Where Money, Citizenship and the Law Collide

Yesterday, the California Supreme Court handed down a decision in the case of Martinez v. Regents of the University of California. At issue was whether an illegal alien, who has lived in California for the requisite amount of time, could receive the benefits of lower, in-state tuition, just like a person who is a U.S. citizen who lives in California.

The California Supremes came down with a yes, in fact an illegal alien could receive in-state tuition.

At first, I was outraged. Then I started to think as I read the case.

Let's talk about the case first. The case was brought on behalf of some students who are U.S. citizens, but do not meet certain requirements for residency laid out in Education Code § 68130.5. They argue that it is unfair to make them pay higher rates than in-state, illegal aliens.

Essentially, the plaintiffs argued on appeal that this was a case of federal superseding state law. That the California law should have been invalidated by various Federal statutes pertaining to illegal immigration. The defendants argued that this not a question of Federal preemption, since, they argue, there is no clear preemption of this issue.

What ends up happening is that the California Supreme do a very intricate dance. On the one hand, they absolutely did not want to give the Federal government more say than absolutely necessary in a California matter, namely who gets in-state tuition breaks. On the other hand, what the court very carefully does not do is find that there is anything in the California constitution which gives them this right. Instead, the right is only statutory and can be changed by the legislature.

And this goes to one of my favorite questions: why is the Legislature not doing its job? Why is the California Legislature approving, as it did in 2002, laws that devalue citizenship. And that, I think, is the real problem here. Why should someone follow all the rules, get a green card, obtain citizenship, and pay taxes if someone can just get around all that, not pay taxes, and still receive the same benefits of citizenship.

Yes, the argument is that there are talented, bright illegal aliens who would find it nearly impossible to afford education if this law were not upheld or amended by the Legislature. And yes, there is the whole question of whether it is proper to visit the sins of the parents (for crossing over illegally into the United States) on the children. The illegal alien, irrespective of whether they have been contributors or detractors individually to our society, is here illegally. Therefore, it is questionable whether they have any right to claim that they are legally domiciled in the United States or California. If that is the case, then why continue to extend to them the privileges which the citizens of the U.S., and California, enjoy?

As it stands right now, the law in question, section 68130.5, states

In the case of a person without lawful immigration status, the filing of an affidavit with the institution of higher education stating that the student has filed an application to legalize his or her immigration status, or will file an application as soon as he or she is eligible to do so.

Well, if that is the case, then why are we not demanding proof that they have complied with this part of the law? If that is the case, why does the State of California not puruse those who do not pursue legalization for the back money owed. Remember, its only an exemption contingent upon the illegal alien doing the lawful thing.

One of the insane, in my opinion, justifications, for allowing illegal aliens to get the in-state tuition rate comes in the article in today's Chronicle. Apparently, in a survey of 2,000 students which benefited from the law allowing entrance to a UC or CSU school based on California residency and high school achievement, approximately 20 percent of the students were illegals. One of them, Uriel Rivera, was reported by the Chronicle writer as stating that the taxpayers lose nothing by Mr. Rivera attending a UC because they have so much trouble paying their tuition anyways. Huh? Mr. Rivera, it is reported, is so far behind in his tuition that he cannot check books out of the library. Great. So we subsidize him, with the in-state tuition break, he can't pay that amount anyways. How is that a break for either the UC system or California tax payers?

The difference between in-state tuition and regular tuition is $22,700, notwithstanding the rate hikes which will probably happen next year. So for just the 200 illegals we know of from the study, that means $4,540,000 in lost fees per year. Would all of the 200 slots given to illegal aliens been filled by out of state residents, probably not. But say even 50 of those slots went to out of state. Think that's crazy? Well, the UC system is trying to get more out of state tuition money coming  by aggressively recruiting. So maybe not so crazy?

