Is a Fourth Branch in the horizon?

The Washington Post has a very interesting article, which highlights the increased deferment of cases to government agencies.  Instead of going through the court system, many cases are increasingly going through administrative agencies instead.

The question posed here is whether the right for court accessibility being challenged?  The Washington Post raises its concerns:

The growing dominance of the federal government over the states has obscured more fundamental changes within the federal government itself: It is just not bigger, it is dangerously off kilter.  Our carefully constructed system of checks and balances is being negated by the rise of a fourth branch, an administrative state of sprawling departments and agencies that govern with increasing autonomy and decreasing transparency.

The Washington Post reports that the vast majority of laws governing the United States are not passed by Congress but are issued as regulations.  A study found that in 2007, Congress enacted 138 public laws, while federal agencies finalized 2,926 rules, including 61 major regulations.

The Washington Post also reports that a citizen is 10 times more likely to be tried by an agency instead of an actual court.  While federal judges conduct roughly 95,000 adjudicatory proceedings (including trials), federal agencies complete more than 939,000.

However, there are several items the Washington Post fails to mention.  The increasingly use of administrative agencies does not only fall upon the agency.

Take for example the individual’s decision to file a charge/claim.  Going through administrative agencies is more cost-effective.  Lawsuits in court have become more expensive.  Technology, electronic evidence, growth in documents and companies, among others, lead to a higher volume of issues and motions that increase the cost of litigation.  Given both alternatives, it makes sense that an individual might choose to go through an administrative agency.

For example, an individual going through the EEOC for a discrimination charge does not have to pay anything.  While an individual going through the court system may have to pay attorney fees and might be responsible for attorney fees.

 

 

Saying that, however, the issue of transparency and timing is highly concerning.  Administrative decisions are not public.  In addition, the length of an administrative decision might take several years.

via The rise of the fourth branch of government – The Washington Post.

Minnesota Senate joins House in approving same-sex marriage

This news exploded in the media and social media.  Minnesota is set to become the first Midwestern state and the 12th state in the U.S. to allow same-sex marriage.

Yesterday, Minnesota Senate voted 37 to 30 in favor of allowing same-sex marriage.  Earlier, the Minnesota House of Representatives voted 75 to 59 in favor for it.  As a backdrop, in the prior election, Minnesota voters rejected a proposed constitutional amendment that would have defined marriage as only between a man and a woman.

Governor Dayton stated that he will sign the bill once it comes to his desk.

via Minnesota Senate joins House in approving same-sex marriage | MinnPost.

Major Possible Changes to Federal Discovery Rules

Corporate Counsel reported about a very important and significant change that might occur next year.  Here are the highlights of the proposed amendments (starting on Page 91 of 322).

The e-discovery rules may change once again by next year.  The United States Court’s Advisory Committee on Civil Rules voted last week to send proposed amendments to the Standing Committee on Rules of Practice and Procedure.  The Standing Committee will consider approving or rejecting the proposal in early June.

The most significant proposals would narrow the scope of discovery under Rule 26; impose or reduce numerical limits on written discovery and depositions under Rules 30, 31, 33, and 36; Rule 37 will adopt a uniform set of guidelines regarding sanctions when a party fails to preserve discoverable information; and Rule 34 will tighten the rules governing responses for production of documents.

Rule 26′s proposed amendments are as follows:

• Rule 26(b)’s proposed amendment restricts the defined scope of discovery to information that is “proportional to the needs of the case.”  The language is as follows:
  

  “and proportional to the needs of the case considering the amount in controversy, the importance of the issues at stake in the action, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

  These proportional considerations are currently listed in Rule(b)(2)(c)(iii).  This amendment would mandate adherence by the parties without court intervention.

• Rule 26(b)’s proposed amendment would delete the following sentences:
  

  (1) “For good cause, the court order discovery of any matter relevant to the subject matter involved in the action.  Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.”

• Note, that the proposed amendment for Rule 26(b) states that “Information within this scope of discovery need not be admissible in evidence to be discoverable.
• Rule 26(c) (protective orders) adds “or the allocation of expenses.”

Rules 30′s and 31′s proposed amendments are as follows:

• The number of depositions (oral and written) would be reduced from 10 to 5.
• The limit of an oral deposition is reduced to 6 hours.
• The number of written interrogatories would change from 25 to 15.
• The number of requests will be 25, except for requests relating to the genuineness of documents.
• There will be a presumptive limit on the number of Requests for Admissions a party may serve.
• A court order or a stipulation by the parties may increase the limits on any numerical discovery.

