Author: LegalEase Solutions

QUESTION PRESENTED

 What possible rebuttals can Plaintiffs raise to the defenses below?

 SHORT ANSWER

             As far as the political question doctrine is concerned, it cannot be blindly concluded that all questions regarding foreign relations are political questions. The court may make an inquiry on a case-by-case basis to determine whether the political doctrine question applies.

With respect to the current standards regarding evacuation programs, the court has observed that the evacuation program ultimately comes under Federal supervision and it requires the participation of civil agencies of federal government in the process of evacuation.

With regard to the agency’s immunity to liability, the governmental tort liability act does not provide immunity from tort liability to public officers or employees. A court may in that case inquire into the plaintiff’s case to determine whether the public official can claim such immunity.

Furthermore, for evidence of discrimination, if the plaintiff has established a prima-facie case the court may presume a case of discrimination. So the burden of proof lies on the defendants to prove that the defendant has acted legitimately and without discrimination. However, compulsory exclusion of large groups of citizens from their homes is inconsistent with basic governmental institutions; legal restrictions that limit the rights of a single racial group are immediate suspect.

Finally, with regard to enforcement of a legal duty by the court, if the court finds that an act is mandated by the statute and the officer has failed to carry out the provisions of the statute, the court may compel such officer to enforce it by issuing the relief of mandamus.

RESEARCH FINDINGS

1. Claims are barred by the political question doctrine (national security and foreign relations)

Generally, “[i]n determining whether a question falls within (the political question) category, the appropriateness under our system of government of attributing finality to the action of the political departments and also the lack of satisfactory criteria for a judicial determination are dominant considerations.” Baker v. Carr, 369 U.S. 186, 210-11, (1962).“The nonjusticiability of a political question is primarily a function of the separation of powers. Much confusion results from the capacity of the ‘political question’ label to obscure the need for case-by-case inquiry.” Id. “Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution.” Id.

Therefore, before the court comes to the conclusion that a particular matter or issue comes under the political question doctrine, the court may analyze the case initially and may take up a case-by-case inquiry if needed.

Although,“[t]here are sweeping statements to the effect that all questions touching foreign relations are political questions . . . it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.” Id at. 211. Though “a court will not ordinarily inquire whether a treaty has been terminated, since on that question governmental action must be regarded as of controlling importance, if there has been no conclusive governmental action then a court can construe a treaty and may find it provides the answer.” Id. at 212.

Also,

though it is the executive that determines a person’s status as representative of a foreign government, the executive’s statements will be construed where necessary to determine the court’s jurisdiction. Similar judicial action in the absence of a recognizedly authoritative executive declaration occurs in cases involving the immunity from seizure of vessels owned by friendly foreign governments.

Id. at 213.

The “Court is not at liberty to shut its eyes to an obvious mistake, when the validity of the law depends upon the truth of what is declared. It can inquire whether the exigency still existed upon which the continued operation of the law depended.” Id. at 214. Similarly, the “Courts will never delve into a legislature’s records upon such a quest: If the enrolled statute lacks an effective date, a court will not hesitate to seek it in the legislative journals in order to preserve the enactment.” Id. at 215. “The political question doctrine, a tool for maintenance of governmental order, will not be so applied as to promote only disorder.” Id.

Thus, all cases and issues that relates to foreign relations may not be construed to lie beyond judicial cognizance.

2. There are currently no standards for the judiciary regarding evacuations

In Ex parte Mitsuye Endo, 323 U.S. 283, 284(1944), the petitioner was an American citizen of Japanese ancestry and she was evacuated from California pursuant to certain military orders. The Court discussed about the evacuation procedure in this case and opined that “the evacuation program necessarily and ultimately developed into one of complete Federal supervision.” Id. at 295. “[T]he Order and the statute together laid such basis as there is for participation by civil agencies of the federal government in the evacuation program.” Id. at 323. Therefore, “[b]road powers frequently granted to the President or other executive officers by Congress so that they may deal with the exigencies of war time problems have been sustained.” Id.

3. Agency actions are immune from liability

Generally, “[t]he governmental tort liability act does not provide immunity from tort liability to public officers or employees.” Ross v. Consumers Power Co., 420 Mich. 567, 664, 363 N.W.2d 641, 681-82 (1984).

For that purpose,

Courts should decide claims of immunity asserted by public officers or employees on the basis of the factors traditionally considered at common law:

1) Was the officer or employee acting within the scope of his official function?

2) Was the officer or employee acting in good faith?

3) Was the officer or employee exercising quasi-judicial or policy-making discretionary authority?

Id.

“The critical inquiry in determining whether an official is entitled to claim immunity is not whether someone has in fact been injured by his action; that is part of the plaintiff’s case in chief.” Butz v. Economou, 438 U.S. 478, 520, (1978). “The immunity defense turns on whether the action was one taken when engaged in the discharge of duties imposed upon [the official] by law.” Id.

As per the statute, the Secretary of State shall develop and implement policies and programs to provide for safe and efficient evacuation of United States Government personnel, dependents, and private United States citizens when their lives are endangered. (citing 22 U.S.C.A. § 4802(b)).

It is true that, “the common-law doctrine of sovereign immunity from tort liability could not be waived or abrogated except by statute.” Ross v. Consumers Power Co., 420 Mich. 567, 601, 363 N.W.2d 641, 652 (1984). But generally, “[a] governmental agency could not assert the defense of sovereign or governmental immunity from tort liability if it was engaged in a ‘proprietary’ function or did not act for the ‘common good of all.’” Id. at 656. Moreover, “[r]ather than requiring that the activity have no common analogy, Justice Moody believed that the governmental agency must show that the purpose, planning and carrying out of the activity, due to its unique character or governmental mandate, can be effectively accomplished only by the government.” Id. at 657.

