Table of Contents
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Doster v. Kendall
Civil Procedure, Government & Administrative Law, Military Law
US Court of Appeals for the Sixth Circuit
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Steigerwald v. Commissioner of Social Security
Class Action, Government & Administrative Law, Legal Ethics, Public Benefits
US Court of Appeals for the Sixth Circuit
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Weiser v. Benson
Constitutional Law, Election Law, Government & Administrative Law
US Court of Appeals for the Sixth Circuit
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Jarnutowski v. Kijakazi
Government & Administrative Law, Public Benefits
US Court of Appeals for the Seventh Circuit
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Integrity Advance, et al. v. CFPB
Constitutional Law, Government & Administrative Law
US Court of Appeals for the Tenth Circuit
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California Water Curtailment Cases
Government & Administrative Law, Real Estate & Property Law
California Courts of Appeal
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Flores v. City of San Diego
Civil Procedure, Civil Rights, Government & Administrative Law, Personal Injury
California Courts of Appeal
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Rodgers v. State Personnel Board
Government & Administrative Law, Labor & Employment Law
California Courts of Appeal
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Colorado in interest of E.A.M. v. D.R.M.
Civil Procedure, Family Law, Government & Administrative Law, Native American Law
Colorado Supreme Court
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Priore v. Haig
Government & Administrative Law, Personal Injury
Connecticut Supreme Court
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Carollo v. Louisiana Dept. of Transportation & Development
Civil Procedure, Government & Administrative Law, Personal Injury
Louisiana Supreme Court
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Carfax, Inc. v. Director of Revenue
Government & Administrative Law, Tax Law
Supreme Court of Missouri
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In re A.M.G.
Family Law, Government & Administrative Law
Montana Supreme Court
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Dutcher v. Nebraska Dep't of Correctional Services
Government & Administrative Law, Labor & Employment Law, Personal Injury
Nebraska Supreme Court
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Barufaldi v. City of Dover
Civil Procedure, Government & Administrative Law, Labor & Employment Law
New Hampshire Supreme Court
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Books-A-Million, Inc., v. South Carolina Department of Revenue
Business Law, Government & Administrative Law, Tax Law
South Carolina Supreme Court
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In re Katzenbach A250 Permit #7R1374-1
Environmental Law, Government & Administrative Law
Vermont Supreme Court
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Seattle Tunnel Partners v. Great Lakes Reinsurance (UK) PLC
Civil Procedure, Contracts, Government & Administrative Law, Government Contracts, Insurance Law
Washington Supreme Court
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Government & Administrative Law Opinions
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Doster v. Kendall
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Court: US Court of Appeals for the Sixth Circuit
Docket:
22-3702
Opinion Date: September 9, 2022
Judge:
Raymond M. Kethledge
Areas of Law:
Civil Procedure, Government & Administrative Law, Military Law
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Secretary of Defense Austin directed that all members of the armed forces be vaccinated against COVID-19. Air Force guidelines allow affected service members to seek exemptions on medical, administrative, and religious grounds. As of May 2022, the Department had denied 8,869 requests for religious exemptions, while granting only 85–all to service members who were separately eligible for an administrative exemption (apparently near the end of their service term). Plaintiffs claimed that the Department’s “systematic” denial of requests for religious exemptions violated the Religious Freedom and Restoration Act and the First Amendment and sought certification of a class of some 10,000 affected service members. Air Force chaplains confirmed that the vaccination mandate substantially burdened sincerely-held religious beliefs. Typically the objections concerned the use of aborted fetal cells in the development of the vaccines. The commanding officers for two plaintiffs recommended that their requests for exemptions be granted, on the ground that less-restrictive means (like masking or social distancing) could satisfy the Air Force’s operational interests. The Department denied those requests.
The court entered an injunction, barring the Department from “taking any disciplinary or separation measures” against the named plaintiffs during the pendency of their lawsuit and certified a class. The Sixth Circuit denied the Department’s motion for an emergency stay but expedited the appeal. The Department has not made a strong showing that it “is likely to succeed on the merits” of its appeal of the class-wide injunction.