Rule 34′s proposed amendments (which govern the production of documents and electronically stored information) are as follows:

• The objections to document requests must be stated with specificity.  This requirement has already been applied to interrogatory responses under Rule 33.
• When the responding party must state that it will produce the requested documents (instead of permitting inspection), the production must be completed by the date for inspection stated in the request or by a later reasonable time stated in the response.
• A party objecting to a document request must state whether any responsive materials are being withheld on the basis of the objection.

Rule 37(e)’s proposed amendment (which concern sanctions for failure to preserve discoverable information) state:

• A court may impose sanctions when it finds that a party failed to preserve information that should have been preserved for litigation.  The sanctions includes remedies and curative measures that are not considered “sanctions,” such as allowing additional discovery, requiring a party to recreate or obtain the information that it lost, or ordering a party to pay reasonable expenses resulting from the loss of information.
• The court may also impose sanctions listed in Rule 37(b)(2)(A) when to address preservation failures.  These sanctions include issue or evidence preclusion, the striking of pleadings, the dismissal of the action in whole or in part, and an adverse inference.
• The court may impose sanctions or order an adverse jury instruction only if it finds that the failure to preserve caused “substantial prejudice” in the litigation and was “willful or in bad faith.” or that the failure to preserve “irreparably deprived a party of any meaningful opportunity” to litigate the claims in the action.

 

via On the Cusp of Major Changes to E-Discovery Rules.

Jane Kelly confirmed for 8th Circuit bench

The Senate confirmed the nomination of Jane Kelly to the 8th Circuit Court of Appeals by a vote of 96-0.  There were 4 non-voting votes.  If you can’t find the link, go here and find Vote 00108 (April 24th).

Jane Kelly will be the second woman and first public defender to serve in the history of the court since its establishment in 1891.

Jane Kelly received her bachelor’s degree from Duke University and her law degree from Harvard Law School in 1991.  After her graduation, Jane Kelly clerked for U.S. District Judge Donald J. Porter of South Dakota and Eighth Circuit Court Judge D. Hansen.

Jane Kelly has been an assistant public defender in the Northern District in Iowa since 1992, and the supervising attorney since 1999.

On the Senate floor, Senator Chuck Grassley stated, “She is a credit to all of use who have chosen public service.”

Minnesota Senate passes increased funding for public defenders

Minnesota Lawyer (subscription required) reports on the bill for public defenders’ funding.  The background of the funding for public defenders is as follows.

In 2008, public defenders were funded through attorney’s registration fees.  The Minnesota Supreme Court upheld this type of funding.  Through this funding, the state Board of Public Defense was able to generate around $1.9 million annually.  This request was reapproved in 2011.

However, in December, the state Board of Public Defense withdrew its request to earmark funding from the attorney registration fee.    This decision came in December, when various committees and group sections of the Minnesota State Board Association removed its support for the petition.

On Tuesday, April 16th, 2013, the state Senate passed a judiciary funding bill that increases funding for public defenders.  The bill provides $5 million for increased employee salary and benefits for public defenders.  The bill also provides $5.6 million for new public defenders positions that will reduce caseloads.  The Senate bill was passed by 47-18 votes.

The Senate Judiciary Finance Division Chairman Ron Latz (DFL-St. Louis Park) stated that the bill helps alleviate a public defender system that is “overworked, overburdened, [and] has some of the biggest caseloads in the country.”

via Minnesota Senate passes increased funding for public defenders | Minnesota Lawyer.

Indiana Bill 373: whistleblower concerns

Indiana Senate Bill 373, which has not been adopted, has raised concerns.  The amended bill’s language is not currently available.

The bill provided that it is a Class A misdemeanor for defamation, to directly or indirectly harm the business relationship between the agricultural or industrial operation and its customers, and for trespass.  However, it is a defense if the person has a good faith belied that there is evidence of illegal activity and provides the recording to law enforcement or a regulatory agency within 48 hours after the person left the property or premises.

The original bill provided that persons could not take pictures or videos of the real property, structures located on the real property, or the agricultural operations or industrial operations being conducted on the real property without the consent of the owner or the representative of the owner.

The amended bill shifted its focus from unauthorized pictures and videos of the structure and operations to (1) trespassing and (2) those who gain employment by providing false information in order to gain access to inside information.  The amended bill states a person is guilty of trespass if he/she intentionally crosses a fence, a wall, or other constructed barrier that reasonably implies entry is prohibited.

The concerns from animal rights groups, unions, and representatives for news media are concerned that the revisions could become a way for employers to intimidate whistleblowers.

The bill will be presented to the full House for consideration.

via Indiana bill changes raise whistleblower worries – 14 News, WFIE, Evansville, Henderson, Owensboro.

Giving up your password when looking for a job?

Should your potential employer require you to give up your password to Twitter? Facebook? LinkedIn? Will your comments, background information, age, nationality, pictures be used against you?

