The United States Court of Appeal for the Ninth Circuit today affirmed the judgment of a federal trial court in striking down California’s same-sex marriage ban “Prop 8″. Perry v. Brown, No. 10-16696 (9th Cir. Feb. 7, 2012).
But the court refrained from deciding the broader question as to whether the Constitution requires that marriage be open to gay and lesbian couples.
Instead, the court decided the more narrow question whether Prop 8 violated equal protection of the law under the Fourteenth Amendment to the Constitution.
Under the Equal Protection Clause, a law that distinguishes people into different categories must have a rational basis to a legitimate government purpose.
In Romer v. Evans, 517 U.S. 620 (1996), the Supreme Court held that a law that serves only to discriminate against disfavored groups was not a legitimate use of state power. “A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.” Id. at 633.
Romer involved an amendment to the Colorado Constitution that prohibited the state from enacting laws to prohibit discrimination against gays and lesbians. The Supreme Court struck down the amendment.
The Ninth Circuit relied on Romer in striking down Prop 8. ”The People may not employ the initiative power to single out a disfavored group for unequal treatment and strip them, without a legitimate justification, of a right as important as the right to marry.”
Prior to Prop 8, the California Supreme Court had recognized that marriage was a fundamental right possessed by all Californias, straight or gay. Accordingly, when Prop 8 was passed, it put in place a new rule of constitutional law, the only effect of which was to deprive a targeted minority of rights they had possessed.
The Ninth Circuit looked at the four possible reasons offered for the legitimacy of Prop 8: (1) furthering an interest in childrearing and “responsible procreation”; (1) proceeding with caution in changing the institution of marriage; (3) protecting religious freedoms and (4) preventing children from being taught about same-sex marriage in schools. None of these goals were actually met by Prop 8, and could not act as a rational basis for the law.
In fact, the only effect of Prop 8 was to “withdraw from gays and lesbians the right to employ the designation of ‘marriage’ to describe their committed relationships and thus to deprive them of societal status that affords dignity to those relationships.” The effect of Prop 8 is “so far removed from these particular justifications that we find it impossible to credit them.”
The Court had the opportunity to discuss whether the Due Process Clause of the 14th Amendment to the Constitution provided a “fundamental right to marry” to which gay and lesbian couples were entitled.
It declined to do so, however, since its analysis only hinged on the purpose of Prop 8. “We therefore need not and do not consider whether same-sex couples have a fundamental right to marry, or whether states that fail to afford the right to marry to gays and lesbians must do so. Further we express no view on those questions.”
Comar Law is proud to post a brief recently filed on behalf of a defendant convicted under California’s concealed “dirk and dagger” law (Cal. Pen. Code sec 12020(a)(4)).
In an appellate filing filed on October 5, 2011, Comar Law argued to California’s Second Appellate District that the law violated the Second and Fourteenth Amendments to the United States Constitution.
The State of California has until early November to respond.
Comar Law will post any published decision issued by the Second Appellate District.
The English Bill of Rights of 1689 similarly provided, “[I]t is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal.”
In the Declaration of Independence, the Framers highlighted the infringement of their right to participate as a reason for the Revolution: ”In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.”
In the United States, the right to participate finds life in the First Amendment.
The First Amendment protects the rights of (i) free speech, (ii) assembly, and (iii) the right to petition.
And in California, these rights are afforded a separate guarantee by the California Constitution, which protects the rights of Californians to “freely speak . . . on all subjects,” “petition government for redress of grievances, and assemble freely to consult for the common good.”
A significant threat to public participation comes about through so-called “SLAPP” suits — “SLAPP” standing for “strategic lawsuit against public participation.”
For example: someone who publishes an article in a newspaper and then is sued over that article confronts a SLAPP suit, as expressing an opinion in public — free speech — is a constitutionally protected right.
Someone who mounts a vigorous defense in a court proceeding and then is sued over that conduct confronts a SLAPP suit, as the petitioning of a court — the right of redress — is a constitutionally protected right.
