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Federal Judge Rules Attorney General Sessions Cannot Withhold Grants from Sanctuary Cities

Out in Illinois, a federal court has recently ruled that Attorney General Sessions cannot fully follow through on his threat to withhold federal funds from so-called sanctuary cities. In a campaign and presidency that has made immigration one of its most spoken on and contentious issues, the idea of sanctuary cities-cities refusing to fully cooperate with immigration investigations-is something that President Trump has revisited again and again. Trumps’ own steps to take rights away from immigrants-such as his recent DACA declarations-have only exacerbated the matter as the number of cities with laws limiting how state law enforcement may interact with immigration agents and ICE grows.

Several states such as California, Vermont, Connecticut, and Rhode Island have laws in place limiting police cooperation with federal immigration authorities. However, it is Chicago-a state with a similar law of its own-that has brought the first successful challenge to Sessions’ immigration compliance requirements on federal funds-specifically the Byrne Memorial Justice Assistance Grant Program (better known as the Byrne JAG grant).

The ruling out of the US District Court for the Northern District of Illinois has determined that part-but not all-of the restrictions AG Sessions has place on Byrne JAG grants are unconstitutional-an undeniable, if not complete, victory for cities with laws like Chicago’s across the nation. The ruling places a nationwide stop on the portions of the restrictions the court ruled unconstitutional.  Let’s look at the limitations Sessions attempted to place on these grants and the court’s ruling.

attorney general sessionsSessions’ Restrictions on Grant Funding

Sessions’ restrictions on funding, announced by the Attorney General back in July of this year, placed two new conditions on the ability to receive funds through Byrne JAG grants. First, requiring local authorities to tell federal agents before people suspected of immigration violations were released from jail, detention facility, or really any type of correctional facility. Second, state authorities had to give immigration access to detention facilities and to the people in those facilities. This was on top of a condition added back in 2016 which required cities and states receiving Byrne JAG funds to certify that they wouldn’t restrict state and local law enforcement from sharing information with Immigration and Naturalization Services when it comes to somebody’s citizenship status.

These Byrne JAG grants are generally used to support and outfit state and local law enforcement across the country so these additional requirements had the potential for serious national impact. Normally, Byrne JAG grants are given based on a statutory formula based on population and the amount of reported violent crimes. Chicago has received this grant money every year since 2005-including last year when it was required to certify that it would not restrict law enforcement from sharing information with federal immigration authorities. In fact, just last year it was given a little over $2.3M.

Chicago itself has had rules limiting law enforcement’s participation in federal immigration investigations in place since the mid-80s and codified those rules into law over a decade ago. The rules also prevent city agents and agencies form requesting or telling giving others information about somebody’s citizenship. In 2012, these rules were taken even one step further to specifically deny immigration agents access to Chicago facilities and to deny immigration detainer requests (requests for local police to hold somebody on suspicion of an immigration issue) unless specific criteria are met.

These policies-known as the Welcoming City Ordinance-have been in place so long because, according to Chicago, they have created safer streets by allowing the immigrant community to feel safe talking to law enforcement. However, as a potential “sanctuary city,” Sessions’ restrictions had a chance to seriously impact Chicago’s ability to fund its law enforcement. Thus, it’s no surprise they were quick to challenge their constitutionality.

The Court’s Ruling

Chicago challenged the constitutionality of AG Sessions’ restrictions on two primary grounds. First, that Congress never granted Sessions the power to restrict Byrne JAG grants in this manner. Second, that even if Congress did give Sessions that power the restrictions themselves impinged on the Constitutional rights of the states.

On the most recent restrictions, the ones dealing with reporting and access to detention centers, the court determined that AG Sessions simply overstepped his bounds. Congress not only didn’t give him the power to make such limitations on these grants, they explicitly gave the power to somebody else. While Sessions argued he’d been given broad power to make such restrictions in an older act of Congress, the court felt that if such a grant had been given Congress wouldn’t have needed to give the AG the limited powers to restrict these grants that it did-the power to require a certification that a grantee will comply with all federal laws.

