St. John v. Garland

Court: US Court of Appeals for the First Circuit

Docket: 22-1695

Opinion Date: September 19, 2023

Judge: Montecalvo

Areas of Law: Government & Administrative Law, Immigration Law

The First Circuit denied Petitioner's petition for review of the Board of Immigration Appeals' (BIA) decision dismissing Sandra St. John's appeal from the judgment of the Immigration Judge (IJ) denying her statutory motion to reopen, holding that there was no abuse of discretion in the agency's denial of St. John's statutory motion to reopen.

The Department of Homeland Security initiated removal proceedings against St. John based on her conviction for mayhem in the Commonwealth of Massachusetts. After going into ICE custody, St. John filed a motion in the Massachusetts superior court asking it to vacate her mayhem conviction and grant a new trial on ineffective assistance of trial grounds. St. John then moved for reopening of her removal proceedings on the grounds that her motion to vacate had rendered the mayhem conviction nonfinal for immigration purposes. The IJ denied the motion, and the BIA dismissed the appeal. The First Circuit denied Petitioner's petition for review, holding that the agency did not abuse its discretion in declining to reopen the order of removal based on final criminal convictions.

DiMartile v. Hochul

Court: US Court of Appeals for the Second Circuit

Docket: 21-2988

Opinion Date: September 15, 2023

Judge: CARNEY

Areas of Law: Constitutional Law, Government & Administrative Law

Plaintiffs are two couples, both engaged to be married when they filed suit and a New York-based minister. Together, the individuals brought a constitutional challenge to state COVID-19 regulations that limited to fifty the number of attendees at social gatherings. After the expedited briefing, the district court granted Plaintiffs’ motion for a preliminary injunction just forty-five minutes before the start time of the first of the two scheduled weddings. The first of the couples married in their planned ceremony and held their wedding celebration involving over 100 guests. A Second Circuit judge issued a temporary administrative stay of the district court’s order. A separate panel later dismissed the appeal as moot and vacated the district court’s order after the second couple announced that, regardless of the outcome of the appeal, they no longer planned to hold a wedding. All five Plaintiffs then sought an award of attorney’s fees in the district court. The district court denied their motion.
 
The Second Circuit affirmed. The court explained that here, Plaintiffs managed to secure a preliminary injunction with just forty-five minutes to spare after an abbreviated briefing schedule. The court further wrote that their initial success was fleeting: Defendants succeeded in obtaining a stay of the injunction from the court within two weeks of its issuance, and the district court’s order was later vacated after Plaintiffs intentionally mooted their claims during the pendency of Defendants’ appeal. The preliminary injunction in this case does not support a determination that Plaintiffs are prevailing parties eligible for attorney’s fees under Section 1988.

Elisa W. v. City of New York

Court: US Court of Appeals for the Second Circuit

Docket: 22-7

Opinion Date: September 19, 2023

Judge: JOSEPH F. BIANCO

Areas of Law: Class Action, Constitutional Law, Family Law, Government & Administrative Law, Juvenile Law

Plaintiffs-appellants, nineteen children in New York City’s foster care system, filed suit alleging “systemic deficiencies” in the administration of the City’s foster care system in violation of federal and state law. The named Plaintiffs moved to represent a class of all children who are now or will be in the foster care custody of the Commissioner of New York City’s Administration for Children’s Services and two subclasses. As remedies, they sought injunctive and declaratory relief to redress alleged class-wide injuries caused by deficiencies in the City’s administration—and the New York State Office of Children and Family Services’ oversight—of foster care. The district court denied Plaintiffs’ motion for class certification. Plaintiffs appealed, arguing that the district court erred in its analysis of the commonality and typicality requirements under Federal Rule of Civil Procedure 23(a).
 
The Second Circuit vacated the district court’s order denying class certification and remanded. The court held that the district court erred in its analysis of commonality and typicality under Rule 23. The court explained that the district court did not determine whether commonality and typicality exist with respect to each of Plaintiffs’ claims. Instead, it concluded that commonality was lacking as to all alleged harms because “Plaintiffs’ allegations do not flow from unitary, non-discretionary policies.” The court held that this approach was legal error requiring remand. Further, the court wrote that here, the district court largely relied upon its commonality analysis to support its finding that typicality was not satisfied. Thus, the deficiencies identified in its commonality inquiry can also be found in its handling of typicality.

