Stacking the Charges and the Criminalization of Homelessness

As we move abruptly out of a semester brimming with civil case law, legal nomenclature, motions, claims and controversies, we will now have the opportunity to dip our toe ever so gingerly into the calm, grotto black water that is the thrilling and provocative world of criminal law.

            Looking at this topic through a local lens, there is of course big, felony cases that draw consistent attention from the public and the media, but I want to look a little closer at the far more common issue of petty crimes, or misdemeanors. We all know, and maybe are responsible ourselves for one or more infractions in our lifetimes – these are the speeding tickets, littering citations, fishing without a license or jaywalking. Misdemeanors are the in-between. They are the  status offences such as shoplifting, drugs possession, alcohol related offences, the non-violent disputes, some of the violent disputes, etc. There are three classes of misdemeanor crime ranging from most severe – class A, to just above infraction – class C [1], and Salt Lake City has a much talked about chronic homeless population that are racking up these charges daily, but seeing little in the way of judicial intervention.

            I spent nearly six years working directly with this populations, specifically the chronically homeless individuals with a substance or alcohol use disorder. On any given day in Salt Lake, there are estimated to be 306 individuals who are experiencing chronic homelessness [2], that is to say that they have been homeless and living continuously as such for at least one year or on at least 4 separate occasions in the last 3 years, where each homeless occasion was at least 15 days [3]. The clients in the program for which I worked were not shy about sharing their criminal histories and their wadded up ball of paper citations that they kept deep and forgotten in their pockets that grew bigger each time they would come through our doors. The Salt Lake County jail is often at capacity and will not hold many offenders for extended time that are brought in on these misdemeanor charges, but in some recent reports, police actions against this population are rising. Since the launch of Operation Rio Grande 3 years ago, which was intended to offer treatment options to addicts on the street as opposed to jail, the city has reported an overall reduction in “lawlessness”, but there are still reportedly 13 arrests for every treatment program placement, and these thousands of individuals being arrested each year since Rio Grande are being detained, jailed and released with the added burden of warrants, fines and more charges to add to their criminal record [4]. These people should have a way to understand and be held appropriately accountable for their criminal charges, hopefully in a way that can prove effective in them finding a way out of homelessness, addiction and often times a severe mental health care deficit, but the constant arrests and fines do not just go away by themselves and without the proper resources available, can be a major detriment to rebuilding a life [5].

There is one specialty court in Salt Lake City that has been working on helping these folks traverse their legal obstacles since 2004. Presided over by The Honorable John Baxter, the Salt Lake City Homeless Court provides a judicial intervention that can overlook the more daunting formalities associated with the traditional court system. This court is typically held in a more comfortable environment for the population such as shelters or resource centers and caters to their overall well-being and empowerment, with the hope that doing so will inspire compliance and follow through with whatever legal sanctions they may be facing [6]. 

I remember one gentleman client that I got to know quite well over the course of my tenure with this organization offered me a list of his current, as yet to be adjudicated charges, and it was 3 1/2 pages long. That worked out to literally be hundreds of items, and yet he was constantly on the street, drinking and carrying on with his ways. Sadly, he passed away in the winter one year without having settled any of his legal matters, not that he minded, but I remember very clearly being flummoxed by the prospect of a "rap sheet" that long and no fear of consequence. What was the purpose then? It's a good system, our legal system, but one that must adapt to society just as we do, and hopefully we can find and maintain our sense of justice as it applies not just to the rule of law, but also to the nuance and diversity of humanity. 

My questions to you are:

1.     Do you see the need for any kind of reform in how we issue criminal charges to certain groups such as the homeless and the overall efficacy thereof?

2.     Do you see a benefit of the formation of specialty courts for specific populations, or do you think that the traditional court system should be sufficient?

           

[1]  file:///C:/Users/thomp/Downloads/CIU-2018-1.pdf

[2] https://www.usich.gov/homelessness-statistics/ut/

[3] https://nlihc.org/resource/hud-publishes-final-rule-definition-chronic-homelessness

[4] https://sltrib.com/news/politics/2018/10/16/aclu-says-operation-rio/

[5] https://sltrip.com/news/politics/2019/11/04/new-aclu-report-examines/

[6] https://search.proquest.com/openview/5ccc307d6c09ef860cf50437b02c9dfe/1?pq-origsite=gscholar&cbl=18750&diss=y

Who’s Liable for the Libel?

