Understanding + Empowering: How to move forward

by James Willis Alt, Vice President of The University of Toledo College of Law ACS Student Chapter and Katherine LaRosa, President of Chicago-Kent College of Law ACS Student Chapter

What can progressive law students do to better understand bigotry and intolerance and promote diversity? This is the question we sought to answer at this year’s ACS Midwest Regional Student Convening, which drew students to Chicago from across the Midwest. We assembled attorneys, judges, and legal advocates currently working on the front lines of progressive advocacy to discuss the effect and impact of bigotry in our often divisive and polarized political discourse.

We kicked off the convening Thursday night with remarks about restoring voting rights, the role of state attorneys general, and equity in the law.

On the Friday morning panel, “Fighting Bigotry”, John Bouman, president of the Sargent Shriver Center on Poverty Law, advocated that students should not “stay in their lane” regarding intolerance and bigotry because social change comes from progressive advocates fighting for others. Further, panelists Sufyan Sohel, the deputy director & counsel at CAIR Chicago and Melody Gomez, a Chicago attorney and author of Brown Girl Talks blog discussed what students can do to engage and empower our community to effect change.

Camilla Taylor, senior counsel for Lambda Legal, delivered the keynote address. Ms. Taylor discussed pending Supreme Court cases such as Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case that could put anti-discrimination laws, and the people they protect, at risk across the country.

One highlight from the convening was the vibrant discussion of the ACS Gavel Gap report, where local federal and state judges discussed diversity on the bench. Moderated by Juan Thomas, president of the National Bar Association, the panel was composed of federal and state judges who discussed how bigotry has impacted their careers and what law students can do to promote inclusion and equity in the legal community.

Finally, student leaders from several ACS student chapters in the Midwest discussed what students can do to affect change and promote a progressive dialogue on our campuses. All in attendance walked away from this event with plans on how to further these initiatives in our communities and lives. 

Wisconsin judicial pick violated fair process

by Jeff Mandell, partner at Stafford Rosenbaum LLP and chair of the ACS Madison Lawyer 

*A shorter version of this post was distributed in Wisconsin by the Progressive Media Project and previously published by The Capital Times, the LaCrosse Tribune, and the Sun Prairie Star. 

The U.S. Constitution grants the President power to nominate judges for the federal courts “by and with the advice and consent of the Senate.” In Wisconsin, for nearly 40 years all presidents, regardless of party, have considered candidates vetted and approved by a nominating commission run by the State Bar in cooperation with both Wisconsin Senators. President Trump unfortunately broke this practice by nominating Michael Brennan for a Wisconsin vacancy on the U.S. Court of Appeals for the Seventh Circuit, though the nominating commission did not approve Brennan. Indeed, Brennan interviewed with the White House before even submitting his name to the nominating commission that ultimately did not recommend him.

This Wisconsin seat on the Seventh Circuit is the longest-standing vacancy on any federal court of appeals, open since January 2010. The seat sits empty despite prior qualified nominees. Senator Ron Johnson blocked President Obama’s first nominee, Victoria Nourse, in 2011. He complained that the commission approved her before he was elected. Senator Johnson then insisted that the commission itself was unfair, contrary to more than 30 years of precedent. On that basis, he prevented the commission from even convening to consider candidates. When Senator Tammy Baldwin was elected, she compromised with Johnson and restructured the commission. Under their agreement, the commission now includes three members appointed by each Senator, and five of the six commissioners must approve recommending any candidate for nomination.

President Obama later nominated Madison attorney Don Schott, who had received the requisite approval from five members of the reconstituted nominating commission. Schott’s nomination received majority support in the Republican-dominated Senate Judiciary Committee, led by Chair Chuck Grassley (R-Iowa). However, Johnson refused to advocate Schott’s confirmation, which expired before a full Senate vote.

When asked about his tepid support for Schott’s confirmation, Johnson expressed concern that the commission had not approved at least four candidates for the President’s consideration. However, now that the White House has ignored the bipartisan commission process entirely and nominated Brennan—who did not receive commission approval—for the same vacancy, Johnson has expressed enthusiastic support. In doing so, he has rebuked the very commission process he first demanded be rewritten to his specifications and then insisted must be followed to the letter under President Obama.