LA Fair Housing Action v. Azalea Garden

Court: US Court of Appeals for the Fifth Circuit

Docket: 22-30609

Opinion Date: September 14, 2023

Judge: Cory T. Wilson

Areas of Law: Civil Rights, Constitutional Law, Government & Administrative Law, Public Benefits

Louisiana Fair Housing Action Center (LaFHAC) sued Azalea Garden Properties, LLC (Azalea Garden), alleging that Azalea Garden discriminated on the basis of race and disability at its apartment complex in Jefferson, Louisiana, in violation of the Fair Housing Act (FHA). The district court dismissed LaFHAC’s disability claim but allowed its disparate impact race claim to proceed, subject to one caveat: The district court certified a permissive interlocutory appeal on the issue of whether the “predictably will cause” standard for FHA disparate-impact claims remains viable after Inclusive Communities Project Inc. v. Lincoln Property Co., 920 F.3d 890 (5th Cir. 2019).
 
The Fifth Circuit remanded the case with instructions to dismiss LaFHAC’s claims without prejudice. The court held that the district court lacked jurisdiction over this case. Along the same lines, the court wrote that it cannot consider the district court’s certified question. The court explained that LaFHAC has plausibly alleged a diversion of resources, as it shifted efforts away from planned projects like its annual conference toward counteracting Azalea Garden’s alleged discrimination. But “an organization does not automatically suffer a cognizable injury in fact by diverting resources in response to a defendant’s conduct.” The court wrote that LaFHAC failed to plead an injury because it failed to allege how its diversion of resources impaired its ability to achieve its mission. Thus, the court held that because LaFHAC has not alleged a cognizable injury, it lacks standing to bring the claims it alleges in this action.

United States ex rel. Kenneth Kraemer v. United Dairies, L.L.P.

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-3306

Opinion Date: September 20, 2023

Judge: LOKEN

Areas of Law: Civil Procedure, Government & Administrative Law, Personal Injury

Kenneth Kraemer and Kraemer Farms, LLC (collectively, “Plaintiffs”) commenced this qui tam action under the False Claims Act (“FCA”), against United Dairies, other dairy farms, and their partners and agents (“Defendants”) alleging that they knowingly filed false crop insurance claims. Plaintiffs’ FCA Complaint alleged that Defendants (1) fraudulently obtained crop insurance payments by falsely reporting a silage-use-only variety of corn as grain and using that false statement to obtain the payments, and (2) were unjustly enriched by receiving the payments. The district court held that Defendants submitted materially false claims but denied Plaintiffs FCA relief because they failed to prove that Defendants knowingly defrauded the United States. However, the court found that certain Defendants had been unjustly enriched and awarded damages to the United States. The United States then filed a post-trial motion urging the district court to vacate or amend its judgment because Plaintiffs do not have standing to seek common law unjust enrichment relief on behalf of the United States. The district court granted the motion and vacated its judgment for lack of subject matter jurisdiction.
 
The Eighth Circuit affirmed. The court explained that the dismissal of Plaintiffs’ FCA claims must be affirmed even if Plaintiffs are correct that the district court erred in ruling that any violations were not knowing. The court wrote that because it concludes that Defendants in submitting Acreage Reporting Forms supporting their crop insurance applications did not submit materially false claims for crop insurance payments, Plaintiffs contention -the district court applied the wrong legal standard in denying FCA relief on other grounds is of no moment.

MIRANDA WALLINGFORD, ET AL V. ROBERT BONTA, ET AL

Court: US Court of Appeals for the Ninth Circuit

Docket: 21-56292

Opinion Date: September 21, 2023

Judge: Bennett

Areas of Law: Civil Procedure, Civil Rights, Constitutional Law, Government & Administrative Law

Plaintiffs’ neighbor petitioned for a civil harassment restraining order against Plaintiffs and was granted a temporary restraining order. As a result of the TRO, Plaintiff was ordered to surrender his firearms to a California licensed firearms dealer. Certain California laws make it unlawful for any person subject to a “civil restraining order” issued by a California state court (including temporary restraining orders) to possess firearms or ammunition. Plaintiffs claim these laws violate the Second Amendment and the Due Process Clause of the United States Constitution as applied to them. Though Plaintiffs were subject to civil restraining orders when they filed their suit, the orders against them have expired, and in January 2023, a California court denied the latest request to extend them.
 
