Six times a year, the ACLU of San Diego & Imperial Counties publishes its most recent docket. Our current docket, dated November 2016, contains 18 open cases in which we are directly involved, and 9 in which we prepared friend-of-the-court briefs. Our most recent four dockets can be found at the end of this page. Major cases have a link to a more detailed page. New developments in a case appear in bold.
ADVANCING IMMIGRANTS’ RIGHTS
Cancino Castellar v. Kelly (new case) (direct) – On any given day, federal immigration agencies incarcerate tens of thousands of longtime U.S. residents, victims of persecution, and others in often remote detention centers. In San Diego and Imperial Counties, the two main detention centers warehouse about 1,500 people. Those individuals often languish for months before they appear before a judge and learn why they are incarcerated, how they can defend themselves, and whether they can seek release and return to their loved ones. With the new administration promising to expand detention and deport millions more people, delays in immigration courts are likely to increase. To challenge these systemic delays, we filed a class action lawsuit on March 9, 2017, representing three clients currently detained in local facilities, including an 18-year-old high school senior who is eligible for the Deferred Action for Childhood Arrivals program, a mother of two U.S. citizen children who has lived here for many years, and a man who claims to be a U.S. citizen. With co-counsel Fish & Richardson P.C. and Law Offices of Leonard B. Simon P.C., we seek to represent a class of persons like our clients who have been confined for weeks or months without seeing a judge.
Al-Mowafak v. Trump (new case) (direct) – On January 27, 2017, the president signed Executive Order No. 13,769, which banned entry into the United States from citizens of seven Muslim-majority countries (Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen) for 90 days, suspended refugee admissions from any country for 120 days, and indefinitely suspended admission of refugees from Syria. The order also prioritized refugee claims based on religious persecution from individuals of a minority religion in their home countries. The text and history of the order show that the government intended to favor Christians over Muslims in entry, detention, interrogation, and removal. As a result, the order violated the First and Fifth Amendments, the Immigration and Nationality Act, and the Administrative Procedure Act. Representing several individuals and an organization, the California ACLU affiliates, joined by the ACLU National Immigrants’ Rights Project and Keker Van Nest & Peters LLP, filed a class action challenging the executive order on February 2, 2017. The order was revoked and replaced by Executive Order No. 13,780 on March 6. Though the new order is less draconian than its predecessor, it presents similar legal problems. On March 13, 2017, we filed an amended complaint challenging the new order.
County of Santa Clara v. Trump (new case) (direct) – On January 25, 2017, the president signed Executive Order No. 13,768. The order directs the Attorney General and Secretary of Homeland Security to “ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes.” The order also requires “appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.” On February 3, Santa Clara County filed a lawsuit challenging the order as an abuse of executive power and improper attempt to conscript state and local governments into immigration enforcement. On February 23, the County moved for a preliminary injunction against enforcement of the order. Represented by the California ACLU affiliates, the ACLU National Immigrants’ Rights Project, and Wilson Sonsini Goodrich & Rosati P.C., the YWCA of Silicon Valley moved to intervene in the case on March 1, because the YWCA’s work on behalf of vulnerable communities depends significantly on federal funding.
Hernandez v. Mesa (amicus) – While standing in the United States, Border Patrol Agent Jesus Mesa fired a shot that killed Sergio Adrian Hernandez, a 15-year-old Mexican boy on the Mexican side of a cement culvert that separates El Paso, Texas from Juarez, Mexico. Hernandez’s parents filed suit, in which we previously participated in an amicus brief, but the Court of Appeals dismissed their claims. The Supreme Court granted review to decide whether (a) the Fourth Amendment applies to this cross-border shooting; (b) the agent is entitled to qualified immunity; and (c) the plaintiffs may pursue constitutional claims against the agent. On December 9, 2016, the ACLU Immigrants’ Rights Project, joined by the ACLU’s southern border affiliates, filed an amicus brief arguing that cross-border shootings cannot be immunized from constitutional review simply because the victim happened to be killed a few feet from the dividing line between the United States and Mexico. The case was argued in the Supreme Court on February 21, 2017. A decision is expected before the end of June.