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Steigerwald v. Commissioner of Social Security
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Court: US Court of Appeals for the Sixth Circuit
Docket:
21-3023
Opinion Date: September 9, 2022
Judge:
Karen Nelson Moore
Areas of Law:
Class Action, Government & Administrative Law, Legal Ethics, Public Benefits
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Class Counsel discovered the Social Security Administration's (SSA’s) systemic failure to perform “Subtraction Recalculations” and recovered over $106 million in past-due disability benefits. After performing the Subtraction Recalculations for all the claimants, the SSA argued that the district court did not have authority under the Social Security Act’s judicial-review provision, 42 U.S.C. 405(g), to order the Subtraction Recalculations and that Class Counsel cannot recover attorney fees under section 406(b) for representation of the claimants.
The Sixth Circuit affirmed the award of $15.9 million in attorney fees to Class Counsel. SSA “may not hide behind” the statutory provisions merely because it erred at the end, rather than at the beginning, of the benefits-award process. The district court appropriately exercised judicial review under section 405(g), properly ordered the SSA to perform the Subtraction Recalculations, and properly awarded reasonable attorneys’ fees. The SSA failed to award claimants additional past-due benefits to which they were entitled. Counsel successfully sought judicial assistance to obtain those benefits. Congress did not create a statute that allows attorneys to recover fees when the SSA initially fails to award benefits, only to foreclose fee recovery when the SSA later unlawfully withholds additional benefits.
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Weiser v. Benson
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Court: US Court of Appeals for the Sixth Circuit
Docket:
22-1014
Opinion Date: September 9, 2022
Judge:
Helene N. White
Areas of Law:
Constitutional Law, Election Law, Government & Administrative Law
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Weiser, a Republican donor and chair of the Michigan Republican Party (MRP), and the MRP alleged that an interpretative statement (recall exemption) and a declaratory ruling issued by the Michigan Secretary of State in the 1980s violated the First and Fourteenth Amendments by allowing supporters of Governor Whitmer to make or receive contributions on more favorable terms than Weiser or the MRP with respect to the 2022 gubernatorial election. The Michigan Campaign Finance Act (MCFA) limits donations to candidates. The recall exceptions clarify that the general election contribution limits do not apply to contributions made to an officeholder to defend against a recall effort. During a recall effort, the officeholder’s committee may “accept contributions in excess of section [169.252’s] contribution limitations.” Contributions made during an active recall effort must be so designated and must be deposited into the committee’s account. If a recall election never materializes, the committee must divest itself of these contributions. In 2020 and 2021, apparently in response to measures to combat the spread of COVID-19, 27 recall efforts were launched by Michigan voters. Whitmer’s committee collected and subsequently disgorged leftover recall funds, refunding $250,000 to an individual donor and about $3.5 million to the Democratic Party.
The district court dismissed the action for lack of standing. The Sixth Circuit affirmed. Weiser and the MRP fail to plausibly demonstrate that the recall exception prevents Weiser or the MRP from equally supporting their preferred gubernatorial candidate.
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Jarnutowski v. Kijakazi
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Court: US Court of Appeals for the Seventh Circuit
Docket:
21-2130
Opinion Date: September 12, 2022
Judge:
Jackson-Akiwumi
Areas of Law:
Government & Administrative Law, Public Benefits
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Jarnutowski sought Social Security disability benefits, claiming she could not work due to a foot condition, neck and leg pain, obesity, and mental health issues. Jarnutowski underwent multiple surgeries, X-rays, and CT scans on her foot between 2011-2015. An ALJ awarded Jarnutowski found that she was disabled during September 2013-January 2016, with only the ability to perform light work with some limitations; her foot condition, neck issues, and obesity were severe impairments; and, she was disabled by direct application of the Medical-Vocational Guidelines due to her age. The ALJ concluded that Jarnutowski’s disability ended when she regained the ability to perform medium work after her foot surgery and was again able to perform her past work as a store manager. The ALJ did not explicitly address Jarnutowski’s functional capabilities related to medium work, including Jarnutowski’s ability to lift objects weighing up to 50 pounds and frequently lift or carry objects weighing up to 25 pounds, emphasizing Jarnutowski’s ability to walk.
