Los Angeles Lawyer December 2015

THE MAGAZINE OF THE LOS ANGELES COUNTY BAR ASSOCIATION

DECEMBER 2015 / $4

EARN MCLE CREDIT PLUS For-Proﬁt Evaluating Schools Obergefell page 23 page 28

Summaries of Evidence page 12 Robocall Compliance page 15 Legal Services Funding page 36 Revising Conﬁdentiality

Los Angeles lawyer Cynthia Pasternak examines the competing public policy goals that may affect mediation conﬁdentiality page 18

FEATURES 18 Revising Confidentiality BY CYNTHIA PASTERNAK Amis v. Greenberg Traurig highlights the conflict between maintaining mediation confidentiality and preventing attorney malpractice

23 Trouble at School BY BRENDA K. RADMACHER AND JOEL C. GERSON To avoid liability, career colleges should ensure compliance with state and federal regulations and provide students with accurate job placement statistics Plus: Earn MCLE credit. MCLE Test No. 252 appears on page 25.

28 The Three Voices of Obergefell BY TOBIAS BARRINGTON WOLFF In Obergefell v. Hodges, the U.S. Supreme Court significantly expanded the controversial doctrine of substantive due process

Los Angeles Lawyer DEPARTME NTS the magazine of the Los Angeles County 8 On Direct 15 Practice Tips Bar Association Jennifer C. Pizer New FCC rules affect companies that use December 2015 INTERVIEW BY DEBORAH KELLY automated dialing systems BY TANYA L. FORSHEIT AND DANIEL M. GOLDBERG Volume 38, No. 9 10 Barristers Tips Optimizing the initial arbitration 36 Closing Argument COVER PHOTOGRAPH: TOM KELLER management conference It's time for a blockbuster in legal BY RADHA KULKARNI services funding BY DAVID PASTERNAK 12 Practice Tips Guidance on the use of summaries of evidence at trial BY JONATHAN E. HOWELL LOS ANGELES LAWYER (ISSN 0162-2900) is published monthly, except for a combined issue in July/August, by the Los Angeles County Bar Association, 1055 West 7th Street, Suite 2700, Los Angeles, CA 90017 (213) 896-6503. Periodicals postage paid at Los Angeles, CA and additional mailing offices. Annual subscription price of $14 included in the Association membership dues. Nonmember subscriptions: $28 annually; single copy price: $4 plus handling. Address changes must be submitted six weeks in advance of next issue date. POSTMASTER: Address Service Requested. Send address changes to Los Angeles Lawyer, P. O. Box 55020, Los Angeles CA 90055. 12.15 VISIT US ON THE INTERNET AT WWW.LACBA.ORG/LALAWYER E-MAIL CAN BE SENT TO [email protected]

EDITORIAL BOARD Chair DONNA FORD Articles Coordinator TED M. HANDEL Assistant Articles Coordinator JOHN C. KEITH Secretary SANDRA MENDELL Immediate Past Chair MARY E. KELLY

JERROLD ABELES (PAST CHAIR) K. LUCY ATWOOD EMPLOYMENT LAW REFERRALS ETHEL W. BENNETT SCOTT BOYER Paying Highest Referral Fees (Per State Bar Rules) EMILY BRAILEY CHAD C. COOMBS (PAST CHAIR) HON. MICHELLE WILLIAMS COURT SAMIRE K. ELHOUTY Honored to receive regular employment referrals from GORDON K. ENG over 100 of Californiaʼs fi nest attorneys STUART R. FRAENKEL MICHAEL A. GEIBELSON (PAST CHAIR) Stephen Danz 877.789.9707 CHRISTINE D. GILLE & Associates SHARON GLANCZ Main offi ce located in Los Angeles and nearby offi ces in Pasadena, STEVEN HECHT (PAST CHAIR) Orange County, Inland Empire & San Diego DENNIS HERNANDEZ Stephen Danz, Senior Partner 11661 San Vicente Boulevard, Suite 500, Los Angeles, CA 90049 ERIC KINGSLEY KATHERINE KINSEY DANIELLE LACKEY JENNIFER W. LELAND PAUL S. MARKS (PAST CHAIR) COMM’R ELIZABETH MUNISOGLU PAUL OBICO TYNA ORREN CARMELA PAGAY DENNIS L. PEREZ (PAST CHAIR) GREGG A. RAPOPORT GARY RASKIN (PAST CHAIR) JACQUELINE M. REAL-SALAS (PAST CHAIR) STEVEN SCHWARTZ HEATHER STERN MATTHEW D. TAGGART DAMON THAYER COZETTE VERGARI THOMAS H. VIDAL

STAFF Editor ERIC HOWARD Art Director LES SECHLER Director of Design and Production PATRICE HUGHES Advertising Director LINDA BEKAS Administrative Coordinator MATTY JALLOW BABY

Copyright © 2015 by the Los Angeles County Bar Association. All rights reserved. Reproduction in whole or in part without permission is prohibited. Printed by R. R. Donnelley, Liberty, MO. Member Business Publications Audit of Circulation (BPA). The opinions and positions stated in signed material are those of the authors and not by the fact of publication necessarily those of the Association or its members. All manuscripts are carefully considered by the Editorial Board. Letters to the editor are subject to editing.

4 Los Angeles Lawyer December 2015 LOS ANGELES LAWYER IS THE OFFICIAL PUBLICATION OF THE LOS ANGELES COUNTY BAR ASSOCIATION 1055 West 7th Street, Suite 2700, Los Angeles CA 90017-2553 Telephone 213.627.2727 / www.lacba.org

LACBA EXECUTIVE COMMITTEE President PAUL R. KIESEL President-Elect MARGARET P. STEVENS Senior Vice President and Treasurer MICHAEL K. LINDSEY Vice President DAVID K. REINERT Assistant Vice President BRIAN K. CONDON Assistant Vice President DUNCAN W. CRABTREE-IRELAND Assistant Vice President HON. BRIAN S. CURREY Immediate Past President LINDA L. CURTIS Barristers President ROBERT S. GLASSMAN Barristers President-Elect DAMON A. THAYER Chief Executive Officer/Secretary SALLY SUCHIL Chief Financial & Administrative Officer BRUCE BERRA General Counsel & Chief Administrative Officer W. CLARK BROWN BOARD OF TRUSTEES HARRY W.R. CHAMBERLAIN NATASHA R. CHESLER REBECCA A. DELFINO MIGUEL T. ESPINOZA KENNETH C. FELDMAN JO-ANN W. GRACE HARUMI HATA STACY R. HORTH-NEUBERT SAJAN KASHYAP MARY E. KELLY LAVONNE D. LAWSON F. FAYE NIA ANNALUISA PADILLA JUAN A. RAMOS SARAH V.J. SPYKSMA DAVID W. SWIFT JEFF S. WESTERMAN ROXANNE M. WILSON

AFFILIATED BAR ASSOCIATIONS BEVERLY HILLS BAR ASSOCIATION CENTURY CITY BAR ASSOCIATION CONSUMER ATTORNEYS ASSOCIATION OF LOS ANGELES CULVER MARINA BAR ASSOCIATION GLENDALE BAR ASSOCIATION IRANIAN AMERICAN LAWYERS ASSOCIATION ITALIAN AMERICAN LAWYERS ASSOCIATION JAPANESE AMERICAN BAR ASSOCIATION JOHN M. LANGSTON BAR ASSOCIATION LESBIAN AND GAY LAWYERS ASSOCIATION OF LOS ANGELES MEXICAN AMERICAN BAR ASSOCIATION PASADENA BAR ASSOCIATION SAN FERNANDO VALLEY BAR ASSOCIATION SANTA MONICA BAR ASSOCIATION SOUTH BAY BAR ASSOCIATION SOUTHEAST DISTRICT BAR ASSOCIATION SOUTHERN CALIFORNIA CHINESE LAWYERS ASSOCIATION WOMEN LAWYERS ASSOCIATION OF LOS ANGELES

Los Angeles Lawyer December 2015 5 he Los Angeles Superior Court (LASC) recently held an annual recognition ceremony honoring many local T lawyers who volunteer their time to serve the court as a temporary judge, also known as judge pro tem. The LASC uses these certified, experienced attorneys to serve as

temporary judges in family law, civil harassment, small claims, traffic, and unlawful detainer courtrooms. The service of the temporary judges is not just in the courtroom. In addition to the requirement of a minimum of 10 years of practice, lawyers must also complete many hours of mandatory training. Judge Stuart M. Rice, chair of the Temporary Judge Committee of the LASC, presided over the recognition ceremony this year, as he has done in past years, and presented certificates to the temporary judges. According to Judge Rice, “in the year 2014, hundreds of lawyers served as temporary judges, covering more than 5,600 calendars and handling 279,240 cases.” In addition to his day job as a superior court judge sitting in Department B at the Torrance courthouse, Judge Rice devotes additional countless hours every year conducting many of the training sessions for temporary judges and administering the program. The LASC Temporary Judge Committee works with the Temporary Judge Program Office to review and approve applications, to review complaints, to oversee the training requirements, and to make recommendations for additional training. At the recognition ceremony, the Honorable Carolyn Kuhl, presiding judge of the LASC, also recognized and thanked the temporary judges for their service. Presiding Judge Kuhl noted that without the service of the temporary judges, the court workload would be distributed to other LASC bench officers, increasing the already overloaded calendars and caseloads of bench officers and courtroom staff, resulting in more con- tinuances and delays for litigants throughout Los Angeles County. The Los Angeles Superior Court serves a population of over 10 million, consisting of more than 500 judicial officers and 38 courthouses. Because of budget cuts in recent years, the court has implemented a consolidation plan and closed courthouses and courtrooms throughout Los Angeles County. The consolidation plan also created hubs in certain courthouses to specialize in processing certain cases in large volume, such as collections, personal injury, small claims, limited civil, and unlawful detainer matters. (See Los Angeles Superior Court Annual Report 2015.) In the wake of these budget cuts, as well as the high vacancy rate for Superior Court judges, the service of the temporary judges assists the LASC in providing access to justice for litigants by keeping calendars moving and courtrooms open. In addition to using the services of temporary judges, the LASC is continually working to improve access to justice for Los Angeles County litigants. For instance, the LASC processes more than a million traffic citations a year, and assigns many temporary judges to traffic calendars to ease that load. The LASC conducted a survey and found that approximately 41 percent of litigants appearing on traffic matters simply wanted to pay a fine. (See Los Angeles Superior Court Annual Report 2015.) Thus, the LASC is expanding its website services to include the processing of traffic citations with user-friendly online payment plans, which will hopefully cut down the annual courtroom appearances in traffic court. The LASC in recent years has been constantly evolving to provide so much more for so many litigants, with so fewer resources, thanks in part, to so many temporary judges. n

Donna Ford is a retired assistant U.S. attorney, now in private practice handling appeals and serving as a mediator and arbitrator.

6 Los Angeles Lawyer December 2015 on direct INTERVIEW BY DEBORAH KELLY

Jennifer C. Pizer Senior counsel and law and policy project national director, Lambda Legal

lead and coordinate policy work nationally, need of change? There is a large piece of focus my own policy work on nondiscrimi- geography that is in the need of change. Our nation laws, and I litigate and supervise ju- country really is divided, but if the queer nior lawyers. people and the immigrants and all the people of color get together, we will continue to This June, the U.S. Supreme Court rendered make progress. a decision on gay marriage. Is history moving forward? History is absolutely moving What about in other parts of the world? In forward in this country. I’ve been at Lamb- many places, the conditions are worsening da Legal for almost 20 years, and the free- because of the work of reactionary religious dom to marry has been a central part of our leaders from the United States. Our work is work. part of a global context.

How do you celebrate the winning days? Do you believe there is widespread con- Often, there is a public celebration, which tempt for the gay community? It depends has the passion and the shared joy of our on where you are and who you’re talking whole community. I also try to make sure to. there is time to have celebration within our What about for transgender persons? JENNIFER C. PIZER | Jennifer C. Pizer was lead litigation team and with my wife. Our counsel in Majors v. Jeanes, the successful federal society is at a much earlier spot on the Do you look for teachable moments? case against Arizona’s ban on marriage for same- Defi- learning curve concerning our transgender sex couples, and was cocounsel in the litigation nitely, we just had a teachable moment with brothers and sisters. There is more discom- that won marriage for same-sex couples in Kim Davis in Kentucky, abusing her office fort and less respect. in a way that was so dramatic. She’s done California in 2008. She has also served as the Do public experiences like that of Caitlyn legal director of the Williams Institute at UCLA the LGBT community a favor. Jenner help or hinder understanding? Pub- School of Law. How so? She’s not Martin Luther King in lic figures like Caitlyn Jenner, Laverne Cox, jail; she’s George Wallace blocking the and Chaz Bono—I think it helps, absolutely. schoolhouse door. Like Ellen DeGeneres for the gay communi- What is the perfect day? It’s not necessarily ty, who has changed the world—you have Do you think that Kim Davis should quit particular tasks, but more a sense of some to be glued to your prejudice to dislike Ellen her job? kind of progress, some kind of a problem If Kim Davis is unable to do the DeGeneres. solved, or the kernel of a beginning of a so- requisites of the job in a nondiscriminatory Should transgender athletes who are born lution. manner, she doesn’t deserve to be paid by the taxpayers. biologically male be able to compete as a What is Lambda Legal’s mission? Our mis- female? The NCAA has rules about this, What about her staff? sion is to push our society to honor the con- She was demanding and those rules are being used as models by stitutional principles of liberty, equality, and the right to order her subordinates also to lots of high schools. The figures are that the inclusion for all through impact litigation, not do their jobs. That’s flabbergasting. LGBT community is a bit under 4 percent, policy work, and education. Is Kim Davis entitled to an accommoda- and the Trans community is only about .3 percent. It’s awfully easy to demonize a pop- tion? Title VII requires an employer to make What do you look for in a case? Test cases ulation that tiny. that tell a powerful story and demand a an accommodation for the religious needs of remedy from the law—the presentation of a workers. The employer’s duty to accommo- What about shared spaces? The issue is ac- case that is a story of real people. date does not require undue burdens, and tually relatively simple in most of our segre- that means cost and efficiency. But it also gated spaces—restrooms and locker rooms. How big is Lambda Legal? We are in the means that an employee’s conduct cannot People in those spaces are not inspecting neighborhood of 100 employees. We work cause harm to coworkers or the public. other peoples’ genitals. out of five offices—New York, Los Angeles, What state do you consider a role model? Chicago, Atlanta, and Dallas. What does “gender nonconforming” mean? California. It is presenting oneself—in appearance, What are your three major job duties? I What state do you think is in the most clothing, and mannerism—in a way other

8 Los Angeles Lawyer December 2015 than other peoples’ stereotypes of your gender. Sometimes we “straighten up” when we are around nongay people to make them more comfortable or to blend in. Sometimes we do it without realizing it, and sometimes we are excruciatingly aware of it.

You graduated from Harvard College and NYU School of Law but have lived in Los Angeles for nearly 20 years. Are you an East Coast girl or So-Cal girl? I feel a strong loyalty to California.

If you were able to have only one dessert for the rest of your life, what would it be? Cognac.

Do you have a favorite food? Yellowtail sushi. Maybe I should pick something else; it’s endangered. And blueberries!

Do you have a Facebook page? I do.

It is personal or professional? It’s both. Among the most important things I do is to be Exhibit A on behalf of various folks for whom it’s dangerous still.

Is there one app you wish you could operate on your iPhone? Evernote.

How do you get your news? Public radio— I adore it. I depend on Google News, and I do read the New York Times and the Los Angeles Times.

What do you do on a three-day weekend? I’m working much of it.

What is the ideal vacation? We went on a safari; it was extraordinary. We have a plan to go back.

What are your retirement plans? Well, my wife has been using the “r” word recently. I suspect for both of us that there won’t be any full retirement. There will be participating in the movement in other ways, without compensation.

What would you grab while running out of the door if your house were on fire? Other than my wife? The portable hard drive that has many thousands of photographs on it.

What are the three most deplorable conditions in the world? Hatred. Cruelty. Cli- mate change.

Who are your two favorite American presi- dents? Abraham Lincoln and Barack Obama.

What would you want on your tombstone? Tikkun Olam, meaning “repair the world.” It’s a Jewish concept of duty to act for social justice.

