Tag: hit&run

Billionaire Tom Steyer—whose name recognition of late centers around his campaign to impeach President Donald Trump—officially entered the presidential race on Tuesday, vowing to confront corporations and lessen their sway over the political system.

“I think people believe that the corporations have bought the democracy. That the politicians don’t care about them or respect them,” he said in a video announcement. “Really what we’re trying to do is make democracy work by pushing power down to the people.”

Although Steyer has not yet outlined a policy platform, he has been an ardent climate change activist, as well as a vocal opponent of Trump’s, launching a $10 million national advertisement to unseat the president. “He’s brought us to the brink of nuclear war, obstructed justice at the FBI, and in direct violation of the U.S. Constitution, he’s taken money from foreign governments, and threatened to shut down news organizations that report the truth,” Steyer says in the ad.

The former hedge fund manager brands himself as another American citizen. I’m just like you, he implores. But while his impeachment rhetoric and anti-corporatist positioning will surely resonate among many Democrats, Steyer will likely have to confront some cognitive dissonance as a billionaire in a crowded field of populist contenders, some of whom say that such personal wealth should not even exist.

That’s certainly not lost on the newly minted candidate, who has a net worth of $1.6 billion and has already pledged to spend $100 million on his primary campaign. “I’m Tom Steyer, and like you, I’m a citizen who knows it’s up to us to do something,” he says in his push for impeachment—an apparent attempt to convince listeners that his fortune doesn’t alienate him from the Little Guy.

Wealth aside, his business ventures in and of themselves are expected to draw scrutiny now that he’s thrown his hat into the ring. His successful private sector run at Farallon Capital Management included hefty investments in oil, private prisons, and subprime lending—all of which are industries that progressives are increasingly critical of as the party moves farther left. He also has little traction with the establishment. House Speaker Nancy Pelosi (D–Calif.) reportedly expressed her displeasure to Steyer over his impeachment blitz, calling it a “distraction” in 2017 when she was still the minority leader.

Leveraging the elephant in the room, the Republican National Committee came out swinging. “After a false start, left-wing extremist Tom Steyer has finally formalized his self-promotion tour under the guise of a presidential campaign,” RNC spokesman Steve Guest said in a statement. “The only thing Steyer’s campaign will do is light more of his money on fire as he joins the rest of the 2020 Democrat field in pushing policies that are way outside the mainstream.”

Steyer has been a prolific donor to liberal causes as well as a grassroots mobilizer, founding NextGen America, which advocates for increased youth voter turnout. He will resign from his leadership role at that group, as well as at Need to Impeach, although he said he will donate more than $50 million to ensure their continued sucess through 2020.

In order to make it to the Democratic debate stage later this month, he will need to amass 65,000 individual donors by July 16, as a 1 percent polling margin this late in the game is likely an impossible feat.

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Jon Goldsmith of Red Oak, Iowa, was charged with third-degree harassment after calling Adams County Sheriff’s Deputy Cory Dorsey, among other things, a “stupid sum bitch” on Facebook. Nearly a year after the incident, Goldsmith has won his free speech lawsuit against the sheriff’s office.

As Reason previously reported:

According to the lawsuit, Jon Goldsmith of Red Oak witnessed Adams County Sheriff’s Deputy Cory Dorsey stop a motorist and conduct a drug dog search on a vehicle at a festival in July 2018. No drugs were found. Goldsmith also said he saw Dorsey body-slam another man. When Goldsmith later saw the man’s mugshot on Facebook, he shared the picture in a post criticizing Dorsey.

Goldsmith called Dorsey out by name and accused him of being “butthurt” that the drug search was fruitless. He also called him a “stupid sum bitch” and offered to hire Dorsey to walk his dog and “pick up his shit” if he were fired over the incident.

A few weeks later, Goldsmith was accused of writing “a threatening and vulgar statement about Cory Dorsey on Facebook” by an affidavit. Sergeant Paul Hogan, Dorsey’s supervisor, had filed charges of third-degree harassment against Goldsmith on behalf of his subordinate.

The charges were short-lived after Goldsmith’s attorney managed to get them dropped for violating the First Amendment. A year later, the American Civil Liberties Union (ACLU) filed suit on his behalf against the county, Dorsey, and Hogan, in the U.S. District Court for the Southern District of Iowa.

Goldsmith won his case, according to a Monday press release.

