Introducing Guest Alumni Blogger Katherine Macfarlane

Katherine Macfarlane '06, our newest Guest Alumni Blogger, was a standout student at Loyola Law School, where she was chief articles editor of the Loyola of Los Angeles Law Review and received the Dean's Service Award. She later clerked for the Hon. Frederick J. Martone of the U.S. District Court for the District of Arizona, and for the Hon. Arthur L. Alarcón of the United States Court of Appeals for the Ninth Circuit. She is now teaching fellow and assistant professor of professional practice at LSU Law Center. And her scholarship is getting noticed. Her law review article, "The Danger of Nonrandom Case Assignment: How the Southern District of New York's 'Related Cases' Rule has Shaped the Evolution of Stop-and-Frisk Law," is forthcoming in Volume 19.2 of the Michigan Journal of Race and Law and is quoted in theWall Street Journal Law Blog.

-Associate Dean Michael Waterstone

Procedure Takes Center Stage in Stop-and-Frisk Litigation

By Katherine A. Macfarlane '06, Guest Alumni Blogger

Teaching Fellow and Assistant Professor of Professional Practice, LSU Law Center

On October 31, 2013, the Second Circuit took the unusual step of removing Southern District of New York Judge Shira Scheindlin from two high-profile stop-and-frisk cases: Ligon v. City of New York and Floyd v. City of New York. Ligon is a Section 1983 class action challenging the NYPD's trespass arrest policy, or "Operation Clean Halls," a program through which NYPD officers patrol private apartment buildings across New York City. Judge Scheindlin oversaw Ligon since its filing in March 2012. Floyd, also a Section 1983 class action, challenged the NYPD's street-level stop-and-frisk practices, arguing that they amounted to racial profiling. Floyd was filed in January 2008, and immediately assigned to Judge Scheindlin.

The Floyd trial began in March and lasted nine weeks. Thirteen days before the Floyd trial began, the Floyd plaintiffs withdrew all claims for damages, and as a result, Floyd was tried to Judge Scheindlin, not to a jury. Floyd was decided in an August 12, 2013 order spanning 193 pages. Therein, the judge granted a sweeping injunction against the NYPD that ordered changes to NYPD policies and activities, appointed a monitor to oversee stop-and-frisk practices, required a "community-based joint remedial process to be conducted by a court-appointed facilitator," and ordered that one precinct in each of New York City's boroughs place body-worn cameras on their police officers. On the same date, Judge Scheindlin entered a similar decision in Ligon, ordering changes to the NYPD's trespass arrest policies, oversight by the same monitor appointed in Floyd, and revision of NYPD training materials and programs. In its October 31 order, in addition to removing Judge Scheindlin from Floyd and Ligon, the Second Circuit stayed the orders in Floyd and Ligon pending appeal.

But why was Judge Scheindlin removed? In its October 31 order, the Second Circuit found that Judge Scheindlin violated the Code of Conduct for United States Judges due to the appearance of partiality created by her "improper application" of the Southern District's "related cases rule," as well as "by a series of media interviews and public statements purporting to respond publicly to criticism of the District Court."

Rebuilding and Restoring the Golden State

By James Gilliam, Guest Alumni Blogger

Given the poverty crisis plaguing California, I was excited to have the opportunity recently to attend a Community Legislative Briefing hosted by The California Partnership -- of which the ACLU of Southern California is a proud member -- a diverse coalition of health, human service, labor, low income, immigrant rights and civil rights community-based organizations that have come together to fight poverty in our state.

The ACLU of Southern California believes that economic justice and civil liberties are inextricably intertwined. Indeed, basic economic rights are an essential prerequisite for the full and fair functioning of democracy in the United States and for the development and flourishing of civil liberties. So, we were excited to host this diverse group of community members, lawmakers, and advocates to discuss various policy proposals that, if enacted, will all come together to rebuild and restore our Golden State.

Budgets are about choices and priorities. Will California choose to reinvest in safety-net programs after $15 billion in health and human services programs were slashed in the last four years alone? Will California choose to expand its already bloated prison system instead of prioritizing cost-effective and evidence-based alternatives to incarceration that strengthen public safety while reducing over-incarceration? Will California choose to close the widening income inequality gap by passing and implementing common-sense policy changes?