President Trump’s disregard for Wisconsin’s longstanding merit-based, bipartisan commission process is disappointing. The State Bar nominating commission seeks to mitigate the role politics and privilege play in choosing Wisconsin’s federal judges. It gives community members with vast knowledge of the judiciary and our state’s legal community a voice in identifying candidates with the intellect, character, and local support to preside over our courts. And it leaves the final decision among those candidates to the President, with the advice and consent of the Senate, as our Constitution provides.

Rather than allow Wisconsin’s commission to work, President Trump instead has delegated responsibility for choosing lifetime judicial appointees to Leonard Leo, the Executive Vice President of the Federalist Society, a right-leaning legal organization. (Brennan helped found the Milwaukee chapter of the Federalist Society.) Leo’s mission, in his own words, is to make the courts “unrecognizable.” Leo and the Senate majority want to ensure that the courts rule on critical issues including elections, the environment, money in politics, health care, voting rights, marriage equality, immigration, and reproductive rights in a way that benefits their political ideology. To facilitate the transformation of the judiciary, they are devastating longstanding norms that have served the Senate, our courts, and the country well. Senator Johnson is complicit in this process.

Senator Baldwin has decried President Trump’s decision to “turn his back on a Wisconsin tradition of having a bipartisan process for nominating judges.” Baldwin stands on firm ground, both constitutionally and historically, in defending her role to advise and consent on this vacancy. So far, Baldwin has not submitted her “blue slip” on Brennan. (Under long-standing practice, both home-state Senators must return blue slips before the Judiciary Committee will consider a nominee. The last time a nominee was confirmed over a home-state senator’s withholding of a blue slip was in 1936.) Baldwin has noted that, in the absence of commission approval, she needs to engage in thorough review before approving a nominee for a lifetime position on a federal appellate court.

The White House and the Senate’s Republican majority are determined to push through politically conservative nominees, without a thorough vetting and at the expense of the State Bar commission process. Lifetime appointments to the federal bench will reverberate decades beyond the end of this Congress and the Trump presidency. Wisconsinites should withhold support from nominees who have not undergone commission review, which Johnson himself has described as “a fair process” designed to ensure we have “qualified judges rather than candidates who were on either extreme.” Given the stakes, both in Wisconsin and across the country, Baldwin’s continued leadership in preserving advice and consent is vital.

President Trump’s Deregulation Agenda Clashes with the Cure for the Opioid Epidemic

by Valarie Blake, Associate Professor of Law, West Virginia University College of Law

President Trump’s speech on the opioid epidemic last week was seen by many as an unproductive harkening back to the war on drugs. Trump focused on illicit street drugs, decrying criminals who deal those drugs and arguing that his border wall will stem the flow of heroin from Mexico. He stressed personal responsibility on the part of drugs users and threatened criminal liability, also promising a national campaign to discourage opioid abuse akin to President’s Reagan’s “Just Say No” campaign in the 1980s. Meanwhile, his declaration of a national public health emergency came without any commitment of federal funding.

Trump has good reason to frame the opioid epidemic as a black-market issue. His voters are the population hardest hit by the opioid epidemic who desperately need action, and these same voters embraced an agenda that would have the president address this crisis as we have addressed other illegal drugs.

Unfortunately, the cures needed for the opioid epidemic are different and are not so easily reconciled with Trump’s promises to roll back regulation and shrink government. Prescription painkillers are a legal market and the opioid epidemic is a story of under-regulation and under-enforcement of federal and state law. Federal agencies decide how many opioids to make, pharmaceutical companies make them, drug wholesalers distribute them to state-licensed healthcare providers who prescribe them, and patients use public or private insurance to pay for these legal pills at pharmacies. Every step in the stream of commerce of opioids is lawful and above ground (with the exception of those pills that get diverted and sold, or the heroin that many have turned to as a cheaper and more readily available alternative to prescription drugs). Deregulation is dangerous.

