Presidential Tweeting: Private or Government Speech?

This post is written by Associate Editor Alex Kubala. Opinions and views expressed herein are those of the writer alone.

 

One of the many duties of the President of the United States is to communicate with the American people. Whether through in-person meetings, televised speeches, or “fireside chats,” Presidents have a lot of options when it comes to picking a mode of communication, which now includes social media.[1] Although former President Barack Obama also had a twitter account while in office, President Donald Trump is perhaps most famous for using twitter as a favored mode of communication, both during his campaign and throughout his presidency. There are three main twitter accounts associated with this President, which include his personal account, “@RealDonaldTrump,” a presidential account “@POTUS,” and a White House account “@WhiteHouse.”

This new age of technological communication presents interesting First Amendment questions with respect to the President’s habitual social media usage.[2] Though there are multiple twitter accounts, does the President’s personal twitter account constitute private speech made by a private citizen or as government speech from the highest public official? People use twitter for many different reasons such as venting frustrations, sharing details of their day, and generally communicating a variety of ideas, and the President does not appear to be immune to any of these. However, if the President writes a tweet that intentionally antagonizes another foreign leader or discusses foreign affairs, does that constitute government speech?[3] Does the content of the tweet matter in deciding if this is government speech, or are all of his tweets in his personal account since his inauguration considered a representation of the U.S. Government?

In July of this year, President Trump tweeted from his personal account, “North Korea has just launched another missile. Does this guy have anything better to do with his life? Hard to believe that South Korea and Japan will put up with this much longer. Perhaps China will put a heavy move on North Korea and end this nonsense once and for all!”[4] President Trump has also tweeted several insults directed at North Korea’s Kim Jong Un.[5] Does it matter which twitter account posts these messages in determining if this is government speech?

It is assumed that a President will strategically communicate with foreign leaders, mostly behind closed doors, but this country has never had a President so candidly share his opinions on such a readily available communication platform.[6] When one becomes President of the United States, that person is the President twenty-four hours a day, seven days a week until that person’s term ends, or he or she is impeached, or resigns. Thus, when Donald Trump tweets from his personal account, he does not stop being the President simply because he wants to personally vent on his own twitter. Also, it is hard to make the argument that his tweets involve some sort of “right to privacy” since he is sharing his opinions in a public forum.[7] Thus, should his personal account be considered functionally the same as the White House twitter account? It is hard to imagine the White House tweeting many of the things President Trump tweets from his own account because one assumes government speech takes a more professional tone.

Government speech is treated differently than private speech when examined by a court.[8] Thus, how these tweets are characterized as either private or government speech would determine how they were examined.[9] The First Amendment implications of a President’s antagonizing and potentially dangerous tweets is uncharted constitutional territory. This author is not suggesting that it is necessarily a wise policy to monitor Presidential speech as that could interfere with the duties of the office. But, could it be possible that a truly outrageous Presidential tweet should be removed for endangering public safety? Or is the President just held politically accountable?[10] These are questions with no clear answers.

 

 

[1] Scott Horsley, Episode 2: White House Press Corps, Civics 101 Podcast (Jan 25, 2017).

[2] See U.S. Const. amend. I.

[3] See Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S.Ct. 2239 (2015).

[4] Donald Trump (@RealDonaldTrump), Twitter (Jul. 3, 2017, 10:19 PM, 10:24 PM); See Saba Hamedy and Joyce Tseng, All the Times President Trump has Insulted North Korea, CNN (Dec. 1, 2017, 10:25 AM). http://www.cnn.com/2017/09/22/politics/donald-trump-north-korea-insults-timeline/index.html [hearinafter Hamedy].

[5] See Hamedy.

[6] See U.S. Const. art. II.

[7] See generally Rene Reyes, Do Even Presidents Have Private Lives? The Case for Executive Privacy as a Right Independent of Executive Privilege, 17 Kan. J.L. & Pub. Pol’y 477 (2008).

[8] Pleasant Grove City v. Summum, 555 U.S. 460, 467-68 (2009).

[9] Id. 467-69.

[10] See id. at 468.

Is it unconstitutional for defense counsel to concede an accused’s guilt over the accused’s express objection? (McCoy v. Louisiana)

 

This post is written by Senior Editor Brittany Grigery. Opinions and views expressed herein are those of the writer alone.

As 2018 begins, the Supreme Court will consider the case of Robert McCoy, who was convicted of first-degree murder for the shooting deaths of his estranged wife’s son, mother, and step-father. After firing his public defender, McCoy was represented by Attorney Larry English. An attorney paid by his parents. McCoy maintained his innocence and “emphatically opposed” his attorney’s proposal to concede his guilt. His attorney believed pleading guilty would spare McCoy the death penalty because of the overwhelming evidence against McCoy. A few days before his trial, McCoy attempted to fire English and proceed pro se. The court rejected this request on the ground that it came too late. [1]

When the trial began, English conceded McCoy’s guilt, despite McCoy’s objection. The court permitted English to tell the jury that McCoy had in fact committed the acts for which he was on trial. With the court’s approval, English assured the jury that his “client committed three murders” and told them he “took that burden [of proof beyond a reasonable doubt] off of” the prosecutor. [2]

