Lab Techs Required to Provide In-Court Testimony, For Now

Last year, I prepared and argued a series of appeals for a man convicted in Washtenaw County of sexual assualts near Eastern Michigan University.  He received life sentences in six separate cases.

The primary issue in each case was identification.  Due to the way the victims were raped, they never saw their attacker's face.  Condoms and other precautions minimized physical evidence left at the respective crime scenes.

In one of the cases, however, Washtenaw County Sheriff detectives were able to recover a small semen sample.  The Michigan State Police crime lab contracted with an out-of-state forensic laboratory that produced a report concluding the sample matched the defendant's DNA.

At defendant's trial, the Washtenaw County Prosecutor called the MSP lab tech and the out-of-state lab tech to testify about the matching DNA.  On appeal, I argued that defendant's Sixth Amendment right to confront witnesses was violated because the out-of-state lab tech relied on procedures and internal reports created from other technicians that were not present in court to testify.

Defendant's convictions were affirmed by the Michigan Court of Appeals and his petitions for writs of certiorari to the Michigan Supreme Court were denied last summer.  Around the same time, however, the United States Supreme Court decided Melendez-Diaz -v- Massachusetts.

In the Melendez-Diaz case, Suffolk County, Massachusetts law enforcement utilized lab "affidavits" concluding that a seized substance was cocaine.  The Supreme Court held that such an affidavit was insufficient to convict and that the lab technician must testify in open court.

In the few short months since the Melendez decision, law enforcement and prosecutors have raised an outcry about the increased costs and difficult logistics associated with producing the in-court testimony of lab techs.  The defense bar, on the other hand, has hailed the decision as a victory for individual constitutional rights.

In a rare move, the U.S. Supreme Court has scheduled oral arguments for January 2010 in Briscoe -v- Virginia; a case raising the same issue the high court so recently decided in Melendez-Diaz.  The New York Times has speculated that Briscoe will not overturn but rather, simply explain and clarify the Court's earlier ruling on lab technicians.  One such procedure would be to make lab technicians available for cross-examination rather than requiring their testimony in the prosecutor's case-in-chief.

At this date, my client is left with only a series of federal court habeas corpus petitions based on the Sixth Amendment.  Although his state-court remedies have been exhausted, the decisions of the United States Supreme Court, discussed above, will have a significant impact on his habeas petitions soon to be pending in federal court.

The slightly increased cost to the state of securing the in-court testimony of all the lab techs that worked on his DNA sample is a small price to pay for our collective constitutional liberties.

The goal of a criminal defense at trial is to force the government to prove the elements of their case.  The goal of all criminal appellate representation is to ensure that the defendant's trial and sentencing were fair. Without these safeguards, our Sixth Amendment right to counsel is meaningless.

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Kingsbridge Armory plans rejected, 45-1

The New York City Council yesterday rejected the Kingsbridge Armory redevelopment plans by a vote of 45 to 1, with one abstention. The vote turned primarily on developer Related's refusal to impose a living wage requirement on retail tenants, a stance that prevented finalization of a CBA between Related and the Kingsbridge Armory Redevelopment Alliance.

The vote was not altogether surprising, as the Bronx delegation to the city council has been actively pushing for the living wage requirement, but it nevertheless comes as a defeat to the Bloomberg administration, which saw the project as a boon to the borough. The rejection comes just about a week after an appellate court threw a wrench into Columbia's plans to build a new campus in West Harlem by holding that the project could not use eminent domain.

Under the New York City Charter section 197-d (available here), Bloomberg has the chance to file a written disapproval of the action, which can only be overturned by a two thirds majority of the city council. Council speaker Christine Quinn has stated that she has the votes to overturn any mayoral veto. If the rejection is sustained, Related will have 30 days to file a complaint for judicial review.

Judges Cannot "Friend" Lawyers Via Social Media Says Florida Supreme Court

A few of my Facebook friends are judges.  They've taken a low profile on the news feed.  Will Michigan's Judicial Tenure Commission, formed in 1968 via constitutional amendment, seek to outlaw such social network connections like the State of Florida?

In Florida, the Supreme Court's Judicial Ethics Advisory Committee issued a 11/17/2009 decision, holding that judges may not connect with attorneys on Facebook, or similar social networking media.  The Committee's decision is based on a Florida's judicial canon prohibiting the appearance that a lawyer, or anyone else, is in a special position to influence the judge.

Floridian judges, however, remain free to post comments to their non-lawyer "friends", and can develop "fan pages" to help with their reelection campaigns.  Only the attorney-judge connection is now taboo in Florida.
The Ethics Advisory Committee stated that, "judges cannot isolate themselves entirely from the real world and cannot be expected to avoid all friendships outside of their judicial responsibilities, some restrictions upon a judge’s conduct are inherent in the office."


Ethics are catching-up slowly with attorneys and judges in the web 2.0 world.  Some states, like Louisiana, New York, and now Florida, have taken a restrictive view of lawyer's and judge's permissible activities on such sites.  


Linked-In, Twitter, and Facebook remain available to our judges.  You can expect Michigan's never shy Judicial Tenure Commission to address the situation as soon as the right case rolls around.  Shouldn't be too long... Stay tuned.


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Washtenaw County Guardianship Spotlights Problematic Surrogate Arrangements

A recent Washtenaw County Probate matter received national attention over the weekend by appearing on the front page of the Sunday NYT, in an "above-the-fold" article by Stephanie Saul.  The guardianship case involved a surrogacy contract between a Kent County couple and the surrogate mother from Ypsilanti.

Amy Kehoe and her husband contracted with both egg and sperm donors, then arranged for Laschell Baker to serve as the gestational surrogate.  The Grand Rapids couple located Baker from the surromomsonline web site.  The would-be parents also contracted for services with IVF Michigan, a fertility clinic.

Neither the Kehoes nor Ms. Baker had any legally recognized biologic connection to the babies; twins born in July.  The babies spent their first month with their would-be parents, the Kehoes, but were then removed by the surrogate's successful probate petition for temporary guardianship.

Problems arose when the Kehoes appeared in the Washtenaw Probate Court for the agreed upon guardianship transfer from the surrogate to the Kehoes.  According to the NYT, Mr. Kehoe disclosed at the hearing that his wife had been treated for a mental disorder. 

