Atlanta's John Marshall Law Journal Volume V Issue I by Atlanta's John Marshall Law School

JOHN MARSHALL LAW JOURNAL

Volume V, Number I

Fall 2011

Editor-in-Chief STACIE L. CHAPMAN

Executive Managing Editor KIMBERLY A. COLMEY Executive Articles Editor THOMAS

RAINEY, IV

Executive Comments Editor THOMAS J. LYMAN

Executive Legislative Editor MATTHEW S. NESTRUD

Editors GINGER ARNOLD EMILY BRADY

RICKY KAPLAN Ross MOORE

DANIEL NAGEL ASHTON SAPPINGTON ELLIOTIT WERSING

GRACE CURTIS

Staff VIRIDIANA

CARREON

LOGAN MILLIANS

BENJAMIN STIDHAM

GINGER FOWLER

TIFFANY NORRIS

KRISTEN TURNER

AUDREY HOLLIDAY

CHRISTINE SAAD

JENNIFER WALKER

KAMAU HULL

TYLER SIMS

ETHAN WILLIAMS

JENNA L. MELTON

JOY SMITH

ELIZABETH YOUNG

Faculty Advisor MICHAEL B. KENT, JR.

ATLANTA'S JOHN MARSHALL LAW SCHOOL

BOARD OF DIRECTORS C. ESQ.

DR. MICHAEL RICHARD

HERZOG, JR.,

HONORABLE CAROL

ADAM MALONE,

MARKOVITZ, CHAIRMAN DEAN FRANK

HUNSTEIN

READ

KEVIN Ross, ESQ.

ESQ.

DEAN JAMES P. WHITE

ADMINISTRATION R. LYNN, Dean Associate Dean of Academics SHERYL E. HARRISON, Associate Dean of Students MICHELLE HARRIS, Assistant Dean for Administration JEFFREY A. VAN DETTA, Associate Deanfor Scholarship RICHARDSON

KEVIN CIEPLY,

FACULTY K.

LEE ADAMS

BRANDY DOMENGEAUX

BRUCE LUNA

ANDREA DONEFF

MICHAEL LYNCH

ANTHONY BAKER

LATISHA FAULKS

SUPARNA MALEMPATI

M. SCOTT BOONE

PATRICE FULCHER

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ROBERT BROWN KATHLEEN BURCH

JACE

GATEWOOD

MICHAEL MEARS

JAMES ALEC GELIN

KELLY CASEY MULLALLY ROSE ANNE NESPICA

BECKETT CANTLEY

DAVID HRICIK

VICKIE CARLTON-SADLER

ELIZABETH M. JAFFE

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NEVA BROWNING JEFFRIES

JONATHAN RAPPING

REBECCA CUMMINGS

LUCILLE JEWEL

TIMOTHY SAVIELLO

ROBERT

MICHAEL

KENT, JR.

OESER

LISA DURHAM TAYLOR LISA TRIPP

ALLISON KORT

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LOVITA TANDY

LIZA KARSAI

D'AGOSTINO

KIMBERLY WILLIAMS D'HAENE

MICHAEL

RENATA TURNER

HELEN DE HAVEN

ADJUNCT FACULTY Roy AMES

JOAN DURBIN

DOUGLAS ASHWORTH

MARTIN

BOB BARR

HOLLY

GEERDES

PETER ALAN

BASSETT

1.BEGNER

DOUGLAS BLEWS TERRINEE BRIGGS

ELLIN

EVERETT PEADEN

CAROLYN RODDY

HARVEY GRAY

JOSEPH ROSEN

CYNTHIA GREER

WILLIAM Ross

HOWELL HAUNSON

HONORABLE RANDY RICH

CRAIG HENDERSON

STANLEY W. SCHOOLCRAFT, ERIKA WALKER-CASH

MARY BROCKINGTON

KATHERINE JOHNSON

CINDY WANG

MICHAEL SCOTT CARLSON

RANDALL KESSLER

DAVID WATSON NANCY WHALEY

PATRICIA CRAFT

PATRICK LONGAN

DERRIC CROWTHER

JONATHAN MASON

JAN WHEELER

REBECCA CRUMRINE

JOSEPH MITCHELL

KARLA WILLIAMS

SHAUN DAUGHERTY

ROGER C. WILSON

III

JOHN MARSHALL LAW JOURNAL

Fall 2011

Volume V, Number I

ARTICLES How Much Clinic for How Many Students?: Examining the Decision to Offer Clinics for One Semester or an Academic Year Kele Stewart .......................................

The Evolutionary Biology of Fungi and Fraud Wendy Gerwick Couture & B. Clifford Gerwick ............

Chilling the Bidding Justin Lischak Earley ..

..............................

COMMENTS The Warrantless Search of a Cell Phone Incident to Arrest: Asking the United States Supreme Court to Answer the Call on Constitutionality ................................. Stacie L. Chapman

149

Protecting the Things That Cannot Protect Themselves: Why Georgia Must Extend Protection to Its Living Natural Assets .............................. Thomas 0. Rainey, IV

181

Unnecessary Roughness: Why the NFL Should Not Be Flagged for Antitrust Scrutiny in Labor Relations ................................ Kimberly A. Colmey .

231

LEGISLATIVE SUMMARIES Georgia General Assembly 2011 Legislative Session: House Bill 30: Contracts; Illegal or Void Ginger Fowler ....................................

271

House Bill 51: Commerce and Trade; Deposit on Beverage Containers; Recycling Ethan Williams....................................

301

House Bill 131: Conservation and Natural Resources; Certain Civil Penalties; Exempt State Agencies Jenna L. Melton...................................

329

House Bill 261: Disclosure; Certain Public Records Exempt Kristen Turner ....................................

339

House Bill 402: Georgia Crime Information Center; Criminal Records Joy Smith ........................................

349

House Resolution 186: Horse Racing; Pari-Mutuel Wagering ................................. Jennifer K. Walker .

369

Senate Bill 10: Alcoholic Beverages; If Approved by Referendum; Each County May Authorize Package Sales by Retailer on Sunday .................................. Benjamin Stidham

379

Senate Bill 63: Georgia Medical Assistance Fraud Prevention Program .......................... Viridiana G. Carreon...

391

Senate Bill 80: Evidence; Provide for DNA Analysis of Persons Arrested for Felony Offenses Tiffany Norris ... ....................................

409

Cite as John Marshall L.J.

PREFACE

In celebration of five years of publication, and on behalf of all the members, I am proud to present the first annual Fall issue of the John Marshall Law Journal. Beginning with the inaugural 2008 issue, each Journal staff has worked diligently to expand readership and improve publication quality, while maintaining the Journal'smission to act as an informative resource to Georgia's legal community. As a culmination of those efforts, the John MarshallLaw Journalwill now publish two issues annually: a Fall and Spring edition. This Fall edition, Volume V, Number 1, is a general topic issue in which timely areas of law are discussed by authors in Georgia and across the country. The first section of this Journalpresents three articles that discuss a range of law-related issues and possible legislative and judicial solutions to those issues. The opening article analyzes the importance of live clinics in law schools, whether schools should offer clinics for one semester or a full academic year, and explains the author's experience in converting a year-long clinic to one semester. The second article compares the application of broad federal fraud statutes to the use of multi-site fungicides and explores how biologists' alternatives to these fungicides can be utilized in the world of federal fraud statutes. The final article explains "chilling the bidding" in the realm of Georgia nonjudicial foreclosures, and provides a working legal framework so that borrowers, lenders, and the courts can understand their respective rights and roles in the process. In the Journal's second section, three student-authored comments focus on a variety of legal questions and suggest resolutions to each. The first comment considers whether the warrantless search of a cell phone incident to arrest is constitutional, and proposes that a law enforcement officer be allowed to seize a cell phone incident to arrest if the officer believes the cell phone contains evidence related to the arrest, but must acquire a warrant to search through the cell phone's contents. In timely correlation with the 2011 NFL lockout, the second comment addresses the effects of antitrust law on labor relations in Major League Baseball and the National Football League and proposes that the NFL should be exempt from antitrust litigation in regards to labor. The final comment considers analyzes whether Georgia's living natural assets are currently adequately protected by comparing the previous attacks to the Treaty Oak in Austin, Texas and the Toomer's Oaks in Auburn, Alabama, and proposes that modifications to the Georgia Historical Preservation Act are necessary to identify the assets in need of protection, while advancing that

deterrence is achieved with increased mandatory minimums for violations in the form of incarceration and restitution. The third and final section of the Journal contains student-prepared summaries of legislative initiatives in Georgia. Each summary offers the key proposals of the initiative, highlighting the sponsor's rationale behind the proposal. The summary also tracks the bill's progress through the General Assembly and provides the current status and intended future of the bill. New to the legislative summaries this year is a section that explains what, if any, opposition the bill has received, as well as a section that explores the possible implications the legislation will have in Georgia. In closing, I would like to thank the Editorial Board members for their dedication and excellence during the entire publication process. Each Board member has been an invaluable part of the team, and because of their outstanding work, this inaugural Fall edition became a reality. I would also like to thank all the Journaleditors and staff who put in the long hours and late nights working hard on a multitude of assignments. The Journal'squality will continue to improve because of that level of commitment. Finally, I would like to thank the Faculty Advisor, Professor Michael B. Kent, Jr. for his patience and guidance. The high level of quality scholarship the John Marshall Law Journal strives to publish would be absent without his tenacity. Stacie L. Chapman Editor-in-Chief

ABOUT THE JOHN MARSHALL

LAW JOURNAL

MANUSCRIPTS AND TOPIC AREA: Beginning in 2011, the John Marshall Law Journalpublishes a Fall issue that features commentaries on a wide variety of legal and public policy matters. Volume VI, Number 1 will be published in the Fall of 2012, and the Journal invites submission of general subject-matter articles on a timely legal issue. Manuscripts may be submitted to: Executive Articles Editor, John Marshall Law Journal, Atlanta's John Marshall Law School, 1422 West Peachtree Street NW, Atlanta, Georgia, 30309, or articleseditor@johnmarshall.edu. Manuscripts will not be returned. SUBSCRIPTIONS: Subscriptions are $10.00 per issue, payable in advance. The Journal also offers a three-year subscription (six issues) for $50.00. Remittance may be made with cash, check, or credit card. Changes of address should be sent to: Executive Managing Editor, John MarshallLaw Journal, Atlanta's John Marshall Law School, 1422 West Peachtree Street NW, Atlanta, Georgia, 30309, or lawjournal@johnmarshall.edu. BACK ISSUES: Back issues of the Journal can be purchased for $10.00, payable in advance. To order back issues, contact: Executive Managing Editor, John Marshall Law Journal,Atlanta's John Marshall Law School, 1422 West Peachtree Street NW, Atlanta, Georgia, 30309, or lawjoumal@johnmarshall.edu. The John Marshall Law Journal, ISSN 0147-3689, is edited and

published semi-annually by students of Atlanta's John Marshall Law School. The Journal may be contacted at: The John Marshall Law Journal,Atlanta's

John Marshall Law School, 1422 West Peachtree Street NW, Atlanta, Georgia, 30309 or lawjoumal@johnmarshall.edu. Text and citations in the Law Journal conform to Bluebook, A Uniform System of Citation, 19th

Edition. The Journal is printed by Joe Christensen, Inc., Lincoln, Nebraska. COPYRIGHT: Unless otherwise indicated, the Journal has granted permission for copies of each article in this issue to be reproduced for classroom use in a nationally accredited law school, provided that (1) copies are distributed at or below cost, (2) author and journal are identified on each copy, (3) proper notice of copyright is affixed to each copy, and (4) the John Marshall Law Journal is informed of each use.

Views expressed are those of the authors and do not necessarily reflect the views of the Journalor of its editors, members, or staff. Unless otherwise indicated, all editors are students at Atlanta's John Marshall Law School. For additional information about the John MarshallLaw Journal,please visit our website at: http://www.johnmarshall.edulacademics/ LawJournal.php. Copyright @ by Atlanta's John Marshall Law School

ARTICLES

How

MUCH CLINIC FOR How MANY STUDENTS?: EXAMINING THE DECISION TO OFFER CLINICS FOR ONE SEMESTER OR AN ACADEMIC YEAR KELE STEWART

ABSTRACT

Many law schools are engaged in curricular reform aimed at Two more effectively preparing students for practice. publications that have influenced these reform efforts, Best Practicesfor Legal Education and the Carnegie Foundation's report Educating Lawyers: Preparationfor the Profession of

Law, suggest that there should be more clinical opportunities. With limited resources, there is an apparent tension between providing live-client clinics to as many students as possible versus a deeper clinical experience over an academic year. This Article examines the questions raised by a law school's decision to offer a clinic for one semester or two. In designing a coherent curriculum, law schools should be able to articulate the justification for the particular mix in length and types of experiential opportunities. The first part of the Article analyzes clinical scholarship, adult learning theory and the author's * Associate Professor of Clinical Education, University of Miami School of Law. I would like to thank Anthony Alfieri, Melissa Breger, JoNel Newman, Bernard Perlmutter, Jenny Roberts, and James Stark for their support and comments. I am also grateful to the participants in the AALS Clinical Section Works-in-Progress Session (May 5, 2010), and clinicians who responded to my listserv inquiry or otherwise shared their experiences. I would also like to thank research assistants Michael DelSontro, Jennifer Pratt, Samantha Preston, and Bryan Doeg.

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[Vol. V

experience teaching a child advocacy clinic to assess the advantages and disadvantages of one-semester and year-long clinics. The author concludes that there are sufficient benefits to a full year of clinic that some year-long clinics should be part of a robust curriculum. Notwithstanding this view, she recognizes that providing the maximum number of students with a clinic is a laudable goal and students can get a meaningful experience in one semester. The second part of the Article offers recommendations for designing one-semester clinics based on the author's experience converting a year-long clinic to a one-semester clinic. The author suggests that, in offering clinics for one semester, clinicians cannot do it all and instead must make conscious choices in clinic objectives and design to ensure that students maximize the identified learning goals. TABLE OF CONTENTS .............................................

INTRODUCTION

II.

THE IMPORTANCE OF DETERMINING How MUCH CLINIC FOR How MANY STUDENTS IN DEVELOPING THE LAW SCHOOL CURRICULUM

III.

.......................................

ADVANTAGES OF A YEAR-LONG CLINIC ........................

A. B. C. D. E. F.

Students Have More Time and Experience to ................................. Develop Legal Skills A Longer Time in the Clinic May Promote ..... .................. Transfer ............. More Time in the Clinic May Leave More Time .................................. for Reflection Year-Long Clinics Allow Students to Work on More Complex Cases and Law Reform Projects.......... Year-Long Clinics Promote Strong ............. .......... Attorney-Client Relationships ClinicalFaculty May Have More Time for Scholarship, Other Courses, and Contributionsto ...... the Law School and Community ............... Year-Long Clinics May Enhance Institutional Reputation ....................................

8 16

16 22 24 25 27

29 30

IV.

ADVANTAGES OF ONE-SEMESTER CLINICS

A. B.

C. D. E.

B. C.

............ 31

............. .......... More Students Can Take Clinics One-Semester Clinics Afford Students More Flexibility in Taking Other Classes or Getting .................................. Work Experience A More Intensive One-Semester ClinicAllows Students to Focus Exclusively on Clinic................. There is Less "Dead" Time in a One-Semester Clinic ........................................... There is More Flexibilityfor Faculty to Take a Semester Offfrom Clinic to Write and Make Other ............................ Contributionsto the Law School Both Students and Faculty May Be Relieved to ................ End the Experience After a Semester

The University of Miami School ofLaw Children & Youth Law Clinic.................................. The One-Semester Experiment .......................... Lessons Learnedfrom the One-Semester ...................................... Experiment

CONSIDERATIONS FOR DESIGN & PEDAGOGY IN A ONE-SEMESTER CLINIC.....................................

A. B. C. D. E. F.

VII.

..........

REFLECTIONS ON A ONE-SEMESTER EXPERIMENT IN A .................... ............... CHILD ADVOCACY CLINIC

How Much Clinicfor How Many Students?

No. 1]

33 35 36

37 38

38 43 43

Clinic Goals...................................... .................................... Case Selection Credits, CaseloadandPre- or Co-Requisites............. Beginning & TransferringCases...................... ................. ............ Class Room Component

49 53 57 59 62

Reconstructinga One-Semester ChildAdvocacy Clinic...........................................

CONCLUSION.

........................................

...... 68

John MarshallLaw Journal I.

[Vol. V

INTRODUCTION

Inspired, or indicted, by recent calls for reform of legal education most notably in the Carnegie Report' and Best Practices, many law schools are engaged in curricular reform. 3 These reports conclude that traditional legal education's emphasis on case analysis fails to adequately prepare students for all dimensions of law practice. Clinical education-in which students learn by working on real cases for real clientshas been proposed as one solution to the shortcomings in the current legal education system. 4 As schools seek to implement the recommendations of the Carnegie Report and Best Practices, they are considering ways to improve and expand clinical opportunities. Within this context, the question of how long students should spend in clinics is an important one. Both the Carnegie Report and Best Practices advocate more clinical opportunities for students.5 The critiques suggest that attention be paid not only to increasing the type and number of clinical slots, but to providing quality clinical education that Due to resource achieves explicit institutional goals.6 constraints, schools often make difficult choices about how to achieve that imperative. 7 Clinic classes typically have low faculty-to-student ratios because of the intensive nature of clinical supervision. 8 Should schools offer clinics for one semester in an effort to provide clinics to as many students as possible? Should clinics be offered for a full academic year to provide maximum opportunity for each student to be practice1. WILLIAM M. SULLIVAN ET AL., EDUCATING LAWYERS: PREPARATION FOR THE PROFESSION OF LAW (2007) [hereinafter CARNEGIE REPORT]. 2. RoY STUCKEY AND OTHERS, BEST PRACTICES FOR LEGAL EDUCATION: A VISION AND A ROAD MAP (Clinical Legal Educ. Ass'n, 1st ed. 2007), [hereinafter available at http://www.cleaweb.org/bestpractices-full.pdf BEST PRACTICES]. 3. CARNEGIE REPORT, supra note 1, at 19; BEST PRACTICES, supra note 2, at 4. 4. Margaret Martin Barry et al., Clinical Educationfor this Millennium: The Third Wave, 7 CLINICAL L. REV. 1, 14, 47-48 (2000). 5. See, e.g., CARNEGIE REPORT, supra note 1, at 194-95; BEST PRACTICES, supra note 2, at 275-82. 6. See BEST PRACTICES, supra note 2, at 276. 7. Barry et al., supra note 4, at 22. 8. Id.

No. 1]

How Much Clinicfor How Many Students?

ready when he or she graduates? 9 While clinical scholars recognize that clinic length is a factor in clinic design, none have fully explored these questions, or analyzed how the duration of the clinic interacts with student learning, institutional and clinic goals, fiscal and political issues, and other aspects of clinic design.' 0 This Article is framed by my experience teaching the University of Miami Children and Youth Law Clinic ("CYLC"), which traditionally enrolled students for an academic year. In response to increasing student demand for clinics at the University of Miami School of Law, my colleague Professor Bernard Perlmutter and I decided to allow some students to take CYLC for only a semester. Having participated each year in a painful selection process during which we turned down earnest students, I agreed that we should try a onesemester clinic, despite my apprehensions about the logistics and impact on both students and clients. We offered the traditional year-long model to one group of students, and 9. According to the Center for the Study of Applied Legal Education ("CSALE"), 65.6% of clinics have a mandatory enrollment term of one semester. David A. Santacroce & Robert R. Kuehn, Report on the 20072008 Survey, CTR. FOR THE STUDY OF APPLIED LEGAL EDUC., 1, 14 (2008),

available at http://www.csale.org/files/CSALE.07-08.Survey.Report.pdf. Additionally, the CSALE reports that 51.7% of clinics allow some students to take the clinic beyond the mandatory enrollment term. Id. In a study of associates conducted by the National Association of Legal Professionals ("NALP"), of the 278 respondents who took part in clinics, 56.3% had participated for one semester, 32.3% for two semesters and 11.5% for more than two semesters.

2010 Survey of Law School Experiential Learning

Opportunities and Benefits NAT'L Ass'N FOR LAW PLACEMENT & NAT'L

Ass'N FOR LAW PLACEMENT FOUND.,

1, 10 (2010),

available at

http://www.nalp.org/uploads/2010ExperientialLeamingStudy.pdf [hereinafter ExperientialLearning Study]. 10. Russell Engler, The MacCrateReport Turns 10: Assessing Its Impact and Identifying Gaps We Should Seek to Narrow, 8 CLINICAL L. REV. 109,

151-52 (2001) (noting that questions such as the number of semesters for clinics should be analyzed in terms of learning theory and impact on skills and values training); Keith A. Findley, The Pedagogy of Innocence: Reflections on the Role of Innocence Projects in ClinicalLegal Education,

13 CLINICAL L. REv. 231, 268 (2006) (concluding that requiring a twelve month commitment allowed students to get a more meaningful experience in the Wisconsin Innocence Project); Philip G. Schrag, Constructinga Clinic, 3 CLINICAL L. REv. 175, 193-94 (1996) (identifying clinic length as a consideration in clinic design).

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simultaneously ran a one-semester version for one group of students in the fall and another in the spring. This allowed us to increase clinic capacity by one-third.' For law schools developing new clinics, or seeking to create additional slots in existing clinics, whether to offer the clinic for one semester or a full academic year is an important decision that must be made about clinic design. 12 This Article has two components. The first analyzes the advantages of offering a clinic for either a full academic year or one semester. The second shares lessons from my experiment trying to convert a year-long clinic into a one-semester clinic. The overarching goal of both components is to assist law schools and faculty developing clinical programs to be thoughtful and intentional about the reasons for choosing a particular approach.' 3 In designing a coherent curriculum, law schools should be able to articulate the justifications for the particular mix in length and types of experiential opportunities. 11. Professor Perimutter and I previously supervised nine students each for a total of eighteen students in an academic year. During the 2008-2009 academic year when we offered the one-semester option, along with the usual year-long model, a total of twenty-seven students took the clinic. Full adoption of a one-semester model would allow us to double capacity in the academic year. After the 2008-2009 year, we went back to a year-long model. We were nonetheless able to expand clinic capacity the following year with the creation of a supervising attorney/fellow position. This is a full-time position at the law school that allowed us to hire Carolina Guacci, an attorney with a few years of experience in juvenile practice, to supervise additional students and co-teach the clinic class. 12. Schrag, supra note 10, at 193. 13. To help analyze these issues, I posted an inquiry on the clinic listserv asking faculty who had taught in both one-semester and year-long clinics about the advantages and disadvantages of each, the reasons for the change, and any structural or design changes they made as a result. Posting of Kele Stewart, kstewart@law.miami.edu, to lawclinic@lists.washlaw.edu (Dec. 9, 2010) (on file with the John Marshall Law Journal). In addition, I asked students who participated in the CYLC during the year of the one-semester option whether the clinic should be offered for a semester or an academic year. E-mail from Maria Cruz, Faculty Assistant, Univ. of Miami, Sch. of Law Clinics to 2008-2009 CYLC Participants (Mar. 24, 2010, 3:29 PM) (on file with John Marshall Law Journal). 14. Engler, supra note 10, at 150. See also Deborah A. Maranville et al., Re-Vision Quest: A Law School Guide to Designing Experiential Courses

No. 1]

How Much Clinicfor How Many Students?

Part II of the Article reviews current efforts at curricular reform, and explains why the question of how much clinic for how many students is both important and timely. Part III provides the advantages of offering a clinic for a full academic year. With full-year clinics, the primary advantage is that students just don't "get it" in one semester; they need an entire year to master the facts, law, interpersonal relationships, and to begin exercising the independent professional judgment that lies at the heart of being a lawyer. Moreover, the types of cases students can work on tend to be more complex and far-reaching. Part III of the Article also examines these claims in light of learning theory and clinical pedagogy, and considers several other benefits to students, clients and law schools. Part IV provides advantages of offering clinics for one semester. The commonly cited advantage to limiting clinics to one semester is that more students can participate in clinics. Students may also be better able to balance clinic with other courses, as well as participate in resume-building activities such as outside legal jobs or moot court. Faculty may also be more consistently engaged and have the flexibility to take a semester off to teach other courses or focus on scholarship. It should also be noted that the pedagogical advantages of clinics generally exist in a year-long clinic. Moreover, there are some clinics that, even when given a choice, simply work better as onesemester offering. Part V offers some reflections from my experience offering the Children and Youth Law Clinic for one semester. Based on the lessons learned, Part VI considers how to design a onesemester clinic that maximizes student learning, focusing on five aspects of clinic design: (A) Clinic Goals; (B) Case Selection; (C) Credits, Caseload and Pre- or Co-Requisites; (D) Beginning and Transferring Cases; and (E) Class Room Component. I then apply some of these considerations to reconstruct the CYLC as a one-semester clinic. I conclude that there are sufficient significant benefits to having a full year of clinic that some year-long clinics should be part of a robust curriculum. Notwithstanding this view, the inclination to make clinics available to more students is a Involving

Real

Lawyering

(2010),

available

http://ssm.com/abstract=1626568 (providing a conceptual framework for thinking about experiential courses).

John MarshallLaw Journal

[Vol. V

worthy goal, and students can get a meaningful experience in a semester. In expanding clinical programs, law schools and clinicians should weigh carefully the trade-offs in deciding both the length and design of the clinic. For clinicians converting an existing clinic into one semester,1 5 there may be a temptation to simply keep doing the same thing, just plugging in a different set of students at the start of a new semester. I suggest that, in offering clinics for one semester, we cannot do it all and instead must make conscious choices in clinic objectives and design to ensure that students maximize the identified learning goals. II. THE IMPORTANCE OF DETERMINING How MUCH CLINIC FOR How MANY STUDENTS INDEVELOPING THE LAW SCHOOL CURRICULUM

There has been recent focus within law schools on reforming legal education, and particular attention to the role of The impetus for experiential learning in the curriculum. curricular change came from both within and outside the academy, spurred in part by two influential publications: Educating Lawyers 16 ("Carnegie Report") and Best Practices for Legal Education1 7 ("Best Practices"). The Carnegie Report

concludes that the emphasis traditional legal education places on case analysis fails to adequately prepare students for all dimensions of legal practice.18 In addition, the Carnegie Report

advocates that law integrated approach apprenticeships: legal identity.19 As such,

schools adopt a comprehensive and to teaching what it terms the three analysis, practical skill, and professional lawyering skills and professional values

15. Whether imposed by internal or external pressures (such as student demand, law school deans, or curriculum committees), some clinicians have converted existing clinics from a one-year model to a one-semester model. See, e.g., E-mail from David Barnhizer, Prof. of Law Emeritus, ClevelandMarshall Coll. of Law, to author (Dec. 10, 2010, 2:34 PM) (on file with the John Marshall Law Journal); E-mail from Irene Scharf, Dir. of Clinical Programs & Experiential Learning, Univ. of Mass. Sch. of Law - Dartmouth, to author (Dec. 10, 2010, 3:53 PM) (on file with the John Marshall Law Journal). 16. CARNEGIE REPORT, supra note 1. 17. BEST PRACTICES, supranote 2. 18. CARNEGIE REPORT, supra note 1, at 186-88.

19. Id. at 13-14, 27-29.

No. 1]

How Much Clinicfor How Many Students?

should assume as much primacy in the curriculum as currently Clinics are identified as a occupied by legal analysis.2 0 pedagogical approach that potentially integrates all three apprenticeships. ' The Carnegie Report notes: Law schools, we believe, need to give the teaching of practice a valued place in the legal curriculum so that formation of the students' professional judgment is not abandoned to chance. The past several decades of progress in pedagogies for teaching lawyering, including wellorganized clinical experiences with actual clients, hold the promise of rescuing this vital function of apprenticeship for practice from the vagaries of curricular accident and establishing it as a basic part of legal preparation.2 2 According to the Carnegie Report, "[i]f one were to search for a single term to describe the ability [clinics] hone best, it is probably legal judgment."2 3 While the Carnegie Report cites examples of efforts to develop an integrated curriculum, it does not endorse a particular approach. Instead, the Carnegie Report challenges the legal academy to think intentionally and creatively about how to meet this imperative.24 Also in 2007, the Clinical Legal Education Association ("CLEA") published Best Practices, which also concluded that law schools do not adequately prepare graduates for practice.25 Going beyond that critique, Best Practices provides both a process and concrete suggestions for improving legal education The key theories. 2 6 educational with consistent recommendations require law schools to clarify and expand their educational goals, improve and diversify the methods of instruction, and more effectively assess both student learning Clinics and experiential and the educational program. learning generally, are emphasized as an important part of the 20. Id. at 13-14. 21. Id. at 120-22; see also Engler, supra note 10, at 119-20; Barry et al., supra note 4, at 7; Anthony V. Alfieri, Against Practice, 107 MICH. L. REV. 1073, 1079-81 (2009). 22. CARNEGIE REPORT, supra note 1, at 115. 23. Id. at 122. 24. Id. at 180-84, 194-98. 25. BEST PRACTICES, supra note 2, at 11. 26. Id. at 7-9, 275-8 1. 27. Id. at 7-9.

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curriculum. The Carnegie Report and Best Practices have garnered considerable attention and created momentum to look closely at how we educate future attorneys. Since 2007, legal education reform, or responding to some aspect of the reports, has been the subject of several conferences 2 8 and numerous articles by legal scholars. 2 9 Ten law schools have partnered with the Carnegie Foundation to form the Legal Education Analysis and Reform Network C'LEARN") to promote implementation of the Carnegie Report. With respect to the Best Practices report, 28. See, e.g., AALS CONFERENCE ON THE FUTURE OF THE LAW SCHOOL

CURRICULUM

(June

11-14,

2011),

available

http://www.aals.org/curriculum2O11/CurriculumBrochure2011.pdf;

AALS

CONFERENCE ON CLINICAL LEGAL EDUCATION WORKBOOK, ANSWERING THE CALL FOR REFORM: USING OUTCOMES ASSESSMENT, CRITICAL THEORY AND STRATEGIC THINKING TO IMPLEMENT CHANGE (May 4-8, 2010), available at

http://www.aals.org/clinical2010/booklet.pdf;

LEGAL EDUCATION REFORM

AFTER CARNEGIE: BRINGING LAW-IN-ACTION

CLASSROOM

(Oct.

22-23,

INTO THE LAW SCHOOL

2010),

available

http://www.1aw.wisc.edu/ils/201 Olegaleducationconf/homepage.html; IMPLEMENTING BEST PRACTICES AND EDUCATING LAWYERS: TEACHING SKILLS AND PROFESSIONALISM ACROSS THE CURRICULUM (June 23-24,

2009),

available at http://lawteaching.org/conferences/2009/index.php; (Feb.

INTERNATIONAL CONFERENCE ON THE FUTURE OF LEGAL EDUCATION

20-23,

2008),

available

http://law.gsu.edu/FutureOfLegalEducationConference/. 29. See, e.g., Randy D. Gordon, How Lawyers (Come to) See the World: A Narrative Theory of Legal Pedagogy, 56 LOY. L. REV. 619 (2010); Rogelio A. Lasso, Is Our Students Learning? Using Assessments to Measure and Improve Law School Learning and Performance, 15 BARRY L. REv. 73 (2010); James R. Maxeiner, Educating Lawyers Now and Then: Two Carnegie Critiques of the Common Law and the Case Method, 35 INT'L J. LEGAL INFO. 1 (2007). 30. LEGAL EDUCATION ANALYSIS AND REFORM NETWORK, GENERAL DESCRIPTIONS OF PLANNED PROJECTS 2009-2010 (2009), available at

http://www.law.stanford.edu/display/images/dynamic/eventsmedia/LEARN 030509 lr.pdf The ten law schools participating in LEARN are: CUNY Law School, Georgetown University Law Center, Harvard Law School, Indiana University School of Law (Bloomington), New York University School of Law, Southwestern Law School, Stanford Law School, University of Dayton School of Law, University of New Mexico Law School, and Vanderbilt University Law School. Id. at 5. LEARN has three working groups focused on: (1) "maintain[ing] and enhance[ing] the momentum for law schools across the country to consider whether their curricula reflect the needs for teaching a wider variety of subjects, creating a wider array of

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CLEA has developed a Best Practices implementation group that provides technical assistance to law schools and is currently working on a second edition. These are not the first reformist efforts aimed at making law school more relevant to practice. 3 1 The well-known MacCrate Report is an earlier indictment against legal education's emphasis on non-practical skills. 32 The MacCrate report concluded that law schools need to more effectively prepare students to competently practice law, and identified ten "fundamental lawyering skills" and four "fundamental values" that law schools should teach.3 3 Although it received considerable attention, the MacCrate Report was generally not embraced by mainstream academia and did not lead to far-reaching changes throughout the law school curriculum. There are now a confluence of other forces driving the academy itself to critically re-examine how best to educate law students. Recent studies show that law students and recent graduates value opportunities to get practice skills while in law school. According to one empirical survey, After the JD, new attorneys ranked clinical courses as more useful in making the transition to practice than other courses in the law school curriculum, including the first-year curriculum, upper-level, and course concentrations. 34 The only experiences ranked more useful than clinics were legal employment during the summer and the school year.3 5 The Law School Survey of Student learning environments (such as simulations and clinical work), and integrating the teaching of the three apprenticeships"; (2) transmitting reform initiatives to individual faculty; and (3) examining the role of assessments in legal education. Id. at 10-11. 31. See Rebecca Sandefur & Jeffrey Selbin, The Clinic Effect, 16 CLINICAL L. REV. 57, 61-70 (2009) (summarizing earlier critiques of legal

education and providing a history of efforts to reform legal education). 32. TASK FORCE ON LAW SCH. AND THE PROFESSION: NARROWING THE GAP, AM. BAR Ass'N SECTION OF LEGAL EDUC. AND ADMISSIONS TO THE BAR, LEGAL EDUC. AND PROFESSIONAL DEVELOPMENT-AN EDUCATIONAL

CONTINUUM (1992) [hereinafter MACCRATE REPORT].

33.Id. at 138-41. 34. Ronit Dinovitzer et al., After the JD: FirstResults ofa National Study of Legal Careers, NAT'L ASS'N FOR LAW PLACEMENT FOUND. & AM. BAR

available (2004), 81 FOUND., http://www.americanbarfoundation.org/uploads/cms/documents/ajd.pdf. 35. Id. at 79.

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Engagement ("LSSSE") "suggest[s] that clinical experience[s] may enhance [students'] learning about legal ethics[]" and professionalism. 36 Moreover, a recent study from the National Association for Legal Professionals ("NALP") indicated that 63.1% of law firm associates who had taken "clinics representing individual clients" found them "very useful" (four on a four-point scale), with another 21.2% ranking them a three on a four-point scale. 37 Law schools may take this feedback seriously in light of complaints from graduates about poor employment prospects and that future earning potential does not justify the high cost of legal education.3 8 The economic downturn and resulting changes in the legal market are also exerting pressure on law schools to produce Clients demand cost-saving practice ready graduates. 3 9 36. Carole Silver et al., Unpacking the Apprenticeship of Professional Identity and Purpose: Insights from the Law School Survey of Student Engagement, 17 J. LEGAL WRITING INST. 373, 396 (2011). LSSE is an annual national survey of law students that focuses on "the degree to which students use the school's resources for learning in educationally productive ways" by asking about how students spend their time, what they experience and how they benefit from those experiences. Id. at 379 n.28 (quoting Patrick T. O'Day & George D. Kuh, Assessing What Matters in Law School: The Law School Survey of Student Engagement, 81 IND. L.J. 401, 405-06 (2006)). With respect to legal ethics, students were asked which types of law school settings were effective for learning legal ethics. Id. at 384. The authors found "that clinical experience may enhance learning legal ethics, but more research is necessary to confirm the direct relationship." Id at 396. With respect to professionalism, students with a clinical experience, whether or not they also had paid legal work experience, reported higher positive gains in terms of "building [positive] relationships with future clients, [deepening the] capacity for moral reasoning, [preparation for] handling the stress of law practice, [strengthening commitment to] serving the public good, and acting with integrity[]" in both personal and professional settings. Id. at 399-400. 37. ExperientialLearning Study, supra note 9, at 26. 38. David Segal, Is Law School a Losing Game?, N.Y. TIMES, Jan. 8, 2011,

BUl,

available

http://www.nytimes.com/2011/01/09/business/09law.html?_r- 1. 39. Cynthia Baker & Robert Lancaster, Under Pressure: Rethinking Externships In A Bleak Economy, 17 CLINIcAL L. REv. 71, 91 (2010) (exploring how the economic downturn has created changes in "pedagogy and structure" of law school externship programs); Clark D. Cunningham, Should American Law Schools Continue To Graduate Lawyers Whom Clients Consider Worthless?, 70 MD. L. REv. 499, 502-03 (2011)

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measures and are no longer willing to pay to train junior associates.40 Large law firms that previously absorbed a significant number of graduates at high salaries have cut back on hiring and seek junior associates who can add value.41 Many law students who may have worked in larger law firms now enter solo practice, small firms, or non-law firm settings where they may not get formal training or individual mentorship. The net result is intense competition for jobs and students either enter firms where they are expected to hit the ground running, or encounter work settings where they will not receive formal or informal training. In these environments, there is pressure-and the need-for "law schools to fill the void" in terms of preparation and professional identity formation.42 In the current discussion about how best to prepare students for this demanding job market, there is often a focus on the role of law school clinics in the curriculum. Because of the developments in clinical education and scholarship over the past few decades, the contributions of this Article in exploring that role are particularly timely. There has been significant growth in the number of clinics offered across the country, as well as in the substantive areas and type of work performed.4 3 Clinical scholarship is also further along in the types of questions being considered. Whereas the earliest clinical scholarship focused on "the general concept of using real cases to teach law students," the 1970s and 1980s saw the emergence of scholarship defining clinical methodology and constructing a "common vocabulary of discourse on educational issues." 4 Since the 1990s, clinical scholarship has flourished and solidified into a field that now The maturation of confronts a broad range of questions. 4 5 clinical education and scholarship allows rich and nuanced (explaining that the current economy prevents law firms from being able to provide mentoring and on-the-job training). 40. Steven C. Bennett, When Will Law School Change?, 89 NEB. L. REV. 87, 109-10 (2010). 41. Id. at 110-13. 42. Charlotte S. Alexander, Learning to Be Lawyers: ProfessionalIdentity and the Law School Curriculum, 70 MD. L. REV. 465, 466 (2011). 43. J.P. "Sandy" Ogilvy, Celebrating CLEPR'S 40th Anniversary: The Early Development of ClinicalLegal Education and Legal Ethics Instruction in U.S. Law Schools, 16 CL[NICAL L. REV. 1, 15, 19 (2009). 44. Barry et al., supra note 4, at 16-17 (citation omitted). 45. Id. at 18.

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discussions about how to provide quality clinical education and its connections to the broader curriculum. Within this context, questions about how much clinic for how many students become important. What precisely does it mean to provide more clinical opportunities to students? And is the goal to provide a clinical experience deep enough to be able to stamp "practice-ready" on a student's forehead? Both the Carnegie Report and Best Practices recommend that law schools provide more clinical opportunities for students. 46 Specifically, the Carnegie Report suggests a third year "cap stone" experience for every student that would involve an opportunity to practice.4 7 In forecasting the future of clinical education, Margaret Barry, Jon Dubin, and Peter Joy envision "an in-house clinical experience for every student."4 8 In fact, several schools have instituted mandatory clinic requirements. 4 9 Given the relatively small class sizes of clinics, the cost of clinical education is often cited as one of the reasons not to expand clinical programs.50 Limiting clinics to one semester is viewed 46. CARNEGIE REPORT, supra note 1, at 87-89; BEST PRACTICES, supra

note 2, at 8-11, 167. 47. CARNEGIE REPORT, supra note 1, at 195.

48. Barry et al., supra note 4, at 18. 49. UNIV. OF N.M. SCH. OF LAW, DEGREE REQUIREMENTS, REQUIRED at available COURSES,

http://lawschool.unm.edu/academics/programs/requirements.php (last visited Dec. 15, 2011) (requiring every student to "participate satisfactorily in at least six hours of clinical law school..."); CITY UNIV. OF N.Y. SCH. OF LAW, at available CURRICULUM/COURSES, http://www.law.cuny.edu/academics/curriculum.html (last visited Dec. 15, 2011) (requiring "one or two semester clinic or concentration, for a total of 12-16 credits..."); UNIV. OF CAL. - IRVINE, SCH. OF LAW, DEGREE REQUIREMENTS, UPPER LEVEL ACADEMIC REQUIREMENTS, available at http://www.law.uci.edu/registrar/jd_requirements.html (last visited Dec. 15, 2011) (requiring students "to complete at least one semester of clinical See also ALBANY LAW. SCH., SCHS. REQUIRING education..."). available at COURSES, EXPERIENTIAL http://www.albanylaw.edu/sub.php?navigationid=1737 (last visited Dec. 15, 2011) (providing a list of law schools with mandatory experiential requirements). 50. MACCRATE REPORT, supra note 32, at 254 n.36; Barry et al., supra note 4, at 21-22 (summarizing studies that discuss the high per student cost of clinics); Erwin Chemerinsky, Why Not ClinicalEducation?, 16 CLINICAL L. REV. 35, 38 (2009) (identifying cost as one of the obstacles to growth of

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as a way to offer clinical opportunities to more students without In a world with limited investing additional resources. resources, there is an apparent tension between being able to certify that each student who passes through a clinic will leave law school ready to practice, and ensuring that every student has some opportunity to gain practice skills. Advocates of clinical education suggest that cost should not drive the discussion in resolving these tensions, but instead curricular developments should focus on the school's goals and quality of the educational experience. Regardless of how law schools ultimately resolve these tensions, the most important thing is that law schools understand the trade-offs involved and thoughtfully develop The clinical opportunities that meet institutional goals. Carnegie Report notes: clinical education). 51. Advocates of clinical education are starting to challenge the premise that clinical education is "too expensive" to become a pervasive part of the curriculum. Barry, Dubin, and Joy note: What such discussions of the costs of clinical instruction generally lack, however, is a normative assessment of what is actually needed to provide a quality legal education that prepares students for the practice of law. When the discussion is focused on the quality of the educational experience, then budget increases - or budget reallocations - to fund an expansion of in-house clinical programs become more realistic and palatable. Barry et al., supra note 4, at 23. They argue that any discussions of cost should involve a broader view of the law school budget and current cost allocations. Id. at 23-26. Analyzing the cost of clinical education is also the subject of discussion at recent conferences. See, e.g., BRENDA B. BLOM & JEFF J. POKORAK, BEYOND A COST/BENEFIT ANALYSIS: MUSTERING THE ARGUMENTS FOR A VALUE-BASED PROGRAM DECISION, ASS'N AM. LAW SCHS. CONFERENCE ON CLINICAL LEGAL EDUCATION, 35 (June 16, 2011),

at available http://www.aals.org/clinical2011 /Clinical&CurriculumWorkbooklet.pdf; BOS. COLL. THIRD WORLD LAW J. SYMP: THE WAY TO CARNEGIE: PRACTICE, A CONVERSATION ABOUT PEDAGOGY, SOCIAL PRACTICE, PRACTICE: JUSTICE AND COST IN LEGAL EDUCATION (Oct. 28, 2011). I agree that law schools need to think more critically about the assumption that clinical education is "more or too" expensive. Exploring the cost question, however, is beyond the scope of this Article. Instead, this Article identifies and attempts to address the tensions that are inherent in many curricular discussions, which are framed in terms of cost at many law schools across the country.

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Research validates the widespread belief that developing professional judgment takes a long time, as well as much experience. It cannot typically be achieved within three years of law school, no matter how well crafted the students' experience. But those years in law school can give students a solid foundation and, as they begin their careers in the law, useful guidance on what they need to continue to developif the curriculum and teaching in law school are conceived and carried out with the intentional goal of promoting growth in expertise. Knowing the end is an essential step toward figuring out the best means for getting to it. 52 While schools have made progress in providing students more experience and choices, "efforts to improve legal education have been more piecemeal than comprehensive. Few schools have made the overall practices and effects of their educational effort a subject for serious study. Too few have attempted to address these inadequacies on a systematic basis." 53 To assist law schools in making intentional curricular decisions, this Article examines the trade-offs between offering clinical opportunities to as many students as possible and deeper clinical experiences to those who want it. III. ADVANTAGES OF A YEAR-LONG CLINIC

A. Students Have More Time and Experience to Develop Legal Skills Clinical scholars have anecdotally shared their sense that students cannot become proficient at the multi-faceted In dimensions of practicing law in just one semester.5 4 52. CARNEGIE REPORT, supra note 1, at 115-16. 53. Id. at 190.

54. James H. Stark, Preliminary Reflections on the Establishment of a Mediation Clinic, 2 CLINICAL L. REV. 457, 463 (1996) (noting that in his mediation clinic "[ejach semester, I have frontloaded more skills training into the first weeks of the semester. Nevertheless, students tell me that they barely begin to discover their sea legs .

. when the semester comes to an

end."); Hope Babcock, Environmental Justice Clinics: Visible Models of Justice, 14 STAN. ENVTL. L.J. 3, 39 (1995) (noting that structuring a one semester environmental clinic poses pedagogical challenges); Findley, supra note 10, at 269 (learning through trial and error that students in an innocence clinic got a more meaningful experience when the commitment was extended to twelve months). On December 9, 2010, I posted an inquiry on the law clinic listserv asking anyone who had changed from a year-long clinic to a

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Handling Big Cases in Law School Clinics, Nancy Maurer laments, "[j]ust as their skills begin to emerge and their interest peaks, the semester winds down. Students, who are not able to quickly master the file, absorb the case history, understand the client and grasp the necessary law and procedure, are too easily relegated to observer status."55 For those clinicians who have taught both one-semester and ear-long clinics, the difference in student growth is discernible. 6 Having turned a one-semester consumer and social security clinic into a year-long clinic, Phillip Schrag comments: The result, predictably, was very satisfying to us and to our students, and entirely unsatisfactory to those on our waiting list. We served fewer students over the course of the year than [the one-semester clinic] would have served, but each student handled more than one case of each type and students could learn from experience (including mistakes) and observe their own improvement from one semester to the next. For these reasons, several clinical scholars have recommended year-long clinics based on their own experience.5 8 one-semester clinic, or vice versa, why they had made the change; how the goals for the course changed; how the structure and design of the clinic change; and what were the advantages and disadvantages of doing either a one-semester or a year-long clinic? Posting of Kele Stewart, kstewart@law.miami.edu, to lawclinic.lists.washlaw.edu (Dec. 9, 2010, 10:08 AM) (on file with John Marshall Law Journal). The respondents who preferred a year-long clinic typically expressed their sense that students needed an entire year to have a meaningful clinic experience. E-mail from Maureen Laflin, Dir. of Clinical Programs, Univ. of Idaho Coll. of Law to author (Dec. 9, 2010, 1:06 PM) (on file with John Marshall Law Journal). 55. Nancy M. Maurer, Handling Big Cases in Law School Clinics, or Lessons From My Clinic Sabbatical, 9 CLINICAL L. REv. 879, 892 (2003).

56. My own experience teaching a one semester version of the University of Miami CYLC is described below. See infra Part V. 57. Schrag, supra note 10, at 198. 58. Findley, supra note 10, at 268 (arguing that one semester is not enough time for a rich educational experience in an Innocence Clinic and describing the Wisconsin Innocence Project where students make a 12month commitment to the clinic); Andrew L.S. Leong, A PracticalGuide to Establishing an Asian Law Clinic: Reflections on the Chinatown Clinical Program at Boston College Law School, 2 ASIAN PAC. AM. L.J. 83, 91-98

(1994) (recommending a year-long clinic based on lessons learned from the growth and ultimate demise of a clinic serving Boston's Chinatown

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Adult learning theory-which provides a useful framework to assess and design clinical courses59 -confirms that there are legitimate reasons to extend the clinic experience beyond a semester.60 Adult leaming theory draws primarily from clinical and social psychology to examine how adults learn. 6 1 At its core, adult leaming theory is concerned with learning, instruction, and transfer among adults. "Learning is a change in human disposition or capability, which persists over a period of time, and which is not simply ascribable to processes of growth." 6 2 By instruction, learning theorists generally mean "the deliberate arrangement of learnin conditions to promote The third central aim the attainment of some intended goal." in designing education based on adult learning theory is transfer, which means that learners can apply what was learned to a new situation or context.6 4 residents). Several of the clinicians who responded to my list-serve inquiry also made this recommendation. See, e.g., E-mail from Maureen Laflin, Dir. of Clinical Programs, Univ. of Idaho Coll. of Law, to author (Dec. 9, 2010, 1:06 PM) (on file with the John Marshall Law Journal); E-mail from Irene Scharf, Dir. of Clinical Programs and Experiential Learning, Univ. of Mass. Sch. of Law-Dartmouth, to author (Dec. 10, 2010 3:53 PM) (on file with the John Marshall Law Journal); Interview with Jane Spinak, Edward Ross Aranow Clinical Prof. of Law, Columbia Sch. of Law (Dec. 13, 2010). 59. Frank S. Bloch, The AndragogicalBasis of ClinicalLegal Education, 35 VAND. L. REv. 321, 325 (1982). 60. See Michael Hunter Schwartz, Teaching Law by Design: How Learning Theory and Instructional Design Can Inform and Reform Law Teaching, 38 SAN DIEGO L. REv. 347, 366 (2001) (explaining that "[fWor learning to have occurred.. the duration of the change is long-term rather than short-term...") (citations omitted).

61. Id. Adult Learning Theory draws on different strands of clinical psychology including behaviorism, cognitivism, and constructivism. Id. at 365. It is referred to as andragogy to distinguish it from pedagogy, which refers to helping children learn. Id. at 350 n.6 (citation omitted). The goal for instructional designers is not to identify which theory is correct, but rather to use learning theory to select the best approach in particular circumstances. Id. at 362-63. 62. Id. at 366 (quoting ROBERT M. GAGNE, THE CONDITIONS OF LEARNING AND THEORY OF INSTRUCTIONS 3 (4th ed. 1985)).

63. Id. (quoting MARCY PERKINS DRISCOLL, PSYCHOLOGY OF LEARNING FOR INSTRUCTION 332 (1st ed. 1994)). 64. Id. at 366-67; see also COMM. ON DEVS. IN THE SCI. OF LEARNING & COMM. ON LEARNING RESEARCH AND EDUC. PRACTICE, COMM. ON BEHAVIORAL AND Soc. ScIs., How PEOPLE LEARN, NAT'L RESEARCH

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There are two characteristics of adult learners with implications for the length of the clinic. First, adults have accumulated a range of experiences that they draw upon when learning new information.6 Second, "[i]n contrast to children's ... subject-centered orientation to learning ... , adults are life-

centered (or task-centered or problem-centered) in their orientation to learning." 66 Adult learning theory, with its focus COUNCIL 51 (John D. Bransford et al. eds., 2000), available at http://www.nap.edu/openbook.php?recordid=9853&page=R1 [hereinafter How PEOPLE LEARN]; see also Anthony Marini & Randy Genereux, The Challenge of Teaching for Transfer, 2, in TEACHING FOR TRANSFER: FOSTERING GENERALIZATION IN LEARNING 1-20 (Anne McKeough et al., eds., 1995) [hereinafter TEACHING FOR TRANSFER]. 65. MALCOLM S. KNOWLES ET AL., THE ADULT LEARNER: THE DEFINITIVE CLASSIC IN ADULT EDUCATION AND HUMAN RESOURCE DEVELOPMENT 181-83 (5th ed. 1998) [hereinafter THE ADULT LEARNER]. Knowles is credited with introducing in the United States the concept that adults and children learn differently and establishing andragogy as a distinct discipline. Id. at 1-3. His early works identified four characteristics that distinguish adult learners, but added two additional characteristics in later work. Id. at 64-69. First, adults "need to know" how learning will be conducted, what learning will occur, and why learning is important before they can engage in learning. Id. at 64-65. Second, adults view themselves as self-directing, in contrast with children who view themselves as wholly dependent on the instructor. Id. at 65. Third, adults have accumulated a range of experiences that they draw upon when learning new information. Id. at 65-66. Fourth, adults are most ready to learn a particular task if it is relevant to their social role and needed to cope with a real-life situation. Id. at 67. Fifth, in contrast to children's subject-centered orientation to learning, adults are life-centered or problem-centered in their orientation to learning. Id. at 67-68. Sixth, "adults are responsive to some external motivators (better jobs, promotions, higher salaries, and the like")," but the most powerful "motivators are internal factors (the desire for increased job satisfaction, self-esteem, quality of life, and the like)." Id. at 68. See also Bloch, supra note 59, at 329. 66. THE ADULT LEARNER, supra note 65, at 67. Adults seek to apply learning immediately, as opposed to children's view that learning is for some future benefit. Id. Adults are motivated to learn to the extent that they perceive that learning will help them perform tasks or deal with problems that they confront in their life situations. Furthermore, they learn new knowledge, understandings, skills, values, and attitudes most effectively when they are presented in the context of application to real-life situations. Id.

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on experiential learning, supports the use of clinical methodology as an effective way to teach law students. 67 One school of learning theorists "emphasize the need for learners to be situated in real world settings in which they encounter the complex, multilayered, ill-structured, and ill-defined problems that arise in real life." 6 8 Clinical education is experiential learning both in the sense that law students, especially second and third year law students, have life and law-related experiences that they bring to the clinic and the experience of actual representation in the clinic is a basis for learning. 6 While law students are generally ready to learn about the law, and thus open to all methods of instruction, "optimal compliance with the andragogically dictated sensitivity to the student's readiness to learn is attained" when a law student is taught through representation of a real client in an active legal dispute. 7 0 The ''class material" for clinics is the client's real world problems capitalizing on adult learners' orientation to problem solving. The learning is immediate as students must learn to solve the problems or face real consequences for themselves and the client. More time in a clinic allows students to accumulate more experience upon which to learn. Clinical education allows law students to relate their own experience, as well as the new experiences gained in the clinic, to whatever is being taught in the clinic. In describing how clinical education satisfies the requirements of adult learning theory, Frank Bloch describes one of the earliest accounts of clinical education: Gary Bellow and Earl Johnson found that students handling cases in their clinic began to be far more interested in their own experiences as a source of theoretical generalization, and far more concerned with theory as a tool for defining and understanding experience, than they were when they first started.7 1 67. See Bloch, supra note 59, at 341; Fran Quigley, Seizing the Disorienting Moment: Adult Learning Theory and the Teaching of Social Justice in Law School Clinics, 2 CLINICAL L. REv. 37, 49 (1995). 68. Schwartz, supra note 60, at 380. 69. Bloch, supra note 59, at 341. 70. Id. at 343. 71. Id. at 342 (quoting Gary Bellow & Earl Johnson, Reflections on the University of Southern California Clinical Semester, 44 S. CAL. L. REV.

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In order for students to use their experiences in the clinic as a tool for learning, they must first accumulate a body of their own experience that they can apply to new situations and compare to faculty or course material's assertions about the situation.72 Therefore, it is more likely that process will take place if students can take the clinic for a longer period. Having clinic for two semesters also increases the likelihood that students will handle a legal matter from beginning to end. Learning theory suggests that students will learn best if they can actually use their accumulated experience to resolve the identified problem. Seeing the complete progression of a legal matter is important for student lawyers. Students get to experience every phase of the legal process, from the initial interview to the final disposition, and they can reflect on how choices they made early in the representation impacted the process and outcome. Feedback, which can be provided in many forms, is a critical element in adult learning. 7 3 Clinical supervisors provide immediate feedback about every performance, but students also get feedback in other important ways. For example, when conducting research, students "either find relevant information or they find themselves struggling with dead ends and detours. The results cause them to make adjustments in their strategies and learning occurs." 74 In a clinical setting, one of the most meaningful opportunities for feedback arises from the students' reflection on how well they achieved their clients' goals. A student who only conducts fact investigation during a semester will certainly learn what that task entails. The supervisor might, for example, suggest that the student explore more avenues to uncover facts. If that student also has the opportunity to negotiate a settlement or conduct a trial, a lesson about how the students' fact investigation may have unwittingly narrowed the 664, 688-89 (1971)). 72. Id. at 341-42. 73. Feedback is important because it concerns "the correctness of the learner's responses [and] is closely related to assessment of learning outcomes." THE ADULT LEARNER, supra note 65, at 83; see also TEACHING FOR TRANSFER, supra note 64, at 89 (stating "feedback encourages learners to pursue appropriate courses of action and builds feelings of confidence[]"). 74. Linda S. Anderson, IncorporatingAdult Learning Theory Into Law School Classrooms: Small Steps Leading to Large Results, 5 APPALACHIAN

J.L. 127, 145 (2006).

