02.24.11
Posted in Constitutional and Civil Rights Law, Litigation, Real Estate Law at 20:39 by Administrator
Q. I own a residential property which I rent to tenants. Currently, I have tenants with whom my dealings have been unusually difficult; every time I have had to remind them to be courteous to their fellow tenants and neighbors (e.g., noise complaints, parking complaints, etc.), these difficult tenants respond by implying that I am “harassing” them only because of their race/ethnicity. If these tenants file a complaint with the government, and the government pursues a frivolous lawsuit against me, will I be able to recover the cost of my attorney fees if (when) I win the lawsuit?
A. Housing discrimination claims are claims for violation of a specific type of civil right. However, unlike most claims which allege violation of a civil right (e.g., claims brought to enforce rights protected, for example, by the First Amendment or Fourth Amendment to the Constitution), which typically are brought by individuals against the government, housing discrimination claims often are prosecuted by the government against individuals (owners/landlords) or businesses (third-party property managers).
In cases where an individual prevails in a civil rights lawsuit brought by that individual against the government, the individual usually may obtain an award of attorney fees in addition to any money judgment which is entered against the government. Thus, when an individual wins this type of civil rights lawsuit against the government, the government usually will have to pay, in addition to civil damages, some or all of the attorney fees incurred by the individual whose rights were violated.
However, according to one California Court of Appeal, landlords and property managers may not recover from the State of California attorney fees incurred by the landlord or property manager to defend against a frivolous housing discrimination lawsuit brought by California’s Department of Fair Employment and Housing (DFEJH). DFEH v. Mayr, H034935 (Sixth District, February 9, 2011). A copy of the court’s opinion in Mayr is available without charge at: http://earlelaw.com/news_real_estate.html.
Even though there is a long-standing principle in American law that one is innocent until proven guilty, the defacto assumption when the government brings a housing discrimination claim against a residential landlord orproperty manager seems to be that the landlord or property manager is [of course] guilty as charged. This defacto presumption pervades popular culture and, apparently (and more troubling), is also ingrained in the institutional thought of the California legislature and at least one California state appellate court.
In order to protect yourself, to the extent possible, from having to defend against frivolous housing discrimination claims (as well as against claims which may arise from unintentional violation of housing law) best practices suggest that landlords and property managers have an ongoing relationship with a real estate attorney whom they can regularly confer with, as needed. To assist landlords and property managers in this regard, Earle Law Offices offers the LAW (Lawyer Available Whenver) Plan, which provides a cost-effective means of obtaining legal advice when such advice is most-needed: before a legal problem arises, or as soon thereafter as possible. For details, please visit: http://earlelaw.com/lawplan.html.
*Anthony F. Earle, Esquire is a California attorney and real estate broker who maintains a practice in the Silicon Valley area of northern California. He can be reached at: anthony.earle@earlelaw.com. This article is intended for information and educational purposes only, and is not intended to constitute legal advice.
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11.23.10
Posted in Constitutional and Civil Rights Law at 18:00 by Administrator
Q. Most Americans probably have heard the story of how the Pilgrims, landing in Massachusetts on the Mayflower in 1621, celebrated the first Thanksgiving with the Indians. But how, and when, did Thanksgiving become a federal holiday?
A. Many of us, especially if we attended American public grade school, have heard the story of how the Pilgrims, landing in Massachusetts on the Mayflower in 1621, were ill equipped to survive the harsh winters of the New World. It is also likely we were told how the Pilgrims met an Indian named Squanto, who befriended and taught them how to survive in their new wilderness home, and who acted as an interpreter.
Less well-known is that Squanto accepted the Pilgrims’ Christian faith, and that the purpose of the first Thanksgiving Feast – more than 150 years before ratification of the U.S. Constitution – was to give thanks to God. See, Ashbel Steele, Chief of the Pilgrims: Or the Life and Time of William Brewster (Philadelphia: J.B. Lippincott & Co, 1857), pp. 269-270.
Thanksgiving did not become a federally recognized holiday until 1863, when President Abraham Lincoln declared a national day of Thanksgiving. However, George Washington, in 1789, was the first American president to proclaim a national day of Thanksgiving.
