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Protecting Constitutional Rights

Sidun v. Wayne County Treasurer

Stella Sidun is a 75-year old woman who depended on a rental property for her retirement income. She lost that property in a tax sale because the Wayne County Treasurer did not provide her with adequate notice of the foreclosure proceeding until it was too late to redeem the property. The County identified Ms. Sidun's ownership interest by consulting the deed to the property, but never sent notice of the proceeding to Ms. Sidun's address, even though her address was listed on the deed. Instead, the County sent notices to the former address of Ms. Sidun's mother, who had been a co-owner of the property until her death, but those notices were returned to the County unclaimed. Even after receiving the unclaimed notices, the County failed to follow up by sending notice to Ms. Sidun's address. Although the County also published notice, tried unsuccessfully to contact the occupants, and posted notice on the property, those steps cannot excuse the County's failure to attempt to contact Ms. Sidun at her address, when that address was readily at hand.

Griffin v. Bierman, et al.

Maryland resident Joyce Griffin lost her house in a foreclosure sale because she never received notice until it was too late for her to save her home. Her case is a stunning example of how predatory subprime lenders, high-volume foreclosure mills, and a hands-off legal system can combine to wreak havoc on people's lives.

Griffin's mortgage company, the now-defunct Ameriquest, tricked her into refinancing the home she owned, when, after her fiancé died, she'd simply wanted to have his name taken off the mortgage. When the single mother could no longer make the increased mortgage payments, a "foreclosure mill" law firm representing Ameriquest quickly began foreclosure proceedings. After they made a bare-bones and unsuccessful effort to notify her of any pending action, Griffin lost her home when it was literally auctioned off on the courthouse steps. She never learned that her home had been sold until the new owner tacked a note on her door.

Griffin immediately hired a lawyer to block the sale, arguing that the notice procedures violated her constitutional right to due process, but the court upheld the lender's actions. Public Citizen and Baltimore-based Civil Justice Inc. are appealing that decision. We argue that the 2006 decision in Jones v. Flowers — a case that Public Citizen argued in the U.S. Supreme Court — means that additional reasonable steps must be taken to notify a property owner if a foreclosure notice is returned as unclaimed by the post office. But the lawyers who conducted the foreclosure of Ms. Griffin's house say they can ignore undelivered letters and do not have to make any effort to follow-up before selling someone's house.

If Griffin had been a defendant in a small-claims case, a property tax foreclosure, a federal tax foreclosure, or even a tenant in an eviction proceeding, the law would have required that the documents be served in person, sent via restricted certified mail (complete only upon delivery) or be posted by mail-and-nail notification in which the mailed documents are also posted directly on a dwelling's door. Even in a routine debt collection action, Ameriquest's mishandling of Griffin's case would have violated her constitutional rights. The Constitution demands more when someone's home is at stake.

Cerqueira v. American Airlines

In this civil rights case, we challenged an airline's denial of service to a passenger. Public Citizen, together with private co-counsel, represented the passenger who was removed from an American Airlines flight and denied further transportation services. The passenger alleged that American Airlines discriminated against him because the airline mistakenly believed that he was of Arab, Middle Eastern, or South Asian descent. The passenger sought damages and injunctive relief under 42 U.S.C. § 1981, Title VI of the Civil Rights Act of 1964, and M.G.L. c. 272, § 98.

This case went to jury trial in early January 2007, and on January 12, 2007, the jury decided in our favor, awarding our client $400,000 in compensatory and punitive damages.

American Airlines appealed the decision. On January 10, 2008, the U.S. Court of Appeals for the First Circuit issued a decision vacating the jury verdict in favor of the plaintiff.

On January 24, 2008, we filed a petition for rehearing en banc.

Baraka v. McGreevey, et al.

