Seattle sues over threat to withhold funds from ‘sanctuary cities’


Constitutional Law


Seattle Mayor Ed Murray

Seattle Mayor Ed Murray. Photo by Ryan Georgi, via Wikimedia Commons

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The city of Seattle has sued President Donald Trump and Attorney General Jeff Sessions over their threat to withhold grants to “sanctuary cities.”

The federal lawsuit (PDF) argues violation of the Tenth Amendment’s reservation of powers to the states and the Constitution’s spending clause, the Seattle Times reports. The suit also seeks a declaration that the city is complying with federal law.

Seattle argues the 10th Amendment bars the federal government from enforcing federal programs, and the spending clause bars the government from withholding funds that are not germane to the program at issue.

President Trump signed an executive order in January calling for the Justice Department to withhold federal grants from cities that fail to comply with a federal law requiring local law enforcement to share immigration information with the federal government. Sessions warned Monday that he would be taking action.

Seattle police officers and city employees are barred from collecting information about immigration status. There is an exception, however, when police officers believe an individual has returned to the United States after previously being deported, and has committed a felony. City employees are also directed to cooperate with enforcement of immigration laws.

The city argues it has standing to sue, though it has not been specifically targeted, because the executive order had created uncertainty and made it difficult to formulate a city budget. The suit argued that past statements by Trump suggest Seattle will be treated as a sanctuary jurisdiction, the Washington Post reports.

During the campaign, the suit says, Trump referred to a 2007 Seattle homicide while referring to his dislike for sanctuary cities. He also told an interviewer from a Seattle radio station who asked about the city’s sanctuary city policy that “sanctuary cities are over.”

One Supreme Court decision cited in the case is National Federation of Independent Business v. Sebelius. The decision upheld Congress’ authority to impose an insurance mandate in the Obama administration’s health care law. Seattle cites another aspect of the Supreme Court decision holding that the federal government could not withdraw existing Medicaid funds from states that refuse to go along with the expansion requirements.

Only three justices endorsed the idea that Medicaid funds could not be withdrawn, but the view prevailed because four dissenting justices would have struck down the law in its entirety for exceeding federal limits on federal power.

Seattle is represented pro bono by Mayer Brown.

The city of San Francisco has also sued over the executive order.


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North Carolina governor signs repeal of controversial bathroom bill

Legislation & Lobbying


transgender bathroom

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Updated: The North Carolina General Assembly on Thursday voted to repeal a law that requires schools and other government-controlled facilities to restrict multiple-occupancy bathrooms to people of the same biological sex. North Carolina Gov. Roy Cooper said that he has signed the bill, CNN and the Associated Press report.

“For over a year now, House Bill 2 has been a dark cloud hanging over our great state,” Cooper said. “It has stained our reputation. It has discriminated against our people and it has caused great economic harm in many of our communities.”

The so-called bathroom bill had also barred local governments from granting bias protections that extend further than state law—a provision that had the effect of barring local protections for gay and transgender people. The new law approved by lawmakers on Thursday creates a moratorium on local nondiscrimination ordinances that lasts through 2020, the Washington Post and the New York Times reported

When Cooper was serving as the state’s attorney general, he announced his office would not defend the bathroom law. The Justice Department had claimed in a suit that the bill violated federal laws regarding discrimination in education and employment. The American Civil Liberties Union also sued.

Updated at 3:39 p.m. to note report that Cooper had signed the bill.


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North Carolina becomes first state to require lawyers to reveal innocence evidence after conviction


Legal Ethics



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North Carolina has adopted an ethics rule that requires lawyers in private practice, as well as prosecutors, to reveal evidence of innocence that they discover after a conviction.

Bruce Green, a professor at the Fordham University School of Law, told the Associated Press that North Carolina is the first state to apply the disclosure rule to lawyers in private practice. The North Carolina Supreme Court approved the ethics rule earlier this month.

Sixteen other states require mandatory reporting by prosecutors after a conviction, according to the article.

The rule requires lawyers to disclose credible evidence or information if it creates a reasonable likelihood that a convicted defendant did not commit the offense for which they were convicted. The rule says the information should be disclosed to prosecutors and public defenders.

Exceptions in the rule say private practice lawyers don’t have to disclose information that would harm the interests of their clients or that would violate attorney-client privilege.

“It’s mandatory, but then it carves out so much that it’s hard to know when it will apply,” Green told the AP.