The Seventh Circuit reversed. In Social Security disability determinations, the lifting and carrying weight requirements associated with medium work are more than double those of light work. The ALJ found that Jarnutowski’s “residual functional capacity” was limited to light work with some restrictions before her final foot surgery, but increased to medium work after the surgery without explaining how, after surgery, Jarnutowski could lift or carry objects more than twice the weight that she lifted or carried before surgery.
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Integrity Advance, et al. v. CFPB
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Court: US Court of Appeals for the Tenth Circuit
Docket:
21-9521
Opinion Date: September 15, 2022
Judge:
Gregory Alan Phillips
Areas of Law:
Constitutional Law, Government & Administrative Law
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Integrity Advance, LLC operated as a nationwide payday lender offering short-term consumer loans at high interest rates. In 2015, the Consumer Financial Protection Bureau (“Bureau”) brought an administrative enforcement action against Integrity and its CEO, James Carnes (collectively, “Petitioners”). The Notice of Charges alleged violations of the Consumer Financial Protection Act (“CFPA”), the Truth in Lending Act (“TILA”), and the Electronic Fund Transfer Act (“EFTA”). Between 2018 and 2021, the Supreme Court issued four decisions that bore on the Bureau’s enforcement activity in this case. The series of decisions led to intermittent delays and restarts in the Bureau’s case against Petitioners. Ultimately, the Director mostly affirmed the recommendations of the ALJ. Petitioners appealed the Director’s final order to the Tenth Circuit Court of Appeals under 12 U.S.C. § 5563(b)(4), asking that the Court vacate the order, or at least remand for a new hearing. Petitioners argued the Director’s order didn’t give them the full benefit of the Supreme Court’s rulings. The Tenth Circuit rejected Petitioners’ various challenges and affirmed the Director’s order.
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California Water Curtailment Cases
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Court: California Courts of Appeal
Docket:
H047270(Sixth Appellate District)
Opinion Date: September 12, 2022
Judge:
Danner
Areas of Law:
Government & Administrative Law, Real Estate & Property Law
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After “one of the driest years in recorded state history,” in 2015 the Water Resources Control Board issued orders to curtail water use in the Sacramento-San Joaquin River Delta. The trial court concluded that the Board’s curtailment notices violated the due process rights of irrigation districts and water agencies by failing to provide them with a pre-deprivation hearing or any other opportunity to challenge the bases for the notices. The court addressed the due process issue, even though it was technically moot.
The court of appeal affirmed. The Board has no authority, under Water Code section 1052(a), to curtail the diversion or use of water by holders of valid pre-1914 appropriative water rights—a group with distinctive rights rooted in the history of California water law--on the sole ground that there is insufficient water to service their priorities of right due to drought conditions. This statutory language “subject to this division other than as authorized in this division” excludes the diversion or use of water within the scope of a valid pre-1914 appropriative right, even during times of limited water supply. Section 1052(a) provides the Board authority to enjoin a diversion or use of water that falls outside the scope of a right held by a pre-1914 appropriative right holder.
