Lawful Permanent Residence

Resident status consists of various legal categories. These categories include U.S. Citizenship, Lawful Permanent Residence, Conditional Residence, Asylee, Refugee, Withholding of Removal, Convention Against Torture, Non-Immigrant, and Undocumented (known popularly as "illegal"). Historically speaking, a great many immigrants struggled to come to the United States of America. Some escaped oppressive regimes. Others sought better opportunities for themselves and their children. Irrespective of the background, generations of immigrants knew obtaining United States Citizenship symbolized the "brass ring." An alien who aspires to become a U.S. citizen must go through the process of naturalization.

Naturalization involves conferring nationality of a state upon a person after birth. Aliens opt to naturalize for the reasons described above as well as many other reasons. For example, U.S. citizens are not deportable or removable. Additionally, foreign family members of naturalized citizens may be able to immigrate to the U.S. sooner. Finally, only citizens enjoy the fundamental right to vote. This may be especially important to immigrants who came to American shores to be free.

The first paragraph provides many categories besides U.S. Citizen. Notably, the second category on the list is "Lawful Permanent Resident" (LPR). Immigrants who have been lawfully admitted to the United States have LPR status. To obtain LPR status one must comply with procedural rules and satisfy legal requirements. Even so, immigrants who do not become naturalized may find their LPR status threatened. These individuals may be deported.

Deportation applies only to non-citizens lawfully admitted to the United States. A non-citizen may face deportation on various grounds. These grounds may include a criminal conviction for an aggravated felony (AF), a controlled dangerous substance offense, crimes involving moral turpitude (CIMT), firearm offenses, and crimes of domestic violence, stalking, crimes against children, or violations of protection orders.

Administrative Soup

Many federal agencies have a hand in immigration administration. These roles include legislative functions, enforcement, and adjudication. This post will describe the structure and explain some of the entities.

Note: This post may become overwhelming. The diagram at the bottom can be deceiving because of its simplicity. Its simplicity is the reason that reason it is helpful.

Two entities sit at the top of the structure. These two bodies are the Department of Homeland Security (DHS) and the U.S. Department of Justice, Executive Office for Immigration Review (EOIR).

Formed in 2003, DHS replaced the Immigration and Naturalization Service (INS). INS was an entity within the Department of Justice (DOJ). In this respect DHS differs from INS because DHS is separate from DOJ.

DHS consists of entities that are directly involved in immigration administration. These entities are the U.S. Citizenship and Immigration Review Service (USCIS), the U.S. Immigration and Customs Enforcement (ICE), and the Administrative Appeals Office (AAO).

Yesterday I explained DHS enforces the nation's immigration laws. In this respect, ICE fulfills a role like the local police. Similar to the enforcement of local and state law by the police, ICE enforces immigration law.

DHS also administers immigration and naturalization benefits. In this respect, DHS is primarily responsible for promulgating regulations, a role similar to the legislative branch of government.

The Administrative Appeals Office (AAO) was carried over from the INS. As noted above, DHS is separate and distinct from DOJ. Consequently AAO, a DHS entity, is not a DOJ entity. AAO is an exception to the general intent to allocate adjudicative duties to DOJ. AAO hears appeals from certain kinds of DHS denials of applications and petitions. These DHS denials may relate to employment-based petitions and non-immigrant visa petitions.

Likewise, many entities within EOIR are directly involved in immigration administration. These entities are the Office of the Chief Immigration Judge (OCIJ), the Board of Immigration Appeals (BIA), the Office of the Chief Administrative Hearing Officer (OCAHO).

EOIR is responsible for administering Immigration Courts across the country. In furtherance of this duty, the EOIR Director oversees OCIJ, which in turn oversees Immigration Judges (IJ) that hear charges by the government against individual immigrants.

IJs are akin to the trial court judges because both conduct court proceedings and act independently in deciding controversies. IJs resolve controversies by applying INA, federal regulations, and precedent from BIA and federal courts to the facts of each case. BIA is an administrative appellate court that reviews IJ determinations with respect to immigrant residency.

Within EOIR, BIA is the highest appellate court with respect to issues of immigration and nationality. Therefore, BIA jurisdiction extends to all IJs across the country as well as certain DHS decisions. Additionally, BIA establishes the rules of court for the IJs to follow.

Another EOIR branch is the Office of the Chief Administrative Officer (OCAHO). OCAHO differs from OCIJ and BIA with respect to its form and function. The previous paragraphs about OCIJ and BIA illustrate a horizontal relationship with respect to their position in EOIR, and a vertical relationship as to adjudication and authority. One factor that makes OCAHO different is its independence. As to form, OCAHO consists of Administrative Law Judges (ALJ). OCAHO ALJs have nothing to do with OCIJ. They hear disputes involving employer sanctions, anti-discrimination, and document fraud under the Immigration and Nationality Act (INA).

A separate DOJ body is the Office of Immigration Litigation (OIL). OIL represents the United State of America in federal court when the subject matter is immigration-related civil trial litigation and appellate matters. Unlike the entities described above, which fall within the Department of Justice, Executive Office for Immigration Review (EOIR), AAO falls under the DOJ Civil Division.

This diagram illustrates the foregoing explanation as to structure:

|-- ICE
|-- AAO

|-- EOIR
| |-- OCIJ -- IJs
| |-- BIA
| |-- OCAHO
|-- OIL

Of course this structure falls under the Executive branch of the federal government whose head is the President. Nevertheless, this structure and allocation of roles demonstrates an intent to separate the powers (with the exception of AAO) similar to the separation of powers between the judicial, legislative, and executive branches of the federal government.

Immigration Law Basic Background

Immigration Law is highly complex. It certainly appears that way to me. That said, I can offer a few insights based on my training and experience. This background will be important because future posts may refer to this information without explanation. The following framework seems consistent with general principles of administrative law.

Successful immigration practice requires knowledge and mastery of various legal sources. These sources include statutes, regulations, decisions by the Board of Immigration Appeals (BIA), federal cases, and policy guidance from U.S. Citizenship and Immigration Services (USCIS).