Take, for instance, the recent Washington Post and 60 Minutes investigation into the Ensuring Patient Access and Effective Drug Enforcement Act. This Act makes it nearly impossible for the DEA to freeze shipments of dangerously high quantities of opioids or to halt drug companies’ operations when they fail to comply with law, according to DEA Chief Administrative Law Judge John J. Mulrooney in a draft article. This effort to curb DEA power by drug lobbyists came after the DEA had fined drug wholesalers hundreds of millions of dollars for failing to report drug orders of “unusual size, orders deviating substantially from a normal pattern, and orders of unusual frequency.”

Without stringent enforcement by the DEA, we had cases like West  Virginia, where more than 780 million hydrocodone and oxycodone pills poured into the state over a six-year period, amounting to 433 pills per citizen and driving overdose deaths of 1,728 people. Three drug wholesalers supplied these medications to state clinics and pharmacies, ignoring rules set by the state’s Board of Pharmacy that required they report suspicious amounts to the Board who, in turn, never enforced the rules. While those events happened prior to the Trump administration, they are exemplary of ways in which under-regulation and under-enforcement of the laws led to the opioid crisis and why further efforts to deregulate could prove a tremendous roadblock in achieving any progress in the future.

Under the Trump administration, efforts to repeal and replace the Affordable Care Act (ACA) or to stymie its efficacy would have immediate and irreversible harms for opioid users. Drug users have historically faced discrimination in accessing substance abuse treatment, which is integral to stop the growing rates of addiction and overdose. The ACA is the first law to mandate that insurers cover mental health and substance use disorder services through its essential health benefits provision. (Prior to the ACA, a law called the Mental Health Parity and Addictions Equity Act only mandated that insurers who choose to provide such services cover them in ways that are equivalent to how they cover other services.) An ACA repeal is an open invitation to insurers to stop providing access to these sometimes costly therapies, leaving those suffering from addictions with no opportunity for recovery.

A repeal of the Medicaid expansion would have similar effects, as a portion of opioid abusers are covered by Medicaid. The antidiscrimination protections in the ACA that prohibit health-status discrimination are also critical for opioid users. Private and public insurers have been doing tremendous work to create algorithms that can identify individuals who are at risk of abusing opioids so as to provide early interventions that avoid addiction. As I have argued elsewhere, this is an extremely promising and productive effort by insurers so long as protections are in place to prohibit insurers from using this information to then discriminate against substance abusers. An ACA repeal or replacement might allow health status discrimination to be reintroduced into insurance markets and insurers would have blueprints to identify which patients are at risk of costly addiction services and to remove them from health plans or increase their premiums.

While an ACA repeal and replacement seems to be on hold, efforts to strip away enforcement of the ACA through executive orders are also proving harmful to the opioid crisis. Trump’s October 12 Executive Order allowed certain innovation to occur in the insurance market which many believe will lead consumers to be able to drop ACA-compliant health coverage in favor of less robust plans. This might lead healthier people to drop out of more restrictive markets, driving up the cost of plans that cover more robust services like addiction treatment. Trump has also promised to end cost-sharing subsidies to insurers, which is expected to drive up premiums (and ultimately drive up the cost the federal government has to pay to subsidize those premiums). The effect may be costly, less easily accessible health insurance and instability in the markets.

While Trump may have promised deregulation, he owes his voters salvage from the wreckage of this horrible crisis. Experts in the opioid epidemic should emphasize how deregulation is harmful and ineffective in the context of opioids and why opioids require different remedies from illegal drug markets.

Robert Mueller’s Message to Paul Manafort: Cooperate Now or You’ll Regret It

by Barbara McQuade, Professor from Practice, University of Michigan Law School, and former U.S. Attorney for the Eastern District of Michigan

*This piece was originally published on The Daily Beast.

The unsealing of the indictment charging former Trump campaign chairman Paul Manafort was only the second-most significant piece of news Monday.

The more significant news was the guilty plea of former Trump campaign adviser George Papadopoulos, who was arrested in July and entered a guilty plea about three weeks ago. The documents revealing those facts were also unsealed today. And the timing of the two being filed on the same day is likely no coincidence.