In Michigan, the Surrogate Parenting Act prohibits contracts for gestational surrogacy services in exchange for fees as void on public policy grounds.  In addition, surrogacy for profit is a five-year felony.  The Act does not create parental rights for would-be parents who arrange for the creation of a baby.

In 1992, the Michigan Court of Appeals upheld the constitutionality of the Act in the case of John Doe -v- Michigan Attorney General, holding:

As overwhelmingly repugnant as the thought may be, unbridled surrogacy for profit could encourage the treatment of babies as commodities. Whatever sense of idealism that may motivate a fertile woman into hosting a pregnancy for an infertile couple is rent asunder by the introduction of the profit motive. It could be only a matter of time before desirable, healthy babies would come to be “viewed quantitatively, as merchandise that can be acquired, at market or discount rates.” O'Brien, Commercial Conceptions: A Breeding Ground for Surrogacy, 65 NCLR 127, 144 (1986). As the New Jersey Supreme Court commented in In re Baby M, 109 N.J. 396, 440, 537 A.2d 1227 (1988): “In a civilized society, there are some things that money should not be able to buy.” In our opinion, babies ought to be one of those things.

Ohio's Ninth Appellate District, in J.F. -v- D.B., 116 Ohio St 3rd 363 (2007), discussed but declined to follow the Michigan Court of Appeal's Doe case.   To date, only California allows enforcement of surrogacy contracts where the inchoate parents have no biological connection to the baby.

In the Washtenaw County case, the surrogate mother denies there was a commercial surrogacy contract, claiming she carried the twins gratutiously, only seeking reimbursement for her medical expenses.  Ms. Kehoe disputes this, blames Michigan's poor laws on this subject, and views Ms. Baker as a child-thief.

The Washtenaw Probate case draws attention to the lack of laws or guidelines relating to custody issues for children born under such circumstances.  In this case, although neither set of competing parents had a biological connection to the child, although neither set of parents filed for adoption, the surrogate was awarded custody.  

Ms. Kehoe has stated that her health issues are under control, but can no longer afford a sustained legal challenge to the surrogate's petition for guardianship of the twins.  She also claims that lawyers have advised her that custody of the twins is unlikely.  For her part, Ms Baker asserts that she never would have agreed to be the gestational carrier had she known about Kehoe's mental health history.

The case begs the question: does a surrogate mother have parental rights superior to those of a would-be parent that contracts for the creation of an infant?  Intermediate appellate review of the Washtenaw Probate Court, or perhaps some different procedural maneuvers, could have improved Kehoe's chances for temporary guardianship and possible custody.

This issue is sure to surface repeatedly in the context of gay couples, as the battle over gay marriage is waged on a state-by-state basis.  More gay couples want to complete their families with children of their own.  Surrogacy and adoption are the primary means to this end.  For an excellent introduction on the subject of gay surrogacy agreements, view this NYT video clip.  The American Bar Association, offering assistance to state legislatures and family court judges, has published a Model Act Governing Assisted Reproductive Technology.

Updates: The NYT's Ms. Saul stays on the case, reporting on a decision issued in the New Jersey surrogacy case over the holidays.  The New Jersey family court judge ruled that the gestational surrogate was the "legal mother" thus, she had the right to challenge custody of the twin girls she delivered in 2007.  Also see Nathan Koppel's posting on the case in the WSJ's Law Blog.  Stay tuned on this one, as the trial is scheduled for this spring.

With the 21st Century marching forward, some of our more traditional institutions, i.e. "family" and "marriage", are coming under pressure to evolve; to become more inclusive and less exclusive.  Litigated surrogacy contracts are but one marker in this social evolution.

What will the definition of "Mother" be at the end of this new decade?

More Updates: Check out local Detroit WDIV television's coverage of the Washtenaw County surrogate twins case on Sun. January 10, 2010.

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Congress vs NCAA

As the holidays approach, college football fans once again work up their annual lather over how to end the season, and crown a national champion; or not.

Last year was controversial.  This year features two undefeated teams (Boise State and TCU) that have no chance of playing each other under the present Bowl Championship Series.  So now, our Congress is getting involved?

This week, Joe Barton, (R-Texas) introduced a bill that would proscribe the promotion, marketing, or advertising of any post-season Division I college football game as a "championship" unless it is the final game of a single-elimination tournament.  Good luck with that.

One criticism of the proposed legislation is that it may violate the First Amendment of the United States Constitution.  While commercial speech may be closely scrutinized to prohibit untruthful or misleading messages, regular speech has the full protection of the First Amendment.

Some of you may be wondering, what is the government interest protected by this proposed bill?  Should Congress be discussing and debating college football?  Will President Obama sign it into law?

Perhaps we should simply put this down as another fine "slice of life" in the workings of our Democracy.  Besides, the annual debate among professional sports writers over who's best in football adds spice to the holiday season.

The Kingsbridge impasse continues

The Kingsbridge Armory Redevelopment Alliance is strongly opposing a compromise deal that would have supplemented wages with city money. "This is a bad deal for the Bronx and all New Yorkers and we are calling on the Council to vote it down," said Desiree Pilgrim-Hunter of KARA. "The so-called living wage fund that the Administration is proposing is nothing but a subsidized poverty fund."

Will there be a vote on the Kingsbridge Armory development today?

The New York City Council is scheduled to vote on the Kingsbridge Armory project today, but negotiations on the CBA and its controversial living wage requirement are ongoing. This has led members of the Bronx delegation to seek a postponement of the vote, possibly until Monday.

It seems that the Bronx delegation has proposed to subsidize living wage jobs, initially with the $5 million purchase price for the armory (which itself is an incredible subsidy to the developer), and thereafter through a 5% surcharge on the developer's profits. This way, living wages could be mandated on all retail tenants, but the costs would fall on the city and the developer, negating the developer's argument that the wage requirement would make it difficult to attract tenants.

Read the fine print

The New York Court of Appeals (the state's highest court) just issued a decision finding that a CBA-like agreement could not be enforced against the project's owner because, by its terms, the agreement had expired. (The lower court opinion is available here.)

