Tuesday, October 27, 2020

Rent Reckoning: Coronavirus and Eviction Moratoriums

Rent Reckoning: Coronavirus and Eviction Moratoriums


    This year has been a year like no other. As a pandemic has ripped across the world, an important issue that people are facing is whether or not they can afford their essential monthly expenses. With people losing their jobs and then having to deal with significant backups trying to get unemployment benefits, it has been an immense struggle for millions of Americans to make ends meet. Early in the pandemic, the federal government ordered a temporary moratorium on evictions; however, that moratorium, written into the CARES Act, expired in July. In response to that expiration, many states extended their own moratoriums on evictions. In addition the the response from various states, the Centers for Disease Control and Prevention issued an agency order that temporarily halted residential evictions starting September 4, 2020 through December 31, 2020 [1]. This order has become a source of contention throughout the United States.

    Currently, there is a lawsuit that has been brought to the U.S. District Court for the Northern District of Georgia. In this lawsuit, the New Civil Liberties Alliance, joined with the National Apartment Association, is suing the U.S. Department of Health and Human Services, the C.D.C., and the respective Secretary and Acting Chief of Staff of those agencies. The C.D.C's order states that "a landlord, owner of a residential property, or other person with a legal right to pursue eviction or possessory action, shall not evict any covered person from any residential property in any jurisdiction to which this Order applies during the effective period of the Order" [1]. Richard Lee Brown, as with many other landlords across the United States, intends to evict his current tenant. Under the C.D.C's order, his tenant is a "covered person." His argument is that he has provided everything that he is responsible for per their contract and is suffering significant economic damages, so he should receive the unpaid rent and be able to replace the tenant with one who will actually pay their rent [2]. He continues to allege that the C.D.C. "exceeded its statutory and regulatory authority by issuing the halt in residential evictions order" and that the order violates the Supremacy Clause of the U.S. Constitution [2]. 

    The District Court heard this case on October 20, 2020 and could potentially issue some sort of injunction in the coming weeks. Such a decision could affect millions of people as studies have shown that more than 6 million households were unable to make their rent or mortgage payments in September [3]. Various state courts have already had similar complaints filed. The Texas Supreme Court recently clarified that landlords can still pursue evictions by challenging the C.D.C. order. 

Questions

Do you think that the CDC should have the ability to issue declarations halting evictions? 

Is the C.D.C's order a violation of the Supremacy Clause?

What do you think will happen in these various lawsuits?

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Monopoly

by Missy

 

[1]

On October 20, the Department of Justice (DOJ), along with 11 other states, submitted a complaint against Google for alleged violation of antitrust laws.  The complaint[2] is 64 pages long. To summarize the complaint, according to the DOJ,

the Complaint alleges that Google has unlawfully maintained monopolies in search and search advertising by:

·          Entering into exclusivity agreements that forbid preinstallation of any competing search service.

·          Entering into tying and other arrangements that force preinstallation of its search applications in prime locations on mobile devices and make them undeletable, regardless of consumer preference.

·          Entering into long-term agreements with Apple that require Google to be the default – and de facto exclusive – general search engine on Apple’s popular Safari browser and other Apple search tools.

·        Generally using monopoly profits to buy preferential treatment for its search engine on devices, web browsers, and other search access points, creating a continuous and self-reinforcing cycle of monopolization.

These and other anticompetitive practices harm competition and consumers, reducing the ability of innovative new companies to develop, compete, and discipline Google’s behavior. [3]

Google has not officially responded at the time of this writing. However, on a Google blog post, Kent Walker, Google’s SVP of Global Affairs, published that the complaint was flawed and would not help consumers in any way. He further stated that what Google is doing with their products is like having a product at the store placed at eye level on a shelf. The blog contained images and instructions that show consumers how to change Google as the default search on many devices. In addition, Kent asserts that “This lawsuit would do nothing to help consumers. To the contrary, it would artificially prop up lower-quality search alternatives, raise phone prices, and make it harder for people to get the search services they want to use.”[4] He argues that the DOJ completely missed the mark. “The bigger point is that people don’t use Google because they have to, they use it because they choose to.”[5] On that last point, I personally agree that I do choose to use Google search.

Over the past several years, the last four devices I have been using on at least a weekly basis, all came with a search engine other than Google as the default. Admittedly, inertia did have an affect, and I did start using the default search engines. However, I changed all four default search setting to Google within less than a week, after I found the other search engines to be far inferior to Google. 