Introduction

It all began in the racially charged aftermath of the 2016 general election when a group of three African American teenage students from Oberlin college, one male and two females, walked into the Gibson bakery with the intent of illegally obtaining wine either through theft or use of a fake Id. The store owner David and his son Allyn Gibson realized what was happening and attempted to detain the students. A fight ensued, leading to the arrest of the three students. During the arrest, the students insisted the incident was racially motivated. Word traveled quickly back to the Oberlin college campus. The next day students organized a protest in front of Gibson Bakery. Oberlin college dismissed class to allow students to attend the protest. Protesters called for a boycott of the bakery asserting the bakery had a long history of racism. They held signs labeling the Gibson’s as racists and white supremacists and passed out flyers printed at the university on university stationery with the same message. The day happened to be cold, so the Oberlin administration purchased gloves and ordered pizza for the protestors. The student senate released a written resolution stating, “Gibson’s has a history of racial profiling and discriminatory treatment of students and residents alike,” which was posted on campus for one year. (3)

Plea bargain.

The defendants were charged as follows, Jonathan Aladin, was initially charged with robbery, a second-degree felony. Cecelia Whettson and Endia j. Lawrence were charged with first-degree misdemeanor assault. Jonathan’s attorney filed a motion to dismiss the felony charge with a proposed plea to a new 2nd-degree misdemeanor charge of attempted theft, With the recommendation Jonathan be placed on a diversion program and upon successful completion of diversion the case be dismissed. (3) Even though all the parties agreed with the plea deal, the judge threw the plea deal out on account that it would be damaging to Gibson Bakery. (3) The plea was reworked to as to Keep 2nd degree attempted theft and added aggravated trespass, and: Underage purchase and consumption. (4) Jonathan and Endia took the guilty plea. (4,5) Cecelia’s record is sealed. The guilty plea also included a recant of the acquisition of racism.

Involvement of Oberlin university

Oberlin college, a private Liberal arts college that has a population of 3000 students and Faculty located 15 miles off the shores of Lake Erie. (1) During the protest, Oberlin college facilitated the protest by providing logistical support for the students. Oberlin college suspended classes and encouraged students to attend the protest. Oberlin college offered free food and drinks to the protesting students. Faculty of Oberlin college participated in the protest at a personal capacity except for a faculty member Meredith Raimondo, who was required to be at student activities per the student handbook but didn’t participate in the protest. Oberlin College also instituted an economic boycott of Gibson bakery but later reinstated the business. (3)

Impact on Gibson bakery.

Gibson Bakery was starting to feel the effects of the protest. Gibson bakery lost a 100-year business relationship with Oberlin college; it lost traffic through its store and consequently lost revenue. The Gibson’s family reputation was now tarnished (2), And the Gibson’s Bakery employees reported harassment by the general public.

Lawsuit
Gibson Bakery felt like they had no option left but to file a lawsuit against Oberlin College. The Gibson’s felt in a small city like Oberlin. Having the largest business and employer against you is more than enough to seal your fate. (2) Gibson listed eight complaints against Oberlin college, Libel, Slander, Tortious interference with business relationships, Tortious interference with contracts, Deceptive Trade practices, Intention Infliction of emotional distress, Negligent hiring, retention & supervision and Trespass.

Motion for Summary judgment

After discovery, Oberlin college filed a motion for summary judgment seeking a judgment in their favor on all the claims. The judge dismissed Oberlin’s college motion for summary judgment for five of the counts which included Libel, Tortious interference with business relationship, Tortious interface with contracts, Intentional Infliction of emotional distress, and Trespass. The judge granted summary judgment in the defends favor for three counts, Slander, Deceptive trade practices and Negligent hiring, retention, supervision (4)

Trial and Jury award.

The case went to trial and was ultimately decided by a jury. The jury found Oberlin college acted with both Libel and Malice, interfered with a 100-year business relationship, failed to act as the adult in the room, enable a culture of shoplifting, and engaged in bullying tactics or attempted to stifle opinions of critics. (7) As a result, the jury award the Gibson’s Bakery $44 million verdict which included $33.2 million in punitive damages. (1) This award was reduced by the presiding judge to $25 million. (8) The judge ruled David Gibson should receive $14.5 million, Allyn should receive $6.5 million, and the bakery should receive $4.5 million.