While the Manafort charges are important because of the role he played as one-time Trump campaign chairman, the charges themselves allege improper financial transactions and failure to disclose foreign lobbying activities, offenses that are unrelated to the Trump campaign. Rick Gates, Manafort’s business partner and a Trump campaign official, was also charged. The charges against Manafort may provide leverage to encourage him to cooperate in the investigation, but the charges against Papadopoulos relate directly to connections between the Russian government and the Trump campaign.

Papadopoulos has pleaded guilty to charges of making false statements to the FBI in connection with its investigation into Russian interference in the election. The false statements relate to his interactions with an overseas professor with substantial connections to Russian government officials and a female Russian national that be believed had connections to the Russian government. The documents state that the professor told Papadopoulos that he had “dirt” about Hillary Clinton in the form of “thousands of emails.” Papadopoulos admitted to lying about the timing and substance of his conversations with these individuals, and about his efforts to use the professor’s connections to arrange a meeting between the campaign and Russian government officials. Not quite collusion, but getting closer.

The Papadopoulos plea agreement makes reference to his cooperation. It is likely a strategic decision by Mueller to unseal both sets of charges on the same day. Mueller seems to be sending a message that cooperators get deals, and that Manafort faces additional potential criminal exposure. Earlier reports indicated that Mueller’s team had warned Manafort’s lawyers that he would be indicted. This information is often communicated to a target before indictment to provide an opportunity to cooperate before he faces criminal charges. The fact that he was indicted suggests that he has not cooperated to date.

Manafort may want to reconsider his decision in light of the news about Papadopoulos. A document attached to the plea agreement sets out detailed allegations of the offense. It identifies four Trump campaign officials without naming them as a “Campaign Supervisor,” two “High-Ranking Campaign Officials,” and a “Senior Policy Advisor.” This naming convention complies with Department of Justice policy protect the names of co-conspirators who are not being charged. But while the public does not know the identities of these four campaign officials, Manafort likely does. He may even be one of the unnamed officials in this document, filed on Oct. 5, before he himself was charged. It may also be that these officials are cooperating in the investigation or at least have an incentive to do so to avoid charges. Manafort may want to beat them to the table. Oftentimes, the early cooperators get the best deals.

The document includes a number of interesting factual assertions about these other officials. According to the document:

  • Papadopoulos sent an email to the Senior Policy Advisor that “the Russian government has an open invitation by Putin for Mr. Trump to meet him when he is ready.”
  • Papadopoulos emailed one High-Ranking Campaign Official “to discuss Russia’s interest in hosting Mr. Trump. Have been receiving a lot of calls over the last month about Putin wanting to host him and the team when the time is right.”
  • The High-Level Campaign Official forwarded this email to another high-level campaign official with the note, “Let’s discuss. We need someone to communicate that DT is not doing these trips. It should be someone low level in the campaign so as not to send any signal.” Some reports indicate the official who sent this message is Manafort.
  • The High-Ranking Campaign Official referred Papadopoulos to the Campaign Supervisor regarding planning a potential meeting with Russia “because he is running point.”
  • Papadopoulos sent an email message to the Campaign Supervisor advising him of a request by the Russian Ministry of Foreign Affairs to see whether Trump was interested in visiting Russia.
  • The Campaign Supervisor sent an email to Papadopoulos stating, “I would encourage you” and another foreign policy adviser to the campaign to “make the trip[], if it is feasible.”

 

Why Is Wisconsin—and 23 Other States—Challenging the Constitutionality of the Federal Supplemental Jurisdiction Statute?

by Jeff Mandell, partner at Stafford Rosenbaum LLP and Chair of the ACS Madison Lawyer Chapter.

Tomorrow, the Supreme Court hears argument in Artis v. District of Columbia, a procedural dispute about the interaction of federal jurisdictional statutes and state limitation periods. It is fairly dry stuff, so much so that it drew only two amicus briefs, far below average. But one of those amicus briefs, filed by the State of Wisconsin and joined by 23 others States, attempts to constitutionalize the dispute, with broad implications.

The Artis case is about the proper interpretation of the federal supplemental jurisdiction statute, 28 U.S.C. §1367. That statute authorizes federal courts with subject-matter jurisdiction over some claims to exercise jurisdiction over related state-law claims that could not independently be brought in federal court. The statute further provides that, in the event the federal court dismisses the claims that qualified for federal jurisdiction, the federal court has the option of maintaining jurisdiction over the state-law claims or dismissing them without prejudice.