Regardless of my personal actions, the plaintiffs assert that consumers will not change the default on a device, and this further contributes to Google's monopoly.  The plaintiffs establish the antitrust case under Section II of the Sherman Act, which reads:  “Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony. . .”[6]

Monopoly is further defined as requiring:

“(1) monopoly power and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.” [7]

Google was not always a giant. Survival of the fittest is alive and well in the free market. If you are old enough, you may remember there were other competitors in the general search industry: MetaCrawler, WebCrawler, HotBot, Excite, AltaVista, Ask Jeeves, Ask.com, Lycos, MSN Search,  AOL Search, Infoseek, Go.com, Netscape, Dogpile, and All The Web.[8]  Today, the main competition remaining is Google, Bing (owned by Microsoft), Yahoo (the complaint states they pay Bing for the use of Bing search results),[9] and DuckDuckGo. (DuckDuckGo is distinguished from the other search engines because they offer more privacy settings such as not collecting personal information or participating in web tracking.)[10] 

Interestingly, the complaint uses two Google competitors, Bing and Amazon, to demonstrate Google’s monopolistic power over the two. However, Amazon and Bing are not doing anything much different from Google; Amazon has its own exclusive apps and has Bing preinstalled on its devices.[11] The complaint also refers to the Microsoft antitrust case from a few decades ago. Stephen Houck, formerly the Chief of the Antitrust Bureau in New York’s Attorney General’s Office, who served as lead trial counsel in the case against Microsoft,[12] points out the Google complaint neglects some main differences between the Microsoft case when it tries to align the two for comparison. Houck’s states that Google’s products are free, and Microsoft was charging high monopoly prices for Windows. He further uses the example of Apple in the Microsoft case and stated that Microsoft coerced Apple to use their browser instead of a competitor, when Apple wanted to use the competitor. He goes on to state that the court said it was an interim threat.[13] As stated in the complaint, Google incentivizes distributors, but there was no indication of any type of threat.

Regardless of how you view the Google case, in looking at antitrust in general, how should it be determined if distributors, advertisers, and consumers are choosing a product because of its superior quality, business acumen, and advantage in innovation rather than illegally dominating the market? What rights does a company have to protect its intellectual capital without running afoul of antitrust? If other competitors are doing the same thing, then is it just a question of size?

[6] 15 U.S.C. § 2 (2000).

at 6 comments:

Wednesday, October 14, 2020




How Does Sentencing Work in a Criminal Case?

Photo: "Anatomy of a Murder,"  George C. Scott and Jimmy Stewart, 1959



On October 23, in Utah’s Third District Court in Salt Lake City, Judge Vernice Trease will sentence Ayoola Ajayi to life in prison for the murder of University of Utah student MacKenzie Lueck. 

 

On June 17, 2019 Ajayi met Lueck at a park in North Salt Lake, murdered her, burned her body in his yard and, as police closed in, took the body and buried it in an unmarked grave in Logan Canyon in Northern Utah. On October 8, Ajayi pleaded guilty to the murder, agreeing to deal with prosecutors that gives a life sentence without parole instead of the possibility of the death penalty if he was convicted in court of the murder. 

 

Perhaps nothing in the justice system is more misunderstood than the sentencing process. It’s happened to all of us…we hear or read of a particularly gruesome case, followed by a conviction or a guilty plea, then a relatively light sentence, and the natural reaction is, “What? How could the judge do something like that? Where is the JUSTICE?!?!”

 

In August, in Utah’s Eighth District Court, Judge Samuel Chiara sentenced Lisa Jo Vanderlinden to a year in jail and 14 years of probation in a highly publicized child homicide case in Duchesne. Many people, including Utah Attorney General Sean Reyes, were angry. How, they wondered, could a judge give a sentence like that for killing a child when the prosecutors were asking for a sentence of five years to life?

 

The answer lies in two places: sentencing guidelines and two U.S. Supreme Court cases, Blakely v. Washington 542 U.S. 296 (2004) and U.S. v. Booker, 543 U.S. 220 (2005).

 

Sentencing guidelines exist on both the state and federal levels. According to the Utah Sentencing Commission, sentences are determined on principles of the best available data, public input, and professional judgment and experience. The goals of criminal sentencing in Utah are to “manage the risk to the public, reduce the risk to the public and provide restitution to victims.” Sentencing guidelines take into consideration the nature of the crime, the criminal history of the defendant, a pre-sentence report provided by Adult Probation and Parole, and other factors. Here are Utah’s sentencing guidelines and matrix. 

 

Prior to Blakely, judges could use details not determined by a jury or admitted by a defendant in determining a sentence. In the Blakely case, a 5-4 majority (Scalia, Ginsburg, Stevens, Souter, and Thomas) declared that factors not found by a jury or admitted by a defendant could not be used in determining a sentence because doing so violated the defendant’s 6th Amendment right to trial by a jury. 

