Courthouse Sanctuary for litigants

On December 19, 2019, a New York federal district court judge denied the U.S. government's motion to dismiss a lawsuit challenging the constitutionality of the U.S. Department of Homeland Security's Office of Immigration and Customs Enforcement [ICE] attempts to effect arrests in court houses located in New York State.

U.S. District Judge Jed Rakoff declined to dismiss a lawsuit challenging the constitutionality of ICE's efforts to effect such arrests. Judge Rakoff rejected the government’s arguments that [1] implied the arrests were “none of this Court’s business" and [2] that even if it were within the jurisdiction of the court, "the common law privilege against courthouse arrests doesn’t apply to ICE." Judge Rakoff's decision is posted on the Internet at: https://www.sdnyblog.com/files/2019/12/19-Civ.-8876-2019.12.19-Gonzalez-v.-ICE.pdf

Below is a portion of New York State Supreme Court Judge Hackeling's ruling that, in pertinent part, addresses the doctrine. Judge Hackeling explained:

"Despite antagonistic dicta to the contrary, most modern era precedent dealing with the issue of "Courthouse Sanctuary" from service of process has held that New York State residents receive no such immunity protections. (Baumgartner v Baumgartner, 273 App Div 411 [1st Dept 1948]; Department of Hous. Preserv. {**3 Misc 3d at 343}& Dev. of City of N.Y. v Koenigsberg, 133 Misc 2d 893 [Civ Ct, NY County 1986]; Ford Motor Credit Co. v Bobo, 1 Misc 3d 901[A], 2003 NY Slip Op 51464[U] [Nassau Dist Ct, Miller, J.].) These cases hold that the courthouse sanctuary is only available to foreign state residents who come into New York's courts to contest jurisdiction. This doctrine has been slightly expanded to include New York residents who enter the jurisdiction of a New York court of limited territorial jurisdiction to contest jurisdiction. (See Palazzo v Conforti, 50 NYS2d 706 [Civ Ct, NY County 1944]; Singer v Reising, 154 Misc 239 [Mun Ct, Queens County 1935].)

"The Baumgartner Appellate Division panel (at 413) also acknowledges a limited "Courthouse Sanctuary" rule for New York residents if such service would "constitute a disturbance directly tending to interrupt the proceedings of the court or to impair the respect due to its authority." This rule by itself would not be applicable to the instant case as service of process was effected in the courtroom but outside the court's presence and in between calendar calls.

"State Residency Immunity Distinction?

"The English common law made no New York state residency distinction. The doctrine of immunity from arrest of a litigant attending a trial of an action to which he is a party found early recognition and dates back to the Year Book of 13 Henry IV, I, B (Sampson v Graves, 208 App Div 522 [1st Dept 1924]). This is for the obvious reason that England had no sovereign states. The privilege is not a creature of statute, but was created and deemed necessary for the due administration of justice. (See Matthews v Tufts, 87 NY 568, 570 [1882], citing Van Lieuw v Johnson, Ct App, Mar. 1871 [unreported].)*

The logical question now arises, exactly when did New York's appellate courts recognize a residency distinction for application of the "Courthouse Sanctuary"? The answer is that the Court of Appeals never established such a rule. In contra point of fact, the Court of Appeals has opined that "[i]t is the policy of the law to protect suitors and witnesses from arrests upon civil process while coming to and attending the court and while returning home. Upon principle as well as upon authority their immunity from the service of process for the commencement of civil actions against them is absolute eundo, morando et redeundo"* (Person v Grier, 66 NY 124 [1876]).

"In this unanimous opinion, the Court of Appeals expressly addressed the New York State resident immunity distinction and established in its dicta (at 126) that "whether any distinction should or does in fact exist, is at least doubtful. This immunity is one of the necessities of the administration of justice, and courts would often be embarrassed if suitors or witnesses, while attending court, could be molested with process." It is noted that Person involved a foreign state resident. In establishing the sanctuary doctrine, the Court stated that (at 125) "this rule is especially applicable in all its force to suitors and witnesses from foreign States . . . ." By direct implication, the Court of Appeals is also applying the protective rule to New York residents.

