New York Should Become a Legal Safe Harbor for Women Seeking Abortions and the Health Care Practitioners Who Provide Them

By Margaret Sanborn-Lowing, Esq. & Kate Aufses, Esq.

In the wake of the Supreme Court’s decision to overrule Roe v. Wade, the United States has become a tale of two countries: one country in which abortion is legal and one in which it is not. As a result, pregnant women who live in states in which abortion is illegal will be forced to cross state lines to obtain abortions in states like New York where the procedure remains legal and accessible. While New York is and will continue to be a leader in upholding a woman’s right to terminate a pregnancy, we urge the state to do more to protect women who travel to New York to obtain necessary—and possibly lifesaving—abortion services. New York can also do more to protect doctors, other healthcare practitioners, state and local agencies, or any other citizen who helps facilitate an abortion for a non-New Yorker who travels to the state for an abortion.

Currently, New York’s Reproductive Health Act—passed in 2019—ensures that anyone who can get pregnant can get an abortion in the state. The law codified the protections previously provided under Roe and guarantees access to safe and legal abortion up to 24 weeks post-fertilization. In New York, abortion is also permitted after 24 weeks if the fetus is not viable, or if the pregnant person’s life or health (including mental health) is at risk.

Nevertheless, the Reproductive Health Act does not include affirmative protections to deter states with civil bounty hunter laws (like Texas’s SB8) from prosecuting individuals who travel to New York to obtain an abortion. The law also fails to protect from prosecution citizens of New York who assist non-New Yorkers in obtaining an abortion. New York should look to its neighbor, Connecticut, as a model for codifying these statutory protections and strengthening and expanding abortion access more generally.

On May 5, 2022, Connecticut’s Governor Ned Lamont signed into law House Bill 5414. The Connecticut state legislature passed the bill in response to the restrictive and draconian laws being passed in states like Texas, which create a private right of action for any citizen to sue patients or providers involved in abortions performed after a fetal “heartbeat” is detected, generally about six weeks. Connecticut’s law, in turn, prohibits state and local agencies from cooperating in investigations and prosecutions of abortion providers in the state; the law also shields abortion-seekers from penalties that could be imposed under other states’ anti-abortion laws. Indeed, people or organizations in Connecticut who are sued for receiving, performing, or providing support for abortions in other states can countersue for damages and other costs. Connecticut’s law also modifies the state’s extradition statutes and prevents disclosure of an out-of-state patient’s medical records.

What’s more, the Connecticut statute expands the types of medical professionals who can provide abortions in the state. The law allows advanced-practice clinicians such as registered nurses, nurse-midwives, and physician assistants to perform aspiration abortions, the most common method of in-clinic abortions, and to provide medication abortions. This is a critical step to ensuring that abortion remains as accessible and available as possible.

We are, of course, proud that our elected officials, including Governor Hochul, Lieutenant Governor Delgado, and Mayor Adams, are committed to ensuring that New York continues to be a “safe haven for women across this country” and that “abortions remain safe, legal, and accessible” here. But New York should do more: legislation as powerful as Connecticut’s is a next step. Last month, Manhattan State Senator Liz Krueger introduced a bill that would protect New York doctors who treat patients seeking

abortions by prohibiting law enforcement from cooperating with out-of-state investigations on abortion cases. While commendable, we urge New York to enact additional legislation preventing any state or local agencies from participating in the prosecution of women who travel to New York for necessary, and possibly lifesaving, abortions.

The views expressed here are the views of the writer, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers or its Board.

A SMALL STEP FOR NON-LAWYER PRACTICE – AND ACCESS TO JUSTICE:  Upsolve, Inc. v. James

                                                                                                By:  Ronald C. Minkoff

Sometimes lawsuits lead to the right result for the wrong reason.  And sometimes, the reasoning doesn’t really matter:  it is the result that counts.   U.S. District Judge Paul Crotty’s May 24, 2022 decision in Upsolve, Inc. v. James, No. 22-cv-627 (S.D.N.Y.) (PAC) (“Upsolve”), is an example of both.

            Upsolve addresses – and approves — a radical solution to a dire problem.  Upsolve, a not-for-profit organization, trains non-lawyers to provide limited legal advice to lower-income New Yorkers who face debt collection actions.  Because so many defendants in those actions are pro se – a Pew Charitable Trusts survey sets the number at 90%, with 70% ending in default judgments [M. Reynolds, “Federal Judge Greenlights Legal Tech Company’s Use of  Nonlawyers for Legal Advice” (ABA Journal, May 26, 2022), citing Pew Charitable Trusts survey] — the New York court system has created a one-page “check-the-box” answer form for these defendants to fill-in to avoid default.  Upsolve’s goal is to train non-lawyers to assist defendants to complete the forms and file a proper answer.

            Upsolve crafted its training program in an effort to avoid any future claim that the non-lawyers it trained were engaged in the unauthorized practice of law (“UPL”), which is still a crime in New York.  See N.Y. Jud Law §§ 476-a, 478, 484, 485.  The trainees, known as “Justice Advocates”, would use a training guide when helping others to fill out the form.  The training manual requires the Justice Advocate to make clear that they are giving limited advice (only on how to fill out and file the Answer form), and that they will refer the client to a legal services agency if the client’s legal needs go beyond that.  The Justice Advocates must sign an affidavit saying they will follow the New York Rules of Professional Conduct regarding conflicts of interest, confidentiality and informed consent, and will provide their services free-of-charge.  They are warned that if they violate these guidelines, they can be terminated from the Upsolve program or be prosecuted for UPL.

But Upsolve went even further to protect itself and its Justice Advocates from a UPL claim.  It filed a federal lawsuit to enjoin the New York Attorney General from enforcing the UPL statutes against the Justice Advocates program – even though the AG had neither brought charges nor threatened to do so. Upsolve argued that such enforcement would violate Upsolve’s and the Justice Advocates’ First Amendment rights.  In a rather surprising decision, Judge Crotty granted the injunction.

            Judge Crotty’s decision centered on whether Upsolve was likely to succeed on its First Amendment argument.  In three distinct stages, he steered the First Amendment analysis so as to allow him to apply “strict scrutiny” to any attempt to regulate Upsolve’s activities.