“On the day after the House of Representatives voted to adopt the form of the First Amendment Religion Clauses which was ultimately proposed and ratified, Representative Elias Boudinot proposed a resolution asking President George Washington to issue a Thanksgiving Day Proclamation. Boudinot said he ‘could not think of letting the session pass over without offering an opportunity to all the citizens of the United States of joining with one voice, in returning to Almighty God their sincere thanks for the many blessings he had poured down upon them.’” Wallace v. Jaffree, 472 U.S. 38, 100-101 (1985), citing 1 Annals of Cong. 914 (1789), Justice Rehnquist dissenting. “Boudinot’s resolution was carried in the affirmative on September 25, 1789.” Wallace v. Jaffree, 472 U.S. at 101.
“Within two weeks of this action by the House, George Washington responded to the Joint Resolution which by now had been changed to include the language that the President ‘recommend to the people of the United States a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God, especially by affording them an opportunity peaceably to establish a form of government for their safety and happiness.’ 1 J. Richardson, Messages and Papers of the Presidents, 1789-1897, p. 64 (1897).
Joseph Story, a Member of the [United States Supreme] Court from 1811 to 1845, and during much of that time a professor at the Harvard Law School, published by far the most comprehensive treatise on the United States Constitution that had then appeared. Volume 2 of Story’s Commentaries on the Constitution of the United States 630-632 (5th ed. 1891) discussed the meaning of the Establishment Clause of the First Amendment this way:
Probably at the time of the adoption of the Constitution, and of the amendment to it now under consideration [First Amendment], the general if not the universal sentiment in America was, that Christianity ought to receive encouragement from the State so far as was not incompatible with the private rights of conscience and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation.
* * *
The real object of the [First] [A]mendment was not to countenance, much less to advance, Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment which should give to a hierarchy the exclusive patronage of the national government. It thus cut off the means of religious persecution (the vice and pest of former ages), and of the subversion of the rights of conscience in matters of religion, which had been trampled upon almost from the days of the Apostles to the present age. . . . (Footnotes omitted.)
In 1947, in Everson v. Board of Education, the United States Supreme Court summarized the Establishment Clause, stating:
In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between church and State.’ Reynolds v. United States, [98 U.S. 145, 164, 25 L.Ed. 244 (1879) ].
This language from Reynolds came from a case involving the Free Exercise Clause of the First Amendment, rather than the Establishment Clause, and quoted from Thomas Jefferson’s letter to the Danbury Baptist Association. “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” 8 Writings of Thomas Jefferson 113 (H. Washington ed. 1861).
Thomas Jefferson was in France at the time the constitutional Amendments known as the Bill of Rights were passed by Congress and ratified by the States. His letter to the Danbury Baptist Association was a short note of courtesy, written 14 years after the Amendments were passed by Congress.
In 1985, the Supreme Court, speaking of the Founder’s understanding, said “the Establishment Clause of the First Amendment had acquired a well-accepted meaning: it forbade establishment of a national religion, and forbade preference among religious sects or denominations. Indeed, the first American dictionary defined the word ‘establishment’ as ‘the act of establishing, founding, ratifying or ordaining,’ such as in ‘[t]he episcopal form of religion, so called, in England.’ 1 N. Webster, American Dictionary of the English Language (1st ed. 1828). The Establishment Clause did not require government neutrality between religion and irreligion, nor did it prohibit the Federal Government from providing nondiscriminatory aid to religion. There simply is no historical foundation for the proposition that the Framers intended to build the ‘wall of separation’ that was constitutionalized in Everson.” Wallace v. Jaffree, 472 U.S. at 104-106 (internal citations omitted).
Happy Thanksgiving!
*Anthony F. Earle, Esquire is a California attorney who practices in the Silicon Valley area of northern California. He can be reached at: anthony.earle@earlelaw.com. This article is intended for information and educational purposes only, and is not intended to constitute legal advice.
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11.11.10
Posted in Bankruptcy, Business Law, Constitutional and Civil Rights Law, Criminal Law, Family Law, Litigation, Real Estate Law, Trusts and Estates at 12:24 by Administrator
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08.28.10
Posted in Constitutional and Civil Rights Law, Criminal Law, Litigation at 07:59 by Administrator
Q. I read a news article the other day about a court decision which held that the First Amendment prohibits the government from criminally prosecuting people who falsely claim to have been awarded military medals. Is that true?
