Jim Witt—Senior Attorney, National Legal Research Group

            While the as yet unexplained hoarding of toilet paper may be thought of as the light side of the coronavirus pandemic, on the not-so-light side is the hoarding of medical supplies, notably drugs and medical equipment such as masks and ventilators. The federal government has taken two steps in this regard—first, an Executive Order from the President, and, second, a warning from the Department of Justice.

            Executive Order No. 13910, 85 FR 17001, "Preventing Hoarding of Health and Medical Resources to Respond to the Spread of COVID-19" (Mar. 23, 2020), was announced under the authority of the Constitution and the Defense Production Act of 1950 (the "Act"), as amended (50 U.S.C. §§ 4501 et seq.).

Jason Holder—Senior Attorney, National Legal Research Group

       With the spread of COVID-19, most jurisdictions have declared a state of emergency and/or issued executive orders curtailing daily life. See, e.g., Cal. Exec. Order N-33-20 (Californians must "stay home or at their place of residence except as needed to maintain continuity of operations of the federal critical infrastructure sectors"); D.C. Mayor’s Order 2020-054 (District residents must "stay in their residences except to perform essential activities, engage in essential business, provide or obtain government services, or engage in certain authorized recreational activities not involving close contact with other persons"); N.Y. Exec. Order 202.8 (nonessential businesses and nonprofit entities must "reduce the in-person workforce at any work locations by 100%"); Va. Exec. Order 53 (nonessential "brick and mortar retail business[es] . . . may continue to operate but must limit all in-person shopping to no more than 10 patrons per establishment"). State and federal courts have also been forced to alter procedures, extend deadlines, or even limit court access. An updated list of orders, see https://web.csg.org/covid19/executive-orders/. Court closures and restrictions can be found at https://www.law360.com/articles/1252836.

Trish Sifka, Senior Attorney, National Legal Research Group

            On December 20, 2019, President Trump signed the National Defense Authorization Act ("NDAA"), SB 1790, 133 Stat 1198, into law. This legislation included a substantial "crack" in the over 70-year-old, court-imposed Feres doctrine, which barred tort claims by military members against the United States for injuries incurred incident to service. Under this new provision in the NDAA, the Department of Defense ("DOD") can administratively receive, review, and settle tort claims filed by military members for personal injury or death caused by the negligent or wrongful act or omission of a DOD health-care provider. However, there are limitations. The injuries must not have been sustained in a combat zone. Claims are limited to medical malpractice claims against military medical personnel at military medical facilities. The provision also sets a two-year statute of limitations except for 2017 injuries that are filed in 2020.   Damages will be based on average federal court damages data for similar injuries. Claimants will be allowed to be represented by an attorney, but there is no judicial review.

Steve Friedman, Senior Attorney, National Legal Research Group

     In light of the COVID-19 pandemic, many aspects of our lives have been severely altered and restricted in the name of public health. The extent of the states' police power is currently being tested amid the COVID-19 pandemic, and one such legal battleground involves the freedom of religious practice.

     As long ago noted by the Supreme Court, "[t]he right to practice religion freely does not include liberty to expose the community . . . to communicable disease or the latter to ill health or death." Prince v. Massachusetts, 321 U.S. 158, 166‑67 (1944). As illustrated below, even the fundamental right to gather in worship can be somewhat restricted by the government (i.e., prohibiting in-person services), but even such restrictions have limits (i.e., cannot ban drive-in services).

John Stone—Senior Attorney, National Legal Research Group

     Juvenile offenders and their parents brought a civil rights action against the Florida Department of Juvenile Justice and the Secretary of the Department, challenging the constitutionality of state-wide policies and practices of isolating juvenile offenders in solitary confinement, and alleging claims for disability discrimination under the Americans with Disabilities Act ("ADA") and the Rehabilitation Act. Their claims withstood a motion to dismiss. G.H. ex rel. Henry v. Marstiller, No. 4:19CV431‑MW/CAS, 2019 WL 6694738 (N.D. Fla. Dec. 6, 2019).

     The source for the constitutional challenge was the prohibition on cruel and unusual punishment in the Eighth Amendment. To support an Eighth Amendment challenge to conditions of confinement, the conditions must be objectively serious or extreme, that is, the prisoner must show that a condition of his confinement poses an unreasonable risk of serious damage to his future health or safety.

