Category: reason

The Michigan Supreme Court issued a sweeping rebuke last week to Oakland County’s decision to seize a retiree’s home over $8.41 in unpaid taxes. Now county officials are worried they could be on the hook for more than $30 million in payments to former homeowners victimized by the same aggressive forfeiture scheme.

In a letter sent this week to Oakland County Treasurer Andrew Meisner, county commissioners demanded answers. “It appears your actions as Treasurer to foreclose on an Oakland County retiree’s property for $8.41 has exposed the county to serious risk,” it says. The letter informs Meisner that the county plans to form a special committee to investigate officials’ use of tax asset forfeiture and to “make recommendations to protect the Oakland County taxpayers.”

As Reason reported last year, Michigan state law empowers county treasurers to take aggressive actions to quickly foreclosure and auction properties with unpaid taxes. The law allows counties to keep the excess proceeds from those auctions, a provision that has created a perverse incentive for counties to seize homes, sell them, and keep the profits.

Uri Rafaeli, the plaintiff in the case that was before the state Supreme Court, lost his Southfield home in 2014 because he’d accidentally underpaid his taxes by $8.41. The county pocketed nearly $24,500 from the sale of his property. In another Michigan case that’s gained some media attention, Gratiot County seized 35 acres of land from Donald Freed over a $750 tax debt. The property was auctioned for more than $100,000—and, of course, the county kept the change.

In the Rafaeli case, Oakland County was “required to return the surplus proceeds to plaintiffs, and defendants’ failure to do so constituted a government taking under the Michigan Constitution entitling plaintiffs to just compensation,” Justice Brian Zahra wrote in the state Supreme Court’s ruling last week. The high court sent the case back down to a lower court to decide how Rafaeli should be compensated.

While county officials are quick to point the finger at Meisner, the real culprit here is the 1999 state law that created this mess in the first place. In a statement after last week’s state Supreme Court ruling, Meisner said he was merely following the law when he authorized the seizure of Rafaeli’s home. Now that the state’s highest court has found constitutional issues with how counties do that, Meisner added, he was looking “forward to working with the Legislature to change this state law in a way that works well for property owners and our local communities, while being fair to the majority of property owners who pay their property taxes on time.”

In the meantime, Meisner’s office seems likely to face additional scrutiny. The Detroit News reports that the Oakland County board of commissioners is seeking information about how many properties have been foreclosed, what profits the county kept, and how those funds were spent.

Some of that information has been available for county commissioners to review for years, if only they’d cared to look. Like many other counties in Michigan, Oakland County maintains a “delinquent tax revolving fund” (DTRF) where the proceeds from tax asset forfeitures are deposited. If the county has a positive balance in its DTRF at the end of a fiscal year, the excess funds can be channeled into the county budget.

As Reason reported last year:

That’s how Wayne County has funneled more than $382 million in delinquent tax surpluses into its general fund budget since 2012, according to an analysis by Bridge magazine, a Michigan-based nonprofit publication.

In Oakland County, where Rafaeli’s Southfield property was seized and sold in 2014, the process has been lucrative too. According to the county’s most recent comprehensive annual financial report, its DTRF had $196.8 million in net assets.

The same document details plans to use the DTRF for a number of pet projects, including the construction of a new animal shelter and adoption center. The county also “anticipates the continuation of annual transfers from the DTRF to support General Fund/General Purpose operations in the amount of $3.0 million annually for FY 2019 through FY 2023″—totals that are in line with historical norms, according to the annual report.

The most important thing for state and county officials to do now is to ensure they update their policies and practices to reflect last week’s Supreme Court ruling, thus protecting homeowners from facing a similar fate. But scrutiny of past forfeitures is certainly warranted—and homeowners like Rafaeli deserve major refunds.

Indeed, county attorneys always knew they could end up on the hook for huge payments to compensate homeowners who had their equity stolen for unpaid tax bills. During oral arguments before the state Supreme Court, attorneys for Oakland County argued that it was impossible for local governments to compensate all homeowners who had been caught in similar circumstances. The price tag, they estimated, would be more than $2 billion statewide.

