Category: State Legislation
Pipe Dreams are a Massachusetts Nightmare: Why Bill H.3690, the Pipeline Expansion Bill, Should Not Pass
Today, New England has the second highest electricity prices in America. Hawaii ranks number one. New England fared well when hydro and coal were the energy sources of choice because of its geography and stores of coal in the region. Unfortunately, starting in the 1990s natural gas became the preferred energy source as a cleaner way to produce electricity. As a result to the new trends, in 2000, 15% of the electricity distributed was through natural gas, increasing 10% in one decade. In 2014, natural gas dependence went up to 50%, according to the New England Gas-Electric Focus Group Report of 2014. As natural gas dependence increased, demand from other means of energy production decrease. Coal powered energy plants, for example, are less popular in the energy market. As a result they are rapidly going out of business. The high demand for energy in conjunction with closing energy production plants creates a necessity for additional, reliable energy supply.
In response to the need for reliable energy sources that are affordable, some state politicians are calling for natural gas pipeline expansion. One supporter of Natural Gas Expansion is Massachusetts State Representative Garrett Bradley of the Third Plymouth District submitted bill H.3690 on behalf of Kinder Morgan. This bill seeks a permanent easement in Western Massachusetts for Kinder Morgan’s Connecticut Expansion Project. The Connecticut Expansion Project is an effort to respond to the market’s high demand for natural gas energy sources. The project plans to upgrade existing pipelines within New York, Massachusetts, and Connecticut. The estimated $85.7 million dollar project will consist of approximately 13.49 miles of piping that will loop through small segments of those three states. Pipeline looping is when companies build pipelines adjacent and connected to existing pipelines. Looping increases the maximum amount of deliverable natural gas in the region. Further, by looping the pipes Kinder Morgan hopes to minimize environmental impacts by containing environmental disruption to areas that have already been dug up for previous pipelines. The project would loop pipeline for 3.8 miles Sandisfield, MA as well as 0.1 miles of in Agawam, MA.
When Kinder Morgan approached State Representative Smitty Pignatelli, Sandisfield’s state representative, Rep. Pignatelli refused to file the bill. He stated that he would only bring forth the bill if his constituents wanted him to. It is abundantly clear that they do not support pipeline expansion in their town. When he found out that a representative from the complete other side of Massachusetts filed the bill, Rep. Pignatelli joked that Rep. Bradley “couldn’t find Sandisfield on a map with GPS.” Other representatives negatively commented on Rep. Bradley filing a bill pertaining to towns outside of his district. Ultimately, this is not the first time that a representative filed such a bill. However it came to Beacon Hill, H.3690 is now in the Joint Committee on State Administration and Regulatory Oversight’s hands.
If H.3690 passes, Kinder Morgan will attain the rights to build on Sandisfield land. The entitlement will be on both private property and protected state park. Article 97 of the Massachusetts
The Massachusetts State House
Boston, 1787
Constitution, Massachusetts’ primary conservation law, protects public state park land, including the state park in Sandisfield, from being sold or changed. Land protected under this article remains protected unless two-thirds of state congressional representatives vote to allow an easement on these lands. Massachusetts State Senator Benjamin Downing worries that the passage of H.3690 “could set a ‘dangerous’ precedent of taking Article 97 lands to build fossil fuels energy infrastructure.”
Supporters of the bill believe the project can “reduce energy costs and thereby attract new business and jobs for hard working citizens,” according to a joint statement from the six New England Governors reported. The project is expected to create 175 new construction jobs and is expected to be complete by November 2016, if all of the certifications and approvals happen on time. The pipeline expansion, Rep. Bradley stated, will immediately respond to increasing rates of energy consumption in Massachusetts and help avoid blackouts that “devastate [Massachusetts’] economy.” The New England Gas-Electricity Focus Group Final Report of 2014 confirms Rep. Bradley and his supporters’ views that it is essential to expand the pipelines, even if that means taking away privately owned and state protected land.
Already burdened with another natural gas pipeline, many Sandisfield residents are wary of the gas companies’ assurances. These residents vividly remember the 1981 Sandisfield pipeline burst that compromised the safety of their families, property, drinking water, and surrounding natural habitats. They know that pipeline expansion does not just mean cheaper energy, it also means availing themselves to even more pipeline danger. Beyond safety concerns, Sandisfield residents oppose easements on their personal properties; they resent being expected to pay taxes for land that they will not even be allowed to use due to the project gaining the rights to that land. Beyond Sandisfield, some experts speculate that these pipes are really going to be used to export gas to Canada and Europe and will not benefit New England’s prices at all. Lastly, environmentalists do not support pipeline expansion because they say pipelines leak toxins into the environment and exacerbate climate change.