ACLU v. Department of Homeland Security (direct) (roving patrols FOIA) – The incidence of civil rights violations associated with Border Patrol’s interior enforcement operations, which include checkpoints and “roving patrol” stops, is a matter of pressing public concern. There is little publicly available information regarding the extent or impact of Border Patrol’s roving patrol operations or its agents’ respect for limitations on their authority. In Southern California, Border Patrol agents operate in a number of metropolitan and rural areas at considerable distance from the U.S.-Mexico border. In July 2014, our Border Litigation Project, along with the ACLU of Southern California and UCI Law’s Immigrants’ Rights Clinic, submitted a Freedom of Information Act request to both DHS and CBP seeking records related to “roving patrol” operations in the San Diego and El Centro Sectors. When the agencies failed to respond as required, we filed a lawsuit in the Central District of California in February 2015. After extended negotiations and document production, we sought summary judgment on the ground that the government conducted an inadequate search and unlawfully withheld numerous records. The court heard argument on January 27, 2017 and issued an order February 10 denying both motions, ordering additional briefs, and directing the government to submit certain documents for in camera review. The briefs are due April 5, with reply briefs if any to be filed by April 19.
ACLU of Arizona & ACLU of San Diego & Imperial Counties v. Department of Homeland Security (direct) (reports of child abuse FOIA) – For years, advocates have documented persistent allegations of child abuse by Department of Homeland Security (DHS) officials, in particular Border Patrol agents. In June 2014, at the height of a surge of unaccompanied children entering the United States, the ACLU filed a complaint with DHS documenting 116 allegations of child abuse. Although high-ranking officials initially conceded that there were problems, DHS later shut down all investigations. In December 2014, the ACLU Border Litigation Project filed a Freedom of Information Act request with DHS for any records pertaining to allegations of child abuse or mistreatment. DHS failed to timely respond. With Cooley LLP and the ACLU of Arizona, we filed a federal lawsuit in Arizona to compel DHS to search for and turn over those documents. Despite obstruction and delay by DHS, we have succeeded in compelling the agency to produce thousands of pages of documents. On February 10, 2017, DHS filed a summary judgment motion with respect to documents it continues to withhold. Our response is due March 28.
Southwest Key Programs v. City of Escondido (direct) – Since 2011, hundreds of thousands of unaccompanied children have entered the United States. Most come from Guatemala, El Salvador, and Honduras, seeking refuge from violence and persecution. The Office of Refugee Resettlement (ORR), part of the Department of Health and Human Services, is responsible for the care of unaccompanied children while their immigration cases are pending. ORR places children with contractors such as Southwest Key Programs, which provide housing and services until children can be united with a parent or close relative. Southwest Key operates immigrant youth housing in Lemon Grove and El Cajon and received federal approval to expand its operations in San Diego County. It found suitable locations in Escondido. Despite undisputed evidence that Southwest Key would bring millions of dollars and over 100 jobs into the local economy without adverse impact, it ran into a firestorm of opposition based on xenophobia, hostility, and bias. As a result, the City rejected Southwest Key’s proposal. On May 18, 2015, joined by Brancart & Brancart, Cooley LLP, and Lawyers’ Committee for Civil Rights Under Law, we filed a federal action charging Escondido with unlawful discrimination. After discovery closed, the City moved for summary judgment. While the motion was pending, the Civil Rights Division of the Department of Justice filed a brief in support of our position that Southwest Key’s group homes are “dwellings” covered by the Fair Housing Act. On February 3, 2017, the court heard argument on the summary judgment motion. By order issued February 22, the court asked DOJ to advise by March 20 whether its position remains unchanged.