The Adams County Sheriff’s office will pay Goldsmith $10,000 in damages, which includes the cost of the lawyer he hired to defend himself in court. A judge also ordered the deputies to stop charging civilians for criticizing its law enforcement, as they’ve done at least two other times.

Officers will be receiving ACLU-approved training on free speech and implementing an ACLU-approved social media policy.

“As the Court’s injunction today confirms, people have a constitutional free speech right to criticize their government. Police are not allowed to charge people with crimes because they annoy the police or say things the police disagree with—on social media like Facebook, or otherwise. There is no exception because someone expresses anger in inartful ways, causes offense, or uses curse words,” said Rita Bettis Austen, the ACLU of Iowa’s legal director.

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Sen. Kamala Harris (D–Calif.) is out with a new plan to close the gaps in wealth and homeownership between white and minority Americans by subsidizing the down payments of homebuyers living in poorer, historically segregated neighborhoods.

“A typical black family has just $10 of wealth for every $100 held by a white family,” Harris said during a Saturday speech announcing her new policy, according to Politico. “We must right that wrong and, after generations of discrimination, give black families a real shot at homeownership—historically one of the most powerful drivers of wealth in our country.”

Harris’ plan is to create a new $100 billion grant program to be run by the Department of Housing and Urban Development (HUD). This new program will give out as much as $25,000 to individuals making up to $75,000, and families making up to $125,000, which can be used to defray the costs of down payments on homes worth up to $300,000.

Borrowers would still have to prove creditworthiness to obtain a grant, according to Harris’ website, although the specific qualifying conditions aren’t specified. These grants would only be available to people who have lived in a historically “redlined” community—one that remains low-income—for more than 10 years.

Redlining refers to the federal government’s old practice of refusing to guarantee mortgages in predominately black neighborhoods, effectively walling off the people who lived there from New Deal and post-war federal homeownership subsidies.

Racially segregating these subsidies allowed white homeowners to build equity while depriving black families of the same opportunity.

“Although average African-American family incomes today are about 60 percent of average white family incomes, average African-American household wealth is only about 10 percent of average white household wealth. This enormous disparity is almost entirely the result of unconstitutional federal housing policy in the last century, which explains a good part of the racial inequality that we see all around us,” wrote Richard Rothstein, author of the Color of Law (a history of these discriminatory housing policies) for Reason in February.

Harris’ down payment subsidies are intended to right the wrongs of this policy. Goosing homeownership rates for black and Hispanic families, she claims, will help these same families build wealth.

But by trying to expand homeownership as a means of helping low-income earners build wealth, Harris is doubling down on one of the core contradictions of U.S. housing policy: that homes should be both affordable and a good investment.

A house is only a good tool for accruing wealth if it continues to increase in value over time. As Joe Cortwright at City Observatory notes “this sort of wealth building is predicated on a never-ending stream of new people who are willing and able to pay current home owners increasingly absurd amounts of money for their homes.”

This shouldn’t happen in a functioning housing market, where a mix of older homes’ physical deterioration and the construction of newer housing should see prices decline over time.

The only reason that homes have proven a good investment for many families is because of government restrictions on housing development have prevented new supply from keeping up with additional demand.

The result, in the most restrictive markets, is ever-rising home prices. Some 81 percent of homes in San Francisco are valued at more than $1 million, according to a 2018 study by real estate company Trulia.

That is good for incumbent homeowners. It’s bad for everyone else who has to pay more to purchase a home, or is priced out of the housing market altogether.  In a country where black and Hispanic people are disproportionally low-income, these restrictions on housing supply take on a racial dynamic.

Harris, rather than try to combat this affordability problem by removing restrictions on supply, wants to subsidize low-income people’s ability to get in on this racket. It’s a similar approach to her Rent Relief Act, which aims to combat increasingly unaffordable rents by subsidizing tenants’ monthly rents.

By subsidizing demand while leaving restrictions on supply in place, both of Harris’ policy proposals will likely just lead to increased prices. The value of the subsidies she’s offering will be absorbed by home sellers and landlords.

Harris’ plan to subsidize down payments has the additional downside of potentially saddling low-income homebuyers with mortgage debt they can’t afford, something we saw during the Great Recession.

Research suggests that homeownership is a particularly bad wealth creation tool for low-income buyers. They are more likely to buy at the top of the market—when prices are high but credit standards are looser—and are more easily pushed into default as a result of other financial shocks like job losses or sudden large medical bills.