Treating America's Drug Use Outside the Prison System

By James Gilliam, Guest Alumni Blogger

Eric Holder's recent announcement at the American Bar Association's Annual Meeting that he is taking steps as Attorney General to tackle the bloated federal mass incarceration crisis comes at a crucial, and welcome, time. Indeed, preventing the use of the most severe federal drug penalties for people convicted of low-level drug offenses represents an important first step toward a fairer criminal justice system and will begin to curb the overcrowding issue that most every prison in the United States faces.

Now is the time for California -- a state the United States Supreme Court already ordered to reduce its prison population -- to follow Holder's lead. As in the rest of the nation, far too many people are locked up in California for far too long -- people we don't need to keep behind bars to ensure public safety. Rather than base our criminal justice system on knee-jerk, one-size-fits-all reactions like incarcerating people for offenses that could be better dealt with through substance abuse treatment, it is time for California to shift toward solutions that will create safety for California families and communities, while enabling those who have paid their debts to become productive citizens. There's no question that attempting to re-integrate into society is much easier to do without the lifelong barriers that follow a felony conviction, including obstacles to housing, employment, and even public support.

Introducing Guest Alumni Blogger James Gilliam

It is with great pleasure that I introduce our third guest alumni blogger: James Gilliam '03. James has long been a champion of social-justice issues -- a topic area on which he will blog in this space. James teaches the Public Interest Law Practice Seminar, Sexual Orientation and the Law and other subjects as an adjunct professor at the Law School, where he was a public interest scholar. James has served as the deputy executive director of the ACLU of Southern California since 2010. Previously, he was a litigation associate and associate pro bono coordinator at Paul Hastings, where he helped the firm notch its first appearance on The American Lawyer's "A-List Pro Bono Score Card."

-Associate Dean Michael Waterstone

In time of change, an affirmation of the power of the law

By James Gilliam, Guest Alumni Blogger

Twenty years ago, I attended my first gay Pride celebration in my hometown of Nashville, Tenn. It marked the beginning of my advocacy on behalf of the LGBTQ community -- and has informed all that I have done since. This is the work that drives me.

Over the past two decades, the tools I've used to enact change have evolved as I have continued my education. I began my career in the LGBTQ movement as the director of the organization that produced the Pride event in Nashville. But I soon learned the power of the law. City officials tried, time and again, to block the celebration. They increased the number of costly, off-duty police officers we had to hire to provide security. They demanded, the morning of the event one year, that we display documents proving that our tents were flame retardant. Every year but one, they refused to close the main street for our parade. When necessary, we threatened a lawsuit; and each time, our celebration proceeded.

I wanted to wield the power of the law for good. So I came here, to Loyola Law School, on a public interest scholarship. When I graduated a decade ago, many states still considered gays and lesbians criminals. Just months later, while I was studying for the bar exam, I witnessed the law serving as an agent of justice: In Lawrence v. Texas, the U.S. Supreme Court held that Texas's law -- which criminalized sexual acts between same-sex partners, but not partners of the opposite sex -- was unconstitutional.

With Housing Crisis, State Bar Helps Pave Road to Recovery

By Patrick Kelly, Guest Alumni Blogger

While the housing market finally seems to be rebounding, the effects of the foreclosure crisis continue to reverberate throughout California. Many homeowners are still struggling and in need of help in order to save their homes. The State Bar of California, in partnership with the Office of Attorney General Kamala Harris, has stepped up to provide assistance.

In November, Harris announced a $10 million grant program for organizations that provide housing counseling and legal services to homeowners. The funds were secured through the National Mortgage Settlement . The State Bar offered to help administer the new grant program, in conjunction with the Attorney General's Office. Because the State Bar already administers legal services grants, we were able to offer our help at no cost to taxpayers. That means that the entire $10 million will go to the people who are struggling and need it most.

The State Bar has been compiling and processing dozens of applications to help the selection teams set up by the Attorney General's Office make funding recommendations to the Attorney General. These applications are from legal aid organizations and other nonprofits proposing innovative, scalable and sustainable approaches for helping California families dealing with a foreclosure crisis. About $9 million is going toward Consumer Assistance Grants, which will give families the resources they need to achieve longterm financial security, including counseling, legal representation and financial planning assistance.