Los Angeles Lawyer December 2015 9 barristers tips BY RADHA KULKARNI

Optimizing the Initial Arbitration Management Conference

ARBITRATION IS EXTOLLED and favored for its efficiency and potential ments or rules allow for dispositive motions, pre- and posthearing for providing a speedier resolution than through state or federal briefs, or motions to compel by right. Other agreements or rules court. While this is not always the case, as parties increasingly draw require a showing of good cause or arbitrator permission. If the case out and expand pretrial discovery, arbitration for the most part con- appears simple, costs need to be controlled, or the issues are best tinues to be beneficial for parties seeking quick, final resolution of decided at the evidentiary hearing, request that procedures be followed disputes. In particular, the initial arbitration management conference or showings made prior to filing the motions. If the case can be (AMC) can be a powerful tool for ensuring quick resolution and decided on the papers, secure the right to do so. setting the stage for ultimately winning your case. However, there The AMC is a propitious time to discuss the arbitrator’s preference are various considerations necessary to enhance the process. as to styles and substance of briefs or motions. Most arbitrators Since arbitration is a final, binding procedure with limited right favor simplicity and avoiding a long recitation of summary judgment to appeal, it is important to ensure that the arbitrator has the expe- or demurrer history. A formal motion to compel or protective order rience, knowledge, and judgment both parties trust to arbitrate the is often not required for simpler discovery issues, and your obligation dispute. Reviewing the arbitrator’s resume, polling other attorneys, may be satisfied with a request accompanied by facts and relevant and, where possible, reviewing decisions of former judge arbitrators law. are the best ways to determine the arbitrator’s competence and Concerning pleadings, discovery disputes, the hearing, or even possible biases. If the arbitration is governed by an agreement in substantive law, if any doubt exists as to governing law, request that addition to forum-specific rules, such as AAA or JAMS, it helps to the arbitrator and all parties agree as to controlling law. For example, select an arbitrator familiar with those rules. The initial AMC is if an agreement calls for federal procedural rules and state substantive also the first opportunity to prime and educate the arbitrator as to law, apprise the arbitrator and try to discern what sources the arbi- both substantive and procedural issues, as well as establishing trator will use to decide issues. While trial judges are limited to protocol, such as how the arbitrator should be addressed. statutes, case law, rules of evidence, and procedural requirements, To the extent that it is possible to reach out to opposing counsel arbitrators can be quite flexible in considering relevant evidence and and agree on certain issues prior to the conference, this may save adjudicating based on fairness or equity. This premise is essential to time during the AMC. When deciding a contested issue, an arbitrator the entire arbitration, as it may prove frustrating when you believe will attempt to make both sides happy—unless one side is completely your position is clearly supported by law. unsupported by law or reason. Therefore, it is important to be More arbitrations are reversed for failure to allow evidence than prepared to propose compromises to the other side, or the arbitrator, for other reasons. As a result, many arbitrators lean toward allowing and to meet and confer with opposing counsel as much as possible everyone to present their case and all possibly relevant information before asking the arbitrator to intervene. Prior to the conference is to prevent reversal of an award. Since you may not have control over also a good time to discuss with your client and opposing counsel what evidence is admissible, well-established rules and procedures at whether mediation—an even more informal, nonbinding method of the outset of the arbitration can be a shield, determining how that resolution—is an option. evidence will ultimately be evaluated. Requiring that the arbitrator Next, be familiar with the arbitration forum rules and any matter issue an order memorializing all points discussed and deadlines estab- or client-specific contractual rules or arbitration plans, ensuring that lished during the AMC is an excellent way to establish the governing the arbitrator knows or at least has a copy of any operative rules. If rules and the rights of both parties to which you can later cite. The conflicts exist between these sets of rules, address them at the con- arbitrator’s order, rather than forum rules or arbitration agreements, ference. Discuss material provisions of your arbitration plan, especially often controls the case and is the best way to know how the arbitrator those unique to the agreement. If the arbitrator hesitates to adopt will approach and adjudicate any issue. any material provisions, ask to brief the issue, presenting support Finally, be professional and courteous. Due to the relaxed and for why the agreement controls. informal nature of arbitration, some attorneys dismiss with even The AMC can also be the time to tailor discovery. If the objective the most basic professionalism, and conferences can be reduced to is to limit discovery as much as possible and push for early resolution, yelling matches between counsel. Since you are the attorney, not the set a limit for discovery materials, especially if the limits are specifically plaintiff or defendant, refrain from unprofessional tactics such as identified in your arbitration plan. Conversely, if the case will require name calling, yelling, or disposing of other professional courtesies. heavy discovery, request permission for extended discovery early, Los Angeles can be a small legal community, and your professional stressing the complexity of the case. Arbitrators often weigh a case’s reputation will last longer than any individual matter you might complexity with the ex pe diency goals of arbitration, so be prepared work on. n to explain why additional dis covery is warranted. Establish permissible motions and pleadings, either under the Radha Kulkarni serves as the networking cochair on the Barristers Executive arbitration agreement, forum rules, or by the arbitrator. Some agree- Committee.

10 Los Angeles Lawyer December 2015 practice tips BY JONATHAN E. HOWELL

Guidance on the Use of Summaries of Evidence at Trial

LAWYERS ARE OFTEN FACED WITH a large amount of documentary exception to the hearsay rule. Although oral testimony is generally evidence at trial. A jury may have a hard time staying awake through not admissible to prove the content of a writing, oral testimony is not tedious examination about complicated or technical documents and made inadmissible “if the writing consists of numerous accounts of thereby miss the bigger picture. For these reasons, summaries of evi- other writings that cannot be examined in Court without great loss of dence—including timelines, tables, and diagrams—can be of great time, and the evidence sought from them is only the general result of use. Under the California Evidence Code a summary can be a demon- the whole.”9 strative exhibit or a “pictorial communication[ ] of a qualified witness For example, in Vanguard Recording Society, Inc. v. Fantasy who uses this method of communication instead of or in addition to Records, Inc.,10 a singer and her record company sought damages some other method.”1 It may also be admissible independently as a and injunctive relief against a defendant that was marketing an unli- summary of voluminous records.2 Likewise, the Federal Rules of censed recording of one of her performances. During the trial, the Evidence permit the use of “a summary, chart, or calculation to prove the content of voluminous writings, records, or photographs….”3 A good summary is also useful to assist a testifying The jury could rely on the summary during deliberation rather witness as either a means to refresh recollection or as a past recollection recorded. A summary is a writing, and it must be than relying on their own notes and memory. authenticated before it is received into evid - ence.4 Authenticating a summary means intro- ducing evidence that it is a correct representation of what it purports court admitted a summary of sales invoices into evidence. The plaintiff’s to depict.5 Typically, a witness will testify that he or she created the secretary-treasurer directed the preparation of the summary of 50,000 summary based on a review of documents or from some other source. sales invoices. The court found that the summary was admissible as a That source must be independently admissible. summary of business records consisting of numerous accounts or other For example, a district attorney used two summaries as exhibits in writings that cannot be examined in court without a great loss of trial.6 The first was a one-page chart summarizing the defendant’s time. “A person who directs or supervises the preparation of the sum- criminal history. The other was a two-page chart summarizing the mary may testify to its contents and the summary may be received defendant’s history of institutional misconduct. The summaries had into evidence.”11 been described in more detail during an expert witness’s testimony. In Exclusive Florists, Inc. v. Yale Kahn,12 a florist brought a law- The court found that the summaries were admissible as visual repre- suit to recover damages when the defendant failed to pay for floral sentations of the expert testimony as well as relevant and necessary as arrangements and related services. During the trial the court admitted an explanation of the factual basis for the expert’s opinions.7 Although exhibits prepared by the plaintiff florist that consisted of summaries the example is from an unpublished opinion, it demonstrates how the of the damages. One of the exhibits consisted of a summary of district attorney condensed important testimony into a summary that business records showing the quantity, kind, and cost to the plaintiff, was admitted into evidence. The jury could rely on the summary during the charge to the defendants, other merchandise used in decorating, deliberation rather than relying on their own notes and memory. and related services, including labor.13 The summary was compiled Another example is when a witness is testifying about medical by plaintiff’s vice president who relied primarily upon purchase treatment received, confirming that she incurred medical bills, and orders that were made available to the defendant for examination. whether the bill was paid or not. The witness can then be shown a The summary was also based upon invoices prepared by third parties summary of the medical expenses to lay a foundation for its admis- that the court permitted because the invoices were used by the sibility and confirm it correctly summarizes the expenses incurred. plaintiff on the job to verify the cost and delivery of flowers. Similarly, (See the table on page 14.) The witness can also confirm that the the summary of labor cost was based upon time cards and payroll table helps in testifying about the expenses and that it would help records kept in the usual course of business. The plaintiff’s vice pres- the jury to understand the witness’s testimony. The table can then ident testified about the summaries and also qualified as an expert be shown to the jury and admitted into evidence as an aid that illus- regarding the reasonable retail value of the items in question. Thus, trates the testimony of the witness.8 the court of appeal found the summaries admissible and affirmed the judgment.14 Condensing Records A summary is often not just illustrative of testimony but also condenses Jonathan E. Howell is a personal injury attorney with Pocrass & De Los Reyes a large amount of documentary evidence. This type of summary is in Los Angeles who specializes in vehicle and bicycle collisions, defective independently admissible under the summary of voluminous records products, and medical negligence.

12 Los Angeles Lawyer December 2015 The Vanguard case is instructive because it shows that a summary does not have to ROSS MEDIATION SERVICES actually be created by the witness but can be done at his or her direction. The summary Integrity Commitment Success

can also be based on third-party documentary SPECIALTY AREAS evidence, as in the Exclusive Florists case. In the example of medical expenses, a witness • Real Estate • Business/Commercial Mortgage & Lending Escrow/Title/Agency can lay the foundation for a summary of • • Trusts & Estates Workplace medical expenses incurred from different • • Construction Multi-Party medical providers based on voluminous bills • • Personal Injury Professional Liability even if the witness did not actually create • • the summary. Moreover, the summary would BARRY ROSS,ESQ., MBA be ad missible not just as a demonstrative (818) 840-0950 exhibit but also as a summary of voluminous www.ROSSmediation.com records. Aiding Witness Testimony A summary may also prove beneficial by as - sisting a witness in testifying either as a past recollection recorded or a writing that refreshes memory. Witnesses often have diffi culty re - membering dates, exact dollar amounts, or other specific details. A summary can aid them in giving accurate testimony. A writing can be used to refresh memory either before or during a witness’s testimony.15 Notably, any writing can be used to refresh memory. It does not have to be prepared by the witness or under his or her direction, although the testimony will likely have more weight if the summary used to refresh memory was created by the witness. In the example of medical expenses, the witness can refresh her memory using a table of expenses prepared by the questioning attorney and the witness before the trial. Similarly, a witness can testify using a sum - mary if it is a past recollection recorded exception to the hearsay rule. To meet the requirements of the exception, the summary must be 1) made at a time when the fact recorded in the summary actually occurred or was fresh in the witness’s memory, 2) made by the witness or under his or her direction or by some other person for the purpose of recording the witness’s statement at the time it was made, 3) offered after the witness testified that the statement he or she made was a true statement of such fact, and 4) offered after the writing is authenticated as an accurate record of the statement.16 A writing that is a past recollection re - corded is not admissible unless offered by an adverse party.17 Moreover, a writing used to refresh a witness’s memory is not auto- matically admissible. In other words, the summary can be used to assist a witness in testifying but you will need to find another method to have it admitted into evidence. Objections to the Summary There are common issues with the use of a summary that could be cause for objection by opposing counsel. For example, a summary,

Los Angeles Lawyer December 2015 13 by its nature, does not contain all the infor- The lesson to be learned from Wolfen is that the summary was hearsay “and must mation that may be relevant. A summary may that a court will exercise its discretion liberally on proper objection, be brought within an also contain an error. The opposing attorney in permitting a summary. It does not have exception or excluded from evidence.”25 may object to not having sufficient time to to be a comprehensive summary of all infor- Summaries are often prepared shortly review the summary. Fortunately, the court of mation contained in the underlying docu- before trial or even shortly before a witness appeal has provided guidance regarding these ments. It can contain typos or arithmetic examination. Under such pressured circum- objections in Wolfen v. Clinical Data, Inc.18 errors as long as they are explained in testi- stances, errors may not show themselves until In Wolfen, a property owner brought an mony. The summary also does not have to the jury is in the box and the witness on the action against a tenant for the cost to repair stand. The key is to not be discouraged. The construction in violation of building codes. PLAINTIFF’S MEDICAL witness should first lay the foundation for At trial, the owner submitted into evidence EXPENSES the summary and then explain the error. an itemized summary of damages. The jury One of the goals as a trial attorney is to found in favor of the owner and entered a Urgent Care Facility $ 800.00 have the jury focus on the important and sub- verdict against the tenant from which the ten- Physical Therapy Facility 1,060.00 stantial aspects of the client’s case. Often, this ant appealed. The appeal was based on various Orthopedic Doctor 327.00 goal is accomplished through telling the client’s grounds, including that the trial court erred Medical Imaging Center 912.00 story without getting hung up on tedious in admitting the summary into evidence. Pain Management Doctor 2,922.00 details. Sometimes, the story involves lots of The court of appeal found that the sum- information that is confusing if told through mary was admissible under the Evidence Code TOTAL $6,021.00 testimony alone. A summary can help accom- pertaining to oral testimony on voluminous plish this goal and also can help witnesses tes- writings.19 The damage summary was pre- be provided to opposing counsel weeks in tify. Putting the summary into evidence gives pared from underlying invoices of repairs and advance of the trial. However, it is advisable the jury a helpful exhibit that they can consider renovations and related time sheets. It omitted to provide the summary to opposing counsel during deliberation rather than relying on certain costs that were not properly chargeable as soon as practical to avoid any arguments their memory of testimony or their notes. For to the tenant. The tenant argued that the sum- that there was insufficient time to review it. all these reasons, a summary is a powerful mary was incorrect because it was not a com- Even a potentially misleading inaccuracy tool that should not be disregarded when pre- plete summary of the invoices. The court of may not prevent a summary from being admit- senting evidence at trial. n appeal disagreed and found that it was accept- ted into evidence. In the Silvey v. Harm case, able for the owner to exclude irrelevant infor- a diagram depicting the vicinity where the car 1 People v. Kynette, 15 Cal. 2d 731, 755-56 (1940), mation in the summary. Otherwise, the sum- accident occurred was prepared by an engi- overruled on other grounds in People v. Snyder, 50 mary would have lost its value. neer.22 The diagram indicated the borders of Cal. 2d 190, 197 (1958)). 2 EVID. CODE §1523(d). The tenant also argued that the damage the highway consisted of oiled rock shoulders 3 FED. R. OF EVID. 1006. summary contained an error: it was $400 even though at the time of the accident the 4 EVID. CODE §§250, 1400-01. too low in the tenant’s favor. Notably, the ex - shoulders were constructed with dirt. This was 5 People v. Ham, 7 Cal. App. 3d 768, 780 (1970), pert testifying about the summary explicitly an important fact in the case because it was disapproved on other grounds in People v. Compton, discussed the error. Since a witness’s testimony alleged that the defendant could have used the 6 Cal. 3d 55, 60 (1971). 6 explained the error, the error did not render shoulder to prevent an accident. This inaccu- People v. Schuller, No. F064799, 2013 WL1565559 (Ct. App. Nov. 21, 2013). the summary inadmissible. The error affected racy was fully explained before the map was 7 Id. the weight, not the admissibility, of the dam- received into evidence.23 The court of appeal 8 In federal court, demonstrative evidence is generally age summary.20 found that the map could be admitted as an not admitted into evidence since it is a testimonial The tenant also argued that the damage illustration and to aid the jury despite the inac- aid, but trial courts have broad discretion, and absent summary was not provided to the tenant curacy. Again, just as in Wolfen, the key is to undue prejudice, the trial court’s ruling will be upheld on appeal. See United States v. Cox, 633 F. 2d 871, prior to trial and that they did not have ade- have a witness explain the error or inaccuracy 874 (9th Cir. 1980); United States v. Ollison, 555 F. quate time to review it. However, the pro- to increase the chance of having the summary 3d 152, 162 (5th Cir. 2009); Bradshaw v. FFE Transp. posed trial exhibit list referred to the sum- admitted over opposing counsel’s objection. Servs., Inc., 715 F. 3d 1104, 1109 (8th Cir. 2013). mary. There was no record that the tenant A summary may also be used to assist 9 EVID. CODE §1523(d); see also FED. R. OF EVID. 1006. 10 sought to inspect the summary or compare the court in a motion for summary judgment; Vanguard Recording Soc’y, Inc. v. Fantasy Records, Inc., 24 Cal. App. 3d 410 (1972). it against invoices and other backup materials however, the parties seeking to use the sum- 11 Id. at 419. prior to the trial after its disclosure. The ten- mary must still lay a foundation for its use. 12 Exclusive Florists, Inc. v. Yale Kahn et al., 17 Cal. ant also complained that the damage sum- For example, in Pajaro Valley Water Manage - App. 3d 711 (1971). mary was “‘dumped’” on them moments ment Agency v. McGrath, a water agency 13 Id. at 713-14. before the owner’s expert witnesses testified.21 filed a lawsuit to recover delinquent charges 14 Id. at 716. 15 EVID. CODE §771(a). However, after the expert witness testified from one of its customers.24 The agency sub- 16 EVID. CODE §1237. on direct, the court adjourned to permit the mitted a declaration from a general manager 17 EVID. CODE §1237(b). parties to review the damages summary. When who testified about the amounts billed to 18 Wolfen v. Clinical Data, Inc., 16 Cal. App. 4th 171 the trial court convened the next day, the the customer. The declaration recapitulated (1993). tenant did not argue it did not have enough the contents of an exhibit which, in turn, 19 The case cites Evidence Code §1509, which has time to review the summary and did not recapitulated the contents of certain bills not since been repealed, but the relevant portions are codified at Evidence Code §1523. request a continuance. Instead, the tenant before the court. Notably, the exhibit was 20 Wolfen, 16 Cal. App. 4th at 183. cross-examined the owner’s expert witness not incorporated in the declaration or even 21 Id. regarding the details of the summary. Based vouched for. The court found that the decla- 22 Silvey v. Harm, 120 Cal. App. 561 (1932). on the foregoing, the court of appeal found ration and summary exhibit were not admis- 23 Id. at 571. 24 that there was sufficient opportunity for the sible because the bills upon which they were Pajaro Valley Water Mgmt. Agency v. McGrath, 128 Cal. App. 4th 1093 (2005). tenant to review the damage summary. based were hearsay which, in turn, meant 25 Id. at 1108.

