Suitable Quotes. (Words for Thought.)

Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.
   
           - Alexis de Tocqueville

MLK's 6 Principles of Nonviolence.

1.  one can resist evil without resorting to violence.

2.  nonviolence seeks to win the friendship and understanding of the opponent, not to humiliate him.

3  evil itself, not the people committing evil acts, should be opposed

4  those committed to nonviolence must be willing to suffer without retaliation as suffering itself can be redemptive

5  nonviolent resistance avoids external physical violence and internal violence of spirit as well. 

6  the nonviolent resister must have a deep faith in the future, stemming from the conviction that the universe is on the side of justice.

Knocking on the Door.

U.S. Supreme  Court
Washington, D.C.
Kentucky v. King
January 12, 2011

     So, it’s Saturday night.  Bob Marley is on the turntable.  You’re hanging out with a couple of friends, laughing on the couch.  Cokes are in the icebox.  Thoughts are passed around in a pakalolo-packed calumet.  It’s all good, as they used to say last century.

     The next thing you know, the front door of your flat is kicked in, police officers ready to search your home.  Just a moment ago, the cops were pounding on the door, yelling “Police!” In that intervening moment, you got off the couch, shuffled around, put the pipe in its proper place and tried to make yourself presentable.  Is this situation one where an emergency exists, requiring the police to kick in your door and search your place without a warrant?

     That’s the fact pattern that resulted in this morning’s oral arguments at the U.S. Supreme Court, in the case of Kentucky v. King.

     Kentucky argued that the combination of the smell of marijuana smoke, the resident’s failure to respond to the officer’s knock and the sounds of movement inside the apartment justify a warrantless entry and search.  The police claimed that they could tell by the sounds from inside the apartment that evidence was being destroyed.  It’s a well-established principle that if police reasonably believe that evidence is being destroyed, they can enter a residence and conduct a search.  The issue the court must decide is if the police impermissibly create the emergency situation?  If they did, they cannot rely on the emergency situation to justify their warrantless search.

     King, who was sentenced to 11 years for drug related charges, argued that the police impermissibly created exigent circumstances when they engaged in conduct that would cause a reasonable person to believe that entry is imminent and inevitable.

     The court must also determine the proper test to evaluate police conduct.  Kentucky argued that the test is if the police acted in a lawful manner, they do not impermissibly create exigent circumstances.  King argued that police behavior must be analyzed by looking at the totality of the circumstances, and that no single factor – such as the lawfulness of the police actions or foreseeability of the destruction of evidence – establishes the exigent circumstances.

     A ruling by the court that all that is needed to justify a warrantless search is a police officer knocking on the door, announcing his presence and hearing a noise would seem to eviscerate all protection the fourth amendment provides against unreasonable searches.

Every Bit of Information.

Matrixx Initiatives v. Siracusano - January 10, 2011

     Thom Yorke, frontman for Radiohead, claims he lives in a town where he can’t smell a thing.  Maybe he took Zicam, a zinc-based cold remedy manufactured by Matrixx Initiatives, and lost the ability to smell.  Medical professionals call this condition anosmia.  Mr. Yorke’s condition, if reported by him or his doctor to the drug manufacturer, would then be included in an Adverse Event Report, or AER.  The AER is then filed with the Food and Drug Administration.

     Federal statutes make it unlawful for a company to make an untrue statement of material fact or to omit a statement of material fact.  A shareholder of a company may file a lawsuit under this law.  To prevail, the shareholder must show that the material statement or omission was made with the company’s knowledge and caused economic loss.

     This morning, the United States Supreme Court heard oral arguments in the case of Matrixx Initiatives v. Siracusano, to determine if the drug maker’s failure to disclose the AER’s of anosmia results in an actionable claim by the shareholders.  Out of the millions of consumers who bought Zicam, only 23 developed anosmia.  The issue is whether the manufacturer has to disclose information that is not statistically significant.  In this case, no connection has been shown between Zicam and anosmia.  The lower courts are divided on this issue.

