Latest Scholarship

October 15, 2018

Preap High Court Argument Focused on Immediacy of 'When'

[Cross-posted from Law360]

For years, the U.S. government has detained immigrants as a way of enforcing the U.S. immigration laws and to deter future flows of migrants to the United States. Over the last 20 years, the U.S. Supreme Court has regularly grappled with legal challenges to immigrant detention. Just last term, for example, the court in Jennings v. Rodriguez[1] found that there was statutory authority for the detention of certain noncitizens without bond but remanded the case for the court of appeals to determine the constitutionality of the statutory provision in question.[2]

From his first days in office, President Donald Trump as part of an aggressive immigration enforcement agenda has enthusiastically ramped up the use of immigrant detention. In a January 2017 executive order, he announced the end of “catch and release,” a phrase disparagingly referring to the conventional practice of arresting and then allowing noncitizens, who are not at risk of absconding or a threat to the public safety, to bond out of custody while awaiting a removal hearing. Detention became the norm. The Trump administration specifically has engaged in the aggressive use of detention (combined, for a time, with the controversial policy of separating families) in seeking to deter Central American asylum seekers from coming to the United States. Inevitable legal challenges followed and can be expected to continue.

In light of the Trump administration’s aggressive use of immigrant detention, the case of Nielsen v. Preap,[3] which was argued in the Supreme Court on Oct. 10, takes on added significance. The question presented in the case is a technical one of statutory construction. However, the case raises broader questions about limits on the U.S. government in the enforcement of the immigration laws, in this instance the use (and limits) of detention. Oral argument received more public attention than normally received by ordinary immigration cases because newly confirmed Justice Brett Kavanaugh was participating in one of his first arguments. (Unlike Justice Clarence Thomas, Justice Kavanaugh asked questions.)

The statutory question presented in Nielsen v. Preap is whether an immigrant can be subject to mandatory detention under 8 U.S.C. Section 1226(c) if, after release from criminal custody by a state, the U.S. Department of Homeland Security does not immediately take the immigrant into custody. The statute provides that the U.S. government “shall take into custody any alien ... when the alien is released, without regard to whether the alien is released on parole, supervised release or probation ...” (emphasis added). As frequently occurs in immigration cases that come before the Supreme Court, the issues raised boil down to the interpretation of the immigration statute — infamous for its complexity — and the deference, if any, properly afforded the agency’s determination.

The plaintiffs in this case are lawful permanent residents who committed a crime, served their criminal sentences and, upon release, returned to their families and communities to rebuild their lives. Years later, immigration authorities took them into custody and detained them without bond hearings under Section 1226(c). Plaintiffs argue that, because they were not detained “when ... released” from custody, they were not subject to mandatory detention under the statute.

Born in a refugee camp after his family fled the Khmer Rouge in Cambodia, one of the named plaintiffs, Mony Preap has been a lawful permanent resident of the United States since 1981. He has two 2006 misdemeanor convictions for marijuana possession. Years after being released from custody for these convictions, Preap was transferred to immigration detention. Since then, Preap has been granted cancellation of removal, thus allowing him to remain in the United States indefinitely, and released from immigration custody.

Noting that “every day in the United States, the government holds over 30,000 aliens in prison-like conditions while determining whether they should be removed from the country,” the U.S. Court of Appeals for the Ninth Circuit[4] held that the plain language of the statute controlled: “The statute unambiguously imposes mandatory detention without bond only on those aliens taken ... into immigration custody `when [they are] released’ from criminal custody. And because Congress’ use of the word `when’ conveys immediacy, we conclude that the immigration detention must occur promptly upon the aliens’ release from criminal custody.”

The Ninth Circuit’s holding conflicted with four circuits (First, Second, Third and Tenth)[5], a fact noted by Chief Justice John Roberts during oral argument.

In its briefs before the Supreme Court, the United States argues that, properly interpreted, the statute allows for the noncitizen to be subject to mandatory detention under Section 1226(c), regardless of whether the U.S. government takes custody immediately after release from criminal custody. It further contends that the Board of Immigration Appeals[6] has squarely rejected the Ninth Circuit’s interpretation of Section 1226(c) and that the agency’s interpretation deserves deference.[7]

Arguing that the court of appeals correctly interpreted the statute, respondents argue that the statute imposes mandatory detention only upon an immediate transition from criminal to immigration custody. In their view, the plain language and structure of Section 1226(c) compel the court of appeals’ conclusion. Finally, respondents contend that, because the statute is clear and not ambiguous (a prerequisite for deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc.[8]), deference is not justified.

Oral arguments in the case focused almost exclusively on the proper interpretation of the statute. Assistant to the Solicitor General Zachary Tripp argued on behalf of the U.S. government. Asking the very first question, Justice Sonia Sotomayor began by focusing on the proper interpretation of the statute. Tripp replied that the statute made detention mandatory but that there was no restriction on the timing when U.S. immigration authorities had to assume custody after release by state and local law enforcement.

Throughout the argument, questioning centered on the proper interpretation of the statute, with a focus on the language and structure of the particular provision in question, which states that the U.S. government “shall take into custody any alien ... when the alien is released” (emphasis added).

At various points, Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor and Neil Gorsuch expressed concern about the seeming unfairness of the possibility that, under the U.S. government’s interpretation, the noncitizen could be released and, many years later, put in mandatory detention by Immigration and Customs Enforcement. Justice Ginsburg specifically asked Tripp whether he truly was arguing that “it is totally irrelevant whether ... the change in custody is immediate or it’s seven years down the road?”