The Joint Committee on State Administration and Regulatory Oversight held a hearing for the bill on November 10th 2015 that was “filled to the brim.” While many people up for the hearing, Representative Bradley was not there. Some believe that he did not show up to the hearing because he changed his mind about the bill. H.3690’s opposition highlighted the important precedent the state would set if it were to allow Massachusetts land protected by Article 97 to be used for energy projects such as this one. A statement signed by 63 environmental organizations opposing the bill was submitted during the hearing. Additionally, at least one bus full of Sandisfield residents showed up at the hearing. Energy industry and union representatives such as Kimberly Watson, president of the Tennessee Gas Pipeline Co., testified in favor of the bill. Watson assured opponents to the bill that increased energy capacity would “help bolster system reliability and available natural gas supplies regionally… contributing to a moderation of fuel costs.” The Joint Committee on State Administration and Regulatory Oversight has yet to publish a statement regarding the bill post hearing.
The Joint Committee on State Administration and Regulatory Oversight must not approve of bill H.3690. A growing dependence on natural gas is not necessary and is not in Massachusetts’ best interest. For one, it is important to maintain energy source diversity in case there is a shortage or there are problems with one energy source. This state has the capacity for large-scale renewable energy production, an energy source that will diversify the energy market. Thus, instead of investing money in a short-term solution like natural gas, investing money in renewable resources will be better for the environment. Beyond environmental arguments, if the people in Massachusetts do not support the expansion of natural gas pipelines, their representatives should listen. Furthermore, the already existent renewable energy presence in Massachusetts has been creating jobs and positively impacting the state. Clean energy economy has seen rapid growth and continues to grow each year. Why not expand that environmentally safe and publicly supported energy source instead? If pipeline expansion is not the only solution to a growing energy demand problem, it does not make sense to destroy protected forestland or put Sandisfield residents’ lives at increased risk. Instead, this state needs to listen to its constituents and the statistics that say that investing in renewable energy expansion is the better choice to address growing energy needs.
Lillian Feinberg is from Leominster Massachusetts and graduated cum laude from The George Washington University. She majored in English literature with minors in health and journalism. Lillian is expected to graduate from Boston University with a Juris Doctor in spring 2017. With interests in legislation, policy, energy law, and health law, Lillian looks forward to moving to Washington D.C. after graduation to pursue her policy interests.
Florida Legislature Passes Drone Privacy Bill
The FAA predicts that by 2030, the Unites States could see more than 30,000 drones filling its skies. Drone use by the government and private individuals alike has long been permitted in the United States for some time without significant regulation. However, state governments and privacy advocates have started to express concern as drones have become increasingly prevalent. In response to fears of government overreach and private citizen abuse, Florida enacted the “Freedom from Unwanted Surveillance Act” regulating drone use by both private citizens and the government.
Public support for drone use varies. A Monmouth University poll found that 80% percent of Americans support the use of drones in search and rescue operations, 67% are in favor of using drones to track down runaway criminals, and 64% support drones in border control. However, the poll also found that less than a third of respondents supported drones in routine law enforcement activities—like giving speeding tickets—while more than 40% indicated they would be “very concerned” about privacy if police used drones with high-tech cameras.
Although still rare, law enforcement agencies are beginning to use military grade technology for surveillance. These spy drones can be equipped with cameras, microphones, or cell phone interception technology like “stingrays.” Some drones have even been programmed to track vehicles using license plate readers. Perhaps most disturbing, the surveillance drones of the near future could be equipped with facial or biometric recognition software, allowing them to identify and surreptitiously follow individuals from far in the air, possibly without a human at the controls.
Yet, drones operated by law enforcement agencies are far from the only threat to privacy from above. Drones with cameras and other technology are increasingly affordable and available to the public, with few legal restrictions on where, or how, the devices can be used.
Faced with rapidly advancing technology and unclear rules Florida’s “Freedom from Unwanted Surveillance Act” addresses two important gaps in privacy law created by drones: an individual’s expectation of privacy and civil damage penalties.
The Fourth Amendment protects against unreasonable searches and seizures. According to the Supreme Court a person must have “an actual (subjective) expectation of privacy” that society recognizes as ‘reasonable.’” While there is a presumption that a person has a reasonable expectation of privacy in their home, the protection does not extend to anything visible to the public, including privately owned yards. The Court has held that fly-overs of property with manned vehicles—like helicopters—are not searches under the Fourth Amendment because the airspace is public and therefore objects within view of the public are not protected. Drones, however, create a relatively new scenario where it is both inexpensive and efficient to obtain aerial images of private property, the implications for surveillance have yet be fully fleshed out.
The Freedom from Unwanted Surveillance Act creates a statutory presumption that any person on private property has a reasonable expectation of privacy when not visible from the ground. To obtain images of any person or objects not visible from street level with a drone would require either a warrant or the express written consent of the property owner. The bill also contains exceptions for preventing terrorist attacks and emergency situations. Non-surveillance activities such as construction, property appraisals, and utility line inspections would also be permitted.
