Archive for the ‘Fifth Amendment’ Category

Federal Judge Bars Enforcement Of EO Related To Diversity Training – UPDATED – JD Supra

Update:

Key Points:

Background

On September 22, 2020, the Trump administration issued EO 13950 prohibiting federal agencies, federal grant recipients, and federal contractors from endorsing divisive race and gender concepts as we discussed in our commentary on October 6, 2020. EO 13950 forbids diversity and inclusion training that promotes or endorses divisive concepts as defined in EO 13950. On December 22, 2020, the U.S. District Court, Northern District of California granted Plaintiffs motion for a preliminary injunction in part and issued an Order in Santa Cruz Lesbian and Gay Community Center, et al, v Donald J. Trump, et al., imposing a nationwide preliminary injunction that enjoins the federal agencies named as Defendants (federal government) from enforcing EO 13950s provisions under 4, directed at federal contractors, and 5, directed at federal grant recipients. The Order is effective immediately and directs the federal government to provide notice to all federal contractors and grant recipients as well as sub-contractors and sub-grantees covered by EO 13950 of the injunction imposed by the Courts Order.

Basis of the Courts Order

The Plaintiffs in this class-action lawsuit are non-profit organizations and a subcontractor that provide health care and critical services to the lesbian, gay, bisexual and transgender community and people living with the human immunodeficiency virus (HIV). Plaintiffs claim that EO 13950 violates their rights under the Free Speech clause of the First Amendment because it impermissibly chills the exercise of constitutionally protected speech based on the content and viewpoint of their speech and violates their rights under the Due Process clause of the Fifth Amendment because EO 13950 infringes on their protected right to free speech and fails to provide adequate notice of the conduct it purports to prohibit.

The Court agreed that Plaintiffs are likely to prevail on their claim that EO 13950 violates their First Amendment rights because:

Regarding Plaintiffs claims of due process violations under the Fifth Amendment, the Court agreed that the vagueness of the prohibited conduct inhibits the exercise of Plaintiffs freedom of expression and that the federal governments own interpretation of the scope of the prohibited conduct creates even more uncertainty. It concluded that the Plaintiffs established a significant adverse impact on their organizations and clients as a result of the loss of opportunities and income based on Plaintiffs and their clients understanding of the effect of EO 13950. The Court noted that the federal governments dislike of the speech at issue, while irrelevant to the analysis, permeated its briefs.

EO 13950 Provisions Enjoined by Court's Order

The Order explicitly bars the federal government from taking any action intended to effectuate or enforce 4 and 5 of EO 13950, including but not limited to the specific actions enumerated in the Courts Order. The Courts Order specifically prohibits the federal government from taking the following actions:

Workplace training: The federal government is prohibited from requiring the inclusion of express provisions in government contracts that prohibit the discussion of concepts defined as divisive race and gender concepts in workplace training programs, and from enforcing such express provisions that have been included in government contracts since the issuance of EO 13950.

Notice requirements to labor representatives and unions: All notice requirements imposed on federal contractors to labor unions or employee representatives are enjoined.

Penalties and enforcement procedures based on non-compliance: The federal government is prohibited from imposing sanctions, including but not limited to canceling, terminating or suspending a contractors or subcontractors federal contract in whole or in part, or declaring a contractor or subcontractor ineligible for federal contract awards.

Mandatory flow-down contract clauses: The federal government is prohibited from requiring contractors to include a contract clause prohibiting divisive race and gender concepts in subcontracts and supply agreements with subcontractors and vendors that provide services and supplies under the contract. Contractors also cannot be required to enforce such contract clauses against subcontractors and vendors.

Collecting information and investigating non-compliance: The federal government is precluded from initiating investigations, taking other agency action to implement EO 13950, and taking enforcement actions under EO 13950 and is barred from using its hotline to collect information regarding non-compliance with the provisions of EO 13950.

Requests for Information: The federal government is enjoined from seeking all information from any entity regarding training, workshops or programming provided to employees of government contractors and subcontractors with respect to the provisions of EO 13950 and related regulations issued by the Office of Federal Contract Compliance Programs (OFCCP).

Requirements applicable to federal grant recipients: The federal government is proscribed from:

What this means to you

The Courts nationwide injunction has delayed the investigative and compliance actions and enforcement actions authorized under EO 13950. The election of Joe Biden will likely result in President-elect Biden overturning EO 13950 shortly after taking office on January 20, 2021. As a result, the prohibitions, compliance actions, requests for information and enforcement actions imposed on federal contractors and federal grantees under EO 13950 and by the OFFCP are in abeyance until either the injunction is made permanent or lifted, or the executive order is overturned. The federal governments hotline established to receive complaints regarding violations of EO 13950, states that it is no longer accepting complaints in accordance with the Courts December 22, 2020 Order. It does allow callers to continue to leave messages and refers callers who desire to file complaints of discrimination to another phone number or to a page on their website.

