On Constitutional Law Prof Blog, Ruthann Robson reports that “[i]n his opinion in Caliste v. Cantrell, United States District Judge for the Eastern District of Louisiana Eldon Fallon declared the bail practices of Judge Cantrell, an Orleans Parish Criminal District Magistrate Judge, unconstitutional as violative of due process under the Fourteenth Amendment.” — Joe
Category Archives: Litigation in the News
Four cities and two individuals filed suit yesterday against the Trump Administration, arguing that the Administration’s efforts to sabotage the Affordable Care Act violate the Administrative Procedure Act and the President’s duty to “take care that the laws be faithfully executed.” Here’s the text of the complaint for declaratory and injunctive relief.
H/T Constitutional Law Prof Blog. — Joe
ASTM v. Public.Resource.org: Access to law cannot be conditioned on the consent of a private party [text]
As you may recall, PublicResource.org has been making available technical standards incorporated by reference in federal law contrary to the wishes of standards organizations that promulgate the standards. Yesterday, the DC circuit appeals court ruled that standards industry groups cannot control publication of binding laws and standards.
The federal district court for the District of Columbia ruled in favor of the standards organizations in 2017, and ordered PublicResorce.org not to post the standards. A three-judge panel of the Court of Appeals for the D.C. Circuit reversed that decision, ruling that the district court did not properly consider copyright’s fair use doctrine. It rejected the injunction and sent the case back to district court for further consideration of the fair use factors at play. “[I]n many cases,” wrote the court, “it may be fair use for [PublicResource.org] to reproduce part or all of a technical standard in order to inform the public about the law.”
As Judge Katsas wrote in his concurrence, the demands of the industry groups for exclusive control of the law “Cannot be right: access to the law cannot be conditioned on the consent of a private party.”
Here’s the text of the DC Circuit opinion in ASTM v. PublicResource.org. — Joe
Lawfare’s roundup contains (and will be updated with) all relevant documents in ongoing litigation related to the administration’s policy on immigration detention, including the government’s request to modify the Flores settlement, along with key legal documents from past litigation. — Joe
The emergency motion, filed with U.S. District Court Judge Dolly Gee in Los Angeles, seeks to change provisions in the Flores settlement agreement that typically bar detention of minors for more than 20 days, as well as a requirement that children be held in facilities licensed as state-approved daycare centers. Here’s the text of the DOJ’s motion. — Joe
Trump’s executive order ending the separation of refugee families detained in the US may run afoul of the Flores settlement because Flores requires the federal government to do two things: to place children with a close relative or family friend “without unnecessary delay,” rather than keeping them in custody; and to keep immigrant children who are in custody in the “least restrictive conditions” possible. Here’s the text of Flores v. Meese – Stipulated Settlement Agreement Plus Extension of Settlement.
Here’s links to two recent CRS reports:
Unaccompanied Alien Children: An Overview (R43599, Jan. 18, 2017)
Unaccompanied Alien Children—Legal Issues: Answers to Frequently Asked Questions (R43623, Jan. 27, 2016)
New York attorney general sues to dissolve Trump Foundation and bar Trump from serving on other New York charity boards [text]
The New York Attorney General filed a lawsuit against President Trump, the Donald J. Trump Foundation and members of the Trump family. The petition filed today alleges a pattern of persistent illegal conduct, occurring over more than a decade, that includes extensive unlawful political coordination with the Trump presidential campaign, repeated and willful self-dealing transactions to benefit Mr. Trump’s personal and business interests, and violations of basic legal obligations for non-profit foundations alleging that the charity has violated federal and state law. The lawsuit, filed in the New York State Supreme Court, calls for the foundation to be dissolved, seeks restitution of $2.8 million plus penalties, and banning Trump from serving on the board of any other New York charity. Here’s the press release and the petition. — Joe
From the introduction to Sidewalks, Streets, and Tweets: Is Twitter a Public Forum? (LSB10141, May 30, 2018):
On May 23, 2018, a federal district court in New York in Knight First Amendment Institute v. Trump held that the Free Speech Clause of the First Amendment prohibited President Trump from blocking Twitter users solely based on those users’ expression of their political views. In so doing, the court weighed in on the now-familiar but rapidly evolving debate over when an online forum qualifies as a “public forum” entitled to special consideration under the First Amendment. Significantly, the district court concluded that “the interactive space for replies and retweets created by each tweet sent by the @realDonaldTrump account” should be considered a “designated public forum” where the protections of the First Amendment apply. This ruling is limited to the @realDonaldTrump Twitter account but implicates a number of larger legal issues, including when a social media account is operated by the government rather than by a private citizen, and when the government has opened up that social media account as a forum for private speech. The ability of public officials to restrict private speech on Twitter may be of particular interest to Congress, given that almost all Members now have a Twitter account.