In most states, individuals can sometimes protect themselves from drone surveillance through common law privacy tort law suits (Solove & Schwartz, Privacy Law Fundamentals). Unfortunately, it is very difficult to win a lawsuit for privacy violations. The privacy violation must be “highly offensive,” and the plaintiff must give a proof of damages. (Solove & Schwartz, Privacy Law Fundamentals). A neighbor’s drone that peered through windows or secretly recorded a conversation might be considered “highly offensive,” but damages would be difficult, if not impossible, to calculate.
The Freedom from Unwanted Surveillance Act addresses these issues as well, by creating a civil remedy for violations of the act’s provisions. An aggrieved person could bring a civil action against any private individual, organization, or government actor for surveillance of private property. The surveillance does not have to be particularly offensive, and holds violators strictly liable. In addition, the bill allows for attorneys fees, compensatory damages against the government, and punitive damages against private citizens, all of which encourage enforcement of the Act’s powerful provisions.
Florida’s innovative legislation creates protections for the State’s residents without unduly burdening law enforcement or industry. The Act represents a welcome step towards preserving privacy in an era where the law rarely keeps pace with changing technology. States around the country should consider following in Florida’s footsteps and enact legislation preserving the privacy of citizens from a sky soon to be blanketed with drones.
Alexander N. Macheras is from Andover, Massachusetts and graduated from Boston College majoring in political science with minors in economics and environmental studies. Alexander is expected to graduate from Boston University with a Juris Doctor in Spring 2016. With a diverse set of legal interests including privacy and election, and constitutional law, Alexander hopes to be involved with legislation in the future.
Analyzing Indiana’s Religious Freedom Restoration Act
Within the past few months, Indiana’s Religious Freedom Restoration Act (RFRA), Senate Bill 101, has generated a lot of controversy. Governor Mike Pence signed the contentious bill into law on March 26th. This move was met with simultaneous outrage and praise. According to Time, the supporters characterize the bill as a measure to “make sure the government doesn’t impinge on the religious liberty of Hoosiers.” However, critics claim it is a thinly veiled attempt to make discrimination against the LGBTQ population based on religious belief a legal practice. Acknowledging the controversy a week later, Governor Pence signed a revision to the Religious Freedom Restoration Act, Senate Enrolled Act 50, which made it explicit that the law did not allow for discrimination based on traditionally protected classes. This post will analyze the criticisms aimed at the bill as originally signed by Governor Pence, consider whether the fix passed by the legislature addresses the critics concerns, and explore any issues that remaining in the updated legislation.
The Problem
Indiana passed the RFRA with intentions to protect the citizens of Indiana from the government
Indiana Statehouse
Indianapolis, 1888
infringing on their religious beliefs. The RFRA provides that “a governmental entity may not substantially burden a person’s exercise of religion . . . .” unless government shows that the burden is “in furtherance of a compelling governmental interest” and “is the least restrictive means of furthering that compelling governmental interest.” Not so bad, right? Indiana isn’t the only state to have a RFRA. And in fact, it appears to be almost identical with the federal RFRA. However, there are several important differences between the acts, and therein lies the problem. While the substantial burden test in the two laws (furtherance of a compelling governmental interest by the least restrictive means) is identical, Indiana’s law allows “[a] person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened . . . may assert the violation . . . as a claim or defense . . . regardless of whether the state or any other governmental entity is a party to the proceeding.” (Emphasis added to show a departure from the federal RFRA). Furthermore, the federal RFRA provides that a “person” may use the RFRA as a claim or defense, however, the Indiana RFRA expands that definition to include individuals, churches and religious groups, and even corporations. As Garrett Epps at The Atlantic correctly points out, this difference in language is quite significant and is at the heart of the situation that critics of the bill fear: discrimination from a store owner against… anyone.
Epps points out two cases worth mentioning: Elane Photography v. Willock and Burwell v. Hobby Lobby Stores, Inc. First, in Elane Photography, a same sex couple sued a photography company because the company only photographed traditional weddings due to the owner’s religious convictions. The photography company argued that New Mexico had enacted a RFRA which allowed them to invoke the RFRA as a defense against the claim. However, the Supreme Court of New Mexico disagreed. In what appears to be a straight forward issue in the case (the issue was treated in about one page in the majority opinion), the court held that the RFRA “was not meant to apply in suits between private litigants,” only suits where the government was a party. Indiana’s law purposefully contains language (“regardless of whether the state or any other governmental entity is a party to the proceeding”) explicitly designed to prevent the courts in Indiana from reaching a conclusion like the one reached in Elane Photography. Second, in Hobby Lobby, the Supreme Court held that for-profit closely held corporations can make use of the federal RFRA. In Indiana’s RFRA language, it is made clear that any corporation, not just a closely held one, can utilize the state’s RFRA.