A. The Stolen Valor Act provides: “Whoever falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item, shall be fined under this title, imprisoned not more than six months, or both.” 18 U.S.C. § 704(b). The prescribed prison term is enhanced to one year if the decoration involved is the Congressional Medal of Honor, a distinguished service cross, a Navy Cross, an Air Force Cross, a Silver Star, or a Purple Heart. 18 U.S.C. § 704(c-d).
The First Amendment to the Constitution states in relevant part: “Congress shall make no law . . . abridging the freedom of speech. . . .”
Xavier Alvarez, a California public official, stood in a public meeting and announced that he was a retired Marine, a wounded veteran, and the recipient of the Congressional Medal of Honor. Alvarez was lying on all counts. He pleaded guilty, reserving the right to appeal the First Amendment issue.
A three-judge panel of the Ninth Circuit Court of Appeals voted 2-1 to reverse Alverez’s conviction, ruling that the Stolen Valor Act violates the First Amendment. In reaching this conclusion, the majority presumed that all speech – including false statements – deserves First Amendment protection unless there exists a historic and traditional exception to such recognition. Exceptions cited by the majority include obscenity, defamation, fraud, incitement, and speech integral to criminal conduct. Were the rule to be otherwise, the majority opined, “there would be no constitutional bar to criminalizing lying about one’s height, weight, age, or financial status on Match.com or Facebook, or falsely representing to one’s mother that one does not smoke, drink alcoholic beverages, is a virgin, or has not exceeded the speed limit while driving on the freeway.”
The dissent, however, noted that the U.S. Supreme Court has said false statements are unprotected by the First Amendment except in a limited set of contexts, Gertz v. Robert Welch, Inc., 418 U.S. 323, 341 (1974). The dissent added that “[t]he Supreme Court has told us consistently that the general rule is that false statements are unprotected, and has carved out certain limited exceptions to this principle in certain contexts. The majority flips this framework around and suggests that false statements of fact are generally unprotected only in contexts like defamation and fraud, and that outside these contexts [false statements] are fully protected.”
One seemingly important consideration which was not raised in the Ninth Circuit’s opinion in U.S. v. Alvarez, is that Congress, when enacting the Stolen Valor Act, was, presumably, exercising powers enumerated in Article I, section 8, of the Constitution to, among other things, raise and support Armies, provide and maintain a Navy, and make Rules for the Government and Regulation of the land and naval Forces. As there is no similar constitutional authority for Congress to regulate purely private conduct not associated with military service, such as postings on Internet sites like Match.com or Facebook, the majority’s concern regarding false statements which fall outside the purview of the Stolen Valor Act is misplaced.
The dissenting opinion in U.S. v. Alverez might reasonably be interpreted as an invitation for the U.S. Supreme Court to review the case. It will be interesting to see if the government seeks, and if the Supreme Court grants, review.
*Anthony F. Earle, Esquire is a California attorney who practices in the Silicon Valley area of northern California. He can be reached at: anthony.earle@earlelaw.com. This article is intended for information and educational purposes only, and is not intended to constitute legal advice.
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08.21.10
Posted in Constitutional and Civil Rights Law, Litigation at 06:35 by Administrator
Q. I’ve followed recent news stories on Proposition 8, the ballot measure to define marriage in California as being between one man and one woman. While news stories seem to focus on the personal benefits available to married persons, there seems to be little information on the law of marriage. What is the law?
A. Litigation of marriage cases began when San Francisco started issuing marriage licenses to same-sex couples. Relying on California statutory law, which defines marriage as a union between one man and one woman, a lawsuit was brought to enjoin (stop) San Francisco from continuing this practice. Ultimately, the California Supreme Court ruled that California marriage law violates the equal protection clause of the California Constitution. In response, a ballot initiative to amend the California Constitution, known as Proposition 8, was presented to voters.
Following passage of Proposition 8, a lawsuit – Perry v. Schwarzenegger – was filed in federal court which argued that amending the California Constitution to define marriage as a union between one man and one woman violates the equal protection and due process provisions of the Fourteenth Amendment to the United States Constitution. The federal constitution, of course, preempts (trumps) inconsistent provisions of state constitutions and laws.
The Fourteenth Amendment was adopted and ratified following the Civil War, as one of three “Reconstruction” Amendments. The Thirteenth Amendment abolished slavery; the Fourteenth Amendment secured for former slaves and other Blacks all the rights of citizenship; and the Fifteenth Amendment secured the right to vote for all Americans, regardless of race.
