As of July 9, 2021, 18 states have legalized marijuana for recreational use and 36 states have legalized marijuana for medical use. Despite a trend where states are becoming more welcoming towards marijuana, it remains federally illegal. This means that lawful marijuana use can have disastrous immigration consequences–even in states where marijuana use is legal.

Furthermore, lawful employment in the marijuana industry may make non-citizens ineligible for certain forms of relief. Although President Biden stood for decriminalization of marijuana during his campaign, the Biden administration has not yet formulated policy changes regarding marijuana.

Non-citizens should avoid marijuana use in any form until they become a United States citizen, as this is the best guarantee against negative immigration consequences. This includes marijuana use for medical purposes.

Non-citizens should also avoid all employment in the marijuana industry. Though it is a rapidly growing industry, employment in the marijuana industry is risky for non-citizens. Examples of employment includes harvesting, sales, working for dispensaries, transportation and delivery.

Additionally, non-citizens should avoid storing marijuana-related photos on their phones or uploading marijuana-related content on social media. Non-citizens should  also avoid possessing marijuana or marijuana paraphernalia, either inside or outside of their homes. For more tips, see the video by Immigrant Legal Resource Center below.

If you have questions about marijuana and your status, you can also contact us at (916) 340-6080 to see if you qualify for a consultation at our Immigration Clinic.

About the Author

Jordan Mickele-Niemoeller is currently a rising third-year student at University of the Pacific, McGeorge School of Law. He has been a student attorney in the Immigration clinic since Summer 2020. 

Act I, Scene IV: Jerman v. Carlisle, McNellie, Rini, Kramer, & Ulrich LPA

Hold the presses: it’s another case involving debt collection! In case you haven’t yet, check out “How Debt Collectors are Transforming the Business of State Courts.” Basically, about 1 in 4 civil cases brought to state court is related to debt collection, the total number of cases continues to increase, and most result in default judgments. Translation: attorneys for debt buying agencies are filing suit against unrepresented parties for debts that may belong to someone else, they may have already paid, or they may be unable to pay. Charming.

Thankfully, Congress enacted the Fair Debt Collection Practices Act (FDCPA) “to eliminate abusive debt collection practices, to ensure that debt collectors who abstain from such practices are not competitively disadvantaged, and to promote consistent state action to protect consumers.” Good job, Congress! Only wait… this was passed in 1977 and the problem is worse than ever. I guess keep collecting your paychecks and thank you for your service?

Anywhoozle! Back to our case. The thrilling question: whether the “bona fide error” defense, codified in section 1692k(c) applies to a violation resulting from a debt collector’s mistaken interpretation of the legal requirements of the FDCPA.

Section 813(c) of the Act, 15 U. S. C. §1692k(c), provides that a debt collector is not liable in an action brought under the Act if she can show “the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.”

Pause. I’ll translate in a minute. First, let’s tackle the elephant in the room: how to pronounce “bona fide.” According to Oxford, we’ve got four options to tackle this Latin phrase:

  1. bōnə ˌfīd. Is this the most common? Maybe it’s regional?
  2. ˈbänə ˌfīd. The short “O” feels more relaxed. Plus, I used to think it was “banafide” so this makes sense to me!
  3. bōnə ˈfīdē. Incredibly Latin, fun to say, plus a bit snobby. Professor Haynes pronounced it this way in class once and I was so distracted that I have no idea what we covered.
  4. bōnə ˈfēdā. Now with even more Latin! Never heard it.

Returning to the question, there’s an easier way to ask it: does the FDCPA provide a mistake-of-law defense to civil liability? Can someone who misunderstanding or misapplies the law avoid penalties when someone brings suit? Nope.

[I]gnorance of the law will not excuse any person, either civilly or criminally. Barlow v. United States

Most interesting to me, is the fact that an error occurs despite “procedures reasonably adapted to avoid any such error.” Despite all the checks put in place a mistake still happens. That’s fine, so long as is not a misunderstanding or misapplication of the law. So, what was the error that Carlisle committed that got us here in the first place?