What if the employer does not use that information, but still has access to it?  Would that raise a concern that it was in fact used against a job applicant?  Allowing the requirement of social media passwords bring potential liability issues to employers.

Minnesota Lawyer (subscription required) has a very interesting article.   The Minnesota proposed bill, introduced by Rep. Mary Franson (R-Alexandria) seeks to ban employers from asking job applicants for their social media passwords as part of the job interview.  It is important to note, as stated by the article, that the bill does not discuss already hired employees and the use of employer laptops, computers, smartphones, etc.

Pending legislation in Minnesota includes H.F. 293, H.F. 611, S.F. 484, and S.F. 596.  All of these bills seek to ban employers fro requiring social network passwords as a condition of employment.

The National Conference of State Legislation reports that there are at least 29 states with introduced or pending legislation seeking to ban employers from requiring/asking for these social media passwords.

Gov. Dayton drops business-to-business tax

MinnPost reports that Governor Dayton dropped the controversial business-to-business tax, which would impose taxes on legal services.

Gov. Mark Dayton said in a speech Friday morning that he’s taking the controversial business-to-business tax — which had been much villified by many executives  — off the table.

Speaking to the TwinWest Chamber of Commerce Legislative Breakfast at a St. Louis Park hotel, Dayton brought much relief to many business leaders there. State officials said it would have added $2.2 billion in state revenue by taxing business services such as advertising and legal advice.

MPR reported that Dayton said his initial budget proposal “obviously lacked public support” and that now “it lacks mine.”

Now, the anticipated new budget was set to be released on Tuesday, but it was delayed.  Governor Dayton’s staff stated that it will released “later in the week” since the tweaking of numbers continues. You can read MinnPost article here.

via Gov. Dayton takes business-to-business tax out of his budget | MinnPost.

Dayton’s budget includes a legal services tax

Like Governor Pawlenty, Governor Dayton now wants to create a legal services tax.  The effect of such a bill would mean that the next time you or your client wants to seek a lawyer’s aid, in addition to paying the attorney’s fees, the client will need to pay a burdensome tax on legal services.

To reduce the budget deficit, this is what Governor Dayton proposed:

• Reducing corporate income tax from 9.8% to 8.4%.  A huge drop of 1.4%.
• Governor Dayton stated that he wants to tax clothing that costs more than $100.
• Governor Dayton wants to tax the following services: legal, accounting, architecture, specialized design, computer, management consulting, advertising, employment and business support services.

Taxing legal services is a bad idea, which would significantly impact a population that cannot afford to get hit.  And why is that?  The legal services tax will be paid by the client.

So say, you are trying to fight foreclosure.  The owner of the home will have to pay that tax.  Or say, you are trying to fight a custody battle.  The parent will have to pay that tax.

Imposing such a severe burden on the middle-class, as well as the lower-class, will inevitably have a chilling effect.  In other words, the vast majority of Americans will no longer have a viable resource when exercising their constitutional rights.

The Minnesota State Bar Association shares this same viewpoint.  In addition, the MSBA has also stated that the tax would be next to impossible to administer.

via Dayton unveils a legal services tax to fill budget deficit – MinnLawyer Blog.

Gun regulation: pinning States against Federal Government

I came across this very interesting piece of news.  Mississippi and Texas proposed and called for bills to make it illegal to enforce any of the new federal gun control measures.

Mississippi Governor Bryant called for a bill that would make it illegal for state and local enforcement to enforce any executive order from the President.  Similarly, in Texas, State Representative Toth introduced the “Firearms Protection Act.”  The bill would make “any federal law banning semi-automatic firearms or limiting the size of gun magazines unenforceable within the state’s boundaries” and “anyone trying to enforce a federal gun ban could face felony charges under the proposal.”

The question is, of course, how would a federal statute or executive decision interact with the Second Amendment to the Constitution.  The second amendment provides,

A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.

The Supreme Court’s most indicative decisions call for an interesting debate.  The Supreme Court has ruled that the government can enforce several restrictions on the right to bear arms.  Presser v. Illinois, 116 US 252 (1886) (upholding the state’s or Congress’s regulation of militias); Miller v. Texas, 135 US 535 (1894) (upholding the state’s ability to press criminal charges for owning an unlicensed gun);  Robertson v. Baldwin, 165 US 275 (1897) (upholding state’s regulation of concealed weapons); and United States v. Miller, 307 US 174 (1939) (upholding the National Firearms Act which banned the interstate transportation of unregistered Title II weapons).

This, however, does not mean that we would know to what extent a regulation would be constitutional.

via State Lawmakers Say No to President Obamas Gun Control Proposal – ABC News.