 

That’s why Judge Chiara couldn’t sentence Vanderlinden to the harsher prison sentence requested by prosecutors. Vanderlinden’s plea only admitted neglect, not intentional abuse, and therefore, under Blakely, Chiara couldn’t sentence Vanderlinden based on facts that hadn’t been proven to a jury or stipulated in the agreement.

 

 In 2005 U.S. v. Booker applied the same rules from Blakely to federal sentencing and determined federal sentencing guidelines, which to that point had been mandatory, were advisory only. The federal guidelines and matrix are here.

 

In the short time between Blakely and Booker, one case became the standard for the need for federal sentence reform: US v. Angelos, 345 F.Supp.2d 1227.

 

Weldon Angelos was a 24-year old first-time offender convicted of selling a total of 24 ounces of marijuana on three different occasions to a federal informant. Federal sentencing guidelines for such a crime recommended a sentence of between six and eight years. However, Angelos also faced three counts of possessing a weapon, during two of the $350 marijuana deals and at his home when he was arrested. Under 18 USC 924(c), prosecutors were able to “stack” the three firearms offenses, adding a minimum mandatory sentence of 55 years for Angelos. In effect, Angelos received a life sentence for selling 24 ounces of pot while possessing a gun.

 

The judge in the case, Paul Cassell, found the sentence incredibly unjust, but his hands were tied by the minimum mandatory sentences of the statute. “The court believes that to sentence Mr. Angelos to prison for the rest of his life is unjust, cruel, and even irrational,” Cassell wrote in his decision. “The sentence more than doubles the sentence given to an aircraft hijacker, a terrorist who detonates a bomb in a public place, a racist who attacks a minority with the intent to kill and inflicts permanent or life-threatening injuries, or a second-degree murderer.”

 

Judge Cassell later petitioned President Barack Obama for the release of Angelos, and President Obama commuted Angelos’ sentence in May of 2016 after Angelos served 13 years. 

 

The facts in the Ayoola Ajayi murder case have been determined by the plea agreement, which was negotiated with the agreement of the victim’s family. The role of the judge is to apply the law to those facts, without considering facts that were not admitted in the plea deal.

 

What do you think? Do some crimes deserve minimum mandatory sentences? How much flexibility should judges have in determining a sentence? Did the Supreme Court get it right in Blakely and Booker? Should prosecutors be able to “stack” charges to increase a prison sentence?

 

Check out this video of the Utah State Bar’s “Law School for Journalists” on sentencing, presented by the Utah Chapter of the Society of Professional Journalists. 

 

 

  

at 11 comments:

COVID & JUSTICE

 

COVID & COURTROOMS 
 


The COVID-19 Pandemic has undoubtedly impacted our society and the fundamental access to justice. The ability to carry out due process has left many questioning, whether the pandemic will pose long-term consequences on constitutional rights. Nationwide, jury trials are on pause until further notice and each state is left to determine court operations and pandemic response procedures. Earlier this month, Chief Justice Durrant issued an Administrative Order for Court Operations During Pandemic. This order addresses the Court’s Pandemic Response Plan in Utah and provides general guidelines regarding the function of the courts. As we continue to discuss the roles of judges, motions, juries, and trials; has COVID-19 changed any of these roles as we traditionally recognize them? 

INCARCERATION FACILITIES DEALING WITH COVID-19

Does the government have an obligation to address and protect inmates from COVID-19 at incarceration facilities? This diagram from The Marshall Project, displays the estimated number of inmates who have died of COVID-19 while incarcerated at United States detention centers. Does this diagram prompt questions of constitutionality, and public safety vs. human rights?
 


Utah’s H.B. 206 Bail and Pretrial Release Amendments took effect on October 1, 2020 and aligns with national reform trends that challenge the constitutionality of holding a defendant, based on their ability to post bail. H.B. 206 appears to evaluate defendants on a case by case basis and establish fairness based on individual circumstances and ability to pay. Although, this bill was not originally intended to address COVID-19 among inmate populations, what are some of the secondary benefits that this bill may promote in this regard? 

WHAT IS NEXT? 

The topics of court operations, incarceration, and Utah’s H.B. 206 can be expanded in their individual regard. However, each topic provides some sort of significance to the larger picture of justice. Here are some additional questions to consider: (please feel free to consider based on your personal opinion)

-Who suffers the most from the inability to conduct jury trials? Victims, defendants, unrelated parties and cases who have also requested a jury trial? 

-Has COVID caused certain constitutional rights to conflict with one another? (i.e. speedy trial, jury pool, witness testimony)  





 


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