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ACLU of Florida Case Updates October 2000
Secret Evidence (Al-Najjar v. Reno): A recent turnaround of events in the Al-Najjar case has left the government in array. Al-Najjar's second bond hearing, ordered in May by U.S. District Court Judge Joan A. Lenard, ended abruptly on August 31 after Immigration Judge Kevin McHugh refused to release an unclassified summary of the secret evidence, which the government was about to share with him behind closed doors. At their client's request, lawyers representing Al-Najjar obtained a stay in the proceedings three days into his bond hearing. On Sept. 5, they filed a motion in district court asking Judge Lenard to prohibit the INS from detaining him without first presenting a summary of the classified evidence in open court.
Al-Najjar, a 43-year-old stateless Palestinian and longtime resident of Tampa, has been in jail without bond since May 1997. Although he has never been charged with criminal activity, Dr. Al-Najjar is alleged to have connections to the Palestine Islamic Jihad.
Domestic Partnership (Martin v. City of Gainesville): The American Civil Liberties Union of Florida, along with the national organization's Lesbian and Gay Rights Project, filed a "friend-of-the-court" brief on Sept. 7 urging an Alachua County Circuit Court judge to uphold the legality of a policy extending health benefits to the same and opposite sex unmarried partners of city employees. The Human Rights Council of North Central Florida also has joined with the ACLU in its amicus brief, which applauds the City of Gainesville's efforts to offer employee benefits on a non-discriminatory basis, arguing that the Domestic Partnership Act passed by the Gainesville City Commission is similar to dozens of ordinances, many of which have been upheld in courts of law throughout the country.
The City of Gainesville revised its health benefits policy in August 1999, extending benefits to same and opposite sex domestic partners of city employees. The benefits, which became available in April, include COBRA-like extensions of coverage, sick leave benefits, and bereavement leave pay for domestic partners of city employees. In order to receive the benefits, employees must sign an affidavit certifying, among other things, that they've lived with their partner for at least 12 months.
In June, the Orlando-based Liberty Counsel, filed suit against the city on behalf of Gainesville resident Jack Martin, who claims he has "religious and moral objections" to the policy. He argues the policy creates a marriage-like relationship expressly forbidden under the state's two-year-old Defense of Marriage Act. But, as stated in the ACLU's brief, the city's policy does not attempt to create a new marital status, rather it recognizes the economic interdependence of domestic partners.
Social Security Number Disclosure (Spencer v. Harris): The ACLU Voting Rights Project filed suit August 9th against the state's Chief Election Officer, Katherine Harris, challenging a Florida statute that requires voters to disclose the last four digits of their social security number in order to obtain absentee ballots. Filed on behalf of a Key Largo couple, the lawsuit charges Fla. Stat. ' 101.62, which also requires that voters disclose their entire nine-digit identification number when requesting absentee ballots on behalf of immediate family members, violates the Federal Privacy Act of 1974 and the First and Fourteenth Amendments to the U.S. Constitution.
Unreasonable Seizure (Movimiento Democracia v. U.S.A.; USA v. M/V Human Rights) The U.S. Coast Guard dismissed forfeiture proceedings against a 35foot fishing boat owned by the Cuban exile group Movimiento Democracia, known for testing the resolve of the federal government to stop them from entering Cuban territorial waters. The agreement offers vessel owners greater protections against unreasonable seizures. After months of negotiations, exile leader Ramon Saul Sanchez and attorneys for the U.S. government agreed to abandon plans to confiscate the group's vessel, M/V Human Rights, which was seized in 1998 just 50 miles north of Havana. Sanchez and seven other crew members were stopped for violating a 1996 Presidential Proclamation prohibiting vessels up to 150 feet long from entering Cuban territorial waters without permission from the Coast Guard. As part of the Movimiento settlement, the government agreed to adopt heightened legal standards when determining whether to allow vessels to depart the "Security Zone" surrounding the Florida peninsula and enter Cuban waters. They must first have a "reasonable" articulable basis to deny applications to enter Cuban territorial waters and the reasons for those denials must be outlined in writing. Also, the Coast Guard can no longer seize a vessel solely because its captain relies on Fifth Amendment protections against selfincrimination rather than verbally assuring agents that the boat will not enter Cuban waters.
Attorney Sanctions in Employment Discrimination cases: In February, the U. S. Court of Appeals for the Eleventh Circuit was asked to reverse a 1998 district court decision that imposed a $50,000 sanction under § 1927 of 28 U.S.C. against attorney Neil Chonin and his law firm. Attorneys Bruce Rogow and Beverly A. Pohl represent Chonin on appeal. ACLU cooperating attorney Michael Masinter filed an amicus brief, arguing the courtordered sanction unjustly punished counsel for their "good faith" efforts to pursue civil rights claims under the rarely invoked Reconstruction Civil Rights Act. The Court of Appeals, however, affirmed the lower court ruling, which issued the sanction against Chonin for acting in "bad faith, by including defendants who had no liability ... and by pursuing claims well after they were known to be baseless" - arguments increasingly being used by lower court judges to sanction attorneys who bring employment and race discrimination suits against employers.