            First, despite noting that, in the absence of an attempt to enforce the rules against Upsolve, the challenge would normally be considered “facial” (an attack on the Rules of Professional Conduct themselves) and thus, because of its breadth, “highly disfavored” [Upsolve, Slip Op.at 10], Judge Crotty viewed “the more sensible approach” as treating this as an “as applied” challenge.  Id. at 10-11.  This was because the challenge focused only on Upsolve’s narrowly-directed program.  “They seek to allow members of a specific group to give legal advice about a specific legal topic – debt collection cases – with specific parameters about how those member would go about giving that advice.”  Id.  

            Second, despite conceding that “lower courts have overwhelmingly concluded that UPL statutes [are generally given broad deference] because they regulate professional ‘conduct’” and only incidentally involve speech – for example, they may regulate the provision of legal advice, but only in connection with a legal activity, such a trying a case or writing a will – that is not so with Upsolve.  Id.. at 17-18. All the Justice Advocates do is provide “out-of-court verbal advice,” and any UPL prosecution would seek to regulate pure speech.  This requires strict scrutiny. Id.

            Third, the Court found that legal advice was not among “the special categories of pure speech that the government can regulate without scrutiny.”  Id. at 25.  The Court held that only “a type of speech . . . historically rooted in a tradition of regulation going back to the [f]ounding” of the U.S. fits within that category.  Id.  Legal advice, the Court found, had not been regulated for that long – only since the post-Reconstruction period.  Id. at 25-26.

            Having found that any attempt to regulate Upsolve’s program required “strict scrutiny,” the Court upheld the First Amendment challenge.  While recognizing the public benefit of having UPL statutes, he found that rationale “less compelling in the context of Plaintiffs’ specific, narrow mission.” Id. at 27.  He noted the numerous client protections featured in the training manual, including required compliance with the ethics rules, providing services for free, and disqualification from the program for failure to comply.  Moreover, implementing the Upsolve program promotes judicial efficiency:  “more New Yorkers will respond to their lawsuits and begin th[e] adversarial process, rather than default entirely,”  as they are doing now.  Id. at 28.  In this limited context, the Court found, First Amendment considerations outweighed the need for UPL regulation.

            I am no First Amendment scholar, but even I can see that the Court’s argument is rather labored, as the Court dances around concededly contrary precedent to achieve what it perceives as the correct result.  More concerning is the notion that legal advice disconnected from “conduct” – as a lot of legal advice is – may have more First Amendment protection and thus be less subject to regulation.  If the advice to be provided by Upsolve were provided instead by an unadmitted “notario” for a fee, would it really be less subject to First Amendment protection?  If so, why?  If not, does that result adequately protect the public?

            Still, from the standpoint of access to justice, the decision to allow Upsolve to pursue its program is the right one.  The need is indeed great:  as noted, many litigants in consumer debt cases default because they cannot find or cannot afford a lawyer.  While legal services agencies claimed, in amicus briefs, that they “do not turn away clients,” the fact is, as the Court noted, that “the State’s own forms encourage defendants to file their answers pro se,” indicating that these lawyers are not meeting the existing need.  Id. at 29.  Upsolve’s “program does not need to reach every potential client to strengthen the legal system.”   And strengthen the legal system it will!

            But there has to be a better way for a program like Upsolve to exist than fighting dodgy constitutional battles.  As Jacoby & Meyers, LLP learned five years ago when it challenged New York’s rule against nonlawyer ownership so it could more easily raise capital to serve its middle-income clientele, such attacks on the existing order often go down to  defeat.  Jacoby & Meyers, LLP v. Presiding Justices of the First, Second, Third & Fourth Departments, 852 F.3d 178, 181 (2d Cir. 2017).  Who knows if Judge Crotty’s decision will survive appeal?  Three preferred solutions immediately come to mind.

            First, we can redefine the “practice of law” to exclude the type of service that Upsolve is providing:  one aimed at indigent clients, pursued under tight controls, containing consumer protections, and with no monetary incentives for abuse.  As just one example, we make similar exceptions to the rule prohibiting compensation for lawyer “recommendations” under Rule 7.2(b), by allowing legal services organizations, Bar association referrals and union plans, among others, to be compensated for referrals.  We can do the same thing with the UPL statutes and rules.

            Second, we can also develop a program to allow licensed nonlawyers to provide certain limited legal services, such as filling out bankruptcy forms, assisting with uncontested divorces, answers in  consumer debt parts, and the like.  As pointed out in Upsolve, Wisconsin, Washington, Arizona and California, among other jurisdictions, have allowed some form of nonlawyer assistance.  Upsolve, Slip Op.at 30.  Even New York allows Housing Court navigators to provide limited guidance to pro se litigants in the courthouse. 

            Third, New York should follow Utah’s lead and develop a “regulatory sandbox,” where those who wish to explore legal services models outside our current regulatory structure can do so under tight supervision.  Upsolve’s program would have been a perfect fit for that model. 

            The short of it is that we continue to strictly adhere to a regulatory structure that is not meeting the needs of indigent and middle-class litigants, who simply cannot afford to hire a lawyer and have little choice but to handle their problems pro se.  We are constantly told that our existing lawyer regulatory structure, allowing only lawyers to provide legal serviced, is the only way to protect the public and uphold “core values” of our profession.  It is as if doctors suddenly decided to get rid of registered nurses, nurse practitioners and the like, because it is better to have no medical help at all than a “lesser” service. 

            We know that is not true for medicine, and we know it is not true for us. As Judge Crotty implicitly found, the Upsolve program will satisfy our profession’s “core values” despite the fact that its Justice Advocates will  not be lawyers.  We will never know if other, equally useful and protective alternative models can be developed unless we create regulatory structures to let people try.


Ronald C. Minkoff

Treasurer, NYCLA

The views expressed here are my own, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers or its Board.

The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, No. 19-1392 & NYCLA’S May 4th Forum on Abortion Rights

As we prepare for NYCLA’s May 4 forum on abortion rights, and the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, No. 19-1392, I was extremely disappointed at certain questions asked and points raised in the oral argument of Dobbs.  Some statements made by certain of the Justices bordered on the disingenuous.