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facts becomes that much more palpable. B. A Longer Time in the Clinic May Promote Transfer

More time in the clinic may be necessary for far transfer-the application of learning to new and varied situations that require problem-solving.7 5 Far transfer is essential in a legal context where "[t]he very essence of law practice is the ability to draw upon a set of core lawyering skills when faced with diverse facts and legal disciplines."76 To encode experience in students' long-term memory, among other things, students must have several opportunities to practice using the skills, along with meaningful feedback. 77 "For example, if an instructor wants to develop students' competency in determining what evidence to look for during discovery, students should have a number of opportunities to try their hand at this task."7 8 In a one-semester course, where students may do a task only once or twice, it is unlikely that students will get repeated opportunities to practice a skill, learn from the experience, and then get to practice the same skill repeatedly. For far transfer, students should also "encounter the same type of problem in different contexts." 79 Over the course of an academic year, it is more likely that the same type of problem will arise in different ways. For example, students get multiple opportunities to do client interviews in different types of cases and with clients who have very different personalities or challenges. Each interview may present an opportunity to learn and practice interview techniques, but students can begin to understand how interview theories work in a different context. A year-long clinic allows the sequencing of instruction in a 75. David A. Binder & Paul Bergman, Taking Lawyering Skills Training Seriously, 10 CLINICAL L. REv. 191, 198 (2003). In contrast, a near transfer

involves the application of learning "to tasks that are relatively routine and repetitive in nature." Id. 76. Tonya Kowalski, True North: Navigatingfor the Transfer of Learning in Legal Education, 34 SEATTLE U. L. REv. 51, 62 (2010); Binder &

Bergman, supra note 75, at 198 ("In a legal context, far transfer tasks would include applying general principles of lawyering skills such as interviewing, counseling and negotiation to concrete inter-personal interactions."). 77. Kowalski, supra note 76, at 76-77. 78. Binder & Bergman, supra note 75, at 201. 79. Id. at 201.

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way conducive to transfer. Learning theory suggests "that instruction should be sequenced so that students can master early steps and easier problems early in instruction. Only later should students progress to more difficult and complex steps and problems."80 In order for learners to actively store learning in an organized, meaningful, and useable manner in long-term memory, psychologists recommend creating learning experiences to allow and encourage students to make connections between previously learned material and new material.' Some learning theorists emphasize structuring, organizing, and sequencing information to facilitate optimal processing. Thus, in the course of a year-long clinic, the faculty has the flexibility to do just that. For example, sessions on interviewing might focus on basic interview process techniques during the first semester, while, richer more nuanced learning about narrative theory may happen in the second semester. Or, a student may have to develop a theory of the case for a written pleading or motion in the first semester, and then subsequently refine and use the case theory to prepare the case for trial. A year-long clinic offers more time to build students' knowledge incrementally. Learning theory suggests that students simply cannot get everything clinicians expect them to in the course of a semester. Students should be given adequate time to learn and their experience spread out over time. 84 In thinking specifically about that elusive, but ever important skill of problem solving, Stefan Krieger argues that students need to develop a foundation in the doctrine underlying their cases before they can develop problem-solving schemas. Krieger also observes: 80. Schwartz, supra note 60, at 368. 81. How PEOPLE LEARN, supra note 64, at 239. 82. Id. at 96. 83. Kowalski, supra note 76, at 76-77 (summarizing Robert Haskell's model that "use[s] current research in cognitive psychology, neurochemistry and educational theory to show that," among other things, "students need practice, drill, and time to incubate in order to build their ability to transfer.") (citations omitted). 84. Binder & Bergman, supra note 75, at 301. 85. Stefan H. Krieger, Domain Knowledge and the Teaching of Creative Legal Problem Solving, 11 CLINICAL L. REv. 149, 202-03 (2004) (asserting

this knowledge base cannot be supplanted simply by giving students the relevant law or frontloading).

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Given the cognitive demands of learning how to structure practical experience with domain knowledge, it is questionable whether students handling a particular client's case have the ability - at least initially - to engage in problem solving the legal issues and, at the same time, reflect extensively on the nonlegal context of the case. 86 Krieger suggests this challenge maybe overcome by extending the clinic term beyond a semester. 8 7 "It is important to be realistic about the amount of time it takes to learn complex subject matter. ... In all domains of learning, the development

of expertise occurs only with major investments of time[.]" 88 Given the complex nature of lawyering, a full academic year provides more time for students to acquire transferable skills. C. More Time in the Clinic May Leave More Time for Reflection

A year-long clinic allows more time for reflection. "Adults' capacity for self-direction is dependent on their ability to be self-aware and to reflect on the implications of their experiences for future action." 89 Adult learning theorists posit that learners cannot gain true value from experience if not given the opportunity to reflect on lessons and assimilate them into knowledge for future use. 90 A key advantage-and central tenet-of learning in a clinical setting, as opposed to a practice setting, is the ability to engage in guided reflection with an expert. 9 This reflection takes many forms including journals, rounds, conversations in individual supervision, and written self-evaluations. Reflection is necessary because students' understandings of how and why they took, or should take, certain actions are often latent. Unless students' decisionmaking theories are made explicit, they are likely to repeat mistakes.9 2 In this way, students learn not only the immediate 86. Id. at 203. 87.Id. 88. How PEOPLE LEARN, supranote 64, at 56-58. 89 .Quigley, supranote 67, at 50; Kowalski, supra note 76, at 100-02. 90. Quigley, supranote 67, at 49-50 91. Id. at 48. 92. Brook K. Baker, Learning to Fish, Fishing to Learn: Guided

Participationin the InterpersonalEcology ofPractice,6 CLINICAL L. REv. 1, 20-22 (1999).

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lesson about what to do in this case, but an approach to problem-solving that can be used in practice. Students also learn a model for how to learn from experience, which is important because lawyers continue to develop problem-solving skills throughout their career. In a one-semester clinic, the pressure for law students to perform legal tasks in a compressed time frame may leave less room for critical reflection during supervision. D. Year-Long Clinics Allow Students to Work on More Complex Cases and Law Reform Projects

A year-long clinic makes it possible to work on more complex cases or law reform projects that typically span multiple years. There are several reasons these comprehensive matters are good for students and client communities. "A good many lawyering abilities required in the context of small cases simply do not 'scale up' to work on larger problems involving multiple parties, many attorneys and other legal workers, and large quantities of information." 93 Scholars who favor hard cases argue that they offer more opportunities to explore strategies for dealing with the more complex, open-ended problems students will encounter in practice. 94 With more complex litigation and law reform advocacy, students must find creative solutions to client problems and develop more sophisticated research skills. 95 These matters also tend to have significance beyond individual clients, making them an effective tool to benefit client communities and for students to learn about social justice issues. Thus, if legal educators' goal is to instill in students a moral and professional responsibility to ensure justice for all, then it is essential that there be some clinics where student can solve larger, structural problems. 9 6 it 93. Gary L. Blasi, What Lawyers Know: Lawyering Expertise, Cognitive Science, and the Functions of Theory, 45 J. LEGAL EDUC. 313, 388 (1995). 94. Katherine R. Kruse, Biting Off What They Can Chew: Strategies for Involving Students in Problem-Solving Beyond Individual Client Representation, 8 CLINICAL L. REV. 405, 410 (2002). 95. Paul D. Reingold, Why Hard Cases Make Good (Clinical) Law, 2 CLINICAL L. REv. 545, 553-55 (1996). 96. Kruse, supra note 94, at 433; Sameer M. Ashar, Law Clinics and Collective Mobilization, 14 CLINICAL L. REv. 355, 356 (2008) (arguing that

clinical legal education's focus on individual client representation, rather than collective mobilization, does not adequately serve poor communities).

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is not feasible for students to work on these cases in one semester. For these reasons, clinicians who favor working on these large cases recommend increasing the commitment to a full year. 7 Even in clinics that do a mix of individual representation and law reform, 98 it is helpful to have a second semester. Clinicians have noted that students' ability to engage in meaningful big picture problem solving increases once they have some experience with direct representation. 99 For example, Kate Kruse describes an experience where students were confused and frustrated when they started their projects right away without much individual casework under their belt. 100 In contrast, in another academic year, when students engaged in their problem solving projects after completing one clinical semester, they were better equipped to handle the representation. In my own clinic, the CYLC, where we perform both individual representation and law reform work on behalf of youth in foster care, the systemic work typically gains more traction in the second semester. It is difficult for students to master their individual representation, while at the same time identifying and strategizing about systemic issues. By the second semester, students typically have enough experience as a group to identify problems impacting many clients, and comment on how they would change statutes, administrative rules, or agency practices. Many of our "know your rights" presentations to foster youth and social workers happen in the second semester when students have both the knowledge and practice experience to do useful presentations. We consistently get feedback from these constituents about how valuable this work is, providing youth a better understanding of their rights 97. Maurer, supra note 55, at 895-96; Findley, supra note 10, at 268. 98. Jayashri Srikantiah & Jennifer Lee Koh, Teaching Individual Representation Alongside InstitutionalAdvocacy: PedagogicalImplications of a Combined Advocacy Clinic, 16 CLINICAL L. REv. 451, 455-59 (2010)

(describing the benefits of a combined advocacy model where students represent individual clients in small cases while simultaneously advocating for broader social change). 99. Blasi, supranote 93, at 386-87; Kruse, supra note 94, at 437. 100. Kruse, supra note 94, at 437. 101. Id. at 435.

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and options, while giving social workers information to better advocate for the children under their supervision. Even when there is no specific timeline on policy projects, students organically raise systemic issues, make richer contributions to strategic discussion, and produce better law reform work in the second semester. E. Year-Long Clinics Promote Strong Attorney-Client Relationships

Having the same student-attorney for the year fosters strong attorney-client relationships. Responsibility to clients, coupled with the increase in accountability for one's actions as a student-lawyer, is at the center of most clinical experiences. 102 Central to client-centeredness is the idea that "the lawyer must work with care to build a relationship with the client that will help sustain the client as he or she deals with questions, sometimes very painful questions, that must be resolved in handling the legal matter.'103 Lawyers work hard to earn their client's trust and build connections with their clients. This is essential for the attorney to understand the client's perspective, make the client feel comfortable enough to reveal information relevant to the case, and develop a theory of the case that is faithful to the client's own understanding of herself and the Developing an attorney-client relationship is problem. complicated; requiring attention to and processing of important information about the client's feelin4, goals and values, in Building connections addition to facts relevant to the case. with the client is a continual process that "goes on at every stage and in every aspect of the lawyer's interaction with [the] client." 0 5 It takes time, and genuine trust usually only develops after the client has an opportunity to see the attorney in action working on the client's behalf. 10 Therefore, constant turnover 102. CARNEGIE REPORT, supra note 1, at 121. 103. STEPHEN ELLMAN ET AL., LAWYERS AND CLIENTS: CRITICAL ISSUES IN INTERVIEWING AND COUNSELING 6 (West Group 2009).

104. Id. at 19, 23. 105. Robert Dinerstein et al., Connection, Capacity and Morality in Lawyer-Client Relationships: Dialogues and Commentary, 10 CLINICAL L. REV. 755, 778 (2004). 106. Robert Dinerstein et. al., Legal Interviewing and Counseling: An Introduction, 10 CLINICAL L. REV. 281, 290 (2003) [hereinafter Dinerstein,

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of students makes it harder to win the client's trust.1 0 7 The problem is exacerbated when dealing with particularly vulnerable client populations, such as youth in the foster care system. os Just as one student is able to make a solid connection, the semester ends and the process must begin again with a new student. Client counseling-helping clients to identify, evaluate, and chose among competing choices for resolving problemstypically does not happen in a single moment, but is a continual process during which the client and lawyer must constantly integrate and respond to new information. [Lawyers] hear the accounts of clients through their knowledge of the law and the possibilities and limitations it presents, yet seek to shape the advice they give to clients in terms of the clients' own understanding of themselves, their relationships with others and the world and the clients'

Legal Interviewing]. 107. Babcock, supra note 54, at 40. 108. When dealing with certain client groups, it may take even longer to develop trust and obtain the information that leads to effective client counseling and advocacy. Youth in the foster care system are one such example. In response to the listserv inquiry, I interviewed Jane Spinak, Director the Child Advocacy Clinic at Columbia Law School, which represents youth aging out of the foster care system. According to her, having the clinic last two semesters is essential to effectively serve this population. She explains that the complexities of the client's lives make it difficult to resolve their issues quickly. Young people take a long time to engage, and once they do, they start revealing more issues that need to be addressed. Over the course of nine months, it is actually possible to accomplish some of their goals and "we can't switch interns on them." Interview with Jane Spinak, Edward Ross Aranow Clinical Prof. of Law, Columbia Sch. of Law (Dec. 13, 2010). I have had a similar experience dealing with the same client population in the CYLC. There may be characteristics that are unique to adolescents, particularly those traumatized in their families and the foster care system, that make it more challenging to build connections. See, e.g., Laura Cohen & Randi Mandelbaum, Kids Will be Kids: Creating a Frameworkfor Interviewing and Counseling Adolescent Clients, 79 TEMPLE L. REv. 357 (2006) (drawing on research on adolescent development to identify strategies for interviewing and counseling adolescent clients). There might be other client populations where it is similarly challenging to provide effective representation if the student-lawyer changes every three months.

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evolving desires about what they want.109 The lawyer must recognize that the client owns the problem and its solution, understand the client's motivations, develop a case theory with the client, and counsel the client in a way that allows the client to make the decisions.11 0 In order for a client to truly "own" the problem, he or she must understand the legal and non-legal implications of every decision."' This requires that the lawyer move to exploring solutions only after taking the time to thoroughly understand the client's goals and life situation. Then the lawyer should take time to explain the possibilities to the client so that the client can make the decision that is right for himself or herself. Year-long clinics offer the time necessary to engage in this counseling process. Having the same student for the entire year also leads to a more efficient handling of the client's case. At the beginning of the semester, students frequently report feeling overwhelmed by the very new experience of having a real client with legal problems. It takes them several weeks to understand the facts and the legal context, and to feel comfortable doing even simple tasks like calling a social worker. Students typically begin by reviewing the client's files. Their first interactions with the client often involve re-soliciting facts a previous student already gathered. Although legal research may have been done by a prior student, the new student often has to repeat the same research to truly understand the law. Every time a case changes students, the client loses precious time while the new student gets sufficiently up to speed to take the next step on the case. F. ClinicalFaculty May Have More Time for Scholarship, Other Courses, and Contributionsto the Law School and Community

The more measured pace of a full-year clinic may reduce burnout among clinicians and allow clinical faculty to produce scholarship, participate in faculty governance, and make other contributions to the law school and community. While finding 109. Dinerstein, Legal Interviewing, supra note 106, at 290. 110. See generally DAVID A. BINDER & SUSAN C. PRICE, LEGAL INTERVIEWING AND COUNSELING: A CLIENT CENTERED APPROACH (1977). 111. Adrienne Jennings Lockie, EncouragingReflection on and Involving Students in the Decision to Begin Representation, 16 CLINICAL L. REV. 357, 373 (2010).

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time to write is a real challenge for those teaching a full-year clinic, it may be possible to regularly carve out small blocks of times to write. There may also be more opportunities to reflect on both clinical teaching and substantive issues, which may inspire an article. As clinical faculty gain equality within the legal academy, the less frenzied pace of a full-year clinic may allow time to serve on faculty committees, participate in faculty talks, and be a more engaged member of the faculty. Clinical faculty may also have more opportunities to participate in the advocacy community and serve on local, statewide and national committees, and boards of organizations. As a result of this work, clinicians may produce legal work product (e.g., reports, bench books, practitioner manuals, legislation and rules) or the advocacy may become the subject of a law review article. With one foot in practice and the other in the academy, clinicians are able to bring unique expertise to scholarly work. In a onesemester clinic, clinicians may have less time to do community work, or the clinic caseload may not lend itself to wider community involvement. G. Year-Long Clinics May Enhance InstitutionalReputation

There are several other institutional reasons to offer some year-long clinical options. As discussed in Part III., Section D., more complex litigation and legislative or policy advocacy aimed at achieving systemic changes typically span more than a semester, and are more feasible when students commit to the clinic for an entire academic year. From a public relations perspective, these tend to be more "amorous" cases that 1 garner headlines and public attention. These cases provide 112. See, e.g., Carol Marbin Miller, Florida Supreme Court Limits 'Degrading'Shackles for Juveniles, THE MIAMI HERALD, Dec. 17, 2009,

available at http://www.njdc.info/ pdf/fl miami herald 12.17.09.pdf (exemplifying the University of Miami CYLC's role in the Florida Supreme Court's decision to restrict the use of restraints on juveniles during court hearings); Tracey Kaplan, Group Seeks Initiative to Reform California's Three Strikes Law, MERCURY NEWS June 14, 2011, available at

http://www.mercurynews.com/news/ci _18273887 (exemplifying Stanford Law School's Three Strikes Project's efforts to place an initiative on the November 2012 ballot to reform California's Three Strikes Law, the harshest such sentencing law in the nation); Elisabeth Malkin, Guatemala to Restore Legacy of a Presidentthe U.S. Help Depose, N.Y. TIMES, May 23, 2011, at

A6,

available

http://www.nytimes.com/2011/05/24/world/americas

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compelling examples that schools can use for student recruiting and alumni development." 3 In addition, providing such a critical service to the community enhances the law school's reputation among practicing attorneys, judges and the wider community." 4

IV.

ADVANTAGES OF ONE-SEMESTER CLINICS

A. More Students Can Take Clinics

The most compelling reason to offer clinics for one semester is to increase the number of students that can take clinics. For some clinicians and law schools, the imperative to offer clinical opportunities to as many students as possible cannot justify any perceived or real benefits that might come from offering longer clinics to fewer students." 5 In order to competently handle cases and effectively supervise students, clinic classes must be small. The average class size for live-client clinics is eight to eleven students, while the most common student:teacher ratio is 8:1.116 By moving to a one-semester model, a clinic can double University American (exemplifying /24guatemala.html?ref=world International Human Rights Clinic's case before the Inter-American Court on Human Rights, Juan Jacoba Arbentz Guzman v. Guatemala, and after

five years, the case resulted in a settlement between the government of Guatemala and the Arbentz family). 113. Maurer, supra note 55, at 892 (noting that the big cases that generate excitement in the law school and legal community enhance the law school's reputation and are typically highlighted by recruiters and fundraisers). 114. Deborah L. Rhode, Cultures of Commitment: Pro Bono for Lawyers and Law Students, 67 FORDHAM L. REv. 2415, 2420 (1999) (stating public

interest work enhances the reputation of the attorney providing the service and the legal profession). 115. Telephone Interview with Douglas Frenkel, Morris M. Shuster Practice Prof. of Law, Univ. of Pa. Law Sch. (Dec. 13, 2011); Email from Michele Gilman, Dir. of Civil Advocacy Clinic, Univ. of Baltimore Sch. of Law to author (Dec. 9, 2010, 11:09 AM) (on file with the John Marshall Law Journal); Email from Ann Juergens, Co-Dir. of Clinics, William Mitchell Coll. of Law, to Scott Stevenson & author (Dec. 9, 2010, 3:03 PM) (on file with the John Marshall Law Journal). 116. Santacroce & Kuehn, supra note 9, at 2, 14-15, 17. The survey includes information for 410 clinics at ninety-one laws schools. Id. at 14. The most common structure includes eight to eleven students for every teacher, both for the classroom component and the case work component of the course. Id.

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enrollment without investing additional resources. This is a trade off that cannot be taken lightly as schools grapple with curricular reform aimed at better preparing graduates for the

practice of law.1 17 The recent calls for legal reform require that schools think seriously, not just about broadening the array of clinical offerings, but making these courses available to all or a majority of the student population. The Carnegie Report identifies clinics as a "key setting" for integrating all three areas of expertise law schools must teach to adequately prepare students for practice: legal analysis, lawyering skills, and professional identity.118

"[T]he relative marginality of clinical training in

law school is striking" when one considers the central role of supervised practice in the education of physicians, nurses, teachers and social workers.1 19 Law schools "provide extensive direct mentorship for the small number of academic stars" who go on to become law professors, but this kind of apprenticeship in the competencies that will be central to practice is unavailable to the vast majority of students who become future lawyers.120 As the Carnegie Report notes: It is very important, then, to bring these experiences into the educational program in intentional ways. One way would be to give new emphasis to the third year as a kind of "capstone" opportunity for students to develop specialized knowledge, engage in advanced clinical training, and work with faculty and peers in serious, comprehensive reflection on their educational experience and their strategies for career and future professional growth. 121 Thus, at a minimum, the Carnegie Report encourages schools to consider making apprenticeship opportunities available to all third-year law students. As law schools think about the range of options that might use apprenticeship pedagogy, they are considering making liveclient clinics available to a broad cross-section of the student population. A few schools have long made experiential

117. Schrag, supra note 10, at 193. 118. CARNEGIE REPORT, supra note 1, at 121. 119. Id. at 24. 120. Id. at 95. 121. Id. at 195.

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education mandatory.122 More recently, schools have introduced, or are considering proposals for, a mandatory experiential requirement.123 Even where experiential education is not mandatory, schools that have adopted major curricular reform often include expansion of clinical programs.124 Offering clinics for one semester is one way to increase the number of available clinic slots. For example, at the University of New Mexico Law School, where students must take six credits of in-house clinic to graduate, the mandatory clinics are one semester to guarantee a slot for every student. 12 But, to offer in-house, live-client clinics to all or most students requires that law schools hire a significant number of full-time clinical

faculty.126 B.

One-Semester Clinics Afford Students More Flexibility in Taking Other Classes or Getting Work Experience

Concentrating the clinical experience to one semester leaves students flexible to meet degree requirements and pursue a range of other opportunities during their upper level years. 122. See CITY UNIV. OF N.Y. SCH. OF LAW, CLINICS & PROGRAMS, http://www.law.cuny.edu/clinics.html (last visited Dec. 15, 2011) (providing clinical education "[f]or over a decade[.]"; UNIV. OF N.M. SCH. OF LAW, ABOUT THE CLINICAL PROGRAM, http://lawschool.unm.edu/clinic/index.php (last visited Dec. 15, 2011) (providing clinical education since 1971).

123. See, e.g., UNIV. OF CAL. - IRVINE, SCH. OF LAW, CLINICS,

http://www.law.uci.edu/clinics/index.html

(last visited Dec.

15, 2011);

Katherine Mangan, Law Schools Revamp Their Curriculato Teach Practical Skills, THE CHRONICLE OF HIGHER EDUCATION, Mar. 4, 2011, available at

(discussing http://law.wlu.edu/deptimages/news/thirdyearchronicle.pdf clinical education at Washington & Lee Univ. Sch. of Law). See also ALBANY

LAW

SCH.,

SCHS.

REQUIRING

EXPERIENTIAL

COURSES,

http://www.albanylaw.edu/sub.php?navigationid= 1737 (last visited Dec. 15, 2011) (providing a list of thirty-two law schools with mandatory experiential requirements). 124. See, e.g., A "3D" JD: Stanford Law School Announces New Model for Legal Education, STANFORD LAW SCH. (Nov. 28, 2006), available at

http://www.law.stanford.edu/news/pr/47/ (last visited Dec. 15, 2011). 125. UNIV. OF N.M. SCH. OF LAW, DEGREE REQUIREMENTS, REQUIRED

COURSES, http://lawschool.unm.edu/academics/programs/requirements.php (last visited Dec. 15, 2011); UNIV. OF N.M. SCH. OF LAW, ABOUT THE CLINICAL PROGRAM, http://lawschool.unm.edu/clinic/index.php (last visited Dec. 15, 2011). 126. Chemerinsky, supra note 50, at 38.

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Some students would not or cannot take a clinic that requires a year-long commitment.127 Depending on the degree requirements at a school, a year-long clinic may make it difficult for students to meet their degree requirements. For example, until the class of 2013 entered the University of Miami School of Law, students were required to take thirty-six out of fifty-nine upper-level credits from a specified list of classes.128 But, clinics and externships were not included on that list.12 9 While students could meet the requirements and take a clinic or externship, it required a significant amount of planning to ensure that a student could take the clinic for the entire year and get all of the other classes required, while limiting the number of electives a student could take.130 127. Stark, supra note 54, at 463 (reporting that many students have said "they probably would not have taken the [mediation] clinic" if it were longer than one semester). 128. UNIV. OF MIAMI SCH. OF LAW, DEGREE REQUIREMENTS FOR J.D.

at available http://www.law.miami.edu/currentstudents/degreerequirements/Jd beforeM ay2012 requirements.php (last visited Dec. 15, 2011). The University of Miami School of Law's graduation requirements included a mandatory seventy-three credits of academic curriculum courses (first-year and upperlevel courses); required thirty-six upper-level credits from specific categories; and allowed only fifteen credits to be used for clinics, externships, additional elective courses, or joint-degree courses. Id. The new graduation requirements have been simplified to only require "[a]t least one Ethics/Professional Responsibility course... [a]t least one skills requirement from an approved list... ;" and "[a]t least two substantial writing courses...." UNIV. OF MIAMI SCH. OF LAW, DEGREE REQUIREMENTS FOR J.D. DEGREE, available at http://www.law.miami.edu/currentstudents/degree requirements/jd afterMa y2012 requirements.php (last visited Dec. 15, 2011). 129. See UNIV. OF MIAMI SCH. OF LAW, DEGREE REQUIREMENTS FOR J.D. DEGREE, available at http://www.law.miami.edu/currentstudents/degree requirements/jd beforeM ay2012_requirements.php (last visited Dec. 15, 2011). 130. Several CYLC students cited the challenge of meeting these graduation requirements as an advantage to, or reason, for offering the clinic for one-semester. See, e.g., E-mail from Student A, to Maria Cruz, Faculty Assistant, Univ. of Miami, Sch. of Law Clinics (Apr. 8, 2010, 2:32 PM) (on file with the John Marshall Law Journal); E-mail from Student D, to Maria Cruz, Faculty Assistant, Univ. of Miami, Sch. of Law Clinics (Apr. 9, 2010, 10:58 AM) (on file with the John Marshall Law Journal); E-mail from Student A, to Maria Cruz, Faculty Assistant, Univ. of Miami, Sch. of Law DEGREE,

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In addition, students may not be able to work outside or engage in other law school activities while in a year-long clinic. In After the JD, students noted that job opportunities during the summer or academic year most prepared them for law practice.' 3 1 Students also value other law school activities such as moot court, trial competitions, law review, and student leadership positions that may enhance their resumes. Some CYLC students reported that the demands of a clinic are so high that it is challenging to do these other activities while participating in the clinic.' Limiting clinic to one semester makes it easier for students to pursue these outside activities during another semester when they are not participating in the clinic. In law schools that allow students to take multiple clinics, 133 students may want to get different clinical experiences. This is particularly true if there is also a cap on the number of clinical credits a student may take. C. A More Intensive One-Semester Clinic Allows Students to Focus Exclusively on Clinic

If students in a one-semester clinic are allowed to take a fulltime credit load (or a significant number of credits), students are able to focus more time on the clinic and are less likely to Clinics (Apr. 8, 2010, 2:32 PM) (on file with the John Marshall Law Journal). 131. Dinovitzer et al., supra note 34, at 79. 132. E-mail from Student B, to author (Apr. 25, 2010, 9:26 PM) (on file with the John Marshall Law Journal) (full-year); E-mail from Student D, to Maria Cruz, Faculty Assistant, Univ. of Miami, Sch. of Law Clinics (Apr. 9, 2010, 10:58 AM) (on file with the John Marshall Law Journal) (full-year); Email from Student J, to Maria Cruz, Faculty Assistant, Univ. of Miami, Sch. of Law Clinics (Mar. 31, 2010, 12:47 PM) (on file with the John Marshall Law Journal) (option). 133. In response to my inquiry on the clinic listserv, Adrienne Volenik, Director of the Disability Law Clinic at the University of Richmond School of Law wrote: We have traditionally run one semester clinics, but have now added a two semester experience and are concerned that, in the abstract, students will see it as diminishing the opportunity to take a broader array of clinics as we currently have a 12 credit cap on the number of clinical credits that can be counted toward graduation. E-mail from Adrienne Volenik, Dir. of the Disability Law Clinic, Univ. of Richmond Sch. of Law, to author (Dec. 9, 2010, 10:25 AM) (on file with the John Marshall Law Journal).

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struggle with balancing all of their commitments. Most yearlong clinics are offered for less than twelve credits each semester. This means that clinic students are taking other courses while working in the clinic. For example, the University of Miami Children and Youth Law Clinic is offered for four credits per semester and students are expected to spend around ten hours per week on clinic cases in addition to approximately three hours in the classroom. Clinic students must take another eight credit hours to be classified as a fulltime student. When asked whether the clinic should be offered for one semester or two, a few CYLC students said the demands of the clinic made it challenging to balance other school work.134 At schools where students receive significantly more credits for a semester of clinic, they do not have to take (and balance) as many other classes. Some of the clinic students at University of Miami also suggested that they would prefer to take clinic for only one semester because of how demanding it is both emotionally and in terms of workload. D. There is Less "Dead" Time in a One-Semester Clinic

In response to my informal survey on the clinic listserv, some clinicians who have taught in both one-semester and year-long clinics report that they prefer the faster pace of a one-semester clinic. As Michele Gilman of the University of Baltimore 134. As one student wrote: I really enjoyed my clinic experience but don't know that I would have wanted to participate in the clinic for a full year. The clinic was a lot of work and demanded a lot of my time. Sometimes I felt that in order to produce good work for the clinic, I had to neglect my other classes. Also, as a 2L I was still learning how to juggle a busy schedule that included classes, the clinic, and other law school activities, so it was definitely stressful at times. Moreover, I don't think I realized how much work the clinic required going in. I do think that I was able to have a worthwhile experience and still learn a lot in one semester. If the clinic is only offered for a full year, I think the students really need to fully understand the commitment that is required and the work that they will be doing. Nevertheless, I still think it should be offered for one semester, or at least give the students the chance to choose. E-mail from Student L, to Maria Cruz, Faculty Assistant, Univ. of Miami, Sch. of Law Clinics (Mar. 24, 2010, 9:56 PM) (on file with the John Marshall Law Journal).

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School of Law wrote, "[t]here is less wasted or down-time. Because we have to pack a lot of learning into 14 weeks, we hit the ground running and so do the students. In the two semester clinic, I felt some weeks were sort of lost as students dawdled over their work."' 3 5 There is a sense that the more intense pace of the one-semester clinic may boost morale, and lead to more consistent levels of engagement and productivity for faculty and

students alike.136 E. There is More Flexibilityfor Faculty to Take a Semester Off from Clinic to Write and Make Other Contributionsto the Law School

In response to my listserv inquiry, some clinicians noted that a one-semester clinic affords clinicians more flexibility to write legal scholarship.1 37 Interestingly, other clinicians also cited this as an advantage of a full-year clinic.1 38 The key difference is in how the law school structures the time for clinicians to write. A one-semester clinic affords the flexibility to switch faculty in and out of the clinic, or shut down the clinic altogether, in order to allow clinical faculty to teach other courses or write. For example, at University of New Mexico law school, where clinics are mandatory and offered for one semester,139 clinical faculty rotate out of the clinic every few semesters to teach a doctrinal course while also focusing on scholarship. There are several benefits to this approach in addition to 135. E-mail from Michele Gilman, Dir. of Civil Advocacy Clinic, Univ. of Baltimore Sch. of Law, to author (Dec. 9, 2010, 11:09 AM) (on file with the John Marshall Law Journal). 136. Telephone Interview with Douglas Norman Frenkel, Morris M. Shuster Practice Prof. of Law, Univ. of Pa. Law Sch. (Dec. 13, 2010). 137. E-mail from David Barnhizer, to author (Dec. 10, 2010, 2:34 PM) (on file with the John Marshall Law Journal) (citing "tenure track appointments" as a reason for reducing faculty availability). 138. David F. Chavkin, Spinning Straw into Gold: Exploring the Legacy of Bellow and Moulton, 10 CLINICAL L. REv. 245, 258 n.14 (2003)

[hereinafter Chavkin, Gold]. 139. UNIV. OF N.M. SCH. OF LAW, DEGREE REQUIREMENTS, REQUIRED at available COURSES,

http://lawschool.unm.edu/academics/programs/requirements.php (last visited Dec. 15, 2011) (requiring students "participate satisfactorily in at least six hours of clinical law school credit...").

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creating time. The reality is that, even though a full-year clinic might be less frenetic than a one-semester clinic, the day-to-day demands of running a law practice, supervising students, and teaching a class does not leave large blocks of time for scholarship or service to the law school. Any time that is set aside for writing might easily be usurped by the next client emergency, which has to take priority. A semester off from the clinic allows clinicians to be more productive scholars. It also means that clinicians can teach other courses, enriching the curriculum with both their expertise and perspectives grounded in practice. F. Both Students and Faculty May Be Relieved to End the Experience After a Semester In response to my inquiry on the clinic listserv, clinical faculty reported that it is refreshing to have students turn over at the end of the semester, particularly in those instances where a student is challenging to deal with or simply not working out in the clinic.140 Similarly, students in the CYLC noted that having a one-semester clinic allowed students who were not as committed to the clinic to leave. 141 In the case of a student who is not having a positive clinic experience, it is probably beneficial to both the student and the faculty that the student is able to leave the clinic at the end of the semester. V.

REFLECTIONS ON A ONE-SEMESTER EXPERIMENT IN A CHILD ADVOCACY CLINIC

A. The University ofMiami School of Law Children & Youth Law Clinic Established in 1995, the CYLC is a live-client clinic at University of Miami that has traditionally operated as a yearlong clinic.1 4 2 The CYLC primarily represents children in foster 140. E-mail from Michele Gilman, Dir. Civ. Advocacy Clinic, Univ. of Baltimore Sch. of Law, to author (Dec. 9, 2010, 11:09 AM) (on file with the John Marshall Law Journal). 141. See, e.g., E-mail from Student F, to Maria Cruz, Faculty Assistant, Univ. of Miami, Sch. of Law Clinics (Apr. 8. 2010, 5:54 PM) (on file with the John Marshall Law Journal). 142. UNIV. OF MIAMI SCH. OF LAW CHILDREN & YOUTH LAW CLINIC MANUAL 2010-2011, 1 [hereinafter CYLC MANUAL] (on file with the John

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care and oung adults who recently aged out of the foster care system.14 Occasionally, but increasingly, the CYLC handles cases for clients who have never been in foster care, disputes involving custody of minors, or public benefits for teenagers with disabilities. 4 The CYLC has six goals that are included in the Clinic's handbook and discussed with students at the beginning of the academic year.14 5 They are to: (1) "Train students in fundamental lawyering skills, with an emphasis on learning from experience[;]" (2) "Instill in students high standards of ethics and professional responsibility[;]" (3) "Provide high quality, professional and zealous representation to clients[;]" (4) "Foster students' ability to engage in selfreflection and introspective professional development[;]" (5) "Enhance students' understanding of how legal doctrine and institutions operate in individual cases[;]" and (6) "[E]mphasize the value of public service." 4 6 Holistic representation, 147 client-centered lawyering,14 8 and therapeutic jurisprudencel49 have been central philosophies since the CYLC's inception. 5 0 Holistic representation requires Marshall Law Journal). 143. Id. 144. Id. 145. Id. 146. Id. 147. See, e.g., Robin G. Steinberg, Beyond Lawyering: How Holistic RepresentationMakes for Good Policy, Better Lawyers, and More Satisfied Clients, 30 N.Y.U. REV. L. & SOC. CHANGE 625 (2006); Phyllis E. Bernard, Teaching Ethical,Holistic Client Representation in Family ADR, 47 LOY. L. REV. 163 (2001). 148. DAVID A. BINDER ET AL., LAWYERS AS COUNSELORS: A CLIENT-

CENTERED APPROACH 3-4, 7 (Thomson West 2004). A client-centered approach to lawyering puts clients in the best position to make important decisions by having the attorney view the problem from the clients' perspectives, see the problems' diverse natures, and make the clients true partners in the resolution of their problems. Id. 149. David Finkelman & Thomas Grisso, Therapeutic Jurisprudence: From Idea to Application, in LAW INA THERAPEUTIC KEY: DEVELOPMENTS IN THERAPEUTIC JURISPRUDENCE 587, 588 (David B. Wexler & Bruce J. Winnick, eds., 1996). Therapeutic jurisprudence is a theoretical model that seeks to reduce the negative consequences of law on the psychological functioning and emotional well-being of clients. Id. 150. See generally Bernard P. Perlmutter, George's Story: Voice and Transformation Through the Teaching and Practice of Therapeutic

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lawyers to see their client as a whole person, rather than simply It is premised on the idea that when we a legal issue. understand the full context of our clients' experiences, we are better able to achieve the best outcomes and contribute to the clients' overall well-being.152

Under this model, the lawyer

seeks to understand and address all of the client's legal, as well as non-legal, needs. 15 3 What this means for the CYLC's practice is that we try to address, with few exceptions, all of the civil legal problems faced by our clients.154 For clients under Jurisprudence in a Law School Child Advocacy Clinic, 17 ST. THOMAs L. REv. 561 (2005). In his article George's Story, Professor Perlmutter's provides an account of the CYLC's advocacy on behalf of George C. as being typical of many of our clients. Id. at 565. When George was fifteen, the CYLC was appointed as his attorney ad litem by the Judge in his dependency case. Id. at 587. Over the next three years, the CYLC motioned for George's desired permanency goal, conducted legal check-ups, and appeared at the semi-annual judicial reviews required for all children in state care. Id. at 582-84. In addition, the CYLC filed a contempt motion against the Florida Department of Children and Families ("DCF") for failing to deliver services in the court-approved case plan. Id. at 586. In the course of the representation, the CYLC participated in treatment team meetings at the psychiatric facility where George was placed, as well as advocated in court for a shortened stay and humane treatment in the psychiatric facility. Id. at 599. The CYLC also petitioned for George's legal emancipation and early release from DCF custody and engaged in special education advocacy. Id at 602-03. Ultimately, the CYLC compelled the DCF to pay for George (and other high school graduates in foster care) to participate in graduation ceremonies. Id. at 603. As Perlmutter writes, "our clinic was more than just [George's] law enforcer. The Clinic was his therapeutic agent, facilitating his ability to be heard by decision-makers with regard to his permanency and independent living needs." Id. at 594. The Clinic also worked hard to ensure that George had the information to make important decisions and empowered him to make those decisions based on his own values. Id at 593-94. Our work on behalf of George typifies our aspirations with every client. 151. Steinberg, supra note 147, at 627-28. 152. Id. at 628. 153. Id. at 630-31. 154. The CYLC does not handle criminal matters, as our clients are appointed (and very ably represented by) our local public defender office. The CYLC may assist the public defender's office in marshalling mitigating evidence from our client's extensive foster care history, handle expungement of criminal records, or occasionally represent an adult client at arraignment on minor misdemeanor charges. In addition, the CYLC does not handle personal injury claims, but may assist the client in gathering facts and refer

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eighteen, advocacy in dependency cases is the common element of our work, but we may also do special education, health and disability administrative appeals, and specialized 55 immigration.1 For those over age eighteen, the most common case we handle is administrative appeals for independent living benefits,156 but we may also handle other public benefits cases, landlords-tenant or custody disputes for former foster youth. Another important feature of the CYLC is its law reform advocacy. In its early years, the Clinic engaged in a multi-year litigation that culminated in the Florida Supreme Court issuing a procedural rule requiring pre-commitment hearings and appointment of counsel for foster children facing involuntary commitment to psychiatric facilities.1 57 In addition, the CYLC has participated in other systemic litigation and been at the forefront of legislative advocacy relevant to youth in the foster care system. Clinic students routinely write amicus briefs, conduct "know your rights" presentations for foster youth and the case to a member of the private bar. 155. The CYLC's immigration work is limited to applications for Specialized Immigration Juvenile Petitions, available to unaccompanied minors who were abused, abandoned, and neglected or with Naturalization Applications. 156. The John H. Chafee Foster Care Independence Act ("Chafee") is a federal law that authorizes funding to states to provide services such as education, employment, financial management, housing, emotional support and connections to caring adults for young adults age eighteen to twenty-one who age out of foster care. 42 U.S.C. ยง 677(a) (West 2011). To implement Chafee, Florida developed a program that provides stipends and services to young adults who turn eighteen while in state custody. FLA. STAT. ยง 409.1451 (West 2011). The Road to Independence Program provides a stipend that equals "a 40-hour-a-week federal minimum wage job" to young adults enrolled in school full-time, while the "Aftercare support services" and "Transitional support services" provide emergency and short-term support to students based on other eligibility criteria. FLA. STAT. ยง 409.1451(5)(a)-(c) (West 2011). 157. M.W. v. Davis, 756 So. 2d 90, 109 (Fla. 2000) (directing that "Juvenile Court Rules Committee submit ... proposed rules that will set forth the procedures to be followed by the dependency court when the Department of Children and Families seeks an order committing a dependent child to a residential facility for mental health treatment."); In re Amendment to the Rules of Juv. Procedure, Fla. R. Juv. P. 8.350, 842 So. 2d 763, 766 (Fla. 2003) (approving the amendment to the Rules of Juvenile Procedure regarding the placement of a child "against his or her will in a residential treatment facility.").

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social workers, and engage in local and statewide advocacy to change policies. Much of this systemic work comes to fruition in the second semester, after students become familiar with the issues in their individual cases and are better able to step back and take a look at the big picture. For example, this year, several students who conducted Medicaid waiver administrative hearings conducted trainings for foster care social workers during the second semester. The classroom component of the clinic, which meets twice a week, reinforces the social justice mission, and central philosophies. In the fall, the class covers substantive law, lawyering skills, and ethics. Given the diverse substantive areas in which students practice, the substantive part of the class is intended to give students a general overview of the more common practice areas. As such, we always cover federal and state child welfare laws, special education, independent living, We may also cover other areas, such as and health. immigration, Social Security, or adoption, depending on the number of active cases in an area during a given semester. The skills classes cover case planning, interviewing and counseling, fact investigation, administrative hearing advocacy, trial advocacy, legal research, legal writing, and cross-cultural lawyering. Also, clinic students are required to take ethics as a co-requisite to the clinic. We sometimes devote an entire class to holistic representation and therapeutic jurisprudence. We integrate structured case rounds into many of the classes. For example, a class on ethical responsibilities of the child's lawyer may include discussion from actual cases about ethical issues with which students are grappling. A portion of the class on substantive law relating to independent living benefits for children aging out of the foster care system includes student discussion of the relevant legal issues on some of their individual cases. We try to devote some classes entirely to case rounds, allowing students to select any cases or issues they would like to present and solicit strategic advice from their classmates. Each year we get feedback that students want more of these classes, but there is never enough time in the fall with everything else on the syllabus. In the spring, we devote many more classes to case rounds, but also typically do a few substantive classes on areas we did not get a chance to cover in the fall, and several classes on law reform and community lawyering. In addition, each student does a Continuing Legal

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Education presentation on a topic of their choice, typically one in which they have become an expert. B.

The One-Semester Experiment

Demand for spaces in the clinic outstrips slots each year. In the year we tried the experiment, forty-eight students ranked the Clinic first, and many more ranked it lower, in applying for the Clinic's twenty-seven slots. One group of students took the Clinic for the entire year, while two other groups took it in the fall or spring only. By offering CYLC for one semester, we were able to offer the clinic to nine more students than our usual limitation of eighteen students. We had thirteen students participate in the Clinic for a full year, five students participated in the fall, and another nine students in the spring." On the Clinic application, we asked students whether they preferred to take the clinic for a semester or a year. Once we decided which students would be accepted into the Clinic, we assigned students to the full year or a semester. Because the majority of students said they wanted to take the clinic for a year, we could not always respect students' preference. The spring one-semester students repeated the fall version of the Clinic seminar, while the year-long group completed the version of the seminar that we usually do in the spring semester. C. Lessons Learnedfrom the One-Semester Experiment

After the Clinic ended, students were sent an email asking whether they would take the Clinic for one semester or two if they participated in the Clinic again, and whether the Clinic should be offered for one semester or a year. The vast majority of students stated that the Clinic should continue to be offered 158. The original plan was that nine students would take the clinic for the full year, nine would take it in the fall only, and a different nine would take the spring only. In keeping with this plan, eighteen students started the clinic in the fall. At the end of the fall semester, five students who were supposed to be fall only asked to stay on in the spring. One student who was supposed to do the clinic for the entire year asked to drop the clinic in the spring so that he could pursue international moot court and other opportunities. This means that we ended up with a total of twenty-two students during the spring semester. We agreed to this heavier supervision load because recently, we hired a staff attorney, Carolina Guacci, who assisted with supervision in the spring semester.

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for an entire year. 159 Students commented that they need an entire year to learn the material to be able to apply it, and to 159. Of the seventeen students who responded to the e-mail, nine students said the clinic should be a full-year, six students said there should be an option to do it either for a year or a semester, and two said it should be offered for a semester. E-mail from Student A, to Maria Cruz, Faculty Assistant, Univ. of Miami, Sch. of Law Clinics (Apr. 8, 2010, 2:32 PM) (on file with the John Marshall Law Journal) (full-year); E-mail from Student B, to Maria Cruz, Faculty Assistant, Univ. of Miami, Sch. of Law Clinics (Apr. 25, 2010, 9:26 PM) (on file with the John Marshall Law Journal) (full-year); E-mail from Student C, to Maria Cruz, Faculty Assistant, Univ. of Miami, Sch. of Law Clinics (Apr. 20, 2010, 10:17 PM) (on file with the John Marshall Law Journal) (full-year); E-mail from Student D, to Maria Cruz, Faculty Assistant, Univ. of Miami, Sch. of Law Clinics (Apr. 9, 2010, 10:58 AM) (on file with the John Marshall Law Journal) (full-year); E-mail from Student E, to Maria Cruz, Faculty Assistant, Univ. of Miami, Sch. of Law Clinics (Apr. 8, 2010, 10:26 PM) (on file with the John Marshall Law Journal) (option); E-mail from Student F, to Maria Cruz, Faculty Assistant, Univ. of Miami, Sch. of Law Clinics (Apr. 8, 2010, 5:54 PM) (on file with the John Marshall Law Journal) (one-semester); E-mail from Student G, to Maria Cruz, Faculty Assistant, Univ. of Miami, Sch. of Law Clinics (Apr. 8, 2010, 3:35 PM) (on file with the John Marshall Law Journal) (full-year); Email from Student H, to Maria Cruz, Faculty Assistant, Univ. of Miami, Sch. of Law Clinics (Apr. 8, 2010, 2:37 PM) (on file with the John Marshall Law Journal) (option); E-mail from Student I, to Maria Cruz, Faculty Assistant, Univ. of Miami, Sch. of Law Clinics (Mar. 31, 2010, 5:52 PM) (on file with the John Marshall Law Journal) (full-year); E-mail from Student J, to Maria Cruz, Faculty Assistant, Univ. of Miami, Sch. of Law Clinics (Mar. 31, 2010, 12:47 PM) (on file with the John Marshall Law Journal) (option); Email from Student K, to Maria Cruz, Faculty Assistant, Univ. of Miami, Sch. of Law Clinics (Mar. 25, 2010, 11:48 PM) (on file with the John Marshall Law Journal) (full-year); E-mail from Student L, to Maria Cruz, Faculty Assistant, Univ. of Miami, Sch. of Law Clinics (Mar. 24, 2010, 9:56 PM) (on file with the John Marshall Law Journal) (option); E-mail from Student M, to Maria Cruz, Faculty Assistant, Univ. of Miami, Sch. of Law Clinics (Mar. 24, 2010, 6:38 PM) (on file with the John Marshall Law Journal) (onesemester); E-mail from Student N, to Maria Cruz, Faculty Assistant, Univ. of Miami, Sch. of Law Clinics (Mar. 24, 2010, 5:02 PM) (on file with the John Marshall Law Journal) (option); E-mail from Student 0, to Maria Cruz, Faculty Assistant, Univ. of Miami, Sch. of Law Clinics (Mar. 24, 2010, 4:32 PM) (on file with the John Marshall Law Journal) (full-year); E-mail from Student P, to Maria Cruz, Faculty Assistant, Univ. of Miami, Sch. of Law Clinics (Mar. 24, 2010, 4:21 PM) (on file with the John Marshall Law Journal) (full-year); E-mail from Student Q, to Maria Cruz, Faculty Assistant, Univ. of Miami, Sch. of Law Clinics (Mar. 24, 2010, 4:03 PM) (on file with the John Marshall Law Journal) (option).

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actually make a difference for their clients. For example, one student favoring a full year clinic noted: I very strongly think that the clinic should not be a one semester course. I do not think it gives students ample time to build relationships with their clients, to see case matters to completion, or to become as familiar with the relevant laws and rules. I also think that the change in the middle of the year can be detrimental to some clients, especially those who are wary of the legal system to begin with. A year would allow students to build better relationships with their clients and allow them to feel like they have achieved more and come away from the internship with a greater sense of

accomplishment. 16 0 In addition, another student stated: I participated in the clinic for a full school year. If given the chance, I would not have participated in the clinic for only one semester. Last year, I felt as though I spent the entire first semester learning how to be a CYLC intern, the dependency system, my clients, etc. During the second semester, I was able to use what I learned during the first semester, and grow as a lawyer. I feel that only participating for one semester would have limited that growth. Students who recommended that the Clinic be offered for one semester cited several reasons. First, the clinic required a significant time commitment and sometimes caused students to neglect other courses.162 Second, the time commitment over the entire year may have prevented students from taking internships or participating in other law school activities.163 Third, taking the clinic for eight credits for a full year made it difficult for students to meet "core" graduation requirements.164 Finally, a 160. E-mail from Student G, to Maria Cruz, Faculty Assistant, Univ. of Miami, Sch. of Law Clinics (Apr. 8, 2010, 3:35 PM) (on file with the John Marshall Law Journal). 161. E-mail from Student B, to Maria Cruz, Faculty Assistant, Univ. of Miami, Sch. of Law Clinics (Apr. 8, 2010, 2:19 PM) (on file with the John Marshall Law Journal). 162. E-mail from Student M, to Maria Cruz, Faculty Assistant, Univ. of Miami, Sch. of Law Clinics (Mar. 24, 2010, 6:38 PM) (on file with the John Marshall Law Journal). 163. Id. 164. See, e.g., E-mail from Student A, to Maria Cruz, Faculty Assistant, Univ. of Miami, Sch. of Law Clinics (Apr. 8, 2010, 2:32 PM) (on file with

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few' students mentioned that the Clinic was emotionally draining.165 As one student noted: Based on my experience in the clinic (which was unique with the clients I had) I honestly would say that the clinic should be a semester long experience. The thing about it being a one semester class is that the frustration levels that I experienced and I'm aware others experienced is less, during a semester. Because of the high level of work that the clinic requires, it prevents working at a job or even devoting extra time to class if needed. I think because obviously our clients are our top priority, it means everything else takes a back burner, resulting in neglecting of school work. While it isn't difficult to take a light case load one semester, it is hard to take two semesters worth, and I think, watching people who did the entire year, some of them have a hard time making sure they get all the requirements in, especially if they want to do litigation skills.16 6 Several students noted that they preferred the year-long clinic, but believed there should be a one-semester option for all of 167 these reasons. the John Marshall Law Journal); E-mail from Student C, to Maria Cruz, Faculty Assistant, Univ. of Miami, Sch. of Law Clinics (Apr. 20, 2010, 10:.17 PM) (on file with the John Marshall Law Journal). 165. See, e.g., E-mail from Student E, to Maria Cruz, Faculty Assistant, Univ. of Miami, Sch. of Law Clinics (Apr. 8, 2010, 10:26 PM) (on file with

the John Marshall Law Journal); E-mail from Student M, to Maria Cruz, Faculty Assistant, Univ. of Miami, Sch. of Law Clinics (Mar. 24, 2010, 6:38 PM) (on file with the John Marshall Law Journal). 166. E-mail from Student M, to Maria Cruz, Faculty Assistant, Univ. of Miami, Sch. of Law Clinics (Mar. 24, 2010, 6:38 PM) (on file with the John Marshall Law Journal). 167. E-mail from Student E, to Maria Cruz, Faculty Assistant, Univ. of Miami, Sch. of Law Clinics (Apr. 8, 2010, 10:26 PM) (on file with the John Marshall Law Journal); E-mail from Student H, to Maria Cruz, Faculty Assistant, Univ. of Miami, Sch. of Law Clinics (Apr. 8, 2010, 2:37 PM) (on file with the John Marshall Law Journal); E-mail from Student J, to Maria Cruz, Faculty Assistant, Univ. of Miami, Sch. of Law Clinics (Mar. 31, 2010, 12:47 PM) (on file with the John Marshall Law Journal); E-mail from student L, to Maria Cruz, Faculty Assistant, Univ. of Miami, Sch. of Law Clinics (Mar. 24, 2010, 9:56 PM) (on file with the John Marshall Law Journal); E-mail from Student N, to Maria Cruz, Faculty Assistant, Univ. of Miami, Sch. of Law Clinics (Mar. 24, 2010, 5:02 PM) (on file with the John Marshall Law Journal); E-mail from Student Q, to Maria Cruz, Faculty Assistant, Univ. of Miami, Sch. of Law Clinics (Mar. 24, 2010, 4:03 PM) (on

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We abandoned the one-semester experiment, concluding that it had not worked. Several of our fall one-semester students asked to stay on in the spring, and we agreed that it would be good for them and the clients. This seemed to confirm our sense that the year was preferable. There were also logistical challenges. When we added the new one-semester students in the spring, we split into two seminar sections. I taught the yearlong seminar, but some of the students I supervised were onesemester spring students who were in the seminar class taught by Professor Perlmutter. In supervising those students, there was often a disconnect because I did not have the benefit of participating in their seminar discussion. They also never truly integrated with the year-long students so we lost some of the peer-to-peer learning that is such an important part of clinic. Once the spring semester ended, I concluded, like several of my students, that there are very1ood reasons to continue offering the CYLC for a full year. First, there was in fact a tremendous amount of student growth over the course of a year that simply would not have been possible in just a semester. Students just began to get their stride at the end of the first semester. In the second semester, I had multiple moments where I burst with pride as the same timid student who constantly came to me seeking the "right" answer transforms into a lawyer navigating the multiple dimensions of the representation. My second reason for valuing the full year model is the potential negative impact on clients, particularly our younger clients. Our clients are children and young adults involved with the child welfare system who have learned to mistrust adults after years of disappointment by the parents, foster parents, and social workers responsible for their care. As a result of our holistic approach, we represent them in multiple legal matters typically over several years. It is difficult enough that our childclients are introduced to a new student-attorney once a year; it would be very difficult to expect them to share their story with a new person every three months. The turnover on the cases that file with the John Marshall Law Journal). 168. Once the semester ended and I had a chance to catch my breath, I realized the net result from the experiment was a spring semester that felt intense and unwieldy. After reflection on the lessons learned from the experience, the idea for this Article was conceived.