Rodriguez v. Swartz (direct) – In October 2012, Border Patrol agent Lonnie Swartz shot and killed J.A., a minor, while he was walking peacefully down a street, unarmed, in Nogales, Mexico, just across the border from the United States. On July 29, 2014, the ACLU Border Litigation Project and the ACLU Immigrants’ Rights Project, along with Morrison & Foerster LLP, Parra Law Offices, and Roberto Montiel Law Offices, filed suit in federal court to challenge the shooting on behalf of J.A.’s mother, Araceli Rodriguez, both on her own behalf and as personal representative of J.A.’s estate. Swartz moved to dismiss on the ground that the Constitution does not apply to his actions. On July 9, 2015, the district court issued an order rejecting that contention. Swartz filed an immediate appeal with the Ninth Circuit, which put the case on hold in the trial court. The Ninth Circuit heard oral argument October 21, 2016. The case is on hold pending the Supreme Court’s decision in Hernandez v. Mesa, a similar border shooting case in which the ACLU filed an amicus brief.
Olivas v. Whitford (direct) – On June 12, 2014, we filed a complaint in federal court challenging the Kafkaesque exile of Oscar Olivas, who has been barred from returning to the United States since 2011. As a result, Mr. Olivas remains in Mexico where he cannot work to support his family and where his young U.S. citizen daughter does not receive the special education she requires. The petition states that federal officers coerced Mr. Olivas’s mother into signing a false confession that he had been born in Mexico rather than Los Angeles, as the government previously accepted, and details his efforts to obtain a fair hearing proving his citizenship so that he can bring his family back to the United States. After a bench trial, the district court found we did not prove that Mr. Olivas is a United States citizen. We appealed that order on the ground that the court erred in not requiring the government to disprove Mr. Olivas’s citizenship by clear and convincing evidence, given its previous administrative findings that he was a citizen, on which he justifiably relied. At the request of the Ninth Circuit, we briefed the question whether it has jurisdiction over the appeal, given that certain claims remain technically pending in the district court. We believe the district court effectively decided all issues before it, and therefore the Ninth Circuit may hear the appeal. In the alternative, we asked the district court to enter a judgment formally disposing of all claims. The district court denied that request, believing it lacks jurisdiction due to the pending appeal. The appellate jurisdiction issue remains pending before the Ninth Circuit.
Lopez-Venegas v. Johnson (direct) – On June 4, 2013, together with the ACLU of Southern California, the ACLU Immigrants’ Rights Project, and Cooley LLP, we filed suit claiming that Border Patrol agents and Immigration and Customs Enforcement officers routinely used misinformation, deception, and coercion to convince people to sign their own expulsion orders under guise of “voluntary return.” Officers pressured Mexican nationals with deep roots in the United States into forfeiting their right to a fair hearing and a chance to live here lawfully by misleading them about the severe consequences of “voluntary return,” such as prolonged bars against re-entering the United States. After motions, discovery, and negotiations, the parties executed a comprehensive settlement, including a landmark agreement to allow the individual plaintiffs and a class of qualified persons to return to the United States. The agreement also requires the government to undertake reforms to the way it implements voluntary return. On February 25, 2015, the court approved the settlement, triggering a 120-day notice period, followed by a 180-day period to submit applications for return. By the close of the application period, we screened 3,597 individuals for class membership and submitted 116 applications. The government granted 79 applications and denied 37. Now that the application period has closed, we have updated the bilingual website http://www.misalidavoluntaria.org/ to inform people of their rights in the “voluntary return” process. After extensive negotiations, we reached agreement to extend the reform provisions of the settlement for an additional six months, until February 28, 2017, to compensate for the government’s initial noncompliance with those provisions. We continue to monitor compliance with the reform provisions of the settlement.
P.D. v. City of San Diego (new case) (direct) – In March 2016, San Diego police officers unlawfully stopped and frisked several African-American youth as they walked through Memorial Community Park. Without a warrant and without seeking their parents’ permission, the officers unlawfully detained the juveniles and took DNA samples after telling them they would not be released otherwise. On February 15, 2017, representing one of the juveniles and his mother, we sued the City of San Diego and the officers involved for conducting an unlawful search and seizure. The case challenges a city policy that authorizes officers to obtain consent from juveniles to take DNA on the same terms as adults.
