Our Rights, Our Future

EPA Answers a Supreme Court Challenge, Declares Greenhouse Gases a Threat

In a surprising announcement on Monday, the Environmental Protection Agency (EPA) declared that greenhouse gases threaten public health and the environment. The decision came as advocates and world leaders gathered in Copenhagen this week to redefine international policy on climate change. 

EPA Administrator Lisa P. Jackson stated:

“These long-overdue findings cement 2009’s place in history as the year when the United States Government began addressing the challenge of greenhouse-gas pollution and seizing the opportunity of clean-energy reform…business leaders, security experts, government officials, concerned citizens and the United States Supreme Court have called for enduring, pragmatic solutions to reduce the greenhouse gas pollution that is causing climate change. This continues our work towards clean energy reform that will cut GHGs and reduce the dependence on foreign oil that threatens our national security and our economy.”

To what do we owe this shift in environmental policy? In large part, we can thank the courts. In Massachusetts v. EPA (2007), the Supreme Court questioned the Bush Administration’s stance that the EPA did not have the right to regulate carbon dioxide and other greenhouse gas emissions under the Clean Air Act. The Court ruled 5-4 that given the requirements of the Clean Air Act, the only way the EPA could refuse to regulate greenhouse gas emissions was “if it determines that greenhouse gases do not contribute to climate change” or if it could provide a good explanation for why it could or would not do so. 

Happily, the EPA appears to be taking the Court up on its challenge. We hope to see the agency fulfill the mission for which it was created.

Despite the Fine Print, the Courts in Washington State Are Open!

By Paula Z. Segal

When you buy a computer or any other complicated piece of consumer electronics, you also receive a bundle of infinitesimally small print type, that many of us all too often skip reading. Some of that small print is written specifically to protect the companies from you: a future, frustrated version of you, who might decide to sue the company for selling a defective product.

Kristin Cariedo bought a new Dell laptop for $1300. Catherine Candler paid $1700 for hers. Neither computer worked the way it was supposed to. Ms. Cariedo and Ms. Candler wanted to sue Dell to get their money back but the fine print that accompanied their laptops said that by simply buying and keeping the computers, Ms. Cariedo and Ms. Candler and all other consumers buying Dells laptops waived their right to ever sue Dell. Dell had written an “agreement” that said that any disputes between consumers and Dell were to be settled through arbitration by a private arbitrator that Dell had selected (the National Arbitration Forum); Dell also said that no class actions were permitted, meaning that consumers could not get together to bring Dell to court for selling defective products. The “agreement” that Ms. Cariedo and Ms. Candler had entered into with Dell when they bought their computers was designed to keep them out of court.

The National Arbitration Forum (NAF), the arbitrator that Dell chose, turned out to not be a neutral arbitrator; rather, it turned out to be intimately tied to the country’s largest debt collection firms, which profit directly from deciding cases against consumers. A House of Representatives investigation report on NAF documented its abuses, and lawsuits have been filed against NAF nationwide. The Center for Responsible Lending issued a report calling NAF’s neutrality into question in May 2009, and finding that NAF decisions tend to favor companies – like Dell – that give them business. In the midst of all this controversy, NAF stopped accepting consumer arbitrations in July 2009.

On October 26, 2009, the highest court in Washington State, where Ms. Cariedo and Ms. Candler brought their case against Dell, ruled that the mandatory arbitration agreement written into the fine print of their computer purchase agreements could not be enforced because NAF, the arbitrator, was not available. The court refused to appoint a different arbitrator.

The Washington court also said that the provision prohibiting class action lawsuits could not be enforced. Class actions are important because they allow individual consumers to use their collective resources to hire experts to testify at trial. In consumer cases, where the amount at stake is usually the price of the purchased item, the expense added by hiring an expert makes the lawsuit unreasonable to fund. When the expense is shared by many consumers of similarly defective products, the lawsuit becomes possible.

Now Ms. Cariedo, Ms. Candler and everyone else who purchased defective computers from Dell can go to court to ask for their money back (at least in Washington State). They can come together in a class action to bring the best case possible against Dell and other corporations selling defective products. This ruling, opening the courts to consumers despite the fine print designed by companies to keep them out, recognizes that consumers’ ability to sue is crucial to preventing widespread misconduct by corporations.