Questions

1.      Do you think the judge got the summary judgment right? What would you do differently?

2.      Considering our most recent readings on plea bargains, do you think by taking the plea deal the defendants agreed the action taken against them by the Gibson’s and the Police was appropriate?

3.      Who should be liable when students of a higher learning institution engage in speech that may be considered Libel? Should the Gibson’s sue the students or school? What does the verdict mean for the future of free speech in higher learning institutions?

1. https://www.cbsnews.com/news/oberlin-college-president-defamation-lawsuit-verdict-gibsons-bakery-44-million-libel/https://www.usatoday.com/story/opinion/voices/2019/06/21/oberlin-college-gibson-bakery-lawsuit-column/1523525001/
2. http://cdn.cnn.com/cnn/2019/images/06/09/gibson.bakery.v.oberlin.college.lawsuit.pdf
3. https://legalinsurrection.com/wp-content/uploads/2019/04/Gibsons-Bakery-v.-Oberlin-College-Decision-Denying-Summary-Judgment.pdf
4. http://cp.onlinedockets.com/loraincp/case_dockets/Docket.aspx?CaseID=375061
5. http://cp.onlinedockets.com/loraincp/case_dockets/Docket.aspx?CaseID=375066
6. https://www.lawlion.com/wp-content/uploads/2019/08/UPDATED-FAQs-re-Gibsons-Bakery-v.-Oberlin-College.pdf
7. https://apnews.com/f4bfb5db0289435ba34f636f74566524

Immigration Court Conundrum: Judicial System or Legislative System?

The Immigration Court Conundrum

The current  neglected state of the immigration court system is nothing new. While we are barraged daily by reports of the Trump administration and the doings of his US Attorney General, we must look beyond the current reporting to understand why the immigration court is in a state of legal and moral collapse. You will find this is a very old problem, which begs the question of whether the immigration court (Article I court) could become more fair and efficient as an independent Article I entity as a branch of the judiciary court (Article III court) rather under the control of the Department of Justice and the US Attorney General.

In 1952, the Immigration and Nationality Act (INA) was enacted by Congress. The INA tasked the attorney general of the US, who is statutorily responsible, to craft a functioning immigration court system. Immigration court is under the management of the US Attorney General and its judges are employees of the Department of Justice.  (1)

Immigration judges are appointed by the US Attorney General.  Further, the judges authority does not derive from Article III of the US Constitution, which established the judicial branch. Instead, immigration judges are administrative law judges (ALJ's) who must perform their duties as set forth by the US Attorney General.

According to the Southern Poverty Law Center (SPLC), no one in this unitary system holds the judges accountable. The normal check in an effective judicial system, the appeals process in immigration court fails to ensure uniformity and accountability. (2)  Additionally, there has long existed a possibility for politicized influence by the Attorney General, among other issues.

The Executive Office for Immigration Review (EIOR) was created by the Attorney General in 1983, after Congressional hearings that produced claims of "gross abuse of authority," obstruction and "crippling" problems. (3)  Its development was a reaction to widespread critiques that the pre-existing system was under-resourced, overburdened, violative of procedural rights, and embedded in an enforcement-driven context. However, despite the broad agreement on the need for systemic reform, Congress did not pass legislation to improve the immigration court structure.

Recently, the American Bar Association on Immigration, predicted the collapse of the immigration court system, because no reform initiatives have addressed the underlying structural problem caused by the attorney general's control. (4)   If Congress were to remove the immigration judges from the employment of Justice Department and the unitary control of the Attorney General, it would ensure that ALJ's would be given the judicial independence they need to be fair, impartial arbiters. The change would ensure a fair and even-handed appeals process as well. 

Judicial independence is the hallmark of modern adjudication systems that adhere to the rule of law. The removal would enable the immigration court to become part of the judicial branch of government as an independent Article I court, with an independent adjudication system to be created. Further, would include merits-based appointments, tenure guarantees, and a method of internal accountability and a more fair appellate oversight. (5)

Question

Do you agree that Congress should remove the immigration courts from the executive branch and the control of the US Attorney General? 

Please explain why.

