EIGHTH AMENDMENT PROTECTION IN THE 21ST CENTURY

In Timbs v. Indiana the Supreme Court considered whether the Eighth Amendment’s bar on “excessive fines” is incorporated against the states under the Fourteenth Amendment. Timbs v. Indiana addressed another persistent question that has appeared on bar exams for years: “What provisions in the Bill of Rights have not yet been ‘incorporated’ against the States?”

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Tyson Timbs

Tyson Timbs was convicted in Indiana for selling four grams of heroin. The state sought forfeiture of his $42,000 Land Rover because it had been used to transport the drugs. The state trial court ruled that “[w]hile the negative impact of [drug] trafficking … is substantial … a forfeiture of approximately four times the maximum monetary fine is disproportional” under the Eighth Amendment (maximum permissible fine of $10,000). The Indiana Court of Appeals agreed that the excessive fines clause should be applied (incorporated) against the states. But the Indiana Supreme Court reversed— ruling that it would not “impose federal obligations on the State that the federal government itself has not mandated.” A persistent split on the question, involving at least 18 states’ courts and two federal courts of appeals, led the U.S. Supreme Court to grant certiorari. Until Timbs v. Indiana, the U.S. Supreme Court had never specifically ruled that the excessive fines clause applies to the states through incorporation.

“Incorporation” is the legal doctrine that holds certain protections found in the federal Bill of Rights may also be applied to conduct by the states, by “incorporating” those protections into the “[n]o State shall … deny due process” guarantee of the 14th Amendment. In McDonald v. Chicago, the court ruled that the Second Amendment applies against the states. Now only three provisions in the Bill of Rights have not been explicitly incorporated. Timbs addressed one of these: the “no excessive fines” provision in the Eighth Amendment. The other two are the grand jury clause and the Thirteenth Amendment’s rule against quartering troops in times of peace.

The Eighth Amendment encompasses three “parallel limitations” on government’s power to punish: the Cruel and Unusual Punishments Clause, the Excessive Bail Clause, and the Excessive Fines Clause. Together these clauses operate to secure a single, fundamental right to be free from excessive punishments.  Timbs now eliminates any further ambiguity—the context is criminal asset forfeiture.

In the winter of 2012, after his father died, Tyson Timbs received around $73,000 in life-insurance proceeds. He used $41,558.30 to buy a car—the Land Rover LR2. He had recently moved to Marion, Indiana, intending to live with an aunt while he worked on rebuilding his life. Back home in St. Mary’s, Ohio, he became addicted to hydrocodone—an opioid medication— prescribed to him for an injury suffered at work. When he could no longer find the drug on the street, he began using heroin.

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Land Rover LR2. Photo by Kelly Blue Book

After his father’s death, he began using heroin heavily. With a new Land Rover and in excess of $31,000 left to spend, Timbs began driving the vehicle to Richmond, Indiana, and Ohio—sometimes on a daily basis—to buy heroin for his personal use.  When his money ran out, he began looking for new ways to fund his addiction. With the help of a confidential informant, he arranged several drug transactions with undercover officers.

On the first occasion, Timbs drove across Marion in the Land Rover and sold officers two grams of heroin for $225. A few days later, he walked from his aunt’s house to a nearby gas station, where he sold officers another two grams for $160. While driving to a third transaction, Timbs was pulled over and arrested yet no drugs were found in the vehicle. The Land Rover was seized. The State of Indiana charged Timbs with two counts of dealing a Schedule I controlled substance and one count of felony conspiracy to commit theft. Timbs pleaded guilty to one count of dealing and to the count of conspiracy to commit theft. The trial court sentenced him to six years, with the first year to be served in home detention and the remaining five years on probation. The state court also ordered Timbs to forfeit his Land Rover on the theory that he had used the car to transport drugs.

In the Supreme Court, Timbs argued that protection from excessive fines has a long history in our legal tradition, dating as far back as the reign of King Henry II, who ruled England in the 12th century. When the Eighth Amendment was ratified in the 1790s, Timbs noted, “nine of the 13 states at the time had constitutional provisions guarding against excessive fines.” In 1868, when the 14th Amendment was ratified, all of the states included protection from excessive fines in their constitutions, and “all but two of the 37 states did so using language that mirrored the language of the federal constitution’s excessive fines clause.”

Timbs further argued that the 14th Amendment was ratified to “combat the tactics deployed by southern states in the years after the Civil War to oppress their African American citizens, including a variety of fines and forfeitures.” For example, Alabama law imposed a fine of “up to $1,000 and six months in jail for performing an interracial marriage,” while teaching at African American schools without a special license was “punishable by a fine of up to $500 in Florida.” The right to be free from excessive fines is still a fundamental right, Timbs proclaimed. Some states will go so far as to jail people who do not pay their fines on time. And, even if people do not lose their freedom as a result of fines, the fines can have serious repercussions— including the loss of driving privileges or the right to vote.

Timbs argued that states are likely to abuse the right to be free from excessive fines, because they can’t resist the temptation to use fines as an opportunity to raise revenue without raising taxes. In 2012, he told the justices, “agencies in 26 States and the District of Columbia took in more than $254 million through forfeiture under state laws alone.” Excessive fines are a particular problem in Indiana, he noted, “where state laws allow prosecutors to outsource forfeiture cases to private lawyers, who take the cases on contingent fees and pocket hundreds of thousands of dollars every year based on forfeitures.” The First Circuit has grappled with this problem and has required courts to consider an additional factor as well—would the contemplated fine or forfeiture be so severe as to destroy a defendant’s livelihood? This additional analysis of the excessiveness inquiry represents a major departure taken by the majority of courts.

The State of Indiana suggested that the excessive fines clause does not apply to Timbs’ case because he is complaining about the forfeiture of property used to violate the law, known as an “in rem” forfeiture, which was not traditionally regarded as a penalty. Indiana maintained the clause applies only to payments imposed as punishment. The state argued this is consistent with the problem that the excessive fines clause was intended to target, which was “to prevent judges from incarcerating individuals on the basis of unpayable discretionary fines.”

The State of Indiana advised that even if the excessive fines clause does extend to in rem forfeiture, there is no reason to interpret the clause to apply to the states. Indiana argued the Supreme Court should not look generally at whether there is a right to be free of excessive fines, but instead should look at the specific right that Timbs is asserting in the case at bar—“the right to be free of forfeitures of property whose value far outweighs the seriousness of the crime.” The state maintained there is no deeply rooted historical tradition supporting such a right. To the contrary, property forfeitures have been common, even when the consequences have been “draconian and even when the owner of the property is innocent.” For example, the Supreme Court upheld the forfeiture of nonobscene material in Alexander v. United States.  The defendants owned several pornography stores and the conviction resulted from the possession of several magazines and videos. The defendant was sentenced to six years in prison, fined $100,000 and the entire enterprise was forfeited.  The enterprise included nine million dollars he had received as proceeds from the enterprise.

The state further argued, despite the harsh results of forfeitures, courts did not apply the excessive fines clause to property forfeitures until 1992, which “strongly implies that no one understood the Excessive Fines Clause to impose a proportionality requirement on these forfeitures.” For example, property owners have challenged the constitutionality of forfeitures under other provisions in the Constitution, such as the right to a jury trial or due process, but not the excessive fines clause.

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Timbs’ petition for review garnered support from a wide range of groups. The U.S. Chamber of Commerce argued in an amicus curiae brief that “state and local legislatures are authorizing—and executive officials are seeking—excessive fines and forfeitures for relatively modest violations of the law.” Although the Eighth Amendment’s excessive fines clause acts as a check on excessive fines imposed by the federal government, the Chamber explained, the “lack of a uniform, similar constraint on the governments in the 50 states is needlessly driving up costs for businesses, increasing prices for consumer goods and services, and undermining economic growth.”

The Southern Poverty Law Center added in a separate amicus curiae brief that state governments are using fines and forfeitures simply to generate revenue to fund a “burgeoning prison population” without needing to raise taxes. The SPLC argued this focus on revenue generation can lead to “unconstitutional and racially motivated behavior by law enforcement and municipal employees.” The center asserted, “fees and fines mean that even the most casual encounter with the criminal justice system can have catastrophic results.” This can ultimately have implications on everything, from ability to pay child support to credit ratings and even leading to incarceration for failing to pay the fines.

Ultimately, the U.S. Supreme Court held that the Eighth Amendment’s Excessive Fines Clause is an incorporated protection applicable to the states. Justice Ruth Bader Ginsburg authored the opinion, agreeing with Timbs that the Excessive Fines Clause has a historic tradition dating back to the colonial era. Ginsburg reasoned that the clause is so “fundamental to our ordered liberty” and so “deeply rooted in this Nation’s history and tradition” that its incorporation is required.

 

 

The Right to Housing: Possessing Home in California

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Los Angeles Community Action Network mobilizing to defend
      housing as a human right.