For example, Justice Brett Kavanaugh asked if it weren’t true that major landmarks in Supreme Court jurisprudence resulted from overruling prior precedent.  It is certainly true that Brown v. Board of Education overruled the “separate but equal” doctrine established in Plessy v. Ferguson.  But left unstated was that, if Dobbs does in fact overrule Roe v. Wade, this will be the first time that overruling a major, long-standing individual rights precedent will result in a RESTRICTION, rather than an expansion, of an individual right.  This omission is material.

Similarly, Justice Amy Coney Barrett asked whether so-called “safe haven” laws that permit women to drop off unwanted newborn babies weren’t an adequate alternative remedy to abortion.  As a mother of seven she surely knows the difference.

Even Chief Justice John Roberts referred inappropriately to Justice Blackmun’s private working papers, created in connection with initial drafting of the Roe opinion, and reflecting Justice Blackmun’s early thinking on the “viability” line.  Clearly Justice Blackmun’s thinking evolved between then and issuance of the final opinion.  As lawyers we all know how this evolution occurs during the drafting process.

Just as disingenuous is Mississippi’s overall approach to the case.  The state statute at issue bans abortions after 15 weeks, and Mississippi’s Attorney General filed a certiorari petition seeking to defend that statute.  It was only after certiorari was granted that the state switched its position to a full-on assault on Roe v. Wade and its successor, Planned Parenthood v. Casey.  The Supreme Court need not go so far as to overrule Roe or Casey outright to uphold the Mississippi statute.  Given the switch in the state’s position between the certiorari petition, and briefing and argument, an appropriate outcome could be to dismiss the writ of certiorari as improvidently granted.  Already some states are enacting abortion restrictions that go well beyond what the Mississippi statute allows.

Also relevant is how far any limitations on Roe or Casey might extend to other private and personal rights and liberties.  Would it limit the right to gay marriage recognized less than a decade ago in Obergefell v. Hodges?  Or even the right to contraception and consensual sexual behavior recognized some 60 years ago in Griswold v. Connecticut?  Potential collateral consequences must be considered and understood.

We await the Court’s decision.  In the meantime, please consider registering for our May 4 program.

                                                                                          Richard P. Swanson

                                                                                          Vice President, NYCLA

The views expressed here are my own, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers or its Board.

New York County Courthouse Takes “Centre” Stage

Three Initiatives Breathe New Life and Understanding into 60 Centre Street, One of Manhattan’s Most Beloved Legal Landmarks

By Adrian I. Untermyer, Esq.


The grand colonnade of the New York County Courthouse is illuminated by the evening sun. (Credit: Adrian Untermyer)

NEW YORK, NY – “Manhattan Supreme Court,” as the New York Times’ James Barron succinctly put it[1] , is famous as a backdrop for the television show ‘Law & Order.’” But as the New York County Courthouse at 60 Centre Street (“Courthouse”) celebrates its 95th birthday in 2022, this distinctive, six-sided judicial monolith is finding new relevance with exhibits, art installations, and a lengthy feature in a new legal history of New York County – all while continuing its robust roster of legal duties.

The Courthouse’s ornate interior is replete with architectural detail and references to legal history. (Credit: Adrian Untermyer)

The imposing Courthouse fills out the northeast corner of Foley Square in Lower Manhattan and is home to the Civil Branch and Appellate Term of the Supreme Court of New York County. Other duties include housing chambers of the Hon. Milton Tingling, who serves with distinction as the first Black New York County Clerk and is believed to be the first county clerk in New York State history to first serve as a Justice of the Supreme Court.

Today’s Foley Square site was not always a locus of the law. The Courthouse’s plot previously formed part of a rough-and-tumble tenement community[2]  known as “Five Points.” Up until the 1920s, Manhattan’s Supreme Court resided in a series of other mixed-use buildings, culminating in its penultimate location within the so-called “Tweed Courthouse.” That structure – which remains in use as the headquarters of New York City’s Department of Education – earned its “Tweed” moniker thanks to the antics of William “Boss” Tweed [3] , leader of the Tammany Hall political machine. Tweed and Tammany infamously worked to pad construction costs on the old courthouse and pocket the excesses.

An 1871 cartoon depicts “Boss” Tweed with a head full of cash, in reference to his motivations on the “Tweed” Courthouse job and many others. (Credit: Thomas Nast, Public Domain)

By the early 1900s, with Manhattan’s population burgeoning with new immigrants drawn to new industries, the borough’s courts found themselves overcrowded and overextended. In response, Manhattan civic leader[4] George F. McAneny joined forces with a host of other local luminaries to push for a new courthouse district north and east of City Hall. Today’s Courthouse opened in 1927 as the result of that effort and was handsomely designed by notable Boston-based architect Guy Lowell.

The Courthouse was well-received in its time, and even saw some improvements over the years. In 1936, a thirty-foot-high mural entitled “Law Through the Ages” was completed in the Courthouse’s massive central rotunda. The mural was crafted by artist Attilio Pusterla thanks to Depression-era Works Progress Administration funds, and depicts our society’s legal history in bright, vibrant detail that can still be witnessed today.

The Courthouse’s magnificent rotunda is home to a WPA-era mural depicting what attorney and historian Brad Vogel dubbed the “lawgivers” across the centuries. (Credit: Adrian Untermyer)

Yet time was not kind to the old courthouse. Both fiscal crises and general apathy took their toll, and some portions of the structure deteriorated. The building’s devotees, including the late and longtime New York County Clerk Norman Goodman, and his deputy, John Werner, often found themselves springing into action to solve preservation crises. “We raised as much as $750,000” for repairs, recalled Goodman in a 2009 oral history[5] , who also remembered “put[ting] a stop” to an ill-fated City initiative that would have ripped out the Courthouse’s distinctive Tiffany chandeliers in favor of fluorescent lights.

Elements of the “Magnificent Mr. McAneny” exhibition are on display beneath the “Law Through the Ages” mural in the Courthouse’s rotunda. (Credit: Brad Vogel)

There is plenty of restoration still to be done. Yet today’s post-COVID Courthouse brims with energy and vigor thanks to three recent interventions. First up is a new traveling exhibition located underneath the “Law Through the Ages” mural in the monumental rotunda area. Entitled “Magnificent Mr. McAneny”  and curated by your correspondent, the exhibit traces the aforementioned George F. McAneny’s life and legacy, including his efforts to bring the complex Courthouse project to fruition. For full details and to plan your visit, head to the Friends of George McAneny’s website[6] .