The Ninth Circuit dismissed Plaintiffs’ action as moot. The panel rejected Plaintiffs’ argument that, although they were no longer subject to any firearm restrictions, the case fell within the “capable of repetition, yet evading review” exception to mootness. The panel noted that this doctrine is to be used sparingly, in exceptional situations, and generally only where (1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again. The panel held that this case was moot because the relevant restraining orders have expired, a three-year-long restraining order is not too brief to be litigated on the merits, and there was no reasonable expectation that Plaintiffs will be subject to the same action again

Center for Biological Diversity v. EPA, et al.

Court: US Court of Appeals for the Tenth Circuit

Docket: 22-9546

Opinion Date: September 18, 2023

Judge: Moritz

Areas of Law: Civil Procedure, Environmental Law, Government & Administrative Law

In a May 2022 final rule, the U.S. Environmental Protection Agency (EPA) approved a revision to Colorado’s State Implementation Plan (SIP) certifying Colorado’s existing, EPA-approved Nonattainment New Source Review (NNSR) permit program regulating new or modified major stationary sources of air pollution in the Denver Metro-North Front Range area met the requirements for attaining the 2015 National Ambient Air Quality Standards (NAAQS) for ozone. The Center for Biological Diversity challenged the final rule on procedural and substantive grounds. Procedurally, the Center argued the EPA violated the Administrative Procedure Act (APA) by failing to include the state regulations that comprised Colorado’s permit program in the rulemaking docket during the public-comment period. And substantively, the Center argued the EPA acted contrary to law when it approved Colorado’s SIP revision because Colorado’s permit program excluded all “temporary emissions” and “emissions from internal combustion engines on any vehicle” in determining whether a new or modified stationary source was “major” and therefore subject to the permit process. The Tenth Circuit found the EPA’s notice of proposed rulemaking was adequate under the APA, but agreed with the Center that the EPA acted contrary to law in allowing Colorado to exclude all temporary emissions under its permit program. The Court found the federal regulation the EPA relied on in approving this exclusion plainly did not authorize such an exclusion. But the Center identified no similar problem with the EPA allowing Colorado to exclude emissions from internal combustion engines on any vehicle. The Court therefore granted the Center’s petition in part, vacated a portion of the EPA’s final rule, and remanded for further proceedings.

Deer Creek Water Corporation, et al. v. City of Oklahoma City, et al.

Court: US Court of Appeals for the Tenth Circuit

Docket: 21-6155

Opinion Date: September 18, 2023

Judge: Moritz

Areas of Law: Government & Administrative Law, Utilities Law, Zoning, Planning & Land Use

Plaintiff Deer Creek Water Corporation filed suit against Oklahoma City and Oklahoma City Water Utilities Trust (together, the City) seeking a declaratory judgment that the City could not provide water service to a proposed development on land owned by Thomas and Gina Boling (together, the developers), who later intervened in the action. In support, Deer Creek invoked 7 U.S.C. § 1926(b), a statute that generally prohibited municipalities from encroaching on areas served by federally indebted rural water associations, so long as the rural water association made water service available to the area. The district court granted the developers’ motion for summary judgment after concluding that Deer Creek had not made such service available, and Deer Creek appealed. Although the Tenth Circuit rejected Deer Creek’s arguments related to subject-matter jurisdiction, the Court agreed that the district court erred in finding it dispositive that Deer Creek’s terms of service required the developers to construct the improvements necessary to expand Deer Creek’s existing infrastructure to serve the proposed development, reasoning that because Deer Creek itself would not be doing the construction, it had not made service available. The Court found nothing in the statute or in caselaw to support stripping a federally indebted rural water association of § 1926(b) protection solely because it placed a burden of property development on the landowner seeking to develop property. The district court therefore erred in placing determinative weight on Deer Creek’s requirement that the developers construct the needed improvements. The judgment was reversed and the case remanded for further proceedings on whether Deer Creek made service available.

