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The Best Disinfectant:  Magistrate Judge Orders Disclosure of Redacted Affidavit Supporting Warrant to Search Former President’s Residence by Noon Tomorrow, August 26th

In re: Sealed Warrant, No. 22-mj-8332 (BER).  

A federal magistrate judge in Florida has directed the Department of Justice to docket with the court a public copy of the affidavit, with redactions, supporting the magistrate judge’s issuance of a warrant authorizing the August 8, 2022 search of former President Donald Trump’s residence. 

Having reviewed proposed redactions as the court had requested of the government last week, the magistrate judge found that the government met its burden of demonstrating a substantial government interest in redacting portions of the affidavit, and that those proposed redactions are narrowly tailored to support the government’s interests. 

At this time, it is not known how extensive the redactions will be.

Prior to the court’s issuance of its order, media intervenors, joined by a group advocating public accountability, submitted a motion asking that portions of the government’s brief in support of its redactions be unsealed.  It does not appear that this request has been ruled upon.

There now appear three entries on the case docket that indicate that certain items will be sealed until further notice.  No description accompanies these entries. 

In addition, a declaration of an individual who recounts encounters with the former President’s associates, and who plans to publish a book concerning his experiences, has been docketed.  

JustLawful is unable to discern the significance of the notices that docketed entries are now sealed, nor is JustLawful certain of the significance of the sworn declaration. It is hoped that compliance with the Order to Unseal will illuminate the significance of both the docket notices and the declaration.

Today’s Relevant Documents:

2022 08 25 Order to Unseal

2022 08 25 Media Intervenors Motion to Unseal

2022 08 25 Florida Center for Government Accountability Joinder in Motion to Unseal

2022 08 25 Declaration

2022 08 25 Docket 22cv8332

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D.C. Circuit Orders Stay of Constitutionally Defective Eviction Moratorium is to Remain in Place

Alabama Association of Realtors, et al. v. U.S. Department of Health and Human Services, et al., No. 21-5093 (D.C. Cir.) Order denying emergency motion for stay filed August 20, 2021.

The United States District Court for the District of Columbia Circuit today denied an emergency motion to vacate the stay of the U.S. District Court’s order vacating the CDC Eviction Moratorium.  The court noted that it had previously denied such relief and that the federal district court had denied relief as well.

Whether review in the U.S. Supreme Court will be sought is not known at this writing.

Alabama Association of Realtors, et al. v. HHS 21-5093 Order August 20, 2021

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Crisis Upon Crisis: Landlords Ask Supreme Court Justice to Vacate Stay of Order Staying CDC Order Staying Evictions

Alabama Association of Realtors, et al.  v. U.S. Department of Health and Human Services, No. 20A169.  Emergency application to Chief Justice of the United States Supreme Court and Circuit Justice for the D.C. Circuit John G. Roberts, Jr.  submitted June 2, 2021; Response submitted June 10, 2021. 

The Centers for Disease Control (CDC), following lapse of a federal legislative order, issued and later extended an order suspending landlords’ powers to evict non-paying tenants during the COVID-19 pandemic.  It was thought that a potential for massive evictions existed which would precipitate, among other things, homelessness or forced overcrowding of housing, which would increase the likelihood of viral contagion and disease. 

The CDC order will lapse on June 30th unless it is extended.

Tenants Stay While Landlords Pay. The eviction moratorium, as it is called, has relieved qualifying tenants of the obligation to pay rent.  Landlords have not been relieved of the obligation to pay bills.  

Various calculations present various estimates of the value of lost rental income during this time.  There is no doubt that it is, simply stated, a lot, but how much, in millions or billions, is disputed, as is the ability of a Congressional appropriation of funds payable to the states and, in turn, through the states and to the landlords, to mitigate their losses.  Landlords argue that if federal funds become available, the money will be insufficient to cover all losses and will be so delayed as to diminish the value of payment.

Not Merely a Civil Matter.  Lost rents are not landlords’ only worry.  Violations of the eviction moratorium carry criminal penalties and substantial fines. 

Defeat Snatched from the Jaws of Victory. In an effort to stem the accrual of further losses, plaintiffs real estate owners, managers, and trade associations sought and received a favorable judgment in federal district court in the District of Columbia.  With the judgment came an order enjoining the operation of the CDC order nationwide.  Notwithstanding its judgment and order, relief was immediately stayed by the issuing court because the court perceived that the government presented significant legal questions for review.  The United States Court of Appeals for the District of Columbia refused to vacate the order.  Petition to the Circuit Judge of the United States Supreme Court ensued.

