Category Archives: television

Superman and Supergirl: Environmental Refugees

Posted on November 19, 2015 by | 49 comments

(This guest post was written by Kean Zimmerman, a recent graduate from Michigan State University College of Law.  This post is an in-depth exploration of Superman and Supergirl’s environmental refugee status touched on in a previous article. The analysis in this article has changed to reflect the Supergirl in the TV series and recent New Zealand Court decisions. That article can be viewed online at L&F Magazine.)

Introduction

The writers and contributors who have posted on Law and the Multiverse, as well as other legal scholars, have taken the opportunity to note the various legal issues that superheroes and villains face when it comes to the intricate web that is immigration law.  Recent developments in the world have lead to an increase in refugees, especially refugees forced from their homes not just by people, but by the environment.  Kryptonians would likely be counted among the other environmental refugees.  Similarly the survivors of Krypton would also struggle with many of the same setbacks.

The United States has instituted laws addressing refugees since 1948.[1]  In 1948, the  United States government enacted the first law for admitting persons fleeing persecution.[2]  The law permitted 205,000 refugees to enter the United States over the course of two years.[3]  It was not until 1951 that the first steps were taken to recognize refugees on an international scale.[4]  In 1951, the United Nations put forth the 1951 Refugee Convention, which is the underpinning of most refugee law in the world.[5]  The Convention defines refugees, their rights, and what obligations states have to refugees across the globe.[6]  The same Convention states that individuals may seek asylum if they have a well founded fear of persecution on account of one of the five pre-approved grounds.[7]  Those are race, religion, ethnicity, political opinion, or membership in a particular social group.[8]  While most countries that have adopted the convention’s regulations to govern refugee law, those same laws have not been updated to keep pace with current trends.  Currently, there is a gap between what the law provides and what is needed.[9]  The widening gap is most certainly the case of what is occurring with environmental refugees.

A. Environmental Refugees

Environmental refugees are growing in number across the globe, but both domestic and international laws have yet to grow along with the refugees.  According to the Organization for Economic Co-operation and Development, an environmental refugees is “a person displaced owing to environmental causes, notably land loss and degradation, and natural disaster.”[10]  These refugees are also known as “displaced people” or “climate refugees.”[11]  Environmental refugees are not a new phenomena, yet in recent years there has been an increase in attention to climate refugees.  This is correlative to the changes in climate that have occurred in recent years.[12]

I. Superman and Supergirl’s Not so Super Problem

A. Superman: A True Illegal Alien

There is no question that Superman, or rather Clark Kent, is not from this planet.  In fact he embodies the term “illegal alien” in that he never properly migrated to this country, or at least did not do so through official channels.  His provenance can be forgiven given the fact that he was sent by his parents from the planet Krypton.[13]  The reasons for the planet’s demise have varied over the years.  This post, however, adopts the theory from the Man of Steel movie.  In the Man of Steel, Krypton’s resources were over-consumed to the point that the planet imploded on itself.[14]   Environmental disaster on a planetary scale obliterated Krypton in its entirety.[15]

As a baby, young Clark could not be expected to file his asylum petition on his own.  The Kents adopted Clark after finding him in their field.[16]  The two possible ways this would occur today would be if Clark had been legally adopted as an abandoned child, or if the Kents had somehow managed to obtain forged documentation for Clark.  However, Clark would still have to file his claim for asylum the year after he turned 18.[17]  Clark would have clearly exceeded this statutory limitation as there is no evidence he has ever applied for asylum.[18]  Typically the law requires asylum seekers to affirmatively apply for asylum within one year after entering the United States.[19]  Recently, in a Board of Immigration Appeals decision, the court stated that an applicant’s age can be taken into consideration when determining if they can be exempted from the one year filing rule.[20]  Since there is no evidence that Clark ever attempted to apply for asylum this may have no bearing whatsoever.

Somehow Superman has the ability to renounce his United States citizenship in Action Comics 900.[21]  Renouncing American citizenship is governed under  section 349(a)(5) of the Immigration and Nationality Act.[22]  The backlash after this comic book was released was so huge that publisher DC Comics backtracked a week later and announced the issue itself was standalone.[23]  Being a standalone issue meant no further issue would explore Superman’s discarding of his American citizenship.  At least in this respect, it can be assumed that he has United States citizenship.  There is a chance that Kent was granted citizenship under the foundling statute even though it is rarely used.[24]  Based on this law, because Kent’s parentage was unknown as he entered the United States under the age of five, and since he hid his secret well after the age of twenty-one, he could possibly have attained legitimate United States citizenship through the statute.[25]

There is little debate that Superman had to leave Krypton before its ultimate implosion.[26] While Superman has never formally been considered a refugee, he fits the basic understanding of an environmental refugee in that he literally has no planet to return to.  Since it is presumed from DC that he somehow has citizenship, he does not have to examine this question.[27]  The same cannot be said for his cousin Kara Zor-El, also known as Supergirl.

