Legal Material

THE KU KLUX KLAN ACT OF 1871

Capitol Hill

By: Akanksha A. Panicker

The Enforcement Act of 1871, known as the Ku Klux Klan Act, is an Act of the United States Congress that motivated the President to suspend the writ of habeas corpus to counter the Ku Klux Klan (KKK) as well as other white supremacy associations. The legislation was passed by the 42nd United States Congress and was ratified by the 18th United States President Ulysses S. Grant. The Compliance act was the second of three enforcement acts enacted by the United States Congress from 1870 to 1871 to tackle attacks on African Americans’ suffrage rights and protections during the American Civil War. Since then, the law has only been changed marginally but has been subject to wide interpretation by the courts after initiation.

This Act was ordered by President Grant and was approved soon after he released the request for its passage. Based on the news he was getting of systematic racist threats in the Deep South, Grant tried to preserve African-Americans’ rights. However, he believed that he was required to acquire more control before instilling impact sufficiently to eliminate overt discrimination. For the first time, the president was free to eliminate state disorders on his own initiative and temporarily stop the right of habeas corpus. Grant did not falter in utilizing this power on several occasions during his administration. Consequently, the KKK was entirely disbanded (ending the “first Klan” era) and did not resurface in any significant way until the beginning of the 20th century.

Several of the act’s guidelines continue even as public policy. The most significant of these protections is 42 U.S.C. § 1983, the statute banning human rights deprivation.

[1.0] BACKGROUND IN THE FIRST ENFORCEMENT ACT

The Enforcement Act of 1870, also known as the Civil Rights Act of 1870, allowed the President to implement the Fifteenth Amendment’s first part across the United States. The Act was the first of three Enforcement Acts created by the Congress in 1870 and 1871 to confront challenges to African Americans’ voting rights from state officials or rampant groups like the Ku Klux Klan.

The Enforcement Act of 1870 banned voter registration discrimination on ethnicity, color, and prior servitude. The law created sanctions against individuals restricting elections and granted federal courts the authority to implement the law.

The Act also allowed the President to deploy and sanction the army’s use to guarantee the Act’s compliance and the use of federal marshals to bring proceedings against criminals for electoral abuse, the bribery or coercion of electors, and conspiracies to discourage people from practicing their constitutional rights.

The bill was enacted to secure people’s ability to vote depending on their race.

[2.0] OBJECTIVE OF THE ENFORCEMENT ACT

The Ku Klux Klan Act was the third in the set of Enforcement Acts intended to secure the civil and political rights of four million former slaves then freed. The 14th Amendment, passed in 1868, granted citizenship and fair rights under the law to everyone. However, racial vigilantes like the Ku Klux Klan disrupted the South’s Restoration and even undermined the Republican Party. 

Thus, the President was authorized to intervene in the former rebel states that wanted to deprive ‘every individual or any class of people of the laws’ fair treatment.’

 By penalizing the newly identified federal offense, the President could revoke habeas corpus, impose martial action, or use military force. Opponents to the bill rallied outcry against the law, citing the grounds that it encroached on states’ privileges and breached private freedoms. All the federal government’s control has one individual also emerged as a major concern.

 However, support for the doctrine was also widespread.    Supporters quoted the maintenance of fair treatment promise under the law by fostering equality in the law as ensured by the 14th Amendment. After both the Senate and the House approved the measure, President Ulysses S. Grant signed it into law. Six months later, in October 1871, Grant exercised these forces in many South Carolina counties showing the Republican-led federal government’s ability to use drastic measures to secure the civil and political rights of the freed citizens.

[2.1] HISTORY OF THE THIRD KLAN ACT 

Many states disapproved of the KKK to practice through other channels. Laws were set into motion to outlaw the KKK completely. Numerous members of the KKK were convicted and charged in federal court. The Klan was militant in its public stance after the federal charges report and later somewhat withdrew from the public eye.

In January 1871, a legislative hearing was convened in Congress for KKK witnesses to provide their testimonies. In February, a bill was proposed by Republican Congress Representative Benjamin Franklin Butler of Massachusetts aimed to uphold both the Fourteenth Amendment and the Civil Rights Act of 1866 in a novel anti-Klan bill. 

However, Butler’s bill was narrowly thwarted in the Senate, whereupon a replacement bill was proposed that marginally modified the scope to be not as comprehensive as Butler’s bill. This bill forced a few holdout Republicans into line, and the bill’s passage in the House, Senate, and the signing off by President Grant signified its popularity.

[2.2] HOW THE LEGISLATION WORKED

A. SECTION 1 OF THE ENFORCEMENT ACT

Section 1 of the Act, which has since been amended and codified at 42 U.S.C. § 1983 and is now known as ‘Section 1983’, authorized monetary and injunctive relief against anyone acting under the authority of state law, deprived a person of their constitutional rights. Section 1983 is the most prominent and commonly-litigated civil rights statute. 

Under Section 1983, monetary damages could be awarded to those individuals for whom a State actor had violated the constitutional rights. Ordinarily, violations of constitutional protections are rectified through injunctions by court orders.  

Owing to this precedence, if a person’s right to due process was violated by a correctional officer acting under the state’s authority, this person could sue the guard in civil court for monetary damages. Without the basis in § 1983, such an individual would need to seek a civil suit for the constitutional violation. The major issue with such an operation by the tribunal would be that injunctions, which instruct a party on penalty of contempt if a party does not perform or refrain from performing some action, cannot be used to alter events from the past, only wrongs in the future. Thus, it leaves the individual in a position where the plaintiff has brought an actionable claim with no adequate remedy.  A lawsuit may be brought by anyone seeking the legal cause of action right.

Circumstances changed in 1961 when the Supreme Court articulated the statute’s three important purposes were [A. ]to over-rule particular kinds of state laws  [B.] to provide a remedy where state law was inadequate; and [C.] to provide a federal remedy where the state remedy, though adequate in theory, was not available in practice.

Section 1983 enables citizens to file suit to remedy some of their federally protected rights, like the First Amendment and the Due Process Clause, and the Equal Protection Clause of the Fourteenth Amendment. Section 1983 can be used to enforce violated constitutional rights, such as to protect against discrimination based on race, color, national origin, sex, and religion.

B. SECTION 2 OF THE ENFORCEMENT ACT

Interestingly, this Section of the Act was so long that it was addressed separately, and it received more attention from Congress during the debates. The law prohibited conspiracies against the U.S. government, actions that would put the nation at war, and various other violations. 

Section 2 originally provided for both criminal and civil liability. However, the criminal aspect of the provision was found to be unconstitutional, and therefore, was eventually overturned by the Supreme Court.

The federal civil liability portion of the law was codified at Title 42, United States Code (U.S.C.) § 1985. Section 1985 allows for lawsuits against people who conspire to interfere with the government, obstruct justice, or deprive someone of equal protection under the law.

Section 1985(1) encompasses conspiracies to expel a public official or a legislator from office violently or even prevent them from taking office in the first place or “molest, interrupt, hinder, or impede” officials duties.

Section 1985(2) addresses conspiracies to harm and/or threaten witnesses and jurors in federal courts or to interfere with court proceedings “with intent to deny equal protection of the laws.”

In response to the Klan’s practice of wearing masks and hoods that cover their faces, the legislation prohibits two or more people from wearing disguises or otherwise conspiring to deprive a person or class of people of equal protection of the law or legal rights. Furthermore, Section 1985(3) contains the “support-or-advocacy clauses,” which cover conspiracies to prevent citizens from expressing their beliefs and their support for candidates.

C. SECTION 6 OF THE ENFORCEMENT ACT

Section 6 of the Act imposes civil liability upon persons who know of a violation of Section 1985 or a planned violation of Section 1985 and who are in a position to prevent it but who fail to prevent it. Section 1986 deals with conspirators who deny people their rights, but Section 1983 deals with people who allow such conspiracies to exist. Legislators recognized that the Klan’s political violence could not continue without the tacit approval from local community leaders, who, in turn, were held financially responsible for failure to prevent such acts. This segment of the law is used to prevent terrorism in contemporary days by providing a disincentive for those who would protect or foster a conspiratorial terrorist act.

[3.] ERAS OF USE OF THE KU KLUX KLAN ACT

  1. RESTORATION ERA

During Restoration, federal soldiers were used to imposing the nation’s rule rather than individual state militias, and Klan members were tried in federal court, where the juries were predominantly African-American.   Hundreds of Klansmen were convicted, and habeas corpus was suspended in South Carolina. These actions were so successful that the Klan was defeated in South Carolina and decimated in the majority of the former Confederacy, where it had already been in decline for many years. 

The Klan would not reappear until its recreation in 1915. At their height, though, the ‘first age’ Klan did accomplish much of its targets, such as disenfranchising Southern African-Americans.  In its creation, the Grant Administration saw the legislation being utilized with the Force Act to provide justice against those abusing the Civil Liberties of newly freed African Americans. At the Grant Administration’s conclusion in 1877, regulation of the Act dropped into disuse, and few prosecutions were brought under the law for nearly a century.

  1. USE IN MODERN TIMES: PRESIDENCY OF DONALD TRUMP

Rep. Bennie Thompson, D-Miss, and the NAACP initiated prosecution against former President Trump and former Secretary of State and former New York City Mayor Rudy Giuliani for purportedly collaborating with white nationalist organizations and hate groups to occupy the Capitol and keep electoral votes from being counted in the Electoral College. The plaintiffs used the 150-year-old Enforcement Act statute to justify their assertion.

Thompson and the NAACP allege in the case that Trump, Giuliani, the Proud Boys, and the Oath Keepers used “intimidation, harassment, and threats” to halt the vote count and that the Jan. 6 Capitol riot was the result he was the basis for the breach that triggered the 1871 Ku Klux Klan Act.

In December 2020, the NAACP and Michigan Welfare Rights Association, along with a coalition of Detroit residents, sued President Donald Trump and the Republican National Committee under the Voting Rights Act.

The complaint claims that President Trump and the Republican Party orchestrated a concerted plot to manipulate the 2020 presidential election in Michigan, Georgia, and Pennsylvania by threatening election officials and volunteers.

In February 2021, the NAACP and the law firm  Cohen Milstein Sellers & Toll lodged another case listing Congressman Bennie Thompson as the defendant. Other congresspersons who were already victims joined up to suit.    The lawsuit charges breaches of the State Election Campaign Act relating to the 2021 polls. It further alleges a plot to incite unrest contributing to the 2021 storming of the U.S. Capitol.

