively little to legally constrain the administrative state. Rather, their role is to establish the broader structural apparatus of governance and accountability, in which the bureaucracy is the great unspoken. This leaves administrative law as a relatively free-standing field characterized by great flexibility and endurance, features that are usually thought to be more embodied in constitutions. Third, the chapter concludes that the exercise of comparison helps to expose the limits of written constitutions, and to call for greater attention to comparative administrative law as a feature of the unwritten constitution of nation states.

EMM