A periodic review of developments in the judicial branch of government of particular import to inner city communities.  Among the reports below:  child welfare, Miranda warnings, court clerk strong-arming, attacks on the Legal Services Corporation and on the disparate impact standard of proof in discrimination cases.  See also, ICP's weekly Community Reinvestment Reporter, Federal Reserve Reporter, and Environmental Justice Reporter.

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January 18, 2000

    In one of the better Supreme Court environmental decisions in twenty years (that is to say, a rare decision by the current Supremes that does NOT roll back environmental law), the Court on Jan. 12 confirmed the continued viability of citizen suits against polluters. In Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc. (No. 98-822, argued Oct. 12, 1999), a 7-2 majority rejected the arguments of business groups and conservative legal organizations that only the government can sue to enforce the law. Justice Ginsburg’s majority decision also holds that citizens suits can continue, even after the pollution has ceased, unless it is clear that the allegedly illegal conduct could not reasonably be expected to reoccur. The underlying case involved Friends of the Earth filing a Clean Water Act suit against a South Carolina hazardous water incinerator now owned by Safety-Kleen Corp; the Fourth Circuit Court of Appeals had dismissed the suit. The Supreme Court decision not only revives the suit, but affirms the continued relevance of “enforcement from below” -- at least in environmental law, perhaps also, if correctly applied, to private lawsuits to enforce such public interest statutes as the Community Reinvestment Act.

     The Virginia Supreme Court on Jan. 14, 2000, overturned the $100 million of punitive damages awarded against Nationwide Insurance in October, 1998, based on racial redlining in property insurance. The ruling stated that, “with due respect for HOME’s worthy mission of providing equal housing opportunities in the metropolitan Richmond area, we conclude nonetheless that HOME lacks standing to maintain its action against Nationwide.” This decision raises the question: how are cases of systematic discrimination in insurance to be prosecuted?

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October 25, 1999

    On the Supreme Court beat, only two written opinions were released last week: one denying another in forma pauperis petition, the other denying an appeal on Fourth Amendment search-and-seizure grounds. There was, however, an interesting development at the Court of Appeals for the Fourth Circuit in Richmond (this is the Circuit that recently veered from the Supreme Court’s Fifth Amendment Miranda precedents). On October 20, a Fourth Circuit panel, on a 2-1 vote, overturned the $315,000 judgment against the ABC television network in a fraud lawsuit brought by the Food Lion supermarket chain. Food Lion had claimed, and a jury has agreed, that ABC reporters who went “undercover” in 1992 to expose Food Lion’s selling off outdated meat committed fraud and engaged in business deception under NC’s Unfair and Deceptive Trade Practices Act (UTPA). Judges M. Blane Michael and Diana G. Motz voted to overturn both rulings, finding that no fraud claim existed because Food Lion was not injured by the ABC reporters’ deception (but rather by Food Lion’s own practices), and that (1) ABC is not a competitor of Food Lion, and (2) the deception did not harm the consuming public, as to the UTPA claims. Investigative journalism breathes a little freer -- for now, at least.

    On October 21, the U.S. Department of Justice announced it has sued the city of Columbus, Ohio, for allowing a pattern by its police department of excessive force, false arrest and illegal searches and seizures. DOJ has asked to have its suit stayed until December 20, pending negotiation between the city and its police union for a new contract. The union says it will file a motion to intervene in the case. DOJ has previously settled similar cases in Pittsburgh and Steubenville, Ohio, and says it has more than ten other investigations under way. Like they say, developing...

   Until next time, on the Legal Beat, for or with more information, contact us.

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October 18, 1999

    The Supreme Court began its 1999-2000 term on October 4, with a docket of 50 cases. The first real action took place on October 12, when the Court issued five (per curiam) decisions, its first decisions of the term, all of them denying cert petitioners’ requests to proceed in forma pauperis, without costs.

