April 26, 2002
AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY, ET AL., PLAINTIFFS- RESPONDENTS/CROSS- APPELLANTS,
COUNTY OF HUDSON, ET AL., DEFENDANTS-APPELLANTS/CROSS- RESPONDENTS, AND THE UNITED STATES OF AMERICA, INTERVENOR-APPELLANT/CROSS- RESPONDENT.
Trial Court Docket No.: HUD-L-463-02 (Hudson County)
Judge(s): Kestin, Steinberg, Alley.
The opinion of the court was delivered by: Howard H. Kestin, J.A.D.
ORDER ON EMERGENT APPLICATION
CROSS-APPLICATION FILED: April 26, 2002
THIS MATTER HAVING BEEN DULY PRESENTED TO THE COURT, IT IS ON THIS 26th DAY OF APRIL, 2002, HEREBY ORDERED AS FOLLOWS:
EMERGENT APPLICATIONS TO RECONSIDER THE ORDER OF
APRIL 19, 2002
(X) (X) (X)
This matter first came before us on Thursday, April 18, 2002, on the motion of Intervenor, the United States of America (the government). Having previously filed a notice of appeal from the trial court's judgment granting the relief sought by plaintiffs, the government sought a stay pending appeal of the requirement for disclosure of the names, nationalities, and other pedigree information of persons being detained in two county jails under contracts with the Immigration and Naturalization Service. The government's emergent application also sought an acceleration of the appeal. The latter motion was granted and a brief-filing schedule was established, culminating in oral argument scheduled for May 20, 2002.
Cognizant of the important and fragile interests and rights claimed on both sides of the case (e.g., the government's claims of national security, etc.; and the needs asserted on behalf of the detainees, inter alia, for access to the advice of counsel and the services of consular personnel) this court sought, in a teleconference with counsel on April 19, 2002, to elicit the agreement of the parties to an interim solution which would preserve the status quo, i.e., short of the full disclosure mandated by the trial court, yet, sensibly serving the individual interests in representation to the greatest extent possible. Such an interim solution on an agreed-upon basis could not be achieved, however.
The court, therefore, entered its order granting the stay on the condition that the status quo be maintained, i.e., that no person involved be removed from his or her present confinement without consent. The purpose of the requirement, made clear to counsel at the time, was simply to forestall the eventuality that the individual rights and interests at the heart of the complaint for relief would become moot in ways that would unreasonably disadvantage the detainees in respect of the fundamental rights asserted on their behalfs.
The government's administrative response to the issuance of the order has engendered a motion from plaintiffs to vacate the stay or, in the alternative, to clarify the conditions of the stay. The government has cross-moved for reconsideration of the conditions.
The court adheres to its goal of maintaining the status quo with a view to preserving the competing claims to the greatest extent possible within the jurisdictional capacity of this court to act. The court wishes to avoid premature decision of any issue in the case, and intends, while the matter is pending, to avoid impinging on both the claims of the government and the concerns at the root of the complaint, leaving for plenary resolution how those competing interests might be intelligently balanced, if at all. It is not the court's intention to limit unduly the government's discharge of its essential functions; nor will the court tolerate any steps pendente lite that worsen the procedural lot of the detainees before the ultimate issues are resolved. With these thoughts in mind, and sensing the germ of a mutually agreeable modus vivendi in the motion papers of the respective parties, the undersigned conducted a brief teleconference with counsel for both sides on April 26, 2002, urging them to confer with a view to developing a mutually agreeable plan and isolating any issues on which the parties could not agree. The parties have produced such a document, a "joint statement of counsel." Therein, both parties stress their basic positions regarding the April 19, 2002, order but have "agree[d]" that if the conditions of the order are to remain in place, "the order should be refined to permit the following:
1. The removal of any detainee who has agreed to voluntary departure.
2. The removal of any detainee with a final removal order who exhibits his consent to such removal by signing a form setting forth [that] consent.
3. The removal of any detainee who is authorized to leave the jail on bond.
4. The temporary removal of any detainee, such as for transportation to immigration or other court hearings, medical matters, or the like.
5. The removal of any detainee who is actually represented by counsel."
The court has determined that a conditional stay continues to be necessary, and hereby adopts the foregoing terms and incorporates them into the conditions covering the stay pending appeal.
The order of April 19, 2002, as so modified by the addition of the quoted language proposed by the ACLU and the government, remains in full force and effect.
We also adhere to the second decretal provision of the order establishing an accelerated schedule for plenary consideration of the issues raised on appeal.
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