Power and Its Exercise. Plaintiffs submit that the trial court was correct in perceiving that the CDC’s eviction moratorium order was not within its statutory power and that staying that determination has only increased irreparable harms to landlords nationally.  Plaintiffs submit that the statute authorizing the CDC to issue orders to stop the spread of disease is limited to quarantine and inspection measures.  The CDC’s disruption of landlord-tenant relations, powers reserved to the states, presents constitutional questions that the U.S. Supreme Court must review, and that pending that review, the stay must be vacated to prevent greater harm to the landlords.

Plaintiffs need relief notwithstanding that the current order will expire on June 30th, they argue, for the failure to vacate the stay will render plaintiffs’ victory meaningless.  

The Department of Health and Human Services, on behalf of its component the Centers for Disease Control, insist that the CDC has plenary powers to issue orders to inhibit disease providing the CDC articulates its perception of a need to do so.  Such powers are not unlimited, as plaintiffs argue, nor are there questions of unconstitutional delegation, for no power committed to the Legislative Branch has been delegated, and Congress may delegate to HHS the power to act in the interest of the public.

Equity (in the Traditional Sense). The arguments for emergency action by the Circuit Justice by and large concern whether or not appropriate standards for issuance of the stay in the trial court, or denial of vacation of that stay, in the appellate court, were selected and applied.  These are equitable considerations which involve not only judicial discretion and deference on review,  but also a showing of demonstrable error. 

The federal government is supported by twenty-three state amici.  Their brief indicates that states will administer federal monies to landlords to compensate for lost rent, but doing so will require time.  

JustLawful’s Crystal Ball:  The proximity in time of the emergency petition to the expiration of the CDC eviction moratorium creates high drama.  However, Circuit Justice Roberts may not wish to decide more law than is necessary, particularly as judicial deference to agency determinations would counsel against an eleventh hour intervention, especially where doing so might, either directly or paradoxically, further destabilize already deeply distressed rental housing conditions.  

Alabama Association of Realtors, et al. v. HHS 20A169 SCOTUS Application to Vacate Stay

Alabama Association of Realtors, et al. v. HHS 20A169 Appendix – Lower Court Orders and Opinion

Alabama Association of Realtors, et al. v. HHS 20A169 Appendix – Provisions of Law

Association of Alabama Realtors, et al. v. HHS 20A169 Opposition

Alabama Association of Realtors, et al. v. HHS 20A169 Amicus Brief

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A Few Tweets Does Not Jurisdiction Confer: Court Concludes Tweets Posted Outside Kentucky Concerning Kentucky Residents Insufficient Premise for Exercise of Personal Jurisdiction

Blessing, et al. v. Chandrasekhar, No. 20-5850 (6th Cir. 2021).

Defendants’ Tweets about about plaintiff’s activities in Washington, DC at a pro-life rally in January, 2019, reached the plaintiffs in their state of residence, Kentucky.  The Sixth Circuit Court of Appeals has concluded that this “receipt” of the Tweets,  without more, provides an insufficient premise for the assertion of personal jurisdiction over defendants.  Something more than an online post must be involved for a court to conclude that defendants had contacts with a forum state sufficient to support personal jurisdiction.  

Blessing v Chandrasekhar, No. 20-5850 (6th Cir 2021).

JustLawful Observation: One would think that after a quarter century of ubiquitous internet activity that judicial guidance concerning jurisdiction would by now be defined adequately, if not comprehensively.  This is not the case, and particularly so when considering the incorporeal world of online activity.  Although the U.S. Supreme Court has decided that jurisdiction may be asserted for sales tax purposes where purchases are made (to the distress of many), questions concerning assertion of jurisdiction over non-U.S. entities or intellectual property remain.  

