Trump’s Travel Ban: What comes next?

Written by: Conor Tallet

On January 27, 2017, President Donald J. Trump issued Executive Order No. 13769, commonly known as the “travel ban.” When the Ninth Circuit blocked it, President Trump issued a “revised travel ban”on March 6, 2017 via Executive Order No. 13780. The Department of Justice has appealed the blocking of the orders to the Supreme Court, and the question as to whether or not the Court will act remains.

The revised order reworked provisions of the first travel ban that were at issue in the Ninth Circuit. Specifically, Section 2(c) of the order temporarily suspends new visas for citizens of six countries: Iran, Libya, Somalia, Sudan, Syria, and Yemen. The ban’s stated purpose was to decrease the risk of terrorist organizations from entering into the United States. Consequently, the order explained that the six listed countries had been “significantly compromised by terrorist organizations, or contain active conflict zones.” While such a purpose may appear clear on its face, a key question in evaluating this ban has been whether it violates the Establishment Clause of the First Amendment of the Constitution.

The Establishment Clause prohibits the government from making any law “respecting an establishment of religion.” Essentially, this means that the government cannot establish an official religion of the United States or pass any laws that favor or inhibit a particular religion.

The primary Establishment Clause test utilized by courts today is derived from Lemon v. Kurtzman, and the rest requires that courts analyze a government action’s purpose, effect, and entanglement with religion. If a court finds the government acted with a primary religious purpose, had the effect of advancing or inhibiting religion, or was sufficiently entangled with religion, it will strike the law down as unconstitutional in violation of the Establishment Clause. Under this Lemon test, a challenger needs to show only one of the three prongs to succeed.

Here, six Muslim individuals, and three organizations that represented Muslim clients, asserted that they would be harmed by the implementation of the revised travel ban. In turn, they filed a lawsuit in the United States District Court of Maryland seeking a preliminary injunction. The District Court granted the injunction and determined that the plaintiffs were likely to succeed on the merits of an Establishment Clause claim.

After the ruling was appealed, the Fourth Circuit upheld the Maryland District Court’s decision to block the revised travel ban on May 25, 2017, finding the ban to be in violation of the Establishment Clause. In its analysis, the Fourth Circuit employed the Lemon test and viewed extrinsic evidence on the record from the viewpoint of a reasonable observer to determine that the revised travel ban had a primary religious purpose.

One question that arose revolved around whether or not courts should be permitted to consider extrinsic evidence when assessing the purpose. In the Lemon test analysis, a court determines not only the government’s stated purpose, but also the purpose from a reasonable observer’s standpoint. Thus, in analyzing the purpose from the standpoint of a reasonable observer, it is proper for a court to take extrinsic evidence surrounding the implementation of a government action into account, just as the Fourth Circuit did in this case. However, in an age where society is constantly bombarded with information through countless avenues of communication, it is worth asking how much extrinsic evidence a court should take into consideration when attempting to determine the primary purpose of a governmental action.

In this case, the District Court of Maryland looked to President Trump’s campaign statements, rallies, interviews, and tweets in order to assess the various discussions surrounding the travel ban. More specifically, the court assessed the choice of language such as banning “Muslims” as opposed to banning “terrorists.” Thus, the Fourth Circuit determined that the abundance of extrinsic evidence on the record, “viewed from the standpoint of the reasonable observer, creates a compelling case that [the revised travel ban’s] primary purpose is religious.”

Furthermore, in this case, the Fourth Circuit held that the District Court’s use of such extrinsic evidence, in holding that the order was a violation, was proper to show a primary religious purpose disguised in terms of national security to circumvent Establishment Clause scrutiny. Accordingly, the Fourth Circuit concluded that President Trump’s statements revealed his “desire to exclude Muslims from the United States” in violation of the Establishment Clause.

On June 1, 2017, the Department of Justice filed a petition with the Supreme Court, seeking review of the Fourth Circuit’s decision.