In securing the rights of citizenship for former slaves and other Blacks, the Fourteenth Amendment articulates three separate categories of constitutional rights: equal protection, due process, and privileges or immunities.
In arguing that Proposition 8 violates the equal protection and due process rights of same-sex couples, the plaintiffs in Perry rely on the 1967 U.S. Supreme Court decision in Loving v. Virginia, which held as unconstitutional a Virginia law which criminalized interracial marriages. They also rely on the U.S. Supreme Court’s 2003 decision in Lawrence v. Texas, which held that laws criminalizing sodomy violate the Fourteenth Amendment’s due process clause. The Court’s decision in Lawrence explicitly and directly overruled its 1986 decision in Bowers v. Hardwick, which held the exact opposite.
The purpose and intent of the Fourteenth Amendment – and the understanding of the voters, states, and Congress who ratified that amendment – was to eliminate all vestiges of slavery. Thus, the Supreme Court’s decision in Loving, which declared unconstitutional Virginia’s anti-miscegenation statute, simply removed a vestige of slavery: the criminalization of interracial marriage. Virginia, incidentally, a former slave state, also was home to the capitol of the Confederacy, Richmond, Virginia.
The U.S. Supreme Court’s decision in Loving, which invalidated laws criminalizing interracial marriages, and in Bowers, which declined to find a constitutional right to engage in sodomy, are both consistent with the original intent of the Fourteenth Amendment.
On the other hand, the U.S. Supreme Court’s decision in Lawrence, which overruled Bowers, and the recent District (trial) Court decision in Perry, do not even purport to eliminate a vestige of slavery. Sodomy and same-sex marriage, of course, have absolutely nothing to do with slavery.
Litigation relating to the constitutionality of Proposition 8 has raised a serious constitutional issue, albeit one which has nothing to do with marriage. Rather, the constitutional issue is whether judicial power should be limited to interpreting the Constitution, or whether the Constitution can mean anything a judge (or group of judges) want it to mean.
The Constitution contains provisions for its amendment, using the democratic process. If those who oppose Proposition 8 want to create a Constitutional right to same-sex marriage, they should attempt to persuade their fellow Americans to support such an amendment. All Americans – regardless of one’s stance on Proposition 8 – should reject use of the courts as an alternative – and improper – method for amending the Constitution.
*Anthony F. Earle, Esquire is a California attorney who practices in the Silicon Valley area of northern California. He can be reached at: anthony.earle@earlelaw.com. This article is intended for information and educational purposes only, and is not intended to constitute legal advice.
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08.14.10
Posted in Constitutional and Civil Rights Law, Criminal Law, Litigation at 08:59 by Administrator
Q. Recently, a police officer contacted me, wanting me to answer questions relating to an investigation the officer was conducting. I have never been in a situation like this before and was not quite sure what course of action to take. What rights do I have in this situation?
A. Law enforcement officers, that is, police officers, sheriff’s deputies, highway patrol officers, detectives/inspectors, district attorney investigators and the like, contact a multitude of people every day, for a variety of reasons. The first, and perhaps paramount, “rule” is that law enforcement officers may not compel you to speak. The second rule is that if you choose to talk to an officer, your statements must be truthful.
Sometimes, if not usually, the purpose of the contact will be readily apparent: the contact is in response to a request for law enforcement services by the person being contacted, a traffic accident which is being investigated, a motorist who is stopped for a traffic violation, or for some other obvious reason.
If you are the person who requested law enforcement services, such as to report a crime, logic would seem to suggest that you should cooperate with the investigation. But remember Rule No. 2. Be truthful. Making a false report of a crime is, itself, a crime.
Contacts with law enforcement at the scene of a traffic accident may be slightly more problematic. When deciding whether to speak with law enforcement, a person should have an understanding of whether he or she is speaking as a victim of a crime or accident, an uninvolved witness, or as a person who potentially committed a crime or who may be liable for civil damages in connection with the traffic accident.
Other times, the purpose of the contact may not be readily apparent. The three most common reasons law enforcement will make such contacts is: (i) to obtain information from uninvolved persons in furtherance of an investigation, (ii) to identify and obtain statements from witnesses to the crime being investigated, and (iii) to obtain incriminating statements from a person who committed a crime.
