Legal challenges to Prop. 8

As I said in my last post, I wanted to write up a post about the theory behind the legal challenges to Prop. 8. But, I waited so long, that it's probably old news by now. The basic argument is that Prop. 8 isn't an amendment to the California Constitution, but rather a revision--because it is a change to the fundamental government structure and alters the Supreme Court's ability to interpret the Constitution. The argument/standard is obviously more involved than that, but that's the one sentence squib. Under the California Constitution, "revisions" cannot be passed except by a 2/3 vote in the State Legislature, or by calling a Constitutional Convention.

Prof. Nice--visiting ConLaw Professor at USF law--recently wrote the following op-ed piece, and she agreed to let me post it here. She goes through a short bit of history regarding same marriage rights (a short summary of the content of her speech at USF earlier this semester), and then introduces the revision v. amendment argument. Take a look, folks, if you please.

Courting Marriage Equality

Professor Julie A. Nice


What a roller coaster the courtship of marriage equality has been. The first wave of lawsuits challenging the ban on same-sex marriage in the 1970s met with little fanfare and even less success. A second wave of lawsuits over the last fifteen years has had varying success as same-sex couples ask state courts to enforce two fundamental principles underlying all state constitutions. First, the government may not interfere with individual liberty by denying fundamental rights, including the right to marry. Second, the government may not interfere with equal protection of the law by discriminating against unpopular or minority groups, including gays. In short, state constitutional protections of liberty and equality prohibit the government from denying marriage equality to same-sex couples.


The California Supreme Court recently enforced this state’s constitutional commitments of equality and liberty by invalidating the ban on same-sex marriage. The court ruled that the state constitution requires the government to accord same-sex families the equal freedom, dignity, respect, and security of civil marriage. Supporters celebrated in jubilation as pioneers Phyllis Lyon and Del Martin culminated their enduring courtship of more than fifty years to become the first of approximately 18,000 same-sex couples to legally marry in California. But on November 4th voters approved Proposition 8, seeking to add to the state constitution: “only marriage between a man and a woman is valid or recognized in California.” Because laws generally take effect only prospectively, and not retroactively, most legal scholars agree that Prop 8 only restricts the state going forward from recognizing new same-sex marriages. California nonetheless has earned the dubious distinction of becoming the first state--and thus far only state--to strip a constitutionally recognized civil right to marry from same-sex couples.


As the old saying goes, even a dog knows the difference between being tripped over and being kicked. The Prop 8 kick brought the gay and civil rights communities to their feet. Persistent protests in California have inspired hundreds of rallies nationwide. Tens of thousands of marchers are sending the message that stripping rights violates our fundamental constitutional principles.



Be assured that the courts are among those taking notice. One thing constitutional scholars know about the courts is that they don’t decide cases in a vacuum, but are deeply committed to their role as guardians of constitutional commitments within the context of society as we know it. In other words, the regular job of the courts is to decide what protections are necessary for individual liberty and equality to have meaning in today’s time. That’s what the United States Supreme Court did in 1992 when it ruled that the federal constitution prohibited Colorado from amending the state constitution to deny gays protection from discrimination because doing so would “deem a class of persons a stranger to its laws.” And it’s what the United States Supreme Court did in 2003 when it ruled that Texas could not criminalize the private sexual conduct of gays because doing so would “demean their existence.” But these federal decisions do not directly require the invalidation of Prop 8 in part because the challenge to Prop 8 is based only on the state constitution. And most likely the challengers don’t think it’s time for same-sex marriage to end up in the United States Supreme Court—at least not yet. As was the case with other civil rights movements, including the struggle to dismantle the ban on sodomy, protection of same-sex marriage will have to be earned one state at a time.


This brings us to California’s somewhat unique constitution. California’s constitution permits the use of direct democracy to allow voters to “amend” the state constitution by initiative. Before voters can “revise” the constitution, approval by either two-thirds of each house of the state legislature or a constitutional convention is required. So what’s the difference between “amending” and “revising” the state constitution? A revision changes some fundamental principle of the constitutional scheme or makes some far-reaching change in the basic governmental plan.



Prop 8 challengers argue that protections of individual liberty and equality are fundamental state constitutional principles. Prop 8 violates these fundamental principles by stripping protection of the right to marry only from same-sex couples. Prop 8 challengers also argue it is a far-reaching change of our governmental framework when voters strip the courts of their ability to decide the meaning of the state constitution. Just as Prop 115 was ruled to be a revision when it attempted to strip the courts of the ability to enforce state constitutional protections as applied to criminal defendants, Prop 8 similarly attempts to strip the courts of the ability to enforce state constitutional protections as applied to same-sex couples.


Allowing a bare majority to use the constitution to strip recognized constitutional rights would not only be unprecedented, it also would violate both the fundamental principles and the basic framework of the state constitution. To put it simply, denying same-sex marriage is something the voters can no longer do alone.

Prop. 8

I've intended to write up a post about the legal challenges to Prop 8 for some time. However, I've been dilatory for the past few weeks, and that delay will have to last at least a few more days. For now, I'll post this video of Keith Olbermann's plea against Prop 8's passage. I'm sure most of you have seen it by now. But, if not, it is entirely worth your 6+ minutes.

ACS USF Election Night Party a Huge Success!

While I'm kind of tired so won't be posting anything of substance about the election, thought I'd just put up some of the many pictures that were taken over the evening.  Thank you everyone who came out and made this event such a success!  And go Obama!  We did it!  We made history!

Fired up and Ready to Go!

Honestly, if you're reading this, you've probably voted already. But if not, please go vote.

Please Vote!

Tomorrow, November 4th, is Election Day, and the writers/creators of Citizen Kendrick would like to urge everyone to vote. Please vote. Really. Please. Vote. No matter where you stand on the issues, educate yourself about the goals and consequences, and let your voice be heard. Democracy cannot stand in the face of apathy and disinterest (if you like that hokey bit, feel free to add your own motivational turns-of-phrase in the comment section). Again, I want to stress, CK wants you to vote no matter your opinion on a certain issue. All we ask is that you educate yourself and make your choices with conviction, not out of fear or confusion.