The contract expressed quite clearly that it would expire after 10 years, but the corporation that was formed to implement the agreement challenged it anyway. One of the corporation's arguments was that it couldn't have intended such a short duration because the project couldn't have been completed within 10 years. The court didn't buy this, admonishing the corporation that it could have written a longer term into the agreement had it so desired.

While this case doesn't say anything about the general validity of CBAs, it does underscore the importance of paying attention to durational terms and other contract details. Most CBAs specify a term of 30 to 40 years, although the Gateway Center CBA has a duration of less than 10 years and the SugarHouse CBA will remain in effect indefinitely.

Supreme Court Makes Getting Your Day in Federal Court Much More Difficult

The case of Ashcroft -v- Iqal involved the aftermath of the 9-11 terrorist attacks in 2001.  The case is quickly becoming known, however, for placing significant procedural hurdles in the way of a litigant's access to federal court.

Justice Anthony Kennedy, left, wrote the 5-4 opinion for the high court, published last May.

The case was brought by federal detainees held, and allegedly abused, in make-shift detention centers in the Bronx shortly following the attacks on the World Trade Center. 
Javaid Iqball and other detainees filed suit in the United States District Court in New York City against former U.S. Attorney General John Ashcroft and former FBI Director Robert Mueller. 

Unlike most cases, the plaintiffs in Iqbal had the benefit of over 100 depositions prior to filing their suit.  Thus, the initial complaint has many pages of detailed allegations. 

Rule 8 of the Federal Rules of Civil Procedure states that a complaint must contain, "a short and plain statement of the claim showing that the pleader is entitled to relief." Although detailed factual allegations are not required, the Supreme Court has ruled in earlier cases that Rule 8 does require sufficient factual allegations, assumed to be true, that state a claim that is "plausible on its face."

Ashcroft and Mueller asserted their official acts were cloaked with "qualified immunity" and moved to dismiss the suit. The federal trial judge in Manhattan, in denying the FRCP 8 motion for summary judgment, held Iqbal's detailed allegations of abuse were sufficient to survive dismissal. The Second Circuit Court of Appeals agreed, rejecting a heightened pleading standard in a well-reasoned 92-page opinion, concluding:

Nevertheless, as a result of the Supreme Court’s precedents interpreting Rule 8(a), it is possible that the incumbent Director of the Federal Bureau of Investigation and a former Attorney General of the United States will have to submit to discovery, and possibly to a jury trial, regarding Iqbal’s claims. If so, these officials -FBI Director Robert Mueller and former Attorney General John Ashcroft -may be required to comply with inherently onerous discovery requests probing, inter alia, their possible knowledge of actions taken by subordinates at the Federal Bureau of Investigation and the Federal Bureau of Prisons at a time when Ashcroft and Mueller were trying to cope with a national and international security emergency unprecedented in the history of the American Republic.

The Supreme Court disagreed with the Second Circuit's rationale, reversing the intermediate appellate court's decision. Many legal professionals now fear that Iqbal's failure to state a claim will be the blue print for federal judges to routinely prune their dockets of all-manner of plaintiff's claims.

In reversing the Second Circuit, Justice Kennedy's opinion stated:

Iqbal’s pleadings do not comply with Rule 8... Several of his allegations—that petitioners agreed to subject him to harsh conditions as a matter of policy, solely on account of discriminatory factors and for no legitimate penological interest; that Ashcroft was that policy’s “principal architect”; and that Mueller was “instrumental” in its adoption and execution—are conclusory and not entitled to be assumed true. Moreover, the factual allegations that the FBI, under Mueller, arrested and detained thousands of Arab Muslim men, and that he and Ashcroft approved the detention policy, do not plausibly suggest that petitioners purposefully discriminated on prohibited grounds. Given that the September 11 attacks were perpetrated by Arab Muslims, it is not surprising that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks would produce a disparate, incidental impact on Arab Muslims, even though the policy’s purpose was to target neither Arabs nor Muslims. Even if the complaint’s well-pleaded facts gave rise to a plausible inference that Iqbal’s arrest was the result of unconstitutional discrimination, that inference alone would not entitle him to relief: His claims against petitioners rest solely on their ostensible policy of holding detainees categorized as “of high interest,” but the complaint does not contain facts plausibly showing that their policy was based on discriminatory factors.

In the 18-months since the Iqbal decision, the case has attracted the attention, and ire, of many legal professionals fearful this precedent will block access to federal court. In particular, plaintiffs alleging employment discrimination now face a higher hurdle at the pleading stage.

Case in point: last month the Senate Judiciary Committee grilled the former U.S. Solicitor General (the government's litigator) about the case. The Democratic senators complained that the case will prevent legitimate cases from seeing the light of day in federal court.

Michigan Connection: U.S. Representative John Conyers has co-sponsored a bill seeking to re-write FRCP 8(a) such that litigants bringing their claims will not face sure dismissal based on the high court's Iqbal decision. Stay tuned.

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Second Amendment May Gain Some Ground

Nearly a decade post-9/11, the forgotten amendment of the U.S. Constitution, the Second Amendment's right to bear arms, may gain some ground here at the beginning of the 21st Century.  Several state attempts to erode this right have been subjected to successful constitutional challenges.

The United States Court of Appeals for the District of Columbia, in Robert Ord -v- District of Columbia, reversed a trial court's dismissal of one such gun owner's challenge, remanding the case back to the lower court for further proceedings.

Robert Ord, a licensed investigator, also licensed to carry a weapon in Virginia, will now be able to develop his case; a case that asserts that the mere threat of prosecution in nearby District of Columbia, where he frequently works, constitutes damages.  One interesting aspect of this case is that Ord was never arrested, nor were his weapons seized.  He claims the objectionable government action was the issuance of a warrant; a warrant Ord claims was obtained by the police in bad faith.

This spring (March 2010), the United States Supreme Court will hear oral argument in a gun-ordinance case from Illinois, McDonald -v- Chicago.   Michigan's Attorney General recently filed an amicus brief in the case.  In the Chicago gun case, the issue for determination by the Supreme Court is whether the Second Amendment is incorporated (thus applicable) to the states through the Fourteenth Amendment's Due Process clause such that Chicago's gun-ordinance banning guns in private homes is unconstitutional. 