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Federal Judge Bars Enforcement Of EO Related To Diversity Training - UPDATED - JD Supra

Federal relief for live performance venues finally on the horizon – San Antonio Report

San Antonio venue owners can attest that the live performance industry has been among those hardest hit by the coronavirus pandemic. Bans on large gatherings shut venues down in the spring and when they were later allowed to reopen by state governments, it was under crippling capacity restrictions.

You couldnt have anything more dire, said Blayne Tucker of the situation faced by live performance venues across the nation. Tucker owns The Mix music club and bar on the St. Marys Strip and is an active industry advocate.

The first round of federal coronavirus relief included the employee-focused Paycheck Protection Program (PPP), but with performances still impossible in many cases due to a lack of the touring acts many venues depend on, it made little sense to keep people employed.

Tucker and other venue operators throughout the country recognized the specific problems faced by live performance venues early on and banded together to seek solutions as the National Independent Venue Association (NIVA). Their work produced the Save Our Stages (SOS) Act introduced to Congress in July, an emergency relief funding program with provisions specific to the live performance industry. Along with other potential relief, the SOS Act would languish in a stymied Congress.

Dec. 27, Just before the original CARES Act was set to expire, a new economic stimulus package was signed into law. The SOS Act was included as the Shuttered Venue Operators Grant program administered by the U.S. Small Business Administration (SBA), which will dedicate $15 billion to help performance venues nationwide survive the uncertain months ahead.

A wide range of venues, organizations, and individuals will be eligible for the new grant funds, including live performance venue operators and promoters, performing arts organizations, theatrical producers, talent representatives, motion picture theatre operators, and some nonprofit museums.

This is really a make or break for the industry, Tucker said, while lamenting venues that have already closed permanently including notable Austin music clubs and Margin Walker Presents, a promoter of touring acts for several San Antonio venues, that would have been eligible for relief funding.

Tucker pointed out that potentially months of uncertainty remain, with already-suffering venues nearing the brink. We dont really know necessarily when the finish line is here. This is a great step toward providing some relief to an industry that needed it, but I dont think were out of the woods yet.

Venues are eligible for funds up to $10 million depending on annual revenue, and range from small music clubs such as The Mix, Paper Tiger, and the Lonesome Rose, to black box theaters such as Jump-Start Performance Co. and the Classic Theatre, to larger concert halls, theaters, and producers including the Majestic Theatre and the Tobin Center for the Performing Arts and its resident companies such as the San Antonio Symphony.

Stipulations intended to focus on smaller, locally-based venues include a limit of 500 or fewer full-time employees, and locations operating in no more than 10 states. The amount of grant funds available to each venue will equal 45% of 2019 gross earned revenue.

Applications are not yet open, though the SBA is preparing workshops in advance of opening its two-tiered application process, expected to roll out in early- to mid-February.

Eligibility requirements are fairly strict, in keeping with the programs goals of supporting venues that base most of their income and activity around live performance, Tucker said.

Working with Dana Frank, owner of the First Avenue music club in Minneapolis and NIVA president, Tucker helped advise on program provisions that define eligibility to ensure funds will be distributed first to those venues most in need, and that set aside $2 billion of the $15 billion fund specifically for what he called mom and pop venues that employ 50 or fewer full-time employees.

Once the program officially opens, the first two-week application tier is intended for venues that have lost 90% or more of revenue between April 1 to Dec. 31, 2020, as compared to 2019 revenue for the same period, and the second two-week tier is for applicants that have lost revenues of 70% or more. After that, any eligible venue or organization can apply.

Mike Fresher, Tobin Center president and CEO, said the grant funds would make a world of difference to the performing arts hall, which he estimates has suffered $15 million in lost revenue during 2020. That amount would mean the Tobin could recoup $6.75 million from the program to help in keeping all our employees employed and things moving forward, he said.

Fresher is waiting to learn more specifics on what income qualifies as revenue for the program, and whether the second round of PPP in the stimulus package would benefit the Tobin Center more than the Shuttered Venue Operators grants.

Tobin Center resident company the San Antonio Symphony is also waiting to learn more about the grants, according to Corey Cowart, its executive director. Venues cannot receive both a second round of PPP funds and Shuttered Venues grants.

