Wednesday, April 19, 2017

Loyola Immigrant Justice Clinic Co-Director Testifies before State Assembly Committee

On Tuesday, April 18, 2017, Loyola Immigrant Justice Clinic Co-Director Marissa Montes '12 testified before a California State Assembly committee about the use of gang databases in the state.

Good Morning. My name is Marissa Montes and I am the Co-Director of Loyola Law School’s Immigrant Justice Clinic, which provides free immigration legal services to the community of Boyle Heights and East Los Angeles. Through our work, we have integrated ourselves into the community, and have witnessed firsthand how over-policing, and the mislabeling of gang membership can severely impact an individual’s ability to gain legal immigration status.

For this reason, I am here to testify in support of AB 90, which would address the accuracy and fairness of CalGang and other shared gang databases. This bill not only addresses the concerns highlighted in the California State Auditor’s findings, but would also add safeguards to limit the misuse of information that unfairly targets immigrant and low income communities.

First, AB 90 would place a moratorium on the use of Calgang until the state audit concerns are addressed. The audit found that children younger than one year of age were entered and labeled as gang members, demonstrating either that individuals were being categorized by law enforcement based on family and community ties, or that the data entered was horribly inaccurate. This misinformation proves to be detrimental, as it was for our client, Mathias, a stellar community college student, who in the course of his green card interview was accused of gang involvement due to his older brother. Mathias, who only had one misdemeanor conviction for a non-gang related offense, had never been involved or gang affiliated. US Citizenship and Immigration Services had no access to any evidence regarding gang affiliation, except for inaccurate information collected through CalGang. Mathias’ case remains ongoing, but is an example of one of many young adults in his community who are similarly stigmatized as gang-affiliated.

Tuesday, April 18, 2017

Pitches Procedures Are Too Restrictive to Meet Brady Rule

By Professor Sean Kennedy
Kaplan & Feldman executive director of the Center for Juvenile Law and Policy

This op-ed originally appeared in the Los Angeles Daily Journal.

There is an ongoing court battle between Los Angeles County Sheriff Jim McDonnell and the Association of Los Angeles Deputy Sheriffs (ALADS), the union that represents line officers, about what to do with findings of misconduct in a police personnel file. The case, which will significantly impact criminal justice in Los Angeles, is set for argument before the California Court of Appeal on May 1.

The dispute relates to how to implement the landmark 1963 case Brady v. Maryland, in which the U. S. Supreme Court held that prosecutors violate due process if they fail to disclose exculpatory evidence to the defense. “Exculpatory” includes information that impeaches the credibility of prosecution witnesses, including witnesses who are sworn law enforcement officers. Later, the court in Kyles v. Whitley held that because the police are part of the “prosecution team,” police suppression of exculpatory evidence also violates Brady, even if the prosecutor was unaware of the evidence.

Sheriff McDonnell compiled a list of 300 deputy sheriffs whose personnel files reflect discipline for serious misconduct, such as accepting bribes, tampering with evidence, lying, falsifying records or obstructing an investigation. He tried to give this “Brady list” to District Attorney Jackie Lacey so that prosecutors who relied on the disciplined officers to make their cases would be aware of the impeachment evidence and disclose the names of the officers to the defense.

Friday, April 7, 2017

Gorsuch Should Look Forward, Not Behind

By Professor Allan Ides

This op-ed originally appeared in the Los Angeles Daily Journal.

Judge Neil Gorsuch, President Donald J. Trump’s nominee to the U.S. Supreme Court, has described his method of constitutional interpretation as one in which he tries “to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be — not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.” As such, Gorsuch’s constitutional philosophy is akin to the originalism endorsed by Justices Antonin Scalia and Clarence Thomas. It pegs our future on the past and it draws a bright line between those judges who adhere to the law — originalists — and those who impose their will on it — presumably everyone else.

On its surface, original understanding may seem to offer an attractive and principled approach to judicial interpretation of the Constitution. Under that approach, the judge operates as a neutral umpire who enforces the values established in 1789 or those found in subsequent constitutional amendments. It offers the hope of constitutional stability and leaves to democracy the responsibility of adjusting the Constitution to modern realities. But this vision is belied by the reality of how judges and justices actually interpret the law and resolve disputes. It is also premised on a highly unrealistic impression of how the American democracy works.

Virtually all judges are originalists when it comes to an unambiguous constitutional text. No sensible judge would struggle with the meaning of Article II’s requirement that limits the presidential office to a person who has “attained to the age of 35 years.” But most of the contested provisions of the Constitution are stated in open-textured, sweeping terms. Some obvious examples include “the free exercise” of religion, “the freedom of speech, or of the press,” and the guarantees of “due process.” Those phrases may sound relatively definite, but they aren’t. Even originalists disagree among themselves over their respective meanings. Other open-textured phrases define the powers of Congress, the presidency, and the judiciary; and still others limit the powers of the states with broadly worded terms such as “privileges or immunities” and “equal protection of the laws.” The question is whether originalism can provide a sustainable and sensible path to the correct understanding of such contestable provisions. I have my doubts.

Tuesday, March 7, 2017

Religious Organizations, Refuge for Undocumented Immigrants, and Tax Exemption

By Professor Ellen P. Aprill

This op-ed originally appeared in the Los Angeles Daily Journal.

For many houses of worship, the Biblical injunction, “You should not wrong a stranger or oppress him, for you were strangers in the land of Egypt” (Exodus 22:21, JPS), constitutes an important religious doctrine. The Trump administration has announced plans for aggressive enforcement of immigration laws, plans that are expected to expand massively the number of people detained and deported. This new policy has forced many houses of worship and other religious organizations to consider whether their beliefs call upon them to grant refuge or so-called sanctuary to undocumented immigrants.

