Saturday, September 5, 2015
The death penalty is in retreat. Three recent legal developments have shaken the foundations of modern death penalty jurisprudence, established over forty years ago.
On June 29, 2015, in Glossip v. Gross, Justice Breyer, joined by Justice Ginsburg, argued in dissent that it is “highly likely that the death penalty violates the Eighth Amendment,” and gave a number of reasons to support his tentative conclusion, including innocence, arbitrariness, delay, and disuse.
Six weeks later, the Connecticut Supreme Court handed down a sweeping decision in State v. Santiago, which ruled Connecticut’s 400-year-old death penalty cruel and unusual in violation of the state’s constitution, citing many of the same reasons as Justice Breyer. Yesterday evening, Connecticut prosecutors filed a motion to reargue the merits of the Connecticut Supreme Court’s death penalty decision in Santiago.
This past Monday, August 31, 2015, a three-judge panel of the Ninth Circuit heard argument in Jones v. Davis, the case in which the U.S. District Court for the Central District of California declared California’s imposition of the death penalty “arbitrary” and without legitimate penological purpose in violation of the Eighth Amendment based on the extraordinary delay between sentencing and execution in California.
This is precisely the conversation we ought to be having over the death penalty. Does it kill innocent people? Is it hopelessly arbitrary and even downright racist? Has the death penalty fallen into such disuse—where life waiting for death, not death itself, is the penalty—that we need to take it off life-support?
Time will tell. When these important questions come before the U.S. Supreme Court, we should remember well the words of Justice Anthony Kennedy in Hall v. Florida last year: “The Eighth Amendment’s protection of dignity reflects the Nation we have been, the Nation we are, and the Nation we aspire to be.” What Nation do we aspire to be? That turns out to be the most important question of all, and I think Justice Kennedy knows the answer. I hope it’s the right one.
Monday, August 17, 2015
In public housing, energy costs amount to about 40% more per square foot than in private or market rate housing. While differences in occupant behavior may account for some of this disparity, a large portion has been attributed to energy-efficient building construction and maintenance, or in this case lack thereof. Many public housing units were built as inexpensively as possible, resulting in higher long-term operating costs. Issues such as drafty windows, insufficient insulation, older and more energy-guzzling appliances and even wiring issues can stretch renters' already strained budgets with high utility bills.
There are similar findings when comparing the rental market with owner-occupied units. Rented multifamily units show utility costs which are 37% higher per square foot than in multifamily housing that is owner-occupied such as condos or coops. Rental units are less likely to have energy-saving measures such as florescent bulbs, low-flow shower heads and adequate central heating and cooling systems. As a result, low-income households are 25% more likely to use space heaters to supplement or sometimes entirely supply heat and are 50% more likely to use window air conditioning units.
In the private housing market, there are incentives for owners and landlords. Home owners who pay their own utilities will see direct saving from updates such as energy-efficient windows, new appliances, or better insulation. For landlords who require tenants to pay their own utilities, there is little incentive to invest in greater efficiency and pass on lower utility costs to renters. It remains a paradox that those who have the least to spend on housing often end up with much higher utility costs, and the “affordable” rental stock is often coupled with deeply unaffordable utilities. It behooves policy makers and affordable housing advocates to invest in equitable energy efficiency policies and programs to address this deep divide.
Thursday, August 13, 2015
On Tuesday, July 28, 2015 Governor Rauner signed a bill that will award an additional 40,000 working households, about 100,000 individuals, access to the nutritious foods through the Supplemental Nutrition Assistance Program (SNAP). Senate Bill 1847, led by Senator Daniel Biss (D), will increase the SNAP monthly maximum gross income limit requirement from 130% of the federal poverty level (FPL) to 165% of FLP effective January 1, 2016. The federal poverty level is the minimum amount of gross income that a family needs for food, clothes, transportation, shelter and other necessities determined by the Department of Health and Human Services. The original 130% FPL level is the lowest required federal poverty limit allowed by federal law for SNAP. By increasing the federal poverty level for SNAP, Illinois is now including struggling individuals and families earning just above the monthly income limit as eligible SNAP households. Although individuals will still need to meet the maximum net income test to qualify for SNAP, increasing the gross maximum income limit will allow families, who have high expenses and qualify for childcare and medical deductions, to have more income for food.
Currently, the poverty level for an individual household in Illinois is $11,770 annually. To put this in perspective, 135% over the FPL is $15,301 and this would qualify a household of one to receive SNAP benefits. Under the new legislation, an individual who makes $19,420.50, or 165% of the federal poverty level, will now qualify for food assistance. Qualified households, households that include an elderly or disabled individual, will be eligible for SNAP at 200% of the federal poverty level.
Over 90% of increases in eligibility for benefits will go to households with a worker and 80% will go to households that include children. The Sargent Shriver National Center on Poverty Law predicts the new law will have a fiscal impact of $1 million to the state. Since SNAP is completely federally funded, the increase will add $60 million in federal dollars for Illinois that will get recirculated into the economy. As the cost of living rises and wages stagnate, this new legislation will provide much needed assistance to Illinois’ rising working poor population.
States have the ability to set the maximum gross income limit for programs such as SNAP. Ohio, Florida, Texas and Nebraska have kept the maximum gross income limit at 130% of FPL while states such as Connecticut, Florida, and California have raised the maximum gross income limits to 185%, 200% and 200% of FPL respectively. Increasing the maximum gross income limit for SNAP in all states allows vulnerable Americans access to healthy foods that they would not otherwise be able to afford.
Read more about Senate Bill 1847 and how it will increase the number of Illinoisans who will have access to healthy foods here.