If anyone is interested in CK's position on certain issues (I think my views represent the views of most of our writers), here's a cheat sheet to the few measures on which we've taken an overly passionate stand:

No on 4, 6, 8, and 9.

Yes on 5, 

Obama/Biden for President.

Great Read for "No on Prop 8"

Please Fight Proposition 8’s Assault On Same-Sex Marriage

(Our Executive Director, Anthony D. Romero, sent out a heartfelt letter to supporters yesterday. Below is an edited version. Originally posted on Huffington Post.)

I’m angry and heartsick about what may happen in California on November 4th.

In the most personal way possible, I’m asking you for a favor: help us ensure that gay couples all across California keep their fundamental right to marriage — the basic right to be treated just like anybody else.

I hope you will forgive the indulgence when I speak from the heart and tell you my personal story.

You see, I grew up in a loving and supportive household, where my family believed I could be anything I chose — anything except being an openly gay man. Neither of my parents finished high school, and yet, they believed I could accomplish all I set out to do as I went off to Princeton University and Stanford Law School.

They got me through the toughest of times, scrimped and saved, and always believed that failure wasn’t in the cards for me. They had more faith in me than I often had in myself. Whenever my parents visited me at Princeton, my Dad would slip a $20 bill in my pocket when my Mom wasn’t looking. I never had the courage to tell him that the $20 wouldn’t go very far towards my bills, books and tuition. But, it was his support and belief in me that sustained me more than the tens of thousands of dollars I received in scholarships.

When I finished college, they were hugely proud of my — and their — accomplishments. That was until I told them I was gay and wanted to live life as an openly gay man.

Though I always knew I was gay, I didn’t come out to them for many years, as I was afraid of losing the love and support that had allowed me to succeed against all odds. When I did tell them, they cried and even shouted. I ended up leaving their home that night to spend a sleepless night on a friend’s sofa. We were all heartbroken.

When my Mom and I spoke later, my Mom said, "But, Antonio (that’s the name she uses with me), hasn’t your life been hard enough? People will hurt you and hate you because of this." She, of course, was right — as gay and lesbian people didn’t only suffer discrimination from working-class, Puerto Rican Catholics, but from the broader society. She felt that I had escaped the public housing projects in the Bronx, only to suffer another prejudice — one that might be harder to beat — as the law wasn’t on my side. At the time, it felt like her own homophobia. Now I see there was also a mother’s love and a real desire to protect her son. She was not wrong at a very fundamental level. She knew that treating gay and lesbian people like second class citizens — people who may be worthy of “tolerance, ” as some assert, but not of equality — was and still is the last socially-acceptable prejudice.

Even before I came out to them, I struggled to accept myself as a gay man. I didn’t want to lose the love of my family, and I wanted a family of my own — however I defined it. I ultimately chose to find my own way in life as a gay man. This wasn’t as easy as it sounds even though it was the mid-1980s. I watched loved ones and friends die of AIDS. I was convinced I would never see my 40th birthday, much less find a partner whom I could marry.

As years passed, my Mom, Dad and I came to a peace, and they came to love and respect me for who I am. They even came to defend my right to live with equality and dignity — often fighting against the homophobia they heard among their family and friends and in church.

The right to be equal citizens and to marry whomever we wish — unimaginable to me when I first came out — is now ours to lose in California unless we stand up for what’s right. All of us must fight against what’s wrong. In my 43 short years of life, I have seen gay and lesbian people go from pariahs and objects of legally-sanctioned discrimination to being on the cusp of full equality. The unimaginable comes true in our America if we make it happen. But, it requires effort and struggle.

One of the things I love about the ACLU is that it’s an organization that understands we are all in this together. We recognize that injustice anywhere is a threat to justice everywhere.

Given what’s at stake in the outcome of this election, I am personally appealing to you for help to fight the forces of intolerance from carrying the day in California next Tuesday.

If you have friends and family in California, please contact them right now, and ask them to vote NO on Proposition 8. You can send them a message here.

We need to make sure people keep in mind that gay people are part of every family and every community — that like everyone else, gay people want the same rights to commit to their partners, to take care of each other and to take responsibility for each other. We shouldn’t deny that, and we shouldn’t write discrimination into any constitution in any state. Certainly, we can’t let that happen in California after the highest court in the state granted gay and lesbian people their full equality.

Unfortunately, due to a vicious, deceitful $30 million advertising blitz, the supporters of Prop 8 may be within days of taking that fundamental right away.

To stop the forces of discrimination from succeeding, we have to win over conflicted voters who aren’t sure they’re ready for gay marriage but who are also uncomfortable going into a voting booth and stripping away people’s rights. With the ACLU contributing time, energy and millions of dollars to the effort, we’re working hard to reach those key voters before next Tuesday.

If you have friends and family in California, please contact them right now, and ask them to vote NO on Proposition 8. Share this email with them. Call them. Direct them to the ACLU of Northern California’s Prop. 8 webpage for more information.

Don’t let other young people grow up to be afraid to be who they are because of the discrimination and prejudice they might face. Let them see a future that the generation before them couldn’t even dream of — a future as full and equal citizens of the greatest democracy on earth.

As Martin Luther King, Jr. reminded us, "The arc of the moral universe is long, but it bends toward justice." As we strive to defeat Prop. 8 and the injustice it represents, the ACLU is trying to make that arc a little shorter.

On behalf of my Mom and family, and on behalf of all the people who will never face legally-sanctioned discrimination, I thank you for being part of this struggle and for doing everything you can to help.

It is a privilege and honor to have you as allies in this fight for dignity and equality.

For additional information on Prop. 8 and tools for advancing LGBT equality in your community, visit www.aclu.org/getequal.  

If you've made it this far down the post, please let people to vote "no" on Prop 8.  Quite simply, it is the just, fair, equitable, and more importantly, it is the right thing to do.

One Week...

