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Archive for April, 2021

Georgia’s New Elections Law May Have Effects For Local Governments

Posted on: April 15th, 2021

By:  William J. Linkous, III

Georgia’s new elections law, which has been widely reported upon nationally, passed the Georgia General Assembly during the 2021 session and was signed into law by Georgia Governor Brian Kemp near the end of March.  The 95-page revision may significantly affect the operations of local governments, which are often tasked with handling elections and registrations through their election superintendents, boards of registrars, boards of elections, or boards of elections and registration.

Some provisions of the new law will impact the budgeting of local governments.  Section 18 of the new law provides that in jurisdictions with 2,000 or more electors, if electors have to wait for an hour or more in line on election day, elections superintendents must reduce the size of the precinct or utilize more equipment (or both) in the next election, thus increasing elections expenses for local governments in the future.  Sections 9 and 14 of the new law prohibit elections superintendents and boards of registrations from taking any funding, grants, or gifts except from the local government, State, or Federal Government.  These provisions will impact the elections budgets of some jurisdictions that received large private grants for their election operations during the most recent elections, thus defraying costs to the local government.  Section 26 of the new law requires each board of registrars or absentee ballot clerk to establish at least one drop box as a means for absentee by mail electors to deliver their ballots.  Of course, the law allows more drop boxes to be used, up to prescribed limits.  The drop boxes can only be placed in locations with adequate lighting, constant surveillance by officials, anti-tampering measures, and daily collection of ballots by a team of two workers who meet certain qualifications.  In some jurisdictions, the drop box requirement may require a budget increase.

The expansion of early voting in most Georgia locations may also affect local government budgets.  There will be at least seventeen days of early voting under the new law, including two Saturdays and the option of offering voting on Sundays as well.  The budgets of rural local governments may be more heavily impacted by this expansion because staffing will be needed for at least two Saturdays, whereas most urban counties already utilize two Saturdays for early voting.

Some of the provisions of the new law provide for increased scrutiny and accountability for elections officials.  Section 6 of the new law allows the State Elections Board to suspend county or municipal superintendents and appoint replacements.  Under Sections 7 and 12 a governing authority of a county or municipality can request a performance review or an investigation into the actions of the local superintendent or board, and the State Elections Board can also initiate a review or investigation itself.  The extensive investigation and hearing process can result in a suspension with pay of a superintendent or board member, or even in their permanent removal.  The State Board of Elections can appoint a replacement for the official during the suspension, but the law is unclear who pays the replacement.  Local governments will be wise to closely review the operations of their elections and registrations divisions because of this added scrutiny.

Numerous provisions also change the administration of registrations and elections.  Some are subtle.  For instance, Section 11 allows poll officers to be permitted to serve in adjoining counties in some instances.  Sections 15 and 16 contain subtle changes to the method for challenging registrars and electors, including the removal of limits on the number of challenges that can be made by an elector which by itself could impact operations.  Section 20 restricts the types of places that can be utilized for advance voting locations.  Section 23 requires that ballots be printed on security paper to authenticate them.  Some of the less subtle changes in the administration of registration and elections under the new law include the fact that absentee ballot applications and ballots are primarily verified under the new law by name, date of birth, address, and driver’s license number, last four digits of one’s social security number, or other identification number, rather than verified by signature as in the past.  The new law also shortens the timeline for requesting and returning ballots.  Electors may request ballots 78 days before an election (as opposed to 180 days) and ballot applications must be received by the clerk no later than eleven days prior to the election, which is earlier than under the previous law.  Finally, the law also abbreviates the runoff period by requiring that a runoff be held 28 days after the initial election.   These administrative changes will require careful analysis by local governments of their election and registration operations.

For more information about this topic, please contact William Linkous at [email protected].

SCOTUS Grants Injunctive Relief In Free Exercise Case Challenging California’s COVID-19 Restrictions

Posted on: April 14th, 2021

By: Caitlin Tubbesing

Building on its pandemic-era Free Exercise Clause decisions, SCOTUS rejected the Ninth Circuit’s analysis of California’s COVID restrictions on religious activities for the fifth time on Friday (4/9/21).  In a 5-4 vote in Tandon, et al. v. Newsom, et al., the majority granted two California pastors’ application for emergency injunctive relief relating to the state’s COVID restrictions on private gatherings, which limit at-home religious gatherings to members of three households or less. The pastors argue that the restrictions preventing them from holding in-home Bible studies and communal worship with more than three households violate the Free Exercise Clause of the First Amendment.