[3.2] HOW DOES THE ENFORCEMENT ACT HOLD UP TODAY

While some clauses were deemed unconstitutional in 1883, the 1870 Force Act and the 1871 Civil Rights Act have indeed been invoked in subsequent civil rights confrontations.

The 1871 Civil Rights Act can protect individuals from state action whenever a federal right is violated. Today’s most common use is to demand that the Fourth Amendment be upheld in unreasonable search and seizure.  

The Enforcement Act was intended to give African Americans and those who supported the freedom efforts a federal cause of action, a right to a lawsuit for the deprivation of rights protected by the statute. Consequently, African-American rights activists and jurists have asserted the Enforcement Act’s applicability in the context of current issues, particularly after the insurrection at the Capitol. While the statute itself is rarely used, it is a powerful sanction against white supremacist groups.

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Sources

1. Third Ku Klux Klan Act, Civil Rights Act of 1871, or Force Act of 1871,

2. First Ku Klux Klan Act, or Ku Klux Klan Act (41st Congress, Sess. 2, ch. 114, 16 Stat. 140

3. The act developed from separate legislative actions in the House and Senate. H.R. 1293 was introduced by House Republican John Bingham from Ohio on February 21, 1870, and discussed on May 16, 1870.[5] S. 810 grew from several bills from several Senators. United States Senator George F. Edmunds from Vermont submitted the first bill, followed by United States Senator Oliver P. Morton from Indiana, United States Senator Charles Sumner from Massachusetts, and United States Senator William Stewart Nevada. After three months of debate in the Committee on the Judiciary, the final Senate version of the bill was introduced to the Senate on April 19, 1870. The act was passed by Congress in May 1870 and signed into law by United States President Ulysses S. Grant on May 31, 1870.

4. Administration supporter William E. Lansing of New York dismissed the “mischievous doctrine of State sovereignty” and cited the occurrence of “acts of outrage and violence . . . where the States where they arise have either no capacity or will to prevent.”

5. “Let all groups, divisions, and races of our societies feel that the wellbeing of the one is the welfare of the other.”.

6. Called by  Republican Senator John Scott of Pennsylvania

7. This replacement bill was signed in by Republican Representative Samuel Shellabarger from Ohio

8. 42 U.S.C. § 1983 now reads:

Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in action at law, suit in equity, or another proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For this section’s purposes, any Act of Congress applicable exclusively to the District of Columbia shall be considered a statute of the District of Columbia.

9. The overturning of Section 2 was done in the 1883 case United States v. Harris

10. now codified at 42 U.S.C. § 1986

11. Famously seen in the 1964 murders of Chaney, Goodman, and Schwerner; the 1965 murder of Viola Liuzzo; and in Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263 (1993), wherein the court ruled that “The first clause of 1985(3) does not provide a federal cause of action against persons obstructing access to abortion clinics.”

DECONSTRUCTING THE FILIBUSTER

Capitol Hill

By Akanksha A. Panicker

A filibuster is a parliamentary procedure that essentially blocks a measure from being brought to a vote, most commonly being used in an attempt to delay a bill or even stop it altogether by prolonging debate on it. The filibuster method is used in the U.S. Senate to keep an account from having a vote. The Senate filibuster is a traditional legislative pause method where one or more senators try to block a bill from voting by extending the proposal’s discussion. The Senate rules authorize a senator, or a sequence of senators, to talk for as long as required or desired, on just about any issue they prefer, until ‘three-fifths of the Senators duly chosen and sworn’ (currently sixty out of 100) agree to end the debate by triggering cloture under Senate Rule XXII(22).

The Senate cloture rule, which needs sixty votes to approve most bills, is a  formidable challenge for any new president’s legislative agenda. Opinions from both sides have lobbied for changes in the midst of partisan gridlock, and the filibuster has often been central in this battle. 

[1.0] BACKGROUND

The opportunity to discuss a bill indefinitely and thereby stop a measure from progress was a by-product of a rule reform in 1806 and was seldom used until the 20th century. In 1970, the Senate modified the previous ‘two-track’ method to prevent indiscriminate use of the filibuster from impeding Senate business. The minority felt safer threatening filibusters more often, and as a result, sixty votes rather than forty-one became the standard needed to avoid discourse on virtually any contentious topic. As a result, the contemporary Senate has been a sixty-vote legislature, a surprising extant standard for authorizing legislation or matters.

Efforts to restrict the tradition include legislation that renders it disallowed to discuss the Senate for more than a given amount of time, such as the Congressional Budget and Impoundment Control Act of 1974. In 2013 and 2017, the Senate reduced the threshold of achievement for triggering cloture to a simple majority, but most legislature requires sixty votes.

One or more senators may occasionally hold the floor for an extended period, sometimes without the Senate leadership’s advance knowledge. However, these ‘filibusters’ usually result only in brief delays. They do not determine outcomes since the Senate’s ability to act ultimately depends upon whether there are sufficient votes to invoke cloture and proceed to a final vote on passage. However, such brief delays can be politically relevant when exercised shortly before a major deadline (such as avoiding a government shutdown) or before a Senate recess. 

[1.2] HISTORY

Using the filibuster to delay or block legislative action has a long history. The term filibuster originated from a Dutch word for pirate. The name rose to popularity in the 1850s when applied to efforts to hold the Senate floor to prevent a vote on a bill.

It was only recently that the filibuster became an option for Senators alone. In the formative days of the Congress, both delegates and senators could become involved in a filibuster. However, when the House of Representatives included more members, the revision of the House’s laws contributed to the restricting of debate. The Senate continued discussing whether the tiny Senate should allow unrestricted discussion on any topic and whether any senator should also have the freedom to talk as long as possible on every issue.

By 1917, the Senate introduced legislation (Rule 22) relying upon President Woodrow Wilson’s support to bring an end to the debate with a two-thirds majority vote. Thus, this legislation birthed the cloture rule, the use of which was at its most historically significant when the Senate called for cloture to end the filibuster against the Treaty of Versailles. Even with the revised cloture law, filibusters remained an important way of blocking bills, as it is arduous to achieve a two-thirds majority in Senate voting.  For the next five decades, the Senate has periodically attempted to use cloture but has typically struggled to win the requisite two-thirds of the vote. Filibusters became especially beneficial to Southern senators who tried to block equal rights measures, including anti-lynching legislation, until, after a sixty-day filibuster against the Civil Rights Act of 1964, the closure was invoked. In 1975, the Senate lowered the number of votes needed to be closed from two-thirds to three-fifths, or sixty of the existing hundred senators. In 1979 and 1986, the Senate further limited debate once the Senate had imposed cloture on the pending business.

Consequentially, the discussion will only be suspended on specific Senate topics if at least sixty senators accept it. This rule is not uniformly accurate, however. Although the Senate laws now need only a simple majority to enact the law ultimately, some procedural measures along the way require a supermajority of sixty votes to conclude the discussion on the legislation. 

[2.0] PROCEDURE FOR THE FILIBUSTER

Senators possess two alternatives when the time comes to cast a vote on a measure or resolution. Quite commonly, the majority leader (or another senator) requests ‘unanimous consent,’ addressing a hundred senators to identify if any one of the objects to the debate’s conclusion and a vote. If no objection has been raised, the Senate shall proceed to an option. When the majority leader cannot gain all hundred senators’ consent, the Senator who brought forth the motion for conclusion typically considers a cloture motion, which then allows Sixty votes to be taken. If less than sixty senators, the chamber’s supermajority, favor cloture, that’s when the filibuster is said to have occurred.

The extended debate is only one technique for delaying legislative action. A filibuster could also allow for [A.]anonymous holds that would allow senators to block bills or nominations that require unanimous consent of senators to be voted on [B.] continual introduction of amendments with filibustering senators reading each amendment in full, rather than waiving the right to do so, as is customary to take up time, [C. ]  lengthy roll-call votes on each amendment and other issues, using up time, [D.] quorum calls, which ascertain the number of senators present, used to delays and forced senators to return to chamber and [E.] delay of the bill’s final passage for up to two weeks even after cloture is passed. 

[2.1] EXCEPTIONS TO THE FILIBUSTER

The function of the Senate currently entails the submission of cloture motions; there are few significant exceptions. The most notable among these include promotions to executive offices and federal judgeships. Due to two constitutional amendments introduced in 2013 2017, only a simple majority is needed to complete the discussion. The second covers specific policy categories on which the Congress has hitherto adopted special procedures penned in the statute itself that restrict the time for discussion. There is no real reason to invoke cloture to circumvent the debate as there is a set period of time for discussion in these situations. Special budget laws, known as the budget reconciliation process,  are most commonly thought of when considering this self-timed legislation debated. These budget processes mandate a clear majority to pass such bills concerning entitlement expenditure and revenue requirements, thus preventing the filibuster from occurring in the first instance. 

Additionally, Congress has periodically provided a  supposed ‘fast track’ authority for the President to negotiate international trade agreements. After the President submits a deal, Congress can then approve or deny the agreement but cannot amend it nor filibuster.

[3.0] CONSEQUENCES AND PROCEDURE IN THE EVENT OF ELIMINATING THE FILIBUSTER

Indeed, the most direct approach to abolishing the filibuster would be to officially modify the text of Rule 22 of the Senate since it exists as the sanctioning cloture rule responsible for the mandate of sixty votes to conclude the parliamentary debate. However, a major issue with amending Rule 22 is that shelving the debate on a motion to amend the Senate’s standing rules cannot move forward without the approval of two-thirds of the Senate members in their full legislature capacity ( being present and voting). In the absence of a broad, bipartisan Senate majority favoring a restriction in the right to debate, a formal amendment to Rule 22 is exceedingly dubious, although the most comfortable way forward on paper.

The development of a new Senate precedent to ban the filibuster will likely be a more grueling journey. In addition to its formal guidelines, the Chamber’s precedents give further insight into how and why the rules have been implemented in different ways. Crucially, in certain cases, that solution to eliminating the filibuster- colloquially recognized as the ‘nuclear option’ but more formally classified as the ‘reform by the ruling’- can only be deployed by using the help of a simple majority of senators.

The nuclear choice integrates the premise that a new precedent may be set by a senator introducing a point of order or arguing that a Senate law is being abrogated in its effect. Upon approval by the president officer (usually a member of the Senate), the vote sets a new precedent. If the president officer disagrees, their decision may also be d challenged. If the majority of the Senate votes to revoke the Chair’s decision, the reverse of the Chair’s decision will become a new precedent.

