tipping the balance

On January 20, 2012, the Supreme Court announced its decision in Perry v. Perez. This case involved efforts to redraw Texas’ electoral districts due to an increase of four million residents identified by the 2010 Census. Texas proposed a new electoral plan, but as a “covered jurisdiction” was required by the Voting Rights Act to obtain preclearance from a special court in Washington, D.C. before the plan could take effect. While Texas’ petition for preclearance was pending, several groups challenged the proposed plan in federal court in Texas, which then drafted an interim electoral plan for use in upcoming 2012 elections. The question before the Supreme Court was whether this interim plan improperly disregarded details of the plan proposed by Texas.

In a per curiam opinion, the Court unanimously held that it was unclear whether the federal court in Texas had followed appropriate standards in drafting its interim plan. The Court therefore vacated the interim plan and remanded the case for further proceedings. Justice Thomas filed a concurring opinion.

To discuss the case, we have Ilya Shapiro, who is a senior fellow in constitutional studies at the Cato Institute.

On January 23, 2012, the Supreme Court announced its decision in National Meat Association v. Harris. The question in this case was whether the Federal Meat Inspection Act (FMIA) preempts a California statute prescribing what slaughterhouses must do with pigs that are unable to walk. The lower court determined that the state statute did not regulate the inspection or slaughtering process itself, and therefore was not preempted by the FMIA.

In an opinion delivered by Justice Kagan, the Supreme Court unanimously voted to reverse the decision of the lower court, holding the FMIA does indeed preempt the California statute at issue.

To discuss the case we have John Ohlendorf, who is an Olin-Searle-Smith Fellow in Law at Northwestern University School of Law.

On January 17, 2012, the Supreme Court heard oral argument in Filarsky v. Delia. The question in this case is whether a lawyer retained to assist government employees with an internal affairs investigation may, in a subsequent lawsuit against the lawyer arising out of the lawyer’s conduct during the investigation, assert the “qualified immunity” defense available to government employees in such circumstances.

To discuss the case, we have Scott Martin, who is an associate in the DC office of Gibson, Dunn, and Crutcher.

ACLU Video Highlights Three Jurors Who Say Racial Justice Act Needed to Prevent Discrimination

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FAYETEVILLE, N.C. – North Carolinians who say they were wrongfully struck from juries in capital cases because of their race are speaking out today in a new video produced by the American Civil Liberties Union documenting their experiences.

The video, which features three African Americans who say they were struck from capital juries by prosecutors simply because of the color of their skin, is being released in conjunction with the first hearing under North Carolina's historic Racial Justice Act. Marcus Robinson is asking that his death sentence be commuted to life in prison without the possibility of parole. Potential African American jurors in Robinson’s case were struck from his jury at a rate 3.5 times higher than other potential jurors.

“It made me feel like I was back in 1960, that racism is still very much alive,” Laverne Keys, who was excluded in the 1999 case State v. Jathiyah Al-Bayyinah, says in the video. “It makes you wonder whether all these people are being given a fair trial or given a fair consequence so far as the death penalty.”

The Racial Justice Act allows death-row prisoners like Robinson a hearing in which they can present statistics and other evidence showing that death sentences state- and county-wide were tainted by racism, and that their death sentence should be commuted to life in prison without the possibility of parole.

A recent Michigan State University study shows that state prosecutors are significantly more likely to eliminate potential African-American jurors and that defendants are more than twice as likely to be sentenced to death if the victim is white than if the victim is black.

“The stories presented in this video make clear that the death penalty system in North Carolina and across the nation is plagued by discrimination,” said Denny LeBoeuf, director of the ACLU Capital Punishment Project. “The Racial Justice Act is a crucial means of ensuring that no one is wrongfully executed because of racial bias.”

Cassandra Stubbs, staff attorney with the Capital Punishment Project, is part of the legal team representing Robinson.

One of 34 states to maintain the death penalty, North Carolina has the nation’s sixth-largest death row population, more than half of whom is African-American. Thirty-one people on North Carolina’s death row were sentenced by all-white juries.

The video highlighting the experiences of three African-Americans struck from capital juries in North Carolina is available at:
www.aclu.org/capital-punishment-racial-justice/african-americans-exclude...