B. Supergirl’s Dilemma

While Superman might want to file for Supergirl’s entry into the country through legal channels, there is no “cousin” spot for admitting someone into the country as a family member (he could only seek to admit a parent, spouse, child, or sibling).[28]  The most logical option at that point would be Deferred Action for Childhood Arrivals (DACA).[29]  Supergirl’s biological age is only thirteen given that she was trapped in the Phantom Zone, a place where time moves slower than on Earth, after she left Krypton.[30]  However, her actual age is suggested to be much greater given that she was stuck in the Phantom Zone while Superman grew into a man (her age after arriving in the United States is an estimated thirty-seven years).[31]  The United States government might not consider her young enough to qualify for DACA based on the elevated age. Biologically she would have entered the country before turning sixteen, but she would have been alive for thirty-seven years.  As such, Superman would likely seek either asylum or withholding of removal for his cousin.

The problem then exists is that Supergirl cannot claim asylum based on the fact that her planet no longer exists.  Actual displacement based on loss of home due to an environmental disaster would seem to fall under the concept of an environmental refugee, but as of right now environmental refugees are not recognized under most international laws.  Environmental refugees do not appear to be eligible for asylum solely based on their status as an environmental refugee.  Most countries base their refugee law on the 1951 Refugee Convention.[32]  As previously mentioned, the Convention prescribes five grounds upon which an individual can receive asylum.  Those grounds are race, religion, nationality, political opinion, and a particular social group.[33]  Supergirl must also be suffering from some kind of “persecution” that is based on one of the five grounds.[34]

In this case Supergirl’s persecution is simply that she is unable to return to her home planet of Krypton.  She lacks the opportunity to avail herself of the Kryptonian government since it is non-existent.  She would seek admittance to the United States, but she does not fall into a persecutorial nexus based on any of the five grounds.  At this point, the United States Immigration and Customs Enforcement (ICE) would contemplate whether or not it could forcibly eject Supergirl from the United States.  To do so would mean extreme costs on the United States government as simply containing her would likely cost upwards of $20 million.[35]  Even if Supergirl were to be ejected from the country, she would have nowhere else to go.

C. Super and Stateless

In effect Supergirl is actually a stateless person.  As of now the United States has not signed on to any of the major international conventions which attempt to reduce the number of stateless persons.[36]  Currently, the United States is lacking a basic framework to deal with stateless people, so most of its efforts are merely stopgap measures.[37]  The absence of a framework often leaves stateless persons in a position of limbo for excessive periods of time, especially if they no longer have a country to return to or no country which will accept them.[38]  Supergirl would likely be in a similar position as Krypton no longer exists.  After a determination is made that she either cannot return, or that it is too expensive to deport her, the government would probably require Supergirl to make routine reports to the Department of Homeland Security.[39]  Although she might be able to receive a work permit, if she were to ever leave the borders of the United States, border patrol could then deny her readmission.[40]

As a last ditch effort, Supergirl might try to claim asylum on the basis of her membership in a particular social group.[41]  She could argue that her particular social group is that of a Kryptonian who survived the destruction of the planet of Krypton.  However, such a group has yet to be acknowledged by the United States government.  Even then the persecution would have to be a form of past persecution.  Different circuits within the United States recognize different grounds or acceptable forms of past persecution.  Thus far, none have accepted the idea of “loss of a home” as a viable form of past persecution.  In fact, there is no law stating that the loss of a country, let alone a planet, amounts to persecution.  One of the only individuals in the world to make such an argument thus far has had little success.

II. Tuvalu: An Island and its Implications for Immigrants

Ioane Teitiota is the first man in New Zealand to seek asylum under the label of environmental refugee.[42]  Teitiota has been living in New Zealand since 2007 after leaving his Tuvaluan home; he believes his home will become uninhabitable before too long.[43]  Tuvalu is a Polynesian island nation located in the Pacific Ocean.[44]  The island is located halfway between Australia and Hawaii.[45]  Although very unassuming, the island is predicted to be the first island to succumb to rising sea levels.[46]  In 2009, there were many trees swallowed by the rising salt water, but as of 2012 whole parts of the island were consumed.[47] The highest point of the country above sea level is only a few meters high.[48]  Before the island is swallowed by the sea there are many Tuvaluans who are concerned that encroaching salt water will prevent any type of agriculture from persisting on the island.[49]  To that end, many Tuvaluans have fled their country, but not all have succeeded in trying to relocate.