In a procedural twist, the Senate used this approach in 2013 and 2017 to reduce the number of votes needed to debate nominations.  Through an ingenious use of the point of order system, the majority leader put forth the nominations via non-debatable motions. However, they thereinafter vocalized the point of order, citing that the cloture vote needed the majority vote that violated the principle of the non-debatable movements. The presiding officer ruled against the end of the charge, but the ruling was overturned on appeal. Interestingly, the request that overturned the ruling also required only a majority in support. The parliamentary procedure can thereinafter be used in a manner to phase out the filibuster procedure. 

[3.1] REDUCING THE EFFECTIVENESS OF THE FILIBUSTER

The Senate could still try to undermine the filibuster before wholly banning it. A Senate majority may trigger a less-radical version of the nuclear plan that prohibits filibusters on individual motions but otherwise retains the sixty-voting law unaffected. A majority in the Senate might prohibit senators from filibustering a motion responsible for a  bill to commence (known as the motion to proceed).  Hence, senators’ ability to filibuster the new account or amendment will be retained while essentially shutting out the supermajority hurdle for beginning a vote on a statutory proposal.

The principle of supermajority has made it extremely difficult, frequently inconceivable, for Congress to implement anything but the least contentious bills in recent years. The quantum of bills approved by the Senate has significantly plummeted. Meanwhile, voter acceptance of Congress as an entity has nosedived, with major components of the community viewing the institution as ineffective. Changing majorities of both parties and their supporters have also been unsuccessful in achieving core legislative goals expressed in electoral campaigns since these goals cannot be realized after the election. An example that most clearly highlights the situation was when the Democratic Party, despite their substantial majority in the 111th Congress, still had to withdraw the Affordable Care Act’s ‘public option’ clause because senator-Joe Lieberman of Connecticut had threatened to filibuster the bill if it stayed.

There is also no objective formula to quantify the extent to which the filibuster is still employed through the years. Senators are not allowed to officially register their opposition to the conclusion of the debate until a cloture resolution is finally put to the ballot. If Senate leaders recognize that at least 41 senators expect to reject a cloture vote on a particular bill or motion, they frequently opt not to schedule it for debate on the floor. But the number of cloture movements filed is a convenient metric for the calculation of filibusters. The number of such activities has risen dramatically in the 20th and 21st centuries after the popularisation of the filibuster’s second life.

For information on serving legal papers, click here or call (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST.  If you found this article helpful, please consider donating.  Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us!  We also invite you to check out our Frequently Asked Questions About Process Servers by clicking here.

Sources

1. At times, the ‘nuclear option’ has been proposed to eliminate the sixty vote threshold for certain matters before the Senate. The nuclear option is a parliamentary procedure that allows the Senate to override one of its standing rules, including the sixty-vote rule to close debate, by a simple majority (51 votes if all 100 senators are present) than the two-thirds supermajority typically required to amend the controls.

2. On November 21, 2013, by overturning a ruling of the chair on appeal, the Senate set a precedent that lowered the vote threshold required by Senate Standing Rule XXII for invoking cloture on most presidential nominations. The precedent did not change the text of Rule XXII of the Standing Rules; instead, the Senate established a precedent reinterpreting the provisions of Rule XXII to require only a simple majority of those voting, rather than three-fifths of the full Senate, to invoke cloture on all presidential nominations except those to the U.S. Supreme Court.

3. “Vote on S. Con. Res. 3, 115th Congress”. U.S. Senate.

The Senate passed the FY17 budget resolution that included reconciliation instructions for health care reform by a 51–48 vote on January 12, 2017, and by the House on a 227–198 option the following day. The House later passed the American Health Care Act of 2017 as the FY17 budget reconciliation bill by a vote of 217–213 on May 4, 2017

4. Budget reconciliation is a procedure created in 1974 as part of the congressional budget process. In brief, the annual budget process begins with adopting a budget resolution (passed by a simple majority in each house, not signed by the President, does not carry the force of law) that sets overall funding levels for the government. The Senate may then consider a budget reconciliation bill, not subject to filibuster, that reconciles funding amounts in any annual appropriations bills with the amounts specified in the budget resolution. However, under the Byrd rule, no non-budgetary ‘extraneous matter’ may be considered in a reconciliation bill. The presiding officer, always relying (as of 2017) on the Senate parliamentarian’s opinion, determines whether an item is extraneous, and a sixty-vote majority is required to include such material in a reconciliation bill.

5. Beginning in 1975 with the Trade Act of 1974, and later through the Trade Act of 2002 and the Trade Preferences Extension Act of 2015,

6. The Senate’s Standing Rules are the parliamentary procedures adopted by the United States Senate that govern its operation. The Senate’s power to establish rules derives from Article One, Section 5 of the United States Constitution: ‘Each House may determine the management of its proceedings…

7. At the 85th Congress in 1957-59, more than 25 percent of all bills proposed by the Senate were eventually enacted; by 2005, the number had fallen to 12.5 percent, and by 2010, only 2.8 percent of the bills introduced became law—a 90 percent decline from the previous 50 years

INSTRUCTIONS FOR FILING A LEGAL ACTION AGAINST NEW YORK

Supreme Court

By: Akanksha A. Panicker

Negligence by government agencies can lead to many injuries suffered by the victim. Consequently, suing a government agency provides the individuals who have suffered harm to be recompensed by the overseeing department. However, the procedure to institute this suit requires a significant amount of legal backing, and frivolous claims are seldom entertained. In the United States, the federal government has sovereign immunity and may not be sued unless it has waived its immunity or consented to suit. The United States as a sovereign is immune from suit unless it unequivocally consents to be sued.

The concept of ‘sovereign immunity‘ additionally also prevents the city and state of New York from being sued unless they consent. Consent is easily obtained, although it must be accepted on a case-wise basis and under notice provided by the victim or their representatives. Failure to file the documents appropriately means that the government entity is well within its rights to disregard the suffered damages.

Once the Notice of Claim is filed, the city will request a hearing in which the accident victim will be required to testify under oath. Only then would the individual be able to sue the city.

[1.0] HOW TO SERVE NEW YORK CITY

When attempting to sue a Municipality or Government Agency, one must be aware of the concept of sovereign immunity. A city, county, the State of New York, or other government agencies cannot be sued unless they consent to the suit being instituted. The requirement in New York is the filing of a Notice of Claim.

A Notice of Claim must be filed within a specific period of time, or the lawsuit cannot be filed at all. Customarily that time period is 90 days. The New York City Comptroller’s office is responsible for monitoring the settlement of claims against the city. Where a request is made, the Comptroller’s Office is required to review the same. The Comptroller’s Office will extend a mediation offer or an offer for settlement if they consider it apt based on the investigation results.

A precondition to holding the City liable for injuries that arise from potentially hazardous circumstances is noticed, as laid down by New York law. A notice of claim must be properly served within 90 days from the date of occurrence of the injury. On the office of the Comptroller, service is required to be via [A.] electronically via the claim system, [B.] personal delivery, or [C.] registered or certified mail. A notice of claim must be filed in writing.

[1.1] REQUIREMENTS OF A NOTICE OF CLAIM

A Notice of Claim must have [A.] the name and address of both the party filing the claim and the attorney representing them, [B.] details and the nature of the request, [C.] nature of the injuries, [D.] damages sought. It is necessary for the Notice of the claim to be sworn to and attested in a verification process. Since Claim’s Notice serves as the first notice that the municipality or the City would know about, it is necessary to furnish them with full and sufficient facts of the case.

If a notice of claim is required to be filed against the City of New York, it is vital to ensure that this Notice has been provided to the right municipality or agency. This is because the filing of the claim in an agency that is no qualified to hear and return said notice will render it void, often leaving the claimant without remedy. Especially since Notice of Claim is time-bound, it is necessary to ensure that the ninety-day period for filing has not run its course. It is very seldom that a Court permits the filing of a late Notice of claim.

Filing a claim within the notice period is not the same as complying with the Statute of Limitations. The Statute of Limitations is an explicit timeframe within which a lawsuit must be filed. However, the Statute of Limitations only comes into play once the minimum requirements for filing a Notice of Claim have been reached.

[2.0] HOW TO SUE THE STATE OF NEW YORK

Suing the state of New York means that the suit must be brought in the New York State Court of Claims to get damages. Of course, there are certain exceptions in public authorities. Furthermore, the court does not have jurisdiction over individuals, whether they are in the State’s employ. If a state agency is at fault, the suit should not be against the particular agency but, rather, against the State of New York.

Individual public bodies with a distinct legal status and identities are considered to be sued via their nature as state entities. Still, they can also be prosecuted under their own names. A portion of these public authorities are not charged in the Court of Claims, but in State Supreme Court, under the provisions of their local codes: the Public Authorities Law of the General Municipal Law. The statute defines the particular area where the agency may be sued; the Court of Claims or the State Supreme Court. Municipal governments are prosecuted under the General Municipal Law.

The Court of Claims does not have authority over claims against county jails, detention institutions, or the charges of carelessly servicing county roads. Furthermore, in addition to the Attorney General, the New York State Thruway Board, the New York City University of New York, and the New York State Power Authority will also require the particular defendant to be served.

Like for the city, most claims against the State require action to be taken within a very narrow framework. Common between suits against the State as heard in the Court of Claims or against a local government as heard in the State Supreme Court is the notice period for undertaken actions. This period usually lasts 90 days.

[2.1] SERVING NEW YORK STATE

It is also important to prepare a claim to sue in the Court of Claims. This claim must be filed with the court clerk and also served on the New York State Attorney General. As usual, a personal delivery service is preferred, although a certified mail return receipt is also acceptable. However, post COVID-19 concerns, service requirements have also changed.

A USD 50 fee is required when filing a Claim. It is important to bear in mind that the Claim can only be deemed filed when it is actually received by the Clerk of the Court or the Chief Clerk. The claim can be filed by personally delivering it, by regular mail, and even by fax.

For certain cases, lawsuits may be filed even after three years of accrual of the right to claim, although some claims can only be filed within one year of right accrual. Personal and property injury incidents require claims to be filed within 90 days. For wrongful death, the statute of limitations for litigation is ninety days from the appointment of an executor or administrator of the estate of the deceased but not outside two years after the demines. Breach of contract requires a six-month statute of limitations. A person’s condition or disability can extend the time limit to two years after it ends. Additionally, The suit must be started within one year and 90 days of the injury. This applies to all the city’s agencies.

The Claim contains vital details about when and how the claim occurred, and the harm documentation should be included to understand the damages claimed.    It must provide the State with ample notice and must assert evidence sufficient to state an argument. If it cannot furnish the same, the case may be thrown out.