Whether or not the Supreme Court will hear the case remains to be seen. Some experts argue that the court will likely grant certiorari and hear the appeal, saying that “[w]hen a major presidential initiative is ruled unconstitutional by a federal appeals court, a review by the Supreme Court almost always follows.” On the other hand, rulings in the Hawaii District Court, Maryland District Court, Washington District Court, Fourth Circuit, and Ninth Circuit have remained consistent, blocking both the travel ban and the revised travel ban. With consistent interpretation and no circuit splits, some experts argue that there is no reason for the Supreme Court to hear the case. Only time will tell.

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Sources Cited      

Adam Liptak, The Supreme Court’s Options in the Travel Ban Case, NY Times (Jun. 2, 2017).

Int’l Refugee Assistance Project v. Trump, 2017 WL 2273306 (4th Cir. 2017).

Ryan Lovelace, Will the Supreme Court Take up Trump’s Travel Ban?, Washington Examiner (Jun. 3, 2017).

Int’l Refugee Assistance Project v. Trump, 2017 WL 1018235 (D. Md. 2017).

Federal Rule of Civil Procedure 26(b)(1)

As it currently stands, the text of FRCP 26(b)(1) states the following: “Parties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense, including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identify and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action.”

The proposed amendment would limit the broad scope of the current rule by requiring that discovery be “proportional to the needs of the case.” The text of the proposed rule is as follows: “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case considering the amount in controversy, the importance of the issues at stake in the action, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefits.” The proposal would eliminate the option to have discovery “relevant to the action” and instead limits discovery to the claims and defenses in the action.

The Advisory Committee has decided to enact this more tailored version of the previous rule due to the fact that the old rule allowed discovery of any information so long as it was reasonably calculated to lead to the discovery of admissible evidence. Despite a revision of the rule in 2000, many lawyers and judges reading that language have concluded that, since almost any information could potentially lead to relevant and admissible evidence, almost anything is discoverable. Given the growth in electronically stored information (“ESI”) and advances in storage capability, such an interpretation has rendered the discovery process unduly burdensome and expensive. The new rule will become effective on December 1, 2015.

Rigano v. Vibar Const., Inc.

The issue decided in the case is whether a notice of mechanic’s lien can be amended nunc pro tunc to reflect the name of the true owner of the property or whether the misnomer invalidates the lien.

George Vigogna (sole shareholder of Vibar Constructions Corp.) and Nick Rigano (sole shareholder of Fawn Builders, Inc.) were business partners for over 35 years up until the dispute at question arose in 2007. Both parties often worked together, split their profits and rarely put their business agreements in writing.

During the project at issue, Vigogna’s company constructed a driveway to access a property and claims that Rigano’s company failed to compensate them for the construction of the road. Vigogna’s company filed a notice of a mechanic’s lien on the property in order to recover costs for construction of the road. Rigano sought to have the lien discharged on the grounds that he, and not his company owned the property, and that the lien was invalid. Vigogna sought to amend the lien. The Supreme Court granted Rigano’s petition and discharged the lien and the Appellate Division affirmed holding that “a misidentification of the true owner is a jurisdictional defect which cannot be cured by an amendment nunc pro tunc.”

The Court of Appeals reversed the Appellate Division’s holding. They referenced Matter of Niagara Venture v. Sicoli & Massaro, where they stated in that case that, “Substantial compliance . . . shall be sufficient for the validity of a lien and to give jurisdiction to the courts to enforce the same . . .  and a failure to state the name of the true owner . . . or a misdescription of the true owner, shall not affect the validity of the lien.” The Court also referenced Article 2 of the Lien Law which says they are to be construed liberally.

Combining these principles, the Court said in these particular circumstances, that the amendment sought was authorized and the defect in the lien was a misdescription, which allowed the amendment, and not a misidentification.