A good primer on this age-old issue can be found on the official blog of the U.S. Supreme Court; known as SCOTUS.  The high court's blog post surveys the historical context of the Second Amendment with a focus on the modern ordinances and state laws that attempt to limit gun possession due to it's correlation with violent crime.

The high-court petitioner(s) in these gun cases are citizens claiming a constitutionally-protected right to bear arms. They assert that the state cannot unreasonably restrict this right with its laws or ordinances.

These cases pit the power of the government against the fundamental liberty interests of the individual.  The tension between the two continues to be the glue of our Democracy, just as it was in colonial times when these concepts were debated in Philadelphia, Boston and Washington.

In the decade since 9/11, various powers of the federal government have expanded under President Bush. At the state level, however, the individual right to bear arms may hold ground. The McDonald and the Ord cases are crucial milestones for the highly revered Second Amendment.

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Opposition to government-designated CBA coalition in Santa Rosa

The Accountable Development Coalition (ADC), which negotiated the recent Sonoma Mountain Village CBA, is coming under more fire. It seems that the SMART rail district, a quasi-public entity, is requiring developers of the New Railroad Square project to negotiate a CBA, specifically with the ADC. Attention has also been brought to the fact that the Sonoma Mountain Village CBA provides funding for the ADC: $5,000 upfront and $6,000 per year after that. 

This has some people upset. As an editorial in the Press Democrat explained: "The coalition represents many important interests, but we don't believe it speaks for the entire community and, as a private organization that potentially could stand to benefit financially from such an agreement, it should not be allowed to dictate terms on a public project like this."

Regarding the issue of who speaks for the community, ADC critics have a good point. No coalition is ever going to be able to represent the whole community, and even if this were possible, the government probably shouldn't be involved in deciding which coalitions get to make CBAs. 

Fortunately, the developers aren't being limited to negotiating with the ADC, and they've reached out to other community groups interested in being involved in the CBA. Kudos to them. The ADC would do well to open itself up as well.

Regarding the payment issue, CBA coalitions are regularly advised not to accept direct funding from developers. John Goldstein of the Partnership for Working Families has explained as much:   

As a matter of principle, groups in our network don’t take money from developers. We want to avoid any appearance of a conflict of interest.... We have advocated in CBAs that developers give to the communities they’re developing in.

So the ADC may want to revise its policies somewhat. But critics should also acknowledge that the ADC is a mostly volunteer organization and that $6,000 a year isn't all that much. In other words, this doesn't seem like the type of case where coalition groups are getting bought off. The Atlantic Yards project, in contrast, involves much larger grants to all of the organizations that signed the CBA. (See the Atlantic Yards Report for more on that.)

Finally, there has been more criticism that the ADC has too much political influence and that it will scare developers away from non-union contractors. This is a straw man argument. If non-union contractors are going to suffer because of precedents set by the Sonoma Mountain Village CBA, the problem is that the CBA provisions are appealing to developers and lawmakers, not that the ADC has somehow improperly influenced government decision makers.

More push back against CBAs in Sonoma County

Apparently, New Yorkers aren't the only people to be skeptical about CBAs. Bucking the California trend, the CBA for Sonoma Mountain Village has not been well received.

Last month, CBAs were accused of creating an anti-business climate. An op-ed this week calls them anti-competitive "special interest giveaways," and claims that coalitions use "power politics" to prevent non-union contractors from winning bids. The article's author, John Corry, is on the board of the Associated Building and Contractors Golden Gate Chapter.

The way it works, Mr. Corry says, is that supposed "community" groups force developers to enter into project labor agreements (PLAs), which require union labor. Developers weigh the added costs of union labor against the likely costs of community groups' threatened litigation, and often give in. One commenter helpfully calls this "greenmail."* This manipulative behavior doesn't just cost the developer more, it also forces non-union contractors out of the bidding process.

Mr. Corry makes some good points: a CBA doesn't represent the community just because it says it does; CBAs often use "power politics;" and they can favor special interests.

But Mr. Corry's article is tall on criticism and short on context.

CBAs, by their nature, favor special interests, but this is not necessarily bad. The development process has long been dominated by different and more powerful interest groups: tycoons, monopolists, propertied gentry, chambers of commerce, building trades associations, national development companies, etc. Unions can be put on this list too, but that doesn't reflect on their inherent societal value. Mr. Corry also fails to recognize that CBA coalitions represent more than union viewpoints. Commonly, coalitions bring together neighborhood groups, environmentalists, civil rights supporters, faith-based organizations, urbanists, affordable housing advocates, community development groups, living wage supporters, etc. CBAs give these historically disempowered groups a way to engage successfully in interest group politics, and the diversity of viewpoints that they bring to the table can ideally strengthen the democratic nature of the planning process.

Similarly, the fact that CBA coalitions use leverage, or power politics, to achieve their goals is not necessarily manipulative; developers, after all, certainly use political influence to their own advantage as well.

Mr. Corry's complaints that PLAs and CBAs end up costing taxpayers more is arguable. I'm not one to make absolute statements about this type of economic issue, but I will point out that many government entities, including New York and the White House, have determined that PLAs can be an effective method for lowering construction costs and decreasing the likelihood of labor disturbances. Moreover, PLAs can help to ensure that workers receive living wages and other labor benefits, even if they are not part of a union. (PLAs, contrary to Mr. Corry's statements, do not always foreclose non-union contractors and non-union employees from working on projects. See here for more details.) Regardless, PLAs are typically negotiated separately from CBAs, and even when they are included, they are but one negotiation element among many others.

Finally, Mr. Corry fails to acknowledge the breadth of qualitative and quantitative positive impacts that CBAs can have. It may be true that some CBAs will be astroturf, or unenforceable, or overly expensive, or extortion, but Mr. Corry's generalizations are too simplistic to give us any help in avoiding such outcomes.

* "Greenmail" it seems, is already a term for a type of corporate takeover strategy. (Wikipedia.) A quick google search will get you only a few results using greenmail to mean environmental blackmail. (National Right to Work Committee; NYT (quoting Mr. Corry's organization); The Register.)