When a prospective claimant issues a Notice of Intent to File a Claim, it will extend the filing of their claim as well as the service to at least one year from the date the claim was incurred. The Notice of Intention document must be served upon the Attorney General, and where the defendant is a non-State of New York entity, the form is must also be done on the non-state entity.

When a claim is not filed appropriately, one may file a motion asking to later file the request. If an individual pleads and files the Notice of Intention but refuses to comply with the service requirements or filing a lawsuit, they may make a motion to treat the Notice of Intention as a claim.  The state of New York has a variety of divisions, departments, agencies, and commissions. Just because an entity has ‘New York State’ in its title does not mean that it is part of the state; it may be a public corporation with its own status.

[3.0] SERVING THE UNITED STATES AND ITS AGENCIES, CORPORATIONS, OFFICERS, OR EMPLOYEES.

To serve the United States, a party must deliver a copy of the summons and the complaint to the United States attorney. This attorney is specific to the district where the action is brought and is an imperative part of the process. However, service may be made upon an assistant United States attorney or clerical employee whom the United States attorney designates in writing filed with the court clerk.

Service by registered and certified mail may also be done. A copy of the summons and complaint should be sent either to the [A.] civil-process clerk at the United States attorney’s office or [B.] to the Attorney General of the United States at Washington, D.C. Additionally, if the action challenges an order of a non-party agency or officer of the United States, a copy of the summons and complaint should be sent by registered or certified mail to the agency or officer.

It must be noted that service upon a United States agency or corporation would require assistance upon the United States and a copy of the summons and complaint to the agency, corporation, officer, or employee. In fact, an officer or an employee of the United States can be sued in an individual capacity for an act or omission that occurred in conjunction with duties performed on behalf of the United States, as long as the United States has also been served. For the above provisions, service must be done through registered or certified mail.

[3.1] FEDERAL TORT CLAIMS ACT

A federal employee’s negligent action can lead to a lot of worry for the injured individual and their family. The Federal Tort Claims Act (FTCA) provides individuals the right to file a claim for the damage that they have incurred. Since citizens have often not been able to sue their state under the umbrella of sovereign immunity, the FTCA constitutes a limited waiver of sovereign immunity, permitting citizens to pursue some tort claims against the government.

An FTCA claim must be against a federal employee, not an independent contractor. This would provide a restriction on who can be sued since a prerequisite for this is a requirement for the negligent conduct conducted during the federal employee’s time holding the office. It has been customary for claims of negligence rather than willful misconduct to be allowed under the FTCA. An exemption to this occurs when a federal law enforcement official has perpetrated the wrongdoing.

It is necessary to file a Notice of Claim with the federal agency responsible for the injury before instituting a claim against the government insofar as a Notice of Claim acts as preliminary information communicated to seek restitution government. For a federal lawsuit, Standard Form 95 must produce knowledge about themselves and the unfortunate circumstances that they have suffered. Furthermore, the damages sought must be provided in a manner that quantifies the same in monetary values. While Standard Form 95 is not mandatory, it streamlines the process of submitting the claim for approval.

Suing the city, the state of a country seems like a daunting task on the face of it. While it is more complicated than suing a private citizen, suing the government follows a structure that has been laid down through several statutes. It is discouraging when the lawsuits are subject to a lengthy and sometimes confusing list of limitations. Yet, a case can be instituted with relative ease as long as the claim requirements have been satisfied.

For information on serving legal papers, click here or call (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST.  If you found this article helpful, please consider donating.  Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us!  We also invite you to check out our Frequently Asked Questions About Process Servers by clicking here.

Sources

1. The United States Supreme Court in Price v. the United States observed: “It is an axiom of our jurisprudence. The government is not liable to suit unless it consents thereto, and its liability in a suit cannot be extended beyond the plain language of the statute authorizing it.

2. Sovereign immunity, or crown immunity, is a legal doctrine whereby a sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution, strictly speaking in modern texts in its own courts. A similar, more vital rule as regards foreign courts is named state immunity.

3. Tort claims against some Authorities should not be served on the Comptroller’s Office and must be done on the Authority or its designated agent:

 

  1. New York City Transit Authority (NYCTA)
  2. New York City Housing Authority (NYCHA)
  3. Triboro Bridge & Tunnel Authority
  4. Port Authority of NY and NJ
  5. Manhattan, Bronx Surface Transit Operating Authority (MABSTOA)
  6. New York City School Construction Authority
  7. New York City Health + Hospitals (HH)
  8. Staten Island Rapid Transit Authority
  9. MTA Bus Company (MTABC)
  10. Metropolitan Transportation Authority (MTA)
  11. Hugh L. Carey Battery Park City Authority

4. New York City Administrative Code 7-201(c)(2)

No civil action shall be maintained against the city for damage to property or injury to person or death sustained in consequence of any street…[or] sidewalk…being out of repair, unsafe, dangerous or obstructed, unless it appears that written notice of the defective, unsafe, dangerous or obstructed condition, was actually given to the commissioner of transportation or any person or department authorized by the commissioner to receive such notice, or where there was the previous injury to person or property as a result of the existence of the defective, unsafe, dangerous or obstructed condition, and written notice thereof was given to a city agency, or there was written acknowledgment from the city of the defective, unsafe, dangerous or obstructed condition. There was a failure or neglect within fifteen days after the receipt of such notice to repair or remove the defect, danger or obstruction complained of, or the place otherwise made reasonably safe.’

5. Under the New York State General Municipal Law § 50-e

6. New York Consolidated Laws, Public Authorities Law – PBA § 1317. Actions against the authority

As a condition to the consent of the state to such suits against the police, in every battle against the law for damages, for injuries to real or personal property or the destruction thereof, or personal injuries or death, the complaint shall contain an allegation that at least thirty days have elapsed since the demand, claim or claims upon which such action is founded were presented to a member of the authority or other officer designated for such purpose and the administration has neglected or refused to make an adjustment or payment thereof.

7. NY Gen Mun L § 119-O (2015)

8. How to serve the attorney general: Consistent to maintain social distancing for the health and safety of the public and employees of the OAG, the OAG is encouraging parties to effect personal service by mail through the procedure outlined in CPLR 312-a.

See: Notice for Personal Service New York State Attorney General, https://ag.ny.gov/service-oag.  

9. Inclusive of a United States officer or employee sued only in an official capacity.

10. Federal Rules of Civil  Procedure, Rule 4. Summons

11. All existing, pending, and threatened litigation, as well as unasserted claims, should be reported by the Department of Justice and all other government agencies using their respective appropriate formats

12. The Federal Tort Claims Act (August 2, 1946, ch.646, Title IV, 60 Stat. 812, 28 U.S.C. Part VI, Chapter 171 and 28 U.S.C. § 1346) (‘FTCA’) is a 1946 federal statute that permits private parties to sue the United States in a federal court for most torts committed by persons acting on behalf of the United States.

 

UNDERSTANDING THE  FREEDOM OF INFORMATION ACT

Capitol Hill

By: Akanksha A. Panicker

The  Freedom of Information Act allows the complete or selective dissemination of previously unreleased information and documentation controlled by the United States government and federal freedom of information law. The Act renders department information liable to transparency, establishes required disclosure policies, and specifies nine exemptions to the statute. 

The Act was designed to cause U.S. government agencies’ operations to be increasingly accessible. The American public might more readily find government functioning deficiencies and clamp down on their representatives to resolve these issues. The Freedom of Information Act refers to information maintained by Federal departments inside the executive branch. The executive branch comprises cabinet offices, military departments, government companies, independent administrative organizations, and independent regulatory commissions.

The Freedom of Information Act does not cover elected members of the nation, including the president, vice president, judges, and delegates. The FOIA does not extend to the Federal judiciary. The FOIA primarily extends to entities. It does not extend to private corporations, companies that accept Federal grants, non-profits, or state or municipal governments.

Although the public is aware of the media’s usage of FOIA for garnering information for journalistic purposes, companies, law firms, and individuals are often far more regular requesters of personal details. It has been noted that the fundamental aim of the FOIA is to ‘open … up the workings of government to public scrutiny.’ One of the principles of that mission is the conviction that ‘an informed electorate is vital to the proper operation of a democracy.’ A more precise intention implied in the aforementioned ideals is to provide people access to the knowledge on the basis on which government institutions make their decisions, thus equipping the people to analyze and critique those choices.

  1. EXCLUSIONS

By amending the Freedom of Information Act in 1986, Congress essentially shielded sensitive law enforcement matters. The Congress offered special safeguards for three narrow divisions of law enforcement and national security documentation. The restrictions governing these documents are classified as ‘exclusions.’  These exclusions are particular in their scope and the circumstances in which they function, expressly authorizing federal law enforcement agencies under these circumstances to “treat the records as not subject to the requirements of the FOIA.”

The first exclusion safeguards an open federal law enforcement inquiry wherein the investigation’s target is ignorant that the investigation is underway and disclosure of the investigation would fairly be likely to conflict with the operation. 

The second exclusion is restricted to criminal law enforcement authorities, which covers informant data when the informant’s status is ambiguous. 

The third exclusion is restricted to the FBI, which covers the presence of global intelligence or counterintelligence, or international terrorism documents when the existence of those records is protected. Records excluded by statute are not subject to the provisions of the Freedom of Information Act.

[1.0] SCOPE OF THE FREEDOM OF INFORMATION ACT

The Act explicitly applies only to executive branch government agencies. These agencies are under several mandates to comply with public solicitation of information. Coupled with making public and accessible all bureaucratic and technical procedures for applying for documents from that agency, agencies are also subject to penalties for hindering the process of a petition for information. If “agency personnel acted arbitrarily or capriciously concerning the withholding, Special Counsel shall promptly initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding.”

It must be noted at this juncture that if disclosure of the information is in the public interest and is imminent in significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester, then the documents are furnished at either a lower cost or no cost at all. 

In this way, there is recourse for one seeking information to go to a federal court if suspicion of illegal tampering or delayed sending of records exists. However, there are nine exemptions to the FOIA, addressing issues of sensitivity and personal rights. 