This petition seeks review of a significant decision by the U.S. Court of Appeals for the Third Circuit, which held, over a dissent, that two New Jersey executive officials — former New Jersey Governor James E. McGreevey and the former chairperson of the New Jersey State Council on the Arts — were entitled to absolute legislative immunity for directing and orchestrating an effort, culminating in legislation, to eliminate Amiri Baraka's position as Poet Laureate of New Jersey in retaliation for his public reading of a controversial poem he wrote regarding the attacks against the United States on September 11, 2001. As the dissenting judge recognized and as Mr. Baraka argues here, the Third Circuit's decision extends legislative immunity far beyond the bounds set by this Court, effectively conferring absolute legislative immunity on any activity by executive officials with even a slight connection to the legislative process. Moreover, Mr. Baraka contends, in expanding legislative immunity to actions by executive officials that are not "integral steps in the legislative process" and that target a particular individual for differential treatment, the Third Circuit's decision creates a conflict among the courts of appeals that should be resolved by the Supreme Court.

The Third Circuit held not only that Governor McGreevey and Harrington were entitled to legislative immunity in their individual capacities, but also that legislative immunity barred Mr. Baraka's claims for reinstatement against them in their official capacities. In ruling that absolute legislative immunity can block an official-capacity suit for prospective injunctive relief, the Third Circuit deepened an already existing conflict in the circuits. Other courts of appeals have recognized, consistent with Supreme Court precedent, that personal immunities such as absolute legislative immunity do not apply to actions for prospective injunctive or declaratory relief against state officials in their official capacities. Mr. Baraka urges the Supreme Court to grant certiorari to resolve this important conflict as well.

Los Angeles County v. Max Rettele

  1. Is it clearly established that an officer must immediately call of a valid warrant calling for the arrest of African Americans merely because he observes one or more Caucasians in the house to be searched?
  2. Is it clearly established that, in lawfully executing a search warrant at a residence, it is an unnecessarily painful and/or degrading and/or undue invasion of privacy for officers to order people — who are in bed and who claim to be naked — to show their hands and get out of bed?
  3. Can a Circuit Court of Appeals find that the law is "clearly established" so as to foreclose a finding of qualified immunity to Saucier v. Katz, 533 U.S. 194 (2001) when even the circuit judges cannot agree on whether a constitutional violation occurred?

Peoples v. Corrections Corporation of America (CCA) Detention Center

In this case, Public Citizen argues on behalf of Cornelius Peoples that corrections officers employed by private prison corporations under contract with the federal government (Federal Bureau of Prisons), who inflict cruel and unusual punishment on prison inmates (violating his Eighth Amendment rights), should be liable for constitutional torts to the same extent as prison guards employed directly by the federal government under the Bivens doctrine.

Morrison v. Board of Law Examiners of North Carolina, et al.

May a state constitutionally condition its willingness to allow a lawyer to be admitted to practice without taking a bar examination based on the willingness of the state in which that lawyer is already admitted, and in which that lawyer has been recently practicing, to reciprocate for lawyers from the admitting state?

Northwest Austin Municipal Utility District Number One (MUD) v. Alberto Gonzales

In July 2006, Congress renewed Section 5 of the Voting Rights Act for another 25 years as part of the Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act. In August 2006, the Northwest Austin Municipal Utility District Number One ("the MUD") immediately sued U.S. Attorney General Alberto Gonzales to challenge the Act, and a 3-judge panel was convened in Washington, D.C. to hear the case. Public Citizen, as co-counsel with Texas RioGrande Legal Aid, represents three Latino voters in Texas who have intervened as defendants to defend the constitutionality of the Act and protect their voting rights.

As the law stands now, before implementing an election law change, local and state governments must prove to the Department of Justice or a panel of federal judges that the proposed change would not have the purpose or effect of undermining the ability of minority citizens to register and vote. If MUD wins this suit, the only way minority voters would be able to stop the harm caused to their rights by a discriminatory law would be to file a lawsuit and attempt to prove in court that the law violates their rights. Public Citizen is working closely with nonprofit organizations who are representing other defendant-intervenors, including Mexican American Legal Defense and Educational Fund, NAACP-LDF, Lawyers' Committee for Civil Rights Under Law, American Civil Liberties Union, and People for the American Way.

For recent news on the case, visit the blog of Rick Hasen, a law professor at Loyola Law School.

