California Supreme Court May Allow The Censoring Of Consumers’ Online Reviews

Forums such as Yelp, TripAdvisor, Amazon, Facebook, and Twitter, provide consumers with the opportunity to voice their opinions by detailing their experiences as patrons of various restaurants and other local businesses.  The reviews of prior consumers can weigh heavily when potential consumers decide whether they want to support a particular business or not.

The use of social media to leave reviews creates a medium in which “word of mouth” can reach many more individuals who are in search of a specific product or service that can meet their needs.  The accessibility of these forums reaching vast numbers of consumers lead to both positive and negative effects.  For consumers, the ability to read about others’ good, bad, and neutral experiences can help them determine if the particular business is a right fit for them.  For business owners, both positive and negative reviews can indicate to a business what consumers appreciate and also what the business should be doing in order to improve its interactions with consumers.

However, one of the main problems with online reviews occurs when consumers share false negative reviews of a business.  Recently, California Courts have been presented with legal issues arising from the use of online forums, specifically, whether courts have the power to force any specific forum to take down a defamatory review.  Furthermore, courts must address whether any infringement on a consumer’s First Amendment right to free speech arises if a negative review is declared defamatory.

For instance, recently, a California law firm alleged that a past client fraudulently posted false negative Yelp reviews about her experience with their law firm.  Due to the influence of Yelp reviews on a businesses’ reputation, the law firm requested that the former client take down her negative reviews.  The former client refused and the law firm sued the former client for defamation in state court, seeking help from the courts in ensuring its name would not be tarnished.  This case between the law firm and its former client is Hassell v. Bird, and it has made its way all the way up to the California Supreme Court.

Currently, the California Supreme Court is deciding whether to let the Court of Appeals decision stand or whether the Court will issue its own decision.  On September 29, 2014, the Superior Court declared, which then on June 7, 2016 the Court of Appeals affirmed with an opinion written by Justice Ruvolo, that the reviews of the former client were indeed defamatory.  Although Yelp was not a party to the suit, the opinion ordered Yelp to step in to remove these negative false reviews.  The Court explained that since Yelp is an “administrator of the forum” where the negative reviews are found, Yelp is responsible for removing the defamatory speech.

The counsel for Yelp is optimistic that the California Supreme Court has decided to hear its case because it has given Yelp an opportunity to demonstrate how this decision will have an detrimental effect by “restrict[ing] the ability of websites to provide a balanced spectrum of views online.”  Yelp’s counsel and other community members argue that this judicial decision will restrict a consumers’ First Amendment right to free speech.  On the other hand, the law firm’s counsel, San Francisco lawyer Monique Olivier, strongly asserts that these false negative reviews, if considered defamatory, are not protected by the First Amendment, and therefore there is no infringement on a consumers’ right to free speech.  Presently, the California Supreme Court has not decided the matter and the parties in Hassell are awaiting a decision as to whether the higher court will hear their case.

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Main Issue Addressed by the Courts

The main issue presented before the California Supreme Court is whether an online publisher has a right to notice and the opportunity to be heard before a trial court orders removal of online content.

In Yelp’s Opening Brief on the Merits, Yelp argues that the Court of Appeals decision should be overturned mainly because the court did not provide Yelp with proper due process protections by not taking into account Supreme Court authority that requires notice and the opportunity to be heard when it relates to orders restraining the distribution of speech.  Yelp argues that the Court of Appeals decision was extremely flawed because they created an avenue for courts to easily apply injunctions to non-parties, even without any inquiry into factual accounts of misconduct.  Specifically, Yelp asserts that now anyone who seeks the judicial system to help provide relief to a case regarding defamation, can forum shop in California and “circumvent due process rights” in this state.

Yelp provides that as a publisher of third-party authorized speech, its First Amendment right to control its own website was violated by this decision.  Furthermore, due to this decision, businesses now have an effective tool in removing unflattering commentary whereas online entities like Yelp are denied their right to exercise editorial control in publishing consumer reviews.  Overall, Yelp urges the California Supreme Court to reverse the Court of Appeals’ decision because this case provides an opportunity to abuse the court system in order to stifle speech on the Internet.

In Hassell’s Answering Brief on the Merits, Hassell argues that invoking the First Amendment, the Due Process clause, and the federal Communications Decency Act will not help Yelp escape a court order preventing them from republishing postings that have been judicially determined as defamatory.  Hassell cites to both cases from the U.S. Supreme Court and the California Supreme Court, who have consistently held that defamatory speech falls outside of the scope of First Amendment protections.  For example, U.S. Supreme Court cases, Ashcroft v. Free Speech Coalition and Keeton v. Hustler Magazine, Inc.; and Balboa Island Village Inn, Inc. v. Lemen, a California Supreme Court case, all demonstrate that false statements are not protected from any constitutional provision because they harm both the subject of the false statements and the readers of the statement.

Overall, Hassell declares that the same prohibition against speakers to create defamatory speech should apply to anyone, like Yelp, who is distributing defamatory speech.  Hassell argues that she tried to resolve this matter out of court with both Yelp and Bird, but since she was unsuccessful to coming to a reasonable agreement, she sought the relief that she is rightfully entitled to from the court.

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Potential Lasting Effects on Online Forums 

Any action the California Supreme Court takes will have a lasting effect on the limitations of free speech online.  If the California Supreme Court determines that forum administrators, like Yelp, bear the responsibility of monitoring whether a consumer has posted a negative false review that is considered defamatory, businesses can easily have reviews removed by the forum administrator if they believe that the review is offensive and inaccurate.

Anytime there is a negative review that a business believes is defamatory, the business can just go to court in order to receive a declaration telling the forum administrator to delete the personal reviews made by consumers.

Although this decision helps those who want to protect their businesses from false negative reviews, the decision may also create infringements on consumers’ freedom of expression because there is a possibility that their accurate descriptions of their experiences can be declared defamatory and censored by a court.

The restriction of past consumers to freely express their negative opinions of a business can also have an effect on future consumers, because future consumers may be attracted to a business who did something to improve its consumer experience.  Also, without seeing constructive criticism from consumers, businesses will not know how to become better or have an incentive to change.  An honest review is an important asset to a business because it can encourage more foot traffic or it can provide the business with an opportunity to better cater to its consumers.  Although it is unknown how the California Supreme Court will rule, it is likely that this decision will have a lasting effect on how consumers use social media and online forums to review their experiences.

