Western Michigan University Thomas M. Cooley Law Review - Volume 33 | 2016 | Winter Issue by Cooley Law School

WESTERN MICHIGAN UNIVERSITY THOMAS M. COOLEY LAW SCHOOL BOARD OF DIRECTORS Don LeDuc, President and Dean Hon. Louise Alderson, Vice Chairman Thomas W. Cranmer Sharon M. Hanlon Hon. Stephen J. Markman James C. Morton Edward H. Pappas Hon. Richard F. Suhrheinrich

James W. Butler III Scott A. Dienes Hon. Jane E. Markey Kenneth V. Miller Lawrence P. Nolan, Chairman Hon. Bart Stupak Dennis A. Swan

Cherie L. Beck – Corporate Secretary

Kathleen A. Conklin – Chief Financial Officer, Treasurer

PROFESSOR, FOUNDER, AND PAST PRESIDENT The Honorable Thomas E. Brennan DEANS EMERITI Michael P. Cox, Dean and Distinguished Professor Emeritus Keith J. Hey, Dean and Distinguished Professor Emeritus Robert E. Krinock, Dean and Professor Emeritus (deceased) DISTINGUISHED PROFESSORS EMERITI Curt Benson Kathleen Butler Karen Chadwick Pat Corbett Mark Dotson Judith Frank Emily Horvath Eileen Kavanagh R. Joseph Kimble John Marks Lawrence Morgan Nora Pasman-Green Philip Prygoski Charles Senger Brent Simmons Gina Torielli Cynthia Ward Nancy Wonch

David Berry Evelyn Calogero Dennis Cichon David Cotter Cynthia Faulkner Elliot Glicksman (deceased) Peter Jason Peter Kempel (deceased) Dorean Koenig Dan McNeal Maurice Munroe James Peden John Rooney Chris Shafer Norman Stockmeyer Ronald Trosty William Weiner Ann Miller Wood

Ronald Bretz Terrence Cavanaugh Julie Clement Mary D’Isa Norman Fell James Hicks John Kane Mara Kent Dena Marks Helen Mickens Charles Palmer Ernest Phillips Marjorie Russell Jane Siegel John Taylor William Wagner F. Georgann Wing

PROFESSORS EMERITI Sherry Batzer Lewis Langham Donna McKneelen Dan Ray

James Carey Ashley Lowe Florise Neville-Ewell Kevin Scott Karen Truszkowski

Heather Garretson Paul Marineau Norman Plate Lorna Patricia Thorpe-Mock

DEANS Don LeDuc President, Dean, and Professor of Law Tracey Brame Assistant Dean and Professor of Law

Christine Church Associate Dean and Professor of Law

Karen Fultz Assistant Dean and Associate Professor

Lisa Halushka Assistant Dean and Professor of Law

Laura LeDuc Associate Dean of Planning, Assessment & Accreditation

Mable Martin-Scott Assistant Dean and Professor of Law

Michael McDaniel Associate Dean and Professor of Law

Charles C. Mickens Associate Dean of Innovation and Technology

Nelson P. Miller Associate Dean and Professor of Law

James D. Robb Associate Dean of External Affairs

Duane A. Strojny Associate Dean and Professor of Law

Ronald Sutton Associate Dean and Professor of Law

Amy Timmer Associate Dean and Professor of Law

Charles R. Toy Associate Dean of Career & Professional Development

Joan Vestrand Associate Dean and Professor of Law

Paul J. Zelenski Associate Dean of Enrollment & Student Services

PROFESSORS Frank C. Aiello Brendan Beery Paul Carrier Mark Cooney David Finnegan Dustin Foster Christopher Hastings Linda Kisabeth Daniel W. Matthews Martha Moore Lauren Rousseau Dan Sheaffer Jeffrey Swartz Christopher Trudeau

Tammy Asher Erika Breitfeld Terrence Cavanaugh Lisa DeMoss Gerald Fisher Marjorie Gell Richard C. Henke Tonya Krause-Phelan Marla Mitchell-Cichon Monica Nuckolls Devin Schindler Paul Sorensen David Tarrien Gerald Tschura

Gary Bauer Jeanette Buttrey Bradley Charles Renalia DuBose Anthony Flores Katherine Gustafson Barbara Kalinowski Gerald MacDonald Michael K. Molitor Kimberly Oâ&#x20AC;&#x2122;Leary John N. Scott Stevie J. Swanson Patrick Tolan Victoria Vuletich

ADJUNCT PROFESSORS Wafa Adib-Lobo James Anderton Byron Babbish Amy Bandow Brendon Basiga Archie Brown John Bursch James Carey Martha Cook Lindsay Cummings Richard DiGiacomo Janette Donnigan Heather Dunbar Edward Ewell William Fleener Analiese Furner Jack Gilbreath Michael Hauser Thomas Hetchler Blaque Hough Ogenna Iweasonwa Paul Jeske James Langtry Michael Leffler Shari Lesnick Peggy MacDougall John Mashni Catherine McEwen Robert Metzgar Thomas Mosa John Nicolucci Steven Owen Margaret Philpot-Baditoi Antoinette Raheem Robert Rothman Traci Schenkel Kim Seace Michael Shea Robert Stocker Timothy Stoepker Regina Thomas Victor Veschio John Wojcik

David Allen Rosemarie Aquilina Sam Badawi Laura Bare David Berry Chad Brown Joseph Burgess Gerald Cavallier Michael Costello James Cunningham Stacey Dinser Michelle Donovan Mike Dunn Steven Fantetti Robert Fleming Richard Garcia Rachel Glogowski Robert Heitmeyer Aletha Honsowitz Michael Hughes Ronald Jacobs Salvatore Lamendola Anne Lawter Lawrence Lefler Justin Lighty Matthew Marin Sarah Matwiesczyk Donald Messinger Gary Mitchell Mikhail Murshak Nicholas Nazaretian Dee Pascoe John Pierce Mark Randon Christopher Sabella Sara Schimke Carly Self Beth Simonton-Kramer Cari Sullivan Brad Sysol Gregory Ulrich Michael Walton Dionnie Wynter

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Mustafa Ameenuddin Andrew Arena Jamie Baker Patrick Barone Scott Brinkmeyer Charles Bullock William Burleson Joseph Celello Victoria Cruz-Garcia Marshall Deason Steve Dolan Thomas Doyle Thomas Edmonds Joseph Farah Donald Frank Tanya Garrett Phillip Green Christi Henke Catherine Hoort Woodon Isom Jr. Julie Janeway Lewis Langham Howard Lederman Caroline Johnson Levine Matthew Lucas Paul Marineau Timothy McDonald Sarah Miller Paul Monicatti Michael Nichols Peter Oâ&#x20AC;&#x2122;Connell Kevin Peterson Kerry Przybylo Dale Reitberg Ronald Sangster Kim Seace Frank Seyferth Eric Kinner Robert Sulton III Adam Tebrugge John Vanophem Graham Ward Zena Zumeta

WESTERN MICHIGAN UNIVERSITY THOMAS M. COOLEY LAW REVIEW HILARY 2016 BOARD OF EDITORS Karen Wentz Editor-In-Chief

Kendall Perry Managing Editor

Christopher Marker Symposium Editor

Bailey Vos Interim Managing Editor

Courtney Sierra Interim Symposium Editor

Rachel Kovelle Subcite Editor

Sarah Colling Articles Editor and Solicitation Editor

Daniel Boocher Interim Subcite Editor

Patrick MacRae Interim Solicitation Editor

Nicholas Brown Business Editor

Jacob Witte Interim Articles Editor

Mark Cooney Faculty Advisor

ASSISTANT EDITORS Sheila Burke Lisa Thomas

Jennifer Hanna Nardeen Dalli Luciana Viramontes

Katie Plegue Julie Lawler-Hoyle

MANAGING ASSOCIATE EDITORS David Beaumont Ben Wyss

SENIOR ASSOCIATE EDITORS Matthew Secrest Samuel Warren Kyle Oâ&#x20AC;&#x2122;Mara

ASSOCIATE EDITORS Inna Volkova Jason Puscas Ananya Juneja Natasha Eversole Alicia Kellogg Matthew Blunt Nadia Chami

Honorary Members Chief Judge Gerald E. Rosen U.S. District Court, Eastern District of Michigan The Honorable Marilyn Kelly Former Chief Justice, Michigan Supreme Court The Honorable Jennifer M. Granholm Former Governor, State of Michigan Joseph Kimble, Distinguished Professor Emeritus Western Michigan University Thomas M. Cooley Law School Chris Shafer, Distinguished Professor Emeritus Western Michigan University Thomas M. Cooley Law School The Honorable Richard F. Suhrheinrich United States Court of Appeals, Sixth Circuit The Honorable Clifford W. Taylor Former Chief Justice, Michigan Supreme Court The Honorable Thomas E. Brennan Western Michigan University Thomas M. Cooley Law School The Honorable Dennis C. Drury Judge of the Fifty-Second District Court, Retired The Honorable Robert P. Young, Jr. Chief Justice, Michigan Supreme Court Mark Cooney Faculty Advisor

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JOHN D. VOELKER AWARD This award is presented to the Senior Associate Editors of the Western Michigan University Thomas M. Cooley Law Review who made the most significant contributions to publication of the Law Review. Hilary 2016 Recipients: Kyle O'Mara and Samuel Warren EUGENE KRASICKY AWARD This award is presented to the Assistant Editors of the Western Michigan University Thomas M. Cooley Law Review who made the most significant contributions to publication of the Law Review. Hilary 2016 Recipients: David Beaumont, Jason Puscas, Luciana Viramontes, and Benjamin Wyss DAWN C. BEACHNAU AWARD This award is presented to the member of the Western Michigan University Thomas M. Cooley Law Review Voting Board of Editors who made the most significant contribution to the Law Review through leadership and dedication. Hilary 2016 Recipients: Sarah Colling and Christopher Marker

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WESTERN MICHIGAN UNIVERSITY THOMAS M. COOLEY LAW REVIEW TRINITY 2016 BOARD OF EDITORS Karen Wentz Editor-In-Chief

Bailey Vos Managing Editor

Luciana Viramontes Interim Editor-In-Chief

Daniel Boocher Subcite Editor

Courtney Sierra Symposium Editor

Jacob Witte Articles Editor

Patrick MacRae Solicitation Editor

Shane Henry Interim Articles Editor

Mark Cooney Faculty Advisor

ASSISTANT EDITORS Sheila Burke Kyle Curtis Zachariah Green Lyndsey Hof

Nicholas Langenkamp Julie Lawler-Hoyle Peter J. Mancini Jonathan Paasch

Katie Plegue Danielle Stone Lisa StrelchukThomas

MANAGING ASSOCIATE EDITORS David Beaumont Ben Wyss

SENIOR ASSOCIATE EDITORS Matthew Blunt Nadia Chami

Natasha Eversole Ana Juneja Alicia Kellogg

Jason Puscas Inna Volkova

ASSOCIATE EDITORS Simone Genus Nicholas Gobbo

Najla Mackie Clinton Rosekopf

Gary Schuette Shaydon Weaver

JOHN D. VOELKER AWARD This award is presented to the Senior Associate Editors of the Western Michigan University Thomas M. Cooley Law Review who made the most significant contributions to publication of the Law Review. Trinity 2016 Recipient: Zach Green Nadia Chami Julie Lawler-Hoyle EUGENE KRASICKY AWARD This award is presented to the Assistant Editors of the Western Michigan University Thomas M. Cooley Law Review who made the most significant contributions to publication of the Law Review. Trinity 2016 Recipients: Nicholas Langenkamp Kyle Curtis Gary Schuette Peter Mancini DAWN C. BEACHNAU AWARD This award is presented to the member of the Western Michigan University Thomas M. Cooley Law Review Voting Board of Editors who made the most significant contribution to the Law Review through leadership and dedication. Trinity 2016 Recipient: Karen Wentz Bailey Vos Daniel Boocher

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WESTERN MICHIGAN UNIVERSITY THOMAS M. COOLEY LAW REVIEW MICHAELMAS 2016 BOARD OF EDITORS Luciana Viramontes Editor-In-Chief

Bailey Vos Managing Editor

Courtney Sierra Symposium Editor

Alison Brajdich Interim Managing Editor

Alysha Warren Interim Symposium Editor

Daniel Boocher Subcite Editor

Shane Henry Articles Editor

Eric Langton Interim Subcite Editor

Patrick MacRae Solicitation Editor I. Eric Nordan Interim Solicitation Editor

Mark Cooney Faculty Advisor

ASSISTANT EDITORS Jonathan Paasch Lyndsey Hof Nicholas Langenkamp

Peter J. Mancini Brandon Grysko Adrienne McClain

Kyle Curtis Danielle Stone Elisa Roeseler

MANAGING ASSOCIATE EDITORS David Lee Natalie Winquist

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SENIOR ASSOCIATE EDITORS Matthew Blunt Alicia Kellogg Clinton Rosekopf

Shaydon Weaver Gary Schuette Najla Mackie

Simone Genus Nicholas Gobbo

ASSOCIATE EDITORS Sheila M. Lake Erick Bradtke

Sara Trudgeon Colleen Hinson

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Michael Parish Andrew Collison

JOHN D. VOELKER AWARD This award is presented to the Senior Associate Editors of the Western Michigan University Thomas M. Cooley Law Review who made the most significant contributions to publication of the Law Review. Michaelmas 2016 Recipient: Nicholas Gobbo Peter Mancini EUGENE KRASICKY AWARD This award is presented to the Assistant Editors of the Western Michigan University Thomas M. Cooley Law Review who made the most significant contributions to publication of the Law Review. Michaelmas 2016 Recipients: Natalie Winquist Brandon Grysko DAWN C. BEACHNAU AWARD This award is presented to the member of the Western Michigan University Thomas M. Cooley Law Review Voting Board of Editors who made the most significant contribution to the Law Review through leadership and dedication. Michaelmas 2016 Recipient: Daniel Boocher

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WESTERN MICHIGAN UNIVERSITY THOMAS M. COOLEY LAW REVIEW HILARY 2017 BOARD OF EDITORS Luciana Viramontes Editor-In-Chief Alison Brajdich Managing Editor

Andrew Hendra Interim Editor-In-Chief

Eric Langton Subcite Editor

Alysha Warren Symposium Editor

Shane Henry Articles Editor

I. Eric Nordan Solicitation Editor

Megan Leyva Interim Articles Editor

Mark Cooney Faculty Advisor

ASSISTANT EDITORS Amanda Miller Amanda Mendez

Andrea Randall Brandon Grysko Adrienne McClain

Matthew Demint Elisa Roeseler

MANAGING ASSOCIATE EDITORS David Lee Natalie Winquist

SENIOR ASSOCIATE EDITORS Sheila M. Lake Erick Bradtke Najla Mackie

Sara Trudgeon Colleen Hinson Nicholas Gobbo

Michael Parish Andrew Collison

ASSOCIATE EDITORS Shelika Tate Rachael Joss

Theresa Ferriolo Tiffany Shelton

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Jennifer Wilburn

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Contents

Volume 33

2016

Winter Issue

From the Editor ................................................................................xxi Krinock Lecture Series Speakers The Implications for Canada of a Rapidly Evolving and Reemerging China David Mulroney ............................................................................... 217 Distinguished Briefs PEOPLE OF THE STATE OF MICHIGAN V. RAHIM OMARKHAN LOCKRIDGE Brett DeGroff, Michael L. Mittlestat, and Desiree Ferguson. ............................................................................ 227 PEOPLE OF THE STATE OF MICHIGAN v. PAUL CHARLES SEEWALD Joshua R. Van Laan, Eric J. Smith, and Victor A. Fitz. .................................................................................. 277 Articles Potemkin’s Village on the Divorce River: The Faҫade of Macar v. Macar Paul Carrier ................................................................................... 295 The Florida Constitution: The Right Against Self-Incrimination is Alive and Well in Tallahasee! Jeffrey Swartz .................................................................................. 319

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Family Farms versus Factory Farms: Preemption of Local Ordinances Under Michigan’s Right to Farm Act, Why the Current Preemption Standard Doesn’t Work and What Needs to Change Joshua EldenBrady .......................................................................... 333 Pre-AIA False Marking Statute: Survivor of Constitutional Attacks, Yet Violable as a Qui Tam Cause of Action— Constitutional Analysis of a Bygone Statute Jesse D.H. Snyder ............................................................................ 367 Comments Quarantining an Asymptomatic Carrier: A Reasonableness Standard Christopher Marker .......................................................................... 389 Picture This: A new Look at voter photo identification David Beaumont .............................................................................. 421

FROM THE EDITOR The Western Michigan University Thomas M. Cooley Law Review board of editors is pleased to bring you the final issue of Volume 33, and our first Winter Edition since transitioning to two editions annually. In this issue, we bring you a wide assortment of articles in various formats. First, we have included a speech from the Western Michigan University Thomas M. Cooley Krinock Lecture Series by David Mulroney, President and Vice-Chancellor of the University of St. Michael’s College, the Catholic federated university within the University of Toronto, and Canada’s ambassador to the People’s Republic of China from 2009 to 2012. Next, we are excited to include two of the three award-winning briefs of the 2016 Distinguished Brief Awards hosted by the Western Michigan University Thomas M. Cooley Law Review. We are also pleased to publish articles written by prominent practicing attorneys and Western Michigan University Thomas M. Cooley Law School Professors. The first article, by Professor Paul J. Carrier, discusses the interplay between Florida Rule of Civil Procedure 1.540(b) and statutory discovery processes in divorce proceedings. The second article, by Professor Jeffrey D. Swartz, provides a valuable discussion about Article I, Section 9 of the Florida Constitution and the protection of rights against self-incrimination. Our third article authored by a Western Michigan University Alumni, Joshua EldenBrady, provides us with a detailed look at how the Right to Farm legislation is affecting Michigan farms. Lastly, our fourth article, by Jesse D.H. Snyder, provides a thorough constitutional analysis of the Pre-AIA False Marking Statute. Finally, we are proud to present two student-written pieces authored by prior Western Michigan Thomas M. Cooley Law Review members. The first comment, by Christopher Marker, examines the constitutionality of quarantines involving contagious diseases. The second piece, by David Beaumont, proposes a solution to the controversial issues surrounding identification requirements during elections. This is the first issue I’ve had the privilege to develop as Editor in Chief. It has been both a challenging and rewarding experience. I am deeply grateful to all of our editors and library liaisons for their dedicated contributions to this book. I would also like to thank our faculty advisor, Professor Mark Cooney, for his commitment, dedication, and continuous support of our publication. Please enjoy this issue of the Western Michigan University Thomas M. Cooley Law Review. – LUCIANA C. VIRAMONTES

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THE IMPLICATIONS FOR CANADA OF A RAPIDLY EVOLVING AND RE-EMERGING CHINA WESTERN MICHIGAN UNIVERSITY THOMAS M. COOLEY LAW SCHOOL: KRINOCK LECTURE 2016 UNIVERSITY OF ST. MICHAEL’S COLLEGE, THE CATHOLIC FEDERATED UNIVERSITY WITHIN THE UNIVERSITY OF TORONTO, CANADA DAVID MULRONEY* Ladies and gentlemen, dear friends, it is a great pleasure to welcome each of you to Canada, to Toronto, to St. Michael’s, and to welcome your school, and its wonderful foreign study program, back to our campus. I am deeply honoured to be able to offer this year’s Toronto edition of the Krinock Lecture. Although, I must admit that my only real claim on your attention is as a proud host, rather than a distinguished legal scholar. That said, while St. Michael’s does not itself have a law school, it has produced lawyers and judges aplenty along with other scholars— like Jacques Maritain, whom I will get back to in a moment—people who have thought and written about the very nature of law and our relationship to it as human beings. And there is one very interesting connection to international law that goes back to our origins—actually a bit before our origins. We are gathered in Elmsley Hall, which is named after the man who in the middle of the 19th Century donated this land to the Church. He was a pillar of the devoutly Protestant Canadian establishment of the day, and the son of a Chief Justice of Upper Canada. Elmsley, in one of the worst career moves in Canadian history, surprised the Great and the Good of his day by converting to Catholicism. It was a move that sent him from the top of the social order to the bottom, meaning, he was among the Irish, who were in those days quarrelsome,

* David Mulroney is President and Vice-Chancellor of the University of St. Michael’s College, the Catholic federated university within the University of Toronto. He came to St. Michael’s after more than 30 years in Canada’s Public Service. A career Foreign Service Officer, Mr. Mulroney was Canada’s ambassador to the People's Republic of China from 2009 to 2012.

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disputatious, deeply divided and dirt poor (by the way, the good news is that we’re no longer dirt poor). Elmsley’s life story is long, eventful, and includes serving in the Royal Navy and, later, with the British and Canadian forces that in 1837 captured and burned the U.S. ship Caroline in the Niagara River. That exploit, launched to prevent American support for a rebellion in Upper Canada, has contributed to the doctrine of anticipatory self-defence in international law. But before I start singing “The Maple Leaf Forever,” let me get back to my talk. I spent the lion’s share of my career struggling to understand the implications for Canada of a rapidly evolving and re-emerging China. There were other major preoccupations, notably Afghanistan, but the rise of China in the world, its return to something of its old prominence, is the salient fact around which much of my professional career revolved. China and China’s people are shaping our Canadian future on two levels. One is entirely new, largely positive, and very human in scale. The other is much more traditional, less clearly positive, and happens at the level of high policy, diplomacy, and statecraft. My thesis, which I presented in a recent book, is that Canada has been largely passive in response to both influences. My message to Canada and Canadians has been that we need to step up our game. As big as it is, China is susceptible to our influence and the effort is worth it. Let me first offer some personal glimpses of a China that changed quite literally before my eyes. On my first weekend in Seoul Korea in August of 1982, effectively my first weekend as a Foreign Service Officer, streets cleared as air raid sirens blared. A Chinese MIG, flown by a defector, was inbound, causing the air forces of several nations to scramble. China was then only slightly less mysterious than North Korea, and, while less menacing, hardly a friend. Today, hundreds of thousands of South Koreans live, work and study in China, while many more young Chinese gravitate to Korean pop culture. Only a few years later, I would help to reopen the Canadian Consulate in Shanghai, closed in the confusing aftermath of the Chinese civil war. The art deco Shanghai that existed until the mid1980s has long disappeared. But back then, it was sufficiently unchanged and authentic that Steven Spielberg could film Empire of the Sun, which is set in the 1940s, without doing much more than placing a few vintage cars on the street.

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Shanghai and the surrounding Yangtze Delta powered the economic transformation of China. The Delta is now a wealthy, highly developed sub-region, one of several in China, home to hundreds of millions of people, and much more like the Asian tigers of Hong Kong, Taiwan, and Singapore than the far less developed regions of rural China. I was seeing in Shanghai the beginnings of a global phenomenon that would resonate in the coming decades in countries like the United States and Canada. A vast and growing population of Chinese citizens were becoming newly footloose and increasingly prosperous. They were eager to see what the wider world had to offer and, where possible, to buy a piece of that world. We are feeling the effects of a new kind of China influence, one that is not expressed in terms of military power or diplomacy, but through the sheer exuberance of China’s people. Chinese buyers are rocking real-estate markets from Sydney to Los Angeles to London. Toronto and Vancouver are part of this action. China has become the leading source of tourists, and they happen to be big spenders. And Chinese students (and their parents) are traveling the globe in search of education (and not just at university level) and an enhanced quality of life. My next China-related experience came not in China itself, but in Taiwan. In 1998, I was sent to run Canada’s unofficial outpost on the island. It ranks as a mid-sized mission, an embassy in all but name. But that and other names can never be uttered because of unfinished business from the Chinese Civil War that leaves Taiwan in a sort of limbo. To the Chinese, it is a province that has been taken over by a breakaway regime, the fragments of the old Republic and its renegade government. But something very different was happening in the Taiwan that I discovered. Many of the Taiwanese had very different notions of their identity, citizenship, and future. It was complicated. They acknowledged their Chinese-ness—to a degree. But they also considered themselves something different and distinct. They were rediscovering their language and local culture, acknowledging other regional influences, including Japan’s, and they were pushing for more representative and democratic governance. In fact, while I was there, a party that was much more in tune with local Taiwanese sentiments replaced the old KMT regime, which had been in power

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since the end of the Civil War. The notion that democracy is an alien, western concept was effectively demolished. Taiwan remains what is called a “core issue” for China, something so central to a national identity that China would go to war if it felt that Taiwan was abandoning even the pretence of eventual reunification. As a result, Taiwan looms large in Sino-American relations. It is of such geostrategic importance, that this human element is often ignored. Taiwan is all too often treated as a bargaining chip rather than as an attractive and compelling laboratory for democratic governance. We need to remember that China’s rise is ultimately powered by people. Far from being monolithic, they offer a broad spectrum of ideas and opinions, of hopes and fears. We need to pay attention. I have described the people-to-people dimension of China’s resurgence as being largely positive. And as true as that is, it doesn’t mean that the phenomenon is any less worthy of careful study and analysis. How, for example, can we maximize the positive side of Chinese investment in real estate while minimizing some of the negatives, like the possibility that some of this is fuelled by “hot” money? How can we use new vehicles, such as social media, to communicate about shared hopes and values? China was a major preoccupation for me through various assignments in Ottawa from 2001 onwards. And the prevailing message was mixed. By the start of the first decade of the 21st century, China was achieving unprecedented economic growth. But it was also feeling its oats. The old Chinese diplomacy, wise and pragmatic, careful never to lose a potential ally, was vanishing, as was the cautious strategy of “hide your strength, bide your time.” I can recall getting a call from the Chinese embassy late one evening alerting me to the fact that a senior official in Beijing wanted to speak with our foreign minister early the next morning. I said that I would do my best but that there was no guarantee on such short notice. “China,” I was reminded “is a P5 country.” True enough, China is, like the US, Russia, Britain and France, a Permanent Member of the UN Security Council. But the thing is, the whole point of being a P5 country is not having to remind people that you are one. I would see much more of this new China, a country at once assertive and insecure when I served as Ambassador in Beijing from 2009 to 2012. In those years of economic crisis, the rising tide of the Chinese economy was lifting many boats. A procession of foreign

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leaders traveled to Beijing to reconfirm the conventional wisdom, namely that China had found the formula for defying economic gravity. As western countries dealt not just with economic crisis but also with a significant degree of political drift—this was, for example, the era of government shutdowns and the fiscal cliff— China’s version of State Capitalism, featuring governance by seemingly wise and benevolent technocrats, was widely praised. And while in the past, China’s major contribution to the global discourse had been the doctrine of non-interference, which China stoutly defended and selectively applied, a newly confident Communist leadership was beginning to contest the rules of the international system. China’s leaders found support in the developing world for the doctrine that economic rights take precedence over political rights. It offered its own self-serving take on disputed maritime boundaries and used its new military capabilities to back this up. And China was highly effective at isolating countries, picking them off one by one and bending them to its will. When the Nobel Prize was awarded to the courageous dissident Liu Xiaobo, infuriating China, Norway, home to the prize, was subject to economic reprisals. Specifically, Chinese consumers began eating a lot more salmon from Scotland and a lot less from Norway. I got a long, passionate and angry lecture from a Chinese university president, a president I much admired, when I dared to mention, in an address to a cross-section of China’s best law students, the situation of another prisoner of conscience. This courageous man, Chen Guangcheng, was being held by state-paid thugs under house arrest in a town in the same province as the university. I didn’t think I could speak to these future lawyers without mentioning the case, as difficult at it was. These thugs roughed one of our own diplomats up when he went, in company with European colleagues, to call on Chen, someone who was technically a free man. Countries that played host to the Dalai Lama came under similar pressure. Britain and France staged similarly public and high-minded welcomes to the Tibetan spiritual leader only to follow them up with similarly craven apologies to China. We’re seeing another kind of Chinese influence at work here. It’s not the exuberance of high-net-worth consumers buying everything from Prada bags to waterfront condos, but a more traditional pressure levied by the Chinese state against governments and actors it considers problematic. Just as the influence of Chinese consumers

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has been super-charged by a rising economy, China’s political influence has also been greatly enhanced. I was reminded of this during the course of a reception hosted by China’s Foreign Ministry. The event featured a dreary series of overthe-top testimonials by ambassadors from some of the states that China now bankrolls. Towards the end of the evening, one of them, the ambassador of Fiji, sidled up to tell me how much his country appreciates China. “They give us money without giving us lectures like you guys do.” In other words, Chinese assistance comes without conditions relating to improvements in Fiji’s spotty human rights record. But it hardly comes without strings. And there was another, more personal example. My time in China coincided with a broad and heavy-handed crackdown on religious freedom. Tibetan Buddhists were already in the crosshairs because of their association with the Dalai Lama. So, too, were Muslim Uighurs in Xinjiang, in China’s Far West. Just before I got to China, in the early summer of 2009, there were bloody riots in the region in which Uighurs rose up against their Han Chinese neighbours. The official crackdown included Christians, too. Any Protestant worshippers unwilling to gather in official state-sponsored churches came under increasing pressure. Their so-called House Churches were ringed by security forces intent on scaring off worshippers. Catholics came under pressure, too. Despite the best efforts of Pope Benedict to find common ground with the Chinese state, the Party went out of its way to intimidate Bishops and priests and to discourage anything but allegiance to a Patriotic Church whose spiritual remit was limited to China. As this got worse, an American priest I knew asked if we might make the embassy available to the foreign Catholic community. I reflected on this and helped to form an organizing committee of embassy Catholics. We planned everything, from covering the costs of increased security to setting up chairs in the meeting room. On particularly busy Sundays we would welcome 250 worshippers, families mainly, from around the world. With one exception, we couldn’t and wouldn’t break the law (even a law we deplored) and include Chinese worshippers. This new Chinese assertiveness and political repression certainly shaped my discussions with various Canadian audiences about whether and how to engage China on the always-contentious subject of human rights.

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For some Canadians in the audience, the expectation was that a concern for human rights was an essential feature of our engagement of China. The worry from this constituency was that Canada might, in fact, be going soft on these issues in order to cozy up to China economically. This at times was simplified into a zero sum equation, the idea that we could either promote trade or promote values, but not both. Allow me an aside here. I got to travel to China with three Canadian Prime Ministers. They all managed to promote Canada’s considerable and growing commercial interests in China while at the same time addressing critical human rights files. The same thing was true of the work of the embassy as a whole. We managed to do both things. It isn’t always easy, and it requires a sense of timing and the ability to read your Chinese interlocutors. But, at the end of the day, that’s why you have a professional diplomatic corps. That’s what they’re expected to be able to do, although not according to a good many of the other Canadians I spoke to and met with. Just as many of my Canadian counterparts argue strenuously for incorporating human rights into our foreign policy, a good many others are absolutely scathing in their rejection of this idea. Two main reasons are cited. The first comes from what I would call the realist school. Here, the question most often posed in return is, “Just who do we think we are?” China is a big important country with a mind-boggling array of domestic and regional problems. My rule of thumb is that China’s problems are generally thirty times more complicated than Canada’s. It is pretentious and meddlesome for a country that is much smaller in population than many Chinese provinces to attempt to offer advice. While there is an element of truth to this—China is now much less willing to take advice from others—that doesn’t mean that it isn’t worth trying to have the conversation. China has existed as a state as long as it has because it has usually shown itself to be both flexible and pragmatic. At the end of the day, it actually listens to good ideas, even if it doesn’t always thank the source of that advice. The other reason offered for leaving our values at home when we engage China, comes from the relativist school. According to this reading of things, we still cling to entirely western notions of human rights, concepts that don’t translate well if at all into a Chinese setting. An associated argument, which China itself often makes, is that we are selective in our commentary, complaining about China’s

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efforts to keep order internally while ignoring the very real progress China has achieved in pulling hundreds of millions out of poverty. We heard this from China’s Foreign Minister in Ottawa just this week. This is a harder objection to deal with, although it helps if your perspective on China is broader than the narrow and self-serving focus that the Communist Party prefers. Over the last century, and right up to today, China has been home to many courageous reformers whose dreams and values, while expressed in entirely Chinese terms, are very similar to those held by reformers in the West. China is anything but monolithic, although the Party does its best to make it seem so by vigorously and cruelly suppressing dissent. As I noted earlier, last year I wrote a book about Canada-China relations. In it, I argued that China represents a wake-up call for us. Since the end of the Second World War, we have enjoyed the benefit of a largely U.S. managed world order. Our major concerns in relation to Canadian security and prosperity were largely addressed through the careful and skilful management of Canada-U.S. relations. Now, I don’t believe for a moment that the United States is about to be eclipsed any time soon, if ever, by China. But the reality is that a number of new players, led by China, are going to be increasingly influential. We like to say that the world needs more Canada. It’s actually going to get a lot more China. That means we need to be much more thoughtful about managing our interests, something that can’t happen unless we become a lot more curious about the world around us. Among other things, given the way the world is changing, we clearly need to become much more “Asia competent.” Australia, a country I follow closely, is already doing this, in large part because their much larger neighbour is not the United States, but Indonesia. Canadians are hugely advantaged by our neighbourhood, but we shouldn’t use that as an excuse for not becoming more curious and capable. A big part of responding to a rising China, whether at the peopleto-people level, or at the official level, involves going back to the basics in terms of foreign policy. We need to study what’s happening in China much more carefully. And we need to focus on priorities, the things that we really and truly want (and don’t want) from the relationship. We need to think about and carefully deploy our assets and advantages. This has to be an all-of-country approach, and we

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need to engage fully and completely, with our values an essential part of the discussion. That’s the really tough part. When I worked for the Department of Foreign Affairs, we took great pride in the fact that one of the framers of the Universal Declaration of Human Rights right after the war, the document that Eleanor Roosevelt famously called the Magna Carta of Mankind, was a Canadian Public Servant named John Peters Humphrey. Here at St. Michael’s, we have another connection. The great French philosopher Jacques Maritain, who taught here, was also influential in shaping the document. He saw human rights as being grounded in natural law and based on our inevitable orientation to the divine. In other words, our rights are grounded, ultimately, in our created nature. Maritain would also argue that rights are necessarily balanced by responsibilities, something that traditional liberal thinking conveniently forgets1. But Maritain realized even then that there were tremendous challenges implicit in trying to find common ground among nations. He opted instead for agreement on basic rights, without trying to elaborate a single, common rationale2. This works until someone, in this case, China poses a challenge so substantial that it exposes the fragility of the underlying agreement, such as it is. I am confident that we can think our way to a new, more effective foreign policy. Canada has a distinguished history in China, and Canadians are, as a result, highly respected. My book recounts the stories of some of the Canadian pioneers who helped to establish our brand. But I am less confident when it comes to invoking universal values, as real as important as these are. The difficulties that Maritain faced in the 1940s are far more pronounced. Please don’t get me wrong. I believe that reason alone shows us that these exist. Human beings everywhere are, I think, naturally oriented to seek at least some role in terms of how they are governed. And over time, they do display a natural desire to speak and worship freely and to be protected from the arbitrary actions of the state. The example of modern Taiwan puts the lie to the notion that these aspirations are somehow western in nature. 1. See Deborah Wallace, Jacques Maritain and Alasdair MacIntyre: The Person, the Common Good and Human Rights, in THE FAILURE OF MODERNISM: THE CARTESIAN LEGACY AND CONTEMPORARY PLURALISM 127, 135-40 (Brendan Sweetman ed., 1999). 2. Id.

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I also believe that these inclinations are hastened and enhanced through positive influences like peace and security, education and economic growth. And I certainly do not believe that these rights can be arbitrarily withheld by the state until some undefined and muchpostponed suitable time arrives. And I believe that, because I am convinced that the source of these rights is located in the individual and not the state. When I was in government, I thought a lot about the first part of the problem, that is to say, managing a complicated relationship, getting our diplomacy right. Here at St. Michael’s I’m spending more time on the second, thinking more about the nature of rights, their natural connection to corresponding responsibilities, and how we can meaningfully think and talk about values we share as human beings. At the end of the day, this is not primarily a foreign policy question. It is much more existential, rooted in how we think about who we are as human beings. We need to identify, value and protect the things that distinguish us—all of us—as individuals. And we need to understand that if human rights are threatened anywhere, they are ultimately threatened everywhere. This isn’t a dreamy theoretical exercise. A rising China, assertive and insecure, caught between hope and fear, brimming with ideas, and afraid of them, is giving it new urgency.

The Appellantâ&#x20AC;&#x2122;s brief argued the Michigan Sentencing Guidelines violated the right to a trial by jury guaranteed by the Sixth Amendment as a result of requiring judges to engage in fact-finding at sentencing which raised the floor of permissible sentences. Under Alleyne v. United States, 133 S.Ct. 2151 (2013), any fact which raises the floor of permissible sentences is an element of a crime, and a defendant is entitled to a jury determination of that fact. The difficulty lied in demonstrating that the low end of a sentencing range produced by the Michigan Sentencing Guidelines was the floor of permissible sentences for Sixth Amendment purposes. This was complicated by the fact that previous litigation had established the high end of a sentencing range did not constitute a ceiling of permissible sentences under Apprendi v. New Jersey, 120 S.Ct. 2348 (2000). In People v. Lockridge, 498 Mich. 358 (2015), the Court held the application of the Michigan Sentencing Guidelines did violate the Sixth Amendment, and rendered the system advisory.

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BIOGRAPHICAL STATEMENT BRETT DEGROFF – has been an Assistant Defender at the State Appellate Defender Office since 2012. At SADO, Brett exonerated one client serving a minimum prison term of 25 years, and through exoneration and sentence correction Brett has saved Michigan citizens more than 41 years of wrongful incarceration. That amounts to savings of more than $1.4 million in corrections costs for Michigan tax payers. Brett has also been active in SADO’s representation of clients sentenced to life without parole as juveniles, including participating in briefing at the Court of Appeals and Michigan Supreme Court, as well as leading a team of attorneys tasked with this work. Brett came to SADO after a clerking for the Honorable Mary Beth Kelly on the Michigan Supreme Court, which he started after graduating from the University of Michigan Law School. Before law school, Brett was a journalist working as a web producer at MLive.com and a sports reporter at The Ann Arbor News. Brett is married to Marisa DeGroff who works as a dentist for the Ingham County Health Department. They have three children, Max, Quinn, and Zoe. DESIREE FERGUSON – was born and bred and currently lives in Detroit. She graduated from the University of Michigan with a Bachelor of Arts in Spanish in 1978 and a Juris Doctor in 1982. She has been an Assistant Defender at the Michigan State Appellate Defender Officer since 1993, where she specializes in handling criminal defense appeals on behalf of indigent persons convicted of felonies, in both State and Federal Courts. Desiree has taught a Criminal Appellate Practice Clinic at the University of Michigan Law School, the University of Detroit School of Law and Wayne State University Law School. She has served on the State Bar of Michigan Criminal Jury Instructions Committee, currently serves on the State Bar of Michigan Character and Fitness Committee, and is a member of the State Bar of Michigan Criminal Law Section. Desiree is a longtime active member of the National Lawyers Guild (NLG), and currently serves on the Board of its Michigan/Detroit Chapter. One of her chief areas of concentration in that capacity is to provide support to local immigration rights groups in Detroit. She is also an active member of the National Conference

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of Black Lawyers (NCBL), and served as its National Co-Chair for two terms. In that capacity, she co-authored a brief of Amicus Curiae in the Supreme Court of the United States in Gratz v. Bollinger, supporting the University of Michiganâ&#x20AC;&#x2122;s affirmative action educational program. Under the auspices of the NCBL, she is currently actively involved with launching a nationwide Law Enforcement Accountability Project, and with providing legal education and other support to local Black Lives Matter activism in the Detroit community. Desiree is married, has three adult children, and a host of grandchildren, surrogate children and mentees. MICHAEL L. MITTLESTAT â&#x20AC;&#x201C; has worked as attorney at the State Appellate Defender Office since 2005 and has served as Deputy Director for the past two years. Before that, he handled criminal appeals and worked as a staff attorney and law clerk in Washington State.

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DISTINGUISHED BRIEF The Distinguished Brief Award is given in recognition of the most scholarly briefs filed before the Michigan Supreme Court, as determined by a panel of eminent jurists. Three briefs are chosen each year and printed in the Western Michigan University Thomas M. Cooley Law Review. To preserve the author’s style, the brief has been reprinted in its entirety, exactly as submitted to the Michigan Supreme Court. INTRODUCTION PEOPLE OF THE STATE OF MICHIGAN, Petitioner-Appellant, v. PAUL CHARLES SEEWALD, Respondent-Appellee. The Attorney General charged the defendant with conspiring to commit a legal act in an illegal manner, a five-year felony, after he and a campaign co-worker agreed to falsely sign nominating petitions as the circulators in an effort to get former Congressman Thaddeus McCotter’s name on the ballot for reelection. After the case was bound over for trial, the circuit court dismissed the felony charge, and the Court of Appeals later affirmed that decision. Thereafter, the Supreme Court granted the Attorney General’s request to appeal, and the Prosecuting Attorneys Association of Michigan filed the instant brief as Amicus Curiae in support of the People on appeal. The Amici argued that the prosecutor has broad discretion in deciding what charges to bring when the evidence supports both misdemeanors and felonies, and that the circuit and lower appellate courts had both erred by interpreting the conspiracy statute in a manner that effectively nullified the felony conspiracy charge. The Supreme Court ultimately agreed.

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BIOGRAPHICAL STATEMENT JOSHUA R. VAN LAAN – is an Assistant Prosecuting Attorney in Macomb County, Michigan. He graduated from South Christian High School in Grand Rapids, he has a B.A. from Western Michigan University, and he received his J.D. from Thomas M. Cooley Law School. Joshua is a combat veteran of the United States Air Force, where he served for 10 years before finishing law school. Prior to becoming a prosecutor, he owned and operated his own private law firm, Van Laan Law, P.L.L.C., and before that, he worked as an extern for the Commercial Litigation & White-Collar Criminal Defense Practice Group at Miller Canfield Paddock & Stone. Currently, Joshua and his wife, Michele, live in New Haven, Michigan, with their daughter, Emmalynn. ERIC J. SMITH – is a Prosecuting Attorney in Macomb County, Michigan. He is a lifelong resident of Macomb County and has served the people of Macomb County since 1993. He graduated from Chippewa Valley High School in Clinton Township, and he received a B.A. from Central Michigan University and a J.D. from Detroit College of Law. Eric and his wife, Shannon, live in Macomb Township, with their son and two daughters. VICTOR A. FITZ – is a Prosecuting Attorney in Cass County, Michigan. He has served as the Cass County Prosecutor since May, 19th, 2003, and he was elected to that position by the citizens of Cass County in 2004, 2008, 2012, and 2016. Prosecutor Fitz is a former President of the Prosecuting Attorneys Association of Michigan, and he received his undergraduate and law degrees from Valparaiso University.

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POTEMKIN’S VILLAGE ON THE DIVORCE RIVER: THE FAҪADE OF MACAR V. MACAR1 PAUL CARRIER* ABSTRACT This article explores the relationship between a Florida court rule (FRCP 1.540(b)) on the one hand, and the statutory assets-reporting requirements in divorce proceedings, including cases interpreting or applying the statutes, on the other. Relying on the recent Florida Supreme Court decision, Tiara Condominium Association, Inc. v. Marsh & McLennan Companies, which corrected Florida courts’ lax use of the “economic loss rule” in contracts cases, it is argued here that FRCP 1.540(b) is also being overused or loosely applied as a rule of convenience and therefore not fully in compliance with statutory requirements.

* Paul Carrier is a tenured professor who has been teaching at Western Michigan University - Cooley Law School since late 2003. He holds a BA from the University of Michigan, a J.D. from Michigan State University Law School (when it was the Detroit College of Law), and an L.L.M. in international and comparative law from the Georgetown University Law Center. Professor Carrier has taught property law courses, oil & gas law courses, and a variety of international law courses. He is currently teaching contracts law and sales/negotiable instruments subjects, while also coaching an international moot court team. Prior to joining the WMU-Cooley faculty, Professor Carrier was a transactional attorney for two international law firms at offices in Central Europe. Before that, he was a research attorney for the Michigan Court of Appeals and law clerk to Justice Dorothy Comstock Riley of the Michigan Supreme Court. 1. 803 So. 2d 707 (Fla. 2001).