Luessenhop, Tupaz, and Bouchard v. Clinton County, New York; Baechle v. Mendon, Vermont (Second Circuit)

Three citizens filed these lawsuits in federal court, alleging that local governments violated their right to constitutional due process by taking their property without first giving them adequate notice. They asked the courts to give them a chance to repay their back taxes and get their property back — the same opportunity they would have had if they had gotten notice. The lower courts, however, threw out their cases, holding that the Tax Injunction Act (a law that Congress passed in 1937 to prevent big corporations from bringing drawn-out litigation challenging local taxes in federal courts) completely barred their suits and, more generally, barred any federal-court constitutional challenges involving local tax collection.

We filed an amicus brief asking the U.S. Court of Appeals for the Second Circuit to reject the lower courts' broad reading of the 1937 law because (1) the law was only designed to apply where taxpayers seek to avoid paying taxes, (2) the lower courts' decisions upset settled practice because citizens have historically been permitted to bring these types of challenges, and (3) the courts should be especially reluctant to preclude citizens' ability to pursue constitutional claims in federal court. In an opinion issued on October 11, 2006, the court of appeals agreed with our arguments and held that the lawsuits should have been allowed to go forward. The court sent the cases back to the lower courts to hear the due process challenges and apply the Supreme Court's decision in Jones v. Flowers.

ACORN v. FEMA, United States District Court for the District of Columbia

We brought this case on behalf of ACORN and individual hurricane survivors against the Federal Emergency Management Agency (FEMA) to challenge, on constitutional due process grounds, FEMA’s procedures for notifying hurricane survivors of the reasons for FEMA’s determinations that they were ineligible for continued housing assistance benefits. Following entry of a preliminary injunction requiring FEMA to provide adequate notice of the reasons for FEMA’s ineligibility determinations, housing benefits were granted to more than 1,000 hurricane evacuee households that FEMA had erroneously determined to be ineligible.

We filed this lawsuit on August 29, 2006, and sought a temporary restraining order to stop FEMA from terminating housing rental assistance to thousands of evacuees from Hurricanes Katrina and Rita. The evacuees had been receiving short-term housing rental assistance under Section 403 of the Stafford Disaster Relief and Emergency Assistance Act, but FEMA had found them ineligible for transition to long-term housing benefits under Section 408 of the Act. We argued that FEMA had violated the due process rights of hurricane evacuees denied long-term housing benefits by failing to provide adequate explanations of the reasons for FEMA’s ineligibility determinations. Because of the inadequacy of FEMA’s ineligibility notices, the evacuees were unable to mount meaningful appeals of FEMA’s decisions.

Although the district court denied plaintiffs’ motion for a temporary restraining order, it converted the motion to a motion for a preliminary injunction and set a briefing and hearing schedule. On November 29, 2006, the court granted plaintiffs’ motion and entered a preliminary injunction against FEMA. The court rejected each of FEMA’s arguments, observing that “[i]t is unfortunate, if not incredible, that FEMA and its counsel could not devise a sufficient notice system to spare these beleaguered evacuees the added burden of federal litigation to vindicate their constitutional rights.” ACORN v. FEMA, 463 F.Supp.2d 26, 29 (D.D.C. 2006). The court ordered FEMA “to provide, as soon as possible, more detailed explanations for the denials of evacuees’ eligibility for housing assistance benefits under Section 408, including the factual and statutory basis for the denial and more fulsome instructions as to how each evacuee may either cure their ineligibility problem(s) or proceed with an appeal.” Id. at 36. The court also ordered FEMA to restore Section 403 short-term housing assistance benefits to the evacuees pending receipt of the more detailed explanations and a chance to appeal and to pay the evacuees the short-term assistance benefits they would have received during the time that the preliminary injunction motion was pending. Id. at 36-37.

FEMA filed a notice of appeal and a motion to stay the order pending appeal. The district court denied FEMA’s motion for a stay, and over the next seven weeks held twelve status hearings to ensure FEMA’s compliance with the preliminary injunction. On December 22, the court of appeals stayed two provisions of the preliminary injunction, but not the main relief sought by plaintiffs and ordered by the court: a detailed explanation for FEMA’s ineligibility decisions.

According to FEMA, the court’s preliminary injunction of November 29 covered approximately 5,000 evacuee households that FEMA had determined to be ineligible. By January 26, 2007, as a result of this litigation, at least 1,063 evacuee households obtained the Section 408 housing benefits to which they were entitled but had been erroneously denied. On that date, the district court observed that the issues on appeal were largely moot, and all evacuees who could reasonably be located had received a more detailed notice and an opportunity to appeal. Therefore, on January 30, 2007, plaintiffs voluntarily dismissed their lawsuit against FEMA.