Justice Breyer also expressed concern about the length of time between a noncitizen's release and placement in mandatory detention, and mentioned that one of the cases discussed in the briefs mentioned a noncitizen who had been released for stealing bus transfers and the U.S. government arrested him 14 years later. He posed the hypothetical of a grandfather who, under the U.S. government’s interpretation of the statute, might be arrested 50 years after release from state custody. Justice Breyer suggesting that one way to avoid serious constitutional questions was to infer a reasonableness requirement into the statute — mandatory detention is permissible only when there are reasonable delays in the arrest of a noncitizen after release from state custody. Tripp rejected the compromise proposal, ardently resisted any limit on the U.S. government’s detention power under the statute and dismissed the possibility that the lack of a time limit raised a constitutional question.

In short, the justices pushed Tripp on the precise meaning of the statutory language. Throughout the arguments, he emphasized that the statutory language was mandatory and required the government to assume custody any time after the noncitizen's release from state custody; at the same time, Tripp fervently resisted any limits on the time when the U.S. government might assume custody, a position that seemed to trouble a number — perhaps even a majority — of the justices.

Concerns with indefinite detention like the type discussed last term in Jennings v. Rodriguez undoubtedly were on the minds of the justices. When the questioning swerved into the length of detention, Justice Samuel Alito sought to limit the inquiry to the statutory questions before the court.

Cecellia D. Wang, Deputy Legal Director of the ACLU, argued for respondents: Taking the opposite position of the U.S. government, she pressed the argument that the text and structure of the statute left no room for any but the shortest time between release from state custody and the federal government placing the noncitizen in mandatory detention.

Several justices queried Wang about the meaning of the statute. At one point, Justice Gorsuch seemed to enjoy the semantic give-and-take with her about the language and use of grammar. Chief Justice Roberts and Justices Alito and Kavanaugh seemed worried that respondents interpreted “when” in the statute as the same day as release. Justice Alito worried about forcing the U.S. government to act too quickly, especially if state — such as California, which he specifically mentioned — and local governments are not cooperating with the federal government.

In a most revealing part of the argument, Justice Kavanaugh pressed Wang on her interpretation of the statute and stated that, in passing the 1996 immigration reforms requiring mandatory detention, Congress would have known that the federal government would not assume immediate custody “in many cases” but, at the same time, did not place any time limit on the assumption of custody: “Congress knew [federal immigration detention] wouldn’t be immediate and yet Congress did not put in a time limit. That raises a real question for me whether we should be superimposing a time limit into the statute when Congress, at least as I read it, did not itself do so.” He later questioned whether, as Wang contended, the statute should be read narrowly because Congress was focused on “harshness” toward immigrants not generosity toward them (as her interpretation of the statute would offer). At the same time, Justice Kavanaugh explored on rebuttal with Tripp what he might view as a reasonable time limit for the U.S. government to assume custody of a noncitizen released by the state.

In questioning Wang, Justice Alito suggested that the options for the court in interpreting the statute are to take custody “within 48 hours as required by the Ninth Circuit, some reasonable period or after the alien is released.”

Importantly, there was no real discussion of deference to the agency’s interpretation of the statute. The justices apparently saw the statute as being subject to interpretation, but not having the ambiguity that might require some sort of deference to the agency.

Although it is hazardous to guess the outcome of a case from oral arguments, it struck me that the justices were troubled by what they viewed as the extreme positions posed by the opposing sides in Nielsen v. Preap. Interpreting the statute to allow federal arrest and detention many years after release from state custody, as advocated by the United States, seems unfair. At the same time, requiring immediate arrest by federal officers upon release from state custody, as argued by the ACLU, seems unrealistic. One possibility is that a majority could be cobbled around Justice Breyer’s suggestion that the U.S. government be permitted to subject a noncitizen to mandatory detention if taken into custody within a reasonable time of release from state custody. Such a compromise would perhaps avoid those disputes over the constitutionality of limits that made the case of Jennings v. Rodriguez so difficult to resolve, thus requiring re-argument.

October 8, 2018

A 'Kavanaugh Special Episode' of 'What Trump Can Teach Us About Con Law'

Episode 28 of the podcast "What Trump Can Teach Us About Con Law" explores the Brett Kavanaugh Supreme Court confirmation process, and constitutional rules pertaining to justices, including how and when one might be impeached.

September 18, 2018

Blue State Republicans Fret Over 'Tax Reform 2.0' -- rightly so

By Darien Shanske and Dennis Ventry

[Cross-posted from The Hill]

The new tax bill, “Tax Reform 2.0,” is here, and it makes permanent the $10,000 cap on the state and local tax deduction (SALT) created by the Tax Cut and Jobs Act (TCJA) in December 2017.

Meanwhile, Republican politicians from districts where high percentages of taxpayers will be affected by the cap are wary of making the cap permanent. A deeper dive into theories of taxpayer psychology and tax policy indicates these politicians are right to be concerned.

First, consider how the cap will shrink refunds or increase tax bills for millions of taxpayers.

Early next year, Jane fills out her tax return using her preferred commercial tax prep software. She enters her property tax information, expecting, as in prior years, that her federal tax liability will drop considerably. But she surpassed the SALT cap of $10,000 when she previously entered her $12,000 in-state income taxes paid.

Under prior law, and when added to her $8,000 in property taxes, Jane would have received a $20,000 federal tax deduction. But the new law caps her deduction at $10,000, and so she loses the value of the additional $10,000 deduction.

How much does she lose? If she’s in the 24-percent tax bracket, Jane is worse off by $2,400, either resulting in a smaller refund or more tax.

And it gets worse for higher-income taxpayers. If Jane had a total of $110,000 in SALT paid rather than $20,000, she would lose the value of the additional $100,000 deduction. Since Jane would likely be in the top tax bracket of 37 percent, she’d owe $37,000 more in taxes.

