text:
Earlier this year, the Supreme Court held, in Davis v. United States, that if police perform a search that is authorized by binding appellate precedent, then the evidence they find will not be suppressed at trial, even if the U.S. Supreme Court later rules in another case (while the instant case is on its way up on appeal) that the search violated the suspect’s Fourth Amendment rights.
Though the Court’s decision is not entirely illogical, it depends on a view of the exclusionary rule—including its purpose and its effect—that leaves a lot to be desired.
The Fourth Amendment guarantees “the people” the right to be secure against “unreasonable searches and seizures,” and it also limits the circumstances under which a valid warrant may issue. Notably, the text does not say what will happen if the government violates the Fourth Amendment and thereby obtains incriminating evidence. The Court has consequently wrestled with this question repeatedly over the last century.
The Court first applied the Fourth Amendment exclusionary rule in 1914, in Weeks v. United States. There, the Court held that because federal officials had violated the Fourth Amendment in their search of the defendant’s home and their seizure of his papers, the papers should have been returned to the defendant and not held for introduction at his criminal trial. The Court deemed the use of the illegally seized evidence at trial to be prejudicial error, and it reversed the lower court’s decision to affirm the defendant’s conviction.
The Supreme Court’s decision in Weeks thus appeared to adopt the view that the Fourth Amendment itself prohibits not only unreasonable searches and seizures, but also the use of resulting evidence at the defendant’s criminal trial. Recognizing the limited application of the Bill of Rights at this time, however, the Court added that the Fourth Amendment does not regulate the conduct of state officials and that therefore, the evidence found by non-federal police officers fell outside the scope of the exclusionary rule.
The Court had occasion to reconsider the exclusionary rule in 1949, when it decided Wolf v. Colorado. In Wolf, the Justices held that the right against unreasonable searches and seizures does extend to state government officials, via the Fourteenth Amendment’s Due Process Clause, contrary to the holding of Weeks. Nonetheless, the Court refused to extend the exclusionary rule to evidence obtained by state officials’ unreasonable searches and seizures. Explaining that the exclusion of evidence is simply one approach to preventing and deterring violations of the Fourth Amendment, the Supreme Court said that exclusion would be mandatory only in federal courts, leaving state courts to choose their own methods for preventing unreasonable searches and seizures.
In Wolf, then, the U.S. Supreme Court offered the view that exclusion is a vehicle for inducing government officials to comply with their obligations under the Fourth and Fourteenth Amendments. It works by eliminating the payoff associated with searches and seizures, namely, the acquisition of usable evidence. But other vehicles—including civil lawsuits against offending officers, internal discipline of police by their own departments, and criminal sanctions for those who violate the Constitution—might also work, and states are free to select their own approaches.
About twelve years later, in the 1961 case of Mapp v. Ohio, the Court reversed course in two ways. First, it extended the exclusionary rule to all courts, no longer leaving it up to the states to decide how to go about deterring and preventing unreasonable searches and seizures. Second, it used at least some language indicating that the exclusionary rule is more than simply an instrument for inducing constitutional compliance in government officials.
In 1976, however, in Stone v. Powell, the Court returned to the view that the exclusionary rule is only a means of deterring Fourth Amendment violations, not a Fourth Amendment right in itself. There, it held that a federal habeas corpus petitioner may not obtain relief on the basis of the failure of his trial judge to exclude evidence that had been obtained in violation of the Fourth Amendment, so long as the state provides an opportunity for full and fair litigation of such claims. Other cases further developed this idea and expanded the list of contexts in which the exclusionary rule would not apply.
In keeping with the “deterrent only” approach to Fourth Amendment exclusion, the Court in 1984, in United States v. Leon, announced the “good faith” exception to the exclusionary rule, providing that if police reasonably rely on a warrant that is later found by a court to be defective, the evidence obtained pursuant to that warrant will not be suppressed.
The Court’s theory was that if police go to a magistrate to obtain a warrant, and the resulting warrant appears valid on its face, then the exclusionary rule will not deter police from searching or seizing on the basis of that warrant. Indeed, the Court’s view was that we should be glad that police went to the magistrate for a warrant and thereby allowed a neutral and detached person to review the officer’s own judgment of probable cause. It was the magistrate, the Court pointed out, who made an error, and the exclusionary rule is not going to deter magistrates, who do not represent an arm of law enforcement, and who thus do not care whether the prosecutor’s evidence is ultimately admitted or suppressed.
In later cases, the Court extended the good faith exception to other contexts in which police reasonably rely on what turn out to be mistakes by other branches of government regarding the scope of the Fourth Amendment. Police, for example, might blamelessly perform searches or seizures on the basis of a statute later found to violate the Fourth Amendment. In such a case, under Illinois v. Krull, the exclusionary rule will not apply to evidence found by the police, because it is the legislature rather than the executive branch that made the error, and legislatures do not respond to the incentive of suppression.
Moreover, the Court held in Arizona v. Evans, the same is true in the case of record-keeping computer errors made by court employees that lead police to believe, reasonably but incorrectly, that there is an outstanding warrant for a suspect’s arrest. And in a somewhat surprising development, as I discussed in a column I wrote, the Court ruled in Herring v. United States that the good faith exception to exclusion applies as well when an officer performs a search or seizure on the basis of erroneous computer records maintained by employees of the police department itself.
In these cases, the Court has treated the exclusionary rule as a drastic and costly measure that must be taken only when doing so will have the greatest impact in preventing and deterring police from violating the Fourth Amendment right against unreasonable searches and seizures. The cost of exclusion lies in the removal of reliable, relevant evidence from the jury’s consideration in a criminal case. If the jury is barred from considering the fruit of a Fourth Amendment violation, then it is more likely to acquit and release a guilty person and thereby potentially threaten the public safety.
For this reason, in the Court’s view, exclusion is a highly toxic medicine that should be avoided in the absence of “‘deliberate,’ ‘reckless,’ or ‘grossly negligent’ disregard for Fourth Amendment rights,” or simple negligence that goes well beyond an isolated example.
In Davis, the case the Court resolved earlier this year, and with which I began this column, police did not act with any sort of culpable disregard for Fourth Amendment rights. On the contrary, they stopped a car lawfully, after which they lawfully arrested a passenger in the car, Willie Gene Davis, for giving a false name to the police. After handcuffing Davis and securing him in the back of a police car, they performed what they reasonably believed to be a valid search incident to arrest of the passenger compartment of the vehicle that Davis had recently occupied. In the course of this search, they found a revolver inside Davis’s jacket pocket.
The United States subsequently prosecuted Davis for the crime of possession of a firearm by a convicted felon (often nicknamed “felon with a firearm”). Davis moved unsuccessfully to suppress the weapon on Fourth Amendment grounds, claiming that police may not search a vehicle incident to an arrest once the arrested person has been restrained and cannot reach into the vehicle. The trial court denied the motion to suppress, under an Eleventh Circuit decision on the books upholding such a search, and Davis was convicted.
As it happens, though, while Davis’s case was making its way up on appeal, the U.S. Supreme Court announced in Arizona v. Gant that the Fourth Amendment does not authorize the search of a vehicle incident to arrest once the suspect has been secured, absent “reason to believe” that the search would yield evidence of the crime of arrest. Under Gant, the vehicle search that turned up Davis’s revolver had therefore plainly violated the Fourth Amendment.
After that ruling was handed down, Davis may have imagined that he was home free, because his appeal was still pending. The U.S. Supreme Court, however, announced that even though Davis was correct that he had suffered a Fourth Amendment violation, the resulting evidence nonetheless fell outside the scope of the exclusionary rule.
The Court’s reasoning might seem persuasive. When there is binding precedent holding that the Fourth Amendment permits a particular kind of search, we surely cannot expect the police to forgo that kind of search. If we really wanted the mere possibility that an earlier case on point might be overruled to deter the police from performing searches and seizures, then a better approach would be to prohibit all searches and seizures entirely. To the extent that we want police to perform lawful searches and seizures and avoid only the unreasonable ones, we cannot fault the police in Davis for acting as they did. If our question is “Could the police have done better if they had fully mastered and internalized existing case law?,” the answer is clearly no, and suppression would seem positively wrongheaded.
Yet one need not conclude that suppression of the gun discovered in Davis’s jacket would have been a mistake. The majority’s conclusion assumes that when we calculate the deterrent efficacy of suppression, the right question to ask is whether the police did something that they should have known not to do—or, in other words, whether the police were in some sense blameworthy. But are blameworthiness and receptivity to deterrence really the same thing?
