To suppress or not to suppress? Fourth Amendment takes center stage

By Professor Laurie Levenson

All of the cases before the U.S. Supreme Court are important, but for the 2010-2011 term, some criminal procedure cases are more important than others. The Fourth Amendment is the meat and potatoes for most criminal practitioners. This term presents two important cases regarding the exclusionary rule for Fourth Amendment violations.

The case of Davis v. United States, No. 09-11328, while addressing changes in the rules for searches incident to an arrest in an automobile, really focuses on where the Court may be headed with the exclusionary rule. Ever since Herring v. United States, 129 S.Ct. 695 (2009), many have speculated about whether the Leon good-faith exception to the exclusionary rule would expand to swallow the rule itself. Slowly but surely, the courts have created more good faith exceptions to the rule. The latest expansion of the good faith exception may come in Davis, where the United States argues that searches conducted before the Court's new ruling in Arizona v. Gant, _ U.S. _, 129 S.Ct. 1710 (2009), should not be suppressed because law enforcement was relying on prior Supreme Court precedent. (Supreme Court opinions are available online.)

Yet, while this is undoubtedly an important issue, there is more to watch in this case. In footnote 33 of the amicus brief recently filed by Wayne County, Mich., law enforcement is once again pushing to reduce all exclusionary rule decisions to a question of whether law enforcement's conduct was "deliberate, reckless, or grossly negligent." Law enforcement has not been shy in suggesting that the Court push this agenda. As they put it, "there is no time like the present." Davis could end up being a blockbuster case, depending upon how narrowly or broadly the Court applies the exclusionary rule. The Court may continue to chip away at the exclusionary rule, or bust it wide open once and for all, and let individual judges in each case balance whether the law enforcement officers in question could and needed to be deterred.

But, that is not all. The Supreme Court has yet another case waiting in the wings, Tolentino v. New York, No. 09-11556, that will examine the "fruit of the poisonous tree" doctrine under the exclusionary rule. Jose Tolentino was unlawfully stopped for playing music too loudly. Police learned his name, ran a DMV check, and discovered that his license had been suspended. He was then arrested for driving without a license. The New York court refused to suppress the evidence because it held that the exclusionary rule does not apply to a person's identity. The majority rejected the dissent's argument that refusing to apply the exclusionary rule will "give law enforcement an incentive to illegally stop, detain, and search anyone for the sole purpose of discovering the person's identity and determining if it matches any government records."

There is a good chance this term that the Court will reshape the Fourth Amendment by expanding the good-faith exception and contracting the fruit-of-the-poisonous tree doctrine. At least for drivers confronted by law enforcement, the protections of the Fourth Amendment may soon be getting thinner and thinner.

Climate change conference: Will Cancun deliver?

By Professor Cesare Romano

Once a year the world gathers to discuss what we should do to stop catastrophic climate change, or, more realistically, how we can give ourselves enough time to adjust to its inevitable effects. This past weekend an estimated 15,000 people, representing 194 states, NGOs and media converged on Cancun, Mexico, for the annual ritual of the Conference of the Parties (COP) to the United Nations Framework Convention on Climate Change (UNFCCC) and the Parties to the Kyoto Protocol.

The last conference of this size produced as much emissions as a 150,000-person Northern European town. However organizers claim as much as possible is being done to keep emissions down--including using solar and wind to generate electricity, reducing water use in hotels and providing hybrid cars for transport. We are all encouraged to calculate our carbon emissions at computers provided at the conference and offset the impact by supporting local projects. The Mexican Government will plant around 10,000 trees and bushes around Cancun. The dress code, usually very formal, has been relaxed. We have all been encouraged by the president of the conference to buy and wear a guayabera, the Mexican male holiday shirt, in lieu of wearing a tie and jacket.

The last meeting of the COP (Copenhagen, December 2010) created very high expectations but failed to deliver. The meeting was emphatically billed as "the last chance to save the planet," and world leaders including President Barack Obama turned up. However, nations, and in particular the two key players, the U.S. and China, failed to agree on a legally binding target to cut emissions. Instead, a weak 'Copenhagen Accord' was signed that allows countries to choose their own targets but has no power to force them to keep the promises.