Knezovich, et al. v. United States

Court: US Court of Appeals for the Tenth Circuit

Docket: 22-8023

Opinion Date: September 15, 2023

Judge: Timothy M. Tymkovich

Areas of Law: Government & Administrative Law, Personal Injury, Real Estate & Property Law, Zoning, Planning & Land Use

Victims of the 2018 Roosevelt Fire in Wyoming sued the United States Forest Service, alleging it negligently delayed its suppression response. The Forest Service moved to dismiss the complaint on the grounds that it was not liable for the way it handled the response to the fire. Under the Federal Tort Claims Act, a government actor could not be sued for conducting a so-called “discretionary function,” where the official must employ an element of judgment or choice in responding to a situation. The government contended that responding to a wildfire required judgment or choice, and its decisions in fighting the fire at issue here met the discretionary function exception to the Act. The district court agreed and dismissed the suit. The Tenth Circuit Court of Appeals also concluded the Forest Service was entitled to the discretionary function exception to suit, and the district court lacked jurisdiction to hear the complaint.

Brinsmead v. Elk Grove Unified Sch. Dist.

Court: California Courts of Appeal

Docket: C096394(Third Appellate District)

Opinion Date: September 18, 2023

Judge: Mesiwala

Areas of Law: Education Law, Government & Administrative Law, Personal Injury

In January 2020, after waiting 40 minutes for a school bus that never came, 16-year-old G. got picked up from the bus stop by a friend whom she had texted. During their ride to school, the friend’s car was hit head on by another driver, causing G. to suffer fatal injuries. G.’s parents sued the school district, a board member of the school district, and school district employees (collectively, the district) for wrongful death. The parents alleged the district was liable because it breached its duty to timely retrieve G. from the designated school bus stop, to provide notice of and instructions regarding delayed buses, and to provide a reasonably safe and reliable bus system. The district demurred asserting immunity under Education Code section 44808. The trial court sustained the demurrer to the parents’ first amended complaint without leave to amend and entered a judgment of dismissal. The Court of Appeal concluded the parents pleaded sufficient facts to fall outside section 44808 immunity for purposes of demurrer and reversed.

Pacific Gas and Electric Co. v. Super. Ct.

Court: California Courts of Appeal

Docket: C097529(Third Appellate District)

Opinion Date: September 21, 2023

Judge: Renner

Areas of Law: Government & Administrative Law, Utilities Law, Zoning, Planning & Land Use

Petitioner Pacific Gas and Electric Company (PG&E) sought extraordinary writ relief for the second time arising out of the parties’ ongoing efforts to clarify the standard of proof to be applied at trial on South San Joaquin Irrigation District’s (the District) right to take part of PG&E’s electric distribution system under the Eminent Domain Law. PG&E emphasized that it did not challenge the validity of the resolution of necessity adopted by the District. PG&E did challenge the District’s right to take its property on grounds that conflicted with various findings the District made in its resolution. Because these challenges were authorized by statute, PG&E could succeed at trial by essentially disproving one of these findings by a preponderance of the evidence. Further, the Court of Appeal agreed with PG&E that the superior court’s September 6, 2017 and November 28, 2022 orders erred in concluding that PG&E also needed to demonstrate the District abused its discretion in adopting its resolution of necessity. Therefore, the Court of Appeal issued a peremptory writ of mandate compelling the superior court to vacate its September 6, 2017 and November 28, 2022 orders, and enter a new order.

Santa Paula Animal Rescue Center, Inc. v. County of L.A.

Court: California Courts of Appeal

Docket: B318954(Second Appellate District)

Opinion Date: September 18, 2023

Judge: MOOR

Areas of Law: Constitutional Law, Government & Administrative Law, Health Law

Plaintiffs-Appellants Santa Paula Animal Rescue Center, Inc. (SPARC) and Lucky Pup Dog Rescue (Lucky Pup) (collectively Appellants) appealed a judgment of dismissal following the trial court’s order sustaining, without leave to amend, Defendant County of Los Angeles’s (the County) demurrer to Appellants’ petition for writ of mandate. Appellants contend that the Hayden Act and, more specifically, Food and Agriculture Code section 31108 and similar provisions impose on the County a ministerial duty to (1) release a dog or other shelter animal to a requesting animal adoption or rescue organization with Internal Revenue Code section 501(c)(3) status prior to euthanasia without first determining whether the animal has behavioral problems or is adoptable or treatable, and (2) release the aforementioned animal to the requesting animal rescue or adoption organization without requiring the organization to meet qualifications additional to having Internal Revenue Code section 501(c)(3) status.
 
The Second Appellate District reversed the trial court’s judgment and directed the trial court to vacate its order sustaining the demurrer without leave to amend. The court concluded that the demurrer was improperly granted because the County lacks discretion to withhold and euthanize a dog based upon its determination that the animal has a behavioral problem or is not adoptable or treatable. However, the County has discretion to determine whether and how a nonprofit organization qualifies as an animal adoption or rescue organization.