Daniel Canedo, Plus or Minus America: Spanski, Geoblocking Technology, and Personal Jurisdiction Analysis for Nonresident Defendants, 31 Fordham Intell. Prop. Media & Ent. L.J. 339 (2021). Available at: https://ir.lawnet.fordham.edu/iplj/vol31/iss2/1

Jesse Lake, Hey, You Stole My Avatar!: Virtual Reality and Its Risks to Identity Protection, 69 Emory L. J. 833 (2020). Available at: https://scholarlycommons.law.emory.edu/elj/vol69/iss4/5

Hayes R. Holderness, Navigating 21st Century Tax Jurisdiction, 79 Md. L. Rev. 1 (2019) Available at: https://digitalcommons.law.umaryland.edu/mlr/vol79/iss1/2

Niesel, Zoe (2019) “#PersonalJurisdiction: A New Age of Internet Contacts,” Indiana Law Journal: Vol. 94 : Iss. 1 , Article 3. Available at: https://www.repository.law.indiana.edu/ilj/vol94/iss1/3

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Citizen Lockdowns, Mandated Business Closings and Assembly Restrictions All Unconstitutional, Federal Court in Pennsylvania Holds

County of Butler, et al. v. Wolf, et al., No. 2:20-cv-677 (W.D. Pa.) Opinion entered September 14, 2020.

In the pipeline:  state officials will appeal the court’s decision and seek to freeze proceedings until appellate review has concluded. Motions for entry of judgment or certification of issues for appeal are pending, as is a motion for entry of stay pending appeal.  The brief of plaintiffs on the motion for stay pending appeal is due on September 21.  

Good intentions are not good enough to protect constitutional interests, the United States District Court for the Western District of Pennsylvania observes, and this may be especially so when emergency conditions invite extraordinary government action:

In an emergency, even a vigilant public may let down its guard over its constitutional liberties only to find that liberties, once relinquished, are hard to recoup and that restrictions  — while expedient in the face of an emergency situation — may persist long after immediate danger has passed.

Slip op. 2.

The federal court reviewed emergency orders issued by the Pennsylvania governor and the secretary for health related to the COVID-19 virus using ordinary principles of review and found that the state’s limitations on assembly violate the First Amendment; that the stay-at-home and business closure orders violate the due process clause of the Fourteenth Amendment, and the the business closure components of the orders violate the Equal Protection clause of the Fourteenth Amendment.  

The governor signed a disaster emergency declaration on March 6, 2020, which activated emergency powers concerning commerce and health.

Groups of non-medical policy employees assembled by the governor divided businesses into “life sustaining” and “non life-threatening” businesses and drafted responses to questions from the public.

Schools were closed and stay-at-home orders issued.  Plans for reopening were developed along with capacity restrictions.  

Extensions and modifications of orders followed.

Counties, political persons, and businesses sued the state in May, 2020, challenging the orders on Takings Clause, Substantive Due Process, Equal Protection and First Amendment grounds.  

Following briefing, argument, and post-hearing briefing, on motions for declaratory judgment the court has concluded that: the assembly limitations violate the First Amendment; the stay-at-home and business closure orders violate the Due Process clause of the Fourteenth Amendment, and that the business closure orders violate the Equal Protection clause of the Fourteenth Amendment. 

First, the court concluded that plaintiff counties lack Article III standing to sue under 42 U.S.C. Section 1983 because this statute creates remedies, not rights, and as creations of the state, counties do not have constitutional rights.

Second, the court concluded that it need not apply relaxed or deferential standards of review to emergency measures.  Although states possess broad police powers, these powers cannot operate outside constitutional principles, the court reasoned, a position with which at least one Supreme Court justice agrees as do legal scholars.

The court found the abandonment of constitutional standards in emergency conditions particularly problematic where the emergency is ongoing and where mitigation restrictions are considered normative, and some want restrictions to remain in force indefinitely. 

The court recognizes that the exigencies of an emergency may require deference but not where the emergency has no stopping point:  

Faced with ongoing restrictions of indeterminate length, “suspension” of normal constitutional levels of scrutiny may ultimately lead to the suspension of constitutional liberties themselves. 

Slip Op. 19.

The judiciary, as an independent branch of government, must guarantee liberties even in an emergency.

Third, the court found that the open ended restraints on gatherings violate the First Amendment.  The restrictions apply to churches and some businesses, depending on the operation of capacity metrics.  There is no exception for protests but they have been permitted without compliance with restrictions.  

The court observed that the restrictions on assembly were content neutral, warranting intermediate scrutiny in which a regulation must be narrowly tailored to a significant government interest and leave ample alternative channels of communications.  

The open-ended and sweeping nature of the restrictions fail to survive this analysis, the court held.  In addition, they are categorically illogical, imposing fewer restraints in commerce than in other expressive settings, and no evidence supports the idea that the metrics chosen support the goal of diminishing disease.