14 Los Angeles Lawyer December 2015 BY AUTHOR practice tips BY TANYA L. FORSHEIT AND DANIEL M. GOLDBERG

New FCC Rules Affect Companies That Use Automated Dialing Systems

THE OMNIBUS DECLARATORY RULING AND ORDER affecting the and text messages for other kinds of commercial communications Telephone Consumer Protection Act of 1991 (TCPA), adopted on with consumers. Many businesses had hoped that the order might June 18 by the Federal Communication Commission, affects companies help stem the tide of often-frivolous TCPA class action lawsuits, but that use telemarketing calls or text messages to communicate with currently it appears that the order may have the opposite effect, of - consumers.1 This order provides, among other things, heightened fering new avenues of attack for plaintiffs’ attorneys while rejecting protection to wireless consumers against unwanted automated calls many defenses asserted by companies in response to TCPA litigation. from telemarketers. A thorough understanding of the FCC’s position Perhaps the most significant issue addressed in the order relates on these issues can help attorneys who advise these companies to the definition of an ATDS. The TCPA defines an ATDS as “equip- mitigate risk and defend against lawsuits. ment which has the capacity—(A) to store or produce telephone In enacting the TCPA, Congress authorized the FCC to implement numbers to be called, using a random or sequential number generator; rules and regulations enforcing the act and created a private right of action. Twenty-four years later, the TCPA has become a hotbed for class action litigation.2 The TCPA prohibits the mak- The FCC refers to a “rotary-dial phone” as its only example of ing of any nonemergency calls using an auto- matic telephone dialing system (ATDS) or an artificial or prerecorded voice to a wireless tele- equipment clearly lacking any such capacity. phone number without prior express consent.3 The FCC has interpreted calls to include communication technologies developed subsequent to the enactment of and (B) to dial such numbers.”9 Because “capacity” is not defined, the TCPA, such as text messages, and courts have reached similar many courts have interpreted “capacity” to mean present capacity conclusions.4 The burden is on the party making or initiating the com- (i.e., what the equipment can do without modification), rather than munications to prove that it received prior express consent. Calls that potential capacity (i.e., what the equipment could do if modified), introduce an advertisement or constitute telemarketing (even if they and some have dismissed cases on the grounds that the caller’s tech- also have a noncommercial purpose) require a consumer’s prior express nology did not have the present capacity to dial numbers randomly written consent. Calls made for nontelemarketing purposes (i.e., con- or sequentially. However, in a disappointment to organizations taining noncommercial or purely information messages) only require seeking more clarity, the order finds that an ATDS encompasses any a consumer’s prior oral consent. A caller that obtains written consent equipment that could be modified to dial randomly or sequentially, obtained in compliance with the E-SIGN Act (e.g., having the consumer not just equipment with present capacity. According to the FCC, “a text a specific word to a specific short code in order to receive text piece of equipment can possess the requisite ‘capacity’ to satisfy the messages) satisfies the prior express written consent requirement.5 statutory definition of [ATDS] even if, for example, it requires the While making calls using an ATDS without prior express consent addition of software to actually perform the functions described in may seem trivial, the possible liability can put a company out of the definition.”10 The order further clarifies that a technology can business. Consumers can recover uncapped statutory damages of up be an ATDS even if there is human intervention involved and advocates to $1,500 per violation without need to prove actual damages.6 For an ad hoc approach to determining what level of human intervention example, a company that sends out 100,000 telemarketing text mes- would be required to remove a piece of equipment from the ATDS sages to consumers without receiving prior express written consent category. Although the FCC maintains that an ATDS does not “extend could face up to $50 million in liability, even without a showing of to every piece of malleable and modifiable dialing equipment that intent. Such liability is not hypothetical; some companies have settled conceivably could be considered to have some capacity,”11 the FCC TCPA lawsuits for numbers in the range of mid-eight figures, with at refers to a “rotary-dial phone” as its only example of equipment least one lawsuit settling last year for over $75 million.7 The prospect clearly lacking any such capacity. of such extreme payouts in conjunction with the FCC’s increasingly Companies that previously thought their systems might not be expansive interpretation of the TCPA and the ever-rapid advancements deemed to be an ATDS should revisit how their systems function and in technological communications has transformed the TCPA into one reevaluate their measures for complying with the TCPA. Any company of the hottest areas for class action litigation. that intends to make calls or text messages should obtain documented, The FCC’s June 18 order addresses nearly two dozen petitions clear, express written consent prior to initiating calls or text messages. from companies seeking clarification of the requirements under the And while the order arguably makes the waters surrounding the def- TCPA and previous rules and orders issued by the FCC.8 The order took effect upon release on July 10 and is certain to create compliance Tanya L. Forsheit is a partner, and Daniel M. Goldberg an associate, in challenges for a wide variety of businesses that use telemarketing calls BakerHostetler’s privacy and data protection practice, based in Los Angeles.

Los Angeles Lawyer December 2015 15 inition of an ATDS even murkier, it provides call to action without violating the TCPA “so ports the number to a wireless service. On a some welcome clarity with respect to the iden- long as it: (1) is requested by the consumer; broader level, this issue reinforces that com- tity of the real maker or initiator of a text (2) is a one-time only message sent immedi- panies should not place restrictions on the message. The TCPA prohibits callers from ately in response to a specific consumer re- scope of consent they seek from consumers making calls in violation of the statutory quest; and (3) contains only the information (e.g., limiting the number of calls that may requirements. The FCC clarified that it will requested by the consumer with no other be placed during a specified period). look to the totality of the facts and circum- marketing or advertising information.”15 The Order in Court stances surrounding the placing of a particular There are several takeaways on the context to determine: 1) who took the steps nec- sumer consent issue. First, companies should The elephant in the room is how the order essary to physically place the text, and 2) maintain a database or other repository to will actually affect TCPA litigation and whether another person or entity was so track all consents and opt out requests and defense strategy in practice. That is currently involved in placing the text as to be deemed keep clear records for at least four years, not clear, as courts are only now beginning to have made it, considering the goals and which is the statutory limitation for a TCPA to react to the order. For example, in the purposes of the TCPA. Some of the factors action. Companies should also consider recently dismissed case of McKenna v. Whis - identified in determining liability include: who investing in technologies that can identify perText, the U.S. District Court for the North- created and controlled the content of the text; various forms of opt out. Finally, companies ern District of California rejected the plaintiff’s who decided whether, when, or to whom to should not assume that any consent they argument that the defendant’s equipment send the text; the extent to which the service received in the past is still valid, and should constituted an ATDS.18 The district court is reactive and tailored; and the extent to promptly remove any numbers from their stated that if an application sends text mes- which the service enables unlawful or fraud- database or repository upon receiving notice sages only at a user’s affirmative direction, ulent conduct. of revocation of consent. the action is taken with human intervention The order also clarifies that 1) Internet- Even with tracking all consents, companies and the equipment used is not an ATDS. to-phone messages are the functional equiv- are still at risk when calling reassigned num- Applying the order, the district court further alent of SMS text messages, 2) the equipment bers. The order states that “the TCPA requires found that the defendant was not the maker used to send them is considered an ATDS the consent not of the intended recipient of or initiator of the text messages. The Whisper - for TCPA purposes, and 3) Internet-to-phone a call, but of the current subscriber (or non- Text decision is particularly interesting b- text messages, including those sent using an subscriber customary user of the phone).”16 ecause it indicates that courts may continue interconnected text provider, require con- The burden is on the initiator to determine to evaluate human intervention in a similar sumer consent. The FCC rejected the argu- whether the number has been reassigned. manner as they did before the order and that ment that such Internet-to-phone messages Callers that are unaware of a reassignment asserting ATDS defenses may still have value are covered solely by the CAN-SPAM Act.12 have a safe harbor of one call to a reassigned in TCPA lawsuits despite the order’s expansive Based on this finding, companies should treat number “to gain actual or constructive knowl- interpretation of an ATDS. Internet-to-phone messages the same way edge of the reassignment and cease future It is also possible that the order could be they treat SMS text messages. calls to the new subscriber.”17 Because a com- reversed. At least six companies and organi- A word of caution—despite these clarifi- bination of tools and methods may be nec- zations have already mounted challenges to cations, the order is mostly silent on the issue essary to ascertain whether a number has it in the U.S. Court of Appeals for the District of vicarious liability. Companies should be been reassigned, the order recommends that of Columbia. Days after the order was re - aware that they potentially could be held vic- companies establish and follow their own leas ed, ACA International, which represents ariously liable for violations of the TCPA by set of best practices in this regard. credit and collections professionals, sought a third party, such as a vendor, and thus should In practice, it is very difficult for compa- judicial review of the FCC’s determinations require in their contracts that vendors comply nies to determine whether a number has been on a number of issues.19 The petitioners with the TCPA and other applicable laws and reassigned based on a single call. As the FCC argue, among other things, that the order is indemnify the customer for violations. acknowledges, there is no public directory arbitrary and not in accordance with the law, Another issue addressed in the order is of wireless numbers, and consumers do not in particular the FCC’s interpretation of that of consumer consent. The TCPA is silent usually contact companies when they change “capacity” to include any equipment with as to whether consumers can revoke consent their wireless numbers. Companies should potential functionalities, the one-call exemp- if they no longer wish to receive calls or text consider using random audits of telephone tion for reassigned numbers, and the restric- messages. The order clarifies that consumers numbers as a means to lower the risk of tions on limiting the manner in which revo- have a right to revoke consent at any time reaching out to a reassigned number. cation may occur. However, companies should “using any reasonable method including orally Another tricky nuance of the order relates not rely on the possibility of a reversal because or in writing” and that initiators may not to situations in which a consumer ports his any ruling is likely years away. designate the exclusive methods by which or her residential landline to a wireless num- Ultimately, as before, the best strategy is consumers can revoke consent.13 The FCC ber. In such situations, any prior express con- compliance with the code. While compliance will determine what constitutes a reasonable sent that the consumer gave to a caller to has become more difficult, it is possible to method using a totality-of-the-circumstances receive calls on that landline remains valid mitigate risk. In the event a company finds test, considering factors such as “whether the until the consumer revokes that consent. itself in a TCPA lawsuit, the company may consumer had a reasonable expectation that However, because the TCPA applies less strin- also want to consider Spokeo, Inc. v. Robins, he or she could effectively communicate his gently to landlines, the caller may need to which is currently pending before the U.S. or her request for revocation to the caller in obtain further consent if it intends to make Supreme Court.20 The issue that the Supreme that circumstance, and whether the caller calls beyond the scope of that original consent. Court will consider in Spokeo is whether could have implemented mechanisms to effec- The takeaway is that companies dealing with Congress may confer Article III standing on tuate a requested revocation without incurring residential landlines should attempt to obtain an individual who suffers no concrete harm undue burdens.”14 A company can send a more expansive consent than required for by simply authorizing a private right of action single text message in response to a specific residential landlines in the event the consumer based on the violation of a federal statute

16 Los Angeles Lawyer December 2015 alone. A negative answer in Spokeo may also be dispositive of certain claims brought under the TCPA and other privacy legislation that Law Firms 4 Sale provides for statutory damages without any showing of harm. Want to retire? Want to plan While the true effect of the order remains for your life after law! to be seen, one thing is clear: Businesses should take heed that the FCC has adopted See Ed Poll’s website an unabashedly proconsumer stance in a - www.lawbiz.com for the tools dres sing these questions, well beyond the you need to make a transition. telemarketing realm, and directly impacting Want to buy a practice? day-to-day business communications. Organi - Ed can help! zations can mitigate risk and avoid costly litigation most effectively by developing prac- Call today 800.837.5880 tical, straightforward internal compliance guidelines for their business units to obtain effective and enforceable prior written consent for any calls or text messages. n

1 In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Declaratory Ruling and Order, F.C.C. 15-72, CG Docket No. 02-278, WC Docket No. 07-135 (adopted June 18, 2015; released July 10, 2015) [hereinafter FCC Order], available at https://www.fcc.gov. 2 The FCC recently acknowledged the increase in class action lawsuits under the TCPA. See F.C.C. Order, supra note 1 at 9, n.26 (United Healthcare Services, Inc., representing to the FCC that 208 TCPA cases were filed in January 2014, an increase of 30% from the previous year). 3 47 U.S.C §227(b)(1)(A); 47 C.F.R. §64.1200(a)(1). 4 Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Report and Order, CG Docket No. 02-278, 18 F.C.C.R. 14014, 14115, ¶165 (2003); Satterfield v. Simon & Schuster, Inc., 569 F. 3d 946 (9th Cir. 2009). 5 TCPA, Report and Order, CG Docket No. 02-278, 27 F.C.C.R. 1830, 1831, ¶34 (2012). 6 The TCPA grants consumers a private right of action, with provision for $500 in statutory damages or the actual monetary loss in damages for each violation, whichever is greater, and treble damages for each willful or knowing violation. 47 U.S.C §227(c)(5). 7 In Re Capital One Telephone Consumer Protection Act Litigation, Case No. 1:12-cv-10064 (N.D. Ill. Dec. 10, 2012). 8 FCC Order, supra note 1. 9 47 U.S.C §227(a)(1). 10 FCC Order, supra note 1, at ¶18. 11 Id. 12 Controlling the Assault of Non-solicited Pornography and Marketing Act, codified at 15 U.S.C. Ch. 103 §§7701-7713. 13 FCC Order, supra note 1, at ¶64. 14 Id. at ¶64, n.233. 15 Id. at ¶106. 16 Id. at ¶72. 17 Id. 18 McKenna v. WhisperText et al., No. 5:14-CV- 00424-PSG, 2015 WL 428728 (N.D. Cal. Sept. 9, 2015). 19 ACA Int’l, et al. v. FCC, No. 15-1211 (D.C. Cir., filed July 13, 2015). Sirius XM Radio, Inc., and the Professional Association of Customer Engagement filed similar petitions, which were consolidated into the ACA International proceeding. Following the consolidation, other companies and organizations have petitioned the court, including the Consumer Bankers Associations and the U.S. Chamber of Commerce. 20 Robins v. Spokeo, Inc., 742 F. 3d 409 (9th Cir. 2014), cert. granted Apr. 27, 2015 (No. 13-1339).