Bonin v. Aldana (new case) (direct) – Stella Bonin is a naturalized U.S. citizen born in Uruguay who lives in Arizona. In February 2015, she was driving her elderly dog from Phoenix, Arizona to El Cajon, California for emergency veterinary care. As she was driving west on Interstate 8, Border Patrol agents stopped, interrogated, and harassed her for no valid reason. Although she told them she was a U.S. citizen and showed them her passport card, they forced her to drive to the Campo Border Patrol Station, where they continued to interrogate and harass her. They also searched her car based on a pretext, throwing her belongings on the ground and damaging the car but finding nothing unlawful. After this ordeal, during which Ms. Bonin was forced to leave the door open for observation while she used the bathroom, she was finally released and allowed to continue to El Cajon. Customs and Border Protection ignored a Freedom of Information Act request for relevant documents. On February 10, 2017, we filed suit in federal court for violations of the Fourth Amendment and Freedom of Information Act. We have also submitted an administrative claim for various torts and intend to amend the complaint to sue under the Federal Tort Claims Act if the claim is denied.
Jones v. Hernandez (direct) – In August 2014, U.S. Border Patrol agents assaulted U.S. citizen and former Navy SEAL Alton Jones while he was visiting Border Field State Park with his wife and young child. Mr. Jones was taking a jog through the park when he was surrounded and tackled by Border Patrol agents, who arrested and held him overnight without charge, explanation, or access to a lawyer. On August 8, 2016, we filed suit in federal court alleging violations of Mr. Jones’s Fourth Amendment rights. That same day, we submitted a Federal Tort Claims Act (FTCA) administrative claim alleging various torts. On October 20, 2016, the government denied our administrative claim. We filed a first amended complaint on February 3, 2017 to add the FTCA claims. On February 17, we moved for leave to file a second amended complaint that includes a claim under the Freedom of Information Act challenging the government’s failure to produce records that we previously requested, including a video referred to by government counsel in discussions about the case.
United States v. Sanchez Gomez (amicus) – At the request of United States Marshals, the federal court in San Diego adopted a blanket policy to place all criminal defendants in full shackle restraints at all non-jury proceedings except guilty pleas and sentencing hearings. The federal defenders challenged that policy, and a Ninth Circuit panel held in August 2015 that the policy was not sufficiently justified. However, on August 5, 2016, the full court granted rehearing and vacated the panel decision. In support of the federal defenders, we filed an amicus brief discussing the settlement reached in an ACLU case that challenged blanket shackling of immigration detainees in San Francisco, showing that such a policy is unnecessary. The amicus brief was written by Wilson Sonsini Goodrich & Rosati, P.C., which co-counseled the immigration shackling case. The court heard argument on September 7, 2016.
Orr v. Plumb (amicus) – In a federal case arising from a traffic stop by a California Highway Patrol officer, the jury found the officer unlawfully arrested and used excessive force on the plaintiff and awarded the plaintiff $125,000 in damages. When the plaintiff sought attorney fees as provided by federal law, the court reduced the fees on the ground that the verdict, for which the officer was indemnified, would not deter future violations by other officers. Plaintiff appealed the fee award to the Ninth Circuit. With the National Police Accountability Project, the California ACLU affiliates filed an amicus brief arguing that the district court’s decision threatened to undermine civil rights enforcement by disregarding binding precedent on the deterrent effect of both damages verdicts and fee awards to counsel who prevail in holding public officials accountable for constitutional violations.
