California Anti-Slapp

Code of Civil Procedure – Section 425.16.

(a) The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.

(b) (1) A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. (2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. (3) If the court determines that the plaintiff has established a probability that he or she will prevail on the claim, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the case, or in any subsequent action, and no burden of proof or degree of proof otherwise applicable shall be affected by that determination in any later stage of the case or in any subsequent proceeding.

(c) (1) Except as provided in paragraph (2), in any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to Section 128.5. (2) A defendant who prevails on a special motion to strike in an action subject to paragraph (1) shall not be entitled to attorney’s fees and costs if that cause of action is brought pursuant to Section 6259, 11130, 11130.3, 54960, or 54960.1 of the Government Code. Nothing in this paragraph shall be construed to prevent a prevailing defendant from recovering attorney’s fees and costs pursuant to subdivision (d) of Section 6259, 11130.5, or 54690.5.

(d) This section shall not apply to any enforcement action brought in the name of the people of the State of California by the Attorney General, district attorney, or city attorney, acting as a public prosecutor.

(e) As used in this section, “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue” includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

(f) The special motion may be filed within 60 days of the service of the complaint or, in the court’s discretion, at any later time upon terms it deems proper. The motion shall be scheduled by the clerk of the court for a hearing not more than 30 days after the service of the motion unless the docket conditions of the court require a later hearing.

(g) All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this section. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. The court, on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivision.

(h) For purposes of this section, “complaint” includes “cross-complaint” and “petition,” “plaintiff” includes “cross-complainant” and “petitioner,” and “defendant” includes “cross-defendant” and “respondent.”

(i) An order granting or denying a special motion to strike shall be appealable under Section 904.1.

(j) (1) Any party who files a special motion to strike pursuant to this section, and any party who files an opposition to a special motion to strike, shall, promptly upon so filing, transmit to the Judicial Council, by e-mail or facsimile, a copy of the endorsed, filed caption page of the motion or opposition, a copy of any related notice of appeal or petition for a writ, and a conformed copy of any order issued pursuant to this section, including any order granting or denying a special motion to strike, discovery, or fees. (2) The Judicial Council shall maintain a public record of information transmitted pursuant to this subdivision for at least three years, and may store the information on microfilm or other appropriate electronic media.

Legal Definition of Obscenity

• Whether "the average person, applying contemporary community standards", would find that the work, taken as a whole, appeals to the prurient interest,
• Whether the work depicts/describes, in a patently offensive way, sexual conduct specifically defined by applicable state law,
• Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

See Miller v.California, U.S. Supreme Court

Something We Discussed in Class

Article I, Section 2, Clause 3 of the Constitution states,

"Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons."

When this topic came up in our Section 2 class we discussed the potential reasoning behind the inclusion of this clause. As representation would be determined by population, the issue of whether or not to count slaves was made a big deal by the framers. Many northerners held that slaves were merely property and deserved no representation whatsoever. They maintained that counting slaves would put the north at a disadvantage and would in fact incentivize an increase in slave importation.

With the shift from a confederacy to a federal system, states with lower representation would lose power in Congress. Not wanting to be at a disadvantage, the southern states pressed the issue of representation because of the benefit it provided. The 3/5 rule came as a result of the conflict between the slave and free states, but it did not originate at the Convention. It actually came from the Articles of Confederation and had previously existed as a means to collect requisitions which was the source of income for Congress under the Articles. To go along with allowing increased representation in the slave states, Gouverneur Morris of Pennsylvania recommended that the clause also include the concept that taxation would be directly proportioned based on representation. As such, southern states would get the representation that they desired but would also be burdened by the additional taxes that would be incurred as a result of the compromise.

In affect the Compromise was more anti-slavery than we sometimes suggest it to be. The 3/5 rule removed whatever sectional benefit counting the slaves created. Rather than suggesting that slaves are not persons, the framers acknowledge the contrary in having them considered in both representation and direct taxation.

Textbook now available in USD UG Library

A current (2nd edition) of the textbook is now available in the library.

Please check your log-on information for this blog. If your ID for contibuting to the blog is "unknown" please change this information to an identifiable name. Please also check to see if you have registered as anonymous. We need to know the identity of contributors to this blog. Any questions- please see me in class. Rick Custin

FBI "Stingray" Tracking Gear Fuels a Constitutional Clash

http://online.wsj.com/article/SB10001424053111904194604576583112723197574.html?mod=WSJ_hpp_editorsPicks_1

I found this article very interesting because it brings up the question of whether or not an officer needs a search warrant to use a tracking device in an investigation. This article challenges the Fourth Amendment, which prohibits reasonable searches and seizures, but which was written before the digital age, is keeping pace with times. I don't think they need search warrants to track a person. It was said that this technology also helps with missing people and people injured in accidents. Associate Deputy Attorney General James A. Baker said that these devices are "pen registers," which require a lesser order than a warrant because it's just being used to track a person, not wiretapping into information or conversation. I totally agree with Baker's side. This technology could be used effectively in future investigations.

"An Open Court": New York Times

In the New York Times editorial titled "An Open Court", the Reporters Committee for Freedom of the Press proposed that the United States Supreme Court begin allowing the public to inspect all documents filed in or by the court. According to the article, the Supreme Court's adoption of this rule would enhance the transparency of justice and nurture a healthy democracy. The First Amendment's right to free speech and press are intended to add to the idea of an informed self-government that is prevalent. The court contends, however, that certain records, especially in criminal cases, may be limited because of the overall nature of the case.

I personally believe that this rule would be very beneficial. Of the three branches of government, I think the Supreme Court does not have a clear rule that ensures transparency. This rule would compel the Supreme While most of the Supreme Court rulings and cases are published online and in different texts, allowing the public to inspect any and all documents filed in or by the court would be a good way for the public to inform itself. People would become more suspicious of the judicial branch if it began restricting access to information.

Click here to read the article!

-Natasha Daulat

Obama Care

In a recent article published in the Los Angeles Times, a federal appeals court in Virginia rejects two challenges to President Obama's healthcare law. The current administration believes that the healthcare law will be upheld by the U.S. Supreme Court who plans to decide the constitutionality of the law in 2012; meanwhile, Republicans assert that government cannot force individuals to purchase private products. In addition, if individuals do not purchase healthcare insurance coverage, they receive a pecuniary penalty that increases yearly. Citing the Anti-Injunction Act, the Virginia-based court argues that judges cannot decide on a case involving tax before it has been collected.

Even though the Virginia-based court struck down the challenges, other opponents of the healthcare law fervently deny the government's bold attempts to gain regulatory power of the healthcare industry. When Virginia Attorney General, Cuccinelli, filed a suit in U.S. District Court last year, a judge "declared the individual mandate unprecedented and unconstitutional." However, in a second decision by the appeals court, the court threw out the suit claiming that Cuccinelli had no standing because he was not personally affected by the outcome of the case. The question here, I think, is whether the government has the power to impose healthcare coverage to all citizens, and I would be interested to see what others think on this issue.

Cheers,
Chris Ayers

Link to the LA Times article: http://www.latimes.com/health/la-na-heathcare-ruling-20110909,0,3821769.story

On-Line Comments Also Welcome!

You are invited to share your observations on-line after reading the Wall Street Journal Article!

On-Line Article and Assignment for 9-7-11

Please review the attached on-line article for Wednesday, Sept. 7. Please also prepare a one page critique of the article with your comments and opinion. Bring a written copy of your paper to class on Wednesday.

http://online.wsj.com/article/SB10001424053111904716604576546403401376210.html