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Image by Steve Rhodes (via Flickr.com/photos/ari/2131987021)

Police High-Speed Pursuits: Giving Police the Authority to Intervene Before the Public is Harmed

Police Pursuits. The idea brings to mind thoughts of bank robbers fleeing from the police after committing a daring heist, only to be pursued by inept cops that wind up crashing into each other as the robbers drive away in perfect Hollywood fashion. However, police pursuits are rarely as glamorous and thrilling. In reality, they are terrifying and dangerous. In fact, according to the National Highway Traffic Safety Administration (NHTSA) more than 5,000 bystanders or passengers have been killed in police pursuits since 1979

In recent years there has been a call for police departments to limit their pursuit of fleeing suspects. A simple google search reveals the continuous calls for police to stop pursuing suspects unless they are considered dangerous or committed known violent felonies. For instance, in Jackson, Mississippi, Councilman Kenneth Stokes, in reference to police pursuits coming into his ward, went as far to suggest to the local population “[l]et’s get rocks, let’s get bricks and let’s get bottles and start throwing them and then [police] won’t come in here anymore.” Similarly, in Washington D.C., Charlie Viverette’s mother claimed police should not have been chasing the suspect that hit her son, killing him. Like Charlie Viverette’s mother, many wish to place the blame for such injuries at the feet of the police rather than the fleeing suspect. In those cases, where the police due pursue a suspect and the pursuit ends with the suspect injured or killed, the police not only face criticism from the public, but the department and the individual officers involved become the subject of a civil rights lawsuit.

TRADITIONAL POLICE METHODS USED TO END HIGH SPEED PURSUITS

In attempting to terminate a police pursuit there are a variety of tactics an officer may use. Officers may attempt to “box” a vehicle in by placing cruisers around the suspect’s vehicle and gradually slowing their own speed, forcing the driver to stop. Other methods include using spike stops or the most notable precision immobilization technique, also known as the “PIT maneuver.” During a PIT maneuver, the pursuing officer uses their front push bumper to strike a fleeing vehicles rear quarter panel/bumper of the vehicle, causing the vehicle to spin and end the pursuit. While these are the most common methods, they are not the only methods to end a pursuit.  Each of these methods can involve a high degree of danger for the pursuing officers, the public and the fleeing suspect, as evident by this video, where a fleeing suspect crashes into a police cruiser while trying to avoid spike strips.

CASE LAW PROTECTING POLICE USE OF FORCE DURING HIGH SPEED PURSUITS

The Supreme Court has addressed the issue of use of force in the context of police pursuits only four times. Two of their decisions dealt with vehicles attempting to flee a scene while officers were nearby. The other two, discussed below, addressed the police use of force during the actual high speed pursuit. In each case, the Supreme Court found that either the officer involved did not violate the Fourth Amendment or was entitled to qualified immunity under 42 U.S.C section 1983.

The Supreme Court in 2007 first addressed the Fourth Amendment and use of force during a police vehicle pursuit. In Scott v. Harris, an officer was found to not have violated the Fourth Amendment when the officer rammed a fleeing suspect off the road. Harris was rendered a quadriplegic after leading the police on a six-minute chase that ended when Scott used the push bumper of his cruiser to ram Harris’ vehicle, causing it to veer off into a ditch. The Court held that Scott did not violate the Fourth Amendment because Harris was an actual and imminent threat to the lives of any pedestrians who might have been present, other civilian motorists and the officers involved in the chase.

Harris argued that police should have ceased the pursuit instead of ramming his vehicle, and by ceasing the pursuit the public would have been equally protected. The Court refused to adopt a rule that would give incentives for suspects to escape simply by speeding, running red lights, and endangering the public. Rather, the Court adopted the more sensible rule that “police officer’s attempt to terminate a dangerous high speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.”

The Supreme Court’s second decision involving police pursuits came just last year in November 2015, with the case of Mullenix v. Luna. On March 23, 2010, Israel Leija Jr., lead police on high speed pursuit. During the 18-minute chase, Leija and the pursuing officers reached speeds between 85 and 110 miles per hour. Leija phoned the local police dispatcher while fleeing and told them he had a gun and threatened to shoot at the police if they did not abandon their pursuit. The dispatcher promptly relayed this information to all the officers involved.

While other officers pursued Leija, Trooper Mullenix drove to an overpass intending to set up a spike strip.  Directly below the overpass another officer waited with a spike strip already deployed. Mullenix decided to consider a different tactic, shooting at the vehicle to disable it however, Mullenix was not trained in such a procedure. As Leija’s vehicle approached the overpass, Mullenix fired six shots, striking Leija four times in the upper body. Leija’s vehicle continued under the overpass, struck the spike strips, hit a median, and rolled. Leija was killed in the incident.

Relying on its precedent, the Supreme Court reversed the lower courts finding that Mullenix did not have qualified immunity. Instead, the Supreme Court held that Mullenix was entitled to qualified immunity because his actions did not violate clearly established precedent beyond debate.

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CONCLUSION

While some continue to call for the police to stop pursuing only the most egregious or dangerous felonies in the name of public safety, perhaps it is more appropriate for departments to authorize officers to end high speed pursuits in an expedited manner. A fleeing suspect in a motor vehicle becomes a high speed missile aimed at the nearest unlucky innocent bystander who’s done nothing more than be in the wrong place at the wrong time. In contrast, it is the suspect who has made the decision to flee in a motor vehicle, placing the public in danger. Perhaps this is why the Supreme Court has never found an officer’s actions in a high-speed pursuit to be unreasonable. As Justice Scalia in Scott opined,

“we think it appropriate in this process to take into account…their relative culpability. It was [Harris], after all, who intentionally placed himself and the public in danger…”

By adopting a policy that reflects these case precedents, police officers will have the ability, with the constitutional authority, to end high-speed pursuits quickly before the public can be harmed. Rather than chase a suspect’s vehicle for 11-minutes or blame the police, perhaps it is time that society places the blame at the feet of the individual who made the conscious decision to endanger the public. By allowing the police to quickly intervene, this will reduce a suspect’s ability to crash into innocent motorist or pedestrians. In addition, those cases brought by suspects claiming a violation of the Fourth Amendment for a tactic during a high-speed pursuit that resulted in injury or death to the suspect, trial courts should evaluate each case beginning with a rebuttable presumption that a suspect who flees in a motor vehicle poses a danger to the public and officers. With this presumption, it is evident by Supreme Court precedent that when the police use tactics that include the use of deadly force to stop a high-speed pursuit, the actions by the officers do not violate the Fourth Amendment against unreasonable seizures. By adopting a policy that reflects this precedent, perhaps more innocent lives like Charlie Viverette, can be spared and the culpability of a high-speed pursuit can be placed where it rightfully belongs.