SLAPP suits are concerning for a variety of reasons, but one of the most troubling aspects is that it is usually the stronger and more financially capable party that brings the SLAPP suit. The defendant facing a SLAPP suit may be compelled to settle to make the headache go away and avoid the burden of trial.
Fortunately, California law provides an important mechanism for dealing with SLAPP suits: the “anti-SLAPP” law, codified at Cal. Civ. Proc. Code § 425.16.
The anti-SLAPP law permits a defendant to strike a lawsuit at the very beginning of the lawsuit — within 60 days of service of the complaint — by forcing a plaintiff to show to the court that the lawsuit is meritorious.
These are classic SLAPP fact patterns:
In 1996, after several rounds of appeals, the Church of Scientology sought to set aside a $2.5 million judgment that had been awarded to Lawrence Wollersheim, a former member of the Church who was awarded general and punitive damages for intentional infliction of emotional distress. In response to the Church’s new lawsuit, Wollersheim filed an anti-SLAPP motion, arguing that the Church was seeking to punish him because of his right to petition the courts for redress. The Court of Appeals for the Second District agreed, writing that the Church had employed “every means, regardless of merit, to frustrate or undermine Wollersheim’s petition activity. When a party to a lawsuit engages in a course of oppressive litigation conduct designed to discourage the opponents’ right to utilize the courts to seek legal redress, the trial court may properly apply [the anti-SLAPP statute].” The court then struck the Church’s lawsuit. Church of Scientology v. Wollersheim, 42 Cal.App.4th 628 (1996).
Jay Leno and NBC were sued in 2006 for defamation and intentional infliction of emotional distress by an egg donor who was the subject of joke by Leno on his “Headlines” routine. In response, Leno and NBC filed an anti-SLAPP motion, arguing that no reasonable person would have taken the joke to be factual or defamatory. The court agreed and struck the plaintiff’s lawsuit. Drake v. Leno, 34 Med.L.Rptr. 2510 (2006).
If you are a defendant facing a lawsuit based on activity that is protected by the California or federal Constitutions — in particular, speaking freely or accessing the courts — you may be entitled to end the lawsuit under the anti-SLAPP law.
The thrust of the complaint is that two former PayPal employees (named in the complaint) took PayPal trade secrets and recruited PayPal personnel when they left to work for Google.
PayPal alleges that former executive Osama Bedier spent years negotiating with Google over the terms of a joint venture related to using PayPal on the Android market — and at the same time, was in separate (and secret) negotiations with Google for a job.
Suddenly the deal collapsed, and just days later, Bedier had a job offer from Google.
The complaint accuses a second former PayPal employee, Stephanie Tilenius, of breaching her non-solicitation agreement. PayPal alleges that Tilenius was the employee at Google who recruited Bedier.
Trade secret litigation in California is fairly common and results from California’s exceptionally permissive policies related to employee mobility.
The general rule in California is that non-compete agreements that prevent an employee from engaging in lawful work are void. Cal. Bus. & Prof. Code § 16600.
And in general, it is completely lawful for a person to quit a job on Friday and start with a competitor the following Monday.
While employees are generally permitted to use their experience and know-how for their new boss, they are not permitted to use any confidential or proprietary information held by their previous employer.
This is a large gray area that causes considerable tension, especially in technology companies.
The complaint packs a mean punch: PayPal is essentially alleging that Google, through two PayPal employees, stole PayPal’s technology related to mobile payments. But this case is by no means open and shut:
– Before the lawsuit can proceed, PayPal will need to define its trade secrets with “reasonable particularity.” Cal. Civ. Proc. Code § 2019.210. This is a procedural rule that will give Google and the court notice of what PayPal claims was misappropriated.
– PayPal will need to prove that its alleged trade secrets (1) were in fact kept secret; and (2) gave it a competitive advantage over companies like Google.