Congress enacted The Immigration and Nationality Act (INA) in 1952, and it is the basic body of immigration law. This statute stands alone, and it also may be found in Title 8 of the United States Code (USC).

The Code of Federal Regulations (CFR) contains rules developed by regulatory agencies. The Department of Homeland Security (DHS) is primarily, though not exclusively, charged with enforcing the nation's immigration laws. Therefore, DHS is primarily, if not exclusively, responsible for promulgating these regulations. Immigration regulations are in Title 8 of the CFR.

BIA is part of the Executive Office for Immigration Review (EOIR), a federal agency within the Department of Justice. BIA is an appellate review panel within EOIR. Thus, BIA decides appellate administrative issues. These decisions apply on a national scale to DHS Bureaus responsible for enforcing immigration laws. In general, these decisions are binding on all DHS officers and Immigration Judges. They are not binding, however, if the decision has been modified or overruled by the Attorney General or a Federal Court.

Federal case law provides a source of law for immigration practice.

Finally, USCIS provides policy guidance for immigration issues.

For more information, please feel free to visit

Cancellation of Removal

On August 2, 2010 a Legal Permanent Resident who had been in ICE detention for eleven months finally had his day in court. The Department of Homeland Security wanted to deport this man, and I was his attorney. This was not only my first pro bono client, but also my first official file. The most significant first to me, however, was this first experience with immigration law.

(It bears mentioning, therefore, that immigration law is beyond the scope of my general practice. This means at this point in my career I will refuse to represent a private immigration client.)

Last February I agreed to represent this individual. As an attorney, the private details of his circumstances are strictly confidential. The court record, however, reflects the most impotant result of this ordeal. The Immigration Judge granted our application to cancel his removal. This means the Department of Homeland Security may not exercise any authority to deport him now.

I learned many things during this experience. In a previous post I blogged about the importance of pro bono service as a means to learning. Similarly, I blogged about the relationship between a criminal conviction and immigration consequences under federal and state law. My upcoming posts are intended briefly to describe the factors an immigration court considers in determining whether to prevent DHS from deporting a Legal Permanent Resident.

Scales of Justice

This Memorial Day Weekend post is dedicated to the men and women serving in our nation's military, both past and present. Without their brave defense of liberty, it is indisputable that the topics I blog about would not exist.

I wrote recently, here and here, about pro bono service. Those posts addressed volunteer representation in general, and a particular immigration matter of mine. In New Jersey, there is an unbroken history, dating to colonial times, of each lawyer's ethical and enforceable obligation to accept pro bono assignments for indigent clients. Madden v. Delran Twp., 126 N.J. 591, 603 (1992).

Indeed, New Jersey may have been the first State to enact a compulsory representation statute for indigent criminal defendants. This statute, enacted by New Jersey legislature on March 6, 1795, stated "[t]he court before whom any person shall be tried upon indictment, is hereby authorized and required to assign to such person, if not of ability to procure counsel, such counsel, not exceeding two, as he or she shall desire." Id.

The United States Supreme Court waited 168 years to impose a similar obligation on state courts with respect to the representation of indigents in felony matters. That case, of course, is Gideon v. Wainright, 372 U.S. 335, 344 (1963).

The obligation to appoint counsel for indigent defendants applied in full force in federal courts before Gideon. The Gideon Court selectively incorporated this Sixth Amendment obligation into the Fourteenth Amendment, and made it applicable to state courts. To paraphrase the Gideon court, "This is America." Id. at 344 ("The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.")

New Jersey's 1795 compulsory representation statute was repealed around 1952. Furthermore, in 1966 the Supreme Court discontinued the practice of appointing members of the bar to provide pro bono representation for indigents in criminal matters. State v. Rush, 46 N.J. 399 (1966). Even so, the spirit of these laws did not disappear. Indeed,New Jersey Law as to compulsory representation and the effective assistance of counsel continues to apply to indigent Municipal Court defendants. N.J.S.A. 2A:158A-5.2. This system of appointment is administered as follows:

The Assignment Judge of each vicinage prepares a list of every attorney licensed to practice in New Jersey whose primary office is in that vicinage. Put differently, each lawyer licensed to practice in New Jersey falls under the jurisdiction of the Assignment Judge of the vicinage where the lawyer has his primary office. Using this list, any Municipal Court Judge in the vicinage may assign a pro bono client each year to each lawyer on the list. Defendants qualify for pro bono representation only if they qualify as indigent. Indigency shall be determined by the court uniformly and in accordance with standards provided by the AOC. Madden, supra, 126 N.J. at 606.

By stipulation of the New Jersey Supreme Court, each attorney who voluntarily gives free legal assistance through a Legal Services program, and performs a minimum of 25 hours of pro bono service, will be exempt from court appointed pro bono assignments for the following year. Notably, the stipulation applies to any indigent client in any litigated matter.

In my situation, I volunteered to represent an indigent immigration client. Among the other considerations I blogged about previously, I undertook this responsibility as a way to discharge my pro bono duties. This duty may be discharged with 25 volunteer hours. Without disclosing the number of hours I have committed so far for my client, I am inclined to say I have exceeded 25 hours. This does not include travel time for client visits, witness interviews, and court appearances. With the outcome of this matter yet to be decided, I anticipate spending more time on this matter before it comes to a close. Irrespective of the court's final determination, my representation of this client has enabled me to serve the public.

This post began with a dedication to our men and women in uniform, and they remain on my mind at its close. Just as it would not be possible for me to write about these topics without their brave defense of liberty, similarly I would not be able to serve the public in this capacity were it not for their sacrifices. The criminal justice system encompasses many values. These values often appear to conflict. Nevertheless, these are deeply rooted American values. One can begin to appreciate this more fully when one realizes that many people died to protect these values. This is one reason I am grateful to our soldiers, both past and present, this Memorial Day Weekend.