At Commencement, a Time to Consider your Personal Legal 'Brand'

By Patrick Kelly, Guest Alumni Blogger

This speech was originally delivered at Loyola Law School's 92nd-annual Commencement Ceremony held on Sunday, May 19, 2013 on the campus of Loyola Marymount University.

I want to start by giving two additional and very important acknowledgments:

First, I would like to recognize the parents and loved ones of today's graduates who have supported the graduates through this rigorous process. Indeed the honor they receive today belongs as much to you as it does the graduates of the class of 2013.

Second, I would like to recognize all of the professors who worked so hard to bestow on the graduating class, the learning and benefit of their skill and experience that made today possible.

I ask the graduates to now stand, turn around and recognize by your applause the members of your family, your friends, your significant others and your professors, who have played such an integral part in reaching this significant milestone in your career.

Today is a very exciting and up beat day. You have completed one of the most rigorous courses of instruction of any professional undertaking. You have sacrificed much to get here and may sometimes ask "Why did I do it". I would like to suggest an answer to that question.

We all come from different backgrounds and have different life experiences. In my case as Professor Poehls indicated, I was a professional musician and played with the Beach Boys and many other musical groups. I am often asked why I gave that career up to go to law school. I know some of you have asked yourself the same question.

California State Bar Driving Solutions to Crisis in the State Courts

By Patrick Kelly, Guest Alumni Blogger

Regarding the crisis in the courts that I discussed in my previous blog post, I have been asked "What is the Bar doing about it?" The answer is: The Bar as an agency of the government can only take limited action; however, it is strongly supporting the work of the Bench-Bar Coalition and the Open Courts Coalition that exist for the sole purpose of keeping the courts open for the public through increased funding. I am on the steering committee of the latter group, chaired by Paul Kiesel and Naill McCarthy, and we are working together to facilitate budget discussions between the various departments of the court.

More importantly, we have been regularly meeting with court officials, representatives of the executive branch and legislators. For example, on March 11, both the BBC and the OCC traveled to Sacramento to meet with legislators and support the court by attending the Chief Justice's State of the Court address. I personally met with many legislators, including the chair of the Assembly Judiciary Committee, to underscore the crisis and secure full funding for our courts. I am pleased to say that everyone with whom we met understands the importance of the issue to their constituents and agrees we are at risk of losing many of the benefits of our justice system. To a person they support increased funding for the courts.

The question remains, "Where do we get the money?" That can be answered in part by using part of the budget surplus we have been told will exist. However, the real answer is for the executive and legislative branches to elevate the judicial branch to the very top of their priority scale. Why? The answer is simple: The court system is the gatekeeper for the rights of all Californians. It provides the only vehicle to enforce their rights under all of the other programs and agencies the legislature funds. All of the bills and laws in the world make no difference if there is no viable court system to enforce them. Thus the separate branch of government that is our justice system is integral to all other laws and programs, and indeed they cannot exist without it. Stated otherwise, although only taking 1 percent of the state's general fund, the courts must remain available to enforce 100 percent of the rights of 100 percent of Californians no matter what the right or law they are seeking to enforce.

What can you do to help ameliorate this crisis? We must come together to reach out to the legislature and the executive branch and to enlist the aid of community organizations in this quest. Now is the time to call your assembly members and senators and let them know how important this issue is to their constituents who even now are being denied their constitutional right to access to justice. Your voice will count.

Patrick Kelly is the Western Region Managing Partner at Wilson Elser Moskowitz Edelman & Dicker LLP and president of the California State Bar. A recipient of Loyola's Distinguished Alumni Award, he sits on the board of the Law School's Advocacy Institute and was elected to the Law School's Board of Overseers.

Introducing Guest Alumni Blogger Pat Kelly

I am excited to introduce our second guest alumni blogger. We are proud to welcome Pat Kelly '69 to our Summary Judgments blog. In addition to being a Western Region Managing Partner at Wilson Elser Moskowitz Edelman & Dicker LLP, Pat is the current President of the California State Bar. He is also a member of the Law School's Board of
Overseers. We are looking forward to having Pat blog about many of the important issues facing the bar, including the court funding crisis.