Second-in-line is a triumphant work of public art honoring one of New York County’s forgotten legal heroines: Rebecca Salome Foster, who was known as the “Tombs Angel” for her work ministering arrestees held in New York County pending trial. As the New York Times’ Peter Libbey wrote [7] , Foster lent “[a] sympathetic ear” to the incarcerated, along with “a zeal to investigate their cases and a willingness to plead their cause with judges.”

The “Tombs Angel” tragically passed in the 1902 Park Avenue Hotel Fire. Although mourners installed a nearly thousand-pound memorial in the Criminal Courts to her memory, it was dismantled and nearly lost following that building’s demolition. Luckily, the aforementioned John Werner spearheaded the memorial’s restoration and reinstallation inside the Courthouse’s entrance chamber.

The memorial to “Tombs Angel” Rebecca Salome Foster is now on permanent display in a niche to the right of the Courthouse’s main entrance, and was lovingly restored by A. Ottavino Corp. (Credit: Adrian Untermyer)

To visit it, head up the main outdoor staircase and head to the right-hand alcove just inside the Courthouse doors; to learn more about Foster’s legacy, see John Werner’s recent piece [8] on the Judicial Notice blog.

Last-up in the Courthouse’s newfound resurgence is its prominent place in a new volume published by the Historical Society of the New York Courts. This “History of New York County Bench and Bar” devotes an entire chapter to the long and chaotic sequence of events leading to the Courthouse’s formation. The chapter is authored by New York University’s Dr. Jon Ritter and may be downloaded by visiting the County Legal History page [9] of the Historical Society of the New York Courts’ website and clicking on “New York County.”

Taken together, these three signature initiatives are intended to raise awareness of the Courthouse’s unique role in the history of New York and the nation. One can only hope that the added attention will result in a robust, “tip-to-tail” restoration effort in time for the Courthouse’s 100th birthday in 2027.

The Courthouse’s remarkable fourth-floor Jury Assembly Room is named for the late County Clerk Norman Goodman and features extensive murals depicting the history described within the new “History of New York County Bench and Bar.” (Credit: Adrian Untermyer)

But even if the culmination of these efforts brings just one more visitor to 60 Centre’s hallowed walls, the spirits of George F. McAneny, Rebecca Salome Foster, Norman Goodman, and so many, many others will doubtlessly rest easier – all knowing that the spirit of justice remains alive, well, and kicking on that unforgettable corner abutting Foley Square.


Adrian Untermyer is an attorney, urbanist, and historian specializing in New York’s legal and transportation legacies. He fell in love with 60 Centre Street as a college student living in the neighborhood and worked extensively inside the building over the ensuing years. Untermyer curated the Magnificent Mr. McAneny exhibition inside the Courthouse and served as Editor-in-Chief and co-author of the “History of New York County Bench and Bar.” For further information, please visit www.adrianuntermyer.com.

“Special Duty” & the Scope of Negligence Against Municipalities

On March 23, 2022, in Ferreira v. City of Binghamton, the Court of Appeals handed down a landmark decision expanding the scope of negligence claims against municipalities. 2022 NY Slip Op 01953 at *5-6 (Mar. 23, 2022). The Court of Appeals has long held that to bring a negligence claim directly against a municipality, the plaintiff must establish a “special duty” owed to the plaintiff that was greater than that owed to the public generally.

NYCLA and the National Police Accountability Project submitted a joint amicus brief because the case involved important questions for plaintiffs bringing civil rights claims and regular negligence claims against municipalities. In Ferreira, the Court apparently adopted one of the arguments advanced in our amicus brief to hold that a “special duty” may be established where the police affirmatively created a dangerous situation, and then took direction and control of the dangerous situation they created. Notably, ours was the only brief to make this argument—it was not made by any of the parties or other amici.

The case arose from an early morning “no knock” search warrant executed on August 23, 2011 to search for drugs. Unknown to the police, Jesus Ferreira, an overnight guest, was in the living room on the couch. An officer got scared and shot Ferreira, who was unarmed; while Ferreira survived, he had to have his spleen removed.

At trial in the Federal District Court for the Northern District of New York, the jury found the City of Binghamton liable for negligently panning the raid; but the District Court Judge granted the City’s motion to set aside the verdict, holding that New York’s “special duty” rule foreclosed municipal liability for negligent planning of the raid.

Ferreira appealed to the Second Circuit, which issued a comprehensive 84-page opinion that explained the Binghamton Police Department could have been negligent in planning the execution of the warrant. However, after exhaustively reviewing New York caselaw, the Second Circuit determined that it was conflicting and contradictory, and sent the following certified question to the New York Court of Appeals: “Whether [Plaintiff] has failed to establish the City’s liability for its negligence in planning the [police] raid in view of the fact that, as Ferreira concedes, the City owed no special duty to him beyond the duty of care it owed to the public generally.” Ferreira v City of Binghamton, 975 F.3d 255 (2nd Cir. 2020).

In answering the certified question, the Court of Appeals found that Ferreira had established a special duty (even though he had conceded at trial that that he could not do so). In doing so, the Court apparently expanded the third of three methods for establishing a “special duty.”

Under New York case law, there are three ways to establish a “special duty”:

  1. The plaintiff belonged to a class for whose benefit a statute was enacted; 
  • That the government worker formed a “special relationship” with the plaintiff; and 
  • The municipality took positive control of a known and dangerous safety condition.

Applewhite v Accuhealth, Inc., 995 N.E.2d 131, 135 (2013)

The Court relied on one of the few prior Court of Appeals cases that relied on the “took positive control of a known and dangerous safety condition” method: Smullen v City of New York, 28 NY2d 66 (1971). There, a municipal inspector on a worksite informed the decedent that a trench did not need to be shored just before it collapsed, killing the decedent. The inspector was the only person in authority then present. The Court found that a special duty was established because the inspector took positive action in assuming direction and control over the dangerous situation.

