Author Archives: Michael Froomkin

Miami Human Rights Clinic Wins Big Women’s Rights Case Before Inter-American Commission on Human Rights

Posted on August 17, 2011 by Michael Froomkin

U. Miami lawyers from our new Human Rights Clinic won a major moral victory for their client Jennifer Lenahan (formerly formerly Jessica Gonzales) in a decision announced today July 21, 2011 by the Inter-American Commission on Human Rights, Jessica Lenahan (Gonzales) v. United States. Ms. Lenahan got nothing from the US Supreme Court in 2005, losing big in the famous Castle Rock v. Gonzales case, an occasion in which the Supreme Court (per Justice Scalia) famously held that Ms. Gonzales (as she then was) did not have an enforceable Due Process Clause interest in police enforcement of a restraining order against her husband even when the police had probable cause to believe the order had been violated. In the event, despite her telephoned pleas, and the fact that violation of the restraining order was a crime under Colorado law, the Castle Rock, Colorado police did nothing — and Ms. Lenahan’s husband murdered her three daughters.

In contrast, the IACHR said today that the US authorities’ pattern of insufficient attention to domestic violence and violence against women, combined with the failure to react in this case, violated US obligations:

[T]he Commission holds that the systemic failure of the United States to offer a coordinated and effective response to protect Jessica Lenahan and her daughters from domestic violence, constituted an act of discrimination, a breach of their obligation not to discriminate, and a violation of their right to equality before the law under Article II of the American Declaration. The Commission also finds that the State failure to undertake reasonable measures to protect the life of Leslie, Katheryn and Rebecca Gonzales, and that this failure constituted a violation of their right to life established in Article I of the American Declaration, in relation to their right to special protection contained in Article VII of the American Declaration. (¶ 170)

Congratulations to Carrie Bettinger-Lopez, our students from the Clinic, and all the other lawyers from around the country involved in this case.

Here’s part of the IACHR’s unofficial summary of the decision:

The restraining order was the only means available to Jessica Lenahan at the state level to protect herself and her children in a context of domestic violence, and the police did not effectively enforce it. The state apparatus was not duly organized, coordinated, and ready to protect these victims from domestic violence by adequately and effectively implementing the restraining order. These failures to protect constituted a form of discrimination in violation of the American Declaration, since they took place in a context where there has been a historical problem with the enforcement of protection orders; a problem that has disproportionately affected women since they constitute the majority of the restraining order holders.

The Commission established that the State did not duly investigate the complaints presented by Jessica Lenahan before the death of her daughters. The State also failed to investigate the circumstances of their deaths once their bodies were found. Consequently, their mother and their family live with this uncertainty, and the law enforcement officers in charge of implementing the law have not been held accountable for failing to comply with their responsibilities.

The Commission encourages the United States to comply with the recommendations contained in the Merits Report, which include to conduct a serious, impartial and exhaustive investigation into systemic failures that took place related to the enforcement of Jessica Lenahan’s protection order, to reinforce through legislative measures the mandatory character of the protection orders and other precautionary measures to protect women from imminent acts of violence, and to create effective implementation mechanisms, among others.

A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for human rights in the region and acts as a consultative body to the OAS in this matter. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.

Here’s the text of the lawyers’ press release:

Landmark Human Rights Case Finds that Failure to Enforce a Restraining Order and Indifference to Domestic Violence Led to Daughters’ Deaths

In a landmark decision, an international tribunal has found the U.S. government responsible for human rights violations against a Colorado woman and her three deceased children who were victims of domestic violence.

Jessica Lenahan (Gonzales) v. United States is the first case brought by a domestic violence survivor against the U.S. before an international human rights body, the Inter-American Commission on Human Rights (IACHR). The IACHR ruling also sets forth comprehensive recommendations for changes to U.S. law and policy pertaining to domestic violence.