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TABLE OF CONTENTS INTRODUCTION ................................................................................. 296 I. IDENTIFICATION OF THE PROBLEM ................................................. 298 II. THE SANCTITY OF SETTLEMENT AGREEMENTS IN LIGHT OF CHALLENGES BASED ON FRAUD, MISREPRESENTATION, DURESS, COERCION, OVERREACHING . . . OR UNFAIRNESS ........ 301 III. A PROPOSED LEGAL STANDARD AND FACTUAL COMPONENTS FOR THE CASTO SECOND PRONG ................................................ 310 IV. ANOTHER “RULE OF CONVENIENCE” PROBLEM – THE “ECONOMIC LOSS RULE” .................................................... 312 CONCLUSION ................................................................................... 316 INTRODUCTION According to legend, in the late 1700’s Governor Grigory Potemkin of Crimea, the alleged lover of Russian Empress Catherine II, orchestrated a fantastic ruse intended to bolster support from Russia’s potential allies for the construction of “New Russia” along the Dnieper River.2 The legend alleges that Governor Potemkin ordered the construction of mobile villages to be placed on the banks of the Dnieper, and even imported peasants to “populate” each village in furtherance of the hoax.3 Once the barge holding the entourage had passed, the villages were quickly dismantled, moved, and rebuilt further downstream.4 The stratagem was intended to encourage increased settlement, under Russian influence, in areas that were disputed by the Russian and the Ottoman Turkish Empires.5 Chief Justice Rehnquist made an analogy of this stratagem to legal léger-de-mains in his dissent to Planned Parenthood of Southeastern Pennsylvania v. Casey.6

2. See Cecil Adams, Did “Potemkin Villages” Really Exist?, THE STRAIGHT DOPE (Nov. 14, 2003), http://www.straightdope.com/columns/read/2479/didpotemkin-villages-really-exist. 3. Id. 4. Id. 5. Id. 6. See 505 U.S. 833, 966 (1992) (Rehnquist, C.J., dissenting) (“Roe v. Wade stands as a sort of judicial Potemkin Village, which may be pointed out to passersby as a monument to the importance of adhering to precedent.”).

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A similar faҫade is being erected under the auspices of cases such as Macar v. Macar.7 Simply put, the Macar line of cases can be used to whitewash shortcomings in one party’s disclosures by raising, arguably improperly, the primacy of discovery by the opposing party in contested divorce proceedings. Stated another way, the question to be answered is where does the duty to disclose marital and nonmarital assets under Florida law8 and the typical “full and fair disclosure” language in a mediated settlement agreement end, and where does the duty of the opposing party to engage in expensive, time-consuming, and often-contested discovery begin.9 At a policy level, on the one hand, are the concerns of judicial expediency; whereas, on the other hand, are potentially unjust results and the encouragement of non-disclosure practices intended to keep everyone, including the courts, in the dark. Florida statute § 61.075 sets forth a duty owed by the parties in marital dispute proceedings to the State of Florida, and to its state courts, to properly disclose marital and non-marital assets.10 Since this disclosure typically precedes discovery, the state, the courts, and the opposing side must be able to rely on the accuracy of the disclosures as a springboard for discovery.11 Discovery, motion practice, and litigation that rest on faulty initial reporting are very 7. See Macar v. Macar, 803 So. 2d 707 (Fla. 2001). 8. FLA. STAT. ANN. § 61.075 (Westlaw 2016). 9. Often, these are duties or averments in a settlement agreement rather than representations and warranties, however, written as an obligation by each party affirming the adequacy of his or her own disclosure to the other, and not as an acknowledgment of the opposing party’s disclosures. Further, such clauses often call for acknowledgement that the agreement was reached in reliance upon such information. Thus, if the information is faulty despite the obligation, the acknowledgment is also faulty. See, e.g., Matter of Marriage of Eltzroth, 679 P.2d 1369 (Or. Ct. App. 1984). 10. FLA. STAT. ANN. § 61.075 (Westlaw 2016). 11. In fact, financial affidavits are required under Florida law. FLA. FAM. L.R.P. RULE 12.105, 12.285(d) (Westlaw 2016). But see David L. Manz, Financial Affidavits in Dissolution of Marriage Actions: Are They Really Mandatory?, 79 FLA. BAR J. 70–74 (2005) (opining that courts may be able to enter final judgments on dissolutions of marriage even where the parties have not filed financial affidavits). That a court-required document upon which numerous parties, including the court, will rely can be misleading or even fraudulent, and yet still be discounted such that it becomes the burden of the opposing party to verify and/or correct everything included therein or omitted, even in light of the need for judicial efficiency, is very disturbing.

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likely to be flawed where the first and primary disclosure mechanisms, especially answers to interrogatories and financial affidavits, are riddled with vagaries and non-disclosures. The result of a failure in this regard could lead to unfair results, as well as increased motion practice (e.g., motions to set aside settlement agreements) and appellate filings. Faulty disclosures may also allow parties to delude the court and the state since the duty is owed to them and not to the opposing party. Accordingly, this article will argue that the desire to use a Macar-based shortcut should be suspect in certain cases involving marital and non-marital assets and that the Florida courts, or Legislature, should develop further guidance. This issue is a public-policy argument in the making. A policy requiring respect for the state and the courts pursuant to statutory obligation is needed rather than encouragement of sharp practices and even deceit. The gravamen is that the Macar line of cases establishes a “rule of convenience,” based primarily on a court rule that lacks the necessary guidance needed by the lower courts. The test developed in Macar does indicate certain factors to be considered, but not in a way that ensures a trial court’s duty to provide appropriate legal and factual bases for its rulings—in other words, the kind that would permit meaningful appellate review.12 A lack of identifiable criteria that ought to be addressed fully and fairly allows trial courts to whitewash otherwise faulty rulings by allowing sweeping, nonarticulated conclusions of fact and law.13 There is a significant level of discretion that may be created on the basis of the complexity of the law. For example, a court could unwittingly (or purposefully) obfuscate the more “legal” standard of contractual defenses with the more “equitable” one of reasonableness, both of which apply to property settlement agreements.14 Additional guidance by the legislative or judicial branch would not be a removal of the trial court’s discretion—it would be the admonition to properly use it. I. IDENTIFICATION OF THE PROBLEM The Florida courts have, without any specific design, created a rule of convenience that is being used to obscure important legal 12. See Pedersen v. Pedersen, 892 So. 2d 1125, 1126–27 (Fla. Dist. Ct. App. 2004) (final judgments in divorce cases must include specific findings of fact and conclusions of law so as to ensure meaningful appellate review). 13. Id. 14. See Casto v. Casto, 508 So. 2d 330 (Fla. 1987).

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rights that involve post-nuptial settlement agreements in divorce actions. This has been allowed to occur via the use of several factors that complicate the real issues. Courts have latched onto a rule that glosses over the proper factual analysis of the second prong of a seminal divorce case that outlines the steps for setting aside postnuptial settlement agreements.15 The purpose of this section is to identify, as clearly as possible, the factors that have shaped the rule and have made it more complicated than necessary. In Casto v. Casto,16 the Florida Supreme Court made clear that there are two methods, or prongs, to set aside post-nuptial settlement agreements: (1) the standard litany of defenses to contract enforcement such as fraud, duress, and misrepresentation; or (2) unreasonableness based on multiple factors.17 Unquestionably, an unreasonable settlement agreement that is freely entered into should not justify rescission.18 However, courts are directed to realize that parties who are still married are not engaging in an arm’s length transaction, and “trial judges must carefully examine the circumstances to determine the validity of these agreements.”19 Not long after Casto was decided, some courts began to find ways (it is argued here overzealously) to mitigate the potential use of the second prong. The following is a list of complicating factors: 1. Negative rulings on the first prong or question, i.e., fraud, duress, coercion, misrepresentation, etcetera, are perhaps improperly being used to remove questionable actions from proper consideration under the second prong. Even if a fact is applied to rule out fraud, duress, etcetera during analysis of the first prong, that does not disqualify that fact from consideration under the second Casto prong (as easy as it would make things to remove another potentially contentious fact). The law calls for consideration of multiple factors, including both prongs. There is no reason why the same fact cannot be assessed under Casto prong 1 and prong 2 (other than for purposes of convenience, of course).20 15. See infra pp. 16–19. 16. 508 So. 2d 330 (Fla. 1987). 17. Id. at 333. 18. Id. at 334. 19. Id. (emphasis added). 20. Cf. Kuchera v. Kuchera, 983 So. 2d 776, 779 (Fla. Dist. Ct. App. 2008) (explaining that the pull to avoid fraud or other negative bases of decision must be

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2. Divorces involve settlement agreements, which are highly equitable, and at which point can be gleaned quite readily by review of statutes such as Florida statute § 61.075. Such agreements also involve contract law, an area with its own tenets and principles that include a prejudice against the use of equity where there exists a legal basis (e.g., equitable damages are only available where there is no adequate remedy at law).21 Cases in this area involve both. 3. The primary opinion of the Florida Supreme Court pits a court rule (Florida Rules of Civil Procedure 1.540(b)) against longstanding precedent in a manner so convenient as to make it suspect. In Macar, a court rule governing procedure is being afforded higher priority than Florida statutes (e.g., § 61.075) and case law (e.g. Casto v. Casto22 and Pederson v. Pederson23). 4. Although it is difficult to pinpoint the controversy with precision, there seems to be a conflict between two different, contract-based philosophies. These philosophies are best described as aligning with either of two theories: legal formalism, on the one hand, and legal realism, on the other.24 The former is more conservative and decries legal advocacy in favor of strict construction and disdain for extrinsic evidence. The latter is more flexible and attempts to get to “what is really going on,” and also great on courts to reach a ruling.) How much more palatable it would be to find a non-criminal or non-morally reprehensible basis on which to rule. Nevertheless, where courts find a way to avoid fraud, duress, misrepresentation, etcetera., under the Casto first prong, such factors are relevant and should still be weighed for a prong-two analysis of unreasonableness. 21. See, e.g., Willis v. Fowler, 136 So. 358, 367 (Fla. 1931); see also Henry E. Smith, The Equitable Dimension of Contract Law, 45 SUFFOLK U. L. REV. 897 (2012) (“Whether they have been anti-moralists, formalists, realists, or consequentialists, commentators have been quite unified in their preference for contract law over equity”); Jack B. Jacobs, The Uneasy Truce Between Law and Equity in Modern Business Enterprise Jurisprudence, 8 DEL. L. REV. 1, 5 (2005) (noting that at least until the early 1980’s the clear preference for the application of “law” rather than “equity” in areas of business law). 22. Casto, 508 So. 2d 330. 23. See Pedersen v. Pedersen, 892 So. 2d 1125, 1126–27 (Fla. Dist. Ct. App. 2004). 24. See infra notes 107–108. The two most famous champions of these legal theories are Professors Williston and Corbin. See generally Daniel J. Klau, What Price Certainty? Corbin, Williston and the Restatement of Contracts, 70 B.U. L. REV. 511, 522–26 (1990).

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encourages judicial interpretation (which legal formalists call “judicial advocacy”)25. 5. The rulings involving this set of issues are quite diverse and involve several important factors that have not yet been clearly and fully reconciled. Certain cases discussed herein deal with ante-nuptial agreements, while others concern post-nuptial ones. Some of the agreements are entered into before litigation has been filed, while others have been executed after litigation has been filed and counsel has been retained.26 If necessary, standards should be developed for ante-nuptials, possibly with sub-categories, as well as for post-nuptial situations, possibly with subcategories such as for pre-counsel and post-counsel situations (but no bright-line rule in the case of the latter exists, which is the raison d’être of this article and which Casto should have made clear). Recently, the Florida Supreme Court majority recognized and corrected an over-extension of a valid rule of convenience in a different context—Florida’s “economic loss rule.”27 It is argued herein that, for slightly different but no less compelling reasons, Florida courts have been using another rule of convenience too readily for which further guidance is appropriate. II. THE SANCTITY OF SETTLEMENT AGREEMENTS IN LIGHT OF CHALLENGES BASED ON FRAUD, MISREPRESENTATION, DURESS, COERCION, OVERREACHING . . . OR UNFAIRNESS The best place to commence analysis of the Florida judiciary’s treatment for setting aside settlement agreements is probably Weeks v. Weeks.28 The case involved a married couple that separated, entered into a property settlement agreement, but afterward resumed a marital relationship.29 Despite the resumption of a marital relationship, which did not abrogate the wife’s rights applicable to the settlement agreement, the Florida Supreme Court majority ruled that the full and fair disclosure requirement applied to both ante 25. Id. 26. This may be the most problematic factual aspect for setting aside a postnuptial property settlement agreement. It is argued that this is being used as the dispositive factor, rather than being used, as is suggested if not required by the Casto ruling, as a factor in a balancing of facts and circumstances. 27. See discussion infra p. 19. 28. 197 So. 393 (Fla. 1940). 29. Id.

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nuptial and post-nuptial settlement agreements.30 Further, once proof of non-disclosure and disproportionate means of support are established, the burden is on the concealing party, the husband in this particular case, that there was, in fact, a full and fair disclosure.31 The disproportionality raised a presumption of designed concealment.32 Apparently, there is a burden of production on both parties in a divorce property settlement agreement, with the switching burden of proof, and a presumption of designed concealment to that party best able to support him- or herself. Whereas the level of factual familiarity over assets and worth could be the proper subject of either a “lack of mutuality” problem in contract formation or a “misunderstanding” issue for non-enforcement, the switching burden onto the wealthier party is a public policy or equitable mechanism. The next ruling to consider is Del Vecchio v. Del Vecchio.33 This case involved a request to set aside an ante-nuptial agreement for failure of one of the parties to make a full and fair disclosure.34 A four-Justice majority of the Florida Supreme Court ruled that an antenuptial agreement should be upheld where either the provisions appear to be fair and reasonable or when entered into with full and frank disclosure, along with competent and independent advice, that would waive any objection to validity.35 In the case of the latter method of establishing validity in the face of challenge, the courts were to consider factors such as the relative situation of the parties, their ages, their health and experience, respective properties, family ties, the parties’ relative needs, and other factors that help to answer the question whether the entry into such agreement by challenging party was nevertheless understandingly made.36 In Del Vecchio, the majority ruled that the wife who was challenging the agreement would have had to prove the basis for the set-aside unless the agreement was unreasonable on its face—which would create the presumption of concealment and shift the burden of proof.37 30. Id. at 394. 31. Id. at 395. 32. Id. 33. 143 So. 2d 17 (Fla. 1962). The case reached the Supreme Court pursuant to its conflicts jurisdiction set out in Section 4(2), Article V, Constitution of Florida. Id. at 18. 34. Id. 35. Id. at 20. 36. Id. 37. Id. at 20–21.

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In Casto v. Casto,38 the Florida Supreme Court addressed a request to set aside a post-nuptial agreement. A ruling to set aside a post-nuptial property settlement agreement could be granted on either one of two bases: first, on the basis of contract defenses, such as fraud, duress, and similar; and second, that there was an insupportable unfairness or unreasonableness under the circumstances.39 Under the second or “unreasonableness” mechanism (note: the more equitable one), courts are to balance the same basic factors as set out in the Del Vecchio case.40 A bad bargain of itself is not sufficient to vacate or modify a settlement agreement.41 Unlike the situation of an ante-nuptial agreement, post-nuptial settlement agreements entered into while the parties are married are no longer to be treated as having been negotiated “at arm’s length,” and courts are directed to carefully examine the circumstances.42 A decision to vacate or modify a settlement agreement does not require a finding of the lack of competent counsel.43 Ultimately, the majority opinion in Casto referenced some highly unpleasant threats, allegedly made by the husband, as the reason for its finding of “unreasonableness.”44 Crupi v. Crupi45 involved a motion to set aside a mediated settlement agreement. The primary difference in Crupi is that it did not involve simply a post-nuptial agreement, but that it was the product of a mediated settlement agreement. The majority limited the ability to set aside a mediated settlement agreement on the basis of fraud, misrepresentation in discovery, or coercion.46 It is interesting to note that the appellate court affirmed the trial court, but on a different basis— the confusion of the trial court on the test to be applied.47 From the Crupi opinion, it appears that the trial court 38. 508 So. 2d 330 (Fla. 1987). 39. Id. at 333. It should be noted that the first justifications given for set-aside appear to be the “legal” defenses used in contract law, and that the second basis looks very much like the equitable “unconscionable” defense in contract law. The decision was by a four-justice majority, with one concurrence to the result and one dissent. 40. Id. at 333, 334. 41. Id. at 333. 42. Id. 43. Id. 44. Id. at 334–35. 45. 784 So. 2d 611 (Fla. Dist. Ct. App. 2001). 46. Id. at 612. 47. Id. at 613.

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combined contract-based defenses with equity-laden unfairness criteria.48 With regard to the former, it was emphasized that the mediated settlement agreement included a clause confirming that the parties had read the agreement and were not subject to duress or fraud before or during its execution.49 Judge Winifred J. Sharp, concurring in part and dissenting in part, agreed that the wife, who was challenging the agreement, was unable to establish a sufficient factual basis to establish fraud, misrepresentation, or coercion.50 That judge, however, disagreed with the majority’s finding that the only way to set aside a mediated settlement agreement where one was represented by counsel is on the basis of fraud, misrepresentation, or coercion.51 Rather, the dissent focused upon the fact that parties to a marriage are not dealing at arm’s length and, therefore, must carefully examine the validity of such agreements52 (noting that the Petracca v. Petracca53 majority limited challenge of post-nuptial agreements to fraud, misrepresentation, or coercion54). According to the dissent, Casto involved a property settlement agreement (pre-litigation), whereas Petracca involved a litigation settlement agreement (representation of counsel, discovery process, etcetera).55 The problem, according to this distinction, is that Petracca treated dissolution settlement agreements exactly the same way as it would treat “ordinary” civil litigation matters.56 Contrarily, it was reasoned, marital property settlement agreements should not be treated like other contracts.57 Further, the dissent noted that even if the Petracca decision was good law, it was appropriate to look at the extent of the 48. Id. 49. Id. The opinion did not indicate whether there was also a “full and fair” disclosure clause which is also often included in mediated settlement agreements. 50. Id. at 614 (Sharp, J., concurring in part and dissenting in part). This reasoning was relied upon by Judge Pariente’s concurrence in result only in Macar v. Macar, 803 So. 2d 707 (Fla. 2001), discussed infra pp. 12–14. 51. Crupi v. Crupi, 784 So. 2d 611, 615 (Fla. 2011). 52. Id. at 615. 53. See Petracca v. Petracca, 706 So. 2d 904 (Fla. Dist. Ct. App. 1998). 54. Crupi, 784 So. 2d at 615. 55. Id. at 616. 56. Id. 57. Id. The concurrence quoted the majority opinion in Posner v. Posner, 233 So. 2d 381, 385 (Fla. 1970).

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litigation (including discovery, interrogatories, etcetera) as a factor.58 Noting further that Florida law did not suspend or require the suspension of discovery during mediation unless stipulated by the parties or ordered by the court, the duty to inform pursuant to court rule was ongoing.59 This means that a rushed mediation settlement agreement could, in fact, be factually deficient such that the more equitable form of set-aside (for unreasonableness), or a test that combines the two Casto prongs, may still be established. Incidentally, the court of appeals panel in the Petracca case engaged in a significant study of case law, ultimately ruling that the wife, who was challenging the agreement, was not permitted to rely on the second Casto prong.60 The ruling, however, was not based on a prohibition of the second Casto prong, but on a balancing of factors, including taking notice of the length of the discovery process, to determine whether there was a lack of information on finances and was not at arm’s length.61 Important to emphasize is the fact that this is a factual conclusion, not a legal one. It does not remove the second Casto prong; rather, it disqualifies the need for its analysis based on the balancing of the facts in that case. In fact, not only did independent counsel in this case represent the wife, but she had two years to conduct such discovery.62 She also made no claims that the husband’s responses in discovery were false or intentionally misleading, or that she relied on any fraudulent or misleading statements when she entered into the agreement.63 A statement in the Petracca holding may help to make things more clear. In Petracca, the Court ruled that there was a “litigation . . . presumption of validity,” which is hard to set aside in the case of a voluntary settlement agreement.64 What this appears to indicate is that there is an agreement with the premise that a presumption of disguised concealment may be made in cases of ante-nuptial agreements in the vein of Del Vecchio. However, no such 58. Id. 59. Id. at 616–17. 60. Petracca v. Petracca, 706 So. 2d 904, 911 (Fla. Dist. Ct. App. 1998). 61. Id. at 912. 62. Id. at 906. 63. Id. at 905 (providing the facts); id. at 911 (assessing those facts for the unreasonableness argument). 64. Id. at 912 (emphasis added).

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presumption can arise in the case of post-nuptial, voluntary settlement agreements based on factors such as its voluntary and post-nuptial nature, the length and diligence of the discovery process, and assessment of whether there was a relatively proper set of disclosures by the non-moving party. This does not remove the Casto second prong—it adds factors to consider in a balancing test. There would appear to be a syllogism here. First, the law treats post-nuptial, voluntary settlement agreements differently than ante-nuptial agreements. Second, the law greatly dislikes setting aside or amending post-nuptial, voluntary settlement agreements because that would require court intervention in the freedom of parties to contract—particularly, but not necessarily, when such parties are represented by competent counsel.65 Thus, courts may not set aside post-nuptial, voluntary settlement agreements. The failure is, however, that this line of reasoning does not ever answer why its purported prohibition is done as a matter of law and not as a matter of fact—despite the fact that the court took into account the circumstances of the discovery and litigation process. Worthy of particular note is the penultimate case of Macar v. Macar.66 First, the Florida Supreme Court provides a relatively extensive restatement of the facts. The discovery period, during which counsel represented both sides to the divorce action, was exactly one year.67 The complainant had hired an independent (expert) accountant to inventory both parties’ assets based on discovery documents and disclosures.68 The privately retained accountant had prepared a schedule of assets for use at trial.69 The request for continuance and a flurry of pre-trial motions were made within the four days immediately preceding the trial.70 After the 65. See, e.g., Gordon v. Gordon, 25 So. 3d 615, 617–18 (Fla. Dist. Ct. App. 2001) (refusing to find fraud, duress, or coercion where a husband failed to disclose his airline pension plan to his spouse in the course of prenuptial agreement); see Casto v. Casto, 508 So. 2d 330, 333 (Fla. 1987) (holding that a post-nuptial agreement may be set aside due to unfair or unreasonable provisions or because the post-nuptial agreement was the product of fraud, deceit, duress, coercion, misrepresentation, or overreaching). 66. See Macar v. Macar, 803 So. 2d 707 (Fla. 2001). 67. Id. at 709. 68. Id. 69. Id. 70. Id.

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motions were all denied, but just before trial, the parties announced that they had reached a settlement agreement, and the court entered final judgment after the articulation of the terms and assent by both parties that the agreement was reached voluntarily.71 Nearly six months later, the wife filed for relief from judgment pursuant to Florida Rule of Civil Procedure 1.540 and Florida Family Law Rule of Procedure 12.540.72 Implicit was the fact that documents and information would have all been located in the United States and in the hands of the IRS or professional investment concerns—i.e., they should be, with or without an expert accountant, readily available.73 Second, the court distinguished the Casto case and its two prongs from Macar on the basis that the post-nuptial agreement in the former was entered into long before the filing of petition for dissolution (one year), whereas the couple in Macar had engaged in extensive discovery for a significant period after the filing of the dissolution petition.74 Third, the court faulted the moving party’s public policy argument: encouraging accurate financial affidavits (or risk rescission) would in fact promote viable, enforceable, and amicable settlements.75 Instead of focusing on the benefits of requiring accurate and full disclosure by both parties, so as to settle before trial, the court majority focused on the potential manipulation of the litigation process, waste of judicial resources, and compromise of the finality of such judgments.76 In short, the court majority made a decision heavily based on a policy of judicial efficiency, steeped in the “sanctity of contract” espoused by proponents of legal formalism.77 Absolutely critical to the argument herein are the two footnotes on page 713 of the majority opinion, which are worthy of special quote: 71. Id. 72. Id. 73. See id. at 709–10 (these factors were not specifically addressed but are added to accentuate the relative ease of finding such documents). 74. Id. at 711. 75. Id. at 713 (it is unclear whether this included consideration of the implicit policy of respecting, as a matter of public policy, of that yearning in every breast for justice). 76. Id. 77. See K.M. Sharma, From “Sanctity” to “Fairness”: An Uneasy Transition in the Law of Contracts?, 18 N.Y.L. SCH. J. INT’L & COMP. L. 95 (1998–1999).

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6. If, on the other hand, the parties were not afforded an opportunity to engage in discovery, Casto may become more applicable, because the chances of undetected asset concealment increase. 7. We specifically note, however, that our decision today is that Casto is inapplicable to this type of case is limited to cases which have attended a procedural posture of this case, i.e., cases where a contested action has been commenced and the parties have had the opportunity to obtain full disclosure through the various discovery mechanisms.78 This would be particularly true in the case of a mediated settlement agreement that included a “full and adequate disclosure” obligation or mandatory disclosure clause.79 Further, there is magic language in Macar, not dicta, that undeniably sets a legal standard requiring a proper factual inquiry.80 This factual inquiry, however, is being swept under the rug in violation of the Pedersen requirement of trial courts to include in rulings their conclusions of law and of fact.81 The extent to which the majority limits its holding to a special and relatively extensive set of facts and circumstances bespeaks the judges’ prescience that lower courts would latch onto this as a mechanism for the convenient denial of set-aside motions, i.e., as a potentially over-used rule of convenience. Therefore, it would appear that there is no problem with setting aside ante-nuptial agreements without counsel and where the parties are still relatively “at arm’s length.” Further, there does not seem to be disagreement with the tenet that even post-nuptial agreements made by parties represented by counsel after extensive discovery may be set aside for the basic contractual defenses of fraud, duress, or coercion. There is disagreement, however, on whether a party represented by counsel, and well into the discovery process, must be 78. See Macar, 803 So. 2d at 713 nn.6–7. 79. Whereas settlement agreements usually have a “read, understand, and intend to be bound” clause, they also may contain a promise by each party that he or she has made full and adequate disclosure. In cases where they do, a court should balance the two based on a rigorous actual inquiry to determine which deserves primacy. See Casto v. Casto, 508 So. 2d 330 (Fla. 1987). 80. See Macar, 803 So. 2d at 710. 81. See Casey, 505 U.S. at 966.

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presumed to have knowingly and voluntarily entered into a postnuptial settlement agreement. It can be argued that the cases above do not, in fact, remove the second prong of Casto for setting aside settlement agreements for unreasonableness, even where such agreements are post-nuptial, as well as the product of representation by counsel and significant discovery. The “presumption” of voluntariness, and validity, of such post-nuptial agreements may hide behind the “sanctity of contract” and “hesitation to reform a contract” arguments, but should still require a balance of the facts and circumstances. It is here that the question arises concerning where the duty of disclosure ends and responsibility of discovery begins. It is further argued that courts have, for the sake of judicial efficiency and reduction in workload, treated the Macar line of cases, and particularly its rejection of “unreasonableness” arguments, as established law rather than the subject of appropriate judicial inquiry. For example, assume two intelligent parties, where one works full-time at a high-stress job (the moving party) and another volunteers a few hours per week (the non-moving party). Much of the assets of the non-moving party are in foreign countries and documents are in a foreign language–and it would be particularly time-consuming and expensive to locate and have such documents translated. No expert accountant has yet been hired by either party to provide a schedule of assets after inquiry. Additionally, the nonmoving party secures the advice of counsel at roughly a year before the other party realized that dissolution was a certainty. The time from filing of petition for dissolution and mediated settlement agreement is approximately four months. The non-moving party’s counsel secures a favored mediator with whom that attorney has a long-standing professional relationship. Further, the non-moving party has owned and operated numerous private for-profit companies as well as not-for-profit companies, none of which have gone bankrupt. Finally, the fully employed moving party is female, thereby removing any hidden, historic gender bias. In light of these facts, it is not so difficult to comprehend that a mediated settlement agreement may not have been appropriately voluntary or at least not having had the benefit of “opportunity to engage extensively in the discovery process.”82 How much easier it 82. See Macar, 803 So. 2d at 712–13.

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would be to cast an “unreasonableness” analysis aside with cryptic pronouncements that the agreement was reached knowingly and voluntarily rather than conduct a factual inquiry. The first part of the thesis herein is that the ability to set aside a voluntary settlement agreement, post-nuptial and with representation of counsel, may still exist based on the Casto second prong of “unreasonableness.” The second part is that the courts, or the Legislature, should develop a clear set of factors to be assessed for such a test. Courts should not be allowed to dispel with motions to vacate unless they use the proper test (supported by law) and properly weigh the facts and circumstances (supported by facts).83 Failure to so act would make trial court pronouncements virtually review-proof, which cuts against the very fiber of judicial responsibility. III. A PROPOSED LEGAL STANDARD AND FACTUAL COMPONENTS FOR THE CASTO SECOND PRONG The second Casto prong in all cases, even in Petracca,84 calls for a factual balancing of factors to determine whether a settlement agreement may be set aside for unreasonableness. There does not appear to be a common list of factors to be considered, but most, if not all, of the proper factors may be gleaned from Florida state-court opinions such as in Casto, Petracca, and even Macar, which still require (as a factual inquiry and not as a legal conclusion) that the discovery process could have uncovered all relevant facts85—which facts should perhaps be listed by trial courts in the interest of justice. Whether by the Legislature or by the Florida Supreme Court, a rule should be developed that identifies and balances the right factors to determine whether a settlement agreement was either unreasonable or not entered into voluntarily. The elements could be as follows: 1. The merits of any allegations of misrepresentation or omission, in a completely separate consideration from similar allegations in Casto prong 1. Misrepresentations and omissions, on 83. Cf. Casey, 505 U.S. at 966 (the Pedersen requirements for conclusions of law and fact). 84. The Petracca court continued to provide for set-aside where a “party can show the reasonable lack of sufficient knowledge.” Petracca v. Petracca, 706 So. 2d 904, 911 (Fla. Dist. Ct. App. 1998). 85. See Robert M. Schwartz, Drafting Marriage Contracts in FO061: Challenging, Modifying, and Enforcing Agreements, 2012 FLA. B. § 6.4 (2012).

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the balance, may still prove to be unreasonable even where they are not found to be fraudulent, coercive, creating duress, etcetera. This should be the product of a distinct factual inquiry, notdispelled with by a rule of convenience. 2. The procedural positioning of the motion to set aside (antenuptial, post-nuptial, pre-judgment of dissolution, etcetera). There is a timeline involved to determine if responsibility is to be placed on the moving party, or if it has reached that point where lies and omissions attributable to the negligence or dilatory practice of the other. 3. The level of sophistication of the parties, devoid of potential hidden, historic prejudices such as weakness of one gender or the inclination to hide assets by the other. This could include a component addressing the nature of the documentation, for example, if it is difficult for the moving party to acquire, too expensive for one party to acquire but not for the other, if the documents are in a foreign language not known by both, etcetera. This could also include consideration of counsel’s role, such as when one party retains counsel long before the proceedings are filed and a settlement agreement is pushed through soon after the other party retains counsel. 4. Other factors that law and equity require. This could include consideration of the ability to pay for counsel–if it is in fact true that you get as much justice as you can pay for. 5. There should be a catchall that would allow consideration of factors that cannot all be anticipated. One mechanism to easily remedy the problem, identified herein, is to distinguish Florida Rule of Civil Procedure 1.540 from Florida Family Law Rules of Civil Procedure 12.540. It is argued that there is too much equity involved in marital situations for a more general rule such as Rule 1.540 to cover. This very fact is borne out by a modification of Family Law Rule 12.540 to fit marital relations that is not included in its more general counterpart. Family Law Rule 12.540 provides: Florida Rule of Civil Procedure shall govern general provisions concerning relief from judgment, decrees, or orders except: (a) there shall be no time limits for motions based on fraudulent financial affidavits in marital . . . cases.86 86. FL ST FAM LAW Rule 12.540

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Cases involving matrimony are different from other civil matters and the need for special consideration cannot be denied, even by proponents of rules of convenience, in light of the clear import of the above-quoted language. Based on this clear difference, steeped in the equities that revolve around marital and paternity situations, as well as on the factual balance required for the second Casto prong for unreasonableness, the Family Law Rule could be amended to require a full assessment of factors clearly delineated between Casto prong 1 and Casto prong 2. IV. ANOTHER “RULE OF CONVENIENCE” PROBLEM – THE “ECONOMIC LOSS RULE” A good example of another ‘rule of convenience’ problem may be found in the case Florida Power & Light Company v. Westinghouse Electric Corporation,87 which has been corrected by the Florida Supreme Court in Tiara Condominium Association, Incorporated v. Marsh & McClellan Company.88 In Florida Power, a majority of six Justices of the Florida Supreme Court ruled that contract principles were more appropriate than tort principles to resolve questions of purely economic damage, absent distinct damage to person or property.89 Practically speaking, the majority relied on somewhat archaic notions of contractual privity, possible cost burdens on the public, and the Uniform Commercial Code’s (U.C.C.) preference for warranty damages.90 However, one problem is that the U.C.C. provides for liberal construction of consequential damages and is written in the conjunctive with two prongs, which specifically includes a second prong for damages to person or property.91 The 87. 510 So. 2d 899 (Fla. 1987). 88. 110 So. 3d 399 (Fla. 2013). For a brief discussion of the impact of the Tiara Condo. Ass’n ruling on Florida law, see Oran F. Whiting, Florida’s Economic Loss Rule Limited to Products Liability Cases, AM. B. ASS’N (July 1, 2013), https://apps.americanbar.org/litigation/litigationnews/top_stories/070113economic-loss-rule.html. 89. 510 So. 2d at 902. 90. Id. Warranty damages under the U.C.C., at least for buyers, include consequential, as well as incidental and price-differential, damages. See FLA. STAT. ANN. § 672.713(1) (Westlaw 2016). 91. Official commentary to the Uniform Commercial Code requires a liberal construction of allowable consequential damages. U.C.C. § 2-713 cmt. 3(AM. LAW INST. & UNIF. LAW COMM’N 2016). Further, U.C.C. § 2-715(2)(a) defines consequential damages to “include any loss resulting from general or particular

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latter are clearly tort-based and do not support a warranties-only interpretation of economic losses in contracts cases. This is not to say that plaintiffs in contracts cases should be allowed in all cases to open the Pandora’s Box of tort claims, including requests for punitive damages, without justification. The question boils down to how courts or the Legislature can properly limit tort-based damages in the wrong cases but allow them in appropriate ones. Perhaps most importantly, with regard to presumptions and burden shifting, the burden is upon the stronger, non-moving party to disclose rather than on the weaker, non-moving party to inquire.92 In short, the upshot for marital agreement challenges is that where there is prejudice to a party by non-disclosure in an antenuptial agreement, the focus is one of concealment (and its presumption) rather than on simple non-disclosure. While the majority reiterated that the archaic presumption of dominance by a husband had been rejected, it called for a good-faith disclosure of material facts related to wealth and property for the wife.93 Note that the Court still had not replaced the highly connotative words “husband” and “wife” with “petitioner” and “respondent” or “primary breadwinner” and “house spouse” or “non-primary earner.” This is important to note for purposes of argument that there was, and still is, quite a bit of equitable consideration being exercised (and not “exorcised”) in divorce-based property settlement agreements. A second problem was that the economic loss doctrine was created in the context of products liability cases, but courts have expanded its premise.94 Florida courts have already recognized that the extension of the economic loss rule to certain cases “appeared to expand the application of the rule beyond its principled origins and have contributed to applications of the rule . . . to situations well beyond [the] original intent.”95 requirements and needs of which the seller had reason to know,” and § 2-715(2)(b) adds “injury to person or property proximately resulting from any breach.” Florida’s adoption of this U.C.C. section is identical. FLA. STAT. ANN. § 672.715(2)(a)–(b) (Westlaw 2016). 92. Florida Power, 510 So. 2d at 906. 93. Casto, 508 So. 2d at 333. 94. Florida Power, 510 So. 2d at 906. 95. Tiara Condo. Ass’n v. Marsh & McLennan Co., 110 So. 3d 399, 405 (Fla. 2013) (quoting Moransais v. Heathman, 744 So. 2d 973, 980 (Fla. 1999)). Moransias criticized the extension of the economic loss rule to prohibit a negligence claim in a non-professional services context. See also, e.g., AFM Corp.

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In Tiara Condo, a majority of the Florida Supreme Court agreed that the economic loss rule should be limited to products liability cases.96 Two dissenters advocated for use of the economic loss rule as set out in Florida Power.97 A concurring opinion took the middle road by arguing that the law underlying this area was still in place, such that the Tiara Condo ruling was not a change of law but only a retraction of the application of the economic loss rule.98 In fact, this comports perfectly with the two-part test for consequential damages set out in Article Two of the Uniform Commercial Code.99 Thus, one could always separately plead and prove tort damages alongside claims for contracts (warranty) damages. The problem then has been the potential, careless application of the economic loss rule as a way to dismiss proper, separately pleaded and proven, tort-styled damages and thereby reduction in the courts’ workload. Application of the economic loss rule, as a matter of public policy, is a sensible response to a particular threat to the public weal– potentially ruinous damages awards in cases that did not involve services or fiduciary duties and clearly were not “hybrids” that included services and specialized-trust relationships. Moreover, the products liability area is one that enjoys significant “blue sky” statutory protections, such as the federal Magnusson-Moss Warranty Act.100 Accordingly, there are sufficient standards and coverage of the risks to the public and to industry. The economic loss rule rests upon this foundation, and it clearly furthers the legislative intent concerning products liability issues. It was a judicial léger-de-main to extend the rule to non-products liability cases. v. S. Bell Tel. & Tel. Co., 515 So. 2d 180 (Fla. 1987) (negligence in advertising arrangement); Indem. Ins. Co. of N. Am. v. Am. Aviation, 891 So. 2d 532 (Fla. 2004) (negligence under service agreement for aircraft maintenance). 96. Tiara Condo. Ass’n, 110 So. 3d at 407. 97. Id. at 410–11 (Poltson, J., dissenting); id. at 411–14 (Canady, J., dissenting). 98. Id. at 409. 99. See U.C.C. § 2-715 (AM. LAW INST. & UNIF. LAW COMM’N 2016). 100. See, e.g., 15 U.S.C. § 2301 (AM. LAW INST. & UNIF. LAW COMM’N 2016). Florida has a related lemon law covering new and demonstrator vehicles. FLA. STAT. ANN. § 681.10 (Westlaw 2016). For a brief explanation, see How the Florida Lemon Law Works, MYFLORIDALEGAL.COM, http://myfloridalegal.com/pages.nsf/ Main/a510d1364b15502a85256cc9005da68a (last visited Oct. 2, 2016). Incidentally, state lemon laws tend to cover motor vehicles, leaving coverage on other consumer products to the federal rules.

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The point may be best illustrated by an example–a hybrid goods and services contract. Pursuant to Florida law, mixed contracts that include a “sale of goods” component as well as a services component will be controlled by either Florida’s Commercial Code for sale of goods (Article 2 of the U.C.C.) or by common law principles based on which of the two predominate with regard to the overall value of the contract.101 If the sale of goods predominates, then commercial principles would prevail. Nevertheless, there may be an important services component regarding the breach, which should lead to punitive and other damages for breach of fiduciary duty, malpractice, etcetera. Classification of one of these hybrid contracts as one for the sale of goods, which then would permit the application of the economic loss rule, can easily be used to avoid what might otherwise be valid claims for fiduciary, and even punitive, damages. This problem could arise in cases involving construction services, which are typically comprised of the supply of materials as well as advice, expertise, and labor.102 Another example could be Gill-Samuel v. Nova Biomedical Corporation,103 which is in line with what the concurring opinion in Tiara Condominium explained. In Gill-Samuel, a sub-class of claimants was not barred by the economic loss rule from bringing tort claims for consequential damages because they were not only distinct from economic losses, but the damages could be separately pleaded and proved.104 While the product may have been faulty, and therefore subject to warranty liability, its fault also may have caused unnecessary medical expenses occasioned by false positives which would appear to clearly fit into the category of non-warranty, consequential damages proximately caused by the faulty product. There is a difference in how the Florida Power line of cases and the Macar line of cases went astray. Florida Power and its ilk 101. See, e.g., Allied Shelving & Equip. Inc. v. Nat’l Deli, LLC, 154 So. 3d 482, 484 (Fla. Dist. Ct. App. 2015). For a discussion of choosing between U.C.C. and common law theories in mixed transactions, see Austin Bodnar, Mixed Transactions for Goods and Services: The Need for Consistency in Choosing the Governing Law, 27 ST. THOMAS L. REV. 225 (2015). 102. It would appear that in most states, mixed cases of goods and services use the predominant purpose test. David C. Olson & Jeffrey S. Rosenstiel, Predicting When Construction Contracts are Subject to Article 2 of the UCC, 21 CONSTRUCTION LAW 22 (2001). 103. 298 F.R.D. 693 (S.D. Fla. 2014). 104. Id. at 697.

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extended the application of the economic loss rule to non-productsliability cases, which no doubt simplified the mechanics for handling contracts cases for the judiciary. The fault has been the rule’s overextension to situations that it was never intended to cover. With regard to the Macar process, the problem is one of over-emphasizing the role of an opposing party in the discovery process while minimizing the other party’s duty of evidence production. Courts could latch onto a settlement agreement, even one based on incomplete, if not deceptive, information or even fraud, as a way to remove the case from their dockets. Nevertheless, both have gone too far and call for judicial, if not legislative, repair or replacement.105 CONCLUSION Just as the Tiara Condo problem arose in the interstices between contract and tort law, with a bit of products-liability law (torts and public policy) thrown in, the Macar problem spans the chasm between contract law and family law. Where concerns of one area of law could make a significant but hidden impact on the other, the guidelines for any rule should be relatively clear so as to avoid excessive discretion without sufficient guidelines. Failure of sufficient standards leaves too much discretion in the courts and encourages rulings that violate the prohibition against rulings that insufficiently identify the law and the facts on which they rely.106 Contract law seeks to honor the intent of the parties, protect mutually agreed aspects, defend weaker parties in adhesion situations, and similar. Students of contract law are familiar with the golden rule that parties should be free to contract, as well as the theoretical competition between the Willistonian107 strict construction and the 105. Pun intended. This is the basic standard whereby sellers of goods may limit their warranties to repair or replace pursuant to U.C.C. § 2-719. See FLA. STAT. ANN. § 672.719(1)(a) (Westlaw 2016). 106. Pedersen v. Pedersen, 892 So. 2d 1125, 1126–27 (Fla. Dist. Ct. App. 2004). 107. Samuel Williston was a Professor of Law at the Harvard Law School in the prior two centuries and is famous for his philosophy of legal formalism, particularly in the area of contract law, thus favoring a strict construction of statutory language without judicial advocacy, i.e. the effectuation of policy by the courts. For an interesting contrast of philosophies between Professor Williston and Professor Corbin. See generally Daniel J. Klau, What Price Certainty? Corbin, Williston and the Restatement of Contracts, 70 B.U. L. REV. 511, 522–26 (1990).

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more Corbinesque108 approach. Family law is more steeped in equity, which includes protection of children, spouses with little or no income-generating skills, etcetera. There may be pulls toward a certain level of favoritism (discrimination) in favor of a perceived, weaker party that could be justified as falling within the equitable discretion of a family law court. A problem is that this kind of prejudice, potentially justifiable in family law, has absolutely no place in contract law. At a minimum, for cases in between these two poles, clear requirements or standards are necessary to ensure the proper balance. Noteworthy is that this is not necessarily an admonition of the judiciary to exercise more care, but a call for guidance that would be of great help to newer judges and lawyers. Further, this is not an exercise in judicial advocacy as favored by Professor Corbin, nor is it a strict construction argument the likes of which might be espoused by Professor Williston. It is a clarification, and perhaps a bit of bolstering, of the legal standard for assessing the validity of settlement agreements in divorce cases that involve settlement agreements. The basics of such a standard can in fact be found in Macar and similar cases. Adoption of a more substantiated standard would reign in judicial discretion that may be caused by a failure to fully grasp the ephemeral relationship between contract and family law.

