First Amendment - Anti-SLAPP - California Constitution - grpub.net

First Amendment

The President and the Bill of Rights - June 26, 2017 - Gerard Magliocca
I see that the President made his first reference to the Bill of Rights on June 8th. (I hadn’t noticed this one until now.) You can find the remarks here, in which he told a faith-based group:  “Our religious liberty is enshrined in the very First Amendment in the Bill of Rights.” Since I’ve made a big deal about his absence of statements to this effect, I wanted to make sure I pointed this one out.    
In my first post, I wrote about how the framework established by American arbitration law creates various requirements for arbitration agreements to be enforced by courts. Two elements are at play in judicial enforcement of arbitration awards: One is the formal legal elements: Courts are legally incapable of enforcing arbitral awards issued by religious tribunals if they fail to follow the basic legal demands imposed by the Federal Arbitration Act. Second, even if faith-based arbitrators have observed all the formal legal requirements, they must still convince judges that their religious dispute resolution processes are genuinely fair, effective and worth upholding. Because faith-based dispute resolution involves essentially religious legal processes, religious functionaries, religious law and issue religious remedies, it can look very strange to traditional judges. In order to gain judges’ confidence and convince American courts that the religious dispute resolution…
Today’s orders (part 1) - June 26, 2017 - Amy Howe
It was a busy day at the Supreme Court today, with the justices’ release of decisions in argued cases and their order allowing at least part of the so-called “travel ban” to go into effect. But even before the justices acted on the travel ban and issued their opinions, they also released orders from last week’s private conference, and the list included some orders that would likely be front-page news on any other day. After a whopping 14 relists, the Supreme Court announced that it will review the case of a Colorado man who contends that requiring him to make wedding cakes for same-sex marriage celebrations would violate his religious beliefs. The court declined, however, to take up an important California gun rights case, over a dissent from Justice Clarence Thomas that was joined by Justice Neil Gorsuch. One of today’s two grants came in Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the justices will consider the collision…
I admit I’m a grammar snob. Sue me. I’ve been this way as long as I can remember, long before I became an attorney. When I read something in which the author doesn’t know the difference between your and you’re, I instantly tune out. You’ve lost me at that point. Sure, I begin and even end sentences with prepositions, when appropriate. Contrary to popular belief, there’s nothing wrong with that. See William Strunk Jr. & E.B. White, The Elements of Style 77–78 (4th ed. 2000). This is not even one of those rules where there’s a gray area, or room for interpretation, like the one that says the first letter of every sentence should be capitalized, along with proper nouns: The name of a particular person (Frank Sinatra), place (Boston), or thing (Moby Dick). Proper nouns are capitalized. Common nouns name classes of people (singers), places (cities), or things (books) and are not capitalized. Word processors and…
Nathan J. Diament is the Executive Director for Public Policy of the Union of Orthodox Jewish Congregations of America. He filed an amicus brief on behalf of the union in support of the church in Trinity Lutheran v. Comer. Seventy years ago, in Everson v. Board of Education, the U.S. Supreme Court rejected an establishment clause challenge to the state of New Jersey spending tax dollars to support schoolchildren traveling safely to and from schools – including Catholic parochial schools. Justice Hugo Black famously wrote for the court that the establishment clause “requires the state to be neutral in its relations with groups of religious believers and nonbelievers; it does not require the state to be their adversary.” Today’s ruling in Trinity Lutheran v. Comer reaffirms this fundamental principle and repudiates the argument of those who have invoked the “separation of church and state” to discriminate unfairly against houses of worship and…
Erin Morrow Hawley is Associate Professor of Law and the University of Missouri School of Law. She filed an amicus brief for the General Council of the Assemblies of God in support of the church in Trinity Lutheran v. Comer. Although somewhat controversial, today’s ruling in Trinity Lutheran Church of Columbia, Inc. v. Comer was far from unexpected. The case languished on the docket for over a year – under the common assumption that the justices were split 4-4 and were therefore awaiting a new member of the court. But oral argument revealed a Supreme Court that was surprisingly hostile to the idea that a state can refuse to allow a church to participate in a public program simply because it is a church. Today, the Supreme Court resolved any remaining doubt about its views on that question, holding firmly that a state may not deny an otherwise publicly available benefit to a church or religious nonprofit because of its faith. The facts were clearly on the side of…