In an interview with the New York Times, English remembers his pre-trial meeting with McCoy. “I met with Robert at the courthouse and explained to him that I intended to concede that he had killed the three victims,” Mr. English recalled. “Robert was furious and it was a very intense meeting. He told me not to make that concession, but I told him that I was going to do so.” [3] English later explained, “I know that Robert was completely opposed to me telling the jury that he was guilty of killing the three victims … but I believed that this was the only way to save his life.”[4]

McCoy was subsequently convicted and sentenced to death. McCoy appealed the concession of guilt. He is arguing that it violated his constitutional right to have effective assistance of counsel.[5] Specifically, McCoy is arguing that when the accused in a criminal proceeding chooses to defend against the charges rather than admit guilt, the Constitution does not allow his lawyer to override that choice and tell the jury, over the client’s express objection, that the client is guilty. [6]

The Louisiana Supreme Court found that English made a reasonable strategic decision to admit McCoy’s guilt and thereby supposedly improve McCoy’s chance of receiving a life sentence rather than death.[7] Louisiana relies on Florida v. Nixon[8] which holds that when a defendant is unresponsive after being consulted about whether to admit guilt or claim innocence, no blanket rule demanding the defendant’s explicit consent bars counsel from conceding guilt in the hope of securing a more lenient sentence.[9] But McCoy argues in his brief that it is irrelevant whether an admission of guilt might have been reasonable trial strategy. [10] Once McCoy communicated his contrary decision, that choice was not English’s to make. [11]

The Cato Institute[12] filed an amicus brief in support of McCoy. It argues that the constitution protects the autonomy of criminal defendants, overruling a defendant’s decision to deny guilt violates defendant autonomy, and failure to protect defendant autonomy will undermine the integrity of the entire judicial process. [13]

Oral argument is set for Wednesday, January 17, 2018.

[1] Amy Howe, Justices issue orders from “long conference”, SCOTUSblog (September 28, 2017, 10:54 am), http://www.scotusblog.com/2017/09/justices-issue-orders-long-conference/

[2] Brief of Petitioner at 2, McCoy v. Louisiana, 218 So. 3d 535 (La. 2016) (No. 16-8255).

[3] See Adam Liptak, Facing the Death Penalty With a Disloyal Lawyer, NY Times (October 9, 2017), https://www.nytimes.com/2017/10/09/us/politics/death-penalty-supreme-court-attorney.html?_r=0

[4] See Adam Liptak, Facing the Death Penalty With a Disloyal Lawyer, NY Times (October 9, 2017), https://www.nytimes.com/2017/10/09/us/politics/death-penalty-supreme-court-attorney.html?_r=0

[5] Amy Howe, Justices issue orders from “long conference”, SCOTUSblog (September 28, 2017, 10:54 am), http://www.scotusblog.com/2017/09/justices-issue-orders-long-conference/

[6] Brief of Petitioner at 19, McCoy v. Louisiana, 218 So. 3d 535 (La. 2016) (No. 16-8255).

[7] Id. at 2.

[8] Florida v. Nixon, 543 U.S. 175 (2004)

[9] Brief of Petitioner at 2, McCoy v. Louisiana, 218 So. 3d 535 (La. 2016) (No. 16-8255).

[10] Id.

[11] Id.

[12] Brief for The Cato Institute at 1, McCoy v. Louisiana, 218 So. 3d 535 (La. 2016) (No. 16-8255) (The Cato Institute is a nonpartisan public policy research foundation founded in 1977 and dedicated to advancing the principles of individual liberty, free markets, and limited government. Cato’s concern in this case is defending and securing the principle of defendant autonomy, and ensuring that the criminal defense bar functions as a check on government power through zealous representation of individual citizens – not as an arm of the state imposing its own view of the good on unwilling defendants.)

[13] Id.

Civil Asset Forfeiture

This post is written by Associate Editor Alex Wilcox. Opinions and views expressed herein are those of the writer alone.

Civil asset forfeiture is currently one of the most highly contested legal processes in the United States. The process allows for law enforcement agencies to seize and subsequently sell off real property suspected to be used in the commission of or garnered from illegal activity, without charging the owner criminally, much less obtaining a conviction. U.S. citizens who have had the displeasure of dealing with the process hate it and feel that it violates their rights granted to them by the Constitution, but lawmakers contend that it is the most direct and effective method at combatting the influence of narcotics and their purveyors in the United States.

The notion of the sovereign acquiring real property from its citizens without the need for a finding of criminal guilt is one that dates back, in common law, to England. The Crown would either seize the actual ships believed to be engaging in smuggling or piracy or create a cause of action in rem against the ship itself while the owner was out of the jurisdiction.[1] An early U.S. Congress used similar laws based on British admiralty laws to collect customs duties needed to fund the fledgling nation. By the Prohibition Era, forfeiture had taken a form similar to that of today, bootleggers’ cars, equipment, and money were seized by the government regardless of the guilt of the perpetrators. The war on drugs had begun in the 1980s and in 1984 the Comprehensive Crime Control Act was passed to allow federal and local law enforcement agencies to seize large sums of cash, drugs, and related items believed to be used in relation to crime, and to distribute the funds amongst the police bodies. The ability of policing agents being allowed to retain the vast majority of proceeds from civil forfeitures has raised the eyebrows of many who suspect this motivates officers to seize all they can and return only what proceeds the owner can afford to defend.

