Sound at the Time: Federal Court in Massachusetts Upholds Initial Pandemic-Related Eviction Moratorium with Exception for Compelled Referrals to Landlords’ Adversaries

Baptiste, et al. v. Kennealy, et al., No. 1:20-cv-11335 (MLW) (D. Mass.) (September 25, 2020).  Conference concerning future proceedings set for October 2, 2020.  

The court has released a 100 page opinion articulating all of its reasons for concluding that at the time that the statewide prohibition on evictions and eviction proceedings was a valid use of the state’s emergency powers to protect public health.  The court cautioned that under differing tests of constitutional sufficiency the state’s action would not survive constitutional scrutiny and stressed that changed conditions could affect the court’s determination.  The court urged  the governor of Massachusetts to bear the federal and state constitutions in mind when determining, upon the expiration of the emergency measures in mid-October,  whether further prohibition of eviction activity is necessary.

The court struck down the state’s regulation requiring any landlord notifying a tenant of rent arrearages to provide written referrals to tenant advocates to aid in countering the landlord’s position, as such provisions were unconstitutional compelled speech, as held in National Institute of Family and Life Advocates v. Becerra, No. 16-1140 (June 26, 2018).  

The court stated that if the state agreed to abandon the regulation, the court would not enter judgment against the state.  

The opinion is encyclopedic in its review of the law applicable to the use of emergency powers, particularly with reference to the Contracts Clause, the Takings Clause and the First Amendment.  This indicates that the court was concerned not only with the opinion of courts of appeals reviewing the opinion but also with respect to the lens of history, noting Korematsu v. United States, 323 U.S. 214 (1944).  

The court stated that it is possible that its denial of injunctive relief will effectively terminate the case but has ordered counsel to confer and to inform the court by October 2 of contemplated further proceedings.

2020 09 25 Baptiste et al v. Kennealy et al. No 11335 (MLW)

National Institute of Family and Life Advocates v. Becerra, No. 16-1140 (June 26, 2018)

Trump v. Hawaii, No. 17-965 (June 26, 2017)

Toyosaburo Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944)

Some Kind of Hearing, Updated: UConn Student’s Suspension Permanently Vacated, Parameters of New Investigation and Hearing Envisioned, and Student Deemed to Have Prevailed.

John Doe v. University of Connecticut, et al., No. 3:20-cv-00092 (D. Conn.)

A student accused of conduct violations and the University of Connecticut and its officials have reached agreement to dissolve permanently the student’s suspension and to refashion rules and procedures for a new investigation and hearing on the allegations.  The new proceedings, to be completed not later than this month, are intended to provide some due process safeguards seen to have been lacking in initial proceedings. 

The U.S. District Court has entered judgment in accordance with the Consent Order submitted by the parties, with the court to retain jurisdiction to hear any matters relating to that order. 

The university defendants concede that John Doe is the prevailing party in the case and as such is permitted to recoup attorneys’ fees.  The process of determining the amount of the fee award is underway.  

Just Lawful Observation:  The case exemplifies the hazards of college and university administration of investigations and discipline having life long consequences yet operating without the constitutional guarantees promised in federal and state courts. 

The consequences to an accused student deprived of due process are life altering.  To this may be added the financial pressures on universities to be compliant with federal gender parity laws, violation of which will result in loss of funding.  Some believe this pressure has rendered schools incapable of operating without bias.  Moreover, social pressure to vindicate individuals who complain of sexual misconduct is everywhere felt, no less so in colleges and universities.

It occurs to Just Lawful that if ever there were cases that cry out for restorative or reparative justice, it is these cases in which students’ lives implode when activity viewed as consensual by one is viewed as assault by another.   Where remedies may be devised through mediation or learned interventions for both parties, this may be worthy of exploration.  

The costs of these proceedings to students, whether accused or accuser, are not academic in any sense:  at this time John Does’ attorneys’ fees request approaches one hundred thousand dollars.  Few students or their families could shoulder such costs without hardship.

2020 3 20-cv-00092 Consent Order

2020 3 20-cv-00092 Judgment


Beyond Geographic Boundaries: Locus of Online Activity for Jurisdictional Purposes Challenged in Case Asserting Ex Parte Restraining Order Violated Section 230 and the First Amendment

Narcisi v. Turtleboy Digital Marketing, LLC,No. 2019-08-0329-JJM-PAS (D. R.I.)

An online kerfuflle erupted when Aidan Kearney, owner of Worcester Digital Marketing, formerly Turtleboy Digital Marketing, posted material critical of Narcisi, a Rhode Island resident and website operator.

