Second Circuit Tries Hoisting ACORN on Its Own Petard

ACORN Community Organizing Personal Writings

P1010005 Laramie I may be stuck in Laramie, but I adapt and make the best of it, which is what organizers do by nature and training.  I spent a couple of hours at Coal Creek Coffee downtown in no small part because generally coffee in Wyoming sucks, despite the greatness of the state, and because the stencil on the front door of the shop heartily welcomes “do gooders, malcontents, and revolutionaries” so at least some of the customers must be “my people.”  I tried on a pair of Merrill’s moccasins just to see how they felt.  I bought a couple of pair of Carthart jeans because I’ve always admired them.  You’re getting the picture.

Maryellen Hayden, a warrior who ran the Pittsburg office of ACORN for years, posted a couple of notes on my Facebook wall ranting about the 2nd Circuit Court of Appeals overturn of ACORN’s successful injunction at the federal district court level of the Congressional crazy stampede that produced the ACORN Defunding Act in the wake of the pimp-prostitute mess last fall and the general partisan hating on ACORN that had been unremitting for a year.  I had posted a Times printing of an AP story.  Maryellen’s comments seemed to be saying that the appeals court had essentially decided to reject the lower court decision because the punishment of ACORN was de minimus – not significant – because only 10% of ACORN’s funding originated with the feds.  So, I thought, what the heck, I’m stranded in Wyoming chomping at the bit to drive home, I should be at the office early tomorrow, instead here I am, so the least I can do is buckle down and read the decision and see if I can throw some light out there against the dark forces.

So I read the decision this morning with a lot of head scratching.  Several observers have pointed out that the appeals decision was decided 2-1 on a Republican versus Democratic split, and there may be good reason to do so, because a lot of the decision seems more “political” than legal.  Inevitably this will arise when so much of the decision is based on the Appeals Court’s avowed intention in many parts of the writing to parse the degrees of punishment to determine whether or not they can be called “unconstitutionally punitive.”  In that sense Maryellen is right that they certainly cite that suspending 10% of ACORN’s funding should not have been a “death blow.”

The Appeals Court’s error here is both substantive and paradoxical.  In the opening arguments of the decision the judges reject the government’s attempt to pull the Department of Defense and Office of Management and Budget out of the case by arguing that it was irrelevant if ACORN never had or never would apply for funding from the DOD, and it was irrelevant if OMB had tried to paper over its initial instructions when the original injunction was overturned, because the “reputational” damage to ACORN was substantial and enduring from both the OMB and DOD actions.  Word!  But, then the judges, pages later, retreat to hide behind the “10%” screen.  Regardless, the definition of punitiveness is inherently subjective, and here the judges want to have some credibility by pretending that ACORN’s problems were all self-inflicted and that the Congressional action was prudent rather than punitive.

The judges pile a lot on the molehill of a relatively recent decision (cited several times) in which HUD has made a determination that that New York Acorn (as they call it) is a separate corporation and not related to ACORN, therefore it could now receive funding from New York State to NY Acorn under a contract that was funded by HUD.  Frankly, all of this is so confusing and contradictory that even rereading the sections of the decision several times, I felt befuddled, which still leaves me in better shape than the judges who I believe allow their handling of this corporation to be slickly deceiving and deliberately intellectually dishonest.  The description provided in the decision of New York Acorn is of the New York ACORN Housing Corporation.  I had heard that NYAHC had been renamed (rebranded?) as MHANY (Mutual Housing of ACORN New York) Management, Inc.   The actual cover page of the decision acknowledges that the name change has occurred from NYAHC (which I think they misstate with the “c” as company rather than corporation, but who cares since facts don’t seem to matter here) and is now MHANY Management, Inc., but from that point on in the text of the decision the judges simply lump all of this post-facto (after the defunding decision) survival mode activity into something they call “New York Acorn.”  By doing so they are then allowing themselves to pretend that something that was always a separate and distinct corporation in New York State is the same as ACORN, and therefore its ability to slip the noose and access the NY State funding makes this all hunky-dory.  That’s just wrong!