A New York Police Department document recommended targeting dozens of Shiite Muslim mosques from Pennsylvania to Connecticut for surveillance in a search for possible Iranian terrorists, though no evidence of such a threat existed.  The recommendation to target groups based solely on their religion, and previous reports of NYPD infiltration and surveillance of mosques with assistance from the CIA, violate NYPD and FBI guidelines, and constitutional rights to freedom of religion. 

http://www.huffingtonpost.com/2012/02/02/nypd-document-gather-inte_n_1250386.html

To See the NYPD document: http://bit.ly/wYrAUX

On January 23, 2012, the Supreme Court announced its decision in Reynolds v. United States. The question in this case concerns whether the Sex Offender Registration and Notification Act (SORNA) requires an offender who was convicted before the passage of SORNA to register thereunder even though the legislation appears to leave that determination to the Attorney General. A lower court determined that SORNA itself required pre-SORNA offenders to register even if the Attorney General had not yet deemed that requirement applicable to them.

In an opinion delivered by Justice Breyer, the Supreme Court reversed the lower court’s decision and remanded the case for further proceedings. By a vote of 7-2, the Court held that SORNA’s registration requirements, properly interpreted, do not apply to pre-SORNA offenders until the Attorney General so specifies. Justice Scalia filed a dissenting opinion, which was joined by Justice Ginsburg.

To discuss the case, we have Michael DeBow, who is a professor at the Samford University Cumberland School of Law.

On January 10, 2012 the Supreme Court heard oral argument in FCC v. Fox. The question in this case is whether the Federal Communications Commission’s standards for indecency are too vague to be constitutional.

To discuss the case we have Erik Jaffe, a Washington, D.C. attorney who specializes in appellate litigation, and Patrick Brennan, who is Associate Dean of Academic Affairs and Professor at the Villanova University School of Law.

On January 11, 2012, the Supreme Court announced its decision in Perry v. New Hampshire. The question here was whether, in a criminal case, the Due Process Clause of the Constitution requires a court to evaluate the reliability of an eyewitness identification of the defendant when the circumstances under which the identification occurred were suggestive, regardless of how those circumstances came about. The lower court rejected the defendant’s argument in favor of such a rule, concluding that a court is required to assess the reliability of identification evidence only when law enforcement employs suggestive identification techniques.

In an opinion delivered by Justice Ginsburg, the Supreme Court affirmed the decision of the lower court by a vote of 8-1. Where there is no improper law enforcement activity involved, the Court held, it suffices to test reliability through the normal rights and opportunities afforded for that purpose, such as the presence of counsel at post-indictment lineups and vigorous cross-examination. Justice Thomas filed an opinion concurring in the judgment, and Justice Sotomayor filed a dissenting opinion.

To discuss the case, we have Jessie Liu, who is a partner at Jenner & Block, LLP.

On January 10, 2012, the Supreme Court announced its decision in Smith v. Cain. The question in this case was whether a murder suspect’s Brady rights were violated because his attorney’s office failed to hand over evidence that could have helped in his defense.

In an opinion delivered by Chief Justice Roberts, the Supreme Court reversed the decision of the lower courts, and held by a vote of 8-1 that the petitioner’s Brady claims demand a reversal of his conviction. Justice Thomas filed a dissenting opinion.

To discuss the case, we have Adam Conrad, an associate at King and Spaulding.

On January 18, 2012, the Supreme Court announced its decision in Golan v. Holder. The question in this case is whether Congress has the power to restore copyright protection to certain works that have entered the public domain.

In an opinion delivered by Justice Ginsburg, the Court affirmed by a vote of 6-2 that Congress does have the authority to put certain works that have entered the public domain back under copyright protection. Justice Breyer, joined by Justice Alito, filed a dissenting opinion. Justice Kagan took no part in the consideration or decision of the case.

To discuss the case, we have Christopher Newman, who is an Assistant Professor at the George Mason University School of Law.

On January 10, 2012, the Supreme Court heard oral argument in Knox v. SEIU. This case presents two questions. The first is whether a state may lawfully require that state employees who are not union members pay a special union assessment intended for ideological political expenditures, without first providing notice and an opportunity to object. The second question is whether a state my lawfully require that state employees who are not union members pay union fees to finance political expenditures for ballot measures.

