Administrative Law 530

Winter 2001

Professor Richard C. Reuben

 

Administrative Law 530

Examination Instructions

1. The examination is a take-home examination that may be taken on any weekday during the Winter 2001 examination period.

2. It may be picked up at any time the Administrative Office (Room 203) is open, but must be turned in to the Administrative Office no later than 4 p.m. on the day on which it is picked up.

3. The examination is open-book, open notes, instructor web site, etc., and you are free to consult these course materials. You should be advised that conducting outside research, however, will not help you on this examination.

4. Exams should be typed if at all possible, using the following standards:

a. Typeface: 12-point Courier or Times Roman

b. Margins: 1-inch on all sides

c. Line spacing: double-spaced.

d. Length:

1. Question 1 - no more than 5 pages (1250 words)

2. Question 2 - no more than 6 pages (1500 words)

3. Question 3 - no more than 5 pages (1250 words)

5. Handwritten exams must be in University of Missouri-Columbia School of Law blue books, and must conform to the word count requirements specified in Instruction #4. You may pick up blue books at the Administrative Office when you pick up your exams.

6. The statute found following Question 2 may be helpful on Questions 1 and/or Question 2. The statute following Question 3 may be helpful on Question 3.

7. Please write your examination number on your exam and turn it in with your exam.

8. You may not discuss this exam with other students until after the Winter 2001 examination period has ended. Failure to comply with this rule will be deemed an Honor Code violation.

Good luck!!

 

Question 1

To: Deputy Counsel, U.S. Senate Judiciary Committee

From: Richard C. Reuben, General Counsel, U.S. Senate Judiciary Committee

Date: May 8, 2001

re: The Election Integrity Act of 2001

As you know, you have recently been hired as my deputy counsel, in no small part because of what we understand to be your vast knowledge of Administrative Law. As I believe you also know, our chair, Sen. Orrin Hatch (R-Utah), is deeply concerned about the aftermath of the Florida elections. He wants to sponsor legislation that would address public perceptions of problems related to the casting and counting of ballots in elections for federal offices. Equally important, he wants to position the Republicans favorably for the important mid-term congressional election in 2002, and for President George W. Bush's re-election in 2004. The following is a note he handed me outlining his thinking for what he wants to call The Election Integrity Act of 2001, which would amend the Federal Election Campaign Act as described.

Please prepare the Senator a memorandum of no more than five pages analyzing the pros and cons of the proposal, and discussing in particular any constitutional, political or related issues you think he needs to consider. As you know, the Senator is widely considered to be an expert in constitutional law, and is regularly on the "short list" for U.S. Supreme Court vacancies when the Republicans are in the White House; win or lose on enactment, he doesn't want to be embarrassed in this regard. (Don't worry about federal-state preemption issues; we have someone else working on that.)

FYI, you should probably know that the Senator is particularly anxious to get the upper hand on this issue politically, as Sen. Ted Kennedy (D-Mass.), is about to unveil what he will call The Election Integrity Restoration Act of 2001, which will seize upon continuing concerns about the legitimacy of the Florida vote. In this regard, the national Republican leadership is counting on the Senator to come through on this issue as a critical component of a comprehensive national strategy to solidify the party's hold on both the White House and the Congress -- and the Senator has given the leadership his every assurance that he will deliver.

Timing is crucial because the Kennedy proposal is expected to be announced on Friday, so that it can be on the front pages of combined Saturday editions of local newspapers. Therefore, the Senator wants to announce his proposal tomorrow morning, during a spot he already has booked on the Good Morning America. Dick Cheney is already lined up for Larry King tomorrow night, too, and will support whatever the Senator comes up with. Bob Dole is going to plug it on NPR when they call after the GMA announcement. As a result, the Senator will need your finished memo no later than 4 p.m. today.

Unfortunately, I am jammed today on other matters, and will not be able to help you or review your memo before it goes to the Senator. I have great faith in your ability to come through. The Senator sees a bright future for you here in the nation's capital, and while it can be a tough town, if you do well, this project should give you a good start. Oh, yeah, welcome to Washington!

From the Desk of Sen. Orrin Hatch

Richard - on this election thing, why don't we just:

1. Change the FEC to an executive structure (or at least replace the hard-core Clintonians with our people)

2. Have the FEC investigate what the problems were in Florida and establish appropriate standards to resolve those problems.

Thanks,

Orrin

 

 

 

Question 2

Fortunately for you, the Election Integrity Act on which you worked in Question 1 has indeed been passed by the Congress, with Dick Cheney casting a tie-breaking vote in the Senate, and signed into law by President George W. Bush. In particular, Section 437c(a) of the Act has been revised to reflect an executive structure, and Section 437c(b) has been amended to include the following new subsection:

(3) The Commission shall have jurisdiction to investigate the manner in which federal officers are elected, and to regulate the election of all federal officers, and may issue regulations, policies, and procedures as may be appropriate thereto.

On December 12, 2001 - the anniversary of the U.S. Supreme Court's decision in Bush v. Gore - President Bush issued an Executive Order that states, in relevant part:

All votes for federal officers in the national election of 2004 must be cast on touch-screen ballots, as described in regulations to be promulgated by the FEC.

Bush's new FEC Commissioner, Kathryn Harris, that day also published the following notice in the Federal Register:

Pursuant to the amended FECA, the FEC intends to establish rules and policies regarding the election of federal officials. States are requested to submit to the FEC descriptions of the mechanisms by which federal officials are currently elected in their states, and their assessments of other available technologies. Submissions by other interested parties are welcome. The deadline for the submission of these comments is March 1, 2002.