The complication arises in subsection (d), which provides that, if the federal court dismisses a state-law claim, the limitation period “shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.” Does this mean, as Artis contends, that a plaintiff who files suit early in the limitation period retains the time remaining in that period as of the filing date, plus an additional 30 days? Or, as D.C. asserts, does the statute grant plaintiffs a 30-day window after dismissal to refile—and nothing more?

Each side makes arguments under traditional methods of statutory construction. But the most intriguing brief is Wisconsin’s, which argues that the federal Constitution tips the scales in D.C.’s favor. According to Wisconsin’s brief, Artis’s interpretation of §1367(d) would violate the Constitution. This is an aggressive position. Notably, D.C. has not even hinted at such a view.

Wisconsin roots its argument both in inherent principles of federalism and in the limitations of congressional power to establish rules for federal trial courts under Article III, Section 1. The basic idea is that States get to establish limitation periods for violations of state law and that Congress lacks power to override those state constraints because doing so is not “necessary and proper” to Congress’s role creating federal trial courts. Thus, Wisconsin reasons, “Congress would have no authority to enact [Artis’s] understanding of Section 1367(d).” (Br. at 22.)

To support this argument, Wisconsin hypothesizes the worst possible scenario, based on three criteria: (1) plaintiff files early in the limitation period; (2) litigation in the federal court is drawn-out for years before dismissal of the state-law claims; and (3) plaintiff delays refiling in state court for more than the 30-day grace period that all parties agree is provided by §1367(d). Where any one of these three criteria is absent, Wisconsin’s fears are unrealized. Artis mildly fits this scenario: she filed suit in D.C. court nine-and-a-half months after the three-year limitation period would have expired for most of her claims but for her federal suit.

Wisconsin argues that, because allowing Artis’s suit to proceed would, in effect, extend D.C.’s limitation period, it would improperly overwhelm local prerogatives. Of course, Wisconsin foresees situations more egregious than Artis: “the longer the state limitations period is extended, the greater the harm is to sate interests in avoiding state courts finding themselves awash in claims too stale to be adjudicated certainly.” (Br. at 21 (internal quotation marks omitted).)

This argument falls short in two respects. First, Wisconsin has to stretch for examples with is a significant extension beyond the state-law limitation period. Having presumably case a wide net and searched the tens of thousands of federal cases filed every year, Wisconsin found only seven examples worth citing—over the last 17 years. (See Br. at 20-21 (citing cases).)

Second, Wisconsin’s fearmongering about staleness is unconvincing. These cases involve parties who began litigating in federal court within the limitation period. That means both sides have notice of the dispute and bear obligations to preserve evidence. It follows that even a dismissal and delay before refiling in state court is unlikely to preclude a fair trial. And even if staleness is a concern, under Wisconsin’s worst-case scenario, the plaintiff—who decides when to refile in state court—bears the harm, as the party with the burden of proof.

That said, as weak as Wisconsin’s claimed harms are, the record contains little offsetting benefit to Artis’s preferred reading. Artis has indicated that plaintiffs who file early in the limitation period should have the benefit of the time they did not use earlier to reassess after dismissal of their federal claims. That’s not a slam-dunk argument, but it has some intuitive appeal. Further, it is not Artis’s obligation to defend Congress’s interests and prerogatives, and the United States has not filed a brief articulating its view.

Ultimately, Wisconsin’s argument is an intriguing one, but its brief seems rhetorically overheated. Wisconsin’s repeated invocation of limitation periods extended by years—a remote possibility constantly emphasized in the brief with italics—is strained. And the argument that, if Artis’s interpretation of §1367(d) holds, “there would be no stopping point to what Congress could do to state statutes of limitations” (Br. at 25), is a particularly unconvincing slippery slope. Perhaps these issues contributed to the denial of Wisconsin’s request to participate in oral argument.

