Misdemeanor Due Process and Pretrial Detention

Photo by Jp Valery on Unsplash

Andrew Lance, Associate Member, University of Cincinnati Law Review

I. Introduction

The national conversation on bail reform has led some jurisdictions to remove cash bail or significantly reform it altogether.[1] Depending on the crime, these reforms still leave some circumstances where low-income people accused of crimes are detained pretrial. The Supreme Court found that pretrial detention for crimes regulates dangerous individuals instead of punishing them.[2] How this detainment impacts the due process rights of misdemeanor defendants is widely overlooked. Though few courts challenge these lines of cases, this article will briefly explain how the expansive bureaucracy of state criminal courts effectively violates the right to have a case proven beyond a reasonable doubt before the government imposes punishment, even if the courts refuse to admit it.

II. Background

Due process is rooted in the Fifth and Fourteenth Amendments of the Constitution,[3] and it requires the government to prove beyond a reasonable doubt every fact of the crime charged.[4] This means that under due process, the government cannot punish defendants prior to conviction.[5] The government usually contends that pretrial detention is not considered punishment.[6] Even the lowest of misdemeanors that result in jail time are subject to the same due process requirements.

In upholding the Bail Reform Act of 1984, the Supreme Court affirmed pretrial detention as constitutional because it was regulatory.[7] The mere fact a person is detained does not necessarily conclude the government imposed punishment.[8] Instead, the court looked to legislative intent to determine if such a restriction on liberty was punitive or regulatory.[9] The intent was supposedly not to punish dangerous individuals but to serve the societal interest in preventing danger to the community.[10] The Court required that the restraint be rationally related to a nonpunitive purpose and not be excessive, however it has not ruled any pretrial detention as excessive.[11] Many states follow similar schemes, but are trending toward risk-based detainment instead of monetary bail.[12]

The Sixth Amendment guarantees the right to a speedy trial.[13] However, the Supreme Court in Barker v. Wingo prevents the Amendment from developing firm rules on time limits.[14] The Court proposed the societal interests that make this right different: the backlog enables defendants to manipulate the system, people on bond can commit more crime, people could jump bail and escape, and release may be detrimental to rehabilitation.[15] The Court suggested the delay may be an advantage to helping the defendant defend themselves and that it was impossible to determine with precision when the right was denied or a fixed point to exercise the right.[16]

State legislatures have attempted to codify speedy trial protections. Ohio has statutory requirements for how long a defendant can be detained before trial.[17] A misdemeanor must be brought within 45 days if the maximum penalty is not more than 60 days.[18] Some states like Kentucky do not have this right codified beyond a general constitutional guarantee.[19] Lower federal courts also developed tests for measuring when detentions become punitive: The length of the detention, the extent of the prosecution’s responsibility for the delay, and the strength of the evidence upon which the detention is based.[20]

III. Analysis

A. The Due Process Issue with Pretrial Detention

Bail reform, though well intentioned, does not adequately address pretrial detention’s inconsistency with due process. After arraignment, a judge will typically set the next court date, whether trial, pretrial conference, or some form of status hearing. Because the courts are notoriously overloaded, these next court dates can be weeks, months, or even set on a date after the maximum sentence would have run. For as long as pretrial detention exists, some defendants will be detained before trial and will be faced with the prospect of serving the entire sentence before being proven innocent or guilty. Cash bail exacerbates this for low-income defendants,[21] but no matter the reason for the detention, the due process issue remains when an individual serves the punishment before a conviction.

B. Pretrial Detention is Punishment

The Supreme Court is incorrect that pretrial detention is not punishment. The Court maintains the claims to uphold the mantra that “pretrial detainees unlike convicted prisoners cannot be punished at all.”[22] Because convicted prisoners and detainees are often held in the same place or in the same conditions, imprisonment after conviction and pretrial detention before conviction is a distinction without a difference. As a result of the detainment, a significant number of defendants will plead guilty, transforming the detainment into punishment with little to no appreciable change in circumstances.[23] The Court may be distracted by its desire to uphold the status quo of the judicial system, preventing it from analyzing the due process problem objectively.

Whether a legislature intends this practice to be punishment is irrelevant. When people detained pretrial are convicted, some of—or all of—that time is often considered time served on their sentence.[24] In that situation, the regulatory detention is sufficient for punishment, so it seems illogical that it would only be officially punishment after guilt when innocent or acquitted defendants would have been in the same conditions.

The Supreme Court has said that the government actions must not appear excessive to this supposedly nonpunitive purpose.[25] Detainment between arrest and arraignment is probably not excessive, but when misdemeanor sentences are shorter than a court’s timeline for bringing a trial or even just the next court appearance, detainment for that period should be considered excessive. Otherwise, defendants will have little incentive to go to trial and are stuck negotiating for the most lenient sentence possible.[26] Because detainment for a suspected crime requires a lower standard than guilt for conviction, pretrial detainment results in punishing misdemeanor defendants based on less than beyond a reasonable doubt.[27] The Louisiana Middle District court proposed a per se rule which is more likely to protect defendant rights:

It offends due process for an accused to remain in pretrial detention when the sum of the time he already has served and the additional time he realistically faces serving before trial falls within the range of sentences he would face if he pled guilty to the charge immediately.[28]

C. The Court System Probably Cannot Speed Up

The Court’s speedy trial rulings in Barker further mischaracterizes pretrial detention.[29] Whatever “bargaining power” detainees have ultimately results in some form of punishment. If releasing detainees is detrimental to rehabilitation, pretrial detention may be serving the same theoretical rehabilitative function of prison, which is a major historical justification for criminal punishment.[30] Even assuming the societal interests mentioned in Barker are legitimate, these crimes are just misdemeanors, so the government does not have a significant interest to justify extended detainment if the trial cannot be brought quickly.[31]

Though the Supreme Court’s reasons for not firmly guaranteeing the speedy trial right with specific timelines is flawed, lower courts do weigh the amount of time it takes to get to trial as a measure of the effect on due process.[32] For example, Ohio, by statute and caselaw, prevents cases from being brought after certain time periods.[33] By the time a defendant wins a speedy trial case or it is statutorily discharged, the damage is already done. The defendant has been incarcerated for potentially the same length of time as the punishment for the crime. This presents no incentive to go to trial, and, in some cases, courts will not treat seriously the defendants that stay in jail to prove their case.[34]

Even the Louisiana Middle District’s per se rule was only intended to affect extreme cases,[35] but because of the short sentences and slow court system, the only way to prevent an excessive violation of due process and a right to a speedy trial is to not incarcerate before trial in nearly all misdemeanor cases. Courts and prosecutors cannot be expected to bring cases immediately, but the problem with factored detention tests is that the “responsibility of the prosecution for the delay” prevents the inherent slog of the court system from leaning toward a violation if it passively creates an excessive detention.[36] The “strength of the evidence” is an inquiry into proof of guilt, seemingly inconsistent with the purpose of trial.[37] Because these tests only marginally protect against pretrial detention, whatever benefits the Supreme Court suggested exist because of the delay is countered by the competing pressures against due process that will either impose punishment or influence the defendant to plead guilty.

D. Solution

Regardless of the justifications of pretrial detention, courts and policymakers should avoid dancing around the reality that this is punishment. Some lower courts have accepted the due process and equal protection arguments.[38] Higher courts and legislators should take stronger stances to end the arbitrary punishment before trial which already directly conflicts with the purpose behind the due process protections—“[u]nless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.”[39]

Articles present various solutions, mostly emphasizing the need for more resources for public defenders,[40] more selective prosecution of cases, and the elimination of misdemeanor pretrial detention.[41] The policies should extend pretrial corrections and judicial resources to support defendants to prevent bail jumping or future crime or any other suggestion for maintaining detention. The government could address the causes instead of the symptoms of crime, but if the state would rather prosecute, it should still be held to same due process standards that require it to prove its case before inflicting punishment. Courts can refuse to call pretrial detention a punishment, but to a defendant it is virtually the same—a deprivation of freedom. The solution cannot be to continue to litigate speedy trial cases and retroactively apply time served because they are still serving a punishment. The effective application of the guarantee of due process should be to prevent such punishment before it begins. 

IV. Conclusion

Ultimately, pretrial detention on bail—even with statutory protections—that results in a significant amount of the sentence being served before adjudication is a violation of due process. The loss of the presumption of innocence, whether in the form of indirectly coercive guilty pleas or detainment in jail for the length of the punishment, means that the individual’s due process interest cannot coexist with misdemeanor pretrial detention. Threatening to incarcerate a person for the maximum length punishable under the offense and then offering the choice to go to trial obfuscates the meaning of due process that cannot be justified.

[1] See Democrat Newsroom, Rep. Leland Introduces Bipartisan Bail Reform Legislation, Ohio House of Representatives (May 18, 2021), https://www.ohiohouse.gov/news/democrat/rep-leland-introduces-bipartisan-bail-reform-legislation-106417; see Anne Yeager, New Rules of Practice and Procedure To Take Effect July 1, Court News Ohio (June 30, 2021), http://www.courtnewsohio.gov/happening/2020/practiceProcedureRules_063020.asp#.YW8wyBrMJPY.

[2] United States v. Salerno , 481 U.S. 739, 747 (1987).

[3] U.S. Const. amend. V; U.S. Const. amend. XV.

[4] In re Winship, 397 U.S. 358, 364 (1970).

[5] Bell v. Wolfish, 441 U.S. 520, 535-37 (1979).

[6] United States v. Salerno, 481 U.S. 739, 746-47 (1987).

[7] Id. at 746.

[8] Id. at 746-47.

[9] Id.

[10] Id. at 747.

[11] Paul Heaton, Sandra Mayson, & Megan Stevenson, The Downstream Consequences of Misdemeanor Pretrial Detention, 69 Stan. L. Rev. 711, 782 (2017).

[12] Id. at 719-720; see The Institute for Illinois’ Fiscal Sustainability, blog, Pretrial Reform Efforts in Illinois and Outcomes from Other States, The Civil Federation (Feb. 22, 2021) https://www.civicfed.org/iifs/blog/pretrial-reform-efforts-illinois-and-outcomes-other-states.

[13] U.S. Const. amend. VI.

[14] See generally Barker v. Wingo, 407 U.S. 514, 523 (1972).

[15] Id. at 519-21.

[16] Id. at 521-22.

[17] See Ohio Rev. Code Ann. § 2945.71-73 (2021).

[18] Id.

[19] See Commonwealth v. Vincent, 134 S.W.3d 17, 18 (Ky. Ct. App. 2004).

[20] See United States v. Lev Aslan Dermen, 779 F. App’x 497, 506-07 (10th Cir. 2019).

[21] See Samuel R. Wiseman, Bail and Mass Incarceration, 53 Ga. L. Rev. 235, 247-250 (2018) (brief history on study of cash bail).

[22] Kingsley v. Hendrickson, 576 U. S. 389, 400 (2015).

[23] See Wiseman, supra note 21, at 247 (explaining how detainment leads to plea).

[24] See Id. at 254.

[25] Bell v. Wolfish, 441 U.S. 520, 538 (1979).

[26] See Wiseman, supra note 21, at 254.

[27] See Heaton et. al., supra note 11, at 775-776.

[28] United States v. Gould, 2003 U.S. Dist. LEXIS 10166, at *37 (M.D. La. June 2, 2003).

[29] See Barker v. Wingo, 407 U.S. 514, 523 (1972).

[30] See Id. at 519-21.

[31] See supra notes 14-16.

[32] See United States v. Salerno, 794 F.2d 64, 78 (2d Cir. 1986).

[33] See State v. Thacker, 134 N.E.3d 837 (Ohio Ct. App. 2019).

[34] See generally Billings v. Layzell, 789 P.2d 221, 225 (Mont. 1990).

[35] United States v. Gould, 2003 U.S. Dist. LEXIS 10166, at *38 (M.D. La. June 2, 2003).

[36] See United States v. Lev Aslan Dermen, 779 F. App’x 497, 506-07 (10th Cir. 2019).

[37] Id.

[38] Wiseman, supra note 21, at 273; United States v. Gould, 2003 U.S. Dist. LEXIS 10166, at *37 (M.D. La. June 2, 2003).

[39] Stack v. Boyle, 342 U.S. 1, 4 (1951).

[40] See Wiseman, supra note 21, at 255-256.

[41] See generally Wiseman, supra note 21, at 275-276.

Should States Require Private Attorneys to Maintain Succession Plans?

Image by LEANDRO AGUILAR from Pixabay 

Emily Schmidt, Associate Member, University of Cincinnati Law Review

I. Introduction

Around seventy-five percent of attorneys work in private practice.[1]  From sole practitioners to lawyers at large firms, attorneys must prepare for the days they are no longer able to practice law. Succession planning proactively protects clients and colleagues in the event of an attorney’s death or incapacitation.[2] Only four states require private practice attorneys to plan for an end-of-career transition by designating another attorney to assist clients and conclude business.[3] Meanwhile, thirty-eight states merely recommend succession planning.[4]

This article will examine how jurisdictions mandate or recommend succession planning for attorneys. Section II will provide background on the sources of these rules and look to the four states that mandate succession planning: Arizona, Florida, Iowa, and Maine. Next, Section III will discuss the importance of succession planning and the benefits of making succession planning a mandatory requirement for attorneys. Finally, Section IV will conclude by recommending that more jurisdictions mandate succession planning for attorneys.

II. Background

The American Bar Association’s (“ABA”) Committee on Ethics and Professional Responsibility issued a Formal Opinion on succession planning in 1992.[5] The opinion stated that the ABA Model Rules of Professional Conduct (“Rules”) infer “that [sole practitioners] should make arrangements for their client files to be maintained in the event of their own death. . . . at a minimum [to] include the designation of another lawyer” who would have the authority to look over files and notify clients of their attorney’s death.[6]

The Rules guide most jurisdictions in creating legal ethics rules. Rules 1.1 and 1.3 relate to competency and diligence.[7] Both rules support the conclusion that attorneys are ethically obligated to succession plan.[8] Rule 1.1 states that a lawyer shall provide competent representation to a client, which “requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”[9] Rule 1.3 adds that a lawyer “shall act with reasonable diligence and promptness” when representing clients.[10] The ABA opinion on succession planning stated that in order for attorneys to diligently prepare to represent clients, the preparation process must include planning for an attorney’s death or incapacitation.[11] Because death and incapacitation can occur unpredictably, attorneys must be diligent in protecting their clients by creating and maintaining succession plans.

The ABA Formal Opinion on succession planning is not authoritative in any jurisdiction, although ABA interpretations often influence courts and state bar associations.[12] In 2002, the opinion likely inspired a new Comment to Rule 1.3 on diligence, which reads:

To prevent neglect of client matters in the event of a sole practitioner’s death or disability, the duty of diligence may require that each sole practitioner prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client of the lawyer’s death or disability, and determine whether there is a need for immediate protective action.[13]

However, not every jurisdiction has adopted Comment 5. Further, the Comment merely recommends succession planning by using the phrase “diligence may require”[14]—as opposed to a mandate that “diligence shall require.”

Four states currently mandate succession planning for attorneys,[15] while thirty-eight states recommend the practice.[16] Eight states have no rules regarding succession planning for lawyers.[17] Succession planning requirements—whether mandated or recommended—look slightly different in every jurisdiction. Additionally, jurisdictions use a variety of terms to refer to the concept of succession planning, such as designating an “inventory attorney”[18] or “designated representative,”[19] and “proxy planning.”[20]

A. Jurisdictions Requiring Succession Planning

i. Arizona

In Arizona, Supreme Court Rule 41(i) became effective on January 1, 2016, mandating sole practitioners in the state to create succession plans.[21] Interestingly, the State Bar of Arizona never adopted Comment 5 in the state’s Rules of Professional Conduct.[22] Nevertheless, the Arizona Supreme Court made it clear that lawyers have the duty and obligation “to protect the interests of current and former clients by planning for the lawyer’s termination of or inability to continue a law practice, either temporarily or permanently.”[23]

A succession plan for attorneys in Arizona must (1) designate another lawyer to review client files and determine whether any files need immediate attention, and (2) designate someone to notify the lawyer’s clients of the lawyer’s death or incapacitation.[24] To aid attorneys in creating succession plans, the State Bar of Arizona provides extensive online resources, including a succession planning manual and sample forms.[25]

ii. Florida

The Rules regulating the Florida Bar created a new provision to Rule 1-3.8, effective January 2006, requiring every member of the Florida Bar who practices in the state to designate another member as an “inventory attorney.”[26] In the event that a Florida attorney is “suspended, disbarred, becomes a delinquent member, abandons a practice, disappears, dies, or suffers an involuntary leave of absence due to military service, catastrophic illness, or injury,” the court may appoint the designated inventory attorney to take action to protect the interests of the prior attorney’s clients.[27]

The Florida Bar amended this provision in 2009 to exclude attorneys working for governmental entities, clarifying that only attorneys in private practice are required to designate an inventory attorney.[28] While the Florida Rule does not use the term “succession plan,” an inventory attorney essentially performs the same tasks as those required by a succession plan to protect clients’ interests.

iii. Iowa

Iowa Court Rule 39.18, adopted in 2017, outlines the requirements “for death or disability designation and authorization.”[29] Like Florida, the Iowa Rule does not use the term “succession plan.” Instead, the Rule requires Iowa attorneys in private practice to annually identify another attorney to serve as a “designated representative” in the event of death or disability.[30] The designated representative is authorized to review client files, notify clients of the attorney’s death or disability, and determine whether any immediate action is required to protect client interests.[31]

Additionally, private practice attorneys in Iowa are required to maintain a current list of active clients for their designated representative.[32] The private practice attorney must also ensure that the designated representative, when authorized, can access the client list, along with office files, records, and passwords.[33] This Rule requires Iowa attorneys to provide the basic information needed to protect clients, while permitting attorneys to supplement the plan with a separate written document. The “supplemental plan” may detail instructions for tasks such as collecting fees, paying firm expenses and client costs, compensation for staff, terminating leases, liquidation or selling the practice, and other administrative tasks[34]—all important matters to consider after an attorney has died or become incapacitated. The Iowa State Bar Association encourages attorneys to create supplemental succession plans and provides ample resources on their website to assist in the process.[35]

iv. Maine

Just two years after the ABA issued its Formal Opinion on succession planning, the Professional Ethics Commission of Maine issued a similar opinion to guide the state bar in 1994.[36] The opinion stated a clear need for sole practitioners to develop proactive plans to protect clients and keep files secure in the event of death or disability.[37] However, the opinion noted that it would be “impossible” to “promulgate what must be in every [succession] plan” due to the breadth and complexity of solo practices.[38]

Instead of mandating specific requirements for succession plans, Maine requires lawyers “engaged in the private practice of law in Maine” to provide the name of an attorney to serve as a proxy on behalf of the lawyer in the event of death or incapacitation.[39] The state defines a “proxy” as “an attorney who will act to protect the interests of clients to manage or conclude the law practice of an attorney who is incapacitated, suspended, disbarred, disappears, or dies.”[40]

Once a Maine lawyer obligatorily selects their proxy, the Board of Overseers of the Bar recommends creating a succession plan. The Board provides a “proxy planning checklist” that includes important topics to discuss like financial information, vendor information, office procedures, and file management.[41]

B. Jurisdictions Recommending Succession Planning

Most jurisdictions merely recommend that attorneys create succession plans. The recommendations stem from various sources. Of the thirty-eight jurisdictions, more than half adopted Comment 5 to Rule 1.3 of the Professional Rules of Conduct.[42] As previously discussed, Comment 5 states that the “duty of diligence may require” sole practitioners to create succession plans to appoint another attorney to review files and to notify clients.[43] Several jurisdictions recommend succession planning by supplying online resources on state bar association websites.[44] Others give attorneys an option on annual registrations forms to designate another attorney to take over upon death or incapacitation.[45] Additionally, a few jurisdictions recommend succession planning more formally through court rules or ethics opinions.[46]

III. Discussion

Succession planning is a hugely valuable tool for attorneys to utilize. While having to plan for one’s death or incapacitation can be uncomfortable—and even a bit frightening—proactive preparation benefits both clients and attorneys.