– “Smoking guns” are rare in litigation, and while possible, it is unlikely that PayPal will discover any key document where Google lays out a master plan to steal PayPal technology. Instead, PayPal will have to convince a jury that Google’s technology is so similar to PayPal’s that there was no other way for Google to advance its own products absent misappropriation.
This is an exciting lawsuit and it will be interesting to see who wins.
For years now, Google has cheered itself as a company that literally doesn’t do evil.
But Google’s triumph in the technological marketplace has given it power, and with power comes the inevitable temptation to abuse it.
Should Google win, it can prove that its capacity for innovation extends not only to the mobile space, but also to cutting edge technologies that lay at the intersection of the internet and banking services.
A loss, however, could spell the end to the considerable public faith that has protected the company from closer scrutiny.
On May 12, 2011, a federal judge in San Jose largely dismissed a lawsuit filed by two California men who alleged that Facebook violated state and federal privacy laws by handing over personal information to advertisers without the knowledge or consent of users.
The men alleged that when Facebook users click on advertisements, Facebook sends a “Referrer Header” to the advertiser which reveals the specific webpage someone was looking at prior to clicking on the advertisement.
Such information, the men said, contained personal information that people do not expect will be turned over to advertisers.
“Users expect that certain aspects of their communications concerning advertisers–namely, their identities and the webpage they were viewing at the time they clicked on an advertisement–will be configured by Defendant to be private,” the men claimed.
But these plaintiffs were not able to convince Judge James Ware of the United States District Court for the Northern District of California that such allegations violated federal or state laws.
Judge Ware first analyzed the allegations under the federal Wiretap and Stored Communications Acts and held that the plaintiffs failed to state a claim under either law.
Judge Ware wrote that federal law assumes that when a user of a service like Facebook sends information to that service, the user consents to sharing any disclosed information.
California state law was of no help either. California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, which protects someone’s “money or property” from unfair competition, did not apply because “personal information” does not constitute property.
Similarly, Judge Ware held that California’s Consumer Legal Remedies Act (the “CLRA”), Cal. Civil Code § 1750, cannot apply to Facebook as the CLRA only applies in situations where a person “purchases” goods or services. Judge Ware noted that Facebook’s services are free.
Judge Ware dismissed these causes of actions (among others) without prejudice, which means that the plaintiffs are free to re-file the complaint if they can fix their allegations.
But the plaintiffs will need more than simply “Facebook shares my personal data without my permission.”
The thrust of Judge Ware’s decision is that by signing up to use Facebook, and by agreeing to turn over personal information, a user can’t later complain where that personal information goes.
The scary conclusion is that under federal and California law, it may be ok for Facebook to hand over personal information that a user is not aware is being shared.
Are Americans entitled to internet access as a matter of constitutional right?
What was once a highly theoretical question becomes increasingly relevant in a world where the internet is a daily part of life.
With courts already grappling with how the Fourth Amendment applies to internet activity, it may not be too long before someone argues that internet access itself is a fundamental right guaranteed by America’s political system.
Already, courts have ruled that internet access is a right that cannot be arbitrarily denied by the government.
Much of this analysis has come from appellate courts reviewing internet bans imposed on sexual predators. For example, in United States v. Heckman, 592 F.3d 400 (3d Cir. 2010) the Third Circuit overturned a lifetime internet ban on a defendant with an “extensive criminal history,” which included a “strong thread of sexual offenses to minors and child pornography” in his criminal record. Id. at 404.
Noting that a lifetime ban would be “unprecedented,” the Third Circuit further observed that internet bans are “draconian” because they hamper a “defendant’s employment opportunities upon release,” and limit “freedoms of speech and association.” Id. at 408
While internet access may not be arbitrarily revoked, is access itself guaranteed?
One argument would be a simple “no”. After all, the internet is nowhere mentioned in the Constitution. And since the 1970s, federal courts have resisted recognizing new constitutional rights that are not explicitly spelled out by the text.