Fourth, substantive due process rights were violated when the population was locked down and businesses deemed “non-life sustaining” were forced to close.  The court stressed that the issues are not moot because some restrictions have been relaxed, as the state’s orders remain vital and may spring back to life as the state wishes.  

The limitations imposed in quarantines require exposure to disease for a limited period of time.  That the wholesale societal lockdowns imposed by the state have no precedent will not make them unconstitutional, but because the orders impeded not only travel but associational rights, they are subject to, but cannot survive, strict scrutiny or even intermediate analysis.  

The lockdown orders impose far greater restrictions than necessary.  No one could go out except as approved by the state, an “inversion” of the American experience.  Where lockdown is the baseline for an indefinite period of time, no claim to narrow tailoring can be supported.

Fifth, where no rationale was even proffered for distinctions between life-sustaining and other businesses, the indefinite closure violates the Fourteenth Amendment due process clause.  These measures, which may spring to life from suspension at the government’s command, violate substantive due process as they arbitrarily interfere with the right to self support which is central to the personal freedom which was the purpose of the Fourteenth Amendment.  

The court wholly rejected the state’s “only temporary” argument, which was advanced to insist that there was no real damage caused by the shutdowns.  Even where suspensions were limited.  The measures cannot survive rational basis analysis.  The arbitrary creation, sweep, and administration of the order closing all “non-life sustaining” businesses is unconstitutional, having no fixed definitions and no temporal limitations.

Sixth, the business closure provisions of the orders violate the Fourteenth Amendment’s equal protection clause.  Determinations based on county boundaries or undefined notions of “life sustaining” enterprises are not rationally related to any legitimate government end.  Where it is undisputed that some businesses were treated differently from others, and even where distinctions based on county boundaries are constitutional, the “arbitrary, ad hoc” imposition of the “life sustaining” distinction was not subject to measurement, was inherently arbitrary, and conferred upon government sweeping powers over businesses effectively allowing government to determine which businesses would open and which would close.

Butler, et al. v. Wolf, et al., No. 20-cv-677 (W.D. Pa.)

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Sectarian Versus Secular Civil Rights: Supreme Court Permits Church Employers Latitude in Defining Employee Roles and Rights

Our Lady of Guadalupe School v. Morrissey-Berru, No. 19-267 (July 8, 2020); St. James’ School v. Biel, No. 19-348 (July 8, 2020).

In this challenge to churches’ capacity to determine their own rules of employment, Justice Alito wrote for the Court’s majority; Justices Thomas and Gorsuch wrote separately in concurrence; and Justices Sotomayor and Ginsburg dissented.

Teachers at the religious schools in the cases now before the Court have responsibilities similar to those described in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, 565 U.S. 171 (2012).   These teachers do not, however, have titles associated with professed religious persons or functions.

Mid-twentieth century precedent established that religious institutions have the capacity to decide matters of church governance without state interference.  Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America, 344 U.S. 94, 116 (1952).

Here, one elementary school teacher who taught all subjects, including religion, complained to the Equal Employment Opportunity Commission (“EEOC”) that the school administration’s determination to change her to part-time status was age discrimination.  The other plaintiff claimed discrimination in discharge because of her need for breast cancer treatment.  Both responding employers stated that their decisions were bawsed on employee performance.

The question is how the principles of independence constitutionally assured in church governance apply to church autonomy in employment decisions, in which churches enjoy a “ministerial exception” to otherwise applicable laws for religious positions.  An individual’s role in conveying the church’s mission and the trust conferred on that individual are significant, but the title “minister” in itself will not require exemption nor is it necessary to confer exemption.  Where both teachers in these cases were entrusted with performance of religious duties, the ministerial exception appropriately applies. The determination whether the exception applies cannot be made by rote review of titles and checklists as ultimately a court, unschooled and unskilled in religious matters, must look to what an individual does, not what he or she is called.

The hiring exemption permitting churches to prefer members of their religion in hiring decisions is of a different character than the ministerial exception, and the principle applicable there do not need to be imported to the ministerial exemption.  Judicial inquiry into who is a member of a faith and who is not would impermissibly intrude on a church’s definition of participation.

A rigid formula for characterizing employment as religious is inapt.  “When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teachers threatens the school’s independence in a way that the First Amendment does not allow.”  (Slip Op. at 26-27.)

