Amid pandemic, ballot access restrictions yield to right to run for office, state supreme court rules

Because of the coronavirus pandemic, political candidates will have to produce only half the usual number of voter signatures to see their names on the state primary ballot, the Massachusetts Supreme Judicial Court ruled Friday.  One justice in concurrence chastised the Massachusetts government for dropping the ball in technology to respond to the crisis.

Massachusetts primary ballots in 2016 (GPA Photo Archive CC BY-SA 2.0)

A primary election in the United States occurs at the state level before the nationwide Election Day in early November.  Voters in a primary election choose which candidates from each party will qualify for the final ballot on Election Day.  The Commonwealth of Massachusetts held its primary election for the U.S. Presidency on March 3; the primary election for state candidates to state and federal offices is set for September 1.  Candidates will vie for a U.S. Senate seat, nine U.S. House seats, 40 state senate seats, and 160 state house seats.  Some states with earlier scheduled elections postponed their primaries.  For example, Rhode Island postponed its same-day presidential and state primary election from April 28 to June 2.  The later timetable in Massachusetts leaves no room for postponement if officials are to prepare ballots timely for Election Day.

Declared on March 10, a state of emergency arose in Massachusetts at a crucial time for political candidates to collect signatures to qualify for ballots in the state primary election.  Party candidates were expected to submit signatures to state officials by April 28, for state offices, and by May 5, for federal offices.  The requisite number of signatures ranges from 150, for a state house seat, to 10,000, for a U.S. Senate seat.  Procured signatures in Massachusetts must be “wet,” that is, given live, in ink; there is not yet a legal process to collect, nor a technical capacity to certify, electronic signatures.

Customers line up at social distance to enter my local grocery store.

Photo in Barrington, R.I., Apr. 5, 2020, by RJ Peltz-Steele CC BY-SA 4.0.

Naturally the coronavirus lockdown has complicated the collection of wet signatures.  Candidates and their supporters ordinarily canvass voters door to door and at places where people congregate, such as shopping malls.  Social distancing restrictions came into effect just after the halfway point in the time window for collecting signatures.  Candidates sought relief from the executive and legislative branches of Massachusetts government.  Executive election officials said they were powerless to change statutory deadlines, and bills to relax signature requirements stalled in the legislature.  I note, it’s hardly in the interest of incumbents and their well-oiled politicking machines to facilitate the raising up of rivals.

Written or not, the right to seek representative office must be, to some degree, a civil, or human, right in a democracy.  In Massachusetts, the right is written.  Article 9 of the Massachusetts Declaration of Rights states, “All elections ought to be free; and all the inhabitants of this commonwealth, having such qualifications as they shall establish by their frame of government, have an equal right to elect officers, and to be elected, for public employments.”

Article 9 of the 1780 Massachusetts Constitution
(Massachusetts Historical Society Collection)

The provision dates, unaltered, to the original 1780 Massachusetts Constitution (Papers of John Adams, vol. 8) and gave candidates now seeking access to the Massachusetts primary a plain hook to plead for judicial intervention.  On April 8, three representative plaintiffs, including two Democrats and one Republican, two seeking federal office and one seeking state office, filed an emergency petition for declaratory relief.

The Massachusetts Supreme Judicial Court has long recognized that the state constitutional right to run for office may confer judicial protection against overreaching legislative or executive restrictions on access to the ballot.  The provision was used to support women’s suffrage in 1922, if only after the 19th Amendment (1920).  The Court rejected a ballot access challenge to statute by Libertarian candidates in 2012; however, in dictum the Court reiterated its competence to adjudicate an article 9 claim and even cited article 9 in tandem with the inherent judicial power, as articulated in the landmark same-sex marriage decision in 2003, to extend Massachusetts civil rights beyond the scope of the U.S. Constitution.  Notwithstanding the power of judicial review, the Court’s experience in examining ballot access law under article 9 has before now resulted entirely in the approval of “reasonable” or “legitimate” qualifications for office.

Structurally, the Massachusetts Constitution, like the U.S. Constitution, disfavors judicial intervention in the electoral process.  “As a general matter, the principle of separation of powers … prevents the ‘judiciary [from] substituting its notions of correct policy for that of a popularly elected Legislature,’” the Court wrote in the instant case, quoting precedent.  The plaintiffs’ challenge here called for “policy judgments that, in ordinary times would be best left to the Legislature.”

"Signing a Petition" by Elizabeth Jenkins CC BY-NC-SA 2.0

Yet, the Court wrote, “[n]o fair-minded person can dispute that the fundamental right to run for elective office has been unconstitutionally burdened or interfered with by the need to obtain the required ‘wet’ signatures in the midst of this pandemic.”  Had the legislature passed a law similarly burdening ballot access in the absence of the pandemic, the Court reasoned, surely it would be ripe for judicial review under article 9.  Thus, “where fundamental constitutional rights are violated, and where the Legislature fails to remedy the constitutional deficiencies after having had the opportunity to do so, and where an aggrieved litigant files suit seeking remedial relief for the constitutional violation, the judiciary must provide such a remedy.”

The Court struggled with the appropriate level of judicial scrutiny, an issue that similarly has confounded the U.S. Supreme Court in its case law over free speech and campaign finance regulation.  U.S. constitutional law tends to approach civil rights problems from a formalist framework of tiered judicial scrutiny, its intensity ranging from zero, or minimal “rational basis” analysis, to presumptive unconstitutionality and stringent “strict scrutiny.”  This framework at first glance contrasts with the much more flexible European approach that functionalizes construction of “necessary in a democratic society,” though critics fairly allege that the U.S. Supreme Court’s tiered scrutiny has flexed functionally in application.