Roberts v. Cuthper

Court: Supreme Court of Georgia

Docket: S23A0631

Opinion Date: September 19, 2023

Judge: LaGrua

Areas of Law: Constitutional Law, Government & Administrative Law

In April 2019, Kevin Roberts applied to Judge Clarence Cuthpert, Jr., probate judge for Rockdale County, for a weapons carry license pursuant to OCGA § 16-11-129. Judge Cuthpert denied Roberts’s application, finding that Roberts’s criminal history revealed five arrests between 1992 and 2004 for aggravated assault, affray, obstruction of the judiciary, cruelty to children in the first degree, simple battery, battery, and family violence battery. Judge Cuthpert noted that Roberts’s criminal history did not list the dispositions of Roberts’s arrests for obstruction of the judiciary or simple battery, but the other arrests had dispositions of not prosecuted, dismissed, or nolle prossed. Judge Cuthpert concluded that Roberts “lack[ed] good moral character[4] . . . [d]ue to his arrest[s] for several violent offenses” and that “the court need[ed] additional information[, including police reports,] to determine if this application should be approved.” After reconsideration, Judge Cuthpert again denied the petition, concluding that, “[b]ased upon [Roberts’s] history of violent offenses and failure to comply with the Court’s instructions to provide the incident reports and dispositions for [his previous five arrests],” Roberts was “not of good moral character.” Roberts thereafter filed a complaint seeking mandamus relief against Judge Cuthpert “in his official capacity,” declaratory judgment against Judge Cuthpert “in both his official and individual capacities,” and costs and attorney’s fees. The Georgia Supreme Court held that the General Assembly waived sovereign immunity for claims brought under OCGA § 16-11-129 (j) and that the Separation of Powers Provision of the Georgia Constitution was not implicated by the recovery of costs, including reasonable attorney’s fees, against a probate judge pursuant to OCGA § 16-11-129 (j) because processing a weapons carry license did not involve the exercise of judicial power. The Court also concluded the probate judge in this case waived the defense of judicial immunity on the costs-and-fees claim asserted against him in his official capacity.

Wise Business Forms, Inc. v. Forsyth County, et al.

Court: Supreme Court of Georgia

Docket: S22G0874

Opinion Date: September 19, 2023

Judge: LaGrua

Areas of Law: Constitutional Law, Government & Administrative Law, Real Estate & Property Law, Zoning, Planning & Land Use

Wise Business Forms, Inc. (“Wise”) was the nation’s fourth largest printer of business forms, and was headquartered in Forsyth County, Georgia. A 36-inch metal pipe (“Subject Pipe”) ran underneath Wise’s property and had been in place since 1985. Approximately twenty-five feet of the drainage pipe extended into a two-acre tract of land west of Wise’s property (“Corner Tract”). The Corner Tract was undeveloped and forms a natural detention basin into which a large vertical concrete drainage structure with a large stormwater outlet pipe (“Feeder Structure”) was constructed. Wise asserted in its complaint that water from the Feeder Structure on the Corner Tract was designed to flow through the Subject Pipe underneath Wise’s property. The McFarland Parkway Widening Project extended McFarland Road from two lanes to four lanes and was completed in 2000. Wise alleged in its complaint that this project resulted in a substantial increase of the surface and stormwater runoff flowing underneath its property. In 2020, Wise filed a complaint against Forsyth County and the Georgia Department of Transportation (the “DOT”) raising claims for per se taking of Wise’s property, inverse condemnation by permanent nuisance, attorney fees. Wise amended its complaint to add a claim for inverse condemnation by abatable nuisance. The Georgia Supreme Court granted certiorari in this case to clarify the standards for determining when a claim for inverse condemnation by permanent nuisance accrues for purposes of applying the four-year statute of limitation set forth in OCGA § 9-3-30 (a). The Court concluded that, although the Court of Appeals articulated one of the correct standards to apply in determining when the applicable statute of limitation begins to run on a permanent nuisance claim, the Court of Appeals failed to construe the allegations of the complaint in the light most favorable to the plaintiff as the non-moving party; erred in concluding there was only one harm in this case that was “immediately observable” to the plaintiff when the nuisance at issue was completed; and erred in concluding that the statute of limitation had run on the plaintiff’s claim as a matter of law.