Anti-SLAPP

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on June 21, 2017. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal. Review Granted Scholes v. Lambirth Trucking, S241825 – Review Granted – June 21, 2017 In this published opinion, Scholes v. Lambirth Trucking (2017) 10 Cal.App.5th 590, a fire from defendant’s storage site damaged plaintiff’s property. Plaintiff alleged negligent trespass, intentional trespass and strict liability. This case presents the following issue: Are the double damages provisions of Civil Code section 3346 applicable to negligently caused fire damage to trees? Defendant demurred, arguing the plaintiff’s claims were barred by the statute of limitations and that the…
Claims that someone stole your screenplay and wrote the same thing are often weak.  This one may be otherwise, at least if you believe what's in today's Ninth Circuit opinion.Here are the relevant facts:"Around January 2011, Jordan-Benel wrote a screenplay entitled Settler’s Day about a family’s attempt to survive an annual, state-sanctioned, 24-hour period in which citizens are allowed to commit any crime without legal consequences. He registered the screenplay with the Writers Guild of America and the U.S. Copyright Office.Around June 2011, Jordan-Benel’s manager, Adam Peck, emailed David Kramer, Managing Director of Feature Productions at United Talent Agency (“UTA”), about Settler’s Day. Kramer responded that Peck should contact Emerson Davis at UTA to discuss the screenplay. Peck then spoke with Davis and asked permission to submit the screenplay. Davis agreed and asked that Peck email the screenplay to both Davis and…
Many times, parties to a lawsuit receive trial court rulings in the midst of the litigation that are unfavorable, oppressive, and seem to them to be demonstrably wrong.  The parties want to appeal immediately, but their counsel will say that cannot happen, citing the “Final Judgment Rule.”  The rule certainly sounds dark and fateful.  Perhaps courts intend it to be, because the rule serves to deter disgruntled litigants from appealing while the trial court case is ongoing, and typically requires those litigants to wait months, or even years, to appeal.  So what is this rule?  And perhaps more importantly, what are ways to gain access to an appellate court early without offending it? The Final Judgment Rule (sometimes called the “One Final Judgment Rule”) is the legal principle that appellate courts will only hear appeals from the “final” judgment in a case.  A plaintiff or defendant cannot appeal rulings of the…
We haven't had many occasions to blog about the intersection between punitive damages and California's anti-SLAPP statute (Code of Civil Procedure section 425.16).  That statute authorizes a special motion to strike a complaint that arises form activity exercising the rights of free speech.In this unpublished opinion, the Court of Appeal (First Appellate District, Division Five) holds that a  an anti-SLAPP motion cannot be used to strike a punitive damages allegation.  The court explains that anti-SLAPP motions must be directed at an entire cause of action, not a prayer for a specific type of relief.
This is another case study of the overly litigious world of homeowners’ associations. For example, a few months ago, I blogged about another lawsuit involving a condo association, its no-pet policy, and a string of vitriolic blog posts over residents who had emotional support therapy dogs. The latest lawsuit involves the homeowners’ association for 111 East Chestnut Street (Chicago), a high rise near Chicago’s Magnificent Mile. A few self-described “troublemaker” residents (as they proudly declare, “We’re the sand in the oyster”) run a blog monitoring the association, including breaking news coverage on issues like a cost overrun on hallway renovations and repairs made using “degraded cement.” After an election for association leadership, a losing candidate blogged that the winner, Milazzo, rigged the election; subsequent posts accused the winner of other malfeasances. One post linked to Milazzo’s business…
In the conclusion to a trial that garnered global media attention and shined a spotlight on the treatment of farmed animals in Canada, on May 4, 2017, the Ontario Superior Court of Justice acquitted Toronto animal advocate Anita Krajnc of all charges for offering water to overheated pigs on a transport truck bound for slaughter. Krajnc’s case inspired multiple petitions of support and the slogan “Compassion Is Not a Crime.” As reported in a previous Animal Law Update, Krajnc was arrested and charged with criminal mischief in June 2015 for “interference with the use, enjoyment and operation of property” after giving water to panting pigs confined in a sweltering trailer on a hot summer day. According to Krajnc, the pigs were overheated and severely dehydrated when she offered them water through narrow openings in the truck while it was stopped at a traffic light on the way to Fearman’s Pork slaughterhouse. The owner of the pigs filed a…

