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

First Amendment

There will be a Democratic primary on June 23 - June 5, 2020 - Second Circuit Civil Rights Blog
The Second Circuit has ruled that a federal court properly ordered that the New York primary election scheduled for June 23, 2020 must take place. This decision rejects the Cuomo administration's argument that it had to cancel the election because of the Covid-19 pandemic.The case is Yang v. Kosinski, issued on June 1. The governor canceled the primary election on April 27, 2020, making New York the only state to cancel its 2020 Democratic presidential primary. The justification for cancelling the election was the state wanted to minimize social contacts to limit the spread of the virus and to focus its limited resources on the management of other contested primary elections. As it happened, the other Democratic candidates had suspended their campaigns quite some time ago, including Andrew Yang and Sen. Bernie Sanders. But they challenged the primary cancellation under the First Amendment. They won in the Southern District of New York, and the Court of Appeals affirms.When…
“En Banc Pa. Superior Court Panel Weighs if Power Tool Maker May Be Sued in Philadelphia; Husqvarna’s arguments are part of an effort by the company to keep the lawsuit out of Philadelphia, after a trial judge there determined that the company did not conduct enough business in Philadelphia — at least proportionally — to establish venue”: Max Mitchell of The Legal Intelligencer has this report on the case that I reargued on behalf of the plaintiffs before a nine-judge en banc panel of the Pa. Superior Court on Wednesday morning. And in other coverage of the case, at “The Volokh Conspiracy,” Eugene Volokh has a post titled “First Amendment Right of Access Applies to Appellate Oral Arguments, and not just to trials.” My side of this case sought to keep the proceeding open to the public and the media, while the defendant fought to close the proceeding and filed a motion asking that the oral argument neither be videostreamed…
Week in Review - June 4, 2020 - Brinna Ludwig
IN THE NEWS The American Civil Liberties Union of Southern California filed an emergency lawsuit on behalf of Black Lives Matter Los Angeles and several individuals to challenge the nightly curfews imposed by Los Angeles city and county. In a statement, the American Civil Liberties Union of Southern California stated that the curfews violated the U.S. Constitution by suppressing political protests and movement in the evening hours. Melina Abdullah, co-founder of Black Lives Matter Los Angeles, reportedly stated that the curfews “suppress our ability to fully mobilize and focus full attention on the true issue of concern in the protests—police violence against Black people.” The lawsuit was filed two days after President Donald J. Trump addressed the nation in response to the death of George Floyd, warning that “those who threaten innocent life and property will be arrested, detained, and prosecuted to the fullest extent of the law.” The U.S.…
From the ashes of a pandemic and shameless police brutality, a phoenix is rising. It took President Donald Trump. When he deployed federal police and forcefully scattered peaceful protesters to clear the way so that he could tote a Bible as he stood in front of a historic Episcopalian Church, the moment arrived. The authentic voices of clergy demanding inclusion, love, and truth rose to the heavens.For over twenty years, religious dialogue in the United States has been dominated by a binary label: religious or secular, faith or no faith. The cakeshop owner who, God forbid, can’t abide having the cake he decorated at a same-sex wedding ceremony is religious while those who reject Jim Crow for LGBTQ are “secular.” A profit-driven, arts and crafts supply chain, Hobby Lobby, is religious, but the female employees who could not obtain cost-free contraception due to Hobby Lobby’s sacred beliefs are supposedly secular. The religious activists for this binary…
Across the country, people are protesting police brutality and systemic racism. They are relentlessly demanding justice for George Floyd, Breonna Taylor, and the countless other Black people killed by police. In response, President Trump, supported by belligerent enablers in Congress and his administration, has threatened to deploy federal troops into states, and federal agencies are investigating protestors for domestic terrorism. These presidential threats and actions are authoritarian, irresponsible, dangerous, and wrong.  Trump’s threat to invoke the Insurrection Act of 1807 was extraordinary — over the last 50 years, presidents have rarely used this extreme authority, and rightly so. In this country, we have a strong norm against deploying the military on domestic soil, recognizing the threat it poses to liberty and individual civil rights. This norm is reflected in law — Congress passed the Posse Comitatus Act in 1878 to prohibit the use of federal…
The full weight of U.S. policing has descended upon protesters across the country as people take to the streets to denounce the police killings of Breonna Taylor, George Floyd, and countless others who have been subjected to police violence. Along with riot shields, tear gas, and other crowd control measures also comes the digital arm of modern policing: prolific surveillance technology on the street and online. For decades, EFF has been tracking police departments’ massive accumulation of surveillance technology and equipment. You can find detailed descriptions and analysis of common police surveillance tech at our Street-Level Surveillance guide. As we continue to expand our Atlas of Surveillance project, you can also see what surveillance tech law enforcement agencies in your area may be using.  If you’re attending a protest, don’t forget to take a look at our Surveillance Self-Defense guide to learn how to keep your information and digital devices…