998 N.Y.S. 2d 748 (N.Y. 2014)

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Farruggia v. Town of Penfield

This appeal addresses an order by the New York Supreme Court denying summary judgment, granting summary judgment, denying partial summary judgment, and granting a motion for leave to amend. The Plaintiff, Gaetano Farruggia, was a construction worker and backhoe operator. The Defendant, Town of Penfield, hired the Plaintiff’s employer to complete a project (Project) on the Co-Defendant’s, Kenneth and Suzanne Hershey, property. The Project involved performing paving work on the sidewalk and driveway. While the Project was located on the co-defendant’s property, it was also located within the Defendant’s right-of-way through Co-Defendant’s property. It appears that an area of land (Landing Area) outside of Defendant’s right-of-way, but inside and wholly located on the Co-Defendant’s property was being used to park construction vehicles and equipment. At the end of a workday the Plaintiff parked a backhoe in the Landing Area which rolled into a ravine, injuring him. Plaintiff commenced an action against the Defendant and Co-Defendant under Labor Law and common-law negligence.

The Supreme Court denied Defendant’s motion for summary judgment in dismissing the Labor Law cause of action and granted Co-Defendant’s motion summary judgment. It also denied part of Plaintiff’s motion for partial summary judgment granted part of Plaintiff’s motion for leave to amend their bill of particulars. Defendant appealed and Plaintiff cross-appealed.

The Appellate Division agreed with Defendant that the lower court erred in denying Defendant’s motion for summary judgment in dismissing the Labor Law causes of action because the Defendant was not considered an “owner” for purposes of the statutes. The accident occurred well outside the Defendant’s right-of-way, and the Defendant had no interest or legal control over the Landing Area. Further, the Landing Area was completely on the Co-Defendant’s private property, the Co-Defendant had given Plaintiff permission to park the backhoe there and directed Plaintiff on exactly where to park. The Defendant had no power to do the same and there were other options available for Plaintiff to park. Further, the Appellate Division determined Plaintiff’s accident did not have “an elevation-related risk,” as protected against in Labor Law § 240(1). The Appellate Division also agreed with Defendant in denying the common-law negligence causes of action. The Appellate Division found that since Defendant established it did not occupy, own, or have control over the area of the accident (the Landing Area), and did not employ this area for a special use, it did not owe Plaintiff a duty of care.

The Appellate Division therefore modified the Supreme Court’s order by granting the Defendant’s summary judgment and dismissing the cross claim against it. The court also modified the lower courts order by totally denying Plaintiff’s motion for leave to amend, since there is no longer a basis against the town to do so.

The Appellate Division also agreed with Plaintiff in saying the lower court erred in dismissing the Labor Law and common-law negligence causes of action against the Co-Defendant. The Co-Defendants owned and controlled the accident area and did not establish that they did not have actual or constructive notice of the dangerous condition. The court modified the lower court’s order by denying Co-Defendant’s motion for summary judgment.

989 N.Y.S.2d 715 (4th Dep’t. 2014)

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Gristwood v. State

This appeal addresses an action for damages for wrongful conviction and imprisonment.  Claimant appeals from a Court of Claims judgment that awarded him $5,485.394 in damages. In 1996, Claimant was convicted of murder in the second degree and criminal possession of a weapon in the fourth degree for the death of his wife. The only evidence tying Claimant to the crime was an inculpatory statement made to police after a fifteen hour interrogation. In 2003, an individual confessed to the assault and murder of Claimant’s wife, providing details that accurately described the attack. Claimant moved to vacate the judgment of conviction on the grounds that those statements were “newly discovered evidence.” In 2006 County Court granted the motion and dismissed the indictment and Claimant was released after serving more than nine years in prison. Claimant thereafter brought a successful suit against the State.

In this appeal, the court held that the lower court did not abuse its discretion when it excluded the transcripts of Claimant’s criminal trial. Further, a determination of the Court of Claims will not be set aside unless their conclusions could not have been reached upon any fair interpretation of the evidence. The Court of Claims properly determined that the “new” 2003 confession established that Claimant did not commit the acts for which he was imprisoned.