The state Supreme Court literally laughed off the idea that property owners shouldn’t be fairly compensated because that would create a fiscal burden for the counties that ripped them off. After years of stealing excess value from homeowners to pad their own budgets, Michigan counties appear headed for a reckoning with their unconstitutional behavior.

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From American Patriot Express v. City of Glens Falls, decided Wednesday by Judge Lawrence E. Kahn (N.D.N.Y.):

Glens Falls City Code § 87 … regulates “demonstrations,” defined as “pre-planned gathering[s] of 25 or more persons … convene[d] for the purpose of a public exhibition including a procession, parade, protest, picket, march or rally” on “public” property, defined as “any place to which the public has unrestricted access,” excluding indoor spaces.

Any “person, corporation, partnership or other entity” that “hold[s] or cause[s] to be held” any “demonstration,” as defined above, anywhere on “public” property, as defined, must first acquire a permit. Section 87-4(A) provides that permit applications must be submitted to the City Clerk and “will be processed in order of receipt[,] and in all cases decisions whether to grant or deny the application will be delivered within 14 days of application, unless, upon written notice to the applicant, a further 14-day extension is necessary.” …

Plaintiffs are a political organization with a conservative mission, and a collection of people who frequently engage in protests in Glens Falls in support of police, President Donald Trump, and United States Congresswoman Elise Stefanik, as well as counter-protests against left-wing demonstrators, and who plan to continue doing so….

Plaintiffs have, on at least one instance, refrained from protesting because the delay inherent in the maximum 28-day review period precluded their protest. Specifically, on June 3, when Sherman learned that a planned Black Lives Matter (“BLM”) protest was to occur on June 5, Plaintiffs wished to organize a simultaneous counter-protest for but refrained from doing so, because they believed that § 87 required a permit for this counter-protest and that § 87’s 28-day permit processing period precluded their acquisition of a permit on two days’ notice….

At the time that they filed the Complaint and Motion, Plaintiffs planned to stage a protest countering the message of the June 5 BLM protest, as soon as possible. At that demonstration, protesters were to advocate in favor of police and display political signs in support of Trump and Stefanik. Plaintiffs anticipated that the demonstration would be attended by more than twenty-five people. The rally was “time sensitive,” because “plaintiffs want[ed] to send an important message to police at a time when they and their reputation is under attack.” …

The court held that the permitting process, with its up-to-28-day delay, was unconstitutional:

A delay in granting a permit to engage in a demonstration can amount to censorship, regardless of whether the permit is ultimately granted or denied. When a speaker “wishes to take a public position on a pressing public issue … the time required to obtain approval may prevent him or her from doing so until after the public issue is settled[.]” … [C]ourts have invalidated advance notice requirements (requiring that demonstrators apply for a permit a certain amount of time prior to an intended demonstration) of comparable length on the ground that such requirements censored spontaneous speech and were not narrowly tailored to meet similar public safety concerns to those at issue in this case….

The truism that administrative processing imposes delays that burden spontaneous speech is highlighted by the example permit application that Defendants attach as an exhibit to their Response. The person who filed this application, who sought to hold a protest on June 5, 2020, filed on May 2, 2020. Practically, a prospective protester must file this long in advance to ensure that she is able to protest on her planned date, because she must account for the possibility that her application will take 28 days to be approved (assuming that it does not need to be revised, which will lengthen the processing period by seven days, see § 87-4(C), and assuming that the application is not denied, necessitating an administrative appeal that likewise lasts seven days, § 87-4(E))….

Defendants argue that the small physical size of Glens Falls (3.8 square miles) and the small size of its police force (thirty officers) justifies a longer permit-processing period than might be constitutional in a larger city. To the extent that Glens Falls’ relatively small police force allows it to accommodate fewer simultaneous protests on short notice than, say, Chicago, it still seems implausible that twenty-eight days of preparation time for any protest anywhere in the town is justified by this resource limitation…. [I]t is conceivable that the relatively limited staff and resources devoted to processing applications could necessitate longer processing times than in, for instance, Chicago, if there were a substantial number of permit applications for Glens Falls officials to review. But Defendants point to only a single permit application filed in the several months since the ordinance was passed, and do not otherwise suggest that the Glens Falls government has been inundated with permit requests….