  1. Exemption 1  of the Freedom of Information Act prevents publication of information that has already been considered confidential “under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy.” It is “in fact properly classified under such Executive order.” The Supreme Court has acknowledged that the President bears liability for securing national security, including developing policy that establishes what information must be classified to prevent harm to national security. The first exception covers all parts of the FOIA which are correctly labeled. . This exemption is specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy, and Exemption (B) is, in fact, properly classified under such Executive order; 
  2. Exemption  2   of  the  Freedom  of  Information  Act  exempts  from  mandatory  disclosure records that are “related solely to the internal personnel rules and practices of an agency.”  The Supreme Court has held that agencies must look to Exemption’s plain language to determine its scope. Based on Exemption 2’s text, and as set forth by the Supreme Court in Milner v. Department  of  the  Navy,  three  elements  must  be  satisfied  for  information  to  fit  within Exemption 2, being [A.] that the information must be related to ‘personnel’ rules and practices, [B.]  that the information must relate “solely” to those personnel rules and practices and [C.] that the information must be “internal”‘ meaning that ‘the agency must typically keep the records to itself for its own use.’
  3. Exemption 3 is specifically exempted from disclosure by statute (other than section 552b of this title). This is under the mandate that either [A.] the matters be withheld from the public in such a manner as to leave no discretion on the issue, or [B.] a particular criterion is established for withholding or refers to particular types of matters to be withheld. Exemption 3 of the Freedom of Information Act incorporates certain nondisclosure provisions into the FOIA provisions in other federal statutes.  Exemption  3  allows for the withholding of information prohibited from disclosure by another federal statute provided that one of two disjunctive requirements are met. Each year, agencies must list all  Exemption  3  statutes that they relied upon during the year’s Annual FOIA Reports. 
  4. Exemption 4  covers two distinct categories of information in federal agency records:  [A.’ trade secrets, and [B.]  information that is (a) commercial or financial, and (b) obtained from a person, and (c) privileged or confidential. 
  5. Exemption  5  of  the  Freedom  of  Information  Act  protects  “inter-agency  or  intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.”  Interpretations of the statute have been vague, courts believing the statute to specify the “exemption of  those  documents,  and  only  those  documents  that  are  normally  privileged in the civil discovery context.” The Supreme Court has since clarified that the coverage of Exemption 5 is quite broad, encompassing both statutory privileges and those commonly recognized by case law and that it is not limited to those privileges explicitly mentioned in its legislative history. This exemption hence covers all civil discovery mechanisms.  
  6. Exemption 6 protects personal privacy interests alongside and  7(C). Exemption  6  protects  information  about  individuals in “personnel and medical files and similar files” when the disclosure of such information  “would  constitute  a  clearly  unwarranted  invasion  of  personal  privacy.” A four-step procedure is laid down in this regard, the exemption requiring [A.] determination of whether the information at  issue  is personnel,  medical,  or  “similar”  file; [B.] determination of whether there is a  significant  privacy interest in the  requested  information, [C.] an evaluation of the requester’s asserted FOIA public interest in disclosure; and [D.], if there is a significant privacy interest in nondisclosure and an FOIA public interest in disclosure, balancing of those competing interests is imperative to determine whether disclosure  “would constitute a  clearly unwarranted invasion of personal privacy.
  7. Exemption 7 addresses records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information [A.] could reasonably be expected to interfere with enforcement proceedings; [B.]  would deprive a person of a right to a fair trial or an impartial adjudication, [C.] could reasonably be expected to constitute an unwarranted invasion of personal privacy, ([D.] could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source; [E.] would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or [F.] could reasonably be expected to endanger the life or physical safety of any individual; 
  8. Exemption 8 pertains to the information contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions
  9. Exemption 9 provides a basis for the exemption of geological and geophysical information and data, including maps, concerning wells

The Postal Reorganization Act exempts the United States Postal Service (USPS) from the disclosure of “information of a commercial nature, including trade secrets, whether or not obtained from a person outside the Postal Service, which under good business practice would not be publicly disclosed.” Significantly, courts have held that the requirements of the FOIA do not begin to apply until an agency receives a proper FOIA request – one that reasonably describes the records sought and complies with published rules regarding procedures to be followed

[3.0] REQUIREMENTS OF AGENCIES 

Each agency is mandated to reveal to the Federal Register the public information as to descriptions of its central and field organization and the established place, methods, and employees from whom the public may obtain information, make submittals or requests, or obtain decisions. It is also necessitated in this regard for statements of functions of the agency and the nature and requirements of all formal and informal procedures available. This means rules of procedure, forms, or instructions at which papers could be made accessible under this act’s umbrella.

Under the FOIA Act, an agency is mandated to release substantive rules of general applicability adopted as authorized by law and statements of general policy or interpretations of general applicability formulated and adopted by the same. 

Each agency should maintain and render available for public inspection a record of each member’s final votes in every agency proceeding. Under the FOIA Act, a time limit of twenty days is provided to notify the requestor of whether the request will comply. It is necessary to enumerate to the requester [A.] such determination and the reasons therefor; [B.] the right to seek assistance from the FOIA Public Liaison of the agency; and in the case of an adverse determination [C.] the right of such person to appeal to the head of the agency not less than ninety days after the date of such adverse determination with an option to seek dispute resolution services from the FOIA Public Liaison of the agency or the Office of Government Information Services

Of course, the twenty-day period is extendable if the agency reaches out to the requester for more information or fee assessment. However, the twenty-day window may also be extended by ‘unusual circumstances’ specified in a written notice to the requestor. These circumstances must be specified and an extension to be reasonably communicated. The agency must notify the individual about their request’s status if it was unable to be processed within the time limit. 

To make matters easier for the requester, each agency must make its FOIA Public Liaison available, responsible for addressing any disputes between the requester and the agency, and notify the requester of the requester’s right to seek dispute resolution services from the Office of Government Information Services. 

[4.0] THE IMPACT OF THE FREEDOM OF INFORMATION ACT 

The FOIA specifies the protocols and methods for deciding the information that must be released and which documents should be excluded. Under the statute, there are administrative and judicial options for persons who are refused access to documents. The primary aim is to provide the public with as much knowledge as practicable. The background of this act ideates its nature as a disclosure statute. It expects that the requested documents are to be disclosed, and the agency must actively justify its withholding of information given the act’s exemptions from disclosure. Implementing the act’s exemptions is a permissive statute; if the requested information requires protection, disclosure is optional.   Therefore, when deciding whether FOIA covers a document, a document or collection of records must be retained in situations when the department legitimately assumes the publication will be detrimental to an interest shielded by an exemption. When a requestor applies for a series of records, the organization must disclose all the documents, not just a list or subsection of these files. Contrary to the Department of Justice’s October 12, 2001 guidelines, the standard to withhold information should not be to withhold information whenever there is a sound legal basis for doing so.

[4.1] INDIVIDUAL PRIVACY IN CONTEXT OF THE FOIA

The Privacy Act of 1974 is a counterpart of the Freedom of Information Act. The Act controls how the Federal Government treats sensitive records in the context of recordkeeping and disclosure practices. The act offers a simple way for citizens to review records of themselves maintained by Federal agencies. Federal legislation mandates that personal records be correct, full, appropriate, and timely about agency files. The focus of the record is empowered to question the authenticity of the information maintained.

The Act demands that the subject be aware of how their information will be utilized and that the information was obtained from the individual themselves. The Privacy Act offers people legal redress where their privacy rights have been breached. A further critical provision of the Privacy Act is that agencies are required to publish a chronicle regarding any system of documents they retain that includes any personally identifying details. This prohibits organizations from maintaining or concealing secret documents.

The Privacy Act further forbids Federal agencies from releasing personally identifying details that have been collected. Together under the Freedom of Information Act, the Privacy Act provides that personal files may be revealed to the subject individual. The two rules keep personal information private, where exposure would breach the privacy rights of the individual.

Although the Freedom of Information Act and the Privacy Act encourage disseminating department records, they also shield information that should remain confidential. Thus, agencies can withhold information appropriately classified according to the needs of national security and foreign policy investigations. Other forms of information could be omitted as well, depending on the agency that governs it.

The key aspect of both laws is that they retain Government Agencies’ obligation to disseminate records. The Freedom of Information Act and the Privacy Act establish the ability to submit a request and access documents, and respond to the request. If the documents do not qualify for publication,  the requester is supplied to justify why publication is impossible. The requester is further entitled to an appeal and, if necessary, brings a suit appealing the rejection. The foregoing privileges add meaning to the legislation and render it workable. To avoid unreasonable and unreviewable, Federal Government acts, arbitrary or unreviewable actions cannot control a disclosure.

For information on serving legal papers, click here or call (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST.  If you found this article helpful, please consider donating.  Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us!  We also invite you to check out Section 230 Of The Communication Decency Act by clicking here.

Sources

1. Freedom of Information Act (FOIA), 5 U.S.C. § 552

2. To understand the role of the Special Counsel: 

(F(i)Whenever the court orders the production of any agency records improperly withheld from the complainant and assesses against the United States reasonable attorney fees and other litigation costs, and the court additionally issues a written finding that the circumstances surrounding the withholding raise questions whether agency personnel acted arbitrarily or capriciously concerning the withholding, the Special Counsel shall promptly initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding. After investigation and consideration of the evidence submitted, the Special Counsel shall submit his findings and recommendations to the agency’s administrative authority and shall send copies of the findings and recommendations to the officer or employee or his representative. The administrative authority shall take the corrective action that the Special Counsel recommends.

(ii)The Attorney General shall—

(I)notify the Special Counsel of each civil action described under the first sentence of clause (i); and

(II)annually submit a report to Congress on the number of such civil actions in the preceding year.

(iii)The Special Counsel shall annually submit a report to Congress on the Special Counsel’s actions under clause (i).

(G)In the event of noncompliance with the court’s order, the district court may punish for contempt the responsible employee, and in the case of a uniformed service, the responsible member.

3. 5 U.S. Code § 552 – Public information; agency rules, opinions, orders, records, and proceedings

4. Milner v. Dep’t of the Navy, 562 U.S. 562, 569-70 (2011)

5. As used in this subparagraph, “unusual circumstances” means, but only to the extent reasonably necessary to the proper processing of the particular requests—

(I)the need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request;

(II)the need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or

(III)the need for consultation shall be conducted with all practicable speed, with another agency having a substantial interest in determining the request or among two or more components of the agency having substantial subject-matter interest therein.

6. Although No such notice shall specify a date that would result in an extension for more than ten working days

7. MEMORANDUM FOR HEADS OF ALL FEDERAL DEPARTMENTS AND AGENCIES, The Freedom of Information Act, John Ashcroft, Attorney General

“…Our citizens have a strong interest as well in a government that is fully fun.

I encourage your agency to carefully consider protecting all such values and interests when making disclosure determinations under the FOIA. Any discretionary decision by your agency to disclose information protected under the FOIA should be made only after full and deliberate consideration of the institutional, commercial, and personal privacy interests that could be implicated by disclosure of the information.