The Court of Appeals in New Zealand denied Mr. Teitiota’s  application for Asylum in 2014 stating that his case was “fundamentally misconceived” and that it would “stand the [UN refugee] convention on its head.”[50]  While Teitiota argued that he would be facing “passive persecution” as a result of his government being unable to “protect him from climate change’s effects,” the court remained unpersuaded.[51]  Ultimately, the court felt that Teitiota’s arguments were “novel,” but “unconvincing” as granting him asylum would simply open up opportunities for millions of people living in low-lying countries to seek the same kind of asylum.[52]  To avoid a flood gates situation the Court affirmed the lower court’s decision to deny Teitiota’s claim for asylum.  The Court’s decision meant that Mr. Teitiota, his wife, and his three children born in New Zealand would have to return to their native home of Tuvalu.[53]

It seemed strange then that a different family from Tuvalu was granted New Zealand residency only months later after making similar claims.[54]  The family’s petition was the first “successful application for residency on humanitarian grounds in which climate change had featured.”[55]  The Court claimed the second case was different since the family had strong ties to New Zealand.  Like Mr. Teitiota’s claim, the second family was denied initially for not meeting the standards of the refugee convention.[56]  However, the second family successfully won their subsequent appeal by basing their argument on humanitarian grounds.[57]  In the July 2014 decision, the Court found that returning the family back to Tuvalu would be “unjust and unduly harsh.”[58]  The largest difference between the two applicants is the second Tuvaluan family has three generations of relatives living in New Zealand, increasing their ties to the community.[59]  Supergirl may be able to raise a similar argument since she herself has ties to the United States in the form of her cousin Superman.  This would likely fail though since Superman himself is only one man, not three generations of familial ties.  Furthermore, the United States has done very little within its own borders to make immigration exceptions for environmental refugees from abroad.

III. What the United States is doing for Environmental Refugees

There is no official legal framework to address the problems environmental refugees face when they try to enter the United States.  The United States has taken some steps to acknowledge this unique group of refugees immigrating into the United States.  The Immigration Act of 1990 does address granting temporary protection status to such refugees.[60]  Temporary protection status is granted when:

There has been an earthquake, flood, drought, epidemic, or other environmental disaster in the state resulting in a substantial, but temporary, disruption of living conditions in the area affected’ and when ‘the foreign state is unable, temporarily, to handle adequately the return to the state of aliens who are nationals of the state.[61]
Temporary status only applies to individuals who are already inside the United States at the time of the disaster.[62]  The temporary status includes six months of protection and the ability to work, but it does not allow for the admission of the claimant’s spouse or family.[63]  Temporary protection status was granted to victims of Hurricane Mitch in 1998 and victims displaced by the Montserrat volcano explosion in 1997.[64]  However, the granting of temporary protection status is discretionary.[65]  In addition to only protecting those who were environmentally displaced while they were present in the United States, as of 2014 only citizens of Haiti (earthquake), Honduras (hurricane Mitch), Nicaragua (hurricane Mitch), and El Salvador (earthquakes) were able to get temporary protected status for environmental events. [66]  There is no legal protection in the United States that creates a path to permanent status for environmental refugees.  As a country, the United States’ ability to protect those persons displaced by climate change is limited since its laws do not offer any substantive relief to those fleeing environmental disasters or rising sea levels outside of the United States.  In this lack of framework, the United States is consistent with many other international states who do not have legal frameworks to address the problems faced by environmental refugees.

Conclusion

In the end Supergirl will face the same fate as millions across the globe.  Without an adequate legal framework to deal with the surge in environmental refugees that is predicted to come in the next few decades, stopgap measures will be used to treat the environmental refugee crisis on too small a scale.  Excessive stopgap measures will lead to a bottleneck in the immigration system.  Supergirl will likely not be deported because of the sheer cost that would entail, and the fact that there is likely no Kryptonian agreement with any other country that would allow her to reside there.  In all likelihood, she will stay in the United States, but will not be able to ever qualify for United States citizenship since she falls within a grey area of the law.  This might not be as much of a problem, but if she were to ever save anyone outside of the United State’s borders then the United States could deny her readmission to the country. This would drastically limit the range of her allowable Superhero activities.

 

[1] History of U.S. Immigration Laws, Federation for American Immigration Reform, http://www.fairus.org/facts/us_laws

[2] Id.

[3] Id.

[4] Convention Relating to the Status of Refugees, 189 U.N.T.S. 137 (done at Geneva, 28 July 1951), as amended by the Protocol Relating to the Status of Refugees, 606 U.N.T.S. 267, T.I.A.S. No. 6577, 19 U.S.T. 6223, done at New York, 31 Jan. 1967.

[5] The 1951 Refugee Convention, http://www.unhcr.org/pages/49da0e466.html

[6] 1951 Refugee Convention, supra note 5.

[7] Id.

[8] Id.

[9] Climate Refugees, Michael P. Nash, LA Think Tank, http://www.snagfilms.com/films/title/climate_refugees

[10] Organisation for Economic Co-operation and Development, https://stats.oecd.org/glossary/detail.asp?ID=839

[11] National geographic, Climate Refugee, available at http://education.nationalgeographic.com/education/encyclopedia/climate-refugee/?ar_a=1 , last visited Apr. 20, 2015.

[12] Climate Refugees, supra note 9.

[13] Man of Steel, Zack Snyder, Warner Bros., 2014.

[14] Id.

[15] Id.

[16] Id.  (Adopt is likely a tentative term,  seeing as the Kents probably did not file the appropriate adoption paperwork as they did not want to risk the safety of their young child).

[17] INA §208(a)(2)(B).

[18] Id.

[19] INA §208(a)(2)(B).