Pro Bono - A Practical Approach to an Ethical Obligation

On Friday I blogged about a few practical reasons for solo practitioners to provide a portion of their services pro bono. Notwithstanding the "return on investment," every lawyer in this state has an ethical obligation under the New Jersey Rules of Professional Conduct (RPC) to provide legal service to those of modest means. New Jersey RPC 6.1 provides,

Every lawyer has a professional responsibility to render public interest legal service. A lawyer ‎may discharge this responsibility by providing professional services at no fee or a reduced fee to ‎persons of limited means or to public service or charitable groups or organizations, by service in ‎activities for improving the law, the legal system or the legal profession, and by financial support ‎for organizations that provide legal services to persons of limited means.

Accordingly, based on both RPC 6.1 and the reasons I reviewed yesterday, my business plan allots for public interest legal aid. Legal Services of New Jersey has opportunities to volunteer in various practice areas, including Immigration, Bankruptcy, and many others. I volunteered to assist in Immigration Law. To be candid, I am not an immigration lawyer, and I do not hold myself out to the public as one. I made this perfectly clear when I applied. Legal Services, nevertheless, was delighted and assigned a mentor to help me. In addition to the ethical obligation, I had additional reasons for choosing this category.

In my previous post I explained staying on top of legal developments is one reason to volunteer. In July 2009 the Supreme Court of New Jersey determined it is ineffective assistance of counsel under state law for a criminal defense lawyer to fail to advise a client of the immigration consequences of a guilty plea. State v. Jose Nunez-Valdez. Similarly, the Supreme Court of the United States determined more recently in Padilla v. Kentucky that this violates the right to effective assistance of counsel under the Sixth Amendment. As I mentioned above, I had my own reasons for choosing to volunteer in the Immigration section. Based on these recent developments, I decided I needed to learn and gain experience with immigration law - not necessarily with a goal to practice but certainly in order to provide the representation the law now requires.

Selfless Taking - A Reasoned Approach to Pro Bono

As a new lawyer, and an even newer solo practitioner, I have sought out the advice of more experienced attorneys. Needless to say, starting a private practice requires confidence, and succeeding in private practice requires both patience and tenacity. In addition to these and other character traits, a solid business plan is very important.

One particular piece of advice has made a very big difference. In pursuit of this advice, I have devoted a significant portion of my time during my initial start-up months to pro bono representation. For those who do not know, bar associations encourage lawyers to volunteer a portion of their services to the indigent for free. The Sixth Amendment guarantees effective assistance of counsel to criminal defendants, and the Office of the Public Defender in New Jersey assures this right is provided to indigent defendants. But there is no analogous right to counsel for individuals in any other litigation. Nevertheless, many states have organizations to fill the gap. Legal Services of New Jersey plays that role in this state.

Helping the poor, like any idealistic aspiration, can provide personal fulfillment. In addition to this and other idealistic reasons, many practical motivations exist for solo practitioners to devote a portion of their time to pro bono clients.

First, general practitioners are certainly encouraged to refine and expand their skill set. This endeavor results, of course, in a broader scope of expertise. As a new lawyer, this is imperative. Similar to employers who narrow the scope of employment opportunities to experienced applicants, prospective clients demand the same, especially in exchange for the legal fees they will be expected to pay. Pro bono representation provides an excellent opportunity for a lawyer to gain practical, hands-on experience. Although the representation will be free, in the future the lawyer can do the same work based on his pro bono experience and earn a fee.

Second, lawyers must stay on top of legal developments that relate to their field of practice. Perhaps the most common way lawyers fulfill this obligation is to attend Continuing Legal Education courses. An alternative is to gain practical experience handling files on a volunteer basis.

Finally, pro bono volunteerism goes hand-in-hand with professional networking. In addition to establishing oneself among other lawyers, a volunteer lawyer may receive a referral for an individual who does not qualify for pro bono services but cannot pay the full fee lawyers typically charge. The attorney benefits because he adds a new client to his base, and the individual benefits from an attorney willing to charge a discounted fee and perhaps even arrange a payment plan.

In conclusion, an apropos aphorism comes to mind. "If I am not for myself, who will be for me? But if I am only for myself, who am I? If not now, when?" The reasons explained above illustrate only a few of the practical considerations for solo practitioners to participate in pro bono volunteerism.

The Case to Recall Senator Robert Menendez

NJ court agrees to hear US senator recall case.

On November 7, 2006, Robert Menendez was elected to represent New Jersey in the United States Senate, and on January 4, 2007, Menendez was officially seated after taking the "oath prescribed by law." On September 25, 2009, the Committee To Recall Robert Menendez From The Office of U.S. Senator initiated the recall process by filing a notice of intention to recall him. On January 11, 2008, the New Jersey Secretary of State rejected the notice and petition for filing and review.

As any spin doctor worth his salt knows, facts speak for themselves. And any astute citizen knows government officials wrangle for power through political maneuvering. Much less frequently, however, the legal landscape provides context for these observers. Therefore, the case to recall the election of Robert Menendez will undoubtedly provide political pundits with fodder for the public. Furthermore, for those who are keen about the law that governs politics, this case involves the Constitution of New Jersey, the Uniform Recall Election Law, N.J.S.A. 19:27A-1 to -18, and the Constitution of the United States.

As to state constitutions generally, voter understanding is one tool to interpret a provision's meaning. In addition, some state constitutional provisions are self-executing while others are not. The distinguishing feature is that a non-self-executing provision requires legislative action in order for the constitutional provision to be implemented.

In respect of both the New Jersey Constitution and the case of Robert Menendez, in 1993 the people of New Jersey amended the state constitution by a three-to-one vote to provide for the recall of elected officials. As with other referenda, an interpretive statement appeared on the ballot to provide voters in the booth with information about the question at issue. It explained not only the core purpose of the amendment, to recall elected officials, but also the scope. More particularly, the recall law would apply "to any elected official in this State and to the United States Senators and Congressmen elected from New Jersey." It also explained voter approval on this amendment would authorize the legislature to enact relevant election laws.