With only this limited power at the AG’s disposal, both the most recent restrictions on these grants were an overreach and thus unconstitutional. However, Sessions does have the power to require certifications as he did with last year’s additional restriction. This meant that this third restriction would only be unconstitutional if it violated some other part of the Constitution.

The 10th Amendment means that the federal government can’t generally force the states to legislate or act in a certain way. Nor can they force state agents such as state police to act in a certain way. They can, however, often tie funds to certain behavior. Chicago argued that the restrictions were violating the 10th Amendment by forcing them to allow state agents to report to the federal government. However, Congress has broad power to legislate when it comes to immigration. What’s more, these very restrictions have already been ruled by another court to not violate the 10th amendment-drawing a potentially questionable distinction between forcing a state to act and preventing the state from directly restricting its officials from acting. The court primarily looked at the fact that the requirements don’t force any active legislation or make state agents act on the federal government’s behalf. Thus, the certification requirement from last year was ruled constitutional.

Ruling Still a Partial Victory for AG Sessions

This ruling takes away the most controlling parts of AG Sessions’ restrictions. However, what is left will still allow for the potential to withhold funds from many states. Chicago is far from alone in its Welcoming City Ordinance, many cities and states have similar provisions. These laws have become particularly contentious in recent months.

California has been moving forward on bills to increase protection from undocumented students in public schools. At the same time, Mississippi and Texas have passed laws barring local ordinances creating “sanctuary cities.” Alabama passed legislation targeting universities attended by undocumented immigrants. The controversy on this issue has just begun and will only continue to heat up. Even this ruling will likely be appealed by the federal government. However, even with what’s left, there is a real possibility the AG Sessions will have the oomph to follow through on some of his threats to funding for cities not cooperating with federal immigration officials.

Can You Access Your Spouse’s Electronic Information During a Divorce?

During a divorce, ex-spouses will be tempted to use every advantage to “win” the case. Since spouses were often intimate during their marriage – even sharing private information with one another – fights between spouses can be nasty, brutal, and long. Many spouses will use passwords to access personal accounts to look for proof of wrongdoing. The Electronic Communications Privacy Act (ECPA) was enacted in 1986 to protect against such digital intrusion. Unauthorized access to email may carry severe penalties – in both divorce and criminal court.

Can I Record Phone Calls?

The answer will differ wildly depending on each state. Some jurisdictions, like North Carolina and Virigina, permit one party recordings. It is permissible to record a phone conversation as long as one of the parties knows and consents to being recorded. Other states, like California, require two party consent; both parties must know and consent to their conversation being recorded.

However, almost all states require a warrant before recording phone conservations in which the recorder is not one of the parties. If you plan to record your spouse and his or her suspected lover, think twice – you will almost certainly be breaking the law.

What If My Spouse Is Saying Nasty Things About Me on Social Media?

It is not uncommon for ex-spouses to say terrible things about the other on Facebook or Twitter to their friends and family. Obviously, any one-sided Facebook statues will likely result in the other spouse being alienated from his or her social circle.

Courts do have the power to order spouses to “add” their spouse to social media as a means of monitoring any potential libel. However, this only comes up if the couple has minor children. Children should not have to see their mother attacking their father’s character on social media. In that instance, the Court can require that the mother “add” the father to social media to ensure that the other parent does not derail normal parent-child relationships.

divorce_loginWhat If My Spouse Gave Me Their Passwords While We Were Still Together?

The ECPA prohibits “unauthorized” access or use of private information. However, if a spouse voluntarily provides the password, then you would have implicit consent. This implicit consent only goes so far though – if you use the password to access accounts other than the email it was meant for, there would likely be no consent granted. If a wife gives her husband a password to check her Gmail, but that same password works for her Wells Fargo account, implicit consent would only exist for the Gmail but not for the Wells Fargo account.

We Separated. Can I Still Read My Spouse’s E-mail with the Password They Gave Me?