Thus, immunity from tort liability is not provided to public officers and employees under the governmental tort liability act. It’s a well-known principle that sovereign immunity cannot be waived except by a statute. However, to assert the defense of sovereign immunity from tort liability the government must show that their activity has a common analogy. In order to establish a common analogy, the government agency must show that their activity is of a unique nature and may only be accomplished by the government.

4. There is no evidence of discrimination

At common law, “[c]ompulsory exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic governmental institutions.” Toyosaburo Korematsu v. United States, 323 U.S. 214, 219-20 (1944). Thus, “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect.” Id. at 216.

Moreover, “[r]acial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination.”Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 218 (1995). “Any preference based on racial or ethnic criteria must necessarily receive a most searching examination to make sure that it does not conflict with constitutional guarantees.” Id. at 219. Therefore, the Court had the opinion that, “strict scrutiny must be applied to all governmental classification by race.” Id. at 222.

In Adarand Constructors, Inc. v. Pena, 515 U.S. 200(1995), the Supreme Court dealt “with a classification based upon the race of the participants, which must be viewed in light of the historical fact that the central purpose of the Fourteenth Amendment was to eliminate racial discrimination emanating from official sources in the States.” Id. at 216. The Court also observed that “the Constitution of the United States, in its present form, forbids, so far as civil and political rights are concerned, discrimination by the General Government, or by the States, against any citizen because of his race.” Id.

“When the plaintiff has sufficiently established a prima facie case, a presumption of discrimination arises.” Hazle v. Ford Motor Co., 464 Mich. 456, 463, 628 N.W.2d 515, 521 (2001). The Court has also explained that the “prima facie case raises an inference of discrimination because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.” Id. at. 463. However, “[i]n many cases, no direct evidence of impermissible bias can be located.” Id. at. 462.

5. There can be no mandamus because the actions involved are discretionary

It is a well-established law that Mandamus is a discretionary writ and it can only be issued against a public official for the enforcement of a legal duty in his official capacity. So, “[i]f the act requires some discretion but is mandated by statute and the officer failed to carry out the provisions of the statute the courts may order him to do so.” LundBerg v. Corr. Comm’n, 57 Mich. App. 327, 329, 225 N.W.2d 752, 753 (1975). Further, “[t]he performance of a ministerial duty may involve the exercise of some discretion and judgment.” People ex rel. Wright v. Kelly, 294 Mich. 503, 519, 293 N.W. 865, 871 (1940). Thus, if the court finds that there exists a clear legal duty, the court shall thereby grant the relief prayed for.

The relevant statutory provisions provide that:

• 4802. Responsibility of Secretary of State

(b) Overseas evacuations

The Secretary of State shall develop and implement policies and programs to provide for the safe and efficient evacuation of United States Government personnel, dependents, and private United States citizens when their lives are endangered. Such policies shall include measures to identify high risk areas where evacuation may be necessary and, where appropriate, providing staff to United States Government missions abroad to assist in those evacuations. In carrying out these responsibilities, the Secretary shall—

(1) develop a model contingency plan for evacuation of personnel, dependents, and United States citizens from foreign countries;

(2) develop a mechanism whereby United States citizens can voluntarily request to be placed on a list in order to be contacted in the event of an evacuation, or which, in the event of an evacuation, can maintain information on the location of United States citizens in high risk areas submitted by their relatives;

(3) assess the transportation and communications resources in the area being evacuated and determine the logistic support needed for the evacuation; and

(4) develop a plan for coordinating communications between embassy staff, Department of State personnel, and families of United States citizens abroad regarding the whereabouts of those citizens.

22 U.S.C.A. § 4802

6. The plaintiffs have no likelihood of success on the merits

The plaintiffs have a good chance of success on the merits. The instant case is analogous to LundBerg v. Corr. Comm’n, 57 Mich. App. 327, 225 N.W.2d 752 (1975), wherein the court found that if “the act requested is of a ministerial nature . . . the execution thereof may involve some measure of discretion.” Id. at 329. Further, the law that requires the Secretary of the State to undertake overseas evacuation program clearly mandates a legal duty, and that makes way for the court to exercise some discretion for execution of the act by granting the writ of Mandamus.

In the instant case there are also clear indications that the federal government is implementing class, racial, and ethnic distinctions by treating U.S. Citizens of Yemeni national origin in an unlawful and discriminatory manner by not taking any action or measures to evacuate them. As seen in Hirabayashi v. United States, 320 U.S. 81(1943), an American citizen of Japanese ancestry was convicted of being a person of Japanese ancestry, for acting contrary to a restriction which was only promulgated for the people of Japanese ancestry. In Hirabayashi, the court opined that, “[d]istinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality. For that reason, legislative classification or discrimination based on race alone has often been held to be a denial of equal protection.” Id. at 100. A parallel can also be drawn to the notorious WWII-era case Toyosaburo Korematsu v. United States, 323 U.S. 214 (1944), now regarded as a shameful decision marking a U.S. policy clearly directed only at punishing one racial group, motivated only by racial hatred, fear, and xenophobia. By drawing a parallel between that case and the instant case, it is likely that the court will be persuaded to act and grant the requested relief.

CONCLUSION

Accordingly, it is evident that, it is the legal responsibility of the Secretary of the State to exercise policies and programs for overseas evacuation of the private United States citizens whose lives are endangered. Hence, if the act requested is of a ministerial nature, the execution of it may involve some measure of discretion. (citing Michigan Dental Society v. Secretary of State, 294 Mich. 503, 293 N.W. 865 (1940)).