[20] BIA Decision, Mar. 29, 2013, http://www.refugees.org/resources/for-lawyers/asylum-research/youth-and-1-year-bar-bia.pdf,

[21] Paul Cornell, Action Comics 900, (DC Comics, 2011).

[22] INA §349(a)(5).

[23] DC Backtracks Superman Renouncing His Citizenship, May 5, 2011, available at http://www.comicbookmovie.com/fansites/luffycapri/news/?a=36606, last visited Apr. 18, 2015.

[24] Ryan Davidson, Superheroes and Immigration Status, Law and the Multiverse, Dec. 22, 2010, available at https://lawandthemultiverse.com/2010/12/22/superheros-and-immigration-status/, last visited Apr. 20, 2015.  (James Daily Commentary).

[25] Id.

[26] Man of Steel, supra note 13.

[27] Paul Cornell, supra note 21.

[28] Bobbie Masters, Frequently Asked Questions About Immigration, Masters Law Firm, P.C., available at  http://www.coimmigrationlawyer.com/faqs.html

[29] USCIS, Consideration of Deferred Action for Childhood Arrivals http://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-daca

[30] Supergirl, Warner Bros. Television (2015)

[31] Id.

[32] 1951 Refugee Convention, supra note 5.

[33] Id.

[34] Id.

[35] Matt Hershberger, Is Superman Undocumented?, http://themigrationist.net/2013/08/21/is-superman-undocumented/

[36] See Convention Relating to the Status of Stateless Persons, opened for signature Sept. 28, 1954, 360 U.N.T.S. 117 (entered into force June 6, 1960 ) ; see also Convention on the Reduction of Statelessness, opened for signature Aug. 30, 1961, 989 U.N.T.S. 175 (entered into force Dec. 13, 1975)

[37] Mikhail Sebastien, Stateless in the United States, http://www.washingtonpost.com/opinions/stateless-in-the-united-states/2013/07/04/ae4c7a72-debe-11e2-b2d4-ea6d8f477a01_story.html

[38] Id.

[39] Id.

[40] Id.

[41] 1951 Refugee Convention, supra note 5.

[42] Kathy Marks, World’s first ‘climate change refugee’ has appeal rejected as New Zealand rules Ioane Teitiota must return to South Pacific island nation of Kiribati, http://www.independent.co.uk/news/world/australasia/worlds-first-climate-change-refugee-has-appeal-rejected-as-new-zealand-rules-ioane-teitiota-must-return-to-south-pacific-island-nation-of-kiribati-9358547.html

[43] Id.

[44] Climate Refugees, supra note 9.

[45] Id.

[46] Id.

[47] Id.

[48] Id.

[49] Id.

[50] Marks, supra note 42.

[51] Id.

[52] Id.

[53] Id.

[54] Amy Maas, Tuvalu Climate Change Family Win NZ Residency Appeal, The New Zealand Herald, http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11303331

[55] Id.

[56] Id.

[57] Id.

[58] Id.

[59] Maas, supra note 54.

[60] An EU Strategy on Adaptation to Climate Change, Commission Staff Working Document, European Union (2013), 17 (internal quotation marks omitted).

[61] Id.

[62] Id.

[63] Id.

[64] Strategy on Adaptation, supra note 60.

[65] Id.

[66] Madeline Messic & Claire Nergeron, Temporary Protected Status in the United States: A Grant of Humanitarian Relief that is Less Than Permanent, http://www.migrationpolicy.org/article/temporary-protected-status-united-states-grant-humanitarian-relief-less-permanent

49 Comments

Posted in guest posts, immigration law, international law, Superman, television

Jim Gordon and the Felony Murder Rule

Posted on September 24, 2015 by | 11 comments

Today’s post was inspired by a question from Christopher about the first episode of the new season of Gotham.  His question presents an interesting twist on felony murder.  Spoilers below:

Continue reading →

11 Comments

Posted in criminal law, mailbag, television

Star Trek and Customs Law

Posted on August 3, 2015 by | 11 comments

Star Trek is usually outside the scope of this blog, since its fictional legal systems are a) quite a bit different from ours and b) not very well fleshed-out in any of the TV series or movies.  But previous guest author Larry Friedman has recently found a way to bring Star Trek and the law together on his Customs Law Blog, with a post about a customs ruling involving Star Trek toys.  Larry goes on to muse about the role of customs law in the Star Trek universe.  As it turns out, a check of a database of Star Trek transcripts finds a few references to cargo manifests, particularly on Deep Space Nine (unsurprising given the setting).  So while we don’t see a lot of customs law on Star Trek, it does exist.

11 Comments

Posted in administrative law, television

What Zombies Can Teach Law Students

Posted on July 28, 2015 by | 1 comment

Professor Tom Simmons at the University of South Dakota just published a great law review article titled What Zombies Can Teach Law Students: Popular Text Inclusion in Law and Literature, 66 Mercer L. Rev. 729 (2015).  Drawing on popular works such as The Walking Dead and World War Z, Simmons shows how many legal issues can be illustrated and explained in the classroom using examples that are more interesting than the abstract “A sues B” type and more engaging than examples from more “serious” literature.