In our amicus brief, NYCLA and NPAP first argued that a “special duty” should not apply in this situation. The Court rejected that argument, but apparently adopted our alternative argument that a special duty could be established under Smullen:

“this Court should find that there is a special duty here because of the dangerous situation the officers, and the City, created. This raid is an example of a municipality “assum[ing] positive direction and control in the face of a known, blatant and dangerous safety violation” (McLean v City of New York, 12 N.Y.3d 194, 199 [2009]). This Court has found municipal liability under the special duty rule when a municipal agent had control over “an ‘inherently dangerous’ instrumentality which is in the same class as an explosive substance, inflammable material, a live electric wire or a spring gun” (Smullen v City of New York, 28 N.Y.2d 66, 71 [1971]). In this case, as in Smullen, municipal officials were physically present at the scene, were aware of that inherent danger, and acted positively in assuming direction and control at the accident site (in Smullen, by representing that an area was safe to enter, and in the instant case by affirmatively creating a dangerous situation through their negligent planning).  Indeed, here, Ferreira was among a limited class of people for whom the City assumed a duty in executing the “no-knock” warrant.”

(Lauren Bonds, Robert Rickner and Elliot Shields, Amicus Brief of the New York County Lawyers Association and National Police Accountability Project p. 27-28, Ferreira v. City of Binghamton, CTQ 2020-00007, available at: https://www.nycla.org/pdf/FerreiravBinghampton-NYCLA-amicus-amicusbrf.pdf). Notably, the Smullen argument was not advanced by the plaintiff.

The Ferreira Court majority applied this method of establishing a “special duty” to the facts before it as follows:

“In a no-knock warrant situation, the police exercise extraordinary governmental power to intrude upon the sanctity of the home and take temporary control of the premises and its occupants. In such circumstances, the police direct and control a known and dangerous condition, effectively taking command of the premises and temporarily detaining occupants of the targeted location. As a result, the municipality’s duty to the individuals in the targeted premises, a limited class of potential plaintiffs, exceeds the duty the municipality owes to the members of the general public. A special duty therefore arises when the police plan and execute a no-knock search warrant at an identified residence, running to the individuals within the targeted premises at the time the warrant is executed. In other words, in those circumstances, the police take positive control of a known and dangerous condition, creating a special duty under the third situation recognized by this Court.”

Id. at 20–21.

            The special duty rule is an issue in every municipal negligence case. By its holding in Ferreira, the Court of Appeals has expanded the ability of plaintiffs to satisfy that rule under the third prong, where the police affirmatively created a dangerous situation, and then took direction and control of the dangerous situation they created.

            In short, Ferreira appears to be a win for civil rights plaintiffs, who may now have an avenue for recovery—a negligence claim directly against the municipality—in circumstances where they would have previously been precluded, for example, because the individual officers were entitled to qualified immunity. This could apply to various scenarios involving police intervention. For example, the dissent points out that all home-entry warrants­­—not just no-knock ones—might qualify since the government is arguably creating a “dangerous safety condition” by executing any home-entry warrant, especially if known dangerous criminals are involved. But it could also apply in the context of police responding to protests and other scenarios where they had time to plan the police response in advance. Importantly, if the plaintiff can show a “special duty” in this manner, they will not have to show “direct contact” with the plaintiff or that any implied promises were made.

Elliot Dolby Shields, Esq.
Co-Chair NYCLA Committee on Civil Rights and Liberties

The views expressed here are my own, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers or its Board.

JUSTICE JACKSON

Hon. Ketanji Brown Jackson has now been confirmed to serve on the Supreme Court to replace Justice Breyer, effective at the end of the Court’s term when Justice Breyer retires.  The vote was 53-47.  Only three Republicans voted in favor.  I guess it’s a good thing that Harry Reid eliminated the filibuster for Supreme Court confirmations, although it cuts both ways given the number of Justices that President Trump and then-Majority Leader Mitch O’Connell were able to push through.

The Republicans promised a dignified confirmation process.  And then the clown car rolled in.  Senator Ted Cruz asked about children’s books that Judge Jackson hadn’t read.  (Judge Jackson won’t turn into Justice Jackson until Justice Breyer retires and she takes the oath.)  Senator Marsha Blackburn asked her to define a woman.  Senator Josh Hawley tried to make her look like she was supporting child pedophilia, and Senator Tom Cotton tried to make her look like she was soft on criminals generally, when she was giving perfectly rational answers to why she rendered specific sentences consistent with federal sentencing guidelines in particular cases.  And, she was attacked for representing indigent criminal defendants when serving as a public defender.  How can she be criticized for doing her job, when the job is mandated by law under Gideon v. Wainwright which established the due process right of indigent criminal defendants to government-funded counsel?  (My former firm, Arnold & Porter, is still proud of the role its founding partner Abe Fortas played, pro bono, in that case more than 50 years ago.)

Judge Jackson did a remarkable job displaying patience and dignity in the face of such antics.  Her demeanor did more to enlighten us as to her qualifications and temperament than the substance of anything asked of her by these four people who themselves were not comporting themselves in the manner one would like to see from a United States Senator.  In fact, three of the four, Senators Cruz, Hawley and Cotton, all went to Harvard Law School in the mid-90s, at the same time as Judge Jackson.  I doubt they behaved the same way in class in Cambridge as they did in the Senate Judiciary Committee hearing room in Washington, D.C.  And yet 43 of their Republican colleagues voted alongside them not to confirm.

Whether one blames the confirmation hearings for Robert Bork or Clarence Thomas or Brett Kavanaugh or anyone else, the fact is that the Senate confirmation process for Supreme Court nominees is broken.  The Biden Commission on the Supreme Court pointed this out in its report this past fall, and nothing has changed.  Senators Cruz, Blackburn, Hawley and Cotton were playing to the gallery, and specifically the portion of the gallery that is already on their side and doesn’t need to be persuaded.  It was a game, a stunt, political theatre, sound and fury signifying nothing.  The American public is entitled to better.

                                                                                          Richard P. Swanson

                                                                                          Vice President, NYCLA

The views expressed here are my own, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers or its Board.