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Flores v. City of San Diego
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Court: California Courts of Appeal
Docket:
D078501(Fourth Appellate District)
Opinion Date: September 15, 2022
Judge:
Cynthia Aaron
Areas of Law:
Civil Procedure, Civil Rights, Government & Administrative Law, Personal Injury
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Appellants Patricia Flores and Angelica Sanchez appealed after the trial court granted summary judgment in favor defendant City of San Diego (the City). Flores and Sanchez sued the City for wrongful death and negligence, respectively, in connection with the death of William Flores, who was operating a motorcycle that was the subject of a police vehicle pursuit when he crashed and was killed. The City moved for summary judgment on the ground that it was immune from liability under the grant of immunity provided for in Vehicle Code section 17004.7. The Court of Appeal concluded that the vehicle pursuit policy training required by section 17004.7 had to meet certain basic standards that were set forth in California Code of Regulations, title 11, section 1081, as adopted by the Commission on Peace Officer Standards and Training (the POST Commission), including an annual one-hour minimum time standard set out in that regulation, before a governmental entity was entitled to immunity under the statute. "Not only did the City fail to present undisputed evidence that the training it provided in the year prior to the incident at issue met the annual one-hour standard, but the City failed to dispute the fact, put forth by appellants, that the training implemented by the City comprised a single video of less than half the required one-hour duration." In the absence of training that met the standards imposed by Regulation 1081, as required by section 17004.7, the City was not entitled to immunity under that statute, as a matter of law. Summary judgment in favor of the City was therefore erroneously granted, and the judgment had to be reversed.
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Rodgers v. State Personnel Board
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Court: California Courts of Appeal
Docket:
E075803(Fourth Appellate District)
Opinion Date: September 9, 2022
Judge:
Slough
Areas of Law:
Government & Administrative Law, Labor & Employment Law
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Plaintiff-appellant Steven Rodgers, a correctional sergeant employed by the Department of Corrections and Rehabilitation (CDCR), appealed the denial of his writ petition seeking to set aside the State Personnel Board’s (SPB) decision to reduce his salary by 10 percent for two years as a penalty for an incident that occurred in July 2017 while he was supervising a contraband surveillance watch shift at Pelican Bay State Prison. Rodgers argued the factual findings the SPB adopted after his administrative hearing were: (1) not supported by substantial evidence; and (2) significantly different from those alleged in the notice of adverse action (NOAA), and as a result, SPB’s decision violated his due process right to notice of the charges against him. After review, the Court of Appeal agreed with his second contention and therefore reversed the decision.
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Colorado in interest of E.A.M. v. D.R.M.
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Court: Colorado Supreme Court
Citation:
2022 CO 42
Opinion Date: September 12, 2022
Judge:
Samour
Areas of Law:
Civil Procedure, Family Law, Government & Administrative Law, Native American Law
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As relevant here, a trial court has reason to know that a child is an Indian child when “[a]ny participant in the proceeding, officer of the court involved in the proceeding, Indian Tribe, Indian organization, or agency informs the court that it has discovered information indicating that the child is an Indian child.” In this dependency and neglect case, the juvenile court terminated Mother’s parental rights with respect to E.A.M. Mother appealed, complaining that the court had failed to comply with Indian Child Welfare Act (“ICWA”) by not ensuring that the petitioning party, the Denver Human Services Department (“the Department”), had provided notice of the proceeding to the tribes that she and other relatives had identified as part of E.A.M.’s heritage. The Department and the child’s guardian ad litem responded that the assertions of Indian heritage by Mother and other relatives had not given the juvenile court reason to know that the child was an Indian child. Rather, they maintained, such assertions had merely triggered the due diligence requirement in section 19-1-126(3), and here, the Department had exercised due diligence. A division of the court of appeals agreed with Mother, vacated the termination judgment, and remanded with directions to ensure compliance with ICWA’s notice requirements. The Colorado Supreme Court reversed, finding that "mere assertions" of a child's Indian heritage, without more, were not enough to give a juvenile court "reason to know" that the child was an Indian child. Here, the juvenile court correctly found that it didn’t have reason to know that E.A.M. is an Indian child. Accordingly, it properly directed the Department to exercise due diligence in gathering additional information that would assist in determining whether there was reason to know that E.A.M. is an Indian child.
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Priore v. Haig
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Court: Connecticut Supreme Court
Docket:
SC20511
Opinion Date: September 13, 2022
Judge:
Andrew J. McDonald
Areas of Law:
Government & Administrative Law, Personal Injury
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The Supreme Court reversed the decision of the appellate court affirming the judgment of the trial court concluding that Defendant's allegedly defamatory statements about Plaintiff made during a hearing before the Greenwich Planning and Zoning Commission were entitled to statutory immunity, holding that the appellate court erred.