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received a new student in the spring also slowed progress. As the new student got up to speed on the law and facts, additional time was needed to build a relationship not just with the client, but with the many third parties involved in the client's life. The third reason a full-year model for the clinic is valuable is because the Clinic would not be able to do the same level of law reform work that it has traditionally done. The students who participated in the Clinic for only one semester could barely master the facts, law, and skills necessary for their individual representation. Even if we were able to include some "know your rights presentations" or more manageable projects, it would be difficult for a student to handle their individual cases, and do legislative or administrative advocacy at the same time. Although I prefer the year-long model for these reasons, I also realized it might be possible to design an effective onesemester version of my child advocacy clinic. The key is that I could not simply expect to cram the same clinic into one semester, but must engage in a thoughtful redesign process to make difficult choices about how to provide students a rich, yet scaled back, experience. The next section examines how clinic goals and other design elements might be restricted for a onesemester clinic, and concludes with a re-imagined version of the CYLC. V. CONSIDERATIONS FOR DESIGN & PEDAGOGY IN A ONESEMESTER CLINIC

In his seminal article, Constructinga Clinic, Phillip provides a comprehensive inventory of considerations in desit ng a case live-client clinic.16 9 Schrag addresses structural issues, handling systems,171 and the classroom component;172 providing examples from his experience redesigning the Center for Applied Legal Studies clinic at Georgetown University School of Law. 17 3 Schrag identifies the duration of the clinic as a real 169. Schrag, supra note 10, at 179-211. 170. Id. 171. Id. at 211-36. 172. Id. at 236-41. 173. Id. at 179. "In most sections of the article and in the conclusion, [Schrag] give[s] examples from [his] experience at [the Center for Applied Legal Studies clinic at Georgetown University School of Law]." Id.

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question in clinic design, and recognizes that the tradeoffs stemming from the decision are "worthy of serious consideration" but does not go into depth about those

considerations.174

A. Clinic Goals

Clinical scholars have articulated many possible goals for live-client clinics.1 7 5 The Association of American Law Schools on the Future of the In-House Clinic identified nine that are commonly set for live-client clinics.176 First, clinics seek to "develop[] modes of planning and analysis for dealing with unstructured situations." 7 7 Second, clinics teach students lawyering skills such as "interviewing, counseling, fact investigation," negotiation, and litigation advocacy.s Third clinics give students tools to "learn from experience."l17 Fourth, clinics attempt to develop enhanced ethical and 174. Id. at 198. 175. Compare David F. Chavkin, Training the Ed Sparers of Tomorrow: IntegratingHealth Law Theory and Practice, 60 BROOK. L. REV. 303, 313-

16 (1994) (noting six goals appear to be the most common: "develop reflective practitioners-student attorneys...;" teach lawyering skills; "teach substantive law in context[;]" "develop enhanced professional responsibility... ;" develop student personas as lawyers; and provide "legal services to unrepresented populations[]"); with Schrag, supra note 10, at 179-87 (identifying, via headings, the following fifteen goals: "Responsibility[;]" "Doctrine and institutions[;]" "Service[;]" "Problemsolving[;]" "Collaboration[;]" "Cross-cultural awareness[;]" "The role of emotions[;]" "Coping with facts[;]" "Values[;]" "Ethics[;]" "Creativity[;] "Authority[;]" "Learning to learn[;]" "Traditional skills[;]" and "Students' goals[]"). 176. Subcommittee on Pedagogical Goals of In-House, Live-Client Clinics, Report of the Committee on the Future of the In-House Clinic, 42 J. LEGAL EDUC. 511, 512-16 (1992) [hereinafter Subcommittee Report]. 177. Id. at 512 (texted altered from original). 178. Id.; see also MACCRATE REPORT, supra note 32, 135 (identifying

ten skills central to the legal profession: "problem solving (Skill § 1) and legal analysis (Skill § 2)... .legal research (Skill § 3), factual investigation (Skill § 4), communication (Skill § 5), counseling (Skill § 6).. .negotiation (Skill § 7)... .litigation and alternative dispute resolution (Skill § 8)... .Skill § 9 identifies the administrative skills necessary to organize and manage legal work effectively... .Skill § 10 analyzes the skill involved in recognizing and resolving ethical dilemmas."). 179. Subcommittee Report, supra note 176, at 513

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professional responsibility in students. 80 Fifth, clinics aim to assist students in analyzing and defining their role as lawyers.' 8 1 Sixth, clinicians seek to teach students how to collaborate Seventh, clinicians attempt to impart the effectively.182 obligation of service for clients and teach about the impact of the legal system on the indigent.183 Eighth, clinics analyze substantive law and examine the impact of doctrine and legal institutions in individual lives. 184 Ninth, clinics "critiqueU[ the capacities and limitations of lawyers and the legal system." As a practical matter, it is impossible to accomplish all of these goals in one semester. As Mark Aaronson notes: Within the time frame of a semester or even a year, one has to pick and choose selectively the kinds of inquiries to be raised with students if an objective is to maintain their attention. Moreover, as a responsible attorney, a clinical teacher has to give priority to the interests of the clients over student learning to the extent that the two may conflict. The bottom line is that live-client clinical settings, student educational goals often have to be pared back. The depth of exploration for which one might hope may not be feasible. 186 By trying to do too much, clinical teachers decrease the likelihood that students will become proficient in any single

goal. 1 Research on cognitive functioning shows that there are Research limits on how much students can learn at one time. also suggests that transfer-the ability to use information

learned in one context in another context-is diminished in a 180.

Id. at 513-14.

181. Id. at 514-15.

182. Id. at 515. 183. Id.; see also John C. Dubin, Clinical Design for Social Justice Imperatives, 51 SMU L. REV. 1461, 1462 (1998) (arguing social justice should be the central mission of clinical education); Quigley, supra note 67, at 38 ("advocating that a complete legal education ... should include lessons of social justice."). 184. Subcommittee Report, supra note 176, at 515-16. 185.

Id. at 516 (text altered from original).

186. Mark Neal Aaronson, We Ask You to Consider: Learning About PracticalJudgment in Lawyering, 4 CLINICAL L. REV. 247, 286 (1998). 187. Krieger, supra note 85, at 196-99 (suggesting Mark Aronson's focus on four organizing themes in his clinic, in addition to traditional lawyering skills, is too much for one semester). 188. Id. at 194, 197-98.

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setting where too little time is devoted to too many tasks.189 [T]he repeated opportunities for practice in varied contexts that transfer seems to require and the complexity of such lawyering tasks as counseling, negotiation, mediation, and advocacy mean that clinicians are unlikely to have nearly enough teaching time to promote the transfer of all the strategies and skills relating to such tasks.' 90 Students may end up learning "a little about a lot," as opposed to gaining a deeper experience that is transferrable once they begin practice.19 Accordingly, it is important that clinicians prioritize the learning goals in a one-semester clinic. In Teaching with Purpose, Roy Stuckey suggests that

clinicians should focus on those educational goals that can be achieved more "effectively and efficiently using experiential education than through other methods of instruction...."1

While Stuckey contends that all clinics should do this, regardless of their duration, his proposal suggests a useful way to prioritize in a one-semester clinic.193 Stuckey identifies the four goals best taught through experiential education as helping students to: (1) "adjust to their roles as professionals[;]" (2) "become better legal problem-solvers[;]" (3) "develop interpersonal and professional skills[;]" and (4) "learn how to learn from experience."l 94 He notes that the key feature distinguishing live-client clinics from other experiential opportunities is the students' responsibility to clients and accountability for their actions.19 5 Thus, due to the limited time available in a single semester, it makes sense to focus on the lessons that can be uniquely taught in a live-client clinic. 189. Binder & Bergman, supra note 75, at 205. 190. Id. 191. Id. 192. Roy Stuckey, Teaching with Purpose: Defining and Achieving Desired Outcomes in ClinicalLaw Courses, 13 CLINICAL L. REv. 807, 814 (2007); see also Binder & Bergman, supra note 75, at 205 (suggesting that another way to prioritize might be to ask questions such as "[w]hat are the important and complex problems that commonly confront lawyers as to which my students are unlikely to receive adequate training once they enter law practice?"). 193. Stuckey, supra note 192, at 814. 194. Id at 815-24. 195. Id. at 830-31.

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In addition, some of the other goals often identified by clinicians are also taught in other types of courses in the legal curriculum.196 For example, students may learn substantive law relevant to the clinic's practice area in a doctrinal course or technical aspects of trial skills in a simulation based course.197 To carry out our representation in a live-client clinic, clinicians may have to teach students substantive law, or skills that might not be central to the clinic's particular type of representation. Rather than doing this in class, these skills could be taught as efficiently as possible through the use of reference materials, student manuals, and well-organized office systems.198 "If we can help students process the legal work efficiently, we will have more time to help them learn the really important lessons that supervised practice can teach."1 99 But, there is no right answer as to how to prioritize. The point is that clinicians should recognize that it cannot all be done in one semester, and therefore need to be self-conscious about clinical objectives. Explaining the goals to students and allowing them to identify personal goals will increase the likelihood that students achieve those goals by the end of the semester.200 According to adult learning theory, students generally learn more effectively when they understand what they are supposed to be learning and how it will help them achieve personal goals.2 0 1 Rather than "hiding the ball," telling students what the objectives of the course are and how the assignment at hand furthers those objectives allows them to recognize that they are not wasting their time or energy, but are engaging in exactly what they enrolled in law school to do-to learn the skills and knowledge necessary to enter the legal profession. Once students understand the relevance of a task, they are more likely to fully engage in the assignment. 20 3 Because adults view themselves as self-determining, it is also important to allow 196. Id. at 819.

197. Id. 198. Id. at 832. 199. Id. 200. BEST PRACTICES, supra note 2, at 168. 201. THE ADULT LEARNER, supra note 65, at 64-65. 202 Anderson, supranote 74, at 144. 203. Id.

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students to select the professional goals they most want to accomplish. The professor should then select cases and construct the clinical experience to emphasize the goals chosen by the student. By clearly articulating goals and allowing students to prioritize those goals most relevant to them, professors can help students to learn more in the course of a semester. B.

Case Selection

In designing a one-semester clinic, faculty should be mindful that the type of cases handled in the clinic will significantly impact the kind of learning experience students have in a single semester. 204 Clinical scholarship has extensively covered questions related to the types of matters that best advance the goals of clinical education. 20 5 Scholars have debated the benefits of larger, more complex cases versus small cases;206 clinics that handle a wide range of practice areas versus specialty clinics; 2 07 and clinics that do collective mobilization or broad social justice work versus individual case-centered 208 practice. During one-semester clinics, students should have the opportunity to work on a matter from beginning to end.2 09 204. Schrag, supra note 10, at 191; see also Reingold, supra note 95, at 545 (noting that "[t]he choice of specialty clinic versus general clinic is an important one because a clinic's structure cannot help but determine what values and skills it will teach."). 205. See, e.g., Pamela N. Phan, Clinical Legal Education in China: In Pursuit of a Culture of Law and a Mission of Social Justice, 8 YALE HUM.

RTs. & DEV. L.J. 117 (2005); Stephen Wizner & Jane Aiken, Teaching & Doing: The Role of Law School Clinics in Enhancing Access to Justice, 73 FORDHAM L. REv. 997 (2004); Frances Gall Hill, Clinical Education and The "Best Interest" Representation of Children in Custody Disputes: Challenges and Opportunitiesin Lawyering and Pedagogy, 73 IND. L.J. 605

(1998). 206. Compare Ian Weinstein, Teaching Reflective Lawyering in a Small Case Litigation Clinic: A Love Letter to My Clinic, 13 CLINICAL L. REV. 573,

586 (2006) (arguing "[s]tudents can gain tremendous insights from working on complex cases[.]"); with Kruse, supra note 94, at 413 (asserting simple cases provide matters the students are "capable of handling on their own."). 207. See, e.g., Reingold, supra note 95, at 545-46. 208. See, e.g., Srikantiah & Koh, supra note 98, at 459. 209. See Reingold, supra note 95, at 548-49.

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Domestic violence, landlord-tenant, and certain public benefits administrative proceedings are examples of cases that can be completed in a semester, as well as certain types of transactional matters. As discussed in Part IlI, the feedback students get from seeing a matter to its conclusion, or some critical milestone, is crucial to the learning process. Cases or projects that extend over multiple semesters may also undermine student autonomy. One of the widely accepted pedagogies in clinical education is that students assume full responsibility for every aspect of their cases.210 If the case continues beyond the clinic term, new students inherit and are either influenced by or forced to adopt client information and legal strategies developed by their predecessors.211 In addition, continuity of representation is necessarily provided by professors who supervise the case during breaks and provides background information to get new students up to speed.2 12 Despite this necessity to keep the clinic running during these time periods, some argue that this gives the clinical faculty members too active a role with the client and in case strategy.213 Small cases, usually involving an individual client for whom the outcome has enormous personal significance, are a particularly valuable vehicle for students to acquire the skills

210. Kruse, supra note 93, at 407-08 (arguing "[f]or pedagogical reasons, many clinics choose to limit their students' work to a few carefully chosen cases that are small and manageable enough to give the students full ownership and control over the cases, to develop the primary relationship with the client, and to see the cases from beginning to end."). The primary role assumed by the student capitalizes on the adult learners need for selfdirection and ensures that law students are responsible for planning and executing their clinical experience. Bloch, supra note 59, at 339-40. Students are forced to develop the attorney-client relationship themselves; thereby figuring out how they will respond to the multitude of emotional and interpersonal complexities inherent in that relationship. Id. 211. Naomi R. Cahn & Norman G. Schneider, The Next Best Thing: TransferredClients in a Legal Clinic, 36 CATH. U. L. REv. 367, 390 (1987) 212. Id. at 393-94. 213. Chavkin, Gold, supra note 138, at 263; see also David F. Chavkin, Am I My Client's Lawyer?: Role Definition And The Clinical Supervisor, 51

SMU L. REv. 1507, 1535-36 (1998) (asserting clinical "educational goals will be most advanced if clinical supervisors take advantage of the flexibility of most student practice rules to avoid establishing a co-counsel relationship except in extreme cases.").

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associated with developing an attorney-client relationship.21 As discussed, if clinicians seek to prioritize those learning goals uniquely suited to a live-client clinic, it makes sense to emphasize the opportunities for client interaction as these are unlikely to be available elsewhere in the curriculum.215 Small cases are also appropriate in one-semester clinics because the clinical professor is more likely to understand the issues and range of possible solutions, thus providing more effective 216 An attempt to do larger, more complex cases in supervision. a one-semester clinic means that the supervisor may have to devote precious time to understanding and researching the issues herself. Another important consideration in selecting cases is whether the clinic should focus on one practice area or serve a wide range of client needs. If you have only one semester to accomplish a myriad of objectives, there are compelling reasons to specialize. Specialization increases the likelihood that students will become knowledgeable about a practice area by the end of the semester. 2 17 Because practice area clinics require knowledge of a clearly defined set of substantive and procedural rules, the experience is more predictable and students gain a deeper understanding of the relevant law. A clinical supervisor, who is also an expert in the area, can provide helpful guidance. 2 18 Learning through case rounds and class discussion is also enhanced as other students in the class are themselves becoming experts in the field. For example, if two students to learn the law each have a case of the same type, both are able 219 This expertise and hone their legal skills through repetition. empowers students by giving them concrete experience on what becoming an expert requires and feels like. In addition, by 214. Weinstein, supra note 206, at 597. 215. See supra Part IV & accompanying text. 216. Weinstein, supra note 206, at 577. 217. Id. at 583-84 ("Much as we work to make our clients stand out as individuals with particular stories to tell, our cases move through the system in a predictable way, presenting different versions of a relatively limited set of substantive and procedural problems. That relatively small universe of problems enables most of my students to learn enough in the course of one semester clinic to begin to develop real expertise in this corner of criminal defense work."). 218. Schrag, supra note 10, at 191. 219. See Kowalski, supra note 76, at 58.

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making it easier to master the relevant substantive law, students can focus on other aspects of the representation, thereby maximizing those educational goals that can only be learned through a real-life experience. Although specialization may be pragmatic in a one-semester clinic, it is important to understand what is sacrificed when confining the scope of the work. Some have argued that subject matter specialization conflicts with the holistic approach.2 2 1 "Holistic lawyering, or client-centered lawyering, similarly focuses on the goal of improving the overall (legal) health of the client with a focus on the expertise that a lawyer can bring to the table." 2 22 Students working in a narrow subject matter clinic may fail to see the client as a whole person with a range of legal and other problems that are inextricably linked to the problem that is the subject of the representation.223 "By contrast, general practice clinics and clinics focused on particular populations provide at least the opportunity to reinforce for students the lessons of client-centered lawyering[]" that has In addition, if a become a central tenet of clinical education.2 clinic fails to address a client's problem holistically, the poor and marginalized client served by the clinic is unlikely to get legal services elsewhere.2 2 5 In Learning Through Service in a 220. Reingold, supranote 95, at 561. 221. See Chavkin, Gold, supra note 138, at 268. 222. Id. at 267-68 (footnote omitted). 223. Lauren Carasik, Justice in the Balance: An Evaluation of Once Clinic's Ability to Harmonize Teaching Practical Skills, Ethics and Professionalismwith a Social Justice Mission, 16 S. CAL. L. REv. L. & Soc. JUST. 23, 82-83 (2006). 224. JoNel Newman, Re-Conceptualizing Poverty Law Clinical Curriculum and Legal Services Practice: The Need for Generalists, 34 FORDHAM URB. L.J. 1303, 1318 (2007); see also Chavkin, Gold, supra note 138, at 268. Chavkin uses "client-centered representation" to mean recognizing the uniqueness of the individual being represented and understanding that the legal problems for which the individual is seeking assistance occur within a constellation of unique goals and needs. In this setting, the goal of 'client-centered' representation is to maximize the ability of the client to make informed decisions among a range of options and to develop a 'theory of the client' designed to maximize the likelihood (but not guarantee) that the client's goals can be achieved. Id. at 268 n.79. 225. Newman, supra note 224, at 1312.

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Clinical Setting, Antoinette Sedillo Lopez argues that the social justice mission of law clinics is undermined by specialization.226 She contends it is the understanding of clients' lives and the struggle to respond that helps students grasp the inequities of the legal system. 22 7 Students may also develop a "more openminded and creative" approach to law by attempting to address a wide range of client problems. 22 8 Also, the challenge and variety of a general practice clinic may be more interesting to teachers and students alike. If a clinic chooses to specialize by practice area, then special care should be taken to ensure that interviewing and counseling is still done "in a truly client-centered manner." 229 Moreover, students should identify all of the clients' legal needs and, if necessary, refer the client elsewhere for services. Ideally, the issue should be handled and given priority at another clinic within the law school to ensure seamless and coordinated provision of services. If that is not possible, then clinics should develop working relationships with other legal services providers and community organizations, and help clients shortcircuit the sometimes byzantine intake process. Finally, where social justice is a mission, attention must be paid to explicitly teaching students to see the interconnectedness and complexity of the problems faced by the indigent. C. Credits, Caseloadand Pre- or Co-Requisites

If students are taking the clinic for only one semester, there should be enough credits and required hours of work for 226. Antoinette Sedillo Lopez, Learning Through Service in a Clinical Setting: The Effect of Specialization on Social Justice and Skills Training, 7

L. REv. 307, 316-17 (2001). In addition to leaving certain legal needs unmet, Lopez argues [a] more subtle problem of specialization is that clinics as institutions, and we as practitioner academics, will not learn about the various and changing needs of poor people. The students will not learn to understand the full complexity and challenges of the lives of their clients and will be more likely to see them as cases and not clients. Some specializations may not expose us to people of color and their lives unless we consciously seek them out as clients. Id. at 317. 227. Id. at 317-18. 228. Reingold, supra note 95, at 553. 229. Chavkin, Gold, supra note 138, at 269. CLINICAL

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students to immerse themselves in clinical practice. Students will get a chance to do-and learn-more in a shorter space of time. Clinics vary widely in terms of the number of credit hours per semester. The most frequent number of credits given in live-client clinics is four credits per semester, but clinics range in offering anywhere from two to fourteen credits per In determining how many hours students must semester. work to earn a specific number of credits, a common formula used by clinics, based on a Georgetown memo,231 is one credit for ever three and one-half hours of structured interaction time.232 In a one-semester clinic, it is important to award a high enough number of clinics that students can spend enough time on their cases to get a meaningful experience. A higher number of credits also means that students will need to take fewer classes to carry a full-time course load, and therefore, can easily balance a clinic with their other commitments. For example, one clinician describes the challenges of trying to accomplish all of her goals in a one-semester, six-credit federal legislation clinic. 23 3 The subsequent increase to eight and then ten credits "relieve[d] some of the academic stress" by providing more time for coverage of material in clinic classes and for students 230. Santacroce & Kuehn, supra note 9, at 14. According to the survey: "The most frequent number of credits per semester for the clinic (i.e., credits for combined classroom and casework components) is 4 per semester (25.7%), followed by 3 credits/semester (24.7%), 6 credits/semester (18.2%), 5 credits/semester (10.8%), 7 credits/semester (8.4%) and 2 credits/semester (5.1%), with all other responses 3.0% or less." Id. (alteration in original). Although not reflected in the CSALE data (and probably in the minority), there are some clinics that offer as many as fourteen credits in a single semester. See, e.g., N.Y. UNIV. SCH. OF LAW, EQUAL JUSTICE & CAPITAL DEFENDER CLINIC, http://www.law.nyu.edu/academics/clinics/semester/equaljustice/index.htm (last visited Dec. 15, 2011) ("one-semester 14-credit course"); GEORGETOWN UNIV. SCH. OF LAW, CTR. FOR APPLIED LEGAL STUDIES, http://www.law.georgetown.edu/clinics/cals/overview.html (last visited Dec. 15, 2011) (offering ten credits). 231. ACADEMIC CREDIT FOR CLINICAL PROGRAMS, REPORT TO THE FACULTY FROM THE CLINICS COMMITTEE (Oct. 7, 1999) (on file with the John Marshall Law Journal). 232. See, e.g., Chai Rachel Feldblum, Appendices: The Art of Legislative Lawyering and the Six Circles Theory of Advocacy, 34 MCGEORGE L. REv. 823, 825 (2003). 233. Feldblum, supranote 232, at 825.

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to do their clinic work.2 3 4 Careful attention should also be paid to the student's case load (both in terms of number and case type) to ensure that students get the most out of their time in the clinic. Different types of cases may give students an opportunity to develop different skills. The University of Michigan Law School Child Advocacy Clinic, which has served as a model for child advocacy clinics across the country, is a "one semester course for seven academic credits[.]" 2 35 A typical semester caseload for a team of two students in the University of Michigan Child Advocacy Clinic includes one termination of parental rights case in which the students represent the agency, one case in which students represent parents accused of child maltreatment, and three cases in which students represent children in child protection or guardianship matters. 2 36 Thus, in the course of a semester, every student gets a range of skills and perspectives about the role of the attorney. Many clinical programs require simulation, substantive, or other courses in advance of taking a clinic, or as a co-requisite. This sequencing may allow students to have some foundation in professional trial skills, evidence, law, substantive responsibility, or some other course deemed important, which frees up time in the clinic. The downside is that the more sequencing and co-requisites required, the more students will have to carefully plan their course schedule.2 3 7 Some students may not get the opportunity to take the clinic either because of insufficient advanced planning or they were unable to get into 238 the other required courses. D. Beginning & TransferringCases

To increase the likelihood that students can work on particular aspects of a case, clinicians may consider taking cases 234. Id. (quoting Professor Robert Stumberg of the Harrison Institute's review regarding "the number of credits [Federal Legislation Clinic] students are allotted for participation[.]"). 235. Donald N. Duquette, Developing a Child Advocacy Law Clinic: A Law School ClinicalLegal Education Opportunity, 31 U. MICH. J. L. REF. 1, 7 (1997). 236. Id. at 8. 237. Engler, supra note 10, at 153-54. 238. Id.

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at a specific procedural phase. While this may not be at the very beginning of the case, it may be at a point that increases the likelihood a student will gain certain experiences in a semester. For example, the CYLC is sometimes asked to handle Medicaid waiver cases from the initial application. While there are advantages to having a lawyer involved from the beginning, the initial application is essentially a paper process after which the Clinic waits anywhere from thirty to sixty days for a response. This may provide limited opportunities for students to learn legal skills. By accepting these appeals after the application is denied, it increases the likelihood that students will conduct fact investigation and a negotiation or trial before the end of the semester. Even if cases are carefully selected to span the semester, it is inevitable that some cases will not actually be completed by the end of the semester. Transfer issues arise every time a case extends beyond the clinic term, 2 39 but may be more disruptive if the term is one semester because there are twice as many case handlers and points for disruption. Clinicians should try as much as possible to ensure continuity for the client and case; ensuring that each new student has an opportunity to significantly advance the case, and develop a meaningful relationship with the client. While documentation is always important, there is a heightened need for "strict record-keeping procedures" throughout the semester. 240 This can be enforced through periodic audits of clinic files. During the transfer, it important that there be a thorough transfer memo that documents everything that happened in the case and provides a strategic plan for what should happen next.241 At the same time, clinics should be mindful of students passing along the type of information that is likely to influence the new students' opportunity to build an independent 242 relationship with the client. One helpful way to allow students to make this judgment might be to remind them that the client is always entitled to read his or her file, and encourage students to never include anything they would not want the client to read. In The Next Best Thing, Naomi Cahn and 239. Schrag, supra note 10, at 235. 240. Babcock, supra note 54, at 40. 241. Cahn & Schneider, supra note 211, at 390 242. Id. at 380-81.

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Norman Schneider recommend conveying "interpersonal and idiosyncratic details of the case which might be inappropriate 243 for a public file memo," to a separate memo to the supervisor. The supervisor can then make the decision whether to share the information with the new student. 24 4 Transfer issues also arise when dealing with law reform projects. To deal with the challenge of turnover when working on policy projects, it is important to create "feedback loops" so that a new set of students can get feedback from the community or client base to help evaluate the strategy. 245 In addition, there must be "a structure or method for creating institutional memory, so that the lessons learned" from one semester will be passed along to the next set of students.2 4 6 Kate Kruse suggests compartmentalization where the problem is broken down into finite tasks that students can accomplish in the course of a semester. 247 Each group of clinic students is responsible for completing a discrete phase of a longer project. 24 8 At the same time, Kruse cautions that to make the projects meaningful, students "must understand how their individual work fits into the larger project, and have a stake and a say in how the goals of the larger project evolve over time."249 Each set of students should have a clear sense of the goals, the process that came before, and input in the project after they leave. Faculty and former clinic students may be the constant in the attorney-client relationship. At the outset, it is important to explain to the client how the clinic functions and that there will be a new student each semester. In Developing a Child Advocacy Law Clinic, Donald Duquette acknowledges that "certain children would benefit from having the same attorney throughout the" duration of a dependency case. 2 50 But, Duquette defends the one-semester model because he "believe[s] that the careful and thorough representation that the Clinic is able to provide outweighs any possible detriment to the 243. Id. at 392. 244. Id. 245. Kruse, supra note 94, at 432. 246. Id. 247. Id. at 434. 248. Id. at 435. 249. Id. at 436. 250. Duquette, supra note 235, at 15

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child." 25 1 He emphasizes that continuity is provided because the same faculty member generally follows a case from beginning to end, and great care is taken to transfer cases from one student team to the next. Continuity can also be achieved through former clinic students. For example, 51.7 % of clinics responding to the Center for the Study of Applied Legal Education 2007-2008 Survey allow some students to stay on beyond the mandatory clinic term.2 5 2 As in the CYLC, these students can act as mentors for other students,2 5 3 project leaders, 25 4 or they can simply continue the representation on certain cases. 255 Some clinics also adopt a staggered enrollment approach. For example, in the Human Rights Clinic at Willamette University College of Law, students take the clinic for four credits in one semester, and then about 50% of them elect to take "advanced clinic" in a second semester while a new group of students are taking the clinic for the first time.256 E. Class Room Component An orientation or "boot camp" is one way to get an early, running start in a one-semester clinic.2 5 7 Some clinicians choose to front load substantive law and procedure in that time, while others do a mix of substance and skills. 2 58 Either option 251. Id.

252. Santacroce & Kuehn, supra note 9, at 14. 253. Leong, supra note 58, at 98. 254. Andrea M. Seielstad, Community Building as a Means of Teaching Creative, Cooperative, and Complex Problem Solving in Clinical Legal

Education, 8 Clinical L. Rev. 445, 501-02 (2002). 255. Babcock, supra note 54, at 40.

256. E-mail from Gwynne Skinner, Assistant Prof, Int'l Human Rights Clinic, Willamette Univ. Coll. of Law to author (Dec. 9, 2010, 11:50 AM) (on file with the John Marshall Law Journal). 257. Feldblum, supra note 232, at 825 (discussing the Federal Legislative Clinic "boot camp" over three afternoons at the beginning of the semester to learn "the basics of Congressional process and procedure."). 258. Compare Duquette, supra note 235, at 8, 22 (noting that his class meets three times per week at the beginning of the semester, and twice during later weeks; students are not assigned cases during the first week of the semester), with Schrag, supra note 10, at 238 (noting that "supervisors might want to consider writing a syllabus that tracks.. .students' use of those skills, on average, in the clinic's cases. Therefore interviewing might be the subject of the first class or two....").

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allows students to get some grounding in the clinic's practice area before starting actual client work. Frontloading can also be done after the semester begins by holding more seminar classes in the beginning of the semester, as opposed to later in the semester. Planning the syllabus for a one-semester class requires difficult choices about what to include. The topics chosen for seminar should be dictated by the goals set for the course. Every class should further one of the learning goals for the course; otherwise, the topic may be more appropriately addressed in individual supervision or through reference material. The syllabus should also be dynamic, responding to what is happening in actual cases, so that students can make connections between the work and class discussion.25 With a year-long clinic, the syllabus is generally followed. Even if an area is not directly relevant to a student when it is taught, the student more than likely will have a need for the topic in the course of the year. The readings provide references that the students can refer back to when they actually encounter the issue in future cases. One-semester clinics do not have that luxury; therefore, classes need to be directly relevant to the students' learning goals and actual case work. Another way to meet learning goals and provide consistency in what students are learning in a one-semester clinic is to create exercises for the entire class. One of the advantages of a yearlong clinic is that students may get to do more lawyering tasks, and even when students are working on different types of cases, they all gain certain lawyering experiences by the end of the year. To ensure that students have consistent opportunities to learn certain aspects of lawyering, the clinical professor can assign exercises based on clinic case.260 For example, clinicians can create a problem based on actual cases, and have students write legal memos, do a mock interview, 26 1 draft a complaint, or

259. Kimberly E. O'Leary, ClinicalLaw Offices and Local Social Justice Strategies: Case Selection and Quality Assessment as an Integral Part of the Social Justice Agenda of Clinics, 11 CLIICAL L. REv. 335, 362 (2005)

(describing how team teaching allows for changes in the syllabus when case priorities change). 260. Babcock, supra note 54, at 30, 54. 261. Kowalski, supra note 76, at 98.

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a motion. 262 F. Reconstructing a One-Semester Child Advocacy Clinic

The goals for the re-imagined one-semester CYLC are for students to develop interpersonal skills for the attorney-client and other professional relationships, solve legal problems, learn how to learn from experience, and understand how legal doctrine and institutions impact the lives of poor people. I chose these goals because they form the core of what can reasonably and uniquely be achieved during a semester in a live-client clinic. By focusing on these goals, I do not expect that my students will know everything they need to know to practice law. But, I hope my students will have a solid introduction to their role as attorneys and models for future professional growth.2 6 3 In addition to the general goals for all CYLC students, I would like students to determine their own strengths and weaknesses, and identify strategies to achieve their leaming goals. To tailor the experience to students' individualized objectives for learning, I will use learning contracts.264 While we have used a standardized learning contract in the past, we have never used individualized contracts where students identify personal goals. By emphasizing students' own goals, I hope that students will fully engage in the experience and leave the clinic armed with tools to help boost their professional development when they enter practice. This vision pares down what we seek to do in the current year-long configuration of the clinic, primarily by deemphasizing objectives that can be achieved through other 265 courses in the curriculum. In doing so, however, students 262. Id. at 62. 263. See generally Weinstein, supra note 206, at 573

("I have watched young student lawyers. make the leap to very capable very capable students they have taken a in practice, but that awaits them not ready for all They are direction."). in that step big 264. Jane H. Aiken et al., The Learning Contract in Legal Education, 44

MD. L. REv. 1047, 1048-49 (1985) (quoting R.M. Barlow, An Experiment with Learning Contracts, 45 J. HIGHER EDUC. 441 (1974) (defining a

learning contract "as a 'document drawn up by the student in consolation with [an] instructor specifying what and how the student will learn in a given period of time."). 265. The current goals of the CYLC are to: (1) "Train students in

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will still be exposed to many of the things we do in the current clinic. Among the goals of our year-long clinic is to teach "fundamental lawyering skills," and we try to devote equal attention to a broad range of skills. 266 In a one-semester clinic, the focus will be on those skills best learned when there is a real client and ever shifting facts: client interviewing and counseling, fact development, and problem solving. Trial skills, on the other hand, will not receive a great deal of attention because the University of Miami has a rigorous simulation litigation skills course in which many of our students enroll. Of course, students will need to be prepared for litigation if necessary. Rather than devoting precious class time to in-depth training on litigations skills, I may provide guidance on trial techniques individually and recommend trial texts or webinars for students. Class time may be better used for oral arguments or mock trials. Another current clinic goal that will be de-emphasized is teaching substantive law. We currently devote almost half of our classes in the first semester to teaching substantive law on a range of topics such as child welfare, special education, and disability law. As part of our non-directive approach, we also often expect students to find the law, and sometimes reinvent the wheel, on even basic law in our substantive areas. Because substantive law is no longer a primary focus, students can be provided the general law more efficiently during the orientation at the beginning of the semester or through better dissemination of reference material and prior clinic work product. Students will still be expected to do research on issues specific to their cases, and substantive law may be discussed in class as part of a broader discussion about legal strategy. While one of the clinic's goals still reflects a social justice fundamental lawyering skills[;]" (2) "Instill in students high standards of ethics and professional responsibility[;]" (3) "Provide high quality, professional and zealous representation to our clients[;]" (4) "Foster students' ability to engage in self-reflection and introspective professional development[;]" (5) "Enhance students' understanding of how legal doctrine and institutions operate in individual cases[;]" and (6) emphasize the value of public service. CYLC MANUAL, supra note 142, at 1.

266. Id. Work of CYLC students "may include client interviews, motion practice, informal and formal discovery, negotiations and mediations, court and administrative hearings, trials and appeals, complex litigation, and legislative advocacy." Id.

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mission, it would be implemented more narrowly than in the current year-long clinic. Students in the year-long clinic work on a wide range of law reform projects including legislation, administrative advocacy, amicus briefs, and litigation. In the one-semester clinic, students will learn to interview and counsel in a way that reflects understanding of the lives of our clients. And we will discuss the way in which the law often operates to further marginalize the indigent. In addition to their individual cases, students will participate in at least one project that approaches problem-solving "from another perspective, such as providing community education, engaging in collaborative problem-solving with a community group, or examining an issue or problem that arises in the context of their representation of individual clients."2 6 7 There may be manageable projects that allow students to "recognize that 'lawyering for social change requires lawyers to attend to the broader social context in which the client and other similarly situated persons live."' 268 The key is identifying a project that is discrete enough to allow the student to have a meaningful experience in one semester. The one-semester clinic will still handle several different types of cases, but will focus primarily on cases with shorter life spans. A clinic for youth transitioning out of the foster care system, or who have already aged out, may lend itself to a onesemester model. The one-semester clinic could primarily handle administrative appeals of independent living benefits, Medicaid waiver cases, and guardianships for youth with 267. Seielstad, supra note 254, at 465; see also Srikantiah & Koh, supra note 98, at 455-59 (discussing the benefits of "exposing students to" big picture advocacy work, in addition to individual case representation). 268. Sara R. Benson, Beyond Protective Orders: Interdisciplinary Domestic Violence Clinics Facilitate Social Change, 14 CARDOZO J.L. & GENDER 1, 10 (2007) (quoting Margaret Martin Barry, A Question of Mission: Catholic Law School's Domestic Violence Clinic, 38 How. L.J. 135, 156 (1994)). Professor Seielstad discusses how domestic violence clinic students learn about law as a tool for social change through educating elementary and high school students about domestic violence, organizing a support group for victims of domestic violence, conducting research about practice and client narratives, and lobbying. Seielstad, supra note 254, at 911. See also Duquette, supranote 235, at 17 (noting that students in the onesemester University of Michigan Child Advocacy Clinic are involved in legislative drafting).

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disabilities. These are essentially cases in the current CYLC caseload mix that are capable of resulting in a start to finish experience in the course of one semester. Students should be able to meet with the client and understand the problem, engage in strategic planning and analysis, and execute strategy in one semester. 269 Every team of students will be assigned one administrative appeal, as well as two or three other cases.2 7 0 It is hard to gauge how much time students will need to spend on this particular mix of cases, so the caseload may need to be adjusted. The value in administrative appeals is that they allow students to get an entire litigation-based experience in a condensed time-frame, and might involve negotiations, pre-trial motions, trial preparation, and an evidentiary hearing. For example, our Medicaid waiver cases are typically set two months from notice of appeal. The cases are challenging, often involving expert witnesses and review of medical evaluations, yet manageable for a student who devotes the time necessary to master the facts Guardianships typically culminate in fairly and law. straightforward court hearings, but are rich with opportunities for students to develop facts, analyze potential options to achieve the clients' goals, and draft simple pleadings. By focusing on a client population, such as older youth, as opposed to a substantive area, we will continue to represent the "whole client." We may not be able to handle as broad a range of cases as we currently do, but can continue to do holistic representation. Students will still need to recognize the clients' strengths and challenges, as well as the nuances of the clients' experiences and the lens through which the client sees the 269. See Weinstein, supra note 206, at 585. 270. In the current year-long CYLC course, students work individually. In the one-semester clinic, students will work in teams of two, both as a means to cut down on formal supervision meeting time and to increase the likelihood that every student will get a similar range of experiences. See Daniel S. Medwed, Actual Innocents: Reflections on Selecting Cases for a

New Innocence Project, 81 NEB. L. REv. 1097, 1147 (2003) (recognizing student teams may lead to more effective results "because they teach and learn from each other and, from the client's perspective, two heads are often better than one."); see also David F. Chavkin, Matchmaker, Matchmaker: Student Collaboration in Clinical Programs, I CLINICAL L. REV. 199, 209

(1994) (arguing students teams foster the opportunity to learn how to collaborate with colleagues).

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world. Students will still be asked to confront questions such as: What are the factors that led to the client's current circumstances?; What factors influence what the client wants?; and What are our assumptions about the indigent? Cases that cannot be handled by the one-semester clinic can be referred to another clinic within the law school or a legal services program in the community. The number of credits will be increased from the current four credits for ten hours of field work and three and one-half hours of seminar per week to at least six credits. Under the formula that we use, six hours of clinic would translate into approximately twenty-one hours of structured interaction time in the clinic. By working more hours in the clinic, students have more time to devote to their cases, thereby increasing their opportunity to learn from the experience. At the same time, students have fewer required courses during their semester of clinic. This responds to the concern most commonly expressed by students who favored a one-semester clinic that the time spent on clinic makes it difficult to balance clinic with other classes. VII.

CONCLUSION

In developing clinical programs, we should be conscious of the trade-offs in choosing to offer clinics for a year or a semester. Based on my experience in the CYLC, as well as analysis of clinical and learning theory, I believe there are sufficient benefits to students, clients, and law schools that there should be year-long clinics. At the same time, the value of providing a clinical opportunity to as many students as possible justifies offering one-semester clinics. In offering one-semester clinics, clinicians should be mindful of setting realistic goals and designing the clinic to ensure that students get the most of the experience. As with other aspects of clinical design, we need empirical research on whether longer clinical experiences lead to students who are better prepared for practice. Data is 271. Sandefur & Selbin, supra note 31, at 84 (noting that one of the challenges with drawing conclusions from the After the JD Study is that "some students may have spent several terms in their law school's clinical program, while others will have spent only a brief time participating in clinical training.").

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important for law schools as they consider how to improve legal education, 272 as is rigorous and thoughtful exploration of how to develop a clinical program that achieves institutional goals.

272. Silver, supra note 36, at 374.

THE EVOLUTIONARY BIOLOGY OF FUNGI AND FRAUD WENDY GERWICK COUTURE & B. CLIFFORD GERWICK**

ABSTRACT

In this Article, the authors-a law professor and a biologistoffer a fresh perspective on the use of broad federal fraud statutes to combat fraud by drawing a comparison with the use of multi-site fungicides to combat plant disease. Multi-site fungicides are effective at preventing the evolution of resistant strains of fungi, but they are subject to increased regulatory scrutiny amid concerns about off-target toxicity. Similarly, broad fraud statutes serve as a stopgap to prevent the evolution of new types of fraud, but they are widely criticized as unduly vague and as interfering with the operation of specific fraud Biologists' successful alternatives to multi-site statutes. fungicides inform the discussion of alternative ways to combat fraud that avoid the problems associated with broad fraud statutes. TABLE OF CONTENTS ............................................

INTRODUCTION

II.

MULTI-SITE FUNGICIDES AND BROAD FRAUD STATUTES PREVENT THE EVOLUTION OF RESISTANT STRAINS OF FUNGI AND FRAUD.........................................

A. B.

The Use ofMulti-Site Fungicidesto Combat the Evolution ofResistant Fungi ............. The Use ofBroad FraudStatutes to Combat the

..........

Associate Professor of Law, University of Idaho. Professor Couture teaches courses in securities regulation and white collar crime. ** Leader: AgChem Discovery Research, Dow AgroSciences LLC. The authors, who are father and daughter, would like to thank the rest of their family for tolerating this ongoing discussion at family reunions. *

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III.

Evolution ofResistant Strains ofFraud .. Differences Between The Roles of Fungicides in FightingFungi andFraudStatutes in Fighting Fraud.......................................

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MULTI-SITE FUNGICIDES AND BROAD FRAUD STATUTES ARE BOTH UNDER PRESSURE.............................

IV.

ALTERNATIVES CAN PREVENT THE EVOLUTION OF RESISTANT STRAINS, WHILE AVOIDING THE COSTS ASSOCIATED WITH MULTI-SITE FUNGICIDES AND BROAD FRAUD STATUTES

................... 89

The Combination ofSingle-Site Fungicidesor Specific FraudStatutes To Combat the Evolution 90 ofResistant Fungi or Fraud..................... The Combination of Multi-Site and Single-Site Fungicides or Broad and Specific FraudStatutes To Combat the Evolution ofResistant Fungi or Fraud....................................... 92 Non-Fungicideor Non-Statutory Ways to Combat the Evolution ofResistant Fungi or Fraud................ 94

CONCLUSION......................................

INTRODUCTION

What do fraud and fungi have in common? In this Article, the authors-a law professor and a biologist-offer a fresh perspective on the use of broad federal fraud statutes to combat fraud by drawing a comparison with the use of multi-site fungicides to combat plant disease. The potential for fraud perpetrators to "evolve," thus avoiding the reach of antifraud legislation, is central to the debate about the appropriate breadth of fraud statutes.' Similarly, the evolution of plant diseases that 1. Thomas Rybarczyk, Comment, Preserving a More Perfect Union: Melding Two Circuits Approaches to Save a Valuable Weapon in the Fight Against PoliticalCorruption,2010 Wis. L. REV. 1119, 1129 (noting the mail fraud statute's role in "stopping the ever-evolving schemer from using the

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are fungicide-resistant is a crucial issue confronting plant biologists. 2 The strategies successfully invoked by biologists to combat plant disease in the face of evolving fungi, including the role of single-site and multi-site fungicides, provide guidance about successful strategies that could be used to fight fraud in the face of evolving fraud perpetrators, including the role of specific and broad fraud statutes. The appropriate role of broad federal statutes in combating fraud is an especially relevant issue in the wake of the United States Supreme Court's recent decision in Skilling v. United States, which significantly limited the reach of the federal mail and wire fraud statutes. 4 The mail and wire fraud statutes5 prohibit the fraudulent deprivation, not only of money or property, but also of the "intangible right of honest services." 6 Before the Skilling decision, this so-called "honest services fraud" provision was used to prosecute a broad range of conduct, including undisclosed self-dealing by public officials and private employees. 7 In Skilling, however, the Court significantly limited the reach of these statutes by interpreting "honest services fraud" as including only frauds involving mails as an instrument of fraud") (citing Durland v. United States, 161 U.S. 306, 314 (1896)). 2.

Jonathan Gressel, Evolving Understanding of the Evolution of

Herbicide Resistance, 65 PEST MGMT. SCI. 1164, 1164 (2009) (explaining that the problem of fungicide resistance has "all to do with evolutionary biology"); Derek W. Hollomon & Keith J. Brent, Combating PlantDiseases - The Darwin Connection, 65 PEST MGMT. SCI. 1156, 1156 (2009), available

at http://tripsaver.lib.ncsu.edu/pdf/84007671.pdf (recognizing that "the development of strains resistant to chemical treatments[]" is one of the "evolutionary trends" that causes "new problems of plant disease"); Margaret McGrath, Fungicides and Mode of Action, 15 GREENHOUSE at available 2005), (Sept. NEWS PRODUCT http://www.gpnmag.com/Fungicides-and-Mode-of-Action--article6328 (explaining that fungicide resistance is "obtained through evolutionary processes"). 3. Skilling v. United States, 130 S. Ct. 2896 (2010). 4. Id. at 2928. 5. 18 U.S.C. ยง 1341 (West 2011) ("Frauds and swindles"); 18 U.S.C. ยง 1343 (West 2011) ("Fraud by wire, radio, or television"). 6. 18 U.S.C. ยง 1346 (West 2011) (declared unconstitutionally vague by Skilling when applied to conduct other than bribery and kickbacks). 7. See, e.g., McNally v. United States, 483 U.S. 350 (1987), superseded by Skilling, 130 S. Ct. at 2932.

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bribery and kickbacks. 8 In response, during the 111th Congress, members of both houses introduced bills to enact the Honest Services Restoration Act in order to restore the formerly broad reach of "honest services fraud" to include frauds involving undisclosed self-dealing. 9 As Senator Leahy, one of the sponsors of the Senate bill, explained, "[t]he legislation will restore critical tools used by investigators and prosecutors to combat public corruption and corporate fraud, which the Supreme Court dramatically weakened in Skilling v. United States."' 0 The 111th Congress did not enact the Honest Services Restoration Act; but the Act has been reintroduced in the House," and Senator Leahy has expressed hope of finding "a bipartisan solution to fixing honest services fraud." 1 2 In Part II of this Article, the authors demonstrate that multisite fungicides and broad fraud statutes, such as the mail and wire fraud statutes,' 3 operate in similar ways to prevent the evolution of resistant strains of fungi and fraud. In Part III, the authors discuss the regulatory pressure facing multi-site fungicides and the parallel criticisms leveled at broad fraud statutes, including Skilling's curtailment of the reach of the mail and wire fraud statutes. In Part IV, the authors summarize the alternative means of managing fungicide resistance that scientists have developed in the face of increased regulatory scrutiny of multi-site fungicides and draw from these solutions A brief to propose alternatives to broad fraud statutes. conclusion follows, with proposals to prevent new forms of 8. Id. at 2931 ("To preserve the statute without transgressing constitutional limitations, we now hold that ยง 1346 criminalizes only the bribe-and-kickback core of the pre-McNally case law."). 9. Honest Services Restoration Act, H.R. 6391, 111th Cong. (2d. Sess, 2010) (seeking to expand the deprivation of honest services to include undisclosed self-dealing by a public official); Honest Services Restoration Act, S. 3854, 111th Cong. (2d. Sess. 2010) (seeking to expand the definition even further to include undisclosed private self-dealing by a corporate officer or director). 10. 156 CONG. REc. S7631 (daily ed. Sept. 28, 2010) (statement of Sen. Leahy for himself, Sen. Whitehouse, and Sen. Kaufman). 11. Honest Services Restoration Act, H.R. 1468, 112th Cong. (1st Sess. 2011). 12. 157 CONG. REc. S905 (daily ed. Feb. 17, 2011) (statement of Sen. Leahy for himself and Sen. Cornyn). 13. 18 U.S.C. ยง 1341; 18 U.S.C. ยง 1343.

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fraud, while minimizing the adverse impacts of broad fraud statutes. II. MULTI-SITE FUNGICIDES AND BROAD FRAUD STATUTES PREVENT THE EVOLUTION OF RESISTANT STRAINS OF FUNGI AND FRAUD Multi-site fungicides, which affect multiple target sites, are far less susceptible to resistance than single-site fungicides. 1 4 Similarly, broad fraud statutes like the mail and wire fraud

statutes, which focus on the fraudulent behavior itself rather than the object of the fraud, are less susceptible to evasion than specific fraud statutes.' 5 In this way, multi-site fungicides and broad fraud statutes play a similar role in preventing the

evolution of resistant strains of fungi and fraud. A.

The Use ofMulti-Site Fungicides to Combat the Evolution of Resistant Fungi "Fungicides," defined broadly are "agents used to control plant diseases caused by fungi. 6 Indeed, fungicides are the most effective weapon against plant disease, which can devastate crop yields and interfere with food supply.17 In light of the importance of fungicides in combating plant disease, the evolution of fungicide resistance is one of the most serious Fungicide threats to global food supply and fiber production.' 14. See Hollomon & Brent, supra note 2, at 1160-61. 15. See, e.g., Jason T. Elder, Comment, Federal Mail Fraud Unleashed: Revisiting the Criminal Catch-All, 77 OR. L. REv. 707, 707 (1998) ("The

mail fraud statute occupies a unique position in federal criminal law as one of the last broad and amorphous criminal statutes."). 16. Keith J. Brent & Derek W. Hollomon, Fungicide Resistance: The Assessment of Risk, FUNGICIDE RESISTANCE ACTION COMMITTEE, 6 (2d at available 2007), ed. revised http://www.frac.info/frac/publication/anhang/FRACMono2_2007.pdf [hereinafter Fungicide Resistance]. 17. See, e.g., Ulrich Gisi & Helge Sierotzki, Fungicide Modes of Action and Resistance in Downy Mildews, 122 EUR. J. PLANT PATHOL. 157, 157

(2008) ("[D]owny mildews are among the most devastating plant diseases. To avoid yield losses, disease control is required mainly by using chemical products."). 18. Gisi & Sierotzki, supra note 17, at 158 ("This development [of resistance] is a common phenomenon in agricultural practice and is based on

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resistance is a quintessential example of "survival of the fittest"1 9 because resistant strains of fungi, which contain one or more resistant variants of a gene that renders the fungicide ineffective, are naturally present in the genetic background of the fungi population. 2 0 The fungicide kills, or inhibits, the growth and reproduction of all but these resistant strains. 2 1 The unaffected resistant strains remain able to infect the host plant and-depending on their fitness-multiply. 2 2 The likelihood of fungicide resistance depends on whether the fungicide's mode-of-action is single-site or multi-site, due to the former being far more susceptible to resistance.23 Singlesite fungicides act on only one target site, 24 while multi-site the selection of resistant individuals by the use of fungicides."); Maria Lodovica Gullino et al., Mancozeb: Past, Present, and Future, 94 PLANT at available (2010), 1081 1076, DISEASE

("Fungicide http://apsjoumals.apsnet.org/doi/pdf/10.1094/PDIS-94-9-1076 resistance is a serious and intensively studied issues in the management of many key fungal diseases of most crops."); Hollomon & Brent, supra note 2, at 1160 ("Fungicide resistance . . . is one of the core problems limiting

sustainable food and fibre [sic] production worldwide."). 19. Hollomon & Brent, supra note 2, at 1162. "Pathogen adaptations to varietal resistance and to fungicides provide excellent 'living examples' of survival of the fittest' that demonstrate how rapidly evolutionary forces can operate in a wide range of microorganisms, and how difficult they are to hold back." Id. 20. Fungicide Resistance, supra note 16, at 14.

"The potential in the

target pathogen for mutations conferring resistance is the basic cause of a resistance risk for a new fungicide." Id. 21. Gullino et al., supra note 18, at 1081. "The development of resistance in a fungal population is the inevitable response to the selection pressure of fungicide use." Id. 22. J. Dekker, Development of Resistance to Modern Fungicides and Strategiesfor its Avoidance, in MODERN SELECTIVE FUNGICIDES 23, 23 (H.

Lyr 2d. ed., 1995). 23. Fungicide Resistance, supra note 16, at 3 (stating that "a single rather

than a multiple site of action" is a "positive indicator[] of risk"); Gisi & Sierotzki, supra note 17, at 158 ("In contrast to multi-site fungicides, most single-site inhibitors bear a high intrinsic risk of causing the evolution of resistant pathogen sub-populations."); Gullino et al., supra note 18, at 1081 ("Fungicide resistance . . . threatens the commercial potential of products,

particularly those having a single-site mode of action."). 24. Gisi & Sierotzki, supra note 17, at 158. "Generally, single sitefungicides act against a very specific step in the metabolism of pathogens and have only few side effects on other processes or non-target organisms."