The Supremacy of Federal Law Nullified by SCOTUS Decision to Let Texas Abortion Bounty Hunter Laws Stand

I am extremely disappointed at the Supreme Court’s decision in the Texas abortion case, Whole Women’s Health v. Jackson, No. 21-463.  The case concerns Texas’s six-week abortion ban, which can’t be enforced by the state, its Attorney General or local prosecutors, but only by private bounty hunters seeking a $10,000 mandatory penalty plus attorneys’ fees.  The six-week ban plainly violates Supreme Court abortion precedent as it presently stands.  The statute has apparently accomplished its desired effect, as almost all abortion clinics in the nation’s third-largest state by population have closed.

The Supreme Court in its decision allowed the Texas statute to continue in force, at least for the moment.  What Texas has successfully done is to nullify prior Supreme Court precedent, and thus the supremacy of federal law, in a fashion which reminds us of the nullification debates that preceded the Civil War more than 150 years ago.  The supremacy of federal law is a basic part of American jurisprudence and is set forth in the Constitution’s Supremacy Clause.

The Supreme Court also sharply limited the parties who can be sued to enforce federal law.  Ever since the 1890s, when the Supreme Court decided the case of Ex Parte Young, an accepted means of challenging unconstitutional action was to file a suit naming the state parties allegedly taking that action, to seek to enjoin them.  Here, given the bounty hunter elements of the Texas statute, those parties would seem to be the state court judges and clerks charged with hearing the bounty hunters’ cases, since no bounty hunters can as yet be identified.  The statute has successfully coerced abortion providers to cease their activities out of fear of being sued so no bounty hunter cases have yet been brought.  Instead, the Supreme Court allowed a remedy only against Texas medical licensing professionals, and it is unclear how they would actually become involved in an abortion dispute.  In this fashion the Supreme Court has undermined the Ex Parte Young doctrine, which has been an accepted part of federal jurisprudence for more than 125 years.  All law students study the case.

By accepting the bounty hunter elements of the Texas statute, the Supreme Court also encouraged a kind of vigilante justice.  Even federal statutes with elements of private enforcement, such as the False Claims Act, have federal executive oversight.  It is unprecedented to outsource executive enforcement in this fashion.

The Supreme Court has remanded the case back to the lower courts for further proceedings, so the case may yet come to the Supreme Court again for review.  I hope that if it does the Supreme Court will correct what I regard as a seriously misguided approach.

So far, however, the results are not encouraging.  Instead of sending the case back to the district court, the Fifth Circuit asked a certified question to the Texas Supreme Court concerning the bounty hunter and other remedial issues underlying the Texas statute.  The resulting delays will have real and tactical consequences both, as the Texas case can be expected to languish while the Supreme Court considers and decides Dobbs, the Mississippi challenge to Roe v. Wade which involves a 15-week abortion ban.  When the Texas plaintiffs complained to the Supreme Court about the Fifth Circuit’s handling of the matter on remand, the Court summarily rejected the challenge over a strong dissent by Justice Sotomayor.  Thus, at the moment, the Texas case is tied up in procedural knots, while there are no abortions being conducted in Texas, when the existing controlling precedent, Roe and Casey, require them to be allowed.  It is difficult to look on this set of circumstances, both legislatively and judicially, without cynicism.  The rule of law deserves better.

                                                                                          Richard P. Swanson

                                                                                          Vice President, NYCLA

The views expressed here are my own, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers or its Board.

REALLY, JUSTICE AND MRS. THOMAS?

REALLY, JUSTICE AND MRS. THOMAS?

After four years of a law- and norm-breaking presidency, followed by denial and lies about the results of an election, followed by an attempted coup, followed by continued denial and lies and also a trend simply to toss congressional subpoenas in the trash and disregard them, I thought my capacity for shock, amazement, revulsion and disgust were completely tapped out.  But I was wrong.  Just when I thought there couldn’t possibly be THAT MUCH more law- and norm-breaking, along come news reports that Justice Thomas’s wife Ginny was promoting QAnon conspiracies and urging President Trump’s chief of staff to reject the results of the election and mount a coup.  She may not have intended it to be a violent coup, as was attempted, fortunately unsuccessfully, and even incompetently, on January 6, 2020.  But make no mistake about it, it was a coup that she was advocating.

How can the wife of a Supreme Court Justice advocate the overthrow of our democracy?  Has she no sense of propriety, or shame?  And how could Justice Thomas not take steps to stop her?  Outright lies are not a good foundation for a sound judicial system.  Nobody is the keeper of their spouse, but when a spouse of a sitting Justice on the Supreme Court does something wrong, the Justice inevitably suffers taint by association at a minimum.  And we know that Ginny Thomas has long held extreme right-wing views, associating with portions of the Republican Party that also subscribe to those views for whom Justice Thomas has sometimes served as a fellow traveler.  We’re not talking about the Federalist Society here.  We’re talking about crazy right-wing nut jobs.  Notwithstanding their theories, not a single court in the entire United States of America found ANY evidence of election fraud sufficient to reverse the results of the last election.   

How can we have confidence in our government and institutions when this goes on?  I may not always agree with the substance of Chief Justice Roberts’ rulings, but I do believe he is doing his best to try to uphold the legitimacy of our Supreme Court.  But he sounded like a naif when he said, following these disclosures, that he had confidence in the ability of his fellow justices to decide when they were sufficiently conflicted to have to recuse themselves.  Justice Thomas has been deciding voting cases, and cases dealing with issues arising out of the January 6 attempted coup!

The core standard for recusal is facts and circumstances which might cause a reasonable person to doubt a Justice’s impartiality.  Each Justice is allowed to assess that for himself or herself, which frankly is stupid.  If you’re conflicted you are the worst person to make that assessment.  That’s why law firms have conflict committees.  It is time for the Supreme Court to hold itself to the same standard all other judges and lawyers are held.  We need a formal ethical code applicable to the Supreme Court, where Justices are not allowed to make their own recusal determinations.  I think I’m a pretty reasonable person, and I know I question Justice Thomas’s impartiality at this point.  This goes well beyond substantive disagreement with particular outcomes.

We also need a thorough investigation, by the January 6 committee or another congressional body, of the full scope of Mrs. Thomas’s advocacy, and Justice Thomas’s role, if any, in supporting it, as well as the knowledge that he had about it.  The disclosure was likely the result of a leak from the January 6 committee, so I get that may not be the best place to investigate what it was that was leaked. 