Narcisi sued for defamation in Rhode Island state court, claiming that Turtleboy defamed plaintiff and plaintiff’s business interests.  Narcisi claimed that following postings on Turtleboy’s site, Narcisi received unwanted commentary and messages from Turtleboy’s followers.

Narcisis sought and obtained an ex parte order forbidding contact and requiring take down of existing posts.

On May 16, 2019, apparently without notice to Turtleboy, the Rhode Island Superior Court in Washington County entered a restraining order enjoining Turtleboy from, inter alia, contacting, cyberbullying, or otherwise interfering with Narcisi.  The order demanded that Turtleboy remove any posts about Narcisi.

Kearney states that defective service was made concerning a late May hearing.  On appearing to oppose continuance of the restraining order, the judge advised he could not speak for his company.

Further hearing was scheduled for June 19th.  Counsel for Kearney removed the case to federal court and has moved to dismiss for lack of personal jurisdiction.

Kearney/Turtleboy’s success in garnering the attention of the American Civil Liberties Union promises a vigorous First Amendment challenge should the issues of unconstitutional prior restraints and Section 230 immunities be reached.

That the speech and responsibility issues may not be reached may only make the case more interesting, for Kearney/Turtleboy essentially challenges the “presence” of internet postings for jurisdictional purposes.

Kearney/Turtlboy asserts that there exist no contacts with plaintiff or plaintiff’s business or the State of Rhode Island that would support personal jurisdiction.

The core issue is whether internet posting, which have no physical presence in the traditional three dimensional sense, are sufficient to constitute contacts for purpose of asserting personal jurisdiction.

Some courts have said no.

Plaintiff has yet to respond to the motion to dismiss.

Time will tell.

2019 06 24 Motion to Dismiss USDC D. R.I.

2019 06 24 Memorandum of Law re Dismissal USDC D. R.I.

2019 06 21 Kearney Declaration USDC D. R.I.

2019 05 16 State TRO

2019 05 13 State Complaint





He Fought the Law and the Law Won: Probable Cause Defeats First Amendment Claim for Retaliatory Arrest

Nieves v. Bartlett, No. 17-1174.  May 28, 2019.

Bartlett was arrested at a ‘raucous’ Arctic Man sports gathering following his initial refusal to speak with officers and subsequent discussion about an underage attendee. He was perceived by police to be aggressive. Bartlett sued the police under 42 U.S.C. Section 1983, claiming that the arrest was in retaliation for his exercise of First Amendment rights.

The Court noted that the question whether probable cause precludes retaliation claims in official policy cases has been left open.  Redress for deprivation of First Amendment rights may be sought if no non-retaliatory basis for official action exists. The critical question is one of “but-for” causation.  No action may proceed unless retaliation has governed any adverse action.

A retaliatory motive will not defeat official action if the official action would have occurred without the retaliatory motive.  Retaliatory arrest claims fail if no probable cause for arrest is shown. A defendant can success only if he or she can show arrest would follow even in the absence of probable cause.

The “no probable cause” rule will not preclude action where a claimant can show that others who were not engaged in protected speech were not arrested. If a vocal critic of police is arrested for jaywalking but others not engaged in protected speech are not arrested, a case can proceed.

In this case, the officer who observed Bartlett’s verbal aggression and body language could conclude a fellow officer was being challenged and perceived the existence of probable cause to arrest.  This defeats the First Amendment retaliation claim.

The Court agreed on the case outcome:  a plaintiff in a retaliatory arrest claim must show not just that retaliatory motive existed but that retaliatory motive caused the arrest.  

The Court was far from agreement on the finer points of its rule.  

Justice Thomas wrote separately to express wariness of the creation of an exception to the “no probable cause” rule, finding this holding to be without precedent in First Amendment jurisprudence.

Justice Gorsuch wrote to express concern that an “exuberant” criminal justice system would permit almost anyone to be arrested for something.  Deference to expansion of extensive state power would inhibit the exercise of constitutionally protected speech. In language certain to be quoted, he wrote:  “If the state could use these (expansive)laws not for their intended purposes but to silence those who voice unpopular ideas, little would be left of our First Amendment liberties, and little would separate us from the tyrannies of the past or the malignant fiefdoms of our own age.”

If probable cause cannot by itself defeat a First Amendment claim, and if there is no such requirement in the case law, then adding such a “no probable cause” requirement is a matter better suited for the legislature.  

To borrow from Fourth Amendment wrongful arrest claims to add requirements to first Amendment retaliation claims wanders too far.  Even if “arrest” is a common factor in both instances, Fourth and First Amendment protections are materially distinct.