Today civil asset forfeiture is alive and well. Texas collected $53 million dollars in assets in 2015 through the legal process, but many Americans take issue with how the assets are seized.[2] In the Supreme Court Case U.S. v. Ursey, Justice Rehnquist defended the practice and made the clear ruling that civil asset forfeiture proceedings are against the personalty named in the complaint and not the actual owner.[3] This opinion has caused significant issues regarding innocent individuals feeling that their rights have been violated.

The Bennis v. Michigan case illustrates the opinion of a majority of states, that regardless of the co-owner of a cars criminal innocence, her car can be seized and sold off by the state without her having any part of the civil legal process.[4] The court made a point to discuss that due process was not violated through civil asset forfeiture because the proceeding was against personal property and not Mrs. Bennis, the owner of the car.[5] Her innocence in the criminal matter was wholly irrelevant because forfeiture is used as a remedial measure against the property and not a punitive one against the owner.[6] While Bennis may no longer be good law, it took until 2012 for Congress to allow protections for property owners that did not consent to illegal use of their property. This does not however address the issue regarding wholly innocent property owners perceived to be entangled in criminal acts having their property seized and being forced into the complex legal system to reclaim the bargain bin value of their property which is likely to have been long sold regardless.

While proponents of civil asset forfeiture are certainly correct that it can be used to appropriately and effectively to drain cartels’ coffers, those ends do not justify the means of innocent U.S. citizens having their property taken by the government without adequate legal recourse to make them entirely whole.

 

[1] David Benjamin Ross, Comment, Civil Forfeiture: A Fiction That Offends Due Process, 13 Regent U. L. Rev. 259, 262 (2000-2001).

[2] Tex. Atty. Gen., Ann. Rep. of Forfeits (2015). https://www.texasattorneygeneral.gov/files/cj/Annual_Report_of_Forfeited_Funds2015.pdf

[3] See United States v. Ursery, 518 U.S. 267, 270-72 (1996)

[4]See  Bennis v. Michigan,  516 U.S. 442 (1996).

[5] Id.

[6] Id.

Unreasonable Searches?

This post is written by Associate Editor Josh Kemme. Opinions and views expressed herein are those of the writer alone.

Imagine that you and your family are going on vacation and decide to lease a rental car for the trip. Dad fills out the rental agreement for the vehicle (which states that only he has permission to drive it), you pack up the trunk, and soon you are on your way to paradise. After arriving at your vacation destination, your father gives you the keys and tells you to park the car. While looking for a parking spot, you unintentionally drive through a stop sign, and a vigilant police officer pulls you over. The officer notices your nervousness (as you are afraid of the police) and asks to search the vehicle, which is still packed with your family’s belongings. Not wanting to have these personal belongings disturbed and searched through, you decline the officer’s request. Does the officer still have the authority to search the rental vehicle?

Because you did not sign the rental agreement for the car and are not listed as an authorized driver, the answer to this question depends in large part upon where your family decided to vacation. There exists a current split in both federal and state courts as to whether the driver of a rental car has a Fourth Amendment reasonable expectation of privacy in the vehicle (and thus the power to withhold consent to a search)[1] when he or she is not named in the rental agreement.[2] Two federal circuit courts of appeal and four state supreme courts are of the view that an unlisted driver of a rental vehicle may object to a search of that vehicle so long as he has received permission to drive the car from the true renter (Dad in this case).[3] Meanwhile, four federal circuit courts and two state supreme courts have taken the opposite approach, holding that unlisted drivers generally have no reasonable expectation of privacy in the rental vehicle, even if they have gained permission from an authorized driver to use the vehicle.[4]

The Eight and Ninth Circuit Courts as well as the state high courts of Nebraska, New Mexico, Texas, and Oklahoma, believe that a person who is not authorized to drive a rental car gains a reasonable expectation of privacy in that car, and may object to a search, when he or receives permission to drive it from the true renter.[5] This expectation of privacy exists in part because, by giving consent, the renter is authorizing the driver to use the vehicle as the renter himself would.  Once permission is received, an unlisted driver may drive the vehicle as if he were the true renter, and he may object to requests by the police to search the vehicle. These courts are of the view that a renter’s consent creates in the unlisted driver a possessory interest in the vehicle as well as the right to exclude unwelcome passengers.[6]

On the other hand, the federal appellate courts of the Third, Fourth, Fifth, and Tenth Circuits, and the high courts of Montana and Arkansas, have found that an unlisted driver can almost never obtain a reasonable expectation of privacy in a rental car, meaning that the police can search the vehicle regardless of whether the driver consents.[7] In these jurisdictions, only the actual renter (the person who signed the rental agreement) may claim an expectation of privacy in the rental car, as they are the only persons who have received authorization to drive the vehicle from the rental company.  Because only the renter has permission to drive the car, the renter has no legal authority to allow another person to operate the car or to empower him to exclude others from the vehicle.[8] Because an unlisted driver has no authorization to drive the rental car, he can claim no expectation of privacy in the vehicle. Thus, in these jurisdictions, a driver has no right to challenge the search of a rental car by the police when he is operating it without express authorization from the rental company.[9]

At long last, it appears the Supreme Court is prepared to solve this current federal and state court split in the case of Byrd v. U.S.[10] Terrence Byrd was driving a rental car that his girlfriend had signed for and had given him permission to drive when he was pulled over by State Troopers on a Pennsylvania interstate highway.[11] Unfortunately for Byrd, his traffic stop occurred in the Third Circuit’s jurisdiction, meaning that he had no power to object to the officers’ search of the vehicle. The search ultimately led to the discovery of copious amounts of heroin in the rental car and Byrd was subsequently convicted.[12] In affirming Byrd’s conviction, the Third Circuit acknowledged the current split in authority regarding an unauthorized driver’s privacy expectations and ability to object to searches, but found itself bound by past precedent.[13] Byrd thereafter petitioned to the United States Supreme Court.