New lawsuit questions the Atlantic Yards CBA

A lawsuit filed against Atlantic Yards this week, while not directly challenging the CBA, calls the agreement's integrity into question. In particular, the petition alleges that Empire State Development Corporation (ESDC), the project's quasi-public sponsor, and Forest City Ratner (FCR), the developer, ignored calls from the community for more public input and participation:

53. Throughout the review process, the public . . . was provided with only the most limited opportunity to participate in the review of the Project, even though the massive development would admittedly change significantly the character of the area and impose on adjacent neighborhoods very significant environmental impacts. This was due significantly to the use of ESDC as the titular sponsor of the Project; under its legislative mandate, all that was required in terms of public involvement was a legislative public hearing on the GPP [general project plan] and the DEIS [draft environmental impact statement]. And neither ESDC nor FCRC extended themselves beyond the explicit mandate. Indeed, in voting to disapprove the Project, the local community board based its decision on, among other things, “a failure to involve the community board and the community in a meaningful way; misleading and overstating the involvement of the public in the process.” 

54. Following ESDC’s 2006 approval of the Project, concerned civic groups and community organizations began calling for more community involvement, increased transparency of decision-making and reform of project governance. This led in August 2006 to the formation of a group of Brooklyn and citywide civic associations and affordable housing groups, including the petitioners, sponsoring an initiative known as BrooklynSpeaks, which in turn in August 2007 released a proposal for a revised governance structure that would allow for more openness and more meaningful community participation in decisions regarding the shaping of the Project. This proposal was subsequently endorsed by the state and city elected officials from the area and in the spring of 2008, ESDC offered to form a community advisory council. However, it refused to identify any role for the council in future decision-making, and the offer came to naught as local elected officials were unwilling to appoint representatives on these terms. Subsequent efforts by petitioners and others to open up the ESDC process also proved unsuccessful. 

The affidavit filed with the petition more explicitly criticizes the CBA, as pointed out over at the Atlantic Yards Report. It describes how the developer held a meeting for the purpose of creating BUILD, an organization that would later help support the CBA. It also says that community groups asked the developer to reopen the CBA, as the agreement failed to cover many neighborhood impacts. Although Forest City Ratner suggested that it might enter into a "neighborhood benefits agreement," it never followed through.

Lance Freeman, an urban planning professor at Columbia, has been more explicit about the dubious nature of the Atlantic Yards CBA. In 2007, he wrote:

At first glance, CBAs might appear to be welcome tool for fostering a more inclusionary planning process. In an attempt to garner support for the mega-project Forrest City Ratner entered into the CBA with several community based organizations the most prominent of which are ACORN and BUILD. . . .

While the CBA does at least give some of the most disenfranchised residents an opportunity to reap some benefits from the project, this is an undemocratic way to insure community input into a planning process. The signatories to the CBA may indeed represent a disenfranchised segment of the community. They may be organic members of the community. But they may not. The point is there is no mechanism to insure that the “community” in a CBA is representative of the community. If the signatories to the CBA were simply viewed as another interest group, that might be ok. But the CBA is being presented as illustrative of the development’s community input. Public officials are posing for pictures with the developer and signatories to the CBA, giving the impression that the community had significant input into the planning Atlantic Yards. This is not necessarily the case.

In fact, New York City has a planning process to insure community input, the Uniform Land Use Review Procedure (ULURP). The Atlantic Yards skirted the ULURP requirements because as a state entity the MTA is not subject to local land use regulations. The CBA, however, cannot be viewed as a substitute for a true planning process that includes community input. If a developer is proposing a project that will unduly burden the community, exacting benefits in exchange for tolerating these burdens is fine idea. Ideally, this would be done as part of a democratic planning process. When negotiated by private organizations, however, this is symptomatic of a flawed planning process. When CBAs are used in place of an inclusive planning process they run the risk of legitimating the very process they are supposed to counteract, planning and development that disenfranchises.

Mixed news from Pittsburgh

The good news in Pittsburgh is that construction has begun on a hotel that will complement the new Penguins arena, and because of the CBA's local hiring provisions, Hill District residents will have an advantage in getting the some 200 temporary and 100 permanent jobs.

The city council also introduced prevailing wage legislation this week. If passed, the wage requirement will apply to city contractors and some private developments receiving city subsidies. The proposal is facing typical criticisms that it's anti-business, and getting typical support from labor, environmental and faith-based groups that want to see an end to poverty wage jobs.

In less encouraging news, the grocery store deal put together with the help of $2 million from the Penguins CBA has fallen apart, apparently because of the store owner's health problems. While Pittsburgh United and city officials are optimistic that they will find another grocer, Hill District residents, who haven't had a grocery store in decades, may find themselves waiting that much longer.

More support for living wages at the Kingsbridge Armory

If yesterday's city council meeting foreshadows the city's ultimate decision on the Kingsbridge Armory redevelopment plans, the developer may be in for a disappointment. According to one account, "virtually the entire Zoning and Franchising Subcommittee, (which will be the only Council committee to hold a hearing on the project) grilled company representatives on the living wage issue." Another source called it "a major road block." 

The developer, Related Cos., and the Bloomberg administration have been fighting against the living wage requirement for months, but the Kingsbridge Armory Redevelopment Alliance, with strong support from Bronx Borough President Ruben Diaz, seem to have succeeded in persuading city council members not to let the project go forward without a CBA requiring a living wage. At the meeting, city council members contended that not including the wage provision would make the heavily subsidized project into "an economic exploitation project" and would "keep the neighborhood poor." Other council members expressed skepticism at claims that the project wouldn't be commercially feasible with higher wage standards. Diaz declared that "these jobs must be created in the right way. The old model, that any job is better than no job, is no longer acceptable."

The city council put off its decision in order to have more time to question city officials about the project. A public hearing will be held on Nov. 23, and a vote on the project will be made by Dec. 9.

Support growing for the Kingsbridge CBA living wage requirement

The city council is set to vote in December on the Kingsbridge Armory redevelopment proposal, and support seems to be growing for a living wage. In CBA talks between the Kingsbridge Armory Redevelopment Alliance and the Related Cos., the living wage issue has led to an impasse, but enough pressure from city council members might persuade the developer to agree to the living wage requirement or some sort of compromise.