Karen L. Jerman had a mortgage (emphasis on had, as Karen had already paid it in full). Carlisle sought foreclosure! That escalated quickly and also, doesn’t make any sense knowing what we know (remember, Karen had ALREADY paid off the mortgage). In their efforts to foreclose on Karen’s real property, Carlisle included a “Notice” that stated “the mortgage debt would be assumed valid unless Jerman disputed it in writing.” Yikes. Thankfully, Karen hired a lawyer who sent a letter “disputing the debt” (remember, Karen had ALREADY paid off the mortgage). Karen’s mortgagor, Countrywide Home Loans, acknowledged full payment and Carlisle withdrew the foreclosure suit.

Taking a step back, someone who PAID OFF their mortgage receives a piece of mail that says “This mortgage debt will be assumed valid unless you dispute it in writing.” Doesn’t that smell scammy? Plus, it’s total nonsense because the homeowner knows they’ve already PAID OFF their mortgage. What if Karen had thought it was just some junk mail and shredded it? Carlisle would have received a default judgment, meaning that the undisputed mortgage debt was valid and delinquent. Carlisle could have proceeded with foreclosure. That’s how the system works! It’s absurd.

This case also raised my skeptical eyebrow because of Rule 11(b).

By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

The lawyers did not conduct “an inquiry reasonable under the circumstances…” because their “factual contentions” totally lacked “evidentiary support,” as an “reasonable opportunity for further investigation or discovery” from their client would show that Karen had already paid off her mortgage. The complete lack of due diligence means that filing this complaint only served to harass Karen and other former mortgagees. Certification of this complaint by attorneys at this firm should have resulted in sanctions.

Oh, but that can’t just happen. Karen’s attorney would have needed to file a Motion for Sanctions under Rule 11(c)(2).

A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5, but it must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. If warranted, the court may award to the prevailing party the reasonable expenses, including attorney’s fees, incurred for the motion.

Despite the harassing nature of filing complaints bringing foreclosure action against former mortgagees who have already paid of their mortgages, a motion for sanctions must not be filed or presented if the complaint is challenged and then dropped within 21 days after service of the answer, motion to dismiss, or some other action by the former mortgagee. So, even if Karen thinks this conduct is horrific, as long as the firm withdraws the suit within the time period, Karen is barred from filing for sanctions.

For the the people in the back: a mortgage company hires a law firm, a law firm sues “delinquent” clients of mortgage company, Karen (a former mortgagee) is not delinquent, Karen hires an attorney to say so to the law firm, law firm drops suit after mortgage company verifies that Karen is not delinquent. And the Supremes, in their infinite wisdom, focus on whether requiring the reply challenging the outstanding debt be in writing is an unfair debt collection practice (because it violates the legal requirements within the FDCPA). Despite the fact that a simple inquiry by the law firm could have prevented this entire interaction, Karen probably couldn’t file for sanctions under Rule 11(c). Karen was able to keep the property, but think about what she had to go through to hold on to it.

Surprise to no one, John Oliver talked about debt buyers and this mess back in 2016:

Also, I cannot believe we live in a world where Debt Collector gets a sequel… Debt Collectors:

The Ethics in Government Act of 1990 contains four different articles:

Article 1: Honoraria

Article 2: Gifts

Article 3: Travel

Article 4: Campaign Funds

Article 1 defines honoraria as any payment made in consideration for a speech that is given, any article that is published, or attendance at a public or private conference, convention, meeting, social event, meal, or similar gathering. However, earned income for personal services, which are customarily provided in connection with the practice of a bonafide business trade or profession are excluded from the definition. The law prohibits any elected official, including a state officer, local government agency, or other specified individuals from receiving honorarium. In addition, no candidate for elected state office, for judicial office, or for elected office in a local government agency is allowed to accept any honorarium.

Article 2 prohibits elected officials from accepting gifts with a total value of more than $250 in any calendar year from a single source. In addition, no member of a state board or commission, certain designated state employees, or local government agencies are allowed to accept gifts in a calendar year from a single source for more than $250 adjusted annually. This amount is adjusted for inflation every year based on the California Consumer Price Index. In 2020, the amount is over $500. The law does not prohibit or limit payments, advances, or reimbursements for travel and lodging, or for wedding gifts, or gifts that are exchanged between individuals on birthdays, holidays, or similar occasions provided that the gifts exchanged are not substantially disproportionate in value.