A Long Journey to Secure Permanent Overtime Rights for California Domestic Workers

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Photo Courtesy of the CA Domestic Workers Coalition

California was amongst the first states to regulate long-hours and impose overtime premium pay at the turn of the twentieth century. However, it was not until almost a century later, that the Legislature and Governor recognized that there was no justification to exclude domestic workers from this fundamental protection. On September 12, 2016, Governor Brown signed SB 1015, a bill making overtime rights permanent for more than 300,000 nannies and caregivers for seniors and people with disabilities. For over a decade, domestic workers in California have mobilized a grassroots, worker-led statewide movement for equal treatment under the law.  Golden Gate University School of Law’s Women’s Employment Rights Clinic (WERC) has served as legal counsel to the California Domestic Workers Coalition since 2010 in the Coalition’s effort to extend basic wage and hour protections to domestic workers.

A combination of racism, sexism, and the fear of regulating the home resulted in excluding domestic workers from most legal protections. While other workers gained labor protection at the turn of the twentieth century, domestic workers—by the 1930’s numbering as many as those in “the railroads, coal mines, and automobile industry combined”—were categorically excluded. In 1974, the Fair Labor Standards Act extended minimum wage protections to domestic workers but not to home care companions for the elderly or disabled.  Domestic workers fared no better in state wage and hour coverage. Approximately 18 states gave minimum wage and overtime coverage to some domestic workers. California regulates wage and hour laws by statute as well as by regulations, called Wage Orders, promulgated by the Industrial Welfare Commission. California began regulating domestic work in 1976, when the Industrial Welfare Commission adopted the Household Occupations Wage Order 15.  Domestic workers who cared for property (housecleaners) were given full wage and hour protections but those who cared for human beings were not. The 1976 wage order completely excluded “personal attendants” – childcare providers and caregivers who spent a significant amount of time caring for children, elderly or people with disabilities from coverage. Personal attendants were excluded from wage and hour coverage based on the erroneous belief that these workers were primarily young or elderly persons doing the work to supplement income received from their parents or social security benefits, respectively.

Domestic workers are crucial part of the economic and social fabric of our country.  However, isolated and hidden behind closed doors and mostly unprotected under the law, domestic workers face harsh working conditions. In a California report issued by the National Domestic Workers Alliance, the median hourly wage for nannies is $8.57, for caregivers is $8.69, and for housecleaners is $10.11. The researchers found that sixty percent (60%) of workers were paid an hourly wage at their primary job that is below the level needed to adequately support a family (using a conservative measure of income adequacy). Low wages have resulted in material hardship for domestic workers.  Thirty-five percent (35%) of workers reported that in the past twelve months they were forced to pay their rent or mortgage late and nearly one quarter (23%) reported that in the month prior to the survey there were times when there was no food to eat in their own homes because they had no resources to obtain it. Compounding this problem, twenty-five percent (25%) of domestic workers were paid below the California minimum wage.

In 2001, personal attendants got the right to minimum wage. Thanks to the California Domestic Worker Coalition, personal attendants gained overtime protections in 2014, through AB 241.  AB 241 went into effect in January 2014 but was set to expire or “sunset” on January 1, 2017, unless the Legislature extended or removed the sunset provision. SB 1015 removed the sunset provision, making overtime a permanent reality for personal attendants in California. Now, personal attendants (with some exceptions) are entitled to overtime after nine (9) hours of work in a day and after forty-five (45) hours in a week.

One reason why the overtime bills garnered opposition was the fear that home care would become unaffordable for many low to modest income households. However, available evidence is to the contrary. According to the Paraprofessional Healthcare Institute, institutionalization rates are not higher in states that provide home care workers with minimum wage and overtime. In California, since the passage of AB 241, there is no evidence that institutionalization rates have increased. Furthermore, in the first comprehensive study of California’s employers, the UCLA Labor Center found that only eight percent (8%) of domestic service employers hire for overtime.

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Photo Courtesy of the CA Domestic Workers Coalition

Based on our on-the ground experience, the Clinic has seen a positive impact on both workers and consumers as a result of the new overtime rules. Many agencies and household employers have genuinely complied with the mandate of AB 241. In some cases, workers have seen a reduction in their hours but an increase in their pay, as their employers have eliminated a flat daily or weekly rate. AB 241 has also addressed the most egregious cases, where a single worker works 24/7 shift. These shifts, not only result in significant wage and hour violations, but also detrimentally impact the health of the worker and the quality of care for the consumer. As a result of AB 241, these employers have re-evaluated their shift scheduling and have moved away from 24-hour shift scheduling. With the passage of SB 1015, domestic workers and employers will have clear standards that provide clarity and fosters a stable workforce.

Today’s domestic workers are staffed by trained professionals. These workers are their families’ breadwinners. Making permanent overtime rights for these workers is an important first step in valuing their labor as real work, and recognizing the dignity of those who care for our loved ones.

Hina Shah is an Associate Professor of Law and Director of the Women’s Employment Rights Clinic at Golden Gate University School of Law.

“Yes Means Yes” Bill Fails to Adequately Address Link Between Alcohol and Sexual Assault

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Much talk has surrounded California’s “Yes Means Yes” bill. SB 967 has been hailed a major shift in the way colleges will approach sexual assault by instituting an affirmative consent standard. Authored by Senator Kevin de Leon, SB 967 was signed by Governor Jerry Brown on September 28, 2014. While the “Yes Means Yes” bill did not go unchallenged by Republicans, it was unanimously put forward. Despite the unanimity, many have criticized the bill. Critiques have questioned a number of aspects of the bill, first and foremost it has been labeled as ambiguous, and many critics have alluded to possible negative consequences of the bill.