Will this be enough?  We shall see...

USF Law Moot Court Board Administers Dismal AYC Competition

The USF Law Moot Court Board runs an annual competition, Advocate of the Year (AYC), and this year they seem to truly missed the mark in running this year's program.

Advocate of the Year is an intramural appellate advocacy competition open to all USF law students who have completed 1L Spring Moot Court. Participants are presented with an issue upon which they are to research and brief the issues of the case.

After submitting briefs, competitors argue in preliminary rounds before judges. In the preliminary round, each competitor argues twice: once as petition against one opponent and once as respondent against another opponent. If you win both arguments, you advance to the second round. If you lose both arguments you are eliminated. If you lose one, but win one, your score will determine if you advance to the second round.

In the second round, the format is the same as the first, two arguments, two competitors. If one goes undefeated in the second round, regardless of how they did in the first round, they have a shot at the final round in which two competitors argue for title of Advocate of the Year.

And this final round is where the Moot Court Board has shown itself to be inept in administering this program. This year, four contestants emerged as finalist according to a flyer posted on the Moot Court bulletin board. Three of these contestants were undefeated in both rounds (say Contestant A, Contestant B, Contestant C) and the fourth lost one argument in the first round (Contestant D). Yet, in the flyer next to this posting it lists Contestant C and Contestant D as the finalists. This means that Contestant A and Contestant B were eliminated from the competition without ever losing an argument! To put it another way, a competitor who has lost an argument is jumping ahead into the final round despite the fact that there remains eligible two competitors who have not lost ANY arguments.

This policy makes no sense and is unfair to the competitors. The Moot Court Board presumes that by winning both their arguments in the second round, each candidate is equal and it would only be fair to judge them by their scores. This argument might hold some ground if each candidate remained undefeated through two rounds. But this is not the case because one of the candidates is defeated- he lost an argument in a previous round. Because he has a loss, he is therefore, not equal to the remaining three who have never lost. It therefore makes no sense that he is put into the final round.

To add further insult to injury, Contestant A actually defeated the contestant (Contestant E) who Contestant D lost to in an earlier round. By that logic, even if can be argued that Contestant A is inferior to Contestant B and Contestant C by some arbitrary measure, he should at least, at a minimum, be considered superior to Contestant D because he defeated Contestant E who was better than Contestant D. It therefore reasons that Contestant A would be better than Contestant D.  If E>D and A>E then A>D.  

Even further, the Moot Court Board seems to entirely miss the point of the competition. The point of the competition isn't to score points. The point of the competition is to see who is the best advocate by pitting advocates against each other. Scoring is merely a way to determine who did better in that argument relative to their immediate competitor- not a third party who is not arguing.

When Contestant X argues against Contestant Y in a match, their score reflects only how well Contestant X did relative to Contestant Y. Now say, in the future, Contestant X is arguing against Contestant Z. The winner of this argument should be who ever argues better relative to each other. Can Contestant X argue more persuasively than Contestant Z? It would be mind boggling to forgo competition and declare Contestant X a better arguer than Contestant Z simply because Contestant X had a better score against Contestant Y than Contestant Z did against Contestant W. The scores are apples and oranges. Indeed, it makes no sense to substitute a past score for immediate competition. This would be like forgoing the actual presidential election on November 4 and declaring Barack Obama the winner because he's leading in the polls today.

What the Moot Court Board should do is have the four competitors actually compete in an additional round. The two winners of that round should then be the finalists. If a semi final round cannot be conducted, then, as a last resort, the three competitors who have remained undefeated through out could possibly average out their total scores with the top two averages advancing. Or possibly, look for any overlap where competitors have faced the same opponents and looked to see who scored better.

It is unfortunate that instead of having a top notch competition featuring the best competitors winning and losing by their own merits, we have a substandard event in its place.  This is not due, however, to a deficit of ready, intelligent, and intense competitors. But because of a Moot Court Board that is, for lack of better words, lazy.  Instead of putting together a competition that competed all the way through- competitors advancing through head to head competition with other competitors- the Moot Court Board chose to take the easy way out and determine winners based on apples and oranges scores. It's defrauds the competitors who put so much time and energy into AYC, it cheats the school and its student body from being able to host and enjoy a strong, substantive academic competition, and it dishonors the integrity of the competition itself.

As a clarifying matter, I don't intend this critique to be a broad based assualt on the Moot Court program itself or its Case Counselers who work hard in the summer to teach 1Ls proper advoacy techniques come the spring.  Nor do I have a bias in the outcome of the competition for I did not participate.  I comment only as an observer.  Indeed, this critique is very narrowly aimed at those Moot Court members who planned, supervised, and executed this competition.   

   

While I give the greatest respect to the two competitors who are competing the finals, it appears unfortunate that their contest will be tainted with the suggestion that the best competitors might not actually be competing. I can only hope that next year's Moot Court Board cares enough about the value of the AYC competition to correct the mistakes of this year's Board.

Justice Thomas and Originalism

Found in the Wall St. Journal, an Op-Ed piece by Justice Clarence Thomas explaining his rationale for the originalist way of interpretting the Constitution- the basis for how he makes his decisions:

As important as our Constitution is, there is no one accepted way of interpreting it. Indeed, for some commentators, it seems that if they like or prefer a particular policy or conduct, then it must be constitutional; while the policies that they do not prefer or like are unconstitutional. Obviously, this approach cannot be right. But, it certainly is at the center of the process of selecting judges. It goes something like this. If a judge does not think that abortion is best as a matter of policy or personal opinion, then the thought is that he or she will find it unconstitutional; while the judge who thinks it is good policy will find it constitutional. Those who think this way often seem to believe that since this is the way they themselves think, everyone must be doing the same thing. In this sense, legal realism morphs into legal cynicism. Certainly this is no way to run a railroad, not to mention interpret the Constitution. . . .