Rights of the Accused
Phillips v. State of California (direct) – Because public defenders do not receive the resources necessary to represent their clients, thousands of Fresno residents must navigate the criminal justice system without the minimum legal representation guaranteed by the Constitution. In Fresno County, public defender attorneys are forced to shoulder up to four times the recommended number of clients, leaving so little time that attorneys have little if any meaningful communications with clients. The failing public defense system violates the Constitution and perpetuates racial inequalities that plague the criminal justice system. In a case spearheaded by the ACLU of Northern California, we joined the other California affiliates and the national ACLU to file suit against the State of California, Governor Brown, and County of Fresno seeking an overhaul of the County’s indigent defense system, with state participation. On March 12, 2016, the court denied motions by the state and county to dismiss the case. The state filed a petition for writ of mandamus seeking review of the trial court’s decision, but the Court of Appeal summarily denied the petition. The case is proceeding through discovery.
In re Ricardo P. (new case) (amicus) – The California Supreme Court granted review on the question whether juvenile courts can impose an electronics search condition requiring minors on probation to submit to warrantless search of their electronic devices and provide their passwords in cases unrelated to the use of such devices to commit any crime. With the Electronic Frontier Foundation, the California ACLU affiliates filed an amicus brief arguing that the routine imposition of such conditions unreasonably violates rights to privacy and expression and undermines juvenile rehabilitation.
Department of Motor Vehicles (direct)(closed) – The California Department of Motor Vehicles (DMV) is violating the National Voter Registration Act (NVRA) by failing to offer California drivers and identification card holders the opportunity to register to vote. On February 5, 2015, the ACLU of California Voting Rights Project, joined by co-counsel at Demos, Project Vote, and the law firm of Morrison & Foerster, sent a pre-litigation notice of noncompliance to the California Secretary of State on behalf of the League of Women Voters of California, the Association of Californians for Community Empowerment, California Common Cause, the National Council of La Raza, and three individuals deprived of voter registration opportunities. We eventually signed a memorandum of understanding with DMV to resolve the concerns identified in our letter, and we are monitoring DMV’s compliance with the agreement. As a result of staffing changes, this case will be handled by the ACLU of Northern California and is now closed in this affiliate.
DEFENDING CIVIL LIBERTIES
e3 Civic High School (direct) – In late 2014, the executive director of e3 Civic High School, a charter school located in the San Diego Central Library building, unlawfully interfered with the establishment of a gay-straight alliance club known as Spectrum, demonstrating her bias against LGBT students and violating students’ rights to freedom of speech. After we wrote to the school, we were assured the school would comply with the Equal Access Act and other relevant law. During March 2015, we again wrote to the school to object to the executive director’s interference with Spectrum’s operation and right to freedom of speech, and we were again assured the school would comply. In October 2015, the executive director denied admission to a transgender student in violation of state law prohibiting charter schools from discriminating based on gender, gender identity, or gender expression. By letter sent April 22, 2016, with our co-counsel Pillsbury Winthrop Shaw Pittman LLP, we demanded an immediate response from the school’s board of directors to this latest violation by the executive director. Through counsel, e3 denied any wrongdoing. We continued to investigate by requesting relevant documents under provisions of the school’s charter requiring it to comply with the California Public Records Act. After the school ignored both our original request and subsequent demand letter, we filed suit on December 6, 2016 to compel disclosure of the requested documents. In response, e3 produced a batch of documents. The school filed an answer on February 9, 2017 and has produced additional documents, which we are reviewing to determine if the response is complete.