The Solution
After Governor Pence signed Indiana’s RFRA into law, there was a huge public backlash against the legislature and the state of Indiana. After much public pressure, the legislature passed a “fix” to the RFRA which the governor signed into law. This fix does two things. First, it makes it explicit that the RFRA is not to be used by a “provider” as a basis or as defense to “refus[ing] to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member . . . of the general public on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service. . . .” It accomplishes this feat by adding the preceding language as a section of the bill. Second, it clarifies that that “provider” includes individuals and businesses but not churches, religious organizations, or religious officials acting on in a religious function. The definition is significant because it essentially allows religious institutions to refuse to offer services based on one of the protected classes named earlier in the legislation fix. Governor Pence claims that by signing this fix, he makes it clear that he has Indiana’s best interest in mind while passing this bill and that he hopes “every person feels welcome and respected [in Indiana] . . . .” Some, like Angie’s List CEO, think that the fix “is insufficient,” while others argue that the fix goes too far and “amounts to wholesale repeal of the [RFRA].” The reality is somewhere in the middle.
Governor Pence and the Indiana’s legislature’s “fix” does address the civil rights concerns, but probably does not do enough to carry out the intended purpose of the law and is very unclear. First, if the Indiana legislature really wanted to fix the law in a way that avoids these problems, they have not only a federal model, but statutes in 19 other states (save Texas and Arkansas which suffer from similar defects as Indiana’s law) to borrow from without wading into territory that could allow; or even encourage, discrimination. Rather than amending the engrossed bill with a clause that prevents the RFRA from being used as an affirmative defense to discrimination, the state legislature should have owned up to its mistake, started from scratch, and used clearer, more moderate language.
Second, the fix still doesn’t address a fundamental logical flaw with the RFRA. While the fix does outlaw RFRA fueled discrimination per se, a private party can still use this law when sued by another private party. Removing this clause would still achieve the religious freedom that Indiana is looking to give by protecting citizens from governmental interference with their exercise of religion while also not unfairly infringing on the rights of others in the name of personal belief.
Michael Whittington is from Arlington, Texas and received his philosophy degree from the University of Texas at Arlington. He is set to graduate from Boston University School of Law with a Juris Doctor in Spring of 2016. Michael hopes to work with legislation in some capacity regardless of the path his career takes after law school.
Take Two: Texas’s Voting ID Act is Challenged Again
A Texas voter identification law is back in the spotlight after the Fifth Circuit Court of Appeals recently heard arguments on whether the law is unconstitutional and violates the Voting Rights Act by discriminating against low income and minority voters.
The 2011 law requires voters to show photo identification (there are a few, limited exceptions) when voting in person. The law requires a voter to present one of the seven forms of approved photo ID when voting and the ID must be current or expired for no more than 60 days. Further, the name on the ID must be exactly the same or “substantially similar” to the registered voter name; otherwise the voter can only cast a provisional ballot and must return within six days of the election to further verify his/her identity. Voters without an acceptable photo ID can apply for an election identification certificate, but to obtain the certificate they must verify their identity with additional documents, which cost money. The current law affects more than 600,000 Texan voters who lack an approved ID.
Texas’s voter ID law is now one of the strictest in the country and part of a growing trend by states,
Texas State Capitol
Austin 1888
which proponents argue is necessary to prevent voter fraud. Currently, 32 states have voter identification laws in force. These include both photo ID (16 states) and non-photo ID (16 states), with a variety of requirements and limitations. Opponents, often Democratic leaning groups, argue that the laws target the poor, minorities, college students, and other groups who tend to vote for Democratic candidates.
In March 2012, the Department of Justice (DoJ) prevented the law from taking effect under the Voting Rights Act. Sections 4(b) and 5 of this 1965 law require “covered jurisdictions,” which includes Texas, to preclear any changes to their voting laws before they can go into effect. A covered state must prove the voting change does not have the purpose or effect of denying the right to vote based on race, color, or membership in a language minority group. The DoJ determined that Texas failed to show that the law would not have a discriminatory effect on Hispanics and other minorities or that there is a significant voter impersonation problem which the law seeks to correct. A unanimous three-judge panel of the D.C. Circuit Court confirmed the department’s conclusions that Texas law violated the Voting Rights Act because it would impose “strict, unforgiving burdens on the poor, and racial minorities.” In June 2013, however, the U.S. Supreme Court struck down the Voting Rights Act’s coverage formula (Section 4(b)), which made the preclearance requirement (Section 5) moot. As a result of Shelby County, the Supreme Court vacated the district court’s ruling, allowing the law to go into effect.
In August 2013, the DoJ sued Texas again, but this time argued that the Texas law violates Section 2 of the Voting Rights Act, which applies to non-preclearance states and prevents the same discrimination as Section 5. On October 9, 2014, a district court judge agreed and found the law unconstitutional. The 147-page opinion states that the law “has an impermissible discriminatory effect against Hispanics and African-Americans, and was imposed with an unconstitutional discriminatory purpose.” The court further held that the law creates “an unconstitutional poll tax.” The Fifth Circuit, however, permitted the law to remain in effect, which the Supreme Court affirmed, due to the timing of an upcoming election.