Consistent with all of this evidence about voter understanding, the New Jersey Constitution, art. I, ¶ 2 was amended to provide, "The people reserve unto themselves the power to recall, after at least one year of service, any elected official in this State or representing this State in the United States Congress." In addition, this provision commands the legislature to enact the relevant enabling statutes. Notably, this amendment appears immediately after the provision declaring "All political power is inherent in the people. Government is instituted for the protection, security, and benefit of the people, and they have the right at all times to alter or reform the same, whenever the public good may require it." N.J. Const. art. I, ¶ 2.

The clash between the Federal and New Jersey Constitutions provide only one of many interesting legal issues in this matter. As this article indicates, the New Jersey Supreme Court granted certification to the parties as to all the issues in this controversy. Until then, the decision of the Superior Court of New Jersey, Appellate Division is available here.

The Penitent's Privilege, A Ring of Truth, and Common Sense

I blogged the other day about the cleric-penitent privilege based on the recent decision State of New Jersey v. J.G.

This opinion reminded me of a family court trial in Philadelphia I observed a couple of years ago. The evidence in that trial, in brief, implicated a group of male students who caused a very big commotion in their school. They were charged, among other things, with starting a riot.

The government's witnesses testified, and at the end of the trial the judge acquitted the boys for the riot offense. The Assistant District Attorney argued, citing the statutory elements of "riot" and insisting the testimony satisfied these requirements.

The judge responded succinctly, telling the A.D.A. he had obviously never witnessed a real riot. The debate on legislative intent ended there.

Justice Rivera-Soto's argues in his dissenting opinion here that the law should parallel a penitent's religion in affording a privilege in court. We are talking, after all, about the cleric-penitent privilege. Were it not for any participation in organized religion, the party would not be able to raise it.

Even in light of the majority opinion--based on statutory history, the legislative record, and canons of construction--the majority apparently ignored the title of the privilege. From this perspective, the majority analysis, impressive though it is, simply does not ring true. State of New Jersey v. J.G.

Cleric-Penitent Privilege

The "Cleric-Penitent Privilege" has received recent coverage in some New Jersey media due to the recent decision in State of New Jersey v. J.G.

News reports indicated the Court's majority expanded the privilege because it adopted a new test to determine whether the privilege could be raised.

With its eponymous title suggesting a centuries old vintage, the Cleric-Penitent Privilege derives from the Code of Canon Law of the Roman Catholic Church. Canon Law not only criminalized breaking the seal of the confessional by a priest, but also emphasized the significance of this breach by imposing excommunication for revealing information acquired during a confession.

England, however, broke away from the Roman Catholic Church in the Sixteenth Century during the English Reformation, and likewise, English courts abandoned this privilege. As a result it was totally foreign to American Common Law.

Under New Jersey law, for example, there was no Cleric-Penitent Privilege until 1947. In that year the New Jersey legislature enacted it, and subsequently the government has amended this law.

It is no surprise, therefore, that the centerpiece of both the majority and the dissenting opinions in State v. J.G. consists of analysis using tools of statutory interpretation.

Courts employ tools of statutory interpretation to determine legislative intent and, accordingly, to apply the law. J.G. may pique one's interest because the majority and dissenting opinions apply similar tools to reach very different conclusions. And if the outcome is politically undesirable, the legislature can amend the statute.

State of New Jersey v. J.G.

Jeanie Laughed

Jeanie Bueller may have finally gotten the last laugh on Mr. Rooney and her brother Ferris.

Recently two Third Circuit panels handed down polar opposite decisions with respect to students and the First Amendment. One case is Layshock v. Hermitage School District, and the other case is J.S. v. Blue Mountain School District.

Substantially similar facts in both cases involved student speech on social networking sites resulting in severe school sanctions. Any reasonable principal would take offense at the speech. But as sure as these students live under their parents' roofs, it should be equally obvious that the school officials clearly exceeded their authority in punishing these students for off-campus speech using private property. The First Amendment precedent, at least from the Supreme Court, does not appear to deal with facts like these. Rather, the case law appears to involve penalties for student speech while on campus. Furthermore, from a more general position, the law vests school officials with power, but that power should be limited to their official school duties.

The problem here extends beyond the disparate results. Lawyers rely on precedent not only to litigate disputes, but also to help clients plan for the future. The divergent opinions involved here will impair lawyers in both situations. Perhaps of greater concern to the Third Circuit, the results will hamper judges from reaching consistent results. Therefore, the Third Circuit should rehear these controversies.

3rd Circuit Asked to Clarify Student Internet Speech Cases

And now for some lighter fare . . .

Ruling Out Federal Review Requires Proof "Beyond A Shadow Of A Doubt"

Study for Patriotism
Pierre Puvis de Chavannes (1824 - 1898)
[Public domain],
via Wikimedia Commons
I blogged here recently about "New Judicial Federalism and the Federal Courts."

Under the "adequate and independent" doctrine, the U.S. Supreme Court will not exercise jurisdiction over a question of federal law decided by a state court if two criteria are met.
  1. The State court decision rests on a state law ground independent of federal law.
  2. The decision based on state law adequately supports the judgment.

  3. Coleman v. Thompson, 501 U.S. 722, 729 (1991).
This means state courts may rule out direct and collateral federal court review by deciding disputes under state law. Of course, these independent grounds must not violate federal law.

The "adequate and independent" doctrine is not new, yet a majority and dissenting opinion about it appeared recently in Florida v. Powell (U.S. Feb. 23, 2010).

State courts have interpreted the "adequate and independent" doctrine as an invitation to develop state constitutional law as distinct from federal jurisprudence.

In Florida v. Powell (U.S. Feb. 23, 2010), the State charged the defendant with possession of a weapon by a prohibited possessor. Moving to suppress statements to the police, the defendant argued they were procured in violation of the privilege against self incrimination. More specifically, he claimed the police did not properly notify him of his right to counsel. The trial court denied the motion, and the jury found defendant guilty at trial.