[Moreover], under § 87-4(A), there are no standards constraining the exercise of discretion in the decision to delay a permit beyond fourteen days, let alone “narrow, objective, and definite” ones, and the clerk is required only to provide notice of, and not to explain, a delay beyond fourteen days. Section 87-4(A) states simply that an application will be processed in fourteen days or, with notice, in up to twenty-eight days. § 87-4(A). Such limitless discretion is prohibited under the First Amendment, because “it allows officials to suppress viewpoints in surreptitious ways that are difficult to detect.” A politically biased Glens Falls government employee could, entirely undetected, hinder an applicant’s political activism by unnecessarily delaying an application for up to twenty-eight days, without justifying this decision by reference to any statutory standards….

The court also struck down another provision in the ordinance, which apparently banned the use of signs at demonstrations. This provision, the court held, was “a comprehensive prohibition on speech” that didn’t “leave open ample alternatives for communication.”

And it held that a separate provision imposing strict liability for violations was also unconstitutional:

Strict liability is disfavored for criminal penalties when First Amendment concerns are implicated, and a knowledge requirement is necessary for any sanctions provision that might chill speech…. As a problematic example of how this strict liability sanction provision might operate, the Court considers a situation in which an organizer arranges a protest that she reasonably anticipates will be attended by fewer than twenty-five people but that is actually attended by twenty-five or more. In such a situation, it appears that … such an organizer could be subject to criminal penalties despite her lack of intent to hold a “demonstration” to which permit requirements apply.

The problematic consequence of strict liability in the context of regulations burdening speech is that the potential violator (in this case, a demonstration organizer) will err on the side of self-censorship in order to steer well clear of the possibility that she will be sanctioned for a violation that she accidentally commits. See Smith v. California (1959) (“For if the bookseller is criminally liable [for obscenity] without knowledge of the contents, and the [anti-obscenity] ordinance fulfills its purpose, he will tend to restrict the books he sells to those he has inspected; and thus the State will have imposed a restriction upon the distribution of constitutionally protected as well as obscene literature.”). Mindful of applicable sanctions, an organizer may, for instance, rather than simply seeking a permit for public gatherings she anticipates will be attended by at least twenty-five people, seek a permit for any public gatherings she organizes, to insure against the possibility that a gathering will unexpectedly turn out to be attended by at least twenty-five people. She may do this despite the fact that she unambiguously has both a constitutional right to organize small gatherings without acquiring a permit, and a statutory right to do so under § 87….

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The Bluebook is the primary authority for legal citation. Produced by the editors of the law reviews at several top tier schools, the Bluebook is followed assiduously by most law reviews. But just because most law reviews follow it, does not mean the Bluebook is always right.

According to the Bluebook, footnotes should generally not list more than two authors for multi-author works. The relevant rule in the latest edition provides that when a cited work has more than two authors, law reviews should “Use the first author’s name followed by ‘et al’ when saving space is desired and in short form citations. List all the authors’ names when particularly relevant.”

As David Hoffman notes, this rule creates a default against listing all of the names, and that means many authors of co-authored works who are not listed first do not get credit for their work. This is unfair, and there’s no real reason for it.

Later-listed authors are often more junior scholars, who may often be responsible for a greater share of the work on an article, and for whom failure to get credit in cite counts and the like is more consequential. Use of “et al” can mean folks get omitted from citation count studies which are increasingly important in academic rankings and, at some schools, in promotion and retention decisions. For people like me who have tenure and have the benefit of a last name beginning with “A,” the Bluebook default rule is no big deal. For junior scholars and those not blessed with early-alphabet names, this can mean not getting credit for their scholarly contributions and influence.

Interestingly enough, the Bluebook did not always endorse an “et al” default for works with more than two authors. In the 1980s, it endorsed listing all authors the first time a work is cited. I am not sure what prompted the change, but I suspect it was concern about word counts and ever-lengthening law review articles.