But, if you went by the current stats, which states that 89% of the student body (undergrad and grad) are in-state tuition, then you still see an increase over almost half a million in fees to the UC system. But more importantly, all of those students, assuming that the illegal aliens are replaced by legal residents, would be eligible for Federal student assistance programs.

Although I've just done some, very rudimentary, numbers crunching, I come back to what I think is the real problem. The real problem is whether we are going to continue incentivize law breaking, and the devaluation of citizenship by not changing this law. Is it cold and elitist? Not if you think of it as the way you've been taught since kindergarten: everyone has to follow the same set of rules.

The plaintiffs in this case are planning to seek a writ to appeal to the U.S. Supreme Court. It may take the case, if only to talk about preemption and then remand it down for further findings. That's my guess.

They May Have Come To The Wrong Conclusion

I do not always agree with the California Supreme Court. They have extended privilege protection in ways that seem to penalize tenants, and embolden landlord's to abuse the civil litigation process. In what looks like their latest mistake, they have allowed a lawsuit to go forward against a rescuer.

Under California law, specifically Health and Safety Code §1799.102, people who are performing emergency care at the scene of accident are immune from civil suits as long as the emergency care was rendered in good faith and not for compensation. Essentially, if a person collapses, and you give them CPR, and something bad happens as a result, then the person giving the CPR is not liable for damages.

Now, in the case of Van Horn v. Watson, the California Supreme Court ruled that this immunity does not extend to people who perform the rescue of the person in need. In Van Horn, two women (Van Horn and Torti) were riding in a car when they ended up in a accident. Torti, being less injured, thought she saw smoke coming from the car. So she pulled her friend, Van Horn form the car. However, because of her condition, and the movements in pulling her out of the car, Van Horn was left a parapalegic.

The Van Horn decision, written by Justice Ching, held that the statute was meant to be construed in a particular fashion. Specifically, Ching wrote, "the 'scene of an emergency' ... means a scene where 'an individual has a need for immediate medical attention' ... it logically follows that the Legislature intended for the phrase 'emergency care' ... to refer to the medical attention given to the individual who needs it."

Seems to me that the statue reads "No person who in good faith, and not for compensation, renders emergency care at the scene of an emergency shall be liable for any civil damages resulting from any act or omission." Yes, it is contained in a section of the code which deals with doctors and nurses, however, the law states that it is dealing with "emergency care at the scene of an emergency". A plain reading would indicate that this means all emergency care at the scene of the emergency, and not simply the emergency medical treatment.

Given the reading that the majority (the decision was a 4-3 split) gives this code section, it could have the effect of making people even more likely not to help people in an emergency situation. It appears that the majority's reasoning for its decision, that the legislative history and placement of the statute, conflicts with the facts. The statute, as the majority acknoweldges, was meant to encourage people to be good samaritans and render assistance. However, they chose to read it narrowly on the grounds that it was in a section of the Code dealing specifically with medical care.

Part of me thinks that the Justices were uncomfortable giving immunity to someon who was probably drunk and/or high at the time that the accident occurred. (See the facts fo the case to see how the participants of the suit had spent their night.)

Basically, I think that the court missed a chance to shield bona fide good samaritans from lawsuits. Unfortunately, I think its going to end up hurting more people in the long run. (Shocker, I am taking the defense side on this one.)

In Case You Did Not Hear That Sound....

....from all the right-wing conservative groups.... the California Supremes today handed down an itty bitty decision on family law. Here it is... all 172 pages of it. I will be reading this for a month.

S147999 - Upload a doc

Read this doc on Scribd: S147999

Do you think that maybe Obama and Hillary were hoping that the California Supremes were willing to take a pay-cut so they would not have to talk about this?

Why Not Just Say That Tenants Have No Rights

Lately, things have not been going well for tenants up on appeal. First, there was last year's Action Apartment decision (Action Apartments v. City of Santa Monica, (2008) 41 Cal.4th 1232). Now comes the First District Court of Appeal in the case of 1100 Park Lane Associates v. Feldman.