Beyond the sting of owing more in tax, Jane also may feel that she is being punished for doing the right thing: opting to pay more in state and local taxes in exchange for better state and local public goods.

Research indicates that dismay at this tax change might be quite politically salient to the taxpayer when making voting decisions. Compare the large — and explicit — jump in tax liability described above to an increase in withholding taxes from periodic paychecks.

Moreover, millions of taxpayers are likely to react negatively to their higher-than-expected tax liability even if some of those same taxpayers pay lower taxes in the aggregate due to other changes in the law.

Indeed, the SALT cap is arguably already impacting property owners in jurisdictions whether they itemize or not because itemizing home buyers understand that their future property taxes will no longer be deductible over the cap and are accounting for that change in their home-buying budgets.

Homes are typically a taxpayers’ largest asset and voters can be aggressive in voting to protect the value of that asset.

Retaining the SALT cap is also fraught with political peril because taxpayers are sensitive to the reality and perception of procedural and substantive fairness. It is unlikely that the partisan, rushed, secretive and demonstrably flawed processes that produced TCJA and now Tax Reform 2.0 are going to be perceived as fair.

As for substantive fairness, Republicans have claimed repeatedly that most taxpayers will receive lower tax bills. But it is hard to explain why two-earner families in a handful of states should not get a tax cut on account of the SALT cap, to say nothing of the unequal political valence of the jurisdictions targeted by Congress with a tax increase.

It is possible for voters to be convinced by more abstract tax policy arguments. And politicians are to be commended when they pursue the correct policy and endeavor to persuade their constituents. But the policy arguments for the SALT cap are feeble.

One argument is that the cap is progressive in that wealthier taxpayers are affected by it. But the cap was embedded in a very regressive bill. A tax change that only subjects a small sliver of wealthier taxpayers — though not the wealthiest — to higher taxes is not fair.

Another unpersuasive argument is that the SALT cap corrects for the fact that low-tax states were subsidizing high-tax states through the deduction. For starters, this kind of inter-state accounting is corrosive to our polity.

Worse, it leaves out a key piece of information. Specifically, the states that have the most taxpayers affected by the cap are among the wealthiest states and thus are net “givers” to our common government. Capping the SALT deduction makes these states’ relative contribution even higher.

Another argument is that a full deduction for state and local taxes might not be appropriate as a matter of tax principle. Fair enough, but it’s incongruous in the context of a tax bill loaded with tax policy blunders and deviations from income tax principles, most notably new code section 199A, the so-called passthrough deduction, which is a bacchanal of unprincipled and regressive income tax policy.

Phase 2.0 will make this blunder permanent, so the claim that the SALT cap is a principled change rings quite hollow.

In any event, a more typical approach to situations where it is uncertain how much of a deduction is proper would have involved using a percentage cap, like 50 percent. Limiting the SALT deduction in such a way would have been unpopular as well, but it would have been principled. Other principled options exist.

Perhaps the biggest political danger posed by the SALT cap is that it could create millions of apostles carrying a simple message: Ultimately, very few taxpayers will receive their promised tax cut from Republican tax changes.

This is because borrowing trillions of dollars (with interest) to reduce taxes does not a tax cut make. While taxpayers at the very top of the income ladder will realize huge tax savings both now and in the future, the rest of us will ultimately face higher tax bills and/or fewer vital services.

The millions of taxpayers paying more in taxes next year due to the SALT cap are just the harbingers.

Darien Shanske and Dennis Ventry are professors at the University of California, Davis, School of Law. Shanske's areas of academic interest include taxation, particularly state and local taxation, local government law, public finance and political theory. Ventry is an expert in tax policy, tax practice and tax filing and administration.

 

 

September 18, 2018

Episode 27: "Treason"

Episode 27 of "What Trump Can Teach Us About Con Law" looks at treason, a topic that has come up a lot in recent months, in relation to President Trump's own behavior and because he tweeted "Treason?" after that anonymous New York Times op-ed that the Times attributed to a senior administration official. The episode provides historical context through the case of Bill Blizzard, a 1920s union organizer charged with treason against the state after leading an army of West Virginia coal miners into battle against non-union forces, including the local sheriff.

 

September 10, 2018

Originalism is at war with America

By Alan Brownstein

[Cross-posted from The Hill]

President Trump is nominating federal judges, and Supreme Court Justices such as Judge Brett Kavanaugh, who claim to be committed to “originalism.” This approach to constitutional law requires that the Constitution be interpreted to mean today what the text was intended or understood to mean at the time it was written. But originalism conflicts sharply with American reality and American ideals.  

Years ago, Frank Sinatra sang a song about what America meant to him. The last line was “But especially the people, that’s America to me.” If that’s what America is, then originalism is unamerican.  Because there is no place for the over 300 million Americans today in originalist interpretations of constitutional law. We just don’t count.

Who does count? Only the people who were here in the 1780’s and 90’s or when specific constitutional amendments were adopted. The vast new diversity of the American people today has nothing to offer to our political foundations. 

Both originalists and non-originalists look to American history to interpret the Constitution. But to originalists, most of that history stops 230 years ago. The American constitutional story largely begins and ends on the first page. To non-originalists, American constitutional law, like America itself, is a story that never ends.

The key issue separating originalists and non-originalists is what to do with all of the rest of American history after the Constitution was ratified. When courts interpret the Constitution, just how much weight should be assigned to the collective experience of the American people over the last 230 years. The originalist answer is none or as little as possible. What matters most is what judges decide constitutional language meant over two centuries ago.

Put bluntly, this originalist commitment to a constitution frozen in time and divorced from the changes America has undergone over the centuries repudiates the core values of the American experience.