When we ask whether a police officer (or anyone) was blameworthy in taking a particular action, it is often because we want to know whether it would be fair to impose a penalty on that actor. To take a mundane example, assume that my daughter receives an invitation to a birthday party that asks her to bring “a fruit of your choice to sweeten the occasion.” Assume further that my daughter asks me for advice about what fruit to choose, and I recommend strawberries. It turns out, however, that the birthday girl is allergic to strawberries, and my daughter therefore brings her offering back home after the party, untouched.
Under the circumstances, it would be completely unfair for me to punish my daughter for bringing strawberries to the party. My daughter, in this case, would be like the police officers in Davis. Though the police (and my daughter, in the hypothetical case) violated what we now understand to be the rules, neither of them could have known this at the time. In fact, it was the authorities who were responsible for teaching the rules—the courts and, in my daughter’s case, I—who led the respective actors to believe that they were behaving in conformity with those rules. It would seem, in other words, to be an exercise in arbitrariness to inflict punishment in these cases.
If the goal, however, is to suppress only that evidence obtained by the police in a blameworthy fashion, then the U.S. Supreme Court should never have decided Arizona v. Gant (the case prohibiting vehicle searches of the sort experienced by Willie Gene Davis) as it did. In Gant, though there was no court of appeals opinion specifically authorizing the particular search, an existing Supreme Court precedent that was on point, New York v. Belton, had long been understood to permit such searches. Indeed, I had understood Belton this way and argued as much in a column written after the Supreme Court granted review in Gant. More importantly, the writer of the majority opinion in Davis, Justice Alito, said in his dissent from Gant that Gant had “effectively overruled” the Court’s prior precedents, including Belton. It was therefore no fairer to the police to suppress the evidence in Gant, than it would have been to suppress the evidence in Davis.
The Court nonetheless suppressed the evidence in Gant, because suppression is not in fact a way of punishing the police or of declaring that police have behaved in a reprehensible, reckless, or grossly negligent fashion. The point of suppression, in Gant and elsewhere, has been, instead, to motivate police officers and departments to associate the unlawful search that took place with the loss of evidence and thereby to learn what is and what is not a legal search.
On the assumption that police officers and their supervisors care greatly about whether evidence is admitted or suppressed, suppression induces an avoidance response in the people responsible for complying with the Fourth Amendment. Like a patron who eats at a restaurant and then falls ill with food poisoning, police officers and police departments who conduct searches, only to see the evidence they unearth suppressed, will remember not to repeat the behavior that led to the undesirable consequences.
Significantly, moreover, even an unfair pairing of action and negative consequences reinforces the message that the action is to be avoided in the future. The restaurant patron who gets food poisoning, for example, may not have known in advance to avoid the restaurant and therefore cannot be “blamed” for eating there. Yet he will just as predictably avoid a second visit, having learned his lesson.
One might respond that it seems wasteful to throw out perfectly good evidence. And, though I support the exclusionary rule, I acknowledge this point—the point that suppression of evidence is costly to our system: Juries have less information in making their decisions; guilty people could be wrongfully acquitted; and the public may come to associate attorneys with smiling criminals unjustly getting away with their misconduct on mere technicalities.
The reason to have an exclusionary rule, despite these costs, is the view, articulated in the past by the U.S. Supreme Court, that suppression is either the only or the most effective way of motivating police to learn what the Fourth Amendment requires, and to follow its commands. In fact, the alternative civil lawsuit remedy—through which police pay damages to victims of unconstitutional conduct—is inadequate in part because it is designed to be fair to the police and therefore carries qualified immunity, shielding from liability those whose actions do not violate clearly established legal doctrine.
Suppression, in other words, can reach out and teach police for the future that a search or seizure is unlawful, even when the police who performed the unlawful search or seizure were not at all blameworthy for doing so. Every time an illegal search leads to the suppression of evidence, the connection between the search and the negative outcome is strengthened in the minds of police. Conversely, every time an illegal search yields evidence enabling a successful prosecution, the connection between the search and negative outcomes is accordingly weakened.
To take a fairness approach to deterrence to reduce the cost, as the Court has done, is therefore to water down the deterrent value of a rule whose only acknowledged virtue is deterrence, and whose deterrence works prospectively because it makes Fourth Amendment violations costly.
In closing, I want to call readers’ attention to an additional problem with the Court’s approach to the exclusionary rule. Though the Court calls suppression a “deterrent,” it is really more of a “non-incentive.” If police violate the Fourth Amendment, find evidence, and put away a criminal as a result of that violation, then they experience a reward for violating the Fourth Amendment. Had they obeyed the Fourth Amendment, by hypothesis, they would not have found the evidence.
Admitting the evidence therefore makes the police “better off” than they would have been had they obeyed the Constitution, and suppressing the evidence ordinarily puts them in the same position that they would have occupied if they had refrained from performing the search or seizure.
If we are to deter behavior by withholding rewards (as opposed to by imposing punishment), we must be consistent about it. Few, for example, would feel deterred by a sign in a store that says “Shoplifters might not be able to keep their stolen merchandise.” Each time the Court announces additional exceptions to the exclusionary rule, it thus increases the association between rewards and the unlawful conduct that it hopes to deter. And it does so in the name of a fairness concern that is not truly implicated.

matches: v. v. v. v. v. v. v. v. v. v. v. v.


text:
SELMA AIR CENTER INC v. CRAIG FIELD AIRPORT AND INDUSTRIAL AUTHORITY May 27, 2016 2150339.
Ex parte T.M. (IN RE: T.M. v. C.M.). May 27, 2016 2150570.
LOCKHEED MARTIN CORPORATION v. STATE DEPARTMENT OF REVENUE May 27, 2016 2141074.
D.T. v. W.G. May 27, 2016 2150349.
K.D.C. v. R.J.M. K.D.C. May 27, 2016 2150198 and 2150199.
J.L. v. G.N. and S.A. May 27, 2016 2150265.
CURTIS v. CURTIS May 27, 2016 2141005.
Ex parte BAPTIST HEALTH SYSTEM May 27, 2016 2150580.
T.B. v. LEE COUNTY DEPARTMENT OF HUMAN RESOURCES May 20, 2016 2140832.
KULAKOWSKI v. COWART 130 LLC May 20, 2016 2140860.
JACKSON v. JACKSON May 20, 2016 2150005.
REEVES v. FANCHER May 20, 2016 2140925.
TURNER v. TURNER May 20, 2016 2141027.
F.V.O. v. COFFEE COUNTY DEPARTMENT OF HUMAN RESOURCES May 20, 2016 2140807, 2140808, and 2140810.
EX PARTE John REYNOLDS. (IN RE: Paula Reynolds v. John Reynolds). May 20, 2016 2150414.
KNIGHT v. KNIGHT May 20, 2016 2150137.
HILL v. HILL May 20, 2016 2150289.
McGONAGLE v. McGONAGLE May 20, 2016 2150136.
COOK v. MIDLAND FUNDING LLC May 13, 2016 2140786.
JOHNSON v. DUNN May 13, 2016 2150040.
RODGERS v. RODGERS May 13, 2016 2141052.
KWASIGROH v. KWASIGROH May 13, 2016 2150038.
KLEINATLAND v. KLEINATLAND May 13, 2016 2150116.
OSBORNE v. OSBORNE May 13, 2016 2150319.
DRAKE II v. ALABAMA REPUBLICAN PARTY May 13, 2016 2150157.
N.G. and P.G. v. BLOUNT COUNTY DEPARTMENT OF HUMAN RESOURCES May 13, 2016 2150316, 2150317, and 2150318.
A.F. v. S.R. May 6, 2016 2150214.
BAHAKEL v. DRIVETRAIN AUTOMOTIVE SUPERCENTER INC May 6, 2016 2140987.
WALKER v. WALKER May 6, 2016 2140610.
CHANCELLOR v. STACY May 6, 2016 2150010.
Ex parte LOWE'S HOME CENTERS May 6, 2016 2140885.

matches: v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v.


A common misconception among employers is that covenants not to compete are enforceable against an employee so long as the covenant is not overly broad or unduly restrictive on the employee, i.e., it is limited in time, place, and scope. In most states, this belief would be correct. However, in California, the law holds quite to the contrary and virtually all such covenants not to compete are unenforceable. Pursuant to California Business and Professions Code §16600, "[e]very contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void." California courts have consistently declared this code section as an expression of strong public policy to ensure that every person shall retain the right to pursue any lawful employment and enterprise of his or her choice (See Metro Traffic Control, Inc. v. Shadow Traffic Network). Given California's significant public policy against restraints on employment, employers can be assured that California courts are virtually certain to strike down such restrictive covenants.