From a client’s perspective, succession planning allows for better continuity in legal services. If an attorney dies unexpectedly, with no immediate plan in place, their clients may be temporarily left without the resources they need to navigate the legal system. While most states would appoint an attorney to serve as a caretaker for the deceased attorney’s caseload,[47] this process is neither instantaneous nor seamless. It may take the appointed attorney time to sort the logistics of caring for the practice, such as finding passwords and locating client lists. Even brief lapses in legal service coverage can negatively affect clients.

For attorneys, succession planning encourages diligence and organization. By planning ahead, lawyers can assure that their clients will remain cared for. Succession planning also gives attorney a say in who may provide the future care in winding up a practice, rather than allowing the court to appoint an attorney. In contrast to court-appointed caretakers, attorneys designated by succession plans voluntarily consent to serve the role. Succession planning also requires lawyers to consistently maintain thorough records, because death or incapacitation may occur without notice.

Jurisdictions with mandatory succession planning requirements eliminate some unnecessary risks, stressors, and costs. Adequate planning allows for the attorney and their designated representative to communicate before the attorney dies or becomes incapacitated. The designee can then ask questions and clarify any lingering confusion. The attorney can plan exactly how to dissolve their practice in a cost-efficient way and attempt to retain as much value in the practice as possible. The preparation involved in creating a succession plan undoubtably decreases stress during the transition after the attorney’s death or incapacitation.

Further, the four jurisdictions that mandate succession planning have created viable models for other states to utilize. All jurisdictions could easily implement the requirement by creating an online portal for attorneys to upload information regarding their succession plan, or by requesting the information within an attorney’s annual registration paperwork. Even if a jurisdiction does not require a written succession plan, at the least, jurisdictions should require attorneys to designate another lawyer with authority to wind up the practice and protect client interests. This may eliminate the need for courts to appoint caretakers or receivers to handle deceased attorneys’ caseloads—a task for which not every lawyer may be keen to volunteer for.

Succession planning may also become increasingly relevant as the legal profession ages. Over the last decade, the number of practicing lawyers above age sixty-five has increased more than fifty percent.[48] Today, about fourteen percent of lawyers are older than sixty-five.[49] In deciding whether to mandate succession plans, jurisdictions must consider the implications of shifting demographics within the legal profession. As attorneys near the end of their time practicing, succession plans ensure a smoother transition and continuous care for clients.

IV. Conclusion

Currently, only Arizona, Florida, Iowa, and Maine mandate private practice attorneys to designate another lawyer to handle client needs and wind down a practice in the event of the attorney’s death or incapacitation. Succession planning allows attorneys to be proactive and plan for the future. While most states recommend succession planning, more jurisdictions should move to adopt formal requirements to make succession planning mandatory. Succession planning requirements are flexible and adaptable. Bar associations across the country provide a plethora of resources and templates to educate attorneys on how to create succession plans. The four existing jurisdictions with mandates for planning each function slightly differently, but the underlying purpose to protect clients remains. While it may require more work initially to collect and track data, mandating succession plans benefits legal clients, attorneys, and their colleagues.

[1] Carla N. Carson, American Bar Foundation, The Lawyer Statistical Report: The U.S. Legal Profession in 2005 9 (2012).

[2] Succession Planning, Am. Bar Ass’n, https://www.americanbar.org/groups/professional_responsibility/resources/lawyersintransition/successionplanning/ (last visited Oct. 18, 2021).

[3] State Mandatory Succession Rule Chart, Am. Bar Ass’n (2019), https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/lawyer-succession-planning-rule-chart.pdf.

[4] Id.

[5] ABA Comm. on Ethics & Pro. Resp., Formal Op. 92-369 (1992).

[6] Id. at 3.

[7] See Model Rules of Pro. Conduct r. 1.1 (Am. Bar Ass’n 2020); Model Rules of Pro. Conduct r. 1.3 (Am. Bar Ass’n 2020).

[8] See id.

[9] Model Rules of Pro. Conduct r. 1.1 (Am. Bar Ass’n 2020).

[10] Model Rules of Pro. Conduct r. 1.3 (Am. Bar Ass’n 2020).

[11] See ABA Comm. on Ethics & Pro. Resp., Formal Op. 92-369 at 2-3 (1992).

[12] Center for Professional Responsibility Publications, Am. Bar Ass’n, https://www.americanbar.org/groups/professional_responsibility/publications/ (last visited Oct. 18, 2021).

[13] Model Rules of Pro. Conduct r. 1.3 cmt. 5 (Am. Bar Ass’n 2002).

[14] Id.

[15] The four states that mandate succession planning are Arizona, Florida, Iowa, Maine. State Mandatory Succession Rule Chart, Am. Bar Ass’n (2019), https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/lawyer-succession-planning-rule-chart.pdf. The Illinois State Bar Association approved a new draft rule mandating succession planning in 2018, but the rule is still awaiting final approval from the Illinois Supreme Court. See Succession and Transition Planning, Ill. State Bar Ass’n, https://perma.cc/7P3N-L367 (last visited Oct. 19, 2021).

[16] The thirty-eight states that recommend succession planning are Alaska, Arkansas, California, Colorado, Connecticut, Delaware, Georgia, Idaho, Illinois, Indiana, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming. State Mandatory Succession Rule Chart, Am. Bar Ass’n (2019), https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/lawyer-succession-planning-rule-chart.pdf.

[17] The eight states that do not have rules regarding succession planning are Alabama, Hawaii, Kansas, Mississippi, Montana, Nevada, New Jersey, South Dakota. Id.

[18] See Fla. Bar Reg. R. 1-3.8(e).

[19] See Iowa Ct. R. 39.18(1)(a).

[20] See Proxy Planning Checklist, State of Me. Bd. of Overseers of the Bar, https://perma.cc/PE9J-L6VW (last visited Oct. 19, 2021).

[21] David D. Dodge, Lawyer Succession Planning Now Mandatory, Arizona Attorney 10 (May 2016), https://perma.cc/NUN8-A9X7.

[22] See ER 1.3. Diligence, State Bar of Ariz., https://perma.cc/T2TX-SKAL (last visited Oct. 18, 2021).

[23] Ariz. Sup. Ct. R. 41(i).

[24] Dodge, supra note 21.

[25] Succession Planning, State Bar of Ariz., https://perma.cc/3FR3-VJ3Y (last visited Oct. 18, 2021).

[26] Fla. Bar Reg. R. 1-3.8(e). See also In re Amendments to the Rules Regulating the Fla. Bar, 916 So. 2d 655, 657 (Fla. 2005).

[27] Fla. Bar. Reg. R. 1-3.8(a).

[28] See In re Amendments to the Rules Regulating the Fla. Bar, 24 So. 3d 63, 68 (Fla. 2009).

[29] Iowa Ct. R. 39.18.

[30] Iowa Ct. R. 39.18(1)(a).

[31] Iowa Ct. R. 39.18(1)(b).

[32] Iowa Ct. R. 39.18(2).

[33] Id.

[34] Iowa Ct. R. 39.18(3).

[35] Succession Planning and Court Rule 39.18, Iowa State Bar Ass’n, https://perma.cc/PJ6F-YNCQ (last visited Oct. 18, 2021).

[36] Me. Pro. Ethics Comm., Op. 143 (1994), https://perma.cc/T3X9-JUY7.

[37] Id.

[38] Id.

[39] Me. Bar R. 1(g)(12). See also Reporters Notes, State of Me. Bd. of Overseers of the Bar (June 2015), https://perma.cc/AG4K-SS8K.

[40] Proxy Designation, State of Me. Bd. of Overseers of the Bar, https://perma.cc/6NEA-LDUE (last visited Oct. 19, 2021).

[41] Proxy Planning Checklist, State of Me. Bd. of Overseers of the Bar, https://perma.cc/5YXP-ECS8 (last visited Oct. 19, 2021).

[42] State Mandatory Succession Rule Chart, Am. Bar Ass’n (2019), https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/lawyer-succession-planning-rule-chart.pdf. The following 24 jurisdictions adopted Comment 5 to Rule 1.3: Alaska, Arkansas, Colorado, Connecticut, Idaho, Illinois, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, New Hampshire, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, Utah, Vermont, Virginia, West Virginia, and Wisconsin. Id.

[43] Model Rules of Pro. Conduct r. 1.3 cmt. 5 (Am. Bar Ass’n 2002) (emphasis added).

[44] See, e.g., Attorney Surrogacy, State Bar of Cal., https://perma.cc/PY8J-Y82K (last visited Oct. 19, 2021); Closed and Abandoned Practices, Ky. Bar Ass’n, https://www.kybar.org/page/closedpractice (last visited Oct. 19, 2021); Lawyer Succession and Transition Committee, State Bar of N.M., https://perma.cc/3GK6-GTX3 (last visited Oct. 19, 2021); Succession Planning, State Bar of Tex., https://perma.cc/HAH2-KXXR (last visited Oct. 19, 2021); Manage Your Practice, Wash. State Bar Ass’n, https://perma.cc/BB5Y-8SV7 (last updated Oct. 8, 2021); Planning Ahead: Succession Planning Guide, Wyo. State Bar, https://perma.cc/F4AJ-T2D5 (last visited Oct. 19, 2021).

[45] These jurisdictions include Delaware, Georgia, and Indiana. See State Mandatory Succession Rule Chart, Am. Bar Ass’n (2019), https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/lawyer-succession-planning-rule-chart.pdf.

[46] These states include Michigan, Oregon, South Carolina, and Tennessee. Id.

[47] See State by State Caretaker Rules When Lawyer Disappears, Dies, or Is Declared Incompetent, Am. Bar Ass’n (July 2021), https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/chart-state-by-state-caretaker-rules.pdf

[48] Debra Cassens Weiss, As the Legal Profession Ages, Dementia Becomes an Increasing Concern, ABA Journal (May 12, 2021), https://perma.cc/39Y2-CSTK.  

[49] Id.

F––– Me? No, F––– You: State v. Bryant’s Increased Sentencing For An Expletive-Ridden Outburst By Defendant

Photo by Tingey Injury Law Firm on Unsplash

Caleigh Harris, Associate Member, University of Cincinnati Law Review

I. Introduction

Remorse plays an elusive role in the justice system. The manner in which judges sentence criminal defendants and the discretion judges have exacerbates the ambiguity of remorse in sentencing.[1] In State of Ohio v. Manson M. Bryant, the defendant was sentenced to an additional six years following an explicit outburst at his sentencing hearing, where the trial court cited a lack of remorse as the reasoning.[2] The Supreme Court of Ohio is currently deciding the question of whether imposing additional time to a criminal sentence is contrary to law when the defendant disrespected the trial court in response to a judicial ruling.

This article will give a brief overview of State v. Bryant and the reasoning the 11th District Court of Appeals gave in affirming the trial court’s sentence. Furthermore, Part II will summarize the arguments of both the appellant and the appellee. Part III will discuss the ambiguous nature of remorse in judicial sentencing and argue that the Supreme Court of Ohio should reverse the trial court’s sentence and remand to the original sentence of 22 years.

II. Background

In the early hours of July 6, 2018, Manson M. Bryant broke into a victim’s trailer with his accomplice, Jeffrey Bynes.[3] At trial, the jury found Bryant guilty of aggravated burglary, aggravated robbery, kidnapping, and abduction.[4] The trial record shows that Bynes was the principal of the crime, while Bryant acted as the aider and abettor; as such, Bryant’s defense argued that a 10-year sentence was appropriate, compared to the 12 years his co-defendant received.[5]

Before sentencing, Bryant expressed remorse before the court, explaining that his drug addiction triggered many of his bad decisions, and he plead the court for the opportunity to make something of his life.[6] The trial court imposed an aggregate sentence of 22 years for Bryant’s convictions.[7] Bryant had two co-defendants who received much lighter sentences than his, given relative involvement in the crime.[8] Upon receiving his sentence, Bryant started shouting profanities at the trial judge. He expressed phrases such as: “F*** your courtroom, you racist a** b****,” “You never gave me a chance,” and “F*** you.”[9] At this point, the trial court replied, “When I said that you had a certain amount of remorse, I was mistaken. . . The court determines that maximum imprisonment is needed,” adding six years to the original term.

The 11th District Court of Appeals upheld the sentence, citing that appellate courts may only vacate/modify a sentence that is not clearly contrary to law when the appellate court finds that the record does not support the sentence by clear and convincing evidence.[10] The 11th District wrote that although the verbal outlash does not necessarily mean Bryant lacked remorse, the trial court could still construe it as such.[11] Here, the appellate court is granting broad discretion to the trial court, and held that the increase in sentence was not contrary to law.[12]

Bryant’s appeal was accepted by the Supreme Court of Ohio, which heard oral arguments for the case on April 14, 2021. Bryant argued that his explicit outburst demonstrated a disrespect to the court, and not a lack of remorse. According to R.C. 2929.12, Ohio sentencing laws do not permit trial courts to consider a defendant’s attitude toward the court when evaluating their sentence.[13] In fact, disrespect toward a court can be easily punished by Ohio’s contempt-of-court statutes.[14] Bryant asserted that the proximity of his outburst to the sentencing announcement, as well as the content of his outburst, demonstrate a contempt of court authority, and not a lack of remorse or presence of rage directed toward the victim.[15]

The State, however, argued that the trial court possesses the authority to change sentences that are not yet final, and deference must be given to the trial court when it believed the outburst demonstrated a lack of remorse.[16] The State posited that nothing in the record demonstrated the trial court punished Bryant for his outburst; rather, the court reevaluated the mitigating factors of sentencing upon Bryant’s outburst and ultimately determined that the full sentence was warranted and not contrary to law.[17]

III. Discussion

The Supreme Court of Ohio should find that it was unlawful for the trial judge to increase Bryant’s sentence by six years due to his in-court outburst. This is not condoning the behavior of Bryant nor his disrespect toward the court, but rather examining how the judicial system can abuse its discretion in punishing such outbursts. There are certainly legal arguments to be made on both sides about whether the trial judge acted contrary to law when they added six years to Bryant’s imprisonment. However, there are also equitable principles and important social factors to consider when the concept of remorse played a significant role in this case.

As the defense has argued, there is no factor in Ohio’s statutory scheme that grants a trial court the power to enhance or mitigate a sentence based on one’s attitude toward the trial court.[18] Bryant’s behavior falls squarely within the definition of contempt of court: “Conduct which brings the administration of justice into disrespect, or which tends to embarrass, impede, or obstruct a court in the performance of its functions.”[19] Punishment for contempt of court can be a fine not to exceed $250, 30 days in jail, or both.[20]

A full examination of the record demonstrates that this is exactly what Bryant was doing when he cursed out the judge. The disparities in sentencing between Bryant and his co-defendants showed Bryant’s expectation prior to receiving his sentence.[21]  Thus, the angry outburst most likely was in reaction to a perceived injustice by Bryant—a Black man—in a system where he is probably too familiar with the disparities between criminal defendants. The appellate court even conceded that the defendant’s behavior could be attributed to a negative emotional reaction and not his level of regret.[22] Bryant shouting that the court “never gave him a chance” is highly indicative of his disappointment and frustration within the justice system.[23]

Notwithstanding the actual verbal outburst from Bryant, the question of remorse in judicial rulings is far from a uniform concept. There is no standard for determining one’s level of remorse, and it is subject to a wide variety of biases from judges.[24] Furthermore, these biases are prone to ills of racial discrimination and other prejudices within society.[25]

Perceptions of remorse are subject to being painted in different lights between races, gender, social class, and other factors.[26] Additionally, no studies have been done on what sitting judges think about remorse and its role in the judicial system.[27] Some scholars argue that the role of remorse in sentencing should not be taken into account as much as it currently is.[28] All of this is to say that Bryant’s outburst is not black and white, nor can his mental state be so easily determined when he received his sentence.