Fortunately, some law reviews have decided to reject the Bluebook’s default rule, adopting an alternative default rule of listing all co-authors. Such law reviews include the Columbia Law Review (which is one of the law reviews that produces the Bluebook) and the Case Western Reserve Law Review. This is a good move, and other law reviews should follow suit.

 

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From a Foundation for Individual Rights in Education post last week:

On June 3, rising senior Austin Tong posted to his Instagram account a photo of David Dorn, a retired St. Louis police captain killed by looters in the unrest following the killing of George Floyd. The photo included the caption, “Y’all a bunch of hypocrites,” a reference to Tong’s frustration, as a supporter of the Black Lives Matter movement, with what he refers to as “the nonchalant societal reaction over [Dorn’s] death.”

The following day, June 4, was the 31st anniversary of the Tiananmen Square massacre of pro-democracy activists. Tong, who emigrated from China as a child, posed for a photo holding a legally-obtained gun off-campus, with the caption “Don’t tread on me.” The caption also included an American flag emoji, a Chinese flag emoji, and a hashtag commonly used by Chinese citizens to avoid censorship of online discussion of the Tiananmen Square massacre.

Fordham wrote to Tong on June 8, when Dean of Students Keith Eldredge informed Tong he was under investigation by the university for the two photos. [The June 8 letter said, “Specifically, it is reported that on June 3 and 4, and in the recent past, you made several posts on social media related to the current racial issues in the country and political issues in China, including one in which you were holding an automatic weapon.” -EV] On [July 14], Fordham handed down its verdict: Tong was found guilty of violating university policies on “bias and/or hate crimes” and “threats/intimidation.”

“When Tong immigrated to the United States from China at six years old, his family sought to ensure that he would be protected by the rights guaranteed by their new home, including the freedom of speech and the right to bear arms,” wrote Program Officer Lindsie Rank, author of FIRE’s letter to Fordham. “Here, however, Fordham has acted more like the Chinese government than an American university, placing severe sanctions on a student solely because of off-campus political speech.”

Tong’s probation bans him from physically visiting campus without prior approval, taking leadership roles in student organizations, and participating in athletics. He is also required to complete implicit bias training and write an apology letter.

“While what happened to me is a total disgrace, I hope to use my example as an opportunity for the millions of people out there that fear to freely speak, and to protest the serious case of speech censorship in college campuses,” said Tong. “As the country is facing a disastrous constitutional crisis, it is no time to stay silent, and we have been silent for way too long. It only takes the courage of the few to spark the patriotism of many. We will use this opportunity to let the world know that now is the time that we must speak loudly, fight for our rights, and let those who silence speech know they will face consequences.”

As a private institution, Fordham is not bound by the First Amendment. But it is bound by the explicit, repeated, and unequivocal promises of freedom of expression it makes to its students, including in its own mission statement: “Fordham strives for excellence in research and teaching and guarantees the freedom of inquiry required by rigorous thinking and the quest for truth.”

Fordham holds FIRE’s worst rating for free speech and makes frequent appearances on FIRE’s “Worst Colleges for Free Speech” list. Additionally, a state court ruled just last year that Fordham violated its promises of freedom expression in censoring a pro-Palestinian student organization. Fordham is fighting that decision on appeal.

Pretty appalling behavior by Fordham, it seems to me. Yesterday, Tong sued Fordham for allegedly violating its own policies, a cause of action that seems to be especially strongly recognized in New York courts, as the Palestinian student group case shows.; you can read his legal arguments here.

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New York Gov. Andrew Cuomo has a lot on his plate. He’s governing a state of more than 19 million people. He’s trying to contain a COVID-19 outbreak. He’s classifying which foods are substantial enough for a meal.

The Democratic governor insists the three are related. As the state emerges from coronavirus-related closures, which decimated many a business, Cuomo is enacting new regulations on what bars must serve if they want to be open after months of being shuttered.