I applaud Prof. Simmons’s work, which follows and greatly expands upon some of my work in this area as well as the work of Prof. Adam Chodorow at ASU and the work of Lawrence M. Friedman at John Marshall.  Anyone interested in zombie fiction or novel legal teaching methods should give the article a read.

1 Comment

Posted in television, zombies

Human Remains and the Walking Dead

Posted on February 18, 2015 by | 6 comments

Lawrence M. Friedman is a partner at Barnes, Richardson & Colburn, LLP and an adjunct professor at the John Marshall Law School’s Center for International Law.  He is also the author of the Customs Law Blog, and a previous guest poster here at Law and the Multiverse.  This post was originally written for the Customs Law Blog and is republished here by his invitation.

Lately, I have been on a slow binge of watching the Walking Dead. Like most TV adaptations of graphic novels and comics, I am finding it very entertaining. I’m only in Season 3, so no one tell me . . . well, anything. As a result, I have been seeing a lot of images of corpses, both animate and inanimate. That reminded me that there is a specific provision in the Harmonized Tariff Schedule of the United States (“HTSUS”) for the importation of corpses.

The HTSUS is the statute (19 USC 1202) by which imported products are assigned rates of duty. It also sets out certain other regulatory requirements and exceptions. General Note 3(e), HTSUS, exempts from customs duties “corpses, together with their coffins and accompanying flowers.”

When goods arrive at a port in the U.S., they are usually subject to an “entry.” That is the process of legally entering the goods into the commerce of the United States and reporting that fact to Customs and Border Protection. The Customs Regulations provide that “all merchandise” is subject to entry unless exempted and lists HTSUS General Note 3(e) as an exemption. That seems confirm that corpses are not subject to entry requirements and not subject to duty. Or maybe not.

What if the “merchandise” to be imported is human heads, heads with necks, torsos, legs, arms, etc. taken from body donors? That is the question answered by Customs and Border Protection in its private letter ruling HQ H235506 (Jan.14, 2013). As customs rulings go, this is awesome. I don’t know how I missed it when it was issued.

The ruling starts with the ancient legal principle that there can be no commercial property interest in a dead body. Among other sources, Customs cited Chief Justice of the King’s Bench, Sir Edward Coke (1552-1634) for this legal proposition. At the same time, we all have a legal right to a decent burial, which puts a duty on survivors to properly care for the body of the decedent. For this, Customs cites a book I desperately want: The Law of Cadavers by Percival Jackson. All of which must be weighed against the right of the not-yet-dead to donate their body to science under the Uniform Anatomical Gift Act.

Getting to the substance of the issue, Customs looked at prior rulings in which it determined that cadavers imported for medical analysis are “corpses” for purposes of General Note 3(e). Customs has long had the practice of exempting corpses from duty and entry.

But this case involves parts of corpses. Counsel for the importers made the hand waving argument that it would be distasteful for CBP “to begin quibbling about the relative portions of human remains that are imported before qualifying for the GN 3(e)” exemption. Based solely on longstanding practice, a couple rulings, and “the weight of history,” Customs agreed. Given that the body parts will eventually be given a decent burial, Customs saw no reason to interfere with the disposition of the “merchandise.”

I have a couple of questions. First, is there a flipside to the distasteful task of deciding how much of a body should be treated as a corpse? Counsel for the importer seemed to be wondering how much can be removed from the deceased and still have it remain a corpse for purposes of the customs laws. Apparently, the answer is that an entire body can be removed leaving the head legally a “corpse.” What about a sample taken from a living human? This ruling says an arm or leg taken from a cadaver is a “corpse” and exempt from classification and entry. What about an arm or leg taken from a living person? Is that extremity now a corpse if imported into the United States. How would Customs know whether the “donor” was living or dead? Is the legal distinction administrable?

My second question has to do with the looming zombie apocalypse depicted in the Walking Dead TV series and presumably in the graphic novel. What if the unlucky victim of viral zombie reanimation happens to be visiting the Windsor Ballet at the time of his or her demise? When the undead start shuffling north toward the tunnel to Detroit, will there be a problem when it arrives at Customs? Is the walker a “corpse?” If so, it will not need to be entered as merchandise, and can continue walking.

If it is a person, it will need to clear immigration checks, which will be hard for the inarticulate shuffler lacking a passport. Customs might have to make accommodations under the Americans with Disabilities Act. Also, would the passport still be valid? It seem the correct “birthday” would now be the date of reanimation. I will leave that to the immigration lawyers.

Assuming the walker is no longer a person, Customs should treat it like an animal. If it is a dead but still walking animal, the best guidance ruling I can find (with minimal research) is HQ 975664, in which dead animals are treated as zoological specimens in HTSUS item 9705.00.00 (it’s duty free!). In this case, the dead animal is walking itself across the border, which raises questions of whether the walker is the “owner, purchaser, or consignee” of the merchandise (which is the walker). Since we know there can be no property interest in a dead body (or living person), the walker would need to be his or her own consignee to have the legal right to make entry of himself or herself. If it is alive but non-human, I suggest an HTSUS classification of 0106.11.00 as live primates, which is also duty free.