Los Angeles Lawyer December 2015 17 by Cynthia Pasternak Revising Conﬁdentiality The California Law Revision Commission has been tasked with resolving the competing public policy goals of client rights, professional ethics, and mediation conﬁdentiality

MEDIATIONS RESOLVE thousands of resolution of disputes. Bill 2025, which excepted communications disputes that would otherwise clog Cali - The public policy rationale for mediation between a client and his or her attorney dur- fornia’s trial courts. Legislative and judicial confidentiality is so strong that, traditional - ing mediation in actions for legal malpractice, policies favor mediation and settlement.1 ly, the California Supreme Court has been un - breach of fiduciary duty, or professional dis- Con fidentiality is widely recognized as essen- willing to create judicial exceptions to the cipline. In March, the bill was withdrawn. tial to effective mediation because expression mediation confidentiality statutory scheme.10 Previously, in 2012, the legislature by joint of frank views without fear that the com- California courts have upheld the mediation res olution directed the California Law Rev - munication will be used later in litigation is privilege “even in situations where justice ision Commission (CLRC) to analyze the necessary for full participation.2 Mediation seems to call for a different result,”11 such relationship under current law between medi- confidentiality is governed by the Evidence as “where the unavailability of valuable civil ation confidentiality and attorney malpractice Code, which provides that any communica- evidence”12 results in dismissal of claims of or other misconduct, and the purpose and tion made for the purpose of, in the course attorney malpractice or breach of spousal impact of those laws on a variety of public of, or pursuant to, a mediation is inadmissible fiduciary duty.13 Judicial construction of and interests.16 This September the CLRC an- in any subsequent noncriminal proceeding.3 judicial exceptions to mediation confiden- nounced it was in the process of formulating While parties may reveal noncommunicative tiality may be crafted “only where due process a tentative recommendation and asked for conduct in a mediation,4 the statute precludes is implicated, or where literal construction input from representatives of a wide spectrum disclosure of mediation communications or would produce absurd results” that clearly of interests.17 The CLRC’s extensive study a mediator’s assessment of a party’s conduct.5 would defeat legislative intent.14 The Cali - may quell a maelstrom of opposition to its Absent a statutory exception such as fraud, fornia Supreme Court repeatedly has volleyed proposed revisions to the mediation confi- illegality or duress,6 express waiver,7 or due back to the legislature the task of resolving dentiality statutes. While waiting for the process violation,8 mediation participants competing interests and carving out excep- may trust that all communications and writ- tions to mediation confidentiality.15 Cynthia Pasternak is a shareholder at Pasternak ings prepared for and revealed at mediation The legislature’s attempt to alter mediation & Pasternak, ALC, and full-time mediator at ADR are protected against disclosure in future confidentiality, however, has been met with Services, Inc., specializing in personal injury, prod- proceedings, whether or not a case settles.9 substantial opposition. For example, the leg- uct liability, business, employment, healthcare, This trust fosters candid communication and islature postponed the hearing on Assembly real estate, and civil rights. AMANE KANEKO

18 Los Angeles Lawyer December 2015

CLRC’s tentative recommendation and the privilege in legal malpractice cases, Cal i- dentiality by determining in an in-camera hear- legislative response to the recommendation, fornia’s mediation confidentiality statutes ing if the mediator was competent to testify. practitioners can protect themselves, their prohibit disclosure of communications relat- If the mediator denied or did not recall that clients, and the mediation process by drafting ed to mediation proceedings in such cases.25 the victim had made an inconsistent statement clear, precise mediation and settlement agree- In civil actions where the alleged legal mal- or did not recall whether he made the statements that govern the disclosure, partial dis- practice arises from the mediation process, ment, the need for the mediator’s testimony closure, or nondisclosure of communications maintaining mediation confidentiality con- would be eliminated.36 related to the mediation. flicts with the mandatory waiver of attor- The court in Cassel concluded that appli- ney-client privilege.26 cation of the “plain terms” of the mediation Malpractice in Mediation The California Supreme Court addressed confidentiality statutes to the circumstances The California Judicial Council initially this conflict in Cassel v. Superior Court.27 of the malpractice case did not produce a drafted the California mediation confiden- The court in Cassel strictly construed the result “that is either absurd or clearly contrary tiality rules for panel mediators who were mediation confidentiality statutes to preclude, to legislative intent.”37 Justice Ming Chin’s to be utilized under court-ordered mediation in a legal malpractice action, disclosure of concurrence expressed concern that the hold- programs.18 These rules required the mediator attorney-client communications that were ing in Cassel “would effectively shield an to, among other things, comply with laws for the purpose of, in the course of, or pur- attorney’s actions during mediation.…even if applicable to confidentiality, not disclose con- suant to, a mediation.28 The court rejected incompetent or deceptive,” which is a “high fidential communications revealed during the notion that the statutory waiver of attor- price to pay to preserve total confidentiality mediation, and not use confidential informa- ney-client communications in attorney mis- in the mediation process.”38 While not entirely tion for personal gain.19 Later, the legislature conduct cases trumped application of the satisfied that the legislature had “fully con- expanded the scope of mediation through the mediation confidentiality statutes to such sidered whether attorneys should be shielded California Mediation Act of 1997 and created communications, even though the non - from accountability in this way, Justice Ming mediation confidentiality from intertwined disclosure rule resulted in dismissal of the agreed that the court had to “give effect to principles of the duty of a mediator to keep action.29 Absent an express confidentiality the literal statutory language”39 absent express secrets and the need to protect the mediator waiver of particular communications by all waiver or implication of due process. from compelled testimony about these secrets. mediation participants, which includes the The recent decision in Amis v. Greenberg The present version of the mediation con- attorney representing a party in mediation, Traurig40 illustrates the concern that appli- fidentiality statutes followed the recommended the court ruled it was compelled to “apply cation of mediation confidentiality statutes revisions by the CLRC.20 The commission is the plain terms of the mediation confiden- in civil legal malpractice cases shields attorneys formulating a tentative recom mend ation lim- tiality statutes…unless such a result would from accountability. In Amis, the appellate ited in scope to the relationship between medi- violate due process, or would lead to absurd court affirmed the trial court’s ruling that “a ation confidentiality and alleged attorney results that clearly undermine the statutory malpractice plaintiff cannot circumvent medi- misconduct in a professional capacity in the purpose.”30 Since the case did not involve a ation confidentiality by advancing inferences mediation process, including “legal malprac- situation “that extreme,” the court held the about his former attorney’s supposed acts or tice, and other attorney misconduct, partic- statute’s terms governed, even though appli- omissions during an underlying mediation.”41 ularly in the mediation process.”21 cation of the confidentiality statutes would Amis was a minority shareholder and officer Mediation confidentiality statutes include compromise the ability to prove a claim of in Pacific Marketing Works, a company that mediators in the sphere of confidentiality legal malpractice.31 exported women’s apparel to Japan. Pacific that extends to attorney-client communi - The court reasoned that application of had been engaged in litigation when one of ca tions. Mediation confidentiality statutes, the mediation confidentiality statutes to the Greenberg Traurig’s Japan ese clients became how ever, were not intended to protect or to circumstances of the alleged legal malpractice interested in acquiring Pacific’s assets. Because regulate attorney-client communications. action did not implicate due process concerns the law firm’s Japan ese client wanted the lit- Cal i fornia’s Business and Professions Code so fundamental so as to warrant an exception igation settled before proceeding with its pur- creates a very restrictive duty imposed on an of constitutional grounds. Relying on a quar- chase of Pacific, Amis and other parties agreed attorney to “maintain inviolate the confi- tet of prior decisions, the court concluded to be represented by the firm at the Japanese dence, and at every peril to himself or herself that the premise of each case was that the company’s expense. to preserve the secrets, of his or her client.”22 mere loss of evidence necessary to prosecute At mediation, the preexisting dispute set- The scope of the attorney-client privilege is a civil action for damages does not implicate tled with Amis and other individual parties so great that the only statutory exception to a fundamental due process interest.32 agreeing to individually pay $2.4 million the attorney’s duty of confidentiality grants The court distinguished Rinaker v. Superior over time and stipulating to an accelerated lawyers limited discretion, after warning the Court33 as a case in which due process out- judgment in the event of default. Greenberg client, to disclose client confidential infor- weighed mediation confi dentiality.34 Rinaker Traurig’s Japanese client, however, backed mation if the attorney “reasonably believes held the testimony of a mediator could be out of the deal with Pacific, leaving it no the disclosure is necessary to prevent a crim- compelled to protect the constitutional right funds to pay the settlement. The plaintiff in inal act that the attorney reasonably believes of confrontation and impeachment of juveniles. the underlying action proceeded to enforce is likely to result in death of, or substantial The victim obtained a temporary restraining its settlement. Amis filed bankruptcy and sued bodily harm to, an individual.”23 order presumably based upon an affidavit Greenberg Traurig for malpractice. The court The statutory waiver provision of Section identifying the juveniles as the perpetrators of appeal affirmed the trial court’s granting 958 of the Evidence Code, on the other hand, of the vandalism. In a subsequent proceeding, summary judgment in favor of Green berg creates a bar to the attorney’s duty to maintain the juveniles’ offer of proof established that Traurig on the basis that all of the alleged inviolate the confidence of a client in cases during mediation, the victim made an incon- malpractice occurred during mediation so alleging a breach of a duty arising out of the sistent statement to the effect that he could application of mediation confidentiality pre- attorney-client relationship.24 While Section not identify the perpetrators.35 The court ruled vented admission of any evidence against the 958 mandates waiver of the attorney-client that the juvenile court could preserve confi- law firm.42

20 Los Angeles Lawyer December 2015 Amis is the appellate court’s most recent memoranda comparing statutes, the law of of confidentiality are: 1) confidentiality pro- call to the legislature for dictates on exceptions other jurisdictions,50 scholarly contributions, motes candor in mediation, 2) candid dis- to mediation confidentiality. While California and other sources to “compare and contrast cussion leads to successful mediation, 3) suc- courts will not disturb the statutory mediation the merits of various approaches.”51 In under- cessful mediation encourages future use of confidentiality protection in civil actions even taking its review of mediation confidentiality mediation to resolve disputes, and 4) the use against due process challenges based on loss and its interaction with attorney malpractice of mediation to resolve disputes is beneficial of crucial evidence absent an express waiver, and other misconduct, the CLRC has consid- to society.56 a federal trial court in the Central District ered what mediation confidentiality is and The components of the policy analysis of California case did so in Milhouse v. Trave- what secrets are being protected. The definition against mediation confidentiality are: 1) con- lers Commercial Insurance Company.43 The of “secret” is “a piece of information that is fidentiality may deprive a party of evidence court in Milhouse recognized a “due process” not generally known or is not known by some- of attorney misconduct, 2) confidentiality may exception to mediation confidentiality in a one else and should not be told to others.”52 result in exclusion of relevant evidence thereby subsequent insurance bad faith case and al - A secret is a confidential matter or private causing attorney misconduct to continue and lowed introduction of evidence of the ex - affair, as opposed to something that is open go unpunished, 3) allowing attorney miscon- change of offers and demands made during or publicly known. duct to go unpunished may undermine attor- an unsuccessful mediation. The court also Often, mediation briefs describe informa- ney-client relations and the administration of ruled admissible allowed evidence re vealed tion that has already been disclosed through justice, and 4) allowing attorney misconduct in mediation to substantiate the insurance correspondence, depositions, and other forms to go unpunished may chill future use of medi- company’s argument that the plaintiffs had of discovery, and the information is labeled ation and deprive the state of its benefits.57 waived mediation confidentiality. The court in the mediation briefs as confidential. To It is to be hoped that the CLRC’s tentative concluded that, even absent waiver, due the extent that such information may at one recommendation will not complicate the infor- process compelled disclosure of evidence that time have been a privileged secret, the public mal mediation process with a plethora of rules presumably established that the Mil houses disclosure of such information waives any and regulations or, even worse, impose such made extravagant and unreasonable demands right to confidentiality at mediation or at harsh confidentiality restrictions that the medi- during mediation. The court reasoned the any other time. ation process is entirely dismantled. The focus due process right of the insurance company The CLRC’s tentative recommendation should be on mediation situations in which to defend itself was an exception to the medi- should give consideration to what constitutes parties are coerced into settlement, not simply ation confidentiality statutes, citing, without waiver and the extent to which an ex press where parties are exposed to typical negotiation discussion, the Cassel decision, which, as writ ten waiver is required. The Evidence Code53 techniques that often include “unreasonable” noted earlier, had rejected a similar due provides that if a significant part of a comun- demands and offers. process argument in a civil legal malpractice i cation is voluntarily disclosed or consent ed The client in any case is the ultimate boss action. Milhouse presently is pending appeal to disclosure by the holder of the privilege, and decision maker. If the proposed settlement before the Ninth Circuit.44 The precedential the evidentiary privilege is impliedly waived. is inadequate, the affected party should not value of Milhouse in diversity cases has been The implied waiver concept has not been settle. To make this or any important legal questioned by a federal district court in applied to mediation confidentiality, however, decision, the client should be given adequate Northern District of California.45 because the mediation confidentiality statutes information upon which to make an educated require express waiver. choice to accept or refuse a proposal. This CLRC Studies the Conflict The CLRC has noted that courts and principle of informed consent originates from The due process judicial exceptions to medi- com mentators loosely use the term mediation the legal and ethical right of the client to direct ation confidentiality statutes are derived from confidentiality to refer one or more of the what happens in the case and the attorney’s disclosures that are regarded as criminal and following categories of protection for medi- ethical duty to involve the client in these deci- quasi-criminal in nature or rely on express ation communications: 1) a rule making medi- sions.58 The CLRC’s recommendation should waiver. To further the interests of reasonable- ation communications inadmissible in sub- address postmediation disputes. Parties should ness and fairness, expansion of some excep- sequent legal proceedings, 2) a rule preventing be encouraged to submit any postmediation tions to mediation confidentiality are war- compelled discovery of mediation commu- disputes to further mediation and binding ranted. In formulating a recommendation, nications in subsequent legal proceedings, 3) arbitration. This will help participants obtain the legislature identified competing interests an agreement or rule providing that mediation closure and avoid prolonged litigation. for the CLRC to consider: public protection, communications must be kept confidential Interim Measures professional ethics, attorney discipline, client and not disclosed to anyone (i.e., true confi- rights, the willingness of parties to participate dentiality), 4) a rule precluding a mediator While waiting for the CLRC’s tentative rec- in voluntary and mandatory mediation, “as from testifying about a mediation, and 5) a ommendation and subsequent legislation, well as any other issues the commission deems contractual agreement among mediation par- practitioners can take steps to minimize medi- relevant.”46 ticipants to keep their communications and ation confidentiality litigation. The most log- The CLRC limited the scope of the study mediation-relation documents confidential.54 ical approach is to incorporate mediation and the recommendation47 to “the relation- The CLRC believes the term “mediation protections into pre- and postmediation agree- ship between mediation confidentiality and confidentiality” may better be applied to ments. Here are some suggestions. alleged attorney misconduct in a professional “true mediation confidentiality,” which is il- To satisfy informed consent obligations capacity in the mediation process, including, lustrated by category three above. The CLRC to a client, prior to mediation the attorney but not limited to, legal malpractice.”48 The proposes that the term “protection of medi- and client should sign a document that iden- CLRC concluded that the legislature did not ation communications” should be used to tifies the risks of mediation, states they have intend it to “go further” to reach mediator encompass all five categories of protection.55 been discussed, indicates the client agrees to malpractice, other mediator professional mis- The CLRC identified four premises that drive voluntarily accept these risks, and either con- conduct, or the misconduct of other profes- the policy argument for and against mediation tains an express waiver providing that medi- sionals.49 The CLRC has published staff confidentiality. The policy factors in favor ation communications may be introduced