Friday, August 7, 2015
From the New York Times, an interesting Voting Rights Act decision out of the Fifth Circuit:
“A federal appeals panel ruled Wednesday that a strict voter identification law in Texas discriminated against blacks and Hispanics and violated the Voting Rights Act of 1965 — a decision that election experts called an important step toward defining the reach of the landmark law. . . While the federal act still bans laws that suppress minority voting, it has been uncertain exactly what kinds of measures cross the legal line since [the Supreme Court’s ruling in Shelby County v. Holder (2013)]. The Texas ID law is one of the strictest of its kind in the country. It requires voters to bring a government-issued photo ID to the polls. Accepted forms of identification include a driver’s license, a United States passport, a concealed-handgun license and an election identification certificate issued by the State Department of Public Safety.”
And for the young, the young-at-heart, and everyone else with an interest in the grassroots advocacy that led to passage of the Voting Rights Act, check out Books One (2013) and Two (2015)of Congressman John Lewis’ graphic novel trilogy about the U.S. civil rights movement, March.
Wednesday, August 5, 2015
As part of the Legislation Law Prof Blog effort to spotlight relevant new scholarship, today we are featuring an article submitted by Professor Christopher Odinet concerning legislative and regulatory issues related to the mortgage foreclosure crisis. An abstract and link to his article follows. (If you have a compelling piece of scholarship of interest to our readers, please contact one of the blog editors for consideration.)
During the housing crisis banks were confronted with a previously unknown number mortgage foreclosures, and even as the height of the crisis has passed lenders are still dealing with a tremendous backlog. Overtime lenders have increasingly engaged third party contractors to assist them in managing these assets. These property management companies — with supposed expertise in the management and preservation of real estate — have taken charge of a large swathe of distressed properties in order to ensure that, during the post-default and pre-foreclosure phases, the property is being adequately preserved and maintained. But in mid-2013 a flurry of articles began cropping up in newspapers and media outlets across the country recounting stories of people who had fallen behind on their mortgage payments returning home one day to find that all of their belongings had been taken and their homes heavily damaged. These homeowners soon discovered that it was not a random thief that was the culprit, but rather property management contractors hired by the homeowners' mortgage servicer.
The issues arising from these practices have become so pervasive that lawsuits have been filed in over 30 states, and legal aid organizations in California, Florida, Michigan, Nevada, and New York report that complaints against lender-engaged property managements firms number among their top grievances. This Article analyzes lender-engaged property management firms and these break-in foreclosure activities. In doing so, the paper points out the legislative and regulatory failures related to the regulation of third party contractors by lenders, particularly in the Dodd-Frank Act, and the need to strengthen state-level unfair trade practice legislation to account for these abuses.
Link to article: here
Monday, July 20, 2015
From Tracy L. Denholtz, a fellow in the Juvenile Sentencing Project at Quinnipiac University School of Law:
In 2012, the U.S. Supreme Court held in Miller v. Alabama that mandatory life-without-parole sentences for juveniles violate the Eighth Amendment. Following Miller, a number of states have eliminated life without parole (“LWOP”) as a sentencing option for juveniles or have provided mechanisms for juveniles serving LWOP sentences to petition courts for resentencing. The 2015 legislative session resulted in three new states abolishing this extreme sentencing practice for juveniles:
- Connecticut passed a bill that retroactively eliminates LWOP as a sentencing option for all juveniles. Governor Malloy signed SB 796 on June 23, 2015. Under the new law, juveniles may no longer be convicted of capital felony, murder with special circumstances, or arson murder—offenses that carry mandatory LWOP sentences. Instead, the most serious offense for juveniles is now murder—which carries a minimum sentence of 25 years (with parole eligibility after 15 years) and a maximum sentence of 60 years (with parole eligibility after 30 years). The new law, which applies to juveniles currently serving sentences, provides that juveniles are eligible for parole after serving 60% of their sentence, or 12 years, whichever is greater. Those serving more than 50 years are eligible for parole after serving 30 years. Thus, the new law ensures parole hearings for all juveniles after serving no more than 30 years. The law also provides specific youth-related factors for the parole board to consider. Finally, the new law requires judges to consider the hallmark features of youth and the scientific differences between juveniles and adults when sentencing a juvenile in adult court for a serious crime. This new law will affect approximately 200 individuals currently serving sentences in Connecticut for offenses committed as juveniles. Students in Quinnipiac University School of Law’s Civil Justice Clinic testified before the legislature in support of the bill.
- Nevada passed a bill that eliminates LWOP for juveniles. Governor Sandoval signed AB 267 into law on May 26, 2015. The law provides that going forward, the maximum sentence available for juveniles sentenced in adult court is life with the possibility of parole. The law also provides retroactive parole eligibility rules for all juveniles (except those convicted of offenses that resulted in the death of two or more victims). Juveniles convicted of non-homicide offenses are parole eligible after 15 years, and juveniles convicted of homicide offenses involving one victim are parole eligible after 20 years. Additionally, the law requires judges to consider the differences between juveniles and adults when sentencing a juvenile in adult court.
- Vermont passed a bill that eliminates sentences of LWOP for individuals who were under 18 at the time of the offense(s). Governor Shumlin signed H. 62 into law on May 14, 2015.
Connecticut, Nevada, and Vermont are the newest states to join a number of others that have eliminated juvenile LWOP sentences following Miller. In 2014, Hawaii, Massachusetts, and West Virginia enacted statutes abolishing juvenile LWOP. (In 2013, the Massachusetts Supreme Judicial Court held that juvenile LWOP violates the state constitution). In 2013, Delaware, Texas, and Wyoming passed laws abolishing this sentencing practice. Thus, since Miller was decided in 2012, a total of nine states have eliminated LWOP as a sentencing option for juveniles. With hope, this trend will continue.
Friday, July 17, 2015
With an increasing elderly population and a predicted need for continuous care facilities there will be an increased cost associated with these facilities. On average the cost of a nursing home private room exceeds $83,000 per year and nursing home costs have been rising at a steady rate of 4 percent per year. About 1.3 million Americans currently live in nursing homes and individuals receiving Medicaid and Medicare make up a majority of long-term facility residents, increasing the cost for Medicaid and Medicare.