-Associate Dean Michael Waterstone

Court Funding is Biggest Barrier to Justice for Citizens

Patrick Kelly, Guest Alumni Blogger

I believe the current court funding crisis is the greatest threat to our justice system and access to justice for our citizens I have seen in my 42 years of practice. I have focused upon this as the number one issue affecting the public and lawyers in California and have made it an integral part of every speech and discussion I have had since taking office in October. Examples of the carnage caused by these funding cuts exist everywhere in
California -- seven courthouse closures in Fresno, four courthouse closures in San Bernardino County and 10 courthouse closures in Los Angeles County, just to name a few examples.

The real toll is to the users of our courts -- the citizens of California who have a constitutional right to full and fair access to our justice system. Not only are we losing the neighborhood court system that provided access to all, but also user fees have escalated to the point that we are moving toward a disastrous pay-for-play system that is certainly not what the framers of our Constitution had in mind when they defined our rights. Moreover, the framers of our Constitution could not have envisioned a system where the rich have access through private judging whereas those less affluent and the poor have to stand in a line that because of a decline in resources is growing longer. These cuts have also threatened small businesses, the very engine of
California's economic recovery. The importance of this issue cannot be overstated. Paraphrasing Alan Greenspan, one of the key elements of business growth is ready access to a justice system that provides prompt dispute resolution.

Some argue that despite the budget cuts to the branch over the past few years, the funding has remained relatively stable due to the use of backup funds. That statement does not even scratch the surface of the whole story and implies that somehow the courthouse closures and longer lines don't exist. The truth is that while other states that fund courts generally spend about 2 percent of their general fund on the court system, in California it is 1 percent. In fact, the share of court funding that comes from the state general fund in California has fallen from 56 percent to 20 percent since 2008.

As noted, much of the money used to yield the impression of "stability" has come from redirection of court construction funds into court operations ($891 million since 2008); mandatory spend down of reserves ($500 million); redirection of funds intended for statewide court programs ($414 million); and increases in user fees ($397 million). Thus the fact is "stability" has left the court with a decimated construction and maintenance program, an almost complete loss of reserve funds necessary for court operations and a much higher cost for access to the long courthouse lines. And it gets worse. The ability to take courthouse construction funds is almost over and there is little left in reserves. In short, the money movement devices have now run out and the state will have to step up or we have only seen the tip of a much bigger iceberg of courthouse closures and staff layoffs. All of this leads to the inescapable conclusion that justice is being denied, and the magnitude of that denial is growing with each passing day.

Next week: How to solve the crisis...

Patrick Kelly is the Western Region Managing Partner at Wilson Elser Moskowitz Edelman & Dicker LLP and president of the California State Bar. A recipient of Loyola's Distinguished Alumni Award, he sits on the board of the Law School's Advocacy Institute and was elected to the Law School's Board of Overseers.

Concepcion v. AT&T propagates law giving big business license to steal from consumers

By Brian S. Kabateck '89, Guest Alumni Blogger

Concepcion v. AT&T, 131 S.Ct. 1750 (2011) is arguably the worst consumer Supreme Court decision in the last 20 years. Interestingly, there hasn't yet been a public outcry. In this horrible decision, the court held that the Federal Arbitration Act trumps all other laws. If you don't know the case and have been living in a bubble for the last two years, the facts are simple: The Concepcions sued AT&T Mobility claiming that their cell-phone company had engaged in deceptive advertising by falsely claiming that their plan included free cell phones. Their suit became a class action. The U.S. District Court for the Central District of California refused to dismiss the suit despite the fact that the contract mandated binding arbitration and prohibited class action lawsuits. The district court ruled that California law prohibits consumer adhesion contracts that waive the customer's right to a jury trial, mandate arbitration and purport to waive the right to participate in a class action lawsuit. The Ninth Circuit Court of Appeals upheld the District Court's decision. The Supreme Court disagreed and held that the Federal Arbitration Act (a law that was written before the Great Depression) mandated that any arbitration agreement was absolutely enforceable, even if it appears in a contract of adhesion.