"Magnifying Glass" by Tall Chris CC BY 2.0

Like the U.S. Supreme Court, the Massachusetts Supreme Judicial Court has employed the language of both strict scrutiny and rational, or “legitimate” basis, in article 9 jurisprudence.  The Court explained: “When we evaluate the constitutionality of a restriction on access to the ballot, we apply a ‘sliding scale approach, … through which [we] weigh the character and magnitude of the burden the State’s rule imposes on the plaintiffs’ rights against the interests the State contends justify that burden, and consider the extent to which the State’s concerns make the burden necessary.’”  In other words, the degree of scrutiny is elevated as a function of the degree of burden.  Critics such as me contend that setting the appropriate degree of scrutiny only after purporting to observe the degree of burden invites the tail to wag the dog.  But that’s not important just now.  The Court found the burden here to be high enough, whatever language might be used to describe it, to demand strict scrutiny.

Though signature requirements might be modest and legitimate burdens on ballot access in the best of times, the Court opined that the signature requirements are excessively burdensome amid the present pandemic.  To reach that conclusion, the Court equated evolving social context with emergency electoral context:

[A]s we have recognized, statutory requirements that were once considered constitutionally permissible may later be found to interfere significantly with a fundamental right as societal conditions and technology change [indirectly citing the aforementioned same-sex marriage case]…. And similarly, statutory requirements that in ordinary times impose only modest burdens on prospective candidates for public office may significantly interfere with the fundamental right to run for political office in a time of pandemic.

Observers may opine whether, or when, that equation holds.  Though maybe not surprising when articulated by a progressive state court, the declaration simultaneously authorizes judicial aggrandizement in the expansion of human rights relative to time and in the constriction of human rights relative to exigency.  Potential implications abound, for example, in reconciling personal privacy with free speech, or climate change mitigation with free markets. For present purposes, the Court concluded that the signature requirements as applied could not withstand strict scrutiny.

By the time it reached remedy, the Court had painted itself into a corner.  The existing signature regime could not stand, yet the executive and the legislature refuse to solve the problem.  Plaintiffs invited the Court to simply void the signature requirement on this go-around.  But the state cried caution, fairly fearing that throwing open the doors of ballot access would result in incomprehensible ballot chaos for voters.  I would be inclined to find the state’s position paternalistic, but I remember hanging chads.

By Maklay62 at Pixabay

Admittedly loath to parse numbers, the Court invoked a Solomonic solution.  Observing that the emergency arose at about the halfway point of signature collection, the Court cut signature requirements by 50%.  The state had suggested that the requirement be cut only for offices requiring 1,000 or more signatures, presumably because of the chaos-will-reign concern, not the incumbency-will-be-threatened concern.  The bills stalled in the legislature would have taken that approach, too, reducing signatures from whatever number over 1,000 by half or two-thirds.  But the Court found itself without a sufficient basis to adopt the 1,000-signature cut-off, so applied the 50% rule across the board.

The Court issued two further declarations of equitable relief.  It extended the deadlines for candidates to submit signatures for state certification from April 28 to May 5, for state offices, and from May 5 to June 2, for federal offices, taking into account the pleadings of the state as to the minimal time needed to prepare ballots.  Second, the Court ordered state election officials to find a way to accept and certify electronic rather than wet signatures.  These additional measures the Court calculated in recognition of the difficulty, but not impossibility, of continuing to collect voter signatures during the lockdown.

Justice Kafker (Mass.gov)

Only one judge wrote a separate opinion.  In concurrence, Associate Justice Scott L. Kafker chastised the state for falling behind the curve in electoral technology:

In this “high tech” era, and in the midst of a global pandemic that severely restricts close personal contact, the failure to be able to solve manageable technological problems on the eve of an election is confounding and distressing. At a time when we need to be fundamentally rethinking what must be done in person and what can instead be done electronically, our electoral process seems dangerously unequipped to adapt to a new paradigm.

Justice Kafker pointed with approval to the electronic voter registration system adopted in Arizona.  The Court opinion in a footnote had pointed to Arizona similarly, as well as to technological adaptations in electoral process in New Jersey and Florida in response to the pandemic.

Justice Kafker concluded:

I feel compelled to emphasize that those responsible for our election process must have the necessary tools to quickly adapt to the current pandemic and the future crises to follow. Absent such technological adaptability, our elections will be imperiled and our election laws may themselves have to be rewritten in the midst of a crisis, as was done here. That is an invitation to conflict and confusion that must be avoided.

Voters line up in Boxborough, Mass., in the 2016 primary.

Photo by Liz West CC BY 2.0.

To read between those lines an entreaty to the legislature for funding would not, I think, be too speculative.  Lawyers and judges especially are aware of how badly Massachusetts has lagged behind other states in digitizing legal practice and public access to court records.

It would not be a stretch moreover to suppose that Justice Kafker was especially pained to meddle with the specific numeric qualifications for ballot access.  He was appointed to the Supreme Judicial Court in 2017 by Governor Charlie Baker, a Republican.  In the course of his career, Justice Kafker served as deputy legal counsel to Governor Bill Weld.  A past Libertarian candidate for Vice President and outsider Republican candidate for President, Weld was challenging President Donald Trump for the 2020 Republican nomination until Weld suspended his campaign on March 18. Republicans identify with formalism in constitutional interpretation, and Libertarians identify with judicial restraint in rule making, if also, practically, with relaxation of ballot access restrictions.

At the same time, Justice Kafker’s conclusion might readily be understood to voice widespread American anxiety over electoral integrity in general, especially in the crosscurrents of equivocal Washington reaction to Russian tampering.

The case is Goldstein v. Secretary of the Commonwealth, No. SJC-12931 (Mass. Apr. 17, 2020).  Chief Justice Ralph D. Gants authored the unanimous opinion.