Where officers seek non-incriminating statements or information from uninvolved persons or witnesses, the person being asked questions may decide to speak with officers simply as a matter of civic – but not legal – duty.
In situations where the purpose of the contact is to obtain incriminating statements, other concerns arise. The infamous “Miranda” warnings are the clearest example of this situation. If an officer “reads you your rights”, that is, says you have “the right to remain silent,” that means you are suspected of having committed a crime and that it probably is in your best interest to exercise that right, as well as your right to not make any statements without the advice of an attorney.
Miranda warnings, however, need only be given when a person is (i) asked incriminating questions while (ii) in-custody. Neither the asking of incriminating questions, nor being in police “custody” will, without more, require the giving of Miranda warnings. Thus, the most problematic situations arise where a person who is not in police custody is asked potentially incriminating questions. Examples of this type of situation range from traffic offenses (”Do you know how fast you were driving? “How much have you had to drink”?) to questions regarding serious felony offenses for which law enforcement may not yet have probable cause for an arrest.
In order to obtain criminal convictions, the American criminal justice system requires government prosecutors to prove beyond a reasonable doubt the guilt of persons accused of crimes. Persons suspected or charged with crimes are under no obligation to assist prosecutors with their work. Thus, where a person is asked potentially incriminating questions by police, the most prudent course of action almost always is to politely decline the invitation to make a statement and to obtain an attorney.
*Anthony F. Earle, Esquire is a California attorney who practices in the Silicon Valley area of northern California. He can be reached at: anthony.earle@earlelaw.com. This article is intended for information and educational purposes only, and is not intended to constitute legal advice.
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07.24.10
Posted in Constitutional and Civil Rights Law, Litigation at 08:24 by Administrator
Q. The U.S. Supreme Court recently concluded its October 2009 Term. What cases did the Court decide this Term that are (or should be) of particular interest to the general public?
A. Although some in the general public may find a different selection of this past Term’s cases of particular interest, two cases topping almost any list would be Citizens United v. Federal Election Commission and McDonald v. Chicago. Citizens United raised issues concerning the First Amendment; McDonald involved the Second and Fourteenth Amendments. The last of the top three cases this Term – and one which has received less media attention – is Free Enterprise Fund v. Public Company Accounting Oversight Board, which concerns separation of powers among the three branches of government.
Citizens United challenged a section of the McCain-Feingold Bipartisan Campaign Reform Act of 2002 (”BCRA”), which made it illegal for corporations and labor unions to use their general funds for political advocacy, that is, to pay for advertisements and other materials which are political in nature or content. Contrary to some news stories, the portion of the BCRA which was at issue in Citizens United did not involve direct contributions to political candidates or their campaigns.
Citizens United brought suit because the BCRA made it illegal for it to distribute during the 2008 presidential election season a movie critical of then-presidential candidate Hillary Clinton. During oral argument before the Supreme Court, Solicitor General Elena Kagan (the government’s lawyer who was defending the constitutionality of the BCRA and whose own nomination to become a Justice of the Supreme Court is now pending in Congress), informed the Court that the BCRA would allow the government to ban books.
In striking down the section of the BCRA which was at issue, Justice Kennedy, writing for the Court’s 5-4 majority, said, “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” So, “when government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.”
McDonald v. Chicago was the second of two recent Supreme Court cases dealing with the Second Amendment’s “right to keep and bear arms.” The first case, District of Columbia v. Heller, decided in 2008 (5-4), held that the Second Amendment secures an individual, rather than a collective, right to keep and bear arms. McDonald, also 5-4, held that the Second Amendment applies to the States as well as to the federal government. The issue of whether the Second Amendment applies to the States did not arise in Heller, as the District of Columbia is a federal enclave.
Free Enterprise Fund concerned a provision of the Sarbanes-Oxley Act that protects members of the Public Company Accounting Oversight Board (”Board”) from removal except for good cause. The Court held, 5-4, that the section at issue violates Article II of the Constitution because members of the Board, which is overseen by the Securities and Exchange Commission and whose members are removable only for cause, also are removable only for cause. The Court said “such multilevel protection from [Presidential removal] power is contrary to Article II’s vesting of the executive power in the President.” The Court noted that the Constitution gives the President the responsibility to ensure that the laws are faithfully executed and that, in fulfilling this responsibility, the President must be empowered to select and remove inferior government officials. This case is important because it reaffirms that the President, who always can be voted out of office at the next election, must have the ability to direct and control the actions of bureaucrats for whom voters can hold the President to account.
