Justice Department Rejects Forensic Science Recommendations; Critics Disapprove

—by Jennifer Pratt

Abstract: Attorney General Loretta Lynch opted not to adopt any recommendations set forth in a report to the President about the unreliability of scientific testing in court settings.  Critics fear this may lead to increased numbers of convictions for innocent defendants.

Citations: Gary Fields, White House Advisory Council Report is Critical of Forensics Used in Criminal Trials, The Wall Street Journal, http://www.wsj.com/articles/white-house-advisory-council-releases-report-critical-of-forensics-used-in-criminal-trials-1474394743 (Sept. 20, 2016); President’s Council of Advisors on Science and Technology, Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods, https://obamawhitehouse.archives.gov/sites/default/files/microsites/ostp/PCAST/pcast_forensic_science_report_final.pdf (2016).

***

In early September, the President’s Council of Advisors on Science and Technology (“the Council”) released a report (“the report”) on forensic science.  The report was a scathing review of how scientific evidence is analyzed and used in criminal trials.  According to the Council, a large portion of the most common analyses used do not meet scientific standards.

A large part of the Council’s criticism rested on the Federal Bureau of Investigation (FBI) laboratory and its processes.  The report raised various questions about the use of different types of common analyses performed at the lab, including hair, firearm and bite-mark analysis.  It also made recommendations for how to improve the forensic science agenda at the laboratory.  According to the Council, it is necessary for the FBI to expand its development of objective scientific methods used to test evidence that will be used in criminal cases.  Currently, said the Council, there are three specific subjective tests that need to be made objective: latent fingerprint analysis, firearms analysis, and sometimes, DNA analysis.

The Council also articulated recommendations for stricter proficiency testing of analysts.  It argued that the current standards for proficiency are insufficient for what is required of experts in the field.  According to the Council, “increased rigor” in proficiency testing is necessary to ensure that analysts are as well trained as is necessary.

In regard to the law, the Council stated that legal standards in cases that involve any scientific evidence should be based on scientific validity.  The report further intimated that neither experience, judgment, nor even solid professional practices could make up for actual evidence of “validity and reliability” in scientific testing.

Shortly after the Council released its report, the United States Attorney General, Loretta Lynch, responded to its findings.  She stated that the Justice Department would not be adopting any of the recommendations laid out by the Council.  In explaining why, Ms. Lynch said that there had already been large steps taken toward strengthening forensic science within the Justice Department.  She also said that the current legal standards are already based on sound scientific principles, and therefore do not need updating or changing.

This is not dissimilar to actions taken by the Department of Justice in the past.  For example, when the Attorney General formally adopted a new code of ethics for forensic science in September, there had been large changes made from what had been suggested by the National Commission on Forensic Science.  To critics, it appears as though the Justice Department is reluctant to adopt any new standards that would take power away from prosecutors or law enforcement.

One such critic is Barry Pollack, the president of the National Association of Criminal Defense Lawyers.  He stated that it is common knowledge amongst defense attorneys that the validity of scientific evidence and testing has been overstated by law enforcement for years.  He went on to say that the report to the President provided even more evidence that flawed analyses were consistently being used in courts, and furthermore, that those analyses were leading to wrongful convictions.

Law-enforcement officials, on the other hand, have stated that the report’s findings, if adopted, would lead to many “unwarranted challenges” in cases where defendants had been correctly convicted.  The FBI also disagreed with much of what the report said.  In a statement, an FBI official said the report “makes broad, unsupported assertions” about scientific testing, and forensic science in general.  The official further attacked the Council for not mentioning any published research studies, which may have already met the report’s criteria for scientific testing.

The question for many now is whether the Justice Department will continue to reject any and all recommendations for improving scientific analyses.  If it does, many defense attorneys worry that conviction rates for those who are innocent will continue to rise.  This poses ethical and moral questions to prosecutors across the country, as they must now determine how to handle evidence that may not be reliable.  At the very least, this issue has made its way into the spotlight and will hopefully be discussed more in the future.

New York State Senate Passes Bill to Accommodate Ride Sharing Apps, but the Assembly Will Not Follow

—by S. Alex Berlucchi

Sources: S.B. 4280, 238th S. Sess., 2015-2016 Reg. Sess. (N.Y. 2016); Mike McAndrew, Senate Passes Uber in Upstate NY Bill, but Assembly Expected to Balk, Syracuse.com, 1, 1 (June 17, 2016) http://www.syracuse.com/state/index.ssf/2016/06/senate_passes_uber_in_upstate_ny_bill_but_assemby_expected_to_balk.html

Abstract:  The New York State Senate passed a bill to allow “transportation network companies,” such as Uber and Lyft, to operate in areas of New York State outside of New York City.  Presently, concerns for the safety of the passengers and the insurance requirements for the drivers are causing debate within both the Senate and the Assembly.  While this bill passed in the Senate, it is not likely to pass in the Assembly.  Facing political pressure from Governor Andrew Cuomo, a resolution to the prohibition of ride-booking companies is imminent.