Report from a Social Distance: Week 4

Dispatch from a scapegrace stuck in a rabbit warren

"Black Rabbit of Inlé" by Ken Whytock CC BY-NC 2.0

Isolation is now a way of life, and the days are dissolving, each into the next.  There's a plateau in new infections in U.S. hot spot New York, but it sits at a high level of daily mortality.  Testing in the United States remains limited to detecting active infection in the symptomatic, if that, though antibody detection is being deployed experimentally.  Like in other states, Rhode Island Governor Gina Raimondo has ordered that face coverings be worn in shops and workplaces to slow down contagion.  (Another executive order refined the suspension of public meetings and records laws to balance access and lockdown.)  In times like these, as Chicago Mayor Lori Lightfoot said to Trevor Noah, "Humor is kind of the unifying thing."  In that Light(foot)hearted vein, this is what I'm up to.

TV Quote of the Week: “I didn’t believe I’d ever see my racist Aunt Ida licking up gasoline at the Arco station on Saticoy with her Filipino nurse from the Jewish Home for the aging, but it happened.  Anything is possible now.”  —Principal Burr in Daybreak s1e06

What I’m Reading

Scott Johnston, Campusland (2019) (Amazon).  Kirkus Reviews called this self-described “satire” of university life, “richly imagined.”  Well, no disrespect to Scott Johnston’s very enjoyable writing, but if I have a criticism here, it’s that what passes for parody is often less absurd than the reality.  Johnston, a New York Yalie with an eclectic background, spins a tale of PCism run amuck at a fictional elite northeastern private university from varied student, faculty, and admin perspectives.  It’s funny when Johnston depicts a “bias response” star chamber investigating a professor on contrived charges of racism, but the casual reader might not realize how on point the narrative is.  It’s equally absurd yet true when Johnston writes about a weaponized “title IX” being wielded as a verb.[*]

King Solomon
by Kristian Zahrtmann

Our church Bible reading continues in week 14 with 2 Samuel and 1 Kings.  As usual, the BibleProject has an excellent video overview of the books of Kings.  The books begin with the reign of Solomon, who, anointed as king, pleaded with God: "But I am only a little child and do not know how to carry out my duties. Your servant is here among the people you have chosen, a great people, too numerous to count or number. So give your servant a discerning heart to govern your people and to distinguish between right and wrong. For who is able to govern this great people of yours?"  1 Kings 3:7-9.  Remember when humility in leadership was a thing?

What I’m Watching

Onward (2020) (trailer).  This beautiful new story from Disney Pixar more or less skipped theaters because of the pandemic lockdown.  It’s now included on Disney+ and available to rent on other platforms.  Be prepared to reallocate some of your precious tissues to mop up tears of joy.  As usual for Disney features, the voice cast is top shelf.  Lead female roles bring together comedy legend Julia Louis-Dreyfus and Oscar winner Octavia Spencer.  Lead male voices are two Peters of Avengers fame, Quill (Star-Lord) and Parker (Spider-Man), that is, Chris Pratt and Tom Holland.

Motherless Brooklyn (2019) (trailer).  I thoroughly enjoyed this book by Jonathan Lethem (Amazon), and I'm a big fan of Ed Norton, who was born in Boston and grew up in Maryland, so I eagerly awaited this theatrical release—though not as earnestly as Ed Norton awaited it, the film adaptation being his 20-year passion project.  It did not disappoint.  Norton himself played the protagonist with a performance reminiscent of his genius alongside Brando and De Niro in The Score.  Michael Kenneth Williams, The Wire’s Omar, gets to be a mostly good guy for a change, the enigmatic “trumpet man.”  There are small but significant roles, too, for Robert Wisdom, another Wire alum (“Bunny”), and Fisher Stevens, who seems to be in everything, but whom I’ll always identify favorably with Early Edition.

Star Wars: The Clone Wars (2008) (trailer).  What do you really know about Anakin Skywalker and Obi-Wan Kenobi?  The Star Wars movies show us only dramatic highlights of their lives.  At some point, Skywalker and Kenobi, together with Master Yoda, waged war, and their bond was forged in that fire.  Such is the story of The Clone Wars, set between live-action episodes II (Attack of the Clones (2002)) and III (Revenge of the Sith (2005)).  Friends have told me for years to embrace this animated saga, and now I’m sucked in.  Best part?  Seven seasons of televised series (2008-14, 2020) followed this 2008 film, Disney+ having revived the show for a finale season this year.  So I’m going to need a clone to watch all of that.  I’m giving a miss to the earlier three-season animation (no “The” in the subtitle) that ran from 2003 to 2005; it was pre-CGI.

Watership Down (2018) (BBC trailer).  The animation is superb in this BBC-Netflix co-production.  With James McAvoy as Hazel, this four-installment adaptation is not the first to adapt to screen the Richard Adams’s 1972 classic (N.Y. Times Mag.).  A 1978 British animated film won a Saturn Award; Art Garfunkel sang “Bright Eyes” for it.  A British-Canadian animated series ran for three seasons, from 1999 to 2001, but never aired in the United States.  Two years ago, we postponed watching this Netflix incarnation because, for an animation about bunnies, it’s heavy emotional lifting.  As James Parker wrote of the novel for The Atlantic, “An unprecedented mash-up of eco-anxiety, homely bottom-of-the-garden anthropomorphism, real violence, and febrile mythmaking, Watership Down struck a nerve.”  That’s only more true of this miniseries in our present era of climate change, pandemic, and xenophobia.

The Night Of (2016) (HBO).  I’m not usually one for what is essentially a criminal procedural, even if well crafted.  But this 2016 production came recommended by a reliable source, and I couldn't resist John Turturro as a scruffy, docks-trolling criminal defense lawyer who’s smarter than anyone gives him credit for.  The show is one part Oz and one part The Practice, spiced with a pinch of The Verdict.  Michael Kenneth Williams is in this one, too, as a scary prison gang leader, and so is Fisher Stevens, who has some darkly funny scenes as pharmacist to Turturro’s eczema-afflicted attorney.