Freedom of Expression and Information
Subpoena of Deborah Stice (direct) (closed)– Dr. Paul Aisen previously worked for the University of California, San Diego (UCSD) as director of the Alzheimer’s Disease Cooperative Study (ADCS). In June 2015, Dr. Aisen began working for the University of Southern California (USC) as director of a new Alzheimer’s Therapeutic Research Institute. In July 2015, the University of California sued USC and Dr. Aisen, alleging they acted illegally in seeking to transfer the ADCS and related data. USC and Dr. Aisen countersued, alleging defamation and other claims. On October 2, 2016, USC and Dr. Aisen served a subpoena on Deborah Stice, a former ADCS administrator, who operated a blog to report on the litigation and provide a forum for commentary. The subpoena demanded documents and communications related to the blog, including the identities of anonymous sources and commenters, as well as information arising from Ms. Stice’s ADCS employment before she started the blog. Representing Ms. Stice, we objected to the subpoena on the ground that it exceeded the proper scope of discovery and sought information covered by the First Amendment journalist’s privilege. We eventually reached agreement that Ms. Stice would testify and produce documents regarding information she learned independently of reporting for the blog. Ms. Stice was deposed on November 18, 2016, but the deposition was suspended because opposing counsel exceeded the scope of discovery and attempted to invade the journalist’s privilege. As required by chambers rules, we attempted to schedule a conference call with the assigned magistrate judge within 30 days of the deposition as a prelude to moving for a protective order, but opposing counsel failed to respond. With no further contact from opposing counsel, we presume USC and Dr. Aisen have conceded the issues, and the case is now closed.
University of California campuses collect student activity fees for the purpose of funding a wide range of speech by student organizations. By delegation from the university, student governments allocate those funds to support events, meetings, speeches, or the publication of newspapers. The Koala, a student publication at UCSD known for outrageous satire, has received funding through that process, as have numerous other student organizations, including the publishers of other student papers. After The Koala published a satire of safe spaces and trigger warnings containing numerous racial epithets and stereotypes, the UCSD administration condemned it, as it had a right to do. The student government then terminated funding for the publication of all student print media. That decision violated the First Amendment because it singled out the press, unreasonably disqualified student newspapers from funding that remains available to other organizations, and derived from opposition to The Koala’s viewpoint. By letter sent December 1, 2015, we demanded reinstatement of student print media funding in accord with the First Amendment and university policy. After negotiations were unsuccessful, we filed a complaint and motion for preliminary injunction on May 31, 2016. Our co-counsel is Ryan Darby, a local attorney and UCSD graduate. On November 1, 2016, the court denied the injunction and granted the university’s motion to dismiss with leave to amend. We filed an amended complaint on November 15. The court heard argument on the university’s motion to dismiss on January 30, 2017 and issued an order dismissing our case without leave to amend on February 28. We expect to appeal.
Jacobson v. Department of Homeland Security (direct) – As part of the federal government’s ongoing militarization of the U.S.-Mexico border region, the Border Patrol runs an aggressive program of checkpoints throughout the Southwest. In the rural community of Arivaca, Arizona, community members launched a monitoring campaign to observe, photograph, and video record the actions of Border Patrol agents at a nearby checkpoint. The campaign arises from longstanding concerns about harassment and civil rights violations committed by Border Patrol agents at the checkpoint. Border Patrol responded by harassing and retaliating against the residents and forcing them to observe from such a large distance that they cannot effectively monitor checkpoint operations. As part of our Border Litigation Project, together with the ACLU of Arizona and the law firm of Covington & Burling LLP, we filed suit in Arizona federal court on November 20, 2014, to hold Border Patrol accountable for violating the First Amendment. After briefing and argument, the court denied our motion for a preliminary injunction in September 2015 and granted the government’s motion to dismiss in September 2016, after which we appealed to the Ninth Circuit. Our opening brief is due April 10, 2017.
Gill v. U.S. Department of Justice (direct) – On July 10, 2014, the California ACLU affiliates, along with Bingham McCutchen LLP and Asian Americans Advancing Justice – Asian Law Caucus, filed a complaint for declaratory and injunctive relief in federal court alleging that the federal government’s “suspicious activity reporting” program targets constitutionally protected conduct and encourages racial and religious profiling. Plaintiffs are five United States citizens – two photographers, one white man who is a devout Muslim, and two men of Middle Eastern and South Asian descent. Each plaintiff engaged in innocuous and lawful activity, some of which was protected by the First Amendment, yet all were reported as having engaged in “suspicious activities.” As a consequence, reports about them were entered into counterterrorism databases, and they were subjected to unwelcome and unwarranted law enforcement scrutiny and interrogation. After denying the government’s motion to dismiss the case and ordering production of relevant documents, the court heard argument on the government’s motion for summary judgment December 8, 2016.