With remorse being an elusive legal concept that is susceptible to the biases that the rest of the criminal justice system faces, the outcome of this case can have broad implications for criminal defendants. Human beings are prone to emotional outbursts upon receiving bad news––whether that means the previous act of contrition was genuine or fake is not so clear-cut. Providing trial judges with unfettered discretion to make these decisions—especially when contempt of court is readily available as a punishment—further exacerbates the discrepancies seen in all facets of the criminal justice system.

IV. Conclusion

The Supreme Court of Ohio has a tough legal decision to make; both sides provide valid arguments, but the defense for Bryant demonstrates a viable alternative to his outburst, rather than continuing to further the sentencing discrepancy between him and his co-defendants. The Court must grapple with the concept of remorse and what it actually means in this scenario. Ruling in favor of the State provides trial courts with too much authority to determine what a criminal defendant actually believes. The Court should find that the additional six years added by the trial court was unlawful and inequitable and instead hold Bryant in contempt of court for his actions.

[1] See generally Rocksheng Zhong, Judging Remorse, 39 N.Y.U. Rev. L. & Soc. Change 133 (2015).

[2] 11th Dist. Lake No. 2019-L-024, 2020-Ohio-438.

[3] Id. at 2.

[4] Id. at 3.

[5] Merit Brief of Appellant at 5-6, State of Ohio v. Manson M. Bryant, 11th Dist. Lake No. 2019-L-024, 2020-Ohio-438.

[6] Id. at 6.

[7] Id. at 3.

[8] Id. at 13-14. (“Consider the sentences his co-defendants received, in light of their relative involvement. Mr. Bynes’s sentence was ten years less than Mr. Bryant’s initial sentence, even though Mr. Bynes helped Ms. Medina case the trailer before the robbery, wielded the gun, and assaulted [the victim]. Ms. Medina. . . was sentenced to only 45 days in jail and received community control.”).

[9] State v. Bryant, 2020-Ohio-438 at 4.

[10] Id. at 4. (Citing from State v. Miller, 11th Dist. Lake No. 2018-L-133, 2019-Ohio-2290, ¶10).

[11] Id. at 6.

[12] Id. at 4.

[13] Ohio Rev. Code Ann. §2929.12.

[14] Merit of Appellant at 1; R.C. 2705.01; R.C. 2705.05.  

[15] Id. at 13.

[16] Merit Brief of Appellee at 5, State of Ohio v. Manson M. Bryant, 11th Dist. Lake No. 2019-L-024, 2020-Ohio-438. See also State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891 at 20. (“Appellate courts are prohibited form substituting their judgment for that of the trial judge” under R.C. 2953.08(G)(2).).

[17] Id. at 23.

[18] Merit Brief of Appellant at 9. Factors to consider for felony sentencing are “the seriousness of the offense, the offender’s likelihood of recidivism, and the offender’s military-service record.” (R.C. 2929.12(B)-(F)).

[19] Id. at 11 (Citing Windham Bank v. Tomaszcyk 271 N.E.2d 815 (1971)).

[20] Ohio Rev. Code Ann. §2705.05.

[21] Id. at 14.

[22] State v. Bryant, 2020-Ohio-438 at 6.

[23] Id. at 4.

[24] See generally M. Eve Hanan, Remorse Bias, 83 Mo. L. Rev. 302 (2018).  

[25] Id. at 303.

[26] Id.

[27] Zhong, supra note 1, at 134-35.

[28] Id.

The Mall of Litigation: The Dangers and Benefits of Forum Shopping in American Jurisprudence

Photo by Viktor Bystrov on Unsplash

Patrick Mullinger, Associate Member, University of Cincinnati Law Review

The mall. An American staple almost every citizen is familiar with. However, less citizens are aware of the legal mall—forum shopping. In American litigation, both the federal courts and various state courts may be proper forums for a legal action to be brought. These various courts, with their divergent and occasionally contradictory precedent, make up the metaphorical “mall” in which attorneys are free to shop.

This article will focus on the negative process of forum shopping in modern litigation. Part I will investigate the history and reasoning for forum shopping in litigation. Part II will analyze the advantages and disadvantages of forum shopping. Lastly, Part III will provide the practical implementation of forum shopping and possible ways for a defendant to prevent—or defend against—a forum shopped jurisdiction. While forum shopping is an understandable strategy in plaintiff litigation, it subverts the fairness of the judiciary.

I. The History of Forum Shopping in Litigation

Forum shopping is not a new phenomenon. The jurisprudential roots of forum shopping extend nearly two-hundred years to Swift v. Tyson, 41 U.S. 1 (1842), when Mr. Swift decided to sue Mr. Tyson in federal court instead of New York State court in order to gain a strategic advantage.[1]Many cases since Swift have highlighted the evolution of forum shopping.[2] However, Swift and countless cases since have been faced with the daunting challenge of uniformly interpreting and applying state law.[3] In Erie R.R. v. Tompkins, the Supreme Court granted some clarity on interpreting and applying state law, holding that federal courts sitting in diversity jurisdiction must apply the substantive law of the forum state.[4]

The most accurate definition of forum shopping is the act of seeking the most favorable jurisdiction or court in which a claim might be heard.[5] Most courts adhere to this definition.[6] Some courts have classified forum shopping as when a plaintiff causes “inconvenience and expense.”[7] Because of this classification, courts may label an attorney’s actions as unsavory forum shopping when the court believes that the practice “thwart[s] public policy and achieve[s] an unmerited goal.”[8] This classification promotes the negative connotation that is implied with forum shopping.[9] However, other courts who favor the practice avoid the label of forum shopping in an attempt to avoid this negative undertone.[10]

The difficulty in forum shopping involves a fundamental tenant of American jurisprudence—a  state’s ability to make and define its own laws.[11] In constructing their legal code, states often model their laws off the best practices of other states. However, laws across state lines can differ drastically, as there is no requirement for states to comply with any set of model rules.[12] Since each state implements different laws, and courts apply these different laws in constructing their legal frameworks, each forum inherently has different precedent that can create a strategic advantage for a savvy plaintiff. Plaintiffs seek varying forums where their claim may be viable, and then apply those forums’ substantive laws to their case to determine if they can be considered a forum citizen.[13] Plaintiffs with various forums able to hear the claim may wish to “shop” these forums to get a venue where a favorable outcome is likely.[14] Some jurisdictions are considered more plaintiff friendly, and thus award greater damages in a jury trial versus other forums.[15]

The “Erie” doctrine created hurdles for plaintiff attorneys who wish to forum shop. This doctrine dictates that a court sitting in diversity should apply federal procedure rules and the state’s substantive laws.[16] A plaintiff will look to these laws because a defendant may remove the case to a federal court, but the state’s substantive law will still apply. Thus, if the case is removed to federal court—where diversity jurisdiction likely applies—the “Erie” doctrine forces the federal court to apply the state’s substantive law.[17] While decided long ago, current jurisprudence still relies on the Erie doctrine in cases adjudicated in federal courts.[18]

The outcome of a plaintiff’s claim may be determined on the choice of substantive law applied. For example, in Ferens v. John Deere Co., the court permitted a transfer to a different jurisdiction, dismissing the plaintiffs case based on Mississippi law instead of Pennsylvania law.[19] In doing so, the Court emphasized that an opportunity for forum shopping exists whenever a party has a choice of forums that will apply different laws.[20] However, in their opinion, the Court addressed the idea that a plaintiff should pay the price for choosing inconvenient forums,[21] warning plaintiffs to be mindful of where their action is being brought.

Interestingly, forum shopping is not limited to individual litigants.[22] Corporations will move or choose the location of their official headquarter in an attempt to avail themselves of particularly favorable jurisdictional discrepancies.[23] In Passantino v. Johnson & Johnson Consumer Prd., Inc., the Ninth Circuit held that a corporation engaged in forum shopping when it moved its corporate headquarters to avoid certain jurisdictional rules.[24] Additionally, class action suits sometimes force courts to consider forum shopping issues.[25] Class actions, like in Bristol-Myers Squibb Co. v. Superior Court, may be considered impermissible forum shopping when the majority of the members in a class party are not located near the court, and thus lead to repercussions such as dismissal of the claim.[26]

While courts generally exhibit a healthy skepticism of forum shopping, the practice is permissible in some instances.[27] In Bristol-Myers, the Court limited, but did not eliminate, forum shopping in class action claims.[28] The Court explicitly stated that there were not “sufficient contacts” between California and the out-of-state plaintiffs.[29] In contrast, a case where the defendant has sufficient connections with various forums grants those forums personal jurisdiction over a claim.[30] Because of this permissibility, plaintiff attorneys are still likely to forum shop if the defendant’s contacts are affiliated with the forum state.[31]

Further, in Keeton v. Hustler Magazine, Inc., the Supreme Court allowed forum shopping when a complaint was filed in a jurisdiction whose statute of limitations[32] is longer than other potential jurisdictions.[33] Additionally, courts have permitted personal injury plaintiffs to forum shop, especially when factors of convenience and economy are at stake.[34] One key factor in determining if the court will allow for such shopping is whether evidence and witnesses are present in a foreign state.[35] If many witnesses are located in a jurisdiction, forum shopping may help alleviate those costs through a venue choice most convenient for all parties.

Case law is not the only limiting guideline on forum shopping. Many statutes specifically determine what laws should be applied to an underlying fact pattern.[36] For instance, the Federal Tort Claim Act (“FTCA”) provides that the “whole law” of the state where the act or omission occurred should be applied.[37] The FTCA and other statutes are in place to limit and clarify the issues of application of law in forum shopped cases.[38]

The principal of forum non-conveniens plays an important role as a defense to forum shopping.[39]  Forum non-conveniens allows a federal court to dismiss an action when an alternative forum has jurisdiction to hear the case.[40] The court may apply forum non-convenins when either the current jurisdiction would be wholly inconvenient for the defendant out of proportion with the plaintiff’s convenience, or the chosen forum otherwise is inappropriate.[41] For example, in Gulf Oil Corp. v. Gilbert, the Supreme Court held that a trial court did not abuse its discretion when it held that the action brought in New York against a Pennsylvania corporation was inconvenient, and thus dismissal was proper.[42] If the party which shopped for the forum brings an action far from the opposing party and possible witnesses, then the court may divest their own interest in the suit and require it to be brought in a more convenient jurisdiction.[43] When a court permits a transfer under 28 U.S.C. § 1406(a), the laws of the court where the action is being transferred to are applied to the case.[44]

If the initial forum-shopped court lacks jurisdiction, then the proper venue’s substantive law will apply, potentially harming a plaintiff’s claim.[45] In Piper Aircraft Co. v. Reyno,[46] the Supreme Court recognized that plaintiffs often choose a forum where the law favors them, and so, the court typically favors a defendant’s convenience when analyzing a removal issue.[47] This rule changed forum shopping, forcing the parties to understand that an ancillary court selection may lead to a removal where the substantive law disfavors their position.

II. The Mechanisms of Forum Shopping for Plaintiffs and Defendants.

The decision to shop for a beneficial jurisdiction should not be made lightly. The substantive law of a selected forum may affect the outcome of the case. One advantage for plaintiffs is the freedom to find a court where the substantive law will help their action. In personal injury cases—where the state court’s prior decisions and statutes may be more plaintiff-friendly—a favorable forum can solidify even a weak case. Within this favorable law, plaintiffs may be granted more in damages or have motions granted that they otherwise would not have elsewhere.[48] For example, in expert witness testimony, many states follow either a Frye standard[49] or a Daubert standard.[50] In states that follow Frye, an expert opinion is admissible if the scientific technique is “generally accepted” in the scientific community.[51] However, Daubert jurisdictions consider factors such as: (1) testability; (2) the theory has been subject to peer review; (3) known or potential error rates; (4) standards and controls; and (5) general acceptance in the scientific community.[52] When a plaintiff chooses a forum, the less stringent standard in Frye may lead to admissible expert testimony supporting their claim, while a Daubert jurisdiction may limit or exclude important testimony from their expert.

Conversely, a defendant can remove a civil case to federal court when it satisfies 28 U.S.C. § 1441.[53] This mechanism allows defendants to have some say in the applicable jurisdiction and attempt to prevent bias in favor of local parties.[54] The inherent bias of state jurors can be extremely unfavorable for defendants in civil actions, and thus removal to federal courts is common.[55] This local bias strikes fear in many civil defendants, encouraging removal to a federal court.[56] Additionally, out-of-state litigants have a higher probability of receiving favorable procedural and substantive outcomes in federal courts than in-state litigants.[57] Because federal judges are insulated from local election, they are more likely to sit without local bias, which an out-of-state defendant may find favorable.[58]

III. The Practical Implementation of Forum Shopping

The plaintiff is considered the “master of the complaint.”[59] When analyzing a possible forum, initial investigation should focus on finding a forum with the most favorable substantive law that has jurisdiction over the claims.[60] Once a favorable jurisdiction has been found, the plaintiff must look at the defendants they wish to sue, as to avoid the issue of removal.[61] Most importantly, a plaintiff will want to evaluate the jury-awarded damage amounts for similar claims in order to compare potential positive outcomes against other jurisdictions.[62]

The defense, however, can fight this unfair practice through removing a case to a federal district court. To do so, the defendants investigate subject matter jurisdiction,[63] personal jurisdiction,[64] or the venue location to see if there is a forum non conveniens argument. If there is a jurisdictional issue in the initial court, then the case can easily be removed.[65] Without full diversity jurisdiction or federal question jurisdiction, a federal court does not have the authority to decide a case.[66] Making a forum non conveniens argument may also allow for a dismissal of the case without prejudice.[67] While these extra steps may be burdensome initially, they may potentially lead to a forum where the substantive law denies the plaintiff’s claim altogether, saving a clients’ time and money.

IV. Conclusion

Although the strategic maneuver of forum shopping may be disfavored, it is common in the landscape of modern litigation and, unlike malls, forum shopping appears to be growing even more popular in recent years. Plaintiff counsel must be diligent in their forum selection as to avoid removal by the defense counsel. However, this strategic decision goes against the fundamental fairness of a court by trivializing it. The practice can make jurisdictional difference paramount over even the merits of the case. Because of the gamesmanship forum shopping creates, defense counsel must be diligent in analyzing the claim, looking through all aspects of the complaint to determine if the jurisdiction is proper. It is imperative for counselors to focus on the proper venue, and not get lost wandering around the mall of forums. In this way, forum shopping can best be limited by the checks and balances that already exist within the adversarial structure of American litigation.

[1] Richard Maloy, Forum Shopping? What’s Wrong With That?, 24 Quinnipiac L. Rev. 25, 29 (2005-2006); see also Erie R.R. v. Tompkins, 304 U.S. 64 (1938).

[2] See Hanna v. Plumer, 380 U.S. 460, 467 (1965) (Chief Justice Warren Burger stating that the forum selection was a direct link to the Tyson v. Swift ruling, and that was disfavored).

[3] Mary Garvey Algero, In Defense of Forum Shopping: A Realistic Look at Selecting a Venue, 78 Neb. L. Rev. 79, 84-85 (1999) (discussing the difficulty in the origins of Forum Shopping after Swift was decided, especially in the preservation of state autonomy versus federal court autonomy); see also Erie R.R. v. Tompkins, 304 U.S. 64 at 74; see also id. at 69 n.1 & 74 n.5 for a listing of several cases and articles that had questioned the decision in Swift.

[4] See Erie R.R. v. Tompkins, 304 U.S. 64 at 74-78, 92 (1938) (essentially overruling Swift, denying the existence of federal “general common law” and granting federal power over procedural claims).

[5] See Forum-Shopping Definition, Black’s Law Dictionary (9th Ed. 2011) available at Westlaw.

[6] See Algero, supra note 3, at 79; see also Lynn M. LoPucki & William C. Whitford, Venue Choice and Forum Shopping in the Bankruptcy Reorganization of Large, Publicly Held Companies, 1991 Wis. L Rev. 11, 14.

[7] Id. (stating the Second Circuit describe forum shopping as the plaintiff attempting to use forum-shopping to defeat the “expectations of the defendant or will upset the policies of the state in which the defendant acted.” citing Iragorri v. United Techs. Corp., 274 F.3d 65, 75 (2d Cir. 2001); See also In re Monegasque De Reassurances, 311 F.3d 488, 498 (2d Cir. 2002). 

[8] Id. citing Note: Forum Shopping Reconsidered, 103 Harv. L. Rev. 1677, 1677 (1990).

[9] Maloy, supra note 1, at 25 n.2.

[10] See Forum Shopping Reconsidered, supra note 8, at 1683.

[11] U.S. Const. art. VI § 2.

[12] U.S. Const. art. IV, § 1.

[13] Many plaintiffs will claim citizenship if the underlying incident occurs in a state, if the potential defendant is located in the state, or if the defendant would have “minimum contacts” with the state.     

[14] See Forum Shopping Reconsidered, supra note 8, at 1683.

[15] See Jimmy Lewis, The Best and Worst States for Lawsuits, American Legal Exchange Council (Oct. 25, 2017), https://www.alec.org/article/the-best-and-worst-states-for-lawsuits/ [https://perma.cc/2ZT2-VF5D].