Let me put it this way; there are really only two ways to interpret the Constitution -- try to discern as best we can what the framers intended or make it up. No matter how ingenious, imaginative or artfully put, unless interpretive methodologies are tied to the original intent of the framers, they have no more basis in the Constitution than the latest football scores. To be sure, even the most conscientious effort to adhere to the original intent of the framers of our Constitution is flawed, as all methodologies and human institutions are; but at least originalism has the advantage of being legitimate and, I might add, impartial.

Why Colin Powell Will Be Voting For Barack Obama

I couldn't have said it better myself.  

USF Basketball Begins: Season Preview

While folks partied away their Friday evenings, I chose to stick around school and attend USF Basketball's Midnight Madness.  Midnight Madness is a way for the mens and womens basketball teams to gain some campus exposure and generate some excitement. 

Well, in that regard, they failed.   

I got to the gym about 930pm.  The event started at 10pm.  They were serving hot dogs and hamburgers outisde, which was nice.  And they gave out Los Locos t-shirts to students- or pretty much anyone who asked.  Except for me of course.  The girl demanded to see my student identification after passing out a passing out a t-shirt to some middle aged guy without looking because she was too busy talking to her sororiety sister friend.  Apparently me looking her in the eye and saying, "what's the matter don't you trust I'm a student?" didn't invoke any sympathy for my plight.  She, again, looking me right back in the eye, asked for my student ID.  I gave her my ID.  

After getting my hard bargained for t-shirt, I entered the gym and took a seat.  It was about a quarter of the way full.  At 10pm, it was still less than half way full.  At that point, the women's team came out and did a little cheorgraphed dance routine to some Michael Jackson songs.  They seemed to have a good time, and it was entertaining enough.  Then they scrimmaged.  Then the men's team came out and did, pretty much, the same thing.  My thoughts were I certainly hope they play with more enthusiam than their scrimmages.

On that note, let's get to the real point of this post: USF Men's basketball.  The main star is Dior Lowhorn.  Leading the WCC in scoring last season, he averaged 20 ppg last season (and 7.4 rebounds per game) and is a pre-season all WCC conference player.  Another top player is guard Manny Quezada.  He ended the season with 14ppg and 4.6 assists per game (though an unimpressive 3.9 turnovers per game).   Even with such talent, USF will have a tough year.  They're coming off of a 10-21 season (5-9 conference).  They have a new, unproven coach in Rex Walters, who came over from undistinguished Florida Atlantic University (15-18; 8-10 in the Sun Belt Conference).  

In the pre-conference, the Dons face some tough challenges in Cal, USC, Boise St., UCSB,  and Pacific.  And it doesn't get easier during the conference.  Gonazaga, St. Mary's, and San Diego, will, in that order, once again, likely dominate the conference by a large margin.  If USF can scratch out some conference wins and top Santa Clara for fourth place, I'd consider that a very successful season. 

Overall, it's definetly a rebuilding year.  I'd say give Walters a few years to get his own recruits in and see how he does.  We should have a pretty good idea by the time conference games roll around as to his coaching ability.  I'm still guessing a 5th or 6th place finish, depending on how Pepperdine fares.     

PS:  Home games to watch for: UCSB (11/24, 7pm), San Diego (1/9, 7pm), St. Mary's (1/11, 7pm), Gonzaga (2/14, 7pm), and Santa Clara (2/21, 7pm).    I hope to be at a few of them...so, see you at War Memorial!  Until next time, Go Dons!    

Kerry Max Cook event at USF a success

This posting is somewhat overdue, since the Kerry Max Cook event was on October 2, but hopefully it is better late than never. Mr. Cook came to USF to give a presentation, and the event was co-sponsored by the American Constitution Society and the Criminal Law Society. Prof. Richard Leo was also prominently involved in enabling Mr. Cook to attend, and the Sociology department and the Leo McCarthy Center (on the undergrad campus) were very generous in providing funding for the event. In all, it seemed about 70-80 people attended (room 100 was pretty full), and I'd say 70-80 people in attendance is enough to label the event a success! Pictures can be found here, for those who are interested.

For those who were unable to attend, but are interested in Mr. Cook's story, here's the deal: Cook was arrested in 1977 for the rape and murder of a 21 year old woman he had met once, briefly, at an apartment complex pool. Cook was also 21 at the time of the murder, and was arrested based on a single fingerprint found in the victim's apartment. In total, over a dozen unique fingerprints were found in the apartment, but only one set showed a match in the law enforcement database--Cook's (Cook had a record as a minor for car theft and other joy-riding related offenses). A bloody fingerprint was also found in the apartment. That print did not match Cook's, but it did not lead to the arrest of any other suspects.

At trial, Cook was convicted based on this fingerprint (and a police investigator's assertion that he could determine the finger print was left at the time of death--however, "time stamping" a finger print is impossible); the testimony of the victim's roommate, who identified, at trial, Cook as the killer, despite initially identifying the victim's ex-boyfriend, and describing the killer as having gray hair, cut around the ears (Cook, at the time, had long brown hair, as seen in this picture--the witness explained this contradiction by claiming her memory had improved in the year before trial, despite research showing that memory is best in the immediate aftermath of an event, and does not improve overtime); the testimony of a friend who claimed to have been with Cook the night of the murder (on appeal, the Texas Court of Criminal Appeals declared this testimony prejudicial and contradictory--as another prosecution witness placed Cook in a different place at the same time--and ruled the testimony could not be read on appeal because, as a result of the testimony, Cook's conviction was obtained through fraud and in violation of the law); and the testimony of a jailhouse snitch, Edward "Shyster" Jackson, who claimed Cook had confessed to him while the two were serving time together, though prison records would later show Jackson and Cook were not housed together at the time Jackson claimed Cook confessed (Jackson later admitted he fabricated the confession in order to gain his release from prison--at the time, Jackson was serving a sentence for murder, and, after gaining release in exchange for his testimony, was arrested and convicted of two other murders).