Sources

1. www.splcenter.org/20190625/attorney-generals-judges-how-us-immigration.courts-became-deportation-tool)

2. www.splcenter.org

3. www.justice.gov/opa/pr/eior-announces-largest-ever-immigration-judge-investiture

4. www.americanbar.org/news/aba-news-archi...019/03/aba-commission-to-recommend-immigration-reform/

5. www.splcenter.org

 *An Article I court is created by congressional statute, as opposed to the judiciary, established as a separate branch of government under Article III of the Constitution.

“To Tell or Not to Tell” – Hollywood and Hogg

Stephen Hogg, a defense attorney in California, found himself right in the middle of a would-be movie scene turned actual life events. He received a phone call from a one-time client, Jesse Hollywood, asking for advice and potential consequences for abducting a minor due to drug debts. After the call, Hollywood and friends killed the young man. Hollywood is currently on the lamb from the law; however, the judge has ruled that Hogg could be compelled to testify against co-conspirators in the crime. In making his ruling, Superior Court Judge Gordon opened the door for prosecutors to seek Hogg’s testimony in trials of four other defendants. (1)

In California, CA Ev Code § 954 (2017) states: 

Subject to Section 912 and except as otherwise provided in this article, the client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer if the privilege is claimed by:

(a) The holder of the privilege;

(b) A person who is authorized to claim the privilege by the holder of the privilege; or

(c) The person who was the lawyer at the time of the confidential communication, but such person may not claim the privilege if there is no holder of the privilege in existence or if he is otherwise instructed by a person authorized to permit disclosure. (2)

Hollywood called Hogg during the commission of a crime but not the final murder. Hogg also made contact with Hollywood’s family to express concern and encourage them to find their son as he may be in serious trouble. Some allege the accused, Hollywood, waived his rights by telling a friend about his client-attorney conversation the night of the crime. Others feel Hogg may have breached his privilege by contacting Hollywood's family. There are certain ways a breach of attorney-client privileges can be achieved. This privilege protects most communications between clients and their counsel, but the crime-fraud exception states a client’s communication to his/her attorney isn’t privileged if it is with intention to commit a crime. (3)

There is no privilege under this article (dealing with attorney client privilege) if the services of the lawyer were sought or obtained to enable or aid to commit or plan to commit a crime or fraud – CA Evidence Code section 956 (4). In this case, the attorney was unaware of the crime and the crime had not been committed at the time of the conversation. California has some of the strictest laws in the country protecting attorney-client privilege. Attorney's must walk the tight rope between morality and ethical professionalism. 

Does this substantiate the Crime-Fraud Exception? Did the judge get it right?

Is there an ethical versus morality dilemma for attorneys?

If you were Hogg, what would you have done?

1 1.)    https://www.latimes.com/archives/la-xpm-2001-may-10-me-61643-story.html

2 2.)    https://law.onecle.com/california/evidence/954.html

3 3.)    https://www.nolo.com/legal-encyclopedia/the-crime-fraud-exception-the-attorney-client-privilege.html

4 4.)    https://www.upcounsel.com/legal-def-crime-fraud-exception

“A Laundry List of Discovery:” Technology in a Murder Trial

Litigation can be lengthy and when there is a laundry list of discovery that involves social media and meta-data it can either help or hurt a litigant. 2019 numbers reflect 4.99 billion active social media accounts. The average person has over seven social media accounts and every 6.4 seconds there is a new social media user. Facebook alone has 2,375 billion users [1]. Messaging, texting and joining social apps is the new norm of communication, but it has its downfalls. Social media is a game changer in the courtroom. “The information on these web sites could assist a lawyer in practically any type of litigation-whether in terms of developing basic facts or preparing material for impeachment” [2]. This post discusses a murder case and how discovery that involves technology, primarily social media, can impact the litigation process for trial.

The State of Utah vs. Ayoola Adisa Ajayi

31-year-old Ayoola Adisa Ajayi is facing felony charges of aggravated murder, aggravated kidnapping, desecration of a human body and obstruction of justice. He is scheduled for a preliminary hearing in March of 2020 where a judge will decide if there is enough evidence for the case to go to trial for the murder of 23-year-old Mackenzie Lueck.