Bracken v. City of Ketchum

Court: Idaho Supreme Court - Civil

Docket: 48721

Opinion Date: September 15, 2023

Judge: Bevan

Areas of Law: Civil Procedure, Government & Administrative Law, Zoning, Planning & Land Use

This appeal was about whether an aggrieved applicant could bring a direct action against a city, its administrators, and its mayor for alleged misconduct pertaining to the granting of a conditional use permit without first exhausting administrative remedies and seeking judicial review. The answer is almost always “no,” but based on the unique facts in this case the Idaho Supreme Court held that the applicant was excused from exhausting administrative remedies.

Whitefish 57 Commercial, LLC v. City of Whitefish

Court: Montana Supreme Court

Citation: 2023 MT 176

Opinion Date: September 20, 2023

Judge: Gustafson

Areas of Law: Government & Administrative Law, Real Estate & Property Law, Zoning, Planning & Land Use

The Supreme Court affirmed the order of the district court granting summary judgment in favor of the City of Whitefish and affirming the Whitefish City Council's decisions to deny a conditional use permit (CUP) and grant Resolution 21-43, which denied the permit, holding that there was no error in the proceedings below.

Whitefish 57 Commercial, LLC and Rimrock Companies, LLC (collectively, Appellants) applied for a CUP to develop a hotel on a lot of their subdivision. After a public hearing on the development project the Council adopted Resolution 21-43 that denied the permit. Appellants appealed, claiming that the Council abused its discretion in denying their CUP. The district court granted summary judgment against Appellants.

In re Application of East Ohio Gas Co.

Court: Supreme Court of Ohio

Citation: 2023-Ohio-3289

Opinion Date: September 20, 2023

Judge: Stewart

Areas of Law: Energy, Oil & Gas Law, Government & Administrative Law, Utilities Law

The Supreme Court affirmed the orders of the Public Utilities Commission of Ohio approving a stipulation that authorized Dominion Energy Ohio to implement its capital expenditure program rider (CEP Rider), holding that the Commission's orders were not unlawful or unreasonable.

Dominion filed an application to recover the costs of its capital expenditure program by establishing the CEP Rider at issue. Dominion and the Commission jointly filed a stipulation asking the Commission to approve the application subject to the staff's recommendations. The Commission modified and approved the stipulation. The Supreme Court affirmed, holding (1) the Commission did not violate an important regulatory principle in adopting the 9.91 percent rate of return; (2) the Commission did not inconsistently apply its precedent; (3) the Commission did not violate Ohio Rev. Code 4903.09; and (4) Appellants' manifest-weight-of-the-evidence argument failed.

State ex rel. Fluty v. Raiff

Court: Supreme Court of Ohio

Citation: 2023-Ohio-3285

Opinion Date: September 19, 2023

Judge: Per Curiam

Areas of Law: Communications Law, Government & Administrative Law

The Supreme Court denied a writ of mandamus sought under Ohio's Public Records Act, Ohio Rev. Code 149.43, by Ashley Fluty against the City of Broadview Heights as well as Fluty's requests for statutory damages, attorney fees, and court costs, holding that Fluty was not entitled to any of the requested relief.

Fluty brought this action seeking to compel Broadview Heights to produce records related to an incident of suspected child abuse and also requested awards of statutory damages, attorney fees, and court costs. The Supreme Court denied all requested relief, holding (1) Fluty failed to show that she had a clear legal right to the requested writ of mandamus and that Broadview Heights had a clear legal duty to provide it; (2) Fluty's arguments supporting her claim for an award of statutory damages were unavailing; and (3) attorney fees and court costs were improper because Broadview Heights did not engage in bad faith.

State ex rel. Lambert v. Medina County Bd. of Elections

Court: Supreme Court of Ohio

Citation: 2023-Ohio-3351

Opinion Date: September 20, 2023

Judge: Per Curiam

Areas of Law: Election Law, Government & Administrative Law

The Supreme Court denied Petitioner's request seeking writ of mandamus compelling the Medina County Board of Elections to place a local liquor option on the November 7, 2023 general election ballot in this expedited election case, holding that Petitioner's petition was invalid in its entirety under Ohio Rev. Code 4301.333(C)(2).

