July 14, 2008
Circuit Splits and Matters of First Impression
Some odds and ends.
In City of Fort Worth v. Abbott, __ S.W.3d __ (Tex. App. -- Austin, 2008 no pet. h.) the Austin Court of appeals interpreted for the first time Texas's statute concerning its DNA database and the right to privacy of those who submitted DNA information as victims or to be excluded as subjects of a crime.
The Wisconsin Court of Appeals issued a decision addressing the weight to be given to an agency interpretation of a statute that was "very nearly" a matter of first impression in Michels Pipline Constr. v. Labor and Indus. Rev. Comm'n, 750 N.W.2d 485 (Wisc. App. 2008).
A few circuit splits on interpretation that are developing include a recent Sixth Circuit decision, U.S. v. Parrett, __ F.3d __ (6th Cir. 2008). Not only did the court find appellate jurisdiction based upon the Cohen collateral order exception to the final judgment rule, the court furthered a split as to the meaning of 21 U.S.C. § 853, which relates to forfeiture of substituted assets in criminal proceedings.
July 13, 2008
Wisconsin Supreme Court on Deference to Agency Interpretation of Statutes Compared to Rules
This is an interesting decision for anyone interested in Chevron deference type issues, Wisconsin Dept. of Revenue v. Menasha, __ N.W.3d __ (Wis. 2008), available here. What is interesting is that the concurring judge agreed that the standard of review was the "key" to the appeal, and the Chief Judge of the court dissented on that same point. Interesting debate.