Tales from the Loop (2020) (Amazon).  We’ve just started this new release from Amazon Prime, and I’m all in.  I do not fully understand how a crowd-funded book of surreal science-fiction art by Swedish artist Simon Stålenhag in 2015 got turned into first a role-playing game (2017) and then this TV show.  I think it best not to ask too many questions.  Critics have knocked the show for being slow, and ordinarily, slow plays poorly with me.  But Legion alum Nathaniel Halpern wrote these odd and beautiful stories, and, at just e03 of 8, I’m spellbound with anticipation of more.  Halpern mixes the classical wonder of Amazing Stories Magazine with the playful ingenuity of Stranger Things to serve up a premise irresistible to those of us reared on dandelion wine.

Give it a miss:  I’ve liked Ed Helms since he worked for Jon Stewart, but, save a line here and there, Netflix's Coffee & Kareem (2020) was unwatchably unfunny.

Also out now:  We just discovered that Apple TV+ has made some of its top original content free during lockdown, so check it out.

What I’m Eating

Our Easter feast was simple but delicious: ham, potatoes, peas, and homemade bread.  My wife made my late aunt’s annual springtime-classic peach pie for dessert: brilliant, even though we could find only canned peaches.

My gifted wife also this week made chicken garam masala on basmati rice, a favorite in our house.  In the past, she has made the garam masala herself, from its component spices, but products such as McCormick’s, used here, are a satisfying convenience.

Image by BlackRiv from Pixabay

Fortunately, some Cara Cara oranges made it from tree to home: thanks to my mom and stepdad for a fortifying Easter gift.

I picked up cactus-fruit jelly in North Africa, and it’s been chilling in the fridge.  Faced with an abundance of fresh bread this week, we cracked it open.  Not bad.  Tastes like … I don’t know, cactus fruit.

What I’m Drinking

Alto Grande.  “The coffee of Popes and Kings,” this premium bean, grown in “ideal soil and climate conditions” in Puerto Rico’s mountainous interior, makes a brew too bold for the coffee novice.  We’re indebted to a family friend (Twitter) for our supply line.

Rhody Coyote Hard Apple Cider.  Celebrating Easter, we opened this harvest holdover from nearby Newport Vineyards. When things get back to normal, there's a tasting room.

Chicory Root Vodka.  The flavored liquors of Philadelphia’s Art in the Age distillery never disappoint. The New Hampshire-drawn maple syrup eclipses the chicory in this vodka, but the balance is delectably sippable.  Also a tasting room in better times.

Scapegrace Gin.  How often does a gin teach you a new word?  “Scapegrace” originated in the 18th century to mean a rogue or rascal: one who escapes God’s grace.  Unironically, the name attached to this gin when New Zealand maker Rogue Society Distilling went international and confronted Oregon-based Rogue Ales in a European trademark tangle.  Thus this small-batch brand means to make its mark with a rough-and-tumble reputation in a dark bottle that pays homage to gin’s progenitor genever.  A suite of botanicals is led by juniper.  Different accounts locate distillation in Auckland or Christchurch; either way, Scapegrace boasts water from New Zealand’s Southern Alps.  But be warned: the gold variety, which we have, packs a navy-strength punch: at 57% ABV, it’ll make you forget all the new words you just learned.  The classic silver weighs in at 42.2% ABV.  I am keen to get my paws on some of “the world’s first naturally black gin,” Scapegrace Black, 41.6% ABV.

Whom I’m Wearing

Chartwell Wealth Management.  Contact my friend Dan Harrington (LinkedIn) for financial advice in Rhode Island/South Coast.  Dan wrote the ProJo op-ed on quarantine that I cited here on the blog a couple of weeks ago, with art by Dan’s talented daughter, Grace.  This fashion choice puts me in good company: Dan’s and my friend Komlan N. Aloysh sported a Chartwell T to launch his new YouTube channel, on which he interviews “African changemakers both on the continent and in the diaspora.”


Happy birthday to my dear wife, and happy Earth Day!

Eating, Drinking, and Wearing images except oranges are mine, CC BY-NC-SA 4.0.

[*UPDATE, April 19: To give credit to the author where due: I've since finished the book, and, in an afterword, Johnston wrote that "while Campusland is written as satire, it doesn't stretch the truth by much, and sometimes not at all.  Title IX, as depicted, is true to life.  If you want some good nonfiction on the subject, I suggest Laura Kipnis's excellent (and horrifying) book Unwanted Advances [(2017) (Amazon)]."]

Lockdown tests religious freedom, responsibility

For two reasons, it pains me to see churches on the news violating stay-at-home rules.  First, like almost everyone, I'm horrified by the potential impact on people's health and lives, put at risk utterly unnecessarily.  Through the Bible, God calls on people to worship together, as a body, e.g. Hebrews 10:24-25. At the same time, as author Jon Meacham told Stephen Colbert in a terrific recent interview, during Passover and in anticipation of Easter, "Being willfully stupid is not part of the Christian tradition."

This might be an especially authentic Easter, Meacham suggested, in the sense that early Christians met in homes, e.g., Acts 12:12, and the disciples, if together, sought refuge behind locked doors after the Crucifixion, John 20:19.  Moreover, I've written previously about the biblical precedent for quarantine.

Second, these stories on the news are man-bites-dog coverage; what's being reported is aberrational, not normal.  And the truth about churches and other places of worship in this crisis could not be more poorly represented.  My church is the norm.  To protect congregants, the elders suspended our live worship service and other on-campus meetings before the law required.  We had Easter services on a live feed, and we're having classes, prayer, and meetings on Zoom.  Most importantly, we encourage and support one another, Romans 14, notwithstanding social distance.  In the absence of coordinated leadership and a functional social safety net from government, communities of faith are filling the gap, keeping people sound of mind and body.  That's the real religion story of the crisis (see also, e.g., NYT Wehner op-ed, Apr. 10).

Winston-Salem, N.C., March 20.  Photo by Breawycker CC BY-SA 4.0.