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fungicides affect multiple target sites. 2 5 One genetic mutation may be all that is required to resist a single-site fungicide. 26in contrast, resistance to a multi-site fungicide is much more difficult to achieve because there must be mutations with respect to multiple target sites. 27 For example, if each target site has a frequency of resistant alleles of I x 10-6, then the frequency of having two alleles in a single strain and imparting resistance to both target sites is lx10 2.28 As explained in evolutionary terms by biochemists Derek W. Hollomon and Keith J. Brent: In terms of Darwin's ideas, the more mutations needed to overcome fungicide action, the slower the development of resistance will be. This explains why multisite fungicides have proved durable, and why resistance caused by a single gene change develops more rapidly than when it depends on the additive effects of changes in several genes. 29 Resistance to single-site fungicides is common because only one mutation is required, while resistance to multi-site fungicides is statistically very unlikely because so many mutations are required. 30 Id. 25. Hollomon & Brent, supra note 2, at 1160 (explaining that multi-site fungicides "target many metabolic steps"). 26. Fungicide Resistance, supra note 16, at 9 (explaining that single-site inhibitors are more prone to resistance because "[a] single target site can be rendered resistant through one mutation changing a single DNA-base in the target gene and, consequently, just one amino acid in the target protein[]"); P.E. Russell, A Century of FungicideEvolution, 143 J. OF AGRIC. SCI. 11, 19 (2005) (explaining that chemistry "based on a single site of action" is "usually accompanied by resistance to that chemistry being governed by a simple genetic change in the pathogen"). 27. Hollomon & Brent, supra note 2, at 1160 (stating that multi-site fungicides "require more than one mutation to overcome inhibition"); Fungicide Resistance, supra note 16, at 9 (explaining that fungicides with multiple targets are less prone to resistance because "[s]everal mutations must occur simultaneously to confer resistance at multiple target-sites, so this will be a much rarer event"). 28. See Fungicide Resistance, supra note 16, at 9. "If the chance occurrence of a single mutation that affects a target site is 10-8, then the chance of two such mutations, independently affecting two target sites, occurring together is 10-16." Id. 29. Hollomon & Brent, supra note 2, at 1161. 30. Id. at 1160 (describing resistance to multi-site fungicides as

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B. The Use ofBroad FraudStatutes to Combat the Evolution ofResistant Strains of Fraud Fraud, just like plant disease, can be devastating because it has the potential to deprive an individual victim of his or her life's savings.3 1 When these effects on individual victims are aggregated, they can be societally devastating, as well as having the potential to contribute to a national financial crisis. 3 2 As a result of these potential effects, prosecution under federal fraud statutes is a key tool to combat fraud. 3 But federal fraud statutes-like fungicides-are potentially susceptible to resistance. A federal fraud statute's susceptibility to resistance depends on whether it is drafted specifically or broadly, with the former being far more susceptible to resistance. 34 As articulated by one commentator, "[f]raud is by its very nature bounded only by the versatility of the human imagination." 3 5 As a consequence, akin "extremely rare"). 31. See, e.g., Jayne W. Barnard, Allocution for Victims of Economic Crimes, 77 NOTRE DAME L. REv. 39, 53-54 (2001) (providing "[a] sampling of the voices of victims of non-violent crimes"); Chad Bray, Madoff Victims Vent Their Frustrationsat Scam - Letters Released by Prosecutors Offer a Look at the Heartbreak, WALL ST. J., Mar. 25, 2009 (describing dozens of letters received from Madoff victims regarding their frustration with the financial ruin they have been left in). 32. FIN. CRISIS INQUIRY COMM'N, CONCLUSIONS OF THE FINANCIAL CRISIS INQUIRY COMMISSION, xviii (2011), available at http://fcicstatic.law.stanford.edu/cdn media/fcicreports/fcicfinal reportconclusions.pdf. "Unfortunately-as has been the case in past speculative booms and busts-we witnessed an erosion of standards of responsibility and ethics that exacerbated the financial crisis. This was not universal, but these breaches stretched from the ground level to the corporate suites." Id. at xxii. The Commission concluded that widespread mortgage fraud was one of the causes of the financial crisis. Id. at xxii. 33. Robert S. Bennett, Attorney General Eric Holder Testifies Before the FCIC, in CORPORATE LAW AND PRACTICE COURSE HANDBOOK SERIES, PLI ORDER NO. 27437 at 3 (2010) (quoting Attorney General Holder). "The Department has a long history of prosecuting financial fraud-and we will continue to do so. . . . [O]ur goal is not just to hold accountable those whose conduct may have contributed to the law meltdown, but to deter such future conduct as well." Id. 34. See infra notes 35 - 52 & accompanying text. 35. Mark Zingale, Note, Fashioninga Victim Standard in Mail and Wire

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to a fungi's resistance to a single-site fungicide, Chief Justice Burger noted that the "ever-inventive American 'con artist' can often evade the scope of a specific fraud statute b changing just one component of his or her fraudulent scheme. If an actor takes steps to thwart the state from applying a rule to the actor, the state may face a choice of either abandoning pursuit of the actor or expanding the rule to reverse the effects of the actor's thwarting behavior, producing overbreadth in the rule. Or, thinking ahead a move or more, the state may prefer in the first instance to choose a broad prohibition that is less easily avoided.3 7 General fraud statutes, however, which fill in the gaps among more specific statutes, are less easily evaded.3 8 Just as a fungus is unlikely to mutate sufficiently to resist a multi-site fungicide, a perpetrator of fraud is unlikely to evade the prescripts of a broad fraud statute. 39 The mail and wire fraud statutes are prime examples of broad federal fraud statutes, 4 0 requiring only the following elements for conviction:

Fraud: Ordinarily Prudent Person or Monumentally Credulous Gull?, 99 COLUM. L. REv. 795, 815 (1999) ("The law 'does not define fraud; it needs no definition; it is as old as falsehood and as versable as human ingenuity."') (citing & quoting Weiss v. United States, 122 F.2d 675, 681 (5th Cir. 1941)). 36. United States v. Maze, 414 U.S. 395, 407 (1974) (Burger, C.J., dissenting) ("The criminal mail fraud statute must remain strong to be able to cope with the new variety of fraud that the ever-inventive 'con artist' is sure to develop."). 37. Samuel W. Buell, The Upside of Overbreadth, 83 N.Y.U. L. REv. 1491, 1494 (2008). 38. John C. Coffee, Jr., The Metastasis of Mail Fraud: The Continuing Story of the "Evolution" of a White-Collar Crime, 21 AM. CRIM. L. REv. 1, 3 (1983) (arguing "for statutory reform" because "if we freeze the evolution of the statute, new forms of predatory behavior will appear to which the legislature cannot realistically be expected to respond quickly"). 39. Buell, supra note 37, at 1494; see also Jeffrey Standen, An Economic Perspective on Federal CriminalLaw Reform, 2 BUFF. CRIM. L. REV. 249, 287-88 (1998) ("Congress' interest in coverage is satisfied best by writing statutes to the limit of ambiguity that courts will tolerate.") (footnote omitted). 40. Elder, supra note 15, at 707 ("The mail fraud statute occupies a unique position in federal criminal law as one of the last broad and amorphous criminal statutes.").

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(i) a scheme to defraud that includes a material deception; (ii) with the intent to defraud; (iii) while using the mails, private commercial carriers, and/or wires in furtherance of that scheme; (iv) that did result or would have resulted in the loss of money or property or the deprivation of honest services. 41 These elements encompass a broad range of conduct. First, as noted by Professor John Coffee, the term "scheme to defraud . . . comes as close to a general prohibition of evil intent[J" rather than imposing a limitation on the reach of the mail and wire fraud statutes. 2 Moreover, the object of the fraud is similarly unbounded, requiring merely the loss of money, property, or honest services. 4 3 Consequently, even after the Supreme Court's recent ruling in Skilling that only schemes involving bribery or kickbacks fall within the scope of "honest services fraud,"4 4 it remains "rare that criminal conduct cannot be placed within [the] reach[]" of these statutes. 4 5 One commentator provided the following humorous example of the breadth of conduct that falls within the scope of the mail fraud statute: "[A] boy away at camp lies to his mother about winning the soccer match because he knows she will send him a batch of cookies. While he has technically committed mail fraud, no prosecutor would charge the child for lying to his mother in a letter." 46 Indeed, the ability of the mail and wire fraud statutes to ensnare fraudsters who fall outside the scope of more specific 41. Christopher J. Stuart, Mail and Wire Fraud, 46 AM. CRIM. L. REv. 813, 816 (2009) (citing 18 U.S.C. ยง 1341 (2006)); see also Neder v. United States, 527 U.S. 1, 20-25 (1999). 42. Coffee, supra note 38, at 27 ("No other term in the federal criminal lexicon seems as all embracing as 'scheme to defraud."'). 43. Ellen S. Podgor, Criminal Fraud,48 AM. U. LAW. REv. 729, 747-48 (1999) [hereinafter Podgor, Criminal Fraud] (citing the mail fraud statute as an example of a "generic fraud statute" whose focus "is almost exclusively on the fraud and not on the object of the offense"). 44. Skilling v. United States, 130 S. Ct. 2896, 2931 (2010) (quoting United States v. deVegter, 198 F.3d 1324, 1327-28 (11th Cir. 1999)). 45. Ellen S. Podgor, Tax Fraud-MailFraud: Synonymous, Cumulative or Diverse?, 57 U. CIN. L. REv. 903, 903 (1989) [hereinafter Podgor, Tax Fraud]. 46. Todd E. Molz, Comment, The Mail FraudStatute: An Argument for

Repeal by Implication, 64 U.CHI. L. REv. 983, 1001 (1997).

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statutes is central to the debate regarding their appropriate breadth.4 7 In reference to this role, the mail and wire fraud statutes have been described as "a first line of defense[,]" 48 "a stopgap device . . . ,"49 and "a virtual catch-all federal fraud Most recently, Senator Leahy alluded to this role of statute. the mail and wire fraud statutes when introducing legislation to expand the meaning of "deprivation of honest services": 51 "Too often, loopholes in existing laws have meant that corrupt conduct can go unchecked. The honest services fraud statute has enabled prosecutors to root out corrupt and fraudulent conduct that would otherwise slip through those loopholes we must tighten it so it can perform that important role again."95'2 In 47. See, e.g., United States v. Czubinski, 106 F.3d 1069, 1079 (1st Cir. 1997) ("The broad language of the mail and wire fraud statutes are both their blessing and their curse[] [because] [t]hey can address new forms of serious crime that fail to fall within more specific legislation."); United States v. Henderson, 386 F. Supp. 1048, 1053 (S.D.N.Y. 1974) ("Over the years the public has been subjected to fraudulent schemes beyond those specifically referred to in the statute, and resourceful prosecutors have used the mail fraud statute effectively and properly against all those schemes."). See also Randall D. Eliason, Surgery With A Meat Axe: Using Honest Services Fraud to Prosecute Federal Corruption, 99 J. CRIM. L. & CRIMINOLOGY 929, 954-

55 (2009) ("[O]ne of the virtues of mail and wire fraud over the years has been the ability of prosecutors to use those malleable statutes to pursue criminal conduct that may implicate federal interests but may not clearly be covered by more targeted federal legislation. One example of the use of mail and wire fraud to fill such a legislative gap is the prosecution of state and local corruption.") (internal citation omitted); Elder, supra note 15, at 712-13 ("In the last few decades, federal mail fraud prosecutors expanded the mail fraud statute's scope to reach new 'cutting-edge' crimes. Prosecutors may use the mail fraud statute to prosecute crimes that lack any other statutory reference."). 48. United States v. Maze, 414 U.S. 395, 405 (1974) (Burger, C.J., dissenting). 49. Id.; see also Podgor, Tax Fraud,supra note 45, at 904 (discussing how the mail fraud statute "later came to be characterized as the 'stopgap' provision because the mail fraud statute was used to criminalize conduct that was morally reprehensible but was omitted from the literal terms of other criminal statutes") (internal citations omitted). 50. Eliason, supra note 47, at 953. 51. 156 CONG. REc. S7631 (daily ed. Sept. 28, 2010) (statement of Sen. Leahy for himself, Sen. Whitehouse, & Sen. Kaufman). 52. Id. See also Molz, supra note 46, at 985. "[T]he broad language of the mail fraud statute allows courts to adapt the statute to new forms of

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this way, the mail and wire fraud statutes operate much like a multi-site fungicide; preventing the evolution of resistant types of fraud by capturing virtually all potential new frauds within their reach. C. Differences Between The Roles of Fungicides in Fighting Fungi and FraudStatutes in Fighting Fraud As explained above, multi-site fungicides and broad fraud statutes play a similar role in fighting the evolution of resistant strains of fungi and fraud.5 3 However, the analogy is not perfect for three reasons: a lack of a causal relationship, an unknown mode of action, and the ability of choice regarding application. First, there is not a causal relationship between the application of fungicides and the existence of resistant strains of fungi, but a causal relationship does exist between the scope of fraud statutes and the existence of resistant strains of fraud.5 4 Fungicides do not cause the gene mutations that create resistant strains of fungi; they merely select for these naturally occurring mutants.5 5 Fraud statutes, however, can cause a would-be perpetrator of fraud to alter his or her conduct so as to evade the strictures of the statute.5 6 Ideally, the actor is deterred from his or her fraudulent course altogether. In a less perfect world, the actor-the aforementioned "ever-inventive American 'con artist' -changes his or her modus operandi so as to fall fraud, thereby deterring criminals from finding and exploiting loopholes and, by delegating lawmaking power to the courts, lowering the cost of legislating for Congress." Id. 53. See supra Part II.A-B. 54. See infra notes 55-59 & discussion. 55. Fungicide Resistance, supra note 16, at 12 (explaining that resistance develops "from selection of initially rare mutants"). 56. Buell, supra note 37, at 1495 (arguing that "if the criminal actor is resourceful and strategic - which often means the actor is particularly threatening and blameworthy - the failure to focus on the dynamism of the regulated actor can be a significant mistake"). 57. See, e.g. Randall v. Loftsgaarden, 478 U.S. 647, 664 (1986) (asserting the Congressional aim of the Securities Act of 1933 was "to deter fraud and manipulative practices in the securities markets") (citing 15 U.S.C. ยง 77a, et seq. (West 2011)). 58. United States v. Maze, 414 U.S. 395, 407 (1974) (Burger, C.J., dissenting). The criminal mail fraud statute must remain strong to be able to cope

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outside the scope of current prohibitions.5 9 in essence, fungi lack free will to change their genetic makeup so as to avoid a fungicide, while fraudsters possess the ability to alter their conduct so as to avoid a fraud statute. Second, a fungicide's mode of action is not always known to be either multi-site or single-site, adding to the complexity of managing resistance. 6 0 A statute's breadth, on the other hand, is usually anticipated at the time of drafting and passage, allowing for greater understanding of the statute's role in criminalizing fraud. 6 ' Of course, this is not always the case, as exemplified by the Racketeer Influenced and Corrupt Organizations statute, whose reach now far exceeds the prosecution of organized crime. Finally, a grower of crops must pick and choose among with the new varieties of fraud that the ever-inventive American 'con artist' is sure to develop. Abuses in franchising and the growing scandals from pyramid sales schemes are but some of the threats to the financial security of our citizenry that the Federal Government must be ever alert to combat. Id. 59. BLACK'S LAW DICTIONARY 1095 (9th ed. 2009) (defining modus operandi as "[a] method of operating or a manner of procedure; esp[ecially] a pattern of criminal behavior so distinctive that investigators attribute it to the work of the same person"). 60. Fungicide Resistance, supra note 16, at 10-11 ("Formerly it took a long time to identify a mode-of-action . . . . It is now usual for a new fungicide group to be introduced with some information on its mode-ofaction... "). 61. Frank H. Easterbrook, Statutes' Domains, 50 U. CHI. L. REV. 533, 544 (1983) (suggesting "that unless the statute plainly hands courts the power to create and revise . . . the domain of the statute should be restricted to cases

anticipated by its framers and expressly resolved in the legislative process"). 62. 18 U.S.C. Â§Â§ 1961-68 (West 2011). 63. Sarah Baumgartel, The Crime of Associating with Criminals? An Argument for Extending the Reves "Operation or Management" Test to RICO Conspiracy, 97 J. CRIM. L. & CRIMINOLOGY 1, 5 (2006) ("Today, RICO reaches past the prosecution of organized crime to encompass what might otherwise be categorized as everyday business fraud, securities violations, political corruption, and various other white collar crimes."); Robert G. Morvillo & Barry A. Bohrer, Checking the Balance: Prosecutorial Power in an Age of Expansive Legislation, 32 AM. CRIM. L. REV. 137, 139 (1995) (arguing that RICO's "use has expanded beyond those areas it was originally designed to combat to include within its ambit conduct that few envisioned as 'racketeering activity').

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A grower's decision to apply a single-site fungicides.64 fungicide may allow a resistant strain of fungi to survive and flourish. No such choice must be made with respect to statutes because they apply simultaneously. The mere enactment of a broad fraud statute operates like a consistent application of multi-site fungicide to a crop. The choice among fraud statutes, to the extent one is eventually made, occurs at the prosecution stage. Despite these differences between the operations of fungicides and fraud statutes, sufficient similarities exist that lessons learned in the context of plant disease inform the debate about the appropriate breadth of fraud statutes. III. MULTI-SITE FUNGICIDES AND BROAD FRAUD STATUTES ARE BOTH UNDER PRESSURE

As discussed above, multi-site fungicides and broad fraud statutes are effective in preventing the evolution of resistant strains of fungi and fraud because they are difficult to evade. But, both multi-site fungicides and broad fraud statutes face Multi-site fungicides are subject to increased scrutiny. increased regulatory pressure, 65 which can interfere with the ability to register or re-register these fungicides for sale.6 6 Multi-site fungicides are subject to this scrutiny because, as victims of their own success in managing resistance, they are used frequently 6 7 and because they are viewed as being more FRAC COMM., ACTION RESISTANCE FUNGICIDE 64. See RECOMMENDATIONS FOR FUNGICIDE MIXTURES DESIGNED TO DELAY at available 2010), (Jan. 1 EVOLUTION RESISTANCE http://www.frac.info/frac/publication/anhang/Resistance%20and%20Mixture s%20Jan2O10_ff.pdf [hereinafter FRAC RECOMMENDATIONS] (discussing the grower's decision-making process as he or she chooses which fungicide or fungicides to apply to a crop pursuant to a "disease control programme"). 65. See id. at 2 (noting that "more regulatory restrictions are being imposed on multi-site fungicides . . .").

66. In the United States, for example, under the Federal Insecticide, Fungicide, and Rodenticide Act, absent an exception, "no person in any State may distribute or sell to any person any pesticide that is not registered . . ." with the Environmental Protection Agency. 7 U.S.C. ยง 136a(a) (West 2011). 67. Gullino et al., supra note 18, at 1082 (noting that multi-site fungicides like "mancozeb have undergone extensive regulatory review in many countries, primarily because of their frequency of use and worldwide

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likely to have problems with off-target toxicity. 68 Broad fraud statutes are criticized for comparable reasons. First, like multi-site fungicides, broad fraud statutes are used extensively, 69 often in factual scenarios where more specific In recognition of this fraud statutes are on the books. phenomenon, commentators have described the mail and wire fraud statutes as "bread-and-butter statutes for federal prosecutors of white-collar crime"70 and, even more colorfully, as "what Archimedes long souqht-a simple fulcrum from which one can move the world." Conduct falling within the scope of myriad specific statutes-including antitrust violations,7 2 securities fraud,7 3 bank fraud,7 4 insurance fraud, election fraud,76 money laundering, real estate fraud,78 credit

importance to agriculture"). 68. Russell, supra note 26, at 23 ("Such compounds [with multi-site modes of action] are likely to be general toxophores and may thus not pass today's stringent regulatory processes."); McGrath, supra note 2 ("Most fungicides being developed today have a single-site (specific) mode of action because this is associated with lower potential for negative impact on the environment, including people and other non-target organisms."). 69. ADMINISTRATIVE OFFICE OF THE U.S. COURTS, BUREAU OF JUSTICE STATISTICS, FEDERAL JUSTICE STATISTICS RESOURCE CENTER, available at

http://bjs.ojp.usdoj.gov/fjsrc/. In 2009, of the 9,183 defendants charged in the filing offense category of "fraud," 402 defendants were charged with wire fraud, and 502 defendants were charged with mail fraud. Id. (Note that some of the 9183 defendants were likely charged with both wire and mail fraud.) For purposes of comparison, 101 defendants were charged with violating the False Claims Act, 18 U.S.C. § 287, and 58 defendants were charged with securities fraud under the Securities Exchange Act of 1934, 15 U.S.C. § 78j. Id. 70. Eliason, supra note 47, at 953. 71. Coffee, supra note 38, at 3. 72. See, e.g., 15 U.S.C. § 1 (West 2011). 73. 15 U.S.C. § 78j (West 2011). 74. 18 U.S.C. § 1344 (West 2011). 75. See, e.g., 18 U.S.C. § 1341; Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1 (1991). 76. 18 U.S.C. § 1341. 77. See, e.g., 18 U.S.C. § 1956(h) (West 2011); United States v. Santos, 553 U.S. 507 (2008). 78. See, e.g., 18 U.S.C. § 1341; James-Dickinson Farm Mortg. Co. v. Harry, 273 U.S. 119 (1927).

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card fraud, 7 9 identity theft,80 health care fraud,8 1 tax fraud, 82 and franchise fraud 8 3 -can also potentially be charged as mail or wire fraud. 84 Indeed, evidence suggests that prosecutors often choose to charge mail or wire fraud, even if the alleged conduct falls within the scope of a more specific statute.8 5 Just as the widespread use of multi-site fungicides has contributed to increased regulatory scrutiny, the extensive use of the wire and mail fraud statutes has been widely criticized, especially where the alleged conduct sounds in a more specific fraud statute. First, this practice renders superfluous the more specific criminal statutes, which often reflect a nuanced Congressional determination of the scope of criminality within a specific factual scenario.86 Moreover, this use of the so-called 79. 18 U.S.C. § 1029 (West 2011). 80. See, e.g., 18 U.S.C. § 1028A (West 2011) ("Aggravated identity theft"); Flores-Figueroa v. United States, 556 U.S. 646 (2009). 81. 18 U.S.C. § 1347 (West 2011). 82. 26 U.S.C. § 7206 (West 2011). 83. See, e.g., 18 U.S.C. § 1341; 15 U.S.C. § 2806 (West 2011). 84. See Eliason, supra note 47, at 955; Podgor, Tax Fraud,supra note 45, at 908; Standen, supra note 39, at 252-53; David Overlock Stewart, Raising the Stakes: Resisting the Upward Transformation of Antitrust and Fraud

Charges, 20 AM. J. CRIM. L. 207, 208 (1993); Stuart, supra note 41, at 81415; Elder, supra note 15, at 715. 85. As one of this Article's authors has previously documented, out of a data set "[o]f the seventy-nine cases sounding in securities fraud . . . , prosecutors charged wire or mail fraud in forty-nine cases, or sixty-two percent[]" of the time. Wendy Gerwick Couture, White Collar Crime's Gray Area: The Anomaly of Criminalizing Conduct Not Civilly Actionable, 72

ALB. L. REv. 1, 9 n.32 (2009) (explaining how the data was compiled). 86. Coffee, supra note 38, at 3 ("Useful as this expansion [of the mail and wire fraud statutes] may be to the prosecutor, its consequence is also to dwarf and trivialize much of the remainder of substantive federal criminal law. Statutory defenses in other more limited statutes would thereby be circumvented, and the power of the prosecutor over the defendant would be measurably enhanced.") (internal citation omitted); Eliason, supra note 47, at 934 ("The concern now is that prosecutors are frequently discarding the scalpel of bribery and gratuities altogether and instead are performing surgery with the meat axe of honest services fraud."); Molz, supra note 46, at 985 ("'[B]ad' gap-filling occurs when prosecutors and courts use the mail fraud statute to fill gaps in existing statutes, undermining the congressional judgment embodies in those statutory gaps."); Standen, supra note 39, at 291 ("[P]rosecutors when faced with such a plethora of competing provisions will tend to resist exploring the complexity of the code and will tend to

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"wire/mail fraud run-around" imposes criminal liability on some "conduct that is not even civilly actionable." 87 Furthermore, because of the sentencing disparities between mail and wire fraud and more specific statutes, the prosecutor, in making charging decisions, has wide discretion over the defendant's potential sentence.88 As a result, the prosecutor wields substantial-perhaps undue-leverage during plea negotiations. 89 In addition, just as multi-site fungicides pose a potential concern for off-target toxicity, the vagueness of broad fraud statutes potentially causes harm. First, the vagueness of broad fraud statutes risks running afoul of due process,90 which requires that a criminal statute "clearly define the conduct it

charge offenders under one of the several omnibus statutes, such as mail fraud, thereby rendering much of Congress' Herculean effort in writing so many statutes superfluous.") (internal citation omitted). 87. Couture, supra note 85, at 11-12 (emphasis added) (demonstrating that the materiality standard for wire and mail fraud is lower than for securities fraud, resulting in the criminalization of false statements that are not civilly actionable). 88. Podgor, Tax Fraud,supra note 45, at 924 ("Thus, by proceeding with mail fraud [as opposed to tax fraud], the government is not only assured of a felony conviction, but in some cases a greater prison sentence against the defendant.") (footnote omitted); Standen, supra note 39, at 251-52 (arguing that the overlap among statutes with different sentencing ranges and the mandatory nature of sentencing guidelines affords prosecutors undue discretion over punishment). 89. Podgor, Tax Fraud, supra note 45, at 904 (noting that the ability to charge mail fraud rather than tax fraud may "strengthen the government's ability to obtain a plea bargain or a compromised jury verdict"); Stewart, supra note 84, at 213-14 (citing examples of disparate sentencing guidelines depending on the addition of fraud counts). "The power to transform an antitrust case into a fraud prosecution provides a powerful club to force plea agreements." Id. at 213. 90. U.S. CONST. amend. V ("[N]or shall any person . . . be deprived of life, liberty, or property, without due process of law[.]"); U.S. CONST. amend XIV, ยง 1 ("[N]or shall any State deprive any person of life, liberty, or property, with out due process of law[.]"). "To satisfy due process, 'a penal statute [must] define the criminal offense [1] with sufficient definiteness that ordinary people can understand what conduct is prohibited and [2] in a manner that does not encourage arbitrary and discriminatory enforcement."' Skilling v. United States, 130 S. Ct. 2896, 2927-28 (2010) (quoting Kolender v. Lawson, 461 U.S. 352, 357 (1983)).

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proscribes "91 for the benefit of both the law abider and the law enforcer.9f Indeed, in the context of mail/wire fraud, the Supreme Court in Skilling relied on "the due process concerns underlying the vagueness doctrine" to interpret "honest services" fraud as including only frauds involving bribery and

kickbacks. 9 3 Moreover, the vagueness necessitated by broad fraud statutes, even if within Constitutional constraints, imposes societal costs. First, uncertainty chills lawful conduct, quelling legitimate market behavior for fear of later second-guessing by a prosecutor. 9 4 Second, by effectively prohibiting everything sounding in fraud and then leaving it to prosecutors to decide which subsets of illegal behavior to prosecute, Congress delegates its lawmaking function, implicating separation of power concerns. 95 This delegation to prosecutors also enables 91. Skilling v. United States, 130 S. Ct. 2896, 2935 (Scalia, J., concurring in part & concurring in the judgment). 92. Id. "Our cases have described vague statutes as failing 'to provide a person of ordinary intelligence fair notice of what is prohibited, or [as being] so standardless that [they] authorize[e] or encourage[e] seriously discriminatory enforcement."' Id. (quoting United States v. Williams, 553 U.S. 285, 304 (2008)); Brian Slocum, RICO and the Legislative Supremacy Approach to Federal Criminal Lawmaking, 31 LOY. U. CHI. L.J. 639, 653 (2000) ("[A]n indispensable requirement of the unconstitutionally vague doctrine is that criminal statutes provide sufficient 'guidance' not only to those who must obey the laws but also to those who must interpret the laws."). 93. Skilling, 130 S. Ct. at 2931. "To preserve the statute without transgressing constitutional limitations, we now hold that ยง 1346 criminalizes only the bribe-and-kickback core of the pre-McNally case law." Id. (footnote omitted). 94. Dan M. Kahan, Three Conceptions of FederalCriminal-Lawmaking, 1 BUFF. CRIM. L. REV. 5, 13 (1997) ("There may be reason to be concerned about unfair surprise, for example, when courts adopt contentious and imaginative readings of the securities fraud and antitrust laws because these statutes govern the behavior of individuals who are engaged in legitimate market behavior and who legitimately look to law to guide their conduct.") (citation omitted); Zingale, supra note 35, at 814 ("[A]nother potential disadvantage to this broader [victim] standard [in mail and wire fraud]: an expansion of governmental second-guessing of arm's-length business transactions among private citizens. Were mail-fraud prosecution widespread enough, such governmental meddling could possibly lead to a chilling effect on an otherwise robust free-market economy."). 95. Molz, supra note 46, at 984 ("[P]rosecutors, aided by courts, use the

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discriminatory enforcement. 9 6 Finally, by affording prosecutors the discretion to pick and choose the areas of emphasis within broad statutes, statutes of this nature "interfere with the effective implementation of any rational system of national priorities."97 In sum, both multi-site fungicides and broad fraud statutesalthough effective at preventing the evolution of resistant strains of fungi and fraud-are subject to increased scrutiny. As a consequence, scientists and lawmakers alike face the challenge of developing additional means of preventing resistance by fungi and fraudsters, while avoiding the costs associated with multi-site fungicides and broad fraud statutes. IV. ALTERNATIVES CAN PREVENT THE EVOLUTION OF RESISTANT STRAINS, WHILE AVOIDING THE COSTS ASSOCIATED WITH MULTI-SITE FUNGICIDES AND BROAD FRAUD STATUTES

In the face of increased regulatory pressure, scientists have developed alternative means of managing fungicide resistance, with some success. 9 8 These alternatives include the combination of several single-site fungicides, the combination of single-site and multi-site fungicides, and non-fungicide solutions. These alternatives, which have already been tested in the context of fungicides, shed light on the following potential alternatives to reliance on broad fraud statutes: the combination [mail fraud] statute to fill gaps in the criminal law left by Congress, despite the Constitution's declaration that 'all legislative powers' therein granted are vested in the Congress.") (internal citation omitted) (quoting U.S. CONsT. art. I, ยง 1); Slocum, supra note 92, at 653 ("When a statute is too vague to provide sufficient guidance, the judiciary is placed in the position of usurping the property function of the legislature by 'making the law' rather than interpreting it."); Jack Stark, The Proper Degree of Generality for Statutes, 25 STATUTE L. REV. 77, 80 (2004) ("If the three branches of

government ought to be distinctly separate, counsel should be wary of drafting very generally and thereby allocating to the judicial and executive branches considerable power to interpret the law."). 96. Skilling, 130 S. Ct. at 2935 (Scalia, J., concurring in part & concurring in the judgment) (quoting United States v. Williams, 553 U.S. 285, 304 (2008)). 97. Coffee, supra note 38, at 10 (footnote omitted). 98. See, e.g., Dale L. Shaner, Herbicide Resistance: Where Are We? How Did We Get Here? Where Are We Going? 9 WEED TECH. 850 (1995).

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of specific fraud statutes, the combination of broad and specific fraud statues, and non-statutory means of combating fraud. A. The CombinationofSingle-Site Fungicidesor Specific FraudStatutes To Combat the Evolution ofResistant Fungi or Fraud As an alternative to multi-site fungicides, scientists have successfully combined multiple single-site fungicides. 99 By combining several single-site fungicides, each of which would individually be highly susceptible to resistance, scientists can reduce the likelihood of selecting for resistant biotypes, while avoiding many of the regulatory concerns associated with multisite fungicides. 100 These combinations are especially effective when the combined fungicides are negatively cross-resistantwhen the development of resistance to one of the fungicides renders the strain more susceptible to another fungicide in the combination.101

Similarly, several prominent scholars have advocated replacing generic fraud statutes like the mail and wire fraud 99. Gullino et al., supra note 18, at 1081 ("Mixtures of fungicides that combine a high resistance risk with . . . another single-site fungicide that is

not cross-resistant to its mixing partner [is] a common response to this problem."); but see FRAC RECOMMENDATIONS, supra note 64, at 2-3

("[M]ixtures between single-site fungicides are appearing in the market and it is clear that more care regarding the resistance statutes in pathogen populations needs to be taken when recommending them."). 100. Hollomon & Brent, supra note 2, at 1161. Evolution of resistance is favored by the sole repeated use of fungicides with the same mode of action. Involving fungicides with other modes of action and other disease control measures may stop or, at the very least, slow down the evolution of resistance, benefiting farmers and manufacturers, and prolonging the usefulness of the few modes of action available in practice, which have been identified and developed at considerable expense of both public and private resources. Id. 101. Fungicide Resistance, supra note 16, at 14 ("Exposure of pathogens to two fungicides that exhibit this negative cross-resistance, should greatly reduce any resistance risk associated with either component, because a shift to resistance against one automatically confers sensitivity against the other."); Dekker, supra note 22, at 32-33; Gressel, supra note 2, at 1166 (explaining "negative cross-resistance" [in the context of herbicides]; a mutant resistant to one herbicide was supersensitive to another").

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statutes with a combination of specific, non-overlapping statutes.102 Of these scholars, Professor Ellen S. Podgor explains that a fraud statute can be drawn with more specificity by "focusing on the object of the offense, as opposed to the fraud component." 0 3 Although implementing this proposal would require additional legislation, it would not expand the current scope of criminalityl 04 nor entail excruciating specificity. '

No scholar has explicitly incorporated the concept of negative cross-resistance into this proposed solution, although it would seem to apply equally to fungi and fraud. For example, when drafting a statute that prohibits fraud in connection with the offer or sale of registered securities, Congress should anticipate that potential fraudsters may adapt their behavior to evade the scope of this statute, either by planning their offering to satisfy an exemption from registration, or by disregarding the registration requirements altogether. Therefore, Congress should simultaneously draft a statute that prohibits fraud in connection with the offer or sale of unregistered securities. These two statutes, although specific, would operate with negative cross-resistance. In the context of plant disease, the solution of combining single-site fungicides solves the problem of overuse of multisite fungicides and allays concerns about potential off-target toxicity, but it is not as effective as multi-site fungicides at preventing resistance. Similarly, in the context of fraud, the solution of combining specific fraud statutes solves the problem 102. Podgor, Criminal Fraud,supra note 43, at 735 ("This Article does not call for increased criminalization to encompass more fraudulent conduct. Rather, it calls for specificity within the criminal code."); Standen, supra note 39, at 288 (describing the "definitional" approach to reform of the criminal code where "specific crimes would be written with more precision, and certain crimes deleted or merged"). 103. Podgor, CriminalFraud,supra note 43, at 749. 104. Id. at 735 ("Additional statutes may be warranted, but the conduct subject to prosecution need not be extended."). 105. See, e.g., Ellen S. Podgor, Do We Need a "Beanie Baby" Fraud Statute?, 49 Am. U. L. REv. 1031, 1042 (2000). "Should the appropriate statute be 'toy fraud' to encompass not only fraudulent Beanie Babies, but also fraud with respect to Pokemons? Or perhaps product fraud would offer a more efficient range for these criminal prosecutions." Id. (internal citation omitted).

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of bull-dozing more specific fraud statutes and allays concerns about undue vagueness, but it is not as effective as broad fraud statutes at preventing the evolution of new types of fraud. B. The Combinationof Multi-Site and Single-Site Fungicides or Broadand Specific FraudStatutes To Combat the Evolution ofResistant Fungi or Fraud

Scientists have developed a second alternative to extensive use of multi-site fungicides: the combination of single-site fungicides with a multi-site fungicide. 106 This solution does not eliminate the use of multi-site fungicides and thus is not immune to the increased regulatory scrutiny afforded multi-site fungicides, but it can lower the use rate of multi-site fungicides. 107 At the same time, the combination is far less susceptible to resistance than a combination consisting only of single-site fungicides. 0 8 Scholars have proposed a similar solution in the context of coexistence combined with repeal. 109 Under this fraud: proposal, broad and specific fraud statutes continue to coexist, but the broad statutes are repealed-either explicitly or by implication-when the charged conduct falls within the scope 106. FRAC RECOMMENDATIONS, supra note 64, at 5 ("Mixing a high or

medium risk single site fungicide with a low risk multisite[]... has been, and still is, a firm favorite for managing resistance development to the high or medium risk fungicide."); Gullino et al., supra note 18, at 1081 ("Mixtures of fungicides that combine a high resistance risk with a low risk multi-site compound . .. [is] a common response to this problem."); see, e.g., Russell,

supra note 26, at 19 (explaining the resistance management strategy of "only selling the chemistry in mixture with a compound from a different mode of action, usually mancozeb"). 107. FRAC RECOMMENDATIONS, supra note 64, at 5.

"In many cases,

reduced rates (compared to recommended solo use rates) of both the high or medium risk and the low risk [multisite] components are used. The critical requirement for such a mixture is that the does rates used for the individual components must be capable of providing good disease control if used solo." Id. 108. Fungicide Resistance, supra note 16, at 31 (considering "important conditions of use that affect risk . . . to be . . . alternation or combined

application with other types of fungicide with different mechanisms of action and/or resistance, and preferably with lower inherent risk, can reduce risk"). 109. Podgor, CriminalFraud,supra note 43, at 760 ("Precluding the use of generic statutes when conduct can be prosecuted by a specific statute can provide limitations.").

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of the specific fraud statute.11 0 As one commentator explains, the operation of repeal by implication is as follows: When Congress passes a criminal statute governing particular conduct, the new statute will implicitly repeal the mail fraud statute's coverage of that conduct. Courts and prosecutors will then be forced to respect the subsequent enactment of Congress. But because repeal by implication does not rely on a particular theory of fraud to cabin the mail fraud statute, prosecutors will still have the statute--their most effective weapon against novel crimes--at their disposal." 1

Although it is a minority position, 112 a few courts have held that broad fraud statutes, such as the mail and wire fraud statutes, are inapplicable in factual scenarios covered by specific fraud statutes." 3 For example, in United States v. Henderson,114 the court for the Southern District of New York refused to allow tax fraud to be prosecuted as mail fraud. 1 5 The court is of the view that the statute does not include within its proscription a scheme to defraud the Internal Revenue Service in the collection of income taxes. There is in such a case no need to use the mail fraud statute as a "stopgap device" until "particularized legislation" is enacted

110. See id. 111. Molz, supra note 46, at 1007. 112. Podgor, Tax Fraud,supra note 45, at 916 (declaring the "minority view" is found in "[t]he lone case clearly rejecting the government's use of mail fraud charges for the mailing of fraudulent tax returns ... United States v. Henderson[,]" 386 F. Supp. 1048 (S.D.N.Y. 1974)). In contrast, under the majority view, "the mailing of a fraudulent tax return[]" is a permissible mail fraud violation. Id. at 918 (internal citation omitted). See, e.g., Edwards v. United States, 312 U.S. 473, 483-84 (1941) (rejecting the petitioner's argument that the Securities Act of 1933 repealed by implication the mail fraud statute as applied to securities) ("We see no basis for a conclusion that Congress intended to repeal the earlier statute. The two can exist and be useful, side by side.") (footnote omitted); United States v. Simon, 510 F. Supp. 232, 236-37 (E.D. Penn. 1981) (rejecting the defendant's argument that a specific statute dealing with Medicaid fraud preempted the applicability of the more general mail fraud statute). 113. E.g., United States v. Henderson, 386 F. Supp. 1048 (S.D.N.Y. 1974). 114. Id. 115. Id. at 1053.

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"to deal directly with the evil," for Congress has enacted legislation that affords adequate protection of the public interest in the collection of income taxes.1 16 This solution, like a combination of multi-site and single-site fungicides, would be effective in combating resistant strains of fraud. Moreover, it could potentially lower the overall use rate of broad fraud statutes and prevent the broad fraud statutes from rendering the specific statutes superfluous. 1 17 This solution would not, however, cure the vagueness (or prevent the resultant harms) of broad fraud statutes. C. Non-Fungicideor Non-Statutory Ways to Combat the Evolution ofResistant Fungi or Fraud

Faced with effective but imperfect alternatives to multi-site fungicides, scientists have proposed that growers implement additional non-fungicide means of controlling plant disease.' 18 Examples include disease-resistant varieties, crop rotation, hygienic practices,1 1 9 and bio-control agents like natural predators. o Similarly, any discussion of the appropriate breadth of fraud statutes should incorporate non-statutory means of preventing the evolution of new strains of fraud. As such, 116. Id.; see Podgor, Tax Fraud,supra note 45, at 933. "In the wake of overzealous prosecutions, prosecutorial misconduct, and misuse of office, it is necessary for our courts to restrict the virtually unbridled power of prosecutors. Requiring that tax fraud violations be charged as tax fraud and not mail fraud will serve as a step in that direction." Id. 117. Molz, supra note 46, at 1007 ("Repeal by implication offers a way to preserve the strength of the mail fraud statute while mitigating its weaknesses."). 118. See, e.g., ENVTL. PROT. AGENCY, Pesticides and Food: What "Integrated

Pest

Management"

Means,

http://www.epa.gov/pesticides/food/ipm.htm (explaining that, under "Integrated Pest Management," growers coordinate among pest control options, including "using mechanical trapping devices, natural predators (e.g., insects that eat other insects), insect growth regulators, mating disruption substances (pheromones), and . . . [t]he use of biological pesticides . .

119. Fungicide Resistance, supra note 16, at 32 ("[T]he greater the use of

non-chemical methods, such as disease-resistant varieties, rotation of crops, or hygienic practices . . . [the less] fungicide selection pressure."). 120. ENVTL. PROT. AGENCY, supra note 118; Russell, supra note 26, at 23

("Biocontrol will undoubtedly contribute more in the future[.]").

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The EvolutionaryBiology of Fungi and Fraud

education and increased enforcement represent two potential avenues for achieving the goals of non-statutory prevention. One non-statutory method of preventing the evolution of new types of fraud is to educate the potential victim, thereby depriving the fraud perpetrator of a target.12' For example, the Securities and Exchange Commission publishes a manual, titled Avoiding Fraud, which provides "tips to help you avoid being scammed."l22 Similarly, the State Department, in recognition that "[s]cams evolve constantly," publishes brochures to "help alert you to the indicators of some common scams and actions

you should take[.]"l 2 3 A second non-statutory method of preventing the growth of resistant strains of fraud is to increase enforcement of existing specific fraud statutes. Ways to increase enforcement include improved coordination between federal and state agencies,124 121. See, e.g., U.S. POSTAL INSPECTION SERV., Top Ten Ways to Prevent

Fraud, http://www.deliveringtrust.com/topten/index.php?videoToPlay-one. To help educate the public, the Chief Postal Inspector, Guy Cottrell, and the USPS Vice President and Consumer Advocate, Delores J. Killette, provide the "top ten ways to prevent fraud": (1) "If it sounds too good to be true, it probably is[;]" (2) "No one needs your help to transfer money in an out of the United States[;]" (3) "Check you monthly statements[;]" (4) "Never deposit a check if you don't know who sent it to you. Just because your ATM or Internet bank account says 'funds available' doesn't mean the check has cleared. Never accept a check for payment if the amount is greater than what you're owed[;]" (5) "Your bank will never email or call asking for your account number. Limit the amount of personal information you give out over the phone or Internet[;]" (6) "There are legitimate work-at-home jobs involving process checks[;]" (7) "Foreign lotteries are illegal in the United States[;]" (8) "Never send money to a company you don't know before checking with the Better Business Bureau, your financial advisor, or family members[;]" (9) "Shred unwanted documents containing personal information[;]" and (10) "It's a good idea to order your credit report once a year, and review it thoroughly." Id 122. U.S. SEC. & EXCH. COMM'N, Avoiding Fraud,What You Can Do to

Avoid Investment Fraud,http://investor.gov/investing-basics/avoiding-fraud (identifying "red flags" and explaining "persuasion tactics" commonly used by perpetrators of fraud). 123. U.S. DEP'T OF STATE, BUREAU OF CONSULAR AFFAIRS, International

Scams,

Financial

http://travel.state.gov/travel/cispa-tw/financial scams/financial scams_315 5.html. 124. See, e.g., FIN. FRAUD ENFORCEMENT TASK FORCE,

Force, What

the

Financial Fraud Enforcement

About

the Task

Task

Force?,

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technologically advanced investigative techniques, 125 and Because research suggests that whistleblower protections. fraud perpetrators are often repeat offenders, 127 prosecuting these individuals early in their careers would potentially prevent them from later developing new types of fraud. For example, the Financial Fraud Enforcement Task Force, established in November 2009, is charged with "hold[ing] accountable those who helped bring about the last financial crisis as well as those who would attempt to take advantage of the efforts at economic recovery." 2 8

http://www.stopfraud.gov/about.html [hereinafter FRAUD TASK FORCE]. 125. Denise D. Callahan, Securities Fraudon the Internet Poses Problems for Investors and Regulators, 2 No. 12 WALLSTREETLAWYER.COM: SEC. ELEC. AGE 14 (1999) (recommending that "customized search engines could facilitate the detection of Internet securities fraud"). 126. Comm'r Luis A. Aguilar, U.S. SEC. & EXCH. COMM'N, Speech by SEC Commissioner: Enlisting Whistleblowers in the Battle Against Securities Fraud, (Nov. 3, 2010), http://www.sec.gov/news/speech/2010/spchl 1031 Olaa-whistleblowers.htm. "I view a whistleblower program as having the potential to significantly enhance the Commission's enforcement of the federal securities laws. A strong whistleblower program is one that results in high-quality information being submitted to the Commission and enhances the Commission's enforcement program and message of deterrence." See also James A. Kaplan, Whistle-Blowing is the Best Way to Fight Corporate Fraud, available at 2:00 PM), 2010, (Dec. 14, FORBES.COM http://www.forbes.com/2010/12/14/whistle-blower-personal-finance-doddfrank-act.html (discussing the advantages of "the new Investor Protection Act, . . . a whistle-blower compensation fund

. . waiting to be disbursed at

the discretion of the Securities and Exchange Commission"). 127. See, e.g., W. STEvE ALBRECHT ET AL., FRAUD EXAMINATION 46 (South-Western Pub., 3rd ed. 2008) ("The [second] highest rate of repeat offenders is probably fraud perpetrators who are not prosecuted or disciplined."); Jayne W. Barnard, Securities Fraud, Recidivism, and Deterrence, 113 PENN. ST. L. REv. 189, 214 (2008) (suggesting that many securities fraud recidivists may be "'hard wired' to commit manipulative crimes[]" and thus unlikely to be deterred by the threat of legal sanctions). 128. FRAUD TASK FORCE, supra note 124. ("The task force is improving efforts across the government and with state and local partners to investigate and prosecute significant financial crimes, ensure just and effective punishment for those who perpetrate financial crimes, recover proceeds for victims and address financial discrimination in the lending and financial markets.").

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V. CONCLUSION

Plant biologists face the quandary of developing a fungicide that, in addition to withstanding resistance, has an excellent regulatory profile. In fact, some scientists have described this as the "holy 2 rail for agrochemical industry fungicide discovery programs." Similarly, Congress and legal scholars face the dilemma of drafting fraud legislation that, while being unsusceptible to evasion, does not interfere with nuanced specific legislation and is not unduly vague. As Professor Coffee asks, "[w]hat compromise then is possible between strict construction and infinite expansion?"1 30 Plant biologists' solutions in the quest for this "holy grail" shed new light on alternative proposals to combat fraud, which Congress should take into account when considering the Honest Services Restoration Act. If broad fraud statutes are jettisoned altogether in favor of combinations of specific statutes, drafters should incorporate concepts of negative crossresistance. To the extent that broad fraud statutes continue to coexist with specific fraud statutes, the broad statutes should be repealed-either explicitly or by implication-when the charged conduct falls within the scope of the specific fraud statute. Finally, statutory means of combating fraud should be supplemented with non-statutory means, including education of potential victims and increased enforcement of existing specific fraud statutes.

129. Gullino et al., supra note 18, at 1082 ("The holy grail for agrochemical industry fungicide discovery programs can probably be

defined as a product with low use rate, multi-site mode of action (i.e., low resistance risk), systemic properties, good plant selectivity, and

an excellent regulatory profile."). 130. Coffee, supra note 38, at 3. Useful as this expansion [of the mail fraud statute] may be to the prosecutor, its consequence is also to dwarf and trivialize much of the remainder of substantive federal criminal law.

. . .

Yet

conversely, if we freeze the evolution of the statute, new forms of predatory behavior will appear to which the legislature cannot realistically be expected to respond quickly. Id. 131. Honest Services Restoration Act, H.R. 1468, 112th Cong. (1st Sess. 2011).

CHILLING THE BIDDING

JUSTIN LISCHAK EARLEY

ABSTRACT

As the effects of the Great Recession continue to weigh on real property in the state of Georgia, the number of foreclosures continues to mount. Since foreclosure in Georgia is almost always conducted outside the court system through a contractually-granted "power of sale" under which the lender itself conducts the foreclosure and is itself permitted to bid on the property, the Official Code of Georgia Annotated seeks to ensure that such powers of sale are "fairly exercised." But what precisely does that mean? Without a coherent theory providing a framework for analysis, the caselaw on this subject has become a morass of platitudes that "chilling the bidding" at a foreclosure is impermissible, without ever carefully defining what "chilling the bidding" really means. This article seeks to end the uncertainty by proposing that chilling the bidding requires (1) a materially-negative impact on the price received at the foreclosure sale, which (2) is causally attributable to the foreclosing lender. It reviews the caselaw to conclude that materially-negative impacts on price often derive from two basic problems: (a) reducing the number of bidders (either by preventing bidders from attending the sale or by preventing them from bidding once they arrive), or (b) by unjustifiably devaluing the property in the eyes of the market. This article proposes that each of these basic problems must be analyzed in light of both materiality and causation. The goal of this article is to provide a framework for analysis to enable borrowers, * The author practices in the Atlanta office of Sutherland Asbill & Brennan LLP. The views expressed herein are exclusively those of the author and not those of his law firm or its clients. Special thanks are due to James B. Jordan, Esq., for his indulgence, patience, analysis, and advice in my preparation of this article. Thanks are also due to Leon Adams, Jr., Esq., and Thomas M. Byrne, Esq., for their respective well-reasoned thoughts on this subject.

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lenders, and courts to better understand their respective rights and obligations when faced with a contested nonjudicial foreclosure. TABLE OF CONTENTS ..........................................

100

INTRODUCTION

II.

THE LEGAL FRAMEWORK SURROUNDING CHILLING THE .................. 102 BIDDING..........................

A. B. C. III.

GeorgiaNonjudicialForeclosure................... .................................. ChillingArguments Chilling the BiddingDefined...............................

NEGATIVE IMPACTS ON THE PRICE RECEIVED AT ............................................ FORECLOSURE

113

...... 117 ..................... The Number of Bidders. 1. Showing Up to the ForeclosureAuction ................. 117 2.

104 108 112

Opportunity to Bid ......................

124

128

.............................

DevaluedProperty

..........................

.....

IV.

THE ROLE OF CAUSATION

THE CONTOURS OF MATERIALITY..

VI.

CONCLUSION.........................................

.......................

133 138 147

INTRODUCTION

The so-called "Great Recession," which began in 2007, and the bevy of foreclosures that have resulted from the widespread financial distress of real estate owners who borrowed against their property have brought real property foreclosures to the Organized protests against forefront of the public eye.' 1. See, e.g., Thomas F. Cooley & Peter Rupert, The Great Housing Recession Continues, FORBES.COM, Apr. 21. 2010, 6:00 AM, available at http://www.forbes.com/2010/04/20/housing-foreclosure-unemployment-

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foreclosures were especially common on the first Tuesday of the month (the statutorily-mandated day for foreclosures ) in many Georgia counties in 2009, especially counties in the metropolitan Atlanta area.3 In addition, a still-developing series of controversies and lawsuits have brought public scrutiny upon otherwise arcane real property concepts. Among these are the "robo-signer" controversy that surfaced in the fall of 2010 and the nationwide series of investigations and legal challenges to securitized lending and its attendant legal constructs.6 Given all the furor over mortgages and the fairness of the system for foreclosing them, it is somewhat surprising that there remains little academic or judicial commentary on one of Georgia law's primary means for protecting borrowers against unfair economic loss from a Georgia nonjudicial foreclosure: the principle that a lender conducting a nonjudicial foreclosure opinions-columnists-thomas-cooley-peter-rupert.html. 2. O.C.G.A. ยง 9-13-161(a) (West 2011). Unless otherwise provided, sales of property taken under execution shall be made by the sheriffs or coroners only at the courthouse of the county where the levy was made on the first Tuesday in each month, between the hours of 10:00 A.M. and 4:00 P.M., and at public outcry; provided, however, that, should the first Tuesday of the month fall on New Year's Day or Independence Day, such sales shall take place on the immediately following Wednesday. Id. 3. See, e.g., Auctions Reflect Hard Times, ATLANTA J.-CONST., Sept. 2,

2009, at BI, 2009 WLNR 17145660 (illustrating protest led by Rev. Jesse Jackson at the Federal Reserve Bank of Atlanta on foreclosure Tuesday in September 2009). 4. See, e.g., Foreclosures, N.Y. TIMES, June 27, 2011, available at http://topics.nytimes.com/top/reference/timestopics/subjects/f/foreclosures/in dex.html (last visited Dec. 15, 2011) (discussing the increase in ligation related to the recent boom in foreclosure proceedings across the nation). 5. See, e.g., Robbie Whelan, Foreclosure?Not So Fast, WALL ST. J., Oct. 4,

2010,

available

http://online.wsj.com/article/SB 100014240527487040293045755261829627 38098.html (describing one bank employee who "routinely signed 6000 documents a week related to foreclosures"). 6. See, e.g., Rollins v. Mortg. Elec. Registration Sys., Inc., No. 2010-CV192270 (Fulton Co. Ga. Super. Ct. filed Oct. 15, 2010); see also U.S. Bank Nat'l Assoc. v. Ibanez, 941 N.E.2d 40, 44 (Mass. 2011) (denying request for declaration of vesting title because foreclosing bank failed to establish "that they were the holders of the mortgages at the time of foreclosure").

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cannot "chill the bidding" at the foreclosure sale. This principle, like many other legal principles, is easy to state but surprisingly difficult to describe and apply. There is no Georgia authority that provides a truly comprehensive analysis of what it means to "chill the bidding" and thereby taint a Georgia nonjudicial foreclosure. This Article seeks to fill that void by canvassing and categorizing the existing case law so as to develop a workable means of analyzing whether a foreclosing lender has "chilled the bidding" in a Georgia nonjudicial foreclosure. As set forth in detail below, the central thesis of this article is that a chilling claim requires a showing, by competent evidence, of (1) a materially-negative impact on the price received at the foreclosure sale, which (2) is causally attributable to the foreclosing lender. 1I.

THE LEGAL FRAMEWORK SURROUNDING CHILLING THE BIDDING

The first task is to define the term under consideration. Just what do we mean when we say that something "chilled the bidding" at a foreclosure sale? Although the reporters are chock full of cases stating the general proposition that "chilling the bidding" is not permissible, no known Georgia authority has set forth a comprehensive test or definition describing just what it means to chill the bidding. Rather, the caselaw tends to speak in broad generalizations which do little to aid the analysis of concrete factual situations. For example, one of the leading Georgia cases attempts to describe chilling the bidding thusly: "What is forbidden is a prior agreement or understanding that is in any manner outcome determinative, i.e., impacts on the

amount of the highest bid or the identity of the successful bidder so as to chill either the bidding or the sale's price[.]" 8 Similarly, another leading case states: "[Foreclosure sales] will not be set aside . . . unless there [is] evidence which reasonably satisfies

the mind that something was done, either by one of the parties or one charged with the duty of conducting the sale, which 7. E.g., Smith v. Citizens & S. Fin. Corp., 268 S.E.2d 157, 157 (Ga. 1980) (determining chilling affects of failing to disclose "existence of senior security deed in advertisement for sale" is a question of fact for the jury to decide). 8. Little v. Fleet Fin., 481 S.E.2d 552, 557 (Ga. Ct. App. 1997).

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actually damaged him who owned the property." 9 Chilling the bidding thus seems a bit like Justice Potter Stewart's definition of pornography: you just know it when you see it.' 0 Unfortunately, such an intuitive concept does little to show a foreclosing lender how to conduct a foreclosure without "chilling the bidding," and results in confusion amongst the courts charged with adjudicating claims that the bidding was chilled. A better definition is needed. Dictionary definitions do not suffice. For example, Black's Law Dictionary defines the concept (under the term "chilling a sale") as "[t]he act of bidders or others who combine or conspire to discourage others from attempting to buy an item so that they might buy the item themselves for a lower price."'' Yet as a matter of Georgia law, it is clear that this definition is quite underinclusive. For example, it is clear that in Georgia a lender may chill the bidding all by itself;12 chilling the bidding in Georgia is clearly not just an ordinary civil conspiracy claim. Further, the lender need not succeed in buying the property itself (or even intend to buy the property itself) to have chilled

the bidding.13 This definitional underinclusivity results from the fact that most foreclosures in Georgia are conducted nonjudicially by means of a power of sale found in the lender's security deed, 9. W.A. Ward Realty & Inv. Co. v. New England Mut. Life Ins. Co., 184 S.E. 613, 616 (Ga. 1936). 10. See Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring). I have reached the conclusion ...

that . .. criminal laws in this area

are constitutionally limited to hard-core pornography. I shall not today attempt to further define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that. Id. (footnote omitted). 11. BLACK's LAW DICTIONARY 274 (9th ed. 2009). 12. See, e.g., Bond v. Stephens, 129 S.E. 636, 638 (Ga. 1925) (holding sale improper where foreclosing lender failed to conduct foreclosure sale in sufficiently loud voice). 13. See, e.g., Cummings v. Anderson (In re Cummings), 173 B.R. 959, 963 (Bankr. N.D. Ga. 1994) (holding foreclosure sale improper where lender assigned loan documents to third party, who then proceeded to conduct the foreclosure sale).