108. Arthur Linton Corbin was a Professor of Law at Yale Law School in the last century who espoused the theory of legal realism, or a focus on what was really going on in court decisions, rather than a focus on legal formalism, or what was said by the courts in their decisions. Corbin’s view recognized increased discretion of courts to advocate what the law should be in contrast to a more strict application of the law as written. Id. at 526–29.

THE FLORIDA CONSTITUTION: THE RIGHT AGAINST SELF-INCRIMINATION IS ALIVE AND WELL IN TALLAHASSEE! JEFFREY SWARTZ* TABLE OF CONTENTS INTRODUCTION I. THE EFFECT OF MICHIGAN V. LONG AND VIRGINIA V. MOORE II. STATE OF FLORIDA V. MCADAMS A. Facts and Procedure B. Analysis III. STATE V. HORWITZ A. Facts and Procedure B. Analysis CONCLUSION

319 320 322 322 323 326 326 327 330

INTRODUCTION The Florida Supreme Court, clearly establishing its diversions from the United States Supreme Court’s (SCOTUS) rulings in Salinas v. Texas1 and Moran v. Burbine,2 has chosen to apply Article I, Section 9 of the Florida Constitution.3 This expands and restores rights under the Fifth Amendment of the U.S. Constitution, which SCOTUS has limited or restricted in Miranda v. Arizona4 and Griffin

* Jeffrey Swartz joined the faculty at WMU-Cooley Law School in 2013, following several years in private practice. He has previously practiced in the areas of litigation, criminal defense, professional malpractice defense, commercial litigation, criminal defense insurance coverage litigation, and attorney fee litigation. Professor Swartz was also a County Court Judge for Miami-Dade County, Florida, 1995-2005, where he presided over criminal and civil cases. 1. 133 S. Ct. 2174 (2013). 2. 475 U.S. 412, 413 (1986). 3. FLA. CONST. art. I, § 9 (“No person shall be deprived of life, liberty or property without due process of law, or be twice put in jeopardy for the same offense, or be compelled in any criminal matter to be a witness against oneself.” (emphasis added)). 4. 384 U.S. 436 (1966).

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v. California. 5 The court’s departure became apparent in State v. McAdams 6 and State v. Horwitz. 7 In these cases, the Court either affirmed8 or reversed homicide convictions.9 Both cases dealt with a defendant, who had failed to unequivocally invoke his or her right to remain silent, or his or her right to counsel.10 The significance of these rulings cannot be understated, both in their effect and also in the conscious and well-constructed avoidance of problems created by Michigan v. Long11 and Virginia v. Moore.12 Both of these cases stood for the proposition stated by Justice O’Connor, that “[i]f the state court decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent state grounds, [the Supreme Court] will not undertake to review the decision.”13 I. THE EFFECT OF MICHIGAN V. LONG AND VIRGINIA V. MOORE In Long,14 SCOTUS determined that it had jurisdiction to review the actions of the Michigan Supreme Court, which reversed David Long’s conviction for possession of marijuana. 15 In short, Long challenged the search of his automobile resulting from a DUI arrest.16 The Michigan Supreme Court ruled that the search of Long’s trunk violated his rights under Article 1, Section 11 of the Michigan Constitution. 17 However, in its opinion, the court relied almost 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17.

380 U.S. 609 (1965). 193 So. 3d 824 (Fla. 2016). 191 So. 3d 429 (Fla. 2016). Id. at 431. McAdams, 193 So. 3d at 844. See id. at 827; See Horwitz, 191 So. 3d. 429. Michigan v. Long, 463 U.S. 1032 (1983). Virginia v. Moore, 553 U.S. 164 (2008). Long, 463 U.S. at 1041. Id. Id. at 1044. Id. at 1036. People v. Long, 413 Mich. 461 (1982), rev’d, 463 U.S. 1032 (1983); MICH. CONST. art. 1, § 11 The person, houses, papers and possessions of every person shall be secure from unreasonable searches and seizures. No warrant to search any place or to seize any person or things shall issue without describing them, nor without probable cause, supported by oath or affirmation. The provisions of this section shall not be

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exclusively on its interpretation of the Fourth Amendment to the United States Constitution18 and Terry v. Ohio.19 In the Court’s opinion, Justice O’Connor stated that the references “to the State Constitution in no way indicate that the decision below rested on grounds in any way independent from the state court’s interpretation of federal law.” 20 Thus, SCOTUS ruled that it had jurisdiction to review the state court’s decision, opined that the Michigan Supreme Court had misinterpreted federal law, and reversed and remanded the matter to the state court for further proceedings to determine whether it could rule the same based solely upon state constitutional grounds.21 Twenty-five years later in Moore, David Moore, on a tip that he was driving while his license was suspended, was stopped. 22 The officers, familiar with Moore and his licensing status, stopped his vehicle for what was a non-arrestable offense under state law.23 A search of Moore’s car incident to his arrest discovered a quantity of cocaine, sufficient to charge him with possession of cocaine with intent to distribute.24 The Virginia Supreme Court reversed Moore’s conviction ruling that state law prohibited his arrest on the traffic violation and that the police should have issued a citation under Virginia law. Thus, the search was invalid —”the Fourth Amendment does not permit an expansion of search incident to an arrest to search incident to construed to bar from evidence in any criminal proceeding any narcotic drug, firearm, bomb, explosive or any other dangerous weapon, seized by a peace officer outside the curtilage of any dwelling house in this state. Id. 18. U.S. CONST. amend. IV The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Id. 19. 20. 21. 22. 23. 24.

Terry v. Ohio, 392 U.S. 1 (1968). Long, 463 U.S. at 1044. Id. at 1039. Virginia v. Moore, 553 U.S. 164 (2008). VA. CODE ANN. § 19.2-74 (Westlaw 2016). Moore, 553 U.S. at 167–68.

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citation.” 25 Unanimous in the judgment, with Ginsburg writing in concurrence, SCOTUS eschewed the effect of the Virginia statute as affecting the efficacy of their prior constitutional decisions.26 Justice Scalia, writing for the Court, opined that when an officer has probable cause to believe a person committed even a minor crime in his presence, the balancing of private and public interests is not in doubt. Thus, the arrest is constitutionally reasonable, and under federal law, Moore’s Fourth Amendment rights were not violated.27 With this backdrop and restriction as to how a state court can act when attempting to “expand” or interpret the rights of a defendant beyond those granted under the United States Constitution, the Florida Supreme Court had to structure its opinions in McAdams and Horwitz to avoid possible attempts to overturn these decisions through review by SCOTUS.28 Thus, the Florida Supreme Court, in the opinions of Justices Lewis (in McAdams) and Pariente (in Horwitz), utilized Article I, Section 9 (the Due Process Clause) of the Florida Constitution, 29 which enumerates the right against selfincrimination, to reach the expansions of those defendants’ rights. II. STATE OF FLORIDA V. MCADAMS A. Facts and Procedure In McAdams, the defendant, Michael McAdams, was a suspect in the killing of his estranged wife and her boyfriend, who was reported missing on October 21, 2009. 30 On October 23, 2009, McAdams voluntarily arrived at the Hernando County Sherriff’s Office and was interviewed. 31 During the interrogation, an attorney retained by McAdam’s family arrived. 32 The attorney was denied access to 25. Moore v. Commonwealth, 636 S.E.2d 395, 398 (Va. 2007). 26. Moore, 553 U.S. at 174–75. 27. Id.; see also Atwater v. Lago Vista, 532 U.S. 318 (2001). 28. Compare FLA. CONST. art. I, § 9 (amended 1968) (illustrating that Florida specifically does not refer to the United States Constitution), with FLA. CONST. art. I, §§ 12, 17 (referencing the United States Constitution). 29. Id. art. I, § 9 (“No person shall be deprived of life, liberty or property without due process of law, or be twice put in jeopardy for the same offense, or be compelled in any criminal matter to be a witness against oneself.”). 30. State v. McAdams, 193 So. 3d 824, 826 (Fla. 2016). 31. Id. 32. Id. at 827.

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McAdams, and the officers refused to convey a message to him.33 When questioned at the hearing for a motion to suppress before trial, the lead officer stated he did not allow the attorney to see McAdams, or convey the message from the attorney, because he “did not have to . . . .”34 McAdams later confessed and led officers to where he hid the victims’ bodies. It was only then that McAdams was informed of the attorney retained for him by his family.35 In denying the motion to suppress, the trial court determined that under the factors enumerated in Ramirez v. State36 McAdams was not in custody or under arrest until after he confessed and disclosed the burial site. Therefore, he was not entitled to be given Miranda warnings or be told of the attorney’s existence under Haliburton II (discussed below.)37 McAdams was convicted and sentenced to life in prison, which he appealed to the Second District Court of Appeals (DCA).38 B. Analysis 39

In Haliburton I, the State did not dispute that the defendant was “in custody,” when the defendant submitted to a polygraph examination and his sister had retained an attorney to represent him.40 Before the defendant eventually gave a recorded statement, the attorney arrived at the police station and attempted to see Haliburton.41 It took multiple calls to and from a judge to make the officers cease their interrogation, but by then, Haliburton had 33. Id. 34. Id. at 827–28. 35. Id. at 826. 36. 739 So. 2d 568, 574 (Fla. 1999) (explaining that the court delineates the following four-factor test whether a reasonable person in the suspect’s position would consider himself in custody: (1) the manner in which police summon the suspect for questioning; (2) the purpose, place, and manner of the interrogation; (3) the extent to which the suspect is confronted with evidence of his or her guilt; (4) whether the suspect is informed that he or she is free to leave the place of questioning). 37. Haliburton v. State, 514 So. 2d 1088 (Fla. 1987) (Haliburton II). 38. McAdams, 193 So. 3d at 828. 39. Haliburton v. State, 476 So. 2d 192 (Fla. 1985), vacated, 475 U.S. 1078 (1986) (Haliburton I). 40. Id. at 193. 41. Id.

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confessed. 42 The Florida Supreme Court initially reversed the conviction; however, SCOTUS, relying on its ruling in Moran v. Burbine, reversed on Fifth Amendment grounds and remanded.43 The Florida Supreme Court, using Article I, Section 9’s right against selfincrimination, reconsidered the case and reversed the conviction again in Haliburton II.44 In reaching its decision in Haliburton II, the Florida Supreme Court quoted Justice John Paul Stevens’s dissent in Burbine: [D]ue process requires fairness, integrity, and honor in the operation of the criminal justice system, and in its treatment of the citizen’s cardinal constitutional protections . . . . [P]olice interference in the attorneyclient relationship is the type of governmental misconduct on a matter of central importance to the administration of justice that the Due Process Clause prohibits . . . . Just as the government cannot conceal from a suspect material and exculpatory evidence, so too, the government cannot conceal from a suspect the material fact of his attorney’s communication.45 In McAdams, the Second DCA agreed with the trial court’s interpretation of Ramirez and the determination that McAdams was not in custody before his statement and disclosures.46 The court also distinguished McAdams’s situation from Haliburton II because McAdams was not in custody at the time of his interrogation, whereas the defendant in Haliburton II was found to be “in custody.”47 However, in recognition of the issues, both sides sought review. 48 The Second DCA restated, condensed, and certified the following question to the Florida Supreme Court: UNDER THE DUE PROCESS CLAUSE OF THE FLORIDA CONSTITUTION, WHEN MUST A PERSON WHO IS BEING QUESTIONED BY LAW ENFORCEMENT IN A NON-PUBLIC LOCATION 42. 43. 44. 45. 46. 47. 48.

Id. Florida v. Haliburton, 475 U.S. 1078 (1986). Haliburton v. State, 514 So. 2d 1088, 1090 (Fla. 1987) (Haliburton II). Moran v. Burbine, 475 U.S. 412, 467 (1986) (Stevens, J., dissenting). State v. McAdams, 193 So. 3d 824, 828 (Fla. 2016). Id. at 829. Id.

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BE NOTIFIED THAT AN ATTORNEY RETAINED ON HIS OR HER BEHALF IS AT THE LOCATION AND AVAILABLE TO SPEAK WITH HIM OR HER?49 The State’s position before both the Second DCA and the Florida Supreme Court was that absent some other outrageous conduct, no due-process violation occurs under the Florida Constitution where the police fail to inform a person about the appearance of an attorney who has been retained on his or her behalf, even if he or she is in custody. 50 The court dismissed this approach as impractical. 51 The court believed that this was not a clarification but a complete departure from Haliburton II.52 The Second DCA held that the Due Process Clause of the Florida Constitution requires a person to be informed about the appearance of an attorney who has been retained on his or her behalf once he or she is in custody. 53 However, McAdams argued that the rule to be adopted should state that “[t]he Due Process Clause of the Florida Constitution requires a person to be informed about the appearance of an attorney who has been retained on his or her behalf regardless of whether he or she is in custody.”54 The Florida Supreme Court determined that a bright-line rule under the Florida Constitution was required in order to not “muddy”55 the waters and to avoid a case-by-case analysis. That rule was stated as follows: [W]hen an individual is being questioned in a nonpublic area, and an attorney retained on his or her behalf arrives at the location, the Due Process Clause of the Florida Constitution requires that the police notify the individual of the attorney’s presence and purpose. Pursuant to this holding, a person can no longer be deprived of the critical information that an attorney is present and available to provide legal 49. 50. 51. 52. 53. 54. 55.

Id. Id. at 831. Id. at 832. Id. at 831. Id. at 828–29. Id. at 831 (emphasis added). Id.

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advice based on pure police conjecture that the individual is not in custody. We also cannot allow law enforcement to refuse to interrupt an interview, as occurred here. Under the interpretation of the Due Process Clause of the Florida Constitution that we adopt today, it is the individual, rather than law enforcement, who is given the knowledge and power to decide whether to take advantage of the attorney’s services.56 Although relatively indeterminate of the outcome in McAdams, the court also included an analysis that McAdams was “in custody” for Miranda purposes under Ramirez and reversed the findings of both the trial court and the Second DCA.57 The court reinforced the Ramirez factors that would lead “a reasonable person to conclude that he or she was not at liberty to terminate the encounter and depart from the Sheriff’s office.” 58 Therefore, like in Horwitz (discussed below), McAdams’s statements must be looked at as a result of prearrest, although custodial, and pre-Miranda interrogation. McAdams was entitled to be advised of his rights per Miranda in order to comprehend his circumstances and invoke those rights which could have concluded with the officers allowing McAdams access to his counsel. III. STATE V. HORWITZ A. Facts and Procedure Horwitz deals with the Florida Due Process Clause on a different level. Here, Donna Horwitz was accused of shooting and killing her husband, although the initial appearance was suicide. 59 From the outset of the investigation, Horwitz refused to answer any questions, not by asserting her right to remain silent but by not answering any questions and thus, remaining silent.60

56. 57. 58. 59. 60.

Id. at 832. Id. at 833. Id. at 839. State v. Horwitz, 191 So. 3d 429 (Fla. 2016). Id. at 432–33.

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The ensuing investigation resulted in her being charged with her husband’s death.61 At that time, she “filed a notice of invoking her right to remain silent under the Fifth Amendment to the United States Constitution and Article I, Section 9 of the Florida Constitution.”62 Before trial, her counsel moved to suppress the use of her “pre-arrest, pre-Miranda silence” as substantive evidence of her guilt, which was denied.63 With the court’s permission, the State made Horwitz’s pre-arrest, pre-Miranda silence a centerpiece of their opening statement, witness examinations, and both closing arguments. 64 In essence, the State argued that if she were innocent, she would have cooperated with the police investigation. 65 Horwitz’s counsel moved for a mistrial asserting the same grounds presented in the motion to suppress.66 Horwitz was convicted and sentenced to life in prison and appealed to the Fourth DCA. 67 The Fourth DCA reversed the conviction, ostensibly agreeing with Horwitz’s claims in the motion to suppress.68 The Fourth DCA then certified the following question to the Florida Supreme Court: WHETHER, UNDER FLORIDA LAW, THE STATE IS PRECLUDED FROM INTRODUCING EVIDENCE OF A DEFENDANT’S PRE-ARREST, PRE-MIRANDA SILENCE WHERE THE DEFENDANT DOES NOT TESTIFY AT TRIAL?69 B. Analysis The State argued before the Fourth DCA that the SCOTUS decision in Salinas controlled because it allowed the comment made by the prosecution, on pre-Miranda silence, as being constitutional.70 The Fourth DCA recognized that Salinas had determined that 61. Id. at 433. 62. Id. (emphasis added). 63. Id. 64. Id. at 435. It should be noted that, just as in McAdams, Horwitz did not testify or put any evidence before the jury. 65. Id. at 431. 66. Id. at 435. 67. Id. at 436–37. 68. Id. at 431. 69. Id. at 431. 70. Id. at 440.

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prosecutorial comments on pre-arrest, pre-Miranda silence are constitutionally permissible under the United States Constitution. 71 However, the Florida Supreme Court, citing State v. Hoggins,72 said that the provisions of the Florida Constitution are subject to separate interpretation and “afford greater protection than its federal counterpart,”73 and determined that Horwitz’s rights under Article I, Section 9 of the Florida Constitution were violated.74 Before the decision in Salinas, SCOTUS had ruled in Griffin v. California that in its literal sense . . . [,] the Fifth Amendment, in its direct application to the Federal Government and in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.75 However, in Salinas, SCOTUS receded from that absolute rule based upon a notice theory.76 In Salinas, SCOTUS stated that without the defendant unequivocally invoking his or her Fifth Amendment right, the government is not put on notice of the defendant’s invocation of this right; therefore, the government has the liberty of commenting on unadvised or advised silence.77 The defendant in Salinas answered questions until he was asked whether his shotgun would match the shotgun shells recovered at the scene of the murder.78 Salinas did not assert his right to remain silent; he just did not answer.79 The prosecution highlighted this silence in its closing argument stating that “an innocent person” would have said, “What are you talking about? I didn’t do that. I wasn’t there.”80 71. Salinas v. Texas, 133 S. Ct. 2174, 2184 (2013) (Thomas, J., concurring). 72. State v. Hoggins, 718 So. 2d 761 (Fla. 1998) (finding that prosecutor’s use of defendant’s silence at the time of arrest, prior to Miranda warnings, to impeach defendant violated a defendant’s right to remain silent under the Florida Constitution). 73. Horwitz, 191 So. 3d at 437. 74. Id. at 444. 75. Griffin v. California, 380 U.S. 609, 615 (1965). 76. Salinas, 133 S. Ct. at 2179. 77. Id. 78. Id. at 2177. 79. Id. at 2178. 80. Id. at 2185 (Breyer, J., dissenting).

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SCOTUS found the State’s comment, and others like it, acceptable under this notice theory. 81 However, the plurality decision did not create a new exception to invocation for instances such as those in Horwitz. The Florida Supreme Court declined to use the reasoning of the plurality in Salinas as it relates to a non-testifying defendant’s privilege against self-incrimination under the Florida Constitution relating to pre-arrest, pre-Miranda silence.82 Instead, it reiterated its conclusion in State v. Hoggins, 83 which found that such silence is admissible only to impeach the defendant’s inconsistent trial testimony and not as substantive evidence.84 It described the use of such silence as being a “burden” on the right against self-incrimination.85 The court found that the burden is a Hobson’s choice: the burden on the right against self-incrimination is exacerbated when the defendant does not wish to testify.86 The court stated: The defendant should not be compelled to make the choice between testifying—with the possibility that his or her earlier silence might be used to impeach him or her—and not testifying—thereby, under the State’s view, allowing the State to use the defendant’s earlier silence as substantive evidence of the defendant’s guilt.87 The Florida Supreme Court stated that the defendant should not have to make such a choice.88 It believed its analysis was in line with Hoggins and its “consistent commitment to providing greater protection to a defendant’s right against self-incrimination” under the Florida Constitution.89 Although the issue was not preserved at trial, the court also found that admission of such silence as substantive evidence violated 81. 82. 83. 84. 85. 86. 87. 88. 89.

Id. at 2179. State v. Horwitz, 191 So. 3d 429, 437 (Fla. 2016). State v. Hoggins, 718 So. 2d 761, 770–71 (Fla. 1998). Horwitz, 191 So. 3d at 440–41. Id. Id. Id. at 441. Id. Id.

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Florida Rule of Evidence 403.90 In short, the court determined that the probative value of such evidence was outweighed by the unfair prejudicial effect. 91 Specifically, a defendant’s silence, although relevant, is ambiguous at best, making it “especially prejudicial.”92 In essence, using that silence allows the jury to reach a conclusion on what a defendant may have said, as opposed to centering its deliberations on the testimony of the witnesses.93 CONCLUSION The McAdams and Horwitz decisions are quite consistent with each other. Horwitz did not testify at trial,94 and there is nothing to suggest that McAdams did either.95 In light of the court’s findings that McAdams was “in custody” at the time of his interrogation, he was entitled to his Miranda warnings.96 Therefore, his statement, like that of Horwitz, was pre-arrest and pre-Miranda.97 In McAdams and Horwitz, Justices Pariente and Lewis were verbose in their continued reference to the Florida Constitution. Clearly, this was directed at the verbiage in Long, where Justice O’Connor made continued reference to the requirement of “a clear and express” reliance on state law for a state court’s ruling, even in the face of citation of federal precedent.98 It is also interesting that the Florida Supreme Court chose to avoid the language of Article I, Section 9 of the Florida Constitution, which refers to “criminal matter,” 99 as opposed to the Fifth Amendment to the United States Constitution, which refers to “criminal case.”100 Is a criminal matter the same thing as a criminal “case”? Does the right to remain silent under the Florida Constitution

90. Id. at 431. 91. Id. 92. Id. at 443. 93. Id. 94. Id. at 431. 95. See State v. McAdams, 193 So. 3d 824, 828 (Fla. 2016) (merely indicating that the defendant’s taped confession was played during trial). 96. Id. at 839. 97. Id. 98. See Michigan v. Long, 463 U.S. 1032, 1042 n.7 (1983). 99. FLA. CONST. art. I, § 9. 100. U.S. CONST. amend. V.

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truly depend on custody, or does it apply to the “target” of an investigation? The question remains as to whether these decisions portend future rulings under Article I, Section 9 of the Florida Constitution. The fact that each of these decisions are without vehement dissent is significant. In McAdams, Justices Polston and Canaday dissented in part, but concurred in the result. 101 In Horwitz, the same justices concurred in the result, but without opinion.102 With four of the justices retiring at the end of their current terms in January, one has to wonder whether it is their time to take what action they can with regards to the application of the death penalty. Particularly, the justices could address the constitutionality of the new death-penalty statute. Likewise, they could analyze whether Hurst v. Florida, 103 finding Florida’s then-existing death penalty scheme unconstitutional, is retroactive under the Florida Constitution, thus placing state attorneys in the position of essentially having to retry over 400 death sentences. They could also do both. To avoid the dictates of Article I, Section 17 of the Florida Constitution and the Eighth Amendment to the United States Constitution, the court could rely upon Article I, Section 9 of the Florida Constitution, stating that due process requires a unanimous verdict instead of only ten out of twelve juror votes on the sentence, as the new statute requires. 104 This would seem logical, despite numerous SCOTUS decisions permitting less than unanimous verdicts 105 because every other verdict in Florida requires unanimity.106 Thus, requiring anything less than a unanimous verdict for a death sentence would violate the Due Process Clause of the Florida Constitution. There is a clear five-justice majority. The next six months might find them voicing themselves in a very loud and lasting way.

101. McAdams, 193 So. 3d at 844. 102. State v. Horwitz, 191 So. 3d 429, 445 (Fla. 2016). 103. 136 S. Ct. 616 (2016). 104. FLA. STAT. ANN. § 921.141 (Westlaw 2016). 105. See, e.g., Johnson v. Louisiana, 406 U.S. 356 (1972); Apodaca v. Oregon, 406 U.S. 404 (1972); Schad v. Arizona, 501 U.S. 624 (1991). 106. FLA. R. CRIM. P. 3.440.

FAMILY FARMS VERSUS FACTORY FARMS: PREEMPTION OF LOCAL ORDINANCES UNDER MICHIGAN’S RIGHT TO FARM ACT, WHY THE CURRENT PREEMPTION STANDARD DOESN’T WORK, AND WHAT NEEDS TO CHANGE. JOSHUA S. ELDENBRADY* ABSTRACT This article examines the history and current legal framework of the Michigan Right to Farm Act, the inconsistencies and uncertainties in its application, and the policy implications of the current applied case law, including the implications of applying a single set of policies to all types of agricultural operations. Then, after examining possible clarifications that could be made by the courts based on current rulings, it concludes that further clarification by the courts to make a more workable legal standard is likely to be counter to the policy goals of the act. Finally, it suggests a starting point for a revision of the act that separates high-density livestock operations from other farming types in order to better balance the policy goals of the original act with other local government and community concerns.

* Associate Attorney, Vincent E. Carlson & Associates, PLC, North Muskegon, MI. L.L.M. Candidate, expected 2017 (Michigan Municipal Law), Western Michigan University – Cooley Law School; J.D. 2009, Thomas M. Cooley Law School; B.A. 2005 (Theatre, English, & Telecommunication), Michigan State University.

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TABLE OF CONTENTS

I. INTRODUCTION ........................................................................ 335 II. BACKGROUND ......................................................................... 338 A. The Decline of Farming. .................................................. 338 B. The Response: The Michigan Right to Farm Act and Amendments. ........................................................... 338 C. The Perception of the Michigan Right to Farm Act and the 1999 Amendment. .................................................... 341 D. What the Courts Have Said About Right to Farm Preemption. .............................................................. 344 1. The Published Cases.................................................... 344 a. Shelby Township v. Papesh (2005) ........................ 344 b. Papadelis v. Troy (2007) ....................................... 346 c. Lima Township. v. Bateson (2013) ........................ 347 d. Sena Scholma Trust v. Ottawa County Road Commission (2013) .............................. 348 2. Going Farther: Unpublished Cases Stating What Was Only Implied in Published Caselaw .............. 349 a. Village of Rothbury v. Double JJ Resort Ranch (2004) ............................................................. 349 b. Township of Webber v. Austin (2014).................... 350 III. ANALYSIS ................................................................................ 351 A. The Need for a Simple Test for Preemption..................... 351 B. Helping Farmers I: A Libertarian Proposal That Conforms with Current Caselaw. .......................................... 354 C. Helping Local Governments I: A Regulation Enabling Proposal That Conforms with Current Case Law. . 356 D. Can the Courts Solve This Issue? ..................................... 359 E. A Middle of the Road Proposal for Changing the Law. ... 360 F. Where Do We Go from Here? .......................................... 364 IV. CONCLUSION .......................................................................... 365

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I. INTRODUCTION The delegation of power from state to local government is a constantly evolving area that involves a multitude of policy concerns.1 This is as true in agriculture as it is in any area, and with the recent emergence of urban farming as an urban rejuvenation movement, it will continue to be an area of public concern and discussion. The Michigan Right to Farm Act (RTFA) changed the balance of state and local power but has also left many questions unanswered.2 Consider the following five hypotheticals, which we will discuss throughout this note as illustrations of the practical and policy-based problems with the Michigan RTFA as it stands. William Lane owns twenty-five acres of property just inside the city limits of Utopia, Michigan.3 Lane inherited the property from his father who purchased it in 1963. Since that time, the family has grown corn on the property. At first, the purpose was to feed their dairy cattle. Then, after selling their animals, the purpose was for sale. Last year, Mr. Lane switched to planting sweet corn in order to be able to sell a higher value product at the Utopia Farmer’s Market. For the last decade, the deer population of Utopia and the surrounding area has been increasing. Mr. Lane lost almost half of his crop to deer last year, and he expects to lose more due to the annual increase in deer population. Since he is in the city limits and the city prohibits discharging weapons, he cannot hunt to control the population, so the only viable option he sees is fencing. Utopia has an ordinance prohibiting all fencing over four feet in height except in residential backyards and developed industrial sites. Having no building on-site, Mr. Lane’s property does not qualify for either 1. See generally, e.g., Patricia Norris et al., When Urban Agriculture Meets Michigan’s Right to Farm Act: The Pig’s in the Parlor, 2011 MICH. ST. L. REV. 365, 366–70 (2011) (discussing the history of the Michigan RTFA and the reasons behind its amendments); see also generally John E. Mogk et al., Promoting Urban Agriculture as an Alternative Land Use for Vacant Properties in the City of Detroit: Benefits, Problems and Proposals for a Regulatory Framework for Successful Land Use Integration, 56 WAYNE L. REV. 1521 (2010) (outlining policy reasons surrounding urban agriculture, both for and against). 2. MICH. COMP. LAWS ANN. § 286.471 (Westlaw 2016) (stating it “shall be known and may be cited as the ‘Michigan right to farm act’” in contravention of capitalization norms); see also Norris, supra note 1 (discussing the history of the act and policy reasons for and against changes). 3. All names in hypotheticals are fictional, although many of the situations and local ordinances are based on real situations the author has encountered.

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exception. Assuming effective deer control requires eight, ten, or even twelve-foot-tall fences, what realistic options does Mr. Lane have? Susan Dawson lives on eighty acres in Smuckers Charter Township. Ms. Dawson has sixty acres of managed forest and grows produce for sale at the farmers market in nearby Greenville on the remaining twenty acres. Five years ago she adopted Daisy from a local animal shelter. Daisy is a seven-year-old male American Staffordshire terrier (commonly known as a pit bull). Ms. Dawson trained Daisy as a guard dog for the family produce farm and his service as a guard dog has decreased the amount of produce lost to wild animals by over ninety percent. Smuckers Charter Township just passed an ordinance making the keeping of dangerous dogs (a definition that includes Staffordshire terrier) a misdemeanor. The ordinance provides no exception for animals kept at the time the ordinance was passed. Ms. Dawson spent significant time, effort, and money training Daisy. Additionally, she cannot find and train a new guard dog before planting season and would have a significant increase in lost production for a year or two while training a new dog. Does she, or should she, have a right to keep her dog? Meredith Johnson is the executive director of GreenCare, a local non-profit, running a discount green grocery with over ninety percent Supplemental Nutrition Assistance Program (SNAP) sales, in a lowincome, urban neighborhood with limited food access. GreenCare wants to use five vacant lots it owns in the City of Northville to grow produce because it believes that doing so will help it provide produce at lower costs to local residences. One of those vacant lots is right next door to a successful community garden that is subsidized by the city, so Ms. Johnson knows that GreenCareâ&#x20AC;&#x2122;s plan is likely to be well received by local residents. Unfortunately for GreenCare, Northvilleâ&#x20AC;&#x2122;s zoning ordinance does not allow any person or group to grow produce anywhere in the city if they are going to sell that produce. Can, or should, the city be able to restrict this type of use? FoodCo Inc. owns and operates over twenty-five farms across the state. FoodCo recently purchased a three-hundred-acre parcel in Woodtopia Township. FoodCo plans to build a confined feeding operation with an average of thirty thousand pigs. The size of the parcel allows FoodCo to meet all of the setback requirements provided in the Michigan Site Selection Generally Accepted

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Agricultural Management Practices (GAAMPs),4 as well as providing ample space for manure lagoons and feed mixing operations. The property is zoned rural residential. The Woodtopia Township rural residential zoning district allows farming but restricts pigs to ten animals per acre. Additionally, several neighboring residents, including an organic farm next door, are concerned about the smell and groundwater pollution from such a concentrated operation. Can FoodCo build their farm? Donald Franklin IV just inherited the centennial family farm in Fruitwood Township from his father Donald Franklin III. The first Donald Franklin purchased the 100 acres in 1892 and built the farmhouse and barns that still stand. It was continuously farmed until 2005 when Donald III’s health made it impossible for him to continue. Donald IV wants to restart the family farming operation beginning with the fifty acres of apple orchards that still stand. Unfortunately for Donald, Fruitwood Township rezoned the property from rural residential in the agricultural overlay district to rural residential preservation district in 2008. This new zoning classification prohibits any type of commercial farming and allows farming only for “the exclusive use and personal enjoyment of the residents of the property.” Can Donald revive the family farm? The above are fictional scenarios, although many local governments have similar ordinances. Coming-to-the-nuisance doctrines, and their incorporation in state RTFAs, have protected many farmers from new neighbors who seek to use the court system to limit or shut down the farm. However, they provide little protection when those neighbors utilize the local democratic process, rather than the court system, to restrict farmers’ options. This paper will examine the extra step taken by Michigan RTFA, and its amendments,5 to limit that local democratic power as well as examine steps that could be taken to clarify the situation for farmers such as Mr. Lane, Ms. Dawson, GreenCare, FoodCo, and Mr. Franklin and their non-farming neighbors.

4. See MICH. COMP. LAWS ANN. §§ 286.471–.474 (Westlaw 2016) (outlining how GAAMPs are established by the Michigan Agricultural Commission under direction of the Michigan RTFA and lay out good practices for farmers to follow. The GAAMPs are normally updated annually and can be found online at michigan.gov/righttofarm). 5. 1999 Mich. Pub. Acts 261; see also 1995 Mich. Pub. Acts 94.

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II. BACKGROUND A. The Decline of Farming. In 1900, the state of Michigan had 203,261 farms; by 1997, that number had declined to 53,000.6 Far from being a short-term or sudden trend, this decline was gradual over the course of the century and is reflective of national trends during that time period.7 During the same time-period, land in use for farming in Michigan decreased from 17.6 million acres to only 10.4 million acres.8 B. The Response: The Michigan Right to Farm Act and Amendments. It was partially in response to concern over the loss of farms and farmland in the 1970s and 1980s that a number of states passed right to farm statutes.9 Michigan’s original RTFA was passed in 1981.10 Like most right to farm laws, Michigan’s act was codified as a coming-to-the-nuisance defense.11 Since the part of the farm operation that was claimed to be a nuisance had been clearly present when the house was built, the theory is that the neighbors had notice

6. SENATE AGRICULTURAL PRESERVATION TASK FORCE 6 (Sep. 1999), https://static1.squarespace.com/static/5095be0ce4b02d37bef47c58/t/50ac45fee4b0 b1fe7cceeb9c/1353467390959/1999_Senate_Agricultural_Presevation_Task_force. pdf. 7. See generally id. at 6–15 (providing a discussion of ongoing trends in the Michigan farming community, including statistics on the number, size, and profitability of farms). 8. Id. at 7. 9. See Susanne A. Heckler, A Right to Farm in the City: Providing a Legal Framework for Legitimizing Urban Farming in American Cities, 47 VAL. U. L. REV. 217, 230–32 (2012); Melanie J. Duda, Growing Up in the D: Revising Current Laws to Promote a Model of Sustainable City Agriculture, 89 U. DET. MERCY L. REV. 181, 186 (2012); Wendy K. Walker, Whole Hog: The Pre-emption of Local Control by the 1999 Amendment to the Michigan Right to Farm Act., 36 VAL. U. L. REV. 461, 462 (2002). 10. 1981 Mich. Pub. Acts 93 (codified as MICH. COMP. LAWS ANN. §§ 286.471–.474) (Westlaw 2016). 11. MICH. COMP. LAWS ANN.§ 286.473(2) (Westlaw 2016) (“A farm or farm operation shall not be found to be a public or private nuisance if the farm or farm operation existed before a change in the land use or occupancy of land within 1 mile of the boundaries of the farm land, and if before that change in land use or occupancy of land, the farm or farm operation would not have been a nuisance.”).

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of what was going on next door and it was unfair to let them complain about something they had chosen to move next to. The Michigan RTFA added a second component—one that is not usually paralleled in other state’s acts. This second part provided that a farm was not a nuisance, even if it did not precede the neighbor, so long as the farm followed GAAMPs.12 This was, and remains, one of the most unique aspects of Michigan’s RTFA; it protects new farms and changes to farms that happen after the neighbor was already there.13 However, in order to have this protection, farmers must follow certain standards of agricultural practices set out by the state.14 This is less about codifying the coming to the nuisance idea and more about outlining agricultural-operational standards and codifying the idea that operations that use those standards are not a nuisance as a matter of law. From the start, the act had two components: coming to the nuisance protection and voluntary rules to follow that would make a farm not a nuisance.15 While never examined by the courts, this second part may be what has saved Michigan’s RTFA from a constitutional taking challenge similar to the one that overturned Iowa’s RTFA.16 In 1987, the Michigan RTFA was amended to add definitions of farm and farm operation and to require that the GAAMPs be reviewed annually.17 This change happened largely in form and did not make a substantial change to the content.18 The first major amendment to the RTFA occurred in 1995.19 This amendment added roadside stands and a large number of farming procedures to the definition of farm operation; noted that a change in ownership, size, or type of farm did not remove the coming to the nuisance defense; provided a procedure for the Michigan Department of Agriculture to review complaints made against a farm to see if it 12. Id. at § 286.473(1). 13. Id. at § 286.473. 14. Id. at § 286.474 (laying out a procedure for complaints against, and state investigation of, farms that are alleged to not be following these practices). 15. MICH. COMP. LAWS ANN. § 286.471–.474 (Westlaw 2016). 16. See Bormann v. Bd. of Supervisors, 584 N.W.2d 309, 321 (Iowa 1998) (holding that an unlimited nuisance immunity created an easement on neighboring property as a matter of law for which the government would have to compensate the owners as a government taking). 17. See MICH. COMP. LAWS ANN. § 286.472–.473 (Westlaw 2016). 18. Id. 19. See MICH. COMP. LAWS ANN. § 286.473b (Westlaw 2016).

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was in compliance with the GAAMPs;20 and provided for the collection of attorney’s fees for farmers in successful defenses.21 The third and last amendment to the Michigan RTFA was passed in 1999 and took effect the following year.22 While the Michigan RTFA addressed the problem of new neighbors suing a farm as a nuisance, it did nothing when those same neighbors convinced local governments to change the zoning or other ordinances in the area to prevent farms from expanding or changing their operations.23 In response to a number of cases where the Michigan Court of Appeals ruled against the farmer because the Michigan RTFA only covered nuisance suits and did not preempt local zoning,24 the legislature amended the act to pre-empt local ordinances. The most important section added was section 4(6), which reads: Beginning June 1, 2000, except as otherwise provided in this section, it is the express legislative intent that this act preempt any local ordinance, regulation, or resolution that purports to extend or revise in any manner the provisions of this act or generally accepted agricultural and management practices developed under this act. Except as otherwise provided in this section, a local unit of government shall not enact, maintain, or enforce an ordinance, regulation, or resolution that conflicts in any manner with this act or generally accepted agricultural and management practices developed under this act.25

20. MICH. COMP. LAWS ANN. § 286.473(b) (Westlaw 2016) (This investigation mandate was, and remains, unfunded, and has been a reoccurring source of controversy under the Act as MDARD is required to investigate complaints but does not have the funding to do so, leaving (particularly small farms) with no way to demonstrate GAAMP compliance.). 21. MICH. COMP. LAWS ANN. § 286.473b (Westlaw 2016). 22. See MICH. COMP. LAWS ANN. § 286.474 (Westlaw 2016). 23. See City of Troy v. Papadelis, 572 N.W.2d 246, 249 (Mich. Ct. App. 1997); Twp. of Groveland v. Bowren, No. 175732, 1998 WL 1988929 (Mich. Ct. App. 1998); Twp. of Macomb v. Michaels, No. 206594, 1999 WL 33445031 (Mich. Ct. App. 1999). 24. See Papadelis, 572 N.W.2d at 250. 25. MICH. COMP. LAWS ANN. § 286.474(6) (Westlaw 2016).

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C. The Perception of the Michigan Right to Farm Act and the 1999 Amendment. One of the effects of the 1999 amendment to the Michigan RTFA was a realization that the act could affect suburban and urban areas as well as rural. In writing about the role of urban farms in helping alleviate food shortages and allowing for productive land use in cities with shrinking populations, Susanne A. Heckler discusses the limitation that RTFAs place on city governments and posits that they actually limit the expansion of urban agriculture.26 She also criticizes RTFAs in general for discouraging positive changes in agricultural practices by codifying old practices noting that “any city ordinance that attempts to legitimize urban farms or provide protections to urban farmers from nuisance violations will not be recognized at the state level, limiting the power of local communities to legitimize urban farming.”27 In discussing urban agriculture in Detroit, Melanie Duda notes that “[f]or Detroit to reconsider local ordinances that currently prohibit agricultural activity anywhere within the City, it will be necessary for the Michigan Legislature to exempt Detroit from the RTFA.”28 She notes that Michigan’s RTFA is “over inclusive” and that it eliminates all “ability to regulate agricultural activities that occur within city limits.”29 She goes on to discuss one of the primary criticisms of the Act: “under the RTFA, if Detroit were to open its doors to agriculture by amending local ordinances, it could lose the ability to regulate agriculture in the City.”30 This has been and remains one of the major obstacles for urban farmers seeking permission from local governments in Michigan. As part of a national overview of the urban agricultural movement, in Current and Emerging Issues in the New Urban Agriculture: A Case Study, Kathryn A. Peters makes a similar observation that while the RTFA protects rural farms, it “threatens to prevent cities within the state from promoting urban agriculture.”31 The GAAMPs “were intended to apply to farms in rural areas and are 26. See Heckler, supra note 9, at 217. 27. See Heckler, supra note 9, at 253, 259. 28. See Duda, supra note 9, at 193. 29. See Duda, supra note 9, 193. 30. See Duda, supra note 9, 195. 31. Kathryn A. Peters, Current and Emerging Issues in the New Urban Agriculture: A Case Study, 7 J. FOOD L. & POL’Y 297, 315 (2011).

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not necessarily stringent enough to protect urban residents from possible negative impacts of urban agriculture.”32 This supports the hypothesis that once a city opens its doors to agriculture it loses all regulatory control. Patricia Norris and her co-authors33 directly address the Michigan RTFA in When Urban Agriculture Meets Michigan’s Right to Farm Act: The Pig’s in the Parlor.34 Interestingly, Norris does not mention the legal theory that cities can avoid the right to farm by outlawing farming altogether; rather, she discusses the problems created by the “one size fits all” approach of the RTFA and notes that the GAAMPs are written for a rural community and “do not address problems that are likely to arise in urban neighborhoods where space may be limited and neighbors are nearby.”35 Norris goes on to suggest two possible legislative solutions: amend the act to exclude new farms in areas over a certain density, or amend the zoning enabling acts to require planning for agriculture and exempt new farm in communities that have implemented agricultural planning from RTFA protection.36 Interestingly, Norris points out the expansive interpretations of the court but does not comment on how the court might extend the law to new cases; rather she focuses on policy reasons for a legislative solution. John E. Mogk, Professor of Law at Wayne State University, discussed the role that urban agriculture could play in Detroit in Promoting Urban Agriculture as an Alternative Land Use for Vacant Properties in the City of Detroit: Benefits, Problems, and Proposals for a Regulatory Framework for Successful Land Use Integration.37 Mogk recognized the same issue that Norris did: “[T]he city must be very careful permitting the commercial production of farm products in order to avoid its zoning authority being preempted by the Act.”38

32. Id. 33. Patricia Norris is an Agriculture Studies Professor at Michigan State University, Gary Taylor is an Associate Professor and Extension Specialist at Iowa State University, and Mark Wyckoff is a Professor and the Director of the Planning and Zoning Center at Michigan State University. See Norris, supra note 1, at a1– aaa1. 34. See Norris, supra note 1. 35. See Norris, supra note 1, at 396. 36. See Norris, supra note 1, at 399–403. 37. See Mogk, supra note 1. 38. See Mogk, supra note 1, at 1563.