The fate of the law is now with the Fifth Circuit, which will determine whether the law is discriminatory. Despite being among the most conservative circuits in the nation, it is likely the Fifth Circuit will uphold the lower court’s decision invalidating the law because the state presented little evidence showing the need for the law or disproving that the law was enacted for discriminatory reasons. In-person voter fraud is rare and there was little evidence showing requiring a photo ID would prevent this. In the ten years preceding the Texas law, during which 20 million votes were cast, only two people were convicted of in-person voter fraud. The state claimed the law would help prevent people from voting under deceased voters’ names, but failed to present any evidence showing this actually occurs. Further, mail-in voter fraud is more prevalent and the law allows individuals without a photo ID to vote this way.
During oral argument, the court criticized the state for relying on the fact that no smoking gun exists to prove the law was enacted with a discriminatory purpose. Judge Haynes, a Republican appointee, noted that requiring the plaintiff to provide a written or oral statement that says the law was enacted with the purpose to discriminate is unlikely and unrealistic. Rather, plaintiffs can prove discrimination with strong circumstantial evidence. The state argued that because there is no evidence minorities were unable to vote, the law was not discriminatory. However, if the law was enacted with a discriminatory purpose the number of people affected by it does not matter. It is still unconstitutional.
Finally, the underlying documents required to obtain the “free” election identification certificate have a cost and this creates a plausible argument that the state is establishing a poll tax, which is unconstitutional. The court did also discussed remanding the case back to the lower court for further consideration to look at the law in light of newly filed bills that would expand the acceptable forms of photo ID or to look at the last election, which was conducted under the law, to get an idea of the law's impact.
Even though the current law’s future is uncertain, the Texas Legislature recently considered additional voting ID requirements. The proposed legislation, House Bill 1096 introduced by Rep. Jim Murphy (R-Houston), would require the address on a voter’s ID to match their voter registration address. Rep. Murphy claims the measure will ensure that voters will reside and vote in the same precinct. Opponents of the law argue this is another measure to target and suppress poor, minority, elderly and disabled voters. The bill was approved by the House on May 8 and sent to the Senate for consideration. The Senate Committee on State Affairs held a public hearing on May 18, which included supporting testimony from the Harris County Republican Party Ballot Security Committee and opposing testimony from the Texas NAACP and the Texas Democratic Party. The committee reported the bill favorably (voting 7-2) to the Senate. The bill was scheduled for a full Senate vote before the legislative session ended, but was ultimately never voted on and died.
When the Fifth Circuit rules on this matter, the decision should serve as a road map for the many other states who have changed or are planning to change their voting laws on the grounds of preventing fraud.
Amanda Hesse is from Princeton, New Jersey and graduated from American University with a dual major in Law & Society and Public Communication. She anticipates graduating from Boston University School of Law with a Juris Doctor in Spring 2016. During Summer 2015, Amanda will intern at the Southern Poverty Law Center in Jackson, Mississippi, where she will focus on juvenile justice and prison conditions reform.
Unconstitutional Budget Cuts – the Illinois Pension Controversy
Across the country, state governments are facing financial crises and seeking to devise effective ways of saving costs. In Illinois, lawmakers have recently found themselves in conflict with the Illinois Supreme Court over a 2013 budget-related pension reform law. On May 8, 2015, the Court found the law unconstitutional, compelling legislators to go back to the drawing board and find alternative means of balancing the budget.
Illinois State Capitol
Springfield 1868
With the aim to reduce expenditures, the 2012-2013 Legislature passed “An act concerning public employee benefits,” meant to address “atypically large debts and structural budgetary imbalances” and an extremely low—and potentially falling— credit rating. Also, the state’s public pension system was considered the most underfunded of any in the United States. The General Assembly expressed hope that the Act would “lead to fiscal stability for the State and its pension systems.” The key provisions of the Act were:
1) terminate automatic, compounded annual cost-of-living increases for retired persons;
2) increase the retirement age for current public employees; and
3) reduce the salary amount that can be used for the calculation of pension benefits.
The Illinois State Constitution, however, includes specific pension provisions for public employees; Article 13, Section 5 describes the pensions in Illinois as a binding contract "which shall not be diminished or impaired.”
Various employee groups, retirees, and unions challenged the Act by asserting their constitutional rights. The Illinois Retired Teachers Association sued first in December, 2013, with a labor coalition named We Are One joining in the litigation a month later. The labor coalition boasted over 621,000 members, including: the Service Employees International Union (SEIU) Local 73, the Illinois AFL-CIO, the Illinois Federation of Teachers, the Illinois Nurses Association, the Illinois Police Benevolent and Protective Association, the Associated Fire Fighters of Illinois, and others. The We Are One complaint asserted that the Act violated the Illinois Constitution’s Pensions Clause and resulted in "an unconstitutional diminishment and impairment of the pension amount a member receives,” as well as violations of the Constitution’s Contracts Clause and Takings Clause.