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05.14.10
Posted in Constitutional and Civil Rights Law, Litigation, Real Estate Law at 18:38 by Administrator
Introduction
California housing discrimination law originated in 1959, with passage of the Unruh Civil Rights Act, which required all “business establishments” to provide “full and equal accommodations” regardless of race, color, religion, ancestry, or national origin. In 1963, California passed the Rumford Fair Housing Act. The Fair Housing Act was expanded in 1988 and later, in 1993, amended to conform to federal housing discrimination law. The Act, as currently denominated, is known as the Fair Employment and Housing Act (FEHA).
Procedural Issues
The statute of limitations for filing a FEHA housing discrimination action is two years, and one year for a claim under the Unruh Civil Rights Act.
Any person or entity who can show an “injury in fact” has standing to sue. This includes rental applicants, tenants, the spouse of an applicant or tenant, or children or other adults who reside with the applicant or tenant, regardless of age or relationship.
Standing in housing discrimination cases also extends to “community-based” organizations whose “mission” is advancing “fair housing”, or who unilaterally assume a responsibility to investigate “fair housing” complaints.
Most FEHA provisions apply both to “owners” and “any person”. Thus, potential housing discrimination defendants include, for example, lessees, sublessees, assignees, managers, and real estate brokers and salespersons. “Person” includes individuals, corporations, legal representatives, trusts, unincorporated organizations, and the like.
Housing Discrimination Law
Protected classes for the purpose of housing discrimination law include the ususal classes: race, color, religion, sex, sexual orientation, marital status, national origin, and disability, but also include other classes, such as familial status (children), source of income, age, and occupation.
Prohibited acts include a refusal to sell, rent, or negotiate for housing; the provision of inferior terms, conditions or privileges relating to housing; discrimination in lending; and refusal to provide reasonable disability accommodation. Unlawful acts also include: falsely representing that housing is unavailable; inquiring about a person’s race or sexual orientation; or making any statement that indicates a preference, limitation, or discrimination for or against a protected class.
Proof of housing discrimination can be in the form of actual intent or adverse impact. In cases of intentional discrimination, a violation “may be established by direct or circumstantial evidence.” To successfully defend against a disparate impact case, the disputed practice must be shown to be “necessary to achieve an important purpose sufficiently compelling to override [its] discriminatory effect and effectively [carry] out the purpose it is alleged to serve.”
Damages
Housing discrimination plaintiffs may be awarded: (1) actual damages, (2) emotional distress damages, (3) injunctive relief, (4) punitive damages, and (5) attorney fees.
Actual damages include out-of-pocket expenses and lost housing opportunities. Out-of-pocket expenses may include moving, storage, or travel costs when alternative housing is sought; attorney fees paid to contest an eviction; wages lost to attend a court hearing, deposition, or trial; and other expenses incurred to file or prosecute a housing discrimination claim.
Organizational plaintiffs must prove that, rather than spending resources on its other work, it spent resources to redress the defendant’s discriminatory conduct, or that it will have to spend resources to counteract the harm caused by the defendant to the organization’s mission.
The FEHA also provides for awards of emotional distress damages which are caused by housing discrimination.
Under the Unruh Civil Rights Act, a plaintiff may be awarded “up to a maximum of three times the amount of actual damage but in no case less than four thousand dollars ($4,000), and any attorney fees that may be determined by the court in addition thereto.”
Injunctive relief, in the form of temporary or permanent restraining orders may also issue. Such orders may include “cease and desist” orders, orders requiring the development of non-discriminatory policies or procedures, or attendance at courses designed to prevent housing discrimination.
Punitive damages may also be awarded in appropriate cases. The FEHA does not provide for any “cap” on punitive damage awards, thus the only limit on such awards is that which is imposed by the requirements of constitutional due process.
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11.25.09
Posted in Constitutional and Civil Rights Law at 10:28 by Administrator
Thanksgiving did not become a federally recognized holiday until 1863, almost 250 years after the “first Thanksgiving celebration [which was] held by the Pilgrims,” when President Abraham Lincoln declared a national day of Thanksgiving.