If Harris wants to decrease the racial gap in homeownership rates, there’s a lot of other policies, from getting rid of single-family zoning to abolishing urban growth boundaries, she should endorse that could make that a reality without costing taxpayers a dime.

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It’s official. Formerly Republican Rep. Justin Amash took another step Monday toward finalizing his breakup with the GOP. “Today, I sent … formal notification that I am withdrawing my membership in the House Republican Conference and, consistent with House rules, resigning from the Committee on Oversight and Reform,” the Michigan representative tweeted yesterday.

As a Constitution-first, libertarian-learning anomaly in Congress from the get-go, Amash has become increasingly isolated from other Republicans in the Trump era, though for a while colleagues seemed fine with using Amash as cover to pretend they’re still all about limited government. Amash’s bridge too far for the party—now completely owned by President Donald Trump—came when he endorsed Trump’s impeachment. The once-rosy relationship between Amash and prominent Republicans devolved quickly from there.

In a July 4 op-ed, Amash officially declared his independence from the GOP. “My parents, both immigrants, were Republicans,” Amash wrote in The Washington Post. “I supported Republican candidates throughout my early adult life and then successfully ran for office as a Republican. The Republican Party, I believed, stood for limited government, economic freedom and individual liberty—principles that had made the American Dream possible for my family. In recent years, though, I’ve become disenchanted with party politics and frightened by what I see from it. The two-party system has evolved into an existential threat to American principles and institutions.”

Amash concluded by asking others to join him “in rejecting the partisan loyalties and rhetoric that divide and dehumanize us” and “to believe that we can do better than this two-party system—and to work toward it.”

In response, Republican leaders began calling for Amash to be removed from his committee position in Congress since he held that position as a Republican. Before they could do that, however, Amash took it upon himself to step down.

In his July 8 letter to House Minority Leader Kevin McCarthy and House Republican Conference Chair Liz Cheney, Amash wrote: “Please accept this letter as formal notification that I am withdrawing my membership in the House Republican Conference, effectively immediately, for the reasons outlined in [the Post] op-ed.” He added that he would also be resigning from the Committee on Oversight and Reform.

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FREE MINDS 

Another unintended consequence of Europe’s new data law. Without fail, efforts to regulate the internet in the name of safety seem to end up thwarting actual safety. The latest example: “EU Privacy Laws May Be Hampering Pursuit of Terrorists.” From Bloomberg:

When U.S., European and Canadian law enforcement officials claimed success last year in largely obliterating militant group Islamic State’s online propaganda network following a two-year operation, it was a public database of domain names that partly helped. In an effort to crack down on websites, blogs, and Twitter accounts that relayed IS propaganda whenever there was an attack, authorities used the internet’s WHOIS database to identify about 400 domains hosting the content and registered by IS supporters, resulting in a number of arrests.

But the same work would be much more difficult to do today, according to a European law enforcement official, due to Europe’s strict new data privacy rules, the General Data Protection Regulation, which entered into force last May. The WHOIS directory, which previously displayed both technical and personal data related to registered domain names, has been redacted to scrub out names, email addresses and other personal information due to Europe’s privacy law.

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FREE MARKETS

The government can’t force drug companies to disclose prices during TV ads, according to a new ruling from the U.S. District Court for the District of Columbia. The court “ruled that the Department of Health and Human Services exceeded its regulatory authority by seeking to require all drugmakers to include in their television commercials the list price of any drug that costs more than $35 a month. The rule was to take effect this week,” notes The New York Times.

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QUICK HITS

• Patriots’ owner Robert Kraft sat at the same table as President Donald Trump at a dinner for the emir of Qatar.
• “Though cable networks and social media now dominate news and advertising, [the Department of] Justice is suddenly trying to micromanage local broadcast markets,” complains the Wall Street Journal editorial board.
• A new “enormous and comprehensive” study on marijuana use during pregnancy finds “some increased risk of poor birth outcomes among the cannabis users: most notably an increased risk of premature birth, an increased risk of the infant being small for his or her gestational age, and an increased risk of transfer to the NICU,” reports The Atlantic. “These risks were large if not staggering.”
• How #MeToo left sex workers behind.
• Just make oral contraceptives available over the counter already…
• Tariffs are causing trouble for Bible-makers.
• Anti-abortion groups are fighting against in vitro fertilization benefits for veterans.

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Jim Ficken left his home to take care of his recently deceased mother’s estate. While away, the man he paid to cut his lawn died. The grass in Ficken’s yard grew more than 10 inches long.