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and thus the lender in a typical Georgia foreclosure is simultaneously wearing (at least) two different hats: that of foreclosing party and that of potential (and in most cases, actual) bidding party. To properly analyze chilling the bidding in an ordinary Georgia nonjudicial foreclosure, we must therefore look to foundational principles generated by the lender's dual and simultaneous roles. These roles are in many ways self-contradictory. Understanding them in turn requires a basic background understanding of the Georgia nonjudicial foreclosure process. A. GeorgiaNonjudicialForeclosure Foreclosure in Georgia may occur in at least four different ways: (1) judicial foreclosure in equity of either a mortgage or a deed to secure debt; (2) judicial foreclosure of a mortgage at law under statutory procedures set forth in the Official Code of Georgia Annotated; (3) "foreclosure" of either a mortgage or a deed to secure debt by filing suit on the underlying debt, obtaining a judgment against the borrower, and execution and levy of the judgment on the collateral property; and (4) nonjudicial foreclosure under a power of sale found in the mortgage or deed to secure debt.1 4 Georgia property law is unique in that Georgia is simultaneously both a lien-theory state (allowing for mortgages) 15 and a title-theory state (allowing for deeds to secure debt).' 6 Further, under either theory a lender can, in principle, foreclose upon its collateral either judicially' 7 14. See generally FRANK S.

ALEXANDER,

GEORGIA REAL ESTATE

FINANCE & FORECLOSURE LAW Chs. 7 & 8 (4th ed. 2004).

15. See, e.g., O.C.G.A. ยง 44-14-30 (West 2011). 16. See, e.g., O.C.G.A. ยง 44-14-60 (West 2011). The development of the Georgia security deed and its supplanting of the mortgage as the instrument of choice is traceable to a variety of factors: From the perspective of creditors, the status of mortgages as liens was troubling for several reasons. A mortgage was held to be subordinate to a right of Year's Support, to the homestead exemption, to a surviving spouse's right of dower, and there was at least a substantial question as to whether a power of sale contained in a mortgage terminated upon the death of the mortgagor. In addition, by lacking legal title under a mortgage a creditor could not proceed with an action in ejectment in the event of default by the debtor. ALEXANDER, supra note 14, 17.

ยง 1-4, at 14.

See O.C.G.A. ยง 44-14-180(1) (West 2011) (addressing judicial

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105

or nonjudicially.1 8 However, as a practical matter, every Georgia lender uses the title-theory deed to secure debt, and conducts its foreclosure nonjudicially, because a nonjudicial foreclosure is quicker, less costly, and more predictable than the alternative of court involvement. 19 It is this lack of court involvement that generates the foreclosing lender's simultaneous and contradictory roles, and accordingly, to analyze what it means to chill the bidding one must understand the basic scheme of a nonjudicial foreclosure, sometimes called a "power of sale" foreclosure. "Conceptually, power of sale foreclosure derives from the combination of basic agency principles in contract law with the proposition that a [security deed] is the transfer of an interest as security for a debt." 20 Every well-drafted Georgia security deed contains a section providing that, if the borrower defaults on the debt or covenants relating to the debt, the lender may sell the property as attorney-in-fact for the borrower so that the lender

foreclosure of mortgages); see also O.C.G.A. § 44-14-210 (West 2011) (addressing judicial foreclosure of deeds to secure debt); Lively v. Oberdorfer, 119 S.E.2d 27, 28 (Ga. 1961) ("A deed to secure debt may be foreclosed as an equitable mortgage."). See generally ALEXANDER, supra note 14, § 7-1. 18. See O.C.G.A. § 23-2-114 (West 2011) ("Powers of sale in deeds of trust, mortgages, and other instruments shall be strictly construed and shall be fairly exercised."). Practitioners often erroneously assume that the distinction between a mortgage and a deed to secure debt is that a mortgage may not be foreclosed upon nonjudicially. This assumption is incorrect, and there is no reason that a Georgia mortgage cannot contain a power of sale such that the lender may attempt a nonjudicial foreclosure thereunder. See, e.g., ALEXANDER, supra note 14, § 8-1, at 103-04 ("The first cases in which a nonjudicial power of sale was held valid involved mortgages, as opposed to deeds to secure debt . . . ."). However, status as a mere mortgagee rather

than the holder of a deed to secure debt is bad for the lender in any number of ways. See O.C.G.A. § 44-14-60. See also ALEXANDER, supra note 14, § 1-4, at 11 (describing the distinction between the lien theory and the title theory, and the four contexts in which the distinction usually arises). 19. A complete analysis of the vagaries of mortgages and the reasons that lenders universally require a deed to secure debt as opposed to a mortgage and foreclose nonjudicially rather than through the courts is beyond the scope of this article. See generally ALEXANDER, supra note 14, Ch. 1, § 8-1 (providing a basic treatment of the subject). 20. Id. § 8-1, at 104.

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can recover its loan. 2 1 This provision, called a "power of sale," permits the lender to sell the property without court intervention, and is the basis of nonjudicial foreclosure. After a borrower defaults on the debt or the covenants relating to it (and assuming that the borrower has failed to pay the balance due on the loan after the lender accelerates the loan by notice to the borrower, or upon natural arrival of the maturity date in the case of a maturity default), a lender will begin the statutory procedures for conducting a nonjudicial foreclosure. First, the lender must advertise the property for sale using the 22 same procedure as is required for sheriffs sales. Basically, this means the lender must publish notice (including the full legal description of the collateral) in the official "legal organ of the county" wherein the property lies once a week for four weeks immediately preceding the date of the foreclosure.23 After giving notice to the world via published advertisement, the lender ma conduct the foreclosure sale on the first Tuesday of the month. The sale is a public auction and is performed by the lender-usually through its counsel-on the steps of the county courthouse in which the collateral property lies.2 5 The sale terms are cash or cash equivalent (such as cashier's check or certified check) paid by the highest bidder. 2 6 The property is "knocked off' to the highest bidder by a deed under power of sale, executed by the lender in its capacity as attorney-in-fact for the borrower under the power of sale found in the security deed.2 7 The funds received by the lender are applied to the debt which the borrower owes the lender, 28 and any surplus proceeds 21. A poorly-drafted security deed which lacks a valid power of sale must be foreclosed upon judicially, whether at law or in equity. This subject is beyond the scope of this Article. 22. O.C.G.A. § 44-14-162 (West 2011). 23. O.C.G.A. § 9-13-140 (West 2011). 24. O.C.G.A. § 9-13-161(a). 25. Id. 26. O.C.G.A. § 9-13-166 (West 2011). 27. ALEXANDER, supra note 14, § 8-9, at 139. There is no statutory provision expressly governing "deeds under power," but the law recognizes them as the result of the power-of-sale contract between the borrower and the lender. Id. at 137. Cf O.C.G.A. § 44-14-160 (West 2011) ("Within 90 days of a foreclosure sale, all deeds under power shall be recorded .. . "). 28. ALEXANDER, supra note 14,

§ 8-7, at 132. Typically the security deed

will provide that the lender's costs-such as advertising expenses, attorneys'

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belong first to junior lienors, and second to the borrower as its equity in the property.2 9 However, if the foreclosure sale does not produce enough funds to satisfy the full balance of the debt, the borrower may be liable for a deficiency judgment if the loan is fully or partially "recourse" to the borrower. 3 0 Obtaining a deficiency judgment, however, requires the lender to have its power-of-sale foreclosure "confirmed" by the superior court of the county in Further which the foreclosure took place as a prerequisite. discussion of confirmation actions is contained below, but for now the basic idea is that a superior court will not grant confirmation-and a lender will thus have no right to a deficiency judgment-unless the superior court determines that the sale was procedurally correct and the bid price represents the "true market value" of the collateral property. 3 2 The Georgia lender conducting a nonjudicial foreclosure thus finds itself in a unique position, because it is acting both in its own capacity on at least two different fronts and as attorney-infact for the borrower. In its capacity as a party hoping to fees, and the like-are paid before any amounts are credited to the debt balance or refunded to the borrower as the borrower's equity in the property. Id. The Georgia courts have upheld these provisions because, "[a]s a privately authorized yet state sanctioned remedy . , the form and substance of power of sale foreclosures is determined first and foremost by the express terms of the underlying instrument." Id. ยง 8-1, at 105. 29. See, e.g., O.C.G.A.

ยง 44-14-190 (West 2011); ALEXANDER, supra note

14, ยง 10-1, at 167 ("Though a foreclosure may terminate the interests of a junior lienor in the property which was the subject of the foreclosure, such junior party has a claim upon the funds received at the foreclosure sale."). But, a surplus above the debt balance is extremely rare in any event. 30. A non-recourse loan is one in which the lender may look only to the collateral for repayment.

BLACK'S LAW DICTIONARY 1157 (9th ed. 2009)

(defining "nonrecourse" as "[o]f or relating to an obligation that can be satisfied only out of the collateral securing the obligation and not out of the debtor's other assets"). Some loans are partially recourse or recourse only in certain circumstances, such as when the borrower commits "bad boy" acts enumerated in the loan documents. The subject is discussed further in Part V, infra.

31. O.C.G.A. ยง 44-14-161(a) (West 2011). 32. O.C.G.A. ยง 44-14-161(b). As discussed more fully in Part V infra, courts have diluted the statute's procedural correctness requirement such that a sale must be more or less procedurally correct, but have (ostensibly) strictly enforced the true market value aspect.

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recover its debt through the sale of collateral, and in its capacity as attorney-in-fact for the borrower who is hoping to avoid a deficiency judgment and obtain any equity which the property may have above the debt balance(s), the goal of the foreclosure process is to see that the sale produces the highest amount of money possible.3 3 However, in its capacity as a potential purchaser of the property, the lender has (at least in theory) a countervailing interest in seeing to it that the property sells for the lowest amount possible, because under this view the lenderqua-bidder is a purchaser looking for a bargain. Indeed, this is all the more true in situations where the loan is recourse to the borrower, because (at least in theory) the lender may be able to procure the property at a bargain price at foreclosure, and then obtain the rest of its debt amount by means of a confirmation and deficiency judgment against the borrower, resulting in a windfall to the lender. 34 The law recognizes the dual, and sometimes contradictory, roles played by the lender in a Georgia power of sale foreclosure, and seeks to reconcile the lender's duties by means of a single statement in the Georgia code: "Powers of sale in deeds of trust, mortgages, and other instruments shall be strictly construed and shall be fairly exercised."3 5 This simple command, which seeks to prevent the lender's role as auction bidder from overwhelming the lender's roles as a party seeking to recover its debt and as attorney-in-fact for the borrower hoping to avoid a deficiency judgment and maximize its return, works by placing a set of legal duties on the lender. 36 The precise scope of those duties-certainly not fiduciary, but more than merely avoiding tortious harm-is the underlying question of every chilling the bidding analysis. B. ChillingArguments As a legal argument, chilling the bidding exists only in the ยง 8-5, at 137. 34. Indeed, in this respect one may reasonably ask whether a "chilling the bidding" analysis should be more stringently enforced by the courts in situations where the loan is fully or partially recourse to the borrower. This subject is discussed further in Part V, infra. 35. O.C.G.A. ยง 23-2-114. 36. See, e.g., Aikens v. Wagner, 498 S.E.2d 766, 768 (Ga. Ct. App. 1998) (citing O.C.G.A. ยง 23-2-114). 33. ALEXANDER, supra note 14,

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context of situations when a court becomes involved. Accordingly, a full understanding of chilling requires that we look to the contexts in which chilling arguments typically arise. In Georgia, there are two common causes of action in which a chilling argument is likely to be housed: actions for wrongful foreclosure and actions to confirm a foreclosure sale. 37 Although these causes of action have different elements and purposes, their respective structures shed light on what it means to chill the bidding.3 8 39 An action for wrongful foreclosure generally sounds in tort, though it may also sound in contract if so alleged. 40 Such actions may be brought in law or in equity, again depending on the facts at play and the form of relief sought.41 When framed in its usual tort form, the plaintiff must show a duty, breach of that duty, causation (both actual and proximate), and harm. The 37. ALEXANDER, supra note 14, §§ 8-11 - 9-1. 38. Id. 39. E.g., Clark v. West, 395 S.E.2d 884, 886 (Ga. Ct. App. 1990) ("There exists a statutory duty upon a mortgagee to exercise fairly and in good faith the power of sale in a deed to secure debt. Although arising from a contractual right, breach of this duty is a tort compensable at law.") (citation omitted). 40. When framed as a contract action, the claim is that the lender breached the covenant of good faith inherent in all Georgia contracts (such as security deeds). See, e.g., Sears Mort. Corp. v. Leeds Bldg. Prods., Inc., 464 S.E.2d 907, 909 (Ga. Ct. App. 1995), vacated in part on unrelatedgrounds by Leeds

Bldg. Prods., Inc. v. Sears Mortg. Corp., 267 Ga. 300 (1996) ("Damages resulting from a wrongful foreclosure, whether arising in tort or contract, are compensable at law."); TechBios, Inc. v. Champagne, 688 S.E.2d 378, 381 (Ga. Ct. App. 2008) ("In Georgia, every contract imposes upon each party a duty of good faith and fair dealing in the performance of their respective duties and obligations.") (quotation omitted). See also Brown v. Freedman, 474 S.E.2d 73, 74 (Ga. Ct. App. 1996) (illustrating the claim in both tort and contract forms). On occasion the claim is based on fraud. E.g., Gilbert v. Cherry, 221 S.E.2d 472 (Ga. Ct. App. 1975). 41. ALEXANDER, supra note 14,

§ 8-10, at 138. Basically, the injured

borrower may ask the court to set aside the foreclosure in equity, or may seek damages for the lost value of the property, but not both. Damages may be available even if the foreclosure is set aside for other harm suffered by the plaintiff (emotional distress, etc.). E.g., Calhoun First Nat'l Bank v. Dickens, 443 S.E.2d 837, 838 & n.1 (Ga. 1994). Sometimes the action is referred to as an action to set aside the foreclosure; this is simply the equitable remedy (as opposed to the legal remedy) for the same basic cause of action.

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duty is, of course, the statutory command of O.C.G.A. ยง 23-2114 that the lender's power of sale be "fairly exercised. 4 2 The method of breaching the duty depends on the precise factual issues at play. Examples may include: conducting a foreclosure under an invalid power of sale, 4 3 failure to comply with statutory requirements regarding notice,4 4 and importantly, a sale which was tainted with some form of unfair conduct.4 5 Indeed, as a practical matter, unfair conduct of one form or another is almost a sine qua non of a wrongful foreclosure action. For example, the Georgia Court of Appeals has recently stated in a case involving an equitable action for wrongful foreclosure: [I]nadequacy of price paid upon the sale of property under a power of sale will not of itself and standing alone be sufficient reason for setting aside the sale. It is only when the price realized is grossly inadequate and the sale is accompanied by either fraud, mistake, misapprehension, surprise or other circumstances which might authorize a finding that such circumstances contributed to bringing about the inadequacy of price that such a sale may be set aside by a court of equity. The Georgia Court of Appeals has made similar statements regarding a wrongful foreclosure action at law, noting, "[i]t is the 'circumstances,' in conjunction with the price, that can lead to a recovery." 47 Indeed, many real-world wrongful foreclosure actions will involve some form of alleged chilling. 4 8 42. O.C.G.A. ยง 23-2-114. 43. Cf Pottle v. Lowe, 27 S.E. 145, 146 (Ga. 1896) ("[T]he power of sale incorporated therein was invalid, and conferred upon the company no authority whatsoever to act as the representative of the grantors, or either of them."). 44. Cf Foster v. Farmers & Merchants Bank of Eatonton (In re Foster),

108 B.R. 361, 364 (M.D. Ga. 1989) ("The legal advertisement must be

published once a week for four weeks immediately preceding the day the sale is to take place. If this is not done, the sale is not valid."). 45. ALEXANDER, note 14, ยง 8-10, at 138. 46. Cartersville Developers, LLC v. Ga. Bank & Trust, 664 S.E.2d 783, 785 (Ga. Ct. App. 2008) (quotation omitted). 47. Brown v. Freedman, 474 S.E.2d 73, 76 (Ga. Ct. App. 1996). 48. See, e.g., ALEXANDER, supra note 14, ยง 8-10(a), at 138 ("[I]n addition

to a gross inadequacy of sales price there must be other evidence that the sale was not fairly conducted such as fraud, mistake or other actions which had

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The other context in which a chilling argument is often found is in a confirmation action. As noted above, a confirmation order is a condition precedent to seeking a deficiency judgment on a debt which is not fully retired by the foreclosure. 4 9 Deriving from the Great Depression, 5 0 the confirmation statute seeks to protect borrowers from undue liability on the debt by ensuring that the property sold for what it is truly worth at foreclosure before the lender can extract any amount in excess of the sale price from the borrower.51 According to the confirmation statute, there are two tests to be met before a court can confirm a foreclosure: First, "[t]he court shall require evidence to show the true market value of the property sold under the powers and shall not confirm the sale unless it is satisfied that the property so sold brought its true market value on such foreclosure sale." 5 2 Therefore, under the plain terms of the confirmation statute, and unlike a wrongful foreclosure action, "mere inadequacy of price is a sufficient reason for denying confirmation,"s regardless of the reason for the inadequate price. Second, even assumin that the foreclosure sale did bring in the "true market value" of the property, "the court shall also the effect of chilling the bid."). 49. O.C.G.A. ยง 44-14-161(a). 50. See 1935 Ga. Laws 381-82; see also Thompson v. Maslia, 195 S.E.2d 238, 241 (Ga. Ct. App. 1972). When in 1935 the General Assembly enacted [the confirmation statute], our country was emerging from a disastrous depression during which many mortgagors had not only lost their property through foreclosure but were forced to bankrupt against deficiency judgments after foreclosure sales in which mortgagees usually acquired the property at nominal or depressed bids. Id. 51. E.g., Hudson Trio, LLC v. Buckhead Cmty. Bank, 696 S.E.2d 372, 378 (Ga. Ct. App. 2010) ("[T]he confirmation statute] originated as a means of protecting the debtor for being subject to double payment in cases where the property was purchased for less than its fair market value."). 52. O.C.G.A. ยง 44-14-161(b). 53. Fed. Deposit Ins. Corp. v. Ivey-Matherly Constr. Co., 241 S.E.2d 264, 265 (Ga. Ct. App. 1977) (emphasis added). 54. As a practical matter, the question of true market value typically degrades into a "battle of the appraisers" at a confirmation hearing. See, e.g., Craig Pendergrast & Sara LeClerc, Georgia Foreclosure Confirmation Proceedingsin Today's Recessionary Real Estate World: Back to the Future,

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pass upon the legalit of the notice, advertisement, and As a practical matter, courts often regularity of the sale." analysis into the first and ask, assuming that the second collapse there was a procedural error, "whether the error contributed to chilling the price on the sale of the property." 56 Leaving aside the confusion in the caselaw about whether the analyses are truly independent, 57 the important point is that "the notice, advertisement, and regularity of the sale" are all processes which are controlled by the foreclosing lender, which means that the borrower must typically prove some sort of fault by the lender on this front. Note how the analyses for setting aside a foreclosure or wrongful foreclosure and for a confirmation action will many times meet in roughly the same place: the borrower seeking to challenge a foreclosure must show that the winning bid at the foreclosure auction was unfairly low, and must show that there was something about the "circumstances" of the sale that generated the unfair result.5 8 Insofar as the borrower must pin the blame for those "circumstances" on the foreclosing lender, we can begin to formulate the elements of chilling the bidding. C. Chilling the Bidding Defined What, then, does it mean to chill the bidding? We have seen GA. BAR J., Dec. 2010, at 13 ("The confirmation hearing, if contested, is a full-fledged evidentiary hearing, most often involving a battle of appraisers . 55. O.C.G.A. ยง 44-14-161(c). 56. Oates v. Sea Island Bank, 322 S.E.2d 291, 293 (Ga. Ct. App. 1984). 57. See ALEXANDER, supra note 14, ยง 9-3(a), at 153. "Notwithstanding the superficial appearance of statutory clarity of these two requirements, confusion has arisen. The issue is whether these are two independent tests . . . or whether a procedural irregularity is relevant only if it affects the question of true market value." Id. Again, it is clear under the confirmation statute and the existing caselaw that confirmation is denied if the "true market value" is not obtained. Part V infra includes a critical examination of this truism. 58. The situation is more complex with respect to confirmation actions than with respect to wrongful foreclosure actions. By the plain language of the confirmation statute and by the courts' interpretation of it, confirmation is denied-period-if the property did not bring its "true market value" at the foreclosure sale. It is only when the borrower tries to blame this on the lender that a chilling question is involved. The complicated caselaw is treated more extensively infra at Part V.

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that the law is seeking a way to prevent the lender's role as potential foreclosure purchaser from overwhelming its role as a prudent lender and as attorney-in-fact for the borrower desiring the maximum amount available for its collateral by public sale. We have seen that this concern is heightened where the loan is recourse to the borrower, because there exists the threat that the lender could aequire the property at an unfairly low price and then receive a windfall through a deficiency judgment. Finally, we have seen that in some way, shape, or form, the harmed borrower often needs to tie its harm to the lender's conduct. Therefore, it stands to reason that anything which, when proven by competent evidence, (1) has a materially-negative impact on the price received at the foreclosure sale, and (2) is causally attributable to the foreclosing lender, constitutes "chilling the bidding." 59 But simply defining the elements does not provide a full understanding of what it means to chill the bidding. The caselaw indicates certain relatively common ways in which lenders run afoul of their legal duties. This article below surveys the caselaw to provide some factual guideposts and to elaborate on the elements described above, and then goes beyond the existing caselaw to examine the implications of matters often unstated. III. NEGATIVE IMPACTS ON THE PRICE RECEIVED AT FORECLOSURE It is noteworthy that there are relatively few cases in Georgia which hold that some conduct did in fact chill the bidding. 60 59. In this respect, American Jurisprudence probably comes closest to providing a workable definition for chilling the bidding in Georgia when it describes the concept as: [A]ny public or private act or statement, either at the sale or prior to it, of a party in interest which prevents a free, fair, and open sale, or stifles or 'chills' the sale, in that it diminishes or prevents free competition among the bidders, is contrary to public policy, vitiates the sale, and constitutes a ground for setting the sale aside upon the complaint of the party injured. 47 AM. JuR. 2D. Judicial Sales, ยง 82, 490 (2006). Even so, it still does not correctly capture the concept in Georgia (e.g., the borrower is a "party in interest" but cannot chill its own sale). See infra Part V. 60. Indeed, there seems to be no case in which this holding can be clearly

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Rather, most reported cases arise on appeal from grants of summary judgment, directed verdict, or pre-trial dismissal in favor of the lender-defendant, and thus analyze the facts through the lens of whether the plaintiff-borrower's claim was disposed of prematurely, whether before or after discovery. Therefore, the extant caselaw largely discusses what might have chilled the bidding, not what actually did so. Nevertheless, certain repeat facts patterns arise in the caselaw, which are (not surprisingly) variations on the theme of the elements discussed above. Understanding them requires that we understand the purpose of foreclosure, a process developed over centuries of give-and-take between borrowers and lenders, and between courts of equity and courts of law. The mortgage derives from the ancient common law of England, where property was the basis of all wealth and therefore attracted considerable attention from the courts during feudal times. 6 1 Initially, the mortgage involved an actual transfer of the fee interest in the property from the debtor to the creditor, usually subject to a condition subsequent. The creditor took possession of the debtor's land and became the owner thereof, but upon repayment of the debt at the contracted-for time, the debtor could exercise a right of re-entry to reclaim title to the mortgaged land.6 2 The rule was a harsh one in operation, identified in haec verba. The few cases which actually reach the question are ancient, and do not speak in the modem terminology. See, e.g., Delray, Inc. v. Riddick, 22 S.E.2d 599, 603 (Ga. 1942) ("In such circumstances the power of sale was not fairly exercised . . . ."); Bond v. Stephens, 129 S.E.

636, 638 (Ga. 1925) (finding that misconduct-tainted sale "can not be said to be a sale at public outcry within the meaning of that term"); Barnes v. Mays, 16 S.E. 67, 67 (Ga. 1892) (finding that misconduct "vitiated the sale"). It seems that the only modern case which actually makes a flat statement on the subject does so in dicta. See Cummings v. Anderson (In re Cummings), 173 B.R. 959, 963 (Bankr. N.D. Ga. 1994) (noting that "[i]t is difficult to imagine a situation more chilling to a sale," but actually holding that the foreclosure was invalid because the foreclosing party did not in fact own the loan documents and thus could not conduct any foreclosure, let alone an improper one). 61. See, e.g., GEORGE E. OSBORNE ET AL., REAL ESTATE FINANCE LAW 5

(1979) ("Although the mortgage has its roots in both Roman law and in early Anglo-Saxon England, the most significant developments .. . are the English common law mortgage and the effects on that mortgage of the subsequent intervention of English equity courts."). 62. See, e.g., GEORGE E. OSBORNE, MORTGAGES 2-5, 8-12 (2d ed. 1970)

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since the courts of law would strictly enforce the mortgagee's rights and deem the fee title to the land absolutely vested in the mortgagee if for some reason (even a highly defensible one) the mortgagor failed to pay the debt at the appointed time. 63 The incentive for abuse, such as the lender's convenient absence from the jurisdiction on the payoff day, is obvious. English courts of equity therefore began to step in to ameliorate the harsh consequences that courts of law would not prevent. "At first [equity intervention] was done only in individual cases on a special showing of fraud, accident, oppression, or some similar familiar ground of general equity jurisdiction."6 4 Thus, courts of equity began to permit borrowers who were somewhat tardy in paying their debt to make payment for the debt and thereby regain title to the mortgaged land.6 5 The intervention of equity in these early cases was based on "traditional equitable grounds for relief, such as fraud, accident, misrepresentation, or duress." 66 But over time, this type of equitable intervention was routinized and became a matter of right. 7 Thus the courts of equity expanded their power over mortgages beyond the normal circumstances for invoking equity and into the ordinary secured lending transaction: Quite suddenly . . . in the early part of the seventeenth century we find [equitable] relief being given as a matter of course and right. This right was subject to two conditions: one, the mortgagor must tender the principal and interest within a reasonable time after forfeiture; two, the mortgagee could go to court and obtain a decree ordering the debtor to pay by a fixed day or be forever barred. The right thus given [hereinafter OSBORNE, MORTGAGES]. 63. E.g., id. at 9 ("If the mortgagor failed to perform, title was absolute in the grantee and the mortgagor had finally and irrevocably lost his land."). 64. Id. at 13. 65. See, e.g., id. ("[I]t would be a forfeiture to allow the mortgagee to keep [the collateral property] absolutely if the mortgagor was willing to pay even though the payment was somewhat belated."). This is especially true if, as was the normal case in that day and age, the value of the property vastly exceeded the amount of the debt. Id. at 14. 66. OSBORNE ET AL., supra note 61, at 7. 67. Id. ("However, by the 17th century, the granting of such relief by equity became much more routine so that . . . [i]t was no longer necessary to

establish the more specific equitable grounds for relief.").

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[to the borrower] was called an equity of redemption.6 8 Today, as a result of the legal history described above, every mortgagor has an "equity of redemption" that is terminated by a In a Georgia nonjudicial, power-offoreclosure proceeding. sale foreclosure, it is the sale on the courthouse steps that "forecloses" (i.e., terminates or forever bars) the debtor's ability to redeem the collateral property from the debt. The Georgia nonjudicial power-of-sale foreclosure, like most foreclosures in common law jurisdictions, proceeds by means of an auction. 70 Potential purchasing parties show up at a particular place at a particular time to offer bids on the property for sale and the property is "knocked off' to the highest bidder.7 1 Because the functional basis for an auction is competition (both in terms of the number of persons making bids on the item for sale, and in terms of the amount of the bids offered for the item),7 2 where either the number of bidders or the size of their bids is reduced, it stands to reason that this undermines the functional basis of the foreclosure auction. 68. OSBORNE, MORTGAGES, supra note 62, at 13. 69. Id. 70. See

O.C.G.A. ยง 44-14-162; O.C.G.A. ยง 9-13-161. 71. The statutory provisions governing power-of-sale foreclosures are actually rather minimal, and consist primarily of the requirement that the sale be conducted using the same basic procedure as for sheriffs sales. See ALEXANDER, supra note 14, ยง 8-1, at 105 ("As a privately authorized yet state sanctioned remedy available in secured real estate transactions, the form and substance of power of sale foreclosures [are] determined first and foremost by the express terms of the underlying instrument."). Nevertheless, over more than a century of practice and procedure, the terms and provisions of most Georgia security deeds-and thus the methods of conducting foreclosure sales-have become relatively homogenous. 72. See, e.g., Davis v. Victor Warren Props., Inc. (In re Davis), 216 B.R. 898, 912 (Bankr. N.D. Ga. 1997) ("Attracting multiple buyers is the paramount goal of a foreclosure advertisement, since competitive bidding will generally yield a higher price."); Se. Timberlands, Inc. v. Sec. Nat'l Bank, 469 S.E.2d 454, 457 (Ga. Ct. App. 1996) ("A primary object of the [foreclosure] advertisement is to attract buyers who will compete against one another so as to yield the highest price; its contents are important to this process.") ALEXANDER, supra note 14, ยง 8-5(b), at 126 ("Insofar as private sales are not permitted, the conceptual framework for conducting the power of sale foreclosure is that it be a public sale following published notice thereof so as to provide the maximum opportunity for competitive bidding.").

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The price received at a foreclosure sale is therefore, in some sense, a function of two variables that the foreclosing lender may affect: the number of bidders and the price any particular bidder is willing to pay for the property. 73 Where a foreclosing lender does something which materially reduces either variable, the lender may have laid the groundwork for the first element of a chilling claim. The subparts below explore how lenders may run afoul of these concepts. A. The Number of Bidders

This Article turns first to reduction in the number of bidders. Conceptually, a lender can reduce the number of bidders at the foreclosure auction in two ways. First, a lender can prevent or dissuade potential bidders from showing up to the foreclosure auction in the first place. Second, a lender can prevent or dissuade those persons from placing bids even though they have come to the auction. The caselaw illustrates both wrongs. 1. Showing Up to the ForeclosureAuction

At the outset, it is important to recognize that Georgia's power-of-sale foreclosure system runs on the notion that by providing notice to all the world through publication in the county legal organ, the lender has satisfied its duty to alert potential bidders of the time and place of the foreclosure sale.7 4 A complete and total failure to comply with statutory notice procedures (such as failing to publish the foreclosure advertisement at all) does more than simply chill the bidding; it renders the foreclosure sale wholly void. 73. See W.A. Ward Realty & Inv. Co. v. New England Mut. Life Ins. Co., 184 S.E. 613, 616 (Ga. 1936) ("There is nothing in the record to show that any bidder was prevented from attending the sale, or that, having attended the sale, he was confused and placed in such doubt as that he was thereby deterred from making a bid."). 74. See O.C.G.A. ยง 44-14-162 ("No sale of real estate under powers contained in mortgages, deeds, or other lien contracts shall be valid unless the sale shall be advertised and conducted at the time and place and in the usual manner of the sheriffs sales in the county in which such real estate or a part thereof is located .

.. .").

It can be difficult to square this apparently

clear command-and the corresponding language of the confirmation statute, O.C.G.A. ยง 44-14-161(c)-with the confirmation caselaw discussed infra in Part V. 75. O.C.G.A. ยง 44-14-162. The difficult questions raised by courts'

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But compliance with the statutory notice procedures does not end the matter, and the caselaw in this area (mostly originating in the late nineteenth or early twentieth centuries) illustrates a variety of unscrupulous schemes to keep potential bidders away from the auction. For example, paying the potential bidding competition to stay home and not attend the sale is clearly Threats by the lender or admonitions that it impermissible. if would be better the otential bidder did not attend the sale are impermissible as well. 7 Further, while not strictly "chilling the bidding" in the sense contemplated by this Article, there are cases illustrating debtors who agree not to attend the foreclosure auction on the basis of an illicit agreement with the lender in which the lender will use foreclosure to wipe out junior liens and then allow the debtor to repurchase the unencumbered property from the lender; such agreements are void as a matter of public policy. 78 Another fact pattern involves lender treachery. For example, in Bracewell v. Coleman,7 9 the debtor owed the lender approximately $150.00 under a note and security deed.80 When the debtor's estate was offered $500.00 for the collateral property prior to foreclosure, the lender advised against making the sale, on the ground that the property was worth more, and stated that garbled interpretation of the two-pronged analysis set forth in the confirmation statute is treated more extensively infra in Part V 76. See Barnes v. Mays, 16 S.E. 67, 67 (Ga. 1892) ("Mr. Barnes, deliberately hired Mr. Pierce, whom he knew was likely to be a competing bidder, not to bid against him. The result was that he purchased the land for six hundred dollars when, but for this collusion, it would have brought much more."). 77. See, e.g., Bracewell v. Coleman, 11 S.E.2d 198, 199 (Ga. 1940) (providing an example where "Defendant stated to petitioner that he should stay away from the sale"); Carr v. Graham, 57 S.E. 875, 875 (Ga. 1907) (recounting facts wherein foreclosing creditor allegedly told potential auction purchaser that property had title problems, that foreclosing creditor had claims against the property and that potential purchaser would not obtain a clear title, and that potential purchaser would simply "buy a lawsuit" if he took the property). 78. See, e.g., Dixon v. Ernest L. Rhodes & Co., 162 S.E. 716 (Ga. Ct. App. 1932); Chenoweth v. Williams, 147 S.E. 180 (Ga. Ct. App. 1929). 79. Bracewell, 11 S.E.2d at 198. 80. Id. at 198.

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it would be best for [the lender] to foreclose to perfect title and then sell at [a] private sale, which [the lender] would do for the benefit of [the debtor's estate] and [the lender]. 8' When the lender bought the property at foreclosure for $300.00 and decided that it would be best to keep the property for itself, the debtor's estate cried foul. 82 On appellate review, the Georgia Supreme Court reversed the trial court's dismissal of the suit. A somewhat similar story is found in Holbrook v. Dickson.84 Beyond obvious cases of lender impropriety are more nuanced situations that may or may not constitute chilling, depending upon the circumstances. Perhaps the most difficult situations and those most likely to arise in the modem world are those involving statements by the lender's counsel. For example, in Sullivan v. FederalFarm Mortgage Corporation,

the estate of a debtor who defaulted on her promissory note contacted a law firm known to represent the lender in foreclosure proceedings. 86 The law firm allegedly told the debtor's executors that the lender did not seek deficiency judgments against foreclosed mortgagors, and "that it would not be necessary for [the executors] to attend the [foreclosure] sale, assuring [the executors] that fthe attorney] would bid the full amount of the indebtedness." 7 The outstanding debt amount due the bank was approximately $1375.00, but the attorney for the lender bid in the property and bought it on the lender's behalf for $300.00, and then filed suit against the debtor's estate for the deficiency balance. The Georgia Court of Appeals 8 1. Id.

82. Id. at 198-99. 83. Id. at 199.

84. Holbrook v. Dickson, 25 S.E.2d 671 (Ga. 1943). In Holbrook, the lender allegedly tricked the borrower into removing a cloud on the title superior to the lender's security deed by promising the borrower a refinancing, but then the lender instead foreclosed and obtained unencumbered title. Id. at 673. 85. Sullivan v. Fed. Farm Mortg. Corp., 15 S.E.2d 551 (Ga. Ct. App. 1941). 86. Id. at 551. 87. Id. at 552. 88. Id.

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held, over a strong dissent,89 that there was no chilling because the law firm had not yet been formally engaged to represent the lender on the foreclosure in question when the attorney made the alleged representations to the debtor.90 Because there was thus no agency relationship between the law firm and the lender at the time of the statements in question, the harm was not causally attributable to the lender. 9 ' Leaving aside the question of whether such a stringent agency-based ruling would survive under modem agency principles, 92 law firms who represent foreclosing lenders face similar inquiries all the time. Logically, such inquiries place the law firm in a difficult position. If one removes the factual wrinkle from Sullivan and supposes that the law firm is actually engaged to represent the lender at the time it tells the borrower that the lender's foreclosure bid will be the full amount of the debt, and if the borrower in fact does not attend the sale on this basis, and if the lender does not in fact bid the full amount of the debt, this would seem to be rather a problem for the lender (and its counsel) insofar as it has removed from the auction the one bidder who has the greatest incentive to ensure that the property sells for at least the debt balance. Indeed, one can make an argument that chilling may be found 89. The dissent argued that the distinction drawn by the majority was unfairly picayune and ignored the obvious import of the facts. See id. at 556 (Stephens, P.J, dissenting) ("It is immaterial whether the agent made these representations before he became in fact the agent or afterwards. The sale was conducted under such representations by him to the defendants. The effect of the representations . . . [was] continuing . . .

90. Sullivan, 15 S.E.2d at 555. 91. See id. at 555 (majority opinion) ("The evidence, however, shows that the conversation between the alleged agent of the land bank, Rosser, and the agent of the defendants, took place in the fall of 1935, and that Rosser's law firm, Rosser & Shaw, had not been appointed to act in foreclosing the loan deed to the property in question until April 4, 1936.") 92. Cf Roylston v. Bank of America, N.A., 660 S.E.2d 412, 418 (Ga. Ct. App. 2008) (holding where same law firm represented both first and second mortgagee and law firm failed to provide statutory notice to purchaser who bought at second mortgagee's foreclosure sale before first mortgagee subsequently foreclosed, summary judgment was inappropriate because "this evidence would authorize a jury to find that Bank of America, through its law firm agent, had actual knowledge of [the purchaser's] ownership interest in the property and thus was required, but failed, to afford him the statutory notice. . .").

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even when the lender does actually offer at the foreclosure sale the amount it announced as its opening bid. If the lender announces an opening bid (whether by disseminating the information through its counsel, a website, or otherwise), the size of the bid may scare off potential bidders who would rather not afford rich stakes. While such a person may not have made a bid anyway, the functional basis for the auction is to cause competition amongst attendees who seek to outbid one another, and such a person may be caught up in the "bidding frenzy" of the moment and may enter the fray notwithstanding his or her previous pecuniary inhibitions. Whether such an argument is sufficiently forceful is best viewed through the causation lens

discussed below. 93 In addition, consider the situation from the third-party perspective. Suppose a possible foreclosure-sale purchaser calls the lender's attorney to inquire as to the lender's bidding parameters. Such inquiries are not uncommon-the third party wants to know the lender's opening bid and the maximum amount the lender will bid for the property so as to plan whether the third party wants to enter the auction. There is nothing in the law that requires counsel to give out this information, and counsel's answers are a potential minefield for the lender. If counsel gives high numbers that the lender does not ultimately support at the auction, and if those high numbers deter the potential bidder with their rich stakes, the lender has arguably reduced the number of possible bidders at the foreclosure saleassuming that the borrower discovers what happened and can produce competent evidence of the third party's reliance on counsel's statements. Such evidence is not nearly as difficult to come by as one might think. Internet communications have become standard practice since the last major real estate downturn of the late 1980s and early 1990s, and (especially in the residential arena), some parties have begun posting opening and maximum bids for to-be-foreclosed properties on websites. To the extent that such websites disseminate information to a broader market of potential purchasers and attract more potential purchasers to the sale, they may aid the lender to argue that they enticed potential purchasers to attend the sale, thereby increasing the competitive basis of the auction. But to the extent that the lender fails to 93. See infra Part IV

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live up to the bids it posts, the lender may have laid the groundwork for a chilling problem. Insofar as foreclosure Tuesdays in Georgia are often the realm of a relatively small set of distressed property investors and repeat players, savvy borrowers' counsel may not have much difficulty finding a witness to testify that he or she would have bid on the property, if only he or she had known that the bidding would have been lower than advertised on the lender's counsel's website. It is interesting to note that while such websites may contain disclaimers, disclosures, or "click-through" agreements, their various verbal prophylaxes do not appear to address the potential chilling problem they pose insofar as the lender may effectively be estopped from bidding any lower than advertised.9 4 The problem is not limited to the bid-too-rich variety. Suppose the lender's counsel instead states a lowball bid in response to a potential bidder's inquiry. While on the one hand this may attract the third party purchaser who hopes to get a fire-sale deal, the lender (through its counsel) may have created another problem. The foreclosure auction is in some sense a public negotiation over one and only one zero-sum variable: price. In any such zero-sum negotiation, the opening position

94. For example, one such "click-through" agreement provides that the website does not constitute (at the very least) any of the following: an attempt to collect a debt; an aspersion on the would-be foreclosed owner's creditworthiness; the formation of an attorney-client relationship or the dispersion of legal advice; the dispersion of investment advice; a representation as to the condition of the would-be foreclosed property; a guarantee of access to the website; a waiver of any copyright protection; or a grant of license to further disseminate or sell the posted information. While some aspects of the click-through may arguably address the law firm's potential liability in malpractice for the lender's failure actually make the bids posted (for example, provisions stating that the firm makes no representation that the listed properties will actually be sold on foreclosure Tuesday and standard "AS-IS" warranty waivers), such waivers and disclosures do not address the factual problem for the lender if a third party sees them, decides the stakes are too rich, and stays home from the sale. Insofar as investors make decisions based on numbers, not disclaimers, it is hard to see how a disclaimer that the lender reserves the right to make any bid it chooses (or no bid) solves the chilling problem of placing information in the marketplace which ultimately turns out to be inaccurate, and the inaccuracy is fairly attributable to the lender.

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often determines the scope of the outcome. 95 That is to say, if the opening bid is high then the outcome is likely to be a high price, and if the opening bid is low then the outcome is likely to be a low price. By starting its opening bid too low, the lender may (with hindsight) be accused of planting the seeds of a foreclosure sale price that was too low to be acceptable. 96 Most lenders recognize the possible issues created by their opening bids and will attempt to ward off the problem by having the property appraised and bidding at or near the appraised value of the collateral. But appraisals cannot take into account the all-too-frequent, last-minute problems that can arise with and affect the price of distressed property-both legal (i.e., a newly-discovered title problem) and non-legal (i.e., bad publicity). At least in logic, if not in fact, the practice of publishing or otherwise communicating the lender's planned bid amounts prior to foreclosure appears to be a risky proposition for the lender. In many respects this is unfortunate because the practice of communicating opening bids seems economically rational. Another possible problem regards the time of the foreclosure sale. According to the governing statute, a foreclosure can occur any time between 10:00 AM and 4:00 PM on foreclosure Tuesday. 9 This is obviously a rather imprecise period of time, and in the often rough-and-tumble world of distressed property investment, experienced buyers need to plan which auctions to attend. A common inquiry of the lender's counsel is thus, "What time will you conduct this sale?" A simple question and common courtesy would suggest that counsel should assist the interested potential buyer, but yet again the answer is potentially dangerous. If counsel commits to conduct the auction at a certain time, and then conducts the sale earlier or later than the time stated, the potential purchaser may not be able to attend. Delays in conducting the foreclosure are quite common. Aside from traffic, bad weather, or other work obligations, counsel 95. See, e.g., CRAVER, EFFECTIVE LEGAL NEGOTIATION AND SETTLEMENT

ยง4.01(3)(g)(iv) (5th ed. 2005) (discussing the "anchoring" effect of opening bids in a negotiation). 96. Indeed, a true lowball bid (such as a bid of $1.00 on a $100,000.00 property when the lender is the only bidder) on its face smacks of failure to "fairly exercise" the power of sale. See O.C.G.A. ยง 23-2-114. 97. O.C.G.A. ยง 9-13-161(a).

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may be instructed to wait while the borrower and lender attempt to work out a deal to keep the borrower in possession of the property. Meanwhile, the interested bidders may move on to other sales. Of course, there are always proof and persuasion problems that the borrower must overcome while attempting to claim that the lender reduced the number of bidders. That is to say, the borrower who seeks to challenge the foreclosure must first, be aware that someone who wanted to attend the sale did not attend; second, be able to produce evidence of that fact as well as the resulting harm to the borrower; and third, convince the court that all of this is the lender's fault. But proof and persuasion problems exist in every legal question. The question worth considering is how seemingly innocuous acts of common courtesy by the lender or its counsel can potentially backfire. Disseminating information is a well-known means of improving market efficiency and something of which borrowers, lenders, and third-party investors should approve in most instances, but (at least in theory) the law appears to make that a risky proposition for the lender and its counsel. The wise lender and its counsel should thus always weigh any potential action with an eye towards whether, with hindsight, a borrower may be able to construct a logical argument that the lender's or counsel's actions reduced, in one way or another, the number of persons who actually attended the foreclosure auction. 2. Opportunity to Bid The statutory notice by publication required in every Georgia nonjudicial foreclosure will inform potential purchasers that a public sale will occur on the courthouse steps of the county in which the property lies between the legal hours of sale on foreclosure Tuesday. 98 But this only brings potential purchasers to the general geographic vicinity of the foreclosure sale. To have a properly-conducted foreclosure auction, those potential purchasers must have a full, fair, and actual opportunity to bid The lender's failure on the property offered for sale. that opportunity to provide or unintentional) (intentional 98. O.C.G.A. ยง 9-13-161(a). See also O.C.G.A. ยง 9-13-161(c) (noting that there is an exception if the sale would cause undue hardship or traffic hazard by conducting the event in the scheduled location, the sale will be moved to a place designated by the court with notice).

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illustrates the second way that the lender can reduce the number of bidders and trip the first prong of chilling the bidding. Obviously, to avoid running afoul of this principle, the lender must conduct the sale fairly, and the caselaw illustrates a variety of nefarious lender schemes which are plainly impermissible. For example, in Bond v. Stephens,9 9 the Georgia Supreme Court described the following fact pattern: A so-called public sale, where the seller or the auctioneer places himself 12 feet within an entrance of a courthouse, and the only bidder stands within the same distance from the door of the courthouse, and neither of them can be seen by persons upon the adjoining streets or in the courtyard, and the sale, including the reading of the advertisement and the taking of bids, is concluded in about a minute, there being only one bidder and one other person present at the time of the sale, and there is not reading of the advertisement other than in a monotone [voice], not loud enough to attract the attention of any person except the two who are in the corridor of the courthouse, and where only one bid is offered, and no request is made for further bids, but the property is knocked off without delay to the maker of the single bid, when there are no persons other than those mentioned in the courthouse or on the courtyard, cannot be said to be a sale at public outcry within the meaning of that term.100 Another impermissible example comes from Delray, Inc. v. Reddick.1 0 1 In Delray, the following fact pattern arose: At the time and place advertised, C. J. Camp appeared for the purpose of bidding on and possibly purchasing [the subject] property. A number of persons were congregated near the auctioneer, among whom where George B. Tidwell and Bertram S. Boley, attorneys and agents for S. A. Reddick. The auctioneer proceeded to offer the property for sale. C. J. Camp and George B. Tidwell made successive bids for the property, the price being advanced to $550[.00] by bid of Camp. When Camp's bid was made, B. S. Boley approached the auctioneer and said, "Have you read all of the advertisement? Did you not leave out a paragraph?" The auctioneer replied that he had left out a paragraph. 99. Bond v. Stephens, 129 S.E. 636 (Ga. 1925). 100. Id. at 638. 101. Delray, Inc. v. Reddick, 22 S.E.2d 599 (Ga. 1942).

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Thereupon .. . the auctioneer ... stated that he would return to his office, study the advertisement, and sell the property at a later time. Thereupon Camp informed the auctioneer that he desired to bid further on the property, gave . . . his name

and address and received a promise from the auctioneer to be notified of the time and place of the sale. Having thus been led to believe that the sale had been called off, Camp started away. Almost immediately George B. Tidwell said, "I bid Then at once and before Camp had an $750[.00]." opportunity to speak, the auctioneer . . . said, "Sold to George B. Tidwell." C. J. Camp at once protested . . . [but

the auctioneer] refused to entertain any other bid.102 Beyond obvious examples of malintent lie more nuanced fact patterns. One common trap for the unwary, especially in commercial property foreclosures where a lender-owned affiliate or subsidiary entity is often conducting the foreclosure, is to be certain that the foreclosure is conducted in the name of the person or entity who advertised the property for sale. For example, in Cummings v. Anderson,10 a foreclosing lender assigned the loan documents to a third party on the eve of foreclosure. The assignee (who obviously was not the named creditor in the foreclosure advertisement) then proceeded to conduct the foreclosure.104 A bankruptcy court voided the foreclosure sale on the ground that anyone having read the advertisement and wishing to bid on the property would have been looking for a sale being conducted by the original creditor, not the assignee. 105 Another more exotic scenario involves a joint-venture scheme between the lender and a third party bidder. In Massey v. National Homeowners Sales Service Corporationof Atlanta, Inc.,106 the court addressed a situation in which the foreclosing party and a third party agreed to band together to purchase the property; the third party paid the entire price and the deed under power conveyed the property in question to the foreclosing 102. Id. at 601. 103. Cummings v. Anderson (In re Cummings), 173 B.R. 959, 959 (Bankr. N.D. Ga. 1994). 104. Id. 105. Id. at 963. "It is difficult to imagine a situation more chilling to a sale." Id. 106. Massey v. Nat'l Homeowners Sale Serv. Corp. of Atlanta, 165 S.E.2d 854 (Ga. 1969).

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party and the third party jointly.' 0 7 The court held that it was a jury question as to whether such a scheme chilled the bidding because it essentially removed the third party from competition with the foreclosing party at the auction, and summary judgment had therefore been improvidently granted.108 But the problem of enabling bidding by the sale attendees runs deeper. As anyone who has ever attended or conducted a foreclosure sale in a populous Georgia county can attest, foreclosure Tuesday can be chaotic. Multiple auctions for distinct properties are generally proceeding simultaneously, perhaps by bellowing auctioneers. As was especially the case in 2008 and 2009, organized protestors may be holding demonstrations nearby, and crowds and reporters may attend to observe the action. 109 Such an environment is not for the meek. Yet precisely the opposite problem may occur in rural Georgia counties. The lender or its agent may arrive at the courthouse during the legal hours of sale, only to find not a soul in sight. The result is the strange spectacle of a foreclosure auctioneer crying off the property, speaking into thin air.110 Under either situation, it is difficult if not impossible to alert potential bidders that the auction is underway, either because there are too many people nearby and one's voice is drowned out, or because there are no people nearby and there is no one to listen. Such common scenarios beg the question of what the lender (or, more commonly, the lender's agent who is conducting the foreclosure sale) must do in order to meet its obligations of enabling parties to bid. There is no easy answer to this question other than that the lender must act reasonably under the circumstances. Certainly it would not be reasonable to auction off the property in a 107. Id. at 858-59. 108. Id. Contrast this joint-venture scheme with the cases which uphold lender financing of third-party bidders. E.g., Fisher v. Great Am. Mgmt. & Inv., 243 S.E.2d 588, 589 (Ga. Ct. App. 1978). The reason that lenders may finance bids of third parties is that the financing scheme-unlike the joint venture scheme-does not remove the third party from the bidding pool or decrease the amount it is willing to bid. 109. See The Year That Was, ATLANTA J.-CONST., Jan. 1, 2010, at lB (illustrating photograph of a protestor at a Fulton County foreclosure auction). 110. This strange ritual can, of course, occur in the metropolitan counties as well; but for obvious reasons is more unlikely.

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library-like whisper while protestors are banging drums nearby. Nor would it be reasonable for the auctioneer to hide behind a courthouse column to avoid the embarrassing act of conducting an auction with no one apparently in sight because a potential purchaser may be awaiting the sale from a different vantage point out of earshot. But there are other situations that are far more difficult to judge. For example, in summertime, a thunderstorm may scatter the crowd gathered for the sale mid-way through the auction. What must the lender do to ensure that this sale is properly resumed? Or consider the disturbingly common scenario in which the apparently winning bidder does not actually have the cash to make good on its bid. The auctioneer may quickly re-open the bidding upon discovering that the buyer lacks the promised funds, but within even this short period of time most of the potential purchasers have left, assuming that the sale is over. The property then sells for vastly less than the apparently winning bid. Is this permissible? Problems such as these are best addressed through the causation lens discussed in Part IV, not through the bid-enabling lens discussed here. Ultimately, the only viable touchstone for what the lender must do to properly facilitate bidding is reasonableness under the circumstances. The wise lender will consider its actions through the framework of whether a borrower, with hindsight, could construct an argument that the lender's conduct of the sale failed to provide parties in attendance with a full, fair, and actual opportunity to bid on the foreclosure property. B. Devalued Property

The essence of chilling the bidding is that the lender cannot do anything which causes a material, adverse effect on the price received at the foreclosure sale. As set forth above, one way the lender can have such an impact is by reducing the number of bidders either by preventing attendance at the sale or by subverting the bidding process, once the sale is attended. Reducing the dollar amount of the bids offered is the second way in which a lender or its agents can materially and adversely affect the price received for the property at the foreclosure sale. In other words, this Article proposes that the lender cannot unfairly cause purchasers to devalue the property up for

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bidding. Note the word "unfairly." It is difficult to categorize the ways in which a lender can run afoul here because, in essence, there are an infinite number of ways in which purchasers value property and some of those valuation methods are wholly idiosyncratic. For example, if a potential purchaser desires a piece of property up for foreclosure to build an animal rescue shelter, calls the lender's counsel to ask whether this is a possible use, and the lender's counsel states that the property is not zoned for that purpose (thereby causing the potential bidder to devalue the property), has the lender chilled the bidding? It does not seem fair to hold that the lender has engaged in some sort of impermissible conduct on these facts. This intuitive notion finds its legal construct in the causation analysis: insofar as it is true that the zoning status of the property does not permit an animal shelter, it is the zoning ordinance-not the lender-that is the cause of the bidder's devaluation. Accordingly, the lender's duty on this front is largely to avoid making any material misstatements that would affect the perceived value of the collateral property.111 Of course, the caselaw illustrates that applying this principle is more difficult than it first sounds. Consider Aikens v. Wagner,112 a Georgia Court of Appeals case of relatively recent vintage. The owner of the property (who had received it from his mother) found, to his chagrin, that his mother had given a security deed thirty-five years earlier, encumbering the property to finance some home improvements costing about $4000.00, which debt she had not paid.1 13 The interest rate was a whopping 19.5%; thus, the lender claimed that the outstanding amount of the debt was nearly $20,000.00 at the time of the foreclosure and advertised accordingly. 114 The court struck down the interest rate as usurious, denying the lender the ability to collect the interest." 5 Since the lender was only entitled to collect the principal on the debt, the court found 111. See Davis v. Victor Warren Props., Inc., 216 B.R. 898, 909 (Bankr. N.D. Ga. 1997) ("As the Defendants point out, the advertisement was in fact accurate. It therefore could not have chilled the sale[.]"). 112. Aikens v. Wagner, 498 S.E.2d 766 (Ga. Ct. App. 1998). 113. Id. at 767. 114. Id. 115. Id. at 768.

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that the foreclosure advertisement had erroneously described the size of the debt as greatly inflated, presenting a jury question as to whether it chilled the bidding at the foreclosure sale.1 16 It is of course quite fair to causally attribute usury to the lender, but it is not clear why the court thinks that advertising an inflated loan balance could chill the bidding.' 1 7 If the usury question were removed from the Aikens case, and the lender had simply mis-advertised the amount due on the debt, why would this alone chill the bidding? The amount of the debt is exclusively the borrower's deficiency-judgment problem, as other cases have recognized.1 1 8 Note here the difference between the potential problems of the lender telegraphing its opening and maximum bids,11 9 and the lender's mis-advertising the amount of the outstanding debt. Causal attribution to the lender is found in both instances, but only one of these-the lender's bid plan-should affect a rational bidder's actions at foreclosure. This suggests a further qualification on the "devaluation" type of chilling the bidding: this Article proposes that the allegedly devaluing factor must be one that a rational bidder would consider as affecting the property value.' 20 Note that "rational" is not the same as "not idiosyncratic." Using the example above, the desire to use property as an animal rescue shelter is certainly idiosyncratic, but that does not make it irrational. Perhaps the closest analogy in Georgia property law comes from condemnation actions, where in determining "fair market value" the court is to consider "all the facts which [a 116. Id. at 769. 117. See id. 118. See Se. Timberlands, Inc. v. Sec. Nat'l Bank, 469 S.E.2d 454, 456 (Ga. Ct. App. 1996) ("The amount of the debt is not one of the required items [in the foreclosure advertisement], so a misstatement or overstatement of the debt does not render the advertisement legally defective.") (citation omitted); Boyce v. Hughes, 245 S.E.2d 308, 309 (Ga. 1978) ("[Appellant] argues that the bidding was chilled because the advertisement made it appear that a higher bid would be required to purchase the property and satisfy the indebtedness than was actually owed. A bidder at a foreclosure sale is not required to bid the amount of the indebtedness."). 119. See supra Part III.A.I. 120. E.g., Universal Chain Theatrical Enter., Inc. v. Oldknow, 168 S.E. 239, 240 (Ga. 1933) (finding no chilling because "[n]o reasonable person should have been deterred from bidding" by the challenged conduct).