Paula Z. Segal is a second year student at City University of New York School of Law and a Haywood Burns Fellow in Civil and Human Rights. Before law school, she taught English to Speakers of Other Languages and continues to develop materials for ESOL instructors to connect language and life skills. She is also working with the New York Civil Liberties Union to reduce the school to prison pipeline and coordinates the CUNY Street Law Team, which brings the law to New York City high school students and community groups. For more on the school to prison pipeline, go to http://www.nyclu.org/issues/youth-and-student-rights.

Judges: Modern-Day Superheroes?

The state of California recently descended into such financial difficulties that British paper The Guardian questioned whether it might prove to be the first failed US state: “Desperate to pay off a crippling budget deficit, California is slashing spending in education and healthcare, laying off vast numbers of workers and forcing others to take unpaid leave.” The California Progress Report, a local forum for progressive advocates, listed the extent of permanent state budget cuts in social services as including developmental services, Medi-Cal, SSI/SSP (Supplemental Security Income/State Supplemental Payment Program), programs for senior citizens, mental health services, and programs for students with disabilities in community colleges.

Amidst the reductions, cutbacks in the In-Home Supportive Services (IHSS) program were particularly disappointing to disability advocates. The In-Home Supportive Services program currently serves approximately 450,000 children and adults with disabilities and mental health needs, people who are blind and low-income senior citizens. The Department of Health Care Services also plays a big role in overseeing the program for the state, because the program receives matching federal Medicaid (Medi-Cal) funding as well as state and county resources. The IHSS program is administered locally at the county level.

Beginning November 1st, the state of California decided to eliminate all IHSS services for an estimated 40,000 low-income senior citizens and people with disabilities. Another 90,000 people were slotted to lose services such as food shopping and assistance and help with laundry and housecleaning. These services are often crucial to a person’s ability to live independently, outside of more costly and generally inappropriate institutional settings.

Rather than let this happen, a coalition of lawyers and advocates filed a class action lawsuit on October 1st, in hope that the court would stop the cuts before they went into effect. The state had chosen October 19th as the date it would begin to inform the 130,000 people that they would be losing all or some of their services under the program.

In V.L. v Wagner, a federal judge named Claudia Wilken ruled that the state must suspend its proposed cuts to the IHSS program, because they would result in substantial harm, damage and injury. The judge objected to the arbitrary withdrawal of essential services, saying that the indicators that the state used to revise program eligibility were clearly not based on need, and, as such, “people could lose something irreplaceable – the ability to remain safely in their homes.” Judge Wilken argued that the plaintiffs were likely to show at trial that the cuts to services violate federal law.

Melinda Bird of Disability Rights California, the attorney leading the legal battle, spoke about the significance of the victory: “We are convinced a humanitarian disaster would have resulted from the precipitous and arbitrary withdrawal of essential services approved by the legislature and the administration in the budget, and are delighted that the Court agreed with us.”

This is a great example of the way in which our system of checks and balances works.  In this case, the court system came through to protect 130,000 Californians from an arbitrary government action that would have had real consequences for their well-being. Yet again, our access to justice makes a difference.

(Photo by Borya.)

InJustice of the Peace

By Naoma Nagahawatte, NCRCR Director

More than 40 years after the passage of milestone civil rights legislation in the US, an ugly vestige of the Jim Crow era emerged last week in Tangipahoa Parish, Louisiana. Keith Bardwell - a parish justice of the peace - refused to issue a marriage license to an interracial couple. After the initial shock segued into a dim awareness that we may not actually live in a ‘post-racial’ America, I realized that it might be appropriate to delve a bit deeper into the issue for some clarification:

Clarification # 1) It is illegal to deny people the right to marry based on race, isn’t it?

In 1967, the Supreme Court decided the landmark case Loving v. Virginia, striking down Virginia's anti-miscegenation statute, the Racial Integrity Act of 1924.  The Loving decision overturned an earlier Supreme Court ruling that had upheld anti-miscegenation laws, finally ending all legal sanctions for race-based restrictions on marriage in the United States.

Clarification # 2) If race-based restrictions on marriage are illegal, how could Keith Bardwell deny an interracial couple a license to marry?

According to an attorney with the American Civil Liberties Union (ACLU) of Louisiana, ''He knew he was breaking the law, but continued to do it.'' Bardwell, who has worked as a justice of the peace for 34 years, refused applications to four interracial couples in the past two-and-a-half years.

Clarification # 3) Keith Bardwell told the Associated Press, “I'm not a racist. I just don't believe in mixing the races that way.”

By denying two people of different races the right to marry because of race, Bardwell has discriminated against them on the basis of race.  Discrimination on the basis of race is a dictionary definition of racism… you do the math.