There are, however, two narrow statutory exceptions to Business and Professions Code §16600's ban on covenants not to compete. The first exception is codified in Business and Professions Code §16601, which allows a buyer of an existing business to require the seller not to compete with the acquiring company. This section permits agreements not to compete made by a party selling the goodwill of a business or all of the shares of stock in a corporation. (See Vacco Industries, Inc. v. Van Den Berg). Even in this limited circumstance where a buyer sells his or her interest in the company, the covenant must still be narrowly tailored to be enforceable.
The second statutory exception to Business and Professions Code §16600 is codified in Section 16602, and allows a partnership to prevent a departing partner from competing with the continuing entity at dissolution.
Recently, the Fourth Appellate District of California struck down application of the inevitable disclosure doctrine, a variant of trade secret protection. Under the doctrine of inevitable disclosure, "a plaintiff may prove a claim of trade secret misappropriation by demonstrating that defendant's new employment will inevitably lead him to rely on the plaintiff's trade secrets." (See Whyte v. Schlage Lock Co). The doctrine results in an injunction prohibiting employment, not just use of trade secrets, and permits an employer to enjoin the former employee without proof of the employee's actual or threatened use of trade secrets. Consistent with the above principles, the Court unmistakably rejected application of the doctrine in California and held: . . . a court should not allow a plaintiff to use inevitable disclosure as an after-the-fact noncompete agreement to enjoin an employee from working for the employer of his or her choice." (Whyte). Given this decision, employers will no longer be able to rely on this doctrine to prohibit employees from working for competitors despite the fact that trade secret information will inevitably be disclosed to the new competitor.
Notwithstanding the fact that covenants not to compete are generally unenforceable, California employers are not left without alternatives to restrict former employees whose departure may have an adverse impact on the employer's business.
Specifically, two practical types of restrictions are permitted in California. The first is the employee non-solicitation clause, which requires the departing employee to refrain for some period (usually one or two years) from soliciting his or her former coworkers to leave their jobs at the former employer. The second is the business non-solicitation clause, requiring the departing employee to promise that he or she will not solicit customers or business away from the former employer.
As to the employee non-solicitation clause, this restriction must also be limited and not overly broad in the sense that it must not affect (or limit) other employees from subsequently working at the departed employee's new employer. (See Loral Corp. v. Moyes). The clause also must not prohibit other employees from contacting the departed employee or his or her new employer, but may simply prohibit the departed employee from soliciting the employees for the purpose of securing new employment.
Business or client non-solicitation clauses are generally given more latitude and are permitted to restrict departing employees from soliciting their former employers' customers or business. Frequently, courts will examine whether customer lists or other business information constitute trade secrets. If they do, then departing employees cannot use them for their own benefit or for the benefit of a third party, and a business non-solicitation limitation will be enforceable. (See American Paper v. Kirgan). Case law suggests that parties may be able to agree to broader restrictions than those simply authorized under trade secret law, and covenants narrowly tailored to the non-solicitation of an employer's business or customers for a limited duration, whether involving trade secrets or not, will generally be found enforceable. (See Loral).
A third alternative available for employer protection is use of a nondisclosure agreement. Under California law, a company is entitled to strict protection of its confidential business information. An employee may not at any time disclose or use the employer's confidential information on behalf of anyone other than the company. (See California Civil Code §3426-3426.11). Nondisclosure agreements may be the most useful protection available to an employer and if drafted properly, may confer many of the same benefits that a covenant not to compete would provide. Nondisclosure agreements are also most likely to be upheld by a court (as compared to noncompete and non-solicitation agreements) in determining whether the restrictions placed on the departing employee are reasonable and not in violation of Section 16600. Often, the main reason a company wants a covenant not to compete is that the company fears an employee who joins a competitor will disclose the company's proprietary information to that competitor, thus giving the competitor an advantage. Protection from the danger of disclosure thus protects the company against this significant risk.
Given the common misconception surrounding the enforceability of covenants not to compete, employers may think that such restrictions should nevertheless be incorporated into an employment or severance agreement, as the covenant will act as a future deterrent to the unsuspecting employee who may lack the understanding that the covenant would not be enforceable in a court of law. This tactic is not recommended, however, as it can place the company in great peril, for several reasons. First, the employer may be found liable for violation of public policy. In the case of Walia v. Aetna, Inc., currently on review by the California Supreme Court, the First District Court of Appeal ruled that the termination of an employee for her refusal to sign an invalid covenant not to compete constituted a violation of fundamental public policy. In flatly condemning noncompete agreements, the Court reasoned that the inclusion of the void covenant in the employment agreement implicated California's policy in the same manner as actual enforcement of the covenant, and held that a tort claim could be pursued against the employer since it was necessary to further promote the policy against such conduct (Walia).
An invalid covenant not to compete could also violate Business and Professions Code §17200, which prohibits unfair business practices and unfair competition. In the case of Application Group, Inc. v. Hunter Group, Inc., the court ruled that a violation of Section 16600 can constitute such a practice and thus can form the predicate for a finding of violation of section 17200.
In sum, the one approach that an employer cannot take is to simply draft a traditional covenant not to compete that appears reasonable in geographic scope and limited in time, and hope that the restriction will pass judicial muster. Such a restriction is not only likely to be unenforceable, but may also subject the employer to liability for violating California's strong public policy in favor of employee freedoms and mobility. California employers should avoid using such covenants and instead should avail themselves of the protections afforded in nondisclosure, non-solicitation, and narrowly tailored confidentiality agreements.
As a partner with Shanberg, Stafford & Bartz LLP, Ross E. Shanberg specializes in the areas of general business and employment litigation, with an emphasis on the handling of claims for unpaid overtime, wrongful termination, retaliation, harassment and discrimination.
Mr. Shanberg received his Bachelor of Science in Business Administration from the University of California, Berkeley in 1992. Mr. Shanberg later obtained his Juris Doctorate from the California Western School of Law in 1995. Prior to becoming a named partner in Shanberg, Stafford & Bartz LLP, Mr. Shanberg was head of the labor and employment law department at the Newport Beach-based firm Kring & Chung, L.P., from 2001-2005.


text:
Henry W. Putnam, for appellant.
[137 U.S. 157, 158] Sol. Gen. Taft, for appellee.
This case, appealed from the circuit court for the eastern district of Missouri, presents, like that of U. S. v. Grimley, ante, 54, (just decided,) a question arising on habeas corpus as to the right of the petitioner, an enlisted soldier, to be discharged from military custody. An effort was made to bring this case here by writ of error; but that was abandoned, and an appeal rightfully substituted. In re Neagle, 135 U.S. 42 , 10 Sup. Ct. Rep. 658. The facts differ from those in that case, in this: The petitioner was 17 years of age, and had a mother living who did not consent to his enlistment. Upon his enlistment he drew from the United States his uniform and equipments, and continued in actual service from the 23d day of August to the 13th day of September, 1883, when he deserted. He remained in concealment until February, 1889, at which time he had become of age, and then appeared at a recruiting office and demanded his discharge from the army on the ground that he was a minor when enlisted. In his oath of allegiance he swore that he was 21 years and 5 months [137 U.S. 157, 159] old. It will be seen that the petitioner was within the ages prescribed by section 1116 of the Revised Statutes, to-wit, 16 and 35 years. Section 1117 provides that 'no person under the age of twenty-one years shall be enlisted or mustered into the military service of the United States without the written consent of his parents or guardians: provided, that such minor has such parents or guardians entitled to his custody and control.' But this provision is for the benefit of the parent or guardian. It means simply that the government will not disturb the control of parent or guardian over his or her child without consent. It gives the right to such parent or guardian to invoke the aid of the court, and secure the restoration of a minor to his or her control; but it gives no privilege to the minor. The age at which an infant shall be competent to do any acts or perform any duties, military or civil, depends wholly upon the legislature. U. S. v. Bainbridge, 1 Mason, 71; Wassum v. Feeney, 121 Mass. 93, 95. Congress has declared that minors over the age of 16 are capable of entering the military service, and undertaking and performing its duties. An enlistment is not a contract only, but effects a change of status. Grimley's Case, supra. It is not, therefore, like an ordinary contract, voidable by the infant. At common law an enlistment was not voidable either by the infant or by his parents or guardians. King v. Inhabitants, etc., 2 Dowl. & R. 628, 634, 1 Barn. & C. 345, 350; King v. Inhabitants, etc., 1 Man. & R. 25, 31, 7 Barn. & C. 226, 231; Com. v. Gamble, 11 Serg. & R. 93; U. S. v. Blakeney, 3 Grat. 405, 411-413. In this case the parent never insisted upon her right of custody and control; and the fact that he had a mother living at the time is, therefore, immaterial. The contract of enlistment was good so far as the petitioner is concerned. He was not only de facto, but de jure, a soldier-amenable to military jurisdiction. His mother not interfering, he was bound to remain in the service. His desertion and concealment for five [137 U.S. 157, 160] years did not relieve him from his obligations as a soldier, or his liability to military control. The order of the circuit court remanding him to the custody of the appellee was correct, and must be affirmed.