Seeing authorities in Kentucky and Louisiana effecting arrests and citing drivers at live religious ceremonies that defy government orders, I started to worry what damage these aberrational observances might do to our jurisprudence and tradition of free religious exercise.  Would this be yet another instance of #RuiningItForEveryone?  That is, if courts start making rulings that approve authoritarian government controls over even ludicrous assertions of religious freedom, the unintended consequence might be to water down religious freedom for all of us—however much I try to remain cognizant of the First Amendment's critical function in anti-majoritarianism.

A Methodist preacher on Deal Island, Md.,
probably the Rev. Joshua Thomas in the 1830s.
From Adam Wallace, The Parson of the Islands 93 (4th ed. 1872).

George Scoville, Nashville attorney and adjunct professor in political science at Belmont University, has written an excellent analysis of the present landscape in religious freedom law amid the lockdown, including explication of a recent federal court ruling in the Western District of Kentucky, and the potential application of the U.S. Supreme Court jurisprudence on Native American peyote use.  He writes:

As an initial matter, nobody contests that, under the structure of our Constitution, states have always had plenary police power to regulate the health, safety, welfare, and morals of their citizens–the simple requirement being, at least after the 1860s, that people receive due process of law before a state-sanctioned deprivation of life, liberty, or property.  On the religious liberty question, my gut reaction is that, generally speaking, “safer-at-home” or “shelter-in-place” orders that prohibit gatherings of people larger than some discrete number, or which require that people maintain a proper social distance of some discrete number of feet, are not per se constitutionally problematic.  Rather, these orders, like the criminal prohibition on peyote use that applied to all Oregonians, apply to everyone.

However, As Scoville explains, there might be room for a challenge where the due process thread of the religious freedom argument intertwines with the equal protection thread.  Thus the court in Kentucky entertained the argument that disallowing drive-through worship while allowing drive-through liquor sales was constitutionally problematic.

Read Scoville's treatment at Church Closures During the COVID-19 Pandemic (Probably) Do Not Violate the First Amendment, April 13, 2020.

[UPDATE, April 26, 2020:  Attorney Scoville has authored an op-ed for The Tennessean in which he additionally considers the potential impact of mini-RFRA litigation amid the pandemic.]

[UPDATE, May 15, 2020: The Sixth Circuit has issued an injunction allowing live church services despite the Kentucky Governor's orders.] 

Trust in government requires access to information in time of crisis

The Governor of my home state, Rhode Island, limited the operation of state freedom of information laws among her executive orders early in the coronavirus crisis, I noted two weeks ago. She was not alone among governors in doing so.  Some limitations make sense.  Paper record access is complicated by closed offices, and open meetings by social distancing.  At the same time, care must be taken to ensure that access to government is not restricted excessively. For excess restriction, we pay a price in transparency and trust in government, and that price can compromise human health no less than the virus itself.

Frank LoMonte, director of the Brechner Center for Freedom of Information at the University of Florida, writes eloquently and timely on the state of public access amid our pandemic emergency in the newly released volume 2, number 1, of The Journal of Civic Information. 

At a time when prompt access to accurate information could literally mean the difference between life and death, the laws mandating disclosure of information to the public are being relaxed in the name of government efficiency, while those mandating secrecy are being applied rigidly (and at times, inaccurately over-applied). This isn’t just a problem for journalists and researchers. As Harvard University health-law professor I. Glenn Cohen told The New York Times: “Public health depends a lot on public trust. If the public feels as though they are being misled or misinformed their willingness to make sacrifices – in this case social distancing – is reduced.” Perhaps the lasting legacy of the COVID-19 pandemic – and it will be a relief to speak of the pandemic in the past tense – will be a generational recommitment to restore custody of critical health-and-safety information to its rightful public owners.

The article is Frank LoMonte, Casualties of a Pandemic: Truth, Trust and Transparency, 2:1 J. Civic Info. iii (2020), and free for download with the latest edition of the journal.  Also included in the volume are research articles on public record officer perspectives on transparency, by Brett G. Johnson, University of Missouri, and on legislative conflict over the Washington State open records law, by Peggy Watt, Western Washington University, with an editor's note from David Cuillier, University of Arizona.

Report from a Social Distance: Week 3

Tort Anomalies, Other Worlds, and Fox Tales

Ready for shopping

My quarantine since returning to the United States ended last weekend, and we made a bold trip to the grocery store to refuel.  Whole Foods effectively stopped delivery here since the strike, and our nearest locally owned delivering grocer is on the opposite side of Narragansett Bay.  So we suited up with gloves and, as Rhode Island Governor Raimondo instructed, bandana masks to leave the house.  Otherwise, life isn't much different in or out of official self-quarantine.

What I'm Reading

My sabbatical plans prematurely aborted, this week involved catching up on some professional reading.  For those into legal arcana, here are the most interesting reads that crossed my virtual desk.  Other readers, feel welcome to scroll down to TV.  I'm also continuing with my church's Bible reading, which has us into the David saga of 2 Samuel, with excellent accompanying video as usual by the BibleProject.  For those who celebrate, respectively, happy Passover, and happy Easter!

Steve Hedley, Tort: The Long Good-Bye (Apr. 8, 2020).  Posted to SSRN, this paper is a fascinating survey of tort law through history, culminating in and replete with contemporary observations ripe for the unpacking.  Prof. Steve Hedley, University College Cork School of Law and Private Law Theory, sees tort law as on its way out, but not without leaving tort lawyers and scholars with plenty of work to do in the process.  As his abstract explains, "Discouraging harmful behaviour is a fundamentally different project from supporting the sick and penniless.... [W]e cannot finally say farewell to tort until all of its vital functions are replaced with better provision, which requires both political will and a fair degree of optimism – both currently rare commodities."  Consider this observation: "From the 1980s onwards in the US, ‘tort reform’ began to be code for restricting tort without replacing it with any other system – in other words, putting tort’s hitherto steady expansion into reverse."  As someone committed to tort's social value and also someone who suffers anxiety over corporatocracy, I found compelling Hedley's broader thesis that the tort system has been honed over centuries to work its aims on people, and the system is dysfunctional vis-à-vis corporations, which today account for the vast majority of tort defendants.