In making these decisions, you should consult with the Department of Justice’s Office of Information and Privacy when significant FOIA issues arise, as well as with our Civil Division on FOIA litigation matters. When you carefully consider FOIA requests and decide to withhold records, in whole or in part, you can be assured that the Department of Justice will defend your decisions unless they lack a sound legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records.

This memorandum supersedes the Department of Justice’s FOIA Memorandum of October 4, 1993, and it likewise creates no substantive or procedural right enforceable at law.”

JURY NULLIFICATION: EFFECTIVENESS IN THE CURRENT LEGAL FRAMEWORK

Jury

By: Akanksha A. Panicker

The Constitution provides a trial by jury to all suspects. The jury is composed of ordinary citizen s from all backgrounds with no specific experience or qualifications to participate other than becoming a U.S. resident who is at least eighteen years of age, remaining in the judicial district for a set amount of time (typically one year), being fluent in English, possessing no disqualifying psychiatric or physical disabilities, and not having a current or prior criminal conviction.

Jury service is an identifying feature of the US legal system and one of the pillars of democracy. It is interesting that juries traditionally have been able to disregard the rules for individual cases in particular situations where statutes are unfair and their enforcement is unjust. This phenomenon, occurring on a casewise basis, is known as jury nullification. 

[1.0] WHAT IS JURY NULLIFICATION

Jury nullification, also known as jury equity or a perverse verdict, usually happens when members of a criminal trial jury conclude that a convict is guilty but chose to acquit the defendant nevertheless. This could be because the jurors feel that the statute itself is unjust, that the prosecution has misconceived the law in the accused’s situation, or that the potential sentence for violating the law is too severe. Juries have also been known to acquit the convicted due to their own beliefs regarding the accused.

Nullification is not a component of formal law. However, it has been espoused the natural conclusion of the pre-existing legal doctrines wherein [A.] jurors cannot be prosecuted if they acquit a convict amid the prosecution proving the defendant’s guilt beyond reasonable doubt and [B.] a defendant convicted on a felony cannot be re-charged with the same suspected offense, double jeopardy being a procedural defense that prevents an accused person from being tried again on the same (or similar) charges following an acquittal in the same jurisdiction.

A jury ruling that does not abide by the statute’s spirit is only valid in the individual situation. However, if a sequence of acquittals occurs that regularly invalidates the statute, this will have the de facto consequence of invalidating the law. This trend could suggest popular approval for or opposition to an unfavorable legislative initiative. A jury can find anyone guilty even though no statute is violated. An appellate court may eventually reverse the verdict. Nullification may arise in cases of civil trials even. A consistent pattern of acquittals for prosecutions of a particular offense can ripple out into actively invalidating the statute itself.  In fact, the pattern of jury nullification in alcohol prosecutions contributed to the adoption of the 21stAmendment, which repealed Prohibition.

A jury is intended to be a first-hand authenticator of facts,  weighing the reliability of testimony and proof submitted at trial applied with the appropriate laws to render a decision. The jurors cannot replace the statute and are not empowered to make a new law. The difference of opinion with the law, concern for a suspect, sentiments towards a specific case, or distaste for the defendant does not diminish a jury’s obligation to obey the law and assess the defendant’s guilt or innocence.

Jury nullification happens when a jury reaches a verdict that is contrary to the spirit of the law because members of the jury wish to negate the law by [A.]  conflicting with the existing legal framework under which the defendant is prosecuted or [B.]  conclude that the legislation does not in itself extend to this issue. A conviction reached via nullification can be overturned on appeal or voided by a judge in some jurisdictions.

[2.0] NATURE OF JURY VILIFICATION AND INSTANCES WHERE IT OCCURS

Jury nullification occurs when jurors acquit a guilty defendant because they disagree with the statute itself. This was especially evident during Prohibition, wherein jurors who disagreed with stringent alcohol regulation regulations will sometimes acquit suspects found guilty of smuggling. 

However, nullification may also happen when a jury finds the accused guilty based on their disapproval of the defendant or their actions without actually having the force of the law behind them. Nullification proponents argue that strict interpretation of a statute that is not just per se violates the community’s moral conscience. This may be when illegal behavior appears justified, especially if the reasonable man test is applied to the same. 

Another instance wherein nullification is likely to occur in cases where the defendant was hampered by diminished or compromised capacity and was unable to comply with the law. In conjunction with these events, the intention and motivation behind the defendant’s behavior are likely to spur jury nullification, especially in the case of euthanasia or assisted suicide, where the jurors may see the behavior as justified or the penalty as unjustified.  

Jury nullification is also popular in drug trials where jurors acquit suspects in drug possession cases simply because they believe in legislation for legalizing some drugs or considering drug policies to discriminate towards some classes wrongly. The judiciary does not recognize the nullification power of the jury. Still, it is a tacit power recognized by some jurists, especially since the jury is provided some leeway in deciding cases. 

On the flip side, juror motives might not be propelled by altruism or justice alone. Favoritism is a major criticism of nullification, especially in areas that have race-driven strife. Juror vilification, wherein juries often return verdicts that turn a conviction where it is not warranted based on prejudiced community standards.  

Nullification through jury bias is also a major issue with the tacit practice of juror nullification. This is likely when the jury’s views have been influenced by information that they have been exposed to prior, which then persuades the verdict issued. It must be understood that since jury nullification takes place in so many different manners, it can occur both as a willful refusal to comply with the law or merely an unintentional failure to follow it. The bias of information goes by the latter premise, which occurs when jurors cannot dismiss evidence they have been exposed to even if it was later ruled as inadmissible. Prior media coverage can also bias the minds of the jury. Perhaps more insidiously, a prior criminal record is likely to cause an effect on the verdict of the case. 

[3.0] A FRAUGHT HISTORY OF JURY NULLIFICATION

In the landmark 1895 case of Sparf vs. the U.S., the US Supreme Court ruled in a five-four verdict that a trial judge has minimal obligation to notify the jury of the ability to nullify legislation. This ruling, frequently quoted, has contributed to a widespread procedure by United States judges to penalize an individual who seeks to make a nullification appeal to the jury and to order a mistrial whenever the argument is already submitted to them. In certain jurisdictions, jurors are liable to be struck from the jury during voir dire if they would not consent to recognize as correct the decisions and instructions of the law as issued by the judge.

Courts also proceeded to forbid the presentation of details about jury nullification. In a 1969 Fourth Circuit decision, U.S. v. Moylan, the Court reiterated the principle of jury nullification. Still, it retained the judiciary’s right in declining to authorize an instruction to the jury to this effect. In 1972, in United States v. Dougherty,  the United States Court of Appeals for the District of Columbia Circuit released a judgment identical to Moylan that affirmed the de facto power of a jury to nullify the statute but upheld the refusal of the defense’s possible to instruct the jury about the power to nullify.

In 1988, the Sixth Circuit affirmed that there is no valid jury nullification. In the U.S. v. Thomas case, the Second Circuit found that jurors should be excluded if there is proof that they plan to nullify the statute in question.

In 2017, the Ninth Circuit affirmed the jury’s first three sentences and found against the remaining one. The jury’s directions were, “You cannot substitute your sense of justice, whatever that means, for your duty to follow the law, whether you agree with it or not. It is not for you to determine whether the law is just or whether the law is unjust. That cannot be your task. There is no such thing as valid jury nullification. You would violate your oath and the law if you willfully brought a verdict contrary to the law given to you in this case.” Nevertheless, the Ninth Circuit deemed this guidance an ultimate innocent mistake and upheld the judgment 

[4.0] THE DISPUTED LEGALITY OF JURY NULLIFICATION

Jury nullification is entirely legal in many nations, including the United States. It is unconstitutional for a judge to compel a jury by declaring that it must render a guilty verdict.  It is unethical for a jury to be pressured to deliver a guilty verdict regardless of the motivating factors behind it. A jury’s verdict of not guilty cannot be reversed.

Misconceptions about whether or not jury nullification is legitimate often arise from misconceptions about the validity of jury trials and the laws of the United States itself. It must also be noted that outcry also emanates from nullification denouncers who wish to discontinue the practice. Often, this detraction has rendered strong statements to ensue, such as  “there is no such thing as valid jury nullification” or that to partake in jury nullification will break the juror’s oath.

These blunt and ostensibly sound comments are theoretically intended to dissuade potential jurors from using that maximum legal power in the courtroom that renders them the final arbiter in the courtroom. However, the power still lies in the hands of the jury.    Even cases with decisions adverse to jury nullification accept that jury nullification is a privilege that jurors possess, that they cannot be disciplined for using it, and that Not Guilty verdicts cannot be reversed even though arrived at by conscientious acquittal.

Advocates of jury nullification see the avoidance of unjust verdicts under the law to be a proper exercise of the juries’ authority and an example of why the juries are situated in that position of power. The Supreme Court has ruled that while the power of jury nullification exists, state courts and prosecutors must not inform jurors of this power. Consequently, while jury nullification subsists, judges often actively dissuade or forbid the mention of jury nullification. This has occurred on a large enough scale for lawmakers to actually quash the introduction of a jury nullification instruction in the state senate. The New Hampshire House Bill intended to be relative to a jury’s determination as to the applicability of law was quashed in 2016.

A question has therein arisen as to whether explicitly informing the juries about the power of nullification would cause said nullification to be used for avoidance of an unjust verdict rather than other less altruistic verdicts. Judges that have ruled against the nullification instruction postulate that the instruction’s effects could instead foster prejudice, juror bias, or stereotyping in the delivery of justice instead.  Accordingly, judges around the country have routinely forbidden any mention of jury nullification in the courtroom.

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Sources

1. Sparf v. the United States, 156 U.S. 51 (1895

Sparf v. the United States clarified several questions relating to federal criminal juries and federal courts’ duty when instructing them.

It is the duty of a jury to apply the law as given by the court to the facts of a case.

  1. A court may layout the legal implications following from a set of facts, but it may not direct the jury to return a guilty verdict.
  2. Based on the evidence, a jury may convict a lesser offense whose elements are included in another offense.
  3. In a trial for a person accused of murder, if evidence does not support a conviction for a lesser offense, the court may instruct the jury to consider guilt only for the charged offenses. It is then the duty of the jury to do so.