Where the absence of probable cause is not an absolute requirement for a retaliation claim nor its presence a guarantor of defeat, probable cause is not irrelevant and may be important to establishing causation.  Determinations such as the Court has made in this case should await a more elaborately developed record and presentation.

Justice Ginsburg has dissented in part, noting that the absence of arrest authority can interfere with expression of speech and press rights. The breath of the majority ruling requesting establishment of lack of probable cause makes only baseless arrests actionable, thereby creating opportunities to abuse the exercise of protected rights.  

Justice Ginsburg would require that civil plaintiffs demonstrate unconstitutional animus as a motivating factor in arrest actions. Defendants may show that any resulting adverse action would have been taken without retaliation. The case before the court is not the proper cause to use to enlarge the potential for individuals and the press to be subjected to polices suppression.

Justice Sotomayor has observed that the Court has correctly determined that probable cause alone will not always defeat a First Amendment claim, but criticizes the needless annunciation of a rule which would allow probable cause to defeat retaliation claims unless others were not treated similarly. There is no need to separate First Amendment retaliatory arrest claims from other First Amendment Retaliation claims. There is no basis for the Court’s “mix and match” approach to constitutional law. The majority has determined, without substantial reason, that the law will benefit more from using comparators as evidence of motivations than it will from other forms of proof.  

Justice Sotomayor expressed fear that those who are more easily the objects of police scrutiny — citizen journalists, perhaps — will suffer arrest in the exercise of protected rights. Moreover, obscuring or defining away the role of statements and motivations further opens the door to abuse.

17-1174 Nieves v. Bartlett (05_28_2019)

The (Jurisdictional) Fat Lady Had Already Sung; Supreme Court Holds Dismissal of Social Security Claim as Untimely at Appellate Council Level was Final for Purposes of Seeking Federal Judicial Review

Smith v. Berryhill, Acting Commissioner of Social Security, No. 17-1606. May 28, 2019.

Smith spent considerable time and effort making his way through three layers of review of his disability claim, including participating in administrative law judge proceedings. However, at the fourth level of appellate review his claim was dismissed as untimely. There was dispute concerning the Social Security Administration’s receipt of the request for appellate review.. Yet when Smith sought review in federal court, his claim was again dismissed because the federal court agreed with the agency’s view that the dismissal for untimeliness was not final for purposes of seeking federal court review.  The Court of Appeals for the Sixth Circuit agreed. After much effort, Smith would be without remedy.

Although Justice Sotomayor characterized this case as somewhat routine, in many respects it is anything but. The Supreme Court in this case has warned that federal agencies such as the Social Security Administration are not sole arbiters of their own authority.  An Agency cannot require multiple layers of review, including a hearing, and then call dismissal at the fourth level non-final, thereby precluding federal review. Add to this that the government confessed error in its earlier interpretations of the law, requiring appointment of special counsel to represent the government.  

While observing that the Administrative Procedures Act and agency exhaustion of remedies requirements are not identical, the Court underscored that an agency may not serve as an unreviewable arbiter of compliance with its own administrative steps.  This is particularly so where, as in this case, exhaustion is not a jurisdictional prerequisite.

While no doubt the government will make mistakes, the Court was not persuaded by any “floodgates” argument arising because of such errors.  The Court stressed that just because federal jurisdiction property could include a merits determination rather than remand, courts would do well to tread lightly in that regard, as the entire structure of administrative review is intended to permit all concerned to benefit from agency expertise.  

It would be unwise to speculate as to how far interpretations of this case might stretch. It is fair to say, however, that the case will stand for the proposition that a federal agency administering its own programs cannot create a citadel of its of procedures, leaving claimants without remedies while insulating the agency from review.

Smith v. Berryhill 17-1606_868c

Now, Junior, Behave Yourself! White House Restores Reporter’s Press Pass While Insisting All Conform to Newly Promulgated Rules of Decorum

Cable News Network and Abilio James Acosta v. Donald J. Trump, President of the United States, et al., No. 18-02610 (D. D.C.)

Today the White House advised Cable News Network and its reporter, Abilio James Acosta, that Acosta’s hard press pass is restored.  Granting restoration obviates the need for the injunction granted to plaintiffs and for further litigation  plaintiffs have submitted a notice of voluntary dismissal without prejudice to the court.

The case commenced following a press conference contretemps between the President and Acosta.  Acosta persisted in asking questions while the President indicated that questioning was unwelcome.  Following the press conference, Acosta’s credentials allowing access to the White House (the “hard pass”) were suspended.