We also need a Justice who has a sense of propriety and shame on public exhibition. 

We may get the first two of my suggestions, but I very much doubt we’ll get the third.

I am perfectly well-aware that, as we head into the midterm elections, President Biden and the slim majority the Democrats have in both houses of Congress are not as popular as they would like.  Indeed there are many things about what those Democrats have been advocating that I strongly disagree with.  But I also think that it is undeniable that the Republicans have not yet paid penance for their systematic attempts to undermine our democracy sufficient that we should be prepared to trust them so quickly to hold power yet again.  They need to spend more time in the penalty box, and to show that they understand this is a six minute if not a game major penalty, not a two minute minor.  The revelations about Justice and Mrs. Thomas are unfortunately a part of the Republicans’ failure to acknowledge and understand the full scope of their wrongdoing.

I will also say, as a former partner of Arnold & Porter, that this appears to be much worse than what got Abe Fortas booted from the Supreme Court more than 50 years ago.   

I am shocked, amazed, revolted and disgusted.  And I fear for our democracy.  When a sitting Justice on the Supreme Court of the United States and his spouse are so closely associated with such profoundly anti-democratic views, supported by outright lies, how can one be confident that our democracy will prevail?

                                                                                          Richard P. Swanson

                                                                                          Vice President, NYCLA

The views expressed here are my own, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers or its Board.

THE SUPREME COURT IS A THREAT TO DEMOCRACY

On February 10 I blogged about the Supreme Court’s 5-4 decision to grant a stay in the Alabama gerrymandering case, where a three-judge District Court found that a state-approved redistricting map was intended to dilute Black votes and ordered that new maps be drawn.  The Supreme Court stayed that ruling, with Justice Kavanaugh stating that the new maps would be too close to the mid-terms.  I was critical of that decision because utilizing the Court’s logic there could never be a time to challenge an explicitly discriminatory map.  Census data necessary to draw the maps was released in November, and three months to draw the maps and then have the opportunity to challenge them is hardly an undue length of time, so if the maps can’t be challenged now, then when?

This past week the tables were turned, in Pennsylvania and North Carolina.  In each state a Republican-drawn map was stricken by each state’s Supreme Court, for extreme gerrymandering, and a new court-ordered map substituted.  The Republicans sought a stay from the Supreme Court, and the Supreme Court denied the stay, again reasoning that the changes which the Republicans sought were too close to the midterms.  Justice Kavanaugh apparently realized he had to be consistent and follow precedent to that degree.  The press trumpeted it as a great victory for Democrats, which in a sense it was.  The phrase “hoisted by his own petard” comes to mind.

If that were all there were to the story it would be straightforward.  But Justice Alito, in dissent, authored an opinion which contains very dangerous seeds indeed.  He wrote approvingly, for four justices, about the so-called “independent legislature” theory.  Under that theory, the decisions of state legislatures as to things like drawing district lines, passing restrictions on voting and similar acts can never be challenged.  Justice Alito said on that basis he would have overruled the decisions of the Pennsylvania and North Carolina Supreme Courts to strike the gerrymandered maps. 

The basis for the theory is scanty.  The Electors Clause in the Constitution says that “each state shall appoint, in such manner as the Legislature thereof my direct, a Number of Electors,” and the Elections Clause, covering congressional elections only, says that “the times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof,” subject to elections legislation passed by Congress.  It is hard to tease out from this language that state legislatures, and the governors they may support, can do whatever they want. 

And yet, Republican lawyers have been using these provisions to argue that state legislatures have unfettered discretion in election matters.  That was one of the theories proffered in Texas v. Pennsylvania, where many Republican-controlled states and more than 100 House Republicans attempted to invoke the original jurisdiction of the Supreme Court after the 2020 election, to challenge in part state judicial rulings regarding the election and how it was conducted during the pandemic.

Chief Justice Rehnquist wrote in Bush v. Gore that state legislatures have broad authority to decide how electors shall be chosen, and he warned that “post-election state court actions do not frustrate the legislative desire.”  Bush v. Gore was hardly the Supreme Court’s finest hour.  The Supreme Court essentially took it upon itself to appoint a President who had lost the popular vote, in a decision that the Justices recognized as sufficiently questionable that they told us never, ever to cite it as precedent.  But Justice Alito echoed this language when he said in this case that the Elections Clause “could have said that these rules are to be prescribed ‘by each state’, which would have left it up to each State to decide which branch, component or officer of the state government should exercise that power.”  He went on to say:  “But that is not what the Elections Clause says.  Its language specifies a particular organ of a state government, and we must take that language seriously.”  In other words, whatever a state legislature wants to do in election matters, Congress and the Supreme Court of the United States must accept.  Justice Alito said that “If the language of the Elections Clause is taken seriously, there must be some limit on the authority of state courts to countermand actions taken by state legislatures when they are prescribing rules for the conduct of federal elections.”            

The implications are frightening.  If the Wisconsin, Georgia, Michigan, Arizona or Pennsylvania legislatures had passed bills after the 2020 election appointing Trump-supporting electors, overriding what was determined to be the popular vote result in each state, would Justice Alito permit that to occur?  Would that action be subject to any judicial review in the state or federal courts?  Whatever happened to Marbury v. Madison?  And if you want to be a textualist and rely primarily on language, how can a clause in the Constitution dealing with Congressional elections be stretched to cover all elections?  The maps, after all, affected more than just congressional re-districting. 

It is certainly true that states can, in theory, select their own methods for designating electors.  All 50 states do so by tabulating the popular vote, which has been true since the Jacksonian era (and keeping in mind that women and enslaved persons weren’t allowed to vote then).  Can we really stretch the language of the Elections Clause to preclude any kind of role for local or state-wide elections officials, or for judicial review?  The Constitution also guarantees each state a republican form of government.  Isn’t judicial review a basic part of that form for more than 200 years?