matches: v. v. v. v. v. v. v.


text:
The United States Supreme Court granted three petitions for certiorari during their Friday, January 13 conference that touch on issues central to employees’ ability to vindicate their workplace rights. In Epic Systems Corp. v. Lewis, Ernst & Young, LLP v. Morris, and National Labor Relations Board v. Murphy Oil USA, Inc., the parties seek to determine whether mandatory pre-dispute class and collective action waivers contained in forced arbitration clauses that are required as a condition of employment conflict with the employees’ right to engage in “concerted activities” for the purpose of “mutual aid or protection,” as provided by the National Labor Relations Act (NLRA) and the Norris-LaGuardia Act (NLGA), such that they are deemed unenforceable under the savings clause of the Federal Arbitration Act (FAA). The appellate courts in Lewis and Morris found mandatory class and collective action waivers in forced arbitration clauses to be illegal under existing labor law, and, thereby unenforceable under the FAA. The circuit court in Murphy Oil, relying primarily on case law regarding the FAA and the nation’s policy favoring arbitration, came to the opposite conclusion.
The circuit split that brought the present cases before the Supreme Court arose from the Fifth Circuit Court of Appeals’ controversial ruling in D.R. Horton v. NLRB (2013). In D.R. Horton, the Fifth Circuit reviewed a National Labor Relations Board (Board) decision regarding an employer’s use of mandatory individual arbitration as the sole mechanism for resolving employment disputes. In its decision, the Board found that forced arbitration clauses barring employees from bringing joint, class, or collective workplace claims in any forum unlawfully restricts the exercise of workers’ substantive right to collective action for their own mutual aid or protection, an idea which is at the heart of federal labor law. Under NLRA section 7, “Employees shall have the right . . . to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Section 8(a)(1) of the NLRA provides, “It shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.” The Board discussed 80 years of case law that unambiguously supports the notion that employers may not condition employment on the waiver of an employee’s right to engage in collective action by seeking class certification or the equivalent. Because the terms of the arbitration agreement provided that employees were required to waive their right to any collective action in any forum, the Board deemed the waiver an unfair labor practice under the NLRA.
The Board couldn’t stop there. Since the waiver was included in a forced arbitration clause, the Board also had to consider whether the term was enforceable under the FAA, despite its finding of illegality under the NLRA. The Board started by applying the Supreme Court’s well-established rules of statutory construction, which provide that when two interacting federal statutes can co-exist, absent a clear conflict, a court must give effect to both. The FAA “savings clause” provides that “an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” The Board was able to reconcile the NLRA and FAA, resolving that rendering unenforceable a forced arbitration clause under the NLRA, insofar as it precludes employees from bringing joint, class, or collective workplace claims in any forum, does not conflict with the FAA or undermine its policies. Because the class and collective action waiver was unlawful under the NLRA, and illegality is a general contract defense, concluding that the waiver was unenforceable was also consistent with the FAA.
In reaching this determination, the Board explained why harmonizing the FAA and the NLRA in this manner was appropriate. For one thing, such a finding does not treat an arbitration agreement less favorably than any other contract that conflicts with federal law. Also, under the U.S. Supreme Court’s FAA jurisprudence, while certain procedures may be altered or waived, substantive rights cannot. In the Board’s opinion, the NLRA section 7 right to engage in collective action is the central purpose and protection afforded by the Act, making it a substantive non-waivable right, not merely a procedural mechanism for enforcing rights. Additionally, the FAA does not provide that an arbitration agreement that violates the NLRA is still enforceable. On the contrary, its savings clause allows an arbitration agreement that conflicts with federal law to be invalidated. Finally, the Board argued that even if there were a direct conflict with the NLRA or NLGA, the FAA should yield to the NLGA. Under the NLGA, which was passed seven years after the FAA, agreements with employers are unenforceable if they interfere with an individual unorganized worker’s full freedom of association or right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and all acts in conflict with that policy were expressly repealed. The Board found nothing in the FAA to override the unambiguous language of the NLGA.
The Fifth Circuit disagreed, finding that the Board failed to give the proper weight to the FAA. Relying on precedent from a series of employment cases that did not actually involve the NLRA, the court held that the NLRA does not provide a substantive right to engage in collective action. In so finding, the court took a very narrow view of the role and purpose of the NLRA “concerted actions” provision, viewing it as merely a procedural device.
In its analysis, the Fifth Circuit began not by applying the standard rules of statutory construction, but with the premise that the when the FAA encounters another federal statute, that statute must overcome an extremely high barrier in order to render an arbitration agreement unenforceable under the FAA. In the appellate court’s view, the FAA requires all arbitration agreements to be enforced, regardless of any other federal statute, unless one of two exceptions applies. The first exception provides that an arbitration agreement may be invalidated under the grounds recognized under the FAA savings clause. Drawing upon the Supreme Court’s decision in AT&T Mobility v. Concepcion, 563 U.S. 333, 344 (2011) where the Court held that a California common law rule that rendered certain consumer class action waivers unenforceable was preempted by the FAA, the Fifth Circuit held that even though the Board’s interpretation and application of the savings clause was facially neutral, it had an impermissible effect of disfavoring arbitration, because “requiring a class mechanism” in some forum – be it arbitral or judicial – “is an actual impediment to arbitration.” In the Fifth Circuit’s view, that would create an impermissible conflict under the FAA, so the savings clause exception did not apply.
Under the second exception, an arbitration agreement must be “enforced according to its terms”, unless another statute’s “contrary congressional command” precludes application of the FAA. CompuCredit Corp. v. Greenwood, 132 S. Ct. 665, 665 (2012). Here, the circuit court found that the text of the NLRA did contain an express congressional intent to override the FAA. Yet, the Fifth Circuit stated that because NLRA section 7 did not have an explicit provision mentioning arbitration by name in its text, history, or purpose, the law lacked the requisite congressional command to override the FAA’s required enforcement of the class and collective action waiver. In coming to this conclusion, the court gave very little weight to national labor policy or the judicial history that has previously protected the right of workers to act collectively in a variety of forums, including courts, to improve their working conditions.
Since D.R. Horton, the Board has reaffirmed its position in over 70 other decisions and myriad cases have reached the federal circuit courts. Among the cases pending before the Supreme Court, the Seventh and Ninth Circuits have agreed with the Board’s reasoning to strike down mandatory collective action waivers, and the Fifth has maintained its position in upholding them.
The underlying facts in the three cases the Court will consider are substantially similar: employers required their employees, as a condition of employment, to sign an arbitration agreement that provided that the workers could only resolve legal disputes in individual binding arbitration, rather than in a court of law or through class or collective means in any forum. In Lewis and Morris, the employees sought class certification in federal court alleging various wage and hour violations. In Murphy Oil, the NLRB got involved in the case when one of the Respondent’s employees filed an Unfair Labor Practice charge with the Board. At the time the charge was filed, the D.R. Horton case was still ongoing. By the time the Board issued its decision against Murphy Oil, its findings served as a re-affirmance of its position in D.R. Horton, despite the Fifth Circuit’s contrary ruling.
Each of the parties seeking to invalidate the forced arbitration clauses reviewed the legislative and adjudicative history of the NLRA, as well as the NLRB’s role in interpreting and applying federal labor law. They emphasized the importance of applying statutory principles and, after reiterating all of the arguments from D.R. Horton articulating how the NLRA creates a prospective, non-waivable substantive right to collective action that includes legal action, and coming to the same conclusions, each maintained that mandatory agreements forcing employees to waive their right to engage in collective action constituted an unfair labor practice under the NLRA and NLGA that could not be upheld under the FAA savings clause.
The Seventh and Ninth Circuits began their analysis in the same manner as the NLRB in D.R. Horton: with the NLRA. In so doing, the Seventh Circuit quipped that to search first for a “contrary congressional command,” as the Fifth Circuit did in D.R. Horton, would be to “put the cart before the horse.” Based on the text, history, and purpose of the statute, the courts found that “concerted activity” is the essential substantive right established by the NLRA. The courts distinguished between “substantive” and “procedural” rights, articulating that substantive rights—the essential, operative protections of a statute—cannot be waived in an arbitration agreement. The Board, in Murphy Oil, pointed out that the Supreme Court has never held that an arbitration agreement may waive a substantive right or be given an effect contrary to the statute that created or protected those rights, and an illegal contract term that violates a federal statute will not and should not be enforceable solely because the offensive term is ensconced in an arbitration agreement.