Based on a certified question from the Florida Second District Court of Appeal, the Florida Supreme Court set forth the legal requirements of notifying an arrestee of his rights. Seemingly their answer relied on jurisprudence under the Fifth Amendment and the Florida Constitution.

In an opinion joined by a majority of United States Supreme Court, Justice Ginsburg addressed the "plain statement" rule.

The U.S. Supreme Court will not exercise jurisdiction only if the state court decision clearly and expressly indicates that it is based on bona fide separate, adequate, and independent state law grounds. In short, this is the "beyond a shadow of a doubt" standard. Otherwise if there is any question, the U.S. Supreme Court will review the case.

This demonstrates the extent to which the U.S. Supreme Court will go to protect the integrity of federal law. Clearly this prevents the development of state court precedent that dilutes federal law with state law.

Justice Stevens dissented, however, based on two separate policy grounds for the "adequate and independent" doctrine.
  1. This doctrine respects the independence of state courts. This goes to the heart of federalist theory, recognizing the limited power of the federal government as contrasted with the plenary power of the individual states.
  2. This doctrine avoids advisory opinions.
To serve these two purposes, Justice Stevens argued State courts satisfy the "plain statement rule" when their opinion implies its decision is based on state law grounds.

Despite the reasoning Justice Stevens advanced, Florida v. Powell (U.S. Feb. 23, 2010) stands for the proposition that state courts adjudicating state law must expressly state this in their written decision.

Experienced New Jersey Criminal Defense Lawyer Michael Smolensky, Esquire, knows how to protect his clients. Mr. Smolensky can provide consultations on all cases regarding the violation of individual rights.

Call Now—(856) 812-0321.

Click "New Judicial Federalism," labeled in the post footer, for more examples and explanations about this topic.

Diversity Jurisdiction

Hertz Corp. v. Friend, 130 S. Ct. 1181, 559 US ___, 175 L. Ed. 2d 1029 (2010)

Federalism is the backbone of American government. The Constitution of the United States of America vests the federal government with limited power. By contrast, state governments have plenary power under each state's constitution. This post will focus on the limited power of the federal courts as related to civil procedure.

The U.S. Constitution established and empowered the Supreme Court of the United States. U.S. Const. Art. III, ‎§‎ 1. The same provision empowered Congress to "ordain and establish" the lower federal courts. Ibid. Thus, Congress created the circuit courts of appeal and district courts. Furthermore, Congress has authority to determine the jurisdiction of the lower federal courts.

The U.S. Constitution limits the power vested in the federal courts by allowing it to extend only to certain cases and controversies. U.S. Const. Art. III, ‎§‎ 2. One category where a federal court may exercise its judicial power applies to "Controversies . . . between Citizens of different States." Ibid. Exercising its constitutional authority to ordain, Congress enacted the diversity of citizenship statute. The U.S. Constitution gives federal courts limited power, preventing them from adjudicating a lawsuit between two citizens of the same state.

A problem arises, however, when one of the parties is a corporation. The issue is how a court should determine the citizenship of the corporation.

Early in American history corporate entities were not citizens. Bank of United States v. Deveaux, 5 Cranch 61 (1809). Under Deveaux, corporate citizenship was determined by the citizenship of its members.

This changed, however, in Louisville, C. & C. R. Co v Letson, 2 How 497 (1844)‎. There the Court determined a corporate entity is a citizen of the state of incorporation, separate and apart from the citizenship of its members. Importantly, only incorporated groups are considered as citizens for ‎diversity.

‎ The diversity statute enacted by Congress provides, a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business." 28 U. S. C. §1332(c)(1) (emphasis added). Thus, a corporation may be a citizen of two separate states. For example, it may be a citizen of both Delaware and New Jersey when it has been incorporated under the laws of Delaware and its principal place of business is in New Jersey.

Until now, parties litigated the meaning of "principal place of business" either to assert or challenge the jurisdictional authority of the federal courts in civil matters. Federal case law on this issue had provided two distinct tests to determine the "principal place of business."
  • The "Nerve Center" Test. This test refers to the place where high level officers direct, control, and coordinate corporate activities.
  • The "Muscle Center" Test. This test refers to the place where most of the business activity occurs.

The following illustrates the confusion that ensued under this distinction:
  • The "Center Of Corporate Activities" Test. Developed by the Third Circuit, this test searches for the "headquarters of a corporation’s day-to-day activity."
  • A "Two Part Test." Developed in the Ninth Circuit, this test requires courts to:
    1. decide whether "a corporation’s activities are centralized or decentralized,” and
    2. apply either the “place of operations” or “nerve center” test.
In Hertz Corp. v. Friend the Supreme Court of the United States rejected the "muscle center" test to determine "principal place of business" and reaffirmed the "nerve center" test. The case arose in California state court but the defendants, asserting diversity of citizenship, sought to remove to federal court. The plaintiffs were from California (the Ninth Circuit) and the defendants had their corporate offices in New Jersey (the Third Circuit).

The plaintiffs probably urged the court to follow Ninth Circuit precedent, which applied both the "nerve center" and "muscle center" tests, while the defendants probably insisted on following Third Circuit precedent, which only applied the "nerve center" test.

Most likely the defendants hoped not only to prevail in the removal to federal court, but also planned to argue the California venue was an inconvenient forum, and to transfer the venue to a federal district court in the District of New Jersey.

Along the way to reaffirming the "nerve center" test, the Hertz Court reasoned this test was most appropriate based on the statute's plain language and its legislative history. This means the "nerve center" test comports with legislative intent. In addition, the Court reasoned the single test would serve the purpose of promoting administrative efficiency, and establishing uniformity of federal law.