Petitioner sought from the board of elections a petition for the purpose of obtaining a permit that would allow him to serve liquor on Sundays. The board of elections denied the petition, concluding that Petitioner's failure to attach the affidavit required under section 4301.333 meant that his petition was invalid under section 4301.333(C)(2). Petitioner subsequently sought mandamus relief seeking an order compelling the board to place a local liquor option on the ballot or, alternatively, an order compelling the board to provide him with certain information. The Supreme Court denied the writ, holding (1) Petitioner did not advance a compelling reason as to why the local option should be placed on the ballot; and (2) Petitioner was not entitled to mandamus relief based on any failure of the board of elections to follow the procedure set forth in Ohio Rev. Code 4301.33.

State ex rel. Ohioans for Reproductive Rights v. Ohio Ballot Bd.

Court: Supreme Court of Ohio

Citation: 2023-Ohio-3325

Opinion Date: September 19, 2023

Judge: Per Curiam

Areas of Law: Election Law, Government & Administrative Law

The Supreme Court granted a limited writ of mandamus ordering Secretary of State Frank LaRose to reconvene the Ohio Ballot Board and directed the ballot board to adopt ballot language that accurately described a proposed amendment regulating actions of the "State," holding that the term "citizens of the State" in the ballot language was misleading.

At issue was a constitutional amendment proposed by initiative petition titled "The Right to Reproductive Freedom with protections for Health and Safety" and the ballot language adopted by the ballot board for the November 7, 2023 election. Relators sought a writ of mandamus. The Supreme Court granted a limited writ ordering the ballot board and LaRose to reconvene and adopt ballot language that accurately conveyed that the proposed amendment limited the ability of the state, as defined by the amendment, to burden, penalize, or prohibit abortion.

State ex rel. Ottawa Hills Local School District Bd. of Education v. Lucas County Bd. of Elections

Court: Supreme Court of Ohio

Citation: 2023-Ohio-3286

Opinion Date: September 15, 2023

Judge: Per Curiam

Areas of Law: Government & Administrative Law, Tax Law

The Supreme Court denied a writ of mandamus sought by the Board of Education of the Ottawa Hills Local School District ordering the Lucas County Board of Elections to place a tax levy on the November 7, 2023 general election ballot, holding that the Board of Elections did not abuse its discretion or act in disregard of applicable legal provisions when it refused to place the levy on the ballot.

On August 28, 2023, the Board of Education brought this original action seeking a writ of mandamus ordering the Board of Elections to certify the levy at issue and place it on the November 2023 general election ballot. The Supreme Court denied the writ, holding (1) the Board of Education failed to certify an accurate resolution to proceed to the Board of Elections "not later than four p.m. of the ninetieth day before the day of the election," as required by Ohio Rev. Code 35.01.02(F); and (2) the Board of Education's error was not a technical violation that did not affect the public interest.

Woodland v. Dept. of Rev.

Court: Oregon Supreme Court

Docket: S069937

Opinion Date: September 19, 2023

Judge: James

Areas of Law: Civil Procedure, Government & Administrative Law, Tax Law

Taxpayer Walter Woodland appealed the Oregon Department of Revenue’s assessment of $116 in interest for unpaid estimated taxes in 2019. During the pendency of that appeal, the department invalidated the assessment and agreed that taxpayer did not owe that interest. The Regular Division of the Oregon Tax Court accordingly dismissed taxpayer’s appeal as moot. The Oregon Supreme Court affirmed.

Gonsor v. Day County Planning Commission

Court: South Dakota Supreme Court

Citation: 2023 S.D. 50

Opinion Date: September 20, 2023

Judge: Myren

Areas of Law: Government & Administrative Law, Real Estate & Property Law

The Supreme Court reversed the determination of the circuit court that the Day County Board of Adjustment could reconsider and modify a previously-granted variance, holding that the Board of Adjustment no longer had the authority to reconsider the variance when it did so.

Appellants were informed that their property violated the Day County Planning and Zoning Ordinance because they altered the grading and added rocks. Appellant subsequently sought a variance from the ordinance allowing the existing grading and rocks to remain. The Board of Adjustment unanimously approved the application. The Board subsequently reconsidered the variance and modified it. Appellants later applied for a permit to build a house on their property. The Board of Adjustment denied the application because Appellants had not complied with the modified variance. The circuit court denied Appellants' request for relief and dismissed their complaint. The Supreme Court reversed, holding that because the Board of Adjustment did not reconsider the variance before the appeal time expired, Appellants were entitled to a declaration of their rights under the variance the Board granted.