Action Apartments was the culmination of what I believe is the law of unintended consequences. In the 1980s, corporations or people started to sue people for protesting certain practices. These types of suits became known as SLAPP suits. Essentially, certain parties were using the courts to restrict people's speech by forcing them to litigate the cases. In response to the rise of SLAPP suits, the California legislature passed a law which is now section 425.16 of California's Code of Civil Procedure, an anti-SLAPP statute.

Section 425.16 allows a part defending against a complaint or cross-complaint to file a motion. If the motion is successful, it terminates the case. The court, when considering an anti-SLAPP motion decides two things. First, it determines whether the activity challenged by the complaint is a protected activity. Second, the court determines whether the plaintiff (or cross-complainant) has a probability of prevailing in the law suit. If the plaintiff loses, they could also be responsible for attorneys fees. If the defendant loses their anti-SLAPP motion, they can appeal it immediately. While the case is up on appeal, the case is stayed.

Now, the basic idea is good. However, at least in the case of landlord tenant law, it is effectively stripping tenants of their rights. In Action Apartments, the California Supreme Court held that serving a notice to quit, the document needed to initiate an eviction action, on a tenant is a protected activity covered by the litigation privilege. Essentially, what this boiled down to is that the court found that if a landlord served a notice to quit, a tenant could not later sue the landlord for wrongful eviction based on the notice to quit.

Action Apartments made things harder for tenants. However, the opinion seemed to leave open some ways for tenants who had been wrongfully evicted by their landlords to seek redress. Then came the decision in 1100 Park Lane Associates v. Feldman.

In Feldman, the landlord 1100 Park Lane Associates LLC (of whom some of the members are Walter Lembi (of the CitiApartment/Skyline Realty Lembi family) and Andrew Hawkins) leased an apartment to Peter Levi. Mr. Levi had sub-tenants, Konrad Feldman and Jennifer Foote-Feldman, who were approved by agents of the 1100 Park Lane. A month after they moved in, and after they had been told that they had done everything necessary in order to be approved sub-tenants on the premises, they were contacted by the landlord. As the appellate court's opinion states, "

On June 2, 2005, the Feldmans received notice from Andrew Hawkins, who identified himself as the "trouble shooter" for the owner of the apartments, that their sublease application had not been approved and they were in possession of the premises unlawfully. Although the Feldmans showed Hawkins their documentation from Seigel, Hawkins insisted that they were unapproved occupants and that they would either have to leave or pay "market rent" for the premises, estimated to be over $2,000 more per month than the monthly rental the Feldmans were paying under the sublease.

When the Feldman's would not agree to the rate increase, Park Lane initiated an unlawful detainer by serving a three day notice and then filed a complaint with the San Francisco Superior Court. The unlawful detainer alleged that the eviction was proper because the Feldmans were unapproved subtenants and that they had changed a rug in the apartment without permission.

Eventually, the Feldmans surrendered their lease. However, they then retained counsel, ironically enough a firm that spends most of its time evicting people on behalf of landlords, and field suit. The suit consisted of the following claims: (1) retaliatory eviction, (2) negligence, (3) negligent misrepresentation, (4) breach of the implied covenant of quiet enjoyment--tort and contract, (5) wrongful eviction, (6) breach of contract, and (7) unfair business practices (Bus. & Prof. Code, § 17200).

Upon receiving the complaint, Park Lane filed an anti-SLAPP motion. The trial court ruled in favor of Park Lane, as the appellate court noted, "The court found that all seven causes of action arose from Park Lane's right of petition, but that the Feldmans had failed to establish a probability of prevailing on the first cause of action only. It awarded the Park Lane cross-defendants their costs and attorney fees pursuant to section 425.16, subdivision (c), with the amount to be fixed pursuant to a noticed motion."