***

The New York State Senate passed a bill allowing “transportation network companies” such as Uber and Lyft, to operate in New York State.  Currently, these companies are only legally allowed to operate in New York City.  Ride-booking companies received an exception to operate in New York City, and the convenient, trend-setting ride services are advocated as an improved means of public transportation.  While this bill did pass in the Senate, the Assembly is reluctant to follow suit.

Senator James Seward (R-Oneonta) sponsored New York Senate Bill 4280, which passed in the Senate Insurance Committee.  The bill would require a minimum of one million dollars in liability coverage whenever a drive has a “paid passenger in their personal vehicle.”  When there are no riders, the Bill similarly mandates minimum coverage, totaling $200,000.  This minimum is higher than the minimum insurance requirements for taxi cab drivers in local municipalities, such as Utica, thus demonstrating an effort to maintain the current taxi cab industry while allowing “transportation network companies” to spread to other cities in New York.  Furthermore, this Bill allows for local control over all other issues, such as accessibility and requirements to act as an independent contractor.

This bill passed, in the Senate, despite strong opposition from the traditional taxi cab and limousine industry.  Similar to protests seen in New York City, allowing ride-booking companies to operate in cities such as Syracuse, Buffalo, and Rochester will have a detrimental effect on the cab industries in these respective localities.  For example, currently only 200 taxi cab licenses are issued, and all 200 are currently taken.  An influx of transportation options may lead to increased litigation with the taxi cab industry; however, there are two issues with the Bill as presently written.

The first issue is a lack access to “transportation network companies” for individuals with disabilities.  Presently, of the 30,000 independent contracts operating in New York City, there are zero vehicles which are wheelchair accessible.  This will be an issue for passing a law in New York, as the Assembly has placed an emphasis on handicap accessibility, as well as safety of the passengers.

In the Assembly, the parallel bill to New York Senate Bill 4280 includes higher mandatory minimum levels of insurance coverage.  There is also an express need to perform background checks on the drivers, in the interest of public safety, and a mandate for handicap accessibility.  These provisions were not included in the Senate version of the Bill.   Therefore, the Assembly is unlikely to resolve these issues.

This conversation began in the New York State Legislature more than one year ago.  Gov. Andrew Cuomo spoke to the positive aspects of ridesharing, or ride-booking, as a rapidly expanding business.  As a growing aspect of the technology industry, these “digital networks” provide a valuable service both to citizens of New York, and tourists who may be visiting.

Despite the benefit, the State Legislature is divided on the interests of public safety, and the autonomy provided to local governments will still be a barrier in allowing “transportation network companies” to operate.  The Assembly is not likely to pass the current bill as it is written.  In addition, while the Senate focused on insurance minimums to pass the Bill, the Assembly will need to resolve more issues before proposing a Bill which may be duly considered.  Based on the public response, this discussion is unlikely to resolve itself during the current session.

Bill Introduced to Prevent Sex Offenders from Playing Virtual Reality Games

—by Will Kilgore

Sources: S.B. 8174, 238th S. Sess., 2015–2016 Reg. Sess. (N.Y. 2016); N.Y. Penal Law § 65.10 (McKinney 2016).

Abstract: New York Senator Jeffrey Klein introduced Senate Bill 8174 to prohibit sex offenders from accessing augmented reality games, so as to prevent such offenders from congregating in the same real world locations as children engaged in virtual play.

***

On August 3, 2016, New York State Senator Jeffrey Klein introduced Senate Bill 8174 that would amend New York Penal Law Section 65.10 by adding the words “or augmented reality game” into subsection (b) of paragraph 4-a. The justification for Senate Bill 8174 is to prevent unsupervised children and sex offenders from congregating in the same real world locations that the augmented reality game incentivizes players to visit. This proposed legislation came largely in response to the immediate popularity of the augmented reality game Pokémon GO. Senate Bill 8174 is the first proposed legislation, either state or federal, that both recognizes the potential impact of augmented reality games on our culture and attempts to minimize the harm that can occur from playing these types of games.