Plaintiff brought this defamation action seeking to recover damages for injuries he claims to have sustained as a result of Defendant's alleged defamatory statements. The trial court granted Defendant's motion to dismiss, concluding that it did not have jurisdiction over Plaintiff's claims because the statements Defendant made about Plaintiff at the commission's hearing were entitled to absolute immunity because the hearing constituted a quasi-judicial proceeding. The appellate court affirmed. The Supreme Court reversed, holding (1) a hearing on a special permit application before a town's planning and zoning commission is not quasi-judicial in nature; and (2) therefore, the appellate court erroneously determined that Defendant's statements were entitled to absolute immunity.
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Carollo v. Louisiana Dept. of Transportation & Development
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Court: Louisiana Supreme Court
Docket:
2021-C-01670
Opinion Date: September 9, 2022
Judge:
John L. Weimer
Areas of Law:
Civil Procedure, Government & Administrative Law, Personal Injury
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Certiorari was granted in this case to resolve a split in the decisions of the Louisiana courts of appeal regarding the relationship between La. C.C.P. art. 425 and the res judicata statutes, La. R.S. 13:4231 and 13:4232. Particularly, the Supreme Court considered whether Article 425 was an independent claim preclusion provision apart from res judicata such that identity of parties was not required to preclude a subsequent suit, or whether Article 425 merely referenced the requirements of res judicata and thus a claim could not be precluded unless it was between the same parties as a prior suit. After reviewing the law and the arguments of the parties, the Louisiana Supreme Court found Article 425 functioned simply as a measure that put litigants on notice at the outset and, during the course of litigation, all causes of action arising out of the transaction or occurrence that is the subject matter of the litigation must be asserted. "Rather than have independent enforcement effect, Article 425 operates in tandem with and is enforced through the exception of res judicata. Because Article 425 is enforced through res judicata, all elements of res judicata–including identity of parties–must be satisfied for a second suit to be precluded."
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Carfax, Inc. v. Director of Revenue
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Court: Supreme Court of Missouri
Docket:
SC99367
Opinion Date: September 13, 2022
Judge:
Paul C. Wilson
Areas of Law:
Government & Administrative Law, Tax Law
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The Supreme Court vacated the decision of the Administrative Hearing Commission (AHC) that the purchases by Carfax, Inc. of certain equipment used to create vehicle history reports (VHRs) were exempt from sales and use taxes under Mo. Rev. Stat. 144.030.2(5) and 144.054.2 because Carfax used such equipment to "manufacture" VHRs, holding that Carfax did not use the equipment in the "manufacturing" of its VHRs.
After an audit, the Director of Revenue determined that Carfax did not use the disputed equipment to manufacture VHRs, and therefore, its purchase of that equipment was not exempt from sales and use taxes. On appeal, the AHC found that Carfax's purchases of the equipment were exempt from sales and use taxes under both sections 144.303.2(5) and 144.054(2) because Carfax used that equipment directly in manufacturing VHRs. The Supreme Court vacated the decision below, holding that, for purposes of these statutes, Carfax did not use the disputed equipment to manufacture VHRs.
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In re A.M.G.
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Court: Montana Supreme Court
Citation:
2022 MT 175
Opinion Date: September 13, 2022
Judge:
Mike McGrath
Areas of Law:
Family Law, Government & Administrative Law
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The Supreme Court affirmed the judgment of the district court terminating K.H.'s parental rights to her two children, holding that the district court did not abuse its discretion in determining that the conduct or condition rendering Mother unfit to parent was unlikely to change within a reasonable time.