Clarification# 4) Bardwell also said he didn’t perform interracial marriages because, “In my heart, I feel the children will later suffer.”

Guess what? Anticipated prejudice is NOT a sufficient basis upon which to deny a marriage license. 

In 1984, a case called Palmore v. Sidoti came before the Supreme Court.  In Palmore, a Florida lower court ordered the removal of custody from a birth mother, as a result of her relationship and marriage to a member of another race. The lower court held that removal of custody was in the children’s best interest, given the hostility that the court expected the community might have towards interracial families.  The Supreme Court held that the effects of racial prejudice could not justify removing a child from the custody of a birth mother otherwise found to be an appropriate and fit parent, and that this classification on the basis of race is a violation of the Constitution. The Palmore theory can extend to marriage licenses. Denying a marriage license to an interracial couple on the contention that the effects of racial prejudice will cause their child to suffer is insufficient, violating the 14th Amendment of the Constitution. Put another way, the “for the kids” argument holds no water.

Still, there is reason to take heart. Steps against Mr. Bardwell have been taken. The ACLU of Louisiana sent a letter to the Louisiana Judiciary Committee, which oversees the state justices of the peace, asking it to investigate Bardwell and recommending ''the most severe sanctions available, because such blatant bigotry poses a substantial threat of serious harm to the administration of justice.'' In addition, the recently-denied couple is seeking to file a case against Bardwell with the U.S. Department of Justice. Our structure of checks and balances remains intact, allowing those like Bardwell, who slip through the system’s cracks, to be brought to justice.

Halliburton/KBR Employee Still Has No Access to the Courts

In light of the Franken Amendment currently pending in Congress, we thought it timely to re-post our earlier commentary on Jamie Leigh Jones' lack of access to the justice system. When first accepting employment with KBR/Halliburton, Jones had been forced to sign a mandatory arbitration clause which has now left her unable to pursue accountability for having been raped on the job.

Read Halliburton/KBR Employee Has No Access to the Courts.

Federal Ruling Allows Agencies to Investigate Child Abuse

Every so often,  we at NCRCR like to take a break from troublesome legal trends to celebrate the ways in which the courts help to protect our rights.  One such victory was recently handed down by an appeals court on the west coast, in Disability Law Center of Alaska v. Anchorage School District.

The case involved an elementary school class of children with intensive special needs in Anchorage, Alaska. According to case attorney Holly Johanknecht, the class of less than ten students was rumored to be very poorly supervised. There were even allegations that the conditions in the classroom left some students vulnerable to physical abuse. A disability rights organization known as the Disability Law Center of Alaska got wind of the situation and sought to investigate in order to protect the children. The organization filed a lawsuit to gain access to student records, including contact information for the students’ parents. The suit was filed under the federal Developmental Disabilities Assistance and Bill of Rights Act, which gives agencies, like the Disability Law Center of Alaska, the authority to investigate incidents of abuse and neglect of individuals with developmental disabilities.

In the first ruling on the case, the district court found that another piece of federal legislation, the Family Educational Rights and Privacy Act (FERPA) prevented the school district from releasing the records. On appeal, however, the court held that the Developmental Disabilities Act provides an exception to FERPA. Judge Jerome Farris wrote in the decision:

"The agencies stated that 'if a school or other facility could refuse to provide the name and contact information, it could interfere substantially with investigation of abuse or neglect, thereby thwarting Congress' intent that act to protect vulnerable populations from abuse or neglect.’”

The appeals court did mandate that the Disability Law Center is required to maintain the confidentiality of any student records it receives. Yet through this ruling, the court ruled in favor of protecting the rights of a group of young children very much unable to defend themselves, establishing valuable legal precedent in the process. The Disability Law Center of Alaska and its investigators are currently working to ensure the safety of the children affected.

Becoming a Juror Just Got More Complicated: Why the Gross Decision Matters.

by Koert Wehberg

In February 2007, Lilliann Williams-Jackson, an elementary school counselor in Washington, DC, was called to serve as a  juror in a death penalty case. A person’s life hung in the balance and Williams -Jackson took her obligation seriously.  Like countless citizens before her, Williams-Jackson believed her job would be waiting for her when she returned.  Unfortunately, she returned from jury duty in June only to learn that she had been involuntarily transferred to a different elementary school. 