Hertz Corp. v. Friend, 130 S. Ct. 1181, 559 US ___, 175 L. Ed. 2d 1029 (2010)

New Judicial Federalism and Federal Courts

(or Prudence, Justice, and Peace)

Jürgen Ovens (1623 - 1678)
[Public domain],
via Wikimedia Commons
The Third Circuit Court of Appeals recently denied habeas corpus relief in Clausell v. Sherrer (3d Cir. 2010).

The issue in Clausell involved a claim of discriminatory use of the peremptory strike by the prosecutor.

Federal law prohibits race-based, sex-based, and religion-based discrimination in this context as a violation of Equal Protection under Batson v. Kentucky, 476 U.S. 79 (1986) and subsequent cases.

New Jersey law also prohibits this as a violation of the right to trial by a jury made up of a representative cross section of the community under State v. Gilmore, 103 N.J. 508 (1986).

The Gilmore court sought to expand individual rights under the New Jersey Constitution on state law grounds. Even so, the Third Circuit treated the federal and state tests to determine the discriminatory use of the peremptory strike as substantially similar. Nevertheless, the legal grounds upon which federal and state law base these tests are markedly distinct.

This distinction as between federal and state law illustrates a phenomena known as the "New Judicial Federalism." This involves the process of state courts elevating individual rights above the requirements of federal law. State courts are able to make lasting state precedent if, and only if, they root their decisions on state law grounds that are adequate and independent of federal law. While civil rights activists tend to laud these decisions, law enforcement may tend to criticize them.

Perceptions change, however, as the individual progresses through the layers of appellate and collateral review. State law may provide individuals with a broader scope of protection from state action during the early stages of the criminal system. In exchange, this necessarily places additional burdens on the State during those stages. This post will explain why New Judicial Federalism critics become staunch supporters, and vice verse, later in the process. It also brings to light the judiciary's interest in the administration of justice.

To explain this process, the first track criminal defendants may follow after conviction is "direct appeal." This track allows the individual to pursue claims arising out of the investigation and adjudication. A defendant on this track may seek a remedy from the state's Appellate Courts, the State's Supreme Court, and quite possibly the Supreme Court of the United States. Importantly, when the individual seeks a remedy for an alleged violation of state law that does not raise a question of federal law, the Supreme Court of the United States will not review it on direct appeal. This means the state's supreme court has the final word.

The next track is Post-Conviction Relief ("PCR"). Beginning in trial court, this track allows the defendant to pursue allegations that his lawyer failed to provide effective assistance of counsel. As with direct appeal, the Supreme Court of the United States will not review issues based on adequate and independent state law grounds that do not raise a question of federal law.

The final track is to petition the federal court for a writ of habeas corpus. Here the defendant may claim he is being held as a prisoner in violation of his federal constitutional rights.

New Judicial Federalism empowers state courts to prohibit federal courts from granting habeas corpus relief on collateral review. This is so when the following factors are met. First, a prisoner raises a state law issue in an application for habeas corpus relief. Second, the state law at issue in the application provided greater protection than federal law. Finally, the State met its burden of honoring these enhanced individual rights in the prisoner's particular case.

Under these circumstances, federal courts cannot possibly grant habeas corpus relief. This is because state law surpassed the requirements of federal law. Therefore, violation of federal law is impossible.

Just as state courts can insulate their decisions from federal review on direct appeal and post conviction relief, they can also shield their decisions from collateral habeas corpus review by federal courts.

This dynamic indicates the New Judicial Federalism involves not only protecting individual rights. It also involves preserving state court autonomy from federal courts. That, of course, is at the heart of our federalist system.

Clausell v. Sherrer (3d Cir. 2010)

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Automobile Exception

Stado wilków
(A pack of wolves)

Alfred Wierusz-Kowalski (1849 - 1915)
[Public domain],
via Wikimedia Commons
The Bill of Rights and the New Jersey Constitution both prohibit the government from entering areas without a warrant where individuals hold reasonable privacy expectations.

One exception to the warrant requirement, the Automobile Exception allows the police to circumvent the warrant application process. But the Fourth Amendment and the New Jersey Constitution differ in respect of the Automobile Exception's elements.

Under federal law, a police officer may search a vehicle, its trunk, and all its containers without a warrant, so long as the circumstances provide the requisite probable cause to believe the vehicle has contraband. Some states are in lockstep with the United States Supreme Court in this matter.

New Jersey law, however, also requires the circumstances be exigent. Absent probable cause and exigency, New Jersey law requires police to obtain a warrant before conducting the automobile search.

Although this imposes a procedural hurdle, New Jersey law allows the police to obtain a warrant telephonically instead of appearing before a judge in person.

State v. Jason Lewis (App. Div. 2010) is a recent Appellate Division opinion involving the Automobile Exception.

Experienced New Jersey Criminal Defense Lawyer Michael Smolensky, Esquire, knows how to protect his clients. Mr. Smolensky can provide consultations on all cases regarding the violation of individual rights.

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The Shield has become a Sword

The Fourth Amendment protects individuals from unwanted government intrusion. Almost everyone accepts that theory, but unfortunately that does not always translate into practice.

Recently the Third Circuit handed down its opinion in United States of America v. Anthony Johnson, No. 09-2245 (Filed January 27, 2010), and the results make absolutely no sense.

The Fourth Amendment governs police conduct when they approach citizens. The police may request permission to ask questions, and the citizen has every right to refuse. Police officers may also stop an individual temporarily, which means the individual is not free to leave. The police have this power even though the individual may not have been placed under arrest. But it is absolutely clear the police do not have carte blanche to exercise this authority.

The law allows this only if the circumstances provide a basis reasonably to suspect criminal conduct either has taken or is taking place. This means the police must be able to detail who, what, when, where, and how they perceived events.

Furthermore, those observations must provide an objectively reasonable basis for their beliefs. The authority to stop includes, but is not limited to, people walking on foot and driving in cars.

A tip from a citizen does not provide reasonable suspicion unless certain criteria are satisfied. I blogged more extensively about this here, so I will repeat only the general principles now.