Los Angeles Lawyer December 2015 21 into evidence in future proceedings or an 4 Foxgate, 26 Cal. 4th at 18 n.14. 29 Id. at 118 (“We have repeatedly said that these express prohibition against such disclosure. 5 Id. at 17. confidentiality provisions are clear and ab solute...” 6 VID ODE except in rare cases, mediation confidentiality provisions Once a case is resolved at mediation, with E . C §1124(c). 7 Cassel v. Superior Court, 51 Cal. 4th 113, 127 n.6 must be strictly applied and do not permit judicially rare exception, a settlement agreement should (2011) (citing EVID. CODE §1124(b)). See also Simmons crafted exceptions.”); cf. Simmons v. Superior Court, be drafted immediately and signed by all par- v. Ghaderi, 44 Cal. 4th 570, 579 (2008) (citing EVID. 44 Cal. 45th 570, 582 (2008) (“Except in cases of ticipants. Typical terms include payments, CODE §§1122, 1124 (evidence of oral settlement agree- express waiver or where due process is implicated, we dismissals, releases of liability, confidentiality ment inadmissible because there was no form of recor- have held that mediation confidentiality is to be strictly clauses, that the agreement itself may be dation of the oral agreement, no written settlement enforced.”). agreement signed by both parties, and no express agree - 30 Id. at 119. introduced into evidence and other relevant ment that agreement could be disclosed)); Eisendrath 31 Id. considerations. Relevant considerations in - v. Superior Court, 109 Cal. App. 4th 351 (2003) (medi- 32 Id. at 135 (citing Foxgate Homeowner’s Ass’n v. clude provisions in the settlement agreement ation privilege cannot be impliedly waived); cf. Olam Bramalea Cal., Inc., 26 Cal. 4th 1 (2001); Rojas v. stating that the parties entered into resolution v. Congress Mortg. Co., 68 F. Supp. 2d 1110 (N.D. Superior Court, 33 Cal. 4th 407 (2004); Fair v. freely, voluntarily, without duress or coercion, Cal. 1999) (waiver). Bakhtiari, 40 Cal. 4th 189 (2006); Simmons v. Ghaderi, 8 Rinaker v. Superior Court, 62 Cal. App 4th 155 44 Cal. 4th 570 (2008)). and with the advice of counsel. To the extent (1998) (minors accused of vandalism compelled testi- 33 Rinaker v. Superior Court, 62 Cal. App. 4th 155, that certain secrets were disclosed and formed mony of mediator who mediated victim’s prior civil 167 (1998). a basis for resolution, the agreement should harassment action in which victim admitted he did 34 Cassel, 51 Cal. 4th at 127. state the specific findings on all agreed issues not see who committed vandalism). 35 Rinaker, 62 Cal. App. 4th at 165-67. and include the parties’ signatures or initials 9 EVID. CODE §1119; Cassel, 51 Cal. 4th at 117. 36 Id. at 170. The court also noted the juvenile court 10 See, e.g., Foxgate Homeowner’s Ass’n v. Bramalea could assess the inconsistent statement’s probative to each finding. To manage disclosure of evi- Cal., Inc., 26 Cal. 4th 1, 4, 15 (2001) (Strong legislative value for impeachment: if the mediation circumstances dence obtained during mediation, the agree- public policy of promoting mediation and applicable are untrustworthy in the sense that they were made ment should include the protective orders, statutes bar disclosure of communications made during for the purpose of compromise rather than as true in camera hearings, and similar procedures mediation absent an express statutory exception.); Rojas allegations of the minors’ conduct, the constitutional to be followed. This allows for protection v. Superior Court, 33 Cal. 4th 407 (2004); Fair v. need for the evidence would not outweigh the public of a client’s interests in keeping information Bakhtiari, 40 Cal. 4th 189 (2006); Simmons v. Ghaderi, interest in mediation confidentiality. Id. at n.6. 44 Cal. 4th 570 (2008); Cassel, 51 Cal. 4th at 118. 37 Id. at 136. confidential and for consideration of a rele- 11 Amis v. Greenberg Traurig, LLP, 235 Cal. App. 38 Id. at 138-40. vant claim or defense by another party. To 4th 331 (Mar. 18, 2015), cert. denied, 2015 Cal. 39 Id. at 139. protect the clients’ interests, the agreement LEXIS 4622 (June 24, 2015); accord Wimsatt v. 40 Amis v. Greenberg Traurig, LLP, 235 Cal. App. should include a requirement that all medi- Superior Court, 152 Cal. App. 4th 137 (2007). 4th 331 (Mar. 18, 2015), cert. denied, 2015 Cal. 12 ation participants consent to an express waiv - Cassel, 51 Cal. 4th at 136. LEXIS 4622 (June 24, 2015). 13 See Amis, 235 Cal. App. 4th at 338 (malpractice); 41 Id. at 332. er of mediation communications in the event Marriage of Woolsey, 330 Cal. App. 4th 881 (2014), 42 Id. of a subsequent attorney misconduct allega- cert. denied, 2014 Cal LEXIS 167 (Cal. Jan. 15, 2014); 43 Milhouse v. Travelers Commercial Ins. Co., 982 F. tion. Finally, to keep the mediation process Marriage of Kieturakis, 138 Cal. App. 4th 56 (2006) Supp. 2d 1088 (2013). simple—as it was intended to be—the agree- (breach of spousal fiduciary duty and settlement agree- 44 Id. at 1108. 45 ment should include a provision that all par- ment). Silicon Storage Tech., Inc. v. National Fire Ins. Co., 14 Cassel, 51 Cal. 4th at 124. 2015 U.S. Dist. LEXIS 92775 (summarizing cases in ticipants agree to submit any postmediation 15 Id. the Ninth Circuit that applied California’s meditation disputes to further mediation and binding 16 California Law Revision Commission, Staff Mem - privilege in diversity jurisdiction cases and rejected arbitration. orandum 2015-34: Study K-402: Relationship between application of Federal Rule 408(b), which allows evi- Confidentiality is necessary for effective Mediation Confidentiality and Attorney Malpractice dence of mediation communication to prove a witness’s and conclusive mediation results. While the and Other Misconduct: Scope of Study (July 31, 2015) bias or prejudice, to negate a contention of undue legislature struggles with how best to weigh [hereinafter Memorandum 2015-34] (citing 2012 Cal. delay, or to prove an effort to obstruct a criminal Stat. Res. Ch. 108). investigation or prosecution). competing interests—a process that could 17 California Law Review Commission, Memorandum 46 2012 Cal. Stat. Res. Ch. 108. take years—mediation participants need to 2015-46: Study K-402: Relationship between Mediation 47 Memorandum 2015-34, supra note 16. protect themselves to the fullest extent pos- Confidentiality and Attorney Malpractice and Other 48 Id. at 8. sible through written documentation, signed Misconduct: Public Comment (Sept. 9, 2015), available 49 Id. at 4, 5, 8. 50 prior to and at mediation, which details how at http://www.clrc.ca.gov/K402.html. The CLRC invit - In 2001, the National Conference of Commissioners ed commentary from experts, interested parties, rep- on Uniform State Laws (now the Uniform Law Com - to handle future confidentiality considera- resentatives of the California Supreme Court, the Cal - mission) approved the Uniform Mediation Act (UMA). tions. Clearly written mediation and settle- ifornia State Bar, the legal malpractice defense bar, In 2003, the UMA was amended to include commercial ment agreements best protect attorneys and and other attorney groups, individuals, mediators, mediation. their clients against postmediation disputes. mediation trade associations, mediation parties, and 51 California Law Revision Commission, Staff Mem - Waiting until malpractice or other misconduct other mediation participants, cautioning all to “be orandum 2014-14: Study K-402: Relationship between mindful of existing constraints on disclosures of medi- Mediation Confidentiality and Attorney Malpractice allegations are raised may be too late. n ation communications and materials.” Id. and Other Misconduct: Law in Other Jurisdictions 18 See generally CAL. R. CT. DIV. 8 CH. 3: General (Apr. 7, 2014) [hereinafter Law in Other Juris dic - 1 CODE CIV. PROC. §1775(a). Rules Relating to Mediation of Civil Cases. tions]. 2 Foxgate Homeowner’s Ass’n v. Bramalea Cal., Inc., 19 CAL. R. CT. 3.854. 52 AMERICAN ENGLISH DICTIONARY (2015). 26 Cal. 4th 1, 17 (2001); CALIFORNIA LAW REVISION 20 Cassel v. Superior Court, 51 Cal. 4th 113, 123 53 EVID. CODE §912. COM MISSION, RECOMMENDATION: MEDIATION CON - (2011) (legislature adopted current version of mediation 54 Law in Other Jurisdictions, supra note 51, at 4. FIDENTIALITY 413 (Jan. 1997), available at http://www confidentiality statutes pursuant to recommendation 55 Id. at 5. .clrc.ca.gov; see also Cassel v. Superior Court, 51 Cal. from CLRC). 56 California Law Revision Commission, Staff Mem - 4th 113 (2011). 21 Memorandum 2015-34, supra note 16, at 8. orandum 2014-06: Study K-402: Relationship between 3 See generally EVID. CODE §§1115-1128; EVID. CODE 22 BUS. & PROF. CODE §6068(e). Mediation Confidentiality and Attorney Malpractice §1119(a)-(c) (confidentiality); EVID. CODE §§1121 (pre - 23 CAL. RULES OF PROF’L CONDUCT R. 3-100(c). and Other Misconduct: Preliminary Analysis of Rele - cluding disclosure of a mediator’s report, assessment, 24 EVID. CODE §958. vant Policy Interests 4 (Feb. 3, 2014). evaluation, recommendation, or finding of any kind 25 See generally EVID. CODE §§1115-1128. 57 Id. at 9. concerning a mediation conducted by the mediator, 26 EVID. CODE §958. 58 CAL. RULES OF PROF’L CONDUCT 3-100; Commercial unless mandated by court rule, law, or expressly agreed 27 Cassel v. Superior Court, 51 Cal. 4th 113 (2011). Standard Title Co. v. Superior Court, 92 Cal. App. to by all parties to the mediation). 28 Id. (citing EVID. CODE §1119(a), (b)). 3d 934, 945 (1979).

22 Los Angeles Lawyer December 2015 MCLE ARTICLE AND SELF-ASSESSMENT TEST By reading this article and answering the accompanying test questions, you can earn one MCLE credit. To apply for credit, please follow the instructions on the test answer sheet on page 25.

by Brenda K. Radmacher and Joel C. Gerson TROUBLE AT SCHOOL For-proﬁt career colleges have faced suits and investigations for misleading advertising, predatory lending, and inﬂated job placement numbers

THE FOR-PROFIT career college industry nationally represents manner, or engaged in prohibited business practices, such as promising more than 1,000 colleges and institutions, over 12 percent of the or guaranteeing employment upon graduation. Section 94897(b) higher education enrollment.1 In recent years, however, some for- specifically states that institutions shall not “promise or guarantee profit career colleges have been under fire. In 2009, the U.S. employment, or otherwise overstate the availability of jobs upon Government Accountability Office conducted an investigation into graduation.”3 the enrollment practices of for-profit career colleges and found that As a representative example, in 2012, students filed a class action at least four out of 15 colleges “encouraged fraudulent practices.”2 lawsuit against the United Education Institute (UEI) alleging violations The U.S. Department of Education and state attorneys general in a of various sections of the California Education Code and Business number of states—including California, Massachusetts, and Florida— and Professions Code based upon misrepresentations about student have investigated and pursued claims for misleading advertising and prospects of receiving “a well-paying job upon graduation.”4 The inflating job placement numbers, among others. students alleged that UEI represented that it “employed skilled and In addition to battling claims on the regulatory and prosecutorial aggressive career services personnel that would work extensively front, for-profit career colleges have faced a number of claims by with [students]” in postgraduate job searches.5 The students claimed current and former students alleging misrepresented job placement that they remained jobless after graduation and, as a result, were rates and other statistics. These students have asserted causes of action unable to pay off federal student loans.6 The parties stipulated to for fraud, negligent misrepresentation, and unfair business practices. binding arbitration pursuant to the arbitration clause in the enrollment In California, many of the student claims are based on Section agreement. In January the class was certified and defined as all 94800 of the California Education Code and Sections 17200 and students who graduated from UEI’s California campuses on or after 17500 of the Business and Professions Code, which is where the Private Postsecondary and Vocational Education Reform Act of 2009 Brenda K. Radmacher is a partner with Wood, Smith, Henning & Berman is codified. The act provides rules for when and how most schools LLP and counsel in the firm’s construction, commercial litigation, real estate, can operate, as well as a list of approved and prohibited business and environmental/toxic tort departments. Joel C. Gerson is an associate in practices. Students asserting claims under section 94800 generally the firm’s litigation department, specializing in public entity defense, en - allege that the school they attended either operated in an unapproved vironmental law, premises liability, toxic tort, and professional liability.

Los Angeles Lawyer December 2015 23 October 15, 2008, and enrolled before August misrepresentation tend to claim that the its subsidiaries for misrepresenting job place- 22, 2013, and, within six months of gradu- school made misrepresentations to them ment rates to students and investors, false ation, did not find employment working at through a school’s advertisements, website, advertising, and unlawful enrollment provi- least 32 hours per week in a single position or recruiters. To prove negligent misrepre- sions barring student claims.23 The complaint within their field of study.7 sentation students must show that 1) the accused Corinthian of marketing false adver- In addition to claims under the Education school misrepresented a fact, 2) the school tisements to potential students that were “iso- Code, students frequently allege claims under had no reasonable ground for believing the lated,” “impatient,” individuals with “low Business and Professions Code Sections 17200 fact to be true, 3) the school intended to self-esteem,” and to students who have “few and 17500. Section 17200 prohibits unfair induce the students’ reliance on the misrep- people in their lives who care about them” competition by prohibiting any “unlawful, resented fact, 4) the students reasonably relied and who are “stuck” and “unable to see and unfair or fraudulent business act or practice” on the misrepresentation, and 5) the students plan well for the future.”24 These allegations and any “unfair, deceptive, untrue or mis- were harmed.16 The main difference between were made to show the predatory tactics. In leading advertising.”8 Section 17500 specifi- a fraud and negligent misrepresentation claim addition, Corinthian allegedly used military cally prohibits untrue or misleading advertising is that negligent misrepresentation does not symbols to attract veterans. The claims in the that is known, or which reasonably should require an element of scienter or intent. case were that Corinthian specifically targeted be known, to be untrue or misleading.9 In Goehring v. Chapman University, three students who would be less likely to complete In 2004, for example, a student filed a Chapman University law students from the the program or who might be more easily class action lawsuit against Microskills San school’s inaugural class alleged both fraud swayed to enter the program based on the Diego L.P. (Microskills), accusing the post- and negligent misrepresentation claims against representations of the job placement rates. secondary vocational school of using outdated their former school. The students claimed In 2014, following this complaint, the statistical information to induce potential that Chapman University Law School did Consumer Financial Protection Bureau sued students into believing that the high-tech not fully disclose its ABA accreditation Corinthian for predatory lending against its industry was booming with high-paying jobs process and falsely represented that students students and illegal debt collection.25 Two available to its graduates.10 The complaint would be eligible to sit for the California bar years before that, Corinthian had drawn the alleged that Microskills did not provide accu- exam without accreditation.17 However, the attention of the U.S. Senate’s Health, Edu - rate information of postgraduate employment students failed to satisfy the damages elements cation, Labor, and Pension Committee, which rates, thereby misleading students.11 Micro - for their causes of action because they were studied the enrollment, retention rates, and skills moved to compel arbitration, which unable to prove that their damages were profits of for-profit universities.26 The com- was denied, and lost on appeal.12 In 2006, directly related to their reliance on the rep- mittee’s study concluded “Corinthian charges Microskills closed its doors, leaving over 100 resentations made by Chapman University.18 some of the highest tuition prices,” yet it was students with no option to complete their While fraud and misrepresentation claims “unclear whether taxpayers or students [were] degrees. In 2007, the California attorney gen- have been difficult to establish against for- obtaining value from the $1.7 billion investment eral and the San Diego district attorney’s profit career colleges, claims under other that taxpayers made in Corinthian in 2010.”27 office filed a complaint against Microskills statutes have been successful. In Spielman v. The U.S. Department of Education there- alleging unfair business practices pursuant Ex’pression Center for New Media, for exam- after began financially monitoring Corin - to Sections 17200 and 17500.13 In 2008, the ple, students sued their former school under thian. Because of the department’s interven- company settled and agreed to pay $300,000 the now-repealed Private Postsecondary and tion, Corinthian was forced to sell a dozen in restitution to 71 students.14 Vocational Education Reform Act of 1989.19 of its campuses and to close 85 more.28 In In conjunction with these statutory claims, The act prohibited private postsecondary edu- April, Corinthian closed the remainder of its students have alleged common law claims of cational institutions from misrepresenting campuses, leaving 16,000 students displaced. fraud and negligent misrepresentation. Fraud their business in statements made to students.20 Corinthian has since filed for chapter 11 generally occurs when someone gains some- Rather than reading all the elements of com- bankruptcy, which has effectively stayed lit- thing of value, usually money or property, mon law misrepresentation into the statute, igation against the school.29 As a result, the by knowingly making a false representation the court allowed for a remand so that the Department of Education instituted a federal of a material fact to another individual. To students’ claims could be interpreted under loan forgiveness program to help relieve the succeed on a fraud claim, a student must the plain meaning of the statute.21 The court financial burden on the students affected by prove: 1) the school made a representation noted that its own conclusion is “buttressed the closing of Corinthian’s campuses.30 to the student that was materially false, 2) by the fact that there are similar statutes… Effectively Preventing Student Claims the school knew that the representation was which have been found not to include the false when made, or that it made the repre- elements of common law fraud unless those The case of Corinthian Colleges is an extreme sentation recklessly and without regard for elements are made express in law.”22 example of what can happen to for-profit its truth or falsity, 3) the school intended to career colleges that mislead students with Corinthian Colleges Case Study defraud the student or to induce the student’s aggressive marketing and deceptive adver- reliance, 4) the student reasonably relied on By understanding the statutory and common tising. However, there are many more career the representation, and 5) the student was law claims brought by students, for-profit colleges and schools in the business of pro- harmed.15 Students that have alleged fraud career colleges can be better equipped to take viding quality trade and technical skills to against a for-profit college or vocational preventative measures to avoid these claims. students who need them. Those schools can school typically claim that a college counselor Educators can also learn from the travails learn from the Corinthian example and some misrepresented future job prospects to them of other institutions, such as Corinthian Col - simple strategies to avoid claims by students. before they started at the school. leges. Founded in 1995, Corinthian was a First, schools should strive to be open Negligent misrepresentation occurs when profitable educational institution with more and honest with students about their chances a party asserts a fact that is not true and for than 100 college campuses. However, in of graduating and finding a full-time job. It which it has no reasonable ground for believ- October 2013, the California Attorney Gen- is imperative to establish transparency with ing to be true. Students asserting negligent eral filed a complaint against Corinthian and students at the outset in order to establish