Cowart said the fact that banks already have the experience of distributing one round of PPP funds makes that option attractive, but what will ultimately decide which program works best for the Symphony is what the math looks like.

The Lonesome Rose honky-tonk will be applying in the second tier, according to co-owner Hillary Woodhouse. The venue has been able to open its large backyard patio for occasional music events, but overall has lost in the range of 70% in revenue as compared to the previous year.

Previous small grants have enabled the owners to pay rent during the closure, but any additional money is going to help us ensure that we stay open for the future, Woodhouse said.

The club has had no break on rent, she said, and has stopped booking shows for the moment due to the uncertainties of winter weather. Earlier grants have helped keep the bar afloat, she said. Were really grateful to be still here. I think itd be a shame [if we had to close] because theres nothing else really like us, Woodhouse said of her venue that focuses on Texas music.

Tucker said Texas played a key role in getting the legislation through Congress, despite a traditional resistance in the state toward government aid and bailouts. An argument for help based on the Fifth Amendment might have made the difference. The amendments takings clause stipulates just compensation when private entities suffer losses on behalf of the public good.

That approach in part won the support of key Texas Republicans Sen. John Cornyn (R-Texas) and Rep. Roger Williams (R-Austin), who penned an initial letter of support in May, then ultimately co-sponsored the bill alongside Democrats Sen. Amy Klobuchar of Minnesota and U.S. Rep. Peter Welch of Vermont, in a rare show of true bipartisanship.

It was a nationwide effort, among all my colleagues in different states, Tucker said. But Texas really came through in taking the lead on making this happen. Tucker also said the issue bridges the divide between traditionally Democratic-leaning cities and traditionally Republican-leaning rural areas, both of which depend on thriving music and performance venues for entertainment.

Now that the funding is on its way, Tucker said its the difference between an entire industry permanently shuttering and giving it some relief.

According to music industry magazine Billboard, venue operators interested in applying can prepare by pulling together information about monthly revenues and a list of how you would use funds if awarded them, with a reminder to contact local SBA district offices for additional help.

A Jan. 14 SBA webinar, available for viewing on YouTube, also explains the provisions of the grant program.

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Federal relief for live performance venues finally on the horizon - San Antonio Report

Opinion: It’s 11 O’Clock. Do You Know Where Your Children Are? Maryland Matters – Josh Kurtz

Following the 1960s riots and curfews in cities across America, variations of this question remained a refrain on TV for decades. This simple yet ominous message evoked dread among parents concerned for their childrens welfare. Decades later, its a question parents across Maryland should ask themselves every day.

Imagine its a regular school day. Its 11 a.m., and your fourth-grader should be sitting in his math class. Instead of solving addition and subtraction problems, your fourth-grader is plucked out of class and questioned by police all without your knowledge. Hours later, police call to tell you that your son was questioned by police but, dont worry, it was determined that he had not committed a crime because he did not attempt to spend the money.

During the Maryland 2018-2019 school year,69 elementary schoolers, 1,029 middle schoolers and 1,912 high schoolers were arrested numbers that do not reflect the number of youth questioned but not arrested by police. Under Maryland law, police can detain and interrogate a child without a parents presence or knowledge that their child is being questioned or arrested.

Further, Maryland police are not required to ensure children understand their Miranda rights before being interrogated, nor what it means to waive their rights, increasing the likelihood of self-incrimination. These are a few reasons why Marylands juvenile justice system is ranked by Human Rights for Kids as one of the worst protectors of childrens human rights (our cohort includes Alabama, Georgia, Mississippi, Tennessee and Wyoming).

Maryland has the opportunity to take the first step toward protecting childrens inherent rights this year by passing the Juvenile Interrogation Protection Act. JIPA would put an end to child interrogation without a parents knowledge and without an attorney present. The bill protects against false confessions by giving juveniles access to counsel prior to any custodial interrogation.

At a minimum, it sets up a procedure for law enforcement to actually notify, not just make reasonable efforts to contact, a parent or guardian prior to an interrogation. These two requirements address the pitfalls that historically and wrongfully incarcerated our youth and ensure their constitutional rights are protected.

In the landmark case Miranda v. Arizona, the U.S. Supreme Court held that the confrontational nature of custodial interrogations requires police to inform suspects including juveniles of their Fifth Amendment rights before interrogation. Those rights include the right to an attorney and to remain silent.

Compared with adults, juveniles are far less likely to assert or even understand their rights. As the Supreme Court determined in Miller v. Alabama, youthful offenders possess a diminished capacity and are unable to fully appreciate the risks and consequences of their actions.