On December 10, 1948, the General Assembly of the United Nations issued The Universal Declaration of Human Rights, declaring housing a basic human right. West Coast cities have experienced a surge in homelessness despite a report that found a nationwide decrease in homelessness. In San Francisco’s Bay Area alone, tens of thousands of people were living without homes as of 2017.

A 2018 report by United Nations Special Rapporteur for Adequate Housing, Leilani Farha, revealed that unregulated property speculation and discrimination are largely responsible for the recent rise in urban homelessness.

In an area where the median home costs $820,000, San Francisco’s Bay Area is currently experiencing an affordable housing crisis. Unsurprisingly 25,951 people lack stable housing in the Bay Area. A recent Brookings Institute income inequality study ranked the San Francisco metropolitan area (including San Mateo, Alameda, Contra Costa and Marin Counties) the third highest in income inequality in the United States. In the Bay Area, where the median fair market rate for a two bedroom apartment is $3,121, the highest earners were making eleven times more than the lowest.

Among those most affected by the rising rents are minority communities. A U.C. Berkeley and California Housing Partnership study found that Bay Area neighborhoods lost twenty-eight percent of minority low-income residents when the neighborhoods experienced a thirty percent rent increase. Further, African American families are seven times more likely to face homelessness than white families.  

The Special Rapporteur found that discrimination against less affluent communities exacerbates income inequality and forces poor communities into unstable housing and homelessness. Once people lose their homes, they face further barriers to stability in the form of national and local laws criminalizing homelessness. In many cities, local governments target homeless individuals by turning sleeping in public places, panhandling, and sidewalk sitting into criminal offenses. In response to these discriminatory laws and policies, the Special Rapporteur found homeless people are organizing and are taking legal action to challenge these laws.

In the San Francisco Bay Area, local homelessness advocacy groups have revived an old and controversial property law to combat homelessness: adverse possession.

Home Reclaimed?

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Known colloquially as ‘squatters rights,’ adverse possession essentially allows a person gain title of another person’s land through occupation. Borrowed from old English law, the traditional American idea of adverse possession centers around land waste: if a person is not utilizing his or her land, than he or she may lose it to someone who will. Homes sit empty in many East Bay counties where crime rates, housing foreclosures, and high rents have caused people to leave the area. With around 18,000 vacant housing units in Alameda County’s Oakland, and about 5,629 homeless individuals living in the county, adverse possession then seems a possible solution.

Obtaining housing through adverse possession is no simple thing; it may take years to gain possession and offers no guarantees. Adverse possessors are required by state law to meet certain requirements before gaining ownership as a way to balance the rights of the original owner and the state’s interest in utilizing land. In California, a person must openly occupy and use another’s property without permission and to exclusion of the owner for five continuous years. An adverse possessor must also pay property taxes for five years.

The adverse possessor faces the constant risk that the true owner will reassert ownership before the end of the five-year period, essentially ending the adverse possessor’s claim. Paying property taxes offers additional challenges because the adverse possessor must pay back taxes as well as current property taxes. These taxes can be costly in the San Francisco Bay Area where, for example, the average property tax in Alameda County is $3,993 per year. Adverse possessors may face additional bureaucratic difficulties with meeting the tax requirement when counties are reluctant to accept payments from those not on the property’s title. In addition to procedural difficulties, adverse possessors may also face criminal trespassing charges. In some cases, banks may send representatives to remove adverse possessors from the premises and will sometimes auction off the property. The vacant houses themselves may provide further challenges. For example, abandoned houses may be in disrepair, thus requiring the adverse possessor to spend money fixing the property. In other instances, vacant homes may be located in high crime areas, putting an adverse possessor’s personal safety at risk.  

For some, however, the promise of a home outweighs the uncertainty and potential legal consequences posed by adverse possession. Organizations such as Homes Not Jails and Land Action view adverse possession as a viable option to combat housing inequality in the San Francisco Bay Area. Oakland housing rights activist and Land Action founder Steven DeCaprio has personally experienced the difficulties and successes of adverse possession.

Land Action

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Steven DeCaprio of Land Action speaking at a rally.

A little over 15 years ago Mr. DeCaprio obtained his own home through adverse possession. After discovering the owner of a vacant West Oakland house had passed away in 1982, Mr. DeCaprio and some of his friends moved into the home. Finding the property in disrepair with fire damage and vermin infestation, Mr. DeCaprio spent years making the house habitable. Although none any of the original owner’s family attempted to reclaim the house, Mr. DeCaprio was forced off the property several times by law enforcement. Often when he returned to the property, the house was boarded up or the door welded shut to discourage reoccupation. However, Mr. DeCaprio persisted until he was able to gain title through adverse possession.

After his own successes, Mr. DeCaprio decided the homeless community should form a corporation to help others obtain housing. In 2011, Mr. DeCaprio founded Land Action to “assit[] organizers occupying and acquiring abandoned and unused real property [] to facilitate its use for purposes advancing the principles of justice, freedom, and ecology.” Land Action, modeled from real estate speculator tactics, functions as a title holding company by shielding adverse possessors until they have obtained ownership.

Through Land Action, Mr. DeCaprio advised Christine and Emilio Hernandez and their four children when they encountered issues arising from adverse possession. Unable to afford $2,500 a month in rent, the Hernandez family left their home and turned to adverse possession. In October 2015, the family moved into a vacant house near Oakland’s Fruitvale BART Station. Mr. and Ms. Hernandez found the house, a former drug and prostitution den, in need of rehabilitation. After installing new plumbing and electricity, the Hernandez found their lives disrupted when a bank representative changed the locks and turned off the water and electricity. Later came the eviction notices, and eventually the house was auctioned off. Although ultimately unsuccessful, the Hernandez family plans on finding another vacant house to adversely possess in their search for stable housing.

As the Hernandez family struggled with adverse possession, Mr. DeCaprio too has continued to face difficulties posed by adverse possession. In 2016, Mr. DeCaprio faced up to eight and a half years in jail as well as $89,000 in fines for helping two adverse possessors. However, as of 2017, the criminal charges against Mr. DeCaprio which included trespass and conspiracy, have been dropped.

Despite uncertainty and challenges, adverse possession remains a tempting and time-honored way to combat housing inequality.  

The Moral Character Evaluation: Proving That Your Past Does Not Define Your Future

Signpost with four arrows - business ethics

Education is an amazing equalizer. It is a combination of knowledge, opportunity, and connections that instills confidence and energy.” Most students entering into law school have a similar goal in mind: to practice law. However, despite receiving the same education, some students may have trouble proving to the bar that they meet the moral character requirements. Some past indiscretion, error in judgment, or ongoing personal battle has deemed them presumptively unfit in the eyes of the Bar Examiners.

Consider the plight of well-known civil rights activist Bruce Reilly. Reilly graduated from Tulane law school in 2014. Yet, Reilly is not a licensed attorney. As he has acknowledged, one piece of the admissions process may be just out of reach: a positive character and fitness determination. Reilly’s 1993 murder conviction is likely to give any Bar Examiner pause when considering his moral character.

In September 1992, when he was 19, Reilly accepted a ride from Rhode Island Professor Charles Russell, who brought him to his home. After a sexual encounter, Reilly became enraged and began stabbing Russell in the neck. The two men fought, and Reilly ultimately bludgeoned Russell to death. Reilly then stole Russell’s car, wallet and credit cards. After evading police for a year, Reilly was convicted of second-degree murder and robbery, and served twelve years in prison.

Since his 1993 conviction, Bruce Reilly has “turned his life around.” He was a jailhouse lawyer while in prison, and has become a powerful advocate for the formerly incarcerated through a New Orleans organization called Voice of the Experienced (VOTE). He has also been an important activist for the recent Florida campaign that restored voting rights to convicted felons.

Despite his apparent rehabilitation and his outstanding service to the community, Reilly has indicated that he has no plans to take the Bar Exam, at least while he his still on felony probation. Based on his own research and experience, he doubts that he would even “be given [the] privilege” to prove his trustworthiness and fitness to practice law.

Person Hand Filling Background Check Form
Close-up Of Person Hand Filling Background Check Form

The Moral Character Evaluation

Every United States jurisdiction requires a favorable moral character determination in order to be admitted to the state’s bar. Most law students have nothing to worry about when it comes to the character and fitness application. The State Bar of California, at least, approves a “vast majority” of its applicants. However, for those students whose life before or during law school was a ‘bit more colorful than others,’ the moral character evaluation process can be absolutely terrifying.

The asserted purpose of the moral character evaluation is to “protect[. . .] the public and the system of justice.” An applicant of “good moral character” is one who is honest, fair, and trustworthy. Additionally, the ideal applicant is one who obeys the law and respects the rights of others. The character and fitness assessment is intended to serve as a prediction of an attorney’s future integrity within the profession—a premise that, for some students, may bring truth to the adage that “you can’t outrun your past.”