After a hearing, the district court granted the petitions filed by the Department of Public Health and Human Services, Child and Family Services Division to terminate K.H.'s parental rights to her children, finding that K.H. had failed the treatment plan and was unlikely to change in a reasonable amount of time. The Supreme Court affirmed, holding that the district court did not abuse its discretion by terminating Mother's parental right on the basis of its finding that K.H.'s conduct or condition rendering her unfit was unlikely to change within a reasonable time.
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Dutcher v. Nebraska Dep't of Correctional Services
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Court: Nebraska Supreme Court
Citation:
312 Neb. 405
Opinion Date: September 9, 2022
Judge:
Freudenberg
Areas of Law:
Government & Administrative Law, Labor & Employment Law, Personal Injury
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The Supreme Court affirmed the judgment of the district court finding that the exclusivity provisions of the Nebraska Workers' Compensation Act (the Act), Neb. Rev. Stat. 48-101 to 48-1,117 barred the claim of an employee of the Nebraska Department of Correctional Services that the Department violated the Nebraska Fair Employment Practice Act (NFEPA), Neb. Rev. Stat. 48-1101 to 48-1125, holding that the district court lacked jurisdiction over the employee's NFEPA action.
Plaintiff was injured while participating in mandated self-defense training and sought and received workers' compensation benefits from the time she was injured. After Plaintiff was unable to find a position with the Department that would accommodate her physical restrictions she brought this action against the Department for wrongful termination on the basis of her disability, in violation of NFEPA. The district court granted summary judgment for the Department on the basis of the exclusivity provisions of the Act barred Plaintiff's NFEPA claim as a matter of law. The Supreme Court affirmed, holding that the district court correctly determined that it lacked jurisdiction over Plaintiff's NFEPA claim.
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Barufaldi v. City of Dover
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Court: New Hampshire Supreme Court
Docket:
2021-0244
Opinion Date: September 9, 2022
Judge:
Anna Barbara Hantz Marconi
Areas of Law:
Civil Procedure, Government & Administrative Law, Labor & Employment Law
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Plaintiff Daniel Barufaldi, appealed a superior court dismissal of his complaint against defendant the City of Dover. Plaintiff was first hired as the Director of Economic Development for the Dover Business and Industry Development Authority (DBIDA) for a fixed term from March 2009 through February 2012. As a condition of his employment with DBIDA, plaintiff was required to waive participation in the New Hampshire Retirement System (NHRS). After his initial term of employment expired in 2012, plaintiff was reappointed for one-year extensions until 2017. In 2017, the City created a new Director of Economic Development position and appointed plaintiff to the position. Prior to executing a new employment agreement, plaintiff asked the Dover City Manager if he would now be eligible to participate in the NHRS. The Dover City Manager informed plaintiff that he was not eligible for enrollment in the NHRS because his employment contract was for “a fixed time period.” Around March 2020, plaintiff contacted the NHRS to inquire about his eligibility for enrollment. In July 2020, the NHRS notified the City that it was obligated to enroll plaintiff in the NHRS. The City subsequently enrolled plaintiff in the NHRS prospectively. Thereafter, the plaintiff submitted a “request for cost calculation to purchase service credit” because of “employer enrollment oversight.” The NHRS administratively reviewed the request and determined, pursuant to RSA 100-A:3, VI(d)(1), plaintiff was partially at fault for the failure to be enrolled in the NHRS following his appointment in 2017 as Director and, therefore, ineligible to purchase service credit. It also determined that DBIDA was not an NHRS participating employer and that plaintiff’s employment contract with DBIDA waived any right to participate in the NHRS. In a letter dated August 4, 2020, the NHRS notified plaintiff of its determination and informed him that he had 45 days in which to appeal the administrative decision by requesting a hearing before the agency. Plaintiff did not request such a hearing but, instead, filed a complaint in superior court. Plaintiff contended to the New Hampshire Supreme Court appealing dismissal of his case that the trial court erred in concluding that: (1) declaratory judgment was not an available theory of relief; and (2) plaintiff was required to exhaust his administrative remedies prior to filing suit. Finding no reversible error, the Supreme Court affirmed.