    On October 12, the Court heard arguments in Friends of the Earth, et al. v. Laidlaw Environmental Services, Inc., No. 98-0822. At issue was whether environmental citizen suit defendants can effectively moot cases out by changing their actions after a suit is filed. Justice Scalia, no friend of citizen suits or public interest standing in general, claimed that “citizen suits usurp the ordinary function of the executive branch.” But the executive branch’ Department of Justice filed an amicus brief in support of Friends of the Earth... Apparently, in Justice Scalia’s view, it’s a branch of government unable or unwilling to defend its prerogatives. Corporate polluters everywhere are hopeful the decision will shield them from local enforcement. According to the Philadelphia Inquirer (Seth Borenstein, Oct. 11), business groups say “the issue is whether environmentalists should be allowed to milk businesses to finance their social and political agendas.” NB the resonance with the statement of Senate Banking Committee Chairman Phil Gramm (R-TX) to the National Association of Federal Credit Unions earlier in October, regarding his opposition to minimal community reinvestment requirements for credit unions: “This process of stealing people’s deposits and stealing people’s wealth is coming to an end.” American Bankers, Oct. 11, 1999. In that speech, Sen. Gramm called community reinvestment requirements for credit unions “unconstitutional.” Lockner v. New York, here we come...

    Another interesting case on this year’s docket, set for oral arguments on December 8, is U.S. v. Leslie Weatherhead, a Freedom of Information Act case in which the Department of Justice is appealing for a Circuit court’s ruling that FOIA’s national security exemption does not apply to a letter from the British government to the DOJ about an extradition matter. DOJ claims that disclosure will undermine the trust of the British government. It’s not clear that that’s the standard under FOIA’s national security exemption -- otherwise, the U.S. would be bound to other nations’ weaker or non-existent open government practices...

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    At both the state and federal level, the Freedom of Information laws are being chipped away. The New York Court of Appeals most recent FOIL decision holds that the names of police officers who pled guilty to throwing eggs at passing cars after a bachelor party can be withheld, under a FOIL amendment designed “to keep defense attorneys from poking through personnel files in order to impeach witnesses at trial.” Palm Beach Post, April 14, 1999. The full decision, In the Matter of Daily Gazette Company, et al., Respondents, v. City of Schenectady, et al., Appellants, was published in the New York Law Journal of April 7, 1999, at 27. Writing for the Court, Judge Howard Levine said the case “demonstrates the risk of its use to embarrass or humiliate the officers involved.” And so -- an “embarrassment or humiliation” exemption to the freedom of information laws.

    At the federal level, the Environmental Protection Agency has decided that while data that is public under the 1986 Emergency Planning and Community Right-to-Know Act must be made available under FOIA, the EPA will not post it on its web site, so that terrorists cannot use it as “an easy targeting tool.” (This according to the EPA’s Timothy Field, in Senate testimony last month). The position of the EPA (and of Rep. Tom Bliley, R-VA) appears to be that while the data must be available to the public under FOIA, it should not be EASILY available. New, contorted FOIA interpretations proliferate by the day -- waiting to be litigated.

    At the Federal Reserve Board, the Internet as a mode of disseminating information still seems to be a mystery.  How else to explain FRB Vice Chairman Alice Rivlin’s April 22, 1999 FOIA appeal denial, refusing expedited processing of FOIA request because “there is a substantial question... about whether making information available on the Internet constitutes dissemination of such information within the meaning of the standard” of the Electronic FOIA Amendments of 1996?

    “Internet publication is not dissemination” -- it is just this sort of anachronistic position that the E-FOIA Amendments were enacted to counteract. In 1996, federal agencies were still arguing that electronic records were not “records within the meaning of the standard” of FOIA. One definition (“records”) was explicitly modernized in the E-FOIA amendments; the Fed, however, contests the modernization of any other definition. Makes you wonder how they set interest rates... (A FOIA request is in for current Federal Open Markets Committee transcripts, so stay tuned).

    By the way, the volume of information disseminated over the Internet currently doubles every 100 days; and currently, 20% of U.S. adults get news over the Internet. While one assumes that the FRB Governors are in this 20%, that remains to be confirmed -- by a FOIA request, perhaps...

    Also at the Fed:  while the Fed’s recent filing with the Department of Justice claims that it upheld each and every FOIA denial on appeal in 1998, even Fed FOIA Appeals Officer Rivlin has had to overturn a denial in early 1999. In yet another FOIA appeal ruling on April 22, 1999, FRB Governor Rivlin wrote:

This is in response to your letter dated and received by the Board on March 24, 1999, in which you appeal the decision of the Secretary of the Board, under the Freedom of Information Act... to deny in part your request dated February 22, 1999, for information related to the Board’s communications since January 1, 1998, with the Senate Banking Committee regarding the Community Reinvestment Act...