Justices Thomas and Gorsuch concur.  Justice Thomas asserts that courts must defer to church determinations of what is ministerial, as this is inherently a theological question that cannot be answered by civil law.

Justices Sotomayor and Ginsburg dissent.  The dissenting justices point to the predominantly secular functions performed by the teachers in these cases, their lack of religious training, and the absence of any religious requirement attaching to their positions.  Employers are required to conform to generally applicable laws and Congress has created exemptions where appropriate.  The ministerial exception is judge made law.  Because of its sweep, which would permit religious animus, the exception must be narrow, as it is subject to abuse.  It is to be preferred to make constitutional determinations on a case by case, holistic, basis.  The “functional status” analysis adopted here, focused on what an employee does, rewrites Hosanna-Tabor, making a two justice concurrence in that case into the prevailing opinion.

Where the civil rights of thousands of employees in religious organizations are in issues, analytical vagueness and deference to religious entities determinations invites abuse, permitting religious bodies to determine for themselves what the law is ad absolving the institutions of responsibility for religious animus.  Justice Sotomayor’s application of Hosanna-Tabor would lead to a conclusion contrary to that of the majority.  Biel was a teacher who participated in religious functions with a half day’s training in religious pedagogy. Morrissey-Berru taught various subjects and taught religious matters from a workbook chosen by the church.

Neither plaintiff ought to have bee barred from asserting claims based on a ministerial exception.  Neither was a minister, neither was trained as such, neither had a leadership role in the faith community, and both function predominantly as academic teachers. Depriving them of civil rights based o a small amount of time engaged in religious activity is harsh, especially where no religious reason was proffered for the churches’ acts concerning plaintiffs’ employment.

Our Lady of Guadalupe v. Morrissey-Berru, No. 19-267 July 8, 2020

 

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Federal District Court in New York Enjoins Pandemic Precautions Restraining Religious Gatherings

Soos, et al. v. Cuomo, et al., No. 1:20-cv-651 (N.D.N.Y.) (GLS/DJS).  (Order granting injunctive relief entered June 26, 2020).

Since the inception of public health concerns about potential harms should coronavirus (COVID-19) contamination be left unchecked, New York state and city officials have issued not less than seventeen orders dictating who may congregate where and for what purposes.  Religious services fell among the most rigidly curtailed events.

Notwithstanding harms predicted to ensue from close unprotected contact with others, in June mass protests erupted across the United States.

Thousands gathered in New York without official objection.  The governor counseled citizens to be “smart” by practicing social distancing.  It has been reported that, apparently without further elaboration, the Mayor of New York opined that protesting racism presented a “different  question” than did religious events, certain of which he had previously vociferously condemned.

On motion brought by religious leaders, the United States District Court for the Northern District of New York declined to find the public health orders to be “neutral laws of general applicability” presumed to be constitutionally sound even if such laws incidentally burden religion.

The state and local course of conduct created de facto exemptions specifically inhibiting the free exercise of religion, the court found.  The court could not identify a compelling interest which would justify any distinction that would permit public gatherings for some purposes but not for religious purposes. Where irreparable harm could be presumed to flow from the prevention of religious free exercise rights, the court enjoined enforcement of any indoor restrictions greater than those imposed on non-essential entities and any outdoor restrictions.  In both indoor and outdoor settings, social distancing precautions are to be employed.

Soos v. Cuomo No. 20-cv-00651 (N.D.N.Y.) Order June 26 2020

 

 

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Case Dismissed! Federal Court of Appeals Orders D.C. Federal District Court to Grant United States’ Motion to Dismiss Criminal Case Subsequent to Plea Agreement Admitting False Statements to Federal Bureau of Investigation

In re. Michael T. Flynn, No. 20-5143 (D.C. Cir.) Petition for writ of mandamus granted in part on June 24, 2020.

General Michael T. Flynn was investigated by the Federal Bureau of Investigation in relation to contacts with foreign sources.  General Flynn plead guilty to lying to federal officers, testifying under oath that he was in fact guilty and had not been subjected to duress.  Months later the United States moved to dismiss the case against General Flynn, having concluded that any false statements made were not material to any investigation.

The United States District Court for the District of Columbia did not look kindly on the United States’ motion to dismiss, and in response invited amici submissions and scheduled hearings to determine whether he ought to find General Flynn guilty of perjury notwithstanding the United States no longer wishing to pursue the matter.