In granting Byrd’s petition for certiorari, the Supreme Court has finally decided to provide some clarity to a question that has been splitting both federal and state court authorities. However the Court rules, the impact of its holding will effect more than just those unlisted drivers transporting illegal contraband in their rental cars. Officers conduct vehicle searches on both the innocent as well as the guilty, with guilt often being determined only after the search occurs. It will be interesting to see how the Court decides, especially with the Holidays and vacation season nearing. In the meantime, the reader may want to think twice about offering to drive the family rental car if you are not listed on the vehicle rental agreement. You might just end up with a very unhappy family if you don’t drive too carefully.

 

[1] See Minnesota v. Carter, 525 U.S. 83, 88 (1998) (“In order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable”).

[2] United States v. Kennedy, 638 F.3d 159, 165- 67 (3d Cir. 2011).

[3] Petition for Writ of Certiorari at 12, Byrd v. United States, 679 Fed.Appx. 146 (3d Cir. 2017) (No. 16- 1371).

[4] Id.

[5] Id.

[6] United States v. Thomas, 447 F.3d 1191, 1198-99 (9th Cir. 2006).

[7] Petition for Writ of Certiorari at 15-17, Byrd, 679 Fed.Appx. 146 (3d Cir. 2017) (No. 16- 1371).

[8] Brief for the United States in Opposition at 7, Byrd v. United States, 679 Fed.Appx. 146 (3d Cir. 2017) (No. 16-1371).

[9] Id.

[10] United States v. Byrd, 679 Fed.Appx. 146 (3d Cir. 2017), cert. granted, Byrd. U.S., — S.Ct. —-, 2017 WL 2119343 (Mem)

[11] Id. at 148.

[12] Brief for the United States in opposition, supra note 8, at 3. The officers also found body armor in the trunk. Id. Byrd was charged with and convicted of possession of heroin with intent to distribute as well as possession of body armor by a prohibited person. Id.

[13] Byrd, 679 Fed.Appx. at 150.

Thoughts on Sentencing Guidelines: Beckles v. United States

This post is written by Associate Editor Julie Allen. Opinions and views expressed herein are those of the writer alone.

The United States has a long and complicated history with criminal sentencing—and issues related to criminal sentencing are still being argued before the Supreme Court.  Beckles v. United States is the most recent in a long line of these cases.  In this case, the police charged Travis Beckles (the Petitioner) with one count of possession of a firearm by a convicted felon, in violation of 18. U.S.C. §922(g)(1).[1]  The presentence investigation report recommended that Petitioner be sentenced as a career offender, relying on the commentary to §4B1.2 (the advisory Guidelines), because Petitioner possessed a sawed-off shotgun.[2]  The designation as a career offender enhanced Petitioner’s sentence from a range of 262 to 327 months to a range of 360 months to life.[3]   Argued before the Supreme Court in November 2016 and decided in March 2017, Beckles raised the issue of whether commentary to the Sentencing Guidelines is void for vagueness, based on a similar argument made in Johnson v. United States, which the Supreme Court decided in 2015.[4]

The issue of enhanced sentences first arose in context of the Advanced Career Criminal Act (“ACCA”), under which this Court found the residual clause, which defined violent felony as “[…] any crime involves conduct that presents a serious potential risk of physical injury to another” unconstitutionally vague.”[5]  In determining the residual clause was unconstitutionally vague, the Court stated that the “indeterminacy of the wide-ranging inquiry [in the sentencing procedure] by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges.”[6]  In other words, part of due process requires that when a defendant commits a crime he or she is aware of what the punishment may entail.  The residual clause of ACCA did not give the required notice because it was so vague as to be arbitrary (meaning that any defendant who committed a crime could not even guess as to what his sentence would be).

The defendant, Travis Beckles, argued that Johnson applied to the Sentencing Guidelines, because the residual clause that applied to Beckles used the same language that was found “void for vagueness” in ACCA.[7]  Writing for the majority of the Court, Justice Thomas found that the Sentencing Guidelines could not be subject to a vagueness challenge because judges have discretion to deviate from the Guidelines when determining a sentence—in other words, the Guidelines are advisory-only, unlike the ACCA.[8]

So, what does this decision mean for defendants going forward? This decision clearly (or maybe not so clearly, per Justice Kennedy) ends any vagueness challenges to the advisory guideline provisions.  Justice Thomas noted that all the advisory guidelines are all equally vague, so allowing one to be subject to vagueness challenge would open the proverbial floodgates.[9]  Although concurring with Justice Thomas, Justice Kennedy noted that the “vagueness” door may not be closed yet—and that there may be a time where a sentence, or a pattern of sentencing, that is so arbitrary that it implicates constitutional challenges.[10]  Until then, however, whenever a judge uses her discretion under the Sentencing Guidelines advisory guidelines to set a sentence, a defendant will not be able to raise vagueness to challenge it.