[ICP] challenged the Board’s redaction of the nonresponsive portions of two responsive, nonexempt documents. In connection with your appeal, Board staff conducted a de novo review of the information withheld as not responsive to your request, and determined that withholding the material in question is warranted under exemption 5 with respect to one document. An unredacted version, however, of the other responsive document -- a February 9 e-mail from Robert deV. Frierson -- will be provided to you.

   While this makes clear that the FRB’s previous withholding of information was unwarranted, it will be interesting to see whether the Fed’s next FOIA report to DOJ discloses this reversal on appeal. If the past is any guide, the Fed will deem the ruling an upholding (due to unrelated issues), and will report again to DOJ a 1.000 “batting average” for 1999 (we kid you not - the Fed claims in 1998 not to have even "partially reversed" any FOIA denials).  And the DOJ will accept it, saying it leaves up to the agencies how to prepare their reports. Even inaccurate and misleading is OK with the DOJ, it seems. More on this topic next time. For now, here’s a link to the DOJ’s collection of federal agencies’ 1998 FOIA reports.

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April 12, 1999

    House Republicans renewed their attack on the Legal Services Corporation, which funds legal representation for low income people, on April 7, 1999. House Majority Leader Dick Armey sent a letter to all other House members, lambasting the entire LSC for reporting errors uncovered at five of LSC’s 269 programs. The errors involve erroneously reporting the number of cases handled by the LSC-funded offices. One office, in Lakeland, Florida, blamed its over-reporting on a computer glitch that it has since fixed. Other LSC offices have pointed out to ICP that they do not report to Congress the many trainings and referrals they make. But a few offices’ over-reporting of cases has lent fuel to the fire of the Republican’s “Defund the Left” campaign, which began under President Reagan, stepped up in 1996 (when Republicans slashed LSC’s budget by 30%), and is being revived in 1999.

    At bottom, the attacks on LSC are not about mis-reporting or waste, but are ideological. In 1994, Senator Phil Gramm (R-TX) told the New York Times that LSC lawyers are “being advocates for the existing welfare bureaucracy, and while they may have a right to do it, they don’t have a right to do it with taxpayers’ money.” Gramm proposed a budget amendment that banned LSC from providing any assistance for consumer fraud issues or divorce. The impetus behind the second proposal was Pat Robertson’s Christian Coalition, which called LSC anti-family, because part of their civil case load involved divorce and domestic violence work. Can’t have poor people getting divorce now, can we?

    The director of the San Diego program points out that the number of cases reported by each office does not affect the funding it receives from LSC, and that this is based on the number of income-eligible people in its catchment area. But Congress’ overall funding to LSC may be based on the number of cases LSC reports. LSC’s Inspector General, Edouard Quatrevaux, is now auditing a number of other LSC offices, and says that overcounting elsewhere is less severe than in the five programs highlighted by the Republicans. But in the ideological O.K Corral the Congress has become, this type of laxity is not helpful to the cause of equal justice. Sources tell ICP that the Northern Virginia program turned over all its files, without regard to client confidences or anything else. There is a need for analysis and self-regulation in the LSC “community;” the question many in this community ask is whether LSC President John McKay, a Republican elected by LSC’s Board, may not be pulling a Jack Kavorkian on the whole program. Developing....

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The Politics of Constitutional Rights: Fourth Circuit Versus Miranda

    On February 8, 1999, a three judge panel of the U.S. Court of Appeals for the Fourth Circuit, in Richmond, Virginia, sought to invalidate one of the recent bedrocks of individual liberties, flowing from the Supreme Court’s decision in Miranda v. Arizona in 1966: that confessions can only be used if the suspect was read his or her constitutional rights (to counsel and against self-incrimination).

   Popular reporting of the Fourth Circuit’s decision has been confusing: generally, a federal appeals court cannot seek to overrule a Supreme Court decision. What the Fourth Circuit did, after urging by friend-of-the-court briefs by the conservative Washington Legal Foundation and Safe Street Coalition, was hold that a law Congress passed in 1968, two years after the Supreme Court’s Miranda decision, overruled or limited that decision in a way not heretofore noticed (or argued by any administration or its Attorney General).

   The 1968 law, a piece of a broader crime control bill, provided that a confession “shall be admissible in evidence if it is voluntarily given.” The Warren Court’s point in Miranda was that interrogations by police are often coercive, and that suspects, particularly poor suspects who would not routinely take a lawyer with them to the police station, should be informed of their right to counsel before an interrogation.