James Macleod, Ordinary Causation: A Study in Experimental Statutory Interpretation, 94 Ind. L.J. 957 (2019).  Causation has been a central obsession of philosophers for millennia, and it's something lawyers worry a lot about too.  I am liable for battery if I punch a compatriot at the bar.  But that conclusion assumes that the plaintiff-victim is complaining of injury that sits along a causal flow downstream from my ill intention.  What if the plaintiff suffered from a pre-existing injury, and I complicated it?  What if, subsequent to our encounter, the plaintiff's injuries were worsened by medical malpractice?  Things get more complicated when physical injury is removed from the problem.  When is an employer's discriminatory intent a legal cause of wrongful termination if the employee would have been fired anyway for misfeasance?  In tort law, contemporary American courts struggle to approximate the "ordinary" meaning and understanding of causation.  See, e.g., Comcast Corp. v. Nat'l Ass'n of Afr. Am.-Owned Media, No. 18-1171 (U.S. Mar. 23, 2020) (SCOTUSblog).  In an ambitious project of empirical survey research, Prof. James Macleod, Brooklyn Law School, has demonstrated that despite this effort, our understanding in tort law may have diverged from ordinary understanding in important respects.

Daniel J. Solove, The Myth of the Privacy Paradox (last rev. Mar. 13, 2020).  Years ago, when privacy law was barely a thing, those of us working in freedom-of-information-advocacy circles counter-argued to personal-privacy proponents that the public's desire for privacy was belied by how readily a person would surrender name, address, and telephone number for an extremely unlikely "chance to win" ripped from a cereal-box top.  The Reporters Committee for Freedom of the Press named an influential publication after this "privacy paradox" in 1998, and my friend and colleague Charles N. Davis, now dean of journalism at Georgia, ushered the concept into the digital age.  More recently, see WNYC Note to Self's "Privacy Paradox" project (logo pictured).  Now privacy law guru Prof. Daniel Solove, George Washington Law, has turned his attention to the problem.  In a new paper, posted to SSRN in February and forthcoming in the GW Law Review, 2021, Solove explains that the paradox emerges from an error in level of abstraction.  A person's disregard for privacy in the narrow and specific context of filling out a raffle entry cannot be equated to a person's rational and more holistic notion of personal integrity.

Alien tort: Nevsun Resources Ltd. v. Araya, 2020 S.C.C. 5, [Feb. 28, 2020] (Canada).  Amid recent decades of globalization, comparatists and internationalists in U.S. tort law have been rapt with waxing and waning trends in the extraterritorial application of American law, especially under the enigmatic Alien Tort Statute (e.g., Radiolab).  The same trends are evident around the world, as national courts struggle to demarcate limits to their own power, balancing classical principles of comity and judicial restraint against burgeoning challenges to human rights coming from both public and private sectors.  In a 5-4 decision in February, the Canada Supreme Court dismissed a claim under customary international law upon compelling allegations: "Three Eritrean workers claim that they were indefinitely conscripted through Eritrea’s military service into a forced labour regime where they were required to work at a mine in Eritrea. They claim they were subjected to violent, cruel, inhuman and degrading treatment. The mine is owned by a Canadian company, Nevsun Resources Ltd."  The court dismissed under "act of state doctrine," an extra-constitutional principle of judicial restraint comparable in function (see, e.g., Achebe, Cooper, Hill), to foreign sovereign immunity.  HT @ Prof. Simon Baughen, Swansea University, Wales.

Climate change: Smith v. Fronterra Co-op. Grp. Ltd., [Mar. 6, 2020] N.Z.H.C. 419 (New Zealand).  In a legal era of legislative abdication, interest groups have resorted to courts around the world to combat climate change.  A victory upon an unusual statutory basis in a Dutch appellate court in 2018 (The Savory Tort, Oct. 12, 2018), upheld by the Dutch Supreme Court in 2019, lent perhaps undue optimism to the global movement, which is ongoing.  Courts in many nations have fairly determined that the judiciary is ill suited to tackle the profound policy crisis of climate change.  Accordingly, in January, the U.S. Ninth Circuit dismissed a youth class action in Oregon that had gained some traction after an indulgent district court ruling (The Savory Tort, Oct. 12, 2018).  Juliana v. United States, No. 18-36082 (9th Cir. Jan. 17, 2020).  Unremarkably, then, the New Zealand High Court decided likewise, in part, in a climate case in Auckland in March.  A plaintiff coastal land owner sued greenhouse-gas-emitting energy and dairy interests on three tort theories, "public nuisance, negligence, and breach of an inchoate duty."  The court dismissed the first two counts for reasons of, respectively, failure of injury different in kind and degree as between plaintiff and public, and failure of foreseeability.  What's interesting is what the court wrote briefly about the plaintiff's surviving "inchoate" theory:

I am reluctant to conclude that the recognition of a new tortious duty which makes corporates responsible to the public for their emissions, is untenable. As noted by [three justices on the N.Z. Supreme Court in a paper at a 2019 climate change conference in Singapore] it may be that a novel claim such as that filed by Mr Smith could result in the further evolution of the law of tort. It may, for example, be that the special damage rule in public nuisance could be modified; it may be that climate change science will lead to an increased ability to model the possible effects of emissions. These are issues which can only properly be explored at trial. I am not prepared to strike out the third cause of action and foreclose on the possibility of the law of tort recognising a new duty which might assist [plaintiff] Mr Smith.

HT @ Prof. Barry Allan, University of Otago, Dunedin, N.Z., who predicts, via the Obligations Discussion Group, "that the defendants will appeal the decision that the inchoate tort is tenable, although they may act strategically and demand that this first be properly pleaded."