[1] Beckles v. United States, 580 U.S. 866, 891 (2017).

[2] Id.

[3] Id.

[4] Id.

[5] Johnson v. United States, 135 S. Ct. 2551 (2015).

[6] Id. at 2557.

[7] Beckles at 891.

[8] Id. at 894.

[9] Id. at 895.

[10] Id. at 897.

Short-Term Payday and Title Loans Present Long-Term Problems for Consumers

This post is written by Lead Articles Editor Alexa E. Wainscott[i]. Opinions and views expressed herein are those of the writer alone.

 

alex1

Advertised as convenient solutions for cash-strapped consumers seeking to cover an unexpected expense between paychecks, such as a car repair or medical expense, payday, auto title, and other short-term loans regularly become long-term problems for borrowers. Although purportedly intended to cover temporary, emergency expenses that will be repaid in weeks, payday loans are often used to cover ordinary or recurring expenses, such as utilities and credit card bills, and the average borrower spends five to seven months out of the year in “short-term” indebtedness.[ii]  Interestingly, lenders often disseminate advertisements warning that payday loans are not long-term financial solutions, while simultaneously offering incentive programs that offer discounts after increasing numbers of loan transactions, keeping consumers hooked in a dangerous cycle.[iii]

Preying on financially vulnerable populations—due to the widespread availability of the loans, despite consumer credit deficiencies— lenders charge sky-high interest rates and require prompt repayment, which can force borrowers to take out additional loans, trapping them in cycles of debt. Roughly four out of five short-term borrowers end up re-borrowing within a month, according to the Consumer Financial Protection Bureau (CFPB), and more than a quarter eventually re-borrow more than eight times.[iv] Many argue “that consumers are being set up to fail,” because unaffordable loan payments force them to “choose between defaulting, re-borrowing, or skipping other financial obligations like rent or basic living expenses.”[v] In addition to repeat borrowing, other problems commonly associated with short-term loans include defaults, vehicle seizures, bank penalty fees (for insufficient funds, etc.), and bank account closures.

The most common types of short-term loans in this context are payday and auto title loans. Payday loans are for small amounts and due in full at the time of the borrower’s next paycheck, generally two to four weeks.[vi] These loans usually carry absurdly high interest rates of well over 300%, and borrowers typically allow the lender access to their bank accounts to electronically debit the payments when due.[vii] Auto title loans are similar, but the borrow must put up her vehicle title as collateral for the loan. According to CFPB research, one out of five single-payment auto title loans end up in vehicle seizure for failure to repay.[viii]

 

The CFPB and New October 2017 Short-Term Lending Rules

To help regulate federal consumer protections and combat predatory lending activity, including high-risk short-term loans, the Consumer Financial Protection Act created the CFPB in 2010.[ix] The CFPB is charged with broad rulemaking authority under Title X, subject to few restrictions.[x] In October 2017, the CFPB promulgated a new rule[xi] aimed at forcing lenders to determine if borrowers can actually repay their loans, which expressly applies to single-payment short-term payday and auto title loans—i.e. loans that require the borrower to repay all or most of the borrowed amount at once.[xii]

One part of this rule requires a “full-payment test.”[xiii] Lenders are required to collect enough financial information from prospective borrowers to determine if they have sufficient income to repay the loan and meet all major financial obligations and cover living expenses during the term of the loan and for thirty days thereafter.[xiv] Household members’ income may be taken into account if the borrower has verified access to the income.[xv] Two other protections include: (1) a requirement that lenders must offer a thirty-day “cooling-off period” after the third covered loan taken out in quick succession; and (2) a “debit attempt cut-off,” meaning that after two unsuccessful attempts to debit the borrower’s account (for insufficient funds, or whatever reason), the lender is prohibited from debiting the account again without the consumer’s consent.[xvi] The rule provides that it is in addition to any state protections afforded to consumers.[xvii]

A second part of the rule allows an exception to the full-payment test “if [the loan] is structured to allow the borrower to get out of debt more gradually.”[xviii] Under this principal-payoff option, the consumer can repay the loan in one payment, or she can have up to two subsequent loans where the principal is slowly paid down.[xix] This option is restricted to lower-risk situations, up to $500 for an initial loan, and lenders cannot take vehicle titles as collateral.[xx] Additionally, lenders are barred from lending to consumers with other recent outstanding short-term loans.[xxi] Lenders also may not make more than three loans of this sort in quick succession, and this option does not apply if the consumer has already had more than six short-term loans or been in debt for more than ninety days on short-term loans over a rolling twelve-month period.[xxii] Also, the lender can only offer extensions under this option if the borrower has paid off at least one-third of her original principal per extension, a provision specifically aimed at combatting the debt trap.[xxiii] Lastly, the lender must disclose all terms of the option to consumers in plain language.[xxiv]

 

Ohio’s Short-Term Loan Protections: Mere “Smoke and Mirrors?”