However, according to the United States Supreme Court, it was George Washington, who in 1789, was the first American president to proclaim a national day of Thanksgiving.
“On the day after the House of Representatives voted to adopt the form of the First Amendment Religion Clauses which was ultimately proposed and ratified, Representative Elias Boudinot proposed a resolution asking President George Washington to issue a Thanksgiving Day Proclamation. Boudinot said he ‘could not think of letting the session pass over without offering an opportunity to all the citizens of the United States of joining with one voice, in returning to Almighty God their sincere thanks for the many blessings he had poured down upon them.’” Wallace v. Jaffree, 472 U.S. 38, 100-101 (1985), citing 1 Annals of Cong. 914 (1789), Justice Rehnquist dissenting.
“Boudinot’s resolution was carried in the affirmative on September 25, 1789.” FN 1. Wallace v. Jaffree, 472 U.S. at 101.
FN 1. Wallace v. Jaffree was a case in which the United States Supreme Court held that an Alabama statute which authorized a daily period of silence in public schools for meditation or voluntary prayer was an endorsement of religion lacking any clearly secular purpose, and thus was a law respecting the establishment of religion in violation of First Amendment.
“Within two weeks of this action by the House, George Washington responded to the Joint Resolution which by now had been changed to include the language that the President ‘recommend to the people of the United States a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God, especially by affording them an opportunity peaceably to establish a form of government for their safety and happiness.’ 1 J. Richardson, Messages and Papers of the Presidents, 1789-1897, p. 64 (1897). The Presidential Proclamation was couched in these words:
“Now, therefore, I do recommend and assign Thursday, the 26th day of November next, to be devoted by the people of these States to the service of that great and glorious Being who is the beneficent author of all the good that was, that is, or that will be; that we may then all unite in rendering unto Him our sincere and humble thanks for His kind care and protection of the people of this country previous to their becoming a nation; for the signal and manifold mercies and the favorable interpositions of His providence in the course and conclusion of the late war; for the great degree of tranquillity, union, and plenty which we have since enjoyed; for the peaceable and rational manner in which we have been enabled to establish constitutions of government for our safety and happiness, and particularly the national one now lately instituted; for the civil and religious liberty with which we are blessed, and the means we have of acquiring and diffusing useful knowledge; and, in general, for all the great and various favors which He has been pleased to confer upon us.
And also that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations, and beseech Him to pardon our national and other transgressions; to enable us all, whether in public or private stations, to perform our several and relative duties properly and punctually; to render our National Government a blessing to all the people by constantly being a Government of wise, just, and constitutional laws, discreetly and faithfully executed and obeyed; to protect and guide all sovereigns and nations (especially such as have shown kindness to us), and to bless them with good governments, peace, and concord; to promote the knowledge and practice of true religion and virtue, and the increase of science among them and us; and, generally, to grant unto all mankind such a degree of temporal prosperity as He alone knows to be best.” Ibid.
Joseph Story, a Member of [the United States Supreme] Court from 1811 to 1845, and during much of that time a professor at the Harvard Law School, published by far the most comprehensive treatise on the United States Constitution that had then appeared. Volume 2 of Story’s Commentaries on the Constitution of the United States 630-632 (5th ed. 1891) discussed the meaning of the Establishment Clause of the First Amendment this way:
Probably at the time of the adoption of the Constitution, and of the amendment to it now under consideration [First Amendment], the general if not the universal sentiment in America was, that Christianity ought to receive encouragement from the State so far as was not incompatible with the private rights of conscience and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation.
* * *
The real object of the [First] [A]mendment was not to countenance, much less to advance, Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment which should give to a hierarchy the exclusive patronage of the national government. It thus cut off the means of religious persecution (the vice and pest of former ages), and of the subversion of the rights of conscience in matters of religion, which had been trampled upon almost from the days of the Apostles to the present age. . . . (Footnotes omitted; italics added.)