2. U.S. v. Moylan, 417 F.2d 1002 (4th Cir.1969),

3. The Appeals Court ruled, by a 2–1 vote:

The fact that there is the widespread existence of the jury’s prerogative and approval of its existence as a “necessary counter to casehardened judges and arbitrary prosecutors” does not establish as an imperative that the judge must inform the jury of that power. On the contrary, it is pragmatically useful to structure instructions in such wise that the jury must feel strongly about the values involved in the case, so strongly that it must itself identify the case as establishing a call of high conscience, and must independently initiate and undertake an act in contravention of the established instructions. This requirement of independent jury conception confines the lawless jury’s happening to the occasional instance that does not violate, and viewed as an exception may even enhance, the over-all normative effect of the rule of law. Explicit instruction to a jury conveys an implied approval that runs the risk of degrading the legal structure requisite for true freedom, for ordered liberty that protects against anarchy as well as tyranny.

4. United States v. Dougherty, 473 F.2d 1113,

LETTERS ROGATORY: PROCEDURE AND FORMAT

Supreme Court

By: Akanksha A. Panicker

Letters rogatory or letters of request are a formal request from a court to a foreign court for judicial assistance. Letters rogatory are usually used in matters of taking evidence or service of process. A court often requires assistance from a foreign court in the procurement of witness evidence. It can ensure the same either via seeking to answer questions relevant to determining an issue of fact or for disclosure of documents. Letters rogatory provide courts with the aid to subpoena witnesses from foreign judicial or legislative authority. 

Letters rogatory work as a standalone for transnational judicial assistance overseas when there is no treaty or agreement to govern the same. This is because they work as court requests for the performance of an act that could constitute a violation of that country’s sovereignty if done without the sanction of the foreign court. Consequently, their function effect service of process or to obtain evidence is done on a case-wise consensual basis. However, if the countries involved are parties to the  Hague Service or Evidence Conventions, or the Inter-American Convention on Letters Rogatory and Additional Protocol, it is highly likely that the process under the central authorities designated under the treaties or other designated alternatives is applicable.  

Letters rogatory take a significant period of time and go through a long set of channels. Consequently, the foreign judicial authority usually sets a date for letters of request. Signatories to the Hague Evidence Convention usually set a date within a few months of the request arrival in the receiving country. It must be noted here, however, that a few countries do allow evidence to be taken from voluntary witnesses, though the restrictions surrounding the same vary drastically across countries. In the past, letters rogatory were not transmissible directly between the relevant courts and relied on consular or diplomatic channels, effectively dampening the entire process. There have been various international conventions regarding the service of process and taking of evidence.

[1.0] LETTERS ROGATORY AND THE HAGUE SERVICE CONVENTION

One of the earliest conventions to simplify the letter rogatory procedure was the 1905 Civil Procedure Convention, signed at The Hague. Drafted only in French, only 22 countries ratified it. Later conventions, created after the Hague Conference on Private International Law, which was drafted in both English and French, commanded more support.

The Hague Service Convention, ratified in 1965, enabled designated authorities in each of the signatory states to transmit documents for service to each other, bypassing the diplomatic route. The Hague Evidence Convention, ratified in 1970, formalized procedures for taking of evidence. 

The Convention establishes a procedure for a designated ‘central authority’ to receive and review incoming letters of request to obtain evidence and determine compliance with the Convention’s requirements. If compliant, the Central Authority then transmits the letter of request ‘to the authority competent to execute,’ which is usually a court. The judicial authority that executes a letter of request applies its own law to the methods and procedures for executing the letter of request. It is a commonality between the Hague Evidence Convention and the Letter Rogatory for the US forum judge to be the individual responsible for executing the request for judicial assistance. Consequently,  an application or motion submitted to the court, regardless of the method that is actually being used to obtain the evidence abroad, is highly important. 

The annexure to the Convention specifies the nature of the Letter of Request. It stipulates the competent judicial authority or officer to forward the document to the Central Authority of the relevant state. The Central Authority would then either execute the service itself or arrange for it to be executed by other means provided in Article 5 of the Service Convention. Letters rogatory generally include: [A.] grounds for the case and the charge, [B.] the facts  of the matter so that the foreign judge is informed as to the crime committed and is likelier to provide judicial assistance [C.] nature of the assistance requested, [D.] the actual statutes that have been abrogated and [E.]  a promise of reciprocity

There have been issues with the Hague Service Convention, however. Article 19 was specifically inserted to protect the Letters Rogatory method, but this differentiation is exceedingly hard to understand within the text of the Convention. Effectively, article 19 has been interpreted to authorize almost any service method that the receiving nation’s internal law may permit. Furthermore, proof of such permission under article 19 is vague and fickle, almost entirely reliant on case law to justify the same. Furthermore, there is no provision for what ‘permissible’ service method may be undertaken in countries with a federal system. 

[2.0] LETTERS ROGATORY AND THE HAGUE EVIDENCE CONVENTION

While the Hague Evidence Convention determines whether the subpoena served abroad is transmitted via the Convention or letters rogatory, the procedure is roughly the same. The documents that need to be served are transmitted by a specific method to the receiving country. The receiving country is then obligated to fulfill service only by a local court with the jurisdiction to complete it while also adhering to internal laws. Inside the US, obtaining evidence under the Evidence Convention can be compared to comity.

The Convention establishes a procedure for a designated ‘central authority’ to receive and review incoming letters of request to obtain evidence and determine compliance with the Convention’s requirements. If compliant, the Central Authority then transmits the letter of request ‘to the authority competent to execute’ it, usually a court. The judicial authority that executes a letter of request applies its own law to the methods and procedures for executing the letter of request. Both the Hague Evidence Convention and the Letter Rogatory require the US forum judge be the individual to execute the request for judicial assistance, which means that the first step in acquiring said subpoena is putting forward an application or motion to the court, regardless of the method that is actually being used to obtain the evidence abroad. 

After this is the forum court hearing, the next step is conducted immediately after it receives a motion to execute the Request for International Judicial Assistance. The opposing counsel can thus have a chance every step of the way to quash parts of the request and is encouraged to do so as the hearing is tantamount to gauging the subpoena’s validity by itself. If it does not hold water before transmission abroad, there seems little value in sending the subpoena request to be rejected at a later date following a much longer process. Since this argument to quash the request is prevalent, some grounds for the same may be [A.] that the request is irrelevant or [B.] that it exceeds the discovery limits permitted, [C.] that it imposes a greater burden on the witness or falls within the scope of privileged information or [D.] that it is unreasonably long and cannot adhere to the time limits established by the court for discovery.

Once the forum hearing has been cleared, attorneys are required to transmit the Request to the ‘appropriate judicial authority’ in the receiving country. The Hague Evidence Convention allows for a designated Central Authority in signatory countries, so the cleared subpoena request will be directed therein. If the country is not a signatory, the letter rogatory is transmitted through diplomatic channels.

[3.0] HOW TO EXECUTE LETTERS ROGATORY

Letters rogatory can take a long time to be supplied since they are customarily transmitted via diplomatic channels. However,  local attorneys may be employed to transmit the same to the foreign country, if explicitly permitted in the foreign country. 

[3.1] FORMAT FOR DRAFTING

Letters rogatory need to follow a template to be acceptable by the foreign court. It is necessary to follow a simple and non-technical style of language. However, translation into the receiving country’s language is often necessary, and the information enclosed needs to be complete to be approved. A translation needs to be accompanied by a notarized affidavit as to the validity of the translation. The form of letters rogatory may depend on the country to which it is addressed, so local rules of the foreign jurisdiction should be reviewed and followed. This is especially important because the rules for obtaining evidence across the globe are different and may view US discovery rules as over-broad. Consequently, any transgression could result in the refusal to execute the foreign country’s request if the request for the documents is not specific enough. 

Furthermore, the appropriate judicial authority of the country should be addressed in the letter. Most courts help grant assistance for particular procedures as followed in the home country. 

It is necessary for the letters rogatory to stipulate its nature. Consequently, it is essential to state that a request for international judicial assistance is being made in the interests of justice in the text of the document itself. It is also important to define the type of case [whether it is civil, criminal, or administrative and the nature of the assistance that is sought by the requesting country. These specifications are separate from the provision of a synopsis of the case, which provides identification of the parties and the nature of the claim and relief sought to the receiving court to understand the case itself. The name of the person, their address, and other identifiers, such as corporate title, is provided to identify the individual to whom service of process is effectuated or information required. 

To not be overbroad in the information requested, a list of the questions to be posed or the documents to be produced must be included. For the questions, the form of written interrogatories is usually preferred. 

It is also necessary for the requesting court to assure the receiving court of their disposition to render correspondent assistance to the receiving state’s judicial authorities and should reimburse the receiving state for the costs that are fulfilling the request by the receiving state’s judicial authorities would entail. 

Letters rogatory are mandated to be signed by a judge, and no other individual is allowed to sign on their behalf. Countries might not accept letters rogatory issued by an Administrative Judge, and administrative cases usually see the letters rogatory issued by a federal district court.

[3.2] COPIES OF THE DOCUMENTS

The US Department of State should receive multiple copies of the documents. This would include the original English documents with the court’s seal and the judge’s signature. If the original version is not available, a certified copy must be enacted instead. These original documents must be attached with a photocopy. It is also necessary to attach the translated version of the documents and their photocopy. 

Service of the original documents is plied upon the recipient or submitted to the foreign court for evidence. Proof of execution is enacted with a return of the signed copies. However, it is necessary to prepare separate letters rogatory or submit individual certified copies of the letters rogatory for each witness. The request must also include a certified cheque addressed to the US embassy of the foreign country’s capital. However, the foreign authorities will likely charge a fee, and the requesting party is notified if the Embassy is made aware of applicable local fees. The consular fees for the transmission of letters rogatory are available at 22 CFR 22.1 Schedule of Fees.

[3.3] COVER LETTER

The documents should be accompanied by a cover letter which comprises all relevant information as to the request. This would include the docket number, person to be served/evidence obtained from, specific instructions, the mailing address of the U.S. court or attorney to which the executed letters rogatory should be returned, the statement of responsibility for additional costs, and any other pertinent information. 

The information and the format of the letters rogatory need to be complete since their transmission to foreign judicial authorities is done through diplomatic channels. It is highly necessary to ensure the execution of these letters is done by the foreign country’s laws and regulations.  To ensure the return of the executed letters, the Department of State via diplomatic channels and the Office of American Citizens Services is responsible for returning them to the requesting court in the United States via certified mail, notifying the requesting party as to the status of their service. However, if the court asks for the same,  the executed letters rogatory and proof of service/evidence produced can be returned directly to the requesting attorney.