For several years, California courts have been grappling with the question whether electronic communications relating to official business are covered by the California Public Records Act (CPRA) when they are sent or received on non-official devices or accounts. To allow governments to circumvent CPRA obligations simply by routing official business through non-official devices or accounts would gut public disclosure law by curtailing if not eliminating disclosure of informal emails and other communications that provide critical insights into governmental operations beyond the often sanitized contents of formal reports. Yet that is exactly what the Sixth District Court of Appeal did in holding that such communications are not “public records” as defined in the CPRA. After the California Supreme Court granted review, the California ACLU affiliates filed an amicus brief August 11, 2015. The California Supreme Court agreed with our position, issuing a decision on March 2, 2017 that documents relating to public business are covered by the CPRA regardless of whether they are sent, received, or stored in a personal account. The case is now closed.
Askins v. Department of Homeland Security (direct) – This case is about protecting the First Amendment right to hold government accountable at the border. Ray Askins is an activist concerned about environmental issues. While standing on a public street in Calexico, he took photographs of the port of entry building to illustrate a presentation he planned to give on vehicle emissions at ports of entry. Christian Ramirez is a human rights activist who photographed male Customs and Border Protection (CBP) agents frisking female travelers as they were preparing to leave the United States at San Ysidro. In both cases, border enforcement agents detained, harassed, and threatened them, temporarily confiscated their cameras, and deleted their photographs. We filed an action claiming that CBP violated the Constitution by prohibiting all photography at ports of entry. The court eventually held that CBP’s policy does not violate the First Amendment but gave us permission to amend the complaint. After conducting further investigation, we filed an amended complaint on November 5, 2015, updating the facts to reflect new construction at Calexico and San Ysidro and refining our claims. After the district court dismissed the case, we appealed on May 17, 2016. With the filing of our reply brief on February 16, 2017, the case is fully briefed, including two amicus briefs supporting our position, and we are waiting for the court to schedule an argument date.
Community Coalition of South Los Angeles v. Los Angeles Unified School District (direct) – The Local Control Funding Formula (LCFF), enacted on July 1, 2013, is California’s new education finance system. It is expected to increase state education funding by $18 billion over eight years and direct a greater portion of the state’s education funding to high-need students than the former system. ACLU supported the reform and has been actively involved in shaping the regulations adopted by the State Board of Education (SBE) to implement LCFF. The mechanism for distributing funding to districts was overhauled, replacing “categorical programs” that restricted use of certain funds and establishing a single per-pupil funding formula for every district instead of the former mosaic of formulas used to derive different “revenue limit” apportionments for each district. The new formula includes a “supplemental grant” (20 percent over the base amount) for high-need students who are English learners, low-income students, or foster youth, plus a “concentration grant” for each such student when the overall percentage of their enrollment in the district equals or exceeds 55 percent. Each district must adopt a Local Control Accountability Plan (LCAP) specifying how LCFF funds will be used. This test case, filed July 1, 2015, by the California ACLU affiliates, challenges the LCAP adopted by Los Angeles Unified School District (LAUSD) because its method of calculation diverts funds from “supplemental” and “concentration” grants to “base” funding for any purpose. If allowed to stand, the Los Angeles LCAP would become a model for how other districts could divert funds from high-need students. To avoid collateral litigation on exhaustion of administrative remedies, we filed an administrative complaint with the California Department of Education, which ruled in our favor on May 27, 2016, ordering LAUSD to amend its LCAP and provide hundreds of millions of dollars in services to high-need students. LAUSD agreed to abide by the decision and amend its 2017-18 LCAP. We are in settlement negotiations to determine how much of the lost expenditures from the 2014-15, 2015-16, and 2016-17 school years LAUSD will provide to high need students. If the settlement negotiations fall through, we will proceed to a merits hearing in August 2017 to resolve the dispute about past years’ services.