The case concerns a tragic 1999 incident in which police in Castle Rock, Colorado failed to respond to Jessica Lenahan’s repeated calls for help after her estranged husband, Simon Gonzales, kidnapped their three young children in violation of a domestic violence restraining order. Ten hours after Lenahan’s first call to the police, her husband drove up to the Castle Rock Police Department and began firing his gun at the police station. The police returned fire, killing Gonzales. Inside the truck, the police found the bodies of the three girls – Rebecca, Katheryn, and Leslie – who had been shot dead. Local authorities failed to conduct a proper investigation into the children’s deaths, resulting in questions about the cause, time, and place of their deaths that remain to this day.

“I have waited 12 years for justice, knowing in my heart that police inaction led to the tragic and untimely deaths of my three young daughters,” said Lenahan. “Today’s decision tells the world that the government violated my human rights by failing to protect me and my children from domestic violence.”

Lenahan is represented by the Human Rights Clinic at the University of Miami School of Law, the Columbia Law School Human Rights Clinic and the American Civil Liberties Union.

“The commission’s determination that the United States violated Ms. Lenahan’s and her children’s human rights by failing to ensure their protection from domestic violence has far-reaching implications,” said Professor Caroline Bettinger-Lopez, director of the Human Rights Clinic at the University of Miami School of Law. “As our country seeks to promote human rights of women and children around the world, we must also look at our own record here at home.”

The commission’s decision stands in stark contrast to the U.S. Supreme Court’s decision in Town of Castle Rock v. Jessica Gonzales (2005), where the justices ruled that Lenahan (then Gonzales) had no constitutional right to police protection, and that the failure of the police to enforce Lenahan’s order of protection was not unconstitutional. Lenahan then filed a petition against the U.S. before the IACHR, alleging violations of international human rights. “Now that the commission has appropriately found the police and the United States responsible for their appalling lack of action, it is critical that they be held accountable,” said Lenora Lapidus, director of the ACLU Women’s Rights Project. “We can no longer accept police departments’ failure to treat domestic violence seriously and to regard it as simply a private matter unworthy of serious police attention.”

Established in 1959, the Inter-American Commission on Human Rights is charged with promoting the observance of and respect for human rights throughout the Americas. The commission is expressly authorized to examine allegations of human rights violations by all 35 member-states of the Organization of American States, which includes the United States, and to investigate specific allegations of violations of Inter-American human rights treaties, declarations and other legal instruments.

“We know that the issue of violence against women is one that the Obama Administration cares deeply about,” said Peter Rosenblum, director of the Columbia Law School Human Rights Clinic. “We encourage the Administration to work with the appropriate state and local officials to address and adapt the Commission’s recommendations in a meaningful way.”

More information on this case can be found at:
www.aclu.org/human-rights-womens-rights/jessica-gonzales-v-usa;
www.law.miami.edu/hrc/hrc_gonzalez_usa.php;
www.law.columbia.edu/human-rights-institute/initiatives/interamerican/gonzales

Posted in Law: Everything Else, Law: International Law | 2 Comments

The Headlilne You Will Never See

Posted on August 17, 2011 by Michael Froomkin

Bachmann Pals Around With Terrorist.

Posted in Politics: Tinfoil | 9 Comments

The Philosopher Knows?

Posted on August 17, 2011 by Michael Froomkin

The best argument I have seen for there being a method in what seems to me to be the madness of President Obama’s passivity in the face of his opponents’ political insanity is The Shadow by Robert Paul Wolff, a noted philosopher, long-time (white) professor of Afro-American Studies, and recent and enthusiastic convert to blogging.

Wolff argues eloquently that the Obama strategy is to entice his opponents into ever-greater extremism (as if that took effort?) until they reach the point that they turn off their followers. It is possible that this is a correct reading of the Obama playbook or of his instincts. And while it is possible that this is a good strategy for a community organizer, I still believe it is a crummy way to govern because of all the pain it allows while one waits for the tectonic plates to decide if they want to shift.