24 Los Angeles Lawyer December 2015 MCLE Answer Sheet #252 MCLE Test No. 252 TROUBLE AT SCHOOL

The Los Angeles County Bar Association certifies that this activity has been approved for Minimum Name Continuing Legal Education credit by the State Bar of California in the amount of 1 hour. Law Firm/Organization

1. The U.S. Government Accountability Office will not 12. The main difference between fraud and negligent Address interfere with the practices of for-profit career colleges. misrepresentation is that fraud requires an element True. of scienter. City False. True. State/Zip False. E-mail 2. Students commonly bring claims against schools Phone under the Business and Professions Code. 13. A student is able to sue a former school even if he State Bar # True. or she is not a current student at that school. False. True. INSTRUCTIONS FOR OBTAINING MCLE CREDITS False. 3. The California Education Code provides guidelines 1. Study the MCLE article in this issue. for how schools can operate. 14. The Consumer Financial Protection Bureau may 2. Answer the test questions opposite by marking True. protect the interests of students against predatory the appropriate boxes below. Each question has only one answer. Photocopies of this False. lending and illegal debt collection. answer sheet may be submitted; however, this True. form should not be enlarged or reduced. 4. A school cannot be disciplined for overstating the False. 3. Mail the answer sheet and the $20 testing fee availability of jobs upon graduation. ($25 for non-LACBA members) to: 15. True. The U.S. Senate’s Health, Education, Labor, and Los Angeles Lawyer False. Pension Committee studies the enrollment, retention MCLE Test rates, and profits of for-profit universities. P.O. Box 55020 5. A school can freely advertise truthful information True. Los Angeles, CA 90055 about graduation rates and prospects for employment. False. Make checks payable to Los Angeles Lawyer. True. 4. Within six weeks, Los Angeles Lawyer will False. 16. California state-funded schools are not required return your test with the correct answers, a to comply with California’s record management pro- rationale for the correct answers, and a certiﬁcate verifying the MCLE credit you earned 6. Student claims against a school for unfair business gram. through this self-assessment activity. practices can lead to a school’s closing. True. 5. For future reference, please retain the MCLE True. False. test materials returned to you. False. 17. Schools should make statistics easily available to ANSWERS 7. Schools are permitted to advertise information that prospective students regarding tuition costs, graduation Mark your answers to the test by checking the appropriate boxes below. Each question has only they reasonably could know may be misleading. rates, and hiring opportunities. one answer. True. True. False. False. 1. n True n False 8. A student can bring both statutory and common 18. Schools should only maintain records for one year 2. n True n False law claims against a school. in case a claim is later brought against them. 3. n True n False True. True. 4. n True n False False. False. 5. n True n False 6. n True n False 9. In order to succeed on a claim for fraud, a student 19. In Goehring v. Chapman University, the student 7. True False does not need to prove that the school knew that the claimants were able to succeed on their causes of n n representation it was making was false. action despite their inability to prove that their damages 8. n True n False True. were directly related to their reliance on representations 9. n True n False False. made by the school. 10. n True n False True. 11. n True n False 10. In order to succeed on a claim of negligent mis- False. 12. n True n False representation, a student does not need to prove that the school intended to induce the student’s reliance. 20. Both the California Code of Regulations and the 13. n True n False True. Code of Federal Regulations govern record retention. 14. n True n False False. True. 15. n True n False False. 16. n True n False 11. In order to succeed on a claim of negligent mis- 17. n True n False representation, a student does not need to prove that he or she was harmed. 18. n True n False True. 19. n True n False False. 20. n True n False

Los Angeles Lawyer December 2015 25 trust and to avoid unnecessary student claims. lished a Negotiated Rulemaking Committee cation Code and Code of Regula tions, as well This can most simply be done by making on Gainful Employment to prepare proposed as Code of Federal Regulations, include sec- statistics regarding student costs, graduation regulations that establish standards for pro- tions governing record retention.33 rates, and hiring opportunities easily available grams that prepare students for gainful em - The rising trend of student and agency on the school website, in advertising materials, ployment in a recognized occupation.31 claims against for-profit career colleges poses and elsewhere. Finally, one of the most important steps a risk of which schools should be wary. By Second, schools should maintain a strong in preventing student claims is to maintain understanding the current climate surround- training program that instructs counselors complete records. Having hard documenta- ing for-profit career colleges, common claims, and marketers on what they can and cannot tion of the practices and procedures of the and engaging in appropriate preventative say. Since many of the claims involve a coun- school will go leagues in helping prove that measures, schools can place themselves in a selor’s guaranteeing job placement or par- the school abided by state and federal laws. strong position to effectively manage the risk ticular job outcomes, schools must stress to Schools should have an organized document that student claims present. n counselors the importance of avoiding over - retention policy, including electronic docu- blown promises. Schools should retain doc- ments, so that these documents may be pre- 1 THE CONDITIONOF EDUCATION, NAT’L CTR. FOR umentation of the training process. served for electronic discovery if litigation EDUC. STATISTICS (May 2015) available at http://nces Third, schools should have students sign appears imminent. Schools should maintain .ed.gov. 2 FOR-PROFIT COLLEGES: UNDERCOVER TESTING FINDS an acknowledgement before enrolling that records for at least four years, since this is COLLEGES ENCOURAGED FRAUDAND ENGAGEDIN they understand their counselor is not guar- the point at which claims of fraud and breach DECEPTIVE AND QUESTIONABLE MARKETING PRACTICE, anteeing them a job. The acknowledgement of contract expire. If a student has not filed U.S. GOVERNMENT ACCOUNTABILITY OFFICE (Aug. 4, should include language that shows the stu- a lawsuit within three years of the date of the 2010), available at http://www.gao.gov. dent was not relying on any other form of alleged fraud (or four years in the case of a 3 EDUC. CODE §94897. 4 advertisement when enrolling. This will help breach-of-contract claim), then he or she is Cordova, et al. v. United Educ. Inst., No. 37-2012- 00083573-CU-BT-CTL, 2012 WL 5193823 passim preclude claims under the California Educa - bar red from bringing that claim. Schools should (San Diego Super. Ct. Oct. 15, 2012) (Cross-Action tion Code as well as allegations of negligent also stay current on statutory record re ten- Complaint for Damages, Injunctive Relief, and misrepresentation. t ion requirements. California state-fund ed Restitution). Fourth, schools should also regularly refer schools are required to comply with Cali- 5 Id. 6 to state and federal enforcement agencies fornia’s record management program in order Id. 7 Cordova, et al. v. United Educ. Inst., No. 37-2012- such as the Bureau for Private Postsecondary to “apply efficient and economical manage- 00083573-CU-BT-CTL, 2012 WL 5193823 passim Education for important updates and pro- ment methods to the creation, utilization, (San Diego Super. Ct. Feb. 1, 2013) (Siptulation for posed regulations to ensure compliance. The maintenance, retention, preservation and dis- Binding Arbitration and Stay of Action and [Proposed] U.S. Department of Education has also estab- posal of state records.”32 The Cali fornia Edu - Order Thereon).

26 Los Angeles Lawyer December 2015 8 CAL. CODE REGS. tit. 6, §17200. This section expands the reach of government agencies monitor the advertising claims by colleges and vocational schools by providing that a government agency can seek recovery on behalf of the students for false advertising. See also CAL. CODE REGS. tit. 6, §76212. 9 The Education Code also prohibits the use of certain advertising and marketing schemes, such as soliciting students for enrollment by publishing a “help wanted” column or using “blind” advertising that fails to identify the institution. See EDUC. CODE §94897. 10 Gilchrist v. Microskills San Diego L.P., 2004 WL 5656978, at *2 (Complaint for BUS. & PROF. CODE §§17200, 17500: Restitution and Injunctive Relief Based on Violation of the California Education Code, Misrepresentation). 11 Id. at *3. 12 See Smith v. Microskills San Diego L.P., 153 Cal. App. 4th 892 (2007). Microskills argued that it was a third-party beneficiary of the arbitration provisions of the Sallie Mae note. 13 See generally California v. Memarzadeh, et al. (2007) (Complaint for Injunction, Civil Penalties and Other Equitable Relief), available at https://aog.ca.gov /system/files/attachments/press_releases/2007-05-05 _Microskillscomplaint.pdf. 14 Press Release, DA Reaches Settlement with Micro - skills Vocational School; Students paid Restitution, Office of the District Attorney County of San Diego (Sept. 16, 2008), available at http://www.sdcda.org. 15 Small v. Fritz Cos., Inc., 30 Cal. 4th 167, 173 (2003). 16 Fox v. Pollack, 181 Cal. App. 3d 954, 962 (1986). 17 Goehring v. Chapman U., 121 Cal. App. 4th 353, 360 (2004). 18 Id. at 366. 19 Spielman v. Ex’pression Ctr. for New Media, 191 Cal. App. 4th 420 (2010), as modified (Dec. 30, 2010). 20 Id. at 428. 21 Id. at 433. 22 Id. at 432. See, e.g., CORP. CODE §§25110, 25120, 25130, 25503, 25400(d), 25500. 23 California v. Heald College, LLC, et al., 2013 WL 5576241, at *1 (Complaint for Civil Penalties, Perm - anent Injunction, and Other Equitable Relief). 24 Id. at *3. 25 Consumer Fin. Prot. Bureau v. Corinthian Colleges, Inc., No. 14-7194 (E.D. Ill.) (Complaint for Permanent Injunction and Other Relief). 26 SENATE COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS, Executive Summary, FOR PROFIT HIGHER EDUCATION: THE FAILURE TO SAFEGUARD THE FEDERAL INVESTMENT AND ENSURE STUDENT SUCCESS, SENATE.GOV (2012), available at http://www.help.senate.gov. 27 SENATE COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS, Corinthian Colleges, FOR PROFIT HIGHER EDUCATION: THE FAILURE TO SAFEGUARD THE FED ERAL INVESTMENT AND ENSURE STUDENT SUCCESS, SENATE.GOV (2012), available at http://www.help.senate.gov. 28 Chris Kirkham, Corinthian closing its last schools; 10,000 California students displaced, L.A. TIMES (Apr. 26, 2015), available at http://www.latimes.com. 29 Chris Kirkham, O.C. firm Corinthian Colleges files for bankruptcy protection, L.A. TIMES (May 4, 2015), available at http://www.latimes.com. 30 Information on Debt Relief for Students at Corinthian Colleges (Everest, Heald, and WyoTech), available at https://studentaid.ed.gov. 31 See 34 C.F.R. §§668.401 et seq.; see also 34 C.F.R. §600 and GAINFUL EMPLOYMENT, FEDERAL REGISTER (last viewed Oct. 21, 2015), available at https://www .federalregister.gov. 32 GOV’T CODE §14740. 33 CAL. CODE REGS. tit. 5, §§400, 401, 431, 432, 16020-16027; see also EDUC. CODE §§94900-94900.7; 34 C.F.R. §§74.53, 80.42 (b)(4).

Los Angeles Lawyer December 2015 27 by TOBIAS BARRINGTON WOLFF

TheThreeVoices of OBERGEFELL

In a profound review of case law, substantive due process, and the social virtues of marriage, the U.S. Supreme Court made marriage equality a reality

NEARLY 50 YEARS of marriage equality Each precursor was momentous in its own is three opinions, not one. The language of litigation has finally produced a paradigm- right. But Obergefell is different. these three opinions is blended together and shifting victory before the Supreme Court of The marriage equality ruling is the rare presented as a single chorus, but their timber the United States. In June, the Court issued Supreme Court decision that nonlawyers and tone are distinct. One opinion contains its ruling in Obergefell v. Hodges,1 declaring know about, care about, have views about. the Court’s doctrinal holding: an examination that the Fourteenth Amend ment to the U.S. Obergefell struck down laws around the of its cases establishing a fundamental right Constitution prohibits states from discrimi- country that many people had recently voted to marry, which the Court finds equally nating against same-sex couples in their civil on and that some invested with great signif- applicable to same-sex couples. A second marriage laws. Earlier rulings had augured icance. It produced a tidal wave of public opinion is poetry and song: the Court’s lyrical the possibility of such a ruling: Romer v. response, with buildings and monuments account of the virtues of marriage and the Evans2 rejected hostility toward gay, lesbian, around the country, including even the White equal capacity of same-sex couples to inhabit and bisexual people as a basis for discrimi- House, blossoming in rainbow lights. It is natory legislation; Lawrence v. Texas3 repu- too soon to know how much has changed Tobias Barrington Wolff is professor of law at the diated the Court’s earlier ruling in Bowers v. following the decision, but it is apparent that University of Pennsylvania Law School, where he Hardwick4 and decriminalized the intimate it is a new day. There is what came before writes and teaches in the fields of civil proce- lives of same-sex couples, affirming their equal Obergefell, and there is what comes after. dure, constitutional law, and LGBT civil rights. capacity to form relationships; and United Taking the measure of what comes after He was the chief adviser on LGBT policy for the States v. Windsor5 recognized the legitimacy demands attention to the different voices in 2007-08 presidential campaign of Barack of married same-sex couples, requiring that which the majority spoke while explaining Obama and has been cocounsel or amicus coun- the federal government treat their marriages its ruling, and the targets at which the dissents sel in many landmark LGBT civil rights cases, equally when they are valid under state law. aimed their responses. The Obergefell decision including Obergefell. KEN CORRAL