Not believing the school principal’s story about budget cuts, Williams-Jackson sued the District, alleging that she had been transferred in violation of the Juror Act, a law protecting people from mistreatment by employers for having served jury duty.  During the trial that followed, a federal judge found the testimony of Williams-Jackson’s school principal, Cheryl Warley, to be inconsistent. Evidence indicated that signatures on documents from a school committee approving the transfer were forged and that members of the committee had not even participated in the meetings that lead to the reassignment. However, the judge said that she had to follow the Supreme Court’s analysis from a previous case known as Gross v. FBL Financial Services, decided in June of this year.

In Gross, Justice Clarence Thomas held that the Age Discrimination in Employment Act (ADEA) required plaintiffs to prove that they had  experienced discrimination because of their age.  If there was no direct evidence of discrimination then they would not be able to prove their case.  This makes things exceedingly difficult for plaintiffs, especially in an employment situation, where employers have several motivations for demoting or terminating employees. 

In the Williams-Jackson case, Judge Collyer compared the text of the Juror Act to that of the ADEA.  Where the Juror Act defines discrimination as retaliation “by reason of” jury service, the Supreme Court held that the ADEA required plaintiffs to prove that they experienced discrimination “because of” their age. Since Williams-Jackson did not offer any direct evidence that her jury duty by itself caused her involuntary transfer, she did not succeed in her suit.  If people can be reassigned for performing their civic duty or demoted because of their age by failing to circumvent such a high evidentiary burden there is no telling what other protections under anti-discrimination laws hang in the balance.
 
In the jury duty case, where the mistakes of the school district were made evident, there was no recourse for the plaintiff. Based on Gross’s narrow interpretation of the ADEA, those that want to prove discrimination have a much higher bar, subsequently thwarting the public’s ability to get their discrimination cases into court. The Williams-Jackson case serves to illustrate the transcendence of the Gross ruling, showing that whether it be an issue of civic duty or age discrimination, Gross will continue to have negative consequences on civil rights in the United States.


Koert Wehberg is an Equal Justice Works Fellow and Staff Attorney in the Disability Law Center at New York Lawyers for the Public Interest. Koert's fellowship focuses on eliminating physical access barriers for low-income people of color with disabilities.  Some of these barriers include a lack of ramp access for wheelchair users as well as Braille signage for people who are blind.  Koert also works on housing discrimination cases representing people with disabilities who seek accommodations from landlords.  Koert graduated from Hamilton College with a BA in English and went on to receive his JD from the Syracuse University College of Law with a certificate in Disability Law and Policy.  He is a native New Yorker and enjoys listening to heavy metal in his spare time.

NCRCR Interview Series: Citizens United v. Federal Election Commission

Tricia Perry of the National Campaign to Restore Civil Rights spoke with legal scholar Erwin Chemerinsky about the recent re-argument of the Citizens United v. Federal Election Commission case in the Supreme Court. Listen in as Chemerinsky explains the potential impact of this ruling on our civil rights.

How the Supreme Court Pulled a Fast One, and America Didn't Notice.

The media storm surrounding Supreme Court Justice Sonia Sotomayor's confirmation provided us with a powerful illustration of the ways in which our court system not only mirrors, but affects our day-to-day lives. In a nation that is 12.5% Latin American (as of the 2000 Census) and roughly 50% female, the appointment of the first Latina Supreme Court Justice was certainly long overdue. However, legal issues that get zero attention in the mainstream media also have a profound impact on our lives, perhaps more given their ability to slide by unnoticed. This is especially true of two recent cases that flew under the radar, Bell Atlantic Corp vs. Twombly, and Ashcroft vs. Iqbal.

These two cases reflect a significant shift in the Supreme Court’s thinking around the issue of how much people have to know and present to bring a case to court.  In Twombly and Iqbal, the Supreme Court decided to impose a new and vague standard – the 'plausibility standard' – in order to start a case.  What does the term ‘plausibility standard’ mean?  The courts and perhaps Congress are going to take a while to sort it out, but it seems to mean that those seeking to bring a lawsuit not only have to show that the alleged misconduct was not only possible, but plausible. In the past, demonstrating that sort of proof was required during the course of the lawsuit, not as part of the initial papers filed at the start of the case. For example, if people are subject to employment discrimination they may know that they were demoted or fired and that they didn’t do anything wrong, but they don’t have access to the behind-the-scenes information that went into the firing/demotion decision. That means that a person would have a hard time getting proof of discrimination, which is now required in order for that person to bring their case to court.