The first question is what changes will the bill actually put forth compared to how the law works now? Much attention has been given to the affirmative consent standard that the bill outlines. Specifically the bill defines consent as, “affirmative, conscious, and voluntary agreement to engage in sexual activity.” Furthermore, “[a]ffirmative consent must be ongoing throughout a sexual activity and can be revoked at any time.” Lack of protest or resistance is not sufficient to assume consent, nor is evidence of a dating relationship or past sexual history between the persons engaged in sexual activity.

Ideally, under this proposed paradigm shift, the person initiating sexual contact would have to obtain consent, as opposed to the old standard, which put the burden on the person being pursued to object or forcibly resist. Consequently, this shift in responsibility is expected to diminish victim blaming or questioning for failing to say no or actively resist. Some universities in California and throughout the nation have already adopted this standard of consent. While the motivation for the “Yes Means Yes” bill is admirable, it does not resolve the ‘he said she said’ scenario presented under ‘no means no’ ideology.

What is really missing from the bill is an effective procedure that addresses the use of alcohol and drugs. There should be a larger emphasis on the role of drugs and alcohol with respect to a student’s ability to provide consent to sexual contact or intercourse of any sort. The Bill states in relevant part:

(2) A policy that, in the evaluation of complaints in any disciplinary process, it shall not be a valid excuse to alleged lack of affirmative consent that the accused believed that the complainant consented to the sexual activity under either of the following circumstances:

(A) The accused’s belief in affirmative consent arose from the intoxication or recklessness of the accused.

(B) The accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain whether the complainant affirmatively consented.

(3) A policy that the standard used in determining whether the elements of the complaint against the accused have been demonstrated is the preponderance of the evidence.

(4) A policy that, in the evaluation of complaints in the disciplinary process, it shall not be a valid excuse that the accused believed that the complainant affirmatively consented to the sexual activity if the accused knew or reasonably should have known that the complainant was unable to consent to the sexual activity under any of the following circumstances:

(A) The complainant was asleep or unconscious.

(B) The complainant was incapacitated due to the influence of drugs, alcohol, or medication, so that the complainant could not understand the fact, nature, or extent of the sexual activity.

(C) The complainant was unable to communicate due to a mental or physical condition.

In essence the bill attempts to preclude the accused from using their intoxicated status as a defense, or to claim that the victim failed to protest or resist. Again, this represents a shift in responsibility from the victim to the accused in obtaining consent and ensuring that its validity. The validity of consent where drugs and alcohol are involved remains ambiguous.

College students are inundated with drugs, alcohol, and a new sense of freedom without any parental supervision. College is often the highlight of a person’s youth, the glory days; but for nearly one in every four women, college is a period of time in which they were sexually assaulted. In many of these cases, one or both parties were under the influence of drugs or alcohol. In fact, according to statistics, ninety percent of sexual assaults on college campuses involve alcohol.

The all too common sexual assault between college students is reflected in an incident that occurred between two freshman students at Occidental University. Referred to only as John and Jane Does, the initial contact between the students appears to have been consensual. What is in question however, is the nature of Jane Doe’s consent: whether the woman—who was intoxicated to the point of blacking out—had the ability to legitimately agree to have sex at all. Also in question is whether John Doe, also extremely drunk, violated the school’s policy by failing to recognize the woman’s consent was essentially meaningless as it was given while she was incapacitated.

Many male and female students engage in sexual activity after using drugs and alcohol. Males typically use alcohol as a way to gain confidence to initiate a “hook-up.” On the other hand, some female students rely on alcohol as an excuse to engage in sexual intercourse and avoid being labeled negatively. But too much alcohol can sometimes be a recipe for unintended consequences.

It is a reality that sex and alcohol go together. Unfortunately, so too does alcohol and sexual assault and rape, particularly on college campuses where the environment fuels a culture of sex, drugs, and alcohol. It is without question that alcohol impairs a person’s judgment. Alcohol affects a person’s conscious state of mind, lowering inhibitions, making it hard to concentrate, and making a person more impulsive. These side effects of alcohol cannot always be observed, especially if the observer is also similarly impaired. Symptoms of alcohol use such as slurred speech, loss of coordination, vomiting, and loss of consciousness are more obvious, but these only manifest after extreme alcohol consumption. The involvement of drugs and alcohol in sexual assaults on college campuses is all too common. Consequently, the proposed law fails to adequately address a student’s ability to give consent if under the influence of drugs or alcohol.

The bill merely states that, where the, “complainant was incapacitated due to the influence of drugs, alcohol….” The term incapacitated is ambiguous. Is it physically or mentally incapacitated or both? What does it mean to be incapacitated? The bill does not say. On its face the term incapacitated goes too far. An individual is not able to operate a motor vehicle if they are determined to be under the influence of alcohol. This seems a much lower standard than incapacitated.

While the ‘Yes Means Yes’ bill does address some major issues and will hopefully check victim blaming and put the responsibility on individuals to obtain consent throughout a sexual encounter, the requirement of obtaining affirmative consent does not necessarily change anything in an accusation of rape or sexual assault. By far the biggest problem with the bill is that it fails to address the biggest issue of sexual assault and rape on college campuses, the involvement of alcohol.

A CC-Pain: Abuse of C.C.P. § 170.6 Peremptory Challenges

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The ability to disqualify a judge from presiding over your case is an extraordinary right.  In California, there is more than one way to exercise that right, but the most controversial is C.C.P. § 170.6.  Added to the California Code of Civil Procedure in 1957, the legislative intent behind § 170.6 was to enhance public confidence in the judicial system by giving attorneys the power to disqualify a judge for prejudice absent any factual averments.  Although the statute has served its intended propose, its shortcomings have also allowed some attorneys to abuse it with impunity.

Under the statute, the only requirement for disqualification is for an attorney to have a good faith belief that the judge assigned to his or her case is prejudiced against the attorney, the attorney’s firm, or the attorney’s client.  The thinking at the time of enactment was that if an attorney ever faced a situation where he or she believed the assigned judge would not give the attorney a fair chance at trial, he or she could disqualify the judge without having to provide specific accusations.  The absence of accusations allows disqualification to occur without offending the judge being challenged.  It also avoids any hearing where the judge’s dirty laundry could potentially be aired.  All the moving party must do for the challenge to be granted is to timely submit, in good faith, a statement or an affidavit that asserts the judge is prejudiced.