[16] See Erie Doctrine Definition, Black’s Law Dictionary (11th ed. 2019) available at Westlaw.  

[17] A court may also use Federal Question under 28 U.S.C. §1331, which grants federal district courts original jurisdiction.

[18] See Lloyd N. Cutler, The Demise of Swift v. Tyson, 47 Yale L. J. 1336, 1337 (1937-1938)(prior to Erie, courts would often use Swift to apply federal substantive law to state issues. However, Erie overruled this issue, thus leading to the uniformity of federal and state issues).

[19] Id. at 533 (determining that forum shopping plaintiff could not transfer his action to a different jurisdiction because the statute of limitations had run).

[20] See Ferens v. John Deere Co., 494 U.S. at 527.

[21] Id.

[22] Cutler, supra note 20,at 48.

[23] Id.; see also Passantino v. Johnson & Johnson Consumer Prd., Inc., 212 F.3d 493, 505 (9th Cir. 2000).

[24] Cutler, supra note 20; see also Passantino v. Johnson & Johnson Consumer Prd., Inc., 212 F.3d 493, 505 (9th Cir. 2000).

[25] Cutler, supra note 20; see also Marcel Kahan & Linda Silberman, The Inadequate Search for “Adequacy” in Class Actions: A Critique of Epstein v. MCA, Inc., 73 N.Y.U. L. Rev. 765, 776 (1998).

[26] Maloy, supra note 1, at 49; see also Dudash v. Vernell Struck & Assoc., Inc., No. CO4-2748 MHP, 2004 U.S. Dist. LEXIS 24872, at 14-15 (N.D. Cal. Nov. 16, 2004); Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1772, 2 (2017).

[27] See Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985); see also Ferens v. John Deere Co., 494 U.S. 516 (1990); Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941).

[28] See Bristol-Meyers, supra note 28.

[29] Id. at 8.

[30] See International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154 (1945); see also Walden v. Fiore, 571 U.S. 277, 291 (2014) (stating that the defendant, and not the plaintiff or third parties, must create contacts with the forum state).

[31] See Rich Samp, Forum-Shopping Plaintiffs Take a Major Hit in US Supreme Court, Forbes (Jun 29, 2017, 01:09 pm), https://www.forbes.com/sites/wlf/2017/06/29/forum-shopping-plaintiffs-take-a-major-hit-in-us-supreme-court/?sh=5d15827a6de4 [https://perma.cc/E6R5-WYJE].

[32] See Statute of Limitations Definition, Black’s Law Dictionary (9th Ed. 2011) available at Westlaw (a law that bars a claim after a specific period of time).

[33] Maloy, supra note 1, at 39; see also Curry v. States Marine Corp. of Del., 118 F.Supp. 234, 235 (S.D.N.Y. 1954); Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 779 (1984) (stating that although the statute of limitations had run in other jurisdictions, they had not yet run in New Hampshire, and thus the plaintiff was allowed to commence the action).

[34] Maloy, supra note 1, at 39-40.

[35] Id. at 40. (The court must have proper jurisdiction to hear the claim before considering if this venue was proper).

[36] Id. at 50.

[37] 28 U.S.C. 1346(b)(1). This statute only applies to private actors suffering damage caused by the actions of governmental employees.

[38] Maloy, supra note 1, at 50-51.

[39] See Forum Non-ConveniensDefinition, Black’s Law Dictionary (11th Ed. 2019) available at Westlaw (the doctrine that an appropriate forum–even though competent under the law–may divest itself of jurisdiction if, for the convenience of the litigants and witnesses, it appears that the action should proceed in another forum in which the action might also have been properly brought in the first place).

[40] Id.

[41] See Sinochem Int’l Co. v. Malay. Int’l Shipping Corp., 549 U.S. 422, at 429 (2007); see also, American Dredging Co. v. Miller, 510 U.S. 443, 447-448 (1994) (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 (1981)).

[42] See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 511-12 (1947) (The court allowed the plaintiff to bring the action in the proper district in Virginia).

[43] Maloy, supra note 1, at 50-51.

[44] See Trierweiler v. Croton & Trench Holding Corp., 90 F.3d 1523, 1532 (10th Cir. 1996).

[45] Id.

[46] See Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981).

[47] Id. at 250.

[48] See Seyfarth Shaw LLP, The 2019-2020 Judicial Hellholes Report on the Worst Jurisdictions for Defendants, Lexology (Dec. 10, 2019), https://www.lexology.com/library/detail.aspx?g=91214872-2237-412f-9858-6a50cacdccf6 [https://perma.cc/9TW6-3L72]. 

[49] See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

[50] See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

[51] See Anjelica Cappellino, Daubert vs. Frye: Navigating the Standards of Admissibility for Expert Testimony, Expert Institute, (Updated Sep. 7, 2021), https://www.expertinstitute.com/resources/insights/daubert-vs-frye-navigating-the-standards-of-admissibility-for-expert-testimony/ [https://perma.cc/E9FP-UGZD].

[52] Id.

[53] See 28 U.S.C. §1441(a) (a defendant may remove from State to the United States district court in which the action is pending, so long as the district court has original jurisdiction).

[54] See Howard M. Wasserman, The Forum-Defendant Rule, The Mischief Rule, and Snap Removal, 62 Wm. & Mary L. Rev. 51, 57 (Feb. 2021); see also Scott Dodson, Beyond Bias in Diversity Jurisdiction, 69 Duke L.J. 267, 283-84, 287 (2019); Howard M. Wasserman, A Jurisdictional Prospective on New York Times v. Sullivan, 107 Nw. U. L. Rev. 901, 906 (2013); Hertz Corp. v. Friend, 559 U.S. 77, 85 (2010); Bank of United States v. Deveaux, 9 U.S. 61, 87 (1809); Gibbons v. Bristol-Myers Squibb Co., 919 F.3d 699, 706 (2d Cir. 2019).

[55] See Mark Moller, The Checks and Balances of Forum Shopping, vol 1 Stan. J. of Complex Litigation 171, (2013); see also Kevin M. Clermont & Theodore Eisenberg. Do Case Outcomes Really Reveal Anything About the Legal System? Win Rates and Removal Jurisdiction, 83 Cornell L. Rev. 581, 604 (1998) (noting corporate defendants heavily populate removal proceedings).

[56] See Victor E. Flango, Litigant Choice Between State and Federal Courts, 46 S.C. L. Rev. 961 (1995) (reviewing empirical evidence suggesting out of state corporate parties have stronger preferences for federal court, although also noting that for many corporate litigants, federal forum selection is driven by fear of local bias than fear of bias based on party’s corporate status); see also Neal Miller, An Empirical Study of Forum Choices in Removal Cases under Diversity and Federal Question Jurisdiction, 41 Am. U. L. Rev. 369, 414, 424 (1992) (collecting data showing perceive bias against corporate attorney clients).

[57] See Willy E. Rice, Allegedly “Biased”, “Intimidating” and “Incompetent” State Court Judges and the Questionable Removal of State Law Class Actions to Purportedly “Impartial” and “Competent” Federal Courts – A Historical Analysis of Class Action Dispositions in Federal and State Courts, 1925-2011, 3 William & Mary B. L. Rev. 419,444; see also Kevin M Clermont & Theodore Eisenberg, Commentary, Xenophilia in American Courts, 109 Harv. L. Rev. 1120, 1142 (1996).

[58] U.S. Const. Art. III Section I; see also Richard W. Garnett & David A Strauss, Common Interpretation: Article III, Section One, National Constitution Center, (last visited Oct. 22, 2021), https://constitutioncenter.org/interactive-constitution/interpretation/article-iii/clauses/45 [https://perma.cc/BM5K-4VWC].

[59] See Note, The Harvard Law Review Association, supra note 8, at 1678.

[60] See State JurisdictionDefinition, Black’s Law Dictionary (11th ed. 2019) available at Westlaw. Since state courts have general jurisdiction, they will likely be able to hear almost every claim, so long as it occurs in the forum states boundaries.

[61] See Diversity Jurisdiction Definition, Black’s Law Dictionary (11th ed. 2019) available at Westlaw (the defendant’s must be from a different state and the amount in controversy must be over $75,000).

[62] This can be done a number of ways. Lexis and Westlaw both offer services to search terms for verdict amounts, thus granting clarity in the possible amount at trial.

[63] See Subject Matter Jurisdiction Definition, Black’s Law Dictionary (11th ed. 2019) available at Westlaw. Jurisdiction over the nature of the case and they type of relief sought; the extent to which a court can rule on the conduct of persons or the status of things.

[64] See Personal Jurisdiction Definition, Black’s Law Dictionary (11th ed. 2019) available at Westlaw. A court’s power to bring a person into its adjudicative process; jurisdiction over a defendant’s personal rights, rather than merely over property interests.

[65] While it may be removed, additional steps will need to be taken to find out which federal court would have jurisdiction. For example, if the plaintiff sues in their home state, but the accident happened in a third state, and the domicile of the defendant is in the third state, then removal would likely be in the federal district where the actual suit arose.

[66] See 28 U.S.C. § 1332. Essentially, this rule forces both parties to be from separate jurisdictions. There cannot be a similarly situated party on either side of the “v” for diversity jurisdiction.

[67] See Dismissal without PrejudiceDefinition, Black’s Law Dictionary (11th ed. 2019) available at Westlaw (Dismissal without prejudice allows for a plaintiff to refile in a proper court); see also Nix v. Office of the Comm’r of Baseball, D/B/A Major League Baseball, S.D. NY. No. 17-cv-1241, 2017 U.S. Dist. LEXIS 104413, 7 (S.D. NY. July 6, 2017). (Stating that courts have uniformly held that defendants are not prejudiced under Rule 41(a)(2) by having to face trial in state court). While a dismissal with prejudice may be more beneficial to a defendant, it is unlikely that courts will grant a dismissal with prejudice for forum shopping because of Rule 41(a)(2).

Gender: The Issue of Immutability

Photo by Cecilie Johnsen on Unsplash

Silver Flight, Associate Member, University of Cincinnati Law Review

I. Introduction

The United States legal system generally holds that individuals should not be discriminated against on the basis of immutable characteristics. However, not all immutable characteristics are protected, and not all characteristics that are protected are immutable. This article questions the role of immutability in anti-discrimination law regarding transgender,[1] nonbinary,[2] and other gender-nonconforming individuals. 

II. Grimm v. Gloucester and Immutability

In Grimm v. Gloucester County School Board,[3] the Fourth Circuit Court of Appeals considered a transgender student’s right to use the school bathroom that corresponded to his gender. The court held that the school’s policy of limiting single-sex bathroom usage to individuals with the “corresponding biological genders” violated both Title IX of the Education Amendments of 1972 and the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.[4]

In the Title IX analysis, the court referred to the Supreme Court’s recent holding in Bostock v. Clayton County[5]and held that “a bathroom policy precluding Grimm from using the boys restrooms discriminated against him ‘on the basis of sex.’”[6] Although the Bostock decision interpreted Title VII of the Civil Rights Act of 1964, the court wrote that it also guided their interpretation of Title IX.[7]

In the Equal Protection Clause analysis, the court held that the policy was a sex-based classification, and therefore subject to intermediate scrutiny.[8] The court cited the Seventh and Eleventh Circuits as other courts that have held that discrimination against transgender people constituted sex-based discrimination under the Equal Protection Clause.[9]

The court also held that transgender persons constituted a quasi-suspect class.[10] The court analyzed transgender status and held that transgender persons have historically been subject to discrimination, that being transgender bears no relation to ability to perform or contribute to society, that “the class may be defined as a discrete group by obvious, immutable, or distinguishing characteristics,”[11] and that the class was a minority lacking in political power.[12]

Under the third factor, “the class may be defined as a discrete group by obvious, immutable, or distinguishing characteristics,”[13] the court wrote that “gender identity is formulated for most people at a very early age, and, as our medical amici explain, being transgender is not a choice. Rather, it is as natural and immutable as being cisgender.”[14] Despite a brief reference to nonbinary genders[15] and intersex people,[16] the court carefully limited its opinion to “the rights of transgender students who ‘consistently, persistently, and insistently’ express a binary gender.”[17] The court heavily emphasized Grimm’s immutable gender in the opinion, writing that “Grimm always knew that he was a boy” and “would opt to wear boys’ clothing.”[18] Later, the court even wrote that he “did not question his gender identity at all; he knew he was a boy.”[19]

III. Origins of Immutability

The idea of class-based scrutiny has origins in the 1938 case U.S. v. Carolene Products,[20] which famously included in a footnote, “Nor need we enquire . . . whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.”[21] After the Court held that strict scrutiny would apply to race-based classifications,[22] the 1973 case Frontiero v. Richardson[23] was one of several that signaled that a heightened scrutiny would also apply to sex classifications.[24]

In Frontiero, Justice Brennan drew analogies between sex and race, writing that “sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth,”[25] marking the “debut of immutability as a legal concept.”[26] Brennan distinguished sex from intelligence or physical disability, which might be considered immutable, by emphasizing that “the sex characteristic frequently bears no relation to ability to perform or contribute to society.”[27] Therefore, immutability by itself was not sufficient grounds for heightened scrutiny.[28] However, Justice Brennan also emphasized other factors in the test, such as the idea that sex had little effect on one’s ability to contribute to society, and the fact that women had historically faced discrimination, and still faced “pervasive, although at times more subtle, discrimination in our educational institutions, in the job market and, perhaps more conspicuously, in the political arena.”[29]

In the 1989 case Watkins v. U.S. Army,[30] Justice Norris of the Ninth Circuit wrote in a concurrence that “by ‘immutability’ the Court has never meant strict immutability in the sense that members of the class must be physically unable to change or mask the trait defining their class.”[31] Instead, “‘immutability’ may describe those traits that are so central to a person’s identity that it would be abhorrent for government to penalize a person for refusing to change them, regardless of how easy that change might be physically.”[32] Essentially, this new immutability asked not can you change a trait, but should you be required to change it? Many courts have adopted this newer version of immutability.[33] Although at first glance this seems like it may enable a strong argument for protection against discrimination based on gender identity or sexual orientation, relying on a concept of immutability has several shortcomings.

IV. Problematizing Immutability

One of the issues with immutability, old or new, is that it masks moral judgments about the blameworthiness of traits.[34] For example, when being transgender is framed as an immutable part of someone’s identity, something they have no choice over (although this may be true for many transgender individuals), it implies that if they had a choice, they should have chosen to be cisgender. Even while prohibiting discrimination against transgender people, a legal framework that relies on immutability implies that being transgender is still inferior to being cisgender.

Relying on immutability as a lack of choice also raises problems for anyone who does make choices about their gender, who doesn’t identify with one binary gender, or who experiences gender as fluid. The same issues arise in the realm of sexual orientation.[35] Additionally, although some individuals may change their stance on the morality of being LGBTQ+ when faced with evidence of immutability, and such an argument may be helpful for individuals pursuing self-acceptance, studies have shown that in general, “it is not clear that born/chosen beliefs actually lead to acceptance/rejection.”[36] Instead, deeply held moral and religious beliefs are likely to persist.[37]

Another concern raised by new immutability in anti-discrimination law is that, by emphasizing traits that are central to one’s personhood, other stigmatized traits may slip through the cracks.[38] For example, weight is an extremely common basis for discrimination,[39] and science suggests that weight is largely influenced by biological factors rather than choices,[40] yet it is not generally covered under new immutability and many would not consider it to be central to one’s personhood. In this sense, new immutability functions to approve of traits that, according to societal norms, may evoke a sense of pride, while excluding traits that may be a source of shame or stigma.[41] Additionally, some might not experience their gender or sexuality as immutable and central to their personhood.[42]

Lisa Diamond gives an overview of longitudinal studies that have shown that “[a]lthough therapeutic attempts to change sexual orientation are not successful, patterns of self-reported same-sex and other-sex attraction sometimes change on their own.”[43] Many people may experience sexual orientation as immutable, and it has been shown that conversion therapy does not work.[44] However, as shown in the longitudinal studies referenced by Diamond, the idea that sexual orientation is always immutable for everyone is not scientifically accurate and erases those who have a different experience.

Similarly, gender identity may not be immutable for everyone.[45] Not only might someone’s gender change over time, but they might be genderfluid and identify with different genders regularly, or might experience multiple genders at once and express a mixture of traditionally feminine and masculine gendered clothing, style, or behaviors. Current law regarding transgender rights tends to center on one narrative of transgender experience, the “born this way”/“born in the wrong body” narrative of someone who knew their true gender identity from a young age and never wavered from it. The law silences other experiences, such as those who make discoveries about their gender identity later in life, whose experiences of gender change over time, or who want to express multiple genders. These experiences do not fit the acceptable narrative in anti-discrimination law. The rhetoric of “they had no choice but to be transgender,” implies that being transgender is inferior to being cisgender, and that if there had been a choice, any discrimination one faced would have been their own fault. Rather than relying on this argument, perhaps we should argue that no one deserves to be discriminated against on the basis of gender identity or expression, regardless of choice.

V. Alternatives to Immutability

Several scholars point out that immutability does not need to be a requirement to define a quasi-suspect class.[46] Immutability has historically been treated as a factor rather than a requirement in the analysis,[47] and alienage is an example of a suspect class distinction that is not immutable. Immutability is also not determinative of suspect- or quasi-suspect class status, because intelligence, which some may say is immutable, is not a protected class status.[48] In 2012, the Second Circuit Court of Appeals used a broader test to conclude that “homosexuality is a sufficiently discernible characteristic to define a discrete minority class,”[49] rather than relying on immutability. Similarly, courts could apply the quasi-suspect class analysis to those who are transgender, or more broadly, gender nonconforming, without requiring immutability.