In addition to responses from states indicating a broad range of older voting mechanisms, the FEC also received numerous responses from high-tech start-ups in traditional Republican strongholds that are developing various methods of on-line voting, manufacturers of current balloting systems urging for system upgrades rather than complete system conversions, civil rights groups urging greater monitoring of election sites, and voting rights groups urging the commission to make it easier to register to vote, including Election Day registration. The comments indicated that upgrading current systems was substantially less expensive than computerizing the process, with an average per state cost of $3 million for upgrades and $10 million for computerization. Various studies referred to in the comments indicated that voter participation would increase 5 percent with upgraded current systems, and 15 percent with computerized systems, although the accuracy of counting would not be statistically different as between upgraded current systems and new computerized methods.

 

 

 

 

On May 1, 2002, Harris published a regulation in the Federal Register, which includes the following provisions:

A. Method of Balloting. . . . The agency considered various options currently in use in the states, as well as the most current technologies - such as Internet

voting, touch-screen voting, and computerized polling units to determine the pros and cons of each method - and concluded that the touch-screen technology was the most widely available, user friendly, and accurately counted technology for the collection of election ballots. . . . Therefore, beginning with the national election of 2004, all votes for federal officers must be cast on touch-screen ballots.

B. Enforcement of Balloting Methods. . . . All states are required to submit their Final Plans for EIA Compliance for FEC approval no later than January 1, 2003. States determined not to be in compliance by the FEC will be deemed to forfeit one-half of all federal appropriations for each year such state is deemed not to be in compliance, and will be deemed to consent to the federal supervision of any federal election taking place during a period of non-compliance.

 

Because touch-screen technology is particularly expensive, state officials are outraged at this "unfunded federal mandate" and a representative organization, the National Association of State Governments, has sought your advice about the prospects of bringing a lawsuit challenging the requirement. May such a claim be brought? How would you attack the validity of the touch-screen and compliance provisions? How is a court likely to analyze those challenges, and how might it dispose of the case? (You may assume the organization would have standing to bring a claim).

 

 

 

 

Question 3

 

You are the attorney for The Staggering Tiger, a tavern in the city of Columbia in the State of Ticoma. Columbia is a college town, home of the University of Ticoma-Columbia Tigers. The Staggering Tiger is something of a local institution, where generations of students have gathered on weekends, after exams, for sporting events, etc., to unwind from the rigors of collegiate life.

The owner of The Staggering Tiger, Bud Weiser, has called you in a state of great alarm about the renewal of his liquor license for his tavern. In particular, he has just learned that his license renewal application will be put before the voters of Columbia, after a petition drive in Columbia apparently convinced the Ticoma State Liquor Licensing Board to put the renewal matter to the voters, pursuant to Section 208(b) of the Revised Code of Ticoma. He had attended a hearing last night, where he had expected to be able to build upon the letter he had written to the Board in opposition to the referendum, and to respond personally to some of the lurid (and totally unfounded) allegations about The Staggering Tiger. But the Board refused his request.

Bud is very concerned about the referendum. Competition among Columbia taverns for the college student market is fierce, particularly with the arrival of more and more national chains, and Bud fears his competitors will try to use the referendum to drive him out of business. In fact, he suspects that the national chains are behind this referendum movement. Bud's last foaming words to you were "I want you to sue those bastards like they've never been sued before!"

Your preliminary research indicates that the state of Ticoma does indeed have an unusual scheme for liquor license renewals that generally provides the holder of an existing license the right of renewal on an annual basis as long as certain conditions are satisfied. (Those conditions relate to primarily relating to health and safety standards, and the maintenance of all applicable taxes and local licenses, and The Staggering Tiger is clearly within those standards.) The statute does, however, include a provision that permits local voters to effectively deny the renewal of a liquor license for a retail establishment, a copy of which is attached for your convenience.

Bud Weiser wants you to call him tomorrow. What claim or claims would you bring, and what is their likelihood of success?

 

Revised Code of Ticoma

Chapter 29. Liquor Licensing Board

Section 208. Liquor Licenses

(A) Issuance of license by Board. When a person has obtained a local license and has made application to the State Board in conformity with this Act and paid the license fee provided, it shall be the duty of the State Board to issue a retailer's license for the sale of alcoholic beverages to such person; provided, however, that the State Board may refuse the issuance or renewal of a retailer's license, upon notice and after hearing.

(1) A license issued by the State Board, shall be valid for not to exceed one year after issuance unless sooner revoked or suspended as in this Act provided.

(2) A license shall be purely a personal privilege, and shall not constitute property subject to attachment, garnishment or execution, nor shall it be alienable or transferable, voluntarily or involuntarily, or subject to being encumbered or hypothecated.

(B) Section 208. Referendum on retail sales of alcoholic liquor. When any legal voters of a precinct in any city, village or incorporated town of more than 50,000 inhabitants, as determined by the last preceding Federal census, desire to pass upon the question of whether the sale at retail of alcoholic liquor shall be prohibited at a particular street address within the precinct, they may present a petition of at least 500 signatures to the State Liquor Licensing Board requesting it to conduct a public referendum on the license renewal application. Such referendum would specifically ask qualified voters of that precinct: "Shall the request for renewal of the liquor license at (specific address) be renewed for a one year term?" The Board shall make a decision on the request at a hearing.

If the request is approved, the referendum shall be placed on the next possible ballot. If a majority of the voters voting upon such proposition vote "NO", the sale at retail of alcoholic liquor shall be prohibited at the street address, and the liquor license for any establishment at that street address shall not be renewed, and shall be void, unless and until such prohibition is discontinued pursuant to Section 208(C). If a majority of the voters voting on such proposition vote "YES," the license shall be renewed as long as the other conditions of this Chapter are satisfied.