Under long-standing immigration laws, harboring undocumented immigrants carries the potential for both fines and imprisonment. An organization can lose its exempt status if its purpose is illegal. Moreover, illegal activity is deemed not to further an exempt purpose, and an organization can also lose its exempt status if a substantial part of its activities are not in furtherance of its exempt purpose. Houses of worship and religious organizations face some risk, at least in theory, of losing exemption for such activity. As a practical matter, loss of exemption is unlikely, but the organization needs to document the religious basis for its actions and the criteria it will use.

One piece of official IRS guidance offers important guidance. It involved an organization formed to educate the public on the principles of pacifism and nonviolent action, including civil disobedience. This 1975 “Revenue Ruling” explains that no Section 501(c)(3) organization can have an illegal purpose. The ruling’s analysis, however, emphasized the group’s primary activities of undertaking protest demonstrations and other nonviolent actions, including deliberately blocking traffic, disrupting the work of government, and preventing the movement of supplies, all breaches of the peace in violation of local ordinances. The ruling concluded that the organization’s activities “demonstrate an illegal purpose which is inconsistent with charitable ends.” The Tax Court in Church of Scientology of California v. Commissioner similarly concluded that pervasive illegal activities, including a number of felony convictions, constituted an illegal purpose and that the organization’s claimed status as a church did not protect it from application of the illegality doctrine.

Wednesday, February 22, 2017

The Fairness in Class Actions Litigation Act of 2017 (H.R. 985): A Few Thoughts


By Professor Simona Grossi

The Fairness in Class Actions Litigation Act of 2017 (H.R. 985) is currently pending in Congress. The bill, purportedly intended to reform class actions and bring “fairness” to the process, implicitly reveals, and not that covertly, the proponents’ disapproval of the work that the Advisory Committee has been doing on Fed. R. Civ. P. 23 for the past five years. Apparently the Advisory Committee is not moving fast enough or in the preferred direction. Of course,  Congress has the constitutional authority to provide rules of procedure for  Federal courts, but the system devised under the Rules Enabling Act (REA) has the benefit of proceeding through a transparent public process that, although far from perfect, promotes a fair consideration of all sides of any proposed alteration of the federal rules. Measures pushed through Congress, although subject to the usual hearing process, rarely have the detailed consideration and input from all interested parties that occurs under the rulemaking system followed by the Advisory Committee.

The procedural reform imposed by H.R. 985 is not a bottom-up, but rather a top-down imposition of   relatively narrow point of view. It is certainly not the product of the type of public forum system followed by the Advisory Committee. True, the legislature is representative of the people. But it is truly so? To what extent? And even assuming that it is, the class actions topic is so technical—sometimes even hyper technical for the experts in the field—that it demands a focused and narrow process of reflection and study, exchange and confrontation, precisely the one the Advisory Committee engages in and has engaged in with respect to Rule 23.

Monday, February 20, 2017

In Kindred, Supreme Court to Revisit Mandatory Arbitration Clauses

Professor Adam Zimmerman offers his thoughts on Kindred Nursing Centers v. Clark, scheduled for oral arguments before the U.S. Supreme Court on Wednesday, Feb. 22.

Kindred involves one of the latest challenges to mandatory arbitration clauses that bar class actions.  The Supreme Court in a series of cases since Concepcion has broadly permitted corporations to require that consumers enter arbitration agreements waiving rights to bring class actions in any forum.  But long before Concepcion, the Court also drew an important distinction for parties challenging arbitration agreements.  In Buckeye Check Cashing, the Court said a party who challenges the terms of an agreement that includes an arbitration provision has to raise that problem in the arbitration itself.  But when a party challenges whether or she entered into an arbitration agreement at all, the Court suggested that's something for courts to decide under state law.  

Nursing home cases raise that problem because many people in nursing homes may rely on someone else to enter into the nursing home contract using a power-of-attorney.  The lower court found that, as a matter of state law, it could decide whether those mandatory arbitration agreements signed by those using a power of attorney were invalid and ultimately found they were.  The Supreme Court will now decide whether, under the logic of cases like Concepcion, the Kentucky Supreme Court should have enforced the arbitration agreement under the Federal Arbitration Act, or instead, whether a party can raise state law challenges to entering such an agreement. 

Wednesday, January 25, 2017

Another Personal Jurisdiction Case in the Supreme Court

By Professor Simona Grossi

Some people have asked me to comment on the latest personal jurisdiction case pending in the U.S. Supreme Court. It did strike me that the Supreme Court has granted review in another personal jurisdiction case. As described by the Petitioner in BNSF Railway Company v. Tyrell, No. 16-405, the question presented is the following:
Whether a state court may decline to follow this Court’s decision in Daimler AG v. Bauman, which held that the Due Process Clause forbids a state court from exercising general personal jurisdiction over a defendant that is not at home in the forum state, in a suit against an American defendant under the Federal Employers’ Liability Act.
I would describe the question somewhat differently. I would say that the question is whether FELA authorizes the exercise of personal jurisdiction in state and federal courts in those states in which a railroad is “doing business,” and if so, whether Congress has the power to do so.

In relevant part, FELA provides that
An action may be brought in a district court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action. The jurisdiction of the courts of the United States under this chapter shall be concurrent with that of the courts of the several States.
45 U.S.C. §56. Plaintiffs filed their FELA suit in a Montana state court. The defendant did not reside in Montana, nor did the injury-causing incident occur there. The defendant was, however, engaged in regular course of business in Montana. Thus, in filing their suit in Montana, the plaintiffs relied on the doing-business portion of §56.