Thomas Cooley’s eminence as a legal authority rivaled that of Story. Cooley stated in his treatise entitled Constitutional Limitations that aid to a particular religious sect was prohibited by the United States Constitution, but he went on to say:
But while thus careful to establish, protect, and defend religious freedom and equality, the American constitutions contain no provisions which prohibit the authorities from such solemn recognition of a superintending Providence in public transactions and exercises as the general religious sentiment of mankind inspires, and as seems meet and proper in finite and dependent beings. Whatever may be the shades of religious belief, all must acknowledge the fitness of recognizing in important human affairs the superintending care and control of the Great Governor of the Universe, and of acknowledging with thanksgiving his boundless favors, or bowing in contrition when visited with the penalties of his broken laws. No principle of constitutional law is violated when thanksgiving or fast days are appointed; when chaplains are designated for the army and navy; when legislative sessions are opened with prayer or the reading of the Scriptures, or when religious teaching is encouraged by a general exemption of the houses of religious worship from taxation for the support of State government. Undoubtedly the spirit of the Constitution will require, in all these cases, that care be taken to avoid discrimination in favor of or against any one religious denomination or sect; but the power to do any of these things does not become unconstitutional simply because of its susceptibility to abuse. . . .
Cooley added that:
[t]his public recognition of religious worship, however, is not based entirely, perhaps not even mainly, upon a sense of what is due to the Supreme Being himself as the author of all good and of all law; but the same reasons of state policy which induce the government to aid institutions of charity and seminaries of instruction will incline it also to foster religious worship and religious institutions, as conservators of the public morals and valuable, if not indispensable, assistants to the preservation of the public order. Wallace v. Jaffree, 472 U.S. at 104-106 (internal citations and italics omitted).
In 1947, “in Everson v. Board of Education, . . . [the United States Supreme Court] summarized its exegesis of Establishment Clause doctrine thus:
In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between church and State.’ Reynolds v. United States, [98 U.S. 145, 164, 25 L.Ed. 244 (1879) ].
This language from Reynolds, a case involving the Free Exercise Clause of the First Amendment rather than the Establishment Clause, quoted from Thomas Jefferson’s letter to the Danbury Baptist Association the phrase ‘I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between church and State. 8 Writings of Thomas Jefferson 113 (H. Washington ed. 1861). [FN1]
FN1. Reynolds is the only authority cited as direct precedent for the ‘wall of separation theory.’ 330 U.S., at 16, 67 S.Ct., at 512. Reynolds is truly inapt; it dealt with a Mormon’s Free Exercise Clause challenge to a federal polygamy law.
It is impossible to build sound constitutional doctrine upon a mistaken understanding of constitutional history, but unfortunately the Establishment Clause has been expressly freighted with Jefferson’s misleading metaphor. . . . Thomas Jefferson was of course in France at the time the constitutional Amendments known as the Bill of Rights were passed by Congress and ratified by the States. His letter to the Danbury Baptist Association was a short note of courtesy, written 14 years after the Amendments were passed by Congress. He would seem to any detached observer as a less than ideal source of contemporary history as to the meaning of the Religion Clauses of the First Amendment.
Jefferson’s fellow Virginian, James Madison, with whom he was joined in the battle for the enactment of the Virginia Statute of Religious Liberty of 1786, did play as large a part as anyone in the drafting of the Bill of Rights. He had two advantages over Jefferson in this regard: he was present in the United States, and he was a leading Member of the First Congress. But when we turn to the record of the proceedings in the First Congress leading up to the adoption of the Establishment Clause of the Constitution, including Madison’s significant contributions thereto, we see a far different picture of its purpose than the highly simplified ‘wall of separation between church and State.” Wallace v. Jaffree, 472 U.S. at 91-93 (internal citations and italics omitted).
“It would seem from this evidence that the Establishment Clause of the First Amendment had acquired a well-accepted meaning: it forbade establishment of a national religion, and forbade preference among religious sects or denominations. Indeed, the first American dictionary defined the word ‘establishment’ as ‘the act of establishing, founding, ratifying or ordaining,’ such as in ‘[t]he episcopal form of religion, so called, in England.’ 1 N. Webster, American Dictionary of the English Language (1st ed. 1828). The Establishment Clause did not require government neutrality between religion and irreligion nor did it prohibit the Federal Government from providing nondiscriminatory aid to religion. There is simply no historical foundation for the proposition that the Framers intended to build the ‘wall of separation’ that was constitutionalized in Everson.” Wallace v. Jaffree, 472 U.S. at 104-106 (internal citations omitted).
Happy Thanksgiving!
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