Finally, there are, of course, issues of admissibility. As Customs pointed out in the ruling that sparked this post, the importation of corpses is subject to regulation by the Centers for Disease Control. Given the plot of The Walking Dead, it seems pretty certain that the CDC would have something to say about this.

If anyone from Customs and Border Protection knows what would happen if an unaccompanied non-human primate showed up at the border crossing, please drop a comment below.

Also, if any readers have rulings to nominate for Ruling of the Week treatment, please note them in a comment. I am particularly interested in bizarre products, crazy food items, and restricted merchandise. I am aware of the numerous NSFW rulings on personal massage devices, so no need to reference those. I try and keep this a family and office friendly site.

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Posted in administrative law, guest posts, international law, tax law, television, zombies

Laurel Lance’s Drug Problem

Posted on October 21, 2014 by | 12 comments

This guest post was written by Tracy Douglas, who is an attorney in the Illinois Governor’s Office. The opinions expressed in this article are solely those of the author and not those of the Governor’s Office.

Arrow season 2 includes a plot about Laurel Lance’s drug and alcohol addiction. This raises several legal issues about public employees and legal ethics.

 

1. Can Laurel be fired?

In “Blind Spot,” Laurel investigates Sebastian Blood. After finding drugs in her apartment, the cops arrest Laurel for drug possession (she’s been using her dad’s prescription drugs). When she’s released from police custody, she’s kidnapped, and it appears a cop was behind everything, not Blood. Assistant District Attorney Adam Donner tells her the drug charges were dropped, but she’s being fired because she has a drug problem. He tells her it’s not coming from District Attorney Spencer but from him because he hired her.   Whether her firing is proper depends on if Laurel had a right to notice and a hearing.

In certain situations, public employees have a right to notice of termination and a hearing before they are terminated. This is guaranteed by the 14th amendment’s due process clause, which protects government employees from being fired without notice and a hearing if they have a protected property interest and can only be dismissed for cause. Bd of Regents v. Roth, 408 U.S. 564, 577, 578 (1972); Perry v. Sindermann, 408 U.S. 593, 602-603 (1972). In this analysis, it must be determined if the public employment at issue is a protected property interest. Roth at 571. A property interest can be created by “existing rules or understandings that stem from an independent source such as state law.” Roth at 577. Further, where a person’s reputation is at stake, notice and an opportunity to be heard are important. Roth at 573. A public employee who can only be dismissed for cause is entitled to a limited pre-termination hearing to be followed by a more extensive post-termination hearing. Cleveland Bd. Of Ed. v. Loudermill, 470 U.S. 532, 545-546 (1985). Therefore, to be a proper firing, Laurel needs notice and a hearing if she has a property interest in her job. To have a property interest, reputation can be looked at, but state law must be examined.

Arrow is not clear where Starling City is located. The DC comics have shown it as a stand-in for San Francisco or Seattle. For this discussion, California, Washington and Illinois law will be used to see how public employment and legal ethics are treated by different states. In Washington and California, Laurel would have more job protections as a county employee than in Illinois.

In California and Washington, Laurel has a protected property interest established by county rules and possibly the collective bargaining agreements. This means she has a right to notice and an opportunity to be heard. County attorneys in San Francisco county and King County, Washington (Seattle) are represented by unions. The collective bargaining agreements might include more protections than the county rules. In the absence of the labor agreement, her employment is protected by county civil service rules. She would have notice of her termination and a right to a hearing before she is officially terminated. San Francisco County Civil Service Rule 122.1.3; 122.1.4; King County Code 3.12.270.   This satisfies the 14th amendment’s due process requirement. So, if Starling City is in a state with laws like California and Washington, then Donner could not fire Laurel without a written notice and a hearing.   His informing her may be an informal hearing under Loudermill, but she has a right to a fuller hearing. This is important because under Roth her reputation is at stake and she needs the chance to tell her side.

On the other hand, if Starling City is in a state like Illinois, Laurel may not have those protections. The state’s attorney has complete control over the office, including the ability to hire and fire employees. 55 Ill. Comp Stat. Ann. § 5/3-9006 (West 2014). Laurel may have an argument based on Roth and Sindermann that she has a protected property interest in her job. However, both Roth and Sindermann talk about public employees who are protected from being fired without cause. Without a union or contract, Illinois assistant state’s attorneys are at-will employees, and that means Laurel likely won’t have a right to notice and a hearing because firing is not limited to for cause. She could claim a right because her reputation is at stake, but the firing seems proper under Illinois law.