Historically, the moral character assessment was considered necessary to weed out those whom society had deemed suspect based on “majoritarian, mainstream preferences.” Concerns regarding race, class, or even affiliation with the Communist party were once factors in the character and fitness determination. Modernly, Bar Examiners limit their evaluation to conduct, and specifically consider evidence of criminal convictions, drug and alcohol abuse, financial irresponsibility, and violation of schools’ honor codes. An applicant with one or more of these issues may be able to overcome their presumptive lack of good moral character with honest disclosure, evidence of rehabilitation and community service.

“Red Flags” Likely to Require Further Investigation

Bar applicants who have been involved in acts of misconduct or moral turpitude may find that their application requires further inquiry. Conduct that may prompt further investigation includes unlawful conduct, conduct involving fraud or deceit, untreated mental or emotional instability, and ongoing alcohol or drug dependency. For example, while alcohol dependency is not necessarily morally repugnant behavior per se, an applicant who fails to acknowledge an alcohol problem or seek appropriate treatment may be found to lack good moral character.

Moreover, violent felonies, acts of moral turpitude and breach of fiduciary duty are presumed to indicate lack of good moral character. To rebut this presumption the applicant will need to prove that he or she “is no longer the same person who behaved poorly in the past.” Bruce Reilly, for example, was a teenager at the time of his crime and has since used his education and experience to help others. His extensive service to the community certainly demonstrates moral integrity. Whether a state or federal bar will agree that his rehabilitation is enough to overcome a murder conviction is yet to be seen.

Not Fit to Practice Law

There are no bright line distinctions regarding what type of conduct will exclude a person from admission to the bar. An applicant who has misbehaved in his or her past life may nonetheless face an uphill battle, as they often approach the character and fitness evaluation “already swathed by a rebuttable presumption of unfitness.” The more troublesome the past conduct in terms of moral character, the stronger the candidate’s evidence of rehabilitation must be. Bar applications are commonly denied because the applicant did not complete the application honestly, continues to exhibit a pattern of fraudulent or misleading behavior, or has not demonstrated that he has learned from his past mistakes.

For example, an applicant to the Maryland Bar was denied admission not because she had previously been charged with felony theft, but because she failed to disclose this information on her bar application. She also misrepresented her grade point average on her law school resume.

Maryland also denied bar admission to an applicant who, despite admitting financial irresponsibility in a Chapter 7 Bankruptcy during law school, continued to accumulate debt, which he had no ability or apparent intention to repay. The applicant falsified information on a car loan application, and then deliberately stopped making payments. This conduct in particular, the court reasoned, “demonstrate[ed] an intentional disregard of a known legal and financial obligation.”

These examples suggest that candor is absolutely essential at all stages of the process. Continued dishonest or unethical behavior will not convince the Committee that an applicant is capable of upholding the dignity of the legal profession.

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Law and Justice, Legality concept, Scales of Justice and handcuffs on a black wooden background.

“Youthful Indiscretions” Forgiven

Not all past misdeeds will seal a candidate’s fate, however. “[E]very intentional violation of the law is not, ipso facto, grounds for excluding an individual from membership in the legal profession.”

In Minnesota, for example, the Supreme Court found that an applicant’s multiple convictions for driving under the influence did not necessarily involve moral turpitude, and that the applicant should be permitted to introduce evidence of his current pattern of behavior or rehabilitation.

A Washington State applicant had multiple criminal convictions for such crimes as assault, theft, and possession of controlled substances. Additionally, she had a long history of substance abuse and had filed for bankruptcy twice. The Supreme Court of Washington found that the applicant had demonstrated significant rehabilitation, sobriety, and sufficient present good moral character. As such, the court deemed the candidate morally fit to qualify for the Washington State Bar.

The District of Columbia Bar even admitted a bar candidate despite multiple felony convictions, including conspiracy to manufacture a controlled substance, accomplice to interstate prostitution and racketeering. The court found that the applicant’s age at the time of the conduct, the lapse of time between the conduct and his application, and the applicant’s candidness and remorsefulness were relevant factors to his character and fitness.

Future of the Moral Character Evaluation?

To the extent that the character and fitness evaluation continues to exclude those candidates who have not shown remorse or rehabilitation, it remains essential to ensuring the integrity of the legal profession. However, it is unfair to presume that a blemish on an applicant’s record suggests a lack of good moral character, until proven otherwise. Past mistakes and errors in judgment do not automatically indicate that an individual is unfit to practice law. Nor does the lack of “sanctionable conduct” in one’s past conclusively prove that the individual will uphold the integrity of the profession.

Some argue that the character and fitness evaluation should be abolished—that “good moral character” “is vague and reflects the definer’s prejudices, leading to discrimination and the wrongful rejection of bar applicants.” Too much emphasis is placed on an applicant’s past, rather than her present moral character. If one of the goals of prison is rehabilitation, shouldn’t the formerly incarcerated applicant’s character be evaluated on with the same presumption of fitness as the applicant without a criminal record? The applicant who has committed a crime in her youth, and who has repaid her debt to society, should not automatically be deemed untrustworthy in the eyes of the Bar Examiners.

 

PAGA Saves the Day Against Forced Arbitration

On May 21, 2018, the Supreme Court of the United States issued a decision in Epic Systems Corp. v. Lewis, declaring it legal for employers to force employees, as a condition of employment, to give up their right to sue their employer in open court. The Court also held that employers may require employees to forego their right to bring claims in a group or class action.

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Image by Free-Photos from Pixabay 

 

What about the constitutional right to a jury trial, as required by due process? The Federal Arbitration Act (FAA) provides for private dispute resolution by an arbitrator where the parties have contracted to settle controversies through arbitration. The FAA deems arbitration agreements generally “valid, irrevocable, and enforceable.” However, the “savings clause” in  Section 2 of the FAA, provides that traditional contract defenses may serve to render arbitration agreements unenforceable upon “such grounds that exist at law or in equity.” Nevertheless, in reality, litigants have not enjoyed success when employing defenses against arbitration agreements.

 

In AT&T Mobility v. Concepcion consumers sued AT&T alleging that an arbitration agreement in a consumer contract of adhesion, requiring customers to waive their rights to bring a class action suit, was unconscionable. The U.S. Court of Appeals for the Ninth Circuit agreed with the consumers, but the Supreme Court did not. The Supreme Court held that state “rules aimed at destroying arbitration” are preempted by the FAA because such rules are incompatible with the FAA’s purpose of “ensur[ing] that private arbitration agreements are enforced according to their terms.” As such, the Court foreclosed the use of the unconscionability doctrine to invalidate arbitration clauses, thereby thwarting consumer defenses against forced arbitration agreements.

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Image by ijmaki from Pixabay 

 

The Court’s reverence to arbitration agreements as applied to consumers and employees is misaligned with the historical purpose of the FAA. The FAA, enacted by Congress in 1925, is a product of the roaring twenties, prohibition, World War I, and a changing national and international economy. Congress designed it to provide private dispute resolution for commercial disputes between merchants. It is unlikely that its authors envisioned its broader modern application to consumer and employment disputes, where a vast bargaining power disparity exists between powerful corporations and unsophisticated parties. While it serves practical business needs that merchants may opt for private dispute resolution by entering into a binding arbitration agreement, it strikes many as unfair that unsophisticated consumers and employees are forced to choose between waiving their right to a jury trial or not entering into a contract for a basic necessity, such cell phone service or a job.  

 

Arbitration agreements are becoming increasingly common in the employment setting, with over 60 million Americans being bound by one. In the private sector, 56.2 percent of nonunion employees are bound by mandatory arbitration agreements. In California, 67.4 percent of workplaces are subject to mandatory arbitration. Employees are less likely to win their cases in arbitration than in court. This may be due, in part, to the fact that arbitrators, who serve as private judges in arbitration proceedings, are generally paid by employers. Even when employees do win in arbitration, they recover less in damages than they would in court. Unlike court proceedings, arbitration is confidential. Many employers, such as Google, have used arbitration to keep claims secret and thus, shield themselves from negative publicity. Employees who are subject to arbitration are less likely to even bring their claims because, given the lower likelihood of success and lower damages, attorneys are less likely to take on such claims. The suppression effect of mandatory arbitration agreements on employment litigation poses a danger to employee rights. Employers have less incentive to abide by the law if they are less likely to be sued for violations.

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“Google employees, like their counterparts at a ballooning number of American companies, were subject to forced arbitration.” https://www.theguardian.com/commentisfree/2019/jan/08/forced-arbitration-sexual-harassment-metoo. Photograph: Jeenah Moon/Reuters

 

Forced arbitration clauses are especially detrimental to victims of sexual harassment seeking to enforce their rights under the law. Karla Amezola was a news reporter for Estrella TV, where for six years, she was subjected to sexual advances by Andres Angulo, the network’s Vice-President of News. On one instance Angulo cornered Ms. Amezola, groped her, and kissed her against her will. Ms. Amezola was fired after complaining to the network’s human resources department. She sued her former employer, but because she was subject to an arbitration agreement, her claim will not be heard in court. Instead, the claim will be handled in private arbitration proceedings, where her story and the employer’s unlawful conduct will be kept secret, thereby undermining Ms. Amezola’s efforts to obtain justice and hold her perpetrator accountable.