"The basis of the "Courthouse Sanctuary" rule is that parties should be allowed to contest jurisdiction without submitting to it. "Allowing Re-service . . . makes a mockery of the traverse hearing and essentially allows the plaintiff to use a defective default judgment as a weapon to compel the defendant to submit to service of process." (Ford Motor Credit Co. v Bobo, supra at *2.) The location of an individual's residence does little to legitimize such a mockery. Absent the compulsion of clear controlling precedent, this court will not condone such a situation."

A number of immigration related LawBlogs are posted on the Internet at:
https://blawgsearch.justia.com/blogs/categories/immigration-law

* As memorialized by the Latin phrase eundo, morando, et redeundo  [Latin]  [Going, remaining, and returning], a phrase was used to describe a person (for example, a witness or legislator) who is privileged from arrest while traveling to the place where assigned duties are to be performed, while remaining there, and while returning. 

Judge Hackeling decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2004/2004_24045.htm

The CyberCemetery

The University of North Texas Libraries and the U.S. Government Printing Office, as part of the Federal Depository Library Program, created a partnership to provide permanent public access to the Internet sites and publications of defunct U.S. government agencies and commissions. 

Named the "CyberCemetery" by early users of the site, information about the collection is posted on the Internet at: https://library.unt.edu/digital-projects-unit/web-archiving/

Click on https://digital.library.unt.edu/tour/ to take a digital tour of the Library and explore many of the features and capabilities of the Digital Library including the opportunity to navigate through each set of examples by clicking on the text links or the sides of the images. 

The URL set out below links the reader to the most recent additions to the Library's collection: https://digital.library.unt.edu/explore/collections/GDCC/#latest

First Amendment protections do not extend to agency fee payors in a collective bargaining unit established pursuant to the Taylor Law

The New York State Thruway Authority [Authority] initiated a layoff involving certain thruway employees, including individuals that were "agency fee payors" as permitted by Article 14 of the Civil Service Law, typically referred to as the Taylor Law.  Danny Donohue, as President of the Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, and others [Plaintiffs] filed suit against the Authority alleging that the termination of union-represented employees violated the employees' First Amendment right of association. 

In the course of the litigation the Federal District Court, Southern District of New York had certified the following question to the United States Circuit Court of Appeals, Second Circuit, citing its decision in State Employees Bargaining Agent Coalition v. Rowland:*

Are 'union-represented individuals during the bargaining process' — consisting of both union members and agency fee shop payors [AFPs]** — a protected class, such that employment decisions based on employees' union representation during collective bargaining are subject to strict scrutiny?

The Circuit Court of Appeals, considering its decision in Rowland in which it ruled that union activity is protected by the First Amendment right to freedom of association and that heightened scrutiny applies to employment decisions that target an employee “based on union membership,” held that Rowland did not extend to AFPs represented by an employee organization for the purposes of the Taylor Law.

The court found that First Amendment protections applied to union members but did not extend to AFPs based on union representation alone, explaining "AFPs who affirmatively disassociated with a union by objecting to paying for a union's political and ideological projects but who continued to be represented by the union during collective bargaining could not claim that an adverse employment action interfered with their right to associate with the union. In extending Rowland to all AFPs purely because they were represented by a union in collective bargaining, the District Court went too far."

Accordingly, the Circuit Court vacate and remand the district court’s order as it applied to AFPs but affirm the District Court’s order as it applied to union members.

* See 718 F.3d 126.

**  In accordance with the Supreme Court's decision in Janus v. American Federation of State, County, and Municipal Employees Council 31, 138 S. Ct. 2448  a union may no longer collect any fee from an AFP absent the AFP's affirmative consent.