Think about what is distinctive and special about America. European governments were chained to centuries of history and tradition. That was the old world. America is the new world. We are the pragmatists, the experimenters. We try things out and continue what works and discard what doesn’t. We do that with everything including law. But that’s not the America of originalists. From their perspective, constitutional law is fixed and immutable. It cannot evolve. Judges cannot learn from American experience.

Non-originalists believe that the American people have worked with constitutional law for over two centuries. We learned a lot. We struggled to create constitutional doctrine that reflects who we actually are as a people, not some ideologically manipulated picture of who a few judges think we once were.

Unlike originalists, non-originalists recognize that the Constitution must take account of the changed understanding in our society of the status and rights of women. Accordingly, privacy and autonomy rights including the right to access to medical contraceptives must be protected and gender discriminatory laws must be subjected to rigorous scrutiny.

Unlike originalists, non-originalists understand how much our society has learned over time about the LGBT community. Because they are no longer in hiding in response to persecution, we can now see our gay and lesbian family members, friends, neighbors, co-congregants, and colleagues as people with the same needs and rights as the rest of us. At the constitutional level, this means that laws criminalizing sodomy or prohibiting same-sex couples from marrying must be struck down.

Unlike originalists, non-originalists have learned that democracy needs constitutional protection against political threats the framers may have under-estimated or ignored. Courts cannot close their eyes to elections being manipulated through burdens on voting and gerrymandered districts. The Constitution must be interpreted to protect voting as a fundamental right and to insist, at a minimum, that election districts must be of equal size and reflect the principle of one person, one vote.

Put simply, non-originalists believe that constitutional case law is a process grounded in the on-going experience of the American people. Older decisions can be challenged because of their real world consequences. Non-originalist judges may make mistakes. When that happens, eventually the wrongfully decided cases are overruled. Constitutional law does not become permanent unless it works, unless it resonates with the beliefs of the American people overtime.

Originalists believe that history has an iron grip on constitutional meaning. The great constitutional questions of the day turn on lawyers debating what people understood centuries ago, not on the needs of Americans today and the values we have forged over centuries of struggle.

Alan Brownstein is a professor of law emeritus at the University of California, Davis School of Law. He has written numerous articles for academic journals and opinion pieces for other media on a range of constitutional law subjects. He is a member of the American Law Institute and serves on the Legal Committee of the Northern California American Civil Liberties Union. He received his B.A. degree from Antioch College and earned his J.D. (magna cum laude) from Harvard Law School, where he served as a Case Editor of the Harvard Law Review.

 

 

September 10, 2018

California court finds public trust doctrine applies to state groundwater resources

[Cross-posted from Legal Planet]

The California Court of Appeal for the Third Appellate District has issued an important decision declaring that California’s powerful public trust doctrine applies to at least some of the state’s overtaxed groundwater resources.  The court’s opinion also rejects the argument that California’s Sustainable Groundwater Management Act (SGMA) displaces the public trust doctrine’s applicability to groundwater resources.

The Court of Appeal’s opinion in Environmental Law Foundation v. State Water Resources Control Board decides two key issues of first impression for California water law: first, whether the public trust doctrine applies to California’s groundwater resources; and, second, if it does, if application of that doctrine has been displaced and superseded by the California Legislature’s 2014 enactment of SGMA.  A unanimous appellate panel answered the first question in the affirmative, the second in the negative.

The facts of the Environmental Law Foundation are straightforward and undisputed: the Scott River is a tributary of the Klamath River and itself a navigable waterway located in the northwestern corner of California.  The Scott River has historically been used by the public for recreational navigation and serves as essential habitat for migrating salmon listed under the Endangered Species Act.

Critically, there are groundwater aquifers adjacent to the Scott River in Siskiyou County that are hydrologically connected to the surface flows of the Scott River.  Local farmers and ranchers in recent years have drilled numerous groundwater wells and pumped ever-increasing amounts of groundwater from those aquifers.  As a direct result, the surface flows of the Scott River have been reduced, at times dramatically.  Indeed, in the summer and early fall months, the Scott River has in some years been completely dewatered due to the nearby groundwater pumping.  The adverse effects on both the Scott River’s salmon fishery and recreational use of the river have been devastating.

Environmental groups and the Pacific Coast Federation of Fishermen’s Associations, relying on California’s venerable public trust doctrine, initially responded to this environmental crisis by petitioning Siskiyou County and the State Water Resources Control Board to take administrative action to limit groundwater pumping in the Scott River watershed.  Both the Board and the County declined to do so.

Plaintiffs responded by filing suit, arguing that groundwater resources that are interconnected with the surface water flows of the Scott River are subject to and protected by the state’s public trust doctrine.  Siskiyou County disputed that claim, arguing that the public trust doctrine is wholly inapplicable to groundwater and that the country has no duty to limit groundwater pumping, even in the face of the resulting environmental damage to the Scott River ecosystem. (The Board, by contrast, eventually reconsidered its position, ultimately adopting plaintiffs’ view that groundwater resources interconnected with surface water flows are indeed subject to the public trust doctrine.)

The trial court concluded that the public trust doctrine does apply to the groundwater resources of the Scott River region.  While the litigation was pending there, however, the California Legislature enacted SGMA, which for the first time creates a statewide system of groundwater management in California, administered at the regional level.  Siskiyou County seized upon that legislation to argue that even if the public trust doctrine would otherwise apply to the County’s groundwater resources, the doctrine was automatically displaced and made inapplicable to groundwater as a result of SGMA’s allegedly “comprehensive” statutory scheme.  The trial court rejected this backstop argument as well, and the County appealed.