After a victory for the Obama administration in King v. Burwell, there is more in store for health care reform. The administration is working on updating 30 years of old laws that determine whether a nursing home qualifies for Medicare and Medicaid payments.
The administration is proposing changes to long-term care facilities in order to make nursing homes safer and more effective in controlling diseases, not mention reduced costs. The proposed regulations include: increasing the use of electronic health records and measures to ensure that patients and their families plan for care, strengthening infection control, and monitoring the use of antibiotics and antipsychotic drugs, with the overall goal to reduce hospital readmissions.
Further, the aim is to make nursing homes feel more like a home, by changing meal times and food options, and providing individualized care. With the proposed changes, residents will be able to choose their roommates whether it is siblings, relatives, long term friends, or same-sex couples. Although the nurse to patient ratio will not increase, nurses will be required to train in dementia care and preventing elder abuse. Only long-term care facilities that enforce the proposed changes will receive Medicare and Medicaid payments.
For more information on the proposed changes to nursing home care, see Kaiser Health News.
Friday, July 3, 2015
This post was written by Nate Ela, of COWS
If you were following news earlier this week about the end of the Supreme Court term, you probably read that Arizona State Legislature v. Arizona Independent Redistricting Commission was a win for direct democracy. The Court held that an independent redistricting commission established in 2000 as the result of a voter initiative did not violate the elections clause (U.S. Const. art. I, § 4, cl. 1.: “[t]he Times, Places, and Manner of holding Elections for Senators and Representatives shall be prescribed in each state by the Legislature thereof ....”). To get to this conclusion, Justice Ginsburg reasoned that the authors of the constitution, as proponents of popular sovereignty, would have understood “legislature” to have included the people themselves as a law-making body.
Many commentators hailed this as a big win for direct democracy. Richard Pildes, in a New York Times Op-Ed, noted that while it is not a panacea, “direct democracy remains an important means of policing the inevitable temptations those in power have to entrench themselves more securely in power.” Ciara Torres-Spelliscy noted approvingly on the Brennan Center blog that the ruling “embraces not only the specific voters’ choice in Arizona, but also it supports the initiative and referendum process in other states as well.”
A few commentators decried the win for direct democracy. “Leaving policy to the passions of the people is dangerous,” warned the opinions editor of the Arizona Republic. “A representative republic excels over direct democracy. Arizona's early leaders where too hard-headed to understand that.”
If direct democracy won, who lost? Lisa Soronen, the executive director of the State and Local Legal Center, suggested on the NCSL blog that legislatures did. NCSL had filed an amicus brief in support of the Arizona Legislature, arguing that Arizona was one of only two states where legislatures had been completely divested of redistricting authority, and that the Constitution requires state legislatures to be involved substantively in the redistricting process. The majority did not find those arguments compelling.
Yet if Arizona allows legislatures to be cut entirely out of the redistricting process, what are the potential stakes? Several recent studies have concluded that non-legislative redistricting might not actually be much of a loss for partisan or incumbent legislators -- or much of a win for people who'd hope to see less political polarization. One study found that “bipartisan districts promote member moderation,” but “no evidence that commissions have distinct effects on districts or members as compared to districts drawn by legislatures.” Another found that non-legislative redistricting hasn’t increased competitiveness in elections, either by “reduc[ing] the typical margins of incumbents’ victories or increase[ing] the likelihood that incumbents would lose.” And contrary to what one might expect, one even concluded that “states with nonpartisan redistricting methods saw their legislatures become more polarized, while those states with partisan methods saw slight de-polarization, on average” (although the data were only from 1999 to 2005).
So it may be that Arizona was a win for direct democracy won and a loss for legislatures, but a wash for We the People. This could explain why some reformers, rather than hurrying to suggest replicating Arizona’s system in other states, took the opportunity instead to propose ideas for more effective reforms. FairVote, for example, responded to Arizona by calling for a new system of electing members to Congress from multi-winner districts, using ranked-choice voting. (They have a white paper on how that could work here.)
It is hard, of course, to find fault with a big win for direct democracy – especially when it comes from the current Supreme Court. But as we celebrate another Independence Day, we shouldn't stop envisioning and experimenting with new ways of making this a more perfect union. There’s plenty left to do.
Tuesday, June 23, 2015
Over the next month, roughly 6.4 million people may be losing subsidies for health insurance. The United States Supreme Court has heard oral arguments for the King v. Burwell lawsuit and a ruling is expected sometime in late June or early July.
King v. Burwell is a federal lawsuit questioning the language used in the Patient Protection and Affordable Care Act (ACA). The ACA allows individuals to access health insurance on American Health Benefit Exchanges. Currently, the legislation allows low and middle income individuals who purchase health insurance both at a state or a federal level to access a federal tax credit. However King v. Burwell argues that the language used in the ACA allows tax credits for individuals who purchase insurance on the state-run exchanges, but makes no provision for subsidies in federally established exchanges.
Presently, 34 states use the federal exchange, amounting to about 6.4 million people. Three other states, Oregon, Nevada and New Mexico, have unsuccessfully attempted to build their own exchanges and now depend on the federal government as well. If the Supreme Court rules against subsidies in the federal marketplace, then those 6.4 million people will lose the subsidies that help them pay for health insurance.
If the court rules for the plaintiffs, individuals receiving subsidies in the federal marketplace would not be the only ones affected. As a result of both an increasingly expensive health insurance market and millions of people leaving said market, the insurance pool could get smaller and sicker. Some economists have estimated that prices in the directly affected states could rise by roughly one third.
For more information on the oral arguments please see this article in the SCOTUS blog and for a commentary on the fate of ACA subsidies in the Supreme Court please see this article in the SCOTUS blog.
