Category: Judicial Decisions

EO 128 a Microcosm of Much That’s Wrong with COVID Emergency Orders

On Tuesday the Appellate Division of the Superior Court (New Jersey’s intermediate appellate court and the last word for most cases) issued its opinion in Kravitz v. Murphy, which was a challenge to Governor Murphy’s Executive Order 128, one of the governor’s many COVID-19 emergency orders. EO 128 permits residential tenants to direct that their security deposits be applied to monthly rent. Although the decision is probably legally correct, the order itself is a poster child for much that is wrong with rule by decree during the pandemic.((In one of my earliest posts on this blog, COVID-19 and Emergency Powers I cautioned against the continued use of “emergency” powers to deal with the pandemic. “That the situation is still dire does not mean it remains an emergency in the sense of requiring urgent action. “

In What’s More Important: Process or Substance?, I commented: “While many might accept rule by an all wise and benevolent despot, remember the democracy is a process.”))

The legislative process is a collaborative one. A bill may have many versions and amendments can be made during the process. Few lawmakers would claim that the initial versions of their bills are always perfect. Indeed, administrative regulations, which are a matter of grave concern to me, are subject to public notice and comment and, at least theoretically, the agency can modify its proposal in response to the comments. The process of crafting executive orders is not, to use the current term “transparent” in the least. There is no process by which anyone outside the governor’s inner circle can comment on an executive order before its issuance.

The responses to the pandemic’s economic effects have often been a blunt object rather than a scalpel. The state eviction moratorium assumes that failure to pay rent must arise from the pandemic (or does not care). The CDC’s moratorium (of dubious legality) at least requires a claim by the tenant of an income loss. Indeed, in the early stages of the pandemic last spring and summer, all persons collecting unemployment compensation got an additional $600 which could, and often did, result in a higher weekly take home pay than when they were working.

Less obvious here, COVID executive orders were also looked upon as a way to enact policy preferences not directly related to the pandemic that would not have passed the legislature in normal times and, once in place, they become the status quo. Many of the so-called “voting restrictions” criticized by the traditional media simply attempt to roll back temporary, emergency provisions that were not and would not have been approved affirmatively.

By no means do I think the pandemic is over (anti-vaxxers are seeing to that), but the time has come for a sober reflection on the conditions under which we are going to allow governors to exercise both executive and legislative power under the guise of an emergency.

Jay Bohn
July 22, 2021

Since When is a Constitutional Right a Mere “Technicality”?

While a criminal trial is an attempt to get at the truth behind the charges, and truth is no doubt important, the system is properly weighted against a conviction. That the prosecution must prove its case “beyond a reasonable doubt,” that an acquitted defendant cannot be retried for the same crime, and that the defendant cannot be compelled to testify against himself are just three of the important protections of the people against a powerful government. The existence of those protections means that we believe them to be so important that we will tolerate a guilty defendant’s acquittal if necessary. When the application of these rights results in the reversal of a conviction of someone whom “everybody” knows to be guilty (perhaps because we believe the media has told us so), there is a tendency to complain that the defendant “got off on a technicality.”

As an example, lets look at the criminal case against Bill Cosby. After being told by the relevant district attorney that the Commonwealth of Pennsylvania would not prosecute certain accusations of sexual assault against him, Cosby answered questions about such charges in a deposition in a civil case against himself. Some of the answers he gave in the proceeding were potentially incriminating and for that reason he could not have been compelled to answer those questions if he faced potential prosecution.

Subsequently, however, a newly elected district attorney decided that Cosby should be prosecuted and his deposition testimony was used against him. He was convicted and has spent the last several years in prison.

Yesterday, the Pennsylvania Supreme Court decided that the actions of the original district attorney should be enforced and that proper remedy would be to preclude the Commonwealth from prosecuting Cosby for those charges. As a result Cosby’s conviction was overturned and he was released from prison. He cannot be retried and the decision is not subject to appeal.((No appeal is possible because the decision was based upon Pennsylvania law and the Pennsylvania Supreme Court has the final say on Pennsylvania law.))

Many are predictably disappointed and of course the decision is being called a “procedural technicality.”

It is not my purpose to say that the Pennsylvania Supreme Court’s decision is right or wrong, and certainly I have no particular insight into the truth of the underlying charges. But the right to refuse to testify against oneself in a criminal matter is an important one, and the government cannot be permitted to defeat that right by what the court called a “coercive bait-and-switch.”

Jay Bohn
July 1, 2021

Congress Should Fix Its Own Mess

This is about a Supreme Court case that never should have gotten there. I am not saying that it is not worth the Court’s attention, but that it involves a one-time issue of statutory interpretation affecting the distribution of about half a billion dollars of CARES Act funds. Congress’s meaning is less than clear and Congress should step in and make it so.

The case is Yellen v. Confederated Tribes of Chehalis Reservation and it was argued this past Monday (April 19, 2021). (The petition for certiorari was filed by the former Treasury Secretary Steven Mnuchin but the current Secretary, Janet Yellin, was substituted as petitioner when she took office. I see no indication of any change in the Government’s position resulting from the change in administrations.)

The issue, as framed by the petition filed by the Government, is:

In the Coronavirus Aid, Relief, and Economic Security or CARES Act, Congress directed the Secretary of the Treasury to disburse $8 billion of relief funds “to Tribal governments.” The CARES Act defines a “Tribal government” as “the recognized governing body of an Indian Tribe,” and provides that “[t]he term ‘Indian Tribe’ has the meaning given that term in” the Indian Self-Determination and Education Assistance Act (ISDA). ISDA, in turn, defines “Indian tribe” to mean “any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act * * * , which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.” The question presented is as follows:

Whether Alaska Native regional and village corporations established pursuant to the Alaska Native Claims Settlement Act are “Indian Tribe[s]” for purposes of the CARES Act.

