Judgment Grants ACORN Declaratory, Permanent Injunctive Relief
Slams Congress for acting without administrative process or trial...
By Ernest A. Canning on 3/10/2010, 9:30pm PT  

Guest blogged by Ernest A. Canning

"The government has offered no...unique reason to treat ACORN differently from other contractors accused of serious misconduct or to bar ACORN from federal funding without either a judicial trial or an administrative process applicable to all government contractors."

That was the finding in the judgment [PDF] issued late today by U.S. District Court Judge Nina Gershon, granting both declaratory relief and a permanent injunction to the Association of Community Organizations for Reform Now (ACORN).

The court declared that the provisions of the "FY 2010 Consolidated Appropriations Act," an amalgam of six separate bills which President Barack Obama signed into law on Dec. 16, 2009, which sought to strip ACORN of their right to enter future contracts with the U.S. government and to deprive them of all federal funding, save what had already been earned on existing contracts, amounted to an unconstitutional Bill of Attainder in violation of Article I, Section 9 of the United States Constitution.

Gershon's decision comes on the heels of a recent string of legal and public relations exhonerations for the community group which has long been targeted by the GOP, in large part, for their successful work in legally registering hundreds of thousands of low- and middle-income voters who tend to favor Democratic candidates...

In a lengthy opinion [PDF], in which the court cited former MA Attorney General Scott Harshbarger's independent analysis, Judge Gershon noted that the government had "conceded that the bill singled out ACORN which had never been found guilty in a court of law and deserving of punishment but argued that [the Act] was not punitive."

Judge Gershon rejected the government's position, stating:

The nature of the bar and the context within in which it occurred make it unmistakable that Congress determined ACORN’s guilt before defunding it….Wholly apart from the vociferous comments by various members of Congress as to ACORN’s criminality and fraud…no reasonable observer could suppose that such severe action would have been taken in the absence of a conclusion that misconduct had occurred.

The court also opined that it made no difference that the Act included provisions for Congressional investigations:

Congress is entitled to investigate ACORN and to determine whether the executive agencies with whom plaintiffs have contracted have properly held them to account. But Congress could not rely on the negative results of a negative congressional or executive report to impose a broad, punitive funding ban on a organization; explicit, non-judicial findings of guilt would exacerbate, rather than mitigate, the punitive nature of the challenged provisions.

For those unfamiliar with the basics of our constitutional system, the issue goes to the heart of our separation of powers. Issues of guilt or innocence are not to be determined by the executive or legislative branches but by an impartial judiciary. There are administrative agencies which can carry out judicial-like functions, but these agencies preserve the right to due process of law.

Under the Administrative Procedures Act, it is appropriate to determine whether a contractor has misused federal funds, but those procedures, as Gershon found, were not followed.

Darius Charney, an attorney for the Center for Constitutional Rights (CCR), which represented ACORN in this landmark U.S. District Court case observed:

Members of Congress were found to have violated the Constitution by declaring an organization guilty of a crime and punishing it and its members without benefit of a trial, then underhandedly passed a new budget doing exactly the same thing. While this ruling may not be the end of the unfair targeting of ACORN, it is certainly a step in the right direction to protecting the fundamental right to due process. Today Court upheld the Constitution and the rule of law – the people will benefit from this exercise of our system of checks and balances.

More details on the legal issues are available via The BRAD BLOG's earlier coverage of suit:

11/16/09: "ACORN Sues Congress Over Defunding Legislation"
1/27/10: "ACORN Awaits Expansion of Injunction on 'Probably Unconstitutional' Defunding Measure, As Phony Pimp Who Set Them Up is Arrested for Federal Felony"

Gershon's judgment comes on the heels of the completion of a five-month investigation by the Kings County, NY District Attorney's office examining the secretly-taped videos taken of ACORN Housing workers in Brooklyn and released by rightwing activists James O'Keefe, Hannah Giles and Andrew Breitbart.

The D.A. released a statement finding "no criminality" last week, after which sources from their office told the New York Post that the videos amounted to a "'heavily edited' splice job that only made it appear as though the organization's workers were advising a pimp and prostitute on how to get a mortgage...[with] many of the seemingly crime-encouraging answers...taken out of context so as to appear more sinister."

It was after the release of the highly publicized release of those doctored video tapes --- publicity which has recently been shown to have been a hoax and based on a number of out-and-out deceptions --- that Congress quickly, and unconstitutionally, moved to defund ACORN.

For many, many weeks now, Brad Friedman has tirelessly pursued the underlying facts, exposing one canard after another, while calling on the mainstream media to responsibly perform its fourth estate function. In a piece posted earlier today, “The Real Targets of the ACORN Smear Campaigns: Verifiable Truth, American Democracy,” I noted:

What is truly disturbing, however, is that this concocted tale would be unquestioningly accepted as legitimate by the corporate media and by Congress, which, in their rush to mollify the noisy hard-right, displayed a profound ignorance of basic concepts of fundamental fairness and due process of law.

ACORN was prematurely and inappropriately tried and convicted in the press and in Congress, without so much as a single hearing, vis a vis a grotesque and shameful word-of-mouth propaganda lynch job unseen since the days of Joseph McCarthy, the disgraced, right-wing demagogue who misused his powerful perch in the U.S. Senate to smear "loyal Americans as disloyal" and who falsely "charged that the government was being undermined from within"

Perhaps now, with the hoax so thoroughly exposed, with the community group having been cleared of wrongdoing by one formal investigation after another, with Judge Gershon having shamed both Congress and the corporate owned media for having ignored the fundamental precepts of our constitutional system of government, Congress and the corporate media will, finally, step forward and correct the terrible injustice they imposed on a benevolent, if imperfect, community organization.

UPDATE, 3/11/10: Today, March 11, a full nine days after Rupert Murdoch's New York Post broke the story on the Brooklyn DA's finding of no ACORN criminality under the banner headline, "ACORN set up by vidiots: DA," and one day after I submitted a link to "The Real Targets of the ACORN Smear Campaigns: Verifiable Truth, American Democracy" to the NYTimes' senior editor, Greg Brock, noting that it was "not too late for America ’s 'paper of record' to correct the horrible wrong that was committed when your paper so badly misreported this story," the paper deigned to cover the Brooklyn DA's absolution of ACORN.

Unfortunately, neither its headline, "No Crime in Acorn’s Advice to ‘Pimp,’ D.A. Says," nor the text of its article in which continues to report that "James O’Keefe and Hannah Giles visited Acorn offices in several cities using the pimp and prostitute tale," come close to what really happened.

America's "paper of record" failed to so much as mention Judge Gershon's finding that the bill which sought to strip ACORN of all Congressional funding was an unconstitutional bill of attainder.

But we are pleased to report that responsible journalism is not entirely dead in the corporate sector. The Washington Post published a well-written piece, "NYC judge: Govt must stop blocking money to ACORN," though its title is a bit off, since Judge Gershon is a federal judge, not a New York City judge.

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Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968).