Because the Supreme Court has acknowledged that it is up to the NLRB to define the scope of the NLRA’s protections, both the Seventh and Ninth Circuits applied the two-step analysis from Chevron U.S.A., Inc. v. National Resources Defense Council, Inc., 467 U.S. 837 (1984) to the Board’s interpretation of the NLRA. Under Chevron, the Board is entitled to deference when a statutory term is ambiguous and its interpretation of the authorizing statute is reasonable. In Morris, the court found that since, under the first step, congressional intent with the NLRA clearly provided that the right to “concerted activity” includes legal actions, and interference with that right is unambiguously an unfair labor practice, there was no need to address step two. In Lewis, the Seventh Circuit did not find any ambiguity in the term “concerted activity,” but noted that even if there were, the Board’s finding that the term “concerted activities” includes collective judicial remedies was a reasonable reading of the statute. The court acknowledged that the Board, in D.R. Horton, held waivers that limit all class or collective actions in every forum were an unfair labor practice under NLRA section 8(a)(1), and determined that they were required to give the Board’s reasoning a high level of judicial deference. In the Murphy Oil petition, the Board also addressed the issue of judicial deference, arguing that even though the Fifth Circuit didn’t disagree with the Board’s NLRA analysis, it improperly prevented the Board’s findings from taking effect because of their misapplication of pro-arbitration policies that stem from the FAA.
After concluding the collective action waivers constituted an unfair labor practice under the NLRA, the conversation in the cases moved on to the FAA. The courts and petitioners acknowledged that the FAA savings clause applies to generally applicable defenses, but not to those defenses that specifically target arbitration. When an illegal provision does not target arbitration, the FAA treats it like any other term such that the offensive language may be struck or the entire arbitration clause may be rendered unenforceable. The courts agreed that there is no conflict between the NLRA and the FAA because the illegality at issue has nothing to do with the fact that the waivers involved happened to appear in forced arbitration clauses. Again echoing the Board’s D.R. Horton reasoning, the Seventh and Ninth Circuits found that since the collective action waivers were an illegal contract term under the NLRA, and because illegality is a generally applicable defense for which an arbitration agreement may be deemed unenforceable under the FAA savings clause, the waivers were unenforceable.
In its petition to the Supreme Court, the Murphy Oil petitioner also argued that rather than treat the two statutes on an equal footing, the Fifth Circuit wrongly relied on inapplicable case law in concluding that the FAA requires all other federal statutes to contain an express “contrary congressional command” in order to render an arbitration agreement unenforceable. The NLRB rebuked their opponent’s misuse of past FAA precedent, highlighting that the recent case law that the Fifth Circuit relied on, where the Court found the FAA took priority, addressed judge-made law or state statutory policies, not two interacting federal statutes. The Board emphasized that the need to supply a “contrary congressional command” only arises when the FAA conflicts with another statute. The Board observed that because the FAA and the NLRA can be harmonized there is no conflict, so searching for a contrary command is unnecessary. Because the Ninth Circuit reached its findings on the NLRA, it did not delve into the employee’s NLGA arguments.
In their petitions for certiorari, Epic Systems and Ernst & Young, LLP echoed the reasoning of the Fifth Circuit in D.R. Horton, and organized their petitions around three main points. First, they argued that the Seventh and Ninth Circuits should have followed the Fifth Circuit and begun their analyses by looking for a “contrary congressional command” that would allow the NLRA to override the FAA. Second, they reiterated their view that the NLRA contains neither a contrary congressional command nor a substantive right to class actions. Third, after acknowledging that generally applicable defenses can invalidate arbitration clauses, petitioners argued that, in adopting the NLRB’s position in D.R. Horton, the circuit courts misapplied that rule because their rulings would lead to an outcome that disfavors arbitration. Citing Concepcion, they asserted that any defense that disfavors arbitration, even if facially neutral, cannot be generally applicable, so the FAA savings clause should not apply.
The respondents in Murphy Oil used brevity in defending their positions. In that case, the Fifth Circuit reaffirmed its decision in D.R. Horton, providing little by way of reasoning for its decision. Instead, the Fifth Circuit simply stated “our decision [in D.R. Horton] was issued not two years ago; we will not repeat its analysis here.” Then the court again ruled, without discussion, that mandatory pre-dispute class and collective action waivers in forced arbitration clauses are enforceable.
The Fifth Circuit’s D.R. Horton decision in opposition to the NLRB has left an array of inconstant judgments in its wake. The Supreme Court’s resolution of the pending disputes will have a far-reaching impact on employer-employee relations. Not only will the outcome provide necessary clarity regarding workplace dispute resolution, but it has the potential to dramatically reduce the ways in which non-unionized employees are able to address working conditions from their already disadvantaged bargaining position. Additionally, the Court, in deciding these cases, will be determining not only the enforceability of mandatory pre-dispute collective and class action waivers in forced arbitration clauses, but also the approach that future courts should take when balancing their need to uphold the nation’s policy favoring arbitration agreements against the need to enforce other federal statutes crafted by Congress. It will be interesting to see whether the Court begins its analysis with its standard rules for statutory construction or whether it will first seek a “contrary congressional command” in the NLRA. The three cases have been consolidated and a total of one hour has been allotted for oral argument.


Chapter 90A - Sanitarians and Water and Wastewater Treatment Facility Operators.
§§ 90A-1 through 90A-19: Repealed by Session Laws 1981 (Regular Session, 1982), c. 1274, s. 1.
Article 2 - Certification of Water Treatment Facility Operators.
§ 90A-21. Water Treatment Facility Operators Board of Certification.
§ 90A-22. Classification of water treatment facilities; notification of users.
§ 90A-23. Grades of certificates.
§ 90A-24. Operator qualifications and examination.
§ 90A-25. Issuance of certificates.
§ 90A-25.1. Renewal of certificate.
§ 90A-26. Revocation or suspension of certificate.
§ 90A-28. Promotion of training and other powers.
§ 90A-29. Certified operators required.
§ 90A-30. Penalties; remedies; contested cases.
§ 90A-31. Commercial water treatment operation firms.
§ 90A-32. Certification of distribution operators.
§ 90A-33: Reserved for future codification purposes.
§ 90A-34: Reserved for future codification purposes.
Article 3 - Certification of Water Pollution Control System Operators and Animal Waste Management System Operators.
§ 90A-36. Repealed by Session Laws 1973, c. 1262, s. 44.
§ 90A-37. Classification of water pollution control systems.
§ 90A-38. Grades of certificates.
§ 90A-39. Operator qualifications and examination.
§ 90A-40. Issuance of certificates.
§ 90A-41. Revocation of certificate.
§ 90A-43. Promotion of training and other powers.
§ 90A-44. Certified operators required.
§ 90A-45. Commercial water pollution control system operating firms.
§ 90A-46.1. Expiration and renewal of certificates; continuing education requirements.
§ 90A-47.2. Certified operator in charge required; qualifications for certification.
§ 90A-47.3. Qualifications for certification; training; examination.
§ 90A-47.4. Fees; certificate renewals.
§ 90A-47.5. Suspension; revocation of certificate.
§ 90A-48. Reserved for future codification purposes.
§ 90A-49. Reserved for future codification purposes.
Article 4 - Registrations of Environmental Health Specialists.
§ 90A-50. State Board of Environmental Health Specialist Examiners.
§ 90A-52. Practice without certificate unlawful.
§ 90A-53. Qualifications and examination for registration as an environmental health specialist or environmental health specialist intern.
§ 90A-54: Repealed by Session Laws 2009-443, s. 5, effective August 7, 2009.
§ 90A-55. State Board of Environmental Health Specialist Examiners; appointment and term of office.
§ 90A-56. Compensation of Board members; expenses; employees.
§ 90A-57. Election of officers; meetings; regulations.
§ 90A-58. Applicability of Chapter 93B.
§ 90A-59. Record of proceedings; register of applications; registry of registered environmental health specialists and environmental health specialist interns.
§ 90A-60: Repealed by Session Laws 2009-443, s. 10, effective August 7, 2009.
§ 90A-61: Repealed by Session Laws 2009-443, s. 10, effective August 7, 2009.
§ 90A-62. Certification and registration of environmental health specialists registered in other states.
§ 90A-63. Renewal of certificates.
§ 90A-64. Suspensions and revocations of certificates.
§ 90A-65. Representing oneself as a registered environmental health specialist or registered environmental health specialist intern.