Before Concepcion, contracts of adhesion couldn't force people into arbitration in California, and class action waivers were generally held unenforceable. There are many cases all across the United States today with varying decisions on the enforceability of mandatory binding arbitration agreements. There is no doubt that mandatory arbitration in consumer contracts of adhesion is bad for most Americans. The only groups that like the idea of mandatory arbitration are big business and the chamber of commerce. Arbitration doesn't discourage consumer litigation; it eliminates it entirely. Who is going to arbitrate a $75 dispute with your phone company provider? And if your phone company is overcharging you $75, where does the consumer go? Or a $500 dispute? Or a $1,000 dispute? While a $75 rip off may not be the worst thing that happens to a consumer, it nevertheless is wrong and should be stopped. And a $75 dispute magnified over tens of thousands of customers means millions of dollars the corporation is stealing from its consumers. The state and federal governments have neither the ability nor the resources to litigate these cases on behalf of consumers. So if class actions are eliminated for this category of cases, and the government won't enforce the laws, it is a license to steal from America.

California's Cap on Medical Malpractice Damages Needs Surgery

By Brian S. Kabateck '89, Guest Alumni Blogger

Most lawyers don't know that in 1975 Governor Brown signed a law that radically changed medical malpractice litigation in California. That law, known as MICRA (Medical Injury Compensation Reform Act), was born in a time when most doctors were in private practice and the insurance industry was largely uncontrolled and financially crushing doctors by boosting malpractice premiums. Among other reforms, MICRA capped any pain and suffering award at $250,000. In the 38 years since MICRA became law, there has been no change whatsoever in the $250,000 cap - and during the same timeframe, inflation has dramatically affected the value of $250,000. In fact, if you apply a basic cost of living factor for inflation, that same $250,000 would now approach approximately $1.1 million. While under MICRA there is no artificial cap on economic losses such as medical care, life care and lost earning, its $250,000 cap on non-economic damages intended to offset the real costs of human suffering creates an unfair situation in cases involving the loss of a child, a non-income earning spouse or a retired person. Quite simply, the life of a child lost because of medical error is only worth $250,000 in California. Outrageous!

Consider also that the entire practice of medicine has changed in the last 38 years. Most Californians who are insured get their medical care though managed care like an HMO or Kaiser. Gone are the days when private practitioners where the norm. Many patients feel like doctors are restricted in making decisions by administrators and other people who are not doctors but are often making the decisions for them. Patient safety is a serious concern in the United States today. It is estimated that more than 300,000 people die every year from medical errors. To put that number into context, medical errors are the third leading cause of death behind heart disease and cancer. It's the equivalent of two full 747s crashing every day. In California, an estimated 37,500 people die from medical errors every year. Meanwhile, doctors have a more lenient discipline system than lawyers; many doctors go unchecked while wrestling with addiction to alcohol and prescription drugs. The media seem to be reporting stories every day of serious medical errors and negligence. Michael Jackson is the most famous victim of medical negligence.

Our tort system does act as a deterrent. We know that cars are safer because of product liability cases, insurance companies are held accountable when they fail to pay legitimate claims, Big Pharma is responsible for bad and dangerous drugs - the list goes on and on. There are no caps on those other industries. In fact, no profession has artificial caps in place except the medical field. Eliminating the cap entirely and letting juries decide the level of damages would be the best approach, but at a minimum the cap should be adjusted to account for inflation and then adjusted regularly to keep up with the cost of living. Even the original rationale for the cap no longer applies. Shortly after the current California insurance commissioner took office, he forced all admitted malpractice insurance firms to refund premiums because medical malpractice coverage is the most profitable line of insurance in the state. Beyond such administrative steps, the notion of caps is fundamentally contrary to our legal system, the Seventh Amendment and the entire idea that one group shouldn't receive special treatment over others.

We teach a tort system in law schools across the country that is free of artificial limitations on damages. In fact, our entire constitutional civil justice system is based on the notion that juries are best equipped to determine the value of a plaintiff's claim. We need to reconsider the MICRA caps.

Brian S. Kabateck is the founding and managing partner of Kabateck Brown Kellner LLP and president of the Consumer Attorneys of California.