The decision is posted on the Internet at:
https://law.justia.com/cases/federal/appellate-courts/ca2/17-2832/17-2832-2019-11-18.html

Publication of its investigation report by the New York City Office of Special Commissioner of Investigations on the Internet challenged by a party named in the report

An investigation report prepared by the New York City Office of Special Commissioner of Investigations [SCI] substantiated allegations that a contractor [Plaintiff] had engaged in "theft of services" and recommended that he be deemed ineligible to work as a contractor for New York City Department of Education [DOE]. The report was subsequently posted by SCI on its Internet site. Plaintiff then initiated a CPLR Article 78 seeking a court order compelling SCI to remove the report from its website.

Supreme Court denied the petition filed by Plaintiff and dismissed the proceeding. The Appellate Division unanimously affirmed the lower courts ruling. The Appellate Division ruling that SCI's decision not to remove the report upon Plaintiff's request was not arbitrary and capricious, citing Matter of Peckham v Calogero, 12 NY3d 424. The court also noted that the record demonstrated that SCI considered Plaintiff's "refusal to participate in its investigation, the nature of the conduct it substantiated, and the public interest in exposing the misconduct."

Thus, said the court, "[i]t was not unreasonable for SCI to conclude that [Plaintiff's] untimely rebuttal, submitted to the DOE months after it adopted SCI's recommendations, and the almost 10 years that passed from the report's publication before [Plaintiff's] current request, did not compel the report's removal," Further, said the Appellate Division,  the Special Commissioner is authorized to "issue such reports regarding corruption or other criminal activity, unethical conduct, conflicts of interest, and misconduct, that he or she deems to be in the best interest of the school district," sustaining the SCI's power to publish it report on the Internet.

The decision is posted on the Internet at:  http://www.nycourts.gov/reporter/3dseries/2020/2020_00033.htm

Making it right notwithstanding two wrongs

In the event two or more employees are found guilty of being involved in a wrongdoing, one individual might decide to sue one or more of the other wrongdoers for redress or damages.

In a case involving Person A lending some money to a friend, Person B. Person B later refused to repay a loan contending that the repayment of the money is not judicially enforceable because the loan was funded by the proceeds of illegal gambling, which resulted in Person A suing Person B seeking a court order mandating that Person B repay the loan to Person A.

The Court of Appeal, affirming a ruling by the Appellate Division, held:

'The doctrine of waiver does not preclude consideration of [Person B's] challenge here to the enforceability of the loan on the ground that it was funded by illegal gambling proceeds. Nevertheless, that defense was properly rejected on the merits. Given our strong public policy favoring freedom of contract, agreements are generally enforceable by their terms (159 MP Corp. v Redbridge Bedford, LLC, 33 NY3d 353, 359-361 [2019]). There is an affirmed finding, supported by the record, that the parties entered into a bona fide loan agreement and the facts do not support voiding the agreement on public policy grounds.

"Neither the terms of the agreement nor [Person A's] performance — i.e., loaning money to a friend — was intrinsically corrupt or illegal. Although the loan was funded by the parties' illegal gambling operation (for which both were criminally prosecuted), the record does not support a characterization of their conduct as "malum in se, or evil in itself" (Lloyd Capital Corp. v Pat Henchar, Inc., 80 NY2d 124, 128 [1992]) and the source of funds used for a loan is not typically a factor in determining its validity.

"[Person B] argues the agreement should be deemed unenforceable because the courts should not assist a party in profiting from ill-gotten gains. But, here, where both parties were involved in the underlying illegality, neither enforcement nor invalidation of the contract would avoid that result. Indeed, if the loan is not enforced, [Person B] receives a windfall despite his participation in the criminal acquisition of the funds. We have been reluctant to reward "a defaulting party [who] seeks to raise illegality as a sword for personal gain rather than a shield for the public good'" (id., quoting Charlebois v Weller Assoc., 72 NY2d 587, 595 [1988]; cf. McConnell v Commonwealth Pictures Corp., 7 NY2d 465 [1960]). Although we do not condone [Person A's] illegal bookmaking business, for which he was prosecuted and fined, the circumstances presented here do not warrant a departure from this tenet."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_09058.htm