 

Augmented Reality Games

Augmented reality games, like Pokémon GO, allow players to interact with their real world environment while simultaneously playing the game. For example, in Pokémon GO, the game uses a player’s mobile device camera, GPS, and clock to generate a version of the real world on that device. The purpose of this particular game is to collect creatures that pop up in random real world locations. There are also certain in-game objectives at real world locations, where players can stock up on supplies that are needed for the game or battle their creatures against those of other players. With both children and adults able to play the game, there can be significant risks in allowing unsupervised children to frequent these locations.

 

Current Status of the Law in New York

The subsection that Senate Bill 8174 proposes to amend sets forth mandatory conditions when imposing a sentence of probation or conditional discharge for certain classifications of sex offenders. Those classifications are: sex offenders that perpetrate an offense on victims under age 18, sex offenders that are classified as level three, or sex offenders that used the internet to facilitate the crime. Section 65.10 of New York Penal Law currently prohibits these classifications of sex offenders from: “1) using the internet to access pornographic material; 2) access[ing] a commercial social networking website; or 3) communicat[ing] with other individuals or groups for the purpose of promoting sexual relations with a person under the age of eighteen.” Subsection (b) goes on to define social networking website as:

any business, organization or other entity operating a website that permits persons under eighteen years of age to be registered users for the purpose of establishing personal relationships with other users, where such persons under eighteen years of age may: (i) create web pages or profiles that provide information about themselves where such web pages or profiles are available to the public or to other users; (ii) engage in direct or real time communication with other users, such as a chat room or instant messenger; and (iii) communicate with persons over eighteen years of age.

While Section 65.10 prohibits sex offenders from participating in three distinct activities, and social networking website has a broad definition, augmented reality games are not included in the prohibition.

 

Legislative Pipeline

Currently, Senate Bill 8174 is still in committee. In other words, the proposed legislation still has some distance to go before actually becoming law. The reviewing committee has to decide whether the bill should be sent to the Senate floor for a vote. If the bill passes by a majority in the Senate, then it has to also pass by a majority of the Assembly, and ultimately be signed into law by the Governor.

 

Implications of Senate Bill 8174

If Senate Bill 8174 becomes law, judges will be required to impose this additional condition on the probation or conditional discharge of all of the above-mentioned classifications of sex offenders. Prosecutors and investigators will presumably need to discover new methods to track and prove that a suspect did indeed access an augmented reality game. If a sex offender does access an augmented reality game, it will be the duty of the prosecutor to prove that the individual violated his probation or conditional discharge.

Even though this proposed legislation is still in committee, at the very least it brings awareness to the legislature that augmented reality games are on the market and could have potential negative consequences for consumers. At the very most, it could become law and potentially protect children by prohibiting sex offenders from accessing augmented reality games.

California Passes Bill to Protect Sexual Assault Victims

—by Astrid Quiñones

Source: Sex Crimes: Mandatory Prison Sentence, California, Assembly Bill No. 2888, https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201520160AB2888

Abstract: In response to the Brock Turner case, California enacted legislation to disallow probation and provide a mandatory minimum three-year sentence for defendants convicted of sexually assaulting an unconscious victim.

***

“I do not know your name — but I know that a lot of people failed you [. . .].” – Joe Biden, Vice President of the United States

Stanford rape survivor “Emily Doe” was sexually assaulted by Brock Turner while she was unconscious behind a dumpster. Earlier this year, Turner was convicted of three felonies, including assault with intent to commit rape, penetration of an unconscious person with a foreign object, and penetration of an intoxicated person. However, Turner was sentenced to six months in jail and was released after only serving half of his sentence.

Prior law prohibited a court from granting probation or suspending the execution or imposition of a sentence if a person was convicted of violating specified provisions of the law, including rape by force, pandering, and aggravated sexual assault of a child. But the prior law did not include this prohibition for victims who were unconscious or incapable of providing consent due to intoxication. Thus, the judge had the authority to provide a lenient sentence to Turner.

In response to Turner’s case, California lawmakers proposed legislation to correct this failure. The bill, AB 2888, ends a discrepancy in the California penal code that permits probation for defendants convicted of sexually assaulting an unconscious victim.  Also, it invokes a mandatory minimum three-year prison term for crimes regardless of whether the victim is conscious.

The bill had bipartisan support and quickly passed through the Senate and Assembly, and was signed by California Governor Jerry Brown (D.). However, the bill did not go unopposed. The American Civil Liberties Union and the California Public Defenders Association argued that state law already provided an adequate sentencing scheme. Arguably, changing the sentencing laws was not the appropriate solution to such a serious problem.