In some ways, the most interesting aspect of Wisconsin’s brief—besides a thought-provoking argument—is the list of signatories. Twenty-three other states joined Wisconsin’s brief, and not all of them are represented by attorneys general who reflexively favor states’ rights over the federal government. Perhaps this is a symptom of a rising tide of progressive federalism. If so, challenging the constitutionality of an established jurisdictional statute is an odd choice of a test issue, especially as, were Wisconsin’s argument to prevail, courthouse doors would close a little more against plaintiffs.

Regardless, Wisconsin’s brief raises an unexpected issue and adds a new facet to this procedural dispute. It bears watching to see if the Court asks the parties about Wisconsin’s arguments or if the final opinion addresses the issue in a way that informs our understanding of what test federalism arguments will need to meet in determining whether a legislative enactment is indeed “necessary and proper” to fulfilling one of Congress’s enumerated powers. 

Building a Pipeline of Reform-Minded Prosecutors

by Sheila Bapat, Program Director, California Bar Foundation

California Bar Foundation has been excited to partner in the Meet Your DA event series here in California. Led by the ACLU of Northern California, this four-part event series is shining a light on the power of District Attorneys (DAs) and how prosecutors can be vehicles for social change. The final event in this series will take place in Los Angeles this week, on November 1. It has been a privilege to partner with the ACLU along with Smart Justice California and the American Constitution Society for Law & Policy to reach law students throughout the state with this message.

California Bar Foundation’s mission is to build a better justice system -- for all Californians. We believe that every Californian deserves access to justice, and that lawyers working in this system should be representative of the communities they serve. We fund legal aid fellowship opportunities and scholarships for diverse law students throughout California who are devoted to making social change. We also fund pipeline programs throughout California to empower high school, community college and college youth to consider careers in the law.

To truly build a better justice system, lawyers with power—including prosecutors—must be representative of, and seek to work for, the people of California. Our strategy is to invest in a pipeline of diverse law students who will one day become leaders of our profession.

Why do we focus on supporting diverse law students? California is a majority-minority state. While Latinos and African-Americans make up 38.8 percent and 6.5 percent of California’s population respectively, they make up 42 percent and 29 percent  of California's incarcerated population, respectively.  Nearly two-thirds of men incarcerated in California are black or brown.

The legal profession can help change this. A very small percentage of California lawyers are black or brown and people of color as a whole make up just 20 percent of the state’s lawyers.  A study by Stanford’s Criminal Justice Center found that in 52 of the 58 California counties, 70 percent of prosecutors are white.  And while 40 percent of California’s population is Latino, only 9 percent of prosecutors are Latino. Nationwide, the numbers are worse. According to a report by the Women Donors Network, 95 percent of all elected prosecutors in the United States are white.

Diversity is important for creating a better justice system -- it is not just for the sake of diversity. As the Stanford Criminal Justice Center has noted, “prosecutors are more likely to charge black defendants than white defendants with offenses carrying stiff mandatory minimum sentences, and more likely to charge black defendants than white defendants under laws providing longer sentences for habitual offenders.”

Right now, law students of color are generally not inclined to be prosecutors. Many seek to be a public defender or some other form of justice advocate, and we are committed to continuing to build a pipeline for these critical areas as well.

But we also need to ensure we have diverse, reform-minded law students who want to be prosecutors, too. Given the level of discretion prosecutors have, criminal justice reform efforts need reform-minded prosecutors in order to succeed. As Adam Foss has noted, “The unfairness of it all made me want to be a public defender. The power dynamic made me want to be a prosecutor.”

For all of these reasons, we are now building a pipeline of reform-minded prosecutors of the future.

Once the Meet Your DA event series wraps up, our work will just be beginning. We will partner with diversity pipeline programs throughout the state -- programs that empower high school, community college and college youth to consider careers in the law -- to provide exposure to reform minded prosecutors.

We will continue organizing webinars and events for law students to gain exposure to reform-minded prosecutors in collaboration with the many terrific organizations in California doing this work.

Finally, we will be providing paid fellowship opportunities for law students and recent graduates who are committed to being reform-minded prosecutors in California.

We are excited to partner with ACS and so many other groups in this critical pipeline work to ensure that prosecutors of the future are committed to criminal justice reform.