All told, Cook was tried three times, resulting in two convictions and one hung jury. He spent 22 years in prison and 13 on Death Row--in conditions so horrendous, Texas' Death Row was later declared to violate cruel and unusual punishment. Before Cook's fourth trial, the Texas Court of Criminal Appeals ruled the prosecution could not use the prejudicial and contradictory testimony of Cook's friend. The Court's opinion also harshly criticized the conduct of the police and the prosecution, saying the investigation was intentionally misleading.

Without this prejudicial testimony, the prosecution could not place Cook near the scene of the crime at or near the time of death. Rather than dismiss the case (or try the case without the prejudicial testimony, running the "substantial risk that without the testimony . . . [Cook] would walk the streets free from this," as the prosecutor said), the prosecution offered Cook a plea to time served. Cook ultimately plead "no contest" in exchange for a sentence of time served.

Two months after Cook's plea, DNA test results of a semen stain on the victim's panties returned, showing the DNA did not match Cook's. Instead, the DNA matched the victim's ex-boyfriend--the person whom the victim's roommate initially identified as the murderer. According to the prosecution, this finding was not exculpatory. The deputy assigned to the case in advance of Cooks' fourth trial would, after the results of the DNA analysis were revealed, describe the prosecution's goal as "to ensure [Cook] got a conviction for murder that would follow him the rest of his life." This would be the same conviction the Texas Court of Criminal Appeals described as obtained through fraud and in violation of the law.

Due to his plea, Cook remains a convicted murderer under Texas law. His story has been featured in a PBS documentary, in a play entitled "The Exonerated," and in Cook's book "Chasing Justice." Cook was also called the most persecuted man in America by the Houston Chronicle. 

California is Running Out of Money Due to Global Credit Crunch

The LA Times recently ran a story that hits home exactly how the crisis on Wall St. directly hurts Main St.  In a letter to US Treasury Secretary Hank Paulson, our Governor, Arnold Schwarzenegger stated that California needs an emergency loan of $7 billion dollars in order to cover California's day to day expenses.  According to the LA Times, this means that " If the state is unable to access the cash, administration officials say, payments to schools and other government entities could quickly be suspended and state employees could be laid off."  

Why, now, is California asking for this money?  Well, California relies heavily on short term debt in order to meet its budget obligations.  Indeed, it relies on taxes, of course.  But, until money rolls in from tax season, and sales tax revenue from the holidays, it needs to float short term loans to get immediate cash.  This means that in order to raise money, California sells short term bonds to investors.  This money goes to pay salaries and fund schools.  This is a pretty standard practice for California; indeed for most businesses.  

The financial crisis we are in has caused considerable fear in the bond market- i.e. where California gets its money through short term loans.  Investors are simply unsure of the market and as a result, there is little trading, meaning there are few buyers for people wanting to sell their debt.  This means California cannot get people to buy it's loans.  When investors don't buy their loans, California doesn't receive cash.  When California doesn't receive cash, employees don't get paid.  When employees can't be paid, employees get laid off.  When employees get laid off, they can't purchase as many goods from local retailers. When local retailers lose business, they go out of business.  And so on and so on in a downward cycle.  This exact situation applies to many other employers who take out short term loans to meet payroll or need the money to add extra inventory for the Christmas season.

The Senate recently passed its rescue plan.  Let's hope that the House, which votes on their resucue plan Friday, can get it together to pass theirs.  We simply cannot afford to have states, like California, running out of money.  This, I'm sure, is in all of our interests.   

SCOTUS Case Index for Upcoming Term

Found on SCOTUS Wiki, these are the cases to be heard in October, November, and December by the US Supreme Court:

October 6 Sitting

October 6

1. Altria Group v. Good (07-562) - Preemption, "light" cigarettes
2. Locke v. Karass (07-610) - Public sector unions, agency fees
3. Vaden v. Discover Bank (07-773) - Federal jurisdiction, arbitration

October 7

1. Herring v. United States (07-513) - Fourth Amendment, police error
2. Arizona v. Gant (07-542) - Fourth Amendment, car searches
3. Kennedy v. Plan Adm. for Dupont Savings (07-636) - ERISA, divorced spouses

October 8

1. Winter, et al. v. Natural Resources Defense Council, Inc., et al. (07-1239) - Navy sonar, separation of powers
2. Crawford v. Metropolitan Government of Nashville (06-1595) - Title VII, retaliation
3. Summers, et al. v. Earth Island Institute, et al. (07-463) - Environmental, justiciability

October 13 - Legal Holiday

October 14

1. Bartlett v. Strickland (07-689) - Voting Rights Act, minority districts
2. Pearson v. Callahan (07-751) - 4th Amendment, qualified immunity
3. Oregon v. Ice (07-901) - Sixth Amendment, consecutive sentences

October 15

1. Waddington v. Sarausad (07-772) - Habeas, jury instructions
2. Chrones v. Pulido (07-544) - Habeas, jury instructions

November 3 Sitting

November 3

1. Wyeth v. Levine (06-1249) - Preemption, drug labels
2. Ysursa v. Pocatello Education Association (07-869) - First Amendment, payroll deductions
3. Carcieri v. Kempthorne (07-526) - Indian Law, federal-state power

November 4

1. FCC v. Fox Television Stations (07-582) - Administrative law, "fleeting expletives"
2. United States v. Eurodif (07-1059) - Anti-Dumping laws, uranium enrichment
3. Jimenez v. Quarterman (07-6984) - Habeas, statute of limitations

November 5

1. Negusie v. Mukasey (07-499) - Asylum, persecutor bar
2. Van de Kamp v. Goldstein (07-854) - Prosecutorial immunity, wrongful convictions

November 10

1. Chambers v. United States (06-11206) - Armed Career Criminal Act, enhanced sentencing
2. United States v. Hayes (07-608) - Criminal, "domestic violence"
3. Melendez-Diaz v. Massachusetts (07-591) - Confrontation Clause, forensic analysts

November 11 - Legal Holiday

November 12

1. Pleasant Grove City, UT v. Summum (07-665) - First Amendment, public monuments
2. Bell v. Kelly (07-1223) - Habeas, ineffective assistance of counsel