The City of Dunedin has an ordinance against long grass. The Florida city fined Ficken $500 a day. Over time the fines added up to almost $30,000.

“I was shocked,” Ficken tells John Stossel, “It was just amazing that they would fine me that much.”

Ficken doesn’t have $30,000, and now the city wants to foreclose on his home.

Ficken’s lawyer, Ari Bargil of the Institute for Justice, points out that the city could have “hire[d] a lawn service to come out and mow the grass, and send Jim a bill for 150 bucks, but they didn’t do that.”

The reason, says Bargil, is that the city “wants the money. Code enforcement is a major cash cow for the city.”

Dunedin collected $34,000 in fines in 2007. Last year, the fines ballooned to $1.3 million. “That’s an almost 4,000 percent increase,” Bargil tells Stossel, adding the city attorney “has called their code enforcement body a ‘well-oiled machine.'”

City officials released a statement saying they “have come under recent unfair criticism.” They argue that Ficken is a “repeat offender” and has a “chronic history” of not maintaining his property.

Ficken admits he is a “bit of a slob” but adds, “I got everything taken care of when they notified me.”

Bargil argues Dunedin’s big fines violate the 8th Amendment. That protects us not only from cruel and unusual punishment but from “excessive fines.”

Stossel agrees. What’s more excessive than politicians taking your home because you didn’t cut your grass?

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The views expressed in this video are solely those of John Stossel; his independent production company, Stossel Productions; and the people he interviews. The claims and opinions set forth in the video and accompanying text are not necessarily those of Reason.

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This week I interview Glenn Reynolds, of Instapundit and the UT Knoxville law school, about his new book, The Social Media Upheaval. In a crisp 64 pages, Glenn analogizes social media to a primeval city, where new proximity produces periodic outbreaks of diseases that more isolated people never experienced; traces social media’s toxicity to the desperate pursuit of engagement; and proposes remedies both for individual users and for society as a whole.  All that plus thoughtful advice on dietary supplements and deadlifts!

In the news roundup, Matthew Heiman dissects a recent Third Circuit ruling that Amazon can be held strictly liable for products it markets for third parties. Unlike Matthew, I am largely persuaded by the court’s ruling on products liability – but Matthew and I both have doubts about its use of section 230 of the Communications Decency Act to protect Amazon from “failure to warn” liability.

Maury Shenk and Nick Weaver review the progress of the War on Facial Recognition. Opponents have rolled out the ultimate weapon of the modern left:  OMG, ICE is using it! But facial recognition is still winning the war, mostly because its opponents are peddling undifferentiated fear of a technology that’s already being used for many very different purposes, from anonymously tracking shoppers moving through a store (where the store doesn’t need to know the shoppers’ identities) to boarding planes (where the airline damn well better know the passengers’ identities, and the tech only has a couple of hundred faces to match).

Matthew and Nick consider China’s seizing and installing spyware on travelers’ devices. Turns out, China’s practice isn’t all that different from most government efforts to extract data from phones, except that the Chinese leave their code on Android devices, enabling security researchers to reverse engineer China’s deepest fears. And what does China fear most? Japanese heavy metal, apparently. Almost makes you feel a bit of empathy for Beijing…

Maury also highlights Big Tech’s concerns about the UK’s particularly aggressive proposal for an online “duty of care.”

Nick and I follow the problem of fake cancer cures being advertised on Facebook and YouTube down the usual ratholes – who should be responsible in the first place, and why does Silicon Valley think that algorithms will ever be able to discipline such content?

This Week in the US China trade war: No one seems to know exactly what President Trump’s concessions at the G-20 meeting amount to, but more and more US tech companies have decided that moving 30% of their tech sourcing out of China is a good idea no matter how the trade war ends. This war isn’t good for US companies, but it’s really not good for China’s. Which, come to think of it, is what President Trump has said from the start.

Finally, if you’re looking for tough government action against contractors with bad cybersecurity, CBP is your agency.  It has cut ties with Perceptics, the firm that was breached by Boris the Bullet-Dodger, and seems to be readying a debarment proceeding that will cut the firm off from future government contracts. Matthew and I speculate that there may be something more behind this harsh remedy – perhaps a lack of prompt contractor candor about the breach. Whatever the context, though, this proceeding is likely to set a precedent that haunts government contractors long into the future.

Download the 271st Episode (mp3).