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Mogk’s proposed solution was that the Michigan RTFA be amended to exclude Detroit.39 Wendy K. Walker in Whole Hog: The Pre-emption of Local Control By the 1999 Amendment to the Michigan RTFA came to a very different conclusion.40 Walker discussed the change as preempting all zoning and argued for it to be repealed as bad policy since evolving farm operations—particularly confined animal feeding operations—resemble factories more than family farms and should be regulated as such.41 Public awareness of the Michigan RTFA has increased drastically with the 2014 Site Selection GAAMP amendments.42 In the 2014 GAAMP, the Site Selection rules had only affected “livestock production facilities” defined as having fifty or more animal units.43 These changes included a reduction to make the GAAMP apply to any operation with animals and to make any operation “with more than 13 non-farm residences within 1/8 mile of the site or any nonfarm residence within 250 feet of the livestock facility” noncompliant with the GAAMPs.44 Because of the effect on urban 39. See Mogk, supra note 1. 40. See generally Walker, supra note 9. 41. See generally Walker, supra note 9, at 494–95. 42. See, e.g., Rosemary Parker, Michigan Agriculture Official Clarifies New Right to Farm Requirements, MLIVE (May 6, 2014, 11:50 AM), http://www.mlive.com/news/kalamazoo/index.ssf/2014/05/michigan_agriculture_o fficial.html; Michigan residents lose ‘right to farm’ in backyards, smaller properties, Police State USA (May 5, 2014), http://www.policestateusa.com/2014/ michigan-right-to-farm/; Daniel Jennings, Michigan Bans Animals On Small Farms?, OFF THE GRID NEWS (May 2, 2014), http://www.offthegridnews.com/ 2014/05/02/ michigan-bans-animals-on-small-farms/; Liz Klimas, State Rule Change Challenges Protection of Some Residential Farmers, THE BLAZE (Apr. 30, 2014 10:30 PM), http://www.theblaze.com/stories/2014/04/30/state-rulechange-challenges-protection-of-some-residential-farmers. 43. MICH. DEP’T OF AGRIC. & RURAL DEV., GENERALLY ACCEPTED AGRICULTURAL AND MANAGEMENT PRACTICES FOR SITE SELECTION AND ODOR CONTROL FOR NEW AND EXPANDING LIVESTOCK FACILITIES 3 (2014), http://legislature.mi.gov/documents/2013-2014/CommitteeDocuments/Senate/ Agriculture/Testimony/2014-SCT-AG__-05-15-1-08-Michigan%20Department %20of%20Agriculture%20and%20Rural%20%20%20(No%20Position).PDF [hereinafter GAAMPS SITE SELECTION (2014)] (stating that fifty animal units is equal to fifty feeder cattle, thirty-five dairy cattle, five hundred sheep, etc.). 44. Kurt H. Schindler, New Right to Farm Act Siting GAAMP Now in Effect, MICH. ST. U. EXTENSION (May 16, 2014) http://msue.anr.msu.edu/news/ new_right_to_ farm_act_siting_gaamp_now_in_effect.

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agriculture, the change garnered substantial media attention. Much of the attention came from sources that did not understand or did not clearly explain the function of the RTFA or the GAAMPs.45 D. What the Courts Have Said About Right to Farm Preemption. The published case law is not entirely clear on the meaning of the preemption language—in particular this language “conflicts in any manner with this act or generally accepted agricultural and management practices developed under this act.”46 However, the cases do give some guidance as to the interpretation of the courts. 1. The Published Cases a. Shelby Township v. Papesh (2005)47 Shelby Township v. Papesh was the first case interpreting the new preemption language of the 1999 amendment. Vikki Papesh and Martin Papesh, Jr. brought an appeal from the trial court’s ruling that their chicken coop was a nuisance per se in violation of the local zoning ordinance.48 The Papesh family owned 1.074 acres of property in Shelby Township on which they had their home and two chicken coops.49 The family purchased the property in 1995, and the court of appeals noted that: [F]arming was a permitted land use, but Shelby Township Ordinance § 9.10 restricted the size of farms as follows: For the purpose of this section, the term “farm” shall mean the raising of vegetables or the keeping of small farm animals, including poultry, for any purpose, and shall have a minimum lot size of three acres.50

45. See Parker, supra note 41. 46. MICH. COMP. LAWS ANN. § 286.474(6) (Westlaw 2016); see e.g., Lima Twp. v. Bateson, 838 N.W.2d 898, 905 (Mich. Ct. App. 2013). 47. Charter Twp. of Shelby v. Papesh, 704 N.W.2d 92 (Mich. Ct. App. 2005). 48. Id. at 95. 49. Id. at 95–96. 50. Id. at 96.

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The Papesh family bought chickens in 1996.51 In 2002, after six years of increasing local development, neighbors complained about the presence of chickens to the township and in 2004 the township brought the lawsuit asking for, among other things, an injunction forcing the Papesh family to get rid of their chickens.52 The court of appeals discussed a number of different factors including what the differences were between a farm operation and a commercial operation,53 but ultimately returned the case to the trial court because several factual questions remained for trial.54 The court addressed the question of preemption with this statement: The language of the statute is unambiguous. It clearly states that a local ordinance is preempted when it purports to extend or revise the RTFA or GAAMPs. It further plainly states that a local unit of government shall not enforce an ordinance that conflicts in any manner with the RTFA or GAAMPs. It is undisputed that plaintiff’s Ordinance § 9.10(A), which was in force when defendants bought the property in 1995, prohibited raising poultry on a parcel smaller than three acres. It is also undisputed that the property did not exceed 1.074 acres. The relevant GAAMPs provide for the proper management practices for poultry farming, including, but not limited, to facilities, manure management and care of chickens and turkeys. Plaintiff has not produced, and we are unable to find, any GAAMP that limits poultry farming to property consisting of more than three acres. As we concluded above, if defendants’ farm is commercial in nature and in compliance with the GAAMPs, it is a farm operation protected by the RTFA. The ordinance conflicts with the RTFA to the

51. Id. 52. Id. at 96–97. 53. Id. at 99. The no-minimum sales level stated in Papesh is a critical part of Michigan RTFA case law, but it was not directly relevant to the issue discussed here. 54. Id. at 96.

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extent that it allows plaintiff to preclude a protected farm operation by limiting the size of a farm.55 The last sentence is perhaps the most important. It essentially states that a local ordinance cannot limit farms to a certain amount of acreage (that does not exist in the GAAMPs) in order to prohibit farming on a particular parcel. b. Papadelis v. Troy (2007)56 In Papadelis v. City of Troy, the Michigan Supreme Court, ruling for the only time to date on a Michigan RTFA case, issued a onepage decision. The Michigan RTFA claim in the case was related to a greenhouse built by the Papadelis family that did not meet local zoning requirements.57 As to the right to farm defense the court held that: [N]o provisions of the RTFA or any published generally accepted agricultural and management practice address the permitting, size, height, bulk, floor area, construction, and location of buildings used for greenhouse or related agricultural purposes, no conflict exists between the RTFA and the defendant cityâ&#x20AC;&#x2122;s ordinances regulating such matters that would preclude their enforcement under the facts of this case. We REMAND this case to the Oakland Circuit Court for further proceedings not inconsistent with this order. In all other respects, the applications are DENIED, because we are not persuaded that the remaining questions presented should be reviewed by this Court.58 The long and complicated history of this case is perhaps the hardest part of interpreting it. Niki Papedelis and the family greenhouse business had a longstanding conflict with the City of Troy, and the relevant part of that conflict (the part overruled by the

55. 56. 57. 58.

Id. at 102. Papadelis v. City of Troy (Papadelis II), 733 N.W.2d 397 (Mich. 2007). Id. Id. at 398.

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Michigan Supreme Court) appears in an unpublished opinion of the Michigan Court of Appeals.59 The Papedelis family built their greenhouse without permission and in a location that the city of Troy refused to approve (citing its zoning requirements).60 The Michigan Supreme Court ruled that since the GAAMPs did not give any zoning requirements for greenhouses, a local ordinance that set them could not conflict with a number not provided.61 Ironically, the court of appeals later held that the greenhouse was a primary structure, not an accessory one, and that the greenhouse did not, therefore, violate the relevant zoning requirements; the legal principle, however, still stands.62 c. Lima Township. v. Bateson (2013) The Michigan Court of Appeals published two important Michigan RTFA cases in 2013. The first of those, Lima Township. v. Bateson, established the clearest test to date for the right to farm protection but left open the question of what laws were preempted.63Ernest Bateson and his wife Pamela Gough-Bahash purchased about 30 acres of agriculturally zoned property in Lima Township in 2009.64 Shortly thereafter, they started using the property to store commercial equipment, among other things.65 On December 23, 2009, Lima Township filed for an injunction against the vehicles; as a result, Bateson and Gough-Bahhash filed a declaratory suit on the same issue.66 After a hearing on a motion for summary disposition, the trial court ruled in favor of Lima Township.67 The court of appeals reversed saying that there was a factual issue and laid out the proper standard and burden of proof for use of the Michigan RTFA as a 59. See generally Papadelis v. City of Troy (Papadelis I), No. 268920, 2006 WL 2683385 (Mich. Ct. App. Sept. 19, 2006). 60. Id. at *7. 61. Papadelis II, 733 N.W.2d at 397–98. 62. See Papadelis v. City of Troy (Papadelis III), No. 286136, 2009 WL 5194532, at *7 (Mich. Ct. App. Dec. 15, 2009). 63. See Lima Twp. v. Bateson, 838 N.W.2d 898, 908–09 (Mich. Ct. App. 2013) (remanding the case back to the trial court for a determination). 64. Id. at 900–01. 65. See id. 66. Id. 67. Id. at 903.

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defense.68 The court of appeals noted, “the language [of the act] implies that the Michigan RTFA is an affirmative defense akin to immunity.”69 Therefore, the court held that the party raising the defense has the burden of proof by weight of evidence.70 “[I]n civil cases, the Legislature’s failure to spell out a standard of proof . . . usually require[s] application of the preponderance of the evidence standard.”71 The court of appeals further held that “in order for a party to successfully assert the Michigan RTFA as a defense, that party must prove the following two elements: (1) that the challenged condition or activity constitutes a ‘farm’ or ‘farm operation’ and (2) that the farm or farm operation conforms to the relevant GAAMPs.”72 Farm or farm operation means that a “farm product,” as defined by the act, is being produced for commercial sale.73 GAAMP compliance is a much simpler question from a legal standpoint, although it may be a far more difficult one to prove due to the factual complexity of the GAAMPs. Unfortunately, while Bateson lays out the burden of proof and factual standard to use the Michigan RTFA as a defense, it provides no direct guidance on how to determine if a local ordinance “conflicts in any manner with this [RTF] act or generally accepted agricultural and management practices developed under this act.”74 Instead, the court of appeals simply discusses that zoning violations are a nuisance per se, and since the right to farm is a defense to nuisance claims it can be used as a defense in this nuisance claim.75 d. Sena Scholma Trust v. Ottawa County Road Commission (2013) The ruling of the court of appeals in the Scholma case appears to be the strongest win for a government body in Michigan RTFA case law since the 1999 amendment.76 Lee Scholma brought suit on behalf 68. See id. at 904–05. 69. Id. at 906. 70. Id. 71. Id. (quoting In re Moss, 836 N.W.2d 182, 187 (Mich. Ct. App. 2013)). 72. Bateson, 838 N.W.2d at 906. 73. Id. at 906–07. 74. MICH. COMP. LAWS ANN. § 286.474(6) (Westlaw 2016). 75. See generally Bateson, 838 N.W.2d 898. 76. See Scholma v. Ottawa County Rd. Comm’n, 840 N.W.2d 186 (Mich. Ct. App. 2013).

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of the Sena Scholma Family Trust against a denial of a driveway permit for a thirty-acre parcel of farmland owned by the trust.77 There seemed to be no contention that the Scholma trust’s operation on the property was a farm operation or that the farm was compliant with the GAAMPs. Rather the question was whether a denial of a driveway permit amounted to an “ordinance, regulation, or resolution that conflicts in any manner with this act or generally accepted agricultural and management practices developed under this act[?]”78 The court of appeals concluded that pursuant to the plain language of the RTFA, only those ordinances, regulations, and resolutions by local units of government that either purport to extend or revise or that conflict with the RTFA or the GAAMPs are improper. An action by a local unit of government that impairs a farm or farm operation is not preempted by the RTFA if it is not an ordinance, regulation, or resolution that purports to extend or revise or that conflicts with the RTFA or the GAAMPs.79 The court went on to discuss that it was not the denial of the driveway permit that might keep Scholma from following the GAAMPs and accessing their fields at the right time, rather it was the rain and wet condition of the property that made it difficult to access from the existing driveway.80 The court went on to cite the Michigan Supreme Court’s ruling in Papadelis that since nothing in the GAAMPs dictated driveway location, a denial of a driveway permit could not conflict.81 2. Going Farther: Unpublished Cases Stating What Was Only Implied in Published Caselaw a. Village of Rothbury v. Double JJ Resort Ranch (2004) The Double JJ Resort Ranch operated several agricultural amusement activities that included horseback riding and a cornfield maze. The Village of Rothbury sued the Ranch to stop these activities 77. 78. 79. 80. 81.

Id. at 187. Id. at 191 (referring to § 286.474(6)). Scholma, 840 N.W.2d at 192. Id. at 193. Id.

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on residentially zoned property.82 The trial court ruled for the village stating that the corn maze and horseback riding rental were not protected under the Michigan RTFA, and the resort appealed.83 The court of appeals focused on the issue of whether a corn maze and horseback riding rentals were farm products and ultimately ruled that they were because they met the Michigan RTFA’s definition of “any plant or animal useful to human beings.”84 In doing so, the court may have missed the significance of one of the most important parts of the ruling. MICH. COMP. LAWS §§ 286.473(1)–.473(3) indicates that farming operations that conform to GAAMPs are not public nuisances, even when they change size, ownership, or the type of product produced.85 Hence, because an ordinance provision that only permits single-family dwellings, playgrounds, and parks would prohibit farming operations, the ordinance provision conflicts with the RTFA and is unenforceable. No published case from either the Michigan Court of Appeals or the Michigan Supreme Court has addressed this situation and identified that the local zoning prohibited farming entirely. While not directly addressed in any published appeals case, it is safe to assume that a local government can defeat Michigan RTFA preemption by simply outlawing farming altogether, which has been attempted by local governments. b. Township of Webber v. Austin (2014) The Michigan Court of Appeals considered a new farming operation in Township of Webber v. Austin.86 Bruce Austin acquired a piece of commercial property in Webber Township in 2011 to open a horse rescue farm, and the Township filed for an injunction to stop him.87 The trial court ruled that the horse rescue was a valid 82. Vill. of Rothbury v. Double JJ Resort Ranch, No. 246596, 2004 WL 1837835 (Mich. Ct. App. Aug. 17, 2004). 83. Id. at *1. 84. MICH. COMP. LAWS ANN. § 486.272 (Westlaw 2016) (defining “farm product” as “those plants and animals useful to human beings produced by agriculture and includes, but is not limited to, forages and sod crops, grains and feed crops . . . as determined by the Michigan commission of agriculture.”). 85. MICH. COMP. LAWS ANN §§ 286.473(1)–.473(3) (Westlaw 2016). 86. Twp. of Webber v. Austin, No. 315050, 2014 WL 1614613 (Mich. Ct. App. Apr. 22, 2014). 87. Id. at *2.

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preexisting, non-conforming use, but the court of appeals reversed saying that the use was too different from the previous owners use and was, in fact, a new use.88 The court of appeals remanded for a hearing based on the Bateson standard of Michigan RTFA as a defense.89 Nowhere in the opinion was it indicated that any agricultural use was allowed in the district, nor was there any discussion of what part of Austin’s operation was non-conforming. Like in Double JJ, it appears that the zoning ordinances completely prohibit farming.90 III. ANALYSIS A. The Need for a Simple Test for Preemption. With the publication of Bateson, the burden of proof for a nuisance defense under the Michigan RTFA has been clearly established thirty-two years after the passage of the act.91 For farmers defending against a private-party civil suit this case makes the law fairly straight forward. A farm must establish that it is producing a farm product for commercial sale and in compliance with the GAAMPs.92 The statements by the court of appeals in Bateson and Papedelis discussing zoning violations as a nuisance per se would indicate that the same absolute immunity extends to suits and enforcement actions by local governments. Unfortunately, this is indicated in dicta rather than stated directly as part of the holding. This would mean that farms are not only immune from nuisance suits, but from local rules that tell them what they can and cannot do on their farm. The Michigan Court of Appeals limited this in Scholma, discussing at length the idea of using the act as a sword versus a shield.93 Further, the court noted that since it was the fault of the weather (too much rain) that the farm could not follow the GAAMPs, rather than the location of the driveway, the local government could require the farm

88. Id. at *3–4. 89. Id. at *4‒5. 90. See id. 91. See Lima Twp. v. Bateson, 838 N.W.2d 898 (Mich. Ct. App. 2013). 92. Id. at 906. 93. See Scholma v. Ottawa County Rd. Comm’n, 840 N.W.2d 186 (Mich. Ct. App. 2013).

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to maintain use of their current driveway without that rule being preempted by the Michigan RTFA.94 This does not even begin to address the question of the use of the Michigan RTFA as a defense in a civil infraction or even a criminal case,95 as nearly all the published case law involves injunction suits. The court in Bateson applied the civil burden of proof of right to farm defenses,96 but it was considering a civil case, which begs the question—does the same apply in a criminal case? While the court in Scholma repeated the statute requirement that the regulation did not conflict with the GAAMPs, it provided no guidance on when a regulation would conflict.97 Remember William Lane and his deer-fencing problem? The GAAMPs talk about a deer control fence but never discusses a location.98 Does the local ordinance requirement that deer fencing be in a backyard conflict, or is it merely an inconvenience? In Mr. Lane’s case, he has no backyard, so his entire lot is affected. What if fifty percent of the lot is in the front yard, what if ninety percent is? At what point does inconvenience become too much? Ms. Dawson and her pit bull are similarly situated. The GAAMPs discuss the keeping and training of guard dogs, but nowhere does it say anything about breeds.99 Does the local rule against pit bulls conflict with the RTFA or the GAAMPs when it makes the farmer get rid of a trained work animal? Ms. Johnson and GreenCare are in a similarly vague situation. Is an ordinance that stops you from having a farm one that conflicts with the GAAMPs? How does the conflicting language affect

94. See Scholma, 840 N.W.2d at 193. 95. While uncommon, animal ordinance violations are sometimes misdemeanor offenses. MICH. COMP. LAWS ANN. § 750.50(4)(c), (d) (Westlaw 2016). 96. Bateson, 838 N.W.2d 898. 97. Scholma, 840 N.W.2d 186. 98. See generally MICH. COMP. LAWS ANN. § 286.473(1) (Westlaw 2016). 99. See generally MICH. DEP’T OF AGRIC. & RURAL DEV., GENERALLY ACCEPTED AGRICULTURAL AND MANAGEMENT PRACTICES FOR PESTICIDE UTILIZATION AND PEST CONTROL 90 (2017), https://www.michigan.gov/ documents/mdard/2017_Draft_CARE_OF_FARM_ANIMALS_GAAMPs_532660 _7.pdf; see also MICH. DEP’T OF AGRIC. & RURAL DEV., GENERALLY ACCEPTED AGRICULTURAL AND MANAGEMENT PRACTICES FOR THE CARE OF FARM ANIMALS (2014), http://www.michigan.gov/documents/mdard/2014_CARE_OF_FARM_ ANIMALS_GAAMPs_452762_7.pdf.

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regulation of a place for new farms, if regulation of the place does not affect operations of an existing farm? FoodCo has a relatively simple case. Since the local ordinance allows farming and the Site Selection, GAAMP has clear guidelines for the density of animals, and under the ruling of the court in Papesh, the local ordinance should be preempted.100 Mr. Franklin is in the same situation as GreenCare. The binding case law is unclear on whether the total prohibition of farming is preempted by the Michigan RTFA. The current case law does not provide any meaningful test to determine how these questions would be answered. In fact, it fosters a situation where we can easily create hypothetical situations that are so uncertain as to raise questions regarding unconstitutional vagueness. Whether legislative or judicial, a clear test needs to be established to provide guidance to both farmers and local governments. Bateson established what must be shown in order to use the Michigan RTFA as a defense in a nuisance case.101 A person must have a farm, as defined by the Michigan RTFA, and be in compliance with the GAAMPs. That person also has the burden of proof, by a preponderance of the evidence, on both issues.102 While policy reasons may exist to argue for a change in the burden of proof, the clear test established by Bateson satisfies the policy goal of having a simple and objectively applicable test. However, the Bateson test only covers the first part of the question, “are you covered by right to farm?”103 There is no simple test for the second part of the question “does the Michigan right to farm act preempt this local ordinance?”104 What is needed is a test for “conflicts with” that is as objective and as simple. Papadelis II and Scholma both present situations where the local ordinance did not conflict, but neither was clear on why.105 Because of this uncertainty, consider two hypothetical tests that fit within the current case law. The first test, at the libertarian end of 100. See GAAMPS SITE SELECTION (2014), supra note 42. 101. Bateson, 838 N.W.2d 898. 102. Id. 103. Id. 104. Id. 105. City of Troy v. Papadelis (Papadelis II), 733 N.W.2d 397 (Mich. 2007); Scholma v. Ottawa Cty. Rd. Comm’n, 840 N.W.2d 186 (Mich. Ct. App. 2013).

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the spectrum, gives as much freedom as allowed to the farmer under the current case law. The second test gives local governments as much control as possible. B. Helping Farmers I: A Libertarian Proposal That Conforms with Current Caselaw. It is helpful to analyze the test in a series of questions, starting with the simplest and working toward the more difficult, or less objective, ones. There are two binding cases in which a farmer lost, Papadelis II and Scholma. Therefore, any test that favors farmers must comply with these two decisions. Test I: 106

1. Does the local ordinance completely prohibit farming on the property at question? If yes, the ordinance is preempted and unenforceable against the farmer. If no, go on to step two. 2. Does the ordinance mainly apply to farming or is it a universal rule that applies to everybody? If only to farming, the ordinance is an extension or revision of the GAAMPs and therefore is preempted. If a universal rule, go to step three. 3. Does the ordinance substantially impair the ability of the farmer to continue farming in compliance with the GAAMPs? If yes, the ordinance is preempted. If no, the ordinance is not preempted in this situation. If we apply this test to Papadelis II, we find that the greenhouse setbacks did not completely prohibit farming; and the setback rule was universal, so we clearly get to step three.107 At step three, though, it appears from the information given in the court rulings that having the Papadelis family follow the setbacks 106. The Michigan RTFA mentions “ordinance, regulation, or resolution,” but for ease of discussion we will simply use the word ordinance here. See MICH. COMP. LAWS ANN. § 286.474(6) (Westlaw 2016). 107. See generally Papadelis II, 733 N.W.2d at 398.

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would not have substantially limited their ability to farm on the property.108 Yes, they would have lost a few feet, and that is a limit, but similar to religious-freedom tests, neutral laws cannot be thrown out every time they cause any difficulty.109 That difficulty has to be substantial, and losing a few feet to setbacks hardly qualifies.110 Scholma also clearly makes it to step three. The local ordinance111 that limited their driveway is not a total prohibition of farming, and it is not a rule that applies only to farms. This question lines up well with the statement made by the Michigan Court of Appeals that the denial of the driveway permit was merely an inconvenience.112 Yes, it is hard to farm the land without a driveway, but it is not a substantial interference; it is only an annoyance that can be worked around. This is particularly true if you consider that the Scholma Trust appears to have had the option of developing private roads on their property to accomplish the same goal as the new driveway.113 Where does this test leave Lane, Dawson, GreenCare, FoodCo, and Mr. Franklin? Mr. Lane is dealing with a fencing ordinance that does not prohibit farming and that applies to everyone. Therefore, he makes it to step three. The question then becomes how much loss becomes a substantial impairment? If he can demonstrate the loss of over half his crop, he should meet the standard for preemption. A farmer who lives on the property and has only five percent of his land in the front yard where tall fencing is not allowed, would have a much harder time making the same case because substantially less of the farm would be affected. Ms. Dawson has a similar fact-heavy case to lay out. She is dealing with an ordinance that applies to farmers and non-farmers alike and does not prohibit farming. They will need to show, as a factual matter, that the loss of a trained guard dog and loss of the crops to pests while training a new one is a substantial impairment. It

108. Id. 109. Id. 110. Id. 111. Scholma v. Ottawa Cty. Rd. Comm’n, 840 N.W.2d 186, 192 (Mich. Ct. App. 2013) (discussing that whether a permit denial constitutes an “ordinance, regulation, or resolution” in an open question). 112. Id. at 193. 113. Id.

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may be a lot of work for her to demonstrate that she is protected and that the local ordinance is preempted, but she should be able to win. GreenCare wins on step one, no complete prohibition of farming. Since the local ordinance bans farming completely, it is preempted and GreenCare can keep its farm. FoodCo makes it past step one since it is not a complete ban on farming. It then wins on step two because a rule that sets the density of farm animals is a farming specific rule, as explained in the Test I steps above. Mr. Franklin is in the same situation as GreenCare and wins at step one since the township is not allowed to completely prohibit farming. This test will almost always favor the farmer. From a policy standpoint, the question is whether we want farms almost completely exempted from local regulations. The State of Michigan decided to remove other areas from local regulations,114 so it certainly could do the same with farming. However, it is doubtful that the legislature intended to exempt farmers from farming neutral, local rules like the regulation on keeping dogs. Recognizing that this complete exemption probably oversteps in the direction of farmersâ&#x20AC;&#x2122; freedoms, what happens if we take the test in the other direction? C. Helping Local Governments I: A Regulation Enabling Proposal That Conforms with Current Case Law. Both Double JJ and Austin, based on the facts recited in the rulings, involved farms in areas where local zoning prohibited all farming.115 Because these cases were unpublished and none of the published cases appear to involve areas with complete prohibitions on farming, there is a great deal more leeway for local governments to decide where farming should be located.

114. For example, pesticide application is almost entirely outside the bounds of local control under Michigan law. See, e.g., MICH. COMP. LAWS ANN. Â§ 324.8307a (Westlaw 2016). 115. See generally Vill. of Rothbury v. Double JJ Resort Ranch, No. 246596, 2004 WL 1837835 (Mich. Ct. App. Aug. 17, 2004); Twp. of Webber v. Austin, No. 315050, 2014 WL 1614613 (Mich. Ct. App. Apr. 22, 2014).

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Test II: 1. Does the local ordinance allow farming on the property at question or is the farm a legal pre-existing use under zoning? If yes, go on to step two. If no, the ordinance is not preempted and Michigan RTFA is not available as a defense. 2. Does the ordinance only apply to commercial farming or is it a universal rule that applies to everybody? If only to farming—the ordinance is an extension or revision of the GAAMPs and therefore, is preempted. Universal rule—go to step three. 3. Does the ordinance make it practically impossible for the farmer to continue the specific type of farming in compliance with the GAAMPs? If yes, the ordinance is preempted. If no, the ordinance is not preempted in this situation. If we apply this test to Papesh, the Papesh farms survives step one because commercial farming was allowed on the property, the question was if it could include chickens.116 The rule was a universal rule that no one, commercial or otherwise, could have chickens on less than three acres, so it goes to step three. The farm would still win because the rule was a complete prohibition on chickens and made it impossible for them to continue chicken farming. The Bateson farm also survives step one—commercial farming is allowed. The rule against heavy-equipment appears to be universal so it also comes down to step three. Given the level of earth moving that appeared from the facts recited in the ruling to be necessary to use the property as a tree farm, it is highly likely that the rule made it practically impossible for the Bateson family to operate a tree farm on the property and, therefore, this test would also be consistent with the court ruling in Bateson.117 Papadelis II and Scholma would remain for reasons discussed in the previous test. Where does this test leave Lane, Dawson, 116. See generally Charter Twp. of Shelby v. Papesh, 704 N.W.2d 92, 96 (Mich. Ct. App. 2005). 117. See Lima TWP v. Bateson, 838 N.W.2d 898 (Mich. Ct. App. 2013).

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GreenCare, FoodCo, and Mr. Franklin? Mr. Lane is dealing with a fencing ordinance that does not prohibit farming and that applies to everyone. His farm is likely a legal pre-existing use even if not currently allowed under zoning. He makes it to step three. The question then becomes is it “practically impossible” for him to farm in compliance with the GAAMPs? Heavy losses to deer do not make it impossible to farm. The question then becomes the wording of the GAAMPs. If the GAAMP addressing fencing required pest fencing, it would preempt, and Mr. Lane would be able to build his fencing. If the GAAMP merely allows it, then Mr. Lane would have to follow the local fencing rules. This is much closer to what the Michigan Court of Appeals hinted at in Scholma—there must be a clear contradiction and not just a difficult time.118 Ms. Dawson has a similar fact-heavy case to lay out. She is dealing with an ordinance that applies to farmers and non-farmers alike and does not prohibit farming. She will need to show first that her farm is allowed under the local rules or that she is a pre-existing non-conforming use. Training a new guard dog in the absence of any GAAMPs regarding guard dog breeding or training is not likely to be a practical impossibility, so she is likely to lose unless she can show some highly intensive and specialized training. GreenCare loses on step one, a complete prohibition of farming, because this test gives the local government the ability to say where farming should and should not occur. FoodCo survives step one because farming is allowed and wins on step two because it is a rule specific to farming. Once the local governments allow farming it cannot make farming specific rules. Mr. Franklin loses at step one, no farming means no farming. Again, this test gives local governments the ability to say where farming should and should not occur. This test has mixed results. Perhaps most interesting, it removes the ability of local governments to distinguish different kinds of farming into different areas. Once a local government allows a quiet pastoral tree farm, it automatically must allow a large, noisy, and smelly pig farm in the same area. Conversely, if the local governments want to make sure they don’t wind up with a large pig farm, they must outlaw family farms like Mr. Franklin’s and small produce farms like GreenCare’s. 118. Scholma, 840 N.W.2d at 193.

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D. Can the Courts Solve This Issue? One of the most problematic parts of the Michigan RTFA lies in its definition and treatment of farms as a monolithic entity.119 There are many good policy reasons as to why different types of farms should be treated differently. Organic farms do not present the same pesticide and herbicide residue and runoff concerns that traditional growing methods do.120 Farm operations without animals do not have the same noise and smell concerns that livestock can present. Confined animal feeding operations (CAFOs) present ground and surface water pollution risk as well as sound and smell concerns that are many times that of traditional family farms, particularly those whose animals are pastured rather than confined in feedlots.121 Lot size and equipment size change the noise pollution level and some micro farms might be able to use no power equipment at all. Unfortunately, the Michigan RTFA has created a one-size-fits-all response. In an effort to ban large livestock feedlots, rural and semirural communities may prohibit families from keeping a single chicken. Urban areas refuse to allow any farming, including operations discussed in the hypothetical GreenCare situation, that presents minimal noise, sight, and smell concerns because they are afraid of opening the door to loud equipment and farm animals.122 The courts are limited to interpreting the existing act. While they can provide a much clearer guideline than they have to date, and it would reduce litigation costs for both farmers and local governments if they did, they cannot solve the underlying problem that the Michigan RTFA treats a quarter acre of hand grown vegetables the same as 100,000 pigs and says that both should have the same level of local control. This has created an absurd result. If the courts go with a test that treats small and large farms equally, then local governments have almost no power left over farming operations. If the courts fashion a test for Michigan RTFA preemption (similar to Test II) in which local governments retain some control, the results are a bit absurd. A local government cannot do anything to prevent FoodCo from moving its 30,000 animal hog-feeding operation into a rural 119. 120. 121. 122.

See generally Mogk, supra note 1. See Peters, supra note 31. See Norris, supra note 1. See Norris, supra note 1.

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neighborhood of family farms. At the same time, the attempt by another local government to stop FoodCo has resulted in Mr. Franklin not being able to restart his family farm (under any set of regulations) and has stopped GreenCare from bringing blighted land into use to grow vegetables for area residents. Mr. Lane and Ms. Dawson cannot protect their crops because the regulations they are dealing with are not specific to farming, but maybe they could open a hog feeding operation like FoodCo is planning since the local government is not allowed to regulate that under the Michigan RTFA. Not only are local governments catching lettuce and pigs in the same net because the Michigan RTFA puts them together, but sometimes the bigger nuisance can slip through the net. While the goal of protecting agriculture as an industry is important, so is minimizing the impact of that industry. The Michigan RTFA puts high and low impact farming practices together and forces local governments to treat them the same. Only by changing the act can we protect the right of Michigan citizens to farm in a way that protects everyone. E. A Middle of the Road Proposal for Changing the Law. The absurd outcomes of a local government favoring test for preemption under the current Michigan RTFA are in a large part because the current act places all farms under the same umbrella.123 A change to solve this absurdity will require legislative action. The definitions section of the Michigan RTFA has been well-refined over the years and does a solid and comprehensive job of defining a farm, farm operations, and farm products.124 Some questions exist as to whether the act should protect only commercial farms, as it now does, or should also protect sustenance farming. If the legislature desires to protect sustenance farming the definition of ‘farm’ would have to be changed.125 The remainder of the act could be repealed and replaced with a new act. The following is an original proposal for how the law could be changed. The numbers that create different categories, like what is and is not a CAFO, would undoubtedly change as the legislature 123. See Mogk, supra note 1. 124. MICH. COMP. LAWS ANN. § 286.472 (Westlaw 2016). 125. Id.

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discusses the policy ramifications of where they draw the line, but the principle of separating industrial agriculture from more residentially compatible farming practices is more important than the precise location of the line between the two. Section 3 of the Michigan Right to Farm Act is hereby repealed and the act is further amended by addition of the following language. Section 2 - definitions126 Confined Animal Feeding Operation (CAFO) - A CAFO is any animal operation with more than 20,000 pounds live weight of cumulative animals where less than 25% of animal feedstock is produced by the farm or the animals spend less than half of the time on pasture.127 Section 3 - immunity from nuisance lawsuits. a. A farm or farm operation shall be immune to nuisance lawsuits from developments built after the relevant portion of the farm operation begins or from neighbors who moved into those developments, or into existing housing after the relevant portion of the farm operation begins. b. A farm so protected shall be immune to nuisance lawsuits for any expansion or change in use to the extent that the expansion conforms with Generally Accepted Agricultural Management Practices (GAAMP) as established by the Commission of Agriculture unless such a change results in a non-CAFO farm becoming a CAFO farm.

126. This would be added to the definitions currently in place as defined in ยง 286.472. MICH. COMP. LAWS ANN. ยง 286.472 (Westlaw 2016). 127. Many small hobby farms buy most of their feed and would be exempt from the CAFO definition based on their small size. At the same time, even large operations that pasture or otherwise grow all of their feed would be exempt since they have enough land to produce their own feed and utilize manure for fertilization without excess that necessitates the large sewage treatment lagoons that often characterize industrial livestock operations.

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Section 3a - CAFO farm operations a. Every local government that has adopted a zoning ordinance under the Michigan Zoning Enabling Act shall adopt a zoning district where CAFO farming operations are allowed as a use by right or special use as outlined by this section. If any local government unit fails to adopt such an ordinance within one year after the passage of this act, a CAFO farming operation shall become a use by right on all parcels over 40 acres until such a time as they adopt such an ordinance. b. Any local governing unit in which parcels of land over 40 acres exist shall allow CAFO farming operations in a zoning district or overlay in which at least 1/4 of all parcels over 40 acres exist. The design and operating rules for CAFO farming operations in these districts shall not be more restrictive than those rules laid out in the GAAMPs except that the local government may put in place reasonable rules requiring fencing or vegetation barriers to reduce or eliminate visual impact to neighboring property owners. This zoning ordinance may allow CAFO farming operations on smaller parcels under conditions provided by the ordinance, which may be more restrictive than those in the GAAMPs. Section 3b - non-CAFO farming operations a. A farming operation that is not a CAFO shall be a use by right on all property in the State of Michigan except where local zoning provides it as a special use. b. A local government unit may regulate the operations of a nonCAFO farming operation so long as the regulations comply with the following provisions: 1. Regulations do not contradict any rules or standards contained in the GAAMPs including plant and animal density standards, although local rules may allow higher densities of plants or animals than those allowed by the GAAMPs, 2. Regulations do not prohibit (either explicitly or as applied) any particular type of farming operation for any farm except where GAAMP density standards make it impossible to

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operate that type of farming operation due to the small size of the property, and 3. Where the GAAMPs provide multiple methods for operating a particular facet of a farming operation, local regulations may dictate one method over the other but must leave at least one reasonably achievable method. In any court action under this section, the local government has the burden of proof by a preponderance of the evidence to show that a reasonably achievable method exists for the farm in question. c. Farming operations are exempt from any local ordinance or regulation that prohibits a particular species of plant or animal so long as that plant or animal is being used in the production of farm products. Farming operations shall remain subject to all other nonfarm specific local regulations including but not limited to building design criteria, non-species or class specific setbacks from nonconsenting neighbors for keeping animals, drainage and water runoff regulations, nuisance and noise ordinances and general property maintenance and appearance standards. All such regulation must apply to and be equally enforced against non-farm properties. A farm operator may raise a pattern of non-enforcement against non-farm users as a defense by preponderance of the evidence in any enforcement action. Section 3c - enforcement Any property owner may bring a declaratory suit against any local ordinance that contradicts this act. In such a suit, the court shall award attorneyâ&#x20AC;&#x2122;s fees if it finds that the local government unit knew or should have known the local ordinance conflicted with this act. The court may award attorneyâ&#x20AC;&#x2122;s fees in any nuisance defense under this act. Where would this legislative change leave Mr. Lane, Ms. Dawson, GreenCare, FoodCo, and Mr. Franklin? Mr. Lane would be able to challenge the fencing ordinance because the city left him no method of pest control. He might not get the fencing, but the city would have to allow him some effective method to deal with the deer loss.

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Ms. Dawson would face a similar situation. The township could make her get rid of Daisy and even go without a guard dog, but to do so it would have to leave some effective method to deal with pests. The township might accomplish this by allowing properly installed electrified fencing or some similarly effective method. She would not get everything she wants (and the township would be able to address concerns over the type of dogs kept), but she would have some method to deal with crop loss. GreenCare would win, as would Mr. Franklin, because they would have the right to start a farming operation subject to reasonable local rules. FoodCo’s situation depends on how Woodtopia Township responds to the act. They could not completely prohibit FoodCo’s operation from the township (which is good for the public interest because these farms need to exist somewhere) but could relegate it to the 1/4 of the township’s large properties where it would have the least negative effect on neighbors thereby protecting the more residential areas of the country. Every one of our hypothetical farmers would have to give up something. Mr. Lane might not get his fence, and Ms. Dawson would probably have to give up her dog. GreenCare and Mr. Franklin would have to learn and follow the local farming rules, and FoodCo might have to relocate to another place in the township. Many farmers would lose some protection under this change and would have to accommodate their operations to local rules from which they are currently exempt. At the same time, the local government would have to work with all of the farmers to help them find a way to operate their farm, and they would finally actually have a “right to farm.” More importantly, it would clarify the legal situation so that all current and potential farmers would know exactly what they were facing before they start. F. Where Do We Go from Here? The Michigan RTFA was originally passed in order to protect Michigan’s farming industry from the encroaching residential development.128 It appears that the act is still relatively effective to that end; however, as statewide population declines, and urban population in particular, there is a great deal of benefit to be gained

128. Supra notes 7–11; see also Heckler, supra note 9, at 230–32.

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by returning non-farm property to farming use.129 Additionally, research shows that there is a great deal to be gained in quality of life by integrating agriculture into urban environments.130 As it stands, the Michigan RTFA leaves local governments fearing complete loss of control and attempting, in many cases, to outlaw agriculture all together.131 At the same time, the act leaves rural family farm communities vulnerable to buyout and conversion of farms into confined animal feeding operations that share none of the rural, idyllic qualities that many farm country residents expect from their farming neighbors. The Michigan RTFA, absent an interpretation that gives farms almost absolute immunity, creates a situation where small, urban produce farms face complete prohibition while massive, industrial animal farms can take over any rural farming areas with almost no local input. Protecting agriculture as an industry and a way of life from nuisance suits and anti-agriculture local governments is an important goal. This goal can be better achieved by amending the act to make sure farms can be anywhere and can find a reasonable way to operate but also giving back some regulatory power to local governments to make sure that the farms are appropriately run for the area in which they are located. IV. CONCLUSION The Michigan RTFA was introduced in order to protect farms from encroaching development.132 It has been amended three times to try to better achieve that goal.133 Michigan’s RTFA now eliminates most local control over farming operations but appears to allow local governments to outlaw farming altogether.134 As a result, the act is being used to protect large industrial style farming operations in rural areas but is preventing urban areas from allowing small-scale farms without also opening the doors for large industrial operations that would be massively incompatible with their residential neighbors.135 129. See, e.g., Mogk, supra note 1 (outlining policy reasons surrounding urban agriculture both for and against). 130. See, e.g., Mogk, supra note 1. 131. See, e.g., Mogk, supra note 1. 132. Supra notes 7–11; see also Heckler, supra note 9, at 230–32. 133. Supra notes 17–25. 134. MICH. COMP. LAWS ANN. § 286.474(6) (Westlaw 2016). 135. Heckler, supra note 9, at 217.

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This problem has been recognized, but no legislative or clear judicial action has been taken. Added to this is case law, which leaves a great deal of uncertainty as to when and how the act preempts local ordinances. This uncertainty is exactly the opposite of the stable farming that the act was meant to protect. In order to further the protection of farming as an industry as well as a way of life, the goal of the Michigan RTFA, the act must be amended to recognize the differing goals and impacts of different types of farms. By regulating confined animal feeding operations as a separate type of farming use and one only appropriate to large parcels of land, an amendment can allow local governments to choose on what sites these large operations belong. At the same time, new small and family farms need to be protected in a way that give local governments some input into the appearance and operation to encourage communities to welcome responsible and neighborly farming practices.

PRE-AIA FALSE MARKING STATUTE: SURVIVOR OF CONSTITUTIONAL ATTACKS, YET VIOLABLE AS A QUI TAM CAUSE OF ACTION— CONSTITUTIONAL ANALYSIS OF A BYGONE STATUTE JESSE D.H. SNYDER* ABSTRACT On September 16, 2011, President Barack Obama signed the LeahySmith America Invents Act (AIA) into law, ushering in a new epoch for patent law in the United States. For many advocates of change, the AIA animated a cathartic endeavor to right a ship lost at sea. The false marking statute, 35 U.S.C. § 292, is an often challenged, much maligned, provision under the Patent Act, especially before the enactment of the AIA. Although a statutory legal right grounded in tradition and history, the pre-AIA qui tam false marking statute fell into constitutional turmoil in 2009. Although the Federal Circuit eventually concluded that qui tam relators have standing under Article III to sue on behalf of the government, the appeals court left unresolved whether the qui tam false marking statute violated the Take Care Clause under Article II. Should a qui tam statute of similar effect arise again, and should a court return to the Take Care Clause constitutional inquiry, this paper posits that such a statute would withstand that challenge. The paper first explains the qui tam false marking statute and then reviews how the statute fared under challenges alleging Article III violations. The paper concludes by addressing the unresolved legal dilemma of the Take Care Clause. The combination of a qui tam relator presenting only a minimal *

2015–2016 Law Clerk to the Honorable Jimmie V. Reyna of the United States Court of Appeals for the Federal Circuit; 2016–2017 to the Honorable Eugene E. Siler, Jr. of the United States Court of Appeals for the Sixth Circuit. I earned my J.D., summa cum laude, from Texas Wesleyan University and my B.S. from the United States Air Force Academy. While in law school, I served as editor in chief of the Texas Wesleyan Law Review. After graduating from law school, I clerked for the Honorable Jorge A. Solis of the United States District Court for the Northern District of Texas. I would like to thank Luciana Viramontes, Andrew Hendra, Patrick MacRae, and the entire WMU-Cooley Law Review staff for their top-notch work on my paper. I also would like to give a warm shout out to my wife, Amy.