December 1 Sitting

December 1

1. Kansas v. Colorado (105, Orig.) - Arkansas River
2. 14 Penn Plaza LLC v. Pyett (07-581) - Arbitration, civil rights claims

December 2

1. Entergy Corp. v. EPA (07-588) and consolidated cases - Clean Water Act, cooling structures
2. Fitzgerald, et vir v. Barnstable School Committee, et al. (07-1125) - Sex discrimination, Title IX

December 3

1. Philip Morris USA, Inc. v. Williams (07-1216) - Punitive damages, state bars
2. Haywood v. Drown (07-10374) - State court jurisdiction, federal constitutional claims

December 8

1. Peake. v. Sanders (07-1209) - Notice, veterans' claims
2. Pacific Bell Telephone Co.,dba AT&T California v. linkLine Communications (07-512) - Antitrust, "price squeeze" claims

December 9

1. Arizona v. Johnson (07-1122) - 4th Amendment, passenger searches
2. Cone v. Bell (07-1114) - Habeas, procedural default

December 10

1. Ashcroft, Former ATT'Y Gen. v. Iqbal (07-1015) - Prisoner abuse, liability of high-ranking officials
2. AT&T Corp. v. Hulteen (07-543) - Title VII, pregnancy leave credits

Unscheduled OT08

1. Ministry of Defense and Support for the Armed Forces of the Islamic Republic of Iran v. Elahi (07-615) - Terrorism, victim compensation
2. Harbison v. Bell (07-8521) - Clemency proceedings, appointed counsel
3. Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, et al. and Alaska v. Southeast Alaska Conservation Council, et al. (07-984/07-990) - Clean Water Act, fill permits
4. Knowles v. Mirzayance (07-1315) - Habeas, ineffective assistance of counsel
5. Boyle v. United States (07-1309) - RICO, association-in-fact
6. Kansas v. Ventris (07-1356) - Voluntary statements, absence of a knowing waiver
7. Hawaii, et al. v. Office of Hawaiian Affairs, et al. (07-1372) - State settlement with native Hawaiians
8. United States v. Navajo Nation (07-1410) - Indian coal lease amendments, breach of government fiduciary duties
9. Montejo v. Louisiana (07-1529) - Interrogation of indigent defendant in absence of attorney
10. Burlington Northern and Santa Fe Railway Company, et al. v. United States; Shell Oil Company v. United States (07-1601; 07-1607) - Environmental clean-up costs
11. Puckett v. United States (07-9712) - Breach of plea agreement claims
12. Rivera v. Illinois (07-9995) - Peremptory challenges
13. Corley v. United States (07-10441) - Suppression of a voluntary confession
14. Vermont v. Brillon (08-88) - Speedy trial

Proposition 6, some information and opinion

The November 2008 election seems certain to have record high turnout and interest, not only for the general Presidential election, but also for California's vote on Proposition 8, which would eliminate the right of same-sex couples to marry. However, it seems to me that Proposition 6, or the "Runner Initiative," is getting lost in the shuffle, so to speak. So, I wanted to post some information about Prop 6, and then offer my opinion.

The Basics: Prop 6 has been nicknamed the "Safe Neighborhoods Act," and purports to be a "comprehensive anti-gang and crime reduction measure that will bring more cops and increased safety to our streets and greater efficiency and accountability to public safety programs and agencies that spend taxpayer money." Among the elements of Prop 6 are:
1. Require all defendants 14 and older charged with gang crimes to be deemed unfit for detention in a youth center, and charged as an adult;
2. Impose 10-year penalty increase for "gang-related" crimes and for carrying loaded or concealed firearms in public, and increase penalties for use and possession for sale of methamphetamine to the same level as cocaine penalties;
3. Eliminate bail for undocumented aliens charged with "gang-related" crimes;
4. Require all occupants of public-housing to submit to yearly criminal background checks, and if any family member does not pass the check, all family members are removed from public housing;
5. Allow use of hearsay statements when a witness to a "gang-related" crime is unavailable at trial;
6. Establish a reimbursement program for providing information that leads to an arrest or conviction;
7. Provide funds for GPS tracking of gang-offenders, sex-offenders, and other violent crime offenders

Funding: Prop 6 does not include any new taxes, but instead will divert money from California's "General Fund." The funds would be diverted from K-12 Education, Higher Education, Health and Human Services, Transportation and Housing, and Environmental Protection. There will be an estimated cost of $500 million, annually, for increased funding of criminal justice programs and prison and parole operations, and a one time capital outlay of $500 million to prisons. Prop. 6 would add $365 million dollars, from the General Fund, to the already $600 million allotted to "law enforcement" in the current budget, and prohibit any money from being directly distributed to mental health, drug treatment, and other county programs providing treatment to juveniles. Incidentally, Prop. 6's largest contributor--at $1 million in donations--Henry Nicholas, was indicted for felony drug conspiracy in October 2007. On June 16, 2008, he was arraigned on a number of drug, sex, conspiracy, and securities fraud charges, with investigation revealing a "sex cave," "fully stocked warehouse of drugs," and "a brothel's worth of prostitutes on the payroll."