On the other hand, a reasonable argument could be made that the internet furthers key rights such as freedom of speech and expression, freedom of assembly, freedom of the press, and the right to petition the government — all protected freedoms under the First Amendment.
More so than television technology, the internet strikes at the heart of Americans’ everyday social interactions and the way they live their lives.
And as recent events in the Middle East appear to indicate, the internet has become a powerful tool in promoting democratic accountability.
State constitutions, as well may confer greater protections related to internet access than the federal Constitution.
In California, for example, people have free speech rights at private malls under the California Constitution that are not recognized under the federal First Amendment. Fashion Valley Mall, LLC v. NLRB, 42 Cal. 4th 850 (2007). It is conceivable that California, or another state, could recognize a broad right to internet access under its own state constitution.
Internationally, Finland has already declared internet access — specifically broadband access — a guaranteed legal right.
Indeed, future American administrations could make a global internet treaty a centerpiece of a human rights agenda founded on internet access, government accountability and transparency, and broad-based protections related to freedom of expression and conscience.
Innovative — or illegal — things are happening in the city of Oakland.
In July 2010, Oakland passed an ordinance permitting “industrial-scale” growing of marijuana.
Permits were supposed to issue in January of 2011.
Then the letter came from the United States Attorney’s Office.
On February 1, 2011, Melinda Haag, the U.S. Attorney for the Northern District of California, sent a letter to the City of Oakland informing it that, “Individuals who elect to operate ‘industrial cannabis cultivation and manufacturing facilities’ will be doing so in violation of federal law.”
While many states have legalized medical marijuana, marijuana possession, transportation and distribution remains a federal offense.
In Gonzales v. Raich, the United States Supreme Court affirmed the power of Congress to criminalize the cultivation of medical marijuana.
In addition, the California medical marijuana laws are notoriously convoluted.
The type of large-scale industrial production of marijuana may not be permissible under state law.
In People v. Mensch, the California Supreme Court ruled that “a defendant whose caregiving consisted principally of supplying marijuana and instructing on its use, and who otherwise only sporadically took some patients to medical appointments, cannot qualify as a primary caregiver.”
In other words, businesses that buy and sell marijuana — not to mention at an industrial scale — cannot claim to be caregivers under California law.
The City of Oakland may still go ahead with its plans to industrially cultivate marijuana but it risks confrontation with federal authorities if it does so.
In 2009, Attorney General Eric Holder told United States Attorneys to focus federal resources on matters other than medical marijuana.
But Oakland’s ordinance may go too far for the feds.
Oakland would have a better legal leg to stand on if the medical marijuana laws more clearly supported its position.
In the absence of such clarity, Oakland risks a potentially violent crackdown from Washington.
The tension between state and federal law related to drugs is real and simmering. We are probably only a few years away before a state — such as California — legalizes non-medical possession of marijuana.
When that happens, the federal government will have to explain more clearly why it believes it has the authority (political, legal or otherwise) to override a state’s drug laws.
But until state laws are more clearly in Oakland’s favor, it may want to lay low for the time being.
No one wants to touch the death penalty. It’s popular, but costly, and potentially riddled with serious procedural deficiencies despite the layers of appeals that already add decades of delay between judgment and execution. It’s such a problem in California that a federal judge has placed a moratorium on executions until California can prove that its method of execution is (for lack of a better word) humane.
Never mind, as well, the debate as to whether or not the death penalty is even appropriate in a sophisticated and civilized society. Reasonable and intelligent people can be found on both sides of that argument. And all too often, discussions about the death penalty never make it past this point.
But social progress is not about exploiting differences. Social progress is about finding common ground amongst reasonable people and agreeing upon what can be done to make things better.
Comar Law is proud to present one proposal for improving the death penalty system in California: requiring jurors to meet a burden of proof in their sentencing deliberations. Incredibly small changes to current law could have a tremendous impact on the death penalty — cutting costs, providing more effective due process and giving jurors greater comfort and guidance to their sentencing decisions.
Take a look and let us know what you think (click here)
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