When the Supreme Court first announced the new standard in Twombly, the media did not pick up on the new requirement. This is likely due to the distinct lack of sex-appeal in anti-trust cases. The media only cottoned on to the ‘plausibility standard’ with the Iqbal decision. Iqbal received slightly more media attention due to the facts of the case dealing with the abuse inflicted upon Pakistani immigrant Javaid Iqbal in detention. Nevertheless, the media did not delve into the shift in ‘pleading standard’ or its impacts, certainly not to any significant degree.

According to Alex Reinert, who argued the case, “The difficult question is how courts are supposed to figure out whether or not a complaint plausibly shows an entitlement of relief. One of the things that the Court refers to is ‘the common sense of judges,’ so it’s possible that the Court is suggesting that a judge is supposed to make an inquiry of his or her own as to whether or not he or she thinks that the complaint is plausible, that is, that the facts alleged in the complaint are plausible in the real world.”

Most law students learn that there’s something called “notice pleading” in federal courts.  Notice pleading means that a person starting a new case has to file papers with enough information to give notice to the other side, letting them know what the case is about.  Have the ‘conservative’ members of the court decided to depart from the time-honored, written-in-stone notice pleading? Why?

Whatever the motivation, the change is likely to affect cases of discrimination. This is expected to be a barrier for people who feel they have to prove that their employer or landlord were intentionally discriminating against them.  It’s often nearly impossible to get the e-mails or memos documenting the intent of an employer or landlord before you file a case.  No one hands documents over until they are required to do so.  Now, it’s likely that cases won’t get to the stage when these kinds of documents would be required to be turned over.  This new barrier posed by the Supreme Court appears to be too high.

Professor Reinert highlighted a further concern raised by the vague new pleading standard, adding, “I don’t know if that’s what the Court was saying, but if that is what the Court is saying, then litigators at least should be worried over whether or not that violates the Seventh Amendment right to a jury trial, because the Seventh Amendment says that juries are to determine facts, not judges. And so if courts start to use this plausibility standard to determine facts on their own, then I think we need to start being worried about whether or not our Seventh Amendment rights are being eroded as well."

Given the bedlam caused by both decisions, Senator Arlen Specter (D-PA), recently introduced a bill in Congress, attempting to restore the standard that existed before Twombly and Iqbal.  The Senator's bill should be given due consideration as a means of curbing the national trend of using technicalities to block access to justice.

Equally important is the public’s role. We the people need honest discourse and a clear understanding of the role of judges and courts in our society. Americans need to understand that what happens in the courtrooms of our nation, however obscure, will inevitably play out in the course of our daily lives.  Even these so-called conservative judges are “making law.”  We, and our media, should be paying attention.

Obama Names Four Federal Judge Nominees for California

Last week, President Obama named four new judicial nominees for California’s federal bench. Included in the group is Judge Jacquelyn H. Nguyen, who if confirmed would be the nation’s first Vietnamese district judge. Three of the four nominees are Asian Americans, a group long underrepresented on the federal bench.

The new nominees are Dolly Gee, age 50; Judge Jacquelyn H. Nguyen, age 44; Judge Edward M. Chen, age 56; and Judge Richard G. Seeborg, age 52. Ms. Gee is a labor and employment litigator, and past president of the Southern California Chinese Lawyers Association. She is currently managing partner of the Los Angeles law firm Schwartz, Steinsapir, Dohrmann & Sommers LLP. Jacquelyn H. Nguyen is currently a Los Angeles County Superior Court Judge, and a graduate of UCLA law. Senate conformation would make her the nation's first Vietnamese district judge. Edward M. Chen is a U.S. Magistrate Judge, who worked as an attorney for the American Civil Liberties Union before his judicial appointment. If confirmed, Judge Chen would be the only Asian American on the Northern District bench. Richard G. Seeborg is a  U.S. Magistrate Judge, who served as an assistant U.S. attorney in San Jose. Seeborg worked at Morrison & Foerster in Palo Alto and San Francisco prior to being named a magistrate judge.

 
Supreme Court Justice Sonia Sotomayor was grilled for almost a week by members of the Senate Judiciary Committee. However, Obama's district court appointments will likely be subject to less scrutiny as lower court nominations are usually less controversial. Regardless, these nominations will have a massive impact on the future of civil rights in the U.S. Within Congressional and Constitutional limits, district courts can hear nearly all categories of federal cases, including both civil and criminal matters. District courts are relied on to apply the law at trial, while appeals court judges have more leeway to interpret a law's intent and context. Currently, the U.S. 9th Circuit Court of Appeals in San Francisco has two of its 28 judgeships vacant, and a third possible opening early next year. Therefore, it is crucial that we pay close attention to the proceedings, our rights do hang in the balance.