After the Illinois Circuit Court found the pension law to be unconstitutional, the State appealed to the Illinois Supreme Court. Several amicus curae, including those submitted by professors specializing in constitutional and contract law, social service providers and the City of Chicago, supported the law and argued in favor of its legitimacy. Like the state, they argued the state’s sovereign police power enabled it to reduce the pension benefits as a way of addressing the current budget emergency.
The Illinois Supreme Court, however, unanimously voted to strike down the pension reform law. The court found that the Act violated the Pension Clause despite the financial difficulty placed upon the state with the public pension program:
“For as long as there have been public pension systems in Illinois, there has been tension between the government’s responsibility for funding those systems, on the one hand, and the costs of supporting governmental programs and providing governmental services, on the other.” Nevertheless, the court firmly concluded that the law was unconstitutional, writing that “there is simply no way that the annuity reduction provisions in Public Act 98-599 can be reconciled with the rights and protections established by the people of Illinois when they ratified the Illinois Constitution of 1970 and its pension protection clause.”
The court was also unconvinced by the State’s primary affirmative defense – that the pension reform law was a valid exercise of the State’s police power in a state of emergency. Citing the cyclical nature of the economy, the Court asserted that the State has faced fiscal struggle before and cannot lower or terminate expenditures that the Illinois Constitution protects. As one potential alternative, lawmakers have submitted legislation to confront the state debt by amending the Illinois Municipal Code. This law would allow cities in Illinois to file Chapter 9 bankruptcy petitions under the national Bankruptcy Code.
The Illinois pension reform controversy may hold an important lesson for other legislatures struggling to balance the budget, especially since six other states have constitutional protections for public pensions. If the Illinois Supreme Court’s decision is any indication of how other state courts might react, legislators would be advised to keep state constitutionality in mind when developing budget-related bills; the judiciary will likely not be receptive to economic arguments when used as justification for violating an unambiguous constitutional clause. Facing such provisions, lawmakers may ultimately be drawn to amending the state constitution as a strategy, which Illinois Governor Rauner reportedly plans to pursue in the next year.
Chloe Noonan is from Monterey, California and graduated from Sarah Lawrence College with concentrations in Modern Languages and International Studies. She anticipates graduating from Boston University School of Law with a Juris Doctor in Spring 2016. During Summer 2015, Chloe will intern at the Lawyers’ Committee for Better Housing in Chicago, Illinois, where she plans to focus on affordable housing preservation and eviction defense for low-income tenants.
Déjà Vu for a Computer Programmer: A New York Statute’s Language Saves Him Again
A former Goldman Sachs computer programmer who had a federal jury conviction for illegally taking proprietary computer code from his employer overturned in 2012 was found guilty again—only to have the conviction reversed again by a judge. The verdict came in a New York state prosecution, People v. Aleynikov. This high profile case not only inspired a character in Michael Lewis’s book Flash Boys, but it also provides an interesting example of how a statute’s text can play a pivotal role in a case’s outcome.
According to the facts in his federal appeal, Sergey Aleynikov worked as a computer programmer for
New York State Capitol
Albany 1899
Goldman Sachs from 2007-2009 where he developed complicated code for the company’s high frequency trading (HFT) system. He left the company in June 2009 to go work for a start-up trading company. However, on his last day, he uploaded more than 500,000 lines of code from Goldman Sachs’ HFT system to a server in Germany. When he arrived home, he downloaded the code to this personal computer and copied some of the files to other devices. On July 2, 2009, he traveled to attend meetings at his new company and took a flash drive with him containing some of the source code. The next day he was arrested. He was charged with violating the federal Economic Espionage Act (EEA) and the National Stolen Property Act (NSPA). After only a few hours of deliberation, a jury found Aleynikov guilty of violating both acts. However, on appeal, the Second Circuit reversed both verdicts and held that Aleynikov’s behavior did not violate either the EEA or the NSPA.
What caused the reversal despite a seemingly confident jury? The language of both statutes. Aleynikov argued that the computer code was not a “product” that was “produced for or placed in interstate commerce” as required by the EEA and that the computer code was not a “good” or “ware” under the NSPA because it was a purely intangible product. The Second Circuit agreed and adopted these fairly narrow readings of both statutes when it determined that Aleynikov’s behavior did not violate either act.
Starting with the EEA charge, the court did not resolve the question of whether intangible computer code is a “product” because it determined that Goldman’s HFT system was not “produced for” or “placed in” interstate commerce (discussion at U.S. v. Aleynikov, 676 F.3d 71 at 82). The court read these words as requirements for a person to be found guilty of violating the EEA after relying on both the act’s plain language and legislative history (discussion at pages 79-80). The court ultimately held that an internally used computer program that a company has no intention of selling was not “produced for” or “placed in” interstate commerce (discussion at page 82).