General Flynn’s counsel petitioned the D.C. Circuit Court of Appeals for a Writ of Mandamus which was today granted in part.   The appellate court has ordered the trial court to dismiss the case, but the appellate court refused to transfer the case to another judge.  In light of these determinations, disputes about the engagement of an amicus to assist the trial judge were rendered moot.

The D.C. Circuit  opined that dismissals of criminal matters rest soundly with prosecutorial discretion.  Rule 48 of the Federal Rules of Criminal Procedure has a limited “leave of court” requirement that is intended to protect against prosecutorial harassment.   United States . Fokker Services B.V., No. 15-1306 (D. D.C. 2016).

The court observed that this is not an extraordinary case in which judicial involvement in dismissal could be warranted.  General Flynn agrees with the prosecution, there is no evidence of harassment, and recently produced exculpatory evidence supports the Department of Justice’s view that the interviews with General Flynn in issue were not material to any prosecution.

Moreover, the appellate court concluded, harm to the prosecution in refusing to dismiss is not speculative, particularly in that the hearings proposed by the trial court would provide a foray into the deliberative processes of the Executive Branch.  It is right to attend to the interests of the Executive Branch, the court found, as the executive is not just any party, but is the branch responsible for criminal prosecutions.  Equally significant is that a trial court’s assumption of a supervisory role over the executive would not be a theoretical breach of the separation of powers, but would chill effective prosecutions.

Further, the trial court’s designation of an advocate for for the prosecution put the two coequal branches of government on a collision course.

The appellate court refused to rewrite the limited “leave of court” provision of Rule 48, F.R.Crim.P. to permit elaborate mic submissions and extensive hearings, finding that “[t]he district court has no mechanism by which it can maintain a prosecution in the absence of the Executive Branch moving forward.”  (Slip. Op. at 14.)

Dismissal cannot turn on what a judge independently thinks in in the public interest.  A court should not second guess except in an extreme case:  extensive, pershpas inquisitorial, inquiry in a non-extreme case would contravene Supreme Court precedent and would be inconsistent with  Article III powers.

The majority countered the dissent’s position that a writ of mandamus cannot issue until the trial court has acted, finding that an actual ruling on the motion to dismiss was not necessary where the court had already invited amici and scheduled hearings.

Dissenting Justice Wilkins opined that the majority wholly misdefies the issue at hand.  The question is not whether a court may deny a Rule 48 motion to dismiss but whether the court is precluded from making any inquiry at all.  The appell majority ruling that the district court overstepped its authority has been followed by the appellate court’s following suit, for there is no basis for the court to issue a writ of mandamus absent a discrete action by the district court.

The dissent found the majority’s reliance on Fokker disengenuous, for in that case, a deferred prosecution agreement, not dismissal was in issue.  Reliance on Fokker, Justice Wilkins found, “transforms dicta into dogma.”  (Slip Op. Dissent at p. 3, Part B).

The dissent expressed fear that the majority has read the public interest out of Rule 48.  The law is not as settled as the majority would say and it is not possible to say that petitioner has no other relief available, where it is clear that it exists.

The dissent offered that there is no reason, even in the absence of explicit authority, that a trial judge cannot enlist assistance in charting its course on a case.

Prosecutorial discretion cannot be made into an impenetrable shield.  The dissent observed that the appellate ruling decimates the discretion that resies in trial court’s concerning motions to dismiss.

This is particularly worrisome, Justice Wilkins found, where but months ago the statements now deemed ‘immaterial’ were said to have gone to “the heart of the government’s case.”  (Slip. Op. Dissent at p. 17).

2020 06 24 Opinion In re Michael T. Flynn

2020 06 24 Order in re Michael T. Flynn

 

 

 

 

 

 

 

 

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“[T]he mere fact of an emergency does not increase constitutional power, nor diminish constitutional restrictions.”

ACA International v. Maura Healey, Attorney General of the Commonwealth of Massachusetts, No. 20-10767-RGS (U.S.D.C. Mass.) May 6, 2020.

Among other state measures taken during the COVID-19 emergency, the Attorney General of Massachusetts promulgated measures prohibiting credit and collections agencies from initiating telephone calls or lawsuits to collect debts. Many creditors were exempted from these regulations that operate against entities deemed essential by bank regulators.