More information on the possible consequences can be found in this article in the The New York Times.
Wednesday, June 17, 2015
On Thursday June 11, Michigan Governor Rick Snyder (R) signed legislation that would allow private adoption agencies to refuse adoption services to individuals based on religious grounds.
Critics of the bill are concerned that the legislation would permit faith-based and religiously affiliated foster and adoption agencies to discriminate against same-sex couples, religious minorities, and single parents, while still receiving taxpayer money.
Democrats voiced their opposition to the bill before it was passed by the state Senate on Wednesday, emphasizing that the bill would allow adoption agencies to refuse placement of children with same-sex couples. Democrat lawmakers proposed several amendments to the bill that were rejected, including one that would have excluded agencies that receive more than $500,000 in state funding from being protected by the bill.
In the 2014-2015 budget year, $19.9 million state and federal funds went toward supporting adoption agencies, and nearly $10 million of the total went to faith-based agencies that will now be protected under the bill.
According to ACLU, Michigan has the fifth largest population of children waiting for adoption. The law will make it even more difficult for more than 13,000 children in the state’s adoption and foster care system to be placed into homes.
Friday, June 12, 2015
On May 29, just two days after Nebraska became the nineteenth state to abolish the death penalty, Nebraska Governor Pete Ricketts announced that he still plans to execute Nebraska’s ten death row inmates. Death penalty foes say he can’t do this; the Governor says he can.
While much has been made of Nebraska’s becoming the first conservative state to repeal the death penalty in over forty years, Nebraska’s repeal is remarkable for another reason, as the battle brewing in Nebraska suggests. For the first time in nearly fifty years, a state legislature repealed its death penalty not just for future crimes but also retroactively, that is, for those currently on death row. Nebraska’s repeal explicitly prohibits the very action that Governor Ricketts plans to take—the execution of those on Nebraska’s death row.
Over the past eight years, five other states have repealed the death penalty. None of them did so retroactively. In three of those states, New Jersey, Illinois, and Maryland, it took a governor’s commutation order to clear death row. In New Mexico and Connecticut, death row prisoners were not so lucky; a total of thirteen men remain on death row in those states after repeal. Pending legislation in Colorado, Delaware, Kansas, New Hampshire, and Washington is also not retroactive. When these states inevitably repeal the death penalty, they will join an ever-growing list of states that have repealed the death penalty while retaining death row intact. Abolition for most, but not all—not for the forty people on death row in these states.
Many will say this is at it should be. Some family members of murder victims, such as the parents of slain University of Delaware student, Lindsey Bonistall, argue that retroactive repeal unsettles their expectations of retribution. “[D]on't let the judicial process, our tragedy, trauma and pain,” they wrote to legislators, “be in vain.”
Some lawyers—including Nebraska’s attorney general—argue that retroactive repeal unconstitutionally infringes the courts’ power to render “final” judgments and the executive’s power to commute sentences. A slew of old, poorly-reasoned state court cases certainly support this cramped view of the separation of powers.
And some advocates argue that, by repealing the death penalty going forward but not retroactively, the death penalty abolition movement merely parallels the movement to end another infamous American institution: slavery. In the late eighteenth century, the Pennsylvania Abolition Society, the first organization dedicated to securing slavery’s end, supported laws that would end slavery going forward but not retroactively. “We dare not flatter ourselves with anything more than a very gradual work [of national emancipation],” the Society said in 1790, for “long habits die hard and strong interests are not overcome in an instant.”
All of these arguments against retroactivity have merit, but they should not win the day.
Family members of victims must understand that there is no record of a death row prisoner ever being executed after repeal of the death penalty. Ever. Failure to repeal the death penalty retroactively is a farce; history shows that those remaining on death row will probably never be executed, so why not do away with death row completely and eliminate the trauma that families will be forced to endure as they sit through literally endless appeals?
Lawyers must understand that the failure to repeal the death penalty retroactively is the height of arbitrariness. It is nonsensical to say that a person who murders the day before repeal can be sentenced to death, while a person who just so happens to commit an identical murder the day after repeal cannot be sentenced to death. There simply is no difference between the two murderers. If the death penalty is too expensive, too inhumane, too discriminatory, too prone to human error, too out of step with international norms, or too unfair to victims’ families today, then it was surely all of those same things yesterday. Recent statements by the Supreme Court and lower courts strongly support legislators’ elimination of arbitrary disparities like these.
And advocates must understand that, while the movement to abolish slavery began as a gradual enterprise, it yielded to a more radical movement demanding a complete end to slavery. Nebraska’s retroactive repeal of the death penalty on Wednesday marks the beginning of a more radical movement to abolish the death penalty.
The next decade will undoubtedly see more states boarding the abolition train—states like California, with over 700 people on death row. Hopefully, they, like Nebraska, will take their death rows with them. Abolition for all.
Friday, June 5, 2015
When a state legislature takes census data and carves up new voting districts, how should it count who is in those districts? Should it count all residents, or only eligible voters? This is the question presented in Evenwel v. Abbott, a case that the Supreme Court recently agreed to take up in its next term. Evenwel is being billed as the biggest redistricting case in 50 years, since the Warren Court held that voting districts with large differences in total population are unconstitutional. The case has major stakes for who holds power at the federal, state, and local levels.
Evenwel was filed in 2014, as a challenge to the state senate district plan enacted in 2013 by the Texas state legislature and signed by Governor Rick Perry. The legislature used the results of the 2010 census to create senate districts that had roughly the same number of residents.
The plaintiffs in Evenwel claim that this plan violated the Fourteen Amendment, by denying their rights to have votes that are equal in weight to voters in other districts. The claim is that the votes of eligible voters in districts that have a large proportion of non-citizen residents have greater weight than those of voters in districts that have a large proportion of eligible voters.
