July 20, 2019

Archives for November 2, 2012

Tenth Circuit: Time Limit On HUD Funds Investments and Return of Interest to HUD Affirmed

The Tenth Circuit issued its opinion in Muscogee (Creek) Nation Division of Housing v. U.S. Dep’t of Housing and Urban Development on Tuesday, October 30, 2012.

The Muscogee (Creek) Nation (the Nation) received block grant funds for affordable housing under the Native American Housing Assistance and Self-Determination Act of 1996, 25 U.S.C. §§ 4101-4243. Under regulation 24 C.F.R. § 1000.58, funds invested by the Nation could not be invested for longer than two years. In 2007 and 2009, HUD issued notices regarding requirements for investing the funds and stating that for funds invested longer than two years, any interest accrued after two years must be returned to HUD. Additionally, any invested funds that were not expended on affordable housing activities by the two-year period would have to be returned to the tribe’s Line of Credit Control System account.

After a HUD review of the Nation’s use of program funds, HUD required the Nation to return $1.3 million in interest on funds invested longer than two years. The Nation returned the interest under protest, then filed suit seeking return of the funds and injunctive and declaratory relief regarding the validity of 24 C.F.R. § 1000.58(g) and the interest repayment requirement of the 2007 and 2009 notices. The district court dismissed the case based on HUD’s sovereign immunity and, in the alternative, for failure to state a claim.

The Tenth Circuit found that the Administrative Procedures Act did not waive HUD’s sovereign immunity regarding the two-year time limit on investments because “HUD’s authority to approve investment activities is committed to agency discretion as a matter of law.” Thus, the APA’s waiver of sovereign immunity did not apply and dismissal was proper for lack of jurisdiction.

In analyzing the Nation’s claims regarding the 2007 and 2009 notices requiring the return of interest, the court found a 1992 Comptroller General’s decision persuasive. The court held that the notices were interpretive, not substantive, and were consistent with federal law. It affirmed the district court’s dismissal of those claims on failure to state a claim grounds.

Judicial Performance Evaluation Results Released as Voter Tool in Judicial Races

This fall, judges are running in contestable elections in 32 states and standing in yes/no retention elections in 17 states. Judicial elections are typically low-information contests, where voters may cast their ballots based on party affiliation, name recognition, or ballot position rather than on qualifications and experience.

But in a handful of states, voters will have the benefit of broad-based and objective evaluations of incumbent judges’ performance on the bench and, in one state, of the judicial potential of their challengers. These states include Alaska, Arizona, Colorado, Missouri, New Mexico, North Carolina, and Utah.

Each of these states has a judicial performance evaluation program, through which court users assess the legal ability, impartiality, temperament, and communication skills of the judges with whom they have interacted. Results of these surveys of court users are summarized and shared with voters, often in conjunction with objective data (e.g., reversal rates, case management statistics) and a voting recommendation.

Two recent polls highlight the need for readily available, nonpartisan information about judges running for reelection or standing for retention. In Indiana, where appellate judges and some trial judges stand for retention, a 2011 poll found that nearly one-third of respondents do not vote regularly in judicial elections, and the most common reason given for not always voting on judges is a lack of useful information. When asked whether they would find public performance evaluations helpful, two-thirds said it would be of great or some value.

Similarly, a 2012 voter poll in Minnesota—where judges run in contestable, nonpartisan elections—found that three-fourths of respondents would support the creation of a balanced public performance evaluation commission that would review judges’ performance and publish evaluation results.

“These polling results demonstrate that voters need more information to make informed decisions about the judges appearing on their ballots,” said Dr. Malia Reddick, director of the IAALS Quality Judges Initiative. “Judicial performance evaluation programs fill this void.”

“For more than three decades, the American Judicature Society has supported the use of judicial performance evaluation programs as a valuable informational tool for voters in judicial retention elections,” said AJS Executive Director Seth S. Andersen. “Surveys and exit polling demonstrate that voters use JPE results to make better-informed decisions on judges standing for retention. The key is to ensure that evaluation results are disseminated widely and are readily available to voters.”

“To be fair and impartial, judges must be protected from special interest and partisan influence while remaining accountable to the law and constitution,” said Bert Brandenburg, Executive Director of Justice at Stake. “By focusing on competence instead of ideology, JPE’s enable the public to choose fair, high-quality judges.”

Alli Gerkman is Director of Communications for IAALS, the Institute for the Advancement of the American Legal System at the University of Denver. IAALS is a national, independent research center dedicated to continuous improvement of the process and culture of the civil justice system. This post originally appeared on IAALS Online, the IAALS blog.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Colorado Court of Appeals: Announcement Sheet, 11/1/12

The Colorado Court of Appeals issued four published and 25 unpublished opinions on Thursday, November 1, 2012.

Published

City of Littleton v. Industrial Claim Appeals Office

Graham v. Zurich American Insurance Company

Groh v. Westin Operator, LLC

Giuliani v. Jefferson County Board of County Commissioners

The summaries for these cases are forthcoming, courtesy of The Colorado Lawyer.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Tenth Circuit: Unpublished Opinions, 11/1/12

On Thursday, November 1, 2012, the Tenth Circuit Court of Appeals issued no published opinions and six unpublished opinions.

O’Neal v. Newton-Embry

United States v. Murphy

Green v. JP Morgan Chase Bank

Hughes v. Oklahoma Dep’t of Transp.

Figueroa v. Oklahoma Dep’t of Corrections

Diaz v. Holder

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.