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intrusion on the executive branch’s authority to ensure all laws are faithfully executed, coupled with the ready ability of the United States to intervene in cases, lead to the conclusion that a Take Care Clause challenge to a statute, similar in nature to the qui tam false marking statute, will ultimately prove unsuccessful. TABLE OF CONTENTS I. INTRODUCTION .............................................................................. 368 II. THE BYGONE FALSE MARKING STATUTE: 35 U.S.C. § 292 .......... 371 A. Qui Tam Statutes Generally .............................................. 371 B. The Qui Tam False Marking Statute................................. 372 III. CONSTITUTIONAL CHALLENGES TO THE QUI TAM FALSE MARKING STATUTE AND THE FEDERAL CIRCUIT’S RESOLUTION OF ARTICLE III STANDING ...................................... 375 A. An Abridged History of Constitutional Challenges to the False Marking Statute ................................................. 375 B. Federal Circuit Holds that a Sovereign Injury Satisfies Article III ................................................................. 380 IV. HAD THE AIA NEVER GONE INTO EFFECT, AND HAD AN APPELLATE COURT ADDRESSED A TAKE CARE CLAUSE CHALLENGE, WOULD THE FALSE MARKING STATUTE BE CONSTITUTIONAL? THE TEA LEAVES POINT TO “YES” ............. 382 V. CONCLUSION ................................................................................ 387 I. INTRODUCTION On September 16, 2011, President Barack Obama signed the Leahy-Smith America Invents Act (AIA) into law,1 ushering in a new epoch for patent law in the United States.2 The AIA represents a fountainhead in the patent-reform effort, streamlining the legal avenues with which to smoke out invalid patents, while revamping certain textual provisions to align with contemporary views of

1. Sukumar v. Nautilus, Inc., 785 F.3d 1396, 1399 (Fed. Cir. 2015). 2. Ronald Mann, Opinion Analysis: Justices Validate PTO Rules for inter partes Review, SCOTUSBLOG (June 20, 2016, 9:52 PM), http:// www.scotusblog.com/2016/06/opinion-analysis-justices-validate-pto-rules-forinter-partes-review/.

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intellectual property.3 To advocates for change, the AIA animated a cathartic endeavor to right a ship lost at sea.4 Both before the enactment of the AIA and after, the Patent Act provides a positive cause of action against entities that falsely mark articles as patent protected when those articles are in fact not subject to such protection.5 As prescribed under the AIA, those who suffer a “competitive injury” from false marking may sue under 35 U.S.C. § 292 to vindicate their competitive interests.6 But before the AIA, the limitation of competitive injury was not present, thereby enabling anyone to sue under the false marking statute as a qui tam relator to enforce an injury to the government’s sovereign interests.7 The false marking statute is an often challenged, much maligned, provision under the Patent Act, especially before enactment of the AIA.8 Although a statutory legal right grounded in tradition and history, the qui tam false marking statute fell into constitutional turmoil on May 14, 2009.9 On that date, in Stauffer v. Brooks Bros., a district court found that a qui tam relator failed to sufficiently plead an injury to the government, launching a review of whether private

3. See Steven Auvil, 5 Things Med Tech Companies Need to Know About the Leahy-Smith America Invents Act (Nov. 15, 2011), http://medcitynews.com/ 2011/11/5-things-med-tech-companies-need-to-know-about-the-leahy-smithamerica-invents-act/. 4. See Ronald Mann, Argument Preview: Last week of Court’s Term to Feature Potential Landmark Patent Case, SCOTUSBLOG (Apr. 18, 2016, 10:30 AM), http://www.scotusblog.com/2016/04/argument-preview-last-week-of-courtsterm-to-feature-potential-landmark-patent-case/. 5. See Sukumar, 785 F.3d at 1399–1400. 6. America Invents Act, Pub. L. No. 112-29, § 16, 125 Stat. 282, 329 (2011). 7. See generally Rogers v. Tristar Prods., 559 F. App’x 1042, 1044 (Fed. Cir. 2012). 8. Michael R. O’Neill, False Patent Marking Claims: The New Threat to Business, 22 No. 8 INTELL. PROP. & TECH. L.J. 22, 22–23 (2010) (noting that “false patent marking claims are now the new and very real threat to any business that marks any of its products or promotional materials with patent numbers”); compare United States ex rel. Zojo Solutions, Inc. v. Works, No. 10 C 1175, 2010 U.S. Dist. LEXIS 52203 (N.D. Ill. May 27, 2010), with Stauffer v. Brooks Bros., 758 F.3d 1314 (Fed. Cir. 2014). 9. Compare Stauffer v. Brooks Bros., 615 F. Supp. 2d 248, 254 (S.D.N.Y. 2009), rev’d, 619 F.3d 1321 (Fed. Cir., 2010); with Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 773 n.4 (2000); see also U.S. CONST., art. III § 2.

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citizens suing under the qui tam statute have standing under Article III.10 Amid growing judicial distaste for the statute,11 when the Stauffer district court granted a motion to dismiss for want of subject-matter jurisdiction, the decision produced uncommon effects among coequal district courts. One by one, district courts interpreting the false marking statute fell into one of three camps: (1) qui tam relators have no standing to bring a lawsuit for either proprietary or sovereign injuries suffered by the government; (2) qui tam relators have standing because Congress conferred the ability to bring a lawsuit on behalf the United States to protect its sovereign interests; and (3) some courts stayed all proceedings pending review by the Federal Circuit.12 On August 31, 2010, the Federal Circuit resolved that issue while leaving a nascent question for future review.13 Adding to a long run of successful constitutional defenses of qui tam actions, the Federal Circuit held that qui tam relators have standing under Article III to sue on behalf of the government.14 The Federal Circuit emphasized that the government’s injury could be to vindicate a sovereign interest, thus eliminating contentions that only a purely proprietary interest could be assigned to a private citizen.15 While the Federal Circuit addressed the constitutional concerns of standing, it left open a latent question raised in an amicus brief about whether the statute facially violated the Take Care Clause under Article II.16 With the enactment of the AIA in 2011, neither the Supreme Court nor Federal Circuit had an opportunity to address whether the qui tam false marking statute violated the Take Care Clause, relegating that legal question to the status of an unsolved mystery.17 10. Stauffer, 615 F. Supp. 2d. 11. Pequignot v. Solo Cup Co., 640 F. Supp. 2d 714, 728–29 (E.D. Va. 2009), aff’d in part and vacated in part, 608 F.3d 1356 (Fed. Cir., 2010). 12. See, e.g., United States ex rel. FLFMC, LLC v. Wham-O, Inc., No. 10cv0435, 2010 WL 3156162, at *7 (W.D. Pa. Aug. 3, 2010); Simonian v. Irwin Indus. Tool Co., No. 10-1260, 2011 WL 147717, at *4 (N.D. Ill. Aug. 27, 2010); see also, e.g., Bradley v. L’Oreal USA, Inc., No. 10-cv-433-DRH, 2010 WL 3463203, at *4 (S.D. Ill. Aug. 30, 2010). 13. Stauffer v. Brooks Bros., 619 F.3d 1321, 1325, 1327 (Fed. Cir., 2010). 14. Id. at 1325. 15. Id. at 1327 n.3. 16. Id. at 1327; see also U.S. CONST. art II, § 3. 17. Brooks v. Dunlop Mfg., 702 F.3d 624, 626 (Fed. Cir. 2012).

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Should a qui tam statute of similar effect arise again, and should a court return to the Take Care Clause constitutional inquiry, this paper posits that such a statute would withstand that challenge. The paper first explains the qui tam false marking statute and then reviews how the statute fared under challenges alleging Article III violations. The paper concludes by addressing the unresolved legal dilemma of the Take Care Clause. As case law after Stauffer and before the AIA confirm, qui tam causes of action are vestiges of the English legal system18 that entice private parties to clash over legal rights and obligations to the government.19 The combination of a qui tam relator presenting only a minimal intrusion on the executive branch’s authority to ensure all laws are faithfully executed, coupled with the ready ability of the United States to intervene in cases, lead to the conclusion that a Take Care Clause challenge to a statute, similar in nature to the qui tam false marking statute, will ultimately prove unsuccessful.20 II. THE BYGONE FALSE MARKING STATUTE: 35 U.S.C. § 292 A. Qui Tam Statutes Generally The Latin phrase qui tam is short for qui tam pro domino rege quam pro se ipso in hac parte sequitur, meaning a person “who pursues this action on our Lord the King’s behalf as well as his own.”21 Courts have observed that qui tam causes of action have been used throughout American and English history for, among other things, discovering and prosecuting fraud against the government.22 In a qui tam action, a private individual, known as a relator, sues on behalf of the United States as a partial assignee.23 Such lawsuits are 18. Cf. J. Randy Beck, The False Claims Act and the English Eradication of Qui Tam Legislation, 78 N.C. L. REV. 539, 566 (2000) (noting that as police and public safety enforcement expanded, English qui tam statutes notably declined); Common Informers Act 1951, 14 & 15 Geo. 6, c. 39, § 1 (Eng.) (abolishing all English qui tam statutes). 19. Pequignot v. Solo Cup Co., 640 F. Supp. 2d 714, 727 (E.D. Va. 2009). 20. Shizzle Pop, LLC v. Wham-O, Inc., No. CV 10-3491 PA (FFMx), 2010 WL 3063066, at *3 (C.D. Cal. Aug. 2, 2010). 21. Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 768 n.1 (2000) (referencing 3 W. Blackstone, Commentaries *160). 22. Riley v. St. Luke’s Episcopal Hosp., 252 F.3d 749, 752 (5th Cir. 2001). 23. Vt. Agency, 529 U.S. at 773 n.4 (emphasis omitted).

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creatures of statute, lacking any judicially recognized common law origin.24 Qui tam statutes also have a long tradition of withstanding constitutional attacks under a variety of theories.25 While the United States often references the English system to justify the legality of qui tam statutes, as irony would have it, the English system has since abolished all such statutes.26 B. The Qui Tam False Marking Statute The false marking statute, 35 U.S.C. § 292, is a criminal statute with a civil-penalty reward for relators who prevail in litigation.27 Under the pre-AIA Patent Act, “marking” refers to affixing a patented article with both the word “patent,” or the abbreviation “pat.,” along with a patent number for purposes of providing notice to the public of patenting.28 The Pre-AIA text of § 292 follows below: (a) ... Whoever marks upon, or affixes to, or uses in advertising in connection with any unpatented article, the word “patent” or any word or number importing 24. Stalley v. Catholic Health Initiatives, 509 F.3d 517, 521 (8th Cir. 2007) (quoting United Seniors Ass’n v. Philip Morris USA, 500 F.3d 19, 23 (1st Cir. 2007)). 25. See, e.g., Associated Indus. of N.Y. State, Inc. v. Ickes, 134 F.2d 694, 704 (2d Cir. 1943) Congress can constitutionally enact a statute conferring on any non-official person . . . authority to bring lawsuit to prevent action by an officer in violation of his statutory powers; for then, in like manner, there is an actual controversy, . . . even if the sole purpose is to vindicate the public interest. Id. (footnote omitted); Pub. Interest Bounty Hunters v. Bd. of Governors, 548 F. Supp. 157, 161 (N.D. Ga. 1982) (Qui tam statutes “provide a private citizen who would otherwise have no judicially cognizable ‘interest’ in rights protected by particular federal substantive provisions with an interest sufficient to give that individual standing to sue to enforce these provisions.”). 26. See Common Informers Act 1951, 14 & 15 Geo. 6, c. 39, § 1 (Eng.) (abolishing all English qui tam statutes); see also Riley, 252 F.3d at 752, 771, 773. 27. Pequignot v. Solo Cup Co., 608 F.3d 1356, 1363 (Fed. Cir. 2010) (referencing 16 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE § 107(B)(2) (stating that an action under 35 U.S.C. § 292 is civil in form even when it is criminal in nature)). 28. 35 U.S.C.A. § 287 (Westlaw 2016).

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that the same is patented, for the purpose of deceiving the public . . . .... Shall be fined not more than $500 for every such offense. (b) Any person may sue for the penalty, in which event one-half shall go to the person suing and the other to the use of the United States.29 Under the pre-AIA statute, any public entity was able to bring a qui tam action against an alleged false marker.30 The inspiration behind the false marking statute was to protect the public by stabilizing an otherwise under-enforced area of the law.31 Unlike other qui tam statutes, such as the False Claims Act, 31 U.S.C. § 3730(b),32 the qui tam false marking statute did not require a relator to provide the government with notice before filing a lawsuit.33 Despite an affirmative statutory grant to bring a false marking case, relators were often viewed as harboring dubious motives.34 As one district court noted, The only practical impact of the qui tam provisions of § 292(b) appears to be its potential to benefit individuals, such as the plaintiff in the case at bar, who have chosen to research expired or invalid patent markings and to file lawsuits in the hope of financial gain. . . . The history of . . . qui tam actions in general, 29. 35 U.S.C. § 292 (1994), amended by Pub. L. No. 112–29, § 16, 125 Stat. 284, 329 (2011); see also Pequignot, 608 F.3d at 1358–59. 30. Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 769 (2000) (referencing 35 U.S.C. § 292 as a qui tam action that allows recovery against a person who falsely marks patented articles); see also Forest Grp., Inc. v. Bon Tool Co., 590 F.3d 1295, 1303 (Fed. Cir. 2009) (stating that the false marking statute explicitly permits qui tam actions). 31. See Forest Grp., 590 F.3d at 1302–03 (“Acts of false marking deter innovation and stifle competition in the marketplace.”). 32. Pequignot v. Solo Cup Co., 640 F. Supp. 2d 714, 726 (E.D. Va. 2009) aff’d in part and vacated in part, 640 F.3d 1356 (Fed. Cir. 2010). 33. Stauffer v. Brooks Bros., No. 08-cv-10369 (SHS), 2009 WL 1675397, at *2 (S.D.N.Y. June 15, 2009), rev’d, 619 F.3d 1321 (Fed. Cir., 2010); see also Pequignot, 640 F. Supp. 2d at 722. 34. See, e.g., Pequignot, 640 F. Supp. at 728–29 (E.D. Va. 2009).

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indicates that when these actions have been subject to abuse by profit-seekers with little public motivation, legislatures, both in the United States and England have reacted.35 Other judges were less circumspect, affixing labels like “flavorof-the-month lawsuit[s]” in which patent attorneys sought penalties simply by researching expired patents and filing complaints.36 Even the Supreme Court characterized qui tam statutes as “the unusual case in which Congress has created a concrete private interest in the outcome of a lawsuit against a private party for the government’s benefit, by providing a cash bounty for the victorious plaintiff.”37 Despite perceived pernicious effects on the legal system, demagogic arguments about “a new cottage industry” for “marking trolls” proved unpersuasive as courts rationalized that Congress intended the lawsuits as means to protect industries from the perceived stifled competition resulting from false marking.38 To bring a lawsuit under the qui tam false marking statute, a relator had to establish that a defendant marked an unpatented article with the intent to purposefully deceive the public.39 Legally cognizable scienter occurred when the accused false marker “consciously desire[ed] that result” or was “aware that that [sic] result is practically certain to follow from his conduct . . . .”40 Courts interpreting the statute deemed that an inference and rebuttable presumption arose of intent to deceive the public upon a showing of

35. Id.; see also J. Randy Beck, The False Claims Act and the English Eradication of Qui Tam Legislation, 78 N.C. L. REV. 539, 566 (2000) (identifying that as English police enforcement improved, English qui tam statutes notably declined). Common Informers Act 1951, 14 & 15 Geo. 6, c. 39, § 1 (Eng.) (abolishing all English qui tam statutes). 36. United States ex rel. Zojo Solutions, Inc. v. Works, No. 10 C 1175, 2010 U.S. Dist. LEXIS 52203, at *1 (N.D. Ill. May 27, 2010). 37. Lujan v. Defs. of Wildlife, 504 U.S. 555, 573 (1992). 38. Forest Grp. Inc. v. Bon Tool Co., 590 F.3d 1295, 1302–03 (Fed. Cir. 2009); see also Donald W. Rupert, Trolling for Dollars: A New Threat to Patent Owners, 21 No. 3 INTELL. PROP. & TECH. L.J. 1 (2009). 39. Forest Grp., 590 F.3d at 1300; see also Clontech Labs., Inc. v. Invitrogen Corp., 406 F.3d 1347, 1352 (Fed. Cir. 2005). 40. Pequignot v. Solo Cup Co., 608 F.3d 1356, 1362–63 (Fed. Cir. 2010) (quoting United States v. Bailey, 444 U.S. 394, 404 (1980)) (quotation marks and punctuation omitted).

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both falsity and knowledge that the statement was false.41 Rebutting the presumption required credible evidence to the contrary.42 Although district courts adopted differing views on whether the heightened pleading standards of Federal Rule of Civil Procedure 9(b) applied in these cases, the issue of pleading standards was never resolved at the appellate level.43 III. CONSTITUTIONAL CHALLENGES TO THE QUI TAM FALSE MARKING STATUTE AND THE FEDERAL CIRCUIT’S RESOLUTION OF ARTICLE III STANDING A. An Abridged History of Constitutional Challenges to the False Marking Statute A federal court must dismiss a lawsuit for lack of subject-matter jurisdiction under Rule 12(b)(1) when a party lacks standing.44 The crux of any standing inquiry is whether a plaintiff “alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.”45 Inquiry thus resolves “whether the litigant

41. Pequignot, 608 F.3d at 1363; see also Clontech Labs., 406 F.3d at 1352–53 (“[T]he fact of misrepresentation coupled with proof that the party making it had knowledge of its falsity is enough to warrant drawing the inference that there was a fraudulent intent.”) (quoting Norton v. Curtiss, 433 F.2d 779, 795-96 (Fed. Cir. 1970)). 42. See, e.g., Clontech Labs., 406 F.3d at 1352 (“[T]he mere assertion by a party that it did not intend to deceive will not suffice to escape statutory liability. Such an assertion, standing alone, is worthless as proof of no intent to deceive where there is knowledge of falsehood.”). 43. Compare Simonian v. Cisco Sys., No. 10 C 1306, 2010 WL 2523211, at *3 (N.D. Ill. June 17, 2010) (“Accordingly, the Rule 9(b) pleading standard applies to Simonian’s false marking claim.”), with Patent Compliance Grp., Inc. v. Interdesign, Inc., 2010 U.S. Dist. LEXIS 69082, at *30 n.7 (“The Court declines to make findings on the application of Rule 9(b).”); see also Heathcote Holdings Corp. v. Crayola LLC, No. 10 C 0342, 2010 WL 5149343, at *1 (N.D. Ill. Dec. 10, 2010) (“The Federal Circuit has not yet reached this issue.”). 44. FED. R. CIV. PRO. 12(b)(1); see also Home Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). 45. Baker v. Carr, 369 U.S. 186, 204 (1962).

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is entitled to have the court decide the merits of the dispute or particular issues.”46 At its “irreducible constitutional minimum,” Article III standing requires a plaintiff to demonstrate the following: (1) an injury in fact (i.e., a concrete and particularized invasion of a legally protected interest); (2) causation (i.e., a fairly . . . trace[able] connection between the alleged injury in fact and the alleged conduct of the defendant); and (3) redressability (i.e., it is likely and not merely speculative that the plaintiff’s injury will be remedied by the relief plaintiff seeks in bringing lawsuit).47 These three elements are the constitutional bulwark to ensure a court is competent to hear a case.48 Far from mere pleading requirements, they are “an indispensable part of the plaintiff’s case, [where] each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof . . . .”49 Unlike traditional lawsuits, which implicate a personal injury, qui tam relators pursue a penalty on behalf of the government’s injury.50 As a qui tam statute, “[s]ection 292 thus assigns . . . to ‘any person’—the authority to bring a lawsuit to vindicate cognizable injuries incurred on the public or the United States through violation of its provisions.”51 In Forest Group, the Federal Circuit listed several potential injuries that arise from falsely marking articles: The marking and false marking statutes exist to give the public notice of patent rights. Acts of false marking deter innovation and stifle competition in the 46. Warth v. Seldin, 422 U.S. 490, 498 (1975). 47. Sprint Commc’ns Co., L.P. v. APCC Servs., Inc., 554 U.S. 269, 274 (2008) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)) (internal quotations omitted); see also Pub. Citizen, Inc. v. Bomer, 274 F.3d 212, 217–18 (5th Cir. 2002). 48. See Vt. Agency of Nat. Res. v. United States, 529 U.S. 765, 771 (2000). 49. Lujan, 504 U.S. at 561. 50. Patent Compliance Grp., Inc. v. Interdesign, Inc., No. 3:10-CV-0404-P, 2010 U.S. Dist. LEXIS 69082, at *8–9 (N.D. Tex. June 28, 2010); see also Vt. Agency, 529 U.S. at 773–74. 51. Stauffer v. Brooks Bros., 615 F. Supp. 2d 248, 254 (S.D.N.Y. 2009) (quoting 35 U.S.C. § 292(b) (1994), amended by 35 U.S.C.A. § 292 (Westlaw 2016)), rev’d, 619 F.3d 1321 (Fed. Cir. 2010).

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marketplace. If an article that is within the public domain is falsely marked, potential competitors may be dissuaded from entering the same market. False marks may also deter scientific research when an inventor sees a mark and decides to forego continued research to avoid possible infringement. False marking can also cause unnecessary investment in design around or costs incurred to analyze the validity or enforceability of a patent whose number has been marked upon a product with which a competitorwould like to compete.52 The Federal Circuit observed that “[i]n each instance where it is represented that an article is patented, a member of the public desiring to participate in the market for the marked article must incur the cost of determining whether the involved patents are valid and enforceable.”53 As a means to bolster public confidence, “[b]y permitting members of the public to sue on behalf of the government, Congress allow[s] individuals to help control false marking.”54 The Federal Circuit reminded the district court that “an injury suffered under the false marking statute is not always tangible and readily identifiable.”55 Further upping the ante, Forest Group proclaimed that “[t]hese injuries occur each time an article is falsely marked.”56 Although relators had enjoyed a relatively stable judicial consensus of what type of injury constitutes standing to sue, on May 14, 2009, a district court in the Southern District of New York dismissed a case for want of standing—producing a shockwave of uncertainty through the federal court system.57 In Stauffer, the district 52. Forest Grp. Inc. v. Bon Tool Co., 590 F.3d 1295, 1302–03 (Fed. Cir. 2009) (quotation marks and citations omitted). 53. Clontech Labs. Inc. v. Invitrogen Corp., 406 F.3d 1347, 1357 n.6 (Fed. Cir. 2005). 54. Forest Grp., 590 F.3d at 1303–04. 55. Patent Compliance Grp., 2010 U.S. Dist. LEXIS 69082, at *16–17; see also Pequignot v. Solo Cup Co., 640 F. Supp. 2d 714, 724 n.15 (E.D. Va. 2009) (“Although some scholars have argued that the government can assign only proprietary, and not purely sovereign interests [i.e., an interest arising from a violation of law], the Supreme Court made no such distinction in its discussion of assignment in Vermont Agency, and this Court declines to adopt this distinction.” (citations and punctuation omitted)). 56. Forest Grp., 590 F.3d at 1303. 57. Stauffer v. Brooks Bros., 615 F. Supp. 2d 248, 256 (S.D.N.Y. 2009).

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court concluded that a qui tam relator’s complaint under the false marking statute failed to state a legally cognizable injury.58 The court did not rule on the constitutionality of the qui tam provision under 35 U.S.C. § 292—just that an alleged injury must be particularized and something more than harm to the public interest.59 The complaint alleged the defendants marked certain bow ties with expired patent numbers.60 The district court concluded that the relator failed “to allege with any specificity an actual injury to any individual competitor, to the market for bow ties, or to any aspect of the United States economy.”61 According to the district court, “[t]hat some competitor might somehow be injured at some point, or that some component of the United States economy might suffer some harm through defendants’ conduct, is purely speculative and plainly insufficient to support standing.”62 The district court also expressed skepticism that injury to the government’s sovereign interest alone was enough to confer standing to qui tam relators: [A]bsent an alleged injury in the form of deception to the public, a plaintiff has not alleged a violation of the law, and therefore there exists no corresponding harm to the United States’ “sovereign interest.” Thus, allegations such as plaintiff’s that a defendant improperly marked an unpatented article as patented, standing alone, neither alleges a violation of section 292 nor pleads an injury in fact to the sovereign interest of the United States assignable to a qui tam plaintiff. Moreover, the Court doubts that the 58. Id. at 256 (“Thus, allegations such as plaintiff’s that a defendant improperly marked an unpatented article as patented, standing alone, neither alleges a violation of section 292 nor pleads an injury in fact to the sovereign interest of the United States assignable to a qui tam plaintiff.”). 59. See id. (Moreover, while, as noted, Brooks Brothers raised several challenges to the constitutionality of section 292 in its moving papers, the Court did not address those arguments at any time and did not decide them in its Opinion.). 60. Id. 61. Id. at 255 (citing Clontech Labs. Inc. v. Invitrogen Corp., 406 F.3d 1347, 1351 (Fed. Cir. 2005)) (relying in part on Clonetech to find that the relator must sufficiently plead intent to deceive as part of the injury in fact requirement for Article III standing). 62. Id.

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Government’s interest in seeing its laws enforced could alone be an assignable, concrete injury in fact sufficient to establish a qui tam plaintiff’s standing.63 The Stauffer decision forced other district courts to confront the issue of standing head on.64 Awaiting appeal from that decision, district courts generally fell into one of three camps. The first group of courts concluded that the government could not assign a sovereign injury to qui tam relators and that sufficient facts to support a proprietary injury suffered by the government or public must exist.65 The second group of courts concluded that qui tam relators have standing simply by bringing a lawsuit on behalf of the government for injuries—either sovereign or proprietary—suffered as a result of false marking.66 The third camp stayed judicial proceedings pending the outcome of the Federal Circuit’s review of Stauffer.67 63. Id. at 254 n.5; see also Myriam E. Gilles, Representational Standing: U.S. ex rel. Stevens and the Future of Public Law Litigation, 89 CAL. L. REV. 315, 34244 (2001); Craig Deutsch, Restoring Truth: An Argument to Remove the Qui Tam Provision from the False Marking Statute of the Patent Act, 11 MINN. J.L. SCI. & TECH. 829, 845-46 (2010) (“Such a solution, however, seems to circumvent the underlying purposes of the standing requirement.”). 64. See Harrington v. CIBA Vision Corp., No. 3:08-cv-251-FDW, 2009 WL 1754665, at *1 (W.D.N.C. June 17, 2009) (“Thus, while Defendant is no doubt correct that the issues it raises are controlling questions of law as to which there is substantial ground for difference of opinion, the Court does not believe that immediate appeal would materially advance this litigation.”). 65. See United States ex rel. FLFMC, LLC v. Wham-O, Inc., No. 10cv0435, 2010 WL 3156162, at *2 (W.D. Pa. Aug. 3, 2010) (“Court will grant defendant’s Motion to Dismiss because neither FLFMC nor the United States of America has suffered any concrete injury-in-fact, and the government cannot assign its ‘sovereign injury’ to a private plaintiff; consequently, plaintiff cannot establish an injury-in-fact sufficient to establish Article III standing.”); Promote Innovation LLC v. Ranbaxy Labs., Inc., No. 2:10-CV-121-TJW-CE, 2010 WL 3120040, at *1 (E.D. Tex. July 14, 2010). 66. See Simonian v. Irwin Indus. Tool Co., No. 10 1260, 2010 WL 147717, at *2 (N.D. Ill. Aug. 27, 2010) Plaintiff’s complaint alleges that each false marking on Irwin’s products ‘is likely to, or at least has the potential to, discourage or deter persons and companies from commercializing competing products,’ that upon information and belief such marking ‘has wrongfully quelled competition with respect to such products to an immeasurable extent thereby causing harm to the United States,’ and that such marking ‘contributes to causing harm to the

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B. Federal Circuit Holds that a Sovereign Injury Satisfies Article III On August 31, 2010, the Federal Circuit resolved the conflict among the district courts by holding that a qui tam relator has standing to sue under the false marking statute for injuries suffered by the United States or the public.68 The Federal Circuit reversed and remanded the district court’s order dismissing the case because a qui tam relator has standing to bring a lawsuit on behalf of the government and need only plead a sovereign injury suffered by the government stemming from false marking.69 The Federal Circuit noted that “a qui tam plaintiff, or relator, can establish standing based on the United States’ implicit partial assignment” of the damages it suffers as a sovereign government.70 The appellate court distinguished Stauffer from the Supreme Court’s decision in Lujan, a case about a statutory citizen-lawsuit provision.71 In Lujan, a statutory provision permitting citizens to sue the government (unlike a qui tam statute permitting citizens to sue on behalf of the government) still required a plaintiff to suffer a concrete personal injury before suing in federal court.72 The Supreme Court emphasized that such a procedural right, absent injury, would force courts “to become virtually continuing monitors of the wisdom and Plaintiff, the United States and the general public.’ The Court concludes that plaintiff has established Article III standing. Id.; Simonian v. Oreck Corp., No. 10 C 1224, 2010 WL 3385465, at *3 (N.D. Ill. Aug. 23, 2010) (“This court agrees with the Patent Compliance and rejects the reasoning in Stauffer. The text of §292 clearly gives standing to whomever witnesses or discovers a violation of the statute.”). 67. See Bradley v. L’Oreal USA, Inc., No. 10-cv-433-DRH, 2010 WL 3463203, at *2 (S.D. Ill. Aug. 30, 2010) (“Because the Stauffer case will likely aid in rendering a determination as to the standing issue in this case, a brief stay will be prudent and in the interest of judicial economy.”); Simonian v. Bunn-O-Matic Corp., No. 10 C 1203, 2010 WL 3385468, at *11 (N.D. Ill. Aug. 23, 2010); San Francisco Tech., Inc. v. Adobe Sys., No. C 09-6083 RS, 2010 WL 1463571, at *3 (N.D. Cal. Apr. 13, 2010) (“There appears to be little dispute that if the Federal Circuit affirms the decision in Stauffer there likely will be no way to distinguish it or to otherwise avoid its application to this case.”). 68. Stauffer v. Brooks Bros., 619 F.3d 1321, 1322 (Fed. Cir. 2010). 69. Id. at 1326‒32. 70. Id. at 1325 (citing Vt. Agency of Nat. Res. v. United States, 529 U.S. 765, 731 (2000)). 71. Id. (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)). 72. Id.

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soundness of Executive action.”73 Conversely, “the qui tam provision [at issue in Stauffer] operates not to allow individuals to sue the government, but to allow individuals to stand in the government’s stead, as assignees of the government’s own claims.”74 According to the Federal Circuit, Lujan did not preclude “Congress from assigning the government’s claims to ‘any person,’ even if that person has no concrete injury himself.”75 Rejecting analogies to Lujan, the Federal Circuit emphasized that a violation of the false marking statute by itself constituted an injury in fact.76 Thus, the United States may assign any alleged injury that it suffers, whether proprietary or merely sovereign.77 Relying on the Supreme Court’s opinion in Vermont Agency, the court of appeals concluded that “[i]t is beyond doubt that the complainant asserts an injury to the United States—both the injury to its sovereignty arising from violation of its laws (which suffices to support a criminal lawsuit by the Government) and the proprietary injury resulting from the alleged fraud.”78 The Federal Circuit referenced similar statutes as early as the First Congress that assigned private parties “certain sovereign interests of the United States.”79 Those statutes allowed private informers to seek penalties for “failure[s] to file a census return,” “carriage of seamen without contract or illegal harboring of runaway seamen,” and “unlicensed trading with Indian tribes.”80 The Federal Circuit stressed that each of these statutes imposed fines that were not based on any proprietary harm suffered by the government, but were remedies drawn from injuries to the sovereign interest of the United States as defined by the statutes enacted by Congress.81 Although the Federal Circuit resolved the standing issue, the court of appeals declined to rule on a facially constitutional challenge raised for the first time in an amicus brief: the qui tam false marking statute violates the Take Care Clause of Article II.82 The amicus 73. Id. at 1326 (citation omitted). 74. Id. 75. Id. (citing 35 U.S.C. § 292(b) (2011)). 76. Id. at 1325‒26, 1328. 77. Id. at 1327 (relying on Vt. Agency of Nat. Res. v. United States, 529 U.S. 765, 731 (2000)). 78. Id. at 1326 (quoting Vt. Agency, 529 U.S. at 771). 79. Id. (citing Vt. Agency, 529 U.S. at 776–77). 80. Id. (citing Vt. Agency, 529 U.S. at 777 n.6). 81. Id. at 1326–27. 82. Id. at 1327.

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posited that “in enacting section 292(b), Congress [] stripped the executive branch of its duty to ‘take Care that the Laws be faithfully executed’ by giving such power to the public.”83 The brief noted that the false marking statute differs from the False Claims Act, 31 U.S.C. § 3730(b), which “provides the government with, inter alia, the right to be notified of a case before the defendant is served, the right to intervene, and the right to seek dismissal or settlement over the objection of the relator or to prevent dismissal of the action by the relator.”84 The court of appeals never resolved the Take Care Clause issue.85 And with the enactment of the AIA, the issue eluded further review.86 IV. HAD THE AIA NEVER GONE INTO EFFECT, AND HAD AN APPELLATE COURT ADDRESSED A TAKE CARE CLAUSE CHALLENGE, WOULD THE FALSE MARKING STATUTE BE CONSTITUTIONAL? THE TEA LEAVES POINT TO “YES” The Supreme Court has said little about the Take Care Clause.87 During October 2015 Term, in a dispute over executive authority in the context of immigration law, the Supreme Court requested that the parties brief and argue the implications of the clause in their case.88 After hearing oral argument, an equally divided Court affirmed the decision below, thereby remaining reticent on the contours of the Take Care Clause.89 Although the Federal Circuit never had occasion to address the Take Care Clause challenge, residual case law from the pre-AIA era supports the notion that, like a cockroach, the false marking statute would have continued lurking in the dark. Article II of the Constitution vests within the President the responsibility to “take Care that the Laws be faithfully executed.”90 83. Id. 84. Id. 85. Id. 86. Brooks v. Dunlop Mfg., 702 F.3d 624, 626 (Fed. Cir. 2012). 87. Lyle Denniston, The Vanishing Constitutional Issues in United States v. Texas, CONST. DAILY (Apr. 19, 2016), http://blog.constitutioncenter.org/ 2016/04/the-vanishing-constitutional-issue-in-united-states-v-texas/. 88. Amy Howe, Court Will Review Obama Administration’s Immigration Policy: In Plain English, SCOTUSBLOG (Jan. 19, 2016, 4:39 PM), http:// www.scotusblog.com/2016/01/court-will-review-obama-administrationsimmigration-policy-in-plain-english/. 89. Id. 90. U.S. CONST., art. II, § 3.

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As such, “the President is [the] constitutional officer charged with taking care that a mass of legislation be executed.”91 Courts have interpreted this clause as “part of the scheme of separation of powers, in which Congress passes laws, the President enforces them, and the judiciary interprets them.”92 A coordinate branch arrogates the power of another when an action leads to “aggrandizement of one branch at the expense of the other.”93 And a law may disrupt “the proper balance between the coordinate branches” by “preventing [that branch] from accomplishing its constitutionally assigned functions.”94 A statute is constitutional and does not offend the concept of separation of powers when it provides the executive branch with “sufficient control . . . to ensure that the President is able to perform his constitutionally assigned duties.”95 In 2000, in Vermont Agency, the Supreme Court declined to decide whether the qui tam provisions of the False Claims Act, 31 U.S.C. § 3730(b), violate Article II.96 Writing separately in dissent, Justices Stevens and Souter expressed the view that “historical evidence” alongside “evidence that private prosecutions were commonplace in the 19th century” lead to the conclusion that qui tam lawsuits comport with Article II.97 For at least those two retired justices, qui tam actions do not offend Article II.98 In 2009, a district court in the Eastern District of Virginia addressed the constitutionality of the false marking statute in view of the Take Care Clause.99 In Pequignot, the district court found no 91. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 702 (1952) (quotation marks omitted). 92. Pequignot v. Solo Cup Co., 640 F. Supp. 2d 714, 724 (E.D. Va. 2009), aff’d in part and vacated in part, 608 F.3d 1356 (Fed. Cir., 2010); see also Riley v. St. Luke’s Episcopal Hospital, 252 F.3d 749, 760 (5th Cir. 2001) (describing the “Take Care” clause as “a crucial bulwark to the separation of powers”). 93. Buckley v. Valeo, 424 U.S. 1, 122 (1976). 94. Nixon v. Adm’r Gen. Servs., 433 U.S. 425, 443 (1977). 95. Morrison v. Olson, 487 U.S. 654, 696 (1988). 96. See Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 778 n.8 (2000) (“[W]e express no view on the question whether qui tam lawsuits violate Article II, in particular the Appointments Clause of § 2 and the ‘[T]ake Care’ Clause of § 3.”). 97. Id. at 801 (Stevens, J., dissenting). 98. Id. 99. See Pequignot v. Solo Cup Co., 640 F. Supp. 2d 714, 728–29 (E.D. Va. 2009), aff’d in part and vacated in part, 608 F.3d 1356 (Fed. Cir., 2010).

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violation existed because a qui tam action presents a minor intrusion on executive power, and the government has adequate procedural safeguards to protect its interests.100 There, a patent attorney sued Solo, a manufacturer of disposable cups, lids, plates, bowls, and utensils, for allegedly marking disposable cups and lids with expired patent numbers.101 Solo moved to dismiss, arguing that the false marking statute violated Article II “because the Executive Branch does not retain sufficient control over a § 292 qui tam lawsuit.”102 Solo distinguished the false marking statute from other qui tam statutes, such as the False Claims Act, 31 U.S.C. § 3730(b), emphasizing that the statute did not require the relator to provide notice to the government before pursuing litigation.103 Solo also posited that the government could not settle, dismiss, or “take over” litigation from the relator under the false marking statute.104 Unpersuaded by Solo’s contentions, the district court concluded that the government has sufficient control over the case to mollify any purported violation of the Take Care Clause.105 The district court found history and tradition salient: Qui tam statutes were part of a long-accepted practice dating back centuries. It is unlikely that the framers would have written a Constitution that outlawed this practice, and then immediately passed several qui tam laws that unconstitutionally encroached on Executive Branch power before the ink on the Constitution was even dry.106 The district court concluded by listing several procedural mechanisms for the executive branch to maintain control of the lawsuit: The United States may intervene in a qui tam action, either as of right, or with a court’s permission. If the United States intervenes and the qui tam relator attempts to voluntarily dismiss the case, it cannot do 100. 101. 102. 103. 104. 105. 106.

Id. at 724‒28. Id. at 715–16. Id. at 715, 724 (internal quotation marks omitted). Id. at 726. Id. Id. at 727. Id.

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so without a court order if the United States does not consent. Finally, the United States may apply for a protective order if the relator’s action interferes with a government investigation or prosecution. Although these mechanisms concededly do not rise to the same level of government control provided by the FCA, the FCA’s strict safeguards are not required because, as discussed [previously], 292(b) represents a minimal intrusion onto Executive Branch power.107 The sentiment in Pequignot was echoed one year later by the Central District of California in Shizzle Pop.108 There, the relator alleged that the defendant continued to mark its Frisbee Disc Pro Classic Disc products with expired patent numbers.109 Among other defenses, the defendant argued that the false marking statute violated both the Appointments and Take Care Clauses of Article II.110 Under the Appointments Clause, “the President [has] the authority to select principal officers with the advice and consent of the Senate.”111 To resolve that challenge, the court cited Ninth Circuit precedent for the proposition that “a qui tam relator, who litigates only a single case, receives no federal salary, and serves for no specified term, does not exercise enough authority to be considered an officer who must be appointed by the President.”112 The court further suggested that the nature of qui tam relators defies any traditional notion of an official appointment.113 The district court then referenced Pequignot as it addressed the Take Care Clause challenge. The court determined that no additional procedural safeguards were necessary when the government can readily exercise its interests through the Federal Rules of Civil Procedure against a qui tam relator bringing a selffunded civil action.114 107. Id. at 727‒28 (internal citations omitted); see also FED. R. CIV. P. 24(a)–(b), 26(c), 41(a)(1)(A)(ii). 108. Shizzle Pop, LLC v. Wham-O, Inc., No. CV 10-3491 PA (FFMx), 2010 WL 3063066, at *3 (C.D. Cal. Aug. 2, 2010). 109. Id. at *1. 110. Id. at *3. 111. Id. (citing Morrison v. Olson, 487 U.S. 654, 670 (1988)). 112. Id. (internal quotation marks omitted) (quoting U.S. ex rel. Kelly v. Boeing Co., 9 F.3d 743, 758–59 & n.9 (9th Cir. 1993)). 113. Id. 114. Id.

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In another case that same year, a district court in the Northern District of Illinois reached the same conclusion. In Zojo Solutions, the district court discussed the constitutionality of the false marking statute in a limited context, offering that if such a grave constitutional conflict existed, the Federal Circuit would have already raised the issue sua sponte: [I]t must be remembered that if the Federal Circuit had perceived that the statute posed a subject matter jurisdictional problem, it would have been obligated to raise and address that issue sua sponte. In a sense, then, that court’s failure to speak of any potential problem of unconstitutionality could be viewed as confirming the validity of the statute.115 Although litigation on Take Care Clause violations was scant before the AIA ultimately mooted the argument,116 all signs portend well for a similar statute facing similar challenges in the future. Courts are in harmony about the long history and tradition enshrining the outgrowth of qui tam actions.117 As courts have noted, the qui tam false marking statute amounted to minimal intrusion on the power of the executive branch to ensure the laws passed by Congress are faithfully executed.118 The Federal Rules of Civil Procedure provide a means for the government to assert its interests in litigation as

115. Zojo Sol., Inc. v. Stanley Works, 712 F. Supp. 2d 756, 758 (N.D. Ill. May 12, 2010). 116. N.C. Farmers’ Assistance Fund, Inc. v. Monsanto Co., 740 F. Supp. 2d 694, 696 n.2 (M.D.N.C. 2010) (“Because the court determines the motions on nonconstitutional grounds, this argument need not be reached at this time.”); United States ex rel. Alchemy Asset Servs. v. GlaxoSmithKline Consumer Healthcare, LP, No. 10-680, 2011 WL 2470595, at *1 n.4 (W.D. Pa. May 3, 2011) In response to the defendants’ constitutional challenge to the false patent marking statute, the United States—pursuant to F.R.Civ.P. 5.1(b)—sought to intervene in this case to defend the constitutionality of the statute. By Order dated January 26, 2011, the Court granted the United States’ request to intervene in this action, and on January 28, 2011, The United States submitted a brief defending the constitutionality of 35 U.S.C. § 292. Id. 117. Pequignot v. Solo Cup Co., 640 F. Supp. 2d 714, 726 (E.D. Va. 2009), aff’d in part and vacated in part, 608 F.3d 1356 (Fed. Cir. 2010). 118. Shizzle Pop, 2010 WL 3063066, at *3.

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needed.119 Likewise, though patent rights are public rights, the nature of patent prosecution and litigation invites private lawsuits to establish and define the intellectual property rights of others.120 Relators under the qui tam false marking statute ostensibly provided greater visibility, enforcement, and judicial review of an important sovereign interest—promotion and protection of the arts and sciences.121 This rationale can easily carry over into other contexts. Should a statute like the qui tam false marking statute ever take form, any Take Care Clause challenge must contend and surmount the prevailing rationale of several district courts that the old pre-AIA false marking statute was constitutionally sound. At least two retired Supreme Court justices agree with that sentiment.122 And, really, the authority to suggest the opposite is insular and has yet to command a receptive audience among the federal appellate judiciary. V. CONCLUSION The qui tam false marking statute was a true survivor of constitutional attacks.123 Both the historical origins of qui tam statutes and the judicial interpretations of false marking statutes have shaped the ability for a citizen to bring a lawsuit on behalf of the government to vindicate a public injury.124 Although neither the Supreme Court nor the Federal Circuit had an opportunity to address whether qui tam false marking lawsuits violate the Take Care Clause, such challenges will likely fail if similar qui tam statutes are litigated. As case law suggests, the government has a procedural means to assert its interests, the judiciary tolerates these types of actions, and the statute presents minimal encroachment on the executive branch’s sphere of governmental power.125 Like them or hate them, qui tam lawsuits are probably a dragon that not even judicial review can slay.