In the United States, one in four women are likely to be sexually assaulted in their lifetime. According to RAINN (Rape, Abuse & Incest National Network), the nation’s largest anti-sexual violence organization, out of 344 incidents that are reported to the police, only 6 perpetrators will be incarcerated. The bill reflects the growing awareness of the need to protect women and the need to hold their offenders accountable. The hope is to avoid such injustice from occurring and successfully treat sexual assault victims equally.

Recently Introduced Bill Provides Data Breach Insurance Tax Credit

—by Adam Koulish

H.R. 6032, 114th Cong. (2016) (as referred to H.R. Comm. on Ways and Means, Sept. 14, 2016).

Cybersecurity Framework FAQs Framework Basics, Nat’l Inst. of Standards and Tech. (last visited Sept. 25, 2016), https://www.nist.gov/cyberframework/cybersecurity-framework-faqs-framework-basics.

William H. Latham, Does Your Company’s Data Breach Insurance Coverage Measure Up?, Lexology (Jan. 21, 2016), http://www.lexology.com/library/detail.aspx?g=13ae8c51-5eb8-42f6-8f1c-7e04fa346463.

Abstract: A bill, H.R. 6032, the Data Breach Insurance Act, has recently been introduced to the House Ways and Means Committee. If passed, the bill would allow businesses to claim a tax credit for the purchase of qualified data breach insurance.

***

As data breaches or “hacks” of businesses happen at an increasing rate, the purchase of data breach insurance has become a necessity for businesses of all sizes. In an effort to lessen the burden and incentivize such a purchase, a bill was assigned to the House Committee on Ways and Means on September 14, 2016 that would amend the Internal Revenue Code of 1986 to provide a tax credit to businesses that purchase data breach insurance. H.R. 6032, the Data Breach Insurance Act, would provide a credit amount equal to 15 percent of a business’ aggregate premiums paid or incurred during the taxable year for qualified data breach insurance. Being a recently introduced bill, there is a high likelihood of it being amended before it even reaches the House floor. There is also a distinct possibility that the bill will not be passed.

For the purposes of this bill, qualified data breach insurance is “coverage provided by an insurance company for expenses or losses in connection with the theft, loss, disclosure, inaccessibility, or manipulation of data.” Typically, there are two main types of claims associated with data breach insurance coverage. There are third-party claims such as legal defense if sued by a customer whose data was exposed, and there are first-party claims such as the various IT and public relations responses needed to mitigate the damage of a breach. Ideally, a data breach insurance policy would cover both types.

A business wishing to receive this credit must have adopted the Framework for Improving Critical Infrastructure Cybersecurity (FICIC) as set forth by the National Institute of Standards and Technology or any similar standard prescribed by the Secretary of Homeland Security and the Secretary of Commerce. Simply put, the FICIC is voluntary guidance that helps businesses manage and reduce their cybersecurity risk. It also establishes common terms used in cybersecurity risk management to facilitate easier communication between entities inside and outside the business.

In claiming a credit for qualified data breach insurance, the charge for such insurance should be separately stated from other types of insurance in the contract or specified on a separate statement. Also, the charge for qualified data breach insurance should not be unreasonably large in comparison to the rest of the insurance contract. The premiums paid for this insurance will only qualify for the tax credit “if such premiums are paid or incurred in the ordinary course of the taxpayer’s trade or business.” Although since data breaches can happen to almost any business, this should be an easy requirement to satisfy. Lastly, in its current form, the bill provides for credits claimed in the five years after its passage.

Governor Cuomo Signs Executive Order Boycotting a Boycott

—by Ryan Lefkowitz

N.Y. Exec. Order No. 157 (June 5, 2016), https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO_157_new.pdf.

Abstract: New York State Governor Cuomo signed an executive order aimed to disallow transactions between New York State agencies and institutions engaged in the political protest of Israel through the use of boycotts, divestments, and sanctions.

***

On June 5th, 2016, New York State Governor Andrew Cuomo signed into action Executive Order 157 which prohibits state agencies from conducting business with companies that endorse and support economic sanctions for Israel. The executive order comes on the heels of the New York State legislature failing to push through two similar bills, Senate Bill S6378A and S6086. Executive Order 157 explicitly declares a “special historical relationship” and “commonly forged cultural bond” between New York State and Israel as well as the intention of New York State to “stand[] firmly with Israel.”