The statute’s reliance on an attorney’s good faith belief about a judge’s prejudice and its potential for abuse have raised alarm bells in the past.  The constitutionality of § 170.6 was challenged and upheld in Johnson v. Superior Court and Solberg v. Superior Court.  The California Supreme Court reasoned in both cases that because of the inherent difficulty of proving prejudice, an attorney’s good faith accusations, even absent factual averments, were permissible.  It also recognized that the importance of avoiding even the suspicion of judicial partiality was paramount.  The Court further asserted that the allegations of abuse of the statute were no reason to find it unconstitutional, and moreover, the risk of abuse was minimized by the safeguard mechanism requiring attorneys to “show good faith by declaring under oath that the judge is prejudiced.”

Though I’m sure everyone can agree that the judiciary should do its utmost to preserve its reputation of impartiality, I don’t think that the § 170.6 safeguard does nearly enough to prevent abuse.  The lack of an evidentiary burden makes it easy for attorneys to assert the challenge, but it also makes it just as easy for them to abuse it.  If an attorney isn’t prepared for trial, wants to delay trial for strategic purposes, or wants to judge shop, § 170.6 can be used without question as long as it is asserted in a timely fashion.  The rule’s reliance on the good faith of attorneys makes it an effective tool in any litigator’s arsenal, but it comes at the cost of allowing rampant and unchecked exploitation.

One can certainly argue that § 170.6 does have a sufficient deterrent mechanism because misusing it requires attorneys to perjure themselves.  This view, however, fails to consider that because § 170.6 requires no factual averments, an attorney who perjures himself or herself to disqualify a judge has essentially zero chance of getting caught.  If attorneys don’t face any real threat of disciplinary action for abusing § 170.6, the temptation to misuse it may far outweigh the guilt or shame he or she may feel for committing perjury.

The most serious side effect of the statute has inevitably been that judges who are completely qualified to preside over their cases, and who are not biased, are benched at the whim of the litigants in front of them.  This was the exact reason § 170.6’s predecessor, C.C.P. § 170.5, was found unconstitutional.

Section 170.5 was enacted in 1937 for much the same reasons as § 170.6.  However, it differed from § 170.6 because it did not require the filing of an affidavit, and in criminal cases could only be asserted by the defense.  In 1938, the statute was found to be unconstitutional because it permitted private citizens to unilaterally interfere with the power of the judicial branch to appoint qualified judges to preside over cases.  The California Supreme Court stated, “to put in the hands of a litigant uncontrolled power to dislodge without reason or for an undisclosed reason, an admittedly qualified judge from the trial of a case in which forsooth the only real objection to him might be that he would be fair and impartial in the trial of the case would be to characterize the statute not as a regulation but as a concealed weapon to be used to the manifest detriment of the proper conduct of the judicial department.”

So how is § 170.6 any different?  It isn’t really different at all, apart from the requirement of an affidavit.  In fact, many attorneys and judges will readily admit that the most frequent reasons for using § 170.6 are indeed prohibited by the statute.  One court went so far as to state, “it is universally understood that the challenge is used mostly for purposes unrelated to bias or prejudice of the judge.”  This evidence of universal acceptance of off-label use of the statute perfectly illustrates the ineffectiveness of the abuse deterrent mechanism.

What then can be done to preserve for litigants the right to disqualify a judge whom they truly believe is biased, while at the same time sufficiently deter abuse of the statute?  We simply need to start keeping score.

The recording of every challenge and the review of challenges by an enforcement body would do much more to deter abuse than the current reliance on good faith.  Just like Santa’s naughty or nice list, when you know somebody is keeping score you are much less likely to break the rules.

First, there needs to be a database that records peremptory challenges.  Currently there is no way to analyze the use of the statute, making it essentially impossible to find instances of abuse outside of anecdotal evidence.  Having a database that records which attorney or law firm brings the challenge, and which judge is disqualified, is essential to begin reigning in abuse.  Each court in California could easily submit the name of the attorney, law firm, and challenged judge to a centralized database.  This would put little burden on the courts and help them greatly with backlogs caused by challenges.

Second, there needs to be a third-party monitoring body.  This entity could analyze the database for patterns of abuse and investigate suspicious challenges.  The California Bar could carry out this task, which would be in accord with its role in ensuring attorneys meet their professional obligations.  When an attorney or law firm is found to have a suspicious assortment of challenges to multiple judges, an analyst could flag the attorney or law firm and further investigate to determine if § 170.6 has been abused.

As the legal profession adapts to the new technologies of the twenty-first century, it should not hesitate to use these new tools to help correct the imperfections of the past.  C.C.P. § 170.6 is one of many rules that could use database analytics to cure its shortcomings, and doing so would be a step in the right direction.

Taking a Second Look at Arrestee DNA in California

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Last term, the U.S. Supreme Court decided in Maryland v. King that Maryland could take suspects’ DNA as a matter of course following an arrest, without any particular reason for doing so.  After the King decision, appellants in the Ninth Circuit case Haskell v. Harris petitioned for (and were granted) a rehearing.  Haskell called into question the constitutionality of California’s own DNA testing law.  In fact, Justice Kennedy cribbed from Judge Milan Smith’s opinion in Haskell when concluding that there was no constitutional violation.  So what is the fate of California’s statute?

If Maryland’s statute represents the outer boundaries of constitutional acceptability, California’s law is woefully deficient.  In Maryland, a suspect’s DNA is tested after he is arrested for a violent crime (murder, rape, first-degree assault, kidnapping, arson, etc.) or burglary.  The DNA sample is not processed and placed in the state database until the arrestee is arraigned on the charges.  If a court does not hold the arrestee over on the charges, the DNA sample is automatically destroyed.  The sample is also automatically destroyed if the charges do not result in a conviction, a conviction is subsequently reversed, or the defendant is granted an unconditional pardon.