On appeal, the trial court's decision was upheld. The court held that all of the causes of action related to the landlord serving the notice and filing the complaint for unlawful detainer. The court even went so far as to state that,

The Feldmans argue that their breach of contract cause of action is not covered by the statute, because the activity of breaching the contract is separate and distinct from the protected activities identified above. We disagree. First, it is established that conduct alleged to constitute a breach of contract may also come within the statutory protections for protected speech or petitioning. (Navellier I, supra, 29 Cal.4th 82, 92; Midland Pacific Building Corp. v. King (2007) 157 Cal.App.4th 264, 273.) We focus, as we must, {Slip Opn. Page 15} not on the label of the cause of action, but on Park Lane cross-defendants' activities challenged in the cross-complaint. The breach of contract claim contends that the Park Lane cross-defendants "breached the Addendum by the actions alleged herein, and by illegally evicting Levis from the premises, seeking thereby to deprive Cross-complainants of their contractual rights to occupancy of the premises." "The actions alleged herein" are Hawkins's threats, the service of the three-day notice, and the filing of the unlawful detainer action. The activities that allegedly breached the contract were the protected activities. The claim that the eviction was "illegal" because the Feldmans were lawfully in possession under the Addendum does not transform these protected activities into something different or independent. The breach of contract cause of action arose from protected activity.

Basically the court stated that even though there was a contract, and that the contract was breached by the landlord, the tenant has no means to bring an action in the court. Essentially, the service of the notice and/or complaint for unlawful detainer immunizes the landlords.

Let's see... the landlord can violate the terms of a contract and suffer... nothing if they have done something that could be deemed protected by the litigation privilege. Should the tenant violate the terms of the contract, they get served with a notice and most likely followed by a complaint for unlawful detainer with a serious chance of being evicted. Now, where is the equity in that?

Prior to Action Apartments, when a landlord did something like this, they would face a lawsuit for wrongful eviction. If they had done wrong, then the landlord would pay for it. The argument by the landlords' groups was that this was penalizing the small "mom and pop" landlords who were just renting some property and not legally savvy enough to know when they were breaking the law and that they should be protected. (And as a side note, I seem to remember being taught from a very young age that ignorance is not a defense under the law.)

Now we have law being interpreted in such a way that litigation privilege is now being used to oppress tenants who are being unlawfully evicted. Instead of the law being used to compel people to honor lawful agreements, it is now being used to protect the stronger party in an unequal relationship from having to face virtually an consequences for their wrongful acts!

Unfortunately, the way that the opinions have been written, the only redress seems to be the legislature. However, the way that the California legislature has been viewing landlord-tenant law lately, it seems unlikely that there will be any relief for tenants coming.

No regulation, no redress in the courts, and almost no chance of liability to being bad to your tenants... must be good to be a landlord right now.

This Just Strikes Me As Wrong

I have not read the opinion yet. However, just reading the background of the opinion makes me wonder what the appeals court was thinking when it wrote the opinion.

Apparently, in a murder case, the prosecutor started to exclude a certain class of people. They were not excluded because they were one race or another, or on the basis of their sex. He was excluding all journalists and teachers. The theory for this? They were too liberal.

The court of appeals, which in California is the intermediate court before the State Supreme Court, has stated that this is ok.

As I've said, I have not read the opinion yet. Some would argue that the California and U.S. Constitution only guarrantees that challenges or strikes to jurors based on race, creed, or sex are improper. However, as I recall, the point of a jury is that community is asked to decide who has violated the law. By allowing this type of strikes, it furthers narrows down the pool who can be allowed on a jury.

The basic rule so far has been that a person is eligible to sit as a juror so long as they are not biased one or another. Even in the case of Witherspoon v. Illinois, which gave us the rule that allows prosecutors to have a death penalty qualified jury (i.e. one that does not have people who cannot, under any circumstances, vote for the death penalty), there is the idea that it is actual bias, not potential bias based on what job a person has.

I would suggest that it should be harder to strike jurors, not easier.