The Evenwel plaintiffs are Texas voters selected by the Project on Fair Representation, a one-man conservative advocacy group created by Edward Blum, a former investment banker and current fellow at the American Enterprise Institute. (New York magazine has a good profile describing how Blum has engineered a number of the Roberts Court’s recent blockbuster cases on the role of race in voting and college admissions.)
A ruling that electoral districts can or must have equal numbers of eligible voters would have huge implications for the balance of power at the federal, state, and local levels.
The impact on state-level politics is perhaps most obvious. In the case, the Court will determine how state legislatures may draw state legislative districts. (At the NCSL Blog, Lisa Soronen notes that Evenwel follows on another case this term which questions the role of state legislatures in redistricting. Arizona State Legislature v. Arizona Independent Redistricting Commission presents the question of whether a state legislature can be completely cut out of the redistricting process.)
But allowing or mandating state legislatures to draw districts in a new way would be likely to affect the balance of political power at the federal level. Nate Cohn did some calculations and writes in the New York Times that such a system would put control of the House of Representatives even farther out of reach of Democrats. Nathaniel Persily of Stanford Law School observes that it would also require a new kind of census, one that counts who is and isn’t a citizen.
Finally, the case holds the potential to alter the balance of power between cities and suburbs, particularly in states like Texas with large non-voting immigrant populations. University of Texas law professor Joseph Fishkin argued in a Yale Law Journal article that a shift to districts based on equal numbers of eligible voters “would shift power markedly at every level, away from cities and neighborhoods with many immigrants and many children and toward the older, whiter, more exclusively native-born areas in which a higher proportion of the total population consists of eligible voters.”
In short, in deciding Evenwel, the Roberts Court will have the opportunity to rework how our democratic system functions -- and who it tends to empower.
Tuesday, May 26, 2015
Barry Taylor is the Vice President for Civil Rights and Systemic Litigation at Equip for Equality. We enthusiastically welcome a guest blog post on the recent Runnion v. Girl Scouts of Greater Chicago and Northwest Indiana case.
The Seventh Circuit Court of Appeals recently clarified that the Girl Scouts is subject to the federal Rehabilitation Act of 1973. (Rehab Act) The Rehab Act prohibits entities that receive federal funding from discriminating based on disability.
The plaintiff in this case is Megan Runnion, who joined the Girl Scouts when she was in kindergarten. Megan is deaf and, for six years, the Girl Scouts of Greater Chicago and Northwest Indiana provided her with an American Sign Language interpreter for troop-related activities. In 2011, however, the Girl Scouts refused to provide Megan with an interpreter, and shortly thereafter, Megan's troop disbanded. Megan's mother was told by troop leaders that because of her request for interpreter services, certain restrictions were placed on the troop, making it impractical for the troop to continue.
Because the Girl Scouts receives federal funding, Megan filed suit under the Rehab Act. The Complaint alleges that by failing to provide interpreter services, and thereby failing to provide Megan effective communication, the Girl Scouts excluded her from participation solely because of her disability.
The District Court dismissed the case finding that, as a private membership organization, Girl Scouts is not subject to the Rehab Act. The District Court also found that Girl Scouts is not covered by the Rehab Act because it is not principally engaged in education, social services, health care, housing, or parks and recreation.
The Seventh Circuit Court of Appeals reversed finding that there was no basis in the Rehab Act to exclude from coverage private membership organizations like the Girl Scouts. While other statutes like the Americans with Disabilities Act and Title VII of the Civil Rights Act have provisions excluding private membership organizations, the Rehab Act does not contain an express exclusion. The court was unwilling to read into the Rehab Act an implied exemption for private membership organizations.
The court went on to hold that the proposed Amended Complaint sufficiently alleged that Girl Scouts is principally engaged in the business of providing the enumerated services under the Rehab Act (i.e. education, social services, health care, housing, or parks and recreation.) Significantly, the court held that, contrary to the Girl Scouts' argument, a private organization would fall within the Rehab Act if it principally engages in a mix of the enumerated services. In other words, the court held that Congress did not view the categories as mutually exclusive.
While this case is important with respect to coverage under the Rehab Act, the case also provides useful guidance on the right to amend under Federal Rule of Civil Procedure 15. The court confirmed that courts should take a liberal approach to amending pleadings with respect to post-judgment motions to amend. The court made clear that, despite the 2009 amendment of Rule 15(a)(1) which limited amendment as a matter of right, plaintiffs still have the benefit of the well-established liberal standard for amendment even if they choose to first challenge a motion to dismiss before seeking to amend.
Megan is represented by Equip for Equality, the National Association of the Deaf and the private law firm Much Shelist, which is handling the case on a pro bono basis. The United States Department of Justice filed an amicus brief in support of Megan's position that was cited favorably by the court.
Megan Runnion v. Girl Scouts of Greater Chicago and Northwest Indiana, No. 14-1729 (7th Cir. May 8, 2015)
Friday, May 22, 2015
The Fight for $15 in the United States’ second most populated city is finally over.
We previously posted about how Seattle took the lead on setting the highest minimum wage in the country. This April, we highlighted how public benefits subsidize low wages for big businesses and the Fight for $15 . Now we are delighted to report that progress has been made in California, Los Angeles is following in Seattle’s footsteps.
By a margin of 14-1, the Los Angeles City Council voted to increase the current minimum wage of $9 to $15 an hour over the next five years. Los Angeles’s minimum wage increase follows other large cities across America, including San Francisco, Oakland, Chicago and Seattle. This win is especially important in Los Angeles, as it is estimated that almost 50 percent of Los Angeles workers earn less than $15 an hour.
Advocates hope that more cities and states across America will duplicate these beneficial wage increases. Already Washington D.C, Kansas City, and New York City have a proposed a minimum wage of $15 an hour. Governor Andrew Cuomo of New York is considering a state-wide wage increase in the fast-food industry, and is now being pressured to accept only high wage proposals.