California’s statute tips the scales of DNA collection in favor of the state.  In California, a suspect’s DNA is taken and processed as soon as he is arrested on any felony charge.  The felony determination — and thus the determination of whether there will be DNA taken — is made by the arresting officer at the time the suspect is arrested.  At least in Maryland, as Justice Kennedy pointed out, a magistrate has decided there is probable cause for the charges.

And unlike Maryland’s statute, in California the onus rests almost entirely with the suspect to have his DNA removed from the system; even then, the removal is characterized as a “request.”  If the suspect is found not guilty, the case has been dismissed or the judgment reversed, no charges were filed, or the suspect is “factually innocent,” then the suspect must petition the trial court, in writing, to destroy the sample and remove it from the database.  If charges were never filed, the suspect must wait until the statute of limitations for filing the charges expires.  In any event, the court has the discretion to grant or deny the request and the Department of Justice can object to the request.  Oh, and by the way, the judge’s order is not appealable.

Justice Kennedy hung his hat on “identification” as the compelling state interest in King — as in, identifying the suspect when he gets to the police station (this is how he can characterize the DNA swab as an administrative activity incident to the booking process).  But as Justice Scalia reminded us in his dissent, Maryland’s law expressly prohibits testing the DNA until after the arraignment.  So how did Mr. King get identified?  Either his identification documents, his own admission, or his fingerprints.

Ah, fingerprints!  Both Justice Kennedy and Judge Smith pointed out the ready analogy between DNA and fingerprints.  But neither quite addressed the elephant in the room: if fingerprints are so good at identifying people when they get down to the police station (and they are), why do police need to take DNA?  Both judges grappled with that question by concluding that a suspect’s criminal past — both known and unknown — is part of his “identity,” and police should be able to find that out by comparing the suspect’s DNA to samples of unknown suspects’ DNA.

If this sounds less and less like an administrative or special needs search and a lot more like investigation, you’re right.  And Justice Scalia is your champion.  Dissenting in King, he wrote, “It is obvious that no such noninvestigative motive exists in this case.  The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous.”

Thanks, however, to Justice Kennedy’s framing the issue as a question of identification, the fact that DNA in California can be tested immediately cuts in favor of the state.  Judge Smith observed that DNA is tested, on average, in 30 days, but also pointed out that it can be tested in as few as five.  But even this doesn’t make sense: arraignment must happen in California no more than 48 hours after the arrest, excluding Sundays and holidays.  Hopefully, by then, the court will know who the suspect is — and all without involving DNA.  So where does that leave even the tenuous “identification” argument?  Ideally on the side of the road where it belongs, but thanks to an expansive definition of “identification” heartily endorsed by Justice Kennedy, the Ninth Circuit seems poised once again to conclude that California’s DNA testing statute doesn’t run afoul of the Constitution.

Talk is Cheap, But Texting While Driving Shouldn’t Be

Texting

Why do so many people still text while driving?

According to the U.S. Government, texting while driving is the most dangerous distraction for a driver because it requires visual, manual, and cognitive attention.  In a 2009 Virginia Tech Transportation Institute (VTTI) study sponsored by the U.S. Department of Transportation, VTTI reported that drivers who texted were 23.2 times more likely to be involved in “safety-critical events,” defined as crashes, near-crashes, crash-relevant conflicts, and unintentional lane deviations.

On January 1, 2009, the Wireless Communications Device Law came into effect in California, making it an infraction to write, send, or read text messages while driving.  While California should be applauded for taking the issue seriously and creating laws to discourage drivers from texting, the fines associated with violating the law are relatively low compared to the potential costs to life in the event of a crash.  The California Department of Motor Vehicles website lists a $20 base fine for the first offense and a $50 base fine for subsequent violations (though the base fine can more than triple when penalties are attached).

These fines and penalties are simply not high enough to discourage drivers from texting.  Unless larger fines and harsher penalties are imposed, drivers who text will continue to disregard the law.  Moreover, the means for detecting texting violations appear to be inadequate, leading many drivers to believe that they will get away with it.  California should increase its fines and penalties for texting while driving, but it should also find innovative ways to deal with the problem in order to send the message to drivers that they will be caught.

New York, for example, has done just that.  On September 23, 2013, New York Governor Andrew Cuomo announced the introduction of 91 “texting zones” on his state’s highways to encourage drivers to pull into a texting zone to text instead of committing the act while driving.  Nearly 300 signs were strategically placed along the highways to notify drivers of upcoming zones.

The governor also announced that due to the state police crackdown on cell phone use while driving, 365% more tickets were issued in the summer of 2013 compared to the summer of 2012.  Texting violations accounted for 5,553 of the tickets issued.  To assist in identifying texting drivers, state police used Concealed Identity Traffic Enforcement (CITE) vehicles, unmarked SUVs that have higher-than-average platforms and allow police officers to get a better view into vehicles.

New Jersey has taken a more stringent approach.  In September 2009, a driver on a rural highway was texting with a friend when he swerved into oncoming traffic and collided with a married couple on a motorcycle.  The couple each lost a leg and brought a negligence lawsuit against both the driver and the friend who had been texting him.

After settling with the driver, the couple pursued the negligence claim against the friend on appeal.  In a controversial decision, the court held that a person who texts a driver can be held liable if the person 1) knows that the recipient is driving and 2) knows that the recipient would violate the law by viewing and responding to the text.  The friend in this case was ultimately found not liable because the couple failed to prove that she knew the recipient of her text message was driving and that he would violate the law by viewing and responding to her text.

In addition, New Jersey recently increased its fines for texting while driving.  The first offense now carries a fine of up to $400, and subsequent offenses can cost a driver up to $800.  Drivers who are convicted of three or more offenses also face the possibility of a 90-day driver’s license suspension and an assessment of three motor vehicle points.  Under another new law, if a distracted driver (a driver who is texting, for example) causes an accident, the driver could face fines of up to $150,000 and up to 10 years of jail time, in addition to other criminal and civil liability.

Alaska, however, has some of the toughest anti-texting laws in the country.  According to Alaska’s Department of Public Safety website, texting while driving is a Class A misdemeanor, with penalties of up to $10,000 in fines and 1 year in prison.  Furthermore, if a texting driver injures or kills someone, the violation would constitute a felony.  The driver could face maximum penalties of between $50,000 and $250,000 in fines and between 5 and 20 years in prison.