     Matrixx argues that the shareholder’s lawsuit should be dismissed because the AER that was not released was not material.  Information is material if there is a substantial likelihood that a reasonable shareholder would consider it important.  Matrixx further argues that for the reports to be material, they must be shown to contain statistically significant evidence proving that Zicam caused anosmia.

     Siracusano and the shareholders argue that the lack of statically significant evidence should not preclude their lawsuit, claiming that reasonable investors would consider relevant information, even if it had not reached the level of statistical significance.  The federal government agrees with the shareholders and filed an amicus brief in support of their position.

     Justice Kagan was skeptical of Matrixx’s position, making the point that “the FDA takes action all the time as to drugs -- they force the withdrawal of a drug from the market, they force relabeling of a drug -- on the basis of findings that are not statistically significant,” and that those actions “severely affect the product's value to the company.”  Justice Sotomayor echoed this position, stating that reasonable evidence of a connection is required, not statistical significance.

     If the Court finds in favor of Matrixx, the adoption of the statistically significant test could result in cases being dismissed before a judge or a jury has an opportunity to evaluate the facts.  If the Court rules for Siracusano, companies may feel required to release every bit of information available, to avoid running afoul of the law.

Saturday Morning Snow.

Chamber of Commerce v. Whiting.

Illegal immigration has been a hot button issue recently.  The Department of Homeland Security estimates that out of 31 million foreign-born residents in the United States as of 2009, nearly 11 million were illegal.  Interestingly enough, the current Secretary of Homeland Security, Janet Napolitano, signed into law the Legal Arizona Worker’s Act in 2007, when she was Governor there.  It is that law which was the subject of this morning’s oral arguments at the United States Supreme Court.

The Arizona law requires employers to check the immigration status of job applicants, with the threat of penalties that include revocation of an employer’s business license if undocumented workers are hired.  The District Court ruled that the Arizona law was not pre-empted by federal law, and the 9^th Circuit agreed.  The Supreme Court will decide whether the Arizona statute is pre-empted by Federal law, namely the Immigration Reform and Control Act of 1986.  The court will also determine whether the Arizona statute, which requires all employers to participate in a federal electronic employment verification system called E-Verify, is pre-empted by a federal law that specifically makes that system voluntary.

The passage of laws which concern the admission of citizens and subjects of foreign nations to our shores belongs to Congress and not to the States.  That’s what the U.S. Supreme Court ruled in 1876, in the case of Chy Lung v. Freeman.  In 1915, in the case of Truax v. Raich, the Supreme Court found that an Arizona law denying legal aliens the right to work in many jobs violated the 14^th amendment, and also interfered with the “authority to control immigration, to admit or exclude aliens,” an authority which lies solely with the Federal government.

All that sets the stage for today’s hearing.  The Federal law – the Immigration Reform and Control Act  – preempts any State or local law from imposing civil or criminal sanctions, other than through licensing and similar laws, upon those who employ, recruit or refer for a fee, unauthorized workers.  It was whether the Arizona law fell into the category of licensing and similar laws that the court spent most of its time investigating.  If Arizona’s law is determined to be a licensing law, it won’t be pre-empted by the federal law.

Justice Kennedy saw a broad definition as to what could be a license under the federal law, stating that he saw no limitation on what the State can decide is a license.

Justice Scalia joined in, stating that the Federal law didn’t limit what type of licenses would be permitted, and asking what did it intend to add to that? Barbers' licenses, beauticians' licenses? How would any of this have anything to do with the immigration laws?

Justice Sotomayor tried to turn the discussion back to the issue of preemption, saying she thought the issue of how a license is defined was irrelevant.  The crux of the issue, according to Justice Sotomayor, was whether the Federal law preempted the system the Arizona law set up to determine whether employers had violated the law.  However, the licensing issue remained at the forefront throughout the hour-long hearing.

If the Court agrees with the Chamber of Commerce that the Arizona law is preempted, it will be more difficult for states to regulate illegal immigration.  If the Court upholds the law, businesses will have to navigate a patchwork of state employment and immigration laws.