Furthermore I would bet money that the facts, by which I mean the politics and not the law, undermine that as well.  A New York Times story some months ago documented clearly the difficult problems that ACORN’s new management had in navigating the old New York relationships with officials in the Obama Administration.  Shaun Donovan, the head of HUD, always had a close and productive working relationship with Ismene Spiliotis, the head of NYAHC and the head of MHANY Management, Inc dating to his time as a New York housing czar.  In the story it was painful to read how Ismene, who was always a great ACORN staff member and manager and widely acknowledged to be one of the best nonprofit housing developers in New York, was being victimized by the fact that one of the primary gotcha tapes from the pimp-prostitute mess was right under her nose involving a housing counselor for NYAHC.  As the saying goes, “all politics is local,” and a wrong was finally righted by restoring justice in New York that the kangaroo court of media and the Congress had not allowed earlier.  A restoration of that kind should not be a justification for the Appeals Court though, espcially so long after the fact.

All of this is the tendency of the decision throughout which is a not so subtle attempt to simply “blame the victim” for the unconstitutional actions of Congress by applying ambiguous standards to ACORN that would be unacceptable to any other corporation or entity.  If one reads this decision one thinks that ACORN has been convicted of fraud, financial misuse and misappropriation, and any number of crimes, none of which is true, yet all of which are used by the Appeals Court to justify allowing the defunding of ACORN.

The majority judges also cite in a number of instances what they call ACORN’s “admissions of significant mismanagement.”  None of this is cited or referenced of course, and being a pretty close follower of this story, and quite frankly, for 38 years as Chief Organizer, probably the principal manger here, I read all of this with an eagle eye.  The judges only cite the fact that there have been “reports” (largely overheated, inappropriate, and inaccurate) that the ACORN “family” of organizations involved more than 200 different corporations, which must hardly bring a nod from most corporate heads given the common practice of separating real estate and development projects and nonprofit versus tax exempt organizations into separate corporations and is hardly illegal much less suspect.  They don’t like the fact that the structure and relationships were “complex.”  If they had asked me (which no one anywhere ever has) I would say that we structured the organization smartly from jump and that recent events have proven the rightness of that strategy and the mistake of not holding the line and protecting the walls between various entities.

As for these so-called “admissions of significant mismanagement” in fact where are these admissions and what might they have been?  Obviously Bertha Lewis, who emerged in the year after I resigned under the new title of “chief executive officer” would promise to do things differently, nail down any loose boards, and tighten any wobbly screws.  Frankly, that’s what all new managers do when they replace someone, either with a deft touch or a loud scream.  It was hard for me to ever take personally.  It’s part of the common politics of transitions, and hardly an admission of “significant mismanagement,” nor given Bertha and her teams long history in ACORN’s management would there ever be a credible “admission of significant mismanagement” unless there was a suicide pact to self destruct their own credibility and ACORN itself.

My best guess would be that the judges are relying on the botched, discredited, confidential, slapdash hack job done by attorney Beth Kingsley and commissioned during the upheaval of new management being selected amid the internal power struggles involving the board and staff about the control, direction, and resources of the organization in the months after I resigned.  And, they are certainly relying on that less than the repeated references to it after it was leaked by members of the rump ACORN 8 caucus to the New York Times as they tried to advance their leadership coup.  Probably the only thing the ACORN 8 ever did that I had to agree made sense was attempt to censure Kingsley for unprofessional and ethical violations before the DC bar, though unfortunately they were doing the right thing for the wrong reasons.  Kingsley was overmatched for the job and out of her arena by hundreds of miles, and wrote a political document relying on an embittered, alienated, and disillusioned staff member, that basically offered hip shooting opinions and allegations to cover up any substantive examples of problems or mismanagement other than to say that it was too complex for her and she didn’t like it. (Wade, what did you really think of that “report”? I thought even some of the “and’s” and “the’s” were lies!)

But, who knows, since the bottom line is that the Appeals Court judges just continue the allegation walking on whatever thin ice is beneath them, yet it’s substantial, since they use it to cover the heart of the crime here:  “Although the appropriations laws may have the effect of alienating ACORN and its affiliates from their supporters, Congress must have the authority to suspend federal funds to an organization that has admitted to significant mismanagement.”  By doing so the judges exercise their political will beneath the judicial screen by essentially arguing that even if Congress erred, ACORN asked for it.  That’s a dangerous legal precedent for the future if allowed to stand.

Yet, it will probably be allowed to stand as poorly reasoned and as erroneously based.  I wouldn’t bet on the Supreme Court being willing to hear the case in the future, and I certainly would never bet on the odds of justice at the hands of the Roberts’ court in the future.

This may be a sorry ending, but it is likely the ending of the last legal lifeline for ACORN.