There have also been other legal arguments that have been successful without relying on the quasi-suspect class analysis. For example, discrimination based on gender identity or expression could simply be cast as sex discrimination, as in Bostock when the court held that discrimination based on gender identity was necessarily sex discrimination under Title VII because the employer had to take sex into account when discriminating based on transgender status.[50]

Another option would be to shift from a class-based analysis to a trait-based analysis.[51] Identifying discrimination based on a protected trait, such as gender nonconformity, rather than whether an individual belongs to a protected class, or identifies as transgender, may provide more protection for those who do not fall into specific categories of sexuality or gender but instead are discriminated against for expressing non-normative gender that goes against societal norms in a way that is less articulable.

Writing in the field of employment discrimination, Jessica A. Clarke suggests that anti-discrimination law should target systemic biases,[52] such that “to discriminate on the basis of a forbidden trait, an employer must demonstrate a business reason sufficient to meet a statutory standard or other exception.”[53] Rather than focusing on the immutability of certain traits, Clarke suggests that advocates focus on how biases based on certain traits perpetuate systemic inequality.[54] In the Equal Protection Clause realm, this could look like a type of heightened scrutiny for policies that discriminate based on gender identity or expression, rather than limiting heightened scrutiny to discrimination based on transgender status.

In Grimm v. Gloucester, the court emphasized that Grimm’s gender was immutable, and therefore he deserved to be treated like any other boy and allowed to use the boy’s restroom. However, the court also noted that Grimm had used the boys’ restroom for seven weeks without incident before the community found out and actually increased the privacy in the bathroom by adding “privacy strips and screens between the urinals.”[55] Additionally, the court noted that the Board did “not present any evidence that a transgender student, let alone Grimm, is likely to be a peeping tom, rather than minding their own business like any other student.”[56] This fear around transgender students using bathrooms that correspond with their gender is based on assumption that all students are heterosexual. In future cases like this, an argument can be made that even if a student hadn’t known that they were transgender from a young age, or if a student was nonbinary, they should be able to use the bathroom they are most comfortable with, and increasing privacy within bathrooms and locker rooms may not only solve the issue but also benefit all students who would appreciate more privacy.[57] Rather than requiring future students in a case like this to prove that their gender is immutable, we should question whether the governmental objective requires a sex-based policy, or if it would be better addressed by, for example, improved privacy in school bathrooms.

VI. Conclusion

There are several ways to work within anti-discrimination law and advocacy without demanding that gender be immutable. The methods discussed above are more inclusive and more useful than requiring immutability for protection from discrimination. Looking forward, we should conceptualize that discrimination based on a trait such as gender identity or expression should receive heightened scrutiny, not because gender is immutable, but because people should be able to express non-normative genders without facing discrimination, regardless of any element of choice.

[1] “Transgender,” adj., refers to someone whose gender identity does not match their sex assigned at birth.

[2] “Nonbinary,” adj., refers to someone who does not identify as a binary gender (male or female).

[3] Grimm v. Gloucester Cty. Sch. Bd., 972 F.3d 586 (4th Cir. 2020).

[4] Id. at 593-94.

[5] Bostock v. Clayton Cty., 140 S. Ct. 1731 (2020) (holding that, under Title VII of the Civil Rights Act of 1964, discrimination based on transgender status necessarily is discrimination on the basis of sex).

[6] Grimm, 972 F.3d at 616.

[7] Id.

[8] Id. at 608.

[9] Id. (citing Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034 (7th Cir. 2017); Adams v. Sch. Bd., 968 F.3d 1286 (11th Cir. 2020)).

[10] Id. at 611.

[11] Id.

[12] Id.

[13] Id.

[14] Id. at 612-13. “Cisgender” refers to someone whose gender identity matches their sex assigned at birth.

[15] “Nonbinary genders” refers to gender identities other than male or female.

[16] Intersex individuals are those born with biological characteristics that differ from typical expectations for binary male and female bodies. See FAQ: What is intersex?, InterAct (last updated Jan. 26, 2021), https://interactadvocates.org/faq/.

[17] Grimm, 972 F.3d at 596.

[18] Id. at 597-98.

[19] Id. at 610.

[20] United States v. Carolene Prods. Co., 304 U.S. 144 (1938).

[21] Carolene Prods. Co., 304 U.S. at 155 n.4; Lisa M. Diamond & Clifford J. Rosky, Scrutinizing Immutability: Research on Sexual Orientation and U.S. Legal Advocacy for Sexual Minorities, 53 J. Sex Res. 363, 373 (2016).

[22] Diamond & Rosky, supra note 21, at 373-74 (citing to Korematsu v. U.S., 323 U.S. 214 (1944)).

[23] Frontiero v. Richardson, 411 U.S. 677, 688 (1973) (in which a plurality of justices wrote that classifications based upon sex must be subjected to strict judicial scrutiny). See also Reed v. Reed, 404 U.S. 71, 75 (1971) (holding that discrimination on the basis of sex is subject to scrutiny under the Equal Protection Clause of the Fourteenth Amendment). 

[24] Diamond & Rosky, supra note 21, at 374.

[25] Frontiero, 411 U.S. at 686.

[26] Diamond & Rosky, supra note 21, at 374.

[27] Frontiero, 411 U.S. at 686.

[28] Diamond & Rosky, supra note 21, at 374.

[29] Frontiero, 411 U.S. at 686.

[30] Watkins v. U.S. Army, 875 F.2d 699 (9th Cir. 1989) (Norris, J., concurring).

[31] Id. at 726. The court referred to sex reassignment surgery, becoming naturalized citizens, and racial passing as examples of changing or masking the trait defining one’s class.

[32] Id.

[33] Jessica A. Clarke, Against Immutability, 125 Yale L.J. 1, 4 (2015).

[34] Id. at 32. Clarke also argues that courts use new immutability as a supposedly objective way to mask their moralizing decisions about what kinds of behavior are socially acceptable and should be tolerated by society.

[35] Diamond & Rosky, supra note 21, at 382, noting that “bisexuals have been altogether absent from both scientific and legal discourses about the immutability of sexual orientation and its relevance to sexual minority rights.”

[36] Id. at 15.

[37] Diamond & Rosky, supra note 21, at 378.

[38] Clarke, supra note 33, at 33.

[39] Id. at 53.

[40] Id. at 57.

[41] Id. at 41.

[42] Diamond & Rosky, supra note 21, at 376.

[43] Id. at 371.

[44] Id. at 368.

[45] Nicholas Adjami, Sex and Gender Fluidity Versus ‘Born This Way’, 25 The Gay & Lesbian Rev. Worldwide, Jul/Aug 2018, https://glreview.org/article/sex-and-gender-fluidity-versus-born-this-way/ (an interview with Lisa Diamond and Jessica Clarke); Nova J. Bradford et al., Creating Gender: A Thematic Analysis of Genderqueer Narratives, 20 International Journal of Transgenderism 155, 160 (2019) (study noting that “[m]any participants described their gender identity as fluid, or fluctuating over time”).

[46] Shirley Lin, Dehumanization “Because of Sex”: The Multiaxial Approach to the Rights of Sexual Minorities, 24 Lewis & Clark L. Rev. 731, 749 (noting that U.S. v. Carolene Products never used the term “immutable”); Diamond & Rosky, supra note 21, at 374-75; M. Katherine Baird Darmer, “Immutability” and Stigma: Towards a More Progressive Equal Protection Rights Discourse, 18 J. Gender, Soc. Pol. & L. 439, 448.

[47] Diamond & Rosky, supra note 21, at 375.

[48] Id. (citing to Frontiero, 411 U.S. 677, 686).

[49] Windsor v. United States, 699 F.3d 169, 183 (2d Cir. 2012); Diamond & Rosky, supra note 21, at 375.

[50] Bostock v. Clayton Cty., 140 S. Ct. at 1750-60 (2020); but see Lin, supra note 46 (critiquing Bostock’s but-for analysis and analyzing its potential shortcomings by relying on gender stereotypes associated with binary sex assigned at birth).

[51] Lin, supra note 46, at 731-32 (writing within Title VII law, introducing a theory of a “multiaxial analysis” to identify “protected traits as socially constructed along four axes: the aggrieved individual’s self-identification, the defendant-employer, society, and the state.”).

[52] Clarke, supra note 33, at 93.

[53] Id. at 96.

[54] Id. at 98.

[55] Grimm, 972 F.3d at 614.

[56] Id.

[57] Jessica A. Clarke, They, Them, and Theirs, 132 Harv. L. Rev. 894, 982 (2019) (writing about how students may prefer more privacy in locker rooms, and that same-sex spaces are not “no-sex” spaces).

State v. Chapman Makes It Harder to Impose Community Control Conditions Restricting the Right to Procreate

Photo by Tingey Injury Law Firm on Unsplash

Bailey Wharton, Associate Member, University of Cincinnati Law Review

I. Introduction

While State v. Chapman is not the first case in Ohio to disallow a restriction on procreation as a condition of community control, the majority decision will certainly make it more difficult for trial courts to permissibly impose this type of anti-procreation condition in the future.[1]

First, this article will summarize the Supreme Court of Ohio’s majority and dissenting opinions in State v. Chapman, provide a brief overview of the scope of judges’ discretion in imposing community control conditions that limit fundamental rights, and set out the proper standard of review for questions involving fundamental rights limited by community control conditions. Next, this article will argue that the majority in Chapman modified the reasonableness test in State v. Jones to include a heightened burden for community control conditions, thus limiting fundamental rights, and it will consider how this new application of the Jones test will, or should be, used in the future.

II. Background

A. State v. Chapman

In December 2020, the Supreme Court of Ohio issued a decision addressing whether a community control condition ordering London Chapman to “make all reasonable efforts to avoid impregnating a woman” during his community control period impermissibly infringed upon Chapman’s fundamental right to procreate.[2] In 2018, Chapman was convicted of felony failure to pay child support for his eleven children and was sentenced to community control.[3] The trial court imposed several conditions as part of his community control sentence, but the condition at issue in this case is the restriction on procreation.[4] After two unsuccessful appeals, the Supreme Court of Ohio granted Chapman’s discretionary appeal.[5]

The majority opinion, authored by Justice DeWine, invalidated the community control provision prohibiting procreation, ruling that it “is not reasonably related to the goals of community control, nor is it reasonably tailored to avoid impinging Chapman’s liberty no more than necessary” under the State v. Jones reasonable-relationship test.[6] Justice French’s dissent, while agreeing with the majority that the Jones test is the proper test, argues that the majority improperly applied the Jones test by imposing a “more-exacting-justification requirement” beyond the traditional reasonable-relationship requirement.[7]

B. Standard of Review for Limitations on Fundamental Rights by Community Control Conditions

i. Community Control Conditions that Limit Fundamental Rights

The U.S. Supreme Court recognizes the right to procreation as a fundamental right protected by the U.S. Constitution.[8] However, Ohio has recognized that “someone who commits a crime and is duly convicted surrenders key aspects of his liberty…[and] when a person has broken the laws of society and has been afforded the due process of the law, the government may legitimately deprive that person of his liberty.”[9] Thus, limitations on fundamental rights of convicted criminals are permissible “provided that such limitations further the statutory goals of community control and are not overbroad.”[10]

ii. State v. Jones Reasonable-Relationship Test

Following the logic outlined in the above paragraph, Ohio courts do not apply a strict scrutiny analysis when reviewing whether a criminal punishment is a permissible limitation on a fundamental right.[11] Rather, the Ohio Supreme Court employs the reasonably-related test established by the Court in State v. Jones.[12] Under Jones’ three-part test, “courts should consider whether the condition (1) is reasonably related to rehabilitating the offender, (2) has some relationship to the crime of which the offender was convicted, and (3) relates to conduct which is criminal or reasonably related to future criminality and serves the statutory ends of probation.”[13] The Jones test analysis is primarily focused on the fit of a community control condition implicating a fundamental right as it relates to the crime committed.[14]

III. Discussion

A. Did the Majority Correctly Apply the Jones Test in Determining that the Anti-Procreation Condition Did Not Have ‘Some Relationship’ to the Crime of Failing to Pay Child Support?

The majority in this case correctly determined that the standard of review for this case was a reasonableness analysis and that the Jones test was the proper test to employ.[15] However, it can be argued, as Justice French argued in her dissent, that the majority imposed a higher burden requirement in the second prong of the Jones test than the simple “some relationship to the crime” consideration.[16] In fact, it appears the majority applied a much narrower reading of the “some relationship” language—almost like they required a direct relationship to the crime.[17]

In applying this higher, “more exacting” fit justification for community control conditions that implicate fundamental rights, the majority focused heavily on the language of the crime of which Chapman was convicted and whether or not limiting his ability to have more children was actually related to that exact crime.[18] Chapman was convicted under Ohio Revised Code § 2919.21, which “makes it a crime to fail to provide support as required by court order.”[19] Therefore, legally, the criminality of Chapman’s failure to support was the “failure to provide the mandated support…as his means and ability allow,” not fathering a large number of children or the “failure to support one’s dependents in and of itself.”[20] The majority heavily relied on this distinction—that “Chapman’s criminal conduct was not fathering children, it was failing to pay child support”—in its explanation for why the restriction on procreation simply did not meet the “more exacting” justification and was not “reasonably tailored to avoid impinging Chapman’s liberty.”[21]

The dissent strongly pushes back against the “heightened burden” the majority inserted into the Jones analysis.[22] Justice French argues that the majority did not simply apply the Jones test in its original form, but “modifie[d] the Jones test [to] impos[e] a higher burden for when a community-control condition that implicates a fundamental right is ‘not necessarily intrinsic to community control but [is] tailored to the rehabilitation of the offender.’”[23]

The dissent correctly calls out the majority for altering the Jones test to include a higher burden than traditionally required under a reasonable-relationship test. The majority casually introduced a new, “more exacting” justification requirement but offered no clarification for when or in what exact types of situations this new requirement must be employed.[24] The majority’s opinion implies that some community control conditions that limit fundamental freedoms will need to be more directly related to the crime a person is convicted of which assumes that there may be some other conditions that limit fundamental rights that will only need to have “some relationship” as seen in the Jones test.[25]

B. Effect of Introducing the ‘More Exacting’ Justification Requirement into the Jones Test

This decision will undoubtedly create some confusion among trial courts when it comes to knowing how closely related a condition must be for it to survive the new modified Jones standard.[26] It could also be viewed as potentially curtailing the discretion of trial courts to impose certain types of community control conditions that have historically been viewed as reasonable under the Jones test, but now, following the decision in Chapman, are no longer permissible. In fact, in another case from Ohio involving the same anti-procreation condition, the Supreme Court of Ohio issued a sua sponte discretionary appeal and reversed the judgment of the court of appeals based on the Court’s decision in Chapman, and it remanded the case back to the trial court to reimpose a sentence that tracks with the holding in Chapman.[27]  

IV. Conclusion

There are real concerns as a result of the majority’s opinion in this case. Rather than sticking to a straightforward application of the Jones test, which the majority acknowledged was the proper test for the issue of limitations of fundamental rights in community control conditions, the majority haphazardly modified the test to include a higher burden of relatedness without any real qualifications or clarifications for how the modified burden is to be applied across the board.[28] By not explaining what types of conditions “are not necessarily intrinsic to community control” it will be very hard for trial courts to know which types of conditions will require “more exacting” justifications so to be considered permissible limitations on a fundamental right.[29] Without further clarification, this decision opens the floodgates and may result in an onslaught of appeals seeking to invalidate community control sentences that have all previously been found permissible under the original Jones test analysis.

[1] See generally State v. Talty, 103 Ohio St. 3d 177, 2004-Ohio-4888, 814 N.E.2d 1201 (“[T]he antiprocreation order is overbroad.”).

[2] State v. Chapman, 163 Ohio St. 3d 290, 2020-Ohio-6730, 170 N.E.3d 6, at ¶¶ 1,6.

[3] Id. at ¶ 2.

[4] Id.

[5] Id. at ¶ 6.

[6] Chapman at ¶ 29 (French, J., dissenting).

[7] Id. at ¶ 30 (French, J., dissenting).

[8] State v. Talty, 103 Ohio St. 3d 177, 2004-Ohio-4888, 814 N.E.2d 1201, at ¶ 8 (citing Skinner v. Oklahoma, 316 U.S. 535, 541 (1943)).

[9] Chapman at ¶ 13.

[10] Id.; see also Chapman at ¶ 15 (“[S]uch a limitation is a permissible condition of probation if it reasonably furthers the goals of rehabilitation and protecting society.”) (citing United States v. Knights, 534 U.S. 112, 119 (2001)); see generally Chapman at ¶ 16 (“[A] trial court can impose community-control sanctions that limit the offender’s fundamental rights.”).

[11] See Chapman at ¶ 14 (“[W]e have never applied a strict-scrutiny analysis to a criminal punishment.”).

[12] See State v. Jones, 49 Ohio St. 3d 51, 53, 550 N.E.2d 469 (1990); see generally Talty at ¶ 16 (“Jones stands for the proposition that probation conditions must be reasonably related to the statutory ends of probation and must not be overbroad. Because community control is the functional equivalent of probation, this proposition applies with equal force to community-control sanctions.”).

[13] Jones, 49 Ohio St. 3d at 53.

[14] See also Talty at ¶ 14 (“The requirement that a condition may not be overbroad is connected to the reasonableness of a condition.”).

[15] See Chapman at ¶ 14.

[16] Id. at ¶ 30 (French, J., dissenting); Jones, 49 Ohio St. 3d at 53.

[17] Chapman at ¶ 19 (“the justification must be more exacting so as to ensure that the condition does not limit the probationer’s liberty more than is necessary to achieve the goals of community control.”).

[18] Chapman at ¶¶ 19, 24, 25.

[19] Id. at ¶ 24.

[20] Id. at ¶¶ 24, 25 (emphasis added).