I wish I could buy Wolff’s argument, I’d be more cheerful. I don’t, because I think it understates the ability of the Presidency to change the political landscape, both by use of presidential power, and by moving the frame of what is considered first possible than normal. And it creates a false dichotomy in which the only alternative to passivity is anger; in fact the alternative to passivity is boldness.

Obama claims to admire Ronald Reagan. Reagan did not seek bipartisanship as an end in itself, although it’s clear that part of his strategy was geared to northern lunchpail Democrats, and Southern religious mostly-whites. Reagan made a point of looking bold and in doing things that would never command a consensus — like breaking the Air Traffic Control union. Reagan, though, had the advantage of a less disciplined opposition party than the one Obama faces, and this too is a part of Wolff’s argument as to why the Obama patience is a good strategy. It’s not a long essay and it’s worth a read.

As we used to say, and as Wolff seems to be saying, you don’t fight fire with fire — you fight it with water.

Update: I wonder if Wolff was reacting to Ta-Nehisi Coates’s remark (about Rick Perry’s first gaffe as a Presidential candidate) that,

It’s almost as if Obama has this mutant power to compel these guys into charging, full steam, into a wall of spikes.

Posted in Politics: US | 3 Comments

Floirida Supreme Court Holds that Governor’s Regulatory Freeze Violates Florida Separation of Powers and State APA

Posted on August 16, 2011 by Michael Froomkin

The Florida Supreme Court has decided Whiley v. Scott. That’s Gov. Rick Scott, and he lost, so the regulatory freeze, one of his first acts as Governor — taken less than an hour after taking office — is toast.

In exercising our discretion to resolve this matter, we grant relief and specifically hold that the Governor impermissibly suspended agency rulemaking to the extent that Executive Orders 11-01 and 11-72 include a requirement that the Office of Fiscal Accountability and Regulatory Reform (OFARR) must first permit an agency to engage in the rulemaking which has been delegated by the Florida Legislature. 1 Absent an amendment to the Administrative Procedure Act itself or other delegation of such authority to the Governor‘s Office by the Florida Legislature, the Governor has overstepped his constitutional authority and violated the separation of powers.

and

To the extent that Executive Order 11-01—and superseding Executive Order 11-72 (issued subsequent to the date Whiley filed her petition)—suspend the rulemaking process established by the Florida Legislature under Chapter 120, the Florida Administrative Procedure Act (APA), we conclude that the Governor exceeded his constitutional authority.

The majority opinion (a per curiam for five of the Justices) has some scathing footnotes about the dissent by Justice Polston.

The Court decided the case on a state writ of quo warrento presented to it as an original matter. (You don’t see that every day.) I think it’s safe to say that if this had been a Presidential action under federal law, the Supreme Court would not have taken original jurisdiction, and the lower courts would most likely have rejected this particular challenge for lack of standing even if the action were in fact heinously illegal. But Florida law is notoriously different, both in its separation of powers and even more so in its administrative law. Indeed Florida’s APA is one of the most different in the nation from the federal system, so much so that although I know my way around the federal APA pretty well, I don’t claim any expertise about state administrative matters. This case well illustrates some of those differences in action.

There is an element of judicial statecraft (some might say activism) here, in that the Court essentially admits that its decision to decide the case — at least as an original filing direct to the Supreme Court — was discretionary. The reasons it gives for choosing to act are these:

As a general rule, unless there is a compelling reason for invoking the original jurisdiction of a higher court, a quo warranto proceeding should be commenced in circuit court. See Vance v. Wellman, 222 So. 2d 449, 449 (Fla. 2d DCA 1969). This Court may choose to consider extraordinary writ petitions “where the functions of government would be adversely affected absent an immediate determination by this Court.” Chiles, 714 So. 2d at 457; see, e.g., Allen v. Butterworth, 756 So. 2d 52, 55 (Fla. 2000) (entertaining jurisdiction on a petition for writ of mandamus where failure to resolve the issue would result in a large number of postconviction death case proceedings being in “limbo,” and where the responsibilities of a large number of state-employed attorneys would be affected); Moreau v. Lewis, 648 So. 2d 124, 125-26 n.4 (Fla. 1995) (entertaining jurisdiction on a mandamus petition which sought to invalidate a portion of a General Appropriations Act that required Medicaid recipients to make a $1 copayment for pharmacy services, finding that “an immediate determination is necessary to protect governmental functions,” and noting that there was no relevant factual dispute which would require “extensive fact-finding”). Moreover, in Harvard v. Singletary, 733 So. 2d 1020, 1021-22 (Fla. 1999), this Court explained that it would “decline jurisdiction and transfer or dismiss writ petitions which . . . raise substantial issues of fact or present individualized issues that do not require immediate resolution by this Court, or are not the type of case in which an opinion from this Court would provide important guiding principles for the other courts of this State.” (Emphasis in original).

We find that the present case raises a serious constitutional question relating to the authority of the Governor and the Legislature respectively in rulemaking proceedings. The issue of whether the Governor has the power to suspend agency rulemaking directly and substantially affects the fundamental functions of state government. We also note that a decision from this Court on such an issue would provide important guiding principles to other state courts, and that there do not appear to be any substantial disputes of material fact. Accordingly, we exercise our discretionary jurisdiction and entertain the petition for writ of quo warranto.

Discretion to take cases exists to be used — at least sometimes. I think what I quoted above is a reasonable justification of why the Court exercised its discretion, particularly when one considers that this case raised a claim of an on-going violation, not just a past one. I suspect nonetheless that this explanation will not persuade everyone. Indeed, no doubt someone somewhere will scream this is a political outcome — and it is definitely an embarrassing loss for the Governor — but I think the 5-2 result, including two of the four Justices appointed by Charlie Crist and one Justice appointed with the approval of then-Governor elect Jeb Bush, ought to dampen that a bit. Not that it will stop those who say Crist wasn’t actually a Republican Governor …

It’s also important to note that the Court’s opinion leaves open a straight-forward work-around to its decision: pass a new statute explicitly giving the Governor the authority he tried to exercise. Even thought I suspect this Republican-dominated legislature is not feeling that kindly to its fellow Republican, it might do so.

Posted in Florida, Law: Constitutional Law | Comments Off on Floirida Supreme Court Holds that Governor’s Regulatory Freeze Violates Florida Separation of Powers and State APA

Research Assistant Wanted (2011-12)

Posted on August 15, 2011 by Michael Froomkin

I would like to hire a 2L or 3L to be my research assistant for the coming school year. You should expect to work 10-15 hours/week.

The work primarily involves assisting me with legal research relating to papers I am writing on privacy and on Internet regulation.

I need someone who can write clearly and is well-organized. If you happen to have some web or programming skills (some or all of WordPress, HTML, MySQL, Perl, Debian), that would be a plus but it is not in any way a requirement.

The pay of $13 / hr is set by the university, and is not as high as you deserve, but the work is sometimes interesting.

If this sounds attractive, please e-mail me the following with the subject line RESEARCH ASSISTANT 2011 (in all caps), followed by your name:

  1. A note telling me
    • How many hours you’d ideally like to work per week
    • When you are free to start.
    • Your phone number and email address.
  2. A copy of your resume (c.v.).
  3. A transcript of your grades (need not be an official copy).
  4. If you have one handy, also attach a short NON-legal writing sample. If you have none, I’ll accept a legal writing sample (whatever you do, though, please don’t send your L-Comm/LRW memo).
Posted in U.Miami | 1 Comment

Terrible Fact

Posted on August 14, 2011 by Michael Froomkin

More U.S. soldiers and veterans have died from suicide than from combat wounds over the past two years. (Source)

Posted in National Security | 3 Comments