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As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

The views expressed in this podcast are those of the speakers and do not reflect the opinions of the firm.

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Holland Kendall just wants to help homeless people see better. The Kentucky Board of Optometric Examiners and the Kentucky Board of Ophthalmic Dispensers say his philanthropy is illegal. Holland started a ministry that dispenses used eyeglasses to the poor back in 2003. A person’s vision is measured, and then a computer program determines which glasses that have been donated to the ministry have a matching prescription. But state officials sent Kendall a letter saying “It would be a violation of law if eyeglasses provided are not new, first quality and made to meet the individual’s personal prescriptions.”

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This month, many of my former students will be going through the painful drudgery of studying for and taking the bar exam, as will many other recent law school graduates. Last year, my co-blogger  Orin Kerr, wrote a post recounting his experience the California bar exam at the age of 46. The whole thing is worth reading. But I wish to highlight this part:

“I know it’s crazy stressful now. But it will be over soon, and when it is over you can forget everything you just learned.”

The reason why you can “forget everything” immediately after the exam is that very little of  the material on it actually needed to practice law. It’s a massive memorization test that functions as a barrier to entry, not a genuine test of professional competence. That strengthens the case for my  view that the bar exam should simply be abolished. But if that isn’t feasible, there is also my “modest proposal” for bar exam reform. I first wrote it up  ten years ago. But I believe it remains just as relevant today:

My general view on bar exams is that they should be abolished, or at least that you should not be required to pass one in order to practice law. If passing the exam really is an indication of superior or at least adequate legal skills, then clients will choose to hire lawyers who have passed the exam even if passage isn’t required to be a member of the bar. Even if a mandatory bar exam really is necessary, it certainly should not be administered by state bar associations, which have an obvious interest in reducing the number of people who are allowed to join the profession, so as to minimize competition for their existing members.

In this post, however, I want to suggest a more modest reform. Members of bar exam boards… and presidents and other high officials of state bar associations should be required to take and pass the bar exam every year by getting the same passing score that they require of ordinary test takers. Any who fail to pass should be immediately dismissed from their positions, and their failure publicly announced (perhaps at a special press conference by the state attorney general). And they should be barred from ever holding those positions again until—you guessed it—they take and pass the exam.

After all, if the bar exam covers material that any practicing lawyer should know, then surely the lawyers who lead the state bar and administer the bar exam system itself should be required to know it. If they don’t, how can they possibly be qualified for the offices they hold? Surely it’s no excuse to say that they knew it back when they themselves took the test, but have since forgotten. How could any client rely on a lawyer who is ignorant of basic professional knowledge, even if he may have known it years ago?

Of course, few if any bar exam officials or state bar leaders could pass the bar exam without extensive additional study (some might fail even with it). That’s because, as anyone who has taken a bar exam knows, they test knowledge of thousands of arcane legal rules that only a tiny minority of practicing lawyers ever use. This material isn’t on the exam because you can’t be a competent lawyer if you don’t know it. It’s there so as to make it more difficult to pass, thereby diminishing competition for current bar association members (the people whose representatives, not coincidentally, control the bar exam process in most states—either directly or through their lobbying efforts). Effectively, bar exams screen out potential lawyers who are bad at memorization or who don’t have the time and money to take a bar prep course or spend weeks on exam preparation.

My proposed reform wouldn’t fully solve this problem. But it could greatly diminish it. If bar exam board members and bar association leaders were required to take and pass the exam every year, they would have strong incentives to reduce the amount of petty trivia that is tested. After all, anything they include on the exam is something they themselves will have to memorize! As prominent practicing lawyers, however, they presumably are already familiar with those laws that are so basic that any attorney has to know them; by limiting the exam to those rules, they can minimize their own preparation time. In this way, the material tested on bar exams might be limited to the relatively narrow range of legal rules that the average practicing lawyer really does need to know.

Today, I would amend the proposal by adding the requirement that bar leaders must take the exam at the same location and under the same conditions as ordinary test takers. That would create an incentive to end the situation where—in many states –  exams are only administered at one or two locations that are time-consuming and expensive for test-takers to get to.

The time has come to make bar exams great again—or at least less awful than they currently are!

 

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Tomorrow at 1pm Central (2pm Eastern), the U.S. Court of Appeals for the Fifth Circuit will hear oral argument in Texas v. U.S., the latest attempt to invalidate the entire Affordable Care Act in federal court. According to a notice on the court’s website, no electronics may be used in the courtroom, but audio of the oral argument should be posted within an hour of its conclusion. (SCOTUS, take note!)