Will Cancun be different? In comparison to Copenhagen, this meeting has been massively down played. World leaders are not even turning up this time, leaving it to their environment and foreign ministers. It is generally agreed that a global deal to cut emissions is unlikely, now and ever. However, supporters of the process, particularly environmental NGOs, are hopeful that the talks could make progress towards a deal by putting in place the 'functioning architecture'. Don't hold your breath because they have been trying to do that since Berlin in 1995, when truly yours was a young legal intern at the Convention's secretariat.

At a minimum, this time I will have a Guayabera to take home. Stay tuned for more reports from the water-filled trenches of climate change!

This is the first in a series of reports Professor Cesare Romano will file from the Cancun conference.

Introducing Summary Judgments

Welcome to Summary Judgments, the new Loyola Law School, Los Angeles faculty blog. Intended to be read by lawyers, judges, scholars and students, this blog will offer commentary on legal and policy issues as well as highlight the academic pursuits of the Loyola community.

This forum will feature professors' analyses of legal matters ripped from the headlines. That will be complemented by periodic digests of faculty members' scholarly work and prolific media commentary. From time to time, we'll post summaries of the many academic events Loyola hosts on campus, from law review symposia to policy colloquia. Most importantly, this blog will serve as a clearinghouse for the wide variety of viewpoints here at Loyola Law School.

We will debut this blog with the "11 on '11" series. Eleven members of the Loyola faculty will offer commentary on what they expect to be the most significant legal developments in their respective fields in 2011. My colleague and blogger extraordinaire Rick Hasen will open the series by commenting on McComish v. Bennett, a case challenging the matching funds provision of Arizona's public financing law.

Thanks for joining us. We hope you return often!

-Professor Michael Waterstone, Associate Dean for Research and Academic Centers

The Big Campaign Finance Story of 2011: An Effective End to Public Financing

By Professor Rick Hasen

It is with great pleasure that I kick off the "11 on '11" series at Summary Judgments, the new Loyola Law School, Los Angeles faculty blog. The series asks us to identify what is likely to be the most significant legal development in our field in 2011. In the field of campaign finance, the big story is likely to be the continued demise in public financing of campaigns, a development caused by both court rulings and legislative inertia.

As early as tomorrow morning, I expect the United States Supreme Court to agree to hear McComish v. Bennett, a case challenging the matching funds provision of Arizona's public financing law. Under the law, a candidate for state office who agrees to take public financing in lieu of private funds to finance a campaign receives extra public financing when the candidate faces a wealthy opponent who spends large sums in the election or by large independent expenditures against the candidate accepting public financing. As I explained in a June post at the Election Law Blog, I expect the Court to not only take this case, but to reverse the Ninth Circuit and strike down the Arizona public financing system. (To be clear, that's not a result I favor: the Ninth Circuit's opinion in the case, and Judge Kleinfeld's concurrence, offer strong reasons to reach a contrary decision in this case and uphold the Arizona regime).

This development is significant because the Court is likely to take away one of the only tools available to drafters of public financing measures to make such financing attractive to candidates. Public financing has a number of benefits, including reducing the threat of corruption and the appearance of corruption, providing a jump start for new candidates who are not professional politicians, and freeing up candidates and officeholders to have more time to interact with voters. But rational politicians who are serious candidates will not opt into the public financing plan unless they think they will be able to run a competitive campaign under the public financing system. The whole point of the extra matching funds in the Arizona plan is to give candidates assurance they won't be vastly outspent in their election. While an adverse ruling by the Supreme Court in McComish would not mean that all public financing systems would be unconstitutional, it would eliminate one of the best ways to create effective public financing systems.

If the Court strikes down the Arizona plan, I expect reformers will push for various alternative plans (which have been proposed over the last few years) to provide public financing to candidates, along with a multiplier match (3 or 4:1) for small contributions. (Give a candidate $100? The candidate gets an additional $300 or $400 from the public financing system.) The idea here would be to provide another way that publicly financed candidates to run competitive campaigns without running afoul of the First Amendment (as likely understood by the Court in McComish). Such plans,however, face two major problems. First, it is not clear if they will actually attract such candidates to participate. Will a rational candidate expect that there will be enough money in the system from these multiplier matches to participate, when facing not only wealthy candidates, but independent spending campaigns which can now be funded by unlimited corporate or union funds through super-PACS? (All of this new funding, of course, is thanks to the big campaign finance story of 2010, the Supreme Court's decision in Citizens United.)

