A Constitutional Commitment to Access to Literacy: Bridging the Chasm Between Negative and Positive Rights

EVAN CAMINKER

Michigan Law dean emeritus Evan Caminker discusses a decision by the U.S. Court of Appeals for the Sixth Circuit, in which that court held that the Fourteenth Amendment’s Due Process Clause secures schoolchildren a fundamental right to a “basic minimum education” that “can plausibly impart literacy.” Caminker—one of the co-counsel for the plaintiffs in that case—explains why the decision is so remarkable and why the supposed dichotomy between positive and negative rights is not as stark as canonically claimed.

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Huang v. Wells Fargo Bank, N.A.

Docket: A152074(First Appellate District)

Opinion Date: April 29, 2020

Judge: Peter J. Siggins

Areas of Law: Banking, Civil Procedure, Real Estate & Property Law

In 2000, the Fasslers obtained a Wells Fargo (WF) home equity line of credit (HELOC), secured by a deed of trust (DOT). In 2003, they secured a $530,000 World Savings home loan, then obtained another WF HELOC. In 2004, they refinanced, using a $682,500 Countrywide Loan (secured by a DOT) to pay off World Savings and eliminate the HELOC balances. WF never issued any reconveyance of its DOTs. In 2005-2008, the Fasslers drew upon both HELOCs; as of 2016, the outstanding balances totaled over $224,000. In 2007, they refinanced the Countrywide Loan with a $1 million WaMu loan They defaulted. WaMu foreclosed. In 2008, LaSalle obtained title at a nonjudicial foreclosure auction. The following month, WF recorded a notice of default and election to sell under its DOT. The Huangs purchased the property from LaSalle in February 2009. In August 2009, WF recorded its notice of trustee’s sale. The Huangs received the notice when it was posted on their door. The Huangs' suit to quiet title was rejected as time-barred because, more than three years before they filed suit, they were aware of a recorded notice of trustee’s sale. The court of appeal reversed, finding that the notice of sale did not disturb or otherwise interfere with the Huangs’ possession sufficiently to start the running of the limitations period. After receiving the notice of sale, the Huangs provided it to their title insurer. The trustee’s sale did not take place as scheduled; the Huangs heard nothing substantive about the matter for years, while they continuously lived in the home.

Colucci v. T-Mobile USA, Inc.

Docket: D075932(Fourth Appellate District)

Opinion Date: April 29, 2020

Judge: Dato

Areas of Law: Business Law, Civil Procedure, Civil Rights, Labor & Employment Law

T-Mobile USA, Inc. (T-Mobile) appeals a judgment entered on a $5 million jury verdict in favor of former employee Stephen Colucci in a workplace retaliation case. T-Mobile primarily challenged the punitive damages award, arguing insufficient evidence was presented at trial that a T-Mobile agent engaged in retaliatory conduct, or that the agent's actions were malicious or oppressive. Alternatively, T-Mobile argued the $4 million punitive damages award was constitutionally excessive. Stephen Colucci worked for T-Mobile from 2007 until 2014 as the manager of a store in Ontario, California. A series of incidents ranging from a medical accommodation request, defamatory comments made by co-workers, and an allegation that Colucci was running a side business while on duty for his T-Mobile store. On day, complaining of back pain, Colucci was permitted to leave work for the day; while away, Robson recommended to HR that T-Mobile terminate Colucci for "cause" (conflict of interest), notwithstanding no loss prevention investigator interviewed Colucci or any co-workers about Colucci's alleged side-dealings while on T-Mobile time. In making this decision, Robson admittedly bypassed T-Mobile's progressive discipline policy, which might have included a warning or less severe consequence before resorting to termination. Information about the alleged conflict of interest had come almost entirely from the associate; at no point did anyone speak to Colucci about a purported conflict. Unaware of any pending termination, Colucci submitted a formal request to HR for a medical leave of absence. Colucci also lodged a second complaint to T-Mobile's integrity line, reporting that Robson was discriminating against him and neglecting to resolve the defamation incident. Undeterred, Robson proceeded with processing Colucci's termination. Ultimately, a jury returned a unanimous verdict in Colucci's favor on his claim of retaliation, awarding $1,020,042 in total compensatory damages for past and future economic losses, and past and future noneconomic damages and/or emotional distress. After review, the Court of Appeal reduced the punitive damages award to an amount one and one-half times the amount of compensatory damages, but otherwise affirmed the judgment.