To discuss the case we have John Eastman, who is a professor at the Chapman University School of Law.

Join us for the first stop of a national tour to address the issue of prosecutorial oversight in the wake of the U.S. Supreme Court’s decision in Connick v. Thompson, which granted prosecutors almost complete immunity for their intentional misconduct. Panelists from all aspects of the criminal justice system will discuss systemic and legal approaches for reducing prosecutorial error and misconduct.

Monday, February 6, 2012
6 to 8:30 PM
Jacob Burns Moot Court Room
Benjamin N. Cardozo School of Law

Speakers include:
Maddy deLone, Executive Director of the Innocence Project, who will moderate the panel; 
John Thompson, whose $14 million civil award for the prosecutorial misconduct that caused him to spend 14 years on death row was overturned by the U.S. Supreme Court, Founder and Director of Resurrection After Exoneration and Voices of Innocence;  
Ellen Yaroshefsky, Clinical Professor of Law and Director, Jacob Burns Center for Ethics in the Practice of Law at Cardozo School of Law;
Hon. Richard Buchter, New York Supreme Court Judge and former Queens Assistant District Attorney;  
Hon. Elisa Koenderman, New York Supreme Court Judge and former Bronx Assistant District Attorney; 
Sarah Jo Hamilton, Principal at Scalise & Hamilton, LLP, and a former trial counsel and first deputy chief counsel to the Departmental Disciplinary Committee for New York’s First Judicial Department; and 
Ross E. Firsenbaum and Shauna Friedman,  Senior Associates at Wilmer Hale, who represented Arthur Ashe Courage Award Winner Dewey Bozella, who was wrongly convicted of murder due to police and prosecutorial misconduct and was exonerated after serving 26 years in New York prisons.

Light refreshments will be served following the panel discussion. More info here.

Seating is limited.  Pease RSVP by February 1 to info@prosecutorialoversight.org.

Florida Law Limits Donations by Minors to $100 but Adults And Corporations Can Donate up to $500 per Election

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CONTACT: (212) 549-2666; media@aclu.org

MIAMI – The American Civil Liberties Union of Florida (ACLUFL) today filed a legal challenge on behalf of Julie Towbin, a 17-year-old resident of Boca Raton, challenging Florida’s law limiting political contributions by minors because the law limits the Constitutionally protected right to free speech.

Current Florida law (statute 106.08(1)(b)(2)) limits donations made by minors to state and local candidates to $100 per candidate per election while adults and corporations may contribute up to $500 per candidate per election.

“The law goes overboard by restricting my ability to access the political process, effectively support candidates for office and express my views as others do.” Towbin said. “The state is violating a right guaranteed to me by the First Amendment – the right to engage in political speech.”

Towbin is a high school senior who, in addition to earning money from a job as cashier in a restaurant, earned more than $7,000 as a Congressional House Page in 2011. She keeps her funds in a bank account in her name. She is registered to vote and plans to cast her first ballot in the November 2012 elections.

In September, 2011, Towbin was interested in attending a fundraising dinner for the Palm Beach County Democratic Executive Committee, of which she is a member. But she was told that purchasing a regular $150 ticket to the dinner may be a violation of the $100 limit on contributions by minors.

Because of her concerns about violating the law by purchasing a ticket to the fundraiser and making contributions to local candidates in 2012, Towbin wrote the Palm Beach County Supervisor of Elections, the Palm Beach County State Attorney, the State Attorney General and to the Florida Elections Commission which would be responsible for hearing potential violations and issuing penalties such as criminal referrals for prosecution and fines. Receiving no assurances that buying the ticket would not result in legal penalties, Towbin did not attend the fundraiser and has not made any campaign contributions over $100.

“It’s clear that this Florida law limits a citizen’s access to political discourse based solely on age,” said Howard Simon, Executive Director of the ACLU of Florida. “The right to speak politically as well as hear political debate is clearly protected and our laws should encourage everyone – especially young people – to engage with democracy instead of cutting people off from the process.”

The statutory age limit restriction applies only to Florida and local candidates. Under federal election rules, even though she is a minor, Towbin may contribute up to $2,500 – the same amount allowed for adults – to candidates for federal office such as President or Congress.