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property] owner would properly and naturally press upon the attention of a buyer to whom he is negotiating a sale, and all other facts which would naturall influence a person of ordinary prudence desiring to purchase." 1 Both logic and existing caselaw support this formulation. Suppose the lender erroneously states that the property is encumbered by superior liens. This would certainly cause a person of ordinary prudence to discount his or her bid on the property, at the very least to the amount required to satisfy what the bidder believes to be the amount of the superior lien. Or suppose the lender erroneously states that the property has environmental problems. Certainly the potential for a large environmental cleanup liability would counsel a person of ordinary prudence to discount his or her bid to account for the potential cleanup costs (or possibly to avoid bidding on the property at all). 2 Consider also the foreclosure-impacting powers of the federal bankruptcy courts. A bankruptcy filing creates an automatic stay that prevents any foreclosure from being effective, even if the foreclosing party is not aware that the filing had occurred.1 23 In Davis v. Victor Warren Properties, Inc.,' 24 the lender attempted to get around this problem by conducting a foreclosure sale notwithstanding the borrower's bankruptcy filing, but announcing at the beginning of the auction that any sale would be subject to the bankruptcy court's review and approval.12 5 The bankruptcy court was not amused by this 121. Cent. Ga. Power Co. v. Mays, 72 S.E. 900, 902 (Ga. 1911) (quotation omitted). See also Williams v. S. Cent. Farm Credit, ACA, 452 S.E.2d 148, 151 (Ga. Ct. App. 1994). "Errors that would not confuse the bidding intentions of any potential bidder of sufficient mental capacity to enter a binding contract for the sale of the real property do not show a chilling of the sale so that a fair market value bid was not obtained." Id. 122. Although it depends on the facts, environmental cleanup liability can vastly exceed the value of the property. See, e.g., 42 U.S.C. ยง 9607(c) (West 2011) (stating liability limits that can in some cases reach $50,000,000.00 for damages alone). 123. See 11 U.S.C. ยง 362(a) (West 2011). 124. Davis v. Victor Warren Props., Inc. (In re Davis), 216 B.R. 898 (Bankr. N.D. Ga. 1997). 125. Id. at 905-06. The idea for such a procedure was suggested by the fact that from time to time in cases filed on the eve of foreclosure, this court enters

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notion: "[The foreclosing creditor] hedged its bet. Would a bidder have hedged its bid?" 2 6 The court certainly thought so and denied summary judgment on this basis. 12 7 Receiverships have also caused some thorny issues. Georgia law on receiverships is substantially undeveloped since the 1930s, and there remains a variety of unanswered questions about the powers of a receiver.12 8 Those questions aside, when property is placed in a receivership, it is in custodia juris, rendering the property at least questionable whether a secured creditor retains the right to sell it under the security deed's power of sale without court consent. 12 9 For examle, in Southern Mutual Investment Corporation v. Thornton,

the

lender simultaneously pursued both a receivership on the collateral property and a nonjudicial foreclosure.13 1 The court found that it was a jury question as to whether this lender strategy chilled the bidding insofar as prospective purchasers may have questioned whether the lender had the right to exercise its power of sale. 3 2 an order on a motion for stay relief permitting the creditor to cry out the sale but requiring final court approval to record a deed, even if the winning bidder is a third party. The court decides whether to grant that approval after holding a full hearing that affords the debtor an opportunity to be heard. Id. at 910. 126. Id. at 912. 127. Id. at 913 (determining "the announcement alone is a sufficient factual showing by the Plaintiff of a possible adverse effect on this bidding to survive a motion for summary judgment."). 128. See James B. Jordan & Justin Lischak Earley, Buying Distressed Commercial Real Estate: What are the Alternatives?, GA. BAR J., Dec. 2010, at 22-23 & n.35, available at

http://digital.ipcprintservices.com/displayarticle.php?id=562300. 129. See, e.g., Jonesboro Inv. Trust Ass'n. v. Donnelly, 234 S.E.2d 349, 352 (Ga. Ct. App. 1977) ("There was evidence which may have authorized a finding that the bidding at the sale was chilled because three advertisements of the sale had appeared prior to securing an order from the judge in the receivership proceeding [authorizing a sale] . . . .").

130. Se. Mut. Inv. Corp. v. Thornton, 206 S.E.2d 846 (Ga. Ct. App. 1974). 131. Id. at 847. 132. Id. at 848 ("Whether or not the sale of the realty might have been affected adversely because same was under a receivership, which might have caused prospective purchasers to question the title to the property, remains for determination by a jury.") (citing Plainville Brick Co. v. Williams, 152

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As with the "bid-enabling" problem discussed in Part III.A, one can imagine all sorts of strange hypotheticals in which the lender arguably does something which causes a potential buyer to view the property as less valuable. To the extent that any such lender's statement is factually true, and would impact a rational buyer, the hard cases are best understood through the causation lens, discussed in Part IV.133 For the normal situation, the wise lender will ask whether, in hindsight, a borrower could construct a convincing argument that the lender's actions caused a potential property buyer to discount the amount of the collateral property being auctioned off in the foreclosure. IV. THE ROLE OF CAUSATION

Causation is a recurring problem in the law and the chilling the bidding context is no different. Insofar as the chilling argument is found in a wrongful foreclosure action, the causation question is impossible to avoid because it is an element of any tortl34 or contract action. 135 Insofar as the S.E. 85, 90 (Ga. 1930) (asserting "the pendency of this [receivership] petition was a threat and a menace to the title of any purchaser at the sale, and would naturally tend to cause the property to sell for less than its value.")); Henderson v. Willis, 128 S.E. 807, 811 (Ga. 1925). 133. In this light consider Scroggins v. Harper,227 S.E.2d 513 (Ga. Ct. App. 1976). In Scroggins, the lender forgot to mention the existence of a prior security deed in the foreclosure advertisement, but immediately before beginning the foreclosure sale corrected its error by announcing to the crowd of assembled bidders that the sale would be subject to the prior lien, and accurately stated the amount of the prior lien. Id. at 514. The court granted confirmation because "[tihere [was] no showing at all that the sale was depressed for this reason or that a resale would result in a higher bid." Id. at 515.

134. Heritage Creek Dev. Corp. v. Colonial Bank, 601 S.E.2d 842, 844 (Ga. Ct. App. 2004) ("Georgia law requires a plaintiff asserting a claim of wrongful foreclosure [as a tort] to establish ... a causal connection between the breach of [the] duty and the injury it sustained .

. ."); Calhoun First

Nat'l Bank v. Dickens, 443 S.E.2d 837, 839 (Ga. 1994) ("With respect to causation, to recover damages in a tort action, a plaintiff must prove that the defendant's action was both the 'cause in fact' and the 'proximate cause' of her injury.") (alterations & citation omitted). 135. E.g., Norton v. Budget Rent A Car Sys., Inc., 705 S.E.2d 305, 307 (Ga. Ct. App. 2010) ("Because Budget failed to adduce any such evidence on the attacked element-that the damages resulted from the alleged breach, summary judgment should have been granted to Norton.") (footnote

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chilling argument is found in a confirmation hearing context, the causation question can in theory be avoided-if the court applies the statute strictly and finds that the "true market value" was not obtained. But as a practical matter, and discussed below, it will arise in many cases regardless. As every introductory torts student learns, causation is largely a twofold inquiry. The first question (which goes by various names including but not limited to "actual cause," "cause in fact," "but-for cause," "sine qua non cause," and so on) asks whether the conduct under examination in fact contributed to Suppose a hypothetical the harm under examination.136 situation in which the lender and a third party strike a deal that they will not bid against each other at the foreclosure auction. One could plausibly maintain that this is an actual cause of a reduced sale price; that is, it is logical to suppose that had these two parties been required to bid against each other, the sale price might have been higher. Of course, the fact that the borrower signed a security deed was also an actual cause of the harm. And so was the fact that someone, at some point in Georgia legal history, invented the security deed. And so was the fact that the borrower was born (if a natural person) or formed (if an entity). And so on, ad infinitum. Without going too far down the rabbit hole, the law attempts to solve the problem of figuring out which of the infinite universe of actual causes is fairly attributable to the defendant by means of a nebulous and ephemeral concept called "proximate cause" (or sometimes, "legal cause"). 13 7 There is no good definition of proximate cause because there is no good way to cabin the concept. Perhaps the closest that one can come is this: "The term 'proximate cause' is applied by the courts to those more or less undefined considerations which limit liability even where the fact of [actual] causation is clearly established."1 38 In essence the question is whether it would be fair to hold the defendant accountable for the harm. 13 9 omitted). 136. See generally W. PAGE KEETON ET AL., PROSSER & KEETON ON TORTS ยง 41 (5th ed. 1984). 137. See generally id. at ยง 42. 138. Id. ยง 42, at 273. 139. Id. It is sometimes said to depend on whether the conduct has been so

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Consider, for example, a situation in which two third parties, unbeknownst to the lender, strike an agreement that they will not bid against each other at the foreclosure sale. It is logical for the borrower to maintain that this is an actual cause of a sale price which is too low. And the lender conducting the sale, notwithstanding this illicit agreement, is surely an actual cause of the low sale price. But insofar as the lender had no knowledge of the illicit agreement, is it fair to fault the lender in this situation? Would it be fair to fault the lender if it did have knowledge of the agreement but conducted the foreclosure anyway? Without belaboring the point, proximate cause is the legal concept through which many undefined and undefinable notions of "fairness" find their way into the case reporters. While the cases generally fail to flesh out the matter completely, causation is an essential issue in most chilling the Consider the early case of Ruis v. bidding analyses. 14 0 Branch 141 in which Jack Ruis owed $500.00 to Martha Taylor.142 Taylor sued Ruis and reduced the debt to a judgment, significant and important a cause that the defendant should be legally responsible. But both significance and importance turn upon conclusions in terms of legal policy, so that they depend essentially on whether the policy of the law will extend the responsibility for the conduct to the consequences which have in fact occurred. Id. 140. Some ancient cases are apparently willing to find a sale chilled even if the conduct was not causally attributable to the lender. See, e.g., Dykes v. Jones, 58 S.E. 645, 646 (Ga. 1907) ("The general principle of law applied to all sales at auction is that any act of the auctioneer, or of the party selling, or of thirdparties, as purchasers,which prevents a fair, free, and open sale ... renders the sale null and void.") (quotation omitted & emphasis added). These ancient cases are not even in accord in their time. Compare id., with Ruis v. Branch, 74 S.E. 1081, 1082 (Ga. 1912) (rejecting argument that bidding was chilled, because "[i]t was [the plaintiffs] own conduct which depreciated the price of his property"). In addition, cases of even slightly more recent vintage are (explicitly or implicitly) in line with the view of this article. E.g., Caldwell v. Nw. Atlanta Bank, 21 S.E.2d 619, 622-24 (Ga. 1942) (holding where defendant made deal with foreclosing lender that foreclosing lender would finance defendant's bid did not chill the bidding because it was not known to any other bidders and had no impact on the sale); Little v. Fleet Fin., 481 S.E.2d 552, 557 (Ga. Ct. App. 1997) (noting that the forbidden acts are those which are "outcome determinative"). 141. Ruis, 74 S.E. at 1081 (Ga. 1912). 142. Id.

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and began the machinery for a sheriffs sale. 143 Before the sale, Ruis and a junior mortgagee allegedly struck a deal in which the junior mortgagee would buy the property at the sheriffs sale and then execute a "bond to reconvey" the property to Ruis if Ruis paid the junior mortgagee a certain sum. 44 The parties announced this fact to the crowd of bidders that had assembled before the sale began, such that the other bidders "were deterred from bidding on the land, for the reason that they did not care to interfere with [Ruis] in redeeming his property."45 After the sheriff s sale, the junior mortgagee refused to honor the agreement, and instead sold the property to a third party.14 6 Ruis sued to invalidate the sheriffs sale, claiming that it had been tainted because so many potential bidders left the auction in response to the announcement.14 7 But the court refused to grant relief, noting, "[t]he sale of [Ruis'] property at less than its market value was caused by his own act,"1 4 8 not that of the lender. Many other cases are in accord with this holding.14 9 143.Id. 144.Id. 145. Id.

146. Id. 147. Id. at 1082. 148. Id. Insofar as Ruis appears to be an equitable action to set aside the sheriffs sale, one could view the holding as an application of the equitable principle that equity will not aid one with unclean hands. This is in essence the flip side of the causation coin. See id. at 1082 ("[E]quity will not relieve him from a condition resultant from his own conduct."). 149. E.g., Boyce v. Hughes, 245 S.E.2d 308, 309 (Ga. 1978) (rejecting argument that bidding was chilled because it was public knowledge that water authority desired to condemn the property to build a sewage treatment plant insofar as "[the foreclosing party] had no involvement in the proposed acquisition of the property for a governmental purpose"); W. Lumber Co. v. Schnuck, 51 S.E.2d 644, 650 (Ga. 1949) (rejecting argument that advertisement referencing superior mechanic's lien chilled sale because anyone who searched title would find the encumbrance anyway); Heritage Creek Dev. Corp. v. Colonial Bank, 601 S.E.2d 842, 844 (Ga. Ct. App. 2004) ("Georgia law requires a plaintiff asserting a claim of wrongful foreclosure to establish a legal duty owed to it by the foreclosing party, a breach of that duty, a causal connection between the breach of that duty and the injury it sustained, and damages.") (footnote omitted); Stepp v. Farm & Home Life Ins. Co., 474 S.E.2d 108, 111 (Ga. Ct. App. 1996) ("[T]he circumstances relied on are not evidence that the prices received at foreclosure were chilled or diminished as a result of collusion or fraud on the

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Proximate causation is often thought of as a black hole into which difficult questions of policy and fairness fall, only to be lost in a sea of irreconcilable cases.15 0 This is probably true, but it is nevertheless the only tool which the law makes available for framing an answer to the most difficult fact patterns. Consider in this light the facts of Shingler v. Coastal Plain

ProductionCredit Association.15 Appellants introduced evidence that a black criminal defendant ran from a hearing, was shot and killed, on the day prior to the sale, in Ashburn, Georgia, the site of the sale of this property. The shooting incident occurred on September 30, 1985. On that night there was a demonstration by blacks in Ashburn. The State Patrol sent in a number of troopers to assist the local police officers. The [Georgia Bureau of Investigation] sent in a group of their agents. The Chief of Police estimated that there were 100 officers on duty in Ashburn for a few days. The Sheriff said that the day of the sale was "calm" but "tense." There were no demonstrations on the day of the sale, the courthouse was open, but some businesses were closed.1 5 2The only things visible were "police and police and police." The lender conducted its sale anyway-was this chilling?1 5 3 part of applicant in conducting the foreclosure."); Williams v. S. Cen. Farm Credit, ACA, 452 S.E.2d 148, 151 (Ga. Ct. App. 1994) ("Williams has not shown, as he must, a causal connection between this conduct and any chilling of the sale.") (citing Kennedy v. Gwinnett Commercial Bank, 270 S.E.2d 867 (Ga. Ct. App. 1980); Hartrampf v. Citizens & S. Realty Invs., 246 S.E.2d 134, 135 (Ga. Ct. App. 1978) (finding that lender's advertising foreclosure three different times before finally completing the foreclosure was not chilling because lender was prevented from foreclosing by borrower's bankruptcy); cf Shingler v. Coastal Plain Prod. Credit Ass'n, 349 S.E.2d 785, 788 (Ga. Ct. App. 1986) (upholding trial court's ruling that, notwithstanding public unrest due to racial tension, the sale was not chilled). 150. KEETON ET AL., supra note 136, ยง 42, at 275 ("When the courts say that [the] conduct is not 'the proximate cause' of the harm, they not only obscure the real issue, but suggest artificial distinctions of causation which have no sound basis, and can only arise to plague them in the future."). 151. Shingler v. Coastal Plain Production Credit Ass'n, 349 S.E.2d 785 (Ga. Ct. App. 1986). 152. Id. at 788. 153. Id. The trial court found no evidence of chilling on these facts, and the appellate court affirmed. Id. A similar "war story" related to the author by a fellow practitioner, not the subject of any litigation, involved a bomb

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Causation is the only means the law has to answer such hard questions, 154 and there is no easy or formulaic answer to them. The only potential touchstone for the wise lender is to consider whether its actions could fairly be described as the cause of a reduced sale price on foreclosure day. V. THE CONTOURS OF MATERIALITY

Thus far, this Article has shown that chilling the bidding in Georgia is essentially composed of two main elements: (1) a material, negative impact on price received at the foreclosure sale which is (2) caused by the lender's conduct. Applying these elements raises the question of just what is "material," a common qualifier which lawyers use to overlook harmless errors. While the caselaw does not flesh the notion out fully, this Article proposes that materiality is an essential concept of the chilling analysis which is doubtless being consideredwhether explicitly or (at times) implicitly in the judicial mindand further proposes that determining what is a "material" impact on price requires consideration of four factors: First, the legal cause of action which houses the chilling claim and the remedy sought; second, whether the debt in question is recourse to the borrower; third, the relative size of the numbers in question; and fourth, the nature and circumstances of the parties and the debt. As noted above, there are two common contexts in which a chilling the bidding argument can arise: actions for wrongful foreclosure15 5 and confirmation actions.15 6 Chilling the bidding threat at the county courthouse which interrupted the day's foreclosure proceedings. 154. See, e.g., Miller Grading Contractors, Inc. v. Ga. Fed. Say. & Loan Ass'n, 279 S.E.2d 442, 444 (Ga. 1981) (holding that the mere fact that there was a lis pendens filed against the property did not, without more, chill the bidding). According to the court, "[t]o adopt the position advanced by appellant would require this court to hold that a power of sale cannot be executed whenever a lis pendens is on file[,]" which the court declined to do. Id. One can certainly make a logical argument that a notice of litigation involving the property would have a materially-negative effect on the number of persons who choose to make bids and the size of the bids they place. Causation avoids the unacceptable policy result. 155. See generally First Nat'l Bank of Atlanta v. Ferrell, 235 S.E.2d 507 (Ga. 1977); Williams v. S. Cen. Farm Credit, ACA, 452 S.E.2d 148 (Ga. Ct.

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is commonly the reason for a borrower-friendly outcome in such cases, but it does not have to be. For example, one could imagine a wrongful foreclosure claim which is based on the premise that, even if the sale was perfectly normal and the price received was adequate, the lender's power of sale was invalid. 157 Similarly, a lender can be denied confirmation of its foreclosure and prohibited from suing for a deficiency judgment because, notwithstanding a perfectly normal foreclosure sale with no lender misconduct whatsoever, the court is not convinced that the foreclosure brought in the "true market value" of the debt.15 8 The cause of action in question is important because what is "material" for purposes of one prayed-for relief may not be material for another, and because the party with the burden of proof may differ. The second consideration is the recourse nature of the debt. In essence, debt can be fully recourse, non-recourse, or partially recourse. A borrower is personally liable for the entire amount of fully-recourse debt in all circumstances, absent some sort of defense or offsetting counterclaim, of course. 159 Under nonrecourse debt, the lender has no right to sue the debtor for the loan balance, and must instead look only to the collateral property for its recovery.160 Partially-recourse debt is more difficult to quantify. For example, the borrower may be personally liable for only part of the loan, may be liable for no part of the loan but liable for some sort of damages to the lender (a brand of so-called "carve-out nonrecourse"), or may be liable App. 1994). 156. O.C.G.A. ยง 44-14-161 ("Confirmation of foreclosure sales"). 157. See, e.g., Rollins v. Mortg. Elec. Registration Sys., Inc., No. 2010CV-192270 (Fulton Co. Ga. Super. Ct. filed Oct. 15, 2010) (claiming wrongful foreclosure based on invalid lender power of sale). 158. See Titshaw v. Ne. Ga. Bank, 697 S.E.2d 837, 842 (denying confirmation of sale "because no construction of the record would have authorized a finding that the sale price was at least the true market value of the property[.]"). 159. BLACK'S LAW DICTIONARY 1021 (9th ed. 2009) (defining "recourse loan" as "[a] loan that allows the lender, if the borrower defaults, not only to attach the collateral but also to seek judgment against the borrower's (or guarantor's) personal assets"). 160. Id. (defining "nonrecourse loan" as "[a] secured loan that allows the lender to attach only the collateral, not the borrower's personal assets, if the loan is not repaid").

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for the entire loan but only in certain circumstances (another brand of so-called "carve-out nonrecourse");l16 the possibilities are as endless as the parties' contractual imagination. In determining what is "material" as regards the recourse nature of the loan, this Article looks to the underlying purpose of chilling the bidding: to prevent the lender's role as potential auction purchaser from overwhelming its role as a prudent lender and its role as attorney-in-fact for the borrower. In other words, the lender should not be granted a windfall, and the existence of recourse debt presents that possibility far more so than does nonrecourse debt. Therefore, in a nonrecourse situation, the worst that can happen to the borrower is the property is lost and the lender buys the property inexpensively at the foreclosure auction. But, in the recourse situation, the borrower might lose the property at a fire-sale price to the lender, and the lender may still, in theory, be able to recover the rest of the outstanding debt by suing the borrower for a deficiency judgment. Third, consider the relative magnitude of and mathematical difference between the numbers in question. Suppose that the borrower presents evidence that the property in question sold for $1000.00 less than it would otherwise have had the lender not committed some impermissible conduct. If the property sold for $10,000.00, it seems fairly obvious that this is material. But if the property sold for $10,000,000.00, the materiality of this amount is highly questionable. Finally, the nature and circumstances of the parties should be considerations. A commercial loan situation in which sophisticated business entities have carefully negotiated a deal as to the debt, with each party represented by equally sophisticated counsel that can explain and advise on the risks of undertaking a loan and the dangers of a potential deficiency judgment when weighed against the potential profits of successflilly developing a piece of property, seems quite different from a residential situation in which an unsophisticated, uncounseled borrower is presented with a contract of adhesion for the mortgage his or her residence. Accordingly, expect to find some sort of a spectrum along 161. See Alfred G. Adams, Jr. & Jason C. Kirkham, The Real Estate Lender's Guide to Single Asset Bankruptcy Reorganizations,8 DEPAUL Bus. & COMM. L.J. 1, 7 (2009).

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which the price impact of lender conduct is analyzed more or less stringently depending on the nature of the action, the nature of the debt, the difference between the actual and hoped-for price at the foreclosure sale, and the nature and circumstances of the parties. Suppose a hypothetical outcome in which the lender incorrectly states before the foreclosure auction that the property is subject to a superior mechanics' lien, and that this statement causes the property to sell at $1000.00 less than it would otherwise have at the auction. How should a court deal with that outcome? At one extreme, there might be a situation in which a sophisticated commercial borrower represented by counsel in the negotiation of a nonrecourse loan seeks the equitable remedy of rescinding the foreclosure because the property sold for $9,999,000.00 instead of $10,000,000.00. In this situation, it seems fair to conclude that the court should deny this relief. This is so, not because the lender's conduct did not have a negative impact on the price received (it did), and not because the negative impact was not caused by the lender (it was), but because the negative impact was not "material" in light of the circumstances-the borrower's nominal damages can easily be addressed at law and the equitable remedy sought is not necessary. 162 On the other hand, consider the situation in which the loan is fully recourse to the borrower and the chilling claim arises in a confirmation action. Materiality is particularly difficult to deal with in confirmation actions because, while the caselaw recognizes it on one side of the statutory confirmation test, it refuses to recognize it on the other. For starters, a plain reading of the confirmation statute suggests that confirmation must be denied the instant that the court concludes that the property did not bring in its true market value at the foreclosure sale 63 or the court concludes that the sale procedure was irregular. 164 But, as 162. See, e.g., Gordon v. S. Cent. Farm Credit, ACA, 446 S.E.2d 514, 515 (Ga. Ct. App. 1994) (noting that mere inadequacy of price is not sufficient in an action to set aside a foreclosure; rather, the price must be "grossly inadequate"). 163. See O.C.G.A. ยง 44-14-161(b) ("The court shall require evidence to show the true market value of the property sole under the powers and shall not confirm the sale unless it is satisfied that the property sold brought its true market value on such foreclosure sale."). 164. See O.C.G.A. ยง 44-14-161(c) ("[A]t the [confirmation] hearing the court shall also pass upon the legality of the notice, advertisement, and

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noted above, courts have at times combined the ostensibly clear elements of a confirmation action to water down the regularity prong of the test into a question of "whether the error [in sale procedure] contributed to chilling the price on the sale of the property. . . ."165 Why are courts garbling the seemingly clear elements of the confirmation statute? The answer is materiality. Indeed, the Georgia courts have a lengthy history of interpreting the confirmation statute so as to essentially change it from a two-pronged test in which both prongs are necessarythe property must bring its true market value and the sale must be procedurally proper-into a different test in which the property must bring its true market value, and the procedure must be close enough to procedurally proper that the true market value is not affected by the procedural errors in question.166 In other words, the caselaw establishes that notwithstanding the clear language of the statute, procedural errors are not grounds to deny confirmation unless the error was material. This reflects the fact that one cannot analyze chilling without analyzing causation, and it is difficult (if not regularity of the sale. The court may order a resale of the property for good cause shown."). 165. Oates v. Sea Island Bank, 322 S.E.2d 291, 293 (Ga. Ct. App. 1984). 166. See, e.g., id. See also, e.g., TKW Partners, LLC v. Archer Capital Fund, L.P., 691 S.E.2d 300, 302 (Ga. Ct. App. 2010) ("[N]ot every irregularity or deficiency at this point will void the sale."); Walker v. N.E. Prod. Credit Ass'n, 251 S.E.2d 92, 93 (Ga. Ct. App. 1978) ("[T]he court's inquiry should go only to the value of the real estate on the date of sale, [but] in the course of the examination . . . the fairness of the technical procedures may be examined, but only for the purpose of making sure the sale was not chilled and the price bid was in fact market value."); Shanta v. W. Ga. Nat'l Bank, 244 S.E.2d 643, 644-45 (Ga. Ct. App. 1978) ("[I]n any event the trial court in this confirmation sale is not concerned with whether or not the prior deed descriptions were sufficient so long as any error or insufficiency did not contribute to chilling the price on the sale of the property or serve to void the advertisement."); Keever v. Gen. Elec. Credit Corp. of Georgia., 234 S.E.2d 696, 698 (Ga. Ct. App. 1977) ("[T]he fact that a sale may have been conducted unfairly has no relevance under the confirmation statute unless the unfairness relates to any of the requirements set forth above, such as by chilling the bidding and thereby casting doubt on whether the sale price equaled or exceeded the true market value."); ALEXANDER, supra note 14, ยง 9-3(a), at 153 ("[A]ppellate courts have, on several occasions, stated that the primary issue is true market value, and that review of technical procedures is only for the purpose of making sure that the sale was not chilled and the price bid was in fact market value.") (quotations omitted).

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impossible) to fairly ask the causation question without also asking the materiality question. 167 While the confirmation caselaw openly recognizes materiality with respect to the procedural regularity aspect of confirmation, it refuses to do so with respect to the "true market value" aspect. Indeed, in Cartersville Developers LLC v. Georgia Bank & Trust, the Court of Appeals expressly overruled prior cases' language to the effect that confirmation should be granted so long as the price received at foreclosure did not "shock the judicial conscience."l 6 8 But the fact that the materiality analysis does not show up in the reported cases on true market value in confirmations does not mean that materiality analysis in this realm does not exist. Indeed, in confirmation actions the materiality analysis is doubtless occurring sub silentio with respect to true market value. Consider in this respect the "one-cent problem," a classic Georgia lender bugaboo. By the language of the confirmation statute, if the court finds that the sale price at foreclosure was even one cent below its true market value, confirmation is denied, the lender can obtain no deficiency judgment, and the court can even order the property to be re-foreclosed (leaving one to wonder what happens if the price obtained at the next foreclosure is even lower). 16 9 This seems an awfully harsh result if the "true market value" of the property was $10,000,000.00, the debt balance due was $25,000,000.00, but for whatever reason the sale price was in fact $9,999,999.99. The social costs of denying this lender its deficiency judgment seem to provide a windfall to the borrower who avoids having to live up to its contract by reason of the confirmation cliff 167. See Oates, 322 S.E.2d at 293 (holding typographical error in foreclosure advertisement did not constitute chilling); T.R. Shanta v. W. Ga. Nat'1 Bank, 244 S.E.2d 643, 644 (Ga. Ct. App. 1978) ("Nothing in the record suggests that the [erroneous] description contained in the [foreclosure] advertisement was void or that it was either so unclear or incomplete as to have the effect of chilling the sale."); see also Tarleton v. Griffin Fed. Say. Bank, 415 S.E.2d 4, 6 (Ga. Ct. App. 1992) (rejecting allegation that typographical error in foreclosure advertisement was defective because "an obvious printing or drafting error is harmless"). 168. Cartersville Developers, LLC v. Ga. Bank & Trust, 664 S.E.2d 783, 786 (Ga. Ct. App. 2008) (overruling Darby & Assoc. v. Fed. Dep. Ins. Corp., 232 S.E.2d 615 (Ga. Ct. App. 1977)). 169. See O.C.G.A. ยง 44-14-161.

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Instead of simply calling the price discrepancy effect. immaterial, courts have doubtless simply adjusted their "true market value" finding to obtain a fair result-a result that does not show up in the case reports. Even if the legislature truly intends for the harsh result of the "one-cent problem,"o7 0 that rule is not likely to be enforced in practice. First, the caselaw is not a model of clarity. Further, there is practically no appellate review over confirmation decisions due to the governing "some evidence" standard.17 1 Like proximate causation, materiality is a nebulous concept which is only understood when vague notions of fairness are applied to specific factual contexts. The fact that courts do not openly address the problem as regards "true market value" does not make the problem go away. The easy cases are not the ones where the issue is really troublesome. For example, suppose the hypothetical "one cent problem" arises in a situation where commercial debt is carveout nonrecourse, and where the borrower has committed obvious misconduct that triggers the recourse such as absconding with the rents from the property. Does anyone really doubt that the court will grant confirmation? But consider the harder cases. Suppose a situation in which the borrower is potentially liable on fully-recourse debt and the court believes that the price received is $1000.00 less than fair market value. Doesn't the nature of the facts matter to the court's analysis on this point? Should confirmation be denied if 170. See id Neither the statute nor its preamble sheds any real light on this question. 1935 Ga. Laws 381 describes the purpose of the statute as "to provide for confirmation of sales under foreclosure proceedings on real estate, to limit and abate deficiency judgments in suits and foreclosure proceedings on debts secured by mortgages, security deeds and other lien contracts on real estate, to provide for advertisement of foreclosure sales; and for other purposes." Id. It seems rather a stretch to argue that the stated purpose of "limit[ing] and abat[ing] deficiency judgments" (one of several stated purposes) means that a one-cent shortfall should have such a dramatic cliff effect. Id. 171. E.g., Oates, 322 S.E.2d at 293 ("There being some evidence to support the finding of the trial court on this issue, its determination will not be disturbed."); Walker v. Ne. Prod. Credit Ass'n, 251 S.E.2d 92, 93 (Ga. Ct. App. 1978) ("There being some evidence to support the finding of the trial judge on this issue his determination should not be disturbed by a reviewing court.").

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this is a commercial loan of $1,000,000.00 on an industrial warehouse? Should confirmation be granted if this is a residential loan of $100,000.00 on the borrower's primary residence? What if it is the borrower's third vacation home and the borrower has a history of abusing credit? 7 2 The point of all this is not to belabor the obvious-that judges, as human beings, consider facts which are not technically applicable to the precise legal question at handbut, it is to recognize that while facts animate legal principles, legal principles ought to recognize the facts which are animating them. It strains credulity to suggest that the "true market value" finding is in practice the on/off switch that it appears to be on its face, and when analyzing what it means to chill the bidding we should not be so constrained. Indeed, insofar as the definition of "true market value" is "the price that the property will bring when it is offered for sale by one who is not obligated, but has the desire to sell it, and is bought by one who wishes to buy it, but is not under a necessity to do so,"173 the notion is impliedly expressed. Are there not multiple possible prices at which a willing seller and a willing buyer might agree for any particular piece of property? and Cartersville While the confirmation statute 17 5 Developers present true market value as a binary proposition, courts are apt to balance harms, as the caselaw shows with 172. See O.C.G.A. ยง 44-14-161. Indeed, in this respect it is worth pointing out that the confirmation statute itself provides choices to the court. Id. It can deny confirmation outright, or can, for "good cause shown," order the property to be re-sold; after which, presumably, the lender may again seek confirmation. O.C.G.A. ยง 44-14-161(c). In choosing between these remedies and deciding what constitutes "good cause" for a resale, it stands to reason that the court will be considering (among other things) the materiality of the difference between the purported and court-determined true market values of the collateral as to whether the court will give the lender a second chance to generate a foreclosure value sufficient to permit confirmation. See id.; see also Resolution Trust Corp. v. Morrow Auto Ctr., Ltd., 454 S.E.2d 138, 140 (Ga. Ct. App.1995) ("[T]he statute does not define what constitutes 'good cause'

. . . Discretion to grant a resale is discretion to deny a resale.

There are special reasons that the issues of 'good cause' and resale are left to the 'considerable discretion' of the trial court . . . .") (citations omitted). 173. CartersvilleDevelopers, 664 S.E.2d at 785.

174. O.C.G.A. ยง 44-14-161. 175. CartersvilleDevelopers, 664 S.E.2d at 785.

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respect to the procedural regularity aspect of confirmation actions. In light of the tide of foreclosure cases 7 6 and the state of the caselaw, it would probably be better if that harmbalancing was done openly rather than surreptitiously with respect to the true market value finding as well. This is all the more true in light of the difficulty that appraisers-the key source of evidence as to "true market value" in confirmation actions-have had in establishing market values in a real estate environment in which perilously few non-distress sales have Materiality is the means by occurred over the past few years. which courts balance those harms, even if they do not (and cannot, after Cartersville Developers) admit to doin so in the confirmation context of finding "true market value."'

176. As this Article goes to press, Georgia ranks an ignominious fourth in the United States in foreclosure rate, with "[o]ne in every 355 households" in the state facing a foreclosure. States with the Highest Foreclosure Rates, CNBC.coM, http://www.cnbc.com/id/29655038/States With-the Highest ForeclosureR ates?slide=8 (last visited Dec. 15, 2011). 177. See, e.g., Russell Grantham, Change in Appraisals Causing Uproar, ATLANTA J.-CONST., Oct. 21, 2009, 3:25 AM, available at http://www.ajc.com/business/change-in-appraisals-causing-165905.html (last visited Dec. 15, 2011) ("Appraisers have a really hard job right now," [Univ. of Georgia professor Richard Martin] said. "There are so few sales."). 178. As an excellent example of the importance of materiality and the courts' general failure to openly discuss it, consider the recent case of Amirfazli v. VATACS Group, Inc., No. Al lAl 165, 2011 WL 2899686 (Ga. Ct. App. July 21, 2011). In Amirfazli, a debtor moved to set aside a foreclosure that occurred nearly fifteen years ago because, inter alia, the advertising party (and original creditor) sold the loan documents to VATACS Group a few days before the foreclosure and during the advertising period. Id. at *2. Citing Cummings v. Anderson (In re Cummings), 173 B.R. 959 (Bankr. N.D. Ga. 1994), the debtor contended that the wrong party conducted the foreclosure, and the trial court agreed, granting summary judgment in favor of the debtor. Id. at *2-3. But the Georgia Court of Appeals found In re Cummings distinguishable, noting that the record before it showed "that interested bidders and parties had notice of [VATACS'] involvement, despite the advertising error." Id. at *3. The appellate court therefore vacated the trial court's grant of summary judgment in favor of the debtor. Id. at *4. One wonders whether the result would be the same if, for example, these facts arose in a confirmation context and not in the context of seeking to set aside in 2011 a foreclosure that occurred in 1997.

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CONCLUSION

As the impact of the historic downturn in real estate continues to ripple out through the state, new caselaw is bound to arise. The unique fact patterns generated by the real estate transactions of the past twenty years-many driven by securitization and its associated requirements-will produce a variety of new reported cases that borrowers, lenders, loan servicers, and investors will need to digest. This is true in both the residential and commercial arenas. To foster the predictability that the real estate economy needs to heal, the courts and the General Assembly should provide a logical framework for market participants to judge what is and what is not permissible conduct when a lender exercises its foreclosure remedies. This article hopefully provides a step in that direction in its basic proposal that, absent a materiallynegative impact on the price received at the foreclosure sale which is causally attributable to the foreclosing lender, no Georgia power of sale foreclosure should be upended by the courts as having "chilled the bidding."

COMMENTS

THE WARRANTLESS SEARCH OF A CELL PHONE INCIDENT TO ARREST: ASKING THE UNITED STATES SUPREME COURT TO ANSWER THE CALL ON CONSTITUTIONALITY I.

INTRODUCTION

II.

THE COURT'S "CHECKERED" DOCTRINAL HISTORY OF THE SEARCH-INCIDENT-TO-ARREST EXCEPTION TO THE FOURTH AMENDMENT.....................................

III.

...........................................

154

Caselawfrom the Court FavoringLaw Enforcement Officers' Interest in Gathering Evidence Over an Individual'sRight to Privacy ..................... 155 Caselawfrom the Court Favoringan Individual's Right to Privacy Over Law Enforcement Officers' 158 Interest in GatheringEvidence ....................... The Court'sRecent Decision in Arizona v. Gant Places an Individual'sRight to PrivacyAbove Law .......... 161 Enforcement Interests in GatheringEvidence..

REASONS AND JUSTIFICATIONS FOR THE SPLIT IN CELL

PHONE CASES INVOLVING THE SEARCH-INCIDENT-TO....................................... ARREST EXCEPTION

A. B.

IV.

150

163

The Majority of Courts Permit the Warrantless Search of a Cell Phone Incident to Arrest..................... 164 The Minority of Courts Findthe Warrantless Search of a Cell Phone Incident to Arrest 170 ...................................... Unconstitutional

THE COURT SHOULD RULE THAT WARRANTLESS CELL PHONE SEARCHES INCIDENT TO ARREST ARE ....................................... UNCONSTITUTIONAL

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A Cell Phone is Not a Container Under the Court's Definition From New York v. Belton...... Allowing WarrantlessSearches Undermines the

[Vol. V ..... 173

Court's Decision in Arizona v. Gant..........................

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A Neutral and DetachedMagistrateis Necessary to Protect an Arrestee's FourthAmendment Right .............................. to Privacy .

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INTRODUCTION

On November 24, 2011, Sue Ellen ran in to her local grocery store. She was in a hurry to get back to her apartment because her friends and family would soon be showing up for her birthday dinner. Sue Ellen ran to the liquor aisle and quickly grabbed two bottles of wine. She was so excited that she almost made it to the cashier before she realized she had no way to pay for the wine. Sue Ellen had left her credit card on her dresser in her apartment after getting groceries the day before. She knew she would never make it home and back before her friends and family arrived. Thinking that no one was looking, and that no one would miss two bottles of wine, she placed the wine bottles in her purse and left the store without paying for them. Once outside, Sue Ellen walked quickly toward her car. She opened the door and placed her purse in the passenger seat. Unfortunately for Sue Ellen, Officers Thompson and Cook observed this entire scene from their patrol car parked just outside the store's window front. Officer Thompson asked Sue Ellen to step out of her car and arrested her for shoplifting. He handcuffed her and placed her in the back of the patrol car. Officer Cook searched Sue Ellen's purse and removed the two bottles of wine. For whatever reason, Officer Cook continued to search through the purse and found two prescription bottles for Xanax and Oxycontin. He also found Sue Ellen's cell phone. Officer Cook was what some might call "technologically handicapped," so it took him awhile to figure out how to operate Sue Ellen's cell phone. After fumbling through pictures of Sue Ellen and her boyfriend, bank statement emails, and doctor appointment reminders, Officer

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Cook ran across a text message conversation between Sue Ellen and someone named "Trent." Trent's text to Sue Ellen was "U got any Xan 2day?", to which Sue Ellen had responded "5 for 4." After consulting with Officer Thompson, who was more up to date on the language of texting, Officer Cook concluded that Sue Ellen was attempting to sell prescription drugs illegally, and added possession with intent to distribute to her shoplifting charge. When Sue Ellen's case got to trial, she attempted to suppress the text messages found in her cell phone on the grounds that the evidence was discovered through a warrantless, unconstitutional search in violation of her Fourth Amendment right against unreasonable searches and seizures. She argued that once the two wine bottles were removed from her purse, there was no reason for the officers to continue the search, as the officers had the evidence related to the arrest. Her motion to suppress was denied. The court reasoned that the search was conducted incident to Sue Ellen's lawful arrest. Furthermore, the court found that Sue Ellen's cell phone was a container that could be searched without a warrant because the officers believed it had evidence related to the arrest. This story is not purely hypothetical; it is happening within the state of Georgia and across the country. In fact, this account is loosely based on a true story published in the Augusta Chronicle earlier this year.' The general requirement under the Fourth Amendment is that an individual's right to be free from unreasonable searches will not be violated without a detailed warrant based on probable cause.2 The purpose behind this requirement is to protect an individual's right to privacy against unreasonable searches and seizures. 3 A detached and neutral magistrate issues a warrant enabling the search to ensure that this right is protected. Although the United States Supreme Court ("the Court") has set out some exceptions, the Court has continuously held that these exceptions are to be few in number and specifically delineated.4

1. Kyle Martin, Police access to cell phones up for debate, THE AUGUSTA CHRONICLE, Jan. 31, 2011, at NEWS. 2. U.S. CONST. amend. IV. 3. See Katz v. United States, 389 U.S. 347 (1967). 4. Id. at 351.

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One example of these exceptions is the search-incident-toarrest, in which an officer may search the arrestee and the area within the arrestee's immediate control in order to secure the officer's safety and preserve any destructible evidence related to the arrest.5 When the arrestee is in an automobile, the officer may search the passenger compartment, and any containers therein, but the search is limited in scope to ensure the arresting officer's safety and preserve evidence related to the arrest. 6 The Court defines "container" as an object capable of holding another object, such as a purse or briefcase.7 Based on the Court's definition, and the limited scope of a constitutionally permitted search-incident-to-arrest, it appears that Sue Ellen's text messages should have been suppressed. The officers searched her person and the area within her immediate control for their safety. But what evidence related to shoplifting could have been discovered in her cell phone? Should the decision to search Sue Ellen's cell phone have been left up to the discretion of Officer Cook, whose ultimate goal is to fight crime? Does a cell phone even qualify as a "container" that can be searched? Federal and state courts in Georgia have generally answered these questions, resulting in Georgia being one of many states that support the warrantless search of cell phones incident to arrest.8 The Georgia courts' rationale is that, while a cell phone holds vast amounts of private information, it is a container nonetheless and can be searched without a warrant if the arresting officer believes the cell phone contains evidence related to the arrest.9 In Georgia specifically, the scope of the search is left up to the sole discretion of the arresting officer. 10 A small minority of states oppose this rationale, finding that a cell phone is not a container because it is not an object that can hold another physical object." The minority reasons that a cell 5. Chimel v. California, 395 U.S. 752, 762-63 (1969). 6. Arizona v. Gant, 129 S. Ct. 1710, 1723-24 (2009). 7. New York v. Belton, 453 U.S. 454, 460 n.4 (1981). 8. See, e.g., Hawkins v. State, 704 S.E.2d 886, 889 (2010); United States v. Cole, No. 1:09-CR-0412-ODE-RGV, 2010 WL 3210963, at *1 (N.D. Ga., Aug 11, 2010); United States v. McCray, No. CR408-231, 2009 WL 29607, at *1 (S.D. Ga., Jan. 5, 2009). 9. Id. 10. Id. 11. See, e.g., State v. Smith, 920 N.E.2d 949, 954 (Ohio 2009).

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phone does not fit into any category previously defined by any court because of its unique functionality and emergin technology.12 A cell phone is more advanced than a beeper, holds more information than an address book,14 yet is not as fully functional as a laptop computer.' 5 The minority also finds that because of the large amount of private and personal data a cell phone can store (such as emails, text messages, doctor appointment reminders, pictures, videos, and voicemails), an individual's expectation of privacy is higher than it would be with regard to a simple container. In fact, in another context, the Court has recently held that "[c]ell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification."' 7 This Comment will attempt to show that the rationale applied by the minority of states is correct. An exception to the warrant requirement of the Fourth Amendment should remain just that-an exception. Although the Supreme Court has not yet ruled on this issue, the Court's recent decision in Arizona v. Gant reinforces the idea that an individual's right to privacy is of the utmost importance.1 Once an officer determines that a cell phone may contain evidence related to the arrest, the officer may seize the phone, but the officer should be required to obtain a search warrant from a detached and neutral magistrate in order to search the contents of the phone. This solution upholds the dual rationale of the search-incident-to-arrest exception provided by the Court (officer safety and evidence preservation), and simultaneously protects the arrestee's right to be free from warrantless, unreasonable searches. 12. Id. 13. See Bryan Andrew Stillwagon, Bringing an End to Warrantless Cell

Phone Searches, 42 GA. L. REv. 1165, 1201 (2008). An in-depth discussion of the technology and caselaw surrounding pagers and cell phones prior to the United States Supreme Court's decision in Arizona v. Gant can be found in Mr. Stillwagon's Note. 14. United States v. Park, No. CR 05-375 SI, 2007 WL 1521573, at *8 (N.D. Cal., May 23, 2007). 15. See Stillwagon, supra, note 13. 16. Id. 17. City of Ontario, Cal. v. Quon, 130 S. Ct. 2619, 2630 (2010). 18. Arizona v. Gant, 129 S. Ct. 1710, 1720 (2009).

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Part II of this Comment discusses the Court's "checkered [doctrinal] history of the search-incident-to-arrest exception"1 9 to the warrant requirement of the Fourth Amendment. Most recently, the Court has re-emphasized the rationale behind reinforcing an individual's right to privacy. 20 Part III analyzes the various reasons the federal circuits and state appellate courts have split on whether to allow the warrantless search of a cell phone incident to arrest. Part IV offers support as to why the minority is correct in its decisions, holding that the warrantless search of a cell phone incident to arrest is unconstitutional. This Comment concludes by asking the Court to rule on this issue and hold that an officer may seize a cell phone incident to arrest, but must obtain a search warrant to search the phone's contents. II. THE COURT'S "CHECKERED" DOCTRINAL HISTORY OF THE SEARCH-INCIDENT-TO-ARREST EXCEPTION TO THE FOURTH AMENDMENT The Fourth Amendment to the United States Constitution provides: 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.2 1 At first glance, this right appears to be absolute. Even the Court has held that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se

unreasonable under the Fourth Amendment-subject only to a few specifically established and well delineated exceptions."2 2 However those "few" exceptions are not so limited in

number.21

19. Id. 20. Id. at 1723. 21. U.S. CONST. amend. IV. 22. Katz v. United States, 389 U.S. 347, 351 (1967). 23. See generally Coolidge v. New Hampshire, 403 U.S. 443 (1971) (plain view exception); Weeks v. United States, 232 U.S. 383 (1914) (search-

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Arguably, one of the most problematic exceptions to the Fourth Amendment warrant requirement is the search-incidentto-arrest exception. Throughout the history of the exception, the Court has swayed in its decisions between furthering the protection of an individual's right to privacy, on the one hand, and promoting law enforcement officers' interest in fighting crime on the other. The following sections address the Court's precedents on both sides of the argument. A. Caselawfrom the Court FavoringLaw Enforcement Officers'Interestin GatheringEvidence Over an Individual's Right to Privacy

In 1914, the Court first referenced the search-incident-toarrest exception in dictum in Weeks v. United States.24In narrowing the issue before the Court, Justice Day stated that the case was "not [about] an assertion of the right on the part of the government always recognized under English and American law, to search the person of the accused when legally arrested, to discover and seize the fruits or evidence of crime. This right This has been uniformly maintained in many cases."2 5 statement makes clear that the arresting officer's right to search the person is without contestation. In further expanding the "few" exceptions to the warrant requirement of the Fourth Amendment, the Court identified the automobile exception in 1925 in Carrollv. UnitedStates.26 The incident-to-arrest exception); Illinois v. Lafayette, 462 U.S. 640 (1983) (booking exception); Carroll v. United States, 267 U.S. 132 (1925) (automobile exception); McDonald v. United States, 335 U.S. 451 (1948) (exigent circumstances); Terry v. Ohio, 392 U.S. 1 (1968) (stop and frisk exception); Coolidge v. New Hampshire, 403 U.S. 443 (1971) (plain view exception); United States v. Davis, 482 F.2d 83 (1973) (airport and airline exception); Colorado v. Bertine, 479 U.S. 367 (1987) (inventory exception); Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (consent exception); New York v. Burger, 482 U.S. 691 (1987) (administrative exception); Terry v. Ohio, 392 U.S. 1 (1968) (stop and frisk exception); Griffin v. Wisconsin, 483 U.S. 868 (1987) (probation and parole exception); United States v. Davis, 482 F.2d 83 (1973) (airport and airline exception); United States v. FloresMontano, 541 U.S. 149 (2004) (border exception); McDonald v. United States, 335 U.S. 451 (1948) (exigent circumstances). 24. 232 U.S. at 392 (discussed in Chimel, 395 U.S. at 755). 25. Id. 26. Carroll,267 U.S. at 132.

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Court examined several statutes and interpreted the Fourth Amendment to allow the warrantless search of a "ship, motor boat, wagon, or automobile for contraband goods ...

because

the vehicle [could] be quickly moved out of the locality or jurisdiction in which the warrant must be sought."2 7 In part, the Court allowed the exception based on the mobility of a vehicle and the difficulty of obtaining a search warrant quickly, but not a lesser Fourth Amendment protection. The Court also stated that "[i]t would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor, and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search." 2 8 Apparently, the Court was emphasizing that this exception should be used sparingly, so as to protect an individual's right to be free from unreasonable searches and seizures. In Chimel v. California, decided in 1969, Justice Stewart further addressed the search-incident-to-arrest exception. 2 9 The Court identified only two reasonable circumstances from its own precedential history that might have given rise to this exception: When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape.

. .

. [I]t is entirely reasonable for

the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. . . . There is ample

justification, therefore, for a search of the arrestee's person and the area within his immediate control ... mean[ing] the

area from within which he might gain possession of a weapon or destructible evidence. In United States v. Robinson, decided in 1973, the Court stated that the first proposition (searching the person of the

27. Id. at 153. 28. Id. at 153-54. 29. Chimel v. California, 395 U.S. 752, 752 (1969). 30. Id. at 762-63 (internal citations omitted).

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arrestee) had "remained virtually unchallenged," 3 but the precise definition of "immediate control" was subject to interpretation. 3 2 In Robinson, the defendant conceded that the officer had probable cause to arrest him for driving without a license. 33 The officer executed a full custody arrest and discovered a crumpled cigarette package in Robinson's coat pocket. 34 The officer stated that he could feel objects in the package that were not cigarettes and when he opened the package, he found fourteen capsules of white powder he believed to be heroin.3 5 Even though Robinson conceded to the probable cause, the Court analyzed the case as a searchincident-to-arrest.36 The Court held the officer conducted a lawful search and was entitled to inspect the package, based upon the need to disarm the arrestee and discover evidence. 37 In United States v. Edwards, decided in 1974, the Court held

that the seizure of the arrestee's clothes the morning after the arrest did not violate his Fourth Amendment right because no substitute clothing was available at the time of his arrest. 38 31. United States v. Robinson, 414 U.S. 218, 224 (1973). 32. Id. at 224. 33. Id. at 220-21. The officer had previously checked Robinson's operator's permit four days earlier and determined that Robinson was operating the vehicle with a revoked license. Id. at 220. In a footnote, the Court acknowledges an original dispute in the facts from the Court of Appeals: Counsel for respondent on appeal stressed that respondent had a record of two prior narcotics convictions, and suggested the Officer Jenks may have been aware of that record through his investigation of criminal records, while Jenks was checking out the discrepancies in the birthdates on the operator's permit and on the Selective Service card . . . . Respondent argued below that Jenks may have

used the subsequent traffic violation arrest as a mere pretext for a narcotics search which would not have been allowed by a neutral magistrate had Jenks sought a warrant. Id. at 221 n.1. 34. Id. at 222-23. 35. Id. at 223. 36. Id. at 220-21. 37. Id. at 235-36. 38. United States v. Edwards, 415 U.S. 800, 802, 805 (1974). [O]nce a defendant is lawfully arrested and is in custody, the effects in his possession at the place of detention that were subject to search

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Seizing the clothes was normal procedure, so the arresting process was not yet complete and the search-incident-to-arrest was permitted to continue through the following day.3 9 This decision expanded the scope of the exception immensely, holding that a search-incident-to-arrest can continue until the officers decide to complete the arresting process. In New York v. Belton, decided in 1981, the Court attempted to lay out a bright-line rule that would assist officers in understanding what constitutes "the area within the immediate control of the arrestee." 4 0 The Court ruled that "articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within the area into which an arrestee might reach in order to The Court also grab a weapon or evidentiary item." 4 announced that any containers found in the passenger compartment may be searched as well.4 2 The Court defined "container" in a footnote as "any object capable of holding another object

. . . includ[ing]

closed

or open glove

compartments, consoles, or other receptacles located anywhere within the passenger compartment, as well as luggage, boxes, bags, clothing, and the like." 43 B. Caselawfrom the Court Favoringan Individual'sRight to Privacy Over Law Enforcement Officers'Interestin Gathering Evidence Although Katz v. United States, decided in 1967, does not

specifically pertain to the search-incident-to-arrest exception, the Court reinforced an individual's right to privacy under the Fourth Amendment, exemplified by the oft-quoted phrase:

at the time and place of his arrest may lawfully be searched and seized without a warrant even though a substantial period of time has elapsed between the arrest and subsequent administrative processing, on the one hand, and the taking of the property for use as evidence, on the other. Id. at 807. 39. Id. 40. New York v. Belton, 453 U.S. 454, 460 (1981). 41. Id. at 460. 42. Id. 43. Id. at 460 n.4.