119. Cf. GlaxoSmithKline, 2011 WL 2470595, at *1 n.4. 120. Pequignot, 640 F. Supp. 2d at 727. 121. Id.; see also U.S. Const. art. I, § 8, cl. 8. 122. Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 801 (2000) (Stevens, J., dissenting). 123. See generally Stauffer v. Brooks Bros., 619 F.3d 1321, at 1328 (Fed. Cir. 2010), aff’d 758 F.3d 1314 (Fed. Cir. 2014). 124. See generally Vt. Agency, 529 U.S. at 773. 125. Shizzle Pop, LLC v. Wham-O, Inc., No. CV 10-3491 PA (FFMx), 2010 WL 3063066, at *3 (C.D. Cal. Aug. 2, 2010).

COMMENT QUARANTINING AN ASYMPTOMATIC CARRIER: A REASONABLENESS STANDARD CHRISTOPHER MARKER* ABSTRACT Imagine a world in which an individual can travel from a distant country in under twenty-four hours and enter the United States while carrying a potential weapon of mass destruction. No, the individual is not carrying an explosive device or another form of weapon in the classic sense of the term. In fact, the individual does not even know that he or she is carrying this weapon, but how is this possible? Instead of purchasing or manufacturing the weapon, the individual simply becomes a carrier of it from exposure. The weapon being referred to here is a contagious disease and the individual is an asymptomatic carrier. Stated differently, the individual is carrying an infectious disease and is capable of spreading the same to people who come into contact with this individual without knowing it because the individual is not currently exhibiting any symptoms. This hypothetical is similar to the story of Thomas Eric Duncan, the first *

Christopher Marker is a third-year law student at Western Michigan University Thomas M. Cooley Law School. Prior to studying at WMU Cooley he obtained a B.S. from Saginaw Valley State University with a major in Health Science and minor in Political Science. While studying at WMU Cooley Christopher has earned the Certificate of Merit, an award given to the student who earns the top score in a class, in Constitutional Law I, Constitutional Law II, Evidence, Criminal Procedure, Scholarly Writing, Advanced Writing, Business Organizations, and Medical Malpractice. He was a member of the WMU Cooley Mock Trial National Team. He earned the Dawn Beachnau Award for the most significant contribution through leadership and dedication to the law review after serving on the WMU Cooley Law Review Board of Editors. This topic sparked his interest while taking Constitutional Law I and II at WMU Cooley shortly after the 2014 Ebola outbreak. Christopher recently presented this article to a wide range of experts in the fields of medicine and epidemiology at Western Michigan University’s Bioethics Conference: Preparing for the Unknown, in the Spring of 2016. Christopher would like to thank Beth Kramer and Tonya Krause-Phelan, his former professors at WMU Cooley, for the influence that they had on both this article and his professional development in general.

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individual to be diagnosed with Ebola in the United States during the 2014 outbreak. While Ebola is not contagious until an individual has begun to exhibit symptoms, the 2014 outbreak should serve as a foreshadowing for future outbreaks of contagious diseases that are capable of being spread while an individual is asymptomatic. The typical response to contagious diseases, which cannot be cured with a vaccine or through other forms of medical intervention, is quarantine. Quarantine involves the deprivation of an individual’s rights, which constitutionally requires some form of due process. But how much due process is necessary? Is a full trial warranted or something less? One issue in Duncan’s case is whether his due-process rights would have been violated during his initial hospital visit if he had been quarantined and tested to discover whether he was an asymptomatic carrier of Ebola. Classically, courts avoided this issue because of the due-process implications such action would likely cause. But quarantining asymptomatic disease carriers is an important issue today because these individuals can easily travel long distances during a disease’s incubation period, spreading the disease without showing any symptoms. It is possible, however, that if Duncan was quarantined during his initial hospital visit without a prior hearing, his due-process rights would not have been violated because quarantining him would have been reasonable in light of the totality of the circumstances. But the testing of an individual without his consent to decide whether he is an asymptomatic carrier also presents a substantive due-process issue requiring further debate. TABLE OF CONTENTS

I. THE THOMAS ERIC DUNCAN STORY .............................................. 391 II. EBOLA, QUARANTINE, AND DUE PROCESS, OH MY! .................... 393 a. Signs, Symptoms, Treatment, and Prevention of Ebola .... 393 b. Quarantine Law in the United States ................................ 394 1. State Power to Quarantine ........................................... 395 2. Federal Power to Quarantine ....................................... 395 c. Due Process ....................................................................... 397 1. Procedural Due Process ............................................... 397 2. Substantive Due Process ............................................. 400

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III.REASONABLE PROCEDURE FOR THE PRESERVATION OF PUBLIC HEALTH ................................................................................ 405 IV.BODILY INTEGRITY, A HARD ROW TO HOE .................................. 415 V.CONCLUSION................................................................................. 419 I. THE THOMAS ERIC DUNCAN STORY The story of Thomas Duncan is one that began with wonderful intentions but ended in tragedy.1 The 42-year-old Liberian national traveled to the United States to marry his fiancé and start a new life.2 Unfortunately, this never occurred because he died from Ebola.3 United States health officials believe that Duncan contracted the deadly virus from a pregnant neighbor in Liberia. The neighbor later died from symptoms of Ebola.4 Shortly after this contact, Duncan traveled to the United States.5 On arrival, he did not show any symptoms of Ebola.6 Four days after arriving in Dallas, Texas, Duncan became sick.7 The next day, he sought treatment at Texas Health Presbyterian Hospital.8 Instead of quarantining him, the hospital sent Duncan home with antibiotics.9 While away from the hospital, he probably had contact with hundreds of individuals.10 Three days later, an ambulance transported a critically ill Duncan back to the same 1. See Kelly Gilblom et al., Ebola Patient Came to U.S. to Marry Girlfriend, BLOOMBERG (Oct. 3, 2014), http://www.bloomberg.com/news/articles/2014-1003/ebola-patient-came-to-u-s-to-marry-girlfriend. 2. Id. 3. Norimitsu Onishi, U.S. Patient Aided Ebola Victim in Liberia, N.Y. TIMES (Oct. 1, 2014), http://www.nytimes.com/2014/10/02/us/after-ebola-case-in-dallashealth-officials-seek-those-who-had-contact-with-patient.html. 4. Id. 5. Timeline: Ebola in the USA, USA TODAY (Oct. 15, 2014), http://www.usatoday.com/story/news/nation/2014/10/01/ebola-ustimeline/16541935/. 6. Id. 7. Id. 8. Id. 9. Id. 10. See Greg Botelho, U.S. Ebola Patient: The Travels and Health Travails of Thomas Eric Duncan, CNN (Oct. 2, 2014), http://www.cnn.com/2014/10/01/ health/us-ebola-patient/.

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hospital.11 For the next two days, he endured numerous medical examinations by the Centers for Disease Control and Prevention (CDC),12 which confirmed that Duncan was the first person in the United States to have contracted Ebola in the 2014 outbreak.13 Eight days later, Thomas Eric Duncan was pronounced dead.14 One issue in Duncan’s case is whether his due-process rights would have been violated during his initial hospital visit if he had been quarantined15 and tested to discover whether he was an asymptomatic carrier16 of Ebola. Classically, courts avoided this issue because of the due-process implications such action would likely cause.17 But quarantining asymptomatic disease carriers is an important issue today because these individuals can easily travel long distances during a disease’s incubation period,18 spreading the disease without showing any symptoms. It is possible, however, that if Duncan was quarantined during his initial hospital visit without a prior hearing, his due-process rights would not have been violated because quarantining him would have been reasonable in light of the totality of the circumstances. But the testing of an individual without his consent to decide whether he is an asymptomatic carrier also presents a substantive due-process issue requiring further debate. This paper discusses the rights of individuals and the ability of the government to infringe on individual rights to protect the public health. Specifically, this paper contemplates these interests in the context of a future, wide-scale outbreak of an infectious disease in 11. Timeline: Ebola in the USA, supra note 5. 12. Id. 13. Id. 14. Id. 15. Quarantine is defined as “[t]he isolation of a person with a known or possible contagious disease.” Quarantine, STEDMAN’S MEDICAL DICTIONARY 1616 (28th ed. 2006). 16. Asymptomatic is defined as “[w]ithout symptoms, or producing no symptoms.” Asymptomatic, STEDMAN’S MEDICAL DICTIONARY 172 (28th ed. 2006). 17. See People ex rel. Barmore v. Robertson, 134 N.E. 815, 820 (Ill. 1922); see also O’Connor v. Donaldson, 422 U.S. 563, 574 (1975). 18. Incubation period is defined as “[t]he development, without sign or symptom, of an infection from the time the infectious agent gains entry until the appearance of the first signs or symptoms.” Incubation, STEDMAN’S MEDICAL DICTIONARY 962 (28th ed. 2006).

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light of the recent Ebola epidemic. Part I of this paper discusses a scenario that may result in a large-scale outbreak of an infectious disease, which serves as a foreshadowing of future outbreaks. Part II of this paper gives background information about Ebola and other infectious diseases, quarantine laws in the United States, and due process. Part III of this paper analyzes the government’s ability to quarantine an individual under a reasonable due-process standard. Part IV of this paper weighs an individual’s fundamental right to bodily integrity against the government’s interest in testing an individual for diseases. Lastly, part V of this paper recommends that a trial is not necessary before quarantining a possible asymptomatic individual when the decision to quarantine is reasonable under the circumstances. II. EBOLA, QUARANTINE, AND DUE PROCESS, OH MY! a. Signs, Symptoms, Treatment, and Prevention of Ebola Ebola hemorrhagic fever is an infectious disease that causes many symptoms, including the following: fever, severe headache, muscle pain, weakness, fatigue, diarrhea, vomiting, abdominal pain, and unexplained hemorrhaging (bleeding or bruising).19 The most recent outbreak of Ebola was in 1976 and caused more than 9,000 deaths, which is more than all previous Ebola outbreaks combined.20 Ebola is spread by the direct contact of blood or bodily fluids of an infected person with the mucus membranes or broken skin of a noninfected person.21 The incubation period of Ebola is between two and twenty-one days.22 During the incubation period, an infected person may have the disease and not show symptoms; this is known as being asymptomatic.23 Infected people are not contagious until they begin to display symptoms, and they continue to remain contagious as long as their bodily fluids contain the disease.24 19. Ebola: Signs and Symptoms, CTR. FOR DISEASE CONTROL & PREVENTION, http://www.cdc.gov/vhf/ebola/symptoms/ (last visited Mar. 7, 2014). 20. Ebola Virus Disease: Fact Sheet, WORLD HEALTH ORG., http:// www.who.int/mediacentre/factsheets/fs103/en/ (last visited Mar. 7, 2014). 21. Id. 22. Id. 23. Id. 24. See id.

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Diagnosis25 of Ebola is difficult because the symptoms are closely related to other infectious diseases like malaria, typhoid, and meningitis.26 Treatment of Ebola is also difficult because there is currently no vaccine available for human use.27 Therefore, treatment methods include the use of supportive care (intravenous fluids28 and monitoring vital signs29) and successful treatment depends on the responsiveness of the patient’s immune system.30 Quarantining infected individuals for the twenty-one day incubation period is a method used to prevent the spread of the disease.31 In fact, during the 2014 outbreak, many U.S. states imposed mandatory quarantines for healthcare and aid workers returning from infected areas of Africa.32 b. Quarantine Law in the United States Quarantine procedures originated in Europe and were brought to the United States by the early European Settlers.33 Quarantine law originated in a state governments’ police power. In the nineteenth century, as the federal government became increasingly involved in quarantine protocols,34 the dispute led to a federalism35 debate between the states and the federal government.36 25. Diagnosis is defined as “[t]he determination of the nature of a disease, injury, or congenital defect.” Diagnosis, STEDMAN’S MEDICAL DICTIONARY 531 (28th ed. 2006). 26. See Ebola Virus Disease: Fact Sheet, supra note 20. 27. See id. 28. Intravenous is defined as “[w]ithin a vein or veins.” Intravenous, STEDMAN’S MEDICAL DICTIONARY 994 (28th ed. 2006). Fluid is defined as “[c]onsisting of particles or distinct entities that can readily change, i.e., tending to move or capable of flowing.” Fluid, STEDMAN’S MEDICAL DICTIONARY 745 (28th ed. 2006). 29. Vital signs are defined as the “[d]etermination of temperature, pulse rate, rate of breathing, and level of blood pressure.” Vital signs, STEDMAN’S MEDICAL DICTIONARY 1772 (28th ed. 2006). 30. See Ebola: Treatment, CTR. FOR DISEASE CONTROL & PREVENTION, http://www.cdc.gov/vhf/ebola/treatment/ (last visited Mar. 7, 2014). 31. Jeffrey Drazen et al., Ebola and Quarantine, NEW ENG. J. MED. (Nov. 20, 2014), http://www.nejm.org/doi/full/10.1056/NEJMe1413139. 32. Id. 33. Leah Hammett, Protecting Children with AIDS Against Arbitrary Exclusion from School, 74 CAL. L. REV. 1373, 1377 (1986) (discussing the origins of quarantine law in the United States). 34. See Michelle Daubert, Pandemic Fears and Contemporary Quarantine: Protecting Liberty Through a Continuum of Due Process Rights, 54 BUFF. L. REV.

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1. State Power to Quarantine In 1984 a state’s power to regulate and implement quarantines was first articulated in Gibbons v. Odgen,37 which introduced a state’s police power. Under this police power, a state may pass laws in furtherance of the health, safety, welfare, and morals of that state.38 A state’s power to regulate and pass laws in furtherance of the health of its citizens includes the power to implement quarantines.39 In fact, the United States Supreme Court affirmed a state’s power to quarantine individuals within its borders in Compagnie Francaise de Navigation a Vapeur v. Board of Health of State of Louisiana.40 The Court explained that the main goal of quarantine laws passed by a state, under its police power, is the protection of the health of its citizens.41 While state governments can still quarantine individuals for the health of their citizens today, the federal government may implement quarantine measures to prevent the spread of disease across state lines and from foreign countries.42 2. Federal Power to Quarantine Unlike the police power of a state, the federal government’s power to quarantine stems from a federal statute,43 the Public Health and Welfare Act.44 Under the Act, the Surgeon General can implement regulations, including quarantines, that he or she deems necessary to stop the spread of infectious diseases across state and federal borders.45 Section 264(d) of the Act allows federal officials to 1299, 1304 (2007) (discussing the origins of quarantine law and the ensuing federalism debate). 35. Federalism is defined as “[t]he legal relationship and distribution of power between . . . the federal government and the state governments.” Federalism, BLACK’S LAW DICTIONARY 729 (10th ed. 2014). 36. See Daubert, supra note 34, at 1304 (discussing the origins of quarantine law and the ensuing federalism debate). 37. See generally 22 U.S. 1 (1824) (explaining that a state’s power to quarantine comes from its inherent police power). 38. See id. 39. Id. at 178. 40. See 186 U.S. 380, 398 (1902). 41. Id. at 387. 42. See Daubert, supra note 34, at 1304–05. 43. See id. 44. Public Health and Welfare Act, 42 U.S.C.A. § 264 (Westlaw 2016). 45. Id.

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detain or apprehend an individual who is reasonably believed to be infected with a disease at a qualifying stage.46 This ensures that the individual does not cross state lines.47 This detention or apprehension may only be imposed through reasonable measures and may only last for a reasonable amount of time.48 The Surgeon General is also permitted to prohibit an individual from entering the country, for a reasonable time period, if the individual has traveled from another country where an infectious disease is prevalent.49 In United States ex rel. Siegel v. Shinnick, the court discussed the power to quarantine an individual traveling to the United States from a foreign nation suffering from an outbreak of Smallpox.50 In Siegel, the individual was quarantined for the fourteen-day incubation period of Smallpox to determine whether she had contracted the disease while in Sweden.51 Under Siegel, it was determined a person exposed to a quarantinable, infectious disease may be quarantined if a health official considers the risk of transmission exceptionally serious in light of the risk to public health.52 But what diseases pose such a severe risk to the public that would require quarantine? The Act states that the President has the authority to issue and amend an executive order that lists quarantinable infectious diseases, including the following:53 SARS, Cholera, Diphtheria, Tuberculosis, Plague, Smallpox, Yellow Fever, and Viral Hemorrhagic Fevers like Ebola.54

46. Id. § 264(d)(2)(A)–(B) (defining qualifying stage as that time that a communicable disease reaches a communicable stage, or is in the precommunicable stage if the disease would likely cause a public health emergency if transmitted to others). 47. See Public Health and Welfare Act, 42 U.S.C.A. § 264(d)(1) (Westlaw 2016). 48. Id. 49. Id. § 265. 50. 219 F. Supp. 789, 791 (E.D.N.Y. 1963). 51. Id. 52. Id. 53. Public Health and Welfare Act, 42 U.S.C.A. § 264(b) (Westlaw 2016). 54. Exec. Order No. 13,295, 68 Fed. Reg. 17,255 (Apr. 4, 2003), amended by Exec. Order No. 13,375, 70 Fed. Reg. 17,299 (Apr. 1, 2005), and Exec. Order No. 13,674, 79 Fed. Reg. 45,671 (July 31, 2014).

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Effective quarantines require extensive cooperation between federal, state, and local governments.55 The Act allows the federal government to accept help in implementing quarantines from state and local governments that are willing and able to do so.56 But when the Director of the CDC deems efforts of state and local governments insufficient, the Act also allows the Director to take steps believed to be reasonably necessary to prevent the spread of disease.57 c. Due Process Due-process rights are generally broken down into two separate and distinct forms: procedural and substantive due process. Procedural due process is a protection enumerated in the United States Constitution, which encompasses the procedural requirements that the government must meet to deprive a person of life, liberty, or property.58 Substantive due process refers to the different forms of liberty, or fundamental rights, that every individual is afforded and the requirements the government must meet in order to infringe upon those rights.59 1. Procedural Due Process Procedural due-process requirements are grounded in the notion of fairness through the government’s implemented process and procedures.60 The usual requirements include notice and the opportunity to be heard,61 as well as a meaningful and timely hearing in front of a neutral decision-maker.62 But, in the context of quarantine, a full judicial hearing is not always necessary due to the potential public health risk that infectious diseases pose.63 In fact, in Parham v. J.R., the United States Supreme Court explained that decisions made by a trained medical professional should not always be substituted for the decisions of an untrained judge.64 55. 56. 57. 58. 59. 60. 61. 62. 63. 64.

See Daubert, supra note 34, at 1309. Public Health and Welfare Act § 243(a). 42 C.F.R. § 70.2 (2005). See U.S. CONST. amend. V; U.S. CONST. amend. XIV, § 1. See U.S. CONST. amend. V; U.S. CONST. amend. XIV, § 1. See Goldberg v. Kelly, 397 U.S. 254, 267 (1970). See id. (quoting Grannis v. Ordean, 234 U.S. 385, 394 (1914)). See id. (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). See Daubert, supra note 34, at 1317. Parham v. J.R., 442 U.S. 584, 609 (1979).

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Procedural requirements in the realm of quarantine law have evolved over the centuries. Earlier statutes passed under the police power provided little, if any, safeguards for infected individuals.65 In Haverty v. Bass, the Supreme Judicial Court of Maine stated, “[t]he individual right sinks in the necessity to provide for the public good.”66 Therefore, the court upheld a quarantine of an individual under a statute, which allowed a health official to quarantine individuals without any provisions such as a warrant, a notice, a hearing, or an appeal.67 Also, in Crayton v. Larabee, the quarantine of an individual who argued that she did not have Smallpox was upheld by the New York Court of Appeals because she may have been exposed to the disease.68 The statute authorizing quarantine lacked similar provisions as the statute in Haverty.69 In Crayton, the court held that the statute was valid only when health officials imposing the quarantine deemed it was reasonably necessary.70 The court reasoned that this was a sufficient procedural safeguard because it required health officials to analyze the facts of each case to decide whether quarantine was reasonably necessary.71 Because of this requirement, the quarantine was not arbitrary,72 so the statute sufficiently protected the individual’s due-process rights.73 Other courts have also held that the court has no reason to get involved in a dispute if a quarantine order is not arbitrary.74 Recent cases have involved statutes authorizing quarantine with more procedural due-process requirements.75 In State v. Snow, the 65. See Haverty v. Bass, 66 Me. 71 (1876); Crayton v. Larabee, 116 N.E. 355 (N.Y. 1917). 66. Haverty, 66 Me. at 74. 67. See id. 68. Crayton, 116 N.E. at 358–59. 69. See id. at 356–57. 70. See id. at 359. 71. See id. at 358. 72. Arbitrary is defined as a decision “founded on prejudice or preference rather than on reason or fact.” Arbitrary, BLACK’S LAW DICTIONARY 125 (10th ed. 2014). 73. See Crayton, 116 N.E. at 359. 74. See State v. Snow, 324 S.W.2d 532, 534 (Ark. 1959); Greene v. Edwards, 263 S.E.2d 661, 663 (W. Va. 1980); Bradley v. Crowel, 694 N.Y.S.2d 617, 618 (N.Y. Sup. Ct. 1999). 75. See Snow, 324 S.W.2d at 533; Greene, 263 S.E.2d at 663; Bradley, 694 N.Y.S.2d at 618.

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quarantine order of an individual suspected of having Tuberculosis was overturned because health officials did not comply with the quarantine statute.76 The statute required preliminary tests to confirm that the individual had Tuberculosis prior to the quarantine, but no tests were performed.77 The statute further required a hearing based on the test results and a judicial order to quarantine an individual; however, no such hearing or orders were reported in this case.78 In Greene v. Edwards, the Supreme Court of Appeals of West Virginia also overturned a quarantine order.79 The court ruled that the quarantine statute was unconstitutional because it failed to provide individuals infected with Tuberculosis sufficient procedural dueprocess safeguards.80 The court reasoned that quarantine was akin to an involuntary commitment of a mentally ill person because each has the same underlying rationale: protecting others.81 So the court found that the procedural due-process requirements included the right to adequate notice, counsel, ability to present evidence, a transcript of the proceeding, and proof by the state by clear and convincing evidence.82 Ultimately, the court discharged the quarantine order because the individual did not have adequate assistance of counsel at the required hearing.83 But the court did not consider whether a full judicial hearing was necessary prior to quarantine.84 In Bradley v. Crowell, a case involving an individual quarantined for Tuberculosis, the New York Supreme Court also reasoned that quarantine was similar to the civil commitment of a mentally ill individual.85 The court found that the quarantine of an individual, like the commitment of a mentally ill person, is a civil commitment.86 76. Snow, 324 S.W.2d at 533. 77. See id. at 534. 78. Id. at 533. 79. Greene, 263 S.E.2d at 663. 80. See id. 81. See id. 82. Id. 83. See id. 84. See id. 85. Bradley v. Crowel, 694 N.Y.S.2d 617, 618 (N.Y. Sup. Ct. 1999). 86. See id. at 618. Civil Commitment is defined as “[a] court-ordered commitment of a person who is ill, incompetent, drug-addicted, or the like, as contrasted with a criminal sentence.” Civil Commitment, BLACK’S LAW DICTIONARY 299 (10th ed. 2014).

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The United States Supreme Court has never decided what degree of procedural due process is necessary to comply with the Due Process Clause of the United States Constitution in situations involving quarantine.87 The holdings in Haverty and Crayton suggest that if a statute authorizing quarantine requires a health official to articulate reasonable grounds, then the quarantine is not arbitrary, so it comports with due process.88 And the holdings in Snow, Greene, and Bradley suggest that the procedural requirements for quarantining an individual should be similar to the requirements for civil commitments.89 Case law suggests that a hearing prior to quarantine is not necessary during emergencies based on a state’s power to act swiftly in similar situations.90 Regardless, many jurisdictions agree that quarantine is a form of civil commitment that involves involuntary confinement depriving an individual of liberty.91 Quarantines also require a substantive due process analysis because it affects an individual’s liberty and rights. 2. Substantive Due Process Substantive due process is the study of liberty interests, both enumerated92 and un-enumerated,93 and the level of scrutiny given to the government’s action in order to protect liberty interests.94 Under 87. See Daubert, supra note 34, at 1333. 88. See Haverty v. Bass, 66 Me. 71 (1876); Crayton v. Larabee, 116 N.E. 355, 359 (N.Y. 1917). 89. See State v. Snow, 324 S.W.2d 532, 534 (Ark. 1959); Greene v. Edwards, 263 S.E.2d 661, 663 (W. Va. 1980); Bradley, 694 N.Y.S.2d at 618. 90. See N. Am. Cold Storage Co. v. City of Chicago, 211 U.S. 306, 320 (1908) (holding that the state had the power to obtain and destroy food unfit for human consumption without a prior hearing); see also Brigham City v. Stuart, 547 U.S. 398, 406 (2006) (holding that the community caretaking exception permitted police officers to enter a home without a warrant in a situation where it was objectively reasonable to believe a person was in danger of harm). 91. See Addington v. Texas, 441 U.S. 418, 425 (1979). 92. Enumerated right is defined as “[a]n express right embodied in writing, as in statutes and case law.” Enumerated Right, BLACK’S LAW DICTIONARY 1518 (10th ed. 2014). 93. Un-enumerated right is defined as “[a] right inferred from another legal right that is expressly stated in a statute or at common law.” Un-Enumerated Right, BLACK’S LAW DICTIONARY 1518 (10th ed. 2014). 94. See Wong Wai v. Williamson, 103 F. 1 (C.C.D. Cal. 1900).

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this analysis, a court will examine the substance of the law and decide whether it infringes upon an individual’s due-process rights.95 Determining whether a government action violates substantive due process requires a two-step analysis. First, the legislation cannot be arbitrary.96 The government must express an interest (an end) to be achieved, and the means by which the government achieves this interest must be, at a minimum, rationally related to that interest.97 Wong Wai v. Williamson involved a statute that was not rationally related to the state’s interest in public health.98 The statute required an individual leaving an area in the city of San Francisco to be injected with a drug thought to treat the Bubonic Plague.99 The California Circuit Court held that this requirement was unconstitutional because the drug to be administered was deadly when injected into an individual who actually had the disease.100 The court reasoned that the interest of the state was to prevent the spread of the disease and protect the individual.101 The court then held that because the administration of this drug was actually deadly, it could not be deemed related to the state’s interest in protecting the individual.102 The second step in a substantive due-process analysis requires a court to determine what level of scrutiny (review)103 should be applied to the government’s action.104 The United States Supreme Court has held that the level of scrutiny applied in any given case depends on the nature of the liberty interest.105 In United States v. Carolene Products Co., the United States Supreme Court held that the rational-basis test applies when the individual right infringed upon is less than a fundamental right.106 Under the rational-basis test, the government action must be rationally related to a legitimate 95. See id. at 7 (relying on Blue v. Beach, 56 N.E. 89 (Ind. 1900)). 96. See id. (citing Blue, 56 N.E. 89 (describing the means-end test)). 97. See id. 98. See id. 99. Id. at 3. 100. See id. at 7. 101. See id. at 8. 102. See id. at 7. 103. “Review” is defined as “[c]onsideration, inspection, or reexamination of a subject or thing.” Review, BLACK’S LAW DICTIONARY 1514 (10th ed. 2014). 104. See United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938). 105. See id. 106. See id.

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government interest.107 This essentially ensures that the regulation is not arbitrary.108 At the other end of the spectrum is strict scrutiny, which is applied when the substance of a governmental action infringes upon an individual’s fundamental rights.109 Under a strict-scrutiny analysis, the government action must be narrowly tailored to achieve a compelling state interest before the government may infringe upon the fundamental rights of an individual.110 Strict scrutiny is the highest level of scrutiny, and in certain cases, state laws will fail a strict-scrutiny analysis. For example, when there are reasonable alternatives to achieve the interest (goal) without infringing upon a fundamental right, that law will not be considered narrowly tailored.111 Also, laws that are contrary to the stated government interest will not pass strict-scrutiny analysis because they are not narrowly tailored to meet the state’s compelling interest.112 Given the nature and degree of restraint imposed on the individual, when a state imposes quarantine it would appear that the implementation of the quarantine would be required to pass a strictscrutiny analysis. The strict-scrutiny analysis would seem to be the appropriate analysis because strict scrutiny is applied to government actions that infringe on an individual’s fundamental rights,113 and individuals have a fundamental right to be free from arbitrary restraint.114 Recognizing, however, that in Jacobson v. Massachusetts, the United States Supreme Court stated that individuals do not have an absolute right to be wholly free from restraint.115 In that case, the Court explained that individuals have 107. See id. at 152. 108. See id. 109. See Griswold v. Connecticut, 381 U.S. 479, 503–04 (1965) (White, J., concurring). 110. See id. 111. See id. at 503–06. 112. See Troxel v. Granville, 530 U.S. 57, 67 (2000). 113. See Reno v. Flores, 507 U.S. 292, 301–02 (1994). 114. See Jacobson v. Massachusetts, 197 U.S. 11, 28 (1905). 115. Id. at 26 (citations omitted) (“This court has more than once recognized it as a fundamental principle that ‘persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the state . . . .’”).

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historically and validly been subjected to restraint for public health reasons.116 Wong Wai demonstrates an example of a state public health measure that would not pass a strict-scrutiny analysis.117 In Wong Wai, the local resolution that required the vaccination of individuals who were leaving an area where the Bubonic Plague was suspected to be prevalent, or their quarantine, did not pass judicial scrutiny.118 There was no compelling state interest because the state failed to establish that the disease was, in fact, the Bubonic Plague.119 Also, the action by the state was not narrowly tailored; it was contrary to the state’s interest in public health because the drug to be administered was potentially life threatening.120 Jew Ho v. Williamson also demonstrates a governmental action, in the form of quarantine, which would not pass a strict-scrutiny analysis.121 In Jew Ho, a local ordinance was passed that quarantined twelve blocks of San Francisco in an effort to limit the spread of the Bubonic Plague.122 Health officials did not confirm that the disease was present in all twelve blocks, so the state failed to narrowly tailor the restriction.123 Also, this ordinance allowed individuals to interact with each other within the quarantined area.124 Individuals in the quarantine area included potentially infected individuals with access to non-infected individuals and the potential for continued spread of the disease.125 Therefore, the California Circuit Court held that the ordinance was not narrowly tailored to the state’s interest in preventing the spread of disease.126 But, it is feasible that some 116. Id. 117. See Wong Wai v. Williamson, 103 F. 1, 7 (C.C.D. Cal. 1900) (holding that the measure did not pass traditional, rational-basis review and, therefore, suggesting that it wouldn’t pass strict scrutiny). 118. Id. 119. See id. at 7. 120. See id. at 7–8. 121. See Jew Ho v. Williamson, 103 F. 10 (C.C.D. Cal 1900) (holding that the measure did not pass traditional, rational-basis review and, therefore, suggesting that it wouldn’t pass strict scrutiny). 122. Id. at 21–22. 123. See id. at 22–23. 124. Id. at 22. 125. Id. at 22–23. 126. See id.

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quarantine orders that are narrowly tailored to achieve a compelling state interest (public health) may pass a strict-scrutiny analysis.127 The quarantine of an individual with Ebola, or similar infectious disease, would likely pass a strict-scrutiny analysis because the government has a compelling interest in protecting public health.128 Also, the quarantine would likely be considered sufficiently narrowly tailored to this interest for two reasons. First, there is no known vaccine,129 so there are no reasonable alternatives to quarantining the individual.130 Next, quarantining an individual would not be contrary to the state’s interest in protecting public health.131 Quarantining an individual would be consistent with the state’s interest to protect against the spread of the disease132 Quarantining an individual to determine whether the individual is asymptomatic of a contagious disease would likely require a number of medical tests.133And if the individual did not consent to the medical care, this could infringe upon the individual’s due-process rights.134 In fact, the United States Supreme Court has held that individuals have a fundamental right to bodily integrity.135 In Cruzan v. Director, Missouri Department of Health, an individual had been in a car accident, which resulted in her being in a persistent vegetative state.136 Due to her condition, she was being kept alive by artificial nutrition and hydration machines.137 And the hospital staff

127. See id. at 20–21; Wong Wai v. Williamson, 103 F. 1, 6–7 (C.C.D. Cal. 1900); Jacobson v. Massachusetts, 197 U.S. 11, 25–26 (1905). 128. See Gibbons v. Ogden, 22 U.S. 1, 71–72 (1824). 129. See Ebola Virus Disease: Fact Sheet, supra note 20. 130. See City of Newark v. J.S., 652 A.2d 265, 278–79 (N.J. Super. Ct. Law Div. 1993) (holding that there was no reasonable alternative to quarantining an individual to stop the spread of an infectious disease); see also City of New York v. Antoinette R., 630 N.Y.S.2d 1008, 1011–12 (N.Y. Sup. Ct. 1995) (holding that there were no reasonable alternatives to quarantining the individual to ensure that the individual did not spread the disease to others). 131. See Jew Ho, 103 F. at 20–21. 132. See id. 133. See Ebola: Treatment, supra note 30, http://www.cdc.gov/mmwr/preview/ mmwrhtml/mm6405a3.htm. 134. See Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 281 (1990). 135. See id. at 277–79. 136. Id. at 265–66. 137. Id. at 267–68.

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refused to stop this treatment at her parents’ direction, without a court order, because doing so would result in death.138 The United States Supreme Court reasoned that the state had an interest in the protection and preservation of human life.139 The Court explained that an individual has a common-law right to informed consent140 prior to medical treatment, and without it, the physician has committed a battery.141 According to the Court, the doctrine of informed consent includes the right of a competent individual to refuse medical treatment.142 The Court cited prior decisions and held that individuals have a fundamental right to “bodily integrity.”143 The Court explained that this right encompasses the right to refuse medical treatment, based on the common-law doctrine of informed consent and the constitutional right to privacy.144 Because bodily integrity is a fundamental right, governmental action infringing on it must be narrowly tailored to achieve a compelling state interest under a strict-scrutiny analysis. III.

REASONABLE PROCEDURE FOR THE PRESERVATION OF PUBLIC HEALTH

As previously stated, the United States Supreme Court has never decided whether a full hearing is necessary when a quarantine order is implemented.145 But in the event of a large-scale outbreak of an infectious disease with a high mortality rate,146 like Ebola, individuals should be quarantined with little procedural safeguards. In an emergency, the overwhelming government interest in 138. Id. 139. See id. at 278–79. 140. Informed consent is defined as “[a] person’s agreement to allow something to happen, made with full knowledge of the risks involved and the alternatives.” Informed Consent, BLACK’S LAW DICTIONARY 368 (10th ed. 2014). 141. Cruzan, 497 U.S. at 269. 142. Id. at 277. 143. See id. at 269. 144. See id. at 270–77 (citing In re Quinlan, 355 A.2d 647 (1976); In re Storar, 420 N.E.2d 64 (N.Y. 1981); In re Conroy, 486 A.2d 1209 (N.J. 1985); In re Estate of Longeway, 549 N.E.2d 292 (Ill. 1989)). 145. See Daubert, supra note 34, at 1317. 146. Death rate is defined as “an estimate of the proportion of the population that dies during a specified period, usually a year . . . .” Death Rate, STEDMAN’S MEDICAL DICTIONARY 1639 (28th ed. 2006).

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protecting public health and preventing the spread of an infectious disease should outweigh the rights of an individual.147 Procedural due-process requirements are based on the notion of fairness, which in this context, can be interpreted to mean that the quarantine of an individual cannot be arbitrary.148 And a provision in the Public Health and Welfare Act, as well as similar state statutes, requires a health official to only quarantine an individual when it is reasonably necessary.149 Statutes that require a health official to meet this “reasonably necessary” requirement have been held to comport with procedural due-process requirements because an official must consider the facts and circumstances of each case to articulate this belief.150 This ensures that the quarantine is not arbitrary and is instead reasonable in light of the circumstances.151 A health official will likely consider the CDC exposure- and- contraction risk factors152 for a contagious disease to decide whether to quarantine an individual that may be asymptomatic. The CDC has articulated a number of risk factors for each known infectious disease, including Ebola.153 These risk factors are broken down into levels of risk, from high risk to no risk, and the stages in between.154 For example, an individual at the highest risk level of exposure of contracting Ebola has had direct contact with the blood 147. See Jew Ho v. Williamson, 103 F. 10, 20–21 (C.C.D. Cal. 1900); Wong Wai v. Williamson, 103 F. 1, 6–7 (C.C.D. Cal. 1900); Jacobson v. Massachusetts, 197 U.S. 11, 25–26 (1905). 148. See State v. Snow, 324 S.W.2d 532, 534 (Ark. 1959); Greene v. Edwards, 263 S.E.2d 661, 663 (W. Va. 1980); Bradley v. Crowel, 694 N.Y.S.2d 617, 618 (N.Y. Sup. Ct. 1999). 149. See Public Health and Welfare Act, 42 U.S.C.A. § 264 (Westlaw 2016); see also Snow, 324 S.W.2d at 752 (Ward, J., concurring) (stating that the court is empowered to isolate a person if there is “reasonable grounds” to believe that the person has active tuberculosis); Greene, 263 S.E.2d at 663; Bradley, 694 N.Y.S.2d at 618. 150. See Crayton v. Larabee, 116 N.E. 355, 358 (N.Y. 1917). 151. See id. 152. Risk Factor is defined as “a characteristic statistically associated with, although not necessarily causally related to, an increased risk of morbidity or mortality.” Risk Factor, STEDMAN’S MEDICAL DICTIONARY 697 (28th ed. 2006). 153. See Epidemiological Risk Factors to Consider when Evaluating a Person for Exposure to Ebola Virus, CTR. FOR DISEASE CONTROL, http:// www.cdc.gov/vhf/ebola/exposure/risk-factors-when-evaluating-person-forexposure.html (last visited Mar. 13, 2014). 154. See id.

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or bodily fluids of a symptomatic individual.155 Other high-risk factors include the following: processing blood or bodily fluids or items that have come into contact with them, direct contact with the deceased body of an infected individual, or living with or having direct contact with an infected individual displaying symptoms of the disease.156 Individuals with some risk level include those who may have traveled from areas where the disease is prevalent and have had close contact with infected individuals in a community setting, or direct contact with an individual while using approved healthcare-safety equipment designed to stop the spread of a disease from patient to physician.157 Individuals at a low-risk level have traveled from an infected area and not displayed any symptoms of the disease after the incubation period has ended, had brief contact with an infected individual at the early stages of the disease, spent a short amount of time in the same room as an infected individual, or traveled in an airplane with an individual at the early stages of the disease.158 Finally, individuals have no identifiable risk of exposure and contraction when the individual has had contact with an infected individual before they began to show symptoms of the disease, the individual has recently been in an area where the spread of the disease is not prevalent, or the individual has been in an airport in an infected area but has not had contact with an infected individual.159 Health officials will likely consider these risk factors when deciding whether to quarantine an individual with a heightened risk of exposure and contraction of a disease in order to quarantine a potential asymptomatic carrier.160 Contact with an asymptomatic carrier of Ebola does not present any heightened risk of exposure to the disease.161 But asymptomatic carriers are more likely to begin to show symptoms of a disease within the disease’s incubation period.162 And once a person begins to show symptoms of the 155. 156. 157. 158. 159. 160. 161. 162.

Id. Id. Id. Id. Id. See id. See id. See id.

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disease, individuals who come into contact with the infected person are at a heightened risk of contracting Ebola.163 Also, contact with an asymptomatic carrier of other diseases, like Typhoid, presents a higher risk of exposure and contraction to others.164 When a combination of risk factors are present, health officials should be permitted to quarantine an individual who may be an asymptomatic carrier of a disease to determine whether they are in fact a carrier.165 For Ebola, these would include those risk factors that present any risk of exposure and contraction.166 If a health official takes these factors into account in deciding whether quarantine is reasonably necessary, then the decision to quarantine will not be arbitrary.167 Therefore, the action would be reasonable and likely would comport with procedural due process.168 Taking the risk factors into account, emergency quarantine of an individual who may have been exposed, and is possibly an asymptomatic carrier, is likely permissible.169 The official could also consider the likelihood that an asymptomatic person will begin to show symptoms within the incubation period of the disease.170 This would present a high risk of exposure to others, which would endanger public health.171 In that case, not quarantining a potential asymptomatic carrier would likely be contrary to the government’s compelling interest in protecting public health.172 This view is consistent with the holding in Haverty, finding that the rights of an individual, in certain instances, are lower than the state’s interest in protecting the public’s health.173 163. See id. 164. See Jennifer Latson, Refusing Quarantine: Why Typhoid Mary Did It, TIME (Nov. 11, 2014), http://time.com/3563182/typhoid-mary (telling the story of an asymptomatic carrier of Typhoid who spread the disease for over 20 years without knowing that she was infected). 165. See Epidemiological Risk Factors to Consider when Evaluating a Person for Exposure to Ebola Virus, supra note 153. 166. See id. 167. See Crayton v. Larabee, 116 N.E. 355, 358 (N.Y. 1917). 168. See id. 169. See id. 170. See Epidemiological Risk Factors to Consider when Evaluating a Person for Exposure to Ebola Virus, supra note 153. 171. See id. 172. See id. 173. See Haverty v. Bass, 66 Me. 71, 73–74 (1876).

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Other areas of law also appear to support this view and reasoning behind quarantine laws–protecting the public from harm caused by individuals.174 In Brigham City v. Stuart, the United States Supreme Court decided that police officers can enter a home without a warrant under certain circumstances.175 In Stuart, officers saw four adults trying to restrain a drunk minor who was punching the adults inside a home.176 This resulted in substantial injury to one of the adults, so the officers entered the home without a warrant.177 The Court held that the entry into the home by the officers was objectively reasonable making it constitutional under the community-caretaking exception to the warrant requirement.178 The Court explained that generally, the Fourth Amendment of the United States Constitution requires officers to obtain a warrant before searching a home.179 It stated that without a warrant, a search is generally presumed unconstitutional.180 It further explained that the Fourth Amendment is grounded in reasonableness so the warrant requirement is subject to certain exceptions.181 One such exception is an exigent circumstance,182 which includes the communitycaretaking exception.183 The Court reasoned that under this exception to the warrant requirement, officers can enter an individual’s home if they have a reasonably objective belief that an occupant is under the threat of imminent harm.184 This exception is consistent with the Fourth Amendment because it is reasonable for officers to enter a home, during an emergency, without a warrant to prevent imminent

174. See Brigham City v. Stuart, 547 U.S. 398 (2006). 175. Id. 176. Id. 177. Id. 178. See id. at 406. 179. Id. at 403 (citing Groh v. Ramirez, 540 U.S. 551 (2004)). 180. Id. 181. See id. at 403 (citing Flippo v. West Virginia, 528 U.S. 11 (1999); Katz v. United States, 389 U.S. 347 (1967)). 182. See id. (citing Wayne v. United States, 318 F.2d 205 (D.C. Cir. 1963); Michigan v. Tyler, 436 U.S. 499 (1987); Mincey v. Arizona, 437 U.S. 385 (1978); Georgia v. Randolph, 547 U.S. 103 (2006)). 183. See id. 184. See id. at 406.

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harm.185 Therefore, the Court found that warrantless entry of the home was constitutional under the circumstances.186 Another area of law that allows for state action without prior procedural safeguards was discussed by the United States Supreme Court in North American Cold Storage Company v. City of Chicago187where a public health official sought to seize and destroy chicken being stored for food vendors that it claimed was unfit for human consumption.188 The state statute in this case allowed for this seizure and destruction without notice or a prior hearing.189 The Court held that the statute was constitutional because it was reasonable in light of the circumstances and the plaintiff could sue later over the factual issue of whether the chicken was actually unfit for human consumption (whether the seizure was valid).190 The Court indicated that the state legislature has the power to pass laws to protect public health,191 explaining that the right to seize and destroy the food came from the state’s power to protect public health.192 Next, the Court determined that it would be unreasonable to require notice and a prior hearing before the state action, given the risk that the food would be consumed while procedural safeguards were afforded.193 The Court found the state action reasonable, and thus comported with constitutional notions of procedural due process.194 The Stuart and North American Cold Storage Company cases show examples in other areas of law where the state can act with little procedural safeguards and still comport with procedural due process.195 In each case, the United States Supreme Court held that the underlying reason for the state action was valid because it was reasonable.196 Furthermore, the action taken was found appropriate because it would be unreasonable, due to the risk to public health and 185. 186. 187. 188. 189. 190. 191. 192. 193. 194. 195. 196.