 

II. Would a state bar investigation make her unemployable?

In “Tremors,” Laurel refuses to seek help through counseling, and she finds out from her colleague, Joanna, that she’s under investigation by the state bar. It is looking in to her fitness to practice based on her arrest. It’s not clear how much time has passed from her firing, so it’s not clear if this is an initial investigation or if charges have been filed. Joanna’s partner sits on the disciplinary committee of the state bar, and he found out Laurel was under investigation when they thought about hiring her.   This is probably its own violation because if it is not public information yet, then he is revealing confidential information. Joanna says that while the investigation is out there, they can’t hire her. Usually, only the most egregious violations of legal ethics result in disbarment. For other cases, there are suspension and censure punishments. Laurel’s actions may have violated professional rules, but punishment depends on the severity of the violation. If the investigation is beyond the beginning stages, then Laurel will know about it. If she knows about it, then she should tell potential employers. While there is an ongoing investigation, she would likely be unemployable unless the person is a friend doing her a favor or doesn’t care about the bad optics of hiring someone under investigation.   State legal ethics are overseen by the courts, but the process varies.

In California, the state bar court oversees the rules of professional conduct and disciplinary matters. Cal Bus. & Prof. §§ 6076, 6077 (West 2014).   Under the California rules, lawyers face discipline if they “intentionally, recklessly, or repeatedly fail to perform legal services with competence” or commit an “act involving moral turpitude, dishonesty or corruption.” Cal. Rules of Professional Conduct, Rule 3-110; Cal. Bus. & Prof. § 6106. When a lawyer is charged with a crime, the bar must be notified, and it could start its own investigation even when the charges are dropped. Cal. Bus. & Prof. § 6101; California Rules of the State Bar, Title 5, Rule 2402. Any of these might cover what Laurel does in the show. What’s problematic about this situation is that Laurel seems to not know about the investigation. It’s possible that Laurel would not know about it if it’s at the preliminary stage, before she’s been notified. However, the lawyer who is being investigated would eventually be notified when charges are filed, and that would be public information. California Rules of the State Bar, Title 5, Rule 2403; Rule 2604. So, being investigated by the bar and being rendered unemployable rings true, but she would probably know about the investigation.

Washington and Illinois have similar Rules of Professional Conduct. Washington’s misconduct rule says that misconduct includes “commit[ing] a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” Washington Rules of Professional Conduct Rule 8.4(b); Illinois Rules of Professional Conduct Rule 8.4(b) (2010). Washington statute provides grounds for disbarment, including “any act involving moral turpitude, dishonesty, or corruption” and “gross incompetency in the practice of the profession.” Wash. Rev. Code Ann. 2.48.220 (West 2014). A criminal conviction is not required to begin disciplinary action. Washington Rules of Professional Conduct Rule 8.4(i). Washington’s rules also have a catchall “engage in conduct demonstrating unfitness to practice law.” Washington Rules of Professional Conduct 8.4 (n). In Illinois, however, the rules drafters clarified that lawyers are “professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice.” Illinois Rules of Professional Conduct Comment 2 (2010). Laurel could face an investigation for any of these, especially if her arrest was reported to the bar and an investigation began. It’s possible that her arrest, even though the charges were dropped, would reflect adversely on her fitness as an attorney. If she was reported, an investigation would begin.

Washington and Illinois have similar investigation practices. The Washington Disciplinary Counsel investigates complaints against lawyers, and Laurel would have an opportunity to respond during the investigation. Washington Rules for Enforcement of Lawyer Conduct (ELC) 5.3 (a)(b) (2014). In Illinois, it is the Attorney Registration and Disciplinary Commission, which investigates when it receives a complaint and may give the accused an opportunity to respond. IARDC Rule 53. If sent to a hearing, then the attorney would receive notice of the filing of charges. ELC 10.3 (a) (1)(2) (2014); IARDC Rule 55. Complaints are also published on the ARDC’s website, so a potential employer who searched the attorney’s name would be able to find the complaint Like California, the point about being unemployable seems correct, but not knowing seems wrong unless it’s in the very beginning.

Substance abuse is a real problem among lawyers. Most states have Lawyer Assistance Programs to help deal with these problems. The Washington State Bar Association has one, and Illinois law provides one ran by the Supreme Court. 705 Ill. Comp. Stat. Ann. § 235/1. California seems to have a unique program, the Attorney Diversion and Assistance Program. Cal. Bus. & Prof. §§ 6230, 6231. The State Bar can refer the attorney under investigation to this program, but the attorney will be on either inactive status or have practice restrictions, which will be lifted when his time in the program is over. Cal. Bus. & Prof. § 6232.

 

III. Can she get her job back?

In “Birds of Prey,” Donner invites Laurel to prosecute Frank Bertinelli. Laurel mentions the bar investigation is ongoing, but Donner says he has a friend on the committee who can fix it. By saying this, he commits his own ethics violation in Washington and Illinois by “stat[ing] or imply[ing] an ability to influence improperly a government agency or official.” Rule 8.4 (e) Given that he was willing to put one criminal on trial in the hopes of getting another criminal to appear, it’s not surprising that he would commit an ethics violation. This is questionable because there is usually more than one person on the committees that hear lawyer complaints. He would need to convince others to vote with him. However, it turns out to be a plot by Donner to catch the Huntress, Frank’s daughter. The Huntress comes, takes hostages in the courthouse, and is eventually captured. In the aftermath, DA Spencer tells Laurel that Donner wasn’t authorized to rehire her, but Laurel manages to keep her job by pointing out that Spencer wouldn’t want the fact that Donner was behind the hostage crisis to get out. Whether this is realistic depends on the rules governing rehiring.