In addition, research has found that minors are uniquely susceptible to coercive questioning techniques and interrogation tactics employed by police. In fact, a study of exonerations by the University of Michigan Law School found that 42 percent of exonerated juveniles had falsely confessed, compared with 13 percent of adults. Over the years, science, courts and doctors have researched and documented the inherent differences between children and adults in decision-making capacities, reflecting the rationale for separate justice systems for minors and adults.

Yet, current Maryland law treats our youth as though they have the same decision-making capacity as adults. JIPA acknowledges that a minors brain development and life experience are vastly different from that of adults.

This bill, requiring juveniles to have the assistance of counsel to understand their rights, is in line with what the courts have recognized, science has proven and most states have already implemented.

Some opponents of JIPA may argue that it hampers the prosecution of crimes against juveniles, claiming that some juvenile offenders may get away because their attorney may advise them of their rights and they may choose not to confess.

Weve heard this argument before;it was raised by dissenting justices in Miranda, fearing that requiring affirmative warnings (a hazardous experiment) would inflict untold harm on law enforcement in their ability to do their jobs.

Today, we expect nothing less than complete Mirandizing prior to interrogation. Others may argue that the JIPA parent notification requirement will delay a speedy interrogation during a critical situation. The reality is that the current practice of interrogating children without counsel or guardian notification only heightens the chance of a false confession, enabling the actual perpetrators to wander the streets. In any event, the likelihood of a false confession is too high to forgo procedural safeguards.

If we wish for Maryland to have a fair and equitable justice system, we must ensure that youth are not coerced and incarcerated simply because they are children and do not understand their constitutional rights.

Use your voice to urge the chair of the House Judiciary Committee, Del. Luke Clippinger, to bring the Juvenile Interrogation Protection Act to a vote and to ask your legislators to vote in favor of passing this legislation.

No matter the hour of the day, how we treat and care for our youth is a reflection of the soul of our state.

CHRIS JENNISON, EBBY STOUTMILES, TRACEY FRIEDLANDER, KIM ALFRIEND AND FRANCHA DAVIS

Jennison is an attorney and chair of the Montgomery County Commission on Juvenile Justice. Stoutmiles is vice chair of the Montgomery County Commission on Juvenile Justice and is state policy advocate at the Juvenile Law Center. Friedlander is a youth and family advocate and commissioner on the Montgomery County Commission on Juvenile Justice. Alfriend is an attorney and commissioner on the Montgomery County Commission on Juvenile Justice. Davis is a juvenile advocate and commissioner on the Montgomery County Commission on Juvenile Justice.

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Opinion: It's 11 O'Clock. Do You Know Where Your Children Are? Maryland Matters - Josh Kurtz

Federal Judge Bars Enforcement Of EO Related To Diversity Training – JD Supra

Key Points:

Background

On September 22, 2020, the Trump administration issued EO 13950 prohibiting federal agencies, federal grant recipients, and federal contractors from endorsing divisive race and gender concepts as we discussed in our commentary on October 6, 2020. EO 13950 forbids diversity and inclusion training that promotes or endorses divisive concepts as defined in EO 13950. On December 22, 2020, the U.S. District Court, Northern District of California grantedPlaintiffs motion for a preliminary injunction in part and issued an Order in Santa Cruz Lesbian and Gay Community Center, et al, v Donald J. Trump, et al., imposing a nationwide preliminary injunction that enjoins the federal agencies named as Defendants (federal government) from enforcing EO 13950s provisions under 4, directed at federal contractors, and 5, directed at federal grant recipients. The Order is effective immediately and directs the federal government to provide notice to all federal contractors and grant recipients as well as sub-contractors and sub-grantees covered by EO 13950 of the injunction imposed by the Courts Order.

Basis of the Courts Order

The Plaintiffs in this class-action lawsuit are non-profit organizations and a subcontractor that provide health care and critical services to the lesbian, gay, bisexual and transgender community and people living with the human immunodeficiency virus (HIV). Plaintiffs claim that EO 13950 violates their rights under the Free Speech clause of the First Amendment because it impermissibly chills the exercise of constitutionally protected speech based on the content and viewpoint of their speech and violates their rights under the Due Process clause of the Fifth Amendment because EO 13950 infringes on their protected right to free speech and fails to provide adequate notice of the conduct it purports to prohibit.