When spouses give their passwords to one another, the law assumes that the password was for a specific purpose. If you have your spouse’s email password, it’s probably to check e-mail that the two of you received as a couple while you were married. If the marriage has ended, then the reason your spouse has given you the e-mail has likely ended to.

California Sues to Stop Trump’s Border Wall

In the last couple days, a lawsuit has been filed in a San Diego area District Court, seeking to stop the construction of President Trump’s border wall. The lawsuit is a 53-page behemoth of a complaint with separate claims for relief. However, it contains some very interesting arguments. Some arguments with a real chance of delaying or even halting construction of Trump’s wall, and some less likely to succeed.

In a time where politically grandstanding lawsuits and orders with little actual impact are common, it’s easy to quickly dismiss this lawsuit as another example of this. However, the lawsuit has some arguments that carry weight. It has real potential to throw a wrench in the works of Trump’s wall. But, it is still very early going for this lawsuit and it will face immense hurdles before it can hope to succeed. For now, let’s look at the situation and the arguments the suit makes.

California’s Lawsuit

It’s significant that this lawsuit is being brought around San Diego because that is the site of one of the preliminary construction sites for a prototype section of Trump’s wall. In pursuing this project, and the entirety of the walls eventual construction, the Secretary of the Department of Homeland Security (DHS) John Kelly published a “waiver” notice in the Federal Register in August of this year. This waiver essentially says that the wall’s construction does not need to follow over 30 federal laws and all state or local laws which might relate to the construction of the wall.

This probably sounds ludicrous on its face. However, the DHS has been granted this power to waive laws to some degree for decades under the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA ). The IIRIRA contains a provision that allows the Secretary of DHS to waive any law he or she deems necessary to expeditiously construct reinforced fencing authorized under that section.

California’s lawsuit hinges primarily on challenging the validity of this waiver and its authority, along with challenging the sufficiency of the environmental studies done in the lead up to building the wall and the wall prototypes.

border wallThe Lawsuit’s Claims

The lawsuit being 53 pages makes discussing its claims in full a bit of a challenge. However, we can hit the highlights of its challenges.

The lawsuit starts by challenging the federal governments steps in regards to environmental law. The National Environmental Policy Act (NEPA) requires several procedures before the government can undertake a project-such as Trump’s wall-which has a significant effect on the quality of the human environment. This includes preparing a report known as an Environmental Impact Statement (EIS). The steps taken on the wall have made no such report. They’ve also ignored the requirements of laws such as the Coastal Zone Management Act and the Clean Water Act. The lawsuit challenges the wall based on this failure to follow environmental procedures for federal construction projects.

Next, the lawsuit alleges that the IIRIRA doesn’t grant authority for the waivers Secretary Kelly made for the wall. It argues that the breadth of the IIRIRA covers waiving to create walls, not replace existing walls as is happening in San Diego. The lawsuit further argues that the provisions of the IIRIRA also limit the waivers to construction in areas with high instances of illegal entry-something that is not the case in San Diego and in many places along where the wall may eventually be made. If there is no IIRIRA waiver authority, the federal government is in violation of the laundry list of over 30 laws it has waived to expedite construction of Trump’s wall. Even if the waiver authority exists, the federal government has produced no studies or evidence that supports these elements in order to establish that they should be able to use that waiver.

The waivers are also challenged on due process grounds-the requirement that the government provide a reasonable ability to a fair judicial process. However, according to California’s lawsuit, the federal government’s legal waivers are so broad (potentially covering essentially the whole southern border of the country for an essentially indefinite time) that they cannot provide reasonable notice of where the waivers are going to apply and when.