What I'm Watching

Goliath s3 (Amazon trailer) was so much better than s2.  Season 2 kind of sold out on the concept of Billy McBride as a civil lawyer and got drawn nearly into the realm of trite criminal procedural.  Plenty of crimes definitely happen in s3, but the legal drama centers on a class action lawsuit to save a small California town that's had its water supply stolen by a ruthless family of almond farmers.  Billy McBride (Billy Bob Thornton) and partner Patty Solis-Papagianis (Nina Arianda) are in top form, and legal TV trivium: Patty's biological mother is played by Monica Potter, who was Crane, Pool & Schmidt associate Lori Colson in Boston Legal s1 (2004-05).

Ragnarok s1 (Netflix trailer).  This six-episode Norwegian supernatural mystery is thoroughly entertaining, with top-flight dubbing into English.  It's proved a smashing success as a Netflix original—Netflix has 750,000 subscribers in Norway and 4m in Scandinavia, according to What's On Netflix—produced by Copenhagen-based SAM, and already has been green-lighted for a second season.  The show takes place in the fictional Norwegian town of Edda, which is the real southwestern, fjord-side town of Odda, where a ruthless family of manufacturing magnates have poisoned the local water supply and accelerated the melting of the glaciers (recurrent theme). Our hero, Magne (David Stakston), is a Billy Batson-like teen who gradually realizes that he's a kind of incarnation of the Norse god Thor, destined to battle evil to save his town and the environment. The story plays loosely with Norse myth, giving Magne a trickster brother, Laurits, played with Loki-worthy aplomb by Jonas Strand Gravli.

The New Pope (HBO).  Academy Award-winner John Malkovich proves his iconic status yet again in this brilliant portrayal of a weirdly enigmatic and intellectual Pope John Paul III, who ascends to the papacy upon the unusual circumstance of a comatose predecessor.  This is really a second season, a worthy sequel series to The Young Pope, in which Jude Law starred as a megalomaniacal yet magnetic and possibly truly divine Pope Pius XIII.  Negligible spoiler, mostly tease: Pius does come out of his coma, and the two great actors take the screen together before the season ends.

Altered Carbon s2 (Netflix trailer).  Dystopian science fiction at its small-screen best, this Emmy-nominated winner is back to tell more of the story of "the last Envoy" soldier Takeshi Kovacs, based on the cyberpunk novels of Richard K. Morgan.  Thanks to the plot device of human immortality through changing bodies ("resleeving"), New Orleans-born Anthony Mackie, the Avengers' Falcon, is able to take over, from s1's Joel Kinnaman, House of Cards' Will Conway, the lead role of Kovacs in s2, and muscular Mackie shines, or broods, as the case may be.  Ironically, the delightful yet ephemerally holographic character of Poe is carried over from s1 in the capable craft of Chris Conner.  Netflix also has premiered a 74-minute animated feature film in the Altered Carbon universe, Resleeved; Conner has a voice role.

Curb Your Enthusiasm s10 (HBO).  Comedy break.  Every episode is instant-classic LD. The familiar cast returns, including Jeff Garlin, who never misses an improvised punchline.


A new category this week, "I Watched, But Can't Recommend":

First, a lot of folks are talking about Kingdom, a two-season-and-counting Korean Netflix horror to sate your unhealthy bloodthirst for zombies when you've run out of Walking Dead and Z Nation.  I got through half of s1, and it couldn't hold my interest.  The zombies are secondary to a drama about entitlement to the royal throne; I had trouble following the story or caring.  If you need a zombie fix, I suggest Daybreak s1 on Netflix, though it will not get a second season.

Second, I caught up on Riverdale s4 over at CW TV, coming soon to Netflix.  It was a decent backdrop for multi-tasking, but couldn't hold my attention full-time.  It was fun for the first couple of seasons, but the characters and story have played out.  If you're missing K.J. Apa, watch The Hate U Give again while hoping his agent gets him another worthy TV vehicle.

Third, Westworld s3.  To be fair, I'm probably going to watch the whole thing, because I love the visuals and the addition of Aaron Paul.  But what the heck is going on?  Who are all these people?  Maybe the pieces will come together, but as of now, I'm not even sure what the show is about.

What I'm Eating

As we made it to the grocery store this week, my wife acquired the necessaries for her famous Louisiana gumbo with chicken and andouille.  The filé powder we had already, not easy to come by in New England.

Remember, as your resources permit, to #SaveOurRestaurants.  We had goat cheese burgers from Billy's last week, and this week we have our eye on Brickyard Pizza Co.

What I'm Drinking

We're very fond of Gevalia's single-origin line, and Costa Rica Special Reserve is our favorite.  Tico ag, Swedish craftsmanship.

The Foxtale Dry Gin, from Portugal, is inspired by the fox of The Little Prince (Amazon; in The New Yorker): "the ideal digestive for a night with friends"—at a proper social distance, of course.  A solid choice, though I'm hard pressed to detect any particular botanical beyond the citrus and a hint of malt.

What I'm Doing to Stay Sane

Photo by JJBers CC BY-SA 4.0

East Bay Bike Path.  I haven't been able to run with the sprained ankle I dragged home from Africa, but biking has been OK.  And luckily, as yet, Rhode Island has not closed the bike paths with the state parks.  There was a rumor of bike path closure on Nextdoor.com, and I hope that doesn't come to be.  I admit that there have been some troubling concentrations of people at bike path choke points, as in the center of East Providence.  But if the paths close, there will only be more people squeezed along busy, sidewalk-less streets, such as mine, where cars compound the corona risk.  Hear me, o Honorable Governor.

Our long national nightmare lumbers on.

'Ley contra la pandemia': CFP se extiende a las contribuciones en español

¡Convocatoria de contribuciones!

Los académicos, estudiantes, profesionales, todas las disciplinas, todas las naciones, están invitados a contribuir con artículos, comentarios y otros trabajos al nuevo sitio web y blog, Law Against Pandemic. Se aliente especialmente el trabajo de los estudiantes.  (CFP en inglés via The Savory Tort.)