28 Los Angeles Lawyer December 2015 those virtues. And the language of the third placing severe limitations on the right of peo- And because “[t]here is no difference be- opinion is constitutional theory: an expansive ple to get married while incarcerated. In tween same- and opposite-sex couples” in account of the methodology that the Court response to the argument that an inmate’s their need for mutual support, recognition, should employ when presented with a sub- inability to form a conjugal household while and governmental validation, excluding stantive liberty claim. The first two sections in prison defeats the purpose of marriage, same-sex couples from marriage imposes of this chorus were necessary to provide a the Court found that marriage has status “material burdens,” consigns those couples structure sufficient to support the Court’s implications that reach more broadly. Ma r - “to an instability many opposite-sex couples landmark holding. The third was elective ri ages “are expressions of emotional support would deem intolerable in their own lives,” and opens the decision to criticism that will and public commitment” between a couple, and “teach[es] that gays and lesbians are likely continue long after disagreement over serve as a “precondition to the receipt of unequal in important respects,” undermining the result fades. These are the three voices government benefits…and other, less tangible the steadying force that marriage laws seek of Obergefell. benefits” like the “legitimation of children” to exert in the communities where those and, for some, constitute “an exercise of reli- couples live.17 The Voice of Doctrine gious faith as well as an expression of personal These elements of the fundamental right The heart of Obergefell—its pure application dedication.”10 Incarcerated people can par- to marry were well established before Oberge - of precedent, speaking in the voice of doc- take of all these aspects of marriage, despite fell. As a matter of pure doctrine, much of trine—is in many respects unremarkable. The the other restrictions on their liberty, and the Court’s exposition entailed a reiteration majority grounds its holding in the line of they had a right to do so while incarcerated. of prior holdings. The difference, of course, cases that established the fundamental right Obergefell relies on Turner in holding that was the recognition that these holdings were to marry, of which Loving v. Virginia6 is the same-sex couples cannot be excluded from equally available to same-sex couples. Here best known. It identifies “four principles and this intimate form of association—an exclu- is where the Court made new law, rejecting traditions”7 undergirding those previous hold- sion that is effectively categorical for people the idea that the fundamental right to marry ings, an exposition that contains few surprises who are exclusively gay or lesbian.11 As the is available only to opposite-sex couples as to any lawyer familiar with the case law. Those Court had said in Lawrence when it invali- a definitional matter. “If rights were defined four principles, the Court holds, apply in equal dated laws that sought to criminalize their by who exercised them in the past, then measure to same-sex couples. intimate lives, “same-sex couples have the received practices could serve as their own The right to marry entails, first, an element same right as opposite-sex couples to enjoy continued justification and new groups could of personal choice—the right to enter into a intimate association.” That intimate associ- not invoke rights once denied.”18 The Court conjugal relationship without being subjected ation has informed the fundamental right to pointed to earlier precedents, including Lov - to improper dictates from the state regarding marry for decades. ing, that exemplified this principle, but one’s choice of partner. This idea of marriage Safeguarding the welfare of children and Obergefell is the first occasion on which the as a personal right that requires freedom of preserving order in the larger community Court has stated directly that identity cannot choice in one’s partner was a central precept are the third and fourth elements of the fun- be used to fence an individual out of a fun- of the Court’s holding in Loving that antimisce - damental right to marry that the Court iden- damental right. genation laws violated the Fourteenth Amend- tifies, and it presents them as interrelated. The dissenting opinion of Justice Clarence ment’s substantive guarantee of liberty as Within the marital household, the right to Thomas, joined only by Justice Antonin well as its promise of equal protection. That marry “draws meaning from related rights Scalia, offered the most fully developed re - “freedom to marry, or not marry, a person of childbearing, procreation, and education” sponse to the majority’s doctrinal analysis. of another race resides with the individual,” when it “safeguards children and families.”12 That response began with a categorical repu- Loving holds, “and cannot be infringed by Earlier cases had established rights related diation of the very idea of substantive due the State.”8 Obergefell reiterated that propo- to parentage and the household: a right to process and then proceeded to develop what sition, holding—as the Court had done several choose whether to have children, to direct Justice Thomas describes as a purely negative times before—that Loving established a prin- the up bringing of children and choose their theory of liberty for the fundamental right ciple that extends beyond the particular intru- educational path, and a right to form a to marry. The former was an unsurprising sion on freedom of choice embodied in white household. In Zablocki v. Redhail,13 a 1978 posture for the justice to adopt, given his supremacist laws. Same-sex couples, the Court case involving restrictions on the ability of long antagonism to substantive due process. found, have the same interpersonal investment individuals to marry when they fail to make Both he and Justice Scalia have called for in their relationships and are entitled to the child support payments, the Court presented the Court to reverse large portions of that same right of personal choice that the Court these interests as a unified whole, describing doctrine, including but not limited to its rul- vouchsafed in Loving. “the right to marry, establish a home and ings on abortion, reproduction, and sexual Marriage also involves structuring one’s bring up children as a central part of the lib - intimacy. The latter part of the opinion, how- life in partnership with another, producing erty protected by the Due Process Clause.”14 ever, rests on a novel reading of the Court’s an alloy of private intimacy, public witnessing, In the larger community, the Supreme Court marriage precedents that does not withstand and government sanction that has been the had proclaimed in the late nineteenth-century careful scrutiny and is intellectually disin- defining compound of civil marriage laws case of Maynard v. Hill that these aspects genuous in one key respect. since the middle of the twentieth century. of the marital household provide “the foun- After reiterating his distaste for the entire The right to access this state of being—the dation of the family and of society, without enterprise of substantive due process, Justice right not to be excluded altogether from which there could be neither civilization Thomas distinguishes the fundamental right- experiencing this amalgamated existence— nor progress.”15 Because “many same-sex to-marry cases by describing them all as limited is a second element of the fundamental right couples provide loving and nurturing homes to a “concept of negative liberty” that could to marry. In its earlier marriage cases, the to their children, whether biological or never include “a right to governmental recog- Court gave voice to this principle most adopted,” Obergefell holds, excluding those nition and benefits.”19 Loving and Zablocki strongly in Turner v. Safley,9 a 1987 ruling “couples from marriage…conflicts with a both involved laws that could be enforced that struck down a Missouri prison policy central premise of the right to marry.”16 through criminal penalties, and Turner involved

30 Los Angeles Lawyer December 2015 restrictions on incarcerated people. According in jail. It is disingenuous for the Justice to how to quantify the protection that LGBT to Justice Thomas, the element of state- scold the couples in Obergefell for asserting people have at times managed to secure imposed criminal sanction was the defining a liberty claim when they are not under threat through the political process.33 These are the feature of the constitutional analysis in each of criminal prosecution. That safety exists factors that the Court identified some 40 of these three cases. In comparison, he writes, over the justice’s own objections. years ago in describing when discrimination the petitioners in Oberge fell “cannot claim, Finally, there is the dog that did not bark against a disfavored group provokes height- under the most plausible definition of ‘liberty,’ in the majority’s doctrinal exposition. The ened judicial scrutiny, and their inclusion in that they have been imprisoned or physically Court declined to issue an explicit holding the majority opinion is obviously deliberate. restrained by the States for participating in on the core claims of discrimination under So, too, is the majority’s exposition of the same-sex relationships.”20 the equal protection clause that the plaintiffs history of discrimination against women in There are several problems with this analy- had raised, opting instead to give a gloss on civil marriage laws and the series of rulings sis. First, it finds no support in the Court’s what constitutional scholars have described in the 1970s and 80s in which the Court precedents and indeed is foreclosed by the as “fundamental interest” analysis: the selec- excised formal gender inequality from Amer- actual language of the opinions. In Loving, tive withholding of certain rights to just one ican family law.34 the Court said of the fundamental right to group, provoking strict judicial scrutiny Justice Thomas minimizes the significance marry that restricting the choice of partners because of the importance of the activity in of the majority’s equal protection holding, “on so unsupportable a basis as the racial question. This mode of analysis has taken calling it a mere effort “to shore up its sub- classifications embodied in these statutes… shape in a number of settings in which the stantive due process analysis,”35 but his dis- is surely to deprive all the State’s citizens of existence of a full-fledged fundamental right missal is misplaced—or, perhaps, a strategic liberty without due process of law.”21 It was has been in doubt. Thus, the opportunity to effort to blunt the future impact of those the deprivation of choice that restricted the vote need not be extended at all in many passages. Obergefell has embraced the vocab- liberty of all citizens, not merely prosecution circumstances, but it cannot be improperly ulary, if not yet the explicit holding, that dis- and the threat of incarceration that restricted withheld once granted,26 and the ability to crimination against LGBT people must be the liberty of the couples who were actually challenge a criminal conviction on appeal measured against a formally heightened stan- pursued by Virginia authorities. The same is might be eliminated from a state court system dard of review, even in cases in which no true of Zablocki, which relied on Loving as altogether but cannot be selectively withheld fundamental right is threatened. the “leading decision of this Court on the from defendants who cannot afford to pay The Voice of Poetry right to marry” and found any restriction court fees.27 As Justice Felix Frankfurter that “interfere[s] directly and substantially wrote, concurring in the opinion that ad - Woven through the majority’s doctrinal anal- with the right to marry” to implicate that dres sed the criminal appeal issue, “If [the ysis is the poetry of the opinion’s author. right.22 And the entire point of Turner was State] has a general policy of allowing crim- Justice Anthony Kennedy’s lyricism has cap- that people have a right to marry—including inal appeals, it cannot make lack of means tivated readers outside the legal profession the right to use the civil marriage laws to make an effective bar to the exercise of this oppor- and provoked Justice Scalia, in particular, to “expressions of emotional commitment and tunity.”28 Scholars have long situated the paroxysms of outrage in dissent. The florid public commitment” and to receive “govern- fundamental right to marry in this line of language is an easy target, and even support- ment benefits”—even when incarceration strips cases, observing that a state presumably has ers of the majority opinion have good reason them of other freedoms.23 Justice Thomas’s the option to eliminate civil marriage laws to approach some passages with skepticism. “concept of negative liberty” is a reflection altogether but faces scrutiny when it selec- But Justice Kennedy’s poetic language is not of his consistently expressed view about the tively denies marriage to disfavored individ- mere “ponderous self-importance,” as one limited role of the due process clause, but it uals or groups.29 scholar has called it.36 Justice Ken nedy’s does not reflect the Court’s precedents. Obergefell did not expressly hold that poetry has a purpose. The origin of that pur- The second problem is one of intellectual antigay laws provoke heightened judicial pose is the Court’s 1986 ruling in Bowers v. consistency. In response to his assertion that scrutiny nor that laws excluding same-sex Hardwick. the plaintiffs in Obergefell “cannot claim… couples constitute gender-based classifications. Bowers is infamous not just for its holding, that they have been imprisoned or physically Rather, the Court employed a “fundamental which affirmed the power of states to target restrained by the States for participating in interest” mode of reasoning. Instead of exam- adults for criminal sanction when they en- same-sex relationships,” one might appro- ining the discrimination in these laws as an gage in private, noncommercial, consensual priately reply, “No thanks to you, Mr. Justice.” independent constitutional claim, it described sexual activity with another adult of the Justice Thomas dissented in Lawrence and the “synergy” and “interrelation” between same sex, but for the ruthlessness with which would have upheld the ability of states to tar- the equal protection and due process clauses, the Court dismissed the humanity of gay, get same-sex couples with criminal prosecution finding that these selective “burden[s] [on] lesbian, and bi sexual people in reaching and imprisonment for sharing physical inti- the liberty of same-sex couples” also “abridge that result. The case involved Michael Hard - macy. He also joined Justice Scalia’s vituper- central precepts of equality.”30 wick, a gay Georgia man who was intruded ative dissent, which asked “what justification The Court’s decision not to address the upon in his bedroom by police serving an could there possibly be for denying the benefits constitutional status of antigay discrimination unrelated warrant (under circumstances that of marriage to homosexual couples” once more directly was unsatisfying to many who were themselves suspicious, as Professor their right to be free from criminal prosecution were watching these cases closely. But the Kendall Thomas has noted).37 The police is recognized.24 Whether or not he believes components of a core equal protection hold- found Hardwick sharing oral sex with another that the persecution of same-sex couples is ing are scattered throughout the majority man, and Hardwick was arrested and charged “un commonly silly” (as he wrote in his own opinion. The Court describes the identity of with a violation of Georgia’s sodomy law, Lawrence dissent),25 Justice Thomas has di- LGBT people as “immutable,”31 acknowl- which made oral or anal sex a felony. Hard - r ectly linked his repudiation of the right to edges the long history of abuse and discrim- wick challenged the constitutionality of this marry for same-sex couples to his belief that ination that law and society have imposed,32 provision, and the Court rejected his claim. the state should be able to throw those couples and dismisses as irrelevant the question of It was the first occasion on which the Court

Los Angeles Lawyer December 2015 31 had spoken at length about the constitutional “the knights rather than the villeins”—when Obergefell is not just a ruling on the appli- rights of gay people, and the opinion set the they intruded on the ability of states to con- cation of doctrine. It aims to enfranchise a tone for constitutional litigation for years to demn gay people as practitioners of “repre- class of people who have been excluded from come. Ignoring the fact that Hardwick had hensible” conduct.42 full citizenship through a combination of levied a facial challenge to the statute—which Nineteen years later, it is clear that Justice explicit persecution and willful blindness— made oral or anal sex illegal for all partners, Scalia understood an important fact. The to make them fully legible as rights holders. regardless of their sex or marital status— logic of Bowers and its constitutional exile Not all of Justice Kennedy’s poetry merits Justice Byron White wrote an opinion that of same-sex intimacy depended upon dehu- celebration. His presentation of unmarried focused solely on “homosexual sodomy” and manization: the precept that gay people can people as desperate and lonely souls in need characterized as “at best, facetious” the idea be criminalized and excluded from society of marriage’s salvation in one of the opinion’s that gay people had rights of intimate privacy because they are immoral and objectionable. most remarked-upon sentences—“Marriage that are commensurate with those of straight When Romer repudiated that dehumanization responds to the universal fear that a lonely people. The “presumed belief of a majority as the product of impermissible animus, it person might call out only to find no one of the electorate in Georgia that homosexual began to invite gay people and same-sex rela- there”45—is perhaps the most awkward pas- sodomy is immoral and objectionable” pro- tionships into the circle of humanity recog- sage, particularly considering that all three vided sufficient grounds for branding all gay nized by the Constitution. Once that shift female members of the Court, who together people as felons.38 And lest anyone miss takes hold, all forms of discrimination directed constitute a majority of the votes in support the intended message of condemnation, Chief at gay people become suspect. In a review of of the opinion, are currently unmarried. (Jus- Just ice Warren Burger added a short con - Romer that I wrote at the time, I referred to tice Ruth Bader Ginsburg lost her husband currence emphasizing the “ancient roots” of the opinion’s “principled silence”—not yet Martin in 2010, Justice Sonia Sotomayor antigay policies and the “millennia of moral engaging with the street-level reality of anti- divorced in 1983, and Justice Elena Kagan teaching” that one would have to “cast aside” LGBT discrimination, but recognizing a prin- has never married.) Throughout his opinion, in order to include gay people within the ciple that laid the groundwork for a future Justice Kennedy accords marriage a place of Constitution’s promise of liberty in cases deal- recognition of full equality. Justice Scalia’s singular privilege among family arrangements, ing with family and intimate re lation ships.39 heated response to the majority opinion was not just as a description of the significance I graduated from law school in 1997, so a well-informed reaction to that prospect, that law and society currently attach to the I became a lawyer and then a law professor not just “gratuitous shadow boxing.”43 institution but as a statement of enduring in the age of Bowers, when gay civil rights The poetry that Justice Kennedy would normative principle. It was not necessary for advocates would talk among themselves about later employ in Lawrence, Windsor, and the Court to align itself with that proposition the “gay exception to the Constitution” that Obergefell has played a vital part in realizing in order to decide the case, which I suspect seemed to appear whenever they would ask the promise of Romer. As has been much will be viewed in later years as a hidebound courts to apply established doctrines to LGBT remarked, Justice Kennedy wrote at length chapter in an opinion that aspires to be for- litigants. If gay people could be branded as in all three opinions about the dignity that ward-looking. criminals—if the mere act of identifying one- same-sex couples can find in their relation- But these imperfections do not defeat the self as gay could be treated by authorities as ships—the “liberty of the person in its spatial larger goals of the lyricism. However clumsy, an “admission” of a “propensity” to commit and more transcendent dimensions”; “the Justice Kennedy’s poetry has a purpose that “illegal homosexual acts,” as was the case recognition, dignity, and protection of the Justice Scalia understood and fought against under the antigay military policies40—then class in their own community”; and the “dig- from its inception: to speak about LGBT gay people seemingly could find little hope nity in the bond between two men or two people, their lives, and their relationships as or safety in the Constitution’s promises. Bow - women who seek to marry and in their auton- an equal and unqualified part of the human ers was not just a ruling on substantive due omy to make such profound choices.” In community. Prior to Romer, no hint of that process doctrine. It was a repudiation of the Obergefell, he embeds these sentiments in a sentiment had ever found voice in a majority very idea that LGBT people and same-sex starry-eyed account of the virtues of mar- opinion of the Court. Following Obergefell, relationships possess a humanity that the riage—its “nobility,” “transcendent impor- there is reason to hope that the resulting shift Constitution must respect. tance,” and “sacred” quality—and finds that in constitutional culture will be a lasting one. Romer v. Evans introduced the first hint same-sex couples have a right to partake in The Voice of Constitutional Theory that the ugliness of Bowers might not last that tradition insofar as it is administered indefinitely. The Court’s 1996 decision struck by the state. It is in his broad statements on the proper down Colorado Amendment 2, a state con- This lyricism aims to effect a cultural shift way to frame a substantive due process stitutional provision that singled out gay, les- in legal institutions that is a necessary pre- claim—his voice of constitutional theory— bian, and bisexual identity and prohibited requisite for the full inclusion of LGBT people that Justice Kennedy has introduced the great- state law from providing any kind of pro- and same-sex couples in the Constitution’s est controversy. For most nonlawyers, the tection from discrimination. The Colorado circle of humanity. Justice Kennedy’s paeans headline of Obergefell was “Nationwide provision was extreme—the majority called to the equal capacity of same-sex couples to Marriage Equality,” but the Court’s restate- it a “denial of equal protection of the laws find dignity in their relationships in Lawrence ment of the substantive due process doctrine in the most literal sense”41—and the result and Windsor laid the rhetorical foundation will likely provoke the most heated debate in the case seems unremarkable in hindsight. for Obergefell’s more direct exhortation for among lawyers in the years ahead. Obergefell But Justice Scalia responded with a dissent a change in constitutional culture: “[W]hile removes some of the restraints that had pre- that was shocking in its stridency. It was here Lawrence confirmed a dimension of freedom viously confined that doctrine, and it does that Justice Scalia first accused his colleagues that allows individuals to engage in intimate not clearly articulate the limitations that will of being elitist prigs for holding that “homo- association without criminal liability, it does replace them. sexuality cannot be singled out for disfavor- not follow that freedom stops there. Outlaw The Court’s leading statement of limitation able treatment.” The majority were aligning to outcast may be a step forward, but it does in the modern theory of substantive due themselves with the “Templars,” he wrote— not achieve the full promise of liberty.”44 process came in Washington v. Glucksberg,46