There are two main components to the executive order. The first involves the creation of a public blacklist of companies that are deemed to support “boycott, divestment, and sanctions activity targeting Israel” (also known as BDS). The executive order defines “boycott, divestment, or sanctions activity against Israel” as engaging in or promoting any activity that is intended to adversely affect Israel’s economy (including limiting commercial relations with both Israel and people in Israel) as a means of affecting political change. Because the executive order’s definition of BDS activities includes a requisite intent of affecting political change, the order relies on the Commissioner being able to reliably distinguish between companies using their buying power to boycott versus purchasing for personal preference.

The list of institutions and companies is to be compiled by the Commissioner of the Office of General Services within 180 days after its enactment. Included in the list will be institutions and companies that the Commissioner finds, through “credible information available to the public,” involved in BDS activities (either directly or through a parent or subsidiary). The order fails to define what means of obtaining information would fall under the umbrella term of “available to the public.” The list is to be publicly posted on the website of the Office of General Services and will be updated every 180 days.

Companies will be provided with written notice prior to being placed on the list, at which point they have ninety days to produce evidence showing they do not actually participate in boycott, divestment, or sanctions activity targeting Israel. If the Commissioner then makes a “good faith” determination that the institution does not engage in such activity, they will not be included on the list.

Any institution that is placed on the publicly published list can petition for removal by providing “written evidence” that the company has ceased its participation in BDS activities. There is no provision for if a company has erroneously been placed on the list and alleges that it has never engaged in BDS activity at all. Although the only requirement for being initially included on the list is “credible information” as evaluated by the Commissioner, the institution bears the burden of providing “written evidence” that they have stopped engaging in BDS activities in order to be removed from the list once published. Therefore, companies can petition to prevent their inclusion on the list by providing evidence they do not engage in BDS activities, but once they are included on the list the only way off is to show they have stopped such activity, not that they never engaged in it to begin with.

The second component of the executive order involves banning business dealings between “affected state agencies” and businesses that are deemed to be involved in or promote BDS activity. The order defines “affected state agencies” as any and all agencies and departments that the Governor has executive authority over, as well as all entities to which the Governor appoints the Chair, the Chief Executive, or the majority of Board Members (with the Port Authority of New York and New Jersey being an exception).

These entities are prohibited from financial dealings with any of the institutions on the publicly available blacklist. Entities that are currently involved with institutions that are deemed to engage in BDS activities have one year from the effective date of the order to comply. The executive order itself is effective immediately and is indefinite in length.

Executive Order 157 is the first of its kind in the country and Governor Cuomo has faced both praise and backlash for it. In light of the inability of the New York State legislature to pass similar bills, some have seen it as an unwarranted executive overreach on a divisive issue. Opponents of the bill’s contents argue that it is a politically motivated attack on the freedom of speech, exercised here through engagement in BDS activities, and is unconstitutional.

New York Court of Appeals Cites College of Law Alum

—by Adam Kuhn
Special thanks to Mary Ellen Gill for her assistance with this article.

Sources: Brooke S.B. v. Elizabeth A. C.C., No. 91, 2016 WL 4507780 (N.Y. Aug. 30, 2016); Mary Ellen Gill, Note, Third Party Visitation in New York: Why the Current Standing Statute Is Failing Our Families, 56 Syracuse L. Rev. 481 (2006)

Abstract: The New York Court of Appeals expanded the definition of “parent” to include a non-biological, non-adoptive partner. The court overruled a 1991 case that defined “parent” as a biological parent or adoptive relative.

***

The NY Court of Appeals cited 2006 College of Law alumnae Mary Ellen Gill’s Syracuse Law Review Note in Brooke S.B. v. Elizabeth A. C.C. The court held in its August 30th decision that “where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody” under NY Domestic Relations Law Section 70(a).

At issue was the vitality of Alison D. v. Virginia M., 572 N.E.2d 27 (N.Y. 1991), where the Court of Appeals defined “parent” as a biological parent or adoptive parent. This meant that a person who did not fit this relationship to a child had no standing to seek visitation. The issue affected all manners of family relationships, with implications for not only same-sex partners, but also all functional parents who took on care of a child from a different relationship than a biological parent, sibling, or grandparent. However, this issue has now been resolved, as Brooke S.B. has overruled the strict definition that was created by Alison D., and allowed non-biological, non-adoptive partners to have standing to seek visitation.

In the majority opinion, Judge Abdus-Salaam noted that “legal commentators have taken issue with Alison D. for its negative impact on children,” citing Ms. Gill’s Note, among others, for the proposition that “children suffer [trauma] as a result of separation from a primary attachment figure—such as a de facto parent—regardless of that figure’s biological or adoptive ties to the children.”