Public Citizen v. Clerk, United States District Court for the District of Columbia

In this case filed in the U.S. District Court for the District of Columbia, we argue that a law President Bush signed on Feb. 8, 2006 is invalid because he signed a version of the bill that was passed by the U.S. Senate but not the U.S. House of Representatives. The law, the Deficit Reduction Act of 2005, decreases student loan and Medicare spending, extends welfare cuts, and cuts federal funding of state child-support enforcement programs.

In fall 2005, the House and Senate passed different versions of the Deficit Reduction Act. To reconcile the differences between the two versions, the legislation was sent to a House-Senate conference committee. The bill was modified and the final conference version was filed on Dec. 19. On the same day, the House passed the conference report. The Senate, however, rejected the conference report and on Dec. 21 passed an amended version of the bill. The Senate clerk sent it back to the House to vote on. But before transmitting it, the Senate clerk made a substantive change to the bill by altering the duration of Medicare payments for certain durable medical equipment such as hospital beds and wheelchairs from 13 months, as passed by the Senate, to 36 months.

The House passed the version with the clerk's error. Bush then signed the legislation that was passed by the Senate — which did not contain the clerk's error — and not the version passed by the House, which did.

The Bicameral Clause of the United States Constitution states that "every bill [must] have passed the House of Representatives and the Senate" before it becomes a law. Because the president signed a bill that was passed only by the Senate, the act is unconstitutional.

The court of appeals affirmed the district court decision on May 29, 2007. On August 6, 2007, we filed a petition for certiorari with the Supreme Court. That petition is pending.

Jones v. Flowers

On April 26, 2006, the Supreme Court ruled in our favor in Jones v. Flowers, holding that when mailed notice of a tax sale is returned undelivered, due process requires that the government take additional reasonable steps to attempt to provide notice to the owner before selling the property.

We represented Gary Jones, an Arkansas man who lost his house because he did not receive notice that it would be sold for delinquent taxes until it was too late. After a certified letter sent to Mr. Jones was returned to the state undelivered, the state took no further action to try to provide effective notice to Mr. Jones before selling his home, even though it could easily have done so. The Court explained that the government's knowledge that its initial effort was ineffective triggered an obligation to take additional steps to notify Mr. Jones.

> Public Citizen Press Release (4/26/2006)

Cornelius Peoples v. Corrections Corporation of America (CCA) Detention Center

In this case, Public Citizen argues on behalf of Cornelius Peoples that corrections officers employed by private prison corporations under contract with the federal government (Federal Bureau of Prisons), who inflict cruel and unusual punishment on prison inmates (violating his Eighth Amendment rights), should be liable for constitutional torts to the same extent as prison guards employed directly by the federal government under the Bivens doctrine.

VA v. Hicks

Respondent Kevin Hicks challenges the City of Richmond's policy of prohibiting the public from walking on streets and sidewalks adjacent to pubic housing as unconstitutinally overbroad and vague. Oral argument before the United States Supreme Court is scheduled for April 30, 2003.

Roell v. Withrow

In this case, Public Citizen argues on behalf of Jon Michael Withrow that the Federal Magistrates Act requires that all parties expressly consent to the jurisdiction of a magistrate judge prior to trial and entry of final judgement by that magistrate.

Correctional Services Corporation v. John E. Malesko

Mr. Malesko was a federal prisoner incarcerated in a privately-run halfway house when he was deprived of his heart medication and forced to hurry up five flights of his stairs to his room. He suffered a heart attack and related injuries, and sued the prison company for violating his constitutional rights.

Larry Dean Dusenbery v. United States of America

In this case, decided by the Supreme Court in January 2002, Public Citizen had argued that the federal government violated the Due Process Clause of the Fifth Amendment by failing to give actual notice to an inmate in its own prison system before it forfeited the inmate's property for its own benefit. In a 5-4 decision siding with the government, the Court held that the government's practice of sending a notice by certified mail to the prison where the inmate was incarcerated satisfied due process.

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