32 Los Angeles Lawyer December 2015 in which the Court unanimously rejected a right to physician-assisted suicide and turned aside attempts by the claimants to analogize to earlier holdings of the Court on matters of bodily integrity and personal privacy. An argument about a fundamental right, the Court held in that case, requires a “careful description” of the asserted right, which must be framed in highly circumscribed terms in light of specific historical practices—a bow to traditionalism that seemed to blunt the more open-ended statements about decisional autonomy that the Court had made in Plan - ned Parenthood of Southeastern Pennsylvania v. Casey, in which it reaffirmed the core holding of Roe v. Wade.47 If applied aggressively, that tradition-bound methodology could have foreclosed a marriage equality claim grounded solely in substantive due process. There was a narrow basis available to the Obergefell majority for distinguishing Glucks- berg. The plaintiffs in Glucksberg sought recognition of a right in a realm of human experience different in kind from the subjects of the Court’s earlier precedents, and that is the context in which it articulated its strong restrictions based on narrowly defined historical practices. In Obergefell, in contrast, the plaintiffs sought inclusion rather than innovation: equal access to a right that had already been established and thoroughly ex - plicated in a long line of cases. And indeed, in its discussion of constitutional theory, the Court reiterated that rights “cannot be defined by who exercised them in the past” lest “re - ceived practices…serve as their own continued justification and new groups [be unable to] invoke rights once denied.”48 That principle sufficed to decide the case. Instead, Obergefell repudiated the Glucks - berg approach altogether, appearing to limit the earlier case to its facts: “[W]hile [Glucks - berg’s] approach may have been appropriate for the asserted right there involved (physician-assisted suicide), it is inconsistent with the approach this Court has used in discussing other fundamental rights, including marriage and intimacy.”49 Rights do not arise merely from “ancient sources,” the Court went on, but also “from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.”50 Early in the opinion, the Court quotes selectively from a formulation first offered in dissent by Justice John Marshall Harlan II and holds that it is through “reasoned judgment” that courts should “identify[] interests of the person so fundamental that the State must accord them its respect.” “The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions,” the majority continues, “and so they entrusted to future

Los Angeles Lawyer December 2015 33 generations a charter protecting the right of substantive liberty claims that should properly 5 United States v. Windsor, 133 S. Ct. 2675 (2013). all persons to enjoy liberty as we learn its provoke debate. It is a shame that the leading 6 Loving v. Virginia, 388 U.S. 1 (1967). 7 meaning.”51 dissent on this aspect of the opinion missed Obergefell v. Hodges, 135 S. Ct. 2584, 2599 (2015). 8 Loving, 388 U.S. at 11. As a roadmap to future courts in discern- the opportunity to join that debate in a 9 Turner v. Safley, 482 U.S. 78 (1987). ing the content and limits of substantive lib- mature fashion. 10 Id. at 95-96. erty, these passages leave much to be desired. Indeed, there is a vital element missing 11 Obergefell, 135 S. Ct. at 2600. They reiterate yet again the proposition that from every one of the dissents in Obergefell. 12 Id. 13 such analysis must proceed from a principle Its absence is more blaring than all the outrage Zablocki v. Redhail, 434 U.S. 374 (1978). 14 Id. at 384. of inclusion—that disfavored individuals can- over subverting democracy and the dismay 15 Maynard v. Hill, 125 U.S. 190, 211 (1888). not be excluded from the protections of liberty over betraying the virtues of the Aztecs. None 16 Obergefell, 135 S. Ct. at 2600. merely because they have historically been of the dissenting opinions engages in even a 17 Id. at 2601-02. unpopular—and to that extent they merit glancing fashion with the lived experience 18 Id. at 2602. 19 some praise. But there is nothing analytically of real LGBT people in the process of arguing Id. at 2636 (Thomas, J., dissenting). 20 Id. at 2635 (Thomas, J., dissenting). rigorous about this kind of intuitionistic rea- that states should be able to relegate them 21 Loving v. Virginia, 388 U.S. 1, 12 (1967). soning. Even readers who are enthusiastic to second-class status. The reality of their 22 Zablocki v. Redhail, 434 U.S. 374, 387 (1978). about the result in Obergefell and believe it relationships, the harm done to same-sex 23 Turner v. Safley, 482 U.S. 78, 95-96 (1987). fully justified as a matter of doctrine and couples and their families when they are cat- 24 Lawrence v. Texas, 539 U.S. 558, 604-05 (2003) principle could react with dismay at the lack egorically excluded from the entire apparatus (Scalia, J., dissenting). 25 Id. at 605 (Thomas, J., dissenting) (quotation omit- of clear guidance that the Court gives for of the family law, the injury felt by every ted). the future administration of these important LGBT individual whom the law excludes 26 See, e.g., Kramer v. Union Free Sch. Dist., 395 U.S. principles. from full citizenship—it is all a screaming 621 (1969) (when school board members are chosen Unsurprisingly, the dissenters seized upon silence. Nor did one dissenting justice bestir through popular election, the right to vote on the these features of the opinion in mounting himself to address the plaintiffs’ claims under position cannot be restricted to landowners or parents their critiques, with Chief Justice John Roberts the equal protection clause, despite the un - of students). 27 Griffin v. Douglas, 351 U.S. 12 (1956). leading the way. And yet, while we must abashed use of gender and sexual orientation 28 Id. at 24 (Frankfurter, J., concurring). acknowledge the valid bases for questioning in these laws to determine which couples were 29 See, e.g., Nelson Tebbe & Deborah Widiss, Equal aspects of the majority’s constitutional meth- allowed to marry. This is a classification cal l - Access and the Right to Marry, 158 U. PA. L. REV. odology, it must also be said that the chief ing out for serious analysis, whatever one’s 1375 (2010) (arguing that the constitutional right to justice wrote a remarkably mean-spirited conclusion. Yet the closest thing to a formal marry is best accounted for by “the fundamental interest branch of equal protection law”). opinion. The chief invoked Dred Scott v. equal protection argument comes from Chief 30 Obergefell v. Hodges, 135 S. Ct. 2584, 2603-05 Sandford—the 1857 decision in which the Justice Roberts, who dismisses the majority’s (2015). Court proclaimed that the Constitution was treatment of the subject as inadequate and 31 Id. at 2594. founded on principles of white supremacy then writes the following as the entirety of 32 Id. at 2604. 33 and that people of African descent were “so his own analysis: “In any event, the marriage Id. at 2606 (“It is of no moment whether advocates of same-sex marriage now enjoy or lack momentum far inferior that they had no rights which laws at issue here do not violate the Equal in the democratic process.”). the white man was bound to respect”—and Pro tection Clause, because distinguishing 34 Id. at 2603-04. suggested that the majority opinion had be tween opposite-sex and same-sex couples 35 Id. at 2632 n.1 (Thomas, J., dissenting). reprised Dred Scott’s style of analysis.52 He is rationally related to the States’ ‘legitimate 36 Andrew Koppelman, The Supreme Court made the flourished a list of cultures past and present, state interest’ in ‘preserving the traditional right call on marriage equality—but they did it the wrong way, SALON COM seemingly chosen for their exotic names and institution of marriage.’”55 This kind of lazy . (June 29, 2015), http://www .salon.com (last visited Aug. 25, 2015). about which he presumably knows little or ipse dixit is unworthy of a man of the Chief’s 37 See Kendall Thomas, Beyond the Privacy Principle, nothing—“the Kalahari Bushmen and the intellectual ability. 92 COLUM. L. REV. 1431 (1992). Han Chinese, the Carthaginians and the Presented with the equal protection claims 38 Bowers v. Hardwick, 478 U.S. 186, 192-94 (1986). Aztecs”—in order to cast the idea of same- of a community that has been systematically 39 Id. at 196-97. 40 sex couples having a right to marry as self- abused, persecuted, and subjected to second- See 10 U.S.C. §654(b), repealed, Pub. L. 111–321, §2(f)(1)(A), 124 Stat. 3516 (Dec. 22, 2010). 53 evidently ridiculous. He then ends his opin- class citizenship for most of our nation’s his- 41 Romer v. Evans, 517 U.S. 620, 633-34 (1996). ion with a rebuke to LGBT people and their tory, a judge’s most rudimentary responsibil- 42 Id. at 652-53 (Scalia, J., dissenting). supporters—“by all means celebrate today’s ity—the least that one can expect—is a proper 43 Tobias Barrington Wolff, Principled Silence, 106 decision.…But do not celebrate the Consti - accounting of the harms that community has YALE L.J. 247 (1996). 44 tution. It had nothing to do with it.”54 He suffered and a serious explanation for why it Obergefell v. Hodges, 135 S. Ct. 2584, 2600 (2015). 45 Id. delivered this opinion orally from the bench should lie within the power of the state to 46 Washington v. Glucksberg, 521 U.S. 702 (1997). while LGBT members of the Supreme Court continue inflicting those harms. Instead, equal 47 Id. at 720-24; Planned Parenthood of Se. Pa. v. Bar and career-long civil rights advocates sat protection was the clause that dared not speak Casey, 505 U.S. 833 (1992). directly before him. Friends who were in the its name in the dissenters’ opinions. Erasure 48 Obergefell, 135 S. Ct. at 2602. Supreme Court chamber when the opinion has been one of the primary tools of subor- 49 Id. 50 Id. was handed down tell me that the presence dination in the mistreatment of LGBT peo- 51 Id. at 2598. 56 of these leaders made the Chief’s scolding ple. In Obergefell, erasure is the dissenting 52 Id. at 2616-17 (Roberts, CJ., dissenting). seem acutely personal. These are insults, pure justices’ last gasp of indignation as marriage 53 Id. at 2612 (Roberts, CJ., dissenting). and simple—the kind of holding forth that equality becomes the law of the land. n 54 Id. at 2626 (Roberts, CJ., dissenting). Justice Scalia has made into a sport but few 55 Id. at 2623 (Roberts, CJ., dissenting) (quoting Lawrence v. Texas, 539 U.S. 558, 585 (2003)). others on the Court have indulged. 1 Obergefell v. Hodges, 135 S. Ct. 2584 (2015). 56 See, e.g., Tobias Barrington Wolff, Civil Rights 2 Romer v. Evans, 517 U.S. 620 (1996). The majority reached further than they Reform and the Body, 6 HARV. L. & POL. REV. 201, 3 Lawrence v. Texas, 539 U.S. 558 (2003). needed to in their statements of constitutional 209-16 (2012) (examining erasure as a tool of anti- 4 Bowers v. Hardwick, 478 U.S. 186 (1986). theory and adopted an approach to framing LGBT subordination).

34 Los Angeles Lawyer December 2015 closing argument BY DAVID PASTERNAK

It’s Time for a Blockbuster in Legal Services Funding

IN LOS ANGELES, THE ENTERTAINMENT capital of the world, fol- shelter, food, family, medical treatment, and government benefits. lowing the success or failure of new motion picture openings is There are California residents that need but cannot get legal services similar to following the success or failure of a favorite sports team. because there are too few available. These people include the homeless We all know that a $100-million-dollar opening week is a superhero veteran in San Diego, immigrants in Los Angeles who need accurate blockbuster and a $10 million opening is a disappointment or a information about immigration rights, the Central Valley farmworkers failure. The same terminology, in an analogous fashion, can be who are not receiving the wages to which they are entitled, and the applied to legal services funding in California. Bay Area parent living with HIV who needs assistance securing In 1999, through the efforts of former Chief Justice Ronald M. medical treatment. George and others, the state of California established the Equal Those attorneys who do not provide monetary contributions or Access Fund to begin to provide state funding for legal services for volunteer their time for legal services organizations should reconsider the poor. The initial funding amount was $10 million. It has remained at nearly that amount, without any significant increase even for infla- tion, for the last 16 years. All Californians should urge the state to increase its monetary Meanwhile, during those intervening years, IOLTA funding for legal services, which is collected by the State Bar from bank interest support for legal services to $50 million. on attorney trust accounts, has shrunk pre- cipitously as the result of the significant dim - i nution in interest rates. While voluntary attorney monetary contri- their priorities and join the many California attorneys who do. butions for legal services have increased, the population of eligible There are roughly 100 legal services organizations throughout the California recipients has exploded as the result of the Great Recession state that receive IOLTA contributions from the State Bar—including of 2008. California attorneys now voluntarily contribute more LACBA’s legal services projects, which are supported by LACBA funding for legal services programs than the state does. While many Counsel for Justice (www.lacba.org/counselforjustice)—and all of California attorneys are to be congratulated for those important them would welcome your contributions and volunteer service. A monetary contributions, as well as the hours of legal services that list is available at www.caforjustice.org/about/organizations. When they also voluntarily provide for California’s indigent residents, you pay your bar dues this year, please make the voluntary contribution unfortunately not all California attorneys give those monetary con- to fund the Justice Gap Fund so that the State Bar can provide addi- tributions or provide those legal services. We all need to do more. tional funding for those legal services organizations. I also encourage So, while those California attorneys who make monetary contri- you to make a voluntary contribution to Counsel for Justice to sup- butions or volunteer their time for pro bono legal services organizations port LACBA’s legal services projects when you pay your yearly are to be congratulated, the state’s contributions can only accurately membership dues as well. LACBA’s projects helped more than be characterized as disappointing. More than 8 million Californians 18,000 clients last year and provided over $4.6 million in pro bono qualify for free legal services—over 20 percent of the state’s population. service in the areas of domestic violence, veterans legal services, California’s Equal Access funding contribution for these residents immigration, AIDS legal services, and civic mediation. The justice equals a meager $1.25 per eligible resident. Viewed from another gap in California is more than a gap—it is a huge chasm and needs perspective, the state contributes 26 cents per California resident all of our support to close. for legal services funding—no more than some loose change. Cal- All Californians should urge the state to increase its monetary ifornia’s legal services funding per eligible resident ranks 21st among support for legal services to $50 million—an amount that is still all states, slightly ahead of West Virginia. insufficient but will make a meaningful contribution to the lives of In contrast, as the result of the strong leadership of Chief Judge tens of thousands of Californians. Considering that many of Cal i- Jonathan Lippman, New York’s funding for legal services shames fornia’s legal services providers, such as LACBA’s five projects, Public California, totaling $85 million this year. In the last year alone, New Counsel, and Bet Tzedek, leverage their dollars through lawyers’ York, which has a population that is approximately half of California’s, voluntary legal services to provide as much as $10 of legal services increased its legal services funding by more than the entire California for every dollar in their budget, there is no better investment. During contribution. While California provides barely enough for a pen or this holiday season, let’s make an effort to become superheroes for legal pad for each eligible recipient, New York provides almost $22. blockbuster legal services funding. n This funding is of critical importance to the clients of legal services organizations. These services often provide essential assistance for David Pasternak is a member of Pasternak & Pasternak in Century City, the low income Californians for the most basic necessities of life— current president of the State Bar, and a past president of LACBA.

36 Los Angeles Lawyer December 2015