Take Care presents its coverage of all emoluments issues & cases in a single post. They organized their analysis into the following categories:
- History & Theory of Emoluments
- CREW Lawsuit
- Maryland & DC Lawsuit
- Members of Congress Lawsuit
- Examples of Corruption & Emoluments
- Citizen Activism & Emoluments
Recommended. — Joe
The Special Counsel Office has file a superseding indictment against Paul Manafort and Konstantin Kilimnik, a close Manafort associate who prosecutors say has close ties to Russian intelligence. Here’s the text. — Joe
Stephanie Clifford (a/k/a Stormy Daniels) has filed a breach of fiduciary duty action against her former attorney, Keith Davidson. Michael Cohen and Does 1-10 are also defendants. The complaint is available here. — Joe
On Lawfare, Paul Rosenzweig took a deep dive into the special counsel’s tampering allegations finding “I think that the special counsel’s allegations of witness tampering are rather … thin. The FBI agent’s declaration in support of the allegations is long on detail about what Manafort and the “Hapsburg Group” did before the elections and short on information about the tampering allegation itself. … Mueller is asking the judge to jail Manafort on the basis of one call and two texts and imputing the more incriminating statements of Person A to Manafort without telling us why we should. Perhaps the case will get stronger at the hearing. But on the limited record before us, it is plausible to be sure (and maybe even true) but it still isn’t a slam dunk.”
A federal court judge set June 8th as the deadline for Manafort’s attorneys to respond to tampering accusation and set a hearing on the matter for June 15th. For details, read The Manaford Tampering Allegations, Lawfare, June 6, 2018. — Joe
Special counsel Robert Mueller’s office filed papers late Monday accusing Paul Manafort of attempting to tamper with potential witnesses, asking the court to consider changing his release conditions and whether he should be held in jail. Here’s the text of the government’s motion. — Joe
In a lawsuit filed on May 30, 2018 at the U.S. District Court for the District of Columbia, the American Federation of Government Employees said the White House’s Executive Order Ensuring Transparency, Accountability and Efficiency in Taxpayer Funded Union Time Use violates the First Amendment-guaranteed freedom of association and effectively rewrites portions of the 1978 Civil Service Reform Act without the assent of Congress. Here’s the text of the complaint. See also Government Executive’s The Fine Print of Trump’s Collective Bargaining Executive Order. — Joe
The New York Times reports that Harvey Weinstein turned himself in to New York City detectives and was arrested today on charges that he raped one woman and forced another to perform oral sex. Here is a Frontline documentary that examines the elaborate ways he and those around him tried to silence his accusers. — Joe
The complaint reportedly alleges abuses of power, denial of due process and unequal treatment and parallels claims in lawsuits by Florida Coastal School of Law and Charlotte School of Law. From the school’s press release:
Summit’s complaint claims the ABA denied the school due process as Summit sought, in good faith, to demonstrate its compliance with accreditation standards. It also alleges selective and disparate application of these standards in conjunction with disregard of material evidence. The complaint alleges further that the ABA targeted Summit under pressure from Department of Education (DOE) officials, who have since left the agency, to act against proprietary schools or risk losing its accreditation authority. These due process claims arise under the Fifth Amendment of the United States Constitution and are directly connected to the ABA’s decision to place the school on probation.
H/T to The Faculty Lounge post. — Joe
Two snips from David Frakt’s Admissions, Accreditation and the ABA: An Analysis of Recent Law School Lawsuits, The Faculty Lounge, May 23, 2018:
Recently, the ABA has been sued by Western Michigan University Thomas Cooley School of Law, and two InfiLaw schools: Florida Coastal School of Law and the defunct Charlotte School of Law. In addition, the ABA was named as a co-defendant along with InfiLaw and Charlotte School of Law in an amended complaint filed in a fraud lawsuit by a former Charlotte law professor and a Charlotte law student. These lawsuits allege that the ABA has failed in its duties as a law school accrediting agency in a variety of ways.
With any luck, these lawsuits will bring about changes to the ABA’s accreditation practices so that the accreditation process is more transparent, consistent and fair for all law schools. In the meantime, it will be interesting to see if the ABA continues to assertively enforce Standard 501(b) by taking action against other schools … or whether instead, the lawsuits cause the ABA to back off.
Recommended. — Joe
From the US District Court for the Southern District of New York’s holding in Knight First Amendment Institute v. Trump, 17-Civ-5205, May 23, 2018:
Turning to the merits of plaintiffs’ First Amendment claim, we hold that the speech in which they seek to engage is protected by the First Amendment and that the President and Scavino exert governmental control over certain aspects of the @realDonaldTrump account, including the interactive space of the tweets sent from the account. That interactive space is susceptible to analysis under the Supreme Court’s forum doctrines, and is properly characterized as a designated public forum. The viewpoint-based exclusion of the individual plaintiffs from that designated public forum is proscribed by the First Amendment and cannot be justified by the President’s personal First Amendment interests.
Civil rights advocates filed a lawsuit against the Trump administration Tuesday over Housing and Urban Development Secretary Ben Carson’s suspension of the Affirmatively Furthering Fair Housing rule that required local governments to submit plans for desegregation in their communities before receiving federal housing funds. Text of complaint. — Joe
The State of Texas, along with the States of Alabama, Arkansas, Louisiana, Nebraska, South Carolina, and West Virginia, sued the federal government May 2, 2018 to stop the DACA program. Filed in the US District Court for the Southern District of Texas, here is Plaintiffs’ Motion for Preliminary Injunction and Memorandum in Support.
H/T to Constitutional Law Prof Blog — Joe