The Court agreed that Plaintiffs are likely to prevail on their claim that EO 13950 violates their First Amendment rights because:

Regarding Plaintiffs claims of due process violations under the Fifth Amendment, the Court agreed that the vagueness of the prohibited conduct inhibits the exercise of Plaintiffs freedom of expression and that the federal governments own interpretation of the scope of the prohibited conduct creates even more uncertainty. It concluded that the Plaintiffs established a significant adverse impact on their organizations and clients as a result of the loss of opportunities and income based on Plaintiffs and their clients understanding of the effect of EO 13950. The Court noted that the federal governments dislike of the speech at issue, while irrelevant to the analysis, permeated its briefs.

EO 13950 Provisions Enjoined by Court's Order

The Order explicitly bars the federal government from taking any action intended to effectuate or enforce 4 and 5 of EO 13950, including but not limited to the specific actions enumerated in the Courts Order. The Courts Order specifically prohibits the federal government from taking the following actions:

Workplace training: The federal government is prohibited from requiring the inclusion of express provisions in government contracts that prohibit the discussion of concepts defined as divisive race and gender concepts in workplace training programs, and from enforcing such express provisions that have been included in government contracts since the issuance of EO 13950.

Notice requirements to labor representatives and unions: All notice requirements imposed on federal contractors to labor unions or employee representatives are enjoined.

Penalties and enforcement procedures based on non-compliance: The federal government is prohibited from imposing sanctions, including but not limited to canceling, terminating or suspending a contractors or subcontractors federal contract in whole or in part, or declaring a contractor or subcontractor ineligible for federal contract awards.

Mandatory flow-down contract clauses: The federal government is prohibited from requiring contractors to include a contract clause prohibiting divisive race and gender concepts in subcontracts and supply agreements with subcontractors and vendors that provide services and supplies under the contract. Contractors also cannot be required to enforce such contract clauses against subcontractors and vendors.

Collecting information and investigating non-compliance: The federal government is precluded from initiating investigations, taking other agency action to implement EO 13950, and taking enforcement actions under EO 13950 and is barred from using itshotline to collect information regarding non-compliance with the provisions ofEO 13950.

Requests for Information: The federal government is enjoined from seeking all information from any entity regarding training, workshops or programming provided to employees of government contractors and subcontractors with respect to the provisions of EO 13950 and related regulations issued by the Office of Federal Contract Compliance Programs (OFCCP).

Requirements applicable to federal grant recipients: The federal government is proscribed from:

What this means to you

The Courts nationwide injunction has delayed the investigative and compliance actions and enforcement actions authorized under EO 13950. The election of Joe Biden will likely result in President-elect Biden overturning EO 13950 shortly after taking office on January 20, 2021. As a result, the prohibitions, compliance actions, requests for information and enforcement actions imposed on federal contractors and federal grantees under EO 13950 and by the OFFCP are in abeyance until either the injunction is made permanent or lifted, or the executive order is overturned. The federal governments hotline established to receive complaints regarding violations of EO 13950, states that it is no longer accepting complaints in accordance with the Courts December 22, 2020 Order. It does allow callers to continue to leave messages and refers callers who desire to file complaints of discrimination to another phone number or to a page on their website.

Tracey Oakes OBrien, Legal Content and Knowledge Manager is a co-author of this content.

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Federal Judge Bars Enforcement Of EO Related To Diversity Training - JD Supra

No early release for Ciavarella | Letters to the Editor | citizensvoice.com – Wilkes-Barre Citizens Voice

Editor: There should be no compassionate release or home confinement for poor kids-for-cash judge Mark Ciavarella (Dec. 29). His release date is June 18, 2035.

He claims he served a substantial portion of his sentence 112 out of 386 months. He wants a compassionate release due to health concerns and claims he suffers from chronic kidney disease, bronchitis, hypertension, chest pains, hip and shoulders aches and rapid heartbeats. All that list sounds like what hard-working citizens have by working honestly and doing without things just to support their families.

Where was his compassion when he sent juveniles to the detention center that he and former judge Michael Conahan profited from? The judges received $2.8 million and ruined many young lives. What did the judges say to them? You did the crime, now do the time?

He probably lives in a hotel room, not a regular prison cell. And he should not have home confinement. Hed only suffer from boredom but have friends over to play cards, drink, eat good food, sleep in silk pajamas and in his bed.

On judgment day, we will all stand facing God as he opens our book of life as we face judgement. We cant use our Fifth Amendment, we cant recoil or have someone cover for us. Hes the only perfect judge, not Ciavarella, who tried to play God. Pride goeth before a fall. He should stay in prison till 2035.

My heart cries for all the kids who suffered and may still be suffering because of his no-compassion sentences. God said vengeance is mine, I will repay.

Lizza Lamoreaux

Edwardsville

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No early release for Ciavarella | Letters to the Editor | citizensvoice.com - Wilkes-Barre Citizens Voice