Anti-SLAPP

The Trinity Term will begin on Tuesday 2 June 2020 and will end on Friday 31 July 2020. As the Government continues to gradually ease the Covid-19 lockdown, the Courts continue to work remotely, and updates on the Coronavirus guidance can be found on the Courts and Tribunal Judiciary. On 29 May 2020  the Court of Appeal handed down judgement in Wright v Ver [2020] EWCA Civ 672. Craig Wright, the Australian computer scientist and businessman who claims to be the inventor of Bitcoin, Satoshi Nakamato lost his appeal against a decision by the High Court to strike out his libel claim on jurisdictional grounds. The Court concluded that not only was England and Wales not “clearly the most appropriate place to bring this action for defamation”, but that based on the evidence available before Nicklin J at first instance, a state in the US which would accept jurisdiction over the claim (which included California) would be the most appropriate jurisdiction. The case…
Legal doctrine may be somewhat indeterminate, but it can nonetheless answer questions.  Today's opinion by Justice Brown is a good example.The case raises the issue of whether filing a mandatory attorney fee arbitration proceeding can give rise to a malicious prosecution suit.  I hadn't thought about that issue before.  And even after Justice Brown posed the question, I still wasn't sure what the answer should be.  When someone files and loses a fee arbitration proceeding, can the prevailing party sue them for malicious prosecution if that filing was with malice and without probable cause?  The answer matters not only for which side gets to prevail on the merits, but also for which side gets to prevail on an anti-SLAPP motion, since (as the Court of Appeal holds) the filing of such a fee arbitration is an "official proceeding" under the anti-SLAPP statute.  So there's real money at stake.As I said, I didn't have a…
Code of Civil Procedure Section 425.16, subdivision (g) states that “[a]ll discovery proceedings in the action shall be stayed upon the filing of a notice of [an anti-SLAPP] motion” and the stay “shall remain in effect until notice of entry of the order ruling on the motion[,] or in the event a party files a noticed motion seeking additional discovery and establishes good cause for it.  Numerous cases construing the “good cause” requirement have held that the party seeking discovery must explain precisely “what discovery he proposes and why it is necessary.” Rogers v. Home Shopping Network (C.D. Cal. 1999) 57 F.Supp.2d 973, 977 (“A plaintiff who desires to conduct further discovery after the defendant files a special motion must file a noticed motion . . . which the court will grant only for good cause shown and only for specified discovery. These requirements have been strictly applied by California…
I'm incredibly frustrated by this opinion by Justice Miller.  Profoundly, deeply, irretrievably frustrated.Let me say at the outset:  Yes.  Yes, yes, yes, yes, yes.  Defendants filed a frivolous anti-SLAPP motion.  The trial court accordingly awarded $61,915 in fees to the plaintiff pursuant to the anti-SLAPP provisions that affirmatively require an award of fees in such cases.  Yes.  Exactly right.So when Justice Miller affirms that award, I'm totally on board for the result.But, as to how he gets to that result in the opinion:No, no, no, no, no, no, no.  Deeply and profoundly frustrating.I totally agree with him on his key practical and doctrinal point:  That you can't require the usual separate motion and 21-day "safe harbor" provisions of CCP 128.5 to frivolous anti-SLAPP motions.  The timing and structure totally doesn't work.  It'd completely conflict with the purposes as well as the…
HOUSTON – Attorney Chris Bell, a fairly well known Texas politician, is being sued for legal malpractice after allegedly failing to warn a client that there could be possible consequences to bringing a defamation lawsuit. Read more..
By Katherine S. Catlos, Chief Diversity and Inclusion Officer and KDV partner The Reporter | May 12, 2020 A favored tool of the defense bar, California’s anti-SLAPP statute empowers a trial court to dismiss claims brought by a plaintiff whose lawsuit is aimed at intimidating a person or business into silence by essentially burdening them with litigation costs. Code Civ. Proc. §425.16. Anti-SLAPP motions weed out, at an early stage, meritless claims arising from a defendant’s free speech, or otherwise activity protected by law. Baral v. Schnitt (2016) 1 Cal.5th 376, 384. In an interesting twist involving an employment law dispute, a recent case, Balubhai Patel, et al. v. Manuel Chavez, addressed the applicability of anti-SLAPP to federal law claims, specifically §1983 of title 42 of the United States Code. (May 6, 2020) 2020 DJDAR 4279. In that case, Balubhai Patel and his company, DTWO & E (collectively “Patel”) owned a…