Article 3 provides that any payments, advances or reimbursements for travel that are for actual transportation and related lodging and subsistence, must be reasonably related to a legislative or governmental purpose or to an issue of state, national or international public policy.

Article 4 requires candidates for elected state office to only accept contributions within the specified limits of the law. Campaign contributions in a campaign account are deemed to be held in trust for expenses associated with the election of that candidate or for expenses associated with holding that particular office. The rest of this article four basically sets forth the use of campaign funds for specific expenditures. For example, campaign funds may not be used to pay or reimburse the candidate or the elected officer or any individual who has authority to spend the campaign funds for travel expenses, except those that are directly related to a political legislative or governmental purpose.

You can find the full transcript of the audio in today’s podcast here.

 

In 1951 California passed the District Organization Law. The law created a procedure for the organization, operation, and government of districts in the state of California. This applies when and to the extent that it’s adopted or incorporated by reference in a law providing for a particular district or type of district in the state of California. A notice is required to be published once a week for three successive and proof of publication is required. It can be done by affidavit of the owner, publisher, printer or clerk of the newspaper.

Article Two deals with petitions and the formation proceedings. The proceedings begin when a petition is filed with the supervising authority. In Section 58,034, there are five requirements for the petition to meet. Article Three deals with preliminary hearings. This includes the requirement that the supervising authority must fix a time and place for hearings.

Article Four describes the final hearing. The law requires the supervising authority to specify the time and place for the final hearing on the petition. At the hearing any owner of land in the proposed district may present to the supervising authority a written request for exclusion of all or part of the land. The law requires the clerk publish notice of inclusion to the address of the owner of the land as shown on the county assessment rule.

Article Five involves the formation of districts. The law requires the supervising authority to call and give notice of an election within 20 days after adopting the resolution for the proposed district. The clerk is required to file a certified copy of the resolution with California’s Secretary of State. The organization of the district is complete once the clerk provides a certified copy of the resolution to the Secretary of State.

You can find the full transcript of the audio in today’s podcast here.

A couple years ago we shared a post about law student business cards. Since that time, a rather large event has occurred that may affect the demand for law students to carry business cards: the COVID-19 pandemic. With many people still wary of transmitting and catching the virus from contact with physical surfaces, not to mention the slough of new variants that seem to be discovered every other week, it’s fair to wonder if law students should bother getting business cards. However, it looks like the business card is one of those things that just won’t go away – after all, business cards have been around since the 17th century and survived through many epidemics already.

While many people may still be wary of handshakes and touching public surfaces, an old-fashioned business card is still an important tool for successful professionals, lawyers included. There have been a few waves of “digital business cards” throughout the years that would have been great for today’s world, but none of them were able to stick around for long (remember Bump?). One of the problems with these products is that there will always be security risks involved when connecting two smart devices; but likely the biggest inhibitor to going with fully digital business cards – at least for the time being – isthe fact that some lawyers and judges may not be as comfortable with new tech and smart devices as millennials and Gen Z-ers. Asking them to exchange information via Apple’s AirDrop function, Bluetooth, or a QR code can end up being much more of a hassle than simply handing over a piece of cardstock. Whenyou’re a law student or new lawyer still developing your network of mentors, making the exchange of information as easy as possible for the people you connect with is more important than your own convenience.

As we’ve mentioned before, the purpose of a law student’s business card isn’t to prompt the recipient to contact you. Instead, it should simply remind them of who you are when you reach out, and hopefully they’ll be able to recall your conversation. Business cards can play an even bigger role in this if you were only able to briefly chat with an attorney or judge, and you quickly exchanged cards before going your separate ways. For example, perhaps you had a productive but quick chat with an attorney in the hallway between court observations. Having a business card to offer will help them remember you when you follow up that 2-minute conversation with a phone call or email later.

The business card may seem like a relic of the past, but it will continue to have its uses for law students and lawyers alike. Every fall semester, McGeorge students have access to buy custom business cards through MOO.com. If you need assistance figuring out what information should go on your card, make an appointment with a CDO advisor to help you create something that will leave a memorable impression on whoever receives it. Perhaps we’ll see a time in the future where physical business cards are no more and digital cards are commonplace, but for now we continue to rely on the tried-and-true method.