In addition to support from the Bronx city council delegation--and the rest of the city council often votes in accordance with the area's council representatives-- Queens council member and comptroller-elect John Liu has come out in favor of the living wage requirement, emphasizing the inadequacy of low wage jobs and suggesting that Related has no grounds for compliant given the amount of public subsidy it has received.  Brooklyn council member Charles Barron has also said that he supports the CBA and the living wage provision, although he recognizes that this is an improper basis upon which to base his vote on the land use application. (This point was explained by Amanda Burden, chair of the city planning commission, a few weeks ago.)

U.S. Supreme Court to Decide Juvenile Lifer Cases from Florida

On Monday, the U.S. Supreme Court heard oral arguments in two consolidated cases from Florida involving life sentences for juvenile offenders: Graham v Florida and Sullivan v Florida. What makes these cases interesting, and thus important, is that the victims in the cases were not killed, yet the offenders received life sentences without parole. A published decision will follow soon.

Here in Michigan, pursuant to a network of statutes, a juvenile may be tried as an adult. Michigan also has a variety of offenses which call for life sentences. There are no juvenile offenders, however, serving life sentences for non-leathal offenses in Michigan.

The question before the Supreme Court this week was whether a life sentence should be flat-out banned for non-lethal juvenile offenders. Chief Justice Roberts seemed to be lobbying his fellow-justices to provide the juvenile offender the opportunity to emphasize his "youth" under an 8th Amendment "cruel and unusual punishment" analysis. Roberts' approach was an alternative to the outright ban sought by the attorneys for the youths. He seemed to favor a "proportionality" analysis.

Full analysis of Justice Roberts' approach to the argument in this case is found on the SCOTUS blog.

There are about 100 such youth sitting in prisons on life sentences for non-lethal convictions; most of them in Florida, which has approximately three quarters. A recent NYT article suggests that tourism in the state may have been a factor in so many harsh sentences handed down to youths committing serious crimes in Florida.

Professional court watchers sensed sympathy for the youthful convicts from some of the Justices. A few seemed to favor a constitutional prohibition of such sentences. The rationale for the ban is cruel and unusual punishment. A secondary argument is that such youthful offenders could benefit from habilitation.

Other (more conservative) Justices seemed less sympathetic, wondering where the age line should be drawn.

Without a clear majority on this issue, our prediction is that the court will decide the case down ideological lines, resulting in a plurality decision (i.e. no clear majority in the opinion, with several justices writing separately from their colleagues).

The case also calls into question the age-old tension between states' rights to define their own criminal laws in accord with local mores and sentiments, and the constitutionally guaranteed rights of all citizens, regardless of the criminal code of the state in which they are convicted.

We will await the high court's decision and keep you posted on the result along with some of the other cases we are following. In the meantime, if a juvenile member of your family has been accused of a serious crime, contact our firm to discuss your options.

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Two Day Jury Trial in Oakland Circuit Results in Not Guilty Verdict

Just before the holiday, I heard the words that a defense attorney craves; "not guilty". I was in a two-day jury trial before Oakland County Circuit Judge John McDonald. I think he's a great judge, mostly because I've never lost a trial in his courtroom. This one made four straight.

The odds seemed stacked against acquittal, as usual. The principal charge was assault with intent to do great bodily harm (less than murder). The second count, commission of a felony with a firearm, carried a mandatory two-year minimum prison sentence upon conviction.

My client was a middle-aged woman with no criminal record. The alleged victim, however, had done 15-years in prison for armed robbery. After an evening of drinking and socializing, the two (in an on-again off-again relationship) retreated to my client's home. An argument boiled over and two shots were fired from a revolver. One shot hit the victim in the foot.

At trial, my client took the stand and testified she shot the weapon toward the "victim" in self defense. The jury believed her, and she avoided the two-year mandatory prison sentence.

One of the keys to the acquittal was effective cross-examination of the so-called victim. He was made to look foolish, admitting to contact with and agression toward my client.

The case illustrates how the tough plea policies of the Oakland County Prosecutor's office can sometimes force a jury trial.  In this case, the client was most concerned about doing two years in prison. She could appreciate the seriousness of the gun shots, and the significant injury one of the bullets did to her former boyfriend. Willing to do some jail time on an assault guilty plea, she could not bring herself to sign-up for two years in prison. But that's what the prosecutor wanted her to do.  They did not offer to drop the felony-firearm charge.

So the defendant rolled the bones and exercised her right to trial. In this case, it was worth the effort. This client saved two years of her life.

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Students selected for Syracuse CBA job shadowing program

The Alliance of Communities Transforming Syracuse (ACTS) and Syracuse Alliance for a New Economy (SANE) have selected the first group of students to participate in the job shadowing CBA that was negotiated earlier this year. The students will shadow construction workers as part of a $1 billion school renovation project, giving them an opportunity to gain skills and gauge potential career paths.

Buffalo's CBA Coalition gets some support from electeds

Buffalo common council members Michael J. LoCurto and Joseph Golombek Jr. have thrown in their support for a Canal Side CBA. As reported in the Buffalo News:

Committee Chairman Michael J. LoCurto of the Delaware District said he supports such an agreement and will broach the issue with officials from the Erie Canal Harbor Development Corp. when he meets with them next week. LoCurto said he often fears that Buffalo is so "desperate" to create jobs, it doesn't always pay enough attention to the types of jobs that are created.

North Council Member Joseph Golombek Jr., one of the Council's most vocal opponents of the Bass Pro project, said he's taking a close look at the guidelines proposed by the Coalition for Economic Justice.

Child Support Reduction & Collection Requests Flood Friend of Court

The pain is inflicted on both sides of the fence in family court cases across the state.  For those paying child support, and for its recipients, the depressed economy in Southeast Michigan is taking a toll.   

As a recent article in the Detroit News makes clear, the Friend of the Court in counties accross Michigan are scrambling to field the flood of requests filed to reduce child support, or to enforce an existing support order.  Most of the parents seeking a support reduction are doing so because they've either lost their job or have been handed a pay-cut.

Child support in Michigan is calculated using an algorithmic equation known as the Michigan Child Support Formula.  This formula is based on three main inputs: the payor's income, the recipient's income, and the number of overnight parenting sessions for the payor.  A payor's support obligation is modifiable if there is a "change in circumstance" to justify the request.  One such justification is when a payor, through no fault of his own, loses a job or suffers a significant decline in income. 