When looking at information from a tipster, courts must use common sense. Common sense is, far and away, the biggest principle to remember. The law requires courts to consider the reliability, truthfulness, and knowledge basis of the tip. But the analysis does not end there. The court must find the police took steps independently to corroborate the tip before they took any action.

In summary, the overarching concepts here are simple. First, the Fourth Amendment protects individual freedom. It appears in the Bill of Rights, so clearly its purpose is not merely perfunctory. Second, the law requires the court to use common sense in making a determination.

Consider the facts of this case using common sense. The tipster called 911 to report things she thought she saw and heard. It was night time on January 7, 2007, and the rain was coming down hard.

Common sense instructs us it was cold outside and difficult to see for three reasons:
  1. it was night time,
  2. it was raining, and
  3. it was the middle of a Pennsylvania winter.
Indeed, the summary of facts in this opinion concedes it was hard to see. Although the opinion is silent about thunder and lightning, it was raining hard. Thus, applying common sense one may infer it was more difficult to hear than normal circumstances permit.

All of these details are important because they tend to undercut what the tipster thought she saw and heard. Despite the time and the weather, the tipster claimed she was standing in the front door. Despite the natural environment, she reported three things.

First, she thought she saw a white taxi with a green roof light park in a lot across the street. Notably, the taxi did not park on the street in front of her house. Furthermore, it did not park across the street opposite her house. Instead the taxi went into a parking lot on the other side of the street from her house on a dark, rainy night. Although the opinion does not indicate the distance, it clearly was not immediately in front of her. Additionally, the record is unclear whether the roof light was actually green or white.

Second, the tipster thought she observed two men exit two separate vehicles and wrestle on the ground in the lot across the street in the rain. But the tipster clearly did not provide any details at all about the men involved.

Third, she thought she heard at least one gun shot, and saw the taxi leave. Calling 911 she told the dispatcher "I'm standing here on [sic] my front door," and during the call she said she saw a police car as it arrived on the scene.

It seems, based either on the time of night, the weather, or having heard the sound of gun fire, that any reasonable person would have stayed clear of the door in a place that was safe if not warm. It seems this would dissuade a court engaged in analysis that calls for common sense.

Even putting those things aside, this is all the information the police had when they spotted a taxi ten blocks away. The taxi matched the description the tipster had provided only in respect of its color. The record reflects the roof light might have been green, or it might have been white. She had not provided a license plate or any other identifying information. She had not provided any details about the occupants, which meant the police knew absolutely nothing about the people in the cab. Finally the police did not witness the cab commit any motor vehicle offenses. Apparently Harrisburg does not have many taxis.

Nevertheless the police stopped the taxi, approached with guns drawn, ordered the driver and the defendant out, handcuffed them, and secured the defendant's young son. This stop resulted in the seizure of a gun from the defendant who has a prior felony record.

Despite all the common sense problems with these facts, the Court reasoned the tip provided reasonable suspicion to stop the cab. Along the way, the court's reasoning not only gave the benefit of all doubts to the government, but also it allowed innocent facts to play into the calculation for reasonable suspicion. Apparently courts only require the police independently to corroborate innocent details, and will find reasonable suspicion based on this.

In all events, these are among the many reasons this opinion is troublesome. Here the United States Court of Appeals for the Third Circuit turned a shield, the Fourth Amendment, into a sword. Now precedent in this circuit, the police can intrude on the right to be left alone based on absolutely nothing suspicious at all.

United States of America v. Anthony Johnson, No. 09-2245 (Filed January 27, 2010)

America's Dreamers, America's Doers

Many people know Camden's unfortunate reputation as the most dangerous city in the country. But even more people do not know about momentum by some of Camden's residents to change the city's face. Today's front page of the Philadelphia Inquirer features a report entitled Hispanic shoppers revitalize Camden's Federal Street (available online). Having blogged recently about the American Dream here, this article about Camden's Hispanic community is especially worthy of mention.

The growth epicenter's location is six blocks of Federal Street between Marlton Avenue and 27th Street. Long identified with abandoned buildings, Mexican and Dominican immigrants have resuscitated the "heart of East Camden." The lonely sound of the whistling wind has been replaced by upbeat music pouring out of restaurants and bustling businesses.

Where the Hispanic cross-section accounts for 42% of the city, Mexican immigrants make up the majority of the business owners in this area. Most of them come from Puebla, inspired by America's promise of opportunity. These industrious individuals have clearly taken responsibility for their own lives, and along the way they are improving Camden for everyone. This true story illustrates rugged individualism. Straight out of Camden, these men and women should inspire others to assess their strengths, capitalize on them, and move to improve every day. The opportunity to do this is one of the many things that makes America great.

Facing the Music

State of New Jersey v. Cory Bieniek.
This opinion illustrates justification for punishment, a concept I blogged about here. Generally speaking two schools of thought occupy with this topic. One is utilitarian and the other is retributivist.

Utilitarians calculate for the net benefit of society. This involves using the law as a means to achieve what may be a politically expedient end. Utilitarians always calculate irrespective of public interest and media coverage of a case.

Retributivists, by contrast, focus on each individual offender. Here, a judge may focus on the defendant as a "whole person." Even though "whole person" evidence may be inadmissible at trial, the sentencing judge may rely on it without reservation thus focusing on the individual offender.

In my earlier post, I explained the broader distinctions between these two schools.

The above opinion, State v. Cory Bieniek illustrates these policy concerns under New Jersey law because it covers the sentencing judge's discretion. Legislature expressed society's interest in consistent sentencing through the New Jersey Code of Criminal Justice, N.J.S.A. 2C. Thus, it authorizes judges to exercise "structured discretion." A sentence will not be disturbed so long as the sentencing judge has adhered to these guidelines.

Accordingly, sentencing must be based on aggravating and mitigating factors set forth under N.J.S.A. 2C:44-1(a) and N.J.S.A. 2C:44-1(b). To do this, the parties and the court must develop the record with evidence, and the judge must apply that evidence to the factors in explaining his findings.