   The Fourth Circuit case involves Charles Dickerson, accused of bank robbery. Prosecutors said that Mr. Dickerson confessed, but a U.S. District Court judge in Alexandria, Virginia, found that he had not been read the Miranda warnings, and that therefore his confession could not be used. Federal prosecutors appealed, claiming that the warnings had been given. The two above-named conservative groups each filed amicus briefs, arguing that under the 1968 law (which the prosecutors were explicitly NOT citing to), Mr. Dickerson confession should stand regardless of whether he was read his Constitutional rights or not. Two judges of the three judge panel agreed, and now, Miranda is no longer the law for federal prosecutors in the five states making up the Fourth Circuit: Virginia, West Virginia, Maryland, and North and South Carolina.

   The government has stated that it will ask for rehearing by the full Fourth Circuit. This Circuit, one of the most conservative in the country, may well uphold its three judge panel. The government would likely then appeal it to the Supreme Court, where, at least, Justices Scalia and Thomas have indicated their belief that the 1968 law did overrule or limit the Miranda decision.

   While several other of the Justices, including the Chief Justice, may have that view as well, most practitioners opine that the Court would be hard pressed to toss out thirty years of jurisprudence, particularly now that Miranda warning have been incorporated into all federal and state police work (as well as television detective shows). Upholding the Fourth Circuit’s decision would only make clearer how Constitutional rights are just a political football, to be changed a will now that the majority of the justices are those appointed by Presidents Reagan and Bush.

    In terms of the “conservative” legal groups that have pushed this issue, it appears that their “anti-crime” position now weighs far more heavily than the purportedly conservative issues of individual rights against oppressive government. These groups appear to believe that government now only oppresses large corporations -- see, e.g., ICP’s Community Reinvestment Reporter, on how Congressional Republicans led by Senator Gramm (R-TX) are analogizing consumer protection laws to government-sponsored “shake downs” of the mega-banks.

   What may maintain Miranda is one of the factors that has maintained, to date, the right of choice under Roe v. Wade: that the right-leaning “center” of the Supreme Court is still concerned with the public’s perception that law is more than simply politics, and that Constitutional right are not repealable at will by a bare 5-4 majority of the Supreme Court. The legitimation function, more visible in (and important to) the judiciary than any other branch of government (but see below, for an example of U.S. Court of Appeals staff attempting to protect the corporate status quo informally, out of the spot light). We shall see.

Deaths of Due Process, Embrace of Disparate Impact:
New York’s Child Welfare Laws

   That supposedly objective or neutral laws can have a disproportionate impact on low income and minority people is exemplified by the current operation of child welfare laws. Tragedies are reported:  a parent kills a child.  In response, city and state child welfare agencies are given emergency powers, to remove children from their parents if they are found to be in “imminent danger.”

    Various professions are declared to be “mandatory reporters” of child abuse: teachers, nurses and doctors, welfare case workers, etc.. However, those in public schools and hospital prove much more likely to make such reports than their counterparts in private schools and hospitals. Furthermore, the inquiries conducted by child welfare investigators conflate poverty with neglect, or, more ominously, with immanent danger. The government, it appears, cannot ensure that there is affordable housing, or safe and healthy neighborhoods -- but they can take people’s children away for not having these things.

   There is little outcry, both because the policy and emotions are driven by the worst anecdotal cases (in New York, for example, the Elisa Izquierdo murder in 1995), and because those whose children are summarily taken are mostly low income people of color, with little access to the media, the courts, or the legislatures. Where, one wonders, are the conservative and libertarian legal activists now, those who speak of natural rights, when the government is making the most dramatic intervention into the family imaginable. If the right to raise your children is not a “natural right,” pre-existing the mythological social compact, what is?

   In New York City, a study has been conducted by the Vera Institute of Justice, comparing Family Court cases, including as to parent representation, in Manhattan and The Bronx. The study found that while parents have attorneys in 61 percent of the proceedings in Manhattan, parents have lawyers in less than half of the cases in Bronx County. Whereas the children at issue were appointed their own lawyers in 100% of the cases studied in the Bronx, this was true in only 88% of the cases in Manhattan. Even for the parents with lawyers, in Manhattan, parents’ lawyers filed motions in 15% of the cases studied, versus only 5% of the cases in the Bronx.