When we last checked in on the case, the Fifth Circuit had requested supplemental briefing on whether the court had appellate jurisdiction to hear the case. Among other things, the court asked the parties to address whether the House of Representatives and blue state intervenors had standing to intervene and, if not, whether that would deprive the court of jurisdiction to hear the appeal.

Last week, all of the parties filed briefs responsive to the Fifth Circuit’s request. Of note, none of the parties believe the Fifth Circuit lacks jurisdiction to hear the appeal. This is almost certainly correct. Because the United States continues to enforce the ACA (as its own brief noted), there is still a case or controversy, as there was in Windsor v. United States, in which the Obama Administration refused to defend the constitutionality of the Defense of Marriage Act, but continued to enforce the law. Several of the parties questioned whether the House of Representatives had standing to intervene (and with good reason), but this does not matter for the Fifth Circuit to have jurisdiction both because the federal government is still enforcing the ACA and because (as the plaintiff states conceded), the state intervenors almost certainly have standing as well.

As a consequence of these filings, it would be quite a surprise were the Fifth Circuit to dismiss the appeal for a lack of appellate jurisdiction. Instead, the court will likely dive into evaluating Judge O’Connor’s opinion and determining whether the plaintiff states and individuals had standing to bring their initial claim and whether the constitutional infirmity of the individual mandate requires invalidating other parts of the ACA. As my prior posts on this case (indexed below) indicate, I am doubtful the plaintiffs had standing and believe there is no basis in the law of severability—either as originally understood or as currently applied by the Supreme Court—for invalidating any ACA provision beyond the mandate itself.

Over the past few days, my co-blogger Randy Barnett has written several posts (all but one with Josh Blackman) expressing a slightly different view of the case. (See here, here, here, and here.) As I’ve already blogged on many of the issues raised in these posts, I’ll here just offer a few brief comments to supplement what I’ve blogged before.

First, on the individual mandate itself, I am not sure who Randy and Josh are addressing. I don’t think there is much debate that, under NFIB, Congress may not use its Commerce Clause and Necessary and Proper Clause powers to impose an insurance coverage mandate. Insofar as Congress wishes to induce individuals to purchase health insurance, it must use the taxing power—which it did up until 2017. As I noted in my first post on the suit, once Congress eliminate the tax penalty for failing to purchase qualifying health insurance, the mandate is “no more than a hortatory statement buried in the U.S. Code” with no legal effect.

In NFIB, Chief Justice Roberts noted that there was no consequence for failing to purchase qualifying health insurance other than the payment of a tax, and now that the tax has been eliminated, there is no consequence at all. Any suggestion that by zeroing out the tax penalty, Congress somehow resuscitated the mandate itself is absurd. Indeed, Congress lacked the power to take such a step under the reconciliation rules under which the 2017 tax reform was enacted, and it’s quite clear no Republican member of Congress saw there vote as an attempt to reimpose the mandate.

It is also a bit odd to claim, simultaneously, that under NFIB “the mandate qua mandate is gone” (as Randy correctly argued in his Florida Law Review article) and that plaintiffs still have standing to challenge the mandate in federal court. If, as Randy argued there, NFIB eliminated the mandate while upholding the penalty as a tax, there is no mandate left to challenge, and certainly no judicially cognizable injury.

Finally, I am puzzled by the repeated suggestion that those critical of Judge O’Connor’s ruling are motivated by their fondness of the ACA. As I’ve noted before, the plaintiffs’ legal theory and Judge O’Connor’s ruling has been roundly criticized across the political spectrum, including by conservative office-holders, prominent conservative and libertarian academics (including our co-blogger Ilya Somin), and those who have made it their life’s mission to see the ACA erased in its entirety. What critics of Judge O’Connor’s opinion have in common is not any love for the ACA, but a distaste for flawed and unpersuasive legal arguments.

Whereas many prominent legal thinkers on the Right expressed support for the arguments against the individual mandate in NFIB or against the lawfulness of tax credits in federal exchanges in King v. Burwell, there is a dearth of prominent voices in support of the plaintiffs’ theory here. I don’t think that’s an accident. NFIB and King were grounded in foundational aspects of conservative legal jurisprudence (the notion of limited federal power and textualist statutory interpretation, respectively). Texas v. U.S., on the other hand, is a too-clever attempt at legal jujitsu that requires discarding traditional conservative approaches to standing, statutory interpretation and severability. This is why even those who would love to find a killer argument against the ACA have refused to embrace the plaintiffs arguments, and why I think this effort will ultimately fail, whether before the Fifth Circuit or te Supreme Court.