Opinion: I'll keep my opinion comments brief, because I'd like people to make their own conclusions, and the main impetus for this post was just raising awareness of what Prop. 6 is. The above factors 1-7 are the actual aims of the initiative, absent any partisan presentation or "spin." I think arguments can be made about the efficacy of each of those aims and whether they can be accomplished without more people getting caught up in the net than necessary. The only comments I'll add as a matter of opinion are these:
1. How on earth are we going to fund this? We are already in a complete budget crisis, and now we're going to apply $500 million in capital to our prisons. After that, we're going to spend $500 million a year to institute these programs--with absolutely no focus on deterrence or prevention, but only enforcement and punishment. And let's not forget the $365 from the current budget to be taken from funding for education and health care. The cynic inside me asks, "Won't the money funneled into the prison system go, in part, towards education and health care for prison inmates? So law abiding people in public schools and health clinics get less funding, and instead the money is diverted, by Prop. 6, to people who are put in prison based on Prop. 6. How backwards is that?"
2. While it seems clear that the spending from Prop. 6 will go entirely towards enforcement and punishment, not diversion or prevention, proponents of the initiative will argue that it will have a deterrent effect, and there will be a residual reduction in crime. However, this initiative is aimed, principally, at youthful offenders. Kids with too little supervision at home, too much time on the streets, too little education, and too few after school and community programs. It's no surprise that kids with no supervision and no education turn to gangs and crime. So how, then, do we prevent crime amongst youth gang members by stripping funds from education and after-school programs? How do we reduce crime by throwing the family members of a criminal offender out of their public housing? Isn't it more likely we can prevent crime through more, not less, social support? By funding before and after school programs, youth activities leagues, and making sure the children and family members of offenders have a place to live so they can put their life back in order? The reality is the only way something like Prop. 6 works is if we just keep everyone in prison for the rest of their lives, even for comparatively minor offenses--a proposal I'm not sure reactionary voters would oppose, despite the aim of the penal system being the twin goals of retribution and rehabilitation. But the ironic (or sad, depending on your viewpoint) thing is that we as a society simply wind up draining our economy supporting our already bloated prison system, at the expense of our own education, our own healthcare, and programs truly aimed at crime prevention.

A lawyer I respect greatly was once asked about California's criminal laws, and he labeled California, "The harshest state in the harshest country in the Western world." An initiative like Prop. 6, labeled so enticingly as the impossible-to-vote-against "Safe Neighborhoods Act," is yet another in a long line of examples of the truth in that statement.

Awesome Kickball Game on Friday! But Not Without Controversey...

For those who weren't able to go to the BLA/SELA bbq-kickball game, you missed out on a helluv a time.  Despite being a bit overcast, some folks manned the bbq and the rest of us manned one of the five kegs.  There was a good sized turnout (we went through 4 kegs and half way through the 5th).  The turnout was actually probably a little too good, as evidence by the low scoring kickball game.  There were literally, 30 people per team in the outfield on defense.  It was ridiculous.

But of course, the festivities wasn't the highlight of the game.  A misunderstanding between two students nearly escalated into a full blown tussle thanks to the preventative efforts of some of the other students.  I don't think it's necessary to go into the specific details of what went on, but it prompted some thinking afterwards by some colleagues: if a fight had occurred, would this have been grounds for an expulsion?  And who might get expelled?  Is this even a matter for the school to get involved with?

One take is that no sanctions  should occur because the event happened off campus.  And even then, it was simply a personal dispute between two private parties that had nothing to do with the school.  As such, the school should stay out.

The other side of it argues that the Honor Code mandates the school get involved.  The Honor Code states in Section 2(b) it has jurisdiction to punish for any violation of local, state, or federal law as well as any conduct that occurs on or off the USF campus, if it bears some relation to the school.  Section 2(c) allows punishment for any conviction for a local, state, or federal law, on or off campus, if the action bears upon their fitness to practice law.  As such, Section 2(b) and 2(c) give very broad, thus giving the school pretty wide latitutd  Seeing as it's definetly a violation of law to assualt someone, the school could take jurisdiction and punish any offenders.  

This point taken to it's logical end, a person could be on summer vacation in Wasilla, Alaska, get convicted for public intoxication, and face the possibility of being expelled from law school when he gets back in the fall.  Even though the events in Wasilla have absolutely nothing to do with the school.  Does this seem right?  Anyone have any thoughts?   

ACS USF Event Gets Associated Press Coverage

Just to let readers know, the ACS USF event held the other week- attorney Dennis Edney speaking about his client, Omar Khadr, a Guantanamo Bay detainee- received coverage by the Associated Press and was run by newspapers such as the Washington Post.  Not too shabby for an event put on by a school club. 

Although our specific club, ACS USF, isn't mentioned, USF does get a shout out.  Here's an excerpt:

SAN FRANCISCO -- For six years, and for no pay, Dennis Edney has represented Omar Khadr, the next prisoner at Guantanamo Bay to face trial in a military tribunal system that the lawyer calls a sham.

So he's stepping outside the courtroom, speaking out about his client and hoping to win a victory in another venue. His goal is to sway public opinion and pressure the Canadian government into bringing his Toronto-born client home.

"I realize the only success we're going to have for Omar Khadr is a political one," Edney said in an interview with The Associated Press after addressing aspiring lawyers at the University of San Francisco this week. "So I've moved from being a lawyer to someone who goes on the lecture circuit _ all on my own cost, of course."

Hopefuly we can put on more events that raise the profile of USF Law.  Go Dons!

Treasury Bailout of Wall St. Draft Legislation

The Bush Administration has just released its proposal for Treasury authority to buy up mortgage-related assets.  It's really short, just a few pages in length.  And seems to be fairly broad.  All the Treasury has to do is report to Congress every so often and it gets authority to purchase up to $700,000,000,000 worth of bad Wall St. investments.  [Funny how just a little bit ago folks were suggesting that we should entrust these same Wall St. people to manage actively manage individual social security accounts.  Or even funnier how we can bail out Wall St. but can't bail out Medicare, or educate our children properly, or fix roads, etc...]  This will raise the national debt to $11.3 trillion.  The plan could pass as early as next week.  

For greater comparison, the NY Times stated that "A $700 billion expenditure on distressed mortgage-related assets would be roughly what the country has spent in direct costs on the Iraq war and more than the Pentagon’s total yearly budget appropriation. It represents more than $2,000 for every man, woman and child in the United States."  Sorta scary in the scope of this plan.

What I Learned From OCI.