See id. Id. at 407. See N. Am. Cold Storage Co. v. City of Chicago, 211 U.S. 306 (1908). See id. at 309. Id. See id. at 320. Id. Id. at 315. See id. at 320–21. See id. Id. Id.

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safety, to afford the individual’s certain procedural safeguards.197 Affording these safeguards would be contrary to the stated interest— the protection of the health and safety of the public.198 Like the state action in North American Cold Storage Company and Stuart, allowing a state to quarantine an individual to determine if he or she is an asymptomatic carrier of an infectious disease without a prior trial would likely be constitutional for four reasons.199 First, requiring the health official to take CDC risk factors for the disease into account would be objectively reasonable and not arbitrary.200 Second, like the purpose for the exceptions to normal procedural requirements, the purpose of this form of quarantine would be the protection of public health and safety.201 Third, under the reasoning in these cases, requiring a full hearing prior to quarantine of a possible carrier of a disease would be unreasonable because an asymptomatic carrier could infect multiple people before a prior hearing occurs.202 Finally, the quarantined medical examination to determine carrier status would likely result in treatment for the disease at an earlier stage, if the individual is in fact infected.203 And earlier treatment would be consistent with the state’s interest in protecting the health and safety of the public and the individual.204 The reasonableness standard discussed likely leads to a conclusion that a state has the authority to quarantine an individual to decide whether he or she is an asymptomatic carrier.205 But, a counter argument exists. Quarantine and the civil commitment of the mentally ill are both a form of civil involuntary commitment, and an individual facing quarantine should be afforded the same procedural safeguards as the mentally ill.206 In fact, courts have held that

197. Id. 198. Id. 199. Id. 200. Id. 201. Id. 202. Id. 203. Id. 204. Id. 205. Id. 206. See Greene v. Edwards, 263 S.E.2d 661 (W. Va. 1980); Bradley v. Crowell, 694 N.Y.S.2d 617 (N.Y. App. Div. 1999).

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quarantine, a form of involuntary civil commitment, is akin to the involuntary commitment of the mentally ill.207 As previously stated, in Greene v. Edwards, the West Virginia Supreme Court found that the quarantine of an individual thought to have Tuberculosis was unconstitutional because the individual was deprived of certain procedural safeguards.208 In Greene, the individual was thought to have Tuberculosis, and a state statute authorized a health official to quarantine an individual with the disease after certain procedural safeguards were met.209 These safeguards included the right to adequate notice, counsel, ability to present evidence, a transcript of the hearing, and the right to have clear and convincing evidence be the standard of proof.210 The court held that because counsel was appointed just before the hearing and could not adequately prepare for it, the commitment order must be discharged.211 The court reasoned that the involuntary commitment of a person thought to have an infectious disease is akin to the involuntary commitment of a person thought to be mentally ill.212 Because the underlying reason for each commitment is the protection of others, the court stated that the similarity required the same amount of procedural due process.213 The court found that the commitment of the plaintiff in this case was unconstitutional because he was not afforded effective assistance of counsel.214 Whether a full trial was required to quarantine an individual suspected of having Tuberculosis was not decided.215 Similarly, in Bradley v. Crowell,216 the statute authorizing quarantine of an individual with Tuberculosis did not specify what the standard of proof should be in a hearing to decide whether quarantine was necessary.217 The New York Supreme Court held that 207. 208. 209. 210. 211. 212. 213. 214. 215. 216. 217.

See Greene, 263 S.E.2d at 663; Bradley, 694 N.Y.S.2d at 618. Greene, 263 S.E.2d 661. Id. Id. at 663. See id. Id. See id. See id. See id. Bradley v. Crowell, 694 N.Y.S.2d 617 (N.Y. App. Div. 1999). Id. at 618.

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if a hearing is necessary, the standard of proof should be clear and convincing evidence.218 Like the court in Greene, the court in Bradley reasoned that quarantining an individual thought to have an infectious disease is similar to the involuntary commitment of the mentally ill.219 The court cited prior authority and stated that “clear and convincing evidence” is the standard of proof to be applied when the state seeks to commit a mentally ill individual.220 Finding that if a hearing is necessary, the court held that the burden of proof in quarantine cases should be clear and convincing evidence.221 Greene and Bradley stand for the proposition that the same procedural safeguards should be applied to quarantine and commitment of the mentally ill.222 Also, these cases agree that the standard of proof should be clear and convincing evidence.223 Under Greene and Bradley, one could argue that in order to quarantine an individual to determine whether the individual is an asymptomatic carrier, the state must comply with the procedural requirements set forth in civil commitment cases.224 Allowing a state to quarantine an individual who may be an asymptomatic carrier would likely comply with the procedural safeguards set forth in Greene and Bradley.225 Like the statute in Greene, the health official would have to make a reasonable determination that the person was infected with the disease.226 But the statute in Greene allowed for the quarantine of an individual after tests had been run to confirm that the individual was in fact infected with the disease.227 Therefore, a health official would be allowed to run tests on an individual to decide whether they were infected.228 Also, requiring a hearing and not quarantining an infectious individual as soon as possible would be contrary to the goal in both 218. See id. 219. Id. 220. See id. (quoting Addington v. Texas, 441 U.S. 418 (1979)). 221. See id. 222. Greene v. Edwards, 263 S.E.2d 661, 663 (W. Va. 1980); Bradley v. Crowell, 694 N.Y.S.2d 617 (N.Y. App. Div. 1999). 223. Greene, 263 S.E.2d 661; Bradley, 694 N.Y.S.2d 617. 224. See Bradley, 694 N.Y.S.2d 617. 225. See id. at 618. 226. See Greene, 263 S.E.2d 661. 227. Id. 228. See id.

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Greene and Bradley—protecting the public.229 By not quarantining a suspected carrier, the state runs the potential risk of a wide-scale outbreak.230 Also, in City of Newark v. J.S., the court stated that courts should defer to the judgment of health officials at these hearings, so long as the official’s judgment is reasonable and not arbitrary.231 Because courts should show great deference to the decisions of a medical professional, a full trial should not be necessary.232 If officials believe that a person is sick and needs to be tested for a disease, their decision should be respected as long as it is not arbitrary.233 In J.S., the court stated that the best way to guard against the risk of arbitrariness is to demand a fact-specific analysis by a health official in each case.234 Therefore, the fact-specific proposal is likely valid because it takes into account the CDC risk factors of spreading and contracting a disease in each case with an overall state goal of protecting public health.235 Quarantining an individual to determine whether he or she is an asymptomatic carrier, without prior procedural safeguards, would likely comply with procedural due process. This conclusion follows because courts have permitted governmental action in other areas of law with reduced procedure when the underlying purpose of the action was to protect the public and the action was objectively reasonable.236 For the action to be reasonable, it must not be arbitrary.237 For an action to not be arbitrary, an official must take into account the facts and circumstances of each case when deciding whether quarantine is necessary.238 Some of the facts and circumstances that a health official could consider in determining

229. Id.; Bradley, 694 N.Y.S.2d 617. 230. See Bradley, 694 N.Y.S.2d at 618. 231. City of Newark v. J.S., 652 A.2d 265, 274 (N.J. Super. Ct. Law Div. 1993). 232. Id. 233. Id. 234. Id. 235. See id. at 274–75. 236. See N. Am. Cold Storage Co. v. City of Chicago, 211 U.S. 306 (1908); Brigham City v. Stuart, 547 U.S. 398 (2006). 237. See Stuart, 547 U.S. 398. 238. See N. Am. Cold Storage Co., 211 U.S. 306; Stuart, 547 U.S. 398.

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whether a person may be an asymptomatic carrier in any given case are the CDC risk factors.239 The cases in favor of more procedure require medical testing of an individual prior to a hearing.240 And the purpose of the hearing is to determine whether the government action was arbitrary.241 However, the courts in these hearings should give due deference to the decisions of a medical professional.242 Where there is clear and convincing evidence that a person is an asymptomatic carrier based on the CDC risk factors, the health official should be able to immediately quarantine the person to protect the public.243 The rationale for this is that in the time that it takes to afford this person certain procedural safeguards, an asymptomatic carrier could potentially spread the disease to others, which would be contrary to a state’s overall goal.244 Furthermore, “the United States Supreme Court has never held that due process requires either a jury trial or proof beyond a reasonable doubt in the . . . context of the civil commitment of a mentally ill . . . person.”245 And the Court has explained that unlike a contagious disease, mental illness is not contagious.246 So the procedural safeguards required to commit a mentally ill person do not necessarily apply verbatim to the quarantine of an individual247 due to the dangers that a contagious disease presents to public health, which are not present in the realm of mental illness.248 IV.

BODILY INTEGRITY, A HARD ROW TO HOE

As mentioned, subjecting a person to nonconsensual testing to determine if they are an asymptomatic carrier also presents a substantive due-process issue. This is because of the fundamental 239. See Epidemiological Risk Factors to Consider when Evaluating a Person for Exposure to Ebola Virus, supra note 153. 240. Greene v. Edwards, 263 S.E.2d 661 (W. Va. 1980); Bradley v. Crowell, 694 N.Y.S.2d 617 (N.Y. App. Div. 1999). 241. See Bradley, 694 N.Y.S.2d at 618. 242. City of Newark v. J.S., 652 A.2d 265, 274 (N.J. Super. Ct. Law Div. 1993). 243. See id. 244. See Bradley, 694 N.Y.S.2d at 618 (citing Addington v. Texas, 441 U.S. 418 (1979)). 245. Levin v. Adalberto M., 67 Cal. Rptr. 3d 277, 283 (Cal. Ct. App. 2007). 246. Id. at 285. 247. See id. 248. See id.

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right to bodily integrity, recognized by the United States Supreme Court.249 However, the following case demonstrates a situation where a court might be willing to compel a patient to consent to medical treatment for the purpose of diagnosing whether he or she is contagious. Also, if the individual consented to the medical treatment, then his or her fundamental right to bodily integrity would not be infringed upon.250 In City of Newark v. J.S., the New Jersey Superior Court decided whether a hospital could compel an individual, known to have Tuberculosis, to be subjected to medical testing to ensure he was no longer contagious.251 The individual in this case was a known carrier of the disease and was to be held in quarantine until the disease was no longer at a contagious stage.252 The court held that “under the facts presented” the individual had the right to refuse the medical test that would confirm whether he was still contagious.253 The court noted, however, that he would remain in quarantine until he was found to no longer be contagious and a danger to others due to the disease.254 The court found that the quarantine of the patient passed strict scrutiny because it was the least restrictive form of treatment and prevention of spreading of the disease.255 Next, the court explained that patients have a right to refuse medical treatment based on the common-law doctrine of informed consent and the fundamental right to bodily integrity.256 The court reasoned that the test that would need to be performed might cause harm to the individual, and “no facts presented” justified subjecting him to this harm without his consent.257 However, his release from quarantine was dependent on a showing that he was no longer contagious, even if he could not be forced to undergo the medical tests.258 Finally, the court reasoned that 249. See Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 356–57 (1990). 250. See Cruzan, 497 U.S. 261; City of Newark v. J.S., 652 A.2d 265, 278 (N.J. Super. Ct. Law Div. 1993). 251. J.S., 652 A.2d at 278. 252. Id. 253. Id. 254. Id. at 279. 255. See id. at 278 (finding that hospital confinement of the individual was the least restrictive form of isolation under the circumstances). 256. See id. at 278–79 (citing In re Farrell, 529 A.2d 404 (1987)). 257. Id. at 278. 258. Id.

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if he did consent to these tests and the tests proved that he was no longer contagious, the state could no longer detain him.259 Like the quarantine implemented in J.S., quarantining an individual with Ebola, or a similar disease without a known cure, would likely pass strict scrutiny.260 This is because quarantining the individual would be the least restrictive measure of treatment and prevention of the disease, and it would be consistent with the compelling interest in protecting public health.261 A patient could likely be held in quarantine for the incubation period of the disease to ensure that they are no longer capable of spreading the disease, similar to the patient in J.S.262 Furthermore, it would likely be in the best interest of a suspected asymptomatic individual to allow for tests to be performed.263 Under J.S., if an individual could prove that he or she was not contagious, the release from quarantine could come before the end of the incubation period.264 Distinguished from the holding in J.S., the state may be able to compel a person to have the tests performed. The court in J.S. said, “no facts were shown to justify . . . ,” which could be interpreted to mean that under a different set of facts the court would consider a different outcome.265 The court used the fact that the procedure might be harmful to draw this distinction.266 This suggests that if the court found that a test to confirm contagiousness was not as harmful as the test proposed in J.S. the court may consider compelling an individual to have the test performed.267 But, as mentioned, individuals have a fundamental right to bodily integrity, which in the context of health and quarantine refers to a right to refuse medical treatment.268 This right presents a strong counter argument against permitting nonconsensual medical tests on possible asymptomatic carriers.269 In fact, the United States Supreme Court has stated that there is no right more carefully guarded than the 259. 260. 261. 262. 263. 264. 265. 266. 267. 268. 269.

Id. at 279. See id. See id. See id. Id. Id. See id. at 278. See id. See id. See Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 356–57 (1990). See id.

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right to be free from possession or control of his person.270 The Court has explained that this right may only be infringed upon by a showing of clear and convincing evidence of legal authority to do so.271 And the Court has stated that every competent person has the right to decide what should be done with his body.272 So, for example, any surgeon who performs an operation without consent has committed the intentional tort of battery.273 Therefore, patients must give informed consent before any form of medical treatment can be performed on them.274 This right to informed consent is encompassed in the fundamental right to bodily integrity, which means that an individual has the ability to control what enters his or her body.275 Further litigation is necessary to decide whether the state has the ability to force an individual to be subjected to a test that would confirm that they are infectious. In making this decision, the court should weigh the fundamental rights against the overall goal of quarantine law—the protection of public health.276 The court should also consider the fact that a person may be held in quarantine for the incubation period of the disease unless they show that he or she is not a public health risk.277 Another fact to consider is that the United States Supreme Court has recognized that people can be subjected to many forms of restraints and burdens for public health.278 The Court has also recognized that the fundamental rights of an individual, in times where great danger is present, may be subjected to reasonable regulations to protect the public health.279 As interpreted in J.S., the court may be willing to infringe upon this right when the test to determine whether someone is a carrier of a 270. Union Pac. R.R. v. Botsford, 141 U.S. 250, 251 (1891). 271. Id. 272. Cruzan, 497 U.S. at 269. 273. See id. 274. Id. at 269. 275. See id. at 269. 276. See Compagnie Francaise de Navigation a Vapeur v. Bd. of Health, 186 U.S. 380, 398 (1902). 277. See City of Newark v. J.S., 652 A.2d 265, 274 (N.J. Super. Ct. Law Div. 1993). 278. Jacobson v. Massachusetts, 197 U.S. 11, 26 (1905) (citing Railroad Co. v. Husen, 95 U.S. 465 (1877); Missouri v. Haber, 169 U.S. 613 (1898); Thorpe v. Rutland and Burlington R.R., 27 Vt. 140 (1855)). 279. Id. at 29.

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disease does not pose a risk to the patient.280 And a test like this would likely be found reasonable in light of the danger to the public posed by infectious diseases.281 Also, under J.S., quarantine of an asymptomatic carrier would likely pass strict scrutiny.282 This is especially true in situations where there is no other reasonable way to prevent the spread of the disease and protect the public.283 And, under J.S., the state can keep a person who may be infected in quarantine for the incubation period of a disease until proven not contagious.284 V.

CONCLUSION

Further litigation is necessary to decide whether subjecting an individual to medical exams without consent, in order to determine if the individual is an asymptomatic carrier, complies with substantive due process.285 However, quarantining a suspected asymptomatic carrier of a contagious disease without a prior hearing, like our Ebola patient, Thomas Duncan, would likely be reasonable and comply with procedural due-process requirements for three reasons. First, courts have reasoned that procedural due process is grounded in the notion of fairness.286 This means that the action of a health official must be reasonable in light of the circumstances and not arbitrary.287 Areas of law have exceptions to normal procedural requirements in certain situations when the circumstances of a case make it reasonable for the government to act swiftly.288 Therefore, if a health official considers the CDC risk factors in any given case to decide whether to quarantine an individual, the quarantine would be reasonable.289 280. See J.S., 652 A.2d at 274. 281. See id. 282. See id. 283. See id. 284. See id. at 278−79 (explaining that a “direct threat” is an exception to the ADA, which could make quarantining “necessary to avoid a significant risk to other persons, a risk that cannot be eliminated by a reasonable accommodation”). 285. See supra text accompanying notes 258–66, 275, 279–83. 286. See supra text accompanying notes 147–51, 160–61, 167–69, 170, 173, 225–26, 240–44. 287. See supra text accompanying notes 147–51, 160–61, 167–69, 170, 173, 225–26, 240–44. 288. See supra text accompanying notes 194–204. 289. See supra text accompanying notes 194–204, 207–44.

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Second, the cases that require the same procedural safeguards as the civil commitment of the mentally ill do not present a convincing counterargument.290 This is because the United States Supreme Court has never held that a full hearing is necessary to commit a mentally ill person.291 And, unlike a contagious disease, mental illness is not capable of being spread through person-to-person contact, which means that the same procedural safeguards are likely not required.292 Finally, the quarantine of an individual would likely pass strict scrutiny due to the compelling interest in public health.293 With diseases like Ebola, where there is no known vaccine, there would be no reasonable alternative to quarantining an individual for public safety.294 Therefore, if the government does not quarantine an individual, this non-action would be contrary to the goal of protecting the public.295

290. 291. 292. 293. 294. 295.

See supra text accompanying notes 225–30. See supra text accompanying notes 245–47. See supra text accompanying notes 245–47. See supra text accompanying notes 126–31, 253, 258–59. See supra text accompanying notes 126–31, 253, 258–59. See supra text accompanying notes 126–31, 253, 258–59.

COMMENT PICTURE THIS: A NEW LOOK AT VOTER PHOTO IDENTIFICATION DAVID BEAUMONT* “Elections are the heart of democracy. . . . [E]lections are a core public function upon which all other government responsibilities depend. If elections are defective, the entire democratic system is at risk.” – Jimmy Carter and James Baker.1 ABSTRACT The photo-ID requirement for voting is still being argued about in courts around the country. This Comment proposes a new look at photo IDs. The idea is to make use of modern technology, yet it does not require any new equipment. Those who oppose photo IDs to vote worry that it suppresses minority voters by placing an undue extra burden by requiring them to go get a photo ID, even if the state supplies it at no cost to the voter. The proposal outlined in this Comment would combine the trip to “go get” the photo ID and the appearance at the poll to vote so that there is no extra burden involved (to the voter). The voter is simply photographed at the polling place. The technology is already present in most jurisdictions. In the recent national elections, voters were “signing” the voter rolls on I-phones at the polling places. I-phones have cameras. Cameras take pictures. This Comment discusses the history of voting in America, the reasons for identifying voters at the polls, as well as the benefits and mechanisms needed in implementing this new proposal at little to no cost to taxpayers, and no cost at all to voters.

David Beaumont, J.D. Recently graduated from W. Mich. Univ. Cooley Law School, Riverview, Fla. 1. COMM’N FED. ELECTION REFORM, BUILDING CONFIDENCE IN U.S. ELECTIONS, at ii (2005) [hereinafter CARTER-BAKER REPORT].

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TABLE OF CONTENTS I. INTRODUCTION .............................................................................. 422 II. BACKGROUND .............................................................................. 425 A. History of Voter Registration and Eligibility Requirements ......................................................................... 426 B. Voter Identification to Cast a Vote in Person .................. 428 C. The Photo ID Requirement ............................................... 430 D. Two Schools of Thought About Photo-ID Requirements .. 432 1. Those Who Favor Photo-ID Requirements ................ 433 2. Those Who Oppose Photo-ID Requirements ............. 434 E. Election Reform ................................................................ 436 F. The Current Voting Process ............................................. 440 III. ANALYSIS ................................................................................... 442 A. Pros................................................................................... 447 B. Cons .................................................................................. 449 IV. CONCLUSION .............................................................................. 451 I. INTRODUCTION It is logical to require a photo-identification card (photo ID) for voting.2 It is an ordinary, common-sense way of verifying a person is eligible to vote.3 Yet states that try to enact laws to require photo ID to vote have run into unexpected opposition and allegations that these laws are veiled attempts to intentionally disenfranchise segments of the population.4 2. Press Release, Sonny Perdue, Former Governor, State of Ga., Regarding Voter ID Pre-clearance (Aug. 26, 2005), http://sonnyperdue.georgia.gov/00/press/ detail/0,2668,78006749_79688147_93275299,00.html. 3. Id. 4. E.g., Hannah Moulton Belec, Why Voter-ID Laws are Bad for Women, the Elderly, and Everyone, AM. ASS’N OF U. WOMEN (Sept. 4, 2012), http://www.aauw.org/2012/09/04/voter-id-laws/; Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 186–87 (2008) (concerning the rapidity with which the suit was filed: Promptly after the enactment of [photo-ID requirement], the Indiana Democratic Party and the Marion County Democratic Central Committee (Democrats) filed suit in the Federal District Court for the Southern District of Indiana against the state officials responsible for its enforcement, seeking a judgment

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Many states updated their voting procedures after the hotly contested presidential election of 2000.5 Some of these changes included photo-ID requirements for in-person voting.6 This change is being criticized by those who maintain that the requirements are discriminatory because they tend to suppress the minority vote.7 Opponents of photo-ID requirements argue that it is a burden to get a photo ID before Election Day, which disproportionately affects minorities and therefore violates the Equal Protection Clause of the Fourteenth Amendment.8 Proponents of photo ID regulations are surprised that anyone would object to requiring a person to show a photo ID to vote because, in today’s society, a photo ID is required for tasks as simple as writing checks, picking up prescriptions, or checking a child out of school early for a doctor appointment.9 Scholarly analysis of photo-ID requirements has primarily focused on whether the state’s interest in preventing fraud outweighs whatever burden those laws place on the right to vote.10 When a statute significantly interferes with a fundamental right, courts apply strict scrutiny,11 assessing how compelling the state’s interest is in the goal the law accomplishes and how narrowly tailored the law is

declaring the Voter ID Law invalid and enjoining its enforcement . . . on behalf of . . . elderly, disabled, poor, and minority voters. Id. 5. Jon Mills, Reforms in Florida After the 2000 Presidential Election, 13 U. FLA. J.L. & PUB. POL’Y 69, 75–76 (2001). 6. E.g., Crawford, 553 U.S. at 186. 7. E.g., Dana Liebelson, Voter ID Laws in Action: “Looks Like I Don’t Get to Vote Today” Thwarted Voters Take to Twitter to Describe How the New Laws Hampered Voting, Confused Poll Workers, and Inspired Some to Just Stay Home, MOTHER JONES (Nov. 6, 2013), http://www.motherjones.com/politics/2013/11/ voter-supression-id-election-day-virginia-texas. 8. So far, no photo-ID requirement has been struck down because it was an undue burden because the burden is offset by the legitimate government interest in ensuring integrity of voting. See Crawford, 553 U.S. at 187. 9. See Louis A. D’Amarino, Connecting the Dots: Forming A Uniform Voter Identification System Through Established Law, 8 U. MASS. L. REV. 404, 423–24 (2013); see also Michael J. Kasper, Where Are Your Papers? Photo Identification as a Prerequisite to Voting, 3 FLA. A & M U.L. REV. 1, 2 (2008). 10. Andrew N. DeLaney, Appearance Matters: Why the State Has an Interest in Preventing the Appearance of Voting Fraud, 83 N.Y.U. L. REV. 847, 850 (2008). 11. Kasper, supra note 9, at 11.

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toward achieving that goal.12 If the burden is less significant, the law need only meet the rational means test to pass constitutional muster.13 Voting is unique among the rights that are considered “fundamental” because it involves interacting directly with the government.14 “In Burdick v. Takushi, the Supreme Court held . . . due to its uniquely regulated nature courts need not apply strict scrutiny to all laws that somehow limit the right to vote.”15 The Court went on to explain that a reasonable regulation of elections will not undergo strict scrutiny.16 So far, photo-ID requirements have not been found to be a “substantial burden.”17 Thirty-four states have passed laws requiring voters to show some form of identification at the polls.18 Thirty-two of these voteridentification laws are in force.19 Laws in Arkansas and Pennsylvania have been struck down (not necessarily because of the burden).20 West Virginia’s law goes into effect in 2018.21 The debate about photo-ID requirements will continue until a reliable means of identifying voters is fashioned that will not provoke constitutional challenges. Photo-ID requirements that do not impose a burden on voters would be a step in the right direction. Modern technology may offer a solution. Instead of turning away otherwise-eligible voters without a photo ID, states that require voters to show a photo ID should photograph the voter on the spot 12. Strict Scrutiny, CORNELL U. L. SCH. (last updated June 2016), https:// www.law.cornell.edu/wex/strict_scrutiny. 13. Id. 14. See Burdick v. Takushi, 504 U.S. 428, 433 (1992) (“[G]overnment must play an active role . . . .”). 15. DeLaney, supra note 10, at 851–53 (referring to Burdick, 504 U.S. at 434). 16. Id. 17. See Crawford v. Marion Cty. Election Bd., 553 U.S. 181,198 (2008) (“[P]osing for a photograph surely does not qualify as a substantial burden on the right to vote.”). 18. Wendy Underhill, Voter Identification Requirements, NAT’L CONF. OF ST. LEGISLATURES (Oct. 6, 2015), http://www.ncsl.org/research/elections-andcampaigns/voter-id.aspx. 19. Id. 20. Id.; see also, e.g., Martin v. Kohls, 444 S.W.3d 844, 847 (Ark. 2014) (holding that proof-of-identity requirement was imposing a requirement beyond what the Arkansas Constitution recognized: residency, citizenship, adulthood, and voter registration). 21. Underhill, supra note 18.

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when they vote. There is no reason not to require a photo ID of voters because this solution creates no new or extra burden that disproportionately affects minorities. This Comment proposes a new alternative that may be applied within the existing system with little effort or expense. It will work better than either the current provisional-ballot procedure for voters who show up without a photo ID intending to vote or the recently enacted statutes that have sparked so much litigation.22 Part II of this Comment presents a history of voter registration and the need for identification of in-person voters; outlines current voting practices, including what happens to would-be voters who do not present photo IDs; and describes the two schools of thought about photo-ID requirements for voters. Part III explains how the new idea fits into existing election practices and how it reconciles the concerns of both proponents and opponents of photoID requirements. Part IV recaps how simple and low-cost this new idea is, how it will avoid constitutional challenges, and how it will save money and angst when the proposal is adopted. II. BACKGROUND “[T]he Constitution of the United States protects the right of all qualified citizens to vote, in state as well as in federal elections.”23 The Supreme Court has made it clear that “all qualified voters have a constitutionally protected right to vote and to have their votes counted.”24 States have adopted laws or constitutional provisions that imply, or expressly state, that voting in federal and state elections is a right.25 Courts have said that if there is voting then everyone must be treated equitably under the Fourteenth Amendment’s Equal

22. See Samuel P. Langholz, Fashioning a Constitutional Voter-Identification Requirement, 93 IOWA L. REV. 731, 756 (2008). 23. Jon M. Greenbaum & Jonah H. Goldman, Case Law on Photo Identification and Proof of Citizenship Requirements, in AMERICA VOTES! A GUIDE TO MODERN ELECTION LAW AND VOTING RIGHTS 212, 213 (Benjamin E. Griffith ed., Am. Bar Ass’n 2008) (quoting Reynolds v. Sims, 377 U.S. 533, 554 (1964)). 24. Reynolds, 377 U.S. at 554. 25. Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 665 (1966) (citing United States v. Classic, 313 U.S. 299, 314 (1941), which explained how Article I, § 2 of the Virginia Constitution confers the right to vote in federal elections to its citizens).

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Protection Clause.26 If a voter-registration law or identification requirement negatively impacts one segment of the population more than others it might disenfranchise (or “disfranchise”)27 that portion of the population.28 The debate about photo-ID requirements “has moved from legislative chambers to courtrooms around the nation, where opponents have challenged the constitutionality of the new laws.”29 So far the Supreme Court has upheld the photo-ID requirement. In Crawford v. Marion County Election Board, the Court found that the statute at issue did not “[impose] any ‘excessively burdensome requirements’ on any class of voters by requiring a photo ID.”30 Though the Court acknowledged that requiring a photo ID did impose “some burdens on voters that other methods of identification do not share,” the Indiana statute requiring voters to show a photo ID was allowed to stand because the burdens were “neither so serious nor so frequent” as to raise a constitutional issue.31 Decided before the most recently enacted photo ID requirement laws,32 Crawford is unlikely to be the last word in the debate over photo ID requirements and the possible disenfranchise of certain voters. A.

History of Voter Registration and Eligibility Requirements

In the terminology of the founding fathers, the word “franchise” referred to a privilege that could be granted or rescinded by the

26. See, e.g., id. (“[O]nce the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment.”). 27. William Simpson, The Primary Runoff: Racism’s Reprieve?, 65 N.C. L. REV. 359, 361 n.16 (1987) (explaining that to disfranchise and/or disenfranchise is to take the vote or the effect of voting away, which illustrates how using either word means the same thing, i.e., they are interchangeable, usually a court will use one or the other). 28. Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 187 (2008). 29. Langholz, supra note 22, at 733. 30. Crawford, 553 U.S. at 197 (quoting Storer v. Brown, 415 U.S. 724, 738 (1974)). 31. Id. 32. See id. at 181; History of Voter ID, NAT’L CONF. OF ST. LEGISLATURES (Apr. 18, 2016), http://www.ncsl.org/research/elections-and-campaigns/voter-idhistory.aspx.

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government in its own interest.33 To “disfranchise” was to limit the franchise.34 In the context of this topic, franchise refers to voting. As the nation grew, authorities saw reasons to restrict the franchise.35 There were different approaches to restricting the franchise.36 Some jurisdictions required the voter to own property in order to qualify to vote.37 Others required a certain length of residency in the jurisdiction before a person could vote.38 Some jurisdictions required naturalized citizens to produce their naturalization papers to election officials before being allowed to register to vote.39 In the early nineteenth century, the United States was growing rapidly.40 Many people immigrated to the United States during this time.41 “[C]oncern about transients—particularly foreign-born— sparked interest in the creation of formal systems of voter registration.”42 Voter registration was a way to restrict the franchise to eligible citizens.43 Voter registration allows authorities to verify voter eligibility in advance.44 The time interval between the deadline to register and Election Day is used to verify that the facts provided on the registrations are valid.45 Massachusetts adopted a voter-registration system in 1801.46 By the 1830s, the idea of voter registration was catching on.47 There were challenges to these first registration laws, but voter registration 33. ALEXANDER KEYSSAR, THE RIGHT TO VOTE: THE CONTESTED HISTORY OF DEMOCRACY IN THE UNITED STATES 8 (rev. ed. 2009). 34. See id. 35. Neil P. Kelly, Lessening Cumulative Burdens on the Right to Vote: A Legislative Response to Crawford v. Marion County Election Board, 19 CORNELL J.L. & PUB. POL’Y 243, 248–49 (2009). 36. See, e.g., Richardson v. Ramirez, 418 U.S. 24, 54 (1974) (contrasting permissible disfranchisement, such as against felons, and invalid attempts by states to disfranchise certain classes of voters). 37. KEYSSAR, supra note 33, at 17–20. 38. See Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 189; see also KEYSSAR, supra note 33, at 147–48. 39. KEYSSAR, supra note 33, at 111. 40. Id. at 22. 41. See id. at 97–98. 42. Id. at 52. 43. Id. 44. See Sherman v. United States, 155 U.S. 673, 683 (1895). 45. See KEYSSAR, supra note 33, at 123. 46. Id. at 52. 47. Id.

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was upheld because it did not impose any new requirements.48 Voter registration, it was said, was “calculated to promote peace, order and celerity in the conduct of elections”49 and facilitate exercising the franchise by eligible voters.50 States set their own deadlines for voter registration.51 Requirements for voting eligibility and deadlines for registration have varied among different jurisdictions over the years.52 “In the early 1970s, the Supreme Court struck down a ninety day registration deadline as being too long in Dunn v. Blumstein, while it separately upheld a fifty day deadline in Burns v. Fortson.”53 The current Federal requirement for voting eligibility, and therefore voter registration, is that a person must be a citizen who is at least eighteen years of age (by election day) and has not been convicted of a felony.54 In Florida, a voter must register a month before the election in which he or she intends to vote.55 B.

Voter Identification to Cast a Vote in Person

In the old days and in small towns where everyone knows each other, voters did not need to identify themselves. But in the United States, where 40 million people move each year, and in urban areas where some people do not even know the people living in

48. 49. 50. 51.

Capen v. Foster, 29 Mass. 485, 497–98 (1832). Id. Id. See generally 50 States Statutory Surveys: Election Law: Voting, THOMPSON REUTERS, Dec. 2015, 2016 WL 0050 SURVEYS 9. 52. See KEYSSAR, supra note 33, at 103–04. 53. Pedro De Oliveira, Same Day Voter Registration: Post-Crawford Reform to Address the Growing Burdens on Lower-Income Voters, 16 GEO. J. ON POVERTY L. & POL’Y 345 (2009). 54. U.S. CONST. amend. XXVI, § 1 (cannot deny vote to citizens at least 18 years of age); U.S. CONST. amend. XIV, § 2 (criminals may be excluded from franchise); Richardson v. Ramirez, 418 U.S. 24, 46 (1974) (asserting that states may disfranchise ex-felons). 55. FLA. STAT. ANN. § 97.055 (Westlaw 2016) (the “books” are closed on the 29th day before the election).

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their own apartment building let alone their precinct, some form of identification is needed.56 In order to cast a vote in person, a voter must demonstrate that he or she is the person registered on the voter rolls.57 This is to ensure that each registered voter gets to vote and that ineligible voters are prohibited.58 It is the proverbial “one voter—one vote” principle.59 Verifying voter eligibility is not only an American issue. Iraq implemented measures to ensure that no one voted more than once in their first elections after the fall of Saddam Hussein.60 Each voter was required to dip his or her right index finger (that is, if he or she had a right index finger) in indelible ink.61 No one could vote whose finger was already stained. This was supposed to provide confidence in the election after forty years of dictator-ruled elections in which the dictator won every election with one-hundred percent of the votes.62 Malaysia63 and Egypt are examples of other countries that have used ink to prevent voter fraud.64 “[I]nterest in orderly administration and accurate recordkeeping provides a sufficient justification for 56. Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 193–94 (quoting the CARTER-BAKER REPORT (supra note 1)). 57. Indiana Democratic Party v. Rokita, 458 F. Supp. 2d 775, 786 (S.D. Ind. 2006), aff’d sub nom. Crawford v. Marion Cty. Election Bd., 472 F.3d 949 (7th Cir. 2007), aff’d, 553 U.S. 181 (2008). 58. Gray v. Sanders, 372 U.S. 368, 374 (1963) (Stewart, J., concurring) (“every qualified person was entitled to one vote . . . .”). 59. Id. at 381 (“The conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing—one person, one vote.”). 60. Christopher Woolf & Joyce Hackel, The Purple Finger Remains a Hopeful Symbol in Iraq, as Iraqis Go to the Poll, PRI, (Apr. 30, 2014, 8:00 PM), http://www.pri.org/stories/2014-04-30/purple-finger-remains-hopeful-symbol-iraqiraqis-go-polls. 61. Id. 62. Saddam Scores 100% in Leadership Ballot, GUARDIAN (Oct. 16, 2002, 10:15 AM), https://www.theguardian.com/world/2002/oct/16/iraq. 63. Election Ink Under Scrutiny in Malaysia, ALJAZEERA (May 1, 2013), http://www.aljazeera.com/news/asia-pacific/2013/05/20135112390608902.html. 64. See Official Results of Egyptian Parliamentary Polls’ 1st Stage to Be Announced Thursday, AHRAM ONLINE (Oct. 19, 2015), http:// english.ahram.org.eg/NewsContent/1/164/161353/Egypt/Egypt-Elections-/Officialresults-of-Egyptian-parliamntry-polls-st-.aspx (showing a photo with a caption that reads: “[a]n Egyptian voter dips her finger in ink after voting during the first round of parliamentary elections, at a polling station in Giza, Cairo, Egypt.”).

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carefully identifying all voters participating in the election process.”65 In 1950, South Carolina became the first state to require documentation to identify voters at the polls.66 A photo ID was not required; the voter simply had to present some document that included that voter’s name.67 The next state to require documentation was Hawaii in 1970.68 Texas followed in 1971, then Florida in 1977, and Alaska in 1980.69 By 2000, there were fourteen states requiring documentation; some of them requiring photos.70 “States employ different methods of identifying eligible voters at the polls. Some merely check off the names of registered voters who identify themselves . . . [, and] some require voters to sign their names so their signatures can be compared with those on file.”71 A number of recently enacted statutes are stricter than the laws they replace.72 “Before 2011, only two states in the country—Indiana and Georgia—required government-issued photo identification in order to cast a ballot at the polls . . . .”73 Most states allow legitimate citizens the option to prove their identity through means such as signature comparisons, sworn affidavits, or utility bills.74 C.

The Photo ID Requirement

In 2002, former President Jimmy Carter, a Democrat, and former Secretary of State James Baker, a Republican, co-chaired a bipartisan commission tasked with drafting recommendations for election reforms.75 “[T]he Carter–Baker Report observed [that] the ‘electoral 65. Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 196 (2008). 66. History of Voter ID, NAT’L CONF. OF ST. LEGISLATURES (Apr. 18, 2016), http://www.ncsl.org/research/elections-and-campaigns/voter-id-history.aspx. 67. Id. 68. Id. 69. Id. 70. Id. 71. Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 197 (2008). 72. See, e.g., IND. CODE ANN. § 3-11-8-25.1 (Westlaw 2016) (adding a requirement that the voter show proof of identification in most instances). 73. Justin Levitt, Election Deform: The Pursuit of Unwarranted Electoral Regulation, 11 ELECTION L.J. 97, 103 (2012), https://papers.ssrn.com/sol3/ Delivery.cfm/SSRN_ID2464395_code698321.pdf?abstractid=2017228&mirid 1&type=2. 74. Id. 75. See generally CARTER-BAKER REPORT, supra note 1.

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system cannot inspire public confidence if no safeguards exist to deter or detect fraud or to confirm the identity of voters.’”76 To assess the importance of photo ID, consider this: what if no identification at all were required to vote? The vote of minority citizens would not be suppressed77 because no votes are suppressed at all—not even ineligible votes. How would anyone know whose votes were being counted? Enemies of the people of the jurisdiction could vote, and no one would be the wiser. If not an enemy, maybe a rival’s or an opponent’s operatives could infiltrate the pool of voters to affect the outcome. The integrity of every election could be questioned if voters were not required to identify themselves before casting a ballot.78 The one-person-one-vote rule would not mean very much. Where photo IDs are required, it is less likely that illegal or ineligible votes are cast.79 People have more confidence in elections when they know voters have to prove eligibility to cast a vote.80 It is always possible that someone with the will to circumvent the law can find a way to do so. But think about this: it often takes a photo ID to buy alcoholic beverages.81 Some people try to buy alcohol with a fake ID.82 Some get away with it.83 We still often require the ID because it makes sense. It may not stop all fraud, but it stops some.84

76. Crawford, 553 U.S. at 197 (quoting CARTER-BAKER REPORT, supra note 1, at 18). 77. See Crawford, 553 U.S. at 221 n.25 (Souter, J., dissenting) (noting that voter-ID laws impact minorities on a disproportionate basis). 78. See id. at 197. 79. See Hans A. von Spakovsky, Protecting the Integrity of the Election Process, 11 ELECTION L.J. 90, 91 (2012). 80. See Crawford, 553 U.S. at 197. 81. See, e.g., FLA. STAT. ANN. § 562.11(1)(d)(3) (Westlaw 2016) (granting a complete defense to a person who serves alcoholic beverages to another who is under 21 years of age if that person diligently inspects that person’s identification in good faith). Thus, it is no surprise that retailers often require prospective purchasers to produce photo identification for inspection. 82. See, e.g., Tiffany Walden & Kevin P. Connolly, UFC Cops, Orange Deputies Team Up to Tackle Fake ID, Underage Drinking Problem, ORLANDO SENTINEL (Dec. 28, 2015), http://www.orlandosentinel.com/news/breakingnews/os-fake-ids-underage-drinking-ucf-20151228-story.html. 83. See id. 84. See, e.g., Lindsey Reiser, Inside the Liquor Department’s Covert Underage Buyer Operation, CBS 5 (Apr. 8, 2013) (finding that nearly one-third of locations failed to ID underage patrons, but suggesting that two-thirds passed the test),

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Generally, most IDs are valid, and most people buying beer are over the age of 21.85 Similarly with elections, it is not a perfect system, but it is a reasonable solution.86 Requiring a photo ID to vote in person may cause some eligible voters to be left out: either the eligible, would-be voter who does not have a photo ID with her when she arrives at the poll, or the person who does not go to the polling place because they know they do not have an ID (because it was lost, stolen, destroyed, misplaced, etc.) and do not want to try to vote without one.87 Though requiring a photo ID is calculated to bar ineligible voting, a collateral effect is that some eligible votes are deterred too.88 Preventing actual voting malfeasance is the obvious and stated reason behind requiring voters to identify themselves when voting in person at the polls, but another, independent purpose is to prevent the appearance of corruption in elections.89 Faith in the system encourages citizens’ “participation in the democratic process.”90 D.

Two Schools of Thought About Photo-ID Requirements

There are two schools of thought about voter photo-ID requirements. One school of thought looks at photo IDs as a necessary element to ensure valid elections.91 The other sees photo IDs as an unnecessary measure that suppresses voter turnout.92 Voting-rights cases raise two competing interests, the one side being the fundamental right to vote . . . [and] http://www.cbs5az.com/story/21791361/inside-the-liquor-departments-covertunderage-buyer-operation. 85. See Prevalence of Underage Drinking, JOHN HOPKINS BLOOMBERG SCH. OF PUB. HEALTH (Oct. 15, 2016), http://www.camy.org/resources/fact-sheets /prevalence-of-underage-drinking (noting that between eleven and twenty percent of the alcohol market consists of underage drinkers and that only about nine percent of those purchased it themselves). 86. See Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 209 (Scalia, J., concurring). 87. Id. at 197–98. 88. See generally id. 89. See id. 90. Id. 91. See id. at 210 (Souter, J., dissenting). 92. See id. (discussing the interest in the context of a citizen’s fundamental right to vote).

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the “[c]ommon sense, as well as constitutional law . . . that government must play an active role in structuring elections; ‘as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.’”93 1.