In State v. Cory Bieniek, the trial judge rejected a mitigating factor which requires finding the defendant did not contemplate his conduct would cause or threaten serious harm," N.J.S.A. 2C:44-1(b)(2). The trial court referred to society's continuous campaign against drunk driving. This may be a utilitarian justification generally to deter others from driving under the influence. The court also emphasized this defendant did not get the message. This may be a utilitarian justification both generally to deter society by making an example of this defendant, and specifically to deter this defendant from driving under the influence again.

To illustrate retributivism, the defendant did not qualify for the mitigating factor under N.J.S.A. 2C:44-1(b)(7), which requires finding the defendant has no significant criminal history. Reflecting retributivist thought, the trial judge reviewed the defendant's juvenile record going back to the age of sixteen. In this way the trial court refused to apply the mitigating factor by focusing on the offender himself.

In conclusion, this case and the relevant statutes demonstrate sentencing policy under New Jersey law blends both utilitarian and retributivist rationales.

Freedom Of Speech and the First Amendment

John McCain has said campaign finance reform is dead in response to Citizens United v. Federal Election Comm'n, 558 U.S. 310 (2010). Meanwhile opponents of this ruling have only just begun to lay bare the "parade of horribles." Although the political response may be riveting, this post will focus on the Court's opinion.

Citizens United v. Federal Election Comm'n involves Hillary: The Movie, a corporate-sponsored film produced by Citizens United. The McCain-Feingold Act, however, prohibits corporations and unions from sponsoring candidates with its funds.

The trial court denied Citizens United declaratory relief because the McCain-Feingold Act was consistent with established First Amendment precedent. Indeed, this reasoning was correct. Nevertheless, a majority of the Supreme Court decided this particular line of precedent diverged from earlier First Amendment jurisprudence. Thus, the Court returned to traditional legal roots. As a result, corporations may now use general funds for political speech.

On a simple level this makes a lot of sense. The First Amendment prevents Congress from, among other things, trampling on freedom of speech. Armed with this liberty, individuals with similar views naturally associate together, also protected by by the First Amendment. Their protected communications with one another undoubtedly brought them together. These like-minded individuals, now associated, may elect to formalize their relationship by forming an entity. A corporation is one possible form for this entity, and it allows individual members both to pool resources and uniformly to spread their views.

To permit the individuals freedom of expression but to prohibit their group makes war with common sense. Freedom of expression presumably brought the group together. Likewise, to grant individuals freedom to speak and to associate, but then to turn around and deny a resulting association such as a corporation freedom of speech is equally confounding. Notably, Justice Scalia's concurring opinion, which explains the textual and originalist understandings of the First Amendment, supports this line of thought.

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Devil in the Details

Energy efficiency can mean lower taxes

This headline illustrates the important concepts of primacy and recency. The leading words announce energy efficiency and the final words shout out lower taxes. These two catch-phrases pack a powerful punch.

Green policies have taken center stage in both the public and private sectors. I will even go out on a limb and suggest the prospect of reducing one's tax bill has never been unstlyish.

It cannot be seriously doubted, therefore, that the author intentionally placed these four words to encourage readers to read on. For these reasons it is no accident a tiny, three-letter word, the most crucial word of the message, is buried in the middle - "can." The author intentionally chose the word "can," like the other words in the headline. The title does not say "may," nor does it say "might." Time will tell whether the most accurate word choice would have been "might not."

Winning the battle, losing the war

This news article is another installment in the saga of The Association of New Jersey Rifle & Pistol Clubs ("Association"). On January 2, 2007 the Association prevailed at trial in its challenge to a Jersey City ordinance. The ordinance limited the purchase of handguns to one per month. Ruling for the Association, the trial court ordered the ordinance as void on grounds of preemption, equal protection, and arbitrariness.

Jersey City appealed, and on September 29, 2008 the Association again prevailed. Ass'n of New Jersey Rifle and Pistol Clubs, Inc. v. Jersey City, 402 N.J. Super. 650 (App. Div. 2008). The thrill of victory, however, did not last long. After the Supreme Court of New Jersey granted the parties certification, Gov. Corzine signed into law a state-wide limitation of one handgun purchase per month on August 6, 2009. The purpose of the limitation, according to the State, is to prevent illegal gun sales. The theory is that a person who qualifies for a permit to purchase a gun buys weapons for unqualified people.

Having won in court, the Association lost on the political battlefield. At this time the Second Amendment does not apply to the States. Interestingly, New Jersey does not have a provision in its state constitution securing the right to bear arms. Instead, it derives entirely from statute. As a result, it will be interesting to see how the Association does in federal court.

Group sues to overturn NJ's one-gun-a-month law.

“Nothing so completely baffles one who is full of trick and duplicity himself, than straightforward and simple integrity in another.” Charles Colton

"Duplicity" is improper. Arising from joining distinct offenses in one count, duplicity analysis involves two steps. The first step involves statutory interpretation, and the second considers duplicity doctrine policies.

To elaborate, the first step ascertains whether an indictment properly charges a violation of the pertinent statute. To do this, courts look for legislative intent in a statute's plain text, legislative history, and judicial precedent. The second step examines concerns about charging in one count what could be several independent charges. A finding of duplicity is avoided only when these concerns are not implicated.

There are several purposes for prohibiting duplicity. First, based on a concern for accurate verdicts, duplicity can produce uncertain general verdicts of guilt which may conceal a finding of guilt as to one crime and not guilty as to another. The Second, concerned again with accuracy, to avoid the risk that the jurors may not have been unanimous about any one of the crimes charged. Third, to protect the defendant's right to notice of the charges, and to ensure notice is adequate. Fourth, to provide for appropriate sentencing. Finally, to protect against double jeopardy. These policy considerations overlap with concerns for fundamental fairness and due process. These areas of law may actually prohibit combining what could be several independent charges into a single count, even if a statute appears to allow it.

United States v. Thomas L. Root (3d Cir. 2009).