Letters of Request or Letters Rogatory are the method of the last resort. They can be highly expensive and time-consuming but are almost always successful in ensuring jurisdiction over the foreign defendant, especially if there is no Central Authority in the relevant country. Letters rogatory are an effective means of accomplishing service of process. However, all parties still should pay close attention to ensure they comply with the foreign jurisdiction requirements.

For information on serving legal papers, click here or call (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST.  If you found this article helpful, please consider donating.  Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us!  We also invite you to check out our Frequently Asked Questions About Process Servers by clicking here.

Sources

1.Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, opened for signature November 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638,658 U.N.T.S. 163 [hereinafter the Hague Service Convention]

2.Article 2: Each Contracting State shall designate a Central Authority that will receive requests for service coming from the other Contracting States and proceed in conformity with Articles 3 to 6.  Each State shall organize the Central Authority in conformity with its own 

3.Article 19To the extent that the internal law of a Contracting State permits transmission methods, other than those provided for in the preceding Articles, of documents coming from abroad, for service within its territory, the present Convention shall not affect such provisions.

4.Before  using one particular alternative channel of transmission,  it should be ascertained that the  State of destination has not objected to it.  Declarations of the objection, if any, made by the Contracting States are available on the Service Section of the Hague Conference website at < www.hcch.net >.

5.Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, or the Hague Evidence Convention, 18th March 1970

6.Article 11: In the execution of a Letter of Request, the person concerned may refuse to give evidence in so far as he has a privilege or duty to refuse to give the evidence 

a)  under the law of the State of execution; or
b)  under the law of the State of origin, and the privilege or duty has been specified in the Letter, or, at the instance of the requested authority, has been otherwise confirmed to that authority by the requesting authority.

A Contracting State may declare that, also, it will respect privileges and duties existing under the law of States other than the State of origin and the State of execution, to the extent specified in that declaration.

7. 28 U.S.C. § 1651 – U.S. Code – Unannotated Title 28. Judiciary and Judicial Procedure § 1651. Writs

(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate to aid their respective jurisdictions and agreeable to the usages and principles of law.

(b) An alternative writ or rule nisi may be issued by a court’s justice or judge which has jurisdiction.

8.275. Letters Rogatory. (2020, January 22). Retrieved November 24, 2020, from https://www.justice.gov/archives/jm/criminal-resource-manual-275-letters-rogatory

Understanding A Summons Versus A Subpoena

By: Akanksha A Panicker

It’s always a shock to receive a summons or a subpoena. Providing evidence is an imperative part of any case, however, and you are legally required to respond by the deadline. It’s hard to ensure that each party has had an adequate chance to represent themselves and provide proofs that corroborate their stance. Consequently, both these legal instruments are used as a way to ensure that an individual is brought before the court. The following article will elucidate areas of confusion between a summons or a subpoena and will demarcate the differences between the two. 

 [1.1] What Is A Summons?

A summons essentially provides legal notice to a party about a lawsuit, being the very first form of official communication that lets an individual know that they are being sued. While a summons may sometimes specify a court date, it is not always necessary. 

A summons cannot be ignored, as it is legally binding and essential to ensure due process is followed. However, one will not be held in contempt for ignoring a summons, unlike a subpoena. The direct consequence of ignoring a summons is the issuance of a default judgement in favor of the plaintiff. In the event that the plaintiff themselves do not show, the case is to be dismissed. A summons thus essentially acts as an invitation to participate in the lawsuit. If one does not participate, they have no chance of winning and as a result, lose by default. 

Service of process is how a summons is delivered to the individual, the form and content of which is widely depicted in Rule 4 of the Federal Rules of Civil Procedure. 

 [1.2] Service Of A Summons

Service of documents is a fundamental of any case, and the service of the summons is the first step to participate in any legal imbroglio. In New York City, a summons traditionally is served by the sheriff or a registered process server. However, any individual of legal age who is a citizen of New York may also furnish the service if they have not exceeded their annual limit of five summonses already. 

A summons must address the basis of the venue designated; if it adheres to the plaintiff’s residence, the specification automatically must be that of the plaintiff’s address with their assigned index number and additional date of filing as recognised by the clerk of the court. The federal summons is also usually issued by the clerk of the court. A summons usually gives you 30 days to file a written response to the court paper (complaint or petition) that comes with the summons. But in some cases — like small claims or evictions — the summons schedules a court date.

Ultimately, each jurisdiction determines its own set of rules of civil procedure. However, broad rule of thumb may be identified by following the Federal Rules of Procedure. These rules state that a summons must include the name of the court, the parties, the address of the plaintiff’s attorney, and the time when the defendant must appear in court if applicable.

[2.0] What Is A Subpoena?

A subpoena is essentially a command that is ordered by a court. The deliverance of a subpoena means that the court has mandated you to do something. This principle of requirement is present in both civil and criminal cases. 

Without a subpoena, a case is essentially stuck in limbo. The request for information is necessary to propel a case forward, regardless of whether it is testifying in person or producing information that supports the cause of either party. The need to compel individuals into providing information is why subpoenas are necessary in both civil and criminal cases. 

This does not mean that an individual can be forced into providing every single piece of information at their disposal even remotely connected to the case. On the contrary, only those papers and records that are actually needed should be demanded in the order or subpoena. Particular description is the key to a subpoena, and a demand for “all understandings, contracts, and correspondence, etc.,” is in effect a general subpoena, and unreasonable within the 4th Amendment.  The Uniform Rules of Civil Procedure dictate that the subpoena must state the name of the court and the title, if any, of the proceeding. Highly specific in its requisition of evidence, it must command each person to whom it is directed to attend and give testimony while also being explicit about time and place. 

The consequences of ignoring a subpoena are dire. Subpoenas are court orders. Regardless of affiliation to the case, they are legally binding, rendering an individual to be held in contempt if they ignore it.  

[2.1] The Types Of Subpoenas

The two types of subpoenassubpoena ad testificandum and subpoena duces tecum – differ in the medium of submitting evidence. A subpoena ad testificandum functions as the enforcement of the obligation of the individual to attend as a witness and is done by a process of the court. This writ, or form, commands the witness, under penalty, to appear at a trial to give testimony. Thus, the subpoena is the mechanism for compelling the attendance of a witness

A subpoena duces tecum does not require you to go to court personally. Evidence is to be submitted as a means of gathering information, often in the form of documentation, but it does not necessitate physical presence. However, if the volume of documents that are potentially relevant to the hearing are to be obtained, the court may order them to be produced prior to the deposition as a part of legal discovery. This is done in order to allow parties involved time to review them prior to the deposition or other hearing. 

There is also a third type of subpoena. This is the Information Subpoena, which requires the information be provided to the requesting individual. The information subpoena orders the debtor to provide details about their income, their expenses and where their assets are located upon signature of the Court Clerk. 

[1.2.] Serving A Subpoena

An application to the Clerk of the Court may be sent if the production of a record or document is necessary for your case. Service of a subpoena for records may be done by any person (including a friend or relative) who is 18 years of age or older. A subpoena requiring attendance or a subpoena duces tecum usually is served   in the same manner as a summons with certain exceptions, to which the filing of proof of service shall not  be required . Ultimately, service shall be deemed complete upon the delivering  or  mailing of the subpoena. 

An Information Subpoena is generally served by Certified or Registered Mail, Return Receipt Requested, or it may alternatively be served by personal delivery or by using the “Substituted Service” or “Conspicuous Service” method.

A subpoena is one of the most fundamental steps in litigation. Refusal to comply and its consequences have famously been seen through Presidential example, with Richard M. Nixon’s reluctance to turn over the tape recordings of his White House office conversations to the Watergate special prosecutor. Nixon fought the subpoena all the way to the Supreme Court. 

The subpoena was, however, upheld. 

For more information on serving a summons or subpoenas visit www.undisputedlegal.com or call (800)774-6922, Representative are available to assist you Monday-Friday 8am-8pm. Call now!

Sources

1. 18 years old.

2. CPLR 3101 [a] [1]

3. Hale v. Henkel, 201 US 43L ed 652

4. Uniform Rules of Criminal Procedure Rule 731 (a)

5. NY CPLR § 2303 (2012)

6. Where service of such a   subpoena is made pursuant to subdivision two or four of NY CPLR § 308 (2015)

7. NY CPLR § R5224 (2012)

8. UNITED STATES V. NIXON, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974)

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What is Government-Financed Housing

By: Undisputed Legal/Eviction Service Department

The Mitchell-Lama housing program provides rental and cooperative housing for middle-income tenants. For both state and city-sponsored Mitchell-Lama developments, tenants must meet eligibility requirements, including income, family size, and apartment size. Additionally, each story sets its own restrictions. 

Public Housing is a federally funded program in which state-chartered authorities develop and manage public housing developments, subject to federal, state, and local laws and regulations. Tenants in public housing are entitled to an administrative grievance process administered by the local housing authority before they may be evicted. 

The Section 8 Housing Assistance Payments program is a rent and mortgage subsidy program that assists eligible low-income or displaced families, senior citizens, and disabled persons in obtaining housing. Families receive a rental subsidy, known as a housing assistance payment, or a mortgage subsidy towards charges to purchase a home, equal to the difference between their share of the rent (based on their income) and the approved rent or mortgage for the unit. Eligible families and individuals are subject to statutory income limits. 

Special Types of Housing 

• Manufactured and mobile home parks’ owners and tenants are governed by Real Property Law § 233 (“Mobile Homeowner’s Bill of Rights”). The DHCR enforces compliance with this law.
• New York City loft owners and tenants are governed by Multiple Dwelling Law, Article 7-C, enforced by the New York City Loft Board. 

• New York City residential hotel owners and tenants are governed by the rent stabilization law, enforced by the DHCR. 

For information on serving legal papers, click here or call (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST.  If you found this article helpful, please consider donating.  Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us!  We also invite you to check out our Frequently Asked Questions About Process Servers by clicking here.

Find Something Wrong on Your Credit Report?

By: Undisputed Legal/Court Service Department

Under the Federal Fair Credit Reporting Act, you have the right to dispute wrong information on your credit report.  Follow this checklist:

  • Write to the credit reporting agency.  Include your name, address, date of birth, and Social Security Number So the agency can identify you.  Identify the specific debt you are disputing, explain in detail why the information. Is wrong, and request that the debt be changed or removed.  Include copies of any documentation that supports your position. Send your disputed letter certified mail, return receipt requested.  Send a copy of the Letter to the source of the credit reporting agency’s information – this may be a debt. A collection agency or the original creditor and should be listed on your credit report. Keep copies of the letters you send. In most cases, the credit reporting agency is required to investigate your dispute and give you the result in writing, as well as a free copy of your updated credit report.

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