The Court of Appeal’s decision today resoundingly affirms the trial court on both issues.  On the threshold public trust claim, the justices rely heavily on the California Supreme Court’s landmark public trust decision, National Audubon Society v. Superior Court.  In National Audubon, the Supreme Court held that the public trust doctrine, a foundational principle of California natural resources law, fully applies to the state’s complex water rights system.  Specifically, National Audubon found that the City of Los Angeles’ diversion of water from the non-navigable, freshwater streams flowing into Mono Lake, which were reducing the lake level and causing environmental damage to the lake ecosystem, could be limited by state water regulators under the public trust doctrine.

The court in the Environmental Law Foundation concluded that the rationale and holding of National Audubon are fully applicable to the facts of the Scott River case.  Rejecting the County’s argument that extractions of groundwater should be treated differently from the diversions of surface water that were found in National Audubon to be causing environmental damage to Mono Lake, the Court of Appeal declares:

“The County’s squabble over the distinction between diversion and extraction is…irrelevant.  The analysis begins and ends with whether the challenged activity harms a navigable waterway and thereby violates the public trust.”

Accordingly, the Environmental Law Foundation court concludes that the public trust doctrine fully applies to extractions of groundwater that adversely affect navigable waterways such as the Scott River.

Turning to the County’s SGMA-based defense, the Court of Appeal had little difficulty concluding that by enacting that statute the Legislature did not intend to occupy the entire field of groundwater management and thereby abolish the public trust doctrine’s application to the groundwater resources at issue.  (The County had argued that SGMA’s enactment not only relieves the County of any public trust-related duties, but also precludes the State Water Resources Control Board from acting to protect public trust resources from environmental damage resulting from excessive groundwater extractions.)  The Court of Appeal concludes:

“[W]e can evince no legislative intent to eviscerate the public trust in navigable waters in the text or scope of SGMA…We conclude that the enactment of SGMA does not, as the County maintains, occupy the field, replace or fulfill public trust duties, or scuttle decades of decisions upholding, defending, and expanding the public trust doctrine.”

Environmental Law Foundation v. State Water Resources Control Board represents an important judicial ruling concerning the public trust doctrine’s application to California’s water resources–perhaps the most important since the California Supreme Court decided the iconic National Audubon decision 35 years ago.  Additionally, Environmental Law Foundation is the first California appellate decision expressly applying the public trust doctrine to (at least some of) the state’s groundwater resources.  It’s also the first appellate decision interpreting SGMA, although that decision limits the application of the statute and harmonizes it with longstanding California public trust doctrine.

Perhaps most importantly, the Environmental Law Foundation opinion represents yet another ringing judicial affirmation of the public trust doctrine’s continuing, vital and foundational role in California natural resources law and policy.  The California judiciary has in recent years consistently given a robust interpretation to and application of the public trust doctrine.  Environmental Law Foundation is but the latest manifestation of that most welcome and trend.

(Full disclosure notice: the author of this post serves as counsel of record for the prevailing plaintiffs in the Environmental Law Foundation v. State Water Resources Control Board case.)

September 6, 2018

Happy 11th Birthday, Legal Ruralism

 

I nearly forgot--again this year--to commemorate the birthday of my Legal Ruralism Blog (subtitle:  a little legal realism about the rural).  Last year's milestone birthday slipped right by me.  The day of the inaugural post was actually September 3, 2007, so I'm a few days late.  Never mind:  HAPPY 11th BIRTHDAY, LEGAL RURALISM!   The last time I wrote a post about the blog's birthday was on the one year anniversary (roughly), and it featured a photo of Sarah Palin, who had become the face of rural America as John McCain's running mate.  Remember all that Main Street v. Wall Street rhetoric from Election 2008?  And all that rural bashing that Palin's presence on the national stage elicited?  Actually, sounds rather similar to where we are a decade on, thanks to different political actors.  

 

In the last year, I've noticed that Legal Ruralism was cited in a Vera Institute Report on rural jails and that it was cited in a couple of law review articles (e.g., Savannah Law Review and Georgia State Law Review) by scholars other than me.  Admittedly, I have cited the blog fairly frequently in my own academic writing because often I put on the blog a "half-baked" idea about a possible rural trend, and those posts later prove useful when I wind up writing an academic article about what has, in fact, proved to be a trend.   

 

Maybe Legal Ruralism is beginning to prove the adage, "if you build it, they will come."  Certainly, it has helped several national journalists find me over the past few years, as the media became more interested in rural America in the wake of Trump's election. 

 

Here's the first post, from September, 2007, the first semester I taught my Law and Rural Livelihoods course, which launched simultaneously with the blog:

Three articles in the Sunday New York Times pick up on rural themes and phenomena that we discussed in our first class: lack of anonymity, lack of economic opportunity, and urban use (and abuse) of the rural. 

The first story, about a small-town newspaper in western Nebraska, describes a situation similar to the one I described regarding my own home town: complete listings of calls to law enforcement authorities, reported verbatim in the local newspaper. The Nebraska editor is quoted as saying that these reports rival the obituaries in popularity among readers. A look at the reported items indicate that residents of this Nebraska town not only report petty thefts and minor happenings unrelated to law (e.g., squirrel down the chimney), which might go unreported in  urban places, but that they also officiously report their neighbors’ activities. One caller told police that a 9-year-old boy was being endangered by mowing his lawn when the child’s mother was “perfectly capable of doing it herself.” In light of limited law enforcement resources in rural areas, what are we to make of such uses of those resources? Do stories such as this effectively refute the familiar images of rural folk as self-sufficient, close-knit and looking out for one another in helpful ways? 

The other two articles reflect the lack of opportunity associated with rural areas and discuss two different communities’ debates about how to respond to it. One reports on the 5,000-member Yurok tribe in northern California. Situated along the once salmon-rich Klamath River, the tribe is deciding how to spend $92.6 million in logging proceeds – a figure six times the tribe’s annual budget. Some favor a lump sum distribution to members, while others support investment in programs to address high unemployment, flagging fishing, and the drug and alcohol problems with which the tribe has struggled. Meanwhile, development is afoot: a new gas station and 99 slot machines. 