Are you looking for a unique post-bar opportunity? 2Ls, 3Ls, and recent graduates should consider using the summer to apply for project-based fellowships, that typically begin in the fall (often one year out). Fellowships are highly competitive and provide a unique opportunity to jumpstart a career in law, so it’s never too early to start planning. Fellows are able to use their legal skills to affect positive change for disadvantaged populations while receiving top-rate training and supervision. You’ll further refine many of the skills developed through externships and clinics, and the experience will be very desirable when applying for future positions. PSJD gave some great tips last summer which still apply today, on how to begin your fellowship search and how to organize your project with a funding organization and a host organization. You should also contact the McGeorge Career Development Office to refine your application materials and take advantage of our connections with a number of organizations and contacts across the nation.

Not all has been doom-and-gloom during the COVID-19 pandemic. McGeorge graduates earned an 81% first-time bar pass rate on the February 2021 California Bar Exam, the second highest pass rate among all California law schools and the second highest pass rate for McGeorge over the past 25 years – having passed at 86% on the October 2020 exam. The perseverance and dedication of our students was on further display as graduates in McGeorge’s Accelerated Honors Program, the only one of its kind in the nation, achieved a staggering 100% first-time pass rate.  Congratulations to all our bar passers!

Read the full press release here.

Every year an estimated 5 million, or 1 in 10 older Americans experience elder abuse, neglect, or exploitation. Together, we can build the social supports that can prevent this abuse and keep everyone safe as we age. World Elder Abuse Awareness Day (WEAAD) – commemorated on June 15th every year – is an opportunity for people to take action to protect older people by raising awareness about elder abuse, why it occurs, and what we can do to stop it. We can act collectively to support justice for all. Check out the McGeorge Elder Health & Law Clinic talk about why they are commemorating Elder Abuse Awareness Day and what tips you can use to identify elder abuse.

If you, or someone you know is experiencing elder abuse, please call Adult Protective Services at (916) 874-9377. You can also contact the Family Justice Center at (916) 875-4673 or McGeorge Elder Health & Law Clinic at (916) 340) 6080.

The National Black Prosecutors Association (NBPA), established in 1983, is a professional member organization comprised of over 800 prosecutors.  Their mission is to recruit, train, and advance the careers of minority attorneys as prosecutors at all levels of government.  This year’s annual NBPA job fair will be held online on Tuesday, August 17, 2021. There’s still time to register at a discounted rate, after which point the registration price will rise to $50 for students and recent graduates, and $100 for experienced lawyers.

Registration Period
Law Students & 2021 Graduates
Experienced Attorneys

General Registration

May 12th – June 30th

 Free $25

Late Registration

July 1st – July 23rd

 $50 $100

For additional information about the NBPA and to register for the conference, visit www.blackprosecutors.org.

Oh no, you’ve found a parking ticket on your car or a red-light camera took your selfie in an intersection and sent you some fan mail. What happens if you just don’t pay it? Apparently, a lot. I mean, New York City even has an Office of Parking Summons Advocate that assists unrepresented/underrepresented members of the community with parking and camera violation issues. Under COVID guidelines, the time limit for submitting hearing requests and appeals have been suspended; no additional penalties will be added to unpaid tickets on or after March 22, 2020 (though interest continues to accrue on tickets issued before this date).

So, what can actually happen? Late fees, interest on the ticket/fee, installation of a car boot, suspended license, suspended registration, court summons, bench warrant for failure to appear at court summons, and even impounded vehicles.

But what happens if you’ve filed for bankruptcy? Specifically, a Chapter 13 bankruptcy which allows you to retain your property while you pay off your debts over three to five years? Enter Chicago v. Fulton.

The City of Chicago was busy! Many, many vehicles had been seized by Chicago for unpaid parking and red-light tickets. Aside: this was a class-action case and Robbin Fulton, as the named party, served as the class representative (despite no promises for Taco Tuesdays or Pizza Fridays). Establishing and proving a class is a massive undertaking, so if nothing else, that’s a remarkable accomplishment here. Fulton filed for Chapter 13 bankruptcy and Chicago refused to return Fulton’s vehicle. Both the bankruptcy court and Seventh Circuit Court of Appeals found that Chicago was obligated to return the vehicles upon filing for bankruptcy.