§ 90A-66. Violations; penalty; injunction.
§ 90A-67. Code of Ethics.
§ 90A-68. Reserved for future codification purposes.
§ 90A-69. Reserved for future codification purposes.
Article 5 - Certification of On Site Wastewater Contractors and Inspectors.
§ 90A-72. Certification required; applicability.
§ 90A-73. Creation and membership of the Board.
§ 90A-74. Powers and duties of the Board.
§ 90A-75. Expenses and fees.
§ 90A-76: Repealed by Session Laws 2010-31, s. 13.2(k), effective July 1, 2010.
§ 90A-80. Investigation of complaints.


text:
Joining the more than 15 other cases filed across the nation challenging Trump's Executive Order Protecting the Nation From Foreign Terrorist Entry Into the United States, now available on the whitehouse.gov site here, today Hawai'i filed a Complaint in Hawai'i v. Trump, accompanied by a lengthy motion for Temporary Restraining Order and supporting Memorandum of Law.
Hawai'i asserts standing as a state based on its diversity in ethnic population, its high number of noncitizen residents including business owners and students, and its tourism-based economy. Washington state previously brought suit (with an oral ruling granting a TRO); Virginia is seeking to intervene in a lawsuit there.
The constitutional claims are by now familiar from suits such as the first one in Darweesh v. Trump and the one filed by CAIR, Sarsour v. Trump, including Equal Protection claims as we analyzed here. Other constitutional claims generally include First Amendment Establishment Clause and Free Exercise Clause and Procedural Due Process. There have also been constitutional claims based on the Emoluments Clause (Mohammed v. United States, filed in U.S. District Court for the Central District of California, with Temporary Restraining Order entered) and a substantive due process right to familial association (Arab American Civil Rights League v. Trump , filed in U.S. District Court for the Eastern District of Michigan, with an injunction entered. Again, Lawfare is maintaining a collection of all the primary source documents.
The Hawai'i complaint includes an innovative count alleging a violation of the substantive due process right to international travel. According to the supporting memo, the right to travel abroad is “part of the ‘liberty’” protected by the Due Process Clause; as the Court stated in Kent v. Dulles (1958), “Freedom of movement is basic in our scheme of values.” The EO fails to satisfy the applicable due process standard for the same reasons it fails the equal protection analysis.
The Attorney General has not been confirmed and the Acting AG was terminated by the President when she stated the Muslim Ban was indefensible, but the DOJ attorneys seem to be vigorously defending these suits.
In the continuing - - - yet seemingly concluding - - - saga of challenges to the constitutionality of California's SB 1172, prohibiting licensed therapists from performing what is known variously as sexual conversion therapy, reparative therapy, or sexual orientation change efforts (SOCE) on minors under the age of 18, the Ninth Circuit's opinion today in Welch v. Brown revisited its August opinion upholding the law. Today's opinion announces that the Ninth Circuit will not rehear the case en banc - - - "no judge of the court" having requested a vote on the petition for rehearing en banc - - - and issues an amended opinion.
Plaintiffs first argue that, under the Establishment Clause, SB 1172 excessively entangles the State with religion. Their argument rests on a misconception of the scope of SB 1172. For example, Plaintiffs assert that Dr. Welch may not “offer certain prayers or quote certain Scriptures to young people” even “while working as a minister for Skyline Church” within “the four walls of the church . . ., while engaging in those religious activities.” The premise of this Establishment Clause argument is mistaken, and the argument fails, because SB 1172 regulates conduct only within the confines of the counselor-client relationship.
[Added language underlined; italics in both opinions].
With such a small revision, it would seem there was little contention about the case. Recall that Welch itself is a sequel to Pickup v. Brown, in which the Ninth Circuit declined en banc review (albeit more divisively), to other First Amendment challenges to the California statute. Meanwhile, the Third Circuit in King v. Christie rejected a challenge to New Jersey's similar SOCE-ban statute. The United States Supreme Court has denied certiorari in both Pickup and King, making prospects for a grant of certiorari in Welch v. Brown rather slim, especially for an eight Justice Court.
The full Tenth Circuit today declined to grant an en banc rehearing of the panel's July 2015 ruling that HHS's religious accommodation to the ACA's contraception mandate violated statutory and First Amendment rights of Little Sisters of the Poor. We posted on the panel decision here.
No party called for an en banc rehearing; instead, the court decided sua sponte to consider it. But a majority voted no.
Judge Hartz wrote a dissent, joined by four other judges, arguing that the panel wrongly recast Little Sisters's religious beliefs. In particular, the dissent argued that the panel wrongly interpreted Little Sisters's belief "as being only opposition to facilitating the use and delivery of certain contraceptives to which they object." According to the dissent, "Under this reframing, the plaintiffs have no religious objection to executing the forms; it is just that executing the forms burdens their religious opposition to contraceptives."
Put another way, the panel majority may be saying that it is the court's prerogative to determine whether requiring the plaintiffs to execute the documents substantially burdens their core religious belief, regardless of whether the plaintiffs have a "derivative" religious belief that executing the documents is sinful. This is a dangerous approach to religious liberty.
Judge Hartz argued that "the doctrine of the panel majority will not long survive," because "[i]t is contrary to all precedent concerning the free exercise of religion."
If you're wondering how, under Judge Hartz's approach, an organization like Little Sisters might tell the government that it has a religious objection to the contraception mandate without violating its own religious beliefs (a question that stumped other courts: how can a religious accommodation itself violate free exercise?), Judge Hartz says that the dissent only goes to the "substantial burden" on religion (and thus triggers strict scrutiny). The certification might still satisfy strict scrutiny--a question that Judge Hartz would send back to the lower court on remand.

matches: v. v. v. v. v. v. v. v. v. v.


Larry L. Scissors and Michael Kennedy for Petitioner.
Herbert M. Rosenthal, Truitt A. Richey, Jr., Magdalene Y. O'Rourke and Ellen R. Peck for Respondent.
We review the recommendation of the Review Department of the State Bar Court that petitioner Jeffrey Nadrich be disbarred from the practice of law in the State of California. (Bus. & Prof. Code, §§ 6101, 6102; Cal. Rules of Court, rule 951.) The recommendation is based on petitioner's 1982 conviction for possessing, with intent to distribute, approximately 30 grams of lysergic acid diethylamide (L.S.D.), and using interstate commerce to distribute that substance. After reviewing the record and petitioner's objections, we conclude that a less severe form of discipline will sufficiently protect the public and profession and better recognize the mitigating factors amply established in this case.
In January 1983 we placed petitioner on interim suspension, to commence on February 3, 1983, pending final disposition of the disciplinary proceeding. We referred the matter to respondent State Bar for a hearing to be held after petitioner's release from incarceration.
In July 1986 a panel of the State Bar Court held a two-day evidentiary hearing on the matter. After listening to ten witnesses and receiving considerable documentary evidence, the three-member panel unanimously recommended that petitioner be suspended from the practice of law for a period of five years, suspension stayed, with one year of actual suspension followed by four years of probation. In May 1987 the review department adopted the hearing panel's findings of fact almost verbatim, but rejected the panel's disciplinary recommendation. Instead, by a vote of seven to five, the review department recommended petitioner be disbarred.
In his petition in this court petitioner acknowledges his guilt, accepts full responsibility for his actions, and recognizes that his conduct warrants discipline to protect both the profession and the public. He contends, however, that the penalty of disbarment is unduly severe in light of the many mitigating circumstances.
In September 1976 petitioner sustained multiple injuries in an automobile accident. The injuries left him with continual severe pain in his lower back and thighs. His doctors prescribed Percodan for the pain, and the drug gave petitioner almost complete relief. Unfortunately, Percodan -- a synthetic opiate -- is addicting. During the next two years, as petitioner continued taking Percodan under his doctors' prescriptions, he became wholly reliant on and addicted to the drug.
As a result, petitioner began purchasing and using illegal drugs, including opium and heroin. He stopped practicing law, and gradually sank into a state of isolation and emotional despair. On at least one occasion he nearly died from a drug overdose. In this impaired and addicted state, petitioner began selling drugs to subsidize his own drug use.
In October 1981, a drug dealer turned government informant named Michael M. approached petitioner about purchasing two grams of L.S.D. Petitioner arranged the sale at a price of $4,000, $400 of which represented his commission; he used the $400 to buy drugs for his own use. In January 1982, Michael M. again approached petitioner and asked to purchase 30 grams of L.S.D. Petitioner arranged the sale at a price of $60,000, $6,000 of which was to be his commission. He obtained the L.S.D. and flew from California to New Jersey to deliver it. He was arrested on his arrival in New Jersey.