The Ohio Legislature has also attempted to address predatory payday lending, passing the Short-Term Lender Act (STLA) in 2008.[xxv] Under the STLA, lenders may not issue short-term loans over the phone, by mail, or through the internet, and the maximum allowable loan amount is $500, with a minimum duration of thirty-one days.[xxvi] Additionally, the interest rate is capped at 28% APR, and the amount due under the loan cannot exceed 25% of the borrower’s gross salary.[xxvii] The STLA requires payday lenders to register as short-term lenders under the Act.[xxviii] However, under the current state of Ohio law, it is relatively easy for lenders to escape the Act’s requirements by—legally— circumventing its registration requirement.[xxix]

The Ohio Supreme Court ruled in 2014 that the STLA did not prohibit Mortgage Loan Act (MLA) registrants from making short-term single payment loans, and the traditional single-installment payday loan is alternatively covered under the MLA as an interest-bearing loan.[xxx] Thus, payday lenders have been able to evade the requirements of the STLA by registering as MLA lenders, bypassing the STLA’s consumer-protection restrictions. Additionally, many lenders avoid the MLA’s caps by tacking on substantial additional fees for their services in assisting the consumer in “finding” the loan, as the lender is characterized as a Credit Service Organization under Ohio Law.[xxxi]

In the Ohio Neighborhood Finance case, the lender had been previously licensed under the now-repealed Check-Cashing Lender Law, but he failed to register under the STLA when it was enacted. He was, however, licensed under the MLA, under which he could charge amounts less than those under the Check-Cashing Lender Law, but still greater than permitted under the STLA.[xxxii] The borrower asserted that payment was not required because the lender was not authorized to make short-term single-installment “payday” loans.[xxxiii] The questions presented to the Ohio Supreme Court were: (1) whether the MLA permits single-installment, interest-bearing loans; and (2) if so, whether the MLA prohibits lenders from making short-term loans of this sort.[xxxiv]

The court reasoned that the unambiguous statutory language of the MLA compelled the conclusion that registrants under it could issue payday-style loans, and the existence of the STLA does not preclude them from doing so freely.[xxxv] Recognizing the obvious weakness of the STLA, but careful not to exceed the bounds of its judicial authority, the court reasoned that “[i]f the General Assembly intended to preclude payday-style lending of any type except according to the requirements of the STLA, our determination that the legislation enacted in 2008 did not accomplish that intent will permit the General Assembly to make necessary amendments to accomplish that goal now.”[xxxvi] In his concurrence, Justice Pfeifer lamented the failure of the legislature to effectively combat the issue of predatory payday lending: “How can the General Assembly set out to regulate a controversial industry and achieve absolutely nothing? Were the lobbyists smarter than the legislators? Did the legislators realize that the bill was smoke and mirrors and would accomplish nothing?”[xxxvii]

The Ohio Neighborhood Finance case is an example of the lengths to which lenders will go to bypass strict lending restrictions, and it should serve as a reminder that, as a result, legislators must be responsive to courts’ intervention to facilitate the protections that the legislation was originally intended to provide. Accordingly, despite the hopeful outlook surrounding the CFPB’s October 2017 rules strengthening consumer protections against short-term predatory lending at the federal level, consumer optimism must be qualified and somewhat reserved. As in the case of the STLA in Ohio, there are almost always loopholes to be exploited in legislation and administrative regulations, and, in the case of payday and vehicle title loans, predacious lenders stand at the ready to find them.

 

[i] Alexa E. Wainscott is a third-year student at Chase College of Law and the Lead Articles Editor of the Northern Kentucky Law Review.

[ii] The Pew Charitable Trusts, Payday Lending in America: Who Borrows, Where They Borrow, and Why 15 (2012) http://www.pewtrusts.org/~/media/legacy/uploadedfiles/pcs_assets/2012/pewpaydaylendingreportpdf.pdf.

[iii] Id.

[iv] Jackie Wattles, New Payday Loan Rules: What You Need to Know, CNN Money (Oct. 7, 2017, 5:52 PM ET), http://money.cnn.com/2017/10/07/pf/payday-loans-cfpb-rule/index.html.

[v] Consumer Financial Protection Bureau, CFPB Finalizes Rule to Stop Payday Debt Traps 1 (Oct. 5, 2017) http://files.consumerfinance.gov/f/documents/201710_cfpb_fact-sheet_payday-loans.pdf.

[vi] Id.

[vii] Id.

[viii] Id. at 2.

[ix] See Prac. Guide to Consumer Fin. Protection Bureau Regs. § 3:1; see also Title X § 1002(14), 12 U.S.C. § 5481(14).

[x] See Prac. Guide to Consumer Fin. Protection Bureau Regs. § 3:3; see also Title X § 1022(b)(4)(A), 12 U.S.C. § 5512(b)(4)(A).

[xi] See 12 CFR Part 1041. The text of the rule is available at:  http://files.consumerfinance.gov/f/documents/201710_cfpb_final-rule_payday-loans-rule.pdf.

[xii] Consumer Financial Protection Bureau, CFPB Finalizes Rule to Stop Payday Debt Traps 1 (Oct. 5, 2017) http://files.consumerfinance.gov/f/documents/201710_cfpb_fact-sheet_payday-loans.pdf.

[xiii] Id. at 3.

[xiv] Id.

[xv] Id.