In California’s defense, convictions for texting violations increased 47% from 2010 to 2011, from 7,924 convictions to 14,886.  But California still has a long way to go in addressing the texting-while-driving problem.  Alaska’s approach may be too extreme, but the New York and New Jersey models strike the right balance.  In particular, New York’s approach provides an ideal compromise between achieving safety on the road and offering drivers an alternate way to text on the go.  If California adopts one of these models, drivers will be more motivated to refrain from texting than they are under the current enforcement regime, resulting in a safer driving experience for all.

Sex Offender Residency Restrictions Serve No Purpose

Under Jessica’s Law, sex offenders in San Francisco are barred from residing within two thousand feet of any school or park where children regularly gather.  Due to San Francisco’s limited size and dense population, it is nearly impossible to find housing outside of this restricted zone.  Consequently, the number of homeless sex offenders living in San Francisco has surged since the implementation of the restriction.  This unintended consequence has led to multiple challenges to the restriction’s constitutionality and effectiveness.

The residency restriction is just one of many sex offender management strategies.  Electronic monitoring, public registration, and community notification provisions have also been implemented through Jessica’s Law and Megan’s Law. In addition to residency restrictions, Jessica’s Law requires sexual offenders to wear Global Positioning System (GPS) electronic monitoring devices.  Under Megan’s Law, sex offenders’ pictures, names, and addresses are made available to the public through a searchable website.  The general purpose of both of these laws is to protect society from the threat of further victimization posed by sex offenders.

Society can be protected either by diminishing the threat posed by sex offenders, or by enacting protections to neutralize the threat even though it still exists.  Sex offender rehabilitation diminishes the threat by reducing sexual recidivism, while GPS tracking and community notification neutralize the threat without diminishing it.  Using GPS electronic monitoring devices, parole agents protect the public by closely supervising sex offenders’ whereabouts.  Community notification allows the public to protect itself through awareness.  By knowing the residences of sex offenders, people are able to move if necessary.

In terms of the residency restriction, though, the text of Jessica’s Law does not specifically discuss how it will protect the public.  This is because the restriction serves no purpose.  It neither neutralizes the threat posed by sex offenders nor diminishes it, which makes it ineffective and unnecessary.

To begin with, the underlying premise of the residency restriction is flawed.  Very few sex offenders find their victims by frequenting schools or parks because most child molesters choose victims who are familiar to them.  Ninety percent of child victims know their offenders, with approximately fifty percent of the offenders being family members.  Since there is little threat of children being snatched from schools or playgrounds, there is little need to keep sex offenders from living within two thousand feet of them.  Even if there is a threat, the residency restriction still does not prevent sex offenders from travelling inside the two thousand foot restricted zone and sitting across the street from a school or park.

Instead of a residency restriction, which does not prevent access to children, GPS tracking can be relied upon to ensure sex offenders do not travel too closely to a school or park.  Monitoring the whereabouts of sex offenders is more difficult if those offenders are homeless.  Extra rules can be placed upon sex offenders with residences, such as the requirement that offenders be in their homes during certain hours of the night.  Such a restriction would be enforced using GPS tracking.  If GPS tracking is as effective as proponents claim, it can be used without the residency restrictions of Jessica’s Law.

Furthermore, it is necessary to remove the residency restriction because of its detrimental impact on the effectiveness of Megan’s Law.  Megan’s Law is designed to protect society through awareness of sex offenders’ whereabouts, but the residency restriction actually prevents the public from having this awareness and protecting itself.  It is difficult to find a list of transient sex offenders on the Megan’s Law searchable website.  Without a residence, their address information is not available on the website.  Searches by address, city, or zip code only show sex offenders for whom complete address information is available, which means transient sex offenders are not included.  Unfortunately, it is not apparent that a search by county is required to have transient offenders populate the list.  The public must either know to search by county or know the offender’s name.  Then, only the transient sex offender’s name, picture, and county are shown.  Without awareness of sex offenders’ whereabouts, the public will be uncertain if relocation is necessary.

Finally, the residency restriction provision has a negative impact on sex offender rehabilitation.  Lack of housing may be linked to problems with employment and support, but its most detrimental effect is on mental health treatment.  Since sex offenders will always have access to children, the threat they pose must be reduced through treatment, which focuses on preventing a relapse of sexual offending.  Transient sex offenders are more difficult to treat than those with permanent housing.  This idea is supported by Maslow’s hierarchy of needs, which theorizes that basic human needs like shelter must be met before people can focus on self-improvement.  Therefore, transient sex offenders will have trouble working on relapse prevention when their focus is on where to sleep each night.  Lack of treatment effectiveness prevents a reduction in the risk of sexual recidivism, which prevents the threat posed by sex offenders from being diminished.

Despite these issues, proponents of Jessica’s Law and Megan’s Law have argued that sexual recidivism has decreased and, therefore, the laws have been successful.  However, studies of the rates of sexual reoffending have produced varied findings.  Scholars even disagree about how to measure sexual recidivism.  Even if it can be proven that these laws cause a reduction in sexual reoffending, it is unclear how each of the laws’ provisions factor into the decrease.  Thus far, there have been no studies that conclusively support the claim that residency restrictions reduce sexual recidivism.

All things considered, the two thousand foot residency requirement serves no purpose.  In fact, it is detrimental to the effectiveness of Megan’s Law and the other provisions in Jessica’s Law.  The residency restriction must be repealed so that sex offenders can obtain permanent housing.  GPS electronic monitoring will ensure that sex offenders do not access schools and parks, while sex offender mental health treatment will reduce their threat to society.

Lying in the Sun

National security threats are all around us. Anything can be a threat: poor education, environmental concerns, international or domestic terrorists, cyber security—the list goes on. Energy security will continue to be a problem until actual changes are made.

It will be a long time before America is no longer dependent on oil as a fuel source. Recent efforts in reducing consumption have helped, but that conversation has been going on for far too long, and there is too much infrastructure already built around oil. The Keystone pipeline is not an answer to energy needs, nor is drilling off the Alaskan shore.

The United States might be able transition away from gasoline engines with natural gas engines, even if this means a transition period dependent on fracking. Natural gas is arguably the transitional fuel to the future. But even natural gas just delays the inevitable: natural gas provides a new infrastructure that requires constant exploration and a reduction of limited resources.