As the reader can tell, I think the “independent legislature” theory is preposterous.  It is textualism run amuck, showing why textualism is not and never can be a comprehensive theory of constitutional interpretation.  It actually conceals the substantive policy choices being made in its name.  It doesn’t take into account that the text of the Elections Clause pertains to congressional elections only, or that actions of a state legislature are bound by and subject to law; subject to being administered and implemented by the state’s executive branch and other elected and appointed state and local officials; and that under our system all such actions are subject to judicial review.  Did the Elections Clause really have to say all of that for Justice Alito to get it?  Do we really need to have a Constitution written like the Code of Federal Regulations or the Internal Revenue Code?  The genealogy of the theory, which includes Bush v. Gore, doesn’t exactly inspire confidence either. 

The problems and politics underlying this approach are also why I am skeptical about proposals to amend the Electoral Count Act.  The Act was passed in the late 1880s, in the wake of another contested presidential election where the winner was appointed, albeit through a different mechanism than Bush v. Gore (and also involving the end of Reconstruction and an implicit endorsement of Jim Crow that had already started and would continue).  The Act does have certain ambiguities which Donald Trump and his supporters attempted to exploit.  Most proposals to amend the Act are designed to make the January 6 process of counting the electoral votes more mechanical and less subject to objection before Congress.

The problem I have with that approach is that it ignores what could happen in the states preceding the count in Congress.  If a state legislature were to pass a bill rejecting its popular vote and designating the other side’s slate of electors, under Justice Alito’s theory would that act be subject to judicial or any other kind of review in any court or other body in the land?  Could Congress consider that in the next January 6 proceeding?  The fact that Senator McConnell has said he favors cooperation across the aisle to amend the Act also gives me pause.  He is a brilliant strategist, and I don’t put it past him to have this goal as a part of his plan.

In short, the Republican Party, and this Supreme Court, are real threats to democracy.  It is ironic that as I write this we are working hard to unite all our allies to support Ukraine in its efforts to preserve its nascent democracy because that is what we say we believe in throughout the West.    

                                                                                          Richard P. Swanson

                                                                                          Vice President, NYCLA

The views expressed here are my own, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers or its Board.

WHEN YOU REALLY WANT TO DO SOMETHING UNCONSTITUTIONAL, REMEMBER TO ASK THE SUPREME COURT FOR A STAY

The Supreme Court has once again raised questions about its use of the shadow docket to grant stays in cases where the challenged actions were clearly unconstitutional based on existing decisional law, except the Supreme Court, by granting stays, permitted the unconstitutional actions to continue.  How did this happen?

In the Alabama voting rights case, which I blogged about here on February 10, the lower court held an election district map intentionally and improperly diluted Black votes through extreme gerrymandering, in violation of the Voting Rights Act.  The Supreme Court stayed that ruling while it reviews the case, on the ground that the possible map adjustments ordered by the court below came too close to this year’s midterms.  I believe that ruling was substantively incorrect, as I argued in the previous blog post.  There could not possibly be an earlier litigation given the timing of release of census data necessary for redistricting, which only happened in November; the time necessary to use that data to draw the maps; and then the time to litigate to challenge the maps.  If not now, then when?

Additionally troublesome, however, is the standard that the Supreme Court used in granting a stay.  Justice Kavanaugh said that to be granted a stay, a petitioner “ordinarily must show (i) a reasonable probability that this Court would eventually grant review and a fair prospect that the Court would reverse, and (ii) that the applicant would likely suffer irreparable injury absent the stay.”  That is, quite simply, not a correct statement of the law, unless he has the power to change the law in a concurrence.  The standard for a stay ordinarily is a STRONG likelihood of success on the merits; irreparable harm absent a stay; that the petitioner’s harm outweighs the harm from granting a stay; and that the public interest would be furthered by the granting of a stay.  Innumerable cases, in the Supreme Court and the Courts of Appeal, could be cited for this basic proposition. 

Reading the two standards together, it is easy see how the standard articulated by Justice Kavanaugh is far easier to meet.  Strong likelihood of success is more stringent than a reasonable probability; and there is no mention by him of balancing the harms, which is particularly important here.  Granting the stay gives the Republicans the gerrymandered map that they want, but at the cost, as the lower court found, of diluting Black votes.  Whose harm is more irreparable, or more important?

It wasn’t as if the Court simply overlooked the point.  Chief Justice Roberts, in a dissent to the stay application, said that the lower court’s ruling was plainly a correct interpretation of vote dilution under existing law and precedent, and Justice Kavanaugh made no effort to dispute that.  If so, how can you say there is even a likelihood of success, let alone a strong likelihood, unless the five conservative Justices (six, minus the Chief), have already decided to circumscribe existing law under the Voting Rights Act, before briefing let alone argument.  And how can you look at only one side’s position on irreparable harm?  Certainly Blacks whose votes are diluted have irreparable harm.  So, stay practice, including the misapplication of the stay standard, may result in permitting illegal, if not even outright unconstitutional, behavior.

Something similar happened in the Texas bounty hunter abortion case, which I’ve also blogged about.  In that case there was full briefing and argument, on the issue of remedies for a six week abortion ban, which is plainly unlawful under existing law (Roe and Casey).  After the Court’s decision, there was a remand, and the Fifth Circuit certified a question about remedies under state law to the Texas Supreme Court.  In the meantime, the plainly unconstitutional statute continued in place.  The plaintiffs took issue with how the Fifth Circuit was handling the remand, seeking in the Supreme Court to stay the certified question proceeding and to compel the case to be sent back to the District Court.  The Supreme Court denied that application, and between that stay denial and the manner in which the Fifth Circuit is handling the matter a plainly unconstitutional statute is continuing to be enforced.  We all know we’re awaiting the Dobbs decision which may significantly alter the constitutional law on abortion, but at the moment a six week ban is unlawful.

What the two cases do have in common is the fact that many observers believe the Supreme Court is prepared to restrict both abortion and the Voting Rights Act.  The Court’s rulings on stay applications may simply presage that.  But that is also not a good thing.  The Court shouldn’t be anticipating intended changes in the law in such a fashion.  What is the purpose of briefing and argument if the issue has already been pre-judged?  And how can the Court retain institutional legitimacy if it can be perceived to have pre-judged, and even to have a jurisprudential agenda?

Richard P. Swanson

                                                                                          Vice President, NYCLA

The views expressed here are my own, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers or its Board.