Ayala v. Super. Ct.

Docket: D077460(Fourth Appellate District)

Opinion Date: April 29, 2020

Judge: Guerrero

Areas of Law: Constitutional Law, Criminal Law

Emergency Rule 4 established a statewide Emergency Bail Schedule, adopted by the Judicial Council of California in response to the ongoing emergency situation caused by the SARS-Co-Vid-2 pandemic. The Emergency Bail Schedule set bail for all misdemeanor offenses, felony offenses, and violations of postconviction supervision at zero dollars (zero bail), except as specified in the rule. Among other things, the San Diego County Superior Court implemented an order establishing a procedure for handling persons arrested prior to implementation of the Emergency Bail Schedule. These persons were to be released on zero bail, unless the prosecuting agency notified the custodial officer that the agency would be requesting an increase in bail, a " 'no bail' " hold, or the imposition of conditions of release. The order specified that the Emergency Bail Schedule should be implemented in the same manner as the regularly adopted San Diego County bail schedule and asserted that each court "retains the traditional authority in an individual case to depart from the bail schedule or impose conditions of bail to assure the appearance of the defendant or protect public safety." Petitioners challenged the superior court's implementation order as inconsistent with Emergency Rule 4. They contended that bail for offenses and violations covered by the rule should have been set at zero dollars, and the superior court had no authority to increase bail or impose conditions in an individual case. They also contended the implementation order, including the remote hearings contemplated therein, violated various constitutional protections. After review, the Court of Appeal concluded the implementation order was not inconsistent with Emergency Rule 4. Furthermore, the Court concluded petitioners did not show the implementation order or its procedures violated any guarantees of the federal or state constitutions. The Court therefore denied the petitions.

California v. Ashbey

Docket: C083291(Third Appellate District)

Opinion Date: April 29, 2020

Judge: Cole Blease

Areas of Law: Constitutional Law, Criminal Law

Defendant Angel Ashbey briefly lived with two others in a secluded house in a forested area. Ashbey struck one of her roommates in the head with a pipe until he lost consciousness, poured gasoline over him, and threw several lit matches in his direction; none caught fire. After her roommate managed to escape, she set several fires in the house and four more on the forested land around the house. A jury convicted Ashbey of attempted voluntary manslaughter, arson of a structure, and four arsons of forest land. The jury also found true several enhancements relating to these offenses. The trial court sentenced Ashbey to a total of 19 years in prison. On appeal, Ashbey raised seven issues on appeal. Principal among them, as discussed in the published portion of the Court of Appeal's opinion were: (1) she should have been convicted of only one arson of forest land, not four, because she set the several fires on only one parcel of land; (2) even if her four arson convictions were proper, she should have received concurrent, not consecutive, sentences for the four arsons of forest land; (3) the court wrongly instructed the jury about attempted voluntary manslaughter and the right to self-defense; (4) the court wrongly modified one of the jury’s verdict forms; and (5) the abstract of judgment mistakenly referred to each of the four arsons of forest land as an arson of a structure. The Court agreed the abstract of judgment should have been modified for the reasons Ashbey alleged. In all other respects, the Court affirmed judgment.

In re M.R.

Docket: F079971(Fifth Appellate District)

Opinion Date: April 29, 2020

Judge: Charles S. Poochigian

Areas of Law: Family Law

The Court of Appeal affirmed dispositional orders designating the children dependents of the court. The court held that, although the "follow all recommendations" language in the case plan failed to satisfy Welfare and Institutions Code section 1650.1, subdivision (g)(2), the inclusion of the broad language in the case plan was harmless. Furthermore, the court found no Indian Child Welfare Act violation. In this case, mother's claim that she "may have Indian ancestry" was insufficient to trigger the Act's notice requirements, and the agency did not satisfy its duty of inquiry.