“The Constitution does not allow the state to treat speech differently based on who is doing the speaking,” said James K. Green, cooperating attorney in the case. “If the state has a need to limit contributions to a set amount – in this case $500 – the amount needs to be the same for everyone without exception.”

The suit was filed today in the Southern District of United States Court in West Palm Beach and asks the Court to declare Florida’s law unconstitutional as a violation of the First and Fourteenth Amendments to the U.S. Constitution. The suit also seeks an order blocking the state from enforcing the age limit restriction on supporting candidates.

“Florida law gives more speech and political participation rights to corporations and political action committees than seventeen year olds who will vote this year,” Towbin said. “More than being unconstitutional, the law institutionalizes apathy among young people – it says your voice is worth one-fifth of someone else’s.”

A copy of the complaint filed today is available here: http://www.aclufl.org/pdfs/2012-01-26-TwobinComplaint.pdf
 

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A former student who endured severe and persistent harassment throughout junior high and high school has gained a major settlement from the Aberdeen School District, the ACLU of Washington announced today. The ACLU has represented Russell Dickerson III in a lawsuit saying that school district officials were aware of the harassment but failed to take steps reasonably calculated to end it. Under terms of the settlement, Dickerson will receive $100,000 from the district. Additionally, the ACLU will receive $35,000 in legal fees.

“Public school officials must be held accountable when they fail to meet their responsibility to act decisively when a student is subjected to harassment by his peers. This settlement sends a message to school districts statewide to take strong action as soon as they learn that a student is being bullied,” said Sarah Dunne, ACLU-WA legal director.

“I learned from my parents that you should never give up. You should fight for your rights – you don’t just walk away,” said Dickerson.

Russell Dickerson III, now 20, is an African-American resident of Aberdeen. For six years, from 2003 when he entered junior high until 2009 when he graduated high school, other students harassed Dickerson on the basis of his race, sex, and perceived sexual orientation.

At Miller Junior High, Dickerson was called names by other students and found notes in his backpack and taped to his back calling him “stupid nigger” and “dog.” Students tripped him in the hallways and threw food at him in the cafeteria. In one incident, three students pushed him to the floor in the hallway and smashed a raw egg on his head; only one of the students was disciplined.

At Aberdeen High School, the harassment escalated, with Dickerson subjected to a continuing barrage of viciously derogatory insults about his race, physical appearance, and suspected sexual orientation. Dickerson suffered physical harassment, with other students pinching and fondling his chest, spitting on his head, and throwing objects at him. Although an assistant principal discouraged Dickerson from reporting misconduct by the student’s peers, the student and his parents repeatedly reported incidents of harassment to district administrators, both verbally and in writing. Yet the district failed to take adequate steps to end the harassment.

In 2007 students in the district created a website mocking Dickerson and his perceived sexual orientation, and posted threatening racist comments on it. Students discussed the website at school. Grays Harbor Superior Court issued a no contact order between Dickerson and one of his harassers who had threatened on the website to lynch him, yet Dickerson became the target of retaliatory harassment after reporting the website to school authorities.

The school district’s failure to act created a hostile educational environment for the student. His academic progress was hindered, he was isolated at school, he felt discouraged from using his locker, and he avoided extra-curricular activities that put him in contact with his peers. Further, the student suffered extreme emotional distress, including an inability to concentrate on studies, serious depression, despair, and anxiety.

Filed in December 2010 in U.S. District Court in Tacoma, the lawsuit said that the deliberate indifference to ongoing harassment by the school district, which receives federal funds, violated federal law – Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972. The district’s negligent inaction also violated the Washington Law Against Discrimination.

ACLU-WA cooperating attorneys Michael Scott, Joseph Sakay, and Alexander Wu of Hillis Clark Martin & Peterson P.S. and ACLU-WA staff attorneys Sarah Dunne and Rose Spidell represented Dickerson.

On January 10, 2012, the Supreme Court announced its decision in Minneci v. Pollard. The question in this case was whether prison inmates may invoke the Bivens doctrine to bring suit against the employees of a private company hired by the federal government to provide services for the prison.