If the United States wants to develop long-term energy security, the United States must stop relying on limited resources, whether foreign or domestic, and instead develop a new infrastructure.

Solar energy provides a solution for energy security.

As a renewable energy, solar energy does not use limited resources. Utilizing solar energy also reduces the greenhouse gas emissions that create climate change, which, in the words of former California Governor Arnold Schwarzenegger in his analysis of the draft National Climate Assessment, “isn’t a distant threat.”

Rooftop solar panels can create a strong distributed generation infrastructure:

Conventionally, power plants have been large, centralized units. A new trend is developing toward distributed energy generation, which means that energy conversion units are situated close to energy consumers, and large units are substituted by smaller ones. A distributed energy system is an efficient, reliable and environmentally friendly alternative to the traditional energy system. … [A] distributed energy system is a good option with respect to sustainable development.

On the other hand, utility-scale solar panel fields damage the environment.

Incentives for rooftop solar panels already exist, such as rebates and tax credits to provide the short-term incentive to install solar panels at a reduced cost. Increased home values and net energy metering provide long-term incentives.

Incentive programs cost tax dollars; however, the legislature should be able to justify these programs because the upcoming costs of climate change are going to be enormous. Therefore, cost benefit analysis for funding such programs should find positive returns: it costs less money now to prevent greater damage later.

Headlines demonstrate how well the incentive programs are doing to promote solar energy:

These headlines demonstrate California’s efforts in pursuing the legislative goals of established in the Global Warming Solutions Act, which “which set the 2020 greenhouse gas emissions reduction goal into law.”

These headlines basically lie. The headlines distort reality and create the perception that solar panels are already everywhere when, in reality, California has very limited solar capacity. In fact, the United States as a whole is not producing nearly enough energy from the sun.

Truthful but misleading statements create complacency. In a democracy, where public opinion on a matter is important, perhaps this complacency impedes legislative incentives to truly make solar panels ubiquitous. Legislative incentives for soaring energy are important because the energy market in the United States is not a free market. In fact, oil and coal are heavily subsidized.

California has a solar capacity of approximately 1.5 gigawatts already installed; the United States as a whole has capacity of 7.2 gigawatts. In comparison, Germany has a solar capacity of approximately 30 gigawatts, yet receives “Alaska levels of sun.” Despite the “boom” in California’s clean energy, California has much to aspire to in terms of Germany’s solar power production.

In fact, Germany installed 7.6 gigawatts of solar capacity—more than the United States has total—just in 2012. Italy has more than double the solar capacity of the entire United States. Spain, with less than one-sixth the population of the United States, has a solar capacity of over 10 gigawatts.

The disparity in the solar capacities of California and Germany largely results from the numerous and complex differences in policies and markets. For instance, Germany has feed-in tariffs and subsidies. American and Californian policies, on the other hand, make the short-term cost savings of traditional energy outweigh the long-term benefits of solar panels.

California currently has programs that incentivize solar panels, such as the California Solar Initiative. With a target of not even 2 gigawatts of solar capacity by 2016, the California Solar Initiative is a feel-good-but-do-little program. For perspective, Germany’s 30 gigawatts of capacity provide only 3-10% of Germany’s energy needs.

Programs like California’s do help increase solar capacity, yet these programs perpetuate the misperception that California is an environmental leader. It is not.

The truth is, the United States is ranked fifth in the world in solar power capacity. Not only do each of the four countries with more solar capacity than the United States have fewer citizens, all four countries combined together have fewer citizens.

Simply put: more needs to be done.

Not all policies must be incentives for individuals or companies to act. Some policies could require solar investment, similar to what Lancaster, CA now requires: “almost all new homes either come equipped with solar panels or be in subdivisions that produce one kilowatt of solar energy per house.” Additionally, requiring more efficient buildings will reduce the total power needed.

The public must know that the United States is not number one in solar. Then, through legislating incentives and requirements to increase solar capacity, California and the United States can increase energy security while also helping to reduce greenhouse gas emissions.

Rational Criminal Justice

Californians are being given the chance on the upcoming ballot simultaneously to repeal the death penalty and to redirect death row expenses into police investigations. The Official Voter Guide summarizes Proposition 34:

Repeals death penalty and replaces it with life imprisonment without possibility of parole. Applies retroactively to existing death sentences. Directs $100 million to law enforcement agencies for investigations of homicide and rape cases. Fiscal Impact: Ongoing state and county criminal justice savings of about $130 million annually within a few years, which could vary by tens of millions of dollars. One-time state costs of $100 million for local law enforcement grants.

Opinions vary greatly about the death penalty: some are concerned about executing innocent but wrongly-convicted persons while others are concerned about ensuring justice (read: execution). No matter what the view point, the current system is not functioning. There are over 700 inmates sitting on death row but, since the death penalty was reinstated in California in 1978, only 13 inmates have been executed. (84 have died from natural causes).

Part of the dysfunction is in the process. Death row inmates are guaranteed the right to petition for a writ of habeas corpus, which allows challenging convictions or sentencing for reasons outside of trial error. These procedures delay the execution; the average time between sentencing and execution is over 25 years. The delays are so long that many inmates die of natural causes instead of execution. Combined, the appeals process and the delay give death row inmates a slim chance to reverse the conviction, which is a luxury non-capital inmates do not have.

Another major problem is death row prison infrastructure. In addition to the large legal expenses from the trial and appeals, death row inmates cost the state more because they are in a separate housing. As a result of the cost of this housing, and because of the duration of the process, death row inmates require millions in tax dollars.

Because of the length and cost of the death row process, the question presented on this year’s ballot essentially turns on whether Californians want to spend of money on a system that does not execute as intended or to spend money on finding violent criminals, not whether California should keep the death penalty.

Moral ideals regarding the death penalty aside, Californians concerned with justice should support redirecting expenses spent on a broken system into funding for murder and rape investigations, which will better equip police departments to find violent criminals. This funding should get more criminals off the street—some of them for life without parole—which should please all sides of the death penalty issue. Instead of spending hundreds of millions of tax dollars to house murderers for decades, California will increase murder investigation funding while still saving millions of tax dollars and providing “another death penalty” for murderers.

After all, when you go out of your way to kill someone who can no longer do harm, there’s some irrational motivation.