In January 1982, petitioner was charged with a variety of federal offenses arising out of the drug transaction. In March 1982 petitioner pleaded guilty to possession of a controlled substance with intent to distribute it (21 U.S.C. § 841(a)), and to using interstate commerce to distribute a controlled substance (18 U.S.C. § 1952). He was sentenced to a term of seven years. After spending three years in the federal prison system and four months in a halfway house, he was paroled in August 1985.
Upon his incarceration petitioner acknowledged responsibility for his actions and set out to rebuild his life. He went through a difficult period of abrupt opiate withdrawal. After arriving at Terminal Island federal prison [44 Cal. 3d 275] in June 1982, he entered that facility's drug abuse program and began psychological therapy. He continued both activities throughout his one-year stay at Terminal Island. When transferred to the federal prison camp at Lompoc in May 1983, petitioner became an active member of Alcoholics Anonymous (A.A.), founded a chapter of Narcotics Anonymous (N.A.), participated in weekly alcohol and drug awareness seminars, and continued both individual and group psychotherapy. He remained active in all these activities throughout his two years at Lompoc.
Petitioner's self-improvement campaign has continued, and indeed intensified, during the more than two years since his release. He remains deeply involved in A.A. and N.A., and spends many of his nonworking hours helping others who have drug and alcohol problems. He has become an active member of two additional groups -- The Lawyer's Forum of Southern California and The Other Bar -- that help lawyers and judges cope with drug and alcohol problems. He has also become a leader and public representative of the Alcohol Action Program of Jewish Family Services of Los Angeles, and a member of A.A's Committee for Cooperation With the Professional Community.
Finally, petitioner has continued to receive individual psychotherapy since his release, and his therapist reports his prognosis is "excellent." He has abstained from all drug use since January 1982, an abstention that has been verified by regular drug tests during the entire period. He presently works as a legal assistant for several attorneys in his area.
By all indications, petitioner has travelled a long way up the road to recovery. Both the hearing panel and review department found that he was "contrite and remorseful for his misdeeds," and that his extensive involvement in recovery-oriented organizations was "reflective of his own established rehabilitation, of his desire to aid in his own recovery, to make amends for his past conduct, and to become the best person he possibly can be."
[3a] Many such mitigating factors are present here. Petitioner had no prior disciplinary record in his brief period of practice. (Chefsky v. State Bar (1984) 36 Cal. 3d 116, 132, fn. 10 [202 Cal. Rptr. 349, 680 P.2d 82]; Bradpiece v. State Bar (1974) 10 Cal. 3d 742, 747 [111 Cal. Rptr. 905, 518 P.2d 337].) He withdrew from the active practice of law prior to committing his criminal acts (Demain v. State Bar (1970) 3 Cal. 3d 381, 387 [90 Cal. Rptr. 420, 475 P.2d 652]), and his offenses were neither committed in his capacity as an attorney nor in any way related to his practice of law (In re Kreamer, supra, 14 Cal.3d at p. 531).
Petitioner's drug addiction was the result not of illicit drug use, but of legitimate medical treatment. His involvement with illegal drugs began because that treatment was abruptly cut off. He did not sell drugs because of a simple desire for personal enrichment. (In re Higbie (1972) 6 Cal. 3d 562, 573 [99 Cal. Rptr. 865, 493 P.2d 97].) Rather, he did so because his addiction, the sudden unavailability of Percodan, and his withdrawal from legal practice combined to create an overwhelming financial pressure. (Doyle v. State Bar (1976) 15 Cal. 3d 973, 979 [126 Cal. Rptr. 801, 544 P.2d 937]; In re Cohen (1974) 11 Cal. 3d 935, 943 [114 Cal. Rptr. 611, 523 P.2d 651].) Further, petitioner committed his illegal acts during a period of protracted emotional difficulties (Tenner v. State Bar (1980) 28 Cal. 3d 202, 207 [168 [44 Cal. 3d 277] Cal.Rptr. 333, 617 P.2d 486]; In re Fahey (1973) 8 Cal. 3d 842, 850 [106 Cal. Rptr. 313, 505 P.2d 1369, 63 A.L.R.3d 465]) and serious drug problems (see Demain v. State Bar, supra, 3 Cal.3d at p. 385; Waysman v. State Bar (1986) 41 Cal. 3d 452, 459 [224 Cal. Rptr. 101, 714 P.2d 1239]).
The review department's sole stated reason for recommending disbarment is: "[Petitioner] was a professional dealer in illegal drugs for a substantial [44 Cal. 3d 278] period of time and did not cease to be so until arrested. A lawyer who engages in such conduct should be disbarred." This statement betrays an oversimplified and unsupported view of the law. First, it suggests, incorrectly, that we discipline attorneys simply to punish them. (Cf. In re Severo, supra, 41 Cal.3d at p. 500.) Second, it implies, also incorrectly, that we will not consider substantial mitigating circumstances in cases involving serious offenses. (Cf. In re Kreamer, supra, 14 Cal.3d at p. 531.) Third, it intimates, again incorrectly, that we apply rigid disciplinary standards, and that we analyze attorney discipline cases in the abstract instead of resolving each case on its own particular facts. (Cf. In re Dedman, supra, 17 Cal.3d at p. 233.) As a reason for recommending disbarment, in short, the review department's statement is simply not good enough.
Respondent argues that disbarment is appropriate because petitioner has not demonstrated his complete rehabilitation for a sufficient period of time in a noncustodial environment. This is doubtless an important consideration, yet we note that petitioner was released from custody over two years ago and has suffered no character relapses during that time. We further note petitioner has completely abstained from drugs and alcohol for nearly six years -- including the two-year period since his release. Admittedly, two years of demonstrated noncustodial rehabilitation might be insufficient to forestall disbarment in other cases involving offenses as serious as that of petitioner. However, in light of petitioner's untiring efforts at self-improvement, positive contributions to the community and profession, longstanding sobriety, and impressive support among both friends and professional associates, we find his period of noncustodial rehabilitation is not so insubstantial as to require disbarment.
Respondent also asserts disbarment would afford the public and the legal profession greater protection than would suspension. This is so, says respondent, because if and when petitioner applies for reinstatement (1) more noncustodial time will have passed and (2) petitioner's conduct and rehabilitation will be thoroughly examined as part of the reinstatement process. However, as respondent admits, if petitioner were disbarred he would be eligible to apply for reinstatement very shortly -- on February 3, 1988 -- five years from the effective date of his interim suspension. (Rules Proc. of State Bar, rule 622.) It is difficult to see how petitioner's case would be made more persuasive by the passage of limited additional days of noncustodial time, or how a thorough examination of his conduct and rehabilitation at that time would be any more enlightening than the thorough examination taking place here and now. Indeed, protection of the public would be better served by supervision of the petitioner over a period of several years on probation.
Viewing petitioner's wrongful conduct in light of both the circumstances surrounding that conduct and petitioner's demonstrated rehabilitation, we [44 Cal. 3d 279] conclude the protection of the public, the courts, and the legal profession does not require disbarment. A lesser degree of discipline, specified below, will be sufficient to insure that petitioner's complete rehabilitation is very well established before he escapes the properly watchful eye of the State Bar.
8. That at the expiration of the probation period, if petitioner has complied with the terms of probation, then without further order his probation and suspension shall terminate and he shall be reinstated as an attorney with full status in the bar.
This order is effective 30 days after the filing of this opinion.
I begin by sharing the dissent's concerns over the type of misconduct involved in this case. Petitioner has gone beyond breaching the fiduciary duties imposed upon him as an attorney, and has engaged in crimes against society. His possession and interstate distribution of large quantities of an illicit and dangerous drug is criminal conduct, the seriousness of which cannot be overstated. Petitioner's two criminal convictions also represented only a small fraction of a concededly larger pattern of unlawful conduct involving other drug transactions.
Nonetheless, there is more to this case than drug-dealing for personal gain. While I do not in any way condone petitioner's activities, he has painted a convincing picture of a once-productive individual whose lawful [44 Cal. 3d 281] use of a prescriptive drug transformed him into an addict. He resorted to criminal conduct only after being abandoned by the medical profession.
Most telling, of course, is the overwhelming evidence of rehabilitation. Since the inception of his incarceration, petitioner has consistently acknowledged responsibility for his crimes, and has diligently sought to permanently rid himself of his addiction. He has actively and selflessly participated in various recovery programs, including those specifically designed to help solve the drug and alcohol problems of other members of the legal profession. Finally, petitioner's abstention from drug use is well documented, his therapeutic prognosis is excellent, and his desire to contribute to the legal profession is strong.