Photo of Mary Ellen Gill
Mary Ellen Gill

Ms. Gill’s Note, titled Third Party Visitation in New York: Why the Current Standing Statute Is Failing Our Families, was published in Volume 56 of the Syracuse Law Review. The Note discussed NY Domestic Relations Law Section 70(a), which provides that only a parent (or sibling or grandparent) can petition for visitation with a child. The Note suggested an amendment to the statute based on a factor test.

Ms. Gill, who currently works as a Pro Se Law Clerk to the Hon. Michael A. Telesca in the U.S. District Court for the Western District of New York, said she was excited and proud to have her Note cited by New York’s highest court.

New York Court of Appeals Takes Strict View on Preservation

—by David Katz

In re New York City Asbestos Litigation (Konstantin v. Tishman Liquidating Corp.), 2016 N.Y. LEXIS 1765; 2016 NY Slip Op 05064 (N.Y. June 28, 2016), aff’g on other grounds 121 A.D.3d 230 (N.Y. App. Div. 2014).

Abstract:

The Court of Appeals recently reminded litigators that preservation doctrine favors the cautious litigator who renews his objections whenever circumstances change.  The Court held that an objection to allowing cases to be tried jointly was unpreserved for appellate review where parties settled after the order was made and the defendant failed to renew its objection at trial.

***

On June 28, 2016, the New York Court of Appeals delivered a decision highlighting the pitfalls of preservation doctrine in New York.  “You snooze, you lose” is the basic aphorism that summarizes preservation doctrine, but the New York Court of Appeals reminded the legal community that a hole in the preservation chain can sever appellate review.  In re New York City Asbestos Litigation presented the Court with a specific iteration of an oft-faced preservation issue: when circumstances change, will an initial objection suffice for preservation purposes.

Ten plaintiffs moved to have their cases tried jointly.  The defendants opposed the joint trial, but the trial court allowed seven cases to be joined for trial.  Between the order granting a joint trial and the trial, five cases settled; thus, two cases remained to be tried.  One defendant did not renew its opposition to the joint trial.  After trial, one defendant made a post-trial motion challenging the joint trial.  The trial court denied the motion.

The defendant then appealed, arguing that the order allowing a joint trial was improperly made.  Plaintiffs, in response, argued that the issue was not preserved for appellate review because, amongst other arguments, Defendants’ opposition was not renewed after the five cases settled.

The First Department, in a three-to-two decision, found that the issue was preserved on review.  Specifically, the majority reasoned that the issue was preserved because the appeal stemmed from a final order, which brought the interlocutory order up for review.  As a result, the majority found that there was no need to renew an objection after five cases settled.  The majority, having found the issue preserved, affirmed the trial court’s decision on the merits.  The dissent also was not willing to find the issue unpreserved.  Instead, the dissent disagreed with the majority’s conclusion that the appendix on appeal was sufficient to permit appellate review.

A unanimous Court of Appeals affirmed the result, but wrote a separate opinion addressing the preservation issue.  According to the Court of Appeals, opposing the initial joint trial motion, along with a post-trial motion, was insufficient to preserve the issue for appellate review.  Instead, according to the Court of Appeals, the defendant should have renewed the motion after five plaintiffs settled in the hopes that the trial court would rebalance CPLR § 602 considerations in its favor.  As a result, the Court of Appeals refused to review the order.

The Court of Appeals reminds litigation counsel: object early, object often.  In order to argue a case effectively on appeal, litigators must remember to renew arguments, even if the litigator does not think the rationale underpinning the decision has changed.  Raising a trial court’s ire just before trial is a gamble, but the Court of Appeals reminded us that failing to preserve an issue is a sure bet against appellate review.

NY Court of Appeals Grants Summary Judgment in Joint Venture Dispute

—by Shannon Crane

Littleton Constr. Ltd. v. Huber Constr., Inc., No. 96, 2016 N.Y. LEXIS 1688 (June 14, 2016).

***

In Littleton Construction Ltd. v. Huber Construction, Inc, plaintiff commenced a proceeding against defendants Huber Construction, Inc. (“Huber”) and Littleton/Huber Joint Venture (the “Joint Venture”) seeking a portion of the management fees collected by Huber as part of the payment for projects completed by the parties in connection with a joint venture. Huber Construction, Inc. (Huber) and Littleton/Huber Joint Venture (the joint venture) seek a portion of the management fee. 2016 N.Y. Slip Op.  04657, at 1–2. Defendants moved for summary judgment, and the motion relied upon the validity and interpretation of the party relationship governing documents. Id. at 2. The trial court partially granted defendants’ motion, leaving one claim seeking recovery of a portion of management fees. The Appellate Division dismissed the complaint in its entirety. Id.