In an opinion delivered by Justice Breyer, the Court held by a vote of 8-1 that it could not imply a Bivens remedy here because state law authorized alternative damages actions that provide both significant deterrence and compensation. Justice Scalia, joined by Justice Thomas, wrote an opinion concurring in the Court’s judgment. Justice Ginsberg filed a dissenting opinion.

To discuss the case, we have Alexander Volokh, who is an assistant professor at Emory University School of Law.

On January 9, 2012, the Supreme Court heard oral argument in Sackett v. EPA. This case involves two landowners who graded a lot in a residential subdivision so that they could build a home there. The Environmental Protection Agency then issued to the landowners an administrative compliance order stating that the graded lot was a wetland, and directing the landowners either to remove the fill and restore the lot to its original condition, or risk civil fines in the amount of thousands of dollars for each day of non-compliance. The question before the Court is whether the landowners may seek judicial review of the EPA’s compliance order before it is actually enforced against them and, if the answer to that question is “no,” whether the compliance order deprives the landowners of due process of law.

To discuss the case, we have Elizabeth Papez, who is a Partner at Winston & Strawn, LLP. ??

On January 10, 2012, the Supreme Court announced its decision in Gonzalez v. Thaler. This case presents two questions arising under the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). The first is whether a judge’s failure, when issuing a certificate of appealability under AEDPA, to “indicate” the constitutional issue that a state prisoner has raised deprives a court of subject-matter jurisdiction to hear that prisoner’s habeas appeal. The second question involves how to determine when a judgment became “final” for purposes of calculating the one-year limit that state prisoners have in which to file a federal habeas petition.??

In an opinion delivered by Justice Sotomayor, the Court held by a vote of 8-1 that (1) a judge’s failure to “indicate” the requisite constitutional issue raised by a state prisoner does not deprive a court of appeals of jurisdiction to hear a state prisoner’s habeas appeal, and (2) for a state prisoner who does not seek review in the state’s highest court, judgment becomes final on the date that the time for seeking such review expires. On that basis, the Court affirmed the decision of the lower court that the state prisoner’s federal habeas petition was time-barred. Justice Scalia filed a dissenting opinion.

To discuss the case, we have Ozan Varol, who is a Visiting Assistant Professor at the Chicago-Kent College of Law.

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AUGUSTA – The Legal and Veterans Affairs Committee today voted to table LD 199, which would require voters to present a photo ID before voting, and are considering action that would turn the bill into a study of Maine’s electoral system.

“Thousands of Mainers, and especially older Mainers, don’t have access to a photo ID,” said John Hennessy of the AARP of Maine. “These folks have been voting in their communities for decades, but could have been turned away from the voting booth for no good reason. The committee deserves tremendous credit for looking beyond politics to put aside voter ID.”

Secretary of State Charlie Summers also presented a report to the Legislature today that identified potential clerical and procedural errors in the state’s Central Voter Registration System.

“The Secretary of State is entrusted to protect the right of Mainers to vote and already has the authority and the obligation to ensure that elections are administered appropriately,” said Shenna Bellows. “If there are administrative problems, then the Secretary of State should fix them now without any further study.”

The Secretary of State also suggested that some undetermined number of votes may have been cast inappropriately during the last few years.

“Maine elections are well-run and secure, and they have helped our state to become a national leader in voter participation,” said Ann Luther of the League of Women Voters of Maine. “If the Secretary of State has identified isolated problems, then he should investigate them now and make sure that anyone who has violated the law is prosecuted. A study is unnecessary because he already has that responsibility and authority.”

 

Legislation Would Cause Backlog of DNA Tests and Violate Privacy

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COLUMBUS- The American Civil Liberties Union of Ohio will testify today before the Ohio Senate Judiciary Committee opposing Senate Bill 268. The legislation will expand the government’s ability to take DNA samples from felony arrestees by allowing the state retroactively to seize genetic information from past arrestees and those charged with a felony but not arrested. In 2009, the Ohio General Assembly passed S. B. 77, which allowed the state to obtain DNA samples from those arrested on felony charges.

“DNA is perhaps the most personal information our bodies contain, and the government must not simply take it without considering the privacy of Ohioans,” said ACLU of Ohio Associate Director Gary Daniels. “Those who have been arrested for a crime have not been found guilty in a court of law, nor have they had any opportunity to defend themselves. This system allows innocent people’s genetic information to become property of the state without any due process.”