For more on the case, here are links to my prior writings on this case, both here at the VC and (as indicated) in the New York Times.

• The Clever Red State Lawsuit Against the Individual Mandate, and the Justice Department’s Disappointing Response—6/11/18
• Strange Bedfellows Join on Severability in the Latest ACA Case—6/14/18
• How Do the States Have Standing to Challenge an Unenforced and Unenforceable Mandate?—6/15/18
• An Obamacare Case So Wrong It Has Provoked a Bipartisan Outcry (w/ Abbe Gluck), New York Times, 6/19/18
• Meanwhile, in a Texas Courtroom, Is the ACA in Trouble?—9/6/18
• BREAKING: District Court Judge in Texas Holds ACA Is Unlawful—12/14/18
• What the Lawless Obamacare Ruling Means (w/ Abbe Gluck), New York Times, 12/15/18
• Understanding Why Judge O’Connor Was Wrong to Conclude Plaintiffs Had Standing to Challenge the Penalty-Less Individual Mandate—12/21/18
• Court Stays Ruling Invalidating the Affordable Care Act Pending Appeal—12/31/18
• Justice Department Revises Its Position in Texas ACA Case—3/25/19
• Does Anyone Support DOJ’s Position in the Texas ACA Case?—3/29/19
• Another Round of Strange Bedfellows on Severability in Texas v. U.S.—4/1/19
• Fifth Circuit Adds New Wrinkle to Texas ACA Case—6/26/19
• The ACA Cases Continue, 7/1/19

University of Michigan law professor Nicholas Bagley, with whom I sparred regularly over King v. Burwell, has also compiled a list of his posts on the case at The Incidental Economist.

Links to the various legal filings in this case, and to much supporting material, may be found here.

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The Massachusetts high court has held that routine expungement of criminal records, and sealing of the relevant court files, doesn’t violate the First Amendment right of access to court records (though decades before the First Circuit had held the opposite). But expungement is still in the trial court’s discretion; Commonwealth v. Kenny, decided May 10, 2019 by the Appeals Court of Massachusetts (Judges Peter J. Rubin, Peter Sacks & Sookyoung Shin), helps illustrate that:

The defendant, formerly a teacher, was charged on June 24, 2011, with nine counts of statutory rape, and three counts of procuring alcohol for a minor. On March 26, 2014, approximately ten days before trial, the parties agreed that the Commonwealth would nol pros [i.e., drop -EV] all twelve charges in exchange for the defendant’s entering an Alford plea to two counts of unnatural and lascivious acts with a child under sixteen, one of his students. [Under an Alford plea, a defendant pleads guilty for legal purposes, but doesn’t admit factual guilt. -EV]

The matter was continued without a finding for three years. He was sentenced to a three-year term of probation with conditions that included that he complete any evaluations, programs, and therapies recommended by the probation department other than sex offender counselling; that he have no unsupervised contact with any child under the age of sixteen other than his biological children; that he not be employed or participate in any volunteer activity where he would have direct, substantial, unsupervised contact with any child under the age of sixteen; and that he not be employed as any kind of teacher.

Seven months after his Alford plea, the defendant filed a petition under G. L. c. 276, § 100C (first petition), to seal the charges that had been nol prossed, which was opposed by the Commonwealth and denied by a judge. After he successfully completed probation, he filed the instant petition to seal his entire record, which the Commonwealth again opposed. A different judge held a nonevidentiary hearing and denied that petition, holding in full, “After hearing, the petition is denied.” The defendant now appeals from the denial of his second petition.