The issue before the Court of Appeals was the parties’ dispute over which agreement governed the joint venture relationship. Pursuant to the motion for summary judgment, defendants met their evidentiary burden of establishing that the Operating Agreement was not executed by Huber, and was thus unenforceable. Id. The joint venture cannot be governed by the terms of an unenforceable document. Id. Because the terms of the Operating Agreement were not enforceable, the Court determined that the Memorandum of Understanding governed the relationship. Littleton Construction Ltd. 2016 N.Y. Slip Op.  04657, at 2 (N.Y. 2016). The Memorandum of Understanding plainly provided for a 9 percent management fee to Huber, which Huber was not required to share with the plaintiff. When a contract is complete, clear and unambiguous, it must be enforced according to its plain meaning; thus, defendants were entitled to summary judgment. Id.

Pennsylvania Judge Rules Senator Cruz Is Eligible To Be President

—by Philip A. Perez

Elliott v. Cruz, 134 A.3d 51 (Pa. 2016).

Abstract:

On March 10, 2016, Senior Judge Dan Pellegrini authored an opinion for the Commonwealth Court of Pennsylvania that decided the Constitutional issue on the merits of whether Senator Ted Cruz, born in Canada, is eligible to hold the Office of President. Judge Pellegrini held that a “natural born citizen” includes “any person who is a United States citizen from birth,” and concluded that Senator Cruz is eligible to be President. The memorandum opinion is twenty-two pages and relies heavily on the research and conclusions of legal scholars published in law review articles and in a Congressional Research Service (“CRS”) report. The Pennsylvania Supreme Court affirmed the court’s opinion on March 31, 2016. A copy of the opinion is available here.

***

The Commonwealth Court’s opinion is the first to address this issue on the merits. The attorney for the petitioner stated his client intends to appeal the decision to the U.S. Supreme Court, which will give the Court the opportunity to decide this lingering constitutional question. The following analysis focuses on the lower court’s opinion on the merits.

 

Procedural History

Carmon Elliot (“petitioner”), a Pennsylvania resident and registered Republican, petitioned the Commonwealth Court of Pennsylvania to set aside Senator Ted Cruz’s (“respondent”) petition to appear on the Pennsylvania primary election ballots for the Office of President.

 

Facts

The parties agreed to stipulated facts. Among them, that respondent was born in Calgary, Alberta, Canada, that his mother was born in the State of Delaware, that his mother is and has always been a U.S. citizen, and that his mother had been physically present in the U.S. “for more than ten years of her life, including at least five years after she reached the age of fourteen,” and that Senator Cruz was a citizen from the moment of his birth.

It is worth mentioning that the opinion does not identify the requirements provided by Congress for whether a person is eligible to be a U.S. citizen by birth. However, under Section 301 of the Immigration and Nationality Act, a child born outside of the United States or its territories is considered a U.S. citizen if, inter alia, his parents are married and one is a U.S. citizen who meets the applicable time requirement (which for Senator Cruz required that his mother was “physically present” in the U.S. for ten years, five of which must have been after her fourteenth birthday). Immigration and Nationality Act, 8 U.S.C. § 1401 (2012).

 

Issues

 

Political Question Doctrine

The court first addressed the respondent’s claim that the issue is a political question for which the court does not have jurisdiction. Respondent argued that the question of whether a candidate is eligible for the Office of President is an issue for Congress or the Electoral College. The court found that the determination of whether a candidate is eligible to hold the Office of President is not textually committed to Congress or the Electoral College.

In support of its finding, the court looked to Article II, Section 1, clauses 2 and 3 and the Twelfth Amendment of the U.S. Constitution, and found that these provisions reaffirmed Congress’ role in “counting the ballots” but that neither “evidences a textually demonstrable constitutional commitment of the issue of Presidential eligibility to Congress.” The court also found that the Constitution does not give the Electoral College the power to determine whether a candidate is eligible since it only directs the members to select a candidate and transmit their votes.

The court held that the issue is justiciable, and found there was not a lack of judicially discoverable and manageable standards. The court pointed to other instances where U.S. courts decided issues regarding citizenship in other contexts, including issues regarding “natural born citizen[s].” Specifically, the court noted the Supreme Court’s finding in Hall v. Florida, that “No natural born citizen may be denaturalized,” could “never be applied” if the issue were not justiciable.

 

Meaning of “Natural Born Citizen” in Article II, Section 1, clause 4 of U.S. Constitution

 

Article II, Section 1, clause 4 of the U.S. Constitution provides that “[n]o Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President[.]”