Background: In June 2019, Lueck, a University of Utah student went missing. Police say Ayoola Ajayi met Lueck at a park in North Salt Lake in the early morning hours and took her to his home.  The charges state, her last text to him (Ajayi) was at 2:58 a.m., one minute before her Lyft driver dropped her off at Hatch Park in North Salt Lake.  Charges also state, Lueck's cellphone was powered off at 2:59 a.m. and never came back on. Forensic evidence collected by police placed Ajayi's cellphone back at his Salt Lake City residence at 3:07 a.m., about the time it would take to drive to his house from the park [6].

Lueck’s disappearance made national news, and two weeks later investigators found her charred remains in a shallow grave in Logan Canyon. Prosecutors say Ajayi, the defendant, set fire to her body. An autopsy revealed Lueck died from blunt force trauma to the left side of her skull. At this point, it has still not been released how Ajayi and Lueck met [3]. However, both had online profiles to various social media accounts including Seeking Arrangements and Tinder, online dating applications. Days after her disappearance a mattress was also listed for sale on the App Let Go.

Discovery: In a response to request for discovery, the list is eight pages long [4] and includes cell phone records, bank records, and 28 search warrants. Some of the search warrants are for social media apps such as Lyft, Tinder, Seeking Arrangements, Air B&B, Snapchat, Let Go, Comcast and Google. The response also includes surveillance video from six different locations such as Smiths Marketplace and Salt Lake International Airport, more than 3,000 photos, interviews with 11 different people, and four witness names are listed in the document (although redacted for privacy)[4] [5].

Discovery is the principal fact-gathering method in the formal litigation process [7]. While our class is primarily focused on civil litigation, we have learned a lot about discovery and ESI. In our reading assignments you will begin to learn more about criminal cases. You will learn a defendant who has been charged by information has no right to a grand jury review, while a defendant who has been charged by a grand jury has no right to a preliminary hearing [8]. As discussed above, Ayoola Ajayi, is scheduled for a preliminary hearing in March of 2020. A preliminary hearing is described as a mini-trial in which a judge or magistrate determines whether there is probable cause to believe that a defendant committed a crime and thus should be bound over for trial [8]. In this case, Ajayi may choose to waive his preliminary hearing or the state will present evidence. Based on our reading, the pretrial and trial process in criminal and civil cases are identical. However, discovery in criminal cases are often more limited than required in the civil system [9]. 

Questions:

1. Do you think the judge will limit evidence in this case and require pretrial discovery conferences to determine the admissibility of evidence in this case?

2. Do you think, in cases like this, discovery proves most beneficial, but at the same time can re-victimize even if the person is dead? And is there a way around it or does the outcome of conviction far outweigh the issue of victimization?

1. https://www.brandwatch.com/blog/amazing-social-media-statistics-and-facts/

2. https://www.gentrylocke.com/files/JCJ-JJO_JournCivLit_Social-Media-Discov.pdf

3. https://www.ksl.com/article/46651975/hearing-set-for-man-accused-of-killing-utah-student-mackenzie-lueck

4. https://fox13now.com/2019/07/30/new-documents-outline-evidence-in-mackenzie-lueck-murder-investigation/

5. https://localtvkstu.files.wordpress.com/2019/07/initial-discovery-documents-ayoola-ajayi.pdf (this link no longer works, I will email the document to everybody)

6. https://www.ksl.com/article/46591496/suspect-assaulted-utah-student-mackenzie-lueck-then-burned-her-body-charges-say

7. Thomas A. Mauet & David Marcus, Pretrial 195 (9^th ed. 2015)

8. Wayne McCormack & Louisa M.A. Heiny Judicial Process 15 (2017)

9. Wayne McCormack & Louisa M.A. Heiny Judicial Process 16 (2017)

Comic Con or Comical Conflict?

Introduction:

How important is our name to us? Do we view it as just a sound people make in order to get our attention, or is it really important to us? A celebrity may change their name when it’s already taken by another celebrity or if they want to sound more professional in the artistic world. There are shortened versions of long names and elongated versions of short names. But if someone started using a nickname that you gave yourself, would you sue them for it? To quote Professor Dryer, spending time on that would sound like “a bunch of piddlyshit,” wouldn’t it? Who would spend time debating such a thing? Well, one corporation, in particular.