The Ninth Circuit denied the pastors’ motion for emergency injunctive relief – because at-home secular gatherings were treated the same, the restrictions were neutral and generally applicable and triggered only rational basis review. Therefore, the pastors could not establish the they were likely to succeed on the merits. Last week’s 5-4 decision reversing the Ninth Circuit reiterated and applied the following points enunciated in the Court’s recent decisions addressing free exercise challenges to COVID-19 restrictions:  

  • Whenever a government regulation treats any comparable secular activity more favorable than religious exercise, it is not neutral and triggers strict scrutiny under the Free Exercise Clause; it does not matter that a state may treat some comparable secular businesses or other activities as poorly or less favorably than the religious exercise at issue.
  • Whether activities are comparable under the Free Exercise Clause must be evaluated against the asserted government interest justifying the challenged regulation – what matters is the risk of the activities.
  • The burden is on the government to establish that the law meets strict scrutiny. This requires more than asserting that “certain risk factors are always present in worship, or always absent from other secular activities;” and instead, show that less restrictive measures could not address its interest in reducing the spread of COVID-19. Likewise, if other secular activities are allowed to take place with precautions, the state must demonstrate that the religious exercise at issue is more dangerous than those activities even when the same precautions are applied.
  • Even if the government withdraws or modifies a COVID restriction after litigation begins, the case is not necessarily moot, and as long as the case is not moot and applicants “remain under a constant threat” that government will use its power to reinstate the restrictions, litigants may be entitled to emergency injunctive relief.

In this case, the Court found that California treated “some comparable secular activities” – such as hair salons, movie theaters, and indoor restaurants, more favorably than at-home religious exercise. Second, it observed that the Ninth Circuit did not conclude that those activities pose a lesser risk of transmission than the in-home bible study and communal worship at issue, and erroneously did not require the state to explain why it could not allow for larger gatherings of at-home religious exercise while using precautions required for secular activities. Finally, even though the private gathering restrictions had been changed after the application was filed, the restrictions remained in place until April 15th and were subject to being reinstated.

In sum, the majority determined the Applicants were likely to succeed on the merits because (i) they were irreparably harmed by the loss of free exercise rights (even for a minimal period of time); and (ii) California did not show that “public health would be imperiled” by employing less restrictive measures. Therefore, emergency injunctive relief was warranted.

For more information about this topic, please contact Caitlin Tubbesing at [email protected].

Did New Mexico Really “End” Qualified Immunity?

Posted on: April 13th, 2021

By: Wes Jackson

State and federal legislators are making a concerted push to end or curtail the defense of “qualified immunity,” which provides government employees a defense to civil rights claims in some circumstances. At the federal level, House Democrats have passed the “George Floyd Justice in Policing Act (H.R. 1280), which, if passed by the Senate and signed by the President, would remove qualified immunity as a defense for local law enforcement officials to claims for civil rights violations under 42 U.S.C. § 1983. On the state level, a handful of states have proposed or passed similar laws that would end or curtail analogous immunities to claims of civil rights violations arising under state law. Such states include Colorado and Connecticut

New Mexico is now the latest state to take such action. A recent article from The Hill announces that “New Mexico ends qualified immunity.” The article reports that New Mexico’s governor signed a bill on Wednesday, April 7, 2021 “ending qualified immunity for all government workers, including police.” But what does it really mean to “end” qualified immunity? While the bill makes New Mexico the latest state to curtail government workers’ immunities to civil rights claims, a look at the text of the new bill reveals that “qualified immunity,” at least for purposes of federal civil rights claims, remains a viable defense in that state.

While “qualified immunity” is often used as an umbrella term for any immunities law enforcement or government employees may have to civil rights claims, it is important to keep in mind that qualified immunity under federal civil rights law is distinct from whatever statutory or common law defenses may be available to government workers under the various states’ laws. New Mexico’s bill nominally removes the defense of “qualified immunity” for government workers, but only for “any claim for damages or relief under the New Mexico Civil Rights Act . . . for causing the deprivation of any rights, privileges or immunities secured by the bill of rights of the constitution of New Mexico.” (New Mexico H.B. 4, § 4.) Thus, New Mexico only ended the defense of qualified immunity for claims that a government employee violated state constitutional rights—it does not remove the defense to claims for violations of civil rights secured under the United States’ Constitution and laws.

The practical effect of New Mexico’s bill may be to incentivize plaintiffs to only bring civil rights claims under state law in New Mexico state courts and to forego asserting claims for analogous violations of federal rights under 42 U.S.C. § 1983. The tradeoff for plaintiffs, though, is that their claims will be subject to more demanding procedural rules, including a one-year pre-suit notice requirement, and a $2 million damages cap. Plaintiffs in New Mexico who miss the one-year ante litem notice requirement, or who hope for a judgment that exceeds $2 million, will have to bring their claims under 42 U.S.C. § 1983, for which the defense of qualified immunity is alive and well.