If Starling City is in a state with laws like California and Washington, then this part of the plot would not be realistic unless Laurel had gone through a due process hearing to get her job back after her termination. In San Francisco county, a termination could affect the ability to be rehired. San Francisco County Civil Service Rule 122.1.4. If she were to reapply, she would have to go through the examination process after completing a year of service outside the county, and her appointment would have to be approved by the Human Resources Director. San Francisco County Civil Service Rule 122.3.   Donner would not have the ability to rehire her. If she was properly fired and didn’t challenge it, then she would not be able to be rehired quickly given these rules.

Similarly, in King County, Washington, prosecuting attorneys are subject to a competitive process because they are not career employees. KCC 3.12.090. Laurel would not be able to be rehired unless she either challenged her dismissal or went through the competitive process again. Since the episode shows Donner offering her the job without a competitive process and without a challenge of the dismissal, then getting the job back quickly is not realistic. Depending on who is the appointing authority within the King County prosecuting attorney’s office, Donner may have had the ability to rehire her. But the process wouldn’t be as easy as shown on the show.

On the other hand, if Starling City is in a state like Illinois, then she would be able to get her job back without going through a competitive process because state’s attorneys control their offices. The state’s attorney is in charge of the office and can hire and fire assistants. 55 Ill. Comp. Stat. Ann. § 5/3-9006. However, a bar investigation would be a hindrance because it would reflect poorly on the state’s attorney. Donner said he hired her in the first place, so Laurel might have an argument that he had apparent authority through agency principles to re-hire her. In a state like Illinois, getting rehired quickly is more believable even if unlikely given the investigation.

 

IV. Conclusion

Arrow season 2 looks at Laurel’s professional descent and drug addiction. It skips some steps that would be required if it took place in some states (notice and a hearing before being fired, notice of an investigation, rehiring steps). These could have been mentioned, but not shown, if they were required, depending on state law. The writers may have had to ignore some things and not show them because it is not the main plot. The beauty of not defining which state Arrow takes place in is that the law might not be wrong because state law differs on this topic. In the real world, though, she would probably not be able to get her job back that easily, assuming her firing was proper. If the state bar investigation is beyond the initial phase, Laurel would know about it and would not find out from a colleague. Unless the person hiring her is okay with hiring someone under investigation, then the investigation would render her unemployable. And Donner should not imply that he can fix it with a friend on the committee. As a device to show character growth and continuing corruption in Starling City, it works.

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Posted in Arrow, criminal law, guest posts, legal ethics, television

Law and the Multiverse Retcon #8: Orphan Black…Again

Posted on July 11, 2014 by | Leave a comment

This is the eighth post in the Law and the Multiverse Retcons series, in which I discuss changes in the law (or corrections in my analysis) that affect older posts.  Or older retcon posts, since not longer after I wrote this Orphan Black Retcon I saw Season 2 Episode 5, which further complicated matters.  Soon after that I received an email asking about it, and I knew I would have to write the first Retcon Retcon.  Spoilers ahead!

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Posted in intellectual property, mailbag, patents, retcons, television

Marvel’s Agents of S.H.I.E.L.D.

Posted on June 4, 2014 by | 65 comments

For most of the first season of Agents of S.H.I.E.L.D. I wondered what on earth I could write about.  Comparatively little of the series raised any interesting legal questions, at least ones that could be answered in any kind of concrete way based on the information presented in the series and the Marvel Cinematic Universe.  For example, S.H.I.E.L.D.’s jurisdiction is still kind of an open question, with the agency operating freely in some countries but not others.  This suggests some kind of treaty, but there just aren’t enough details to do more than speculate.

And then, finally, near the end of the season I received an email from a reader asking some great questions.  Massive spoilers for Agents of S.H.I.E.L.D. below, so if you haven’t seen season one and don’t want to be spoiled, stop reading now.

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Posted in estate law, television, torts

Law and the Multiverse Retcon #6: Orphan Black Redux

Posted on May 8, 2014 by | 14 comments

This is the sixth post in the Law and the Multiverse Retcons series, in which I discuss changes in the law (or corrections in my analysis) that affect older posts.  Or not so old posts in this case.  Barely a week ago I wrote this post about the TV series Orphan Black.  Today the US Court of Appeals for the Federal Circuit handed down a decision relevant to that post.  Spoilers ahead!

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Orphan Black

Posted on May 1, 2014 by | 27 comments

A few readers asked about the TV series Orphan Black a while back.  Now that the show is in its second season (and I finally got around to watching the first one and have caught up with the second one), I thought I’d address the central legal questions raised by the show.  Moderate spoilers below if you haven’t seen past the first episode or so, followed by big spoilers if you haven’t seen the season one finale.

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