Thursday, April 27, 2017

Federal Circuit Adopts Professors' Theories on Veterans' Courts Hearing Class Actions

Relying, in part, on an amicus brief filed by Professor Adam Zimmerman and others, the Federal Circuit this week agreed that veterans can bring class actions in veterans court in the case Monk v. Shulkin.

"By adopting our theory that this veteran's court could hear class actions under its statute, the Federal Circuit not only creates a meaningful path for veterans to pursue desperately needed institutional reform, but it has essentially paved the way for almost all other agencies with similarly worded authority to do the same," said Zimmerman.

The Wall Street Journal reported: "Adam Zimmerman, a class-action expert at Loyola Law School who filed an amicus brief in the case along with other academics, said the Federal Circuit ruling has the power to help more than the veterans. It also could pave the way for other agencies granted similar authority to the veterans court to hear collective actions, he said.

Relevant excerpt of opinion:

Under 38 U.S.C. § 7264(a), “[t]he proceedings of the [Veterans Court] shall be conducted in accordance with such rules of practice and procedure as the Court prescribes.” This express grant authorizes the Veterans Court to create the procedures it needs to exercise its jurisdiction.

Other tribunals have relied on statutes with similar language as 38 U.S.C. § 7264 to aggregate claims and create class action procedures, including the Equal Employment Opportunity Commission (“EEOC”). See Amicus Br. of 15 Admin. Law, Civil Procedure, and Fed. Courts Professors at 10–11 (noting that the EEOC was granted authority to “issue such rules, regulations, orders and instructions as it deems necessary and appropriate to carry out its responsibilities” pursuant to 42 U.S.C. § 2000e-16(b)). Under this authority, the EEOC adopted a class action resolution procedure. 29 C.F.R. § 1614.204; see, e.g., 57 Fed. Reg. 12,634 (Apr. 10, 1992); Wade v. Donahoe, No. CIV.A. 11-3795, 2012 WL 3844380, at *13 (E.D. Pa. Sept. 4, 2012) (“Pursuant to [its 42 U.S.C. § 2000e-16(b)] authority, the EEOC has promulgated regulations for class actions.”).

On the basis of the express statutory authority of the Veterans Court to prescribe “rules of practice and procedure,” the Veterans Court may prescribe procedures for class actions or other methods of aggregation.




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.