[21] Id. at ¶¶ 19, 25, 28.

[22] Id. at ¶ 30 (French, J., dissenting).

[23] Id. at ¶ 33 (French, J., dissenting).

[24] Id. at ¶ 19; see also Id. at ¶ 30 (French, J., dissenting) (“[T]he majority now requires an amorphous “more exacting” justification for the community-control condition at issue here.”) (citing Majority opinion at ¶ 19).

[25] See State v. Jones, 49 Ohio St. 3d 51, 53, 550 N.E.2d 469 (1990).

[26] See Chapman at ¶ 30 (French, J., dissenting) (“I fear the majority’s heightened burden will lead to confusion and uncertainty as courts try to grapple with whether the more-exacting-justification standard applies to a court’s imposition of a community-control condition that implicates a fundamental right.”).

[27]  State v. Anderson, 163 Ohio St. 3d 205, 2020-Ohio-6910, 168 N.E.3d 1187, at ¶ 1; see also State v. Anderson, 2018-Ohio-342, at ¶ 9 (rejected Anderson’s non-constitutional argument that “the community-control condition failed to satisfy the Jones test…because he was not convicted of a crime involving procreation, [and] the community-control condition is not reasonably related to rehabilitation.”).

[28] Chapman at ¶ 17.

[29] Id. at ¶ 18.

Is the Chinese Communist Party Guilty of the Crime of Genocide Against the Uyghurs?

Photo by Fakurian Design on Unsplash

Mallory Perazzo, Associate Member, University of Cincinnati College of Law

I. Introduction

After the end of the Holocaust in 1945, the world pledged “never forget, never again,” but humans and governments have consistently broken that pledge.[1] The promise means to continuously tell the story of the genocide that took the lives of six million people in Nazi Germany so that future atrocities can be recognized and prevented.[2] Since the Holocaust, three genocides have been legally recognized and led to trials under the United Nation’s Convention on the Prevention and Punishment of the Crime of Genocide (including Rwanda in 1994, Bosnia in 1995, and Cambodia in 1975), and countless more instances of genocide have been recognized by countries and human rights organizations.[3] One such event that has not yet been tried, but has been declared genocide by various countries and scholars, is the current genocide against the Uyghur people in Xinjiang, China.[4] Today the Xinjiang region has witnessed the largest forced incarceration of an ethno-religious minority group since World War II.[5] China is committing several crimes against humanity against the Uyghurs, including mass incarceration, suppressing births, religious persecution, and, ultimately, genocide.[6]

The People’s Republic of China (“PRC”), under the control of the Chinese Communist Party (“CCP”), has committed and continues to commit the crime of genocide against the Uyghur people in Xinjiang, China. States should formally declare this genocide, prevent its continuance, and punish the Chinese government for the crimes it has committed.

Section II of this article provides the political and legal background of genocide and the discrimination against the Uyghur people. Section III provides an analysis of the law and elaborates on the importance of nations formally declaring that China is committing genocide. 

II. Background

A. Legal Background

The United Nations codified the law of genocide for the first time in 1948 when it adopted The Convention on the Prevention and Punishment of the Crime of Genocide (“The Convention”), a human rights treaty.[7] The Convention is an agreement that outlines the definition of genocide and establishes an obligation of all States to prevent and punish genocide.[8]

The threshold for declaring that a government is committing genocide is high, and the ability to prove genocide is notoriously difficult.[9] Article II of The Convention defines genocide as any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group.[10] 

The International Court of Justice (“ICJ”) has ruled that the requisite intent is that a country intends to destroy at least a substantial part of a group of one of the protected classes, and the “substantial part” threshold is not merely a numerical assessment but also considers the intent to destroy “within a geographically limited area” and the “prominence of the alleged targeted part within the group as a whole.”[11]

Article I of The Convention requires that parties undertake efforts to prevent and punish genocide.[12] In 2007, the ICJ explained that the terms in a treaty should be construed according to their ordinary meaning in order to determine the purpose of a treaty.[13] The court held that The Convention’s terms not only prohibit countries from committing genocide but also require parties to prevent genocide extraterritorially.[14] Furthermore, the court held that the “obligation to prevent, and the corresponding duty to act, arise at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed.”[15]

B. Political Background

As a minority group, Uyghurs have faced discrimination that long preceded the alleged genocide against them today.[16] Uyghurs are a primarily Muslim Turkic-speaking minority that live in the Northwest region of China called Xinjiang.[17] Approximately 12 million Uyghurs account for roughly half of the population in that region.[18] Uyghurs have faced widespread discrimination for many years primarily by the prominent Chinese ethnic group, Han Chinese people.[19] The resentment that has resulted from this has led to violence by the Uyghurs, including riots that took place in 2009 which led to the deaths of approximately 200—mostly Han—people.[20] 

In response to violence and nonconformity by the Uyghurs, China launched a campaign in 2014 to “eradicate terrorism”, but the actions taken by the government in the name of that campaign have led to accusations of China committing genocide against the Uyghur people and other religious minorities.[21] The declarations of genocide stem largely from evidence that the PRC is systematically suppressing births of Uyghur children.[22] The Chinese government is forcibly sterilizing large numbers of Uyghur women as well as forcing abortions and birth control on women.[23] In doing so, China is attempting to “optimize” ethnic populations by decreasing the Uyghur births and, at the same time, encouraging more Han people to move to Xinjiang.[24] 

In addition to the sterilization of Uyghur women, the Chinese government is also arbitrarily incarcerating Uyghurs, particularly Uyghur religious, intellectual, and cultural elites.[25] Xinjiang is covered by a pervasive network of surveillance, including cameras that scan everything from license plates to people’s faces and mobile applications that monitor citizens’ daily lives.[26] Those that are labeled suspicious through these surveillance measures are at risk of being detained, which can occur for any number of seemingly mundane reasons, such as growing an abnormal beard, wearing a headscarf, regular prayer, avoiding alcohol, possessing books about Islam, traveling abroad, or contacting people outside of China.[27] Up to one million Uyghurs have been detained in re-education camps where there is evidence that detainees are being brainwashed and tortured, including verbal abuse, food deprivation, solitary confinement, beatings, and use of restraints and stress positions.[28] There have also been reports of deaths in the camps, including suicides.[29] The removal of people that are central to circulating Uyghur culture is accompanied by a policy of family separation in which Uyghur children are being taught to adopt Han culture.[30] 

Chinese officials have made statements that indicate China’s intentions. China denies all allegations that it is committing human rights violations in Xinjiang and instead claims its actions are necessary to combat terrorism.[31] Chinese officials have stated they are sterilizing Uyghur women because they believe the Uyghur population is a threat to China’s national security due to its size, concentration, and rapid growth.[32] The country also claims that it has since released all detainees from its re-education camps, which contradicts claims made by some throughout the Xinjiang region, but also that the camps were meant to combat separatism and Islamist militancy in the region in the first place.[33] China insists that Uyghur militants are waging a violent campaign for an independent state and asserts that Uyghurs are plotting bombings, sabotage, and civic unrest.[34] 

C. International response

In January 2021, the United States declared that the PRC has committed genocide and various crimes against humanity against the Uyghur people and other religious minorities in Xinjiang, China.[35] Several other national parliaments have followed suit, including Canada and the Netherlands.[36] Eight members of the European Parliament have demanded a UN-led investigation on the grounds that China’s current policies of birth-prevention measures may amount to genocide.[37]

There are several guidelines in place for a country to fulfill their obligation to prevent genocide in other countries.  The United Nations Security Council (“UNSC”) is the first line of action, and it has broad authority to call on member States to take action, which may include imposing economic sanctions and even taking military action against genocidaires.[38] However, China is one of the UNSC’s permanent members, each of whom has the power to veto resolutions, frustrating the council’s ability to act against permanent members.[39] Another primary vehicle for change is the International Court of Justice (“ICC”), which only may bring charges against States that have accepted the ICC’s jurisdiction.[40] One more possibility is that a state that has declared genocide in another state brings that claim before the ICJ if both States are party to The Convention.[41] In situations in which none of these options are viable because of jurisdictional or political blocks, countries can get more creative and use economic sanctions, diplomatic pressure, and other means to urge action.[42] 

III. Discussion

As with all crimes, the actus reus can be divided from the mens rea, and both must be proven to find the accused guilty. The actus reus refers to the action that comprises the physical element of the crime, and the mens rea may be described as criminal intention.[43] In The Convention, the actus reus is satisfied when a party engages in at least one of five different behaviors toward a certain group, including killing members, causing serious bodily or mental harm, deliberately inflicting conditions of life calculated to bring about its physical destruction, imposing measures intended to prevent births, or forcibly transferring children to another group.[44] The relevant mens rea of the convention is the intent to destroy the group in whole or in part.[45]

There is strong evidence that at least one, but possibly more, of the requisite actions have been met to constitute genocide in Xinjiang, but scholars debate whether China has the requisite intent to destroy this ethnical and religious group.[46] Undoubtedly, China has imposed measures to prevent births among the Uyghurs and, while some accusations are contested by China, there is at least some evidence that it has caused serious bodily or mental harm against Uyghurs in its re-education camps. Nevertheless, some suggest that the requisite intent for genocide has not been met because genocide requires physical destruction, not just cultural destruction.[47] That assertion is up for debate as some scholars believe that the destruction in the form of physical extermination always fulfills the intent criterion, in which case the analysis would be complete and one could conclude that there is a genocide occurring in China.[48] However, even if a lack of physical destruction were to negate intent, the argument rings hollow in this case as it ignores the physical destruction that China is committing against the Uyghurs through the suppression of births and mass incarceration.

The suppression of births among the Uyghur people is the clearest indication that China is currently committing genocide. This amounts to physical destruction, which can be measured by the difference between the projected natural population of Uyghurs without government interference and the projected numbers given China’s population optimization plan.[49] Based on population projections by Chinese researchers, the estimated difference in Uyghur population from suppressed birth rates in southern Xinjiang alone ranges between 2.6 and 4.5 million by 2040.[50] According to the ICJ, one measurement of whether a country has the intent to destroy a group in part is to look at a numerical assessment. The Chinese government claims their reason for doing so is not to destroy the group, but instead to protect national security.[51] While preventing terrorism and protecting national security are generally important governmental interests, in this case, they are merely pretext for the genocide. Chinese officials have continuously called this a “human problem,” and admitted that their motivation for its population optimization is that the Uyghurs’ size and growth of population is a threat to national security.[52] This motivation alone lends to the conclusion that its intent is at least to diminish the numerical size of the population. Even the lower estimate of a 2.6 million people decrease out of 12 million people is a substantial part of the group, and China’s goal to decrease Uyghurs by number is evidence of their intent to the destroy the group in part. 

The mass incarceration of Uyghurs, and what happens within the camps, should at least indicate a very serious risk of genocide to States, which triggers a State’s duty to act. This duty includes identifying relevant risk factors and taking all possible remedial actions to prevent the atrocity. The United Nations has issued guidelines on risk factors for genocide.[53] Some of the relevant risk factors include records of serious violation of international human rights, signs of a widespread or systematic attacks against any civil population, and intergroup tensions or patterns of discrimination against protected groups.[54] There are reports of torture, food deprivation, solitary confinement, beatings, and even deaths within the camps, which are serious violations of international human rights. There are widespread or systematic attacks the Uyghurs, as well, as has been shown by the evidence of targeting their religious and cultural elites and incarcerating an exceedingly large group of them. Finally, there has been tension between the Uyghurs and the Han for decades, which became especially notable in 2009 during the riots that resulted, at least in part, from the discrimination that Uyghurs faced. Regardless of whether a State is ready to declare genocide, the other States have an obligation to act.

IV. Conclusion

The primary goal of The Convention should be the prevention of genocide, and then the punishment of genocide.  The entire world loses when a culture is lost or diminished, and that can never be recuperated fully through punishment of perpetrators. Nevertheless, when a government is not held accountable for intentionally creating that loss, an increased level of suffering continues, and it allows for history to repeat itself. Therefore, even States that refuse to concede that China is currently committing a genocide against the Uyghurs still have an obligation to act, as the fact that there is a serious risk of genocide should be undeniable.

The PRC is committing genocide against the Uyghurs. Countries and the United Nations should be actively working to prevent the continuance of this genocide and to punish the perpetrators, as they are legally bound to do.

[1] Press Release, ‘Never Again’ Means Constant Retelling of Holocaust Story, Secretary-General Stresses at Exhibition Opening, Citing Rising Antisemitism, Other Hatreds, U.N. Press Release SG/SM/19943 (Jan. 21, 2020). 

[2] Eli Soltes, The Holocaust: Never Again, Never Forget, Daily Sundial (Apr. 27, 2020), https://sundial.csun.edu/157487/opinions/the-holocaust-never-again-never-forget/

[3] Rachel Burns, Genocide: 70 Years On, Three Reasons Why the UN Convention is Still Failing, The Conversation (Dec. 18, 2018), https://theconversation.com/genocide-70-years-on-three-reasons-why-the-un-convention-is-still-failing-108706

[4] Joanne Smith Finley, Why Scholars and Activists Increasingly Fear a Uyghur Genocide in Xinjiang, J. of Genocide Rsch. (Nov. 19, 2020). 

[5] Id. at 348. 

[6] Devastating Blows: Religious Repression of Uighurs in Xinjiang (Brad Adams et al. eds. 2005).

[7] United Nations: Office on Genocide Prevention and the Responsibility to Protect, The Genocide Convention, https://www.un.org/en/genocideprevention/genocide-convention.shtml

[8]  Id.  

[9] Adrian Zenz & Erin Rosenberg, Beijing Plans a Slow Genocide in Xinjiang, Foreign Policy (June 8, 2021), https://foreignpolicy.com/2021/06/08/genocide-population-xinjiang-uyghurs/

[10] Convention on the Prevention and Punishment of the Crime of Genocide art. 2, Dec. 9 1948, S. Exec. Doc. O, 81-1 (1949) 78 U.N.T.S. 277

[11] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, 2015 I.C.J. 3 (Feb. 3).

[12] Convention on the Prevention and Punishment of the Crime of Genocide at Art. 1.

[13] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, 2007 I.C.J. 43 (Feb. 26). 

[14] Id.

[15]  Id. at 222.  

[16] Finley, supra note 4, at 349-350.

[17] Who are the Uyghurs and why is China Being Accused of Genocide?, BBC News (June 2021), https://www.bbc.com/news/world-asia-china-22278037.

[18] Id.

[19] Id.

[20] Austin Ramzy, China’s Oppression of Muslims in Xinjiang, Explained, N.Y. Times (Jan. 20, 2021), https://www.nytimes.com/2021/01/20/world/asia/china-genocide-uighurs-explained.html.

[21] Who are the Uyghurs and why is China Being Accused of Genocide, supra note 17.

[22] Zenz & Rosenberg, supra note 9.

[23] Id. 

[24] Id.

[25] Id

[26] Who are the Uyghurs and why is China Being Accused of Genocide, supra note 17. 

[27] Up to One Million Detained in China’s Mass “Re-education” Drive, Amnesty Int’l (2021), https://www.amnesty.org/en/latest/news/2018/09/china-up-to-one-million-detained/.

[28] Id.

[29] Id.

[30] Zenz & Rosenberg, supra note 9. 

[31] Id.

[32] Id

[33] Who are the Uyghurs and why is China Being Accused of Genocide, supra note 17. 

[34] Id.

[35] Michael Pompeo, Determination of the Secretary of State on Atrocities in Xinjiang, U.S. Department of State (Jan. 19, 2021), https://2017-2021.state.gov/determination-of-the-secretary-of-state-on-atrocities-in-xinjiang/index.html

[36] Zenz & Rosenberg, supra note 9. 

[37] Finley, supra note 4, at 366. 

[38] Ingrid Burke, Explainer: What are the International Community’s Responsibilities when a Country Commits Genocide? Jurist (Feb. 17, 2021), https://www.jurist.org/features/2021/02/17/explainer-what-are-the-international-communitys-responsibilities-when-a-country-commits-genocide-and-other-atrocities/.

[39] Id.

[40] Id.

[41] Id.

[42] Id.

[43] Mens Rea and Actus Reus, ICLR, https://www.iclr.co.uk/knowledge/glossary/mens-rea-and-actus-reus/

[44] Convention on the Prevention and Punishment of the Crime of Genocide at art. 2.

[45] Id.

[46] Zenz & Rosenberg, supra note 9. 

[47] Adrian Zenz, ‘End the Dominance of the Uyghur Ethnic Group’: An Analysis of Beijing’s Population Optimization Strategy in Southern Xinjiang, 292,Central Asian Survey (Aug. 24, 2021). 

[48] Id.

[49] Id.

[50] Id. at 303. 

[51] Zenz & Rosenberg, supra note 9. 

[52] Zenz & Rosenberg, supra note 9. 

[53] Framework of Analysis for Atrocity Crimes: A Tool for Prevention, U.N. (2014).

[54] Id. 

Big 12 Realignment: Accusations, Buyouts, and a Whole Lot of Money

Photo by Ben Hershey on Unsplash

Stephen Stafford, Associate Member, University of Cincinnati Law Review

I. Introduction

On July 27, 2021, the University of Oklahoma (OU) and the University of Texas (UT) submitted a joint letter that informed the Big 12 Conference (Big 12) that they were planning to leave for the Southeastern Conference (SEC) and notified the SEC that they were seeking an invitation for membership.[1] The SEC extended an invitation to both programs, and the board of each school unanimously voted to join the conference.[2] As a result of this shift in the college football conference landscape, three schools, including the University of Cincinnati (UC), are leaving the American Athletic Conference (AAC) for the Big 12.[3] These powerhouse college football programs switching conferences sent shock waves through the college football landscape, but this kind of shift is nothing new. At stake amidst this conference shuffle is the potential for lawsuits, buyouts, and television deals worth millions of dollars.