“Neither this legislation nor current law provides meaningful opportunity for innocent Ohioans to remove their DNA from state databases if they were wrongfully accused of a crime,” added Daniels. “By expanding the power to collect DNA even further, state legislators will open a Pandora’s box where law enforcement may abuse their ability to arrest to perform an end-run around due process protections.”

S. B. 268 would direct the DNA information to the Bureau of Criminal Investigation to check against past records and keep on file. News reports have indicated that BCI and local law enforcement often have long backlogs on testing DNA evidence such as rape kits. On December 5, 2011, Ohio Attorney General Mike DeWine recommended that local law enforcement send rape kits to BCI for testing, and pledged to add staff to accommodate the increase. Recently, the Department of Justice and state officials in Michigan and Illinois have warned legislators against adding additional DNA collection categories in order to avoid creating additional logjams.

“Unnecessarily collecting DNA will clog law enforcement systems, violate Ohioans’ privacy, and increase costs,” concluded Daniels. “State legislators should focus on testing rape kits and other evidence that has sat on shelves rather than adding more DNA to test that may lead to nothing.”

The Senate Judiciary Committee will be at 3:15 p.m. on Tuesday, January 24, 2011 in the North Hearing Room of the Statehouse.

ACLU-NJ Midterm Report Card Examines Christie’s Record on Respecting Rights

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NEWARK – The American Civil Liberties Union of New Jersey (ACLU-NJ) released a midterm report card for Gov. Chris Christie today, issuing mostly low marks for his administration’s handling of critical civil liberties issues such as reproductive freedom and free speech.

The report card examines Christie’s record on an array of civil liberties issues during his first two years in office. The ACLU-NJ issued a similar report card for Newark Mayor Cory Booker in 2009 during his first term in office.

“Christie has two years to turn a mediocre civil liberties record into a testament to individual rights,” said ACLU-NJ Executive Director Deborah Jacobs. “The people of New Jersey expect a leader who will stand up for their freedoms, not one who will let them know that despite his unfair policies, his heart is in the right place. It’s time for Gov. Christie’s good intentions to turn into policies that strengthen our rights and improve our lives.”

The ACLU-NJ issued the following grades:
• B in Freedom of Religion. Gov. Christie made headlines several times in his first term for defending the religious freedom of Muslims and warning against extremists trying to promote discrimination against Islam.
• F in Freedom of Speech. When provided the opportunity to speak up for our nation’s most fundamental value, the Governor stood idly by, letting the Department of Military and Veterans Affairs trample the rights of Occupy Trenton, and going so far as to endorse the termination of a NJ Transit employee fired for exercising his right to free expression.
• B- in LGBT Rights. Although the Governor has spoken out against bullying and supported some interests of the LGBT community, he has turned his back on marriage equality for same-sex couples.
• D in Open Government. Although the Governor signed a bill that lowers the cost of copies in New Jersey, his administration has put itself on the wrong side of open government disputes numerous times, allowing agencies to hide public documents and forcing citizens to go to court to get them.
• C in Police Practices. Improvements made by the Office of Attorney General (OAG) to its statewide police Internal Affairs policies were a step forward, but the OAG has failed to address other important issues, such as developing a statewide policy on the use of confidential informants.
• C in Privacy Rights. The governor conditionally vetoed a bill that sought to open adoption records, taking into account the privacy rights of birth parents. At the same time, he signed into a law a bill that allows police to collect DNA of people once they have been arrested in violation of privacy and due process rights.
• F in Reproductive Rights. Not only did the governor cut $7.5 million from the budget for family planning centers, but he also withdrew an application for a federal program that would have covered family planning expenses for some of New Jersey’s most vulnerable women and children.
• D in Separation of Powers. The Governor refused to reappoint New Jersey Supreme Court Justice John J. Wallace, Jr., calling into question the tradition of evaluating judges based on merits, and personally attacked a Superior Court judge because he disagreed with the outcome of her ruling. Gov. Christie’s actions threaten to undermine the judiciary’s independence and credibility.

To view the report card in its entirety, visit www.aclu-nj.org.