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.

     The parents of a child sexually abused by a child they adopted brought an action against the state of Nebraska for negligent failure to warn or disclose, and failure to supervise.  A state employee incorrectly stated to the parents before the adoption that the adopted child had no sexual abuse history. After a bench trial, the trial court entered judgment for the State based on the defense of sovereign immunity. When the parents appealed, the Supreme Court of Nebraska affirmed the lower court ruling.  Jill B. v. State, 297 Neb. 57, 899 N.W.2d 241 (2017). 

    Like statutes in many other states, Nebraska's Tort Claims Act, Neb. Rev. Stat. §§ 81-8,209 et seq., includes a waiver of the state's sovereign immunity from tort liability, but it also retains such immunity for some broad categories of conduct. Statutes authorizing a lawsuit against the State are strictly construed, since they are in derogation of the State's sovereignty. Under the intentional torts exception, sovereign immunity is not waived for claims arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights. Neb. Rev. Stat. § 81-8,219(4).

Nicole D. Prysby, Senior Attorney, National Legal Research Group

            The price of Bitcoin has soared in recent months, from approximately $900 in January 2017 to a current price of over $15,000. But even before the 2017 increase, Bitcoin had periods where its value rose sharply. For example, in 2013, it went from about $15 to $800. Bitcoin’s short-term gains have made it a very attractive hook for would-be Ponzi scheme developers. In fall 2017, the Commodity Futures Trading Commission (“CFTC”) sued Gelfman Blueprint, Inc. (“GBI”), and GBI’s Chief Executive Officer (“CEO”) for operating a Bitcoin Ponzi scheme that allegedly defrauded investors out of more than $600,000.

            In early 2014, the company’s CEO opened a Bitcoin fund and sought customers. He claimed to have a high-frequency, algorithmic, trading strategy (using a bot named “Jigsaw”) and advertised the fund as having monthly returns of 7%-11% with zero downside risk because “trading results are maximized during price drops.” He was able to attract at least 80 customers, who contributed between a few hundred dollars and tens of thousands of dollars each.

Jason Holder, Senior Attorney, National Legal Research Group

            Amanda Geraci ("Geraci") attempted to record a Philadelphia police officer's actions as he arrested an antifracking protester. Fields v. City of Philadelphia, 862 F.3d 353, 356 (3d Cir. 2017). Despite the fact that she was not interfering with the officer, a second officer pinned Geraci against a pillar, preventing her from observing or recording the arrest. Id. Geraci faced neither arrest nor citation for her actions. Id.

            Richard Fields ("Fields") was walking down a public sidewalk when he noticed a number of police officers breaking up a house party across the street. Id. As Fields took a photograph of the scene, an officer ordered him to leave the scene. Id. When Fields refused, the officer arrested him, confiscated his phone, and searched it opening "several videos and other photos." Id.

            Geraci and Fields brought suit under 42 U.S.C. § 1983 alleging, inter alia, "that the officers illegally retaliated against them for exercising their First Amendment right to record public police activity."  Id.

Jason Holder, Senior Attorney, National Legal Research Group

     The Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400 et seq., is designed "to ensure that all children with disabilities have available to them a free appropriate public education ["FAPE"]." 20 U.S.C. § 1400(d)(1)(A).  In Fry v. Napoleon Community School, 137 S. Ct. 743 (2017), the Supreme Court examined an IDEA provision which "addresses the Act's relationship with other laws protecting those children." Id. at 748. While the provision does not limit rights under other federal laws, it provides that "if a suit brought under such a law 'seek[s] relief that is also available under' the IDEA, the plaintiff must first exhaust the IDEA's administrative procedures." Id. (citing 20 U.S.C. § 1415(l)).

            Under the IDEA, an individualized education program ("IEP") serves as the primary vehicle for providing a child with a FAPE. Id. at 749 (citing Honig v. Doe, 484 U.S. 305, 311 (1988)). If parents are unsatisfied with an IEP, they can file a complaint with the local or state educational agency (as provided by state law) or "may instead (or also) pursue a full-fledged mediation process." Fry, 137 S. Ct. at 749. Next, the parents may seek a due process hearing appealable to a state agency (if originally conducted at the local level). Id. Only after these steps are completed may a parent seek judicial review with a civil action in state or federal court. Id.

            In Fry, the petitioner’s condition meant that she required a service dog to help her live as independently as possible. Id. at 751. The dog, "Wonder," performs myriad tasks including "retrieving dropped items, helping her balance when she uses her walker, opening and closing doors, turning on and off lights, helping her take off her coat, [and] helping her transfer to and from the toilet." Id. Under the existing IEP, Wonder was not permitted to accompany petitioner to school with school officials believing that a human aide rendered Wonder superfluous. Id.