Although this is good news for minimum wage employees that are struggling to meet basic necessitates, some opponents of the minimum wage increase believe this increase will be detrimental to small businesses and restaurants. Since California is unique (one of eight states) in requiring tipped employees to earn minimum wage already, some restaurant owners believe a higher minimum wage will force them to let go of a majority of their staff.
However, research on minimum wage increases demonstrates that higher wages actually increase labor productivity, and lower turnover rates, which consequently covers increased costs. The City Council has also promised to look into enacting service charges at restaurants to make up for the increased costs. The wage increase will be phased in over five years: $10.50 in July 2016, $12 in 2017, $13.25 in 2018 $14.25 in 2019, and $15 in 2020. Small businesses, or those with fewer than 25 employees, will have an extra year to carry out the plan.
Next, City Council will consider a law that could require annual wage increases to meet inflation. Wages would increase each year based on the 20 year average of Consumer Price Index. The language of the law is currently being drafted. If approved by City Council, it would go into effect in 2022.
In another victory for Fight for $15 advocates, California will begin to publish names of employers who have an excess of 100 workers on Medicaid, along with how much these companies cost the state in public aid. With companies that pay low wages in the public eye, advocates hope more companies will be pressured to increase wages, thereby ensuring that hard working individuals do not have to rely on public assistance to meet basic necessities.
Wednesday, May 20, 2015
Last month, protests erupted in Baltimore after the death of Freddie Gray and in response to the larger issues of police brutality, racial profiling, and mass incarceration. These protests have furthered conversations surrounding police accountability but have failed to take into account one of the primary causes of the unrest in Baltimore and many cities across the nation: the perpetuation of poverty through segregation.
Following similar riots in the 1960s, the Kerner Commission, appointed by President Lyndon Johnson, informed Americans that the nation was “moving towards two societies, one black, one white – separate and unequal.” The Kerner Commission also stated that the “white society is deeply implicated in the ghetto. White institutions created it, white institutions maintain it, and white society condones it.” Richard Rothstein, a research associate at the Economic Policy Institute, further explains that it was not a vague white society that led to the creation of the ghetto but explicit, racially intentional laws and policies that were pursued at all levels of government.
The New Deal
The New Deal, a domestic program enacted between 1933 and 1939 by President Franklin Roosevelt federally funded public housing that led to racial segregation. Public housing could only house people of the same race as the neighborhood in which it was located. Some public housing was built in “integrated” neighborhoods but with separate buildings for whites and blacks. The policy continued when Harold Ickes, President Roosevelt’s public housing director, established the “neighborhood composition rule” to maintain the pre-existing racial composition of neighborhoods.
Federal Housing Administration
One of the most explicitly discriminatory housing policies was introduced by the Federal Housing Administration (FHA) in the 1930s and lasted until 1968. The FHA funded mass construction of buildings in metropolitan areas, specifically on the East Coast and West Coast. Builders received federal loans on the condition that the homes in those developments would not be sold to African Americans. These explicit policies prevented African Americans from moving to suburban areas.
Further, the FHA created maps that rated neighborhoods based on the demand and stability of the area. It assigned low grades to areas populated by African Americans – a policy called redlining, which indicated that those neighborhoods were credit risks. In “The Case for Reparations” Ta-Nehisi Coates explains that redlining went beyond FHA funded loans and spread to the entire mortgage industry. African Americans were even unable to obtain mortgages for homes that were developed without FHA loans. Redlining prevented investment, and as a result, limited employment opportunities wherever African Americans lived.
These discriminatory housing regulations were implemented in conjunction with other discriminatory policies, such as the Serviceman's Readjustment Act of 1944, which granted low-interest loans for mortgages to white veterans and not veterans of color. Taken together, these policies prevented African Americans from accessing the most significant opportunity to build wealth in American history.
Current Effects of Residential Segregation
Many people believe that the lack of integration today is not a result of historic policies but because most African Americans cannot afford to move to middle class neighborhoods. Richard Rothstein argues that this unaffordability is in fact a result of the mid-twentieth century policies that prevented African Americans from benefiting from equity appreciation and accessing wealth and opportunities that were disproportionately offered to whites.
Black families, who could have lived in the same neighborhoods as their white counterparts in the mid-twentieth century, can no longer afford to do so. While explicitly racist policies have ended, they continue to affect segregation and concentrate poverty in neighborhoods populated by African Americans. According to a study by Virginia Commonwealth University’s Center on Society and Health, Baltimore neighborhoods that were redlined in the 1930s have sustained lower rates of homeownership and college attainment today.
The protests in Baltimore were sparked by excessive policing in low-income black neighborhoods that were created by residential segregation. Housing segregation has not only prevented African Americans from building up wealth through equity appreciation, but has also locked them into neighborhoods with low-funded public schools and limited opportunities to escape generational poverty. Without integration and intentional efforts to minimize the wealth gap, black communities will continue to live in impoverished neighborhoods, giving rise to protests against racists political and social systems.
Saturday, May 16, 2015
On the same day that jurors in Massachusetts returned a verdict in favor of the federal death penalty for Tsarnaev, Nebraska lawmakers voted 30-16 in favor of advancing a bill to repeal their state’s death penalty. The bill faces one more vote, which is largely considered a formality. Assuming the bill keeps its veto-proof majority (Governor Pete Ricketts has promised a veto), Nebraska will become the 19th state to repeal the death penalty—the 6th state to do so in just 8 years.
Nebraska’s anticipated repeal is part of a growing movement among conservatives who question the alignment of capital punishment with conservative principles and values. According to Conservatives Concerned About the Death Penalty (CCADP):
- Some of us believe that small government and the death penalty don’t go together, especially when we compare the high costs of capital punishment to life without possibility of release.