The third article similarly considers the economic struggles of rural folk. Once a thriving paper mill town in northern New Hampshire, Berlin (population 10,000) is trying both to revive its economy -- and to diversify it, “not to put all our eggs in one basket” as the mayor reports. Construction of a federal prison will begin this fall, and the town is developing a 7,500 acre A.T.V. park which it hopes will generate $700,000 in revenue each year.  

While developments in both Klamath, California and Berlin, New Hampshire, are generating hope among residents, the extent to which those residents have considered the downsides to such developments are unclear.

Interestingly, the Klamath River and the Hoopa Tribe who depend on it were in the New York Times again this week.  Christopher Chavis regularly posts about New Hampshire and elsewhere in New England, as he did here a few days ago.  And as for rural self-sufficiency, that was a major theme of this post from a few days ago.  So, I guess the more things change, the more they stay the same.  That's certainly true of the "urban use of rural" label, one of the "tags" I put on that very first post eleven years ago.  At this point, more than a decade on, I've used that label more than 100 times, a sad commentary on the ongoing relationship between rural and urban in the United States.  

 

A dear colleague from another institution recently pointed out that someone forgot to tell me that blogging is so yesterday's medium.  Maybe so, but students like doing it in my three seminar courses (I also have a Feminist Legal Theory Blog and a Working Class Whites and the Law Blog) because it's a great way to exchange ideas, to have an extended conversation, to sharpen written communication skills.  I think I'll stick with it for a while--at least another 11 years.  

September 4, 2018

McClatchy feature on policing in rural California echoes my theorizing of law's relation to rurality

Most Wanted Poster

Trinity County, California, Courthouse, July 2018

Photos by Lisa R. Pruitt 

The headline is "Calling 911 in rural California?  Danger might be close, but the law can be hours away," and four Sacramento Bee journalists contributed to this major feature, which has been in the works since December, 2017.

 

I was gratified to see the story--which documents the reality (and consequences) of lack of effective law enforcement and high per capita violent crime rates in California's nonmetro counties.  To be clear, the news is bad, but I was gratified in that the story confirms work I have been doing for more than a decade now (some of it documented in this blog since September, 2007, 11 years ago this month).  That work has been theorizing the difference that rurality makes to law's operation and people's attitudes about law.  In other words, what is the legal relevance of rurality and, thus, why should legal scholars attend to rural difference?  why should "rural" be a category of analysis in the implicitly urbanormative field of law?

Siskiyou County Sheriff's Office, Yreka, California, July 2018

photos by Lisa R. Pruitt (c) 2018

 

Just a few years ago, I published a chapter on this issue in a volume of legal geography essays.  Mine was titled, "The Rural Lawscape: Space Tames Law Tames Space."  My argument was that rural spatiality is in tension with law.  That is, the distance between homes and the distances that legal actors must traverse in order to exert law's authority--to make law meaningful--practically disables law.  Technology can help (that is, time can trump space), but it's costly and cannot always be a substitute for the presence of human law enforcement.  Further, rural residents' sense that they must be self sufficient is reinforced by this lived reality.  As academics express it, society, spatiality and law and all mutually constituting or co-constitutive.  If people know that legal actors such as law enforcement are effectively not present, then they know they must take care of themselves.  In a sense, the lack of efficacy of law promotes a sort of frontier justice or informal order.   

 

Now, the empirical work of these Bee journalists confirms my theorizing with hard data about the number of sheriffs deputies per 100 square miles in California counties--including those all across the state, not just in the northern third on which Sac Bee usually focuses.  These journalists also look at  violent crime rates, confirming that  many of the highest crime counties are "rural" according to the metric used by the reporters:  Alpine (with a population of just 1,175, the state's least populous county, in the eastern Sierra) and Lassen (in the northern Sierra) lead the pack.  Third is metropolitan San Joaquin County, home to Stockton.  

Plumas (again, northern Sierra) is next, followed by the state's most urban county, San Francisco, then nonmetro InyoShastaLake and Modoc.  Of course with populations as low as those of many of these nonmetro counties, the violent crime count doesn't have to be very high to rise to the top of the per capita heap.  Indeed, it would be interesting to see data on deputy sheriff per 1000 residents vs deputy sheriff per 100 square miles.  How different would the map and rankings look then?  And which is the more salient metric, given the significance that material distance plays in rural lives? 

 

The Bee story begins with information about a 2011 double murder in the Trinity County community of Kettenpom, nearer to Mendocino County than to Weaverville, the Trinity County seat.  In that case, Trinity County law enforcement asked the neighbors of a couple who called 911 to check in on that couple because sheriffs deputies coming from Weaverville were several hours away.  The incident ended badly, with the responding neighbors severely wounded and the assailant, who had killed the couple who initially called 911 by the time the responding neighbors arrived, also dead after a car chase.  The responding neighbors, Norma and Jim Gund, are suing the Trinity County Sheriff (in a case now going to the Supreme Court of California), and in the related story by journalist Ryan Sabalow observe, "Over here, we have to take care of ourselves."  Any trust they had in the sheriff's office has disappeared, the story reports.  (The separate story about this law suit is well worth a read, especially for legal eagles who will be interested in the arguments of the respective parties, including the assertion that the Gunds were effectively "posse comitatus," which happens to be the name of a far-right survivalist group).