California Constitution

The COVID-19 pandemic has led state and local governments to order businesses throughout their states closed in order to reduce the spread of the virus and its strain on healthcare systems.  The electric carmaker Tesla was one such business and, as has been widely covered in the news, recently sued Alameda County in California because it prohibited Tesla from reopening its factory.  Earlier this month Elon Musk, Tesla’s CEO, dramatically announced that Tesla’s factory in Alameda County would reopen and begin manufacturing again in defiance of the County’s order.  This position put Tesla directly at odds with the County in which it operates and offers an interesting intersection between employment, government and constitutional law. Tesla’s decision was met with strong opposition and the threat of criminal prosecution from the County because it directly violated the County’s lockdown order.  Tesla’s chief argument was that…
Bail opinion and two others filing tomorrow - May 20, 2020 - David Ettinger
Tomorrow morning, the Supreme Court will file its opinions in In re White, Hart v. Keenan Properties, Inc., and People v. Rodriguez.  (Briefs here; oral argument videos here.)  These are the first opinions in cases argued on the March calendar. The White opinion should give a partial idea of what changes the court might make to the current bail system, a system that’s in effect on the November ballot.  (See here.) In White, the court limited the issues to these:  (1) Under what circumstances does the California Constitution permit bail to be denied in noncapital cases?  Included is the question of what constitutional provision governs the denial of bail in noncapital cases — article I, section 12, subdivisions (b) and (c), or article I, section 28, subdivision (f)(3), of the California Constitution — or, in the alternative, whether these provisions may be reconciled.  (2) What standard of review applies to review of the denial of…
by Parter Jon Holtzman, Senior Associate Ryan McGinley-Stempel and Of Counsel Steve Cikes. Jon Holtzman and others in Renne Public Law Group have deep experience helping local agencies to navigate fiscal emergencies, including Stockton, Vallejo, Fresno and others.  Declaring a fiscal emergency, and implementing appropriate remedial measures, may be an unfortunate reality for some local agencies in light of the COVID-19 epidemic.  If implemented properly, with good faith labor and creditor negotiations and adequate factual support, as well as legal guidance, legislative fiscal emergency declarations can be a viable stop-gap measure in times such as these.  They are, however, subject to a high degree of judicial scrutiny to the extent a fiscal emergency is employed as a basis for altering contractual obligations.  This article describes the state of the law on fiscal emergencies and how the facts of the current crisis may fit within that legal framework. Many…
On April 30, 2020, the California Supreme Court (“Court”) ruled on April 30, 2020 that claims brought pursuant to California’s Unfair Competition Law (“UCL”) and the False Advertising Law (“FAL”) are not entitled to a jury trial. In Nationwide Biweekly Administration, Inc. et al., v. The Superior Court of Alameda County, the federal Consumer Financial Protection Bureau (“CFPB”) brought an action against Nationwide Biweekly Administration, Inc. (“Nationwide”) and others, alleging that Nationwide and the other defendants falsely advertised their services and as a result operated unfairly relative to their competitors in violation of the UCL and the FAL. The CFPB sought both injunctive relief and civil penalties. Nationwide petitioned the court for a jury trial because the government sought civil penalties in addition to equitable relief, and CFPB moved to strike the jury claim. The trial court ruled in favor of…
On April 30, 2020, the California Supreme Court (“Court”) ruled on April 30, 2020 that claims brought pursuant to California’s Unfair Competition Law (“UCL”) and the False Advertising Law (“FAL”) are not entitled to a jury trial. In Nationwide Biweekly Administration, Inc. et al., v. The Superior Court of Alameda County, the federal Consumer Financial Protection Bureau (“CFPB”) brought an action against Nationwide Biweekly Administration, Inc. (“Nationwide”) and others, alleging that Nationwide and the other defendants falsely advertised their services and as a result operated unfairly relative to their competitors in violation of the UCL and the FAL. The CFPB sought both injunctive relief and civil penalties. Nationwide petitioned the court for a jury trial because the government sought civil penalties in addition to equitable relief, and CFPB moved to strike the jury claim. The trial court ruled in favor of…
On April 30, 2020, the California Supreme Court (“Court”) ruled on April 30, 2020 that claims brought pursuant to California’s Unfair Competition Law (“UCL”) and the False Advertising Law (“FAL”) are not entitled to a jury trial. In Nationwide Biweekly Administration, Inc. et al., v. The Superior Court of Alameda County, the federal Consumer Financial Protection Bureau (“CFPB”) brought an action against Nationwide Biweekly Administration, Inc. (“Nationwide”) and others, alleging that Nationwide and the other defendants falsely advertised their services and as a result operated unfairly relative to their competitors in violation of the UCL and the FAL. The CFPB sought both injunctive relief and civil penalties. Nationwide petitioned the court for a jury trial because the government sought civil penalties in addition to equitable relief, and CFPB moved to strike the jury claim. The trial court ruled in favor of…