The Supremes decide to go in a different direction, instead answering the eternal question that plagues us all and keeps us up at night: “whether an entity violates [the automatic stay] by retaining possession of a debtor’s property after a bankruptcy petition is filed.” Basically, did Chicago take any action to exercise control over the cars after the debtors filed for bankruptcy? The debtors argued yes, Chicago refused to return our vehicles. Chicago argued no, as they simply kept the property they already had. The Court held that “mere retention of property does not violate” the automatic stay. Great. Thanks for answering a question that doesn’t actually answer anything (très Suprême).

Sonia, in true Sonia fashion, points this out:

[T]he Court has not decided whether and when §362(a)’s other provisions may require a creditor to return a debtor’s property . . . Nor has the Court addressed how bankruptcy courts should go about enforcing creditors’ separate obligation to “deliver” estate property to the trustee or debtor under §542(a). The City’s conduct may very well violate one or both of these other provisions. The Court does not decide one way or the other.

We’re diving into the bankruptcy code! §362 is the automatic stay provision. This pauses individual creditor efforts to collect debts; instead, everyone uses the bankruptcy procedures. §542 is the turnover provision. This transfers property to the trustee, disgorging the debtor and any preferential transferees. Under a Chapter 7 bankruptcy, the idea is that the trustee will gather up what they can and then dole out what’s available. Under Chapter 13, the debtor keeps their property and makes payments toward a court-approved repayment plan. Chapter 13 is only available if the debtor has “regular income.” (11 USC § 109(e))

So, hypothetically, what happens if someone needs their car to commute to work in order to maintain their employment to meet the terms of their Chapter 13 repayment plan? Sonia highlights just this type of situation with respondent George Peake:

Before the City seized his car, Peake relied on his 200,000-mile 2007 Lincoln MKZ to travel 45 miles each day from his home on the South Side of Chicago to his job in Joliet, Illinois. In June 2018, when the City impounded Peake’s car for unpaid parking and red-light tickets, the vehicle was worth just around $4,300 (and was already serving as collateral for a roughly $7,300 debt). Without his car, Peake had to pay for rides to Joliet. He filed for bankruptcy, hoping to recover his vehicle and repay his $5,393.27 debt to the City through a Chapter 13 plan. The City, however, refused to return the car until either Peake paid $1,250 upfront or after the court confirmed Peake’s bankruptcy plan. As a result, Peake’s car remained in the City’s possession for months. By denying Peake access to the vehicle he needed to commute to work, the City jeopardized Peake’s ability to make payments to all his creditors, the City included. Surely, Peake’s vehicle would have been more valuable in the hands of its owner than parked in the City’s impound lot.

George drives an older, high mileage vehicle that has already been collateralized. Also, he owes Chicago over $5K… from parking tickets? How? Having bus commuted over 60 miles away, it can take forever and be cost prohibitive without employer/institutional supplementation (thanks, Metro). Hopefully, George was able ride share with a colleague. But what is Chicago even hoping for? George’s car was already collateral for a different debt!

Drivers in low-income communities across the country face similar vicious cycles: A driver is assessed a fine she cannot immediately pay; the balance balloons as late fees accrue; the local government seizes the driver’s vehicle, adding impounding and storage fees to the growing debt; and the driver, now without reliable transportation to and from work, finds it all but impossible to repay her debt and recover her vehicle. Such drivers may turn to Chapter 13 bankruptcy for a “fresh start.” But without their vehicles, many debtors quickly find themselves unable to make their Chapter 13 payments. The cycle thus continues, disproportionately burdening communities of color . . . and interfering not only with debtors’ ability to earn an income and pay their creditors but also with their access to childcare, groceries, medical appointments, and other necessities.

This is the part where we can all express our shock and horror that there is a disparate impact, that racism and white supremacy play a central role. Thankfully, people have already pointed this out in investigative reporting and there are tools available like Do Not Pay and Upsolve that may reduce the barriers to contesting tickets and tackling the administrative procedures. And in typical John Oliver fashion, he talked about this issue IN 2015!