The court did address whether computer code qualified as a “good” when it looked at the NSPA because the term is undefined in the statute (discussion at page 76). The court heavily relied on precedent, including the Supreme Court’s decision in Dowling v. United States, to determine that a “good” must be a tangible piece of property taken over state lines and because code is purely intangible it does not fall under the NSPA (discussion at page 77). In Dowling, the Supreme Court held that the NSPA “clearly...contemplate[s] a physical identity between the items unlawfully obtained and those eventually transported.” (discussion at Dowling v. U.S., 473 U.S. 207 page 216). The Second Circuit also relied on similar decisions by the Tenth, Seventh, and First Circuits to conclude the NSPA does not cover the theft of intangible things and therefore, Aleynikov is not guilty of violating the act. (discussion at U.S. v. Aleynikov, 676 F.3d 71 pages 77-78).
However, the story does not end there. After his federal charges were overturned, the Manhattan District Attorney’s office decided to prosecute Aleynikov under state law. Aleynikov was charged with two counts of unlawful use of secret scientific material and one count of unlawful duplication of computer related material. The jury recently issued a split verdict and found Aleynikov guilty on one of the secret scientific material charges. The jury could not reach a decision on the second scientific material charge, and acquitted him on the duplication charge (which is a bit odd since both charges require a finding that the protected material was reproduced). For the purposes of a potential appeal, it is important to focus on the secret scientific material statute to determine whether it is likely an appeals court will overturn Aleynikov’s guilty verdict.
The statute states a “person is guilty of unlawful use of secret scientific material when...he makes a tangible reproduction or representation of such secret scientific material by means of writing, photographing, drawing, mechanically or electronically reproducing or recording such secret scientific material.” (emphasis added). Similar to the federal case, because the New York statute fails to define “tangible” or whether computer code qualifies as a tangible item, the jury was required to make this decision to determine whether Aleynikov’s transferring of source code to a flash drive violated the law. The jury spent over a week deliberating and had to have the jury instructions re-read several times before the instructions were eventually provided in writing. The jury also sent the presiding justice over a dozen notes asking for clarity on the meaning of the law, which suggested the statute is unclear. As the New York Times reported, even the justice who presided over the case expressed concern about whether Aleynikov’s actions fell within the statute. Despite the long deliberation and some odd twists and turns (including avocadogate), the jury ultimately decided Aleynikov violated the law. In July, 2015, however, the conviction was overturned by the New York State Supreme Court. Justice Daniel Conviser said prosecutors “did not prove [Aleynikov] committed this particular obscure crime.”
This case is interesting because it highlights the difficulty jurors and judges face when interpreting statutes—especially in light of advancing technology. The federal and state statutes were drafted prior to the creation of much of the technology involved in this case. After the Second Circuit’s ruling on the EEA, Congress actually amended the statute’s language.
Given the judge’s disagreement with the jury in this case, the New York statute’s language is ambiguous and clearly a barrier to prosecutors bringing future criminal charges. Like Congress, the New York Legislature will have to make amendments to the current statutes, or create a new statute that reflects current technology—and hope the language remains relevant for more than a few months.
Amanda Hesse is from Princeton, New Jersey and graduated from American University with a dual major in Law & Society and Public Communication. She anticipates graduating from Boston University School of Law with a Juris Doctor in Spring 2016. During Summer 2015, Amanda will intern at the Southern Poverty Law Center in Jackson, Mississippi, where she will focus on juvenile justice and prison conditions reform.
Unsafe at Any Age: Protecting the Adult LGBT Community from Sexual Orientation Change Efforts
Oklahoma State Capitol
Oklahoma City, 1917
While the proliferation of same-sex marriage continues to captivate most Americans, another important LGBT legal battle warrants attention. In a decision of first impression this year, the Ninth Circuit upheld California’s first-in-the-nation ban on sexual orientation change efforts (SOCE) aimed at minors. Health professionals widely debunk these practices as ineffective and criticize them as exceedingly harmful to patients. The California ban considered by the Ninth Circuit in Pickup v. Brown prohibits licensed mental health professionals from engaging minors in “therapeutic” SOCE practices such as “gay conversion therapies” that seek to alter sexual orientation. New Jersey recently passed a similar law that a federal district judge later upheld against various challenges. As many as twelve other state legislatures have considered similar SOCE bans for minors since 2012 and momentum continues thanks in part to surging public acceptance of homosexuality. While current statutes and legislative proposals are a much-needed step in the right direction, banning only SOCE for minors fails to address overarching issues with SOCE practices. As state efforts to prohibit SOCE gain steam, legislatures should consider banning the troublesome practices outright for all individuals.