Another quote from this McClatchy feature similarly speaks powerfully to informal order.  The man quoted is one whom Modoc County Sheriff's deputies knew was growing marijuana illegally.  Yet when they stopped him in a remote locale, they made an effort to calm his anger rather than confront him with the marijuana infraction.  The story reports that the deputies planned to return later with reinforcements rather than risk the consequences of his ire when they stopped him in a vulnerable location.  The man who was stopped, identified as Roberts, told the reporter who was on a "ride along" with the deputies:

We have freedom with responsibility out here.  We can do a lot of stuff. These guys [sheriffs deputies] referee.  

Read more here: https://www.sacbee.com/news/state/california/article215453050.html#storylink=cpy

Wow, law enforcement as referees for what residents want to do?  This is sounding like the wild west, indeed.  (As it happens, I am in the midst of reading about the wild west in Wallace Stegner's Pulitzer Prize winning Angle of Repose, which features vignettes where vigilante justice takes over, much to the dismay of eastern transplants to places like Leadville, Colorado in the 19th century).  

Bieber, California (Lassen County), July, 2018 

Lack of tax revenue undermines rural counties' 

ability to finance public services

 

These somewhat harrowing vignettes from Trinity and Modoc County aside, what I consider to be the story's lede contrasts rural with urban:

As urban areas such as San Francisco, Los Angeles, Sacramento and Fresno grapple with discussions about use of force and the over-policing of minority communities, the state’s rural counties face a growing and no-less-serious law enforcement crisis: a severe shortage of staff that puts the public — and deputies — in danger. 

A McClatchy investigation found that large stretches of rural California — where county sheriffs are the predominant law enforcement agencies and towns often run only a few blocks — do not have enough sworn deputies to provide adequate public safety for the communities they serve.

Elsewhere the story provides this illustration, again contrasting rural and urban:

Del Norte Courthouse, Crescent City, July 2018  

While the Sacramento County Sheriff’s Department employs nearly 160 deputies for every 100 square miles it covers, the tiny sheriff’s departments in Madera, Mariposa and Mendocino counties employ about four deputies for the same amount of turf. In Del Norte and Alpine, the counties make do with two deputies per 100 square miles.

Those figures include non-patrol personnel and those who work in county jails. 

Also, consider the role that the phenomena of distance and personnel shortage played in this tragic story out of Tehama County last fall.  Perhaps these Rancho Tehama events gave the Bee journalists the idea for this story.

Tehama County Sheriff's Office, Red Bluff, California, July 2018

The McClatchy story features a color-coded map that shows the number of law enforcement officers per 100 square miles (again, what would it look like if deputies per 1000 residents?).  It reminds me of maps I have helped to produce here showing lawyers per capita in California counties.  Guess what? As with law enforcement officials, nonmetro counties have shortages of lawyers.

 

Another interesting theme/revelation in the story is that no deputy actively patrols in some counties, e.g., Mendocino, for some parts of the night, though deputies are on call from their homes.  When I wrote something similar on Legal Ruralism about my home town in Arkansas a few years ago (see herehere and here), students in my Law and Rural Livelihoods class were shocked to imagine a place with no law enforcement on duty 24-7, yet it is happening here in California, too.

 

A third interesting theme:  population churn in rural areas, partly driven by low cost of living, has had an impact on how rural communities are policed:

Tex Dowdy, the sheriff-elect of Modoc County, said an influx of transient residents drawn to the low cost of living has made identifying suspects harder for Modoc’s deputies. 

The story quotes Dowdy: 

It isn’t the same place where we used to live.  You used to recognize the bad guy walking around the street because he was in the paper every week.

Alturas, California (Modoc County) July 2018

Note the lack of anonymity theme, about which I have written a great deal in the last decade, including here and here.  The sheriff basically confirmed what I have argued:  in rural counties, the "usual suspects" is as powerful a type of profiling as racial profiling, if not more so (and, of course, the two can overlap).

 

A fourth interesting theme--one also  articulated in my academic writing--is that some people seek our rurality for the privacy and effective seclusion from law that it provides.  (Think Ted Kaczynski, the Unabomber, in rural Montana).  These folks are unlikely to call on law enforcement even when they need it.  Regarding this proposition, the story quotes Humboldt County Sheriff William Honsal in relation to this phenomenon:

Things go on in the hills all around us that go unreported.  We know that. Daily. It happens. It’s something that we’ve just gotten used to. There are shootings that occur in the middle of the night. ... We know that there’s kidnappings, we know there are people getting brutalized out in the hills, we know there are people getting robbed.

Honsal's quote reminded me of this feature by Reveal last fall, which I blogged about here, regarding wage theft and sexual abuse of "trimmigrants" in places like Humboldt and Trinity County.  Of course, immigration status can also make people reluctant to report a crime, a particular concern in places like the San Joaquin Valley.  The Chief Justice of California has, for that reason, criticized ICE for any presence in California courthouses.

 

A fifth theme relates to budgets, cuts to which have undermined a prior practice of deputizing people who lived in the remote reaches of a given county:

Until recent years, many rural departments had regional substations and hired “resident deputies” who lived in the remote areas they served. Those resident deputies knew their territories and most of the locals by name, making it harder for crime to go unnoticed, said multiple sheriffs. Resident deputies also allowed for quicker response times. 

Those in need “just come and knock on your door,” said Modoc’s Poindexter. “You just grab your gun belt and go out the door and try to fix it.”

July 2018, Bieber, California (far northern Lassen County), a sheriff station

at the local school, which is closer to Alturas, in Modoc County, than to Susanville,

the Lassen County seat.

Indeed, in my recent drive up California 299 from Burney (Shasta County) to Alturas (Modoc County), I saw a sign indicating such a remote outpost of the Lassen County Sheriff's office in Bieber, which is near the Modoc County line and also not far from Shasta County.   Yet it is technically in Lassen County, and how interesting that the Lassen Sheriff's substation should be at the school, of all places. (More photos from that journey are here and here with more to come in future posts on access to justice in rural California).  A few years ago, I also photographed a Siskiyou County Sheriff's substation in Dunsmuir.  Though it is at the southern edge of the county, it is hardly remote given its locale on I-5.