 

While the Supreme Court’s bolstering of mandatory arbitration agreements in Epic Systems is likely to encourage more employers to adopt such agreements, all is not lost in California. Through the Private Attorneys General Act (PAGA), the California Labor Code authorizes aggrieved employees to file lawsuits in court to recover civil penalties on behalf of themselves, other employees, and the State of California for Labor Code violations. The stated purpose of PAGA is to “augment the enforcement abilities of the Labor Commissioner by creating an alternate ‘private attorney general’ system of labor enforcement.”

 

Because the state is a party in PAGA lawsuits, mandatory arbitration clauses do not bar a claim from being heard in court. This is due to the fact that the State of California does not agree to an arbitration clause, even if an individual employee does. In Iskanian v. CLS Transportation Los Angeles, LLC the California Supreme Court held that agreements requiring employees to waive potential PAGA claims are unenforceable because the claim belongs to the state, not the individual employee. The California Court of Appeal went even further in Correia v. NB Baker Electric, Inc, holding that employers may not require employees to arbitrate their PAGA claims without the state’s consent.

 

Tracy Warren, a former Ogletree, Deakins, Nash, Smoak & Stewart P.C. equity shareholder filed a PAGA lawsuit accusing the law firm of discriminating against her and other female attorneys in violation of the California Equal Pay Act. Filing the lawsuit as a PAGA claim may be Ms. Warren’s best strategy to have her case heard in open court, as opposed to arbitration. A related suit filed as a class-action claim in federal court, alleging that female employees at the firm are denied equal pay for equal work, will be heard in private arbitration proceedings.

 

The increase in PAGA lawsuits in recent years is likely associated to the increase in mandatory arbitration agreements. As more employees find themselves without access to the courts, PAGA claims offer the only remaining recourse for employees to have their day in court. Though remedies under PAGA are limited to penalties as opposed to traditional damages, employees benefit by bringing a PAGA claim. PAGA claims allow broad, statewide discovery. In Williams v. Superior Court, the California Supreme Court held than a Marshall’s employee bringing a PAGA claim could seek contact information for all Marshall’s employees in California, even without proving that they were also “aggrieved” employees. Burdensome discovery requirements and high litigations costs to employers may provide an incentive to abide by the law to avoid lawsuits.

 

On the whole, mandatory arbitration fails to serve the optimal interests of both employers and employees in California. Though mandatory arbitration is becoming increasingly popular, employees will continue to seek their day in court if they have been wronged, even if under PAGA, they must forego traditional damages. Without any other recourse to the courts, employees will likely utilize PAGA to a larger extent, thereby subjecting employers to litigation costs. While PAGA serves an important interest in enforcing the California Labor Code, it functions best in conjunction with traditional employment litigation in the courts as opposed to arbitration.

 

Our society is deeply founded on our Seventh Amendment right to a jury trial to resolve disputes. Arbitration simply does not serve the principles of fairness and justice embodied in our Constitution and our long-held tradition of petitioning the courts for redress.

California Wine Industry Feels the Effect of Trump

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A worker picks grapes in a vineyard at a Napa Valley winery. Photo by Robert Galbraith/Reuters

 

“When Mexico sends its people, they’re not sending their best. They’re sending people that have lots of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists.” This was much of the tone about immigrants during Donald Trump’s speeches on his campaign trail. Since President Trump took office, it seems that immigration has propelled to the forefront of political debates and water cooler talk. Most of the headlines regarding immigration that have dominated our screens have been about children being separated at the border, Trump’s disapproval of sanctuary cities, or Trump’s incessant demand to build a wall along the southern border. Trump’s anti-immigrant policies and rhetoric have also affected an area less discussed by the media, an industry gravely threatened by Trump’s harsh dialogue: the California wine industry.

In 1976, California vineyards rose to international stardom after two Napa Valley wines received top honors at the Judgment of Paris. Since then, the United States now consumes more wine by volume than any other country. California generates $34 billion of the United States’ roughly $60 billion domestic wine sales, with Napa and Sonoma counties producing most of the state’s high-end grapes with their 1,000 plus wineries. In addition, California is the world’s 4th leading wine producer trailing behind France, Italy and Spain.

The agricultural industry in the United States has been on a steady decline since 1950. In the past, farming was considered a family business that employed more than 10 million workers, 77 percent of whom were classified as “family.” As of 2012, 3 million worked on farms, and about half were undocumented. Similar to the rest of California’s agriculture, the wine industry heavily relies on undocumented workers for its labor. According to a federal survey, 9 out of 10 California workers were born abroad, mostly in Mexico, and half are here without citizenship or legal work permits.

USCIS Policy Change

While President Trump is certainly outspoken about his “zero tolerance” policy for illegal immigration, recent policy changes have quietly gone under the radar to make it more difficult for those trying to legally enter the United States. Let me explain:

On July 13, 2018, United States Citizenship and Immigration Services (USCIS) issued a new policy memo that has the potential to drastically alter the government’s decision-making process on most immigration applications by limiting immigration officers discretion. The memo affects two types of notifications commonly sent to applicants for immigration benefits: Request for Evidence (RFE) and Notice of Intent to Deny (NOID).

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Enter a captionGrape pickers in Sonoma County pause in the middle of a busy harvest day. Photo by Mark Murrman.

RFEs are sent when an application is missing a piece of supporting evidence, the wrong evidence is sent, or there is insufficient evidence. NOIDs are sent when an applicant has provided sufficient initial evidence to satisfy the application requirements but, for some other reason, the USCIS officer does not believe that the applicant has established eligibility or that the case should be approved. The rules have always given adjudicators (the USCIS officer reviewing the application) the discretion to decide whether it is appropriate to deny a benefits application outright, or to instead issue an RFE or NOID to give the applicant an opportunity to fix the problem. What has changed is USCIS’ instructions to adjudicators about how to exercise that discretion.

In the past, adjudicators were encouraged to issue an RFE or NOID almost every time there was an issue with an application package, giving applicants a chance to fix any problems. Adjudicators were permitted to deny applications immediately only when there was no possibility that the issue could be cured through additional evidence. The new policy gives adjudicators the authority to deny applications at their discretion without first issuing an RFE or NOID. In other words, this new guidance allows adjudicators to deny any application that contains even the slightest of error.

Why the change?

The change is intended to streamline the USCIS decision-making process, discourage frivolous or incomplete filings, and encourage applicants to be diligent in collecting and submitting required evidence. In the interest of expediency, USCIS officers who used to issue REFs or NOIDs are now urged to decide a case based on the information received, instead of getting back in touch with applicants to request missing information.

However, immigration advocates are worried that this will lead to an increase in the abuse of discretion by individual USCIS officers. Without the routine notices, applicants will no longer have the opportunity to intervene before a decision is made, potentially adding months or years of extra paperwork and thousands of dollars in fees to the already lengthy process. For most immigration applications, the USCIS estimates that it takes anywhere from six months to two years to process applications. However, there is an understanding in the industry that processing times typically take much longer. Longer wait times typically increase costs as well.

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Harvesting of red-grape varieties in Napa Valley, CA. Photo taken by Peter Menzelhttp://www.menzelphoto.com

 

Impact on Wine Industry

The California wine industry needs hundreds of migrant workers to get grapes off the vine and into the wineries come harvest season. President Trump has called for a crackdown on immigrants because they “compete directly against vulnerable American workers.” For those in the wine industry, this claim is laughable. Ironically, President Trump’s son, Eric Trump, applied to bring in dozens of immigrant workers for his Trump Vineyard Estates in Virginia because he couldn’t find Americans to apply for the job.

Grape picking is hard, grueling work and “nobody wants these jobs.” A 2014 American Farm Bureau study shows that unemployed Americans regularly shun farm work, even preferring to stay unemployed. Additionally, 76 percent of people believe undocumented immigrants are as honest and hardworking as U.S. citizens, while 71 percent said they mostly fill jobs that Americans aren’t willing to do.

The new USCIS policy change has the potential to make a bad problem, worse. Most wineries in California are family businesses, many with narrow profit margins. Labor shortages were a concern even before President Trump took office. Since 2007, vineyard owners have seen a decline in net migration from Mexico. Since Trump took office, the messages sent to undocumented workers has been unequivocal. “If you’re in this country illegally, and you committed a crime by entering this country, you should be uncomfortable, you should look over your shoulder, and you need to be worried,” the director of ICE recently said in a Congressional hearing. While most immigrant workers who are without papers take extra precautions so they won’t be picked up by federal authorities, others decide on the ultimate avoidance strategy – going home. Of the motivations for self-deportation, many find the American environment of hostility toward Hispanic immigrants just too stressful.