[xvi] Id. at 3, 6.

[xvii] Id. at 3.

[xviii] Id. at 4.

[xix] Id.

[xx] Id.

[xxi] Id.

[xxii] Id.

[xxiii] Id.

[xxiv] Id.

[xxv] Short-Term Lender Law (Payday Lending Law), Ohio Rev. Code Ann. §§ 1321.35– 1321.48.

[xxvi] Payday Lending in Ohio: How Lenders Get Around the Rules, Nolo Legal Encyclopedia (2017), https://www.nolo.com/legal-encyclopedia/restrictions-payday-lending-ohio.html.

[xxvii] Id.

[xxviii] Id.

[xxix] Id.

[xxx] Ohio Neighborhood Fin., Inc. v. Scott, 139 Ohio St.3d 536, 547 (Ohio 2014).

[xxxi] Payday Lending in Ohio: How Lenders Get Around the Rules, Nolo Legal Encyclopedia (2017), https://www.nolo.com/legal-encyclopedia/restrictions-payday-lending-ohio.html.

[xxxii] Ohio Neighborhood Finance, 139 Ohio St.3d at 540.

[xxxiii] Id.

[xxxiv] Id. at 541.

[xxxv] Id. at 547.

[xxxvi] Id. at 546.

[xxxvii] Id. at 547–8.

Is Ezekiel Elliot just delaying the inevitable?

This post is written by Senior Editor John Roberts. Opinions and views expressed herein are those of the writer alone.

In late July, 2016, an ex-girlfriend alleged that Dallas Cowboys’ star running back Ezekiel Elliott committed multiple acts of violence against her that amounted to domestic violence.  Weeks later, Ohio prosecutors announced that Elliott would not be charged with domestic violence, citing conflicting evidence gathered in their investigation.  However, as Elliott soon would soon find out the hard way, the lack of criminal charges did not immunize him from discipline in the workplace. On August 11, 2017, over a year after the alleged incidents took place, the NFL suspended Elliott six games for a violation of their personal conduct policy.  The suspension triggered a fascinating legal tug-of-war that has yet to conclude to this day.  This post will explore the intricacies of that legal battle that has assuredly confused many NFL fans unfamiliar with the law, and attempt to hash out the likely outcome for Elliott.

 

To begin, it is important to note what gave the National Football League [“NFL”] the power to suspend Elliott despite Ohio prosecutors declining to press charges.  As an employee of the NFL, Elliott is subject to the terms of the Collective Bargaining Agreement [“CBA”], the management-labor relationship entered into between the NFL and the NFL Players’ Association [“NFLPA”].  Article 46 of the CBA, titled “Commissioner Discipline”, empowers the commissioner to punish a player who engages in “conduct detrimental to the integrity of, or public confidence in, the game of professional football.”[1]  The effect of Article 46 is that the NFL commissioner, currently Roger Goodell, is given widespread authority to determine what conduct is actionable under this section.  In Elliott’s case, the NFL’s investigation yielded enough credible enough to convince the commissioner (and his four hired experts) that Elliott did violate the CBA’s personal conduct policy, leading to Elliott’s six-game suspension.

 

Next, before he could realistically file a lawsuit, Elliott had to utilize all administrative remedies available to him under the CBA.  Pursuant to Article 46 of the CBA, Elliott was required to appeal the suspension back to Goodell.  Article 46 instructs the commissioner to consult with the NFLPA and appoint a hearing officer to hear the appeal, reflecting a right collectively bargained for by the NFLPA.  After the appeal hearing but before the hearing officer came down with a decision to uphold, reduce, or vacate Elliott’s suspension, Elliott joined with the NFLPA in filing a complaint against the NFL in the U.S. District Court for the Eastern District of Texas.  The complaint, filed on August 31, 2017, sought that the court vacate any discipline upheld by the pending appeal pursuant to the CBA.  The lawsuit was a “forum-shopping” tactic adopted by the NFLPA and its lawyers in attempt to have his lawsuit heard in a favorable court for him, a forum that avoided the U.S. Court of Appeals for the Second Circuit where the NFL could rely on favorable precedent in the Brady case a year prior. In addition to the filing of the complaint, Elliott filed a separate petition for a temporary restraining order [“TRO”] a day later.  The TRO, if granted, would prevent the NFL from imposing any suspension until after the completion of the lawsuit.

 

It is important to note that Elliott’s success in court relied on him showing that the process employed by the NFL was badly flawed, not whether his conduct amounted to domestic violence against his former girlfriend.  The TRO presented the first question to be decided in Elliott and the NFLPA’s lawsuit against the NFL. Under the Federal Rules of Civil Procedure, a plaintiff seeking a TRO must show: “(1) a substantial likelihood of success on the merits, (2) a substantial threat that plaintiff will suffer irreparable harm if the injunction is not granted; (3) the threatened injury outweighs any damage that the injunction might cause the defendant; and (4) the injunction will not disserve the public interest.”[2]  This was an uphill battle faced by Elliott and his lawyers, as they had to convince a judge who had widespread discretionary power that all of the four factors were met.  As to the first element, Elliott cited a number of shady tactics employed by the NFL that amounted to the NFL denying him of his rights in the appeal process, including the NFL’s obscuring of evidence that weighed in his favor and the denial of his ability to cross-examine his ex-girlfriend on appeal.  Elliot also argued that he would be “irreparably harmed” without an injunction because even though monetary damages could make up for lost game checks, an NFL career lasts on average less than four years and missing part of the season could deprive Elliott of individual successes and honors.  In siding with Elliott on the first two elements and finding that issuing an injunction does not eviscerate the internal procedures employed under the CBA, on September 8, 2017, the U.S. District Court for the Eastern District of Texas granted the TRO and – stunningly – a preliminary injunction, which allowed Elliott to start the season and play for the foreseeable future until the court case was resolved in the federal court system.