John Stone—Senior Attorney, National Legal Research Group

            A survey conducted in Minneapolis, Minnesota, indicated that barely half of the residential rental listings surveyed were affordable for persons receiving vouchers from the federal government's "Section 8" program, and only about a quarter of those affordable properties were willing to accept such vouchers. The backdrop was a vacancy rate in the city for low-income households of only about 2%.

            Citing this data and its desire to broaden housing opportunities for residents receiving the federal vouchers, the City enacted an ordinance that made it an unlawful discriminatory practice for a landlord to use "any requirement of a public assistance program as a motivating factor" to refuse to sell, rent, or lease real property. While voucher holders must meet the landlords' other requirements that are unrelated to Section 8 participation, landlords cannot avoid the ordinance just by citing business reasons for not wanting to participate in the Section 8 program.

Amy Gore, Senior Attorney, National Legal Research Group

            Dawn Hassell and the Hassell Law Group brought a defamation suit against a former client who posted a derogatory review of the attorney's services on the third-party platform, Yelp, which was not a party to the original action. A default judgment was entered that directed Yelp to remove the review and Yelp was served with the judgment. Yelp then objected to the enforcement of the judgment asserting that the judgment was invalid under the Due Process Clause and the Communications Decency Act of 1996, 47 U.S.C. § 230. The U.S. Supreme Court recently declined to hear an appeal of the decision issued by the California Supreme Court in this matter, making the state decision final. Hassell v. Bird, 5 Cal. 5th 522, 420 P.3d 776 (2018), cert. denied sub nom. Hassell v. Yelp, Inc., 139 S. Ct. 940 (2019).

The Lawletter Vol 44 No 4

John Stone—Senior Attorney, National Legal Research Group

            In Delaware, a judicial nominating commission, with members balanced between the two major political parties, provides recommended candidates to the Governor for the appointment of judges to the state courts. When a position becomes open, the commission gives public notice of the position, including the major party membership required for nomination to a particular judgeship. The party membership requirement has its origins in article IV, § 3 of the Delaware Constitution, which effectively excludes all candidates for state judge positions who are not members of either the Republican or the Democratic Party.

            A Delaware resident and member of the Delaware Bar considered applying to become a state judge, but in the end, he did not apply because as an independent politically, his application would have been futile in light of the constitutional provision. Nonetheless, first a United States district court and then a federal appellate court found that he had standing to challenge the limitation on judicial candidates to the two major political parties for the Delaware Supreme Court, the Superior Court, and the Chancery Court on the ground that such exclusion of persons not members of those parties was an unjustified infringement on the plaintiff's First Amendment freedom of association.  Adams v. Governor of Del., No. 18-1045, 2019 WL 1549857 (3d Cir. Apr. 10, 2019).

Jason Holder—Senior Attorney, National Legal Research Group

            Following an incident in which he allegedly grabbed, choked, and struck the mother of his children, Saylor Suazo (“Suazo”) was charged with a variety of crimes including assault in the third degree, unlawful imprisonment in the second degree, criminal obstruction of breathing or blood circulation, endangering the welfare of a child, menacing, and harassment in the second degree.  People v. Suazo, No. 117, 2018 WL 6173962, at *1 (N.Y. Nov. 27, 2018).  Immediately before the start of trial, however, the prosecution moved to reduce the charges to attempt crimes.  Id.  This reduction meant that Suazo now faced a maximum sentence of three months in jail and, more importantly, that the offenses could be tried without a jury pursuant to Criminal Procedure Law § 340.40(2).  Id. 

            Suazo challenged the reduction and continued to assert his right to a jury trial, arguing that he was a noncitizen charged with deportable offenses rendering any conviction sufficiently serious to mandate a jury trial under the Sixth Amendment.

Amy G. Gore—Senior Attorney

            The Virginia General Assembly has extended a grant of immunity from liability for certain otherwise defamatory statements in an amendment to Va. Code § 8.01-223.2 (Westlaw 2018). Previously, the anti-SLAPP (strategic lawsuit against public participation) statute extended immunity to claims for tortious interference with contract and similar theories when brought over a statement made at a public hearing or similar proceeding. Such statements were subject to an immunity defense unless uttered with knowledge of falsity or reckless disregard of falsity. The amendment makes two significant changes.

            First, the type of claims to which the statutory immunity applies now include common law defamation claims and will protect any statements "regarding matters of public concern that would be protected under the First Amendment [and that] are communicated to a third party." Va. Code Ann. § 8.01-223.2 (A). Second, exempt from the grant of statutory immunity are statements made with the actual or constructive knowledge of their falsity, the standard currently applicable to determinations of privilege.