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Lawyers mimic defendant BuzzFeed in motion with clickbait heading and adorable kitten photo


Trials & Litigation


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Lawyers suing BuzzFeed for alleged defamation tried using the defendant’s clickbait tactics in a motion seeking to keep the case in Miami federal court.

The motion is entitled; “Six ways BuzzFeed has misled the court (number two will amaze you) … and a picture of a kitten.” Law.com has a story (sub req.).

There actually is a picture of the kitten, in an exhibit. It belongs to one of the lawyers suing BuzzFeed, Evan Fray-Witzer of Boston.

“We try to keep our filings with the court interesting, though this is about as interesting as we’ve gotten,” Fray-Witzer told Law.com. “We take the case very seriously, but it was hard to believe that even BuzzFeed was serious about this motion. Rather than get annoyed about it, we decided to inject a little levity. And a kitten.”

BuzzFeed was not amused. “We’re surprised by the plaintiffs’ desire to make light of this matter, and we are confident in our motion to dismiss,” said spokesman Matt Mittenthal in an email to Law.com.

The suit was filed on behalf of a Russian technology executive, Aleksej Gubarev, who claimed he was defamed by publication of a private security company’s dossier that accused him of involvement in hacking Democratic party leaders.

BuzzFeed argued in the motion to dismiss that the suit should not have been filed in Florida.


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Law deans were unaware of judge’s largesse in wrongful foreclosure case


Legal Education



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Some law deans were surprised to learn that a federal bankruptcy judge had decided to give their schools $4 million each in punitive damages awarded in a California couple’s wrongful foreclosure case against Bank of America.

U.S. Bankruptcy Judge Christopher Klein of Sacramento awarded $1 million in actual damages and $45 million in punitive damages in the suit by Erik and Renee Sundquist, who endured a “mortgage modification charade” and “a Kafkaesque nightmare” that included a stay-violating foreclosure. Law.com covered the decision (PDF).

Klein directed that the Sundquists are to keep $5 million of the punitive award and deliver $10 million to the National Consumer Law Center, $10 million to the National Consumer Bankruptcy Rights Center, and $4 million each to the five public law schools in the University of California system (Berkeley, Davis, Hastings, Los Angeles and Irvine).

The contributions are to be used for education in consumer law and consumer legal services.

Some law deans who spoke with Law.com said they were unaware of the case until they were alerted to the ruling by University of California at Irvine law dean Erwin Chemerinsky. “It caught me out of the blue,” said UC Davis law dean Kevin Johnson.

Klein said Bank of America could have a remittitur of the $40 million in punitive damages awarded to the schools and consumer organizations if it agrees to give them 75 percent of the pretax designated amounts.

The bank’s “high degree of reprehensibility” in the case and its “cynical disregard for the law” merited the punitive award, Klein said.

Bank of America had “willfully violated” a bankruptcy court stay by foreclosing on the Sundquists’ residence, Klein said. The Sundquists had defaulted on their loan after Bank of America advised them that they had to do so to obtain a mortgage modification.

According to Klein, the bank had conducted harassing inspections of the couple’s residence, forced them to move, secretly rescinded the foreclosure, and failed to protect the property from looting. The bank’s actions caused emotional distress, lost income, an apparent heart attack, a suicide attempt and post-traumatic stress, the judge said.

“Franz Kafka lives,” Klein wrote. “This automatic stay violation case reveals that he works at Bank of America.”

Klein said it would be wrong to use “simplistic multiples” to limit punitive damages to up to six times compensatory damages because the amount would be “laughed off in Bank of America’s boardroom” as the cost of doing business. Yet awarding the full $45 million to the Sundquists would be greater than justified by principles of fairness, he said. He noted a Supreme Court of Ohio decision treating society as a de facto party in some punitive damage cases and said the principle could be applied to the Sundquists’ case.

UC Hastings law dean David Faigman commented on the case in his interview with Law.com. “In a sense, what the court is saying is when a defendant has behaved badly, the costs associated with that is providing resources to support legal education to create protectors so that other, future defendants don’t behave badly,” he said.

Law.com noted that it is not unheard of for judges to award cy pres awards to law schools, but those cases are typically class action lawsuits. “We’re not counting the money just yet,” Faigman said.

Bank of America said in a statement that it regrets that the Sundquists had “a challenging experience.”

“We believe some of the court’s rulings are unprecedented and unsupported, and we plan to appeal,” the statement said.


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