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"[flor the Fourth Amendment protects people, not places." 44 The Court held that the government violated Katz's constitutional rights by recording his telephone conversations in a public phone booth using a wiretap without a search warrant. 45 The Court acknowledged that the officers acted with selfrestraint.46 Nonetheless, speaking for the majority, Justice Stewart stated that without the safeguards of a probable cause presentation or seizure notification to a magistrate, "this Court has never sustained a search upon the sole ground that officers reasonably expected to find evidence of a particular crime and voluntarily confined their activities to the least intrusive means consistent with that end." 4 7 Justice Stewart further emphasized the importance of the warrant requirement when he stated, "the Constitution requires the deliberate, impartial judgment of a judicial officer be interposed between the citizen and the police. In his concurrence, Justice Douglas laid out a two-part inquiry (which the Court now follows) when determining whether or not a search is considered "reasonable" under the Fourth Amendment: (1) Did the person exhibit an actual, subjective expectation of privacy?; and (2) Is that expectation one that society is prepared to uphold as reasonable? 4 In deciding Katz, it appears the Court focused on the fact that, had the officers attempted to obtain a search warrant, the request would have been granted and the search would have been constitutional; however, the decision to issue the search warrant should have been left to the magistrate.5 0 Therefore, the search was unconstitutional. 51 In United States v. Chadwick, decided in 1977, the Court

reaffirmed the privacy interest underlying the Fourth Amendment by explaining that "a fundamental purpose of the Fourth Amendment is to safeguard individuals from

44. Katz v. United States, 389 U.S. 347, 351 (1967). 45. Id. at 353. 46. Id. at 356. 47. Id. at 356-57 (emphasis added).

48. Id. at 357 (internal citations omitted). 49. Id. at 361 (Douglas, J., concurring). 50. Id. at 354. 51. Id at 359.

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unreasonable government invasions of legitimate privacy interests, and not simply those interests found inside the four walls of the home." 52 In Chadwick, officers seized a footlocker from the defendants after they suspected it contained marijuana.5 3 The defendants were arrested and the footlocker was removed from their reach. 5 The Court held that searching a locked footlocker after it was removed from the presence of the arrestees was invalid without a search warrant5 5 because "[u]nlike an automobile, whose primary function is transportation, luggage is intended as a repository of personal effects."5 6 The officers had facilities that were readily available to store the footlocker, so there was no reason to conduct the immediate search: 5 7 When no exigency is shown to support the need for an immediate search, the Warrant Clause places the line at the point where the property to be searched comes under the exclusive dominion of police authority. Respondents were therefore entitled to the protection of the Warrant Clause with the evaluation of a neutral magistrate, before their privacy interest in the contents of the footlocker were invaded. Furthermore, the Court distinguished between searches of the person and searches of possessions within an arrestee's The Court held that "searches of immediate control. 59 possessions within an arrestee's immediate control cannot be justified by any reduced expectations of privacy caused by the arrest. Respondents' privacy interest in the contents of the footlocker was not eliminated simply because they were under arrest." 60 Steagald v. United States, decided in 1981, is another case

52. United States v. Chadwick, 433 U.S. 1, 11 (1977) (internal citations omitted). 53. Id. at 4. 54. Id. 55. Id. at 15-16. 56. Id. at 13. 57. Id. at 4. 58. Id. at 15-16. 59. Id. at 14.

60. Id. at 16.

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that is not specifically about the search-incident-to-arrest exception, but the Court's language again emphasized the importance of an individual's right to be free from unreasonable searches and seizures. 6 1 The Court stated that "an officer engaged in the often competitive enterprise of ferreting out crime may lack sufficient objectivity to weigh correctly the strength of the evidence supporting the contemplated action against the individual's interests in protecting his own liberty and the privacy of his home." 62 Officers searched the defendant's home pursuant to an arrest warrant, but without the authority of a search warrant, believing that the arrest warrant was enough to justify the search.63 The Court held that "[r]egardless of how reasonable this belief might have been, it was never subjected to the detached scrutiny of a judicial officer," 64 and that "[a]ny warrant requirement impedes to some extent the vigor with which the Government can seek to enforce its laws, yet the Fourth Amendment recognizes that this restraint is necessary in some cases to protect against unreasonable searches and seizures."6 5 C. The Court's Recent Decision in Arizona v. Gant Places an Individual'sRight to PrivacyAbove Law Enforcement Interests in GatheringEvidence

After Belton was decided in 1981, the issue of whether the passenger compartment of a vehicle could be searched was closed, but the federal circuits were split as to when the compartment could be searched.6 6 A majority of the federal circuits held that the compartment could be searched at any time incident to an arrest, "even if there [was] no possibility the arrestee could gain access to the vehicle at the time of the search.",67 The minority of the federal circuits offered more constitutional protection than the Court supplied in Belton,

61. Steagald v. United States, 451 U.S. 204, 222 (1981). 62.Id. at 212. 63. Id. at 215-16. 64. Id. at 213. 65. Id. at 222.

66. Arizona v. Gant, 129 S. Ct. 1710, 1718 (2009). 67. Id. The majority included the 1st, 2nd, 3rd, 4th, 8th, and 11th Circuit Courts of Appeals. Id. at 1718 n.2.

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holding that the passenger compartment could only be searched when the arrestee was within reaching distance of that compartment and might gain access to weapons or destructible evidence.6 8 This split continued until 2009, when the Court decided Arizona v. Gant and acknowledged that the majority of the federal circuits' interpretations of Belton were much broader than the Court originally intended. 6 9 The Court revisited Chimel, reiterating that "[i]f there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the search-incident-toarrest exception are absent and the rule does not apply."7 0 The Court clarified its holding in Belton by stating that police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of the arrest.71 As the Court stated: "[a]lthough we have recognized that a motorist's privacy interest in his vehicle is less substantial than in his home, the former interest is nevertheless important The Court and deserving of constitutional protection." 72 continued: It is particularly significant that Belton searches authorize police officers to search not just the passenger compartment but every purse, briefcase, and other container within that space. A rule that gives police the power to conduct such a search whenever an individual is caught committing a traffic offense, when there is no basis for believing evidence of the offense might be found in the vehicle, creates a serious and recurring threat to the privacy of countless individuals. Indeed, the character of that threat implicates the central concern underlying the Fourth Amendment-the concern about giving police officers unbridleddiscretion to rummage at will among a person'sprivate effects. 73 68. United States v. Green, 324 F.3d 375, 378-79 (5th Cir. 2003). 69. Gant, 129 S. Ct. at 1719. 70. Id. at 1716. 71. Id. at 1723-24. 72. Id. at 1720. (internal citations omitted). 73. Id. (emphasis added). The Court acknowledged that a minority of states (Arizona, Vermont, New Jersey, New Mexico, Nevada, Pennsylvania,

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The holding in Gant appears to show that the Court has swung back in the direction of upholding an individual's right to privacy. The Court also discussed the "checkered history of the search-incident-to-arrest exception." 74 Revisiting the Court's jurisprudence, Justice Stevens confirmed that Chimel established "the present boundaries of the search-incident-toarrest exception. Notably, none of the dissenters in Chimel or the cases that preceded it argued that law enforcement reliance interests outweighed the interest in protecting individual

constitutionalrights so as to warrant fidelity to an unjustifiable rule." Perhaps intentionally, the Court did not further define or clarify "container" beyond the definition provided in 1981 in Belton.76 In doing so, the Court did not change or overrule the definition of a container, which means the original definitionan object capable of holding another object still stands. Furthermore, the Court reemphasized the importance of narrowing and limiting the exceptions to the warrant requirement of the Fourth Amendment. III. REASONS AND JUSTIFICATIONS FOR THE SPLIT IN CELL PHONE CASES INVOLVING THE SEARCH-INCIDENT-TO-ARREST EXCEPTION

Since the Gant decision was issued, states and jurisdictions have differed on whether a cell phone may be searched incident to arrest, similar to the way the circuits split after Belton. Because of the Court's admittedly "checkered history" regarding this exception, the varying states and jurisdictions provide a variety of reasons for their decisions. This Part attempts to flesh out those reasons and distinctions.

New York, Oregon, and Wyoming) upheld the narrower reading of Belton that the Court upheld in Gant. Id. 74. Id. at 1723. 75. Id. (emphasis added). 76. New York v. Belton, 453 U.S. 454, 460 n.4.

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A. The Majority of Courts Permit the Warrantless Search of a Cell Phone Incident to Arrest The majority of courts follow the Fifth Circuit's holding in United States v. Finley, decided in 2007.77 Police officers pulled Finley over after he drove another individual to a drug deal.7 8 Finley was arrested after officers searched his van and discovered a white-capped bottle with methamphetamine residue in it. 79 The officers also searched Finley's person and seized his cell phone.s0 Finley and his acquaintance were taken to the latter's home, where Drug Enforcement Agency ("DEA") agents were executing a search pursuant to a warrant. At that time, one of the DEA agents searched through Finley's cell phone, looking through call records and text messages.8 2 Several of the text messages appeared to be related to drug use and trafficking. 8 3 Finley was charged and eventually convicted of possession with intent to distribute methamphetamine. 84 Finley appealed to the Fifth Circuit, which ultimately affirmed his conviction.8 5 Finley argued that the officers were required to obtain a warrant because, as he conceded, his cell phone is analogous to a closed container, so the officers had no authority to search the contents of his cell phone.8 6 The Fifth Circuit held that the officers engaged in a permissible search which extended to containers found on the arrestee's person. The court cited Belton (and its own caselaw that relied on

77. United States v. Finley, 477 F.3d 250 (5th Cir. 2007). See e.g., United States v. Curtis, 635 F.3d 704, 712 (5th Cir. 2011) (finding that "[t]he Fourth, Seventh, and Tenth Circuits have reached the same conclusion on similar facts."). 78. Finley, 477 F.3d at 253-54. 79. Id. at 254. 80. Id. 8 1. Id. 82. Id. 83. Id. For example, one text message read "So u wanna get some frozen agua[?]" Id. at 254 n.2. The agent "testified that 'frozen agua' likely referred to 'ice,' a common term for methamphetamine." Id. 84. Id. at 255. 85. Id. at 253, 255. 86. Id at 260 (emphasis added). 87. Id.

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Belton) for this proposition. The Fifth Circuit also held the search to be lawful because it was incident to arrest and the cell phone was on his person at that time. 8 9 The court did not discuss whether the decision would have been different had Finley not conceded that his cell phone was analogous to a container. The majority of courts have since followed the Finley decision, citing to the Fifth Circuit as "finding" that a cell phone is considered a container, including both the Northern and Southern Districts of Georgia. 9 0 Neither of these district courts acknowledges that Finley conceded his cell phone was a container. In United States v. McCray, decided in 2009, the defendant was arrested for illegal drug possession after police found McCray in his car with his 14-year-old girlfriend, J.W.. 9 1 After the arrest, McCray's truck was inventoried, as required by [local police department] policy. Officer Pittman found a Polaroid photograph of a naked adult female and showed it to [Officer] Balmer. Upon seeing the picture, it occurred to Balmer that McCray might have used the camera feature of his mobile phone to take photos of J.W. that had evidentiary value. In addition he believed there may be indicia of drug dealing stored on the phone, as he was aware that drug dealers regularly take pictures of their drugs, weapons, and case proceeds. The court upheld the search by citing a laundry list of cases from various districts that upheld warrantless cell phone searches for varying reasons.9 3 In fact, the court quoted one commentator who said: "the lower courts have deemed evidentiary searches of an arrested person to be virtually unlimited."9 4 Besides citing to other cases, the court did not

88. Id.; Arizona v. Gant, 129 S. Ct. 1710, 1720 (2009). 89. Finley, 477 F.3d at 260. 90. United States v. Cole, No. 1:09-CR-0412-ODE-RGV, 2010 WL 3210963, at *1 (N.D. Ga.); United States v. McCray, No. CR408-231, 2009 WL 29607, at *1 (S.D. Ga.). 91. McCray, 2009 WL 29607, at *1. 92. Id. at *2 (emphasis added). 93. Id. at *2-3. 94. Id. at *2 (emphasis added).

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provide any reason why the warrantless search of McCray's cell phone was constitutional. The court also cited to Finley as saying "the permissible scope of a search incident to a lawful arrest extends to containers found on an arrestee's person." 95 The court added that a "cell phone, like a beeper, is an electronic 'container,' in that it stores information that may have great evidentiary value and that might easily be destroyed or corrupted." 96 The court further held that "a mobile phone or beeper may be briefly inspected to see if it contains evidence relevant to the charge for which the defendant has been arrested."97 The court also noted, but only in a footnote, that because Officer Balmer only "briefly inspected" the defendant's phone, the court did not need to decide if and when a cell phone could be subject to a more comprehensive search-incident-to-arrest.98 Apparently, the court left the scope and length of the search to the discretion of the arresting officer without the assistance of a detached and neutral magistrate. McCray was arrested for drug possession of two rocks of cocaine, which the officers had taken into their custody, yet the officer continued to search through McCray's phone for evidence related to his minor girlfriend and/or drug dealing. 99 This does not necessarily follow the dual rationale for the search-incident-to-arrest exception that the Court upheld in Gant: allowing officers to search for evidence pertainingto the arrest. It appears the court found that possession of two rocks of cocaine was not enough evidence for an arrest of illegal drug possession, so the search was justified by the officer's reasonable belief that McCray's cell phone contained further evidence of his illegal drug possession. The Northern District of Georgia also follows the majority and permits warrantless searches of cell phones. 0o In United

95. Id. at *4 (quoting United States v. Finley, 477 F.3d 250, 260 (5th Cir. 2007)). 96. Id. 97. Id. (emphasis added). 98. Id. at 4n.4. 99. Id. at *1-2. 100. United States v. Cole, No. 1:09-CR-0412-ODE-RGV, 2010 WL 3210963, at *1 (N.D. Ga.).

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States v. Cole, decided in 2010, the defendant was arrested for possession of marijuana.' 0 ' The arresting officers searched Cole's vehicle (after spotting baggies of marijuana when Cole was initially stopped) and found large amounts of cash, guns, and various cell phones. 102 After Cole was transported back to police headquarters, placed in an interview room, and questioned by a DEA agent, officers searched through Cole's The court upheld the search, stating that cell phone. 1 "probable cause exist[ed] to believe that the container [held] evidence of a crime either at the time of the arrest or at some The cell phone was considered "a point thereafter."'0 4 container, for purposes of the automobile exception, in that it contained information-recent calls, contacts' telephone numbers, and so forth-not readily apparent without manipulating the cell phone itself."10 5 The court attempted to distinguish this "automobile exception" from other searchincident-to-arrest cases, suggesting there may be a difference, but utilized caselaw and arguments from search-incident-toarrest precedents.1 0 6 As a matter of first impression, the Georgia Court of Appeals recently decided in 2010 that the warrantless search of a cell phone incident to arrest is not unconstitutional. 107 In Hawkins v. State, the defendant was arrested for unlawfully attempting to purchase a controlled substance. 08 Hawkins apparently thought she was texting a friend, when in fact she was sending text messages to a police officer, looking to purchase illegal drugs.T9 The friend's mother had called the police, who took possession of the phone and was communicating with Hawkins." 0 After the officer and Hawkins arranged a place to meet, the officer saw Hawkins pull into the parking lot of the

101. Id. at *2. 102. Id. 103. Id. at *2-3. 104. Id. at *17.

105. Id. 106. Id. n.24. 107. Hawkins v. State, 704 S.E.2d 886, 890-91 (Ga. Ct. App. 2010). 108. Id. at 888. 109. Id. 110. Id.

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designated restaurant."' The officer approached Hawkins in her vehicle and arrested her.112 Hawkins not only admitted to the officer that she had sent the incriminating text messa es, but The she consented to the officer searching her vehicle." of it.114 officer found Hawkins' purse and her cell phone inside The officer continued to search through her text messages, Hawkins argued that the downloaded, and printed them. warrantless search of her cell phone was unconstitutional and the text messages should be suppressed, but the trial court

disagreed.116 The Georgia Court of Appeals affirmed that the warrantless search of Hawkins' cell phone was permissible. 117 The court found that the cell phone was equivalent to an electronic container, which is capable of holding an infinite amount of data." 8 The court also acknowledged that cell phones may have personal, private, and perhaps even privileged information.119 In fact, the court stated "cell phones, that frequently are transported in vehicles-often will contain the most sensitive kinds of personal information, in which individuals may

reasonably have a substantial expectation of privacy and for which the law offers heightened protection."l2 The court also acknowledged that Georgia law exempts private papers from the coverage of a search warrant, but concluded that the information on a cell phone is not considered private papers.121 Ironically, the court's solution to this conundrum was to allow an officer to search a cell phone incident to arrest, but the officer should limit his search "as is reasonably practicable by

111. Id.

112. Id.at 888-89. 113. Id. at 889. 114. Id. 115. Id. 116. Id.at 889-90. 117. Id. at 888. 118. Id.at 891. 119. Id.

Id. (emphasis added). 121. Id. Private papers include diaries, personal letters, and similar documents wherein the author's personal thoughts are recorded. Id. (internal citations omitted). 120.

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In a footnote, the court stated:

By requiring that searches of electronic data be limited in this way, we give adequate guidance, we think, to law enforcement officers and judges. Although this approach admittedly requires a fact-specific assessment in each case of the reasonable scope of the search at issue, that is something with which both police officers and judges are accustomed to dealing . . . . We also think that this approach keeps faith

with the Fourth Amendment's prohibition of general and exploratory searches and addresses much of the potential mischief about which the dissent is concerned. We too would worry if officers were permitted without good cause or reason to rummage through all the data stored on a cell phone without limitation. But we sanction no such thing today, and we think our approach is adequate to prevent any such practice.123 While the outcome of this case is not concerning, as Hawkins' cell phone certainly did have evidence related to her arrest, the court's decision to allow officers to have sole discretion in determining the scope of the search is deserving of concern. As such, both the federal and state jurisdictions in Georgia permit warrantless searches of cell phones incident to an arrest. This appears to follow the majority of jurisdictions across the country that has ruled on this issue.124 In May 2011, Hawkins was granted certiorari from the Georgia Supreme Court, so the highest court in Georgia will soon rule on whether the warrantless search of a cell phone incident to arrest is permissible. 125

122. Id. 123. Id. at

892. (emphasis added). 124. Id. at 894. The court lists some of the jurisdictions that allow a warrantless search of a cell phone incident to arrest: 10th, 5th, and 7th circuits, and federal districts in Northern Georgia, Southern Georgia, Eastern Texas, Eastern Missouri, Western Virginia, Northern Illinois, Arizona, Kansas, and Northern California. Id. at 261 n.7. 125. Docket of the Supreme Court of Georgia, available at http://www.gasupreme.us/docket search/results one_record.php?caseNumb er-Si 1G0644 (last visited Dec. 16, 2011). At the time of publication, a decision from the Georgia Supreme Court was still pending. Id.

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B. The Minority of Courts Findthe Warrantless Search of a Cell Phone Incident to Arrest Unconstitutional The minority of courts find that an officer may not search a cell phone incident to arrest because it violates an individual's right to be free from unreasonable searches and seizures.1 26 One leading case that discusses the minority view is United States v. Park, decided in 2007.127 Defendant Park, along with a few of his friends, was arrested for, inter alia, possession of marijuana. 12 8 Park and the other defendants were taken to the police station for booking. 129 At that time, their cell phones were taken and placed into envelopes for safekeeping. 130 Sometime later, the cell phones were searched for any evidence that may have been relevant to the investigation. 13 1 The officers took down telephone numbers from the call history in each

defendant's cell phone.13 2 At trial, the defendants moved to suppress the warrantless The court reiterated the search of their cell phones.133 distinction between "searches of the person" and "searches of possessions within an arrestee's control" from the Court's holding in Chadwick.134 The court held that "possessions within an arrestee's immediate control have fourth amendment protections at the station house unless the possession can be characterized as an element of the clothing . . . ,135 and that "[u]nlike pagers or address books, modem cell phones record incoming and outgoing calls, and can also contain address books, calendars, voice and text messages, email, video and

pictures."

126. See, e.g., United States v. Wall, No. 08-60016-CR, 2008 WL 5381412, at *1 (S.D. Fla.); United States v. Park, No. CR 05-375 SI, 2007 WL 1521573, at *1 (N.D. Cal., May 23, 2007). 127. Park,2007 WL 1521573, at *8. 128. Id. at *2. 129. Id. 130. Id. 131. Id. at *3. 132. Id. at *3-4. 133. Id. at *5.

134. Id. at *6. 135. Id. at *7. 136. Id. at *8.

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The court held that this type of warrantless search "go[es] far beyond the original rationales [from Chimel] for searches incident to arrest, which were to remove weapons to ensure the safety of officers and bystanders, and the need to prevent concealment or destruction of evidence."l 37 The court found this type of search to be "purely investigatory. Once the officers lawfully seized [the] defendants' cellular phones, [the] officers could have sought a warrant to search the contents of the cellular phones."138 The court in Park also distinguished a cell phone from a pager or beeper, which may be searched without a warrant, even though some courts have found the two devices to be similar.1 39 Pagers have a finite memory, so "incoming pages may destroy currently stored telephone numbers."1 40 Cell phones have a much larger memory and are capable of holding a significant amount of personal information far beyond telephone numbers. 14 1 The court found that beeper and pager searches "implicated significantly fewer privacy interests given the technological differences between pagers and modem cellular phones." The Southern District of Florida is also among the minority of courts refusing to permit the warrantless search of a cell phone. 143 In United States v. Wall, decided in 2008, the defendant was arrested for selling cocaine to an undercover agent.144 As a search-incident-to-arrest, officers seized two cell phones from Wall, enabling the officers to later discover and photograph several text messages that were to be introduced at trial.1 Wall filed a motion to suppress the evidence, which the

137. Id. 138. Id. 139. Id. at *9; See generally United States v. Ortiz, 84 F.3d. 977 (7th Cir. 1996). 140. Park, 2007 WL 1521573, at *9 (quoting Ortiz, 84 F.3d at 984). 141. See, e.g., Apple iPhone 4S, http://www.apple.com/iphone/ (last visited Dec. 16, 2011). 142. Park, 2007 WL 1521573, at *9. 143. United States v. Wall, No. 08-60016-CR, 2008 WL 5381412, at *1 (S.D. Fla., Dec. 22, 2008). 144. Id. 145. Id.

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court granted. 14 6 The court held, in no uncertain terms, "[t]he search of the cell phone cannot be justified as a search incident to lawful arrest." 1 7 The court went on to hold that "searching through information stored on a cell phone is analogous to a search of a sealed letter, which requires a warrant." 148 Although no expert appeared at the trial to explain how long cell phones keep messages, the testifying officer stated that his own "phone contained messages that were at least two months old," which would be stored until he deleted them. 14 9 The court reemphasized the dual rationale behind the search-incident-toarrest exception from Chimel by stating that "[o]nce Wall was in the custody of police officers, and the phones were removed from his possession, he could no longer exercise any control over them. Thus, the threat that messages would be destroyed was extinguished once law enforcement gained sole custody over the phones."1 5 0 After the Court decided Arizona v. Gant, the Supreme Court of Ohio confirmed that the warrantless search of cell phones is In State v. Smith, decided in 2009, the unconstitutional.1 5 defendant was arrested for, inter alia, drug trafficking.152 As a search-incident-to-arrest, the officers took Smith's cell phone and searched through call records and photographs. 15 3 The trial court allowed the call records into evidence, but refused to allow the photographs. 154 The court of appeals affirmed, but the Supreme Court of Ohio reversed.15 5 The Supreme Court of Ohio considered the approaches of both Park and Finley in deciding whether to permit the warrantless search of a cell phone. 15 6 The court held that Smith's cell phone was not a "closed container" because

146. Id. 147. Id. at *3 (emphasis added). 148. Id. at *3 (citing United States v. Jacobsen, 466 U.S. 109, 114 (1984). 149. Id. at *4. 150. Id. 151. State v. Smith, 920 N.E.2d 949, 950 (Ohio 2009). 152. Id. at 951. 153. Id. at 950-51. 154. Id. at 951. 155. Id. at 950-51. 156. Id. at 952-53.

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"objects falling under [that] banner . . . have traditionally been

physical objects capable of holding other physical objects," which is consistent with the Court's definition of container in Belton. 5 7 In addition, the court held that cell phones' ability to store large amounts of private data gives their users a reasonable and justifiable expectation of privacy in the information they contain. Once the cell phone is in police custody, the state has satisfied its immediate interest in collecting and preserving evidence and can take preventative steps to ensure that the data found on the phone are neither lost nor erased.158 IV. THE COURT SHOULD RULE THAT WARRANTLESS CELL PHONE SEARCHES INCIDENT TO ARREST ARE UNCONSTITUTIONAL

Because several federal and state jurisdictions differ in whether to allow the warrantless search of a cell phone incident to arrest, the United States Supreme Court needs to provide further guidance on the issue. Until that time, however, the minority of states is correct that the warrantless search of a cell phone is unconstitutional for three reasons: (1) a cell phone is not a container under the Court's definition; (2) allowing warrantless searches undermines the Court's decision in Arizona v. Gant; and (3) a neutral and detached magistrate is necessary to protect the arrestee's Fourth Amendment right to privacy. A proposed solution, furthering both law enforcement goals and an individual's right to privacy, is that the Court allow an officer to seize a cell phone incident to arrest, if he or she reasonably believes the cell phone contains evidence related to the arrest, but require that officer to obtain a search warrant to search the contents of the cell phone. This solution upholds the dual rationale from Chimel that the Court re-emphasized in Gant: officer safety and evidence preservation. A. A Cell Phone is Not a Container Under the Court's Definition From New York v. Belton

As discussed previously, the Court has defined a "container"

157. Id. at 954. 158. Id. at 955.

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as "any object capable of holding another object ... [and] thus

includes closed or open glove compartments, consoles, or other receptacles . . . as well as luggage, boxes, bags, clothing, and

the like."l 5 9 When the Court revisited the search-incident-toarrest exception in Arizona v. Gant, the Court did not alter its definition of a container.160 The Court's definition only refers to containers that can hold physical objects, like luggage, baqs, glove compartments, receptacles, and other similar objects. This definition also falls in line with the Court's cases that permitted warrantless searches of cigarette packages, glove compartments, and footlockers: all containers capable of holding physical objects. Even though cell phones may not have been popular when the Court created its definition of "container" in 1981, pagers were certainly prevalent. 16 2 The Court has never ruled on whether a pager may be searched incident to arrest, although it had the opportunity to do so in 1996 in Ortiz v. United States, but the

Court denied the petition for writ of certiorari. 16 3 In United States v. Ortiz, the Seventh Circuit summarily concluded that a

pager is a container and allowed the warrantless search of the defendant's pager "because of the finite nature of a pager's electronic memory." 64 The court upheld the officer's need to search the pager immediately because "the contents of some pagers also can be destroyed merely by turning off the power or touching a button," and "incoming pages may destroy currently stored telephone numbers in a pager's memory."1 6 5 The Southern District of Georgia, along with the majority of jurisdictions, agrees with the Seventh Circuit's reasoning and concludes that a cell phone is also an "electronic container."1 66 New York v. Belton, 453 U.S. 454, 460 n.4 (1981). Arizona v. Gant, 129 S. Ct. 1710, 1723 (2009). Belton, 453 U.S. at 460 n.4. C. Ennis, Pocket Radio Pages Doctor Night and Day, POPULAR SCIENCE, Jan. 1951, at 104. Pagers were first introduced around 1951, for the use of doctors in hospitals to be able to react to patients' needs quickly. Id. 163. Ortiz v. United States, 519 U.S. 900, 900 (1996). 164. United States v. Ortiz, 84 F.3d 977, 984 (7th Cir. 1996). 165. Id.; See also Stillwagon, supra note 13. 166. United States v. McCray, No. CR408-231, 2009 WL 29607, at *4 (S.D. Ga.). 159. 160. 161. 162.

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But this justification does not apply to cell phones, as cell phones have evolved far beyond the more basic technology of a pager. Pagers have a limited amount of storage and only hold information-phone numbers-until new ares come in, at which time the oldest information is deleted.' 6 As discussed in Parkabove: Unlike pagers or address books, modem cell phones record incoming and outgoing calls, and can also contain address books, calendars, voice and text messages, email, video and pictures. Individuals can store highly personal information on their cell phones, and can record their most private thoughts and conversations on their cell phones through email and text, voice and instant messages. Any contrary holding could have far-ranging consequences.16 8 Most people would probably agree that an individual has a higher expectation of privacy in this information than a list of phone numbers. Under the Katz test mentioned above (a subjective expectation of privacy that is objectively reasonable), the search of a cell phone without a warrant is objectively unreasonable and thus, a violation of the arrestee's Fourth Amendment right. 169 Furthermore, the search-incident-to-arrest exception is supposed to be exactly that-an exception to the warrant requirement. As the Court stated in Katz, these exceptions are intended to be few, specific, and delineated.170 When the lower courts start adding "containers" to the Court's already specified list of such compartments, the exception swallows the rule and goes far beyond the scope permitted by the Court. In Ortiz, the Seventh Circuit also discussed how a cell phone was analogous to a "closed container." 1 7 1 The Seventh Circuit cited Belton as its source for the definition of "container."1 7 2 The Supreme Court denied the petition for writ of certiorari for

167. See Stillwagon, supra note 13, at 1199. 168. United States v. Park, No. CR 05-375 SI, 2007 WL 1521573, at *8; Stillwagon, supra note 13, at 1199. 169. Katz v. United States, 389 U.S. 347, 361 (1967). 170. Id. at 351. 171. United States v. Ortiz, 84 F.3d 977, 984 (7th Cir. 1996) (internal citations omitted). 172. Id.

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Ortiz.17 3 However, in 2009, the Court revisited the definition of

container, but did not make any changes or add digital containers-such as pagers or cell phones-to its definition.174 Arguably, if the Court denied the petition for writ of certiorari because it agreed with the Seventh Circuit's classification of a pager as a "container," then the Court could have updated the definition in Gant. But it did not. Perhaps this suggests that the Court continues to uphold its current definition of container, which only lists containers that are capable of holding other physical objects. Allowing law enforcement officers to seize an arrestee's cell phone, but not search the contents without a warrant, eliminates any need for discussion on whether a cell phone falls under the Court's definition of container. This reasoning, which should be adopted by the Court, was exemplified by the Washington Court of Appeals in a case involving the warrantless search of a laptop computer incident to arrest: The police had probable cause to arrest [the defendant] on suspicion of auto theft. The search of his bag was proper as a search incident to arrest. The police also had probable cause to seize the laptop computer based on [the defendant's] statement that he had purchased it from someone on the street for $50. The subsequent search of the computer's files, however, did not fall under any of the exceptions to the warrant requirement. The failure to suppress the evidence gleaned from this improper search requires reversal and remand.175 B. Allowing Warrantless Searches Undermines the Court's Decision in Arizona v. Gant

Similar to the federal circuit split discussed above, the Court decided Arizona v. Gant in order to put an end to the broad interpretation of Belton followed by the majority of courts.17 6 The Court acknowledged that its own search-incident-to-arrest

173. Ortiz v. United States, 519 U.S. 900, 900 (1996). 174. Arizona v. Gant, 129 S. Ct. 1710, 1717 (2009). 175. State v. Washington, No. 47773-1-1, 2002 WL 104492, at *3 (Wash. Ct. App., Jan. 28, 2002). 176. Gant, 129 S. Ct. at 1719.

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precedents were difficult to follow.' 7 7 However, the Court set the record straight when it said: "if there is no possibility that an arrestee could reach into the area law enforcement officers seek to search, both justifications for the search-incident-to-arrest exception are absent and the rule does not apply."17 8 When an individual is placed under arrest, there is little likelihood that the arrestee will have access to his or her cell phone. Therefore, the search-incident-to-arrest exception cannot justify the immediate, warrantless search of the arrestee's cell phone. Furthermore, the Court pointed out that "none of the dissenters in Chimel or the cases that preceded it argued that law enforcement reliance interests outweighed the interest in protecting individual constitutional rights so as to warrant fidelity to an unjustifiable rule." 1 79 Without the dual rationale from Chimel (officer safety and preservation of evidence) there is no justification for the officer's interest in searching for evidence that outweighs the privacy interest an individual possesses in her cell phone. As previously stated, cell phones are not subject to the same preservation fears that apply to pagers due to a cell phone's near infinite amount of storage capability. It is difficult to imagine a scenario where a cell phone would need to be searched for the officer's safety. As such, the dual rationale from Chimel is absent, and the warrantless search of cell phones incident to arrest is unconstitutional. However, law enforcement officers' interest would be equal to that of an individual's Fourth Amendment right if the officers were allowed to seize a cell phone incident to arrest, but be required to obtain a search warrant to search the contents. C. A Neutral and DetachedMagistrateis Necessary to Protect an Arrestee's FourthAmendment Right to Privacy

In Arizona v. Gant, the Court identified the central concern underlying the Fourth Amendment: "the concern about giving police officers unbridled discretion to rummage at will among a person's private effects." 180 When the Southern District of 177. 178. 179. 180.

Id. Id. at 1716. Id. at 1723. Id. at 1720.

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Georgia decided United States v. McCray the court allowed

exactly this type of unbridled discretion. '9 In McCray, the officers were permitted to search the defendant's cell phone incident to his arrest for drug possession, yet the officers were looking for lewd pictures of the defendant's minor girlfriend. 1 82 Arguably, such lewd pictures were unrelated to the drug possession charge on which the defendant was arrested. The lewd pictures clearly had nothing to do with the officers' safety, yet the court permitted the search.18 3 This is exactly the type of unbridled discretion the Court was concerned about: "[a] rule that gives police the power to conduct such a search whenever the individual is caught . .. when there is no basis for believing

evidence of the offense might be found in the vehicle, creates a serious and recurring threat to privacy of countless individuals."l 84 Without a detached and neutral magistrate, officers will continue to exercise the unbridled discretion the Court was so concerned about. This is evidenced by the true story reported by the Augusta Chronicle on which Sue Ellen's introductory story is based. 8 5 Allowing this type of discretion was also discussed in a recent case from the Eastern District of Wisconsin.186 The court held that the officers had probable cause to seize a laptop computer, but not search through its contents. 1 The court acknowledges that although the officer used his discretion with good intentions, the search of the defendant's computer should have been conducted subsequent to the issuance of a search warrant from a detached and neutral magistrate: By touching a key or moving the mouse, the officer put into view the Facebook wall, which was not previously in view. Though a close call, the Court concludes that this was a

181. United States v. McCray, No. CR408-231, 2009 WL 29607, at *4 (S.D. Ga.). 182. Id. at *1-2. 183. Id. at *2-3. 184. Gant, 129 S. Ct. at 1720. 185. Martin, supranote 1, at Al.

186. United States v. Musgrove, No. 11-CR-24, 2011 WL 4356521 (E.D. Wis., April 20, 2011). 187. Id. at *10.

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search, however minimal, which required further authority, a warrant or consent. The government submits that the officer's manipulation of the computer was for the purpose of seizing the computer, not to conduct a preliminary search. However, intent is not generally relevant in assessing whether a search ensued. The Court therefore recommends that the defendant's Facebook wall be suppressed. 88 If the Supreme Court were to rule on this issue and provide that officers may confiscate an individual's cell phone incident to arrest, assuming the dual rationale from Gant and Chimel is in place, and then obtain a warrant from a neutral and detached magistrate to search the phone, the privacy interest of the arrestee remains protected. Officers are still allowed to gather the evidence they need, but are required to leave the scope of the search of the phone up to a neutral third party. Not only does this solution provide a safeguard for the arrestee, but also a safeguard for the police. If an officer reasonably believes that a cell phone contains evidence related to the arrest, then a magistrate will be more likely to issue a search warrant, which in turn increases the likelihood that any evidence discovered in the phone's contents will be admitted at trial. Furthermore, Section 17-5-21.1 of the Georgia Code provides that, if necessary, officers can obtain a search warrant via video conference which allows the officers to search through the The phone's contents more quickly if the warrant is issued.' information on a cell phone can be easily obtained after the safeguards of a search warrant are put into place. Requiring that officers obtain a search warrant at least allows the individual to challenge the validity of the search warrant in court, whereas a blanket rule allowing warrantless searches provides little opportunity for the defendant to challenge the search. This suggested solution provides an appropriate balance between law enforcement goals and an individual's right to privacy under the Fourth Amendment. V. CONCLUSION States and federal jurisdictions are split on whether to allow

188. Id. 189. O.C.G.A. ยง 17-5-21.1 (West 2011).

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the warrantless search of a cell phone incident to an arrest. Georgia follows the majority of states that permit officers to search through an arrestee's cell phone without a warrant. The majority holds that a cell phone is just another container that the Supreme Court allows to be searched under Belton and Gant. The minority of states argue that the warrantless search is unconstitutional because a cell phone cannot be classified as a container as it only holds digital information, not another physical object. The minority also holds that the massive amount of personal data a cell phone can hold heightens the expectation of privacy. As soon as practicably possible, the Supreme Court should rule on this issue and hold that officers may confiscate a cell phone incident to arrest, but also require that the officers first obtain a search warrant from a detached and neutral magistrate. This suggested solution provides a balance between law enforcement goals and an individual's right to be free from unreasonable searches and seizures. Stacie L. Chapman*

Juris Doctor Candidate, Atlanta's John Marshall Law School, May 2012; Bachelor of Arts, Political Science and Art History, Indiana University, December 2004. I would like to thank Professor Anthony Baker, for believing in me and ensuring that one day I will "know" that same belief, and Kim Colmey, for not only being a friend, but an inspiration. I would also like to thank Jeanna Foulke, for without her, I would be lost. And finally, I would like to thank my Mom and Dad, who are not only my loving and supportive parents, but most importantly, my friends. *

PROTECTING THE THINGS THAT CANNOT PROTECT THEMSELVES: WHY GEORGIA MUST EXTEND PROTECTION TO ITS LIVING NATURAL ASSETS 1.

INTRODUCTION

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181

II.

WHY CERTAIN LIVING NATURAL ASSETS NEED ............................ ADDITIONAL PROTECTION

187

ATTEMPTS AT PROTECTING LIVING NATURAL ASSETS ....................

196

III.

IV.

How TO PROTECT THE THINGS THAT CANNOT PROTECT ................................................ THEMSELVES

A. B. V.

TraditionalPropertyLaw Approaches ................. 197 1. Restrictive Covenants....................... 198 ..... 200 .................... 2. Conservation Easements .................... 204 3. Historic PreservationStatutes ....... 205 ................... 4. Land Use Regulations ............................ ..... 208 CriminalStatutes.

215

Expansion offHistoricalProtection ....................... 218 .................. 225 MandatoryMinimums for Violations

CONCLUSION.

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......

228

INTRODUCTION

Current legal protection extended to living natural assets1 comes in many forms, with various examples stemming from Environmental assets statutory programs and restrictions. receive additional support from public agencies and 1. Throughout this Comment, the term "living natural asset" shall include: trees, bushes, shrubs, flowers, herbs, roots, and all other like natural objects. 2. See generally 42 U.S.C. Ch. 55 (West 2011) ("National Environmental Policy").

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conservation advocacy groups that raise public awareness regarding the natural assets' importance and the consequences for individuals inflicting harm upon those assets.3 The purpose of these various groups is to protect and preserve the living natural assets that are unable to protect themselves.4 As a result of efforts by private and public organizations, natural asset and departments involves governmental preservation specializations within the legal field that once were never Despite all of the efforts by these various imagined.5 organizations, however, some important-and renownedliving natural assets have recently come under attack.6 Under the guise of "Al from Dadeville," on January 27, 2011, Harvey Updyke called into a morning sports radio talk show to disclose the details of an attack against two defenseless living natural assets-the Toomer's Oaks. 7 The attack allegedly consisted of Harvey Updyke dispensing copious amounts of herbicide onto the trunks of the oaks and ground surrounding 3. See UNITED STATES ENVIRONMENTAL PROTECTION AGENCY http://www.epa.gov/aboutepa/whatwedo.html (last visited Dec. 16, 11) [hereinafter EPA] (asserting the "EPA's mission is to protect human health and the environment."); see also SIERRA CLUB, http://www.sierraclub.org/ (last visited Dec. 16, 2011). The Sierra Club is "America's largest and most influential grassroots environmental organization[]" with the goal of "working together to protect. . . communities and the planet." Id. 4. EPA, supra note 3 ("[E]nvironmental protection is an integral consideration in U.S. polices concerning natural resources, human health, economic growth, energy, transpiration, agriculture, industry, and international traded, and these factors are similarly considered in establishing environmental policy."). 5. See The Guardian: Origins of the EPA, EPA HISTORICAL PUBLICATION (Spring 1992), available at http://www.epa.gov/aboutepa/history/publications/print/origins.html (last visited Dec. 16, 2011) (providing historical overview of the EPA since the governmental agency's founding in April 1970); see also Tseming Yang & Robert V. Percival, The Emergence of Global Environmental Law, 36 ECOLOGY L.Q. 615, 626 (2009) (discussing the ever changing area of global environmental law and the gradual emergence of this new legal field). 6. Wright Thompson, The Life and Times of Harvey Updyke, ESPN.coM, May 24, 2011, 1:13 AM, http://sports.espn.go.com/ncf/columns/story?id=6575499 (last visited Dec. 16, 2011). 7. Id. 8. The herbicide declared to have been applied was Spike 80DF. See id.

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the famous Toomer's Oaks in Auburn, Alabama. 9 Updyke's reason for "put[ting] Spike 8ODF in 'em": he became frustrated with Auburn University football supporters celebrating the team's recent victory in the Iron Bowl, the yearly game between Thus, in Auburn University and the University of Alabama. "Spike 8ODF is a dry-flowable formulation which is mixed and applied with a water carrier .

. applied directly to the soil surface[.] Absorbed by the

roots, Spike 8ODF herbicide translocates throughout the susceptible plant to interfere with photosynthesis until the plant dies." SPIKE 8ODF HERBICIDE BANDED APPLICATION FOR FENCEROWS, Dow AGROSCIENCES, available at

http://www.rrsi.com/index.php?act=products.info&id=362&n=Spike8ODF (last visited Dec. 16, 2011). The fact sheet goes on to assert the following warning: "Do not use Spike 8ODF where desirable woody species are near plants targeted for control. A small amount of Spike 80DF reaching the roots of desirable trees or shrubs may cause their severe damage or death." Id. 9. Id. The phone call from Updkye, "Al" to "The Paul Finebaum Show" went as follows: Al from Dadeville: The weekend after the Iron Bowl, I went to Auburn, Alabama, because I lived 30 miles away, and I poisoned the two Toomer's trees. I put Spike 80DF in 'em. Paul: Did they die? Al: Do what? Paul: Did ... they ... die? Al: They're not dead yet, but they definitely will die. Paul: Is it against the law to poison a tree? Al: Do you think I care? Paul: No. Al: I really don't! And you can tell Tammy, I hope . . . never mind.

Roll Damn Tide! Id.; see also Mimi Pacifico Ecological Assets a Natural Draw, DAYTONA BEACH NEWS-JOURNAL,

Jan.

23,

2011,

12:05

AM,

available at

http://www.news-journalonline.com/columns/seniorlifestyles/2011/01/23/ecological-assets-a-natural-draw.html (last visited Dec. 16, 2011) ("Historically, nature provided all the management needed on natural lands. But that changed over the decades because of population and urban growth, to name a few. All these affect the wildlife, the flora and fauna that live on the land."). In an interview, Updyke-while 10. Thompson, supra note 6. maintaining his innocence-stated that after moving back to Alabama, he was placed within close proximity of Auburn fans celebrating the football team's recent national championship victory in the Bowl Championship Series: "I had to put up that mess. [] That's when I really started hating 'em." Id. This hatred is the result of Updkye's being "a very unhealthy Alabama

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the case of the Toomer's Oaks, a sports rivalry resulted in two innocent objects being attacked by a disgruntled fans. To further complicate matters, Updyke did not disclose the attack until several months after he allegedly dispensed the herbicide and after Auburn University's football team achieved victory in the national championship game." As a result of the delay, the herbicide was able to infect the Toomer's Oaks undetected, frustrating the ongoing restoration efforts and the ultimate viability of the trees in the future.12 Because of this, "[t]he Toomer's oaks have continued to decline over the summer and in the early fall [of 201 1]",13 research shows the effects of the herbicide have reduced "tree canopy density [to] only about 20-30% that of the trees in years prior to the poisoning."' 4 Unfortunately, this is not the first time in recent history that intense emotional feelings have resulted in a physical attack on a living natural asset unable to ward off the attacker." The fan." Id. Then, Updyke further professed his love for the Crimson Tide: I live it. I breathe it. I think about Alabama football, I'm not exaggerating, 18 hours a day. I have always been that way. It just didn't start. That's what people don't understand. The first thing I do when I wake up in the morning is get on Tiderinsider and see what's going on. I mean, I know it's not healthy. I've been knowing that a long time. I have a daughter 33 years old named Crimson Tyde. Id. (text as appears in original). 11. Id. 12. Brain Woodham, Tradition Will Continue at Toomer's Corner, THE at 2011, available VILLAGER, July 28, AuBuRN http://www.auburnvillager.com/story131178190101241020110728Tradition-will-continue-at-Toomer's-Comer.html (last visited Dec. 16, 2011). 13. Toomer's Oaks Update, AuBURN UNIV. (Sept. 23, 2011), http://ocm.auburn.edu/news/updatel10926.pdf (providing comparison photos illustrating the effects of the herbicide on the oaks). 14. Id. 15. See Cullen v. State, 832 S.W.2d 788 (Tex. Ct. App. 1992) (affirming conviction under criminal mischief statute for defendant's "poisoning of the historic 'Treaty Oak' in Austin"); John Giedraitis, Treating the Treaty Oak, FOURTH URBAN FORESTRY CONFERENCE (Oct. 1989), http://media.al.com/live/other/Treaty-Oak-treatment.pdf (providing detailed history of the Treaty Oak); see also Mike Brantely, Toomer 's Corner Trees: Poisoning of Auburn's Oaks Echoes Treaty Oak Vandalism in Texas, AL.COM, Feb. 18, 2011, 12:53 PM,

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Treaty Oak in Austin, Texas has suffered an attack, as well.16 The Treaty Oak has been described as "a living symbol of history"' 7 due to historians tracing the tree's roots back to "the Comanches and Tonkawa Indians." 8 Folklore of the Lone-Star State "has the Father of Texas, Stephen F. Austin, signing the first boundary treaty with the local Indians under the tree, and hence its name."' 9 As a hallmark of the City of Austin, attempts to sell the land under the Treaty Oak resulted in advocacy groups obtaining the ultimate protection for the tree in 1922, when the Treaty Oak "was added to the American Forestry Association's compilation of famous and historic U.S. trees. But this recognition only bestowed the tree with an invisible layer of protection. In 1988, the Treaty Oak was poisoned as a result of an individual's desire "to rob the spirit of the tree as part of a ritual to protect a woman from another man." 2 1 The Treaty Oak's attacker applied an herbicide to the tree "used commercially by the pulp and paper industry to clear land of undesirable species[.]"22 As a result the oak "lost the shape that once made it a perfect specimen[,]" and did not "produce[] its first crop of acorns since the poisoning[]" until 1997.24 http://blog.al.com/live/2011/02/toomers-comer-trees_poisoning.html visited Dec. 16, 2011). 16. Cullen, 832 S.W.2d at 791. 17. Giedraitis, supra note 15, at 2. 18. Id.

(last

19. CITY OF AUSTIN PARKS & RECREATION, Treaty Oak History, available

at http://www.ci.austin.tx.us/treatyoak/histl.htm (last visited Dec. 16, 2011); see

also

FAMOUS

TREES

TEXAS,

TREATY

OAK,

available at

http://famoustreesoftexas.tamu.edu/TreeHistory.aspx?TreeName=Treaty%20 Oak (last visited Dec. 16, 2011) ("An imaginary line running north and south through the heart of [the 'Council of Oaks'] divided the territory and remained inviolate for years."). 20. Giedraitis, supra note 15, at 2. 21. Id. at 3. 22. Id. 23. Raoul

Hashimoto, The Treaty Oak in Austin, TEXASESCAPES.COM, 2002), (Jan. http://www.texasescapes.com/AustinTexas/TreatyOak/AustinTreatyOak.htm 24. AUSTIN PARKS & RECREATION, TREATY OAK HISTORY, TREATY OAK HISTORY / POISONING,

RECENT

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Despite both the Treaty Oak and the Toomer's Oaks initially appearing to overcome the poisonings, the actions of each tree's respective assailant did not go unpunished. In the story of Austin's Treaty Oak, a jury of the attacker's peers determined nine years incarceration and a fine of $1000 to be the appropriate punishment for the offense.2 5 While the trial of Harvey Updkye has yet to commence, 2 6 the alleged attacker of the Toomer's Oaks claims to have been assaulted by a 9roup of private individuals not approving of his alleged actions. Does the punishment imposed by a Texas jury, or the unauthorized attack of Updyke, compensate for the harm inflicted to the living natural assets? Moreover, and even more concerning as the Updkye saga demonstrates, does the mere tactical claim of mental fallacies constitute a free pass to harm living natural assets that cannot protect themselves? 28 While the concern raised by the most recent poisoning of the Toomer's Oaks has not been addressed,2 9 the issue regarding the Treaty http://www.ci.austin.tx.us/treatyoak/histl.htm. 25. Cullen v. State, 832 S.W.2d 788, 791 (Tex. Ct. App. 1992) (affirming jury conviction and subsequent sentencing of nine years incarceration and monetary fine of $1000). 26. Evan Woodbery, Judge Agrees to Delay Start of Harvey Updyke's Trial, ALCOM, June 30, 2011, 1:45 PM, http://www.al.com/sports/index.ssf/2011/06/judgeagreestodelaystart-of. html (last visited Dec. 16, 2011). 27. Charles Goldberg, Harvey Upyke Treated in Emergency Room After Alleged Attack Following Court Appearance Over Toomer's Corner Trees, AL.COM, April 20, 2011, 4:23 PM, available at http://www.al.com/sports/index.ssf/2011/04/harveyupdyketreated-for-hea d.html (last visited Dec. 16, 2011). 28. Associate Press, Accused Tree Poisoner Pleads Not Guilty, ESPN.com, May 25, 2011, 10:12 PM, http://sports.espn.go.com/ncf/news/story?id=6591271 (last visited Dec. 16, 2011) ("Harvey Updkye Jr.'s attorney, . . . [stated Updyke] entered a plea of

not guilty for reason of mental disease or defect."). While beyond the scope of this Comment, this question is merely raised to expose the bevy of potential defenses individuals accused with attempting to destroy living natural assets may seek to claim as justification for their actions. 29. Evan Woodbery, Harvey Updyke, Accused of Poisoning Toomer's Oaks, Says He Wants Forgiveness, ALCOM, Sept. 28, 2011, 5:45 PM, http://www.al.com/sports/index.ssf/2011/09/harvey updyke_accused of poi so.html (reporting Updyke's "trial is tentatively scheduled for late October [2011], although it's very unlikely to happen then and might not occur until

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Oak provides an example of disproportionate compensation due to the monetary penalty imposed against Defendant Cullen representing only five percent of the "pecuniary damage ... [to the Treaty Oak] exceeding $20,000." O What can the Georgia legislature do to protect living natural assets from similar attacks? This Comment seeks to answer this question and evaluate the inadequacies of Georgia's current attempts to protect the state's living natural assets. As a result, the Comment recommends a viable alternative, which balances the state's available resources for protection against the needs of notable living natural assets that cannot protect themselves. Part II explains why protection is needed for Georgia's assets, as demonstrated by the stories of the Treaty Oak and the Toomer's Oaks. Part III discusses the current attempts of protection for Georgia's living natural assets, exploring the avenues of protection found in traditional real property law approaches and the potential, appropriate, and previous use of criminal statutes. Part IV argues that adequate protection may be obtained by combining the current protections under real property covenants and ordinances with historical preservation statutes to increase awareness and notoriety of the living natural assets among the public. Additionally, this protection can be bolstered by imposing punishment upon those individuals that disregard society's recognition of the natural asset. This Comment concludes that Georgia can better protect its living natural assets from potential third party harm by (1) expanding the requirements for historic notoriety and (2) restructuring the deterrent effects of current criminal statutes regarding the willful and malicious destruction of the living natural assets that qualify for protection. II. WHY CERTAIN LIVING NATURAL ASSETS NEED ADDITIONAL PROTECTION

Laws, codes, and ordinances are the vehicles through which society defines appropriate, and more importantly, inappropriate next year"). 30. Cullen v. State, 832 S.W.2d 788, 791 (Tex. Ct. App. 1992); see also Giedraitis, supra note 15, at 5. Shortly after the poisoning of the Treaty Oak, researchers estimated that over $100,000.00 had been spent to save the tree. Id.

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conduct. 3 1 While the punishment for infractions varies, general themes of having the individual punishment fit the crime 32 and deterring future analogous behavior 3 3 help to justify the imposition and severity of any punishment deemed appropriate for the conduct in question. 34 The lawfulness therefore of punishing such criminals is founded upon this principle, that the law by which they suffer was by their own consent; it is part of the original contract into which they entered, when first they engaged in society; it was calculated for, and has long contributed to, their own security. 35 Because the severity of the punishment can serve to deter future analogous behavior,36 repay society, 3 7 make those harmed

31. H. L. A. HART, PUNISHMENT & RESPONSIBILITY 6 (ed. 2d 1967).

"Why are certain kinds of action forbidden by law and so made crimes or offences? The answer is: To announce to society that these actions are not to be done and to secure that fewer of them are done." Id.; 4 WILLIAM BLACKSTONE, COMMENTARIES *2-7. "[T]he general nature of punishments:

which are evils or inconveniences consequent upon crimes and misdemeanors; being devised, denounced, and inflicted by human laws, in consequence of disobedience or misbehavior in those, to regulate whose conduct such laws were respectively made." Id. at *7. 32. See, e.g., Ewing v. California, 538 U.S. 11, 31 (2003) (Scalia, J. concurring) ("Proportionality-the notion that the punishment should fit the crime-is inherently a concept tied to the penological goal of retribution."); but see Herbert L. Packer, Making the Punishment Fit the Crime, 77 HARV. L. REv. 1071, 1080 (1964) ("To modem ears, accustomed to pleas for the individualization of punishment, the notion of suiting the punishment to the crime may ring false" in response to the question of "is it a constitutional requisite that the punishment fit the crime at all?"). 33. 4 WILLIAM BLACKSTONE, COMMENTARIES *7-20.

34. Id. at *7-13. It is clear, that the right of punishing crimes against the law of nature, as murder and the like, is in a state of mere nature vested in every individual. For it must be vested in somebody; otherwise the laws of nature would be vain and fruitless, if none were empowered to put them in execution: and if the at power is vested in any one, it must also be vested in all mankind; since all are by nature equal. Id. at *7-8. 35. Id. 36. WAYNE R. LAFAVE, PRINCIPLES OF CRIMINAL LAW 26 (2d ed. 2003). "Under [the deterrence] theory, . . . the sufferings of the criminal for the

crime he has committed are supposed to deter others from committing future

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whole again,3 8 and/or punish the accused because that is what is due-"the just desserts[,]" 3 9 punishment helps to prevent future crimes by educating the public as a whole of the results of engaging in unlawful conduct. By imposing punishment in the form of monetary penalties, community service, or personal restrictions (either in the form of imprisonment or probation), society is able to control actions that result in the destruction of property, harm to others, and the general disruption to the happiness of all. No matter which justification serves as the foundation for culpability, 40 a common theme in societal penal codes throughout the ages has been to impose greater punishment on crimes, lest they suffer the same unfortunate fate." Id. 37. IMMANUEL KANT, THE METAPHYSICAL ELEMENTS OF JUSTICE 29-31 (1797). See, e.g., Philip L. Reichel, CORRECTIONS 115 (2d ed. 2001) (discussing "the Retributive era" philosophy that: "(1) The punishment should be inflicted as something the offender deserves to repay society for the damages cause; and (2) the sentence should protect the public by including punishment so unpleasant that potential offenders will refrain from crime and actual offenders will abstain from additional criminal behavior"); Jeffrie G. Murphy, Does Kant Have a Theory ofPunishment?, 87 COLUM. L.

REv. 509, 520 (1987) ("Since a citizen derives benefit from the laws of his society, he owes obedience as a debt to his fellow-citizens for their sacrifices in maintaining them.") (alterations in original). 38. See Aya Gruber, A Distributive Theory of Criminal Law, 52 WM. &

MARY L. REV. 1, 58 (2010) (arguing that political conservative power is the primary reason for "supporting government-imposed harsh punishment of offenders to 'make victims whole"'); but see Kelly v. Robinson, 479 U.S. 36, 52 (1986) ("The criminal justice system is not operating primarily for the benefit of victims, but for the benefit of society as a whole."). 39. JEREMY BENTHAM, THE RATIONAL OF PUNISHMENT 19-20 (1830); LAFAVE, supra note 36, at 21-22. The broad purposes of the criminal law are, of course, to make people do what society regards as desirable and to prevent them from doing what society considers to be undesirable. Since criminal law is framed in terms of imposing punishment for bad conduct, rather than granting rewards for good conduct, the emphasis is more on the prevention of the undesirable than on the encouragement of the desirable. Id.

40. See Ewing v. California, 538 U.S. 11, 25 (2003) (determining the Constitution does not require the legislature adopt one theory of punishment, with the determination of sentencing rationale being a policy decision left to the state legislatures).