Conferences are the sole negotiators of media rights deals and, as a result, have substantial control in the market.[4] Conference realignment is a side effect of the conferences’ desire to increase revenue and negotiate unprecedented media contracts.[5] For reference, the Big 12 distributed $345 million to its members just this year.[6] Additionally, the AAC, current home of UC, signed a $1 billion television deal with ESPN.[7] Thus, preeminent athletic programs switching conferences affects far more than the product on the field; it affects a multi-billion dollar industry. Broadcasting giants, like ESPN, are intertwined in potential lawsuits, as well. For example, the Big 12 commissioner, Bill Bowlsby, already sent a cease-and-desist letter to ESPN demanding that the television network end all actions that could harm the conference.[8] Bowlsby accused ESPN of tortious interference with the conference’s contract with its member schools.[9]

First, this article will analyze previous conference realignment lawsuits and how they relate to the current situation. Then, the article will predict outcomes of the potential lawsuits and litigation. Lastly, college football programs should reconsider how conferences control television deals. To avoid constant conference realignment issues, schools should band together under a single representative entity to negotiate television deals.

II. Background

While the current conference realignment surrounding the SEC, Big 12, and AAC captivates the college football world’s attention, this kind of tectonic shift in collegiate sports powers has some precedent. In the late 2000’s, three college football programs in the Big East Conference announced their departure for the Atlantic Coastal Conference (ACC).[10] The loss of the three programs left the Big East in a disadvantageous position and resulted in multiple lawsuits.[11] The University of Connecticut, which remained in the Big East Conference at the time, filed suit against the three departing schools for breach of contract and breach of fiduciary duty.[12] The claims were eventually settled, and the departing programs had to pay $5 million and schedule games against Big East opponents for the next four years.[13] Similarly, in 2010, Fresno State and Nevada left the Western Athletic Conference (WAC) for the Mountain West Conference and the WAC filed suit seeking declaratory and injunctive relief.[14] The WAC alleged that it would suffer irreparable harm based on the financial injury from media rights, scheduling issues, harm to national stature, and the ability to find new members.[15] The suit was settled and each school had to pay the WAC $900,000 and agree to play in the conference for two more years.[16]

From a different perspective, the University of Maryland filed suit against their own conference, the ACC, when the school left for the Big Ten Conference in 2012.[17] The University of Maryland claimed that the withdrawal penalty was invalid based on antitrust laws.[18] The ACC argued that the withdrawal payment was necessary to preserve the integrity of the league and essential to minimize disruption.[19] The Maryland Court held that the provision is subject to antitrust laws because the withdrawal payment is economic protectionism and is not entitled to a procompetitive presumption.[20] However, the court found that the University of Maryland failed to allege market harm and the claim failed.[21]

These cases supply a potential framework of avenues and outcomes for the current conference realignment situation concerning the Big 12 and AAC. On one hand, individual members could file suit against the departing members in either the Big 12 or AAC. On the other hand, the departing schools could file suit against their own conferences, like the University of Maryland. Despite any looming litigation, any lawsuit would likely end in a hefty settlement.

III. Discussion

First, Commissioner Bowlsby likely does not have an effective claim of tortious interference against ESPN. For a tortious interference claim, the plaintiff must establish that (1) there was a contract; (2) the interference was willful and intentional; (3) the intentional act was the proximate cause of the plaintiff’s damage; and (4) there were actual damages or losses.[22] Right now, Bowlsby likely will not be able to state a sufficient claim for tortious interference because he will have trouble proving the last three elements. Bowlsby’s argument for actual damages is weak because the Big 12 was able to mitigate possible damages by adding four new teams to replace OU and UT. Further, OU and UT plan to fulfill the current television deal and stay in the conference through the 2024-25 season.[23] Therefore, if any actual damages were to result from the conference shift, they would not be realized until a new television deal was negotiated. The Big 12 could lose significant bargaining power at the negotiation table, but any actual damage amounts connected to the change are currently unknown. Bowlsby would have a better argument if the Big 12 had been unable to find new members and instead had been forced to dissolve. Additionally, Bowlsby would have difficulty proving that ESPN’s actions were willful, intentional, or the proximate cause of damages.  OU and UT, on their own, formally notified the SEC about requesting an invitation and ESPN has a current television deal with the Big 12. Therefore, ESPN has a current interest in the survival of the Big 12, at least until the completion of their contract. Any alleged interference by ESPN is speculation by Bowlsby.

According to the Big 12 Conference’s bylaws, a withdrawing member must pay a buyout fee that is equal to the sum of the amount of distributions that otherwise would be paid to the member during the final two years of its membership.[24] Additionally, the AAC currently requires a $10 million buyout fee for departing members.[25] Therefore, regardless of a lawsuit, OU, UT, and UC are going to have to pay a buyout fee to their respective conferences. According to the Big 12, in the event that they decide to leave early, the schools will be required to pay the amount of actual losses and damages.[26] The effect of leaving early would be a violation of the Grant of Rights Agreement referenced in the bylaws, which gives the right to the conference’s television partners to televise the departing team’s games until the end of the contract.[27] OU and UT would have to negotiate a settlement amount or pay hefty damages to the conference for causing the conference to be unable to fully realize the revenue from their television contract. Similar to the WAC and Big East cases, member schools or the conference itself could file suit against OU and UT. Premature departure could result in a negotiation for a higher buyout fee and an agreement to schedule Big 12 opponents for a specified amount of time. To further expedite this impending issue, the AAC stated that it is willing to negotiate a higher exit fee to allow the three departing teams to leave for the Big 12 earlier than expected.[28] If any schools decide to leave earlier than agreed upon, this will increase the likelihood of lawsuits and higher buyout fees.

To avoid litigation and constant change in college football, schools should consider moving away from the traditional conference format with television deals. College football television broadcasting began when individual schools televised their own events before banding together under the College Football Association and ultimately having conferences negotiate their own television deals.[29] A return to a single organization or the individual university as the principal negotiator in television contracts would prevent conference realignment issues. In the current situation, programs change conferences and leave the teams in their previous conference at a disadvantage. Individual universities negotiating their media deals would make each school independent and immune to the consequences of a conference opponent making a unilateral move to another conference. However, this solution is troublesome because smaller programs depend on revenue sharing within their conference. Less successful programs may not be able to keep up and any parody left in college football would be completely lost. In contrast, college football should return to a single entity, like the College Football Association, to negotiate media deals. The absence of conferences having their own media deals would protect smaller programs from the disadvantages of conference realignment. This deal would have unprecedented value and would have to be lucrative enough to prevent teams from deciding to stay independent or in a conference. Under this solution, conferences could remain for competitive and on the field reasons. However, conferences would not have their own media deals.

IV. Conclusion

Departing schools usually must pay a buyout fee to their conferences, but the amount depends on when and how they leave the conference. There are many potential lawsuits that could be filed for damages because of conference realignment. Broadcasting giants, like ESPN, can be included and accused of tortious interference. When the dust settles, college athletics is all about money and how schools or conferences can get their piece of the pie. The grass is always greener in a new conference with a more lucrative television deal. To prevent teams from changing conferences for a better deal, universities and their sports programs should negotiate television deals under one entity.

[1] Heather Dinich, Oklahoma Sooners, Texas Longhorns Formally Notify SEC of Membership Request for 2025, ESPN (July 27, 2021), https://www.espn.com/college-football/story/_/id/31897367/oklahoma-sooners-texas-longhorns-formally-notify-sec-membership-request.

[2] Heather Dinich, Texas Longhorns, Oklahoma Sooners Unanimously Accept Invitation to SEC, ESPN (July 30, 2021), https://www.espn.com/college-football/story/_/id/31920686/texas-longhorns-oklahoma-sooners-unanimously-accept-invitation-sec.

[3] Heather Dinich, American Athletic Conference Willing to Let Departing Teams Go Before 2024 for Higher Exit Fee, ABC News (Sept. 10, 2021, 9:09 PM), https://abcnews.go.com/Sports/american-athletic-conference-departing-teams-2024-higher-exit/story?id=79951694#:~:text=AAC%20bylaws%20require%20schools%20to,a%20%2410%20million%20buyout%20fee.

[4] Christian Dennie, Conference Realignment: From Backyard Brawls to Cash Cows, 12 Miss. Sports L. Rev. 249, 253 (2012).

[5] Id.

[6] Associated Press, Big 12 Commissioner Bob Bowlsby Warns of 50% Hit to TV Contract Value After Texas, Oklahoma Leave for SEC, ESPN (Aug. 2, 2021), https://www.espn.com/college-football/story/_/id/31945492/big-12-commissioner-bob-bowlsby-warns-50-hit-tv-contract-value-texas-oklahoma-leave-sec.

[7] Kyle Brown, Report: American Athletic Conference, ESPN Agree to Billion Dollar Media Rights Deal, Cincinnati Enquirer (Mar. 19, 2019), https://www.cincinnati.com/story/sports/2019/03/19/espn-american-athletic-conference-deal-1-billion-over-12-years/3215436002/.

[8] Wilton Jackson, Big 12 Accuses ESPN of Destabilizing Conference, Issues Cease and Desist, Sports Illustrated (July 28, 2021), https://www.si.com/college/2021/07/29/big-12-cease-desist-espn-realignment.

[9] Id.

[10] Dennie, supra note 4, at 258.

[11] Id.

[12] Id.

[13] Id.

[14] Id. at 259.

[15] Id. at 259-260.

[16] Id. at 260.

[17] Bd. of Regents v. Atlantic Coastal Conference, No. CAL13-02189 2013 Md. Cir. Ct. LEXIS 4, at *1-2 (Md. Cir. Ct. June 27, 2013).

[18] Id. at 1.

[19] Id. at 5.

[20] Id. at 14-15.

[21] Id. 43-44.

[22] 3 Texas Torts and Remedies § 46.02.

[23] Dinich, supra note 1.


[25] Dinich, supra note 3.


[27] Id.

[28] Dinich, supra note 3.

[29] Dennie, supra note 4, at 250.

Exclusive Exclusionary Rule: Does an Unsigned Warrant Qualify Under the Good-faith Exception?

Photo by mdfriendofhillary on Creative Commons

Sara Leonhartsberger, Associate Member, University of Cincinnati Law Review

I. Introduction

The Fourth Amendment to the United States Constitution protects against law enforcement’s unreasonable searches and seizures when investigating members of the public.[1] In furtherance of this constitutional protection, the Supreme Court of the United States created the exclusionary rule, which states that evidence collected in violation of the Fourth Amendment may be excluded from use in a prosecutor’s case at trial.[2] However, the Supreme Court further created the good-faith exception to the exclusionary rule, holding that police officers acting with objective reasonability in their belief of acting within the Fourth Amendment should not trigger the exclusionary rule.[3]

State v. Harrison raises the question of whether the good-faith exception to the exclusionary rule should extend to police officers executing arrests with unsigned warrants.[4] Part II of this article will provide a background, discussing State v. Harrison’s procedural posture, United States Supreme Court precedent, and Supreme Court of Ohio precedent. Part III of this article will provide an analysis of State v. Harrison, a prediction of the Supreme Court of Ohio’s decision, and a concern of the good-faith exception consuming the exclusionary rule. Part IV will conclude with potential effects on the Ohio judicial system, depending how the Supreme Court of Ohio rules.

II. Background

A. State v. Harrison’s Procedural Posture

In State v. Harrison, an Ohio trial court granted a defendant’s motion to suppress evidence obtained in search of defendant’s vehicle when that search occurred under an unsigned arrest warrant.[5] Because that evidence was material to prove the charges of drug possession, drug trafficking, and illegal possession of a firearm, the trial court also granted the defendant’s motion to dismiss.[6] After the State of Ohio appealed, the Third Appellate District of Ohio held that even if the arrest warrant was deficient under Ohio Crim.R. 4(a)(1), the good-faith exception applied, rendering the trial court’s granting of defendant’s motions improper.[7] The Supreme Court of Ohio accepted discretionary appeal on November 24, 2020[8] and heard oral arguments on June 29, 2021,[9] but the Court has not released its opinion on the matter.

B. United States Supreme Court Precedent

In United States v. Leon, the Supreme Court of the United States created the good-faith exception to the exclusionary rule, holding that police officers that obtain evidence “in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion.”[10] Although the district court and the Ninth Circuit Court of Appeals found insufficient probable cause for the search warrant to have been granted by the magistrate,[11] the Supreme Court held that an officer’s good-faith reliance on such a warrant superseded the exclusionary rule.[12] The Court reasoned that the exclusionary rule’s purpose—deterrence of law enforcement’s reckless disregard of the Fourth Amendment—would not be served in excluding evidence obtained by an officer acting in the scope of a believed-valid warrant.[13] However, the Court stipulated four situations that would still require the exclusionary rule’s application: (1) if the judge or magistrate was misled by the officer with information the officer knew to be false or recklessly disregarded seeking the truth; (2) if the magistrate wholly abandoned his judicial role to the extent no reasonable officer would trust the warrant’s validity; (3) if the affidavit premising the warrant was “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable;” or (4) if the warrant was so facially deficient of necessary facts that no officer would reasonably believe it to be valid.[14]

In Herring v. United States, the Supreme Court extended the good-faith exception to officers that arrest defendants with invalid warrants based on clerical errors.[15] Although officers in this case arrested the defendant with a rescinded warrant, the Court held the isolated negligence of the adjacent county to remove the warrant from their database did not constitute a Fourth Amendment violation worthy of exclusionary rule sanction.[16] The Court reiterated Leon’s directive that “the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.”[17] An isolated incident of clerical error did not rise to such a level.[18]

In Davis v. United States, the Supreme Court further extended the good-faith exception to officers who acted within binding appellate precedent at the time of arrest that was later ruled unconstitutional.[19] Although the officers’ method of searching the defendant’s vehicle without a warrant after he was arrested and removed from the vehicle was later deemed unconstitutional,[20] Court reasoned that the officers were acting with good-faith at the time of arrest, as the Eleventh Circuit’s precedent at the time allowed such searches.[21] Penalizing officers for acting in accordance with the current law, the Court reasoned, would not serve the deterrence rationale of the exclusionary rule.[22]

C. Ohio Precedent

In State v. Wilmoth, the Supreme Court of Ohio adopted Leon’s good-faith exception, holding that a technically defective warrant nonetheless did not trigger the exclusionary rule when the officers acted with objectively reasonable reliance.[23] The trial court had granted the defendants’ motions to suppress because the warrant lacked the required written affidavits under Fed.R.Crim.P. 41(C), and the oral affidavits of the officers had not been sworn under oath as required by the United States Constitution and Ohio Constitution.[24] Pursuant to Leon’s reasoning, however, the Court found that the officers had acted with objectively reasonable reliance, in that (1) failure to provide a written affidavit did not rise to a constitutional violation; (2) no bad faith was evidenced, and the urgency of the circumstances had to be weighed; (3) there was sufficient evidence presented to the magistrate for him to find probable cause; and (4) there was “no fundamental violation and the oral affidavit complied with the ‘spirit’ of Fed.R.Crim.P. 41(C).”[25]

In State v. Hoffman, the Ohio Supreme Court held that warrants issued without determination of probable cause were nonetheless valid because the officers reasonably relied on a procedure validated by the Sixth District Court of Appeals.[26] Although the officer had submitted warrants so lacking in information that the deputy clerk could not have determined probable cause,[27] the Court reasoned that the officers had relied on the Sixth District’s precedent established in State v. Overton that permitted a similar warrant to be implemented.[28] Much like Davis, although the Sixth District explicitly overruled Overton on Hoffman’s appeal due to its unconstitutionality, the Court held that officers that had followed Overton’s precedent during Hoffman’s arrest had acted in good faith, precluding the exclusionary rule.[29]

III. Discussion

A. State v. Harrison

In State v. Harrison, the Ohio Third Appellate District held that evidence obtained with an unsigned warrant, although invalid under Crim.R. 4(a)(1), nonetheless did not qualify for exclusion when officers acted in good-faith reliance.[30] The trial court had granted defendant’s motion to suppress and motion to dismiss after evidence[31] produced from a search of defendant’s vehicle occurred with an unsigned warrant.[32] While the complaint attached to the warrant contained the magistrate’s signature to signify probable cause, the warrant itself did not contain the deputy clerk’s signature.[33] Testimony at trial from both the officer and Municipal Court clerk explained that the clerk’s routine practice involved signing warrants after arrest.[34] The officers and clerk had developed the system after potential suspects viewed the warrants on their online filing system and evaded arrest.[35]

The Third Appellate District first examined whether an unsigned warrant violated Crim.R. 4(a)(1).[36] The court reasoned that the rule’s language did not expressly provide warrants had to be signed in order to be valid.[37] Furthermore, it considered the State’s argument that the signed complaint and affidavit were attached to the warrant, and the “package” therefore made the warrant valid.[38] While the court found this reasoning logical, it also found the obverse reasoning—that the warrant itself must be signed and therefore valid within its own four corners—to be equally logical.[39]

However, the court ultimately held that, even if it considered the unsigned warrant to be invalid under Crim.R. 4(a)(1), the officer had exercised objectively reasonable reliance in executing the warrant that precluded the exclusionary rule.[40] Citing Hoffman’s inclusion of warrants invalidated by non-probable cause, the court reasoned that the officer in Harrison had executed a warrant with a judge-initialed complaint attached, indicating probable cause.[41] Furthermore, the court cited both Leon and Wilmoth to find that the exclusionary rule’s rationale—deterrence of reckless police disregard of the Fourth Amendment—would not apply to the Harrison officer’s conduct.[42] However, the court criticized the current system, calling for a separate protocol to be developed that would avoid public exposure of the warrants yet prevent service of unsigned warrants at the time of arrest.[43]

B. Predicted Ohio Supreme Court Decision

Based on the United States Supreme Court and Supreme Court of Ohio’s good-faith exception jurisprudence, the unsigned warrant in State v. Harrison will likely be held a valid extension of the good-faith exception to the exclusionary rule.[44] Under the Leon exclusionary rule factors, the officer in Harrison did not mislead the magistrate, the magistrate did not act outside their judicial role, the affidavit was not lacking in indicia, and the warrant itself was not lacking necessary facts (unless one considers the signature to be a necessary fact).[45] Like Wilmoth, while the unsigned warrant may be considered technically deficient, the officer had objective reason to believe the warrant was valid under the judge’s complaint signature.[46] However, Herring provides one consideration that a potential dissent to the Ohio Supreme Court’s decision in State v. Harrison might advocate.[47] Herring provided that isolated negligence would be insufficient to trigger the deterrence rationale of the exclusionary rule, yet systemic negligence might.[48] While the municipal court provided rationale for their practice of unsigned warrants, one could contend that service of unsigned warrants in a field that sanctions practitioners for unsigned documents would rise to systemic negligence. Furthermore, life and liberty interests are often at stake when search and arrest warrants are issued; should those interests be so easily set aside for Constitutional violations that are deemed “reasonable”?