CNN and Acosta sought and obtained a temporary restraining order restoring his hard pass based on violation of the Fifth Amendment due process clause, which protects the reporter’s liberty interest in his First Amendment activity as a reporter.  The court found that the White House had failed to provide Acosta with notice and an opportunity to address the issues requiring suspension, and that the White House’s after the fact rationales for suspension failed to satisfy those constitutional due process requirements.

The court did not address any of the First Amendment issues CNN and Acosta raised.

Concomitantly with granting Acosta and CNN the relief they sought, the White House has promulgated rules of behavior for members of the press, noting with regret that historically there has been no need for such measures.

No official copy of the rules has been located.   The rules are reported to limit reporters to one question and require reporters to ‘yield the floor’ to other reporters once that one question has been asked or once any follow-up questions, permitted at the executive’s discretion, are asked.  Failure to adhere to the rules may result in suspension or revocation of press credentials.

Plaintiffs claim victory here, yet one wonders whether it will prove to be of the Phyrric sort.  The publication of rules of behavior for the press corps deprofessionalizes the entire group.  While encounters between the administration and the press do not always go smoothly, the healthy tension between the interests of the two institutions, and the often lively exchanges this tension invites, should not be squelched, lest the free flow of information be stifled, to the detriment of all.

The notice of dismissal and a copy of the transcript of the order granting the temporary restraining order follow.

CNN v. Trump Voluntary Dismissal

2018 11 16 CNN v. Trump Transcript Order Granting T.R.O.


Sixth Circuit Concludes Cross Examination Must Be Available Where Narratives Conflict in Student Sexual Misconduct Cases. Court Observes that Evidence of Financial Pressures to Avoid Adverse Title IX Findings May Be Presented in Claim of Gender Bias.

Doe v. University of Michigan, University of Michigan Board of Regents, et al., No. 17-2213 (6th Cir.) September 7, 2018.

How the Case Came to Federal Court.  John Doe and Jane Roe, both undergraduates at the University of Michigan, met at a party, had drinks, and had some sort of sexual encounter, subsequent to which Roe complained to the university.  The university conducted a multi-witness investigation which yielded conflicting accounts of the Doe and Roe encounter. The investigator recommended no action. On appeal, the University Appeals Board set the recommendation aside and proceeded to the sanction phase of proceedings.  

Doe withdrew rather than face expulsion, then initiated suit in federal district court alleging denial of due process because he was not permitted a hearing with an opportunity to cross-examine Roe and other witnesses, and alleging discrimination against him on the basis of gender in violation of Title IX.

On Appeal, Doe Succeeds in Obtaining Reversal of Trial Court’s Dismissal.

The Sixth Circuit reversed the federal court’s dismissal of Doe’s complaint.  The panel stressed that due process requires the opportunity for cross examination in student misconduct matters. A credibility determination made on the basis of a paper record containing conflicting narratives falls short of constitutionally required minimums.  

Doe’s Consequences Severe While University’s Costs Minimal. The grave and life altering consequences of being labelled a sex offender serve only to underscore the need to afford an accused an opportunity to confront witnesses.  The cost of offering such an opportunity is negligible to the university but its absence may be devastating to the student under review. The university’s position that an opportunity to refute a paper record is a fair substitute for live cross examination defies circuit precedent establishing that cross-examination is without parallel in unearthing inconsistencies and in exploring credibility and demeanor.

There is Nothing Like the Real Thing. Witness statements cannot be substituted for live cross examination before the fact finder.  The panel noted, however, that if needed, the university may modify processes so as to minimize trauma to the complaining witness.  

It is not necessary, the panel observed, that only the accusing witness’s statement be in issue for the opportunity to cross examine be offered.

Doe’s equivocation in his police statement is not of such force as to conclude that he admitted wrongdoing which would preclude the need for cross examination.  Nor is it availing that cross examination occurred in a civil deposition conducted after the university had reached a conclusion adverse to Doe.

Money, Money, Money, Money. A university violates Title IX when it errs against a student based on sex.  In Doe’s case, the Sixth Circuit has announced that financial pressure on a university to conform to Title IX or risk forfeiture of millions of dollars in aid may be a factor in determining whether a decision was affected by bias.  As the record suggests that that the university credited female witnesses’ testimonies even where initial interviews favored Doe, when combined with financial pressures on the university arising from Title IX, Doe’s claim is sufficient to survive dismissal.  Even if other explanations might exist, as the court’s dissenting justice suggests, dismissal is not warranted.

While the court recognized the financial pressures as a component of bias, it has declined to expand the “archaic notions” theory of bias beyond the athletic realm and similarly has declined to extend a “deliberate indifference” theory behind sexual harassment claims.

Doe v. University of Michigan 6th Cir. September 7 2018