In difficult economic times, county Friends of the Court (the administrative arm of the family court) experience an increase in the volume of motions from payor's and custodial parents alike, seeking relief from the financial pain.  In the case of a payor, the support automatically deducted from his paycheck may exceed more than half of his take-home, especially when that "take home" is an unemployment check.  Across town, the custodial parent is used to receiving a certain amount of support to help make ends meet for the children.

When a party files a motion to modify his or her support, the matter is reviewed by a Friend of the Court Referee (a quasi-judicial official) before it goes to the family court judge.  Most FOC Referees utilize support specialists; professionals trained in the application of the child support formula.  The court rules provide for the Referee to make a recommendation to the judge regarding whether the payor's support should be reduced or not.

Each November, as the year-end approaches, parties realize there are only a few weeks left to get their matter heard before the courts shut down for the holidays.  Many scramble to file motions, hoping they can obtain some financial relief.  Wanting to save money, they forego hiring an attorney.  When a party files a motion on their own behalf, however, it can take quite a long time before the FOC grants them a hearing.

One advantage to hiring legal counsel is that the attorney knows how to get a client's motion on the dockett by the end of the year.  In addition, family law attorneys know the many angles and tricky aspects of the support formula, and how to apply that formula to a variety of compensation packages and parenting schedules.

According to the Detroit News, child support arrearages rose by approxiamtely $113 million from 2005 to 2008, although the number of support payors decreased.  These support arrears are expected to increase as unemployed payors lose their state benefits.  The situation has attracted the attention of Congress, which is proposing legislation designed to extend unemployment benefits for child support payors.

If you or a family member need relief from an acute child support situation, contact our law firm for immediate relief.  Our firm handles dozens of such cases throughout the year.  Our service is excellent and our fees reasonable.

info@clarkstonlegal.com
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Buffalo Partnership for Public Good calls for CBA

The Partnership for Public Good (PPG), which counts more than 50 partner organizations, is calling on Empire State Development Corporation and its subsidiary, Erie Canal Harbor Development Corporation (ECHDC),  to incorporate CBA requirements into its Canal Side project plans.

Canal Side is a 20 acre, $300 million mixed use development that's intended to revitalize Buffalo's waterfront. ECHDC, a quasi-public entity, will almost certainly award subsidies to Bass Pro and other private corporations that take part in the development. PPG wants to see community benefits attached to these subsidies, "to ensure that the massive public investment in the project produces authentic public goods." The partnership's priorities include living wage jobs, sustainable design and operations, support for local businesses, and affordable housing.

Reactions to the Sonoma Mountain Village CBA

The Sonoma Mountain Village CBA, announced last week, has already garnered some negative reactions. Lisa Schaffner, the mayor of Healdsburg, California, and the executive director of the Sonoma County Alliance, a public interest group and political action committee, is one of the agreement's critics. She believes that CBAs should only be negotiated for projects receiving public subsidies, and that the CBA for the privately financed Sonoma Mountain Village sets a precedent that could harm the area's business and development climate.

On the other hand, the developer and CBA coalition members see the agreement as contributing to the project's sustainability goals. The developer, Codding Enterprises, has pointed out it's "not an average kind of developer," and that "there is no one-size-fits-all way of looking at development." I would add that the chances of the CBA becoming a precedent for all privately financed developments is limited, given that CBAs are voluntary agreements. If a developer chooses to emulate Sonoma Mountain Village and pursue a triple bottom line, or if a developer wants to obtain community support or quell community opposition, a CBA may be a good fit. But entering into a CBA is not a mandatory part of the land use approval process, and experience with CBAs has demonstrated that developers often resist negotiations.  

Moreover, I would ask whether it really matters if a project receives subsidies. Sure, the receipt of public funds strengthens the case for a CBA, but the impacts of the project on the community will be the same regardless of how it's financed. And I question whether Sonoma Mountain Village is completely financed by private sources; most billion dollar projects receive some form of subsidy, whether it takes the form of infrastructure, tax abatements, environmental remediation, below market property sales, affordable housing incentives, or outright cash grants.

And setting a precedent for CBAs won't necessarily scare developers off. CBAs offer a lot of benefits to developers: they help to achieve positive community relationships; they ward off costly litigation and development delays; they can help a developer to meet sustainability and social equity goals; and they're great for public relations. 

But I would agree that CBAs set precedents for community coalitions, which can use the clout of past victories to attract new members, gain public and political support, and increase their leverage in future CBA negotiations. The Accountable Development Coalition, which neogiated the Sonoma Mountain Village CBA, has done just that. It's currently in talks with the developer of the New Railroad Square Project.

Kingsbridge Armory plans get approval from the planning commission; still no CBA

In New York, the city planning commission voted 8-4 yesterday to approve the Kingsbridge Armory redevelopment plans, despite Bronx Borough President Ruben Diaz's recommendation to reject the proposal unless the developer entered into a CBA. Amanda Burden, chair of the CPC, explained candidly that the CBA issue was not an appropriate one for the commission to consider: “For this application, as we have consistently held with other applications in the past, the issue of a Community Benefit Agreement including commitment to living wages should not weigh in our consideration of the merits of the land-use application for rezoning, disposition of City-owned property, and changes to the City Map.” The city council now must make a final decision on the project within 50 days.

The SugarHouse CBA

** This post was substantially updated on Jan. 18, 2010. Contact me here to obtain the archived original post. **

Plans for building new casinos in Pennsylvania have caused quite a stir in recent years (see here for information about the state's Gaming Control Board and here for opposition to the state's gambling policies).

The SugarHouse Casino project

SugarHouse was one of the casinos granted a license in late 2006, after gambling was legalized in the state in 2004. It now has plans to build a casino/entertainment complex on the waterfront in Philadelphia. Much of the opposition to the plans stems from anti-gambling sentiments, but other concerns have been raised. The Pennsylvania Historical and Museum Commission, for example, wants a more thorough review of the area, which is believed to include the site of a British fort from the Revolutionary War. And the Mayor of Philadelphia, Michael Nutter, has refused to pay the estimated $14 million in annual policing costs for SugarHouse and Foxwoods, another casino planned for Philadelphia.