It’s not just the workers that are panicked. Winemakers are anxious for their businesses. Unlike other kinds of agricultural work, vineyard labor is highly specialized, requiring skills that come with years of experience. Much of vineyard work requires human hands that machines simply cannot perform. For example, “canopy management” is a process where workers remove leaves to allow the sun to ripen the grapes but not so many as to expose the grapes of sunburn. This process calls for the judgment of experienced workers that are becoming increasingly harder to find.

Trump’s immigration crackdown was intended to help U.S. citizens, but for California farmers, it’s only worsening an already desperate labor shortage. Labor shortages remain a constant concern in the wine industry and this new policy change has the potential to only exacerbate the problem. The next time you raise a glass of Napa County cabernet, toast the vineyard workers who made it possible. They are a scarce resource, and President Trump’s immigration policies threaten an already volatile industry.

 

A Victory for Labor Standards Overshadowed by Trumps Immigration Policies

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Asparagus pickers. Photo taken in the valley of Maneadero, south of Ensenada, Baja California.  © Tomas Castelazo,www.tomascastelazo.com / Wikimedia Commons

 

On June 22, 2017, the Ninth Circuit Court of Appeals held that deportation cannot be used as retaliation against undocumented workers who exercise their labor rights. Despite this victory, recent immigration policies discourage undocumented workers from exercising their labor rights.

The last comprehensive immigration reform was passed in 1986. The Immigration Reform and Control Act (IRCA) gave roughly 2.7 million undocumented immigrants legal status. Enactment of IRCA was intended to stop illegal immigration into the United States. However, more than thirty years later the U.S. still faces an immigration issue of an estimated 11 million undocumented immigrants. Part of the failure of IRCA was that Congress did not anticipate the need of immigrant workers by future employers. According to the Migration Policy Institute, demand for undocumented immigrant workers continues to be a factor in undocumented immigration, with 90 percent of unauthorized males employed.

IRCA made it illegal for employers to hire undocumented workers. Since 1986, employers who knowingly hire undocumented workers face sanctions in the form of fines and even criminal penalties. Yet, enforcement of employer sanctions has remained minimal since employers are only required to verify that their workers’ paperwork “reasonably appears on its face to be genuine.”

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Given this background, an undocumented worker, Jose Arnulfo Arias,  began to work as a dairy farm laborer for Angelo Diary in 1995. At the time Mr. Arias was hired, Angelo Dairy did not complete the Form I-9 as required by federal law to verify legal status in the United States. Two years later, Mr. Arias notified Luis Angelo from Angelo Dairy that he was offered employment at another dairy farm. Luis Angelo informed Mr. Arias that “if [Arias] left to work at the other dairy, [Angelo] would report the other dairy to federal immigration authorities as an employer of undocumented workers.” Mr. Arias continued to work for Angelo Diary until 2006, at which point, he filed a lawsuit against Angelo Dairy under the California Unfair Competition Law for workplace violations for failure to provide overtime pay, as well as, rest and meal periods.

Ten weeks prior to the state court trial, Anthony Raimondo, Angelo Dairy’s attorney, established communication with U.S. Immigration and Customs Enforcement (ICE) to initiate the detention of Mr. Arias at a scheduled deposition. Having learned that Raimondo had enlisted ICE, Mr. Arias, settled in lieu of going to trial for fear of being deported and separated from his family. This was not the first time Raimondo had used the threat of ICE. Raimondo had developed a reputation for using such tactics to intimidate and silence workers. While unethical, his tactics were permitted by the California Rules of Professional Conduct. Under rule 5-100, a lawyer, “shall not threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute.” Raimondo claimed that he did not “threaten” to present criminal charges, instead, he simply reported his client’s employees to ICE.

Risking being deported and being separated from his family, Mr. Arias filed a lawsuit in federal district court under the Fair Labor Standards Act (FLSA) against Angelo Dairy, and Raimondo. Under FLSA section 214(a)(3), an employer cannot retaliate against employees for asserting their rights under FLSA. Raimondo argued that since he was not Mr. Arias’ employer he could not be held liable under FLSA. In opposition, Mr. Arias argued that since Raimondo was acting on behalf of his employer, he was liable under FLSA for retaliation against him for filing the original case in state court.

The Ninth Circuit Court of Appeals reasoned that while the wage and hour provision of FLSA refers to an employer, the anti-retaliation provision relates to “any person” who retaliates. Further, Congress’ intent of FLSA section 215(a)(3) reached beyond actual employers. Ultimately, the court reversed the district court’s dismissal of Mr. Arias’ claims. The court held that section 215(a)(3) applied to Raimondo’s activities, and as such, Mr. Arias should be allowed to proceed against Raimondo for retaliation under FLSA section 215(a)(3).

Raimondo and his attorneys filed a petition for writ of certiorari to the U.S. Supreme Court, but it was denied in January 8, 2018. The Arias decision provides a strong protection to undocumented workers who are some of the most vulnerable to labor standards abuse. Nevertheless, the effects of this decision are practically negated by Trump’s approach towards immigration.

Looking back to Trump’s 2016 campaign, it was characterized by xenophobic rhetoric against immigrants. One of Trump’s main target was, and is, undocumented Mexicans. He claimed undocumented Mexicans were violent criminals, terrorists and rapists. Contrary to his rhetoric, multiple studies indicate that undocumented immigrants have a lower crime and incarceration rate than native born Americans. Once President Trump took office, he began to use his Executive Power to implement his anti-immigrant stance.

On January 25, 2017, Trump signed Executive Order “Enhancing Public Safety in the Interior of the United States” which forbids sanctuary cities from receiving federal funds and prioritizes deportation of criminal undocumented immigrants. In application, undocumented immigrants who have committed minor offenses, such as, jaywalking or who misrepresented their status to obtain work, are considered criminals and subject to deportation. Under the previous Obama administration, deportation was a priority only for those who were convicted of a serious crime such as a felony or multiple misdemeanors. Trump has rigorously implemented his policy to deport millions of undocumented immigrants. ICE sweeps that include courthouses sweeps have paralyzed the immigrant community with fear.    

Trump’s harsh anti-immigrant policies and rhetoric has had significant effects on the behavior of undocumented immigrants. Out of fear, many immigrants try to stay “under the radar” so they refrain from reporting workplace violations. The U.S. Department of Labor (DOL) reports that undocumented workers are refusing to cooperate with them due to fear of deportation. The DOL is responsible for assuring work-related benefits and rights for all workers regardless of legal status. Under a “memorandum of understanding” (MOU), the Department of Homeland Security and Immigration and Customs Enforcement (ICE) agree not to engage in immigration enforcement while DOL is conducting their own worksite investigations, unless it is a matter of national security, protection of critical infrastructure, involves a federal crime or the enforcement activity is directed by the Secretary of Homeland Security.

Still, the MOU is of small to no comfort for undocumented workers who fear that enforcing their labor rights will result in deportation. While the DOL claims that undocumented workers will not risk deportation if they report wage and hour violations or other workplace violations, under the current administration they cannot guarantee that they will not be deported once they show up at the courthouse to enforce their labor rights. As evidently, under the Trump administration, ICE has apprehended undocumented immigrants at or near courthouses.

A community paralyzed by fear, consequently will not be as willing to stand up for themselves or others when it comes to labor injustices, crimes committed against them, and so forth. Undocumented immigrants, such as Arias, who Judge Trott characterized by quoting Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, as “not . . . dealing with mere chattels or articles of trade but with the rights of those who toil, of those who sacrifice a full measure of their freedom and talents to the use and profit of others” are more willing to endure unsafe working conditions, wage and labor violations rather than risk being deported and separated from their families. The reality is that while attorneys like Raimondo can no longer use the threat of deportation as retaliation against undocumented workers, Trump’s immigration policy will discourage undocumented workers from exercising their labor rights.  

Restoring the Establishment Clause to the states; Restoring Religious tolerance

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In recent years, the Supreme Court has recognized the downturn of consistent and reliable Establishment Clause jurisprudence. The inconsistency of opinions and the often hostile outcomes have left the Establishment Clause in “shambles”. Justices have commented that there is no other area of law in more desperate need of repair than the Establishment Clause. One reason posited for the current state of confusion is that the Establishment Clause was never intended to be incorporated. Because of this, even the Supreme Court cannot agree on a single test or even consistently apply the many tests it currently employs.

Before 1947 when the Establishment Clause was incorporated, none of the very few Establishment Clause cases decided constituted a constitutional violation. However, all things changed in Establishment Clause jurisprudence when the court announced in Everson v. Board of Education that the Establishment Clause had been incorporated against the states under the Fourteenth Amendment. Everson is devoid of any analysis justifying the incorporation of the Establishment Clause but states that because the Free Exercise Clause had already been incorporated in Cantwell v. Connecticut, “there is every reason to give the same application and broad interpretation to the establishment of religion clause.”