It can’t just be alcohol, and it can’t just be finger food. “To be a bar, you had to have food available—soups, sandwiches, etc.,” he said in a press conference yesterday. “More than just hors d’oeuvres, chicken wings, you had to have some substantive food. The lowest level of substantive food were sandwiches.”

Many establishments initially tried to circumvent the rules with offerings like $1.00 Cuomo Chips or, as another bar put it, “a few chips off your shoulder.” The Lafayette, located in Buffalo, epitomized the trend with a makeshift menu whose offering included a “handful o’ croutons” and “the smallest piece of cheesecake you’ll ever see,” as well as one sliver of charcuterie, which could be substituted for a piece of cheese.

No more. The intent of the food mandate, Cuomo says, is to encourage patrons to stay in their seats, so “substantive” selections must be the norm. One wonders what impact, if any, that rule will have on COVID-19 transmissions. (If he wants patrons to be seated, wouldn’t it be easier to require that patrons, well, stay seated? Sorry—I don’t want to give him any ideas.)

Many bars didn’t offer food prior to the pandemic. To fulfill Cuomo’s requirements, they must now pour extra money into food supplies and manpower in a time when few people have any extra money to speak of.

“We have one lady who comes in who has high food allergies,” Anne Muldoon, the owner of Lowery Bar & Kitchen, told NY1. “She never eats out, but has a couple glasses of wine and it’s a little freedom—and now we have to tell her she has to order food. So she walks out our doors.”

Cuomo has also zeroed in on outdoor drinking, which he wants everyone to know is not allowed. That mandate is especially devastating to any bar or restaurant in New York City, where indoor dining is still prohibited.

Let's be clear.

Outdoor dining is now permitted statewide.

Outside drinking is not.

— Andrew Cuomo (@NYGovCuomo) July 21, 2020

“The state will suspend liquor licenses for businesses in violation of health orders,” he said in a subsequent tweet. “Local governments must also enforce these rules. We need compliance to stop the spread and keep New Yorkers safe.” He has since made good on that promise.

But who exactly he is keeping safe isn’t quite clear, unless we soon find out that one is more likely to contract COVID-19 while intoxicated. COVID-19 transmission is less likely, not more, in an outdoor setting.

Dr. Anthony Fauci recently hailed New York Gov. Andrew Cuomo as the one who “did it correctly,” with “it” being Cuomo’s response to COVID-19. There’s room for a healthy debate over whether that’s true, considering the state’s stratospheric death toll—32,000 fatalities—and the many factors which contributed to it, some of which can be laid at Cuomo’s door. Thankfully the state’s deaths have dropped off dramatically.

But instead of litigating the past, how about the present? If Cuomo’s arbitrary distinction between chicken wings and sandwiches is any indication, he is not, in fact, “doing it correctly.”

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There’s no question that the federal agents arresting protesters in Portland, Oregon, are acting against the wishes of state and local authorities. The mayor of Portland and the governor of Oregon both asked the Trump administration to remove its troops, and officials from the U.S. Department of Homeland Security refused. That reflects poorly on an executive branch in the hands of a political party supposedly committed to letting state and local governments take the lead on most issues.

The controversy began with reports of federal officers driving through the streets of Portland in unmarked minivans and arresting protesters. Some face charges, but others are briefly detained and then released.

Local officials and people in the streets may be at odds over racial tensions and police conduct, but nobody invited the feds to join the party. “Keep your troops in your own buildings, or have them leave our city,” Portland Mayor Ted Wheeler told the feds last week.

“I told acting Secretary Wolf that the federal government should remove all federal officers from our streets,” Oregon Governor Kate Brown said. “His response showed me he is on a mission to provoke confrontation for political purposes.”

Acting Department of Homeland Security Secretary Chad Wolf’s response really was pretty confrontational. “The city of Portland has been under siege for 47 straight days by a violent mob while local political leaders refuse to restore order to protect their city,” Wolf said. “This siege can end if state and local officials decide to take appropriate action instead of refusing to enforce the law.”