The Pennsylvania Supreme Court pretty much approved the SugarHouse project in December 2007, when it held that the City Council's failure to act on its zoning and land use requests amounted to "deliberate inaction." (A similar decision was later issued regarding the other casino proposed for Philadelphia, Foxwoods.) The court ordered the city to designate the site as a commercial entertainment district and to give final approval to the project's development plan. (See this article in the Philadelphia Inquirer for a good summary, or read the whole opinion here.) In January 2008, Mayor Nutter attempted to revoke one of SugarHouse's licenses, claiming that the previous administration had rushed the process to get it approved before Mayor Nutter took office. The Pennsylvania Supreme Court dismissed the city's claims on standing grounds in June, 2009.

Community outreach

While the city was trying to get more control over the casino permitting process, SugarHouse began to campaign for public support. It committed to fund emergency services, use green building techniques, make payments to the city of $67 million over ten years, make sewer improvements, develop a comprehensive transportation plan and an economic opportunity plan (to increase minority and women participation in the casino's construction and operation) and to construct a publicly-accessible waterfront promenade as part of the project.

Despite these promises, a lot of people have negative beliefs about the impacts of casinos, including, in Philadelphia, the community group Casino-Free Philadelphia. As a way of getting additional public support, SugarHouse pledged to enter into a CBA.

Negotiations were held primarily with two community groups, FACT (Fishtown Action) and New Kensington Community Development Corporation. FACT was labeled as astroturf and "merely a front for SugarHouse", but it's unclear how much of the opposition to the CBA was really motivated by anti-gambling sentiments (rather than concerns about development impacts).

The Special Services District

The SugarHouse CBA is unique in being structured around a nonprofit Special Services District, although the SSD is somewhat similar the LDC that negotiated the Columbia University CBA. The SSD covers Fishtown, Northern Liberties, Old Richmond, and South Kensington, and its mission, as stated in the articles of incorporation, is “to mitigate the impact of Sugar House Casino functions and activities; to address other issues which affect the quality of life within the District; and to engage in any other activities which may lessen community tensions, combat community deterioration and improve the community as a place to live and work....” The District is controlled by seven voting members on its board of directors, all of whom serve without compensation. Voting members may not hold other public offices. These board members are elected by residents of the covered neighborhoods, save for the inaugural board. (The inaugural board members are to be appointed by two of the community groups that were involved in negotiations.) However, there’s also a nonvoting advisory board, made up of local officials.

Information about the SSD board members can be found here.

Interestingly, the Sugar House CBA has an indefinite term. The agreement is also light on consideration. Although the District agreed not to use any funding received by SugarHouse for litigation against the casino, the CBA specifically permits any District member to oppose the project in her individual capacity.

Annual funding

Under the CBA, SugarHouse agreed to provide substantial annual funding to the SSD: $175,000 annually between the project’s approval and opening, and $1 million annually after opening, to be renegotiated after 15 years. The money will be distributed for community programs, but the agreement doesn't include any clear guidelines as to how the money should be spent. The lack of guidelines could be interpreted as nontransparency, but it could also be seen as a way to maintain flexibility in funding decisions.

Other CBA provisions

• SugarHouse will establish a public complaint hotline for residents of the immediate neighborhood;
• Union labor will be used for construction of Phase I;
• SugarHouse agrees to a policy of union neutrality;
• Local union members will be able to sign up for preferential consideration by the construction manager; subcontractors (who will make most of the hires) will not be required to give a preference to local workers, but they will be encouraged to do so;
• SugarHouse will hold at least one job fair prior to opening to inform local residents of permanent job opportunities and eligibility requirements, and it will make good faith efforts to hire neighborhood residents;
• SugarHouse will create an internship program for neighborhood students with at least two available positions; SugarHouse will also offer a job training program for non-college neighborhood residents, with at least two available positions;
• SugarHouse will offer job counseling services to neighborhood residents for a year prior to opening;
• SugarHouse will give employees special training relating to problem gambling and alcoholism (employees will be trained how to recognize and deal with compulsive gamblers); SugarHouse will also provide brochures on problem gambling and posters to the District for distribution in the community;
• SugarHouse will use good faith efforts to hire local contractors, vendors, and suppliers;
• SugarHouse will use good faith efforts to ensure that riverfront access is not limited for more than 6 hours per week due to private functions (e.g., weddings, concerts);
• SugarHouse will distribute “reward” points that will be redeemable at local businesses, in order to stimulate spinoff economic activity;
• Meeting space for the SSD will be provided after construction of Phase II;
• SugarHouse will provide free parking to minimize its employees’ and patrons’ use of neighborhood parking spaces;
• SugarHouse will give the SSD $5,000 to use for free car washes during construction;
• SugarHouse will provide security on-site, for the public waterfront, and possibly outside the project if deemed necessary;
• SugarHouse will provide its own emergency medical services.

Links

• The SugarHouse CBA and SSD incorporation papers
• Project documents (e.g., development agreement, EIS, presentations)

CBA to cover residential development in Rohnert Park, Cal.

It was reported this week that Sonoma Mountain Village, a mixed use residential development proposed for a 200-acre former industrial site, will be covered by a CBA. The agreement was negotiated by the Sonoma County Accountable Development Coalition, which includes labor, housing and environmental groups.

Sonoma Mountain Village, which will have nearly 2,000 homes and cost $1 billion, hopes to be a sustainable project. In addition to following the city's green building ordinance, the project is the first in north America to be endorsed by One Planet Communities. Brad Baker, president and CEO of developer Codding Enterprises, suggested that the CBA fits into the company's sustainability mission. “When we originally came up with the concept of Sonoma Mountain Village," he said, "we wanted it to be something special and unique and be a mixed-use project and be green and sustainable.... By entering into these agreements, we are not just talking about it — we are doing it.” As another Codding Enterprises representative put it, "It all touches on social equity."

The CBA includes a number of important benefits, including a commitment to pay living wages, a promise of union neutrality, and a 15% inclusionary housing requirement. Other requirements related to transportation, environmental reviews, land use, water use, and open space preservation are included in the CBA.