The court found that Claimant had otherwise maintained his innocence and that his inculpatory statement was coerced. The voluntariness of a confession can be determined through “examination of the totality of the circumstances,” including duration, detention conditions, polygraph use or misuse, police attitude, threat existence and the age, and physical and mental state of the detainee. The court concluded that Claimant’s inculpatory statement was the product of police misconduct, including threats and harsh tactics. Claimant made the inculpatory statement after being awake and emotionally traumatized for thirty-four hours. He was interrogated in a six-by-eight-foot windowless room for fifteen hours and was devoid of food, drink and cigarettes. He was promised release if he passed a polygraph exam, which was determined to be “questionably reliable” due to his mental and physical state. The totality of the circumstances showed that Claimant’s statement was not voluntarily made, nor did he actually trigger his own conviction.

Finally, the court concluded that the nonpecuniary damages awarded did not materially deviate from reasonable compensation. The damages must “fairly and reasonably” compensate claimant under N.Y. Court of Claims Act § 8-b(6). “Traditional” tort, common-law and case law should guide the amount of present or future awards. “Proximately resulted” damages can be included after the period spanning conviction to the imprisonment term. Accordingly, the court determined that Claimant’s conviction and incarceration was detrimental to his personal and family life. The court ruled that Claimant correctly received damages for loss of liberty and pain and suffering, which included post-imprisonment psychological injuries.

990 N.Y.S.2d 386, 2014 N.Y Slip Op. 05259 (4th Dep’t. 2014)

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Koch v. Sheehan

This appeal considered a decision of the Office of Medicaid Inspector General (“OMIG”) to exclude Petitioner from participating in New York’s Medicaid program. Petitioner Eric J. Koch, D.O., was investigated by the Office of Professional Medical Conduct (“OPMC”) for his treatment of two patients, both of whom died shortly after receiving treatment in 2006. The Board for Professional Medical Conduct (“BPMC”), the state agency responsible for adjudicating professional misconduct complaints against physicians, found that Petitioner had negligently practiced medicine with respect to these two patients, and it entered into a consent agreement with Petitioner and OPMC. Pursuant to the consent agreement, Petitioner pleaded “no contest” to these charges and accepted a sanction of 36 months probation. OMIG, an independent state agency responsible for, inter alia, assuring that Medicaid funds are expended on quality medical care, was notified of the BPMC finding and removed Petitioner from the Medicaid program pursuant to 18 N.Y.C.R.R. §§ 515.7(e), 515.3(a)(1), which permit OMIG to take immediate action against a person found guilty of professional misconduct.

Petitioner challenged the OMIG decision, and the Supreme Court, Erie County, vacated OMIG’s decision and reinstated Petitioner. OMIG appealed, and the Appellate Division, Fourth Department, affirmed, holding that it was arbitrary and capricious to remove Petitioner from the program when BPMC had permitted him to continue to practice. It held further that OMIG was required to conduct an independent investigation before excluding a physician from Medicaid on the basis of a BPMC consent order.

The Court of Appeals affirmed on different grounds. The Court rejected the idea that OMIG was required to conduct an independent investigation and that it was required to give any deference to BPMC’s findings. It held that there was no statutory or regulatory basis for such a requirement and noted that OMIG may adopt the findings of BPMC and may choose not to levy further sanctions. However, it is ultimately within OMIG’s discretion to determine what sanctions, if any, are to be imposed.

Thus, the Court reasoned that OMIG may remove a physician based solely on the findings of a BPMC consent order in an exercise of its inherent discretionary authority. But, such a discretionary action requires an explanation. The Court held that, in cases such as this, where OMIG seeks to impose sanctions more severe than those imposed by BPMC, it must explicitly explain why exclusion from the program is warranted. The record in this case did not provide any such explanation. Rather, the recommendation for exclusion merely reiterated that Petitioner had two charges of negligence and was placed on probation for 36 months. The Court held that this was insufficient and that OMIG’s decision was arbitrary and capricious and an abuse of discretion.

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2013 WL 5707874, 2013 N.Y. Slip Op. 06804