Federal officials do have the authority and responsibility to protect federal property. But Wolf’s statement goes well beyond that, reiterating an “offer to assist local and state leaders to bring an end to the violence perpetuated by anarchists.”

President Trump is clear, too, that federal agents are in Portland to do more than protect courthouses and office buildings.

“We’re going to have more federal law enforcement—that, I can tell you,” Trump remarked this week. “In Portland, they’ve done a fantastic job. They’ve been there three days, and they really have done a fantastic job in very short period of time. No problem. They grab them; a lot of people in jail. They’re leaders. These are anarchists. These are not protestors. People say ‘protestors’; these people are anarchists. These are people that hate our country. And we’re not going to let it go forward.”

What if local officials don’t want the feds there?

“The governor and the mayor and the senators out there, they’re afraid of these people.  That’s the reason they don’t want us to help them,” Trump dismissively added.

Whether or not state and local officials are up to handling sometimes-violent protests on their own, dismissing their right to handle local issues their own way is remarkable for a Republican president. After all, Trump represents a political party that to this day officially prefers state and local decision-making over federal policy.

“The Constitution gives the federal government very few powers, and they are specifically enumerated; the states and the people retain authority over all unenumerated powers,” states the Republican Party platform of 2016, which the GOP readopted this year. “In obedience to that principle, we condemn the current Administration’s unconstitutional expansion into areas beyond those specifically enumerated, including bullying of state and local governments in matters ranging from voter identification (ID) laws to immigration, from healthcare programs to land use decisions, and from forced education curricula to school restroom policies.”

It’s very difficult to reconcile the Republican Party’s condemnation of “unconstitutional expansion into areas beyond those specifically enumerated, including bullying of state and local governments,” with an announced intention to deploy federal law enforcement agents against protesters in Portland over the protests of the governor and the mayor, and to expand federal intervention elsewhere—apparently starting with Chicago and Albuquerque‚despite local objections. It just looks like just another example of bullying to add to the list.

How do the feds justify forcing their way in? The administration hasn’t said, but maybe by leveraging the expanded leeway the courts allow the federal government within 100 miles of the border, or maybe through stretched-to-the-breaking-point interpretations of other laws regarding federal authority.

State and local officials definitely aren’t pleased.

“The majority of the protests have been peaceful and aimed at improving our communities. Where this is not the case, it still does not justify the use of federal forces. Unilaterally deploying these paramilitary-type forces into our cities is wholly inconsistent with our system of democracy and our most basic values,” the mayors of Seattle, Atlanta, Chicago, Washington, D.C., Kansas City, Missouri, and Portland, Oregon, wrote to Wolf and Attorney General William Barr this week. “We urge you to take immediate action to withdraw your forces and agree to no further unilateral deployments in our cities.”

Philadelphia District Attorney Larry Krasner went a step further, promising that “anyone, including federal law enforcement, who unlawfully assaults and kidnaps people will face criminal charges from my office.”

None of this is to say that state and local officials are necessarily the best people to handle any given problem. Nothing guarantees that mayors are more competent than presidents. Protests for changes in the way law enforcement does its business are concentrated in large cities where officials presided over the creation of often abusive and largely unaccountable police departments. Those departments are now, awkwardly, tasked with keeping the cap on protests against them.

Mayor Wheeler of Portland seems particularly hapless. He’s long been accused of supporting left-wing rioters, but protesters now march through the streets cursing his name. The guy can’t win.

But it’s not the place for the federal government to muscle aside local authorities when they don’t do their jobs in ways that federal officials might prefer. “The Constitution gives the federal government very few powers, and they are specifically enumerated,” as the GOP itself points out.

The need for federal restraint is especially true when the president makes it clear that partisan posturing is behind his desire to send in federal forces.

“Look at what’s going on” in cities where federal agents will be sent, snorted Trump as he explained his rationale for intervention. “All run by Democrats, all run by very liberal Democrats. All run, really, by radical left.”

So much for the Republican Party’s espoused belief that “Every violation of state sovereignty by federal officials is not merely a transgression of one unit of government against another; it is an assault on the liberties of individual Americans.”

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