Because all charges against him have been nol prossed or dismissed, the defendant is eligible for the discretionary sealing of his entire record under G. L. c. 276, § 100C. [Footnote: Although the docket shows that the defendant was discharged when probation terminated, it does not say explicitly that the unnatural and lascivious acts charges were dismissed. Because dismissal results when the defendant has successfully completed probation, and no party has suggested otherwise, we conclude that those charges were dismissed.] The standard that judges must employ in deciding whether to seal a defendant’s criminal record under that statute was articulated in Commonwealth v. Pon, 469 Mass. 296, 14 N.E.3d 182 (2014). The ultimate question is “whether the defendant has established good cause for sealing his or her record.”  In making this determination, judges should evaluate, at a minimum, the following factors:

“the particular disadvantages identified by the defendant arising from the availability of the criminal record; evidence of rehabilitation suggesting that the defendant could overcome these disadvantages if the record were sealed; any other evidence that sealing would alleviate the identified disadvantages; relevant circumstances of the defendant at the time of the offense that suggest a likelihood of recidivism or of success; the passage of time since the offense and since the dismissal or nolle prosequi; and the nature of and reasons for the particular disposition.”

We review the motion judge’s decision for abuse of discretion or error of law.

The defendant avers that “[s]ince [his] plea, [he has] applied to obtain many jobs, but [has] been shut out from all of them, from the menial to the professional,” has only been able to obtain sporadic work that was “not sufficient to provide a living,” and has had to “rely upon income from [his] wife as well as assistance from family members.” Now that the charges against him have been dismissed, however, most employers examining his criminal record will not be able to access the charges that were made against him. To most employers, his record will appear clear. See 803 Code Mass. Regs. § 2.05(4)(a)(1) (2017) (“Standard Access” to criminal offender record information is available to employers, and includes continuances without a finding “until they are dismissed”). The availability of his criminal record to these employers will not disadvantage the defendant, nor with respect to them, would sealing it have any effect.

The defendant argues, however, that “[p]rior to this episode, [he] was a well regarded career teacher, and had planned to continue in that vocation until retirement.” The record of the charges against him will apparently remain available to public and private schools as well as other agencies that work with children. He also avers that it would be impossible to obtain a teaching position unless these records were sealed.

We grant that it is unlikely that a prospective school employer who could access the defendant’s record would hire him, and we will assume that schools would not have access to the record if they were sealed (entities at certain “Required Access” levels may obtain even sealed records). The question before us, then, is whether the motion judge abused his discretion in declining to seal the defendant’s records in order to allow him to overcome the disadvantage of being unable to obtain a teaching position because of his guilty pleas under Alford to two counts of unnatural and lascivious acts with a child under sixteen, his own student, as well as the other charged conduct.

The Commonwealth argues, among other things, that, since the defendant pleaded guilty to these charges, public safety requires that the record not be sealed. It argues that the disadvantages imposed by the availability of his record to schools are just, that more evidence of rehabilitation was needed, and that schools and agencies that work with children should know of the charges against him.

The defendant argues that this is not the case because his was an Alford plea. He argues that he has consistently maintained that he was wrongfully accused of the crimes by the alleged victim, that he has never admitted guilt, did not commit the crimes, and has nothing to rehabilitate. He claims the victim was paid $600 by the mother of his children to make these false accusations so that the mother could gain custody of their children, and argues, also citing Pon, that “[d]efendants who were subject to wrongful accusations present the strongest case for sealing.”  He included in his motion a transcript of a telephone call and a photograph, both of which, he claims, corroborate his theory. He also states in an affidavit that, two years before he was indicted, “[a]fter a full review of the same evidence in the Probate and Family Court at a multi-day trial in June of 2009, [he] obtained custody of [his] two daughters. The judge did not credit the allegations of abuse of this neighbor child, which were a central issue in the case.”

The Commonwealth argues, citing the characterization of its representations by the judge who denied the defendant’s first petition, that it nol prossed the initial charges because the alleged victim was reluctant to testify, not because the charges were fabricated, and that the prosecutor continued to believe that the alleged victim’s allegations were credible.

The mere fact that the defendant entered an Alford plea does not mean that the judge was bound to conclude that he was innocent of the crimes to which he pleaded, rather than guilty. And unless the defendant was, in fact, innocent, on all the facts and circumstances here, the decision not to seal his records was well within the scope of the judge’s discretion.

We may assume without deciding that there would be strength in the defendant’s argument if a court of competent jurisdiction entered a factual finding based on all the evidence that the precise allegations by the child that formed the basis of all the charges against the defendant in this case were fabricated. But no records from the Probate and Family Court that might indicate any such finding have been provided, and the defendant’s affidavit, even if credited, which the judge was not bound to do, falls short of asserting that any such finding was made in the Probate and Family Court. In these circumstances, then, the defendant has not demonstrated any abuse of discretion or other error of law in the judge’s decision. The order denying the defendant’s petition to seal his criminal record is affirmed.

 

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