The power of Congress to pass the law in the first place is also challenged. The lawsuit cites a separation of powers issue. Congress generally can’t delegate it’s powers to another branch without clear delineation of the limits of what is delegated. Here, Congress has given power to waive laws to an agent of the Executive branch. The lawsuit argues that this vests the power of the legislature in the Executive branch-impermissibly violating separation of powers. The gist of the argument is essentially that by giving total fiat to waive all laws for this purpose, Congress has removed the power of law in this circumstance. Instead, the lawsuit argues that Congress must individually delineate what laws may be waived. It’s noting here, that while delegation of the legislative powers of Congress are theoretically unconstitutional, in practice extremely broad grants of power have been allowed in the past by the courts. However, a totally unchecked delegation may still be unconstitutional.

Finally, the lawsuit turns to the 10th Amendment. The 10th amendment, among other things, provides states the right to create and enforce their own legal code. The lawsuit argues that, as written, the waiver provisions grant the ability to indefinitely waive any and all laws of any state. The lawsuit argues that this makes the waiver provisions unconstitutional because the law exceeds the power of Congress and violates the 10th amendment

Case is Very Early Stages, But It Does Have a Chance

Nearly all of these claims require an intensely complicated bit of administrative and constitutional law for the courts to come to a final conclusion. However, as stated, the lawsuit already makes arguments that hold water. Each one has a real chance of success and any one of them could put a stop to or substantially delay Trump’s wall.

But, the lawsuit has a very long way to go from complaint to actually achieving its goal. However, it is without question that the suit will face an uphill battle. The waiver provisions in question have been used for decades and a challenge to them will face this precedent. For now, we’ll just have to wait and see how the federal government responds.

Yes, You Can Steal a Car in Minnesota Without Moving It

During winter, the temperature drop in Minnesota can paralyze most vehicles. Each morning, J.V. would start his car and leave it in the driveway before leaving for work. One morning in 2016, J.V. spotted a stranger knocking on his front door. Suspicious, J.V. called the police. An officer arrived and found the man, later identified as Thonesavanh, sitting in J.V.’s car. The doors were locked and the headlights had been turned on, but Thonesavanh hadn’t moved the vehicle since J.V. started it. The officer persuaded Thonesavanh to step out of the car and arrested him.

Thonesavanh was charged with theft of a motor vehicle. The trial court dismissed the charge, since Minnesota defined theft of a vehicle as “taking or driving a motor vehicle” and there was no evidence that the defendant had moved the car at all. The appeals court confirmed the verdict, though it noted that the word “taking” was ambiguous. Taking could either mean “moving or transporting” or “having possession of.” The Minnesota Supreme Court took up the case, ruling that “taking” meant having possession. The state Supreme Court’s ruling means that Thonesavanh would be guilty of theft of a motor vehicle without ever moving it.

minnesotaThe Expansion of Law

Many courts believe that no words in laws should be surplusage – that is, every word in a statute should mean something and that there are no extra or redundant words. If the Minnesota Supreme Court reads “taking” to mean “moving or transporting,” then “taking” would be redundant since it would be mean the same as “driving.” With that logic, “taking” could only be the other applicable definition, “having possession of.”

Since Thonesavanh was sitting in J.V.’s car without his consent, Thonesavanh had locked the doors and turned on the headlights, adjusting the vehicle according to his wishes. With the doors locked, Thonesavanh was in control of the vehicle and was preventing J.V. from using it himself. Effectively, Thonesavanh was in possession of the car. Thonesavanh hadn’t moved the car but he had done everything possible to assert his control over it.

It might seem exhausting, elitist, and frankly boring, to spend four paragraphs arguing over the definition of a common English word like “taking.” However, this much word usage is necessary because the definition of “taking” was literally the difference between a guilty and non-guilty verdict. More importantly, these types of arguments are the difference between guilty and non-guilty not just for Thonesavanh, but for any other individuals arrested for theft of a motor vehicle in Minnesota.

What are the Implications of a Case Like This?

This process of arguing over the meaning of a single word or phrase can have enormous consequences. In cases like Thonesavanh, it separates a man from freedom and jail. In the big picture, these kinds of arguments over the meaning of a word also lead unintended consequences. Although the doctrine of surplusage is intended to ensure that judges don’t ignore the words written by the legislature, giving words different meanings can also lead to meanings that the lawmakers never intended either. When that happens, it is the people who suffer from good judicial intentions gone awry.