The difference between the Free Exercise Clause and the Establishment Clause is that the Free exercise Clause protects individuals against congressional interference with the exercise of their religion. Because this clause protects an individual right, it can be incorporated under the liberty provision of the Fourteenth Amendment.  The Establishment Clause on the other hand does not purport to protect individual rights, but puts a structural limit upon federal power and reserves authority to the states.

The Establishment Clause states “ Congress shall make no law respecting an establishment of religion.” On one level, the entire Bill of Rights was adopted to assuage the fear of centralized power in a national government and none of its provisions originally applied to the states. Upon closer analysis, structural differences between the various rights may be discerned. Although most of its provisions are meant to protect individual rights, such as the right to free speech, the Establishment Clause does not. The framers intended the Establishment Clause to embody a principle of federalism, that is, to prevent Congress from interfering with church-state relations and allowing states to preserve their sovereignty with respect to religion.

The Establishment Clause is a structural limitation, akin to the powers of Congress to regulate interstate commerce and to declare war. Structural limitations do not create a fundamental liberty interest but rather protects state power against the federal government by defining and limiting the powers of the federal government. Structural limitations defy incorporation and when incorporated achieve the opposite result- the elimination of such state authority. Incorporating the Establishment Clause is therefore analogous to trying to incorporate the Tenth Amendment. The Tenth Amendment reaffirms that the states possess all power not delegated to the federal government. Incorporation alters the meaning and would require that the states be stripped of all powers not specifically delegated to them, thereby inverting the Amendment’s purpose. As outrageous as this outcome would be, the same shocking result has occurred by the incorporation of the Establishment Clause. Over seventy years of inconsistent and confused Supreme Court decisions have demonstrated just how problematic the outcome really is.

After the decision to incorporate in 1947, states were stripped of their power to recognize religion as a part of public culture and make determinations about religion based on local values and desires. Symbols that have been woven into our history and culture have, in recent years, been deemed by the court to be violative of the Establishment Clause. For example, two Kentucky counties were prohibited from displaying the Ten Commandments in their courthouses as part of their “Foundations of American Law and Government Display.” In addition to the Ten Commandments, the display contained eight other documents that played a significant role in the foundation of our system of law and government. This case illustrates precisely how incorporation has robbed the states of their autonomy and how hostility toward religion has seeped into Establishment Clause jurisprudence, further separating our people from their history.

Another reason the incorporation of the Establishment Clause is improper is because the expansion of liberty that is triggered through the incorporation of other amendments is not similarly triggered with the incorporation of the Establishment Clause. Speaking of incorporation generally, Justice Clarence Thomas said, “[w]hen rights are incorporated against the States through the Fourteenth Amendment they should advance, not constrain, the individual liberty.” Incorporation of the Establishment Clause has restrained religious liberty by taking away a right from the people, who reserved that power unto themselves, or to their state governments, and giving it to the federal government. From the Nation’s founding until 1947, states had the power to respect the needs and traditions of its citizens, allowing accommodation but never coercion of religion. Today, accommodation, acknowledgment and promotion of religion are stifled by the three-prong test outlined in Lemon v. Kurtzman, or in the not so rare occasions when Lemon is not followed, to the inclinations of the majority.

Understanding the Establishment Clause as a federalism provision accords with the range of church-state arrangements that existed at the time of the formation of the Bill of Rights. At least six states had established churches including Massachusetts, Connecticut, and New Hampshire. In the South, states such as Maryland, South Carolina, and Georgia permitted taxation in support of all Christian churches. Other states that had no history of formal religious establishments at all, maintained religious tests for office. In 1833, Massachusetts was the last state to disestablish. This decision, and all previous decisions to establish or disestablish religion, were reserved to the states.

Although the Founders were men of different religious backgrounds, they were virtually unanimous in their belief that the republic could not survive without religion’s moral influence. In Washington’s farewell address, he counseled the people for the last time, writing “of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports.” The separation of religion from the public square has greater implications than just the displeasure of citizens who treasure religious history. We are warned by those who wrote the Constitution that if later generations did not value and safeguard religion, the free republic, as we know it, would crumble.

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By reviewing the textual and historical facts concerning the creation of the Establishment Clause, it is not difficult to arrive at the conclusion that it was the founder’s intent to limit the federal government and give power to the states when it came to religious matters. Even for those who understand this, it is difficult to conceive of the United States as a place which allows individual states to establish a state religion. It is important to remember that at the time the Establishment Clause was incorporated in Everson, there were no established religions and there had not been for over one hundred years. Each state that at one time had an established religion, voluntarily disestablished in the early nineteenth century. Therefore, there is no reason to believe that the fifty states would rush to adopt religious establishments.  

The abandonment of Everson  would return the power to the states to determine government involvement with religion. Returning this power will not only secure religious liberty, but will allow it to flourish as citizens of each state voice their desires with local and state leaders. Currently there are states that have already written into their constitution a clause that prohibits an establishment of religion. Other states may do the same and each will be free to set the limits of their involvement.

The Free Exercise Clause will continue to be a potent defense of religious liberty as it restricts state and local government from compelling citizens to attend or worship in church services. It also forbids the punishment or penalization of individuals because of their religious beliefs. The Free Exercise Clause would continue to allow any citizen to opt out of any state-sponsored activities such as a prayer at a school graduation or viewing a creche at Christmastime but at the same time, allow those who want to participate to do so.

Even if the Supreme Court could find a fair and consistent test, the states would still be without the powers given them by the founding fathers. Government involvement with religion would continue to be evaluated on a federal level and likely with the same confusion and inconsistency as we see today. Just as with our Founders, religion’s importance and influence continues to be a defining characteristic of the citizens of the United States. We deserve to not only be free from punishment and restraint when practicing our religion, but more, we should be free to join with our government in acknowledging and giving thanks to God for the great blessing which is this Nation.

The California Consumer Privacy Act of 2018: Are your interests at stake?

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In 2018, news reports condemning Facebook’s privacy policies, Cambridge Analytica’s data management, and the effects of Cambridge Analytica’s misdeeds on the 2016 United States Presidential election swept the nightly headlines.

In response to growing privacy concerns throughout the nation, Alastair Mactaggart, a prominent real estate attorney in the Bay Area, invested over $3 million to place a consumer-focused privacy initiative on the November ballot for voters in California. Eventually, Mactaggart agreed to withdraw the initiative from the ballot and, in exchange, California lawmakers adopted the California Consumer Privacy Act of 2018 (CCPA).

The CCPA declares the state of California to be “one of the world’s leader in the development of new technologies” and acknowledges that, given the current state of affairs, “[p]eople desire privacy and more control over their information.” Interestingly, the legislature specifically cites the March 2018 incident in which “tens of millions of people had their personal data misused by a data mining firm called Cambridge Analytica.” However, mention of Cambridge Analytica’s dealing partner, Facebook, is nowhere to be found in the text of the act. The legislature goes on to state that the legislative purpose behind the act is to “give consumers an effective way to control their personal information” in a series of rights assigned by the CCPA.

Although the CCPA was adopted in June of 2018, it does not go into effect until January 1, 2020. The eighteen-month delay in the CCPA’s operative function allots time for potential changes in the bill’s text or federal law pre-emption. Despite potential legislative changes to the act, several CCPA-oriented compliance guides and articles have already surfaced on the web. For example, Lothar Determann, partner of Baker & McKenzie and renowned privacy law author, urges businesses to take immediate action regarding CCPA compliance. Also, Software Development Times suggests that CCPA compliance will start with a business’s IT department. At the core of all CCPA compliance guides lies one universal truth: tell people what the CCPA means to them.  

Before all California businesses scramble to develop new, compliant infrastructure and enthusiastic California consumers fill the streets with compliance celebrations, it is important to analyze the text of the CCPA to determine whose interests are really at stake.  

PARTIES AFFECTED BY THE CCPA

In true legislative fashion, several of the key terms of the CCPA do not carry their colloquial meaning. At first glance, it would be reasonable to assume that the CCPA protects a consumer, or “one that utilizes economic goods,” in California. Deceptively, the CCPA defines a “consumer” through a lens of residency theory under California Code of Regulations, Title 18 § 17014. In order to enjoy the benefits of the CCPA, the consumer must be a natural person in the State of California for a purpose that is neither temporary nor transitory, even if the individual is out of state for a temporary or transitory purpose. In practice, the consumer-facing benefits derived from the CCPA will protect a California resident, even while the California resident vacations in Hawaii.

In the same vein, the CCPA seeks to regulate business activities. Again, the legislature places a few not-so-instinctive modifiers on the term “business” for the purposes of the CCPA, which raise an important contrast between how the CCPA defines “consumers” and “businesses.” Although the CCPA’s consumer is defined based on a theory of residency, all businesses that qualify under the definition of the CCPA—regardless of the business’s actual, physical location—must comply with the CCPA.