Accordingly, our task is to balance these unique facts against the need to protect the public, bench, and bar from further injury. I believe that the majority has made the proper disciplinary choice. A probationary term enables the State Bar and this court to carefully monitor petitioner's progress and ensure that his rehabilitation continues. The discipline ordered by the majority imposes a one-year period of actual suspension and four additional years of probation. In short, petitioner will be under our watchful eyes for the next five years.
In contrast, disbarment would not lead to such particularized supervision. As noted in the majority opinion, petitioner becomes eligible to apply for reinstatement in February 1988. Assuming his application -- which would undoubtedly document his impressive rehabilitative effort -- is granted, he would soon reenter the profession and be free of all probationary supervision.
Therefore, in light of the severity of petitioner's misconduct and the need to ensure that his commendable reform efforts continue, I concur with the discipline imposed by the majority.
Arguelles, J., and Kaufman, J., concurred.
I respectfully dissent. In my view, we should uphold the State Bar Court's recommendation that petitioner be disbarred. Any lesser punishment for petitioner, convicted of drug dealing on a large scale, is both inadequate to protect the public and insufficient to deter similar offenses by petitioner and others.
According to the State Bar, the federal offenses of which petitioner was convicted involved the possession for sale of approximately 120,000 dosage units of LSD, and the interstate transportation of those drugs for sale. Petitioner played an active and willing role in the scheme, which was not an isolated occurrence but part of a pattern and practice by him to acquire and sell large quantities of illegal drugs (including heroin, cocaine and LSD) for [44 Cal. 3d 282] personal gain. The State Bar observes that petitioner admitted engaging in at least eight such transactions over a two-year period.
In past cases, for the protection of the public, the courts and the legal profession itself, we have disbarred attorneys who engaged in similar practices. (E.g., In re Giddens (1981) 30 Cal. 3d 110, 115 [177 Cal. Rptr. 673, 635 P.2d 166] [conspiracy to distribute large quantities of amphetamines].) Disbarment is not, of course, a permanent condition -- a disbarred attorney may apply for reinstatement within five years of his interim suspension. Thus, in the present case, petitioner may seek reinstatement as early as February 1988. But from the standpoint of protecting the public, the advantage of disbarment as opposed to a fixed period of suspension is that the burden will rest on petitioner, following the disbarment period, to demonstrate his rehabilitation and thereby establish his fitness to resume his law practice.
As we previously stated, rejecting a claim of rehabilitation by two disbarred attorneys convicted of grand theft and forgery, "evidence of any rehabilitation will be more persuasive if offered during any reinstatement proceedings after disbarment. At that time petitioners may be able to show by sustained exemplary conduct over an extended period of time that they have reattained the standard of fitness to practice law." (In re Petty (1981) 29 Cal. 3d 356, 362 [173 Cal. Rptr. 461, 627 P.2d 191].) We relied on Petty in disbarring the drug-dealing attorney in Giddens, supra.
The majority, pointing to the considerable mitigating evidence and "testimonials" marshalled by petitioner, suggests that the State Bar has had adequate time since petitioner's suspension in which to evaluate his rehabilitation, and that no purpose is served in waiting a few more months to undertake that evaluation in the context of an application for reinstatement. This analysis appears to miss the point: The State Bar has concluded that petitioner should be disbarred, i.e., that thus far he has not adequately demonstrated his rehabilitation. As the State Bar observes, petitioner's testimonials regarding his rehabilitative efforts cover only the two-year period following his release from federal custody. Petitioner must therefore await the passage of a more substantial period of time before seeking readmission to practice.
Petitioner had the burden of demonstrating that the State Bar's disbarment recommendation is erroneous. (E.g., In re Schwartz (1982) 31 Cal. 3d 395, 399-400 [182 Cal. Rptr. 640, 644 P.2d 833, 26 A.L.R.4th 1077].) In my view, no such error has been demonstrated. Accordingly, I would accept the State Bar's recommendation and disbar petitioner.
FN 1. Both the hearing panel and the review department found "It is a physician's duty to assist his patient in this manner. It is contraindicated to simply cut off a patient's prescription. One reason is that a patient may seek out and use opiates from the 'street' on an ongoing basis. This is what happened to [petitioner] who thereafter commenced to purchase and use illegal opiates."
FN 3. We note that standard 3.2 of the State Bar Standards for Attorney Sanctions for Professional Misconduct states that an attorney convicted of a crime such as petitioner's will be disbarred unless "the most compelling mitigating circumstances clearly predominate." The hearing panel specifically found that in petitioner's case "it is overwhelmingly established that the most compelling mitigating circumstances clearly predominate." While the Standards for Attorney Sanctions are simply guidelines for use by the State Bar and do not affect the independence of our review (Greenbaum v. State Bar, supra, 43 Cal.3d at p. 550), we nonetheless find them instructive as we make our determination.
FN 4. Although convicted on charges arising out of only two drug transactions, petitioner frankly admitted having sold drugs on eight occasions prior to his arrest.


As an accident attorney who spent years representing tractor trailer truck and insurance companies, Zack Hendon knows where to mine for gold in truck company records. In a perfect world these trucking companies would not violate federal safety rules. However, they do regularly violate these rules and in a serious truck accident injury, it is almost always worth filing a lawsuit against a negligent trucking company to compel the discovery of evidence of these violations through the use of the court’s subpoena power.
The Hendon Law Firm, LLC has the capability of getting the best settlement or verdict in your serious injury semi truck wreck case. If you have serious injuries or the death of a loved one caused by a trucking accident, your case may be worth millions of dollars and therefore it is vitally important that you choose one of the top Georgia truck accident attorneys.
1. Why do I need a Georgia tractor truck or semi accident attorney to handle my case rather than just any auto accident attorney?
There are a number of reasons you should hire a Marietta / Atlanta, Georgia truck accident attorney to handle your case. Yes, trucks do have to follow Georgia’s Rule of the Road but they are also subject to additional Georgia laws and federal laws and regulations. These safety regulations require the truck companies and their truck drivers to follow specific procedures and to keep documentation showing these procedures were followed. If you do not hire a top truck accident attorney such as Zack Hendon, the value of your semi truck case is being diminished before you start.
2. What are some of the motor carrier regulations which the truckers could violate which could affect the value of my case?
(8) Has successfully completed a driver’s road test and has been issued a certificate of driver’s road test in accordance with §391.31, or has presented an operator’s license or a certificate of road test which the motor carrier that employs him/her has accepted as equivalent to a road test in accordance with §391.33.
§ 391.21 Application for employment.
(a) Except as provided in subpart G of this part, a person shall not drive a commercial motor vehicle unless he/she has completed and furnished the motor carrier that employs him/her with an application for employment that meets the requirements of paragraph (b) of this section.
(12) The following certification and signature line, which must appear at the end of the application form and be signed by the applicant: This certifies that this application was completed by me, and that all entries on it and information in it are true and complete to the best of my knowledge.
(c) A motor carrier may require an applicant to provide information in addition to the information required by paragraph (b) of this section on the application form.
(d) Before an application is submitted, the motor carrier must inform the applicant that the information he/she provides in accordance with paragraph (b)(10) of this section may be used, and the applicant’s previous employers will be contacted, for the purpose of investigating the applicant’s safety performance history information as required by paragraphs (d) and (e) of §391.23. The prospective employer must also notify the driver in writing of his/her due process rights as specified in §391.23(i) regarding information received as a result of these investigations.
§ 391.25 Annual inquiry and review of driving record.
(a) Except as provided in subpart G of this part, each motor carrier shall, at least once every 12 months, make an inquiry to obtain the motor vehicle record of each driver it employs, covering at least the preceding 12 months, to the appropriate agency of every State in which the driver held a commercial motor vehicle operator’s license or permit during the time period.
(1) The motor carrier must consider any evidence that the driver has violated any applicable Federal Motor Carrier Safety Regulations in this subchapter or Hazardous Materials Regulations (49 CFR chapter I, subchapter C).
(2) The motor carrier must consider the driver’s accident record and any evidence that the driver has violated laws governing the operation of motor vehicles, and must give great weight to violations, such as speeding, reckless driving, and operating while under the influence of alcohol or drugs, that indicate that the driver has exhibited a disregard for the safety of the public.
(1) A copy of the motor vehicle record required by paragraph (a) of this section shall be maintained in the driver’s qualification file.
(2) A note, including the name of the person who performed the review of the driving record required by paragraph (b) of this section and the date of such review, shall be maintained in the driver’s qualification file.
There are also many other regulations governing the inspection and maintenance of vehicles, the number of hours a driver can safely drive, alcohol and drug use and testing, safety equipment procedures and trucking company record retention.