Background:

At the July 2014 San Diego Comic Convention (“comic con,” for short), an Audi R8 was seen driving around the convention skinned with the name “Salt Lake Comic Con” on the hood of the car, promoting the yearly, Utah-based convention that had started in the Fall of the previous year. San Diego Comic Con, not wanting their trademark to be used without their consent, subsequently filed a lawsuit against the founders of Salt Lake Comic Con.

San Diego Comic Convention (SDCC) is a non-profit organization that brings together a large group of people who share an “appreciation for comics and related popular art forms, including participation in and support of public presentations, conventions, exhibits, museums and other public outreach activities which celebrate the historic and ongoing contribution of comics to art and culture.”1

Salt Lake Comic Convention (SLCC, currently known as “FanX”) is “Dan Farr Productions’ annual event, and is now the most attended convention in the state of Utah and the largest comic convention in North America per capita. . . [and] is dedicated to producing spectacular celebrations of popular culture that lead the market in providing exceptional and rewarding experiences for our consumers, fans, celebrity guests, vendors and partners.”2

The Case:

In August of 2014, SDCC filed a lawsuit against Daniel Farr and Bryan Bradenburg, co-founders of Dan Farr Productions (DFP) and SLCC/FanX, on two complaints:

1. Federal Trademark Infringement (under 15 U.S.C. s 1114); and

2. False Designation of Origin (under 15 U.S.C. s 1125(a))3

Since 1970, SDCC has held its Comic Convention every year in San Diego, California. DFP, however, has only held its Comic Convention every year since 2013 in Salt Lake City, Utah. The SDCC trademarks at issue in this case are:

1. Comic-Con;

2. Comic-Con International;

3. Anaheim Comic-Con; and

4. [symbol]5

SDCC proposed that the court in San Diego, California had personal jurisdiction over DFP. The jurisdiction was classified as personal due to “information and belief” that DFP “advertise[d] and transact[ed] business throughout the United States, including in the State of California;” that DFP has “purposely availed [itself] of doing business . . . by, among other things, advertising and promoting the convention in this district;” and that DFP “[has] also engaged in continuous acts of trademark infringement . . ., and [has] caused injury to SDCC in this district as a result of such conduct.”3

The question of this case is whether or not DFP infringed SDCC’s trademarks. The actual jury trial lasted eight days and on December 8, 2017, the jury found that DFP had infringed SDCC’s trademarks through the use of advertisement. As to false designation of origin, the jury ruled in favor of DFP. Although SDCC owns the trademark, the judge denied SDCC’s request to bar DFP from using the term “Comic Convention,” saying such an order would “prohibit legal conduct.” 4

As a result of the jury ruling, the judge ordered DFP to pay $20,000 for infringing the federally registered marks of SDCC. 4 In a separate order, the judge granted a motion from SDCC and ordered DFP to pay SDCC $4 million in attorney fees and costs.5 The judge granted the motion for attorneys' fees based on the reasoning found under Section 35(a) of the Lanham Act, 15 U.S.C. s 1117(a) regarding “exceptional cases.”6

The nonexclusive factors in determining if a case is “exceptional” include: “frivolousness, motivation, objective unreasonableness (both in the factual and legal components of the case) and the need in particular circumstances to advance considerations of compensation and deterrence. . . . [Examining] the totality of the circumstances, the Court finds that this case is not a dime a dozen. Instead, it is a trademark infringement lawsuit that stands out from others based on the unreasonable manner it was litigated and thus an award of attorneys' fees and costs to SDCC is justified.”5

Questions:

1. Do you agree with the court’s decision that this case qualified as “exceptional” and that the award for attorneys’ fees and costs to SDCC was “justified”?

2. Who is your favorite superhero or comic book character?



Cited Sources
1. San Diego Comic Con International

2. FanX Salt Lake Comic Con

3. Original Complaint (2014) 2014 WL 3953967

4. Comic-Con's trademark enforced, infringement defenses ruled out (2018)
2018 IPDBRF 0084

5. Order Granting Plaintiff’s Motion for Attorneys' Fees (2018)
2018 WL 4078639

6. Recovery for Violation of Rights 15 U.S.C. s 1117(a)


Other Sources
1. WAR OF THE WORDS: San Diego Comic-Con officially files lawsuit against Salt Lake Comic Con (2014)
https://www.heraldextra.com/entertainment/special/comic-con/san-diego-comic-con-officially-files-lawsuit-against-salt-lake/article_332b66d3-0f69-5a0f-908c-dae3ce94dddd.html