[statutory citations omitted]

The Government wants to include Alaska Native regional and village corporations as eligible recipients of a share of $8 billion under the CARES Act, but some seventeen recognized Indian tribes (whose own distributions would be accordingly reduced) obtained a decision in the U.S. Court of Appeals for the D.C. Circuit to the effect that the Alaska Native regional and village corporations are not eligible.

As things stand, the Supreme Court has to decide the case based upon the language that Congress used and not which outcome is the better policy. It will essentially have to clean up the mess resulting from too hasty drafting of the statute.

There is, however, nothing except the likely desire not to offend the losing side that would prevent Congress from stepping in (although it should do so quickly) and passing curative legislative definitely providing that Alaska Native regional and village corporations are (or are not) eligible for a share in the relief funds. The Supreme Court could then vacate the decision below and remand for further proceedings in light of the new statute.

Jay Bohn
April 22, 2021

Post script

The Supreme Court decided this case today. By a vote of 6-3 the Court decided that Alaska Native regional and village corporations established pursuant to the Alaska Native Claims Settlement Act are “Indian Tribe[s]” for purposes of the CARES Act. I have no comment on the merits of the decision, I will just note that the justices were not aligned in their generally perceived camps.

J.B.B.
June 25, 2021

COVID-19 and Emergency Powers

In response to the COVID-19 pandemic, the nation’s governors have issued many and varied emergency declarations and used these declarations to justify the exercise of legislative powers that they would not normally possess. Unfortunately, attempts to rein in the use of emergency powers have been viewed through the prism of politics or the perceived merits of the action taken rather than process considerations or the constitutional separation of powers.

The expansion of executive powers in the face of an emergency is not a feature of the United States Constitution (and probably not most State constitutions either) but rather has a statutory basis. Therefore, what constitutes an “emergency” and what may be done when one exists will be defined by the statute.

These issues are evident in the Supreme Court of Wisconsin’s March 31, 2021, decision in Fabick v. Evers. In that case a private citizen, Jeré Fabick, challenged certain declarations of emergency issued by Governor Tony Evers as being contrary to the terms of the relevant statute. Media coverage of the case does not go much beyond the fact that the governor is a Democrat, the Legislature has Republican majorities in both houses, and the elected Supreme Court (which is perceived to have a four to three conservative majority) voted along ideological lines to overturn the emergency declarations that were challenged.

The substantive legal issues were based upon the following statute:

If the governor determines that a public health emergency exists, he or she may issue an executive order declaring a state of emergency related to public health for the state or any portion of the state and may designate the department of health services as the lead state agency to respond to that emergency. . . . A state of emergency shall not exceed 60 days, unless the state of emergency is extended by joint resolution of the legislature. . . . The executive order may be revoked at the discretion of either the governor by executive order or the legislature by joint resolution.

Wis. Stat. § 323.10

Another statute defines public health emergency as “the occurrence or imminent threat of an illness or health condition” meeting certain criteria. [Wis. Stat. § 323.02(16)]

Governor Evers has issued several emergency declarations arising from the COVID-19 pandemic, most of which expired after 60 days. Not only did the Legislature not act to extend any of the governor’s emergency declarations, but it used its statutory authority to terminate one of them. (In response to the termination–in fact on the very same day–the governor issued another such declaration.)

A majority of the Wisconsin Supreme Court determined that § 323.10’s limit on the length of an emergency to 60 days and the grant of power to extend that period to the Legislature alone meant that the governor could not simply declare a new emergency on the same basis. (The three dissenting justices argued that the various emergency declarations that were struck down were each based upon a different “occurrence” and so were permissible.)

My point is not whether or not the decision is correct as a matter of Wisconsin law (the Wisconsin Supreme Court is the final judge of that) or whether particular responses to the pandemic (e.g., mask mandates, quarantines, business closures) should be undertaken, but the danger to democracy of allowing a single person the unchecked power to make that decision.

Why do we accept that the existence of an emergency justifies extraordinary executive power? It must be because the normal processes of government are unable to address the emergency condition, most likely because the need for a response is urgent and the Legislature cannot react in a timely manner. Superstorm Sandy was a perfect example. Emergency conditions existed during the storm and the immediate cleanup, but the normal machinery of government was able to resume its functions promptly.

The need for urgent action may well describe the situation with COVID-19 in March 2020 (when there was little to no public anticipation that the situation would last this long), but the pandemic has been with us for over a year now, although its severity has ebbed and flowed. Congress and state legislatures have not been prevented from meeting and continuing to pass laws. There is no reason that the continuation of the “emergency” should not have been placed on a statutory basis. That the situation is still dire does not mean it remains an emergency in the sense of requiring urgent action. The real issue is that the executive does not trust the legislature to do the right thing.

Where the State’s legislative and executive branches are controlled by different parties, it is certainly understandable if each branch were to believe that it has a better approach to the pandemic or for the legislature to seek to limit the power of the governor.

New Jersey does not even have that excuse. The governor is a Democrat and there are solid Democratic majorities in both the General Assembly and the Senate. The Legislature’s acquiescence to continued rule by decree is an abdication of its role.

It is certainly true, as judges would be the first to admit, that the courts are not staffed with public health experts who know better than anyone else. Where these issues become the subject of a judicial challenge, our courts must not hesitate to act for fear of criticism by those to whom constitutional rights and the separation of powers are a mere inconvenience.

Jay Bohn
April 8, 2021