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Books-A-Million, Inc., v. South Carolina Department of Revenue
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Court: South Carolina Supreme Court
Docket:
28110
Opinion Date: September 14, 2022
Judge:
Kaye Gorenflo Hearn
Areas of Law:
Business Law, Government & Administrative Law, Tax Law
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Books-A-Million was a retail bookstore operating thirteen locations throughout South Carolina. For $25 per year, Books-A-Million customers could become members in the "Millionaire's Club" to receive retail discounts. In 2015, the South Carolina Department of Revenue audited three years of Books-A-Million's financial records and discovered that no sales tax was being charged on Millionaire's Club memberships. The Department thereafter issued a Notice of Proposed Assessment for $242,076.97 in unpaid sales tax. Taxpayer was granted a contested hearing before an ALC, which upheld the assessment because, under South Carolina law, the sales of intangible memberships can be taxable if their value originates from the sale of taxable goods. Taxpayer then appealed to the court of appeals which affirmed. Both courts held that the pertinent language of "value proceeding or accruing" from the definition of "gross proceeds of sales" was inclusive of Taxpayer's Millionaire's Club membership fees because the language included value related to sales, not merely the value of the sales themselves. Taxpayer argued on appeal that its sales of Millionaire's Club memberships were not taxable under South Carolina's sales tax because the language of the statute excluded it. The Department contended that the state tax code contemplated value not just from sales of tangible goods, but from related costs because of the language "proceeding or accruing" as well as the jurisprudence of the South Carolina Supreme Court. The Supreme Court agreed with the Department, and affirmed the lower courts' judgments.
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In re Katzenbach A250 Permit #7R1374-1
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Court: Vermont Supreme Court
Citation:
2022 VT 42
Opinion Date: September 9, 2022
Judge:
Eaton
Areas of Law:
Environmental Law, Government & Administrative Law
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Applicants Christian and Clark Katzenbach appealed the Environmental Division’s decision granting but imposing certain conditions on an Act 250 permit for operating their sand- and gravel-extraction project. Applicants challenged the court’s findings and conclusions under Criterion 5 and Criterion 8 of Act 250. The Vermont Supreme Court found no clear error in the trial court's findings under both criteria, but concluded one condition imposed under Criterion 5 was unreasonable in light of the trial court’s findings. The Supreme Court therefore struck that one Criterion 5 condition and affirmed in all other respects.
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Seattle Tunnel Partners v. Great Lakes Reinsurance (UK) PLC
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Court: Washington Supreme Court
Docket:
100,168-1
Opinion Date: September 15, 2022
Judge:
Johnson
Areas of Law:
Civil Procedure, Contracts, Government & Administrative Law, Government Contracts, Insurance Law
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Petitioners Washington State Department of Transportation (WSDOT) and Seattle Tunnel Partners (STP), sought reversal of a Court of Appeals decision affirming the partial summary judgment rulings that an “all risk” insurance policy did not provide coverage for certain losses. At issue in WSDOT’s petition for review was whether the loss of use or functionality of the insured property constituted “physical loss” or “physical damage” that triggered coverage. STP’s petition asked whether the insurance policy excluded coverage for damage to the insured property caused by alleged design defects and whether the policy covers delay losses. This case arose out of a major construction project to replace the Alaskan Way Viaduct in Seattle. In 2011, STP contracted with WSDOT to construct a tunnel to replace the viaduct. The project started in July 2013. A tunnel boring machine (TBM) used in the project stopped working in December 2013, and did not resume until December 2015. The project was unable to continue during the two-year period while the TBM was disassembled, removed, and repaired. STP and WSDOT tendered insurance claims under the Policy. Great Lakes denied coverage, and STP and WSDOT sued the insurers, alleging wrongful denial of their claims. The Washington Supreme Court affirmed the Court of Appeals, finding that even if it interpreted “direct physical loss or damage” to include loss of use, no coverage under Section 1 is triggered because the alleged loss of use was not caused by a physical condition impacting the insured property.
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