The Fall On Campus Interview (OCI) season is wrapping up and as Assistant Director of Employer Relations, I have eaten lunch with the interviewers every day since the last week of August. During the course of making conversation, I have gleaned a few pearls of wisdoms from the employers:

1. Dress Like a Lawyer, Not an Architect. One employer commented on how he was very impressed by a male student except for his clothing. The student showed up in a dark suit, very well-tailored but had the “Miami Vice” dark shirt, dark tie, cream colored slip on loafer look going on. The partner told me he could not take the student seriously after seeing the shoes. “He looked like he was interviewing for an architecture firm, not a law firm. Tell your students to err on the side of conservatism. When in doubt, wear a white shirt, dark suit, and dark shoes.” As for the women, you can never go wrong with a skirt suit or pant suit but he begged me to tell the female students “No plunging necklines! You want to be remembered for the content of the interview, not your cleavage.” Lastly, remember you are interviewing for a summer associate position, not a barista position. Take off all piercings, nose rings and other distracting jewelry.

2. When You Are Nervous, Don’t Drink the Interviewer’s Water. Another interviewer told me he asked a student about his Moot Court brief and the student became so nervous that he reached across the table, grabbed a bottle of water and started chugging it. The problem – it was the interviewer’s water and the interviewer had already drank out of it. The lesson? It’s okay to be nervous and you can always pause to think before answering the question BUT if it’s on your resume, it’s fair game. If you cannot discuss an item on your resume in an articulate intelligent manner, then think about dropping it. The best way to prepare is to go through your resume, line by line and think about possible questions and answers to those questions. Then be ready to answer the all-important question to “Why do you want to work for us?” The answer should not be “I want to get really good experience and your firm can offer me that.” Instead, you really need to think about what that firm or employer has to offer, in the way of reputation or practice area, that makes that employer the place for you.

3. Bite the Bullet and Explain Your Grades. I have heard it from multiple large law firms – if there is a C on your transcript, you need to explain it. There have been a number of students that firms have been impressed with who are not in the Top 20% of the class. However, if the student does not address in the on-campus interview why he or she received a C, then no matter how much the interviewer liked the student, the interviewer has no ammunition to go back to the firm with when it comes to vetting the student through the hiring committee. Most employers cannot call back a student with a C on her transcript unless there’s a good explanation for that C. When a student did explain his C, this is what I heard from the partner who interviewed him, “I was so impressed when Mr. B explained his grades. He took it head-on and did not shy away. Now I actually have something to argue on his behalf when I go up in front of the hiring committee. Because Mr. B was a great candidate all around, except for those two C’s on his transcript. I definitely want to call him back.” Other students who I have counseled to bring up their grades have come to my office immediately after their interviews and told me they were surprised by the results. The employers reacted in highly positive ways and one interviewer, who had been aloof throughout, suddenly took great interest, started taking notes, and asked for a writing sample and references. (On a side-note: It's the Big Firm employers that pay attention to grades, but small to mid-sized firms, along with government/public interest employers look at the whole person).

4. Answer Completely and Tell Stories. Interviewers get incredibly bored, hearing the same answer over and over again to “Why did you decide to go to law school?” Typical answer – “I’ve always wanted to go to law school, ever since I was little.” Really, since you were 3 you knew you wanted to be a lawyer? Or was it actually when you were 14 and you were taken to work by your father on “Take your Daughter to Work Day” and you realized that your father, the attorney, made an impact on people’s lives and, inspired you to do the same thing. Tell the whole story, the reason behind your drive, not the surface fluff answer that reveals nothing about you to the employer. Another pet peeve -- just repeating verbatim the job description on your resume when answering the question “Tell me about your job this summer.” If they wanted you to repeat the laundry list of tasks you did, they would have asked you to recite your resume. Instead, tell them a story – what did you learn, what exciting issue did you work on, what problem you had to overcome. Tell a story and the employer will have something to write down on her evaluation form. Entertain them and the interviewers will remember you and your chances for a call-back will increase.

5. Don’t Listen to the Rumor Mill - OCI is a No-Brainer – Apply. All the on campus employers – law firms, government agencies, district attorneys and public defenders offices noticed it: A significant drop in the number of OCI applications this year. “Why is this?” They keep asking us, the Office of Career Planning. Several top firms are so distressed by the drop that they want to come on campus as speakers, to host events or attend mixers, anything that will increase their visibility on campus so they can recruit from a larger pool of talent. Other firms were disappointed and expressed it in such a way that we are afraid the low numbers may mean that firm may not be coming back to USF to recruit next year. So what happened? We took an informal poll of students and found that a number of viable candidates listened to the Rumor Mill. A 2L who is in the Top 10% of the class was not going to apply to OCI because she heard very few people actually get their jobs through OCI. If she hadn’t run into her 3L mentor who screamed bloody murder to make her apply, she would have missed out. As it stands now, she’s an OCI favorite and has a number of call-backs. Another 2L also listened to the Rumor Mill, and despite the fact that she had received a prestigious paid summer position through a competitive scholarship process, did not apply to OCI. I was shocked when I learned this because here’s the deal, if you don’t apply through OCI, then yes, you won’t get your job that way. Don’t take yourself out of the running by being to afraid of rejection to apply. When employers, who specifically come to campus because they want USF students, find that very few have applied, do you think they will want to come back? And how do you think you will find your job when you’ve missed out on one of the easiest opportunities presented in your lifetime? There is NO OCI when you graduate. There are very few opportunities for 3L’s in OCI. Your 2L year is the year when you need to find that summer job to help leverage you for your post-graduate position. You need to use all the venues available to you in your job search. OCI is just one of the ways. But if you don’t do OCI, then the path to finding a job becomes that much harder. Now you have to find the law firms and send each and every single one a cover letter and resume. And guess what, that firm may not be so friendly or accepting of USF students. Thus, when presented with a no-brainer opportunity such as OCI – take it. Even if the only lesson you learn is that you don’t want to work for a big firm that is still a valuable lesson.

It has been an interesting experience this Fall, talking to all the employers. Most interviewers are USF alums. Many are quite candid about their hiring needs and requirements and all are enthusiastic about USF students and want more USF representation at their firms. Let's not let them down -- if you are a 1L even considering working for a law firm, then do OCI next year.

Marina Sarmiento Feehan, JD is the Assistant Director of Employer Relations for the Office of Career Planning at USF School of Law.