California Constitution

Recently, I wrote about the stealth with which the California legislature enacted AB 102, which it ironically named the Taxpayer Transparency and Fairness Act of 2017.  Having been birthed in opacity, AB 102 will operate with even less transparency. The bill transfers certain of the responsibilities of the State Board of Equalization to a newly created Department of Tax and Fee Administration. This new Department will assume the duties, powers, and responsibilities of the SBE with respect to the administration of various taxes and fees other than the duties, powers, and responsibilities imposed or conferred by the California Constitution on the SBE.  Remarkably, the legislature has seen fit to exempt the Department of Tax and Fee Administration from the rulemaking provisions of the California Administrative Procedure Act, Cal. Gov’t Code § 11340 et seq.  Thus, the Department will be free to adopt interpretations, guidelines, and regulations without…
The talk of California tax practitioners over the last week has been all about the legislature’s passage of AB 102.  This may be surprising to those who read the bill when it was introduced on January 10 of this year, for the bill consisted of one sentence: It is the intent of the Legislature to enact statutory changes relating to the Budget Act of 2017. The Assembly passed this obscurantist bill and sent it to the state Senate on May 18.  Then, on June 12, the Senate gutted and amended the bill. As amended, the bill transfers the responsibilities of the State Board of Equalization to a newly created Department of Tax and Fee Administration, which will be located within the Government Operations Agency.  The existing Board of Equalization has responsibility for four general areas: sales and use taxes, property taxes, special taxes and the tax appellate program.  It is the country’s only elected tax commission.  AB 102 also transfers the…
Proposition 66 Oral Argument - June 7, 2017 - Kent Scheidegger
Yesterday the California Supreme Court heard oral argument in Briggs v. Brown, the case challenging Proposition 66, "the Death Penalty Reform and Savings Act of 2016."  The petitioner, Ron Briggs, who is challenging the initiative, was represented by Christina Von der Ahe Rayburn.  The named respondents are Governor Brown, Attorney General Xavier Becerra, and the Judicial Council, represented by DAG Jose Zelidon-Zepeda.  The Proposition 66 campaign committee, Californians to Mend, Not End, the Death Penalty, successfully moved to intervene in the case, and I represented the committee at the argument.  The hour was divided 30-20-10.The argument was streamed live.  For those who didn't catch it, a link to the archived video should be posted within a week on this page.The petitioner's challenge is a scattershot attack, challenging many provisions of the initiative in an effort to bring the whole enactment down.  Press accounts of…
David R. Daleiden, 28, and Sandra S. Merritt, 63, the anti-abortion activists behind the infamous Planned Parenthood video were charged earlier this month in San Francisco Superior Court for 14 felony counts of eavesdropping and secretly recording conversations, and one additional count of felony conspiracy (amounting to 15 felony counts total). California Attorney Gen. Xavier Becerra unveiled a 15-count felony complaint against the activists, alleging that they video-recorded 14 people without their consent at meetings with women’s healthcare providers in Los Angeles, Pasadena, San Francisco and El Dorado. The complaint can be found here. Back in 2015, the Orange County-based Center for American released a video featuring high-ranking Planned Parenthood employees haggling over prices for fetal specimens as well as describing altering abortion procedures to obtain more intact fetal body parts. That video has largely also been debunked as fake. In a related development,…
Can Usury Ever Be Waived? - May 30, 2017 - Keith Paul Bishop
California courts have defined “usury” as “the exacting, taking or receiving of a greater rate than is allowed by law, for the use or loan of money.” Ross v. Wheeler 140 Cal. App. 217, 222 (1934).  The California Constitution sets the maximum rate of interest for the loan or forbearance of money not primarily for personal, family or household purposes, as the higher of: 10% per annum, or 5 % plus the rate of interest prevailing ont he 25th day of the month preceding the earlier of the date of the extension of the contract to make the loan or forbearance or the date of making the loan or forbearance, established by the Federal Reserve Bank of San Francisco on advances to member banks under sections 13 and 13(1) of the Federal Reserve Act. Cal. Conts. Art. XV, § 1. Suppose a creditor unwittingly lends money at a usurious rate to an equally clueless borrower who ultimately defaults on the loan.  In order to extend the loan, the…
San Francisco’s public transportation agency and the creator of the agency’s suspicious activity reporting smart phone application have been accused of illegally collecting, tracking, and storing users’ personal information and location data without their consent, in violation of California statutory and constitutional protections. A putative class action complaint, which was filed this week in a California federal court, has alleged that the San Francisco Bay Area Rapid Transit District (“BART”) and Elerts Corp, a private software developer, created and made available to the public a free smart phone application that secretly collected users’ unique mobile identification numbers and allowed BART and Elerts to track a user’s location, amassing data that effectively removed any user anonymity. This conduct allegedly has violated California’s Cellular Communications Interception Act, Consumers Legal Remedies Act, and privacy rights…