To determine if a business is considered a “business” in the eyes of the CCPA, two initial questions must be raised: (1) Does the business collect personal information? and (2) Is business conducted in the state of California? If the answer to those two questions is yes and yes, the analysis must continue down a murky path. If a business generates $25 million annual gross revenues, the business is subject to the CCPA. However, as the text of the act reads today, it is unclear if the threshold is based on revenues generated from business in California or global sales in totality. Ideally, the text of the act will be revised for clarity before this ambiguity makes its first appearance in case law. Even if the business does not generate $25 million in revenue, the business must comply with the CCPA if the business has the personal information of 50,000 consumers, household, or devices. As Lothar Determann points out, small business located outside of California can easily and unintentionally capture the IP addresses of 50,000 Californians. Even if the business does not generate $25 million in revenue or collect the personal information of 50,000 Californian consumers, the business is still subject to the CCPA if the business derives more than 50 percent of its profit from selling California consumers personal information.

RESPONSIBILITIES AND RIGHTS UNDER THE CCPA

The CCPA charges businesses with several new responsibilities when handling personal information to give new rights to the consumer.

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Most notably, the CCPA requires businesses to allow consumers to opt out of the sale of personal information in a series of methodical steps. First, the business must have a link that reads, “Do Not Sell My Personal Information” on the website homepage, in the privacy policy, and accompanying any mention of consumer privacy rights. However, if the business has actual knowledge that the consumer is under 16 years of age, the business must obtain consent from a child between 13 and 16 years old to collect personal information. If the child is less than 13 years old, parental consent is required to obtain personal information about the child. Considering that more than half of 11 to 16 year olds visit Facebook, YouTube, and Snapchat at least once a week, the CCPA is likely to change the landscape of social media.

Also, under the CCPA, the consumer has the right to request, by phone, that a business disclose: the types of information collected about the consumer, the purposes for collecting such information, and the type of third parties that receive information about the consumer. The business must provide a free disclosure of such information—that is in a “readily usable format”—within 45 days of the request. However, this is a restricted right; a business is only required to disclose such information to the consumer two times in a twelve month period. To fulfill disclosure requests, businesses will have to create inventories of all personal information of California residents and fund new systems that manage such requests. Eric Goldman, a professor of law at Santa Clara University School of Law, notes that the costs incurred by a business’s compliance with CCPA will undoubtedly be passed along to consumers.

Minus a few exceptions, the consumer is granted the right to be forgotten: the consumer may request that the business delete the personal information which the business has collected from the consumer. However, as Tonya Forsheit, partner of Frankfurt Kurnit Klein & Selz P.C. and one of the top 20 cyber attorneys in California, points out, the right to be forgotten only applies to personal data that the business has collected from the consumer. The right to be forgotten does not apply to data that the business has obtained from other sources than the consumer. Whether this distinction between data collected from the consumer and data collected by another means was intentional or accidental, legislative clarification is needed to provide guidance to businesses and consumers alike.  

FUTURE DIRECTIONS

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Before the CCPA is implemented in January of 2020, it is important to determine if your rights as a consumer, based on your residency, or the interests of your business, based on the revenue and data collection practices, are at stake. Although preparing for the effects of the CCPA may seem like a sound investment of time and energy, be wary; the text of the CCPA is subject to change.

It is mutually agreed, from both consumer advocates and business analysts, that the CCPA in its current state is unsatisfactory. For example, Justin Brookman, director of privacy and technology policy for the Consumer’s Union, considers the CCPA to be “modest” in regard to consumers rights and should be expanded. Brookman predicts that companies throughout the nation will adopt the standards of the CCPA for practical concerns. Contrastingly, Robert Callahan, Vice President of State Government Affairs for the Internet Association, criticizes the CCPA and claims it was written by a consumer privacy advocate without proper public vetting. Callahan argues that the CCPA and its imposition of fines for violation is a major threat to those who wish to do business in California.

California residents and those who do business in California are advised to stay abreast of the California Consumer Privacy Act, as there may be major textual revisions – or Federal pre-emption – before the act goes into effect on January 1, 2020.

THE DEBATE OVER BEARS EARS NATIONAL MONUMENT

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After my first year of law school, my wife and I went on a road trip through parts of Utah and Arizona. We visited Zion National Park, and my time there reinvigorated me and reminded me that life exists beyond law school.

While I was discovering the beauty of our Nation’s protected lands, President Trump was reconsidering the existence of another, Bears Ears National Monument. I was unaware at the time, but two weeks before my trip, on April 26, 2017, President Trump issued an Executive Order (E/O) that called for a review of national monument designations made after 1996, which were over 100,000 acres in size. The Secretary of the Interior, Ryan Zinke, reviewed President Obama’s E/O that established Bears Ears National Monument and found the national monument to be too large. Trump subsequently signed an E/O that decreased the total size of Bears Ears National Monument by 80%

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Photo by Emilie Johnson

The Antiquities Act

The Antiquities Act of 1906, gives the President the power to designate historically or scientifically significant land, owned or controlled by the federal government, as a national monument. The designation must be kept to the “smallest area compatible with proper care and management” of the federal land upon which they are located. The Antiquities Act was designed in response to an urgent need to protect the Nation’s historic landmarks and objects of scientific importance. On September 24, 1999, Congress amended the Antiquities Act; the President is now required to seek feedback from government officials and citizens who reside in the state where the monument designation would be located, before moving forward with the designation.

While no phrase in the Antiquities Act allows the President to decrease or rescind a previous national monument designation, it has still been done. President Wilson decreased the size of Mount Olympus in 1915, citing a need for timber during World War I. President Wilson’s E/O was never reviewed by the courts, and Congress later restored the monument to its original size. In 1962, President Kennedy relied on the powers granted to him by the Antiquities Act, when he reduced the total size of the Natural Bridges Monument after it was determined that parts of the site had no archaeological value.

Now, Trump is arguing that Obama’s E/O did not comply with the Antiquities Act. While it is possible that Obama’s E/O did not comply with the language of the Antiquities Act, the appropriate remedy would be a preliminary review by the Secretary of the Interior, an injunction by the Supreme Court, or legislative action that increases or restricts presidential power to modify national monuments. Simply put, there is no provision in the Antiquities Act that says a President can use his or her authority to revise or rescind a prior President’s national monument designation. Obama’s E/O detailed why the total acreage of Bears Ears National Monument is necessary to protect the scientific and historical significance of the area. Obama’s E/O considered numerous factors and welcomed public feedback during the drafting process; now, only a year removed from when Obama signed his E/O, do Trump’s findings really justify an 80% decrease of the monument’s total acreage?

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Photo by Emilie Johnson

A Tale of Two Executive Orders and the Bears Ears National Monument Designation.

On December 28, 2016, President Obama signed an E/O that established the Bears Ears National Monument, located in South-Eastern Utah. Before the boundaries of the monument were established, Obama considered “the uniqueness and nature of the objects, the nature of the needed protection, and [the] protection provided by other laws.” President Obama asserted that the new 1.35-million-acre monument was confined to the smallest area compatible with the proper care and management of the objects to be protected.

In keeping with the 1999 amendment to the Antiquities Act, President Obama welcomed the input and involvement of local: government officials, Native American tribes and recreational users in the construction and management of the Bears Ears National Monument. Obama created a commission that would provide guidance and recommendations for how the monument should be managed. The commission was comprised of one officer from each of the Hopi Nation, Navajo Nation, Ute Mountain Ute Tribe, Ute Indian Tribe of the Uintah Ouray, and Zuni Tribe; each tribe would elect its officer. The Secretary of the Interior and the Secretary of Agriculture were directed to work closely with the commission to manage the land. Obama’s E/O was met with mixed reviews; environmentalist groups and local Native American tribes applauded the President’s action, but Republican politicians and conservative groups in Utah chastised the President’s action.

While campaigning in 2016, President Trump promised crowds in Utah that once elected he would modify the size of Bears Ears National Monument. Once Trump took office, the Utah state legislature looked to hold Trump to his campaign promises and passed H.C.R. 11; a bill that directly asked the President to rescind Obama’s E/O that established Bears Ears National Monument. Trump did not immediately rescind the designation; instead, he signed E/O 13792, which called for the Secretary of the Interior to review specific national monument sites, including Bears Ears. After the review, Zinke determined that “rather than designating an area encompassing almost 1.5 million acres . . . it would have been more appropriate to identify and separate the areas that have significant objects to be protected.”  Zinke also concluded that some of the areas were better suited for a different type of federal protection, and some of the sites were already adequately protected by federal statutes. Zinke recommended that the current boundary lines of the Bears Ears National Monument be modified in order to meet the requirements of the Antiquities Act. Zinke also suggested that Congress should pass legislation that would require the input of local Native American tribes to be considered.