Divorcing a Spouse with a Mental Illness

“I, take you, for my lawful wife/husband, to have and to hold from this day forward, for better, for worse…in sickness and health, until death do us part.”

Most people want to believe that they can stand by their marriage vows no matter what happens. However, some people may discover that the new Mr. or Mrs. has a severe mental illness. In other cases, you or your spouse may develop a mental illness later in life. Many people will stand by their husband or wife “in sickness,” but time may bring greater and greater stress to the marriage with no respite in sight. If you or your spouse has a mental disorder that is breaking down the marriage, is there an exit ramp?

mental illnessCan I Divorce My Spouse If They are Mentally Ill?

Generally, an individual has capacity to divorce if that individual understands the nature of a divorce and the legal and financial consequences of being divorced. A mental illness may impair mental or emotional function, but as long as the person understands what a divorce is and how it will affect his or legal and financial status, the person can still divorce or be divorced.

Example #1 – A spouse with bipolar disorder may go through “manic” episodes where the person stays up all night and spends thousands of dollars in a month and then pivots to extreme depression where the person refuses to get out of bed and might physically hurt themselves if they do. Legally, it would be possible to obtain a divorce, even if doing so might trigger a depression episode.

Example #2 – A spouse is diagnosed with paranoid schizophrenia and believes that an old employer is blackmailing his wife and the family court judge into divorcing him. Legally, it would be possible for the wife to obtain a divorce, although a guardian might be appointed to manage the husband’s interests (for example, to prevent the husband from filing a frivolous appeal which would further exhaust his financial resources).

Example #3 – A spouse with Alzheimer’s Disease forgets that she was married and cannot remember she jointly owns a vacation home and two joint bank accounts with her husband. In this case, a court could rule that the spouse lacks capacity to divorce and the ruling would likely be affirmed on appeal.

Note that these are only examples and that courts determine capacity on a case by case basis. Consult an attorney to determine whether you or your spouse has capacity to marry or divorce.

Is It Moral to Divorce My Spouse If They’re Ill?

Some parties may worry about the moral or social effects of divorcing a spouse with mental illness. After all, marriage vows state that couples will support each other “in sickness or in health.” Many divorcees may feel guilty about leaving a lover in his or her time of need.

Moral considerations are ultimately up to each individual. However, if a mentally ill spouse is draining you for years on end, it may be imperative to your own health and mental/emotional well-being to at least separate from the other spouse, at least for a little while.

Annulment

Just as a party must have capacity to divorce, parties must have capacity to marry before getting married in the first place. Capacity to marry is similar to the capacity to divorce: an individual has capacity as long as he or she understands what a marriage is and how marriage would impact his or her legal and financial standing.

In some cases, it may be easier for a newly married couple to file for annulment due to mental incapacity to marry instead of trying to go through a divorce. If one of the parties didn’t understand that he or she was getting married, annulment will be a valid option.

On the other hand, annulment will be more difficult to prove. Unlike divorce, the party seeking annulment must actually prove that one of the parties lacked capacity to marry, while divorces today are typically no-fault divorces and no offer of proof is required.

Child Custody and Visitation

Although a spouse with a mental illness may have the capacity to be divorced, the mental illness may present obstacles to child custody. The Court will have two competing obligations. In all child custody cases, a judge must act in the child’s best interests. A judge must put the well-being of the children ahead of any other considerations. On the other hand, federal law requires that courts reframe from discriminating against mentally disabled individuals.

The compromise against these two competing interests is to determine whether a mentally disabled individual would be able to care for the children without endangering them. Judges cannot assume that a parent is unfit merely because he or she has a disorder. Parties must actually prove that the parent with mental disorder is unable to serve as a parent. And even if a disability might interfere with a parent’s ability to care for children, certain accommodations such as medication or supervision should be considered before visitation is reduced or custody removed.