Law Against Pandemic es un espacio para el debate sobre los aspectos legales de las pandemias como una herramienta de desarrollo y popularización de los logros de las ciencias sociales. El objetivo principal del proyecto es a crear una plataforma de publicación de artículos de alta calidad sobre aspectos legales de pandemias, para contribuir al discurso y al análisis de posibles soluciones.

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Estos comentarios recientes se publican en Law Against Pandemic.

Alternative dispute resolutions during global pandemic and beyond
by August Adamowicz

Is there a tool that could be used by the lawyers to mitigate the negative effects arising from the situation we are in? I believe that in some instances proper use of Alternative Dispute Resolution methods could help resolve disputes remotely, but also after the epidemic ends it could reduce the number of urgent court cases and at least in some part help to return the judicial system to normal functioning.  Read more.

Pandemic and international trade law. Is there a silver lining?
by Cyprian Liske

Current events show more clearly than ever how strong economic interconnections between countries are in the modern, globalised world. A severe crisis in just one country can break supply chains around the whole globe, not even to mention financial consequences which, as we know at least since 2008, can spread just like a deadly virus.... How do the countries choose to deal with it internationally? Do we restrict trade in the face of such dangers? Or are we trying to liberalise it in order to keep the flow of goods? What about the export of deficit goods which may be used by countries to fight pandemic domestically?  Read more.

Labour market after COVID-19
by Łukasz Łaguna

Currently, the whole world is fighting the COVID-19 epidemic. All countries are racing to find anti-crisis solutions to ensure the least possible losses for every labour market. At the same time, it should be borne in mind that no country in the world will be able to maintain such intensive financial assistance in the long run. High social benefits are only an ad hoc aid for the temporary maintenance of financial continuity of entrepreneurs.  Read more.

First Circuit dismisses Mount Ida student class action, incidentally limits emerging data protection theory

Holbrook Hall, Mount Ida College, Newton, Mass. John Phelan CC BY 3.0

An angle in a recent First Circuit decision deserves a mention in U.S. data protection circles.  I hadn't been aware of this angle of the case, so hat tip to attorney Melanie A. Conroy at Pierce Atwood in Boston for analyzing the case carefully in the The National Law Review.

The First Circuit affirmed dismissal in the ugly and unfortunate matter of Mount Ida College students' class action against the school after its abrupt closure and sale to the University of Massachusetts system.  Conroy's rundown on the case is thorough.  I want only to highlight one important point: the court refused to recognize, in Massachusetts law, a fiduciary duty owed by university to student.

The decision comports with multistate norms, but is nonetheless important in limiting an emerging doctrine of data protection in U.S. common law tort.  State courts that have recognized something like a data protection right in civil cases have used fiduciary duty to bootstrap their way there.

American common law invasion of privacy is too stringent to get the job done, that is, to articulate a data protection right, for various reasons.  One reason is its incorporation of what Professor Daniel Solove termed "the secrecy paradigm": information must be kept secret to remain secret.  Thus, I cannot complain when my bank tells someone about my financial transactions, because I already let my bank know about them.  My resort must be to banking privacy law, by statute.  And there arises the second problem for privacy plaintiffs: statutes are too stringent to get the job done.  I might be unhappy if my employer divulges information about my psychiatric condition to my insurer, but neither one of them is a healthcare provider covered by the federal patient privacy law ("HIPAA"), which does not (directly) provide for a cause of action anyway.

In 2018, the Connecticut Supreme Court bridged the common law gap from statutory insufficiency to actionable privacy claim by relying on the physician-patient duty of confidentiality.  In short, the court held, HIPAA + duty of confidentiality = protectible common law interest.  The court thereby allowed a woman to sue her ObGyn provider upon an allegation of breached confidentiality.  That duty of confidentiality is a form of fiduciary duty.  So a theory emerged of how U.S. common law might stumble its way to recognition of what the rest of the world, especially Europe, calls "data protection."

There are a lot of ways for us to start catching up with the rest of the world in recognizing people's right to personal data integrity; this is just one.  And it remains.  But it is limited by the scope of duties that might stand in for that second piece of the equation.  The Mount Ida case shows correctly that it will be harder for a plaintiff to get there against a business defendant that is not a professional, and the data held are financial information tangential to the nature of the relationship, here, educational.

The First Circuit aptly instructed Mount Ida students that if they wanted better protection for their personal information in state law, their remedy was with the state legislature.  The same can be said for Americans, data protection, and our torpid Congress.

The case is Squeri v. Mount Ida College, No. 19-1624 (1st Cir. Mar. 25, 2020).  U.S. Circuit Judge Lynch wrote for the panel, which also included Stahl and Kayatta, JJ.

Colorful U.S. case of baroness, Swiss bank makes waves in international jurisdiction, student note reports

Swiss banks in Geneva. Photo by torange.biz CC BY 4.0.

Spencer K. Schneider, my eminently able teaching and research assistant, has published a short case note in a research journal, the International Journal of Procedural Law, on a Massachusetts jurisdictional case with interesting facts.

The Massachusetts Appeals Court handed a win to a Swiss heiress who claims she was suckered into a bad investment in alchemy by a fellow aristocrat, a storied Swiss bank, and American entrepreneurs. The lower court erred when it dismissed defendant Swiss bank Rothschild for want of personal jurisdiction, the American appeals court ruled in June 2019.

Mr. Schneider aptly considers: "The American approach to jurisdiction over foreign corporations via personal agency feeds the possibility of inconsistency with jurisdictional law elsewhere in the world, such as under the Brussels Convention in Europe."

The note is Spencer K. Schneider, Aristocrats’ Squabble Over Fortune Squandered on American Alchemy May Expose Swiss Bank to U.S. Jurisdiction, in Michele Angelo Lupoi, Grandes Décisions/Leading Cases, 9:2 Int'l J. Proc. L. 339, 360 (2019).

The case is Von Schönau-Riedweg v. Rothschild Bank AG, 95 Mass. App. Ct. 471, 128 N.E.3d 96 (2019) (Casetext).