[The report of this study, entitled “New York State Family Court Improvement Study,” is available by calling the ABA Center on Children and the Law in Washington, at (202) 662-1720. ICP also acknowledges and directs attention to the February 1999 report by City Limits magazine and its affiliated Child Welfare Watch, which can be reached at (212) 479-3344].

   The results, or out-flow, from these disparities? New York City statistics show that 71% of all foster children in NYC are African American and 24% are Hispanic. That adds up to 95%...

    New York City’s child welfare agency, the Administration for Children’s Services or ACS, has radically stepped up its filing of neglect petitions seeking to remove children: from 6,658 petitions in 1995, to 10,395 petition in 1998, a 55% increase in three years. ACS Commissioner Nicholas Scoppetta, a former federal prosecutor, wrote in ACS’ “master plan” in December 1996 that “[a]ny ambiguity regarding the safety of a child will be revolved in favor of removing the child from harm’s way. Only when families demonstrate to the satisfaction of ACS that their homes are safe and secure will the children... be returned to the home.”

   This is a new one, in terms of Constitutional law: parents only have and raise their children at the pleasure or discretion of the government. Again, where are the “natural rights” and conservative and libertarian advocates now?  Furthermore, why would it be that 95% of the children removed from their homes by ACS are African American or Hispanic? Unless the city government’s theory is that child abuse falls along racial lines (!), there can be no question that not only poverty, but bias, is playing a role in the removal of children from their parents in New York City.

    ICP has found that current New York City law and practice allow the Administration for Children’s Service to file a petition to get children removed, without even providing notice to the parents. The supposed safeguard is that parents have a right to oppose the removal within three days, in a so-called “1028” hearing. But on this fundamental right, to raise one’s own children, parents are afforded less due process than in housing court, or even traffic court. Add this to the law’s (and this agency’s) disproportionate focus on and intervention into low-income communities of color, and you have a scandal. A relatively silent scandal, for now, given the demographics of this tyranny’s victims.

   ICP will be focusing on these issues going forward. For or with more information, please contact us.

Assault on Civil Rights
And the Disparate Impact Standard

   At the beginning of the current Congress, Rep. Bill McCullom introduced the so-called “Credit Opportunity Amendments Act of 1999” (H.R. 190), which would prohibit the use of statistical evidence from being used to prove disparate impact cases. The bill would change ECOA and the Fair Housing Act to require a showing that the credit engaged in a pattern or practice with the purpose or intent to discriminate. McCullom and other Republicans have barked up this tree before; it remains to be seen what happens with this year’s proposal. Meanwhile, the Federal Reserve Board (which opposed the expansion of ECOA to protect racial minorities, and is currently collecting and feeding anti-Community Reinvestment Act anecdotes to Senator Gramm (R-TX) continues its opposition to applying the disparate impact standard of proof in any context -- despite its reliance on statistics in almost every OTHER context, including, obviously, the setting of interest rates. Updates forthcoming...

Courthouse Beat: What Is -- Paternalistic Strong-Arming,
For the Corporate Status Quo?

    This “blind” item is a question as well as a report. The text below is a direct quotation for a memo the staff counsel of a U.S. Court of Appeals sent to a lawyer representing a non-profit community-based organization, seeking to litigate against a major federal agency and large corporation (pardon the deletion, but they have proven necessary, to fully protect anonymity):

"To: [REDACTED], Esq.

...[G]oing beyond mootness as legal doctrine... the force of this matter, as a test case... has been sapped considerably by the subsequent developments. This may compromise your arguments. Therefore, whether or not this case is legally moot, it is simply not an efficacious vehicle for litigating such an important issue. I realize that you and your client are enthusiastic; nevertheless, sometimes it is prudent to wait another day, rather than risk the chance of a bad precedent.”

   In this case, the community-based non-profit litigant had never stated that it was seeking a “test case;” nor, as a matter of statutory law, was mootness even conceivably at issue. It seems to ICP unimaginable that the staff counsel of a U.S. Court of Appeal would given any such “advice” to a large corporation, or to a government agency. The attempt seems to have been to “resolve” the dispute, entirely in favor of the corporate and governmental defendants, without the judges having to touch it, or even know about the strong-arming behind just another withdrawal of an appeal.

   ICP’s question to readers, and to the Bar, is whether the above is considered appropriate, and what might be done, if this is more than an isolated incident. ICP is exploring the second of these questions; for or with more information, or to respond, please contact us.

   And, until the next time -- you’ll see us in the courthouse....

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