 

In response, the NFL predictably appealed the case to the Fifth Circuit Court of Appeals seeking an emergency stay on the injunction, which would result in Elliott’s suspension being imposed immediately if granted.  The NFL asserted two main arguments: (1) Elliott’s lawsuit was not “ripe for review” in the sense that he had not exhausted administrative remedies when he filed the lawsuit before the appeal was upheld by a hearing officer under the CBA, and (2) the NFL complied with the relatively vague process agreed upon by the NFL and the NFLPA in the CBA. On October 12, 2017, the Fifth Circuit was convinced by the NFL’s argument to vacate the preliminary injunction, stressing that Elliott failed to wait for the potential resolution through the private arbitration process, and that judges have not been persuaded to recognize rights that the NFLPA failed to acquire through collective bargaining with the NFL.

 

Although Elliott had lost his injunction in the Fifth Circuit, the NFL had previously filed a lawsuit in the Southern District of New York, effectively seeking to have the Court confirm and enforce the arbitration discipline.  This gave Elliott a chance to litigate the rest of the case in New York or seek the long shot of review from the Supreme Court; Elliott of course decided to keep fighting the suspension in the New York court.  He filed for the identical TRO that he had in place in the Texas court, only in New York.  At this point, Elliott had been fortunate enough to have not missed a game yet in the NFL season, but the tides were turning in the NFL’s favor.  Just as it seemed he would miss his first game of the season in week 8, the Southern District of New York granted his request for a TRO in a October 17, 2017 ruling.  This allowed him to play until his preliminary injunction was ruled on within the next fourteen days.   When it came time to rule on the preliminary injunction though, Judge Katherine Failla of the Southern District of New York dissolved the TRO and denied his motion for a preliminary injunction on October 30, 2017.  This was the likely outcome in New York, which was a decidedly less favorable forum due to precedent from the Tom Brady “deflategate” ruling passed down in the Second Circuit the previous year.

 

However, the familiar theme in this case is that as long as there is a higher court, the party ruled against will continue appealing up the board.  This led Elliott to seek a temporary stay of his suspension with the Second Circuit Court of Appeals, which was the rung of the ladder above the New York federal court.  On November 3, 2017, the stay was granted until the Second Circuit Court of Appeals could hear his motion for an injunction, basically setting a placeholder to maintain the status quo until the Second Circuit could hear the argument in full.  Finally, on November 9, 2017, a Second Circuit three-judge panel denied Elliott’s motion for an injunction, reinstating his suspension effective immediately.

 

What does this mean for the future? If this case has taught us anything, it is that there is always another avenue to receive a favorable ruling.  As it stands, Elliott is suspended until an expedited December 1, 2017 ruling, meaning he will miss at the very least the Cowboys’ next four games.  Then, depending on the decision that is rendered, he will more than likely continue serving the remaining two weeks on his six-game suspension given the Second Circuit precedent from the Brady ruling.  However, if on December 1, Elliott is successful in convincing the Second Circuit that Judge Failla incorrectly sided with the NFL, he could receive monetary damages for the four games he missed (an empty victory in his mind) but would more than likely be able to play out the rest of the season until the Second Circuit could decide on his appeal in the offseason.  However, as the battle rages on, it appears less and less likely that Elliott will be able to somehow sit out less than six games.   The most likely outcome here is that the Second Circuit will side with Judge Failla and the NFL, which would likely cause Elliott to request an en banc review in front of all judges on the Second Circuit.  These reviews are granted in only one percent of cases.  In the same vein, Elliott could then appeal to the Supreme Court of United States, which only reviews one percent of those cases. All things considered, the December 1, 2017 ruling is in all likelihood Elliott’s last bite at the seemingly never-ending apple.  Unfortunately for him and the Cowboys, if he is unsuccessful, he will be sitting out weeks 10-15 of the NFL season, which are pivotal in setting up for the playoffs.  Despite the back and forth in the United States federal court system, it looks like Ezekiel Elliott’s appeal will join the ranks of unsuccessful appeals previously fought by players such as Adrian Peterson and Tom Brady.  If the NFLPA can learn anything from the NFL’s more contested enforcement of the personal conduct policy, it is that when it comes time to collectively bargain for a new CBA, the NFLPA should fight for a personal conduct procedure that seeks to level the playing field between the players and the commissioner.

 

 

[1] 2011 Nat’l Football League Collective Bargaining Agreement art. 46 (Aug. 4, 2011), archived at https://nfllabor.files.wordpress.com/2010/01/collective-bargaining-agreement-2011-2020.pdf.

[2] Nichols v.  Alcatel USA, Inc., 532 F.3d 364, 372 (5th Cir. 2008).