Lewis v. Superior Court (amicus) – While investigating a physician, the California Medical Board obtained his patients’ controlled substance prescription records from the Controlled Substance Utilization Review and Evaluation System (CURES), a statutory program that does not require a warrant or subpoena based on individualized suspicion. The investigation ultimately found only minor recordkeeping violations. On review, the Court of Appeal rejected the physician’s claim that the statute violates the privacy rights of patients, holding that CURES contains sufficient safeguards to prevent unwarranted disclosure and access. After the California Supreme Court granted review, we joined the California ACLU affiliates in an amicus brief arguing that the physician has standing to assert his patients’ privacy rights and the warrantless search of prescription records violates the state and federal constitutions.
Chamorro v. Dignity Health (direct) – Rebecca Chamorro lives in Redding and is a patient at Dignity Health’s Mercy Medical Center, the only hospital in Redding with a labor and delivery ward. She decided with her doctor that she would get a tubal ligation during her scheduled C-section in late January 2016. But the hospital refused her doctor’s request to perform the procedure, citing religious directives written by the United States Conference of Catholic Bishops that classify sterilization procedures as “intrinsically evil.” For Chamorro, there are no hospitals within a 70-mile radius that have birthing facilities and do not follow these directives. After Dignity Health refused to comply with a letter demanding that it authorize the tubal ligation, we joined the California ACLU affiliates, the national ACLU, and Covington & Burling in filing suit on behalf of Ms. Chamorro and Physicians for Reproductive Health, arguing that to withhold pregnancy-related care, including but not limited to tubal ligation, for other than medical reasons violates California law. The case includes an emergency motion asking the court to prevent Dignity Health from using the religious directives to interfere with Chamorro’s care so that her doctor can perform the procedure during her scheduled delivery. The court denied the emergency motion, but the case is continuing through the normal litigation process. An amended complaint was filed February 29, 2016, after which Dignity Health moved to dismiss our claims. With our agreement, the California Medical Association moved to intervene. By order filed August 1, 2016, the court dismissed all but one of our claims, allowing us to proceed on the claim that Dignity Health is engaging in an unlawful business practice. The court denied the motion to intervene. The case is now in discovery.
Access to courts
Leider v. Lewis (new case) (amicus) – This case is about the California taxpayer standing statute, Code of Civil Procedure section 526a, which authorizes taxpayers to bring actions against local government officials to enjoin unlawful conduct. The statute is an important procedural vehicle for civil liberties cases in state court. The California Supreme Court granted review of a case raising the question whether the statute can be used to enjoin conduct prohibited by criminal as well as civil laws. The California ACLU affiliates filed an amicus brief arguing for a broad construction of the statute to include conduct prohibited by criminal laws. The case was argued on March 8, 2017, including argument from an ACLU attorney as amicus curiae. A decision is expected within 90 days of that date.
Armstrong v. Board of Supervisors– In violation of constitutional, statutory and administrative requirements, San Diego County jails were severely overcrowded. Even though a consent decree setting population caps for each facility was adopted in 1988, the County’s only jail for women was still severely overcrowded in 1993, at which point the ACLU initiated contempt hearings. The Court of Appeal affirmed the contempt finding, which remained in effect until 1997. After realignment shifted many prisoners from the state to counties, we are watching the County to make sure it remains in compliance with the decree.
In the Matter of Overcrowding of Detainees at San Diego County Juvenile Hall – Immediately after court oversight of conditions at Juvenile Hall ended in 1996, the population at the facility increased to the point that there were eighty more children than beds. In mid-1998, the ACLU contacted the San Diego County Counsel’s office to resolve the crisis without resorting to new litigation. The juvenile court then limited the number of detainees at Juvenile Hall, which has yet to exceed that limit. The ACLU continues to monitor compliance.
Recent Legal Dockets
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