 

Siskiyou County Sheriff's

Substation, Dunsmuir July 2016

Another aspect of the economic situation is the inability of counties to tax public lands, both federal and state.  The story explains:  

The state compensates counties for protected lands, too, but that funding has been controversial and even less predictable. Since the 2015-2016 budget cycle, the state has given rural counties $644,000 for payments in total each year to be divided among them, said state Sen. Mike McGuire, whose coastal district spans seven counties from Marin to the Oregon border.

I have written previously here and here of the constraints that lack of tax revenue on federal lands place on local governments in rural areas, especially in the West, which has a much greater percentage of public lands than the rest of the country.  The impact of shrinking federal dollars on law enforcement in Southern Oregon has attracted media attention in recent years.  As for that state contribution, less than $700K/year spread among seven counties is pretty pitiful,  even in the context of a paltry rural budget. 

 

Sierra County Courthouse,

Downieville, California, July 2017

A sixth theme of the story is that the state practice of re-alignment (re: prisons and local jails) has not served nonmetro counties well.  The Bee story includes a few interesting quotes to illustrate the conundrum re-alignment has created for county law enforcement. 

 

A seventh theme is the lack of mental health support.

Rural counties have 0.9 psychiatrists for every 10,000 residents, about half the statewide average, according to California Medical Board data. Mariposa has been experimenting with “tele-doc” video technology to connect jail inmates with mental-health professionals in other counties.

Read more here: https://www.sacbee.com/news/state/california/article215453050.html#storylink=cpy

Of course, telemedicine is being used to provide mental health and other services in rural counties generally, and not only to incarcerated populations.

 

An eighth theme regards reliance on other law enforcement agencies, including not just California Highway Patrol, but also both federal and state game and fish officers.  The photos show a sign at the California Highway Patrol office in Weaverville (Trinity County), which sits next to the DMV office.  I assume that the sign encouraging reports of vehicle theft responds to the reality that rural residents report crimes at lower rates than their urban counterparts, even when the perpetrator is a stranger.  The other photo I took in Weverville this summer is of a USDA vehicle, reprsenting the sort of law enforcement proxy that game and fish commissioners sometimes represent in rural areas. 

USDA Forest Service vehicle, Weaverville, California, July 2018 

Back to the budget/economics note, I'll close with this stunning data point:  rookie deputies in Modoc County earn $13/hour!  I assume baristas in Los Angeles are paid better than that, especially if you take into account tips.

 

Cross-posted to Legal Ruralism.  

August 21, 2018

Episode 26: "Roe"

Ep. 26 of "What Trump Can Teach Us About Con Law" looks as Roe v. Wade as it relates to President Trump, his Supreme Court nominee Brett Kavanaugh, and the Constitution. This episode also examines the unusual trajectory of Roe plaintiff Norma McCorvey's life in the decades following the 1973 Supreme Court decision.

 

August 6, 2018

Lawyers defending immigrant children in detention are relying on a court case from the '80s

By Kevin R. Johnson

[Cross-posted from The Conversation]

The Trump administration’s immigration policies have brought an old court case back to life in defense of immigrant children at the border, often referred to as “the Flores settlement.”

The case, which was filed in 1985 and settled in 1997, set the rules that the government must follow when it keeps migrant children in its custody. The latest court order based on the settlement took place on July 30, in which a judge barred immigration authorities from giving children psychotropic drugs without consent of parents or legal guardians.

The Trump administration has requested to amend the settlement to allow it to indefinitely detain migrant children. So far, the courts have denied these requests, and will continue to monitor the detention of migrant children.

So what was the Flores case about?

Case took years

In the 1980s, the Reagan administration aggressively used detention of Central Americans as a device to deter migration from Central America, where violent civil wars had caused tens of thousands to flee. As a result, the government held in custody Central Americans arrested at the U.S.-Mexico border, including many who sought asylum in the U.S. because they feared persecution if returned home. Immigrant rights groups filed a series of lawsuits challenging various aspects of the detention policies, including denying access of migrants to counsel, taking steps to encourage them to “consent” to deportation, and detaining them in isolated locations far from families and attorneys.

One suit was filed by the American Civil Liberties Union in 1985 on behalf of Jenny Lisette Flores, a 15-year-old from El Salvador. She had fled violence in her home country to live with an aunt who was in the U.S. But Flores was detained by federal authorities at the U.S. border for being undocumented.

The American Civil Liberties Union charged that holding Flores indefinitely violated the U.S. Constitution and the immigration laws. The Flores case made its way to the U.S. Supreme Court.

In its 1993 ruling in the case, the court held that a regulation allowing the government to release a migrant child to a close family member or legal guardian in the United States was legal.

But the primary legacy of the case was the subsequent settlement, to which both the Clinton administration and the plaintiffs agreed in 1997.

The Flores settlement established standards for the treatment of unaccompanied minors who were in the custody of federal authorities for violating the immigration laws. It requires the federal government to place children with a close relative or family friend “without unnecessary delay,” rather than detaining them; and to keep immigrant children who are in custody in the “least restrictive conditions” possible. Generally speaking, this has meant migrant children can only be kept in federal immigrant detention for 20 days.

The Flores settlement created a framework agreed to by the U.S. government that addressed how migrant children were to be treated if they were detained. It is a landmark settlement in no small part because Central Americans continue to flee violence in their homelands and the U.S. government has responded with mass detention of immigrant children. Although the Flores settlement was agreeable to the Clinton administration, the Trump administration wants to detain families, including children, for periods longer than permitted by the Flores settlement.