- Some of us don’t trust the state to get it right. We already know that some innocent people have been sentenced to death, and for others it may already be too late.
- Some of us are disturbed by the roller coaster for family members of murder victims, or wonder why we’re investing so much in a system that doesn’t keep us any safer than the alternatives.
- Some of us believe that the death penalty contradicts our values about protecting life.
As Richard Viguerie, one of CCADP’s founding members has colorfully remarked, “this trend is not limited to bleeding-heart liberals and crime coddlers.”
A look at the (about-to-be 31) states with the death penalty reveals how important these conservative values will be to death penalty abolition in years to come. Bleeding-heart liberals and conservatives-- unite!
Friday, May 8, 2015
This post was written by Nate Ela, of COWS
To wrap up this week’s posts on the model law as a mode of governance, let’s look at a couple recent articles examining factors that could influence whether state legislators decide to enact a model law.
Sociologists Stephanie Kent of Cleveland State University and Jason Carmichael of McGill University looked at some of these factors in an article published in the latest volume of Social Science Research. Professors Kent and Carmichael examined where five model laws – all intended to reduce wrongful convictions, and all promoted by the Innocence Project – were enacted. Not surprisingly, they found that that states with a Republican controlled legislature or more Republican voters were less likely to pass these laws, while the presence of advocacy organizations that are part of what they call the ‘innocence movement’ make legislative change more likely. Rather disturbingly, they also found that the frequency of discovered wrongful convictions in a state does not increase the likelihood of adopting model laws aimed at preventing wrongful convictions.
One thing a well-organized movement can do to promote the adoption of model laws is to generate empirical studies that justify the policies embodied in model legislation. This is one of the conclusions of a forthcoming article by Dee Pridgen in the NYU Review of Law and Social Change. Pridgen, a professor at the University of Wyoming College of Law, analyzes how model legislation promoted by ALEC has sought to roll back private causes of action under state consumer protection acts. Empirical reports produced by the Searle Civil Justice Institute at Northwestern University School of Law have provided what Pridgen calls a “fig leaf” for the move to abolish consumer protections. In one study, the Searle Institute created a “shadow FTC” comprised of five unnamed people said to have had experience at the FTC Bureau of Consumer Protection. This panel then reviewed a sample of consumer protection decisions from state appeals courts, and concluded that 78% of the state UDAP claims would not be considered unfair or deceptive under FTC policy statements. This sort of study, Pridgen asserts, says little about the actual state of play of state consumer protection litigation, but nevertheless is used to justify passing ALEC’s model law.
Wednesday, May 6, 2015
In February, this Blog posted a comprehensive report from the Berkeley Policy Advocacy Clinic on the problem of the criminalization of homelessness in California. The Berkeley team, the Western Regional Advocacy Project, and Washington state community partners offered incredible support to me and my students as we tackled the problem in Washington.
Today, the SU School of Law's Homeless Rights Advocacy Project released four comprehensive policy briefs that we hope will impact local, statewide, and national conversations about the challenges posted by these laws. Here's the press release- links to the reports are below.
May 6, 2015
FOR IMMEDIATE RELEASE
Contact: Katherine Hedland Hansen, email@example.com; 206-793-3487
Seattle University School of Law’s Homeless Rights Advocacy Project releases groundbreaking briefs on the “criminalization of homelessness” in Washington State
The first statewide analysis of laws criminalizing homelessness finds those laws are expensive, ineffective, and disproportionately impact already marginalized individuals. Those are among the key findings of a series of in-depth policy briefs released today by the Homeless Rights Advocacy Project at Seattle University School of Law that examine the scope and extent of the problem of criminalization in the State of Washington. These briefs are the most extensive of their kind in the nation.
Among the findings:
- Washington cities are increasingly criminalizing homelessness. Since 2000, communities have enacted laws that create over 288 new ways to punish visibly poor people for surviving in public space.
- Millions of dollars could be saved if cities would redirect funds used for enforcement of these laws toward affordable housing.
- Homelessness and poverty disproportionately impact people of color, women, LGBTQ youth, individuals with mental illness, and veterans.
- The greater the income gap between the rich and the poor, the higher the rates of enforcement of these laws.
- Modern anti-homeless ordinances share the same form, phrasing, and function as historical discrimination laws, such as Jim Crow.
“The common thread is prejudice,” said Professor Sara Rankin, faculty director of the Homeless Rights Advocacy Project. “One of the underlying premises of our research is that visible poverty makes people uncomfortable. Regrettably, we often use the law to purge visibly poor people from public space. As long as we pretend that homelessness is a problem that should be addressed through the criminal justice system, we are not really addressing the root problems of homelessness and poverty.”
Rankin’s students spent months collecting data, researching, and writing their briefs. They presented their works-in-progress and incorporated feedback from experts, including prosecutors, defense attorneys, police, service providers, and people currently experiencing homelessness.
Researchers analyzed data from 72 cities and completed in-depth case studies of seven cities: Seattle, Burien, Bellingham, Spokane, Auburn, Pasco, and Vancouver. They also looked at other states that have adopted the “Housing First” movement that prioritizes providing shelter over enforcement.
“At what cost are we criminalizing homelessness?” asked one student co-author, Joshua Howard. “Criminalization is expensive and ineffective, and non-punitive options are proven to save money.”
One brief estimates the City of Seattle will spend a minimum of $2.3 million in the next five years enforcing just 16 percent of the city’s criminalization ordinances. Spokane will spend a minimum of $1.3 million enforcing 75 percent of the city’s criminalization ordinances. Investing this same money over five years on affordable housing could house approximately 55 people experiencing homelessness per year, saving taxpayers over $2 million annually and over $11 million total over the five years, according to the briefs.
“This research humanizes the problems and shows the ways in which the institutional response to homelessness has failed,” said Scott MacDonald, one of the student co-authors.