The Association of Credit and Collections Professionals (ACA) sought injunctive relief in federal court challenging the regulations on first amendment speech and petition grounds and state law.

The court examined the traditional grounds for injunctive relief in matters concerning protected First Amendment interests, concerning which any infringement presumes irreparable harm: the likelihood that the moving party will succeed on the merits, the balance of equities and the public interest. The court declined to decide claims premised on asserted violations of state law, mindful that precedent limits federal courts’ powers over state officials to matters of federal law.

The intermediate scrutiny applicable to commercial speech gained no favor for the state, as the court could not credit the Attorney General’s unsupported beliefs that citizens would be more vulnerable than otherwise during an emergency or that banning telephone calls would ensure citizens well being or ensure domestic tranquility.

As extant state law regulations already circumscribe creditor activities, and incorporate federal protections, the court could not find a substantial government interest in redundant measures.

Neither could the court justify an outright ban on initiating litigation because some legislative litigation burdens some access to courts. Simply preserving rights until the unknown end of the emergency, particularly when several types of creditors are exempted from the regulations, is not sufficient to justify outright denial of petitionary rights, stating: “[t]he mere fact of an emergency does not increase constitutional power, nor diminish constitutional restrictions.” (Slip op. 25-26).

In balancing the equities, the court observed that debtors have substantial extant protections against unlawful creditor activity, while the emergency regulations could force some creditors out of business, a hardship underscored by medical entities’ dependence on such agencies to recover funds.

The court entered a temporary restraining order enjoining enforcement of the emergency regulations.

ACA International v. Healey, Attorney General. TRO Order May 6, 2020

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Some Kind of Hearing: Perceiving Procedural Deficiencies, Federal Court Orders University of Connecticut to Enroll Suspended Student

Doe v. University of Connecticut, No. 3:20-cv-092. Temporary restraining order granted January 23, 2020. Hearing on preliminary injunction continued to February 19th.

That procedural due process must be accorded when the state acts to limit constitutionally protected interests seems to be second nature in our conceptions of fundamental fairness, yet it was only a half century ago, a millisecond in the slow emergence and refinement of legal principles, that the centrality of such promises was articulated in Matthews v. Eldridge, 424 U.S. 319 (1975).   And since Matthews was decided, there has been ongoing development of principles that will breathe life into its meaning.  If it is not enough that due process requires notice and an opportunity to be heard, but to be heard in a meaningful time and in a meaningful manner, the contours of the process that must be provided continue to evolve.

Recently a federal district court in Connecticut ordered the state university to reinstate a student suspended based on allegations of sexual assault where the court observed that the university’s process failed to permit the student to present witness testimony tending to negate the accuser’s credibility and failed to permit the submission of questions to the accuser.   These deprivations in themselves so distorted the proceedings that relief from the university’s decision was in order.

Doe had been months from graduation when he was accused of sexual assault. Initially the university expelled him, then revised its determination to a two year suspension, subsequent to which the school agreed to consider, but not guarantee, an application for readmission without consideration of credit earned elsewhere.

The court did not decide whether students facing discipline have confrontational rights that include cross examination, an issue of controversy within the federal courts, but focused instead on the school’s failure to permit the submission of some questions to the accuser and the presentation of witness statements helpful to Doe.

The court observed that the potentially catastrophic losses which would follow delay or preclusion of Doe’s education, as well as losses of economic and reputational interests, outweighed the university’s interest in student discipline on these facts. In light of the irreparable nature of the potential losses to Doe, the extraordinary measure of temporary mandatory injunctive relief was substantiated.  

While the interests of Doe’s accuser were not insignificant, the court noted, they would not preclude ordering temporary relief, particularly where Doe and the accuser had encountered each other subsequent to the alleged assault without incident.

A full hearing on injunctive relief having been scheduled, the parties have represented to the court that settlement discussions have been undertaken in earnest. 

This case is one among several that have within recent months caused federal courts to question the sufficiency of educational institutions’ responses to allegations of sexual assault.  Financial pressure has been applied to compel schools’ compliance with federal laws demanding sexual parity.  While such measures require close institutional attention to allegations of sexual assault, lest federal financial support be lost, some courts appear to be unwilling to permit an accused’s constitutional interests to be sacrificed in service of financial concerns.  

2020 01 23 Doe v. University of Connecticut, No. 3:20-cv-92 (MPS)