Second, it will be a hard sell to enact new public finance laws during these difficult economic times. Arizona passed its current measure via initiative. It would require considerable work and resources to get a new measure before voters and passed.

The lack of public financing will also be a major story in the upcoming 2012 presidential campaign, which will get going in 2011. As I describe in detail in Richard L. Hasen, The Transformation of the Campaign Financing Regime for U.S. Presidential Elections, in THE FUNDING OF POLITICAL PARTIES (Keith Ewing, Jacob Rowbottom, and Joo-Cheong Tham, eds., Routledge, forthcoming March 2011) (draft available), no serious candidate in the 2012 presidential campaign will be able to afford to take public financing: the U.S. system for publicly financing presidential elections simply has not kept up with the ability of non-participating candidates to raise funds privately. Though President Obama pledged to fix the public financing system, he's never come forward with a plan to do so, and even if he did, such a plan would have virtually no chance getting out of the Republican House or past a Senate filibuster.

Public financing will still exist in 2011 and beyond, but expect fewer participants and less of an impact of such systems going forward.

States cannot ignore federal role in Medicaid administration

By Professor Brietta Clark

For the past few years, the California legislature has been trying to deal with its fiscal crisis by cutting Medi-Cal spending dramatically. Medi-Cal is California's version of Medicaid -- it is a joint federal-state program that benefits significantly from federal funding, and is also subject to federal law. Health care providers and beneficiaries have used federal law to challenge recent state cuts in federal courts, pretty successfully so far.

The latest round in this battle between providers and the state occurred a few weeks ago, in California Association of Rural Health Clinics v. Maxwell-Jolly (CARHC). CARHC challenged a law enacted last year that eliminated coverage for certain services, including adult dental, podiatry and chiropractic serivces, provided by Rural Health Centers (RHCs) and Federally Qualified Health Centers (FQHCs) to Medi-Cal beneficiaries. RHCs and FQHCs are located in medically underserved areas, and they are required to treat people without regard to their ability to pay.

Read more at Prof. Clark's Health Care Justice Blog.

Supreme Court takes on violence in videogames

By Professor F. Jay Dougherty

The Supreme Court heard oral argument today in the case of Schwarzenegger v. Entertainment Merchants Ass'n. This case is a facial challenge to California's recent attempt to regulate minors' access to certain "violent videogames". In U.S. law, certain sexual material--obscenity--is excluded from other "speech" protected from government regulation by the First Amendment. The Supreme Court has, however, permitted laws that limit a minor's access to certain sexual material that would not be "obscene" as to an adult, and that don't unduly restrict an adult's access to such material. But historically, violent material has been viewed as fully protected speech, and "obscenity" has been carefully limited to sexual material. The rare instances where violent speech can be unlawful involve speech that is intended to and likely to cause imminent unlawful behavior. That rationale is not the core justification for the California statute in this case. Rather, the argument is that violent material will cause psychological harm to minors. Hence, in this case, California asked the Court to treat violence for the first time much like obscenity--permit states to limit minors' access to material, even if that material would clearly be protected unregulable speech as to an adult.

The lower courts have refused to do that in this case (and in other cases challenging similar laws in other states). The Ninth Circuit refused to extend to violent videogames the rules applicable to obscenity regulation, and, applying the "strict scrutiny" required as to content-based regulations of speech (which the state law would be), found that scrutiny not satisfied. First, there was no credible evidence that violent media causes psychological harm to anyone, including children. Since protecting against such harm was the only "compelling government interest" the state could assert, the law failed strict scrutiny. Even if one assumed the state did prove such a compelling interest, the statute failed the second part of the strict scrutiny test; namely that the law be "narrowly tailored" to effectuate that interest and there are no less restrictive alternatives. The current industry rating system, the availability of parental controls on modern gaming systems, and enhancing education of parents and retailers about that system would achieve the goal in a less restrictive manner, according to the Ninth Circuit.

Prof. John Nockleby awarded rank of Honorary Diplomate by ABOTA

Professor John Nockleby, director of Loyola's Civil Justice Program and founder of its Journalist Law School, was awarded the rank of Honorary Diplomate by the American Board of Trial Advocates.