2. Salt Lake Comic Con infringed on San Diego Comic-Con’s name, should pay $20K, jury says (2017) https://www.sltrib.com/news/2017/12/09/jury-sides-with-san-diego-in-comic-con-trademark-infringement-dispute/

3. FanX ordered to pay San Diego Comic-Con's $4 million legal fees for trademark lawsuit (2018) https://www.deseret.com/2018/8/24/20651976/fanx-ordered-to-pay-san-diego-comic-con-s-4-million-legal-fees-for-trademark-lawsuit

Minnesota Voter Alliance v. Mansky

In November 2010, Andrew Cilek, the executive director of the Minnesota Voters Alliance, walked into his local polling venue to cast his vote for that election year. Upon entry, he was quickly turned away before he could vote because of the shirt he decided to wear that day. Mr. Cilek was wearing a “Don’t Tread On Me” t-shirt and a pin that said “Please I.D. Me” (1). Mr. Cilek was told he needed to cover up his shirt before he could come in to vote. He returned later with his lawyer and was able to vote, but not without being cited with a $300.00 fine. Why did it matter what shirt Mr. Cilek was wearing? Because Minnesota Statute §211B.II states that a person can not wear anything political at or around the polling place on primary or election days (2). Mr. Cilek filed a lawsuit against the state claiming that this was a violation of the First Amendment right of Free Speech, which was ultimately, the court dismissed the case, which was upheld by the court of appeals.

This case went up to the United States Supreme Court where it was argued for an hour by Mr. J. David Breemer for the petitioners and Mr. Daniel Rogan for the respondents (3). Mr. Breemer argued that the statutes is overbroad and unconstitutional (3). Mr. Breemer provides examples such shirts saying Chamber of Commerce and Moveon.org are prohibited from the polling venues. Other examples of  prohibited attire that was addressed was a shirt with a rainbow flag or a shirt that says “Parkland Strong” (3). Mr. Rogan stated that the shirt would not be prohibited, unless there was a gay rights or a gun control issue on the ballot. Mr. Rogan argued that the statute refers to “political” as anything that has a candidates name, any reference to a specific party, an issue that may be on the ballot for that election, and so forth. It was also revealed that the the election judge at each polling venue is to be the final decision on what is considered “political” within the venue. This gives a wide range of possibilities of what can be worn depending on who the election judge is. Also, every issue addressed on the ballot would have to be known by the election judge.

The Supreme Court ruled in favor of the petitioner and concluded that the statute is overbroad and the term ‘political’ is not clearly defined making the statute unreasonable.

For easy reference, Minnesota statute 211.B.11 states:

            “A person may not display campaign material, post signs, ask, solicit, or in any manner try to induce or persuade a voter within a polling place or within 100 feet of the building in which a polling place is situated, or anywhere on the public property on which a polling place is situated, on primary or Election Day to vote for or refrain from voting for a candidate or ballot question. A person may not provide political badges, political buttons, or other political insignia to be worn at or about the polling place on the day of a primary or election. A political badge, politician buttons, or other political insignia may not be worn at or about the polling place on primary or election day. This section applies to areas established by the county auditor or municipal clerk for absentee voting as provided in Chapter 203B.

            Nothing in this subdivision prohibits the distribution or “I VOTED” stickers as provided in section 204B.49.” 

In reading this statute do you feel the Supreme Court ruled correctly? Is this statute unconstitutional and violate free speech? Why do you feel the way you do? 

(1) Minnesota Voters Alliance v. Mansky, Oyez, (Oct 23, 2019) http://www.oyez.org/cases/2017/16-1434

(2) Minnesota Legislature, 211B.11 Election Day Prohibitions, (Oct. 24, 2019)  https://www.revisor.mn.gov/statutes/cite/211b.11
(3) Minnesota Voter Alliance, Et Al., Petitioners, v. Joe Mansky, Et Al., Respondents, Oral Arguemnt-February 28, 2018, (Oct 24, 2019) https://apps.oyez.org/player/#/roberts8/oral_argument_audio/24561

(4) Minnesota Voter Alliance v. Mansky, Opinion Announcement – June 14, 2018 (Oct 24, 2019) https://apps.oyez.org/player/#/roberts8/opinion_announcement_audio/24698