National experts praise the research.
“These reports will leave an indelible mark on constitutional, civil, and human rights discourse about how society and the law can either contribute to the problems of poverty and homelessness, or how society and the law can reverse course and contribute to more meaningful and just outcomes for all people, regardless of their housing or economic status,” said Michael Stoops, director of Community Organizing at the National Coalition for the Homeless.
“These carefully researched reports present the most complete picture of the criminalization of homeless people in any state in the country,” said Professor Jeff Selbin, a poverty law expert at UC Berkeley School of Law. “They demonstrate how municipal laws targeting the visibly poor in Washington are increasingly unjust, inhumane, and costly. State lawmakers in Washington and elsewhere should take action to end these shameful practices.”
And Tristia Bauman, senior attorney at the National Law Center on Homelessness & Poverty, said, “As more communities across the nation criminalize the life-sustaining activities of homeless people, comprehensive research on the impact of these ineffective, expensive, and often illegal policies is critical to combating them,” she said. “These reports represent a model that should be replicated across the country by advocates working to end the criminalization of homelessness."
Read the briefs:
This post was written by Nate Ela, of COWS
Monday's post described how, at the turn of the twentieth century, the model law emerged as a major new tool of governance in the United States. A hundred years later, model laws are ubiquitous, used to influence public policy across a wide range of areas. Today and Friday, we’ll highlight some recent legal and sociological scholarship on how model laws are being used, and what influences whether legislators decide to act upon them.
Model laws figure into the story Douglas NeJaime and Reva Siegel tell in a forthcoming Yale Law Journal article describing the rise of what they call “complicity-based conscience claims.” Made familiar by Burwell v. Hobby Lobby Stores, these claims arise when “Persons of faith … seek religious exemptions from laws concerning sex, reproduction, and marriage on the ground that the law makes the objector complicit in the assertedly sinful conduct of others.” Professors NeJaime and Siegel argue that rather than settle conflict, as is sometimes suggested, these types of claims often serve to extend it. Claiming a religious objection can offer a means of criticizing the norms of an entire community, and the actions of nonbelievers.
Pointing to the Healthcare Freedom of Conscience Act, a model anti-abortion law published in 2013 by Americans United for Life (AUL), NeJaime and Siegel argue that model laws provide a means of extending conflict via conscience-based coercion claims. The AUL model law, they note, “seeks to spread the logic of complicity-based conscience claims to more types of healthcare, to more actors, and to more acts.” And in at least some states, the strategy is getting traction: Mississippi’s recently-enacted healthcare refusal law is explicitly based on the AUL model.
Vanessa Zboreak, a professor at Wake Forest, recently published an article in the Wake Forest Journal of Law & Policy analyzing two ALEC model laws designed to preempt local land use laws that restrict large confined animal feeding operations, or CAFOs. As Zboreak points out, these models are in line with a wide range of recent bills aimed at preempting municipal lawmaking, though it would be incorrect to assume that an ALEC model lurks behind every attempt by a conservative state legislature to preempt local authority. One of the most interesting sections of the article parses the relatively innovative way in which ALEC’s “Act Granting the Authority to Rural Counties to Transition to Decentralized Land Use Regulation” law goes about preemption:
Because the grant of authority to decentralize is only available to counties, and not to municipalities, by choosing this approach counties would be able to preempt zoning or planning by municipalities located within the counties. Generally, in states where both cities and counties have land use planning authority, neither local government is subservient to the other…. Under this model bill, counties would be able to neuter the (often more progressive) voices of municipal residents and city councils. And to further encourage counties to avail themselves of this opportunity to consolidate their authority, states could quite easily tie county adoption of decentralization to other incentives, such as block grant monies, and thus ensure broad adoption of this approach.
Many recent media reports and scholarly articles have focused on how conservative activists have used model laws to advance their own favored causes. But progressives have used model legislation to promote their own causes. Friday’s post will highlight an article analyzing the success of a progressive effort to use model laws to prevent wrongful convictions.
Monday, May 4, 2015
This post was written by Nate Ela, of COWS
A while back, we noted a forthcoming article by Alexander Hertel-Fernandez, which asked who passes business’s model laws. We’ve been keeping our eyes out for other writing on model laws, and later this week we'll share a few recent articles.
First, though, it’s worth remembering that despite the recent wave of media and scholarly interest, the model law is hardly a new tool of governance. The graph below shows appearances of “model law” and some variations of the term, in books published since 1820 (and subsequently scanned by Google).
The meaning of “model law” during its first blip, around 1860, is generally different than current usage. Back then, “model law” referred to everything from a law that set the model for the Catholic church to a law seen as exemplary, but not intended to be replicated.
The rise of the model law as a mode of governance appears to have come in the Progressive Era, around 1910. In that year, the Russell Sage Foundation published a model tenement house law, and by 1912 the annual meeting of the Association of Life Insurance Presidents included a report on progress of a model law on the registration of vital statistics.
What isn’t reflected in the graph is that these social reformers and business associations were picking up on a movement for uniformity that got rolling a couple decades earlier. According to the official history of the Uniform Law Commission, the founding meeting of the American Bar Association in 1878 called for greater uniformity of state laws. By 1892, the Commission had been founded as a special committee of the ABA, and in that year, the Commission recommended its first three acts, one on the topic of acknowledgements, and two on wills and estates.
Uniformity was a hit, and the fever for model laws soon spread well beyond the ABA. By 1920 associations and reformers were circulating model laws for civil service, morbidity reports, weights and measures, and juvenile courts – and calling for more, to regulate everything from corporations to indoor ventilation. It was off to the races.
Later this week, we’ll highlight a few recent articles that give a sense of where the American passion for the model law has come, and how they are now being used to govern everything from abortion to farming, consumer protection to the right to counsel.