On December 4, 2017, less than a year after President Obama signed the E/O that established Bears Ears National Monument, President Trump signed an E/O that shrunk its size by 1,150,860 acres. In a speech accompanying the signing of the E/O, President Trump announced that he was “putting the states back in charge,” adding that “the previous administration [had] bypassed the states to place over 265 million acres [of] . . . land and water under federal control through the abuse of the monuments designation.” President Trump, through his own proclamation, modified the monument to better fit within the guidelines of the Antiquities Act, and removed some of the monuments protected areas because they were already “adequately protected by existing law.”

Three days after Trump signed the E/O, nine-conservationist groups filed a joint lawsuit that challenged the constitutionality of Trump’s action. In the complaint, the plaintiffs alleged that the President exceeded the scope of his authority under the Antiquities Act. The lawsuit is still pending but given the lack of judicial involvement in E/O historically, the outcome is nearly impossible to determine based on the previous precedent.

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Photo by Emilie Johnson

What Can be Done Going Forward?

Since President Trump reduced the size of Bears Ears National Monument there have been several bills proposed in the Senate. The proposed bills have been aimed at establishing lasting protections for Bears Ears. Most recently, in January 2018, proposed bill S. 2354 was put before the Senate for a vote. The proposed bill would establish that “national monuments may only be reduced, diminished or revoked by an Act of Congress,” and would establish a National Treasury fund to ensure the proper upkeep of national monuments in the future. The proposed bill would also restore the boundaries of the monument back to the original acreage laid out in Obama’s unrevised E/O, approximately 1,931,997 acres. Other proposed legislation has sought to expand the total acreage of Bears Ears National Monument site or to establish it as the first-ever “tribally managed national monument.”

Unfortunately, there has been little progress in getting any of the proposed legislation passed. Congress seems unwilling to implement any legislation that would supersede or contradict Trump’s E/O. But going forward, Congress should try to pass legislation that would establish long-lasting protections for the Bears Ears National Monument, in a manner that cannot be modified by a subsequent E/O. A bipartisan committee should be established to weigh all the public input, and any legislative action should consider the importance of the land for all interested parties.

 

SECOND AMENDMENT CHALLENGES: WHAT LEVEL OF CONSTITUTIONAL SCRUTINY APPLIES?

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Las Vegas, Parkland, Santa Fe, these three places and many more bring up a variety of emotions in people because of the tragic mass shooting events that have occurred over the last year. Lately it seems every other day we get a notification of something gun related. Whether it’s news of another fatal shooting spree or a new law being passed, guns and people’s rights under the Second Amendment are being talked about on a near daily basis. Additionally, incidences of gun violence increase and guns negatively affect more people every year. Proponents of the Second Amendment stand firm in their belief that there should be little to no restrictions on a person’s ability to obtain and maintain ownership of a gun. Others believe there should be some limitations on the right to “keep and bear arms.” In District of Columbia v. Heller, the Supreme Court upheld a person’s individual right to bear arms for lawful purposes. In Heller, the Court also refused to apply rational basis review to challenges of laws that impact a person’s enumerated rights such as the guarantee against double jeopardy, right to counsel and right to bear arms.

The question still remains as to what level of constitutional scrutiny is appropriate when a person’s right to sell, rather than bear, arms is limited. This question was most recently addressed in Teixeira v. County of Alameda. In Teixeira, an Alameda County ordinance required any business selling firearms to be at least five-hundred feet from: schools, day cares, any business selling liquor, other gun stores, and residential districts. Petitioners, John Teixeria, Steve Nobriga, and Gary Gamaza (collectively “Teixeira” or “Petitioners”) sought to open a firearms store that was four-hundred fifty feet from the nearest residential property. Petitioners challenged the county zoning ordinance as a violation of their Second Amendment rights. Teixeira was ultimately granted a variance from the Alameda County zoning ordinance and his application for a Conditional Use Permit for his firearms store was approved. In granting Teixeira’s application, the Zoning Board concluded that a gun shop at the proposed location would not be detrimental to the public welfare and warranted a variance in light of the physical buffer created by a major highway between the proposed site and the nearest residential district. The Zoning Board also determined that there was a public need for a licensed firearms retailer in the neighborhood.

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Unfortunately, after the board granted Teixeira his permit, the San Lorenzo Village Homes Association challenged the ruling and the county revoked Teixeira’s permit. Petitioners were unable to find another suitable property in the County of Alameda and could not open their full-service firearms store. Teixeira challenged the board’s revocation in federal court claiming violations of “due process, equal protection and Second Amendment” rights of him and “his prospective customers.” A motion to dismiss for failure to state a claim was granted in favor of Alameda County without prejudice on the original complaint; and again denied but with prejudice on the amended complaint.

The Ninth Circuit issued a three-judge panel opinion affirming the dismissal of the equal protection claim, but reversed the Second Amendment claim dismissal. On review en banc, the Ninth Circuit upheld the District Court’s dismissal of all claims. In its opinion the Ninth Circuit ultimately held that Teixiera’s Second Amendment rights were not infringed. Further, the Ninth Circuit held, among other things, that the Second Amendment does not protect a person’s right to sell guns. In coming to this conclusion, the Ninth Circuit relied on the two-step approach in U.S. v Chovan. Under this two-step approach, the court must ask “’whether the challenged law burdens conduct protected by the Second Amendment,’ and if so, we then determine the ‘appropriate level of scrutiny.’” Here, the Ninth Circuit concluded that the Second Amendment “does not independently protect a proprietor’s right to sell firearms” and therefore by concluding the ordinance did not burden a protected Second Amendment right, the court avoided determining which level of scrutiny applied in this case. Circuit Judge Tallman generally concurred in the majority opinion, but faulted the majority in his dissent for “dismiss[ing] the constitutional challenge as applied to Teixeira.” Similarly, Circuit Judge Bea dissented from the majority in all respects, including their “short-circuit” analysis of the constitutional challenge. Both Tallman and Bea’s dissents highlight that the Second Amendment challenge brought by Teixeira is at the very least subject to rebuttal and should not have been simply dismissed outright. The two dissenting judges fault the majority because the majority avoided Teixeira’s constitutional claim by stating the Second Amendment does not protect a party’s right to sell arms, only a right to keep and bear arms and thus avoiding whether or not the ordinance’s constitutionality is subject to heightened constitutional scrutiny.

The Supreme Court has not explicitly stated which level of constitutional scrutiny applies to Second Amendment challenges. On January 8, 2018, after the Ninth Circuit denied Teixeira’s claim, Teixeira filed a Petition for Certiorari. Teixeira argued in his petition that despite Heller’s clear ruling that rational basis should not apply in cases regarding the Second Amendment, there are at least two circuits that are still ready and willing to employ rational basis analysis: the Second and Ninth Circuits. Under the Second and Ninth Circuits’ reasoning, rational basis review is appropriate as long as the law being challenged does not “substantially burden” Second Amendment rights. The remaining Circuits, Teixeira argues, have all accepted that Second Amendment challenges are subject to some form of “heightened” scrutiny, although the Circuits do not all agree on what level of heightened scrutiny applies. The Circuits are also conflicted on whether the level of heightened scrutiny should depend on the nature of the Second Amendment challenge. This split among the circuits necessitates a clear ruling by the Supreme Court so the circuits have better guidance on how to approach Second Amendment challenges. Unfortunately, better guidance for Second Amendment challenges will not be given through Teixeira. The Supreme Court denied Teixeira’s petition on May 14, 2018.

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What level of scrutiny applies is important in Second Amendment challenges, especially in light of the increase in gun violence. If the Court were to decide rational basis is the appropriate level of scrutiny, then virtually all laws passed would be upheld because rational basis is such a low standard to meet. This would allow less access to guns across the board because laws limiting the rights of people to sell firearms would likely be upheld. Further, if the Court decided that a heightened level of scrutiny such as intermediate or strict scrutiny applies, then laws would be struck down more often and individual’s access to firearms would increase.

Whether or not the Supreme Court agrees that Second Amendment challenges outside the scope of merely bearing arms are subject to rational basis review, intermediate scrutiny or some other form of heightened scrutiny is something we will have to wait for. Since the Supreme Court denied certiorari in Teixeira, we will have to wait to get a clear decision from the Supreme Court on what level of scrutiny the circuits should apply to Second Amendment challenges. Due to the recent increase in gun violence throughout the country, state and local governments, as well as many individuals and groups, are all trying to determine what measures can be taken to protect the lives of innocent people from the mass shooting tragedies that have affected far too many families. If the Supreme Court does not establish a better precedent for courts to use going forward, courts of all levels will be bogged down with cases involving the Second Amendment. With this seemingly imminent and without a clear precedent, each court will rule in its own manner, and in turn will lead to more cases attempting to get on the Supreme Court docket for clarification. In any event, there is so much conflicting case law throughout the circuit courts that it would likely benefit everyone if the Supreme Court were to set, once and for all, a clearer standard to follow when it comes to Second Amendment challenges. The next time a case challenging the Second Amendment arises the Supreme Court should use that opportunity to set a clear precedent for Second Amendment challenges going forward.