The court noted that the term “natural born citizen” is not defined in the Constitution, and that the Supreme Court has never defined its meaning with regard to the eligibility of a presidential candidate.

The petitioner argued for Jus soli citizenship—meaning citizenship vests in a person “based on the geographic location of his or her birth, regardless of the parents’ citizenship status.” The respondent argued for Jus sanguinis citizenship—meaning citizenship vests in a person based on his ancestry. Specifically, respondent argued that a person is a natural born citizen if at least one of his parents is a United States citizen, regardless of whether the person was born in the United States or one of its territories.

The court acknowledged the importance of this question and gave examples of past presidential candidates who had their eligibility challenged. The candidates noted by the court included Charles Evan Hughes, born in the U.S. to non-citizen parents, Senator John McCain, born on a U.S. military base in the Panama Canal Zone to a U.S. citizen parent, Governor George Romney, born in Mexico to U.S. citizen parents, and President Barack Obama, born in the U.S. but his father was not a U.S. citizen.

The court then looked to articles by legal scholars and a CRS report published in 2016 for consensus and insight on the issue. First, the court cited an article by Charles Gordon published in 1968.[1] The court provides an excerpt of Gordon’s conclusion from the article: (1) “[N]atural-born” should be considered in light of the English usage at the time of the founding, and English statutes “accorded full status as natural-born subjects to persons born abroad to British subjects;” (2) The Framer’s intent was likely to exclude American citizens who acquired citizenship through naturalization; and (3) The Fourteenth Amendment and the Naturalization Act of 1790 did not limit or define the presidential qualification clause, nor bar the understanding that the clause includes children born abroad to American parents.

Second, the Court provides an excerpt from a report by the CRS that analyzes the historical and legal background of the issue.[2] The report concludes that the term “natural born” likely means a person who is entitled to U.S. citizenship by birth:

The weight of legal and historical authority indicates that the term “natural born” citizen would mean a person who is entitled to U.S. citizenship “by birth” or “at birth,” either by being born “in” the United States and under its jurisdiction, even those born to alien parents; by being born abroad to U.S. citizen-parents; or by being born in other situations meeting legal requirements for U.S. citizenship “at birth.” Such term, however, would not include a person who was not a U.S. citizen by birth or at birth, and who was thus born an “alien” required to go through the legal process of “naturalization” to become a U.S. citizen.

Third, the court provides an excerpt from an article by Paul Clement and Neal Katyal published in 2015.[3] The authors conclude that “a U.S. citizen at birth is a natural born citizen and constitutionally eligible to serve as President.” The authors found that the term meant someone who is a U.S. citizen at birth “with no need to go through a naturalization proceeding at a some later time.”

Clement and Katyal note that Congress has always taken the position that a child born abroad to a U.S. citizen parent generally becomes a U.S. citizen, subject to residency requirements on the parents. The authors note that British laws in place for the American colonies explicitly used the term “natural born” to include children born outside of the British Empire to British subjects, and that the Framers would have been familiar with the statutes and the way the term “natural born” was used. The authors then explain how the term has been used and defined in the Immigration and Naturalization Acts passed throughout U.S. history.

Clement and Katyal point to two sources that suggest the purpose of the “natural born” provision was to ensure that a “foreigner” could not be elected to the position of Commander in Chief.[4] The authors recognize Senator Cruz’s birthplace and conclude that “there is no question that Senator Cruz has been a citizen from birth and is thus a ‘natural born Citizen’ within the meaning of the Constitution.”

At the end of the opinion, the court acknowledged that there is not a consensus on the issue, and that some legal scholars contend that a presidential candidate must be born in the United States. However, the court found that the Jus soli position is a minority view and held “consistent with the common law precedent and statutory history, that a ‘natural born citizen’ includes any person who is a United States citizen from birth.”

The court found that Senator Cruz is eligible to run for President because he was a U.S. citizen from birth, and it denied the petition in this case.

 

[1]              Charles Gordon, Who Can Be President of the United States: the Unresolved Enigma, 28 Md. L. Rev. 1 (1968).

 

[2]              See Jack Maskell, Cong. Research Serv., R42097, Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement (2011).

 

[3]              Paul Clement & Neal Katyal, On the Meaning of “Natural Born Citizen,” 128 Harv. L. Rev. 161 (2015).

 

[4]              Letter from John Jay to George Washington (July 25, 1787), in 3 The Records of the Federal Convention of 1787; 3 Joseph Story, Commentaries on the Constitution of the United States § 1473, at 333 (1833).