SOCE practitioners claim that their practices are effective, that homosexuality is a temporary and flexible condition, and that patients can successfully subdue or eliminate homosexual thoughts and tendencies if given proper support. Their “therapies” can take a variety of forms, ranging from voluntary verbal psychotherapy to coercive and abusive practices such as electric shock, nausea-inducing drugs, hormone therapy, and masturbatory reconditioning. While aversive physical “treatments” still persist in dark corners, psychoanalytic talk therapy is the most widespread SOCE practice today.
Numerous articles highlight the dangers that can result from SOCE practices. SOCE patients—both minors and adults—face significant risks: nervous breakdowns, suicide, self-mutilation, sexual dysfunction, and psychological traumas. The American Psychiatric Association—and virtually every other professional medical association—urges mental health professionals to actively reject the notion that homosexuality is a mental illness. Leading professionals even call SOCE practices “malpractice.”
California and New Jersey’s SOCE bans for minors are significant—albeit limited—efforts to stop these harmful practices. Upon signing California’s ban into law in 2012, Governor Jerry Brown stated that, “[t]his bill bans nonscientific ‘therapies’ that have driven young people to depression and suicide,” and that “[SOCE] practices have no basis in science or medicine, and they will now be relegated to the dustbin of quackery.” The law as passed enjoyed support from a broad coalition of psychological and psychiatric associations, medical providers, and gay rights advocates. Under the ban, California’s licensed mental health providers are prohibited from “engaging in sexual orientation change efforts with a patient under 18 years of age, regardless of the willingness of a patient, patient’s parent . . . or other person to authorize such efforts.” If licensed providers defy this prohibition, they are subject to censure by their particular licensing board and could temporarily or permanently lose their ability to practice.
After several SOCE practitioners and patients took California’s ban to federal court, the Ninth Circuit’s Brown decision disposed of several constitutional challenges aimed at enjoining the statue. Among them were claims that the statute was overbroad, infringed upon First Amendment speech and association rights, and defied parents’ “fundamental right to raise their children as they see fit.” California argued that its ban for minors related to a clear and compelling interest in protecting minors’ physical and psychological wellbeing from the harms of SOCE. The Ninth Circuit agreed with California. Dismissing the challenges, the court found California’s interest in protecting children was a permissible legislative goal and considered the SOCE ban to be a rational solution. Importantly, the court also maintained that California’s ban was a “regulation of professional conduct, where the state’s power is great, even though such regulation may have an incidental effect on speech [or association].” The Court held, therefore, that state legislatures have broad authority to regulate deceptive and harmful medical practices.
While current SOCE legislation and court victories mark tremendous progress, it is unfortunate that current SOCE prohibitions fail to protect adults from serious harm and do not adequately address the fraudulent practices as a whole. States should seek to protect their entire LGBT population more stringently by enacting full prohibitions on gay conversion “quackery.” Comprehensive state SOCE prohibitions would send a strong public policy message to SOCE practitioners and the general public that SOCE “therapies” are illegitimate, dangerous, and unacceptable medical practices in the eyes of the State.
States have the constitutional authority to enact adult-inclusive SOCE bans, though they would need to allege different legislative interests in the event of a legal challenge. Yes, California’s arguments in favor of its ban primarily relied upon the protection of children, and the Supreme Court recognizes that states’ authority to control minors can be greater than their authority to control adults. However, the legislative findings behind California’s SOCE ban show that SOCE practices harm adults just as much as minors. California has a critically important interest in protecting the health and safety of its citizens from fraudulent and harmful schemes and can rely upon that interest to enact a constitutionally permissible, adult-inclusive SOCE ban.
As the Supreme Court has long noted, states have a strong interest in the health and safety of their citizens and may broadly regulate medical treatments in furtherance of this interest. State licensure of certain medical practice standards grants legitimacy to certain practices, giving patients and the public the impression that particular medical treatments are credible. While states seldom wholly prohibit particular treatments, the Supreme Court has noted that states may do so when a prohibition would further the State's safety and health interests. Accordingly, the overwhelming professional position that all SOCE practices are fraudulent, harmful, and deceptive business arrangements justifies broad state action. Since states have the authority to regulate the mental health profession and to eliminate fraudulent practices among licensed medical providers, state legislatures should enact holistic adult-inclusive SOCE bans instead of narrower bans like California’s that exclusively protect minors.
The legislative proposals enacted in California and New Jersey, as well as those pending in state legislatures across the country, serve as wonderful policy statements to LGBT youth and society generally. However, SOCE bans for minors fail to address the extent of the harm and fraud perpetrated by SOCE practitioners and do not adequately protect LGBT adults. Legislatures should make efforts to prohibit SOCE practices outright under their broad police powers, further protecting patients and giving increased legitimacy to the mental health profession.
J. Corbin Carter is from Edmond, Oklahoma and graduated from The University of Oklahoma with majors in political science and history. He anticipates graduating from Boston University School of Law with a Juris Doctor in Spring 2015. After graduation, Corbin will work for the New York City Law Department where he plans to focus on labor and employment litigation on behalf of the City.