Those Who Favor Photo-ID Requirements

Those who favor photo IDs seek to exclude ineligible voters.94 Would-be (want-to-be) voters who are ineligible include the following: non-citizens, voters who have already voted elsewhere or as an absentee, persons who are impersonating an eligible voter to vote somewhere they should not,95 persons who are claiming they have the right to vote but who do not—such as felons who have not had their civil rights restored, and persons trying to commit voter fraud, among others.96 The National Voter Registration Act of 1993 (NVRA or “MotorVoter Law”) made voter registration available at any location issuing driver’s licenses.97 The Motor-Voter Law not only expanded the opportunity for citizens to register to vote, it made it more difficult for states to purge their voter rolls of ineligible (or deceased) voters.98 Those who favor photo-ID requirements seek to ensure no one is showing up claiming to be registered under one of these un-purged names and illicitly casting a ballot.99 With the advent of early voting, voters are capable of voting more than they should.100 A voter could theoretically vote absentee, vote in 93. Id. (quoting Burdick v. Takushi, 504 U.S. 428, 433 (1992)). 94. See Ohio Republican Party v. Brunner, 582 F. Supp. 2d 957, 963 (S.D. Ohio 2008) (to “ensure that the individuals casting the ballots are eligible voters, thereby preventing voter disenfranchisement through dilution.”). 95. See generally James Slater & Bob Watt, In Defense of Democracy: The Criminalization of Impersonation, 14 ELECTION L.J. 165, 170 (2015). 96. See Brunner, 582 F. Supp. 2d at 966. 97. National Voting Rights Act (NVRA), 52 U.S.C.A. § 20504 (Westlaw 2016). 98. Crawford, 553 U.S. at 192. 99. Id. at 192–93. 100. See CENTURY FOUND. WORKING GRP. ON STATE IMPLEMENTATION OF ELECTION REFORM, BALANCING ACCESS AND INTEGRITY 14 (2005) [hereinafter BALANCING ACCESS AND INTEGRITY].

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person in early voting, and vote on Election Day.101 Ultimately, the goal of requiring photo IDs is to ensure the integrity102 of the election by ensuring that each eligible voter votes in the proper precinct and votes no more than once.103 2.

Those Who Oppose Photo-ID Requirements

Opponents of photo IDs want to expand the voter pool to include everyone (who is eligible, of course) because it is a precious gift to live in a free country and govern ourselves through democratic elections and a republican (representative/federal) government.104 They want to enfranchise—not disenfranchise! They are disenchanted with election reforms that might suppress a portion of the would-be electorate.105 Opponents of photo-ID requirements believe the requirements are a “not-too-thinly-veiled attempt to discourage election-day turnout by certain folks . . . .”106 Opponents of photo-ID requirements maintain that many people would not be able to vote if a photo ID were required because many people cannot afford a photo ID.107 They point out that minorities make up a disproportionate number of “non-afforders.”108 If a law negatively impacts a minority group disproportionately with regard to a fundamental right, then this law violates the Equal Protection Clause of the Fourteenth Amendment.109 Opponents of photo-ID requirements believe that the laws requiring photo IDs are

101. See Crawford, 553 U.S. at 185. 102. See id. at 193 (“[P]hoto identification is one effective method of establishing a voter’s qualification to vote . . . integrity of elections is enhanced . . . .”). 103. Id. at 196. 104. See Wesberry v. Sanders, 376 U.S. 1, 17 (1964) (“No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live.”). 105. See BALANCING ACCESS AND INTEGRITY, supra note 100. 106. Crawford, 553 U.S. at 188. 107. Id. at 215 (Souter, J., dissenting) (describing the height of the hurdle the burden of traveling the round-trip to get an ID seems to be). 108. Mike Baker, Many Voters May Be Deterred by Tough ID Laws, HUFFINGTON POST (July 9, 2012), http://www.huffingtonpost.com/huff-wires/ 20120709/us-voter-id-laws/. 109. See Crawford, 553 U.S. at 189.

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unconstitutional because they burden members of minority groups more than they burden non-minority groups.110 In response to this claim, states have offered to make the government-issued photo ID available at no charge if a citizen cannot afford it.111 Opponents of voter photo-ID requirements argue that this does not alleviate the unfair burden because the would-be voter still has to go get the ID, which is a burden in itself because some cannot afford transportation to go get the ID.112 Thus, the argument continues, the photo-ID requirement makes an otherwise-eligible, would-be voter not able to actually be a voter.113 Opponents of photo IDs compare the photo-ID requirement to the “Jim Crow” laws of the past,114 which were enacted by Democrats once they regained power, in response to “reconstruction”115 which, after the Civil War, had been imposed by the Republicans to favor African Americans. Jim Crow laws made it difficult for African Americans to register and vote.116 Some of these Jim Crow laws required a person to own property to vote in the district.117 Others created poll taxes.118 Some required literacy tests voters had to pass before being allowed to cast a ballot.119 These laws impacted African 110. Id. 111. See, e.g., id. at 186. The case is about Indiana law but it illustrates what is generally going on in the states that have adopted photo-ID requirements. 112. See, e.g., Indiana Democratic Party v. Rokita, 458 F. Supp. 2d 792 (referring to travel costs as a burden endured attempting to get a driver license). 113. See Keesha Gaskins & Sundeep Iyer, The Challenge of Obtaining Voter Identification, BRENNAN CTR. FOR JUST. N.Y.U. 2, 2–4 (2012). 114. Jack Citrin, Donald P. Green, & Morris Levy, The Effects of Voter Id Notification on Voter Turnout: Results from A Large-Scale Field Experiment, 13 ELECTION L.J. 228 (2014). 115. Reconstruction, ENCYCLOPEDIA BRITANNICA (2015) (explaining that “in U.S. history, the period (1865–77) that followed the American Civil War and during which attempts were made to redress the inequities of slavery and its political, social, and economic legacy and to solve the problems arising from the readmission to the Union of the 11 states that had seceded at or before the outbreak of war.”). 116. Shelby Cty. v. Holder, 133 S. Ct. 2612, 2628 (2013). 117. E.g., Hill v. Stone, 421 U.S. 289, 291 (1975). 118. E.g., Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 664 (1966). 119. Shelby Cty., 133 S. Ct. at 2619 (recounting that in the 1890s, Alabama, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, and Virginia began to enact literacy tests for voter registration and to employ other methods designed to prevent African Americans from voting.).

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American citizens disproportionately because many had been slaves, thus not able to get an education or save money to afford extra taxes or obtain real property.120 The “Jim Crow laws” have been ruled unconstitutional and were eventually outlawed by the Voting Rights Act of 1965.121 “The Voting Rights Act was designed by Congress to banish the blight of racial discrimination in voting, which has corrupted the electoral process in parts of our country for nearly a century.”122 E.

Election Reform

The 2000 election shook the nation’s confidence in presidential elections.123 Besides the long, drawn-out court case that finally decided the election, there were multiple claims of different kinds of vote-related mischief.124 In the 2000 election, there were claims that groups of votes were not counted.125 The media became part of the election because they announced results before voting closed126— thus conceivably suppressing votes.127 There were claims that votes were cast for the wrong candidate due to difficulties in understanding

120. VALDIMER O. KEY, JR., SOUTHERN POLITICS IN STATE AND NATION 555 (1949) (new ed. 2011); see, e.g., Louisiana v. United States, 380 U.S. 145, 148 (1965) (referring to Louisiana’s “interpretation test,” which required would-be voters to reasonably interpret a clause in the constitution before they could vote). 121. See Thornburg v. Gingles, 478 U.S. 30, 68 (1986); see also Voting Rights Act, 52 U.S.C.A. § 10301 (Westlaw 2016) (formerly cited as 42 U.S.C. § 1973). 122. South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966). 123. See Bush v. Gore, 531 U.S. 157 (2000). 124. See The Disputed Election of 2000, DIGITAL HISTORY (2012), http://www.digitalhistory.uh.edu/disp_textbook_print.cfm?smtid=2&psid=3377. 125. See Greg Palas, 1 Million Black Votes Didn’t Count in the 2000 Presidential Election / It’s not Too Hard to get Your Vote Lost—If Some Politicians Want it to Be Lost, SF GATE (June 20, 2004), http:// www.sfgate.com/opinion/article/1-million-black-votes-didn-t-count-in-the-20002747895.php. 126. See David Bauder, Networks Try to Explain Blown Call, WASH. POST (Nov. 8, 2000), http://www.washingtonpost.com/wp-srv/aponline/20001108/ aponline183922_000.htm. 127. See Russell S. Sobel and Robert A. Lawson, The Effect of Early Media Projections on Presidential Voting in the Florida Panhandle, W. VA. U., http://www.be.wvu.edu/phd_economics/pdf/01-07.pdf (last visited Oct. 30, 2016); cf. Cliff Satell, Exit Polls in Presidential Elections, CLIFF SATELL, http:// www.cliffsatell.com/essays/exit-polls/ (last visited Oct. 30, 2016).

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the ballot.128 There were complaints about the physical method of voting being troublesome,129 undependable, and inaccurate.130 Recall, for example, the Florida recounts that lead to both the “hanging-” and the “dimpled-chad” entering the lexicon.131 In the Carter-Baker Report, the election reform commission recommended requiring photo IDs of voters in certain situations.132 The Help America Vote Act (HAVA)133 passed in 2002, adopting the photo-ID requirement and other recommendations from the commission.134 Another proposal from the Carter-Baker Report that was adopted in HAVA required all jurisdictions to use provisional ballots for voters who appear in person at the polling place but either are not listed on the voter roll or do not have proper identification.135 These two changes were upgrades to the Motor-Voter Law136 which required any place issuing driver’s licenses to also offer voter registration.137 HAVA requires each voter who registers by mail to present a photo ID the first time she votes in person. HAVA also requires every state’s election officials and the corresponding state ID issuers (Department of Motor Vehicles, for example) to compare and match the data on their respective databases to verify voter registrations.138 HAVA allows for states to adopt more stringent requirements.139 128. Fladell v. Palm Beach Cty. Canvassing Bd., 772 So. 2d 1240, 1242 (Fla. 2000); see also Bush v. Palm Beach Cty. Canvassing Bd., 531 U.S. 70, 75 (2000); cf. Nader v. Keith, 385 F.3d 729, 733 (7th Cir. 2004). 129. CARTER-BAKER REPORT, supra note 1, at 1. 130. Bush, 531 U.S. at 105. 131. Id. 132. CARTER-BAKER REPORT, supra note 1, at 21. 133. Help America Vote Act (HAVA), 52 U.S.C.A. § 21081 (Westlaw 2016) (formerly cited as 42 U.S.C. § 15481 (2002)). 134. Compare CARTER-BAKER REPORT, supra note 1, with 52 U.S.C.A. § 21082 (Westlaw 2016). 135. Sandusky Cty. v. Blackwell, 339 F. Supp. 2d 975, 978 (N.D. Ohio 2004), aff’d in part, rev’d in part sub nom. Sandusky Cty. Democratic Party v. Blackwell, 386 F.3d 815 (6th Cir. 2004) (citing 52 U.S.C.A. § 21082 (Westlaw 2016)). 136. 52 U.S.C.A. § 20504 (Westlaw 2016). 137. Ass’n of Cmty. Orgs. for Reform Now v. Edgar, 56 F.3d 791, 797 (7th Cir. 1995). 138. Ohio Republican Party v. Brunner, 582 F. Supp. 2d 957, 959–60 (S.D. Ohio 2008) (“The chief State election official and the official responsible for the State motor vehicle authority of a State shall enter into an agreement to match information in the database of the statewide voter registration system with

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Such election-reform laws seek to ensure greater integrity of elections and to make the identification process more accurate and streamlined at the polls. By showing a photo ID with a signature, the poll worker can see if the photo looks like the person presenting the ID.140 When a voter signs the voter roll, poll workers can compare the signatures on the photo ID and the roll to help verify the voter’s identity.141 Despite the reforms of 2002, elections mischief persists. In 2004, the media was not going to make the same mistake they made in 2000.142 The media did not report actual results before the polls closed.143 However, reporters took unofficial surveys, or “exit polls,” and reported those results during Election Day.144 This turned out to be troublesome as well.145 In response to this new tactic, activist groups claimed rampant voter suppression resulted from the reporting of exit polls during voting hours. When the ballots were counted at the end of the day, the actual election results were not at all similar to the exit-poll results reported in the media.146 One of the issues in the 2008 election was voter fraud.147 When rounds of recounts found more votes each time the same votes were information in the database of the motor vehicle authority to the extent required to enable each such official to verify the accuracy of the information provided on applications for voter registration.”). 139. Blackwell, 339 F. Supp. 2d at 978 (explaining HAVA). 140. See Press Release, Sonny Perdue, Former Governor, State of GA (Aug. 26, 2005), http://sonnyperdue.georgia.gov/00/press/detail/0,2668,78006749_79688 147_93275299,00.html. 141. Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 197 (2008). 142. STEPHEN J. FARNSWORTH & S. ROBERT LICHTER, THE NIGHTLY NIGHTMARE, TELEVISION’S COVERAGE OF U.S. PRESIDENTIAL ELECTIONS, 19882004 149–50 (2d ed. 2007). 143. Id. 144. See Richard Morin, Surveying the Damage: Exit Polls Can’t Always Predict Winners, So Don’t Expect Them to, WASH. POST (Nov. 21, 2004), http:// www.washingtonpost.com/wp-dyn/articles/A64906-2004Nov20.html. 145. See Jim Rutenberg, Report Says Problems Led to Skewed Surveying Data, N.Y. TIMES (Nov. 5, 2004), http://www.nytimes.com/2004/11/05/politics/ campaign/report-says-problems-led-to-skewed-surveying-data.html. 146. Richard Morin & Claudia Deane, Report Acknowledges Inaccuracies in 2004 Exit Polls, WASH. POST (Jan. 20, 2005), http://www.washingtonpost.com/wpdyn/articles/A22188-2005Jan19.html?nav=rss_politics/elections/2004. 147. See More 2008 Election Fraud Uncovered, JUDICIAL WATCH (Apr. 5, 2012), http://www.judicialwatch.org/blog/2012/04/more-2008-election-fraud-

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counted, voter fraud was suspected.148 For example, in the Al Franken/Norm Coleman Senate race in the 2008 election, Franken got more votes each time votes were recounted.149 In the 2012 presidential election, some districts had more votes than voters.150 There were precincts where 100% of the votes were for one candidate.151 Florida was accused of trying to suppress minority votes because early voting was reduced from 14 days down to eight.152 Other common complaints include the claim that fictional characters need to register in the precinct in which their related theme uncovered/; see also Hans A. von Spakovsky, Election Fraud in the 2008 Indiana Presidential Campaign: A Case Study in Corruption, HERITAGE FOUND. (2015), http://www.heritage.org/research/reports/2014/01/election-fraud-in-the-2008indiana-presidential-campaign-a-case-study-in-corruption; see also Hans A. von Spakovsky, Election Fraud Tainted the 2008 Presidential Race in Indiana, NAT’L REV. (Apr. 9, 2012), http://www.nationalreview.com/corner/295595/election-fraudtainted-2008-presidential-race-indiana-hans-von-spakovsky. 148. See D’Angelo Gore, Mining the Minnesota Recount, FACTCHECK.ORG (Jan. 28, 2009), http://www.factcheck.org/2009/01/mining-the-minnesota-recount/; see also Peter Roff, Al Franken May Have Won His Senate Seat Through Voter Fraud, U.S. NEWS & WORLD REP. (July 20, 2010), http://www.usnews.com/ opinion/blogs/peter-roff/2010/07/20/al-franken-may-have-won-his-senate-seatthrough-voter-fraud. 149. See Jay Weiner, Franken-Coleman Senate Recount: Flap over Felon Votes Shows GOP Playing Fast and Loose With Facts, MINNPOST.COM (July 19, 2010), http://www.minnpost.com/politics-policy/2010/07/franken-coleman-senaterecount-flap-over-felon-votes-shows-gop-playing-fast-. This article seeks to debunk the claim by first of all claiming that the outlets reporting on it have an “agenda.” The author of this article then goes on to call Fox News “Faux News” and makes other insults which make it clear that the author has his own “agenda.” One of the author’s interests is a book he is hawking called “This Is Not Florida.” Also, the “explanation” and “analysis” of the facts used to make the claim are “debunked” with questionable logic that is not supported by any cited authority. 150. See Dr. Werner Lange, More Votes Than Voters in Ohio: Absentee Vote Inflated, Certified Vote in Doubt, DEMOCRATS.COM (Dec. 12, 2004), http://www.democrats.com/ohio-absentee; see also Indiana Democratic Party v. Rokita, 458 F. Supp. 2d 775, 793 (S.D. Ind. 2006), aff’d sub nom. Crawford v. Marion Cty. Election Bd., 472 F.3d 949 (7th Cir. 2007), aff’d, 553 U.S. 181 (2008). 151. Mytheos Holt, Odd? Romney Got ZERO Votes in 59 Precincts in Philly, and 9 Precincts in Ohio, THE BLAZE (Nov. 12, 2012), http://www.theblaze.com/ stories/2012/11/12/odd-romney-got-zero-votes-in-59-presincts-in-philly-9-in-ohio/. 152. Dan Froomkin, Republican Voter Suppression Campaign Rolls Back Early Voting, HUFFINGTON POST (Aug. 18, 2012), http://www.huffingtonpost.com/2012/ 08/18/republican-voter-suppression-early-voting_n_1766172.html.

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park is.153 Early and absentee voting add to confusion and to the opportunity to lose ballots or double count them. Both sides in the photo-ID debate have low confidence in the current system.154 Reforms have not lessened the friction. The proponents of photo IDs believe that people are voting who should not: felons, non-citizens, dead people, fictional people, and more voters than there are human beings on the census.155 Opponents of photo IDs believe that people are being denied their right to vote, and are particularly concerned about suppression of minorities’ votes.156 Election reform should bolster confidence in the system. It should foster a general feeling that all eligible voters who choose to vote can, and only eligible voters vote, once in their correct precinct. F.

The Current Voting Process

Currently, a would-be voter registers to vote by a deadline well ahead of the upcoming election.157 A common deadline is one month or 30 days before an election.158 The would-be voter provides appropriate documentation, which proves she is eligible.159 This usually means information regarding where they live, their citizenship, and that they are over the age of eighteen.160 Often a birth certificate, a utility bill, and a driver’s license or passport will 153. See, e.g., Eric Shawn, ‘Hitler’ Appears on Ohio Voter Registration Form, FOX NEWS (Nov. 3, 2012), http://www.foxnews.com/politics/2012/11/03/hitlerappears-on-ohio-voter-registration-form.html; see also, e.g., Jim Avila & Reynolds Holding, Mickey Mouse Is Registered to Vote? Former ACORN Employees Speak Out on Accusations of Fraud, ABC NEWS (Oct. 10, 2008), http://abcnews.go.com/ TheLaw/story?id=6074157. 154. DeLaney, supra note 10, at 847; Rokita, 458 F. Supp. 2d at 794. 155. But see Jay Weiner, The Truth About the 2008 Minnesota Senate Recount, a Response to: Democratic Party Still Disenfranchising and Oppresing [sic] Votes, THE HILL (Nov. 1, 2010), http://thehill.com/blogs/congress-blog/campaign/126789the-truth-about-the-2008-minnesota-senate-recount-a-response-to-democraticparty-still-disenfranchising-and-oppresing-votes. 156. Andrew Cohen, How Voter ID Laws Are Being Used to Disenfranchise Minorities and the Poor, THE ATLANTIC (Mar. 16, 2012), http:// www.theatlantic.com/ politics/archive/2012/03/how-voter-id-laws-are-being-usedto-disenfranchise-minorities-and-the-poor/254572/. 157. 50 States Statutory Surveys: Election Law, supra note 51. 158. See, e.g., FLA. STAT. ANN. § 97.055 (Westlaw 2016). 159. E.g., Rokita, 458 F. Supp. 2d at 786. 160. See, e.g., id. at 785.

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suffice.161 With this evidence, the election authority (e.g. in Florida it is the Supervisor of Elections) will verify the eligibility and add the would-be voter to the voter rolls.162 The election office provides staff with any equipment necessary for the polling locations and trained volunteers or temporary employees, i.e. poll workers, for Election Day.163 Equipment may include kiosk voting machines or computer screens, depending on what the physical method of voting is in the jurisdiction.164 On Election Day, would-be voters generally get in a line according to what letter of the alphabet their last name starts with at the polling place.165 The would-be voter presents identification, usually a driver’s license; however, a passport or military ID is usually acceptable.166 The photo ID evidences to the poll worker that the would-be voter is the same person registered on the voter rolls.167 The would-be voter then signs the roll.168 Next, the would-be voter is given an appropriate ballot, which may depend on what political party she registered with.169 The would-be voter continues to a voting booth to cast a ballot, after which the would-be voter would then be “a voter.”170 Sometimes a person shows up claiming to be eligible to vote but does not present proper identification (e.g. they misplaced their wallet and do not have any ID).171 In the past, the voter would be 161. See, e.g., id. at 786. 162. FLA. STAT. ANN. § 97.052 (Westlaw 2016). 163. See John Mills, Reforms in Florida After the 2000 Presidential Election, 13 U. FLA. J.L. & PUB. POL’Y 69, 77 (2001). 164. See id. 165. See generally Sabrina Rizvi, Your Nov. 4 Voting Stories, HUFFINGTON POST: THE BLOG (Nov. 4, 2008, 3:11 PM), http://www.huffingtonpost.com/off-thebus-reporter/your-nov-4-voting-stories_b_141042.html. 166. E.g., FLA. STAT. ANN. § 101.043 (Westlaw 2016). 167. See Indiana Democratic Party v. Rokita, 458 F. Supp. 2d 775, 786 (S.D. Ind. 2006), aff’d sub nom. Crawford v. Marion Cty. Election Bd., 472 F.3d 949 (7th Cir. 2007), aff’d, 553 U.S. 181(2008). 168. See id. 169. See id. 170. See Holly Allen & Forrest Wickman, No “I Voted” Sticker? Print Your Own, SLATE (Nov. 6, 2012), http://www.slate.com/blogs/browbeat/2012/11/06/ no_i_voted_stickers_at_your_polling_station_print_your_own_here.html (discussing what to do if you are not given an “I voted!” sticker). 171. See Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 197 (2008).

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turned away.172 Some jurisdictions allowed the would-be voter to cast a provisional ballot; however, HAVA now requires that all states provide provisional ballots for such situations.173 After casting a provisional ballot, there is a window of opportunity for the provisional-ballot caster to provide the missing evidence of identity or eligibility.174 If he or she does so, the provisional ballot will be counted.175 The time limits vary according to jurisdiction. Some jurisdictions require that the would-be voter provide the missing documentation by the second Monday following the election.176 Other jurisdictions allow up to ten days.177 Another case for a provisional ballot occurs when a registered voter moves to a different neighborhood in between elections and forgets to update her voter registration. As previously mentioned, a voter in this situation could cast a provisional ballot and provide the necessary documentation by the deadline for the vote to be counted.178 Alternatively, some jurisdictions allow the voter to sign an affidavit affirming that they are eligible to vote.179 The burden then shifts to the election official to “contact the city or township clerk to verify whether the individual who signed the sworn statement is listed in the registration records of the jurisdiction or whether there is any information contrary to the content of the sworn statement.”180 III. ANALYSIS To solve the problem of identifying voters without imposing an additional or undue burden, why not photograph voters who do not have a photo ID while they are at the polling place? This suggestion avoids triggering equal protection challenges because it does not require any extra step (read “burden”) that could disproportionately

172. See Rokita, 458 F. Supp. 2d at 786. 173. Mills, supra note 163, at 75–76; e.g., Rokita, 458 F. Supp. 2d at 786. 174. See Rokita, 458 F. Supp. 2d at 786. 175. See Crawford, 553 U.S. at 216. 176. See Rokita, 458 F. Supp. 2d at 786. 177. See generally Michael J. Pitts, Empirically Measuring the Impact of Photo ID Over Time and Its Impact on Women, 48 IND. L. REV. 605, 608 (2015). 178. E.g., Crawford, 553 U.S. at 193. 179. See, e.g., id. at 199. 180. MICH. COMP. LAWS ANN. § 168.523a(3) (Westlaw 2016).

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impact a segment of the eligible voting population.181 Taking a photo of would-be voters without ID should not allow or encourage more illegal votes to be cast than the current system allows.182 One could deductively infer that since this suggestion requires less effort than the current system, it would enable more eligible voters to cast votes than the current system allows. If the on-the-spot photo-ID approach is implemented, many of the benefits associated with requiring photo IDs still apply. Plus, there will be less disruptions on Election Day arising from someone demanding to vote without an ID. There is a long-term benefit to the states that choose to require photo ID—they do not have to defend against lawsuits for requiring a voter to show a photo ID—yet they accomplish photo identification of voters. Photographing a would-be voter without a photo ID would not be a burden on the voter because she is already at the polling place. The expense would be minimal to the election officials because any cell phone can take a picture and upload or email it.183 The slight expense, if any, would be far less than the current expense of lawsuits against the states.184 The simplicity would stun anyone with an objection to photo IDs. The savings in time, money, and turmoil could be great.

181. If the “burden” is the trip to whatever location to which a person must go to get an ID, then photographing them while they are at the voting precinct, presumably to vote without an ID, is no burden. 182. This prediction presupposes that this idea will be used as a back-up plan for voters who fail to produce an appropriate ID and that a jurisdiction would not advertise that they will let anyone vote with or without ID as a matter of course, thus encouraging more than the ordinary turn-out causing the workers to be overwhelmed, leading to ineffective or incomplete administration of the voting routine. 183. 47 C.F.R. § 54.401 (2016), WL 47 CFR § 54.401; cf. Lifeline Across America Consumer Outreach, FCC (Aug. 13, 2015), https://www.fcc.gov/ lifeline/outreach. The program was started during the Bush administration. That program was an extension of a program from the Reagan administration. It gained the name “Obama Phone” when an Obama supporter used the term in a man-onthe-street interview. 184. If, for example, an elections office has to provide an extra cell phone at each polling place, this could add up to many dollars across a jurisdiction, but it would be a one-time purchase and not likely to approach on-going legal bills involved with law suits against government agencies.

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This new procedure should only apply when someone does not have an ID and cannot afford to come back later.185 Such as the cases described above where a provisional ballot would be appropriate, the voter would either be registered and no longer have an ID (or possibly forgot it and cannot make two trips), or eligible but not registered (in the precinct).186 “Election Day Registration” (EDR)187 is a completely separate issue that is beyond the scope of this Comment. However, it may be important to mention that this Comment’s solution could apply to EDR as well. If the issue involves a potential voter without photo ID, then this suggested solution will work, whether on-the-spot voter registration is available in the jurisdiction or not.188 So although this idea is not intended to force jurisdictions to tolerate voting without pre-registration, if it is so desired, on-the-spot photo IDs would facilitate that aim. Logistically, the polling place would have an additional line for would-be voters. The would-be voters that do not have IDs would first be divided alphabetically according to their last names to sign the voter roll and receive a ballot. Then these voters would go to separate lines for photographs. People who do not have a photo ID, but claim they are eligible (and do not have the means to come back to verify a provisional ballot) would also stand in this added line. A poll worker would take a picture of the would-be voter (perhaps with a cell phone). The poll worker would then upload it to the state’s (HAVA-required) 185. This new proposal should not be made so easy and so popular that voters prefer it over the usual methods. This has to be a fallback method for when all the usual protocols fail to produce an acceptable result. If it were to become the mode instead of the exception, there would be more expense and effort involved. That may be in the future when technology is even more advanced. But for now, this should only be the exception, not the rule. 186. It would not be a good idea to advertise that voters need not bring ID and then plan on doing this for every voter. Although, in the long-run, voting procedure may evolve into this in the future, at this point it would slow down the process of voting. This proposal is limited to addressing the few voters that do not have a photo ID. The purpose of this proposal is to preserve the state’s ability to require photo ID because of its general utility and simplicity. 187. See, e.g., MINN. STAT. ANN. § 201.061 (Westlaw 2016). 188. If the jurisdiction allows on-the-spot registration, then the picture taking merely becomes part of the routine. If the jurisdiction has no such option, then it becomes part of the already required (by HAVA) provisional-ballot routine.

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database.189 Additionally, if the potential voter would like, the poll worker could send the information to them by email. If the elections office ordinarily mails out voter-information cards, like Florida, this photo could be incorporated into the cards. The would-be voter without a photo ID is asking the poll workers to accept her identity on good faith. It is therefore reasonable that while she is getting photographed she also sign an affidavit or voterregistration application and provide a fingerprint. The signature and fingerprint could be uploaded to the voter registration database. Thus the information would be available for future reference by the election officials or any law-enforcement agency that might validly use it. These records—the photo, the signature, and the fingerprint— would then replace the “extra step” of coming back within a deadline to verify a provisional ballot. Thus, the voter is saved the extra burden of the trip and the costs associated with it. HAVA requires election offices to compare registration information with the state’s ID issuer’s database.190 Thus it is possible to compare all the photos taken by various election-office officials throughout a state.191 At the very least, the elections office in each district can compare all the photos taken at the various precincts within that district.192 Election officials can also run facialrecognition software on all of the photos gathered on Election Day to check for people voting in more than one precinct.193 In the future, the election process may involve photographing every voter and 189. HAVA, 52 U.S.C.A § 21081 (Westlaw 2016) (formerly cited as 42 U.S.C. § 15481 (2002)) (requiring state election officials to maintain an auditable database). 190. Ohio Republican Party v. Brunner, 582 F. Supp. 2d 957, 959–60 (S.D. Ohio 2008) (“The chief State election official and the official responsible for the State motor vehicle authority of a State shall enter into an agreement to match information in the database of the statewide voter registration system with information in the database of the motor vehicle authority to the extent required to enable each such official to verify the accuracy of the information provided on applications for voter registration.”). 191. Possible means that because electronic versions of photos can be analyzed and compared, and facial recognition software exists, the two can be used together to compare voter photos and identities. 192. A more complete survey would be state-wide via the HAVA-required database. 193. This option would be useful for either proving or disproving that voter fraud or other illegal voting behavior either exists or does not exist, as well as identifying persons suspected of voting wrongdoings.

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running facial-recognition software on all voters’ photographs. That, however, is beyond the scope of this Comment. Election officials can upload the fingerprints taken on Election Day to the state’s ID issuer’s database as well. Fingerprints may be an even more reliable method for identifying individuals because no one really looks like their drivers license photo.194 However, fingerprints may not be as unique as once thought,195 nonetheless, they are still helpful for identification purposes. Fingerprints are used in technology today, such as unlocking smartphones.196 Such biometric data technology is constantly improving, and it is foreseeable that poll workers may allow a voter to identify herself by touching a smartphone screen, which would take the fingerprint and compare it to the voter’s registration file.197 But at the very least, a traditional fingerprint can be scanned and uploaded as a picture to the election official’s database. Voters who provide the same type of proof that would have been provided at registration may not have to provide the fingerprint. This might depend on the jurisdiction. If a state requires three identifying documents from a list of ten options, which may include utility bills with the would-be voter’s name and address or a government letter addressed to the would-be voter (from the IRS, for example), then

194. Hair changes, glasses, facial expression, facial hair, and other factors can make it difficult to tell if the person and the ID photo match. 195. Sian Boyle, Not So Handy: Fingerprints May Be a Flawed Way of Identifying Criminals as They Aren’t as Unique as First Thought, Says Home Office Scientist, DAILY MAIL (Apr. 22, 2014), http://www.dailymail.co.uk/ news/article-2609919/Not-handy-Fingerprints-flawed-way-identifying-criminalsarent-unique-thought-says-Home-Office-scientist.html#ixzz4CziYRvro (stating there are too few fingerprints on record to determine if no two are the same). 196. This author’s own smartphone uses his fingerprint to unlock access to all the functions available on his smartphone. 197. When voting in the 2016 presidential primary in Florida, rather than the old-fashioned paper voter roll, this author was asked to sign his name on a cellphone-sized touch screen that was electronically linked to the voter database. This could be adapted to fingerprint recognition like this author’s smartphone has been. See also David Shipley, Want to Vote? Get Fingerprinted., BLOOMBERG (2015), https://www.bloomberg.com/view/articles/2015-01-29/fingerprinting-could-enddebate-over-voter-id-laws.

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those documents could be used rather than taking the fingerprint.198 This would be within the election officials’ discretion. Whichever method the election officials choose to permit a would-be voter to qualify for on-the-spot photo ID, ultimately this option is a last resort that allows the state to require photo ID from a voter. This suggestion lets the state protect the integrity of elections while not violating equal protection by requiring a burdensome task to be completed. Photos have been previously used to identify someone before being allowed to vote in order to prevent an illicit vote before it is cast.199 Modern technology makes photographing people so swift and easy that we can extend the “before” voting moment in time into the “during” voting point in time and still produce many of the benefits that requiring a photo ID affords. A.

Pros

The first and most obvious “pro” to the idea of allowing a wouldbe voter to have a photo ID made at the polling place is that there is essentially no burden on the voter. Since there is no extra burden, the non-existent burden cannot impact one segment of the population more than another. If the proposal is challenged in court, strict scrutiny will not apply.200 Even if strict scrutiny did apply, under the Burdick balancing test this solution would stand because there is no burden to balance against the right, there is no equal protection violation.201 The “pro” is the fact that identification can be required without violating the Constitution. Another benefit is the evidence trail that an electronically-stored photo could provide. If someone votes more than once, there will be evidence that can be used to prosecute that person later. There will be a photo of the voter’s face on file with fingerprints and a signature. These can possibly be used to pursue enforcement measures including producing a “wanted” poster of serial voters. Photo IDs have previously been employed as a way of preemptively preventing voter misconduct.202 In this new approach, the photo ID is a tool of 198. See, e.g., Indiana Democratic Party v. Rokita, 458 F. Supp. 2d 775, 790, 837 (S.D. Ind. 2006). 199. Id. at 794. 200. See Strict Scrutiny, supra note 12. 201. Burdick v. Takushi, 504 U.S. 428, 434 (1992). 202. Rokita, 458 F. Supp. 2d at 794.

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enforcement, if not prevention. The deterrent effect is still present, though subtle. Like any other criminal law, where the awareness of prosecution and punishment acts as a deterrent, individuals who do not want to be discovered voting illegally will be discouraged because there will be additional identification evidence, even if a false name or address is provided. A face photo and fingerprints are the second and third best ways to identify someone.203 Because of the above-mentioned evidence trail, this new plan might suppress the vote of those who have already voted: felons without their voting rights restored, or non-citizens who do not have the right to vote. Suppression of these votes would not be disfranchisement because there is no franchise to “dis.” The law is that only citizens who have not already voted, and who are not convicted felons, are eligible to vote.204 Another positive aspect of this new proposal is its compatibility with current voting systems because HAVA already requires electronic databases.205 It is also adaptable to future systems that would involve databases (or photo uploading).206 A beneficial side-effect of this new proposal is that it might save the poor, indigent, would-be voter time and money while encouraging involvement because once the photo is taken, it is done. The indigent would-be voter who cannot afford to make a pre-voting day trip to get a photo ID would already have a photo in the voter registration file. Without this new “go-to” plan, the same indigent, would-be voter must either follow the provisional-ballot routine (including returning to the polling place by the deadline to prove who she is) every election or miss out on voting in every election.207 In a presidential election year, there are at least two elections, a primary 203. This note does not address the collection of DNA to identify voters. 204. Richardson v. Ramirez, 418 U.S. 24, 54 (2011) (discussing felons and exfelon’s disenfranchisement). 205. Ohio Republican Party v. Brunner, 582 F. Supp. 2d 957, 959–60 (S.D. Ohio 2008). 206. This is because electronic data does not care if it is a photograph, an address, or an executable program. Data is data. It is all reduced to zeros and ones—or actually voltage or non-voltage, in the computer. See Voltage Levels and Signaling, PC GUIDE (Oct. 16, 2016), http://www.pcguide.com/intro/fun/ clockSignals-c.html. 207. Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 217 (2008) (Souter, J., dissenting) (explaining how the provisional ballot extra steps must be taken every time a poor person or religious objector wishes to vote).

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and a general.208 There may be other elections at the local and state level that the would-be voter may be interested in participating. This new approach fixes the problem once and for all for a voter residing in that district.209 Finally, and this is discretionary, a photo ID can be made using the uploaded photo and signature if an elections official decides that the voters in her district would benefit from that and the office can afford the cost, or it could be an option a voter may request (such an ID being mailed or emailed). Essentially, anything (legal) that can be done with electronic data can be done with the uploaded voter photo, signature, and fingerprint. This may require additional investment, for example, a printer.210 B.

Cons

People who support voter photo ID probably will not like this idea at first glance. The solution will not absolutely keep someone from casting an illegal vote. Probably nothing will prevent a wouldbe, bad-faith, so-called “voter” who is determined to vote illegally.211 208. 3 U.S.C.A § 1 (Westlaw 2016) (requiring the General Election to be on the first Tuesday after the first Monday in November, every fourth year). 209. Once a photo is in the electronic database it can be used by the state for any legal purpose it adopts. See, e.g., Craig Timberg & Ellen Nakashima, State PhotoID Databases Become Troves for Police, WASH. POST (June 16, 2013), https://www.washingtonpost.com/business/technology/state-photo-id-databasesbecome-troves-for-police/2013/06/16/6f014bd4-ced5-11e2-8845d970ccb04497_story.html. 210. Since prices vary and governments seem to always pay the highest possible price for anything it buys, no research into the exact cost of printers was done for this Comment. But for the unpredictability of this cost, this aspect of the proposal would have been the “title” attribute. Instead of risking price-related objections, it is included as an optional “pro” and listed last. 211. E.g., “John A.” is a 58-year-old entrepreneur, born in Chicago who voted multiple times in the 1972 election, when he was fourteen years old. His father was employed by the city of Chicago. John A.’s father asked him to go for a ride in a van with other teenagers and young men as a favor to Mayor Daley. John A.’s father explained that the “family owes everything” to the Mayor because without Mayor Richard Daley, he (John A.’s father) would not have a job, and the family would not have the house they live in. The boys in the van, who John A. did not know, were instructed by the driver, to go into the polling place and “do not talk to anyone. Find the man with the blue hat and he will tell you what to do.” The man in the blue hat handed John A. a folded, blank piece of paper and told John A. “to go into the voting booth, count to sixty, then come back to me and hand the piece of

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But any level of identification requirement provides some deterrence.212 For example, some people go to great lengths to procure fake IDs to buy beer and cigarettes.213 However, requiring an ID still provides a deterrent effect.214 This new idea would most likely still deter some of the lazier and some of the smarter would-be vote-stealers because they would probably realize that they are giving authorities evidence for follow-up investigations by allowing their photo and fingerprints to be taken. The most serious complaint about photo-ID requirements is that the requirements violate equal protection by burdening indigent voters while not burdening non-indigent voters (those with photo IDs).215 This new proposal avoids these challenges because it does not burden voters at all. Religious objections would be addressed in other ways because that issue does not concern an “undue burden” of an extra trip to get a photo ID. A religious objector can provide other identifying documents, conceivably even religious documents, to prove she is the person she declares to be.216 However, the religiousobjection issue is beyond the scope of this Comment. Someone may claim that taking a would-be voter’s photo violates privacy rights. However, a person in public implies to anyone who sees her that she does not mind being seen.217 Therefore, if a person goes to a polling place, she is in public and has a diminished paper back to me, and don’t talk to anyone.” Once all the boys in the van had finished this procedure at the first stop, they went to another polling place and repeated the entire routine. They repeated this “all day long” on Election Day in Chicago. 212. Carding Democracy, PROJECT VOTE, http://www.projectvote.org/issues/ voting-policy/voter-id/ (last visited Dec. 27, 2016). 213. Izabella Babchinetskaya, You Are Charged with Possession of a Fake ID— Now What?, DC STUDENT DEFENSE, http://dcstudentdefense.com/blog/you-arecharged-possession-fake-id-now-what (last visited Dec. 27, 2016). 214. PROJECT VOTE, supra note 212. 215. Crawford, 553 U.S. at 200. 216. See Jan Murphy, Religious Questions for Non-Photo ID Law in Pennsylvania Draw Fire, HUFFINGTON POST (Apr. 12, 2012), http:/ /www.huffingtonpost.com/2012/04/12/non-photo-id-religious-questionsamish_n_1422153.html. A person with a religious objection to photographs would likely address the issue before election day, but if the person who had a religious objection to photographs also has the indigent issue that could be a problem. 217. United States v. Knotts, 460 U.S. 276, 281 (1983) (noting the diminished expectation of privacy in public places).

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expectation of privacy.218 A voter would not be photographed secretly or against her will. In this proposal, the voter would voluntarily agree to be photographed because she is asking the elections office to do what the voter could not afford to do on her own—vote (and while they are there to vote, maybe get a photo ID).219 Absentee ballots are available for voters who cannot go to the polling place on Election Day.220 If a voter qualifies for voting absentee,221 any issues concerning privacy may be virtually eliminated. Additionally, if a claim were to be raised that requiring a voter to pose for a picture is an unwarranted seizure, that claim should fail because it is reasonable to require proof of identity and it is a “minor inconvenience.”222 The voter remains free to leave at any time, but while she is asking the government to allow her to cast a ballot, it would be reasonable for the government to ascertain the voter’s identity.223 The voter could also go the traditional provisional-ballot route: not get photographed and prove eligibility by the applicable deadline.224 IV. CONCLUSION The overall cost of democracy should decrease because of fewer constitutional challenges, fewer legislative sessions, and fewer commissions to study election reform.225 The initial costs will be

218. C.f. id. at 280 (explaining why government surveillance does not violate privacy rights). The elections office taking photos of voters is like the Department of Motor Vehicles taking photos of drivers. 219. See Sanders v. Am. Broad. Co., 978 P.2d 67, 71 (Cal. 1999) (for a plaintiff to prevail in a privacy invasion suit the “plaintiff must show that the defendant penetrated some zone of physical or sensory privacy surrounding, or obtained unwanted access to data about . . . .”). In the case of voting, the voter is choosing to submit to a photograph because he seeks the benefit of voting as a photographically identified voter. 220. E.g., IND. CODE ANN. § 3–11–4–2 (Westlaw 2016); Indiana Democratic Party v. Rokita, 458 F. Supp. 2d 775, 787 (S.D. Ind. 2006). 221. E.g., N.Y. ELEC. LAW § 8-400 (McKinney 2016). 222. Cf. Terry v. Ohio, 392 U.S. 1, 10–11 (1968). 223. Cf. People v. Rivera, 201 N.E.2d 32, 36 (N.Y. 1964). 224. See Rokita, 458 F. Supp. 2d at 786. 225. These assertions are based on pure hope. It is probable that legislatures will find or make up other reasons to spend the same amount of money on the same

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slight.226 No new equipment is necessary; a cell-phone is adequate.227 Long-term savings could be great. Taking a photo of a would-be voter at the polling station should not cause any eligible voter to not vote, nor should it cause an ineligible person to be more likely to improperly vote. This new idea may deter ineligible voters from attempting to vote while not burdening the poor, eligible voter (it may even encourage more eligible voters to vote).228 For those who want more verification, they will have more confidence in the system. For those who want more minority access, this proposal will facilitate more access. For states that have been unable to successfully adopt a voter photo-ID requirement because of equal protection claims—problem solved! All states can adopt this when-all-else-fails-just-take-a-picture approach to voter photo-ID requirements and begin to repair the American people’s confidence in the integrity of elections. The voters and the activists will live happily ever after. Yes. Happily ever after.

number of legislative sessions and studies about completely different stuff because that is what they think they need to do to continue being re-elected. 226. If the basic idea is adopted with no frills, a poll worker with a cell phone could take the picture. 227. D’Amarino, supra note 9, at 437 (“Technology has advanced to the point where one can take a picture and instantly upload it onto the internet.”); see Lifeline Across America Consumer Outreach, supra note 183 (stating that indigent wouldbe voters have cell phones via the Lifeline Program). 228. Those voters who, in the past, would not attempt to vote because they did not have a photo ID might now vote.

WESTERN MICHIGAN UNIVERSITY THOMAS M. COOLEY LAW REVIEW SPECIAL PATRONS Mike Korn

David C. Whipple LAW FIRM BENEFACTORS Bailey, Smith & Bailey, P.C. The Honorable Avern Cohn Krause, Moorehead & Draisen, P.A.

2016 DISTINGUISHED BRIEF REVIEW PANEL Honorable Justice Brian K. Zahra Honorable Justice Bridget Mary McCormack Honorable Rosemarie E. Aquilina Honorable Patricia D. Gardner Honorable Kirsten Frank Kelly Honorable Kathleen Jansen Honorable Patrick M. Meter Honorable Christopher M. Murray Honorable Michael J. Riordan Honorable Paul J. Denenfeld