C. Exception Swallowing the Rule Concerns

Observing the vast latitude afforded to law enforcement in executing search warrants through the good-faith exception, a concern emerges that the good-faith exception will preclude the exclusionary rule entirely. While the balance between enforcing Fourth Amendment adherence and including all pertinent evidence to ensure justice must be weighed, the expansive good-faith exception could encourage law enforcement’s negligent behavior. Furthermore, while violations of other Amendments rise to the level of remand or changed law, Fourth Amendment violations are broadly permitted under the good-faith exception. Should the same Constitution that accords safeguards for criminal defendants in the Sixth Amendment be reasonably read to permit broad violations against these same defendants in the Fourth Amendment?

IV. Conclusion

Dependent on the Ohio Supreme Court’s decision in State v. Harrison, the Ohio judicial system will either extend the good-faith exception to yet another area or will deter law enforcement from search and seizure with unsigned warrants.[49] While extension would be supported by the United States Supreme Court and Supreme Court of Ohio’s jurisprudence, a decision in Harrison’s favor would accord with the rationale that law enforcement cannot systematically neglect adherence to the Fourth Amendment.[50] In other areas of law,[51] unsigned documentation can lead to sanctions or untimeliness; would it not accord with both legal and lay reasoning that a continuous constitutional violation would rise to equal ramifications?

[1] U.S. Const. amend. IV. 

[2] Weeks v. United States, 232 U.S. 383, 398 (1914).

[3] United States v. Leon, 468 U.S. 897, 922 (1984).

[4] State v. Harrison, 2020-Ohio-3920 (3rd Dist. Logan, No. 8-19-48) ¶ 12.

[5] Id. at ¶¶ 1, 5.

[6] Id. at ¶ 1.

[7] Id. at ¶ 34.

[8] State v. Harrison, 2020-Ohio-5332, 2020 Ohio LEXIS 2569 (Nov. 24, 2020).

[9] Supreme Court of Ohio – Case No. 2020-1117 State v. Harrison, The Ohio Channel, https://ohiochannel.org/video/supreme-court-of-ohio-case-no-2020-1117-state-v-harrison (last visited Oct. 8, 2021), [https://perma.cc/99ET-JEJD].

[10] United States v. Leon, 468 U.S. 897, 922 (1984).

[11] Id. at 903-04.

[12] Id. at 922.

[13] Id. at 920-21.

[14] Id. at 923.

[15] Herring v. United States, 555 U.S. 135, 137 (2009).

[16] Id.

[17] Id. at 144.

[18] Id.

[19] Davis v. United States, 564 U.S. 229, 232 (2011).

[20] Id. at 234-235.

[21] Id. at 240.

[22] Id. at 241.

[23] State v. Wilmoth, 22 Ohio St. 3d 251, 252 (1986).  

[24] Id. at 254.

[25] Id. at 264.

[26] 2014-Ohio-4795, ¶ 1.

[27] Id. at ¶ 6.

[28] Id.; State v. Overton, No. L-99-1317, 2000 Ohio App. LEXIS 3919, at *7 (Ohio Ct. App. Sep. 1, 2000) (holding that a similar level of detail in a warrant was sufficient to establish probable cause).

[29] Id. at ¶ 42.

[30] State v. Harrison, 2020-Ohio-3920 (3rd Dist. Logan, No. 8-19-48) ¶ 34.

[31] A loaded and stolen 9mm pistol, $6,225 in cash, and 7.39 grams of cocaine that were produced as evidence for illegal possession of a firearm, illegal drug possession, and illegal drug trafficking. Id. at ¶ 5-6.

[32] Id. at ¶ 7.

[33] Id. at ¶ 8.

[34] Id.

[35] Id.

[36] Id. at ¶ 24.

[37] Id.

[38] Id. at ¶ 25.

[39] Id.

[40] Id. at ¶ 33.

[41] Id. at ¶ 32.

[42] Id. at ¶ 30-31.

[43] Id. at ¶ 26.

[44] United States v. Leon, 468 U.S. 897, 922 (1984); Herring v. United States, 555 U.S. 135, 137 (2009); Davis v. United States, 564 U.S. 229, 232 (2011); State v. Wilmoth, 22 Ohio St. 3d 251, 252 (1986); State v. Hoffman, 2014-Ohio-4795, ¶ 1.

[45] Leon, 468 U.S. at 923.

[46] Wilmoth, 22 Ohio St. 3d at 252.

[47] Herring, 555 U.S. at 144.

[48] Id.

[49] Harrison, 2020-Ohio-3920 at ¶ 33.

[50] United States v. Leon, 468 U.S. 897, 922 (1984); Herring v. United States, 555 U.S. 135, 137 (2009); Davis v. United States, 564 U.S. 229, 232 (2011); State v. Wilmoth, 22 Ohio St. 3d 251, 252 (1986); State v. Hoffman, 2014-Ohio-4795, ¶ 1. But see Herring v. United States, 555 U.S. 135, 144 (2009).

[51] See, e.g., Fed.R.Civ.P. 11(a) (unsigned documents stricken from the court record).

Can Governors Use Emergency Powers to Prevent Government Response to an Emergency?: A Look at Executive Preemption of Local Law

Photo by Jesse Collins on Unsplash

Andrew Lance, Associate Member, University of Cincinnati Law Review

I. Introduction

Throughout the COVID-19 pandemic, governors have exercised significant authority through their state’s emergency statute. These statutes have questionable effectiveness because government leaders disagree on the severity of the emergency and, in some cases, whether one exists at all, leaving the different levels of government in conflict over the appropriate degree of response.

There is legal tension between (a) the extent to which the governor can use the emergency statute to fully control the emergency response through preempting local governments’ rules, and (b) local governments’ authority to respond with more restrictive measures to adequately provide for the safety of their communities as they see fit, thus creating confusion and uncertainty. This article will begin by briefly discussing the source of local government power and state emergency statutes, followed by a look at Georgia and Texas—two states that are at the forefront of this conflict. Finally, the article raises issues with favoring the Executive in this situation and offers a possible solution in the form of the anti-commandeering doctrine.

II. Background

Counties, municipalities, and other forms of local government are political subdivisions that directly derive their powers and authority from the state.[1] States grant broad autonomy often through the legal theory of Home Rule.[2] States under the Tenth Amendment have any power not reserved to the federal government.[3] The anti-commandeering principle is the application of the Tenth Amendment which prevents the federal government from conscripting state executive officers[4] and telling state legislatures how to act.[5] However, even though states are the source of local governments’ existence and generally exert control over policies simply by being higher in the government hierarchy,[6] local governments are granted certain powers and autonomy that can only be altered through the procedural rules of the state, typically the legislature.[7]

A. State Emergency Statutes

Similar to the federal National Emergencies Act,[8] states have emergency statutes that grant the governor power to coordinate an effective and efficient response to emergencies like natural disasters and public health crises.[9] The statutes simultaneously extend powers to the governor and might function as enabling statutes, confirming local governments’ emergency powers to create programs, organizations, ordinances, and otherwise assist in addressing the emergency in their jurisdictions.[10] Typically, after a governor declares a state of emergency, the governor can then take immediate action by issuing an executive order that has the force of law during the emergency declaration.[11]

B. Georgia Emergency Statute and Executive Orders

Georgia’s emergency statute grants emergency powers to both the governor and local governments.[12] Importantly, local rules cannot be inconsistent with the governor’s directives.[13] The legislative intent was to provide a mechanism for the effective confrontation of an emergency.[14] In doing so, the legislature granted local governments powers to promulgate measures that address the emergency and supplement the governor’s statewide plans.[15]

In 2021, Governor Kemp issued an executive order (the “August 19, 2021, Executive Order”) requiring organizations to implement measures mitigating COVID-19, including distinctively, business’s voluntary adherence to local COVID ordinances.[16] The August 19, 2021, Executive Order provides two different paraphrases of local government power as defined by the statute.[17] The definition of “inconsistent” in the order also considers any ordinance that is “more or less permissive” to be inconsistent with the Governor’s plan.[18] This definition is not supported by any language in the Georgia code,[19] is in direct conflict with the legislative intent that these sections to be construed liberally to effectuate their purpose,[20] and it possibly nullifies the provision granting lawmaking power to the local governments during emergencies.[21]

C. State v. El Paso County

Governor Kemp’s lawsuit against Atlanta regarding an earlier executive order may have resolved this question, but Governor Kemp dropped the suit.[22] Few state courts have addressed this executive order preemption even beyond the pandemic context; therefore, the Texas Eighth District Court of Appeal’s opinion in State v. El Paso County is instructive on this issue.[23]

The majority opinion held that because the governor is a “tie breaker,” the governor’s rules have the force of law over a political subdivision.[24] The court also rejected the argument that a local disaster permits local control, because the COVID-19 disaster was statewide.[25]

The dissent argued that the statute instructs the governor to make executive orders that have the force of law to address disasters, but it does not give authority to directly override local officials or suspend their power.[26] The dissent viewed Governor Abbott as using the statute in the opposite way—sweeping away the bureaucratic obstacles to institute his desired plan.[27] The Texas emergency statute does not explicitly state that executive orders preempt local contrary laws,[28] nor does the Texas Constitution permit executive orders to trump local laws.[29]

The majority in El Paso County follows a recent Texas Supreme Court case that said that a governor’s orders do not necessarily have to be motivated by a desire to alleviate the pandemic.[30] The Texas Supreme Court reasoned that the emergency statute does not suggest a limit on the governor’s authority to consider other policy goals such as economic recovery.[31]

III. Discussion

The majority opinions from Texas create several problems if applied broadly to other states. The blanketed statement that the governor has the tie breaker; therefore, their rules have the force of law, reduces the checks and balances of the various parts of government into broad preemption authorized by the emergency statute.[32] Further, the idea that the governor’s orders do not need to be motivated by alleviating the pandemic[33] dangerously validates an imbalance of power toward the executive by extending powers beyond the context of the emergency. Whether an order is incidental to the public health emergency or if the public health emergency is a cover for a policy goal, is a political question a court possibly will refuse to address.

The August 19, 2021, Executive Order entitled “Protecting Economic Recovery During the State of Emergency for Continued COVID-19 Economic Recovery”[34] crosses this line of overbroad power. The order followed the expiration of the pandemic state of emergency in July 2021,[35] and it appears to be an economic order that references the ongoing pandemic but limits the public health measures. The August 19, 2021, Executive Order mentions little in the way of substantive public health policy and reduces local government’s lawmaking authority to optional adherence—this practically prevents local authorities from acting if they know they cannot enforce their laws. A governor cannot adopt a minimalist substantive policy to preempt local governments from enacting more restrictive policies because it effectively removes the granted power by the legislature to act, bordering on possible impermissible lawmaking activity.[36]

If the public health concern is not bad enough to justify its own emergency, then the circumstances do not justify the governor continuing to exercise emergency powers. Further this means the local governments’ possible implementation of public health measures are part of the basis for the August 19, 2021, Executive Order. Ultimately, the justifications found in the Texas opinions when considered in light of the Georgia executive order would permit a governor to consider any situation that might affect the economy and declare a state of emergency to preempt local governments from taking those actions. If a governor can limit these measures during what is admittedly still an emergency—the time when local action would be the most permissible—how much action can the governor take during peacetime?

Governors need the power to address emergencies but must be prevented from unduly controlling the activity of local governments. In Murphy v. NCAA, the anti-commandeering doctrine means that “just as Congress lacks the power to order a state legislature not to enact a law authorizing sports gambling, it may not order a state legislature to refrain from enacting a law licensing sports gambling.”[37] Though state legislatures clearly have the power to control local governments in such a way, governors do not have such unilateral lawmaking power. Just as Congress could not prohibit states from legalizing sports gambling, governors should not be able to unilaterally preempt local laws. Especially when emergency statutes like Georgia’s explicitly grant powers to local governments and already protect the governor’s interest by limiting inconsistent local rules. This would help limit a governor’s actions to those steps reasonably necessary for emergency response, the source of those powers to begin with.

IV. Conclusion

The court in El Paso County likened the governor/local government relationship during the COVID-19 pandemic to that of hurricane evacuation preparedness; it makes no sense to have one authority saying to go one way and another saying to go another.[38] To further their metaphor, what if a governor declared a hurricane emergency, then used their granted powers to limit the local response but did not issue any binding directive other than citizens can make their own decisions? Emergency statutes should grant governors the power to address the emergency, but they should be heavily scrutinized when governors use them to do the opposite—take no substantive steps using state resources to mitigate the emergency while telling local governments that their measures may be unenforceable. The law is unclear on the contours of a state governor’s true authority, but if a public health response from local governments impacts the economy, the policy should be debated and investigated by a legislature rather than subject to the view of the governor. Whether or not a legislature utilizes a solution like the anti-commandeering doctrine, they will have to decide whether they value the economy and their own partisan political stances over the government’s ability to effectively address an emergency like COVID-19.

[1] See Hunter v. Pittsburgh, 207 U.S. 161, 178-79 (1907).

[2] See generally Paul A. Diller, Reorienting Home Rule: Part 2–Remedying the Urban Disadvantage Through Federalism and Localism, 77 LA. L. Rev. 1045, 1049-51 (2017); David J. Barron, Reclaiming Home Rule, 116 Harvard L. Rev. 2255, 2278 (2003).

[3] U.S. Const. amend. X.

[4] Printz v. United States, 521 U.S. 898, 935 (1997).

[5] Murphy v. NCAA, 138 S. Ct. 1461, 1476 (2018).

[6] See Diller, supra note 2, at 1047.

[7] Id. at 1050.

[8] 50 USC §§ 1601 et seq (2021).

[9] See e.g., Ohio Rev. Code Ann. § 4935.03 (2021).

[10] See e.g., Ohio Rev. Code Ann. § 5502.26 (2021).

[11] See Kelley J. Deere, Governing by Emergency Executive Order During the COVID-19 Pandemic: Preliminary Observations Concerning the Proper Balance Between Executive Orders and More Formal Rule Making, 86 Mo. L. Rev. 5-8 (forthcoming 2021).

[12] O.C.G.A. § 38-3-28 (2021).

[13] Id.

[14] Id.

[15] Id.

[16] Georgia Governor, Executive Order, 2021 August 19B, Digital Library of Georgia, 4 (2021) http://dlg.galileo.usg.edu/do:dlg_ggpd_i-ga-bg600-b-ps1-be9-b2021-s8-h19b.

[17] Id. at 2, 5.

[18] Id. at 2.

[19] See O.C.G.A. § 38-3.

[20] Id. at § 38-3-6.

[21] See Id. at § 38-3-51.

[22] Vanessa Romo, Governor Drops Lawsuit Against Atlanta Mayor Over Masks, But Fight May Not Be Over, NPR (Aug. 13, 2020, 7:14 PM) https://www.npr.org/sections/coronavirus-live-updates/2020/08/13/902347003/governor-drops-lawsuit-against-atlanta-mayor-over-masks-but-fight-may-not-be-ove.

[23] State v. El Paso Cty., 618 S.W.3d 812 (Tex. App. 2020).

[24] Id. at 821-22.

[25] Id. at 822-23.

[26] Id. at 828.

[27] Id.

[28] Id. at 832-33.

[29] Id. at 833.

[30] Abbott v. Anti-Defamation League Austin, Sw., & Texoma Regions, 610 S.W.3d 911, 918 (Tex. 2020).

[31] Id; See also Tex. Gov’t Code § 418.016 (2021).

[32] El Paso Cty,. 618 S.W.3d at 821-22.

[33] Abbott, 610 S.W.3d at 918.

[34] Georgia Governor, supra note 16.

[35] Jeff Amy, Kemp to End Georgia Health Emergency but Keep Some Powers, AP News (June 22, 2021) https://apnews.com/article/ga-state-wire-georgia-coronavirus-pandemic-health-government-and-politics-a464a2622c7a7143760ad859c17c72a1.

[36] Though unconfirmed by Georgia courts, an argument supported during the pandemic by local law professors. See Anthony Michael Kreis (AnthonyMKreis), Twitter (July 15, 2020, 8:43 PM) (thread), https://twitter.com/anthonymkreis/status/1283562967544598533?s=21,

[37] Murphy v. NCAA, 138 S. Ct. 1461, 1481-82 (2018).

[38] State v. El Paso Cty., 618 S.W.3d 812, 822 (Tex. App. 2020).