Introducing Our Inaugural Guest Alumni Blogger

This month, we are delighted to roll out what will be a regular feature of our blog: a guest alumni blogger. Our alumni network at Loyola is an integral part of our law school. And I can think of no one better to be our inaugural guest alumni blogger than Brian Kabateck. Brian is founding and managing partner at Kabateck Brown Kellner LLP. He is an important voice in consumer rights and the current president of the Consumer Attorneys of California. He is also a good friend of our law school and someone whom we are proud to call our own. Over the next month, we look forward to his observations on consumer protection and other areas.

-Associate Dean Michael Waterstone-

Everyday Litigants Will Suffer with Court Funding Provided in Gov. Brown's Proposed Budget

By Brian S. Kabateck '89, Guest Alumni Blogger

In a mix of news both bad and slightly less bad, the governor's proposed 2013-14 state budget slashes $200 million in court construction funding but mostly maintains the status quo for court operations already battered by years of deep cuts. The governor's finance team is to be commended for avoiding deep operational cuts that would have devastated California's courts. However, the loss of $200 million in construction money needed to maintain the state's aging court infrastructure amounts to more bad news for the justice system. Even though the budget proposal appeared to spare the courts from a fresh round of deep operational cuts for 2013-14, the system is already reeling from $1.2 billion in General Fund cuts over the past five years.

At first blush, the governor's new budget appears to maintain the status quo, but with the courts absorbing more than $1 billion in cuts over the past five years, the status quo isn't acceptable. The status quo has been a disaster. A prime example is in Los Angeles County, which during the current fiscal year has been forced to make upwards of $85 million in cuts to programs that have resulted in the ongoing closure of 10 full courthouses scattered around the region and other operational changes that have the net effect of creating long lines for basic services and slowing the administration of justice. The old axiom is justice delayed is justice denied. Well, lately there has been a lot of justice being denied all over the state.

The cuts of recent years have hit especially hard at some of the state's most vulnerable citizens - women, children, the poor, veterans, the disabled - who utilize family law and other specialty-court operations that have been among the hardest hit by years of budgetary slashing. We are facing a crisis. Courts are an important safety net for society, protecting our most vulnerable. This crisis is about real people who need help solving real problems. Even the most basic functions like paying a ticket or resolving a rental dispute have been turned into unbelievable inconveniences that cost average citizens both time and money. Staffing cuts at many courthouses have led to swelling lines and frayed tempers as the public has tried to tap the most basic services. In Los Angeles, people queued up to settle traffic tickets have in some instances been turned away at day's end and told to come back the next day. Such problems stand to grow even worse as the county grapples with more than $150 million in court cuts in the last couple years. Already, 10 courthouses in Los Angeles County are in the process of being shut down and services are increasingly being centralized in a single courthouse, threatening to make a bad situation even worse.

Adjunct Prof. James Gilliam published op-ed: Attorneys regrettably revive the 'gay panic' defense

Adjunct Professor James Gilliam recently published an op-ed in the Ventury County Star. Below is an excerpt with a link to the entire piece.

Attorneys regrettably revive the 'gay panic' defense. It's a classic tactic when defending an indefensible crime: blame the victim, especially if that victim is gay.

The odious strategy is unfortunately common enough to have a name, the "gay panic defense," and it holds that a heterosexual man cannot possibly be expected to maintain his sanity when confronted with a same-sex advance.

While it has popped up as a justification for Matthew Shepard's 1998 murder and even, implausibly, as a reason behind the brutalization of gay patrons during a 2009 police raid of a Fort Worth, Texas, bar, it isn't generally successful.

Which is what makes especially depressing its recent appearance in the Chatsworth courtroom where 17-year-old Brandon McInerney is on trial for the 2008 shooting of his classmate, 15-year-old Lawrence King.

His defense attorneys say McInerney was so horrified by a request by King to be his valentine that he was driven, a day later, to bring a pistol to class at Oxnard's E.O. Green Junior High School and shoot King in the back of the head. While they admit he shot King, they told reporters he did it "in the heat of passion caused by the intense emotional state between these two boys at school."

Read the entire op-ed