While state legislators may enact limitations to “qualified immunity” or similar defenses for claims under state law, any changes to qualified immunity for federal civil rights claims will ultimately have to come from the United States Congress or Supreme Court. If you have any questions about qualified immunity, please contact attorney Wes Jackson at [email protected].

Handling Telework Requests in a Post-COVID Environment

Posted on: April 13th, 2021

By: David Chang

As COVID-19 numbers retreat and vaccine distributions increase, many businesses that shifted to a Working From Home (“WFH”) environment are preparing to transition back to the office.  This will likely bring increased requests for “reasonable accommodations” under the Americans with Disabilities Act (“ADA”), particularly for permission to continue working remotely.

While every case is fact-specific, the EEOC has issued broad guidelines to help employers and employees determine when continued WFH could be appropriate. Two prominent issues are:

  1. Employees without a disability asking for an accommodation to protect a family member with a disability from COVID-19 exposure.
  2. Employees asking for teleworking as their reasonable accommodation because of an employer’s 2020 and 2021 WFH policy. (The employer can opt for alternative reasonable accommodation options that eschew WFH.)

With respect to the first issue, the employee here is not entitled to accommodation under the ADA, as protections based on association with an individual with a disability are currently limited to disparate treatment or harassment.

In regards to that second issue, the EEOC guidelines specifically provide,

“The fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework for the purpose of protecting their safety from COVID-19, or otherwise chose to permit telework, does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship.”

The Commission does note, however, that teleworking does require a closer look as a reasonable accommodation if an employee was able to satisfactorily perform all essential functions while working remotely.

As these issues are typically fact-specific, employers must be sure to promptly and properly address accommodation requests with flexibility and cooperation. To strike such a balance, obtaining the review of counsel is always recommended in an environment that continues to grow more virtual than ever.

For more information, please contact David Chang at [email protected].

It May Be Legal, But It’s Not Civil

Posted on: April 13th, 2021

By: Michael Weinberg

A recent decision in the matter of Legal Sea Foods, LLC v. Strathmore Insurance Company, USDC (Mass) further addressed coverage for business income and extra expense losses caused by both state and local governments nationwide orders (the “Orders”)  in response to the Covid 19 pandemic. Legal Seafoods is a chain which operates 32 restaurants in the eastern United States (the Designated Properties”). Its restaurants were covered by a Strathmore property insurance policy (the “Policy”) which provided Business Income and Extra Expense for covered causes of loss.  Legal Seafoods incurred business income losses because of civil authority orders impacting its operations and because of the physical presence of Covid 19 infected individuals on its premises. The parties agreed interpretation of an insurance policy is a question of law and that Massachusetts law would govern. Based on the Court’s review of alleged facts, the complaint was dismissed.

Legal Seafoods claimed Strathmore breached its insurance contract for failure to provide coverage under the civil authority provision of the policy requiring Strathmore to pay Legal’s business interruption losses resulting from an action of civil authority.  The Policy provided coverage if the action “prohibits access” to the Designated Properties. The court distinguished between a government order which “prohibits” access to one which “limits” access. An order not preventing entrance to the insured premises but rather limiting the type of services provided does not “prohibit access.” Legal Seafoods alleged the orders mandated closure of and prohibited access to some of its restaurants. However, Legal Seafoods could not point to an order which “completely prohibited access to any of its Designated Properties.” In fact, Legal acknowledged the Orders permitted its restaurants to continue carry-out and delivery operations. Legal could not establish a necessary prerequisite of civil authority coverage: a prohibition on access to the premises. The fact that it was not financially feasible for Legal Seafoods to continue restaurant operations solely for carryout and delivery sales thereby forcing closure was immaterial. The relevant inquiry was whether the Orders completely prohibited access to the Designated Properties.

Legal Seafoods also pressed for coverage because of direct physical loss. Here, it alleged Covid-19 was “physically present on its properties” and caused loss or damage to those properties resulting in suspension of its operations. The court found the allegations insufficient. Courts in Massachusetts have narrowly construed the meaning of “direct physical loss” as requiring some kind of tangible, material loss. There must be enduring impact to the actual integrity of the premises. While the virus may harm human beings, this is not the case with property.

This decision is in line with the majority of others which have addressed business income loss insurance for companies impacted by the Covid 19 pandemic. Interpretation of the policies is made under the state law which applies. Courts interpreting policy language with a fair reading have found no business income loss. There are some outliers. These courts may find ambiguity in the policy’s insuring agreement or definitions and allow a case to move forward. Certain companies have gone through difficult times and an “ambiguity” may put out a lifeline to some whether called for or not.

For more information, please contact Michael Weinberg at [email protected].