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individuals preying on the weak or defenseless-the victims that cannot protect themselves.41 For example, society has deemed children to be unable to protect themselves. 42 Based on the undeveloped cognitive and physical attributes of children, 43 and because children are our future, 44 society has determined that children are unable to protect themselves from adults desiring to take advantage of them. 4 5 As a result, the law extends additional protection to children in the form of increased sanctions against an attacker.4 6 In addition,

41. Strauder v. West Virginia, 100 U.S. 303, 306 (1879) (abrogated on other grounds by Taylor v. Louisiana, 419 U.S. 522 (1975)) ("Their training had left them mere children, and as such they needed the protection which a wise government extends to those who are unable to protect themselves.")

(emphasis added). 42. See generally Fed. Trade Comm'n v. R.F. Keppel & Bros., 291 U.S. 304, 313 (1934) ("[T]he competitive method is shown to exploit consumers, children, who are unable to protect themselves."); Elizabeth Locker, Grow Up Georgia. . It's Time to Treat Our Children as Children, 4 JOHN

L.J. 85, 90 (2011) ("As children were subjected to a variety of serious consequences for their behavior without the normal protections afforded to adult defendants in criminal courts, cases of children facing adult-like punishments without a full measure of due process began to mount.") (citation omitted); Mark Osler, Indirect Harms and MARSHALL

Proportionality:The Upside-Down World of Federal Sentencing, 74 MIss.

L.J. 1, 12 (2004) ("Admittedly, the punishment for harming children in the production of child pornography, set out in [the United States Sentencing Guidelines Manual] Section 2G2.1 . . ., is appropriately high."). 43. Tomas Paus, Mapping Brain Maturation and Cognitive Development DuringAdolescence, 9 TRENDS INCOGNITIVE SCI. 60 (2005).

44. BERNARD VAN LEER FOUND., SUBMISSION TO THE UNITED NATIONS COMMITTEE ON THE RIGHTS OF THE CHILD 1 (July 2004), http://www.bernardvanleer.org/files/crc/1.B%20PeterLaugharn_(BVLF).pd f (last visited Dec. 16, 2011). "Children are our future. What happens to children in their first days, months and years of life affects their development, the development of society, and the development of the world." Id 45. See, e.g., John Q. La Fond & Sharon G. Portwood, Preventing Intimate Violence: Have Law and Public Policy Failed?, 69 UMKC L. REV.

3, 11 (2000) (discussing child protection systems "benevolent safekeeping of those unable to protect themselves, especially children"). 46. 1 WILLIAM BLACKSTONE, COMMENTARIES *434-42 (discussing the power possessed by adults over children, in the form of the parent/child relationship, requires protection "as to need rather a check than a spur").

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individuals with disabilities, 7 the elderly,4 8 and similarly situated groups receive additional protection from laws designed to increase the penalties imposed on those held culpable for preying on the weak and defenseless. 49 All of these examples establish society's willingness to extend additional protection to beings unable to protect themselves. In general, most animals are unable to ward off humans desiring to harm or kill the nonhuman being.50 As a result, society indentifies nonhuman beings as another group unable to protect themselves and extends additional protection to this group from "humans inflicting unjustifiable harm on the animals" through animal cruelty laws.5 1 Therefore, in an effort to protect those nonhuman beings that cannot protect themselves, society affixes various forms of punishment on the human beings unjustly preying on the defenseless creatures.52 47. 42 U.S.C. ยง 12102 (West 2011) ("Americans With Disabilities Act"); 29 C.F.R. ยง 1630.2 (West 2011). 48. Washington v. Glucksberg, 521 U.S. 702, 731 (1997) (determining "the State has an interest in protecting vulnerable groups-including the poor, the elderly, and disabled persons-from abuse, neglect, and mistakes"). 49. Id. at 733 (holding States have an increased interest in "protecting the vulnerable from coercion; [] extend[ing] to protecting the disabled and terminally ill .

. from prejudice, negative and inaccurate stereotypes, and

'societal indifference' with regards to assisted-suicide bans"). 50. While not the focus of this Comment, the mascots of the schools are no more protected from attack then the natural icons. See Thompson, supra note 6. During a medical examination, Updkye discussed his poisoning of the Toomer's Oaks with the physician, to which the doctor responded: "I'm glad you don't hate [Louisiana State University]. You may have poisoned our tiger." Id. (emphasis added). While there are cruelty to animal laws in all states, the punishment-and most importantly deterrent effect-is relatively minimal in comparison to the destruction of a human life of the same iconic stature. See Enger McCartney-Smith, Can Nonhuman Animals Find Tort Protection in a Human-Centered Common Law?, 4 ANIMAL L. 173, 202 (1998). 51. Chad West, Note, Economics and Ethics in The Genetic Engineering of Animals, 19 HARV. J.L. & TECH. 413, 431 (2006); see also Cass R. Sunstein, The Rights ofAnimals, 70 U. CHI. L. REv. 387 (2003). 52. West, supra note 51, at 431. "While humans can own animals as chattels, the law prevents humans from treating animals like other types of property, such as land or consumer goods. In a great majority of cases,

courts have ruled in favor of protecting animals where humans have burned, beaten, or neglected them." Id.

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But because the victim is a nonhuman being, the severity of the punishment is limited by the relationship between the attacker

and the victim. 53 Society further provides protection to another group of nonhuman beings needing additional protection based on the inability to ward off would-be attackers under environmental laws. 54 While the environment as a whole encompasses many facets of life, including ecological systems and natural resources, the focus of this Comment is on discussing the current protection afforded to Georgia's living natural assetstrees, bushes, and shrubs. The protections advocated in this Comment mirror current conservation efforts designed to advance the protections afforded to living natural assets from the outdated mindset that "[i]n the old pioneer days the American had but one thought about a tree, and that was to cut it down[.]" 5 1 In the case of the Treaty Oak, the defendant was charged with criminal mischief as a result of "the damage and destruction of the Treaty Oak" caused by "applying the herbicide hexazinone to the historic tree without the consent of the tree's owner[.]" 5 6 As "a living symbol of history," the Treaty Oak is estimated to be over three hundred years old, with some researchers

53. Joseph G. Sauder, Enacting and Enforcing Felony Animal Cruelty Laws to Prevent Violence Against Humans, 6 ANIMAL L. 1, 10 (2000)

(arguing that "although current anti-cruelty laws are tougher on animal abusers,... the punishment, if any, seldom fits the crime"). 54. See 42 U.S.C.A. ยง 4321, et seq. (West 2011). The purposes of the National Environmental Policy's are: To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote to efforts which will prevent or eliminate damage the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality. 42 U.S.C.A. ยง 4321 (West 2011). 55. Theodore Roosevelt, Pres, United States of America, Address to the Forest Congress, Washington, D.C., (Jan. 5, 1905), available at http://www.theodore-roosevelt.com/images/research/txtspeeches/I 12.txt (last visited Dec. 16, 2011). 56. Giedraitis, supra note 15, at 3.

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estimating the tree to be six hundred years old.5 7 Historians tell us that the Treaty Oak is the last of a grove of fourteen trees known as the Council Oaks. The original Texans regarded it as a Tree-God, a temple of worship for the Comanches and Tonkawa Indians. In the shade of the oaks' wide-spreading branches, the natives would meet to dance the war dances, smoke the peace pipe, and celebrate feasts and religious ceremonies. Myths and magic surrounded the tree. Indian maidens believed that a sauce made from its acorns, if taken by warriors on the eve of battle, would bring their loved ones safely back." Based on the age and notoriety of the Treaty Oak, protection in the form of proactive measures to prevent harm to the tree were necessary to ensure the "living symbol of history" 59 would be enjoyed by the future generations. Unfortunately, additional protections were not in place to deter the attacker of the Treaty Oak from jeopardizing the longevity of the natural asset. Fortunately, the Treaty Oak's Task Force was able to temporarily save the tree.6 0 But the efforts of the Task Force could only do so much.6 1 Currently, the "living symbol of history" remains a staple of the Texas capital city's landscape, but the tree has been reduced to less than half of its previous "perfect" form. 6 2 While the Treaty Oak still enriches the lives of the current residents of Austin, Texas, the enjoyment is limited and may not be available to future generations. In the case of the Toomer's Oaks, the two trees are currently living, but they are struggling to overcome the overdose of herbicide. 6 3 As a result, the Auburn University tradition of "Toomer's "rolling" the oaks might soon come to an end. Id. 58. Id. 59. Id. 60. Id. 61. Id. 62. Id. 63. Woodham, supra note 12. 64. Id. The rolling itself, the toilet paper, throwing it up there-that's not going to significantly impact the trees if we can take it off by hand without the man-lift running into the canopy[.] I believe that we can 57.

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Corner is at the center of town, where the Auburn University campus meets the City of Auburn . . . [and] has long been the

gathering place for Auburn athletic celebrations." 6 5 While it is still too early to tell the extent of the damage to the 150-year-old trees, 66 the effects sustained at the expense of a college football rivalry are certain to affect the longevity of the trees' future.67 And more concerning, as history has a tendency of repeating itself,68 these acts against defenseless living natural assets promise to occur again. If any future attack mimics the actions of "Al from Dadeville" or the Treaty Oak assailant, Georgia's have a balance there to allow the celebration to continue and not adversely effect [sic] the trees. Id. (statement by Gary Keever, Toomer's Corner Task Force Leader & Auburn Univ. horticulture professor). 65.

AUBURN

UNIV.,

TRADITIONS,

TOOMER'S

CORNER,

http://www.auburn.edu/admissions/aubum/traditions.html (last visited Dec. 16, 2011). 66. Id. "I can't give people a timeline on how long the trees have because I don't know the final outcome[.] ... The prognosis is not good, but there's still food reserves in [the Toomer's Oaks] that are supporting a new flush of growth." Id. (statements by Gary Keever, Toomer's Corner Task Force Leader & Auburn Univ. Horticulture Professor). 67. Daniel Chesser, Toomer's Oaks, Less Than 5% Chance of Survival, available at 18, 2011, Aug. VILLAGER, THE AUBURN http://www.auburnvillager.com/story_1313680936025662_20110818Toomer's-oaks,-less-than-5%25-chance-of-survival.html (last visited Dec. 16, 2011) ("The good news is that the trees are still alive[.] ... But [the bad news is] there's still a less than five percent changes that they are going to survive.") (statements by Stephen Enloe, assistant professor at Auburn University & Invasive Plant Extension Specialist, Dept. of Agronomy). 68. See generally, Paul Collier, Laws and Codes for the Resource Curse, 11 YALE HUM. RTs. & DEV. L. J. 9, 28 (2008) (arguing the commodity boom presents a current opportunity to act to promote the opportunity of development assistance as failing to act will result in a missed opportunity "This distinction between mistakes and "if history repeats itself"). misaligned incentives is fundamental. It is a guide to the actions that can prevent history from repeating itself. Mistakes are to an extent selfcorrecting through learning, whereas misaligned incentives require changed incentives. Codes may be helpful in correcting both mistakes and misaligned incentives." Id. at 10. While regulatory action in a commodity boom and statutory reform with regards to natural asset protection are separate subjects and sources of law, the distinction between the two supports the assertion that when activities present themselves in repeated consistency, action needs to be taken to prevent previous wrongs from reoccurring.

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living natural assets also might be exposed to similar attacks. Just as the Toomer's Oaks represent a piece of the Auburn football tradition, so do the infamous hedges at the University of Georgia represent a piece of the Georgia football tradition. Thus under the current protections discussed in Part III, the hedges need additional protection to deter the "Al's from Dadeville," because without the hedges, there is nothing to "keep it between."70 But unlike the Great Cypress of Savannah or the heralded trees along Magnolia Lane at Augusta National, the hedges at the University of Georgia do not require extensive time to be replaced because the germination period for a privet shrub is significantly less than an old growth natural asset.7 In addition, privet shrubs are referred to as an invasive weed, capable of overtaking an area.7 2 Regardless, the hedges at the 69. Doug Ward, "Time to Tee It Up Between the Hedges" at Georgia's

5:34 PM, Dec. 11, 2008, Sanford Stadium, ESPN.COM, http://espn.go.com/espn/thelife/news/story?id=3726906. Officially, the hedges are of the English privet variety, and they have encircled the field since Georgia took on Yale in the first game played there in 1929. The hedges were removed and later replaced so soccer could be played at Sanford Stadium during the 1996 Summer Olympics.

. . .

[The] heartbeat [of Sanford Stadium]

extends beyond those famous privet hedges. Id.

70. The slogan, "Keep It Between the Hedges" is generally associated with the University of Georgia's football history. See id. Thus, as a University of Alabama supporter attacked the Toomer's Oaks, it is conceivable that the hedges are at risk of attack from any irate Southeastern Conference supporter of the University of Georgia's respective opponent. 71. Compare Planting Privet Hedging, How to Plant a Privet Hedge,

http://www.ashridgetrees.co.uk/How-to-plant-a-privethedge (last visited Dec. 16, 2011) (Privet "is quick growing and rapidly forgiv[ing]. . . . Great in towns, forgiving of pollution, tolerant of abuse; on balance a Privet hedge is a good choice."); with Alan Bastable, Historic ASHRIDGE NUSERIES,

Magnolia Tree Meets Grisly End, GOLF.COM, Apr. 8, 2011, 3:38 PM,

http://blogs.golf com/presstent/2011/04/future-uncertain-for-remains-ofhistoric-magnolia-tree-.html (recounting the effects of violent thunderstorm which uprooted "a 150-year-old magnolia tree" from Augusta National). 72. GEORGIA FORESTRY COMM'N ET AL., INVASIVE PLANTS OF GEORGIA'S FOREST, http://www.gainvasives.org/pubs/gfcnew.pdf. "Privet is a thick,

semi-evergreen shrub that grows up to 30 feet in height[] [and] commonly . . Privet can invade a used as an ornamental shrub and for hedgerows. wide variety of habitats[] [and] shades and-out competes many native species and, once established, is very difficult to remove." Id.

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University of Georgia 73 demonstrate that a living natural asset in need of protection does not need to be an old growth specimen or a desired living natural asset to gain iconic status.74 Therefore, once the citizens of the state deem an asset noteworthy, the law should provide some mechanism for preserving the use and enjoyment for future generations. III. ATTEMPTS AT PROTECTING LIVING NATURAL ASSETS

A discussion of the previous efforts to protect living natural assets is necessary to understand the evolution of the protection needed and the current void of adequate deterrence for Georgia's living natural assets. 7 5 While there are many physical methods of protecting trees, bushes, or shrubs from malicious harm, the erection of physical barriers not only interferes with the public's enjoyment of the asset, but also has the potential of affecting the natural growth of the asset being protected.7 6 One method of proactive protection that does not require physical barriers is found in the traditional property law approaches of: (1) restrictive covenants: (2) conservation easements: (3) land use regulations: and (4) historical preservation statutes. An additional method of protection for living natural assets is found in criminal statutes imposing culpability for an individual's actions resulting in harm to or destruction of the living natural assets. Criminal statutes commonly employed include those relating to destruction of property and criminal mischief. Because criminal sanctions should be the last line of defense, and only can be employed once harm has already occurred, traditional property law approaches should first be examined to influence the legislature to extend protection to Georgia's living natural assets. But upon a violation in the form of an attack against the things that cannot protect themselves, deterrence and 73. Ward, supra note 69. 74. GEORGIA FORESTRY COMM'N, supra note 72. 75. See 4 WILLIAM BLACKSTONE, COMMENTARIES *4 (providing a

statement of the common law view that criminal penalty did not exist for cutting down a cherry tree). 76. But see Andree Brooks, Trees; A Special Branch of the Law, N.Y. TIMES, Nov. 3, 1991, available at http://www.nytimes.com/1991/11/03/realestate/talking-trees-a-specialbranch-of-the-law.html?pagewanted=all&src=pm (discussing the harmful effects trees inflict upon the foundations of buildings).

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redress may require the use of criminal statutes, as well. A. TraditionalPropertyLaw Approaches

As a result of living natural assets affixing themselves to real property, general protection methods founded upon real property laws enable individuals attempting to protect the things that cannot protect themselves means by which to prevent harm. By entering into an agreement, the landowner or third party can This prevent harm to the living natural asset at issue. agreement can take the form of a restrictive covenant or a conservation easement. 7 9 In addition, for public lands and matters of general public concern, city and town zoning boards are able to determine the appropriate activities to occur in particular areas through land use restrictions, thereby defining and restricting inappropriate conduct that may result in harm to the living natural asset.80 Thus, by preventing the ability to engage in activities that may result in harm to the living natural assets in need of protection, the land use regulations proactively prevent individuals from engaging in activity that is potentially harmful to the asset.81 Lastly, historic preservation statutes extend protection to natural assets by classifying the asset as historically notable, which operates to acknowledge the living natural assets and the need to ensure continued viability of the asset for future generations.82

77. 2 WILLIAM BLACKSTONE, COMMENTARIES *304 ("If the covenantor

covenants for himself and his heirs, it is then a covenant real, and descends upon the heirs; who are bound to perform it, provided they have affects by descent, but not otherwise[.]"). 78. RESTATEMENT (THIRD) OF PROPERTY (SERVITUDES) ยง 1.3(3) (2000) (defining a "restrictive covenant" as "a negative covenant that limits permissible uses of land"). 79. RESTATEMENT (THIRD) OF PROPERTY (SERVITUDES) ยง 1.6 (2000). 80. 1 EDWARD H. ZIEGLER, RATHKPOF'S THE LAW OF ZONING AND PLANNING ยง 1:3 (4th ed. 1974).

81. See id. 82. RESTATEMENT (THIRD) OF PROPERTY (SERVITUDES) ยง 1.6(1) (2000) ("Preservation purposes include preserving the historical, architectural, archaeological, or cultural aspects of real property.").

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1. Restrictive Covenants Real covenants are private agreements restricting land use.83 Through a restrictive covenant, individuals are able to enter into an agreement restricting the intentional destruction of a specific living natural asset by the party bound by the agreement, and if stated, the successors and heirs in interest to the estate. 84 Restrictive covenants may impose use or building restrictions.ss Use restrictions, as implied by the title, prohibit a particular use of the property,8 6 whereas building restrictions prohibit unnatural fixtures from becoming affixed to the real property, as well as limit the purpose of any unnatural fixture.8 7 In addition, restrictive covenants may impose restrictions on the planting of trees or other vegetation without the approval or consent of the individual or group benefiting from the covenant. 88 In general, for a restrictive covenant to be enforceable against subsequent purchasers, heirs, successors, or assigns, the party Absent bound must have notice of the restrictions.89 83. J. DUKEMINIER & J. KRIER, PROPERTY 969 (1981); 5 POWELL ON REAL PROPERTY T 673 (1981); see also F.H. LAWSON, THE LAW OF PROPERTY 101 (Oxford University Press 1958) ("[R]estrictive convents started as mere contract between vendors and purchasers of land."). 84. LAWSON, supra note 83, at 102 (providing a discussion of the distinction between the various servitudes by noting that a common law, restrictive covenants were "enforceable only against person who had notice of them") 85. See, e.g., Payne v. Borkat, 261 S.E.2d 393 (Ga. 1979) (holding twenty year statute of limitations of restrictive covenants for both building and use restrictions). 86. RESTATEMENT (THIRD) OF PROPERTY ยง 1.3 (2000) (defining a "restrictive covenant" as "a negative covenant that limits permissible use of land"). 87. Howard R. Williams, Restrictions on the Use of Land: Conditions Subsequent and Determinable Fees, 27 TEX. L. REv. 158, 159 (1948) (discussing restrictive covenants against building as "the restrictions imposed in the establishment of typical residential subdivision relative to type of construction and use of the premises"). 88. See, e.g., Laosebikan v. Lakemont Cmty. Assoc., 690 S.E.2d 505, 506 n.1 (Ga. Ct. App. 2010) (describing homeowners association covenant preventing the planting of "[g]rass and ornamental plants and shrubbery (and only the foregoing) may be planted on the front or side yard of any lot. All other plants in the front or side yard may be done only with prior written approval of the board or it designees."). 89. LAWSON, supra note 83, at 102 (noting "a registered restrictive

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constructive or actual knowledge of the restrictions contained in the agreement, the burdens imposed by the restrictive covenant do not pass to subsequent parties in interest to the property.90 Historically, for a restrictive covenant to be enforceable, the covenant must also closely relate to use, occupation, or enjoyment of the estate or land such that the restrictive covenant "touches and concerns" the land. 91 But in Georgia, "[a] conservation easement is valid even though: . . . [t]he benefit

does not touch or concern real property."92 In contrast, in states adopting the Third Restatement of Property, the "Touch-OrConcern Doctrine" no longer applies. 93 Regardless, in the states where the doctrine is applicable, few are able to argue that a living natural asset affixed to a parcel of land subject to a restrictive covenant does not touch or concern the land at issue. Despite the various benefits associated with the private nature of restrictive covenants, issues regarding their enforcement arise in a manner of forms. For example, if the verbiage used to codify the restrictive covenant is ambiguous, the restrictive covenant is now good against anyone who acquire the Servient tenement."). Cf Citizens & S. Bank of Dublin v. Morris State Bldg. Corp., 253 S.E.2d 89, 90 (Ga. 1979) (holding despite subsequent purchaser having notice of the effects imposed by a restrictive covenant, original grantee's lack of actual or constructive notice of the restriction at time the land was conveyed, rendering the terms void as the restrictive covenant did not pass to the later successor in interest). 90. See LAWSON, supra note 83, at 102. 91. 3 TIFFANY REAL PROPERTY ยง 854 (3d ed. 2001) (asserting that the

"touch and concern" requirement is satisfied when a covenant "closely relates to the land or estate granted or its use occupation or enjoyment."). 92. O.C.G.A. ยง 44-10-5(6) (West 2011); see O.C.G.A. ยง 44-10-1 (West 2011) ("Georgia Uniform Conservation Easement Act"); see also Robert L. Foreman, Jr. et al., Real Property, 44 MERCER L. REv. 345, 348 (1992) (discussing the effects of the Georgia Uniform Conservation Easement Act in connection with the traditional touch or concern requirement). 93. RESTATEMENT (THIRD) OF PROPERTY

ยง 3.2, cmt. a (2000) ("The

purpose of changing from the touch-or-concern doctrine to the rule stated in ยง 3.1 is to allow innovative land-development practices using servitudes, but it is not intended to remove courts from their historic role of safeguarding the public interest in maintaining the social utility of land resources."). The test to determine the validity of a restrictive covenant is "whether the servitude arrangement violates public policy and the burden is on the person claiming invalidity to establish that the arrangement is one that should not be allowed to run with the land." Id.

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covenant is subject to interpretation by the courts upon dispute between the creators' successors in interest. 94 In addition, the restrictive covenant may be mutually abandoned by the parties entering into the agreement or by successors in interest to the restrictive covenant.9 5 Further, the restrictive covenant contains one significant flaw; it is only effective against the parties consenting to the agreement or their successors or assigns.96 While the covenant may enable an individual or a group to seek redress against the bound party violating the agreement, the covenant is entirely ineffective as to third party violators. 97 Lastly, restrictive covenants only prevent the unnatural destruction of natural assets; they do not impose liability for the ancient maxim "actus dei nemini facit injuriam-that no one

shall be injured through the act of God." 98 Thus, restrictive covenants only protect living natural assets from unnatural destruction imposed by the parties unambiguously bound by the original promise not to damage or destroy the asset. 2.

ConservationEasements

"For more than a century, conservation easements have been used in the United States to maintain open space or to protect 94. See, e.g., Hammonds v. Huddle House, Inc., 257 S.E.2d 508, 509 (Ga. 1979) ("The primary rule for the interpretation of restrictive covenants is to assertion the intention of the parties from the entire context of the agreement."). 95. RESTATEMENT (THIRD) OF PROPERTY (SERVITUDES) ยง 7.4 (2000) ("A servitude benefit is extinguished by abandonment when the beneficiary relinquishes the rights created by a servitude."). 96. DUKEMINIER & KRIER, supra note 83, at 968-70. 97. Id. 98. Latimer Whiting & Co. v. Ware, 2 Ga. 272, 274 (1847) ("[I]f a lessee covenants to leave a wood in as good plight as the wood was at the time of making the lease, and afterwards the trees were blown down by a tempest, his is discharge from his covenant.") (citation omitted). While "acts of God" inflicting destruction upon natural assets are not within the scope of this Comment, the laws unwillingness to impose liability or culpability for "the acts of God" may illustrate an accused's ability to claim innocence by alleging the destruction to the living natural asset occurred through "the acts of God." For example, suppose an analogs set of facts as the Updyke saga. But before "Al from Dadeville" revealed that the Toomer's Oaks had been poisoned, an "act of God" destroyed both trees. Is "Al from Dadeville" subsequently free from liability and free to disclose the acts occurring prior to the natural destruction?

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the environment." 99 A conservation easement is a method used to protect the environment and the ecological assets attached to the land subject to the easement.1oo "Conservation purposes include . . . protecting natural resources, including plant and

wildlife habitat and ecosystem[.] Preservation purposes include preserving the historical, architectural, archaeological, or As a private legal cultural aspects of real property."' 0' agreement between a landowner, all successors in interest, and the benefiting group or organization, conversation easements restrict the activities that may occur on the land subject to the conservation easement.102 Therefore, the main purpose of a conservation easement is to prevent and prohibit private lands from commercial or residential development. 0 3 As a result, conservation easements have the ability to protect living natural assets from the destruction associated with real estate development projects. The benefits of conservation easements stem from the generally unlimited-unless otherwise specified-duration of the easement.10 4 The conservation easement is treated like any other easement,o and is therefore able to be conveyed, 99. Carol Necole Brown, A Time To Preserve:A Callfor FormalPrivateParty Rights in Perpetual Conservation Easements, 40 GA. L. REV. 85, 87 (2005) (arguing private parties need interest rights in conversation easements "sufficient to confer standing . . . allow[ing] private parties to enforce

conservation easements and to sue for damages when these easement are violated"). 100. RESTATEMENT (THIRD) OF PROPERTY (SERVITUDES) ยง 1.6 (2000). 101. Id. 102. Id.; see also Alexander R. Arpad, Private Transaction, Public Benefits, and PerpetualControl Over the Use of Real Property; Interpreting Conservation Easements As Charitable Trusts, 37 REAL PROP. PROB. & TR. J. 91, 100 (2002). 103. JANE DIEHL & THOMAS S. BARRETT, THE CONSERVATION EASEMENT HANDBOOK 5-9 (1988); SAMUEL N. STOKES ET AL., SAVING AMERICA'S COUNTRYSIDE 224-31 (1994). 104. See, e.g., O.C.G.A. ยง 44-10-3 (West 2011) ("[A] conservation easement is unlimited in duration unless the instrument creating it otherwise provides."); TEX. NAT. RES. CODE ANN. ยง 183.002 (West 2011) ("[A] conservation easement is unlimited in duration unless the instrument creating it makes some other provision."). 105. 4 POWELL ON REAL PROPERTY ยง 34A.01 ("Typically the term 'conservation easement' applies to scenic, historic preservation (including facade), and agricultural preservation easements and restrictions authorized

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modified, terminated, or altered as necessary.' 06 Therefore, the freely transferable nature of the conservation easement provides the ability to control the use of the land subject to the conservation easement for an extended period of time. 10 7 If the conservation easement is breached, "the easement holder is allowed to seek equitable enforcement of the easement's terms in court." 108 Additional advantages of conservation easements are the mutual benefits to both conservation organizations and landowners alike who desire to protect living natural assets. 109 Landowners benefit from the conservation easement because the owners are able to protect the land, and the living natural assets affixed to the land, in Verpetuity,11 0 while still maintaining ownership of the land." By retaining ownership by such statutes. All have similar characteristics, except that preservation and facade easements are restrictions on the use, change, or demolition of structures and often contain affirmative maintenance obligations. Scenic easements, as the name implies, are primarily for the purpose of preserving views."). 106. See, e.g., O.C.G.A. ยง 44-10-3; TEX. NAT. RES. CODE ANN. ยง 183.002. 107. See 4 POWELL, supra note 105, ยง 34A.01. 108. Jeffrey Tapick, Note, Threats to the Continued Existence of ConservationEasements, 27 COLUM. J. ENVTIL. L. 257, 270 (2002). 109. Daniel L. Aaronson & Michael B. Manuel, Conservation Easements and Climate Change, 8 SUSTAINABLE DEV. L. & POL'Y 27, 27 (2008) ("The conservation easement has . . . emerged as one of the most popular land

conservation tools in the United States because it allows is holder, typically a land trust, to protect land without the necessity of owning and managing the property."). 110. But see 2 WILLIAM BLACKSTONE, COMMENTARIES *318-19 (asserting the general common law disfavor for perpetual durations). "[B]y the common law, as it has stood for many centuries, all persons seised of any estate might let leases to endure so long as their own interest lasted, but no longer." Id. at *318. But conservation easements are the result of statutory construction, and do not stem from the common law. UNIF. CONSERVATION EASEMENT ACT, 12 U.L.A. 64 (Supp. 1989). See generally A. DUNHAM, PRESERVATION OF OPEN SPACE AREAS: A STUDY OF THE NONGOVERNMENTAL ROLE 19-22 (1966) (discussing the highly risky nature of

relying upon easement law to restrict land for conservation purpose under common law precedent prior to the enactment of statues enabling the conservation easement). 111. Tapick, supra note 108, at 261 ("The only property right that a landowner surrenders when placing a conservation easement on her land is the right to develop the land in a manner that violates the terms of the

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of the land, the landowner has the ability to receive income tax deductions for "qualified conservation contributions." 1 l 2 In conjunction with these benefits to landowners, the beneficiary of the conservation easement avoids the expense of having to purchase the property outright, while still having the ability to preserve the property as if the land is owned outright."13 The major benefit of conservation easements, in comparison to other real property alternatives, is that the "private, voluntary aspect of easements" empowers the private landowner to decide whether an easement is placed on the land, while controlling the effects of the easement. 14 Because the conservation easement can cover the entire estate or apply to only a selected portion of the property, the landowner has the ability to determine the scope of the easement at the outset based on what portions and qualities of the land are most deserving of protection.1 15 In doing so, the landowner granting the easement ensures that the parcel of land subject to the conservation easement will maintain the natural qualities and characteristics inherent at the time the easement is granted, thereby protecting the land and the living natural assets affixed thereto from unnatural forces for

the easement's duration.116 easement; the land itself still belongs to the landowner. Accordingly, the landowner keeps all of the other property rights in the 'bundle of sticks' associated with that property, including the rights of exclusion, conveyance, and limited, non-development use."). 112. I.R.C. ยง 170(f)(3)(A) (West 2011). See, e.g., Fancine J. Lipman, No More ParkingLots: How the Tax Code Keeps Trees Out of a Tree Museum and Paradise Unpaved, 27 HARV. ENVTL. L. REv. 471, 493-95 (2003) ("A forest landowner can impose a conservation easement on her property and enjoy most of the benefits of land ownership. To encourage landowners to preserve their property, Congress enacted an exception for contributions of certain partial interest that provides donors with a charitable deduction for their qualifying grants of conservation easements."); see also Maureen Rudolph & Adrian Gosch, A Practitioner'sGuide to Drafting Conservation Easements and the Tax Implications, 4 GREAT PLAINS NAT. RESOURCES J. 143, 161 (2000) ("A qualified conservation contribution is defined in the Internal Revenue Code as "a contribution (1) of a qualified real property interest, (2) to a qualified organization, (3) exclusively for conservation purposes.") (internal citations omitted). 113. DIEHL & BARRETT, supra note 103, at 4-6. 114. Id. at 5. 115. Id.

116. Lipman, supra note 112, at 516-17.

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Much like restrictive covenants, the conservation easement merely erects an invisible fence attempting to protect the living natural asset subject to the conservation easement's restrictions. While the conservation easement restricts the grantor, heirs, and successors in interest from engaging in the restricted activities on the land, the conservation easement, in and of itself, neither provides notice to third parties of the restrictions, nor deters individuals from breaching the restrictions.1 17 Moreover, conservation easements are susceptible to expiration, regulatory takings, and alteration by the beneficiary." 8 The effect of these features is to return the living natural assets, once protected, to the original state of exposure to attack from external, unnatural forces. 3. Historic PreservationStatutes Historic preservation is generally available for those things deemed "historic" and in need of protection to ensure their continued existence for the future.119 Historic preservation statutes generally limit the ability of landowners, successors, or assigns from destroying any fixtures, natural or man-made, attached to the property. 0 The Georgia Historic Preservation 117. Despite the conservation easement generally being a document recorded in the land records of the county or city where the land is situated, few can dispute that only sophisticated parties will consult these records prior to engaging in prospective economic activity on the land subject to the conservation easement. Thus, for the purposes of this Comment, the notice to third parties wishing to violate the conservation easement shall apply to those individuals merely wishing to breach the easement and neither takes title nor benefits from the property in an affirmative manner. 118. See, e.g., DIEHL & BARRETT, supranote 103, at 4-6.

119. O.C.G.A. ยง 44-10-21 (West 2011) (asserting the legislative purpose behind ordinances providing for historical preservation is "that the historical, cultural, and esthetic heritage of this state is among its most valued and important assets and that the preservation of this heritage is essential to the promotion of the health, prosperity, and general welfare of the people"); see also Penn. Cent. Trasnp. Co. v. City of New York, 438 U.S. 104, 132 (1978) (holding as constitutionally permissible landmark regulations and prohibitions against certain uses of property). "The restrictions imposed are substantially related to the promotion of the general welfare and not only permit reasonable beneficial use of the landmark site but also afford appellants opportunities further to enhance not only the Terminal site proper but also other properties." Id. (footnote omitted)). 120. See generally David F. Tipson, Putting the History Back in Historic

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Actl21 ("GHPA") enables a local municipality or county governing body to establish a historic preservation commission to review, recommend and determine the necessary steps to protect historic assets. 2 Pursuant to O.C.G.A. § 44-10-30, a "historic preservation commission" has the ability to pursue judicial remedies "to prevent any illegal act or conduct with respect to . . . historic property. . . ."123

The benefits of historic protection are similar to those contained in land use regulations, discussed in the next section, because the historical preservation status establishes the locality's declaration of the importance of the asset, thereby asserting the community's desire to prevent harm to the asset. Thus, historical preservation statutes provide an additional mechanism for identifying and protecting the living natural asset. Despite this communal recognition, and the availability of criminal sanctions, 124 historical identification-if grantedonly provides invisible barriers of protection, similar to those associated with restrictive covenants and conservation easements, to the asset in need of protection. 4. Land Use Regulations

An additional method, and in general the most viable option, of protection for living natural assets are land use regulations. Common forms of land use regulations include "[z]oning, comprehensive plans, infrastructure control, urban containment, building moratoriums, and permit caps[.]"l 2 5 Zoning Preservation,36 URB. LAW. 289, 306 (2004). Most ordinances require a permit for demolition within the historic district, but many allow demolition after a certain period of time if the landowner has made a good-faith effort to sell the property. Savannah, Charleston, and Alexandria take this approach. Some ordinances do contain an absolute prohibition on demolition without a permit from the review board. Id. at 306. 121. O.C.G.A. §§ 44-10-20 to 44-10-31 (West 2011). 122. Id. § 44-10-24. 123. Id. § 44-10-30. 124. O.C.G.A. § 44-10-31 ("Violations of any ordinance adopted in conformity with this article shall be punished in the same manner as provided by charter or local law for the punishment of violations of other validly enacted municipal or county ordinances."). 125. Rold Pendal et al., From Traditional to Reformed: A Review of the

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ordinances provide a constitutional method-if crafted within constitutional bounds-by which local zoning boards may plan and impose restrictions upon property with regard to both building and use. 126 In addition, zoning ordinances enable a county or town zoning board to zone the specific area where the living natural assets are located to prohibit any foreseeable activities that may result in the death or destruction of the tree, bush, or shrub for which protection is sought. 12 7 For example, restrictions against the use of pesticides in the area, use of heavy machinery, development, and other harmful activities may be utilized to protect the tree, bush, or shrub from these potential threats. 128 In addition, land use regulations have the ability to impose criminal liability upon an individual violating the terms

of the regulation. 12 9 Land use regulations and regulatory zoning ordinances can be specifically tailored to protect living natural assets and are commonly referred to as tree preservation ordinances.130 The Land Use Regulation in the Nation's 50 Largest Metropolitan Areas, THE BROOKINGS INST. 1 (Aug. 2006), http://www.brookings.edu/~/media/Files/rc/reports/2006/08metropolitanpoli cypendall/20060802_Pendall.pdf 126. Village of Euclid v. Amber Realty Co., 272 U.S. 365, 396 (1926) (affirming the constitutionality of "Euclid" zoning ordinance). "[B]efore the ordinance can be declared unconstitutional, that such provisions are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare." Id. (citations omitted). 127. Id. at 365 (upholding prohibition against industrial use); see also John J. Costonis, The Chicago Plan: Incentive Zoning and the Preservation of Urban Landmarks, 85 HARV. L. REv. 574, 599 (1972). (discussing the current problem of "striking a correct balance between prevent urban design abuse through proper planning controls and facilitating the marketability of development rights by freeing them of onerous restrictions"). 128. Craig Anthony Arnold, Fourth-Generation Environmental Law: Integrationistand Multimodal, 35 WM. & MARY EVTL. L. & POL'Y REV. 771, 838-41 (2011) (providing discussion of "zoning and tree protection ordinances"). 129. See Greater Atlanta Homebuilders Ass'n. v. DeKalb County, 588 S.E.2d 694, 699 (Ga. 2003) (noting zoning ordinance imposing criminal liability valid so long as "no strict liability exists"). 130. See, e.g., R. Scott Wilder, Note, Tree PreservationMethods: Zoning Regulation vs. Conversation Servitude, 14 J. NAT. RESOURCES & ENVTL. L. 253, 253 (1998-1999) (providing discussion of living natural asset protection methods in the form of tree preservation ordinances designed "to prevent the

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main purpose of local tree preservation ordinances is "'to promote the preservation of trees[,]"' while not restricting the land owner's general use of the property.131 Because tree preservation ordinances do not entirely deprive the owner "of the value and practical use of [the] property," a taking does not occur.132 Therefore, the Georgia Supreme Court has upheld the constitutionality of a locality's tree ordinance imposed through zoning and planning ordinances against claims of due process because "the Tree Ordinance, viewed as a whole, [did not] regulate according to zones or districts." 3 3 Pursuant to O.C.G.A. ยง 44-5-60, "covenants restricting lands to certain uses shall not run for more than 20 years in municipalities which have adopted zoning laws nor in those areas in counties for which zoning laws have been adopted."l 34 As a result, use restrictions designed to protect living natural assets fall "within the scope of [O.C.G.A. ยง 44-5-60] and render the zoning ordinance superior to the restrictive covenant." 35 Thus, in Georgia, zoning laws have the ability to circumvent prior private agreements restraining the activities which can occur on private lands by placing the good of society as a whole ahead of desires of private individuals to restrict land use through property law principles. clear-cutting of trees at the whim of developers"). 131. Wardlaw v. Ivey, 676 S.E.2d 858, 862 (Ga. Ct. App. 2009). 132. Rolleston v. State, 266 S.E.2d 189 (Ga. 1980) (affirming the constitutionality of the "Department of Natural Resources Shore Assistance Act" as a "valid land use regulation well within ambit of legislative authority"). Compare Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 296 (1981) ("A statute regulating the uses that can be made of property effects a taking if it 'denies an owner economically viable use of his land[.]") (quoting Agins v. Tiburon, 447 U.S. 255, 260 (1980)); with Lucas v. South Carolina Costal Council, 505 U.S. 1003, 1027 (1992) (holding a statute that denied petitioner the right to build on beachfront lots must also provide compensation unless "the logically antecedent inquiry into the nature of the owner's estate shows that the proscribed use interests were not part of his title to begin with"). 133. Greater Atlanta Homebuilders Ass'n. v. DeKalb County, 588 S.E.2d 694, 696 (Ga. 2003) (upholding county's tree ordinance). 134. O.C.G.A. ยง 44-5-60(b) (West 2011). 135. Payne v. Borkat, 261 S.E.2d 393, 394 (Ga. 1979) (holding twenty year statute of limitation for restrictive covenants applies to both use and building restrictions with the invalidation of any expired covenant not violating the constitution).

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Despite this ability to circumvent private contracts, while imposing criminal and civil liability, 6 similar to restrictive covenants and easements, land use restrictions erect invisible barriers that do nothing more than attempt to prevent harms to living natural assets. In addition, land use regulations designed to protect living natural assets "are inherently more difficult to implement on a uniform basis because natural resources are not equally dispersed among property."1 3 7 Therefore, land use regulations provide a mechanism for localities desiring to identify and protect living natural assets, but similar to the private agreements and historical preservation statutes, the restrictions alone merely impose invisible barriers of protection. B.

CriminalStatutes

An advantage of relying on criminal statutes to provide an additional layer of protection for living natural assets is the ability of criminal statutes to hold the accused responsible when civil recourse is not available or inadequate to impose sufficient While many of the penalties against the individual.13 traditional property law approaches discussed in Part III.A encompass various aspects of culpability, the deterrent effects of these proactive protective measures, in some cases, fall short of the requisite protection needed to prevent harm to the living natural assets deserving of additional protection. In relying on and applying criminal statutes, all individuals that enjoy the living natural assets are able to enforce the rights of the assets upon violation by another.1 3 9 Because there is only one living natural asset in Georgia that owns itself-the Toombs Oak-' 136. Wilder, supra note 130, at 265. 137. ZIEGLER, supra note 80, ยง 1:3. 138. See, e.g., Sierra Club v. Morton, 405 U.S. 727, 740 (1972) (holding that environmental activists lacked standing to challenge the construction of a proposed ski resort and recreation area due to lacking "a direct stake in the outcome" and the plaintiffs inability to establish actual use of the land at issue). 139. Id. 140. E. MERTON COULTER, THE TOOMBS OAK, THE TREE THAT OWNED ITSELF, AND OTHER CHAPTERS OF GEORGIA 9 (Univ. of Georgia Press 2010) (1966) ("DEEDED TO ITSELF. A Tree in Athens [Georgia] Owns Itself. Deeded to it Years ago . . . as the record of deeds at the court house contains

the one giving the tree itself and all the land within eight feet of it.") (quoting ATHENS WEEKLY BANNER, Aug. 12, 1890).

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the remaining living natural assets of the state have a limited pool of individuals able to seek redress for harms inflicted upon the living natural assets. But the Toombs Oak is also limited due to the only individual able to seek redress on behalf of the natural asset is the trustee appointed in the deed.14 1 Therefore, by relying on criminal statutes to seek redress against those inflicting harm upon natural assets, the barriers and limitations of enforcement are decreased. Criminal statutes provide an additional layer of protection to ensure that society as a whole is able to pursue damages and would-be attackers are deterred from engaging in activity that manifests a desire to damage, harm, or destro the living natural assets that are unable to protect themselves.' 4 This section will explore the ability of criminal statutes to provide an additional layer of protection to living natural assets that have, and those that may, come under attack. The various definitions of criminal mischief and criminal destruction of property will be discussed, along with the deterrence benefits inherent in criminal sanctions. The right to destroy one's own property, regardless of the form, is one of the many sticks included in the traditional bundle associated with property rights. 143 Sometimes living natural assets must be destroyed in order to protect and preserve the legitimate interests of others.1 44 By destroying a living natural asset, the individual committing the offense has manifested a desire to commit a destruction of property. 14 5 In some instances, based on the nature of the destruction to the living natural asset, the act itself will constitute the individual's 141. Id. at 20-21; see also O.C.G.A. ยง 44-14-120 (West 2011). 142. But see 4 WILLIAM BLACKSTONE, COMMENTARIES *4. "[I]t is impossible that in the eighteenth century it could ever have been made a capital crime ... to cut down a cherry tree in an orchard." Id. 143. See, e.g., Lior Jacob Strahilevitz, The Right to Destroy, 114 YALE L. J. 781, (2005) ("While the right to destroy one's property has ancient origins, the functional justifications for that right have not been well developed."). 144. Miller v. Schoene, 276 U.S. 272, 279 (1928) (upholding state order for the destruction of cedar trees located within close proximity to apple orchard). "When forced to such a choice the state does not exceed its constitutional powers by deciding upon the destruction of one class of property in order to save another which, in the judgment of the legislature, is of greater value to the public." Id. 145. 4 WHARTON'S CRIMINAL LAW ยง 474 (15th ed. 2010).

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intent to harm or destroy the living natural asset.146 In addition, if the individual charged with destroying property owns the property or has the permission of the owner to destroy the But if the property, criminal liability will not exist.1 4 7 individual is not entitled to destroy the living natural asset under one of these instances, the individual may be criminally liable for the destruction of the asset. 14 8 The crime that encompasses the destruction of natural assets varies with jurisdictions and depends on whether the statutory scheme contains the charge of criminal mischief or criminal destruction of property. Criminal mischief is defined as the purposeful, reckless, or negligent destruction of the "tangible property of another."1 4 9 In both Cullen and the pending Updyke case, the charge of criminal mischief was filed against the defendants.15 0 Thus, criminal mischief statutes provide some states with the ability to seek recourse against individuals attacking the living natural assets located within the jurisdiction. In contrast, other jurisdictions, such as Georgia, consolidate various aspects of criminal mischief, and employ the broader charge of criminal destruction of property.1 5 Because criminal destruction of property statutes, modeled after the Model Penal Code, encompass a broader cross-section of prohibited activity,152 the benefit for states relying upon criminal destruction of property statutes is to remove the previous barriers associated with obtaining convictions under traditional

146. 147. 148. 149.

Id.

Id. Id.

See, e.g., MODEL PENAL CODE ยง 220.3 (West 2011). 150. Cullen v. State, 832 S.W.2d 788, 791 (Tex. Ct. App. 1992); Thompson, supra note 6. Lee County (Ala.) grand jury indicted Harvey Updkye Jr.. . . on four felony charges and two misdemeanors. He faces two felony counts of first degree criminal mischief, two felony counts for unlawful damage, vandalism or theft of property from a farm animal or crop facility and two misdemeanor counts of desecrating a venerated object[.] Id. 151. See, e.g., ROBERT E. CLEARLY, JR., KURTZ CRIMINAL OFFENSES AND DEFENSES IN GEORGIA 687 (West 4th ed. 1997).

152. Id. at 686-88.

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criminal mischief statutes.15 3 Traditional criminal mischief statutes may require the actor possess the specific intent to damage property,154 whereas criminal destruction of property statues remove this barrier, enabling a conviction upon the state proving the actor carried the intent to do the act which resulted in the damage to the property.15 5 In order to illustrate these differences, the statutes used in the criminal cases of the Treaty Oak and the Toomer's Oaks will be discussed, followed by a discussion of Georgia's criminal destruction of property statute. In Texas, where the poisoning of the Treaty Oak occurred, criminal mischief requires the accused to act "intentionally or knowingly" in a manner that "damages or destroys the tangible property of the owner." 56 In addition, if an individual "intentionally or knowingly tampers with the tangible property of the owner and causes pecuniary loss or substantial inconvenience to the owner or a third person" the accused is guilty of criminal mischief.'57 The Texas criminal mischief statute also imposes culpability for the knowing and intentional actions of vandalism to the "tangible property of the owner."15 8 Punishment for engaging in conduct determined to be criminally mischievous varies based on the "pecuniary loss" sustained by A greater "amount of the tangible property at issue.

ยง 220.3, cmt. 1. 13 So.3d 97, 98 (Fla. 4th DCA 2009) ("A defendant must possess the specific intent to damage the property of another to be found guilty."); People v. Roberts, 140 A.D.2d 961, 961 (N.Y. App. Div. 1988) ("An intent to injure a person does not satisfy the mens rea requirement of intent to damage property simply because property is damaged in the course of the attack.") (citation omitted). 155. See, e.g., Jordan v. Mosley, 487 F.3d 1350, 1355 (11th Cir. 2007) ("The only requisite intent of [criminal destruction of property] is a general intent to do the act: damaging another person's property."); Phenis v. United States, 909 A.2d 138, 163 (D.C. 2006) ("[A]lthough malice may be inferred from intentional wrongdoing, the only intent required to be proven is the intent to do the act which results in injury-in other words a general intent.") (quoting Gonzalez v. United States, 589 A.2d 1065, 1067 (D.C. 2004)). 156. TEX. PENAL CODE ANN. ยง 28.03(a)(1) (West 2011). 157. Id. ยง 28.03(a)(2) . 158. See id. ยง 28.03(a)(3). 153. See MODEL PENAL CODE 154. See, e.g., R.E. v. State,

159. Id.

ยง 28.03(b)(1)-(4).

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pecuniary loss" results in an increased offense classification.' 60 Despite the nine-year imprisonment conviction imposed in Cullen appearing to fit the crime, the additional sanction of $1000 did not provide the Texas community with adequate

redress.16 1 In Alabama, where the Updkye case is currently pending, the elements of criminal mischief in the first degree require the state to prove beyond a reasonable doubt that: (1) actual damage to the property was the result of the actions of the accused; (2) the accused acted with the intention to damage the property; and (3) the damage exceeds the statutory requisite. 62 First-degree criminal mischief is a felony, requiring the accused to act with the intent to inflict damage to property that the individual has no right or "reasonable ground to believe that he or she has such a right" to damage or destroy the property.16 3 In addition, the damage must be the result of "an explosion" or result in more than two thousand five hundred dollars in property loss.164 To 160. Compare TEX. PENAL CODE ANN. ยง 28.03(b)(1)(A) ("Class C misdemeanor ifi] the amount of pecuniary loss is less than $50."); with TEX. PENAL CODE ANN. ยง 28.03(b)(7) ("[F]elony of the first degree if the amount of pecuniary loss is $200,000 or more."). 161. Cullen v. State, 832 S.W.2d 788, 791 (Tex. Ct. App. 1992); Giedraitis, supra note 15, at 5 ("To date, [October 1989] over $25,000 of the $100,000 spent to save the tree has been spent to process soil and tissue samples."). 162. Ex parte G.G., 601 So.2d 890, 892 (Ala. 1992) (overturning juvenile conviction for alleged vandalism due to state's failure "to prove either that [the defendant] damaged the hotel property or that he had the intention to damage the property"). In so holding, the Supreme Court of Alabama reasoned that criminal mischief in the first degree requires more than a mere presence of the accused at the scene of the destruction, and this alone does not "prove beyond a reasonable doubt" the accused committed the crime as charged and that the alleged actions actually caused the harm to the property subject to the destruction. Id. at 893. 163. ALA. CODE ยง 13A-7-21 (West 2011). See, e.g., Horn v. State, 908 So.2d 303, 304 (Ala. Crim. App. 2004) (holding automobile bought during marriage satisfies the "any reasonable ground for belief' element, negating culpability for the charge of criminal mischief against ex-husband for causing five thousand nine hundred dollars in damage to the former couple's vehicle by "hit[ting] the [vehicle] with his one-ton flatbed truck"). 164. ALA. CODE ยง 13A-7-21(a)(1), (2). The monetary requisite was increased in 2003 by the Alabama legislature from one thousand dollars to two thousand five hundred dollars. See H.B. 491, 1st Reg. Sess. (Ala. 2003)

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determine the statutory extent of monetary injury, "[r]epair costs and replacement costs may, at times, be indicative of the amount of damages, [but] the common measure of damages for personal property in civil cases is the difference in market value before and after the harm done." 6 5 But as the current state of the Toomer's Oaks illustrates, merely exceeding the statutory level for property damage of two thousand five hundred dollars is a mere fraction of the expense currently incurred to fight the herbicide Updyke allegedly applied to the Toomer's Oaks. 166 Criminal mischief, as related to the destruction of property, is no longer a recognized charge in Georgia.16 7 Rather in Georgia, criminal damage to property is the means by which the state enforces the rights of the living natural assets subject to attack.16 8 Criminal destruction of property is divided into two categories: first and second degree.' 6 9 "A person commits the offense of criminal damage to property in the first degree when he: [] [k]nowingly and without authority interferes with any property in a manner so as to endanger human life[.]"70 In addition, if the individual "knowingly and without authority" (enacted). 165. Musgrave v. State, 555 So.2d 1190, 1192 (Ala. Crim. App. 1989) (affirming conviction for criminal mischief based on the damage amount being ascertained by photographs of the property destroyed and attested to by an expert witness). 166. See Chesser, supra note 67. "The trees will be closely monitored for the next three to five years and the leaves will continue to be removed to prevent any further contamination. The approximate cost of the measures taken to minimize the effects of the poison on the oaks is $80,000[.]" Id. 167. Carthem v. State, 529 S.E.2d 617, 619 (Ga. 2000) (discussing the 1968 enactment of the Criminal Code of Georgia "consolidating various provisions against malicious mischief' such that "the crime of criminal damage to property essentially codifies the common law of malicious mischief'). 168. See O.C.G.A. § 16-7-22 (West 2011); O.C.G.A. § 16-7-23 (West 2011); see also Hildebrand v. State, 433 S.E.2d 443, 445 (Ga. Ct. App. 1993) (overturning conviction under O.C.G.A. § 16-7-23 for defendant's "joyride around [a] golf course" resulting in the destruction of golf carts and "some additional damage when [the defendants] were driving into trees, shrubs, and so forth[]" because of the prosecutions failure to provide evidence of the value of the damage). 169. O.C.G.A. § 16-7-22 (first degree); O.C.G.A. § 16-7-23 (second degree). 170. O.C.G.A. § 16-7-22(a)(1).

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employs the means of public utilities to inflict damage to property, the individual is guilty of the offense of criminal damage to property in the first degree.17 1 For example, if an individual placed herbicide into the "water supply" feeding the living natural asset subject to attack with water, the individual would be, among other things, in violation of O.C.G.A. § 16-722(a)(2). 17 2 The conviction of criminal damage to property in the first degree is a felonious actl 73 and is punishable "by imprisonment for not less than one nor more than ten years." 174 A limiting characteristic of criminal damage in the first degree requires an endangerment to human life. 1 In general, the charge of criminal destruction is reserved for violations against the person of another, not the living natural asset of another.176 If a human life is not endangered, the damage to the property of another may result in second-degree criminal damage of property.17 7 Thus limiting any punishment imposed in the form of imprisonment to a term not exceeding five 178 years. As a general intent crime, the damage to the property alone suffices to establish the actor's intent to destroy the living natural asset of another.1 7 9 Therefore, much like the general intent crime of sexual battery, defined as "intentionally mak[ing] physical contact with the intimate parts of the body of another person without the consent of that person[,]" 1 8 0 the general intent to damage property is the manifested "intent to do 171. Id. § 16-7-22(a)(2). 172. Id. (defining "public utility service" with examples of "any public system of public communication, public transportation, sewerage, drainage, water supply, gas, power,

. . .

or with any constitute property thereof").

173. Waugh v. State, 437 S.E.2d 297, 298 (Ga. 1993). 174. O.C.G.A. § 16-7-22(b). 175. Waugh, 437 S.E.2d at 301. 176. See id. 177. O.C.G.A. § 16-7-23. 178. Id. § 16-7-23(b). 179. Jordan v. Mosley, 487 F.3d 1350, 1356 (11th Cir. 2007) ("The only requisite intent of [O.C.G.A § 16-7-23(a)] is a general intent to do the act: damaging another person's property.") (citation omitted). 180. O.C.G.A. § 16-6-22.1(b) (West 2011). See, e.g., Strickland v. State, 479 S.E.2d 125, 128 (Ga. Ct. App. 1996) (discussing the difference between the specific intent crime of child molestation with the general intent crime of sexual battery).

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the act: damaging another person's property."18 1 If convicted, the charge of criminal damage in the second degree imposes "imprisonment for not less than one nor more than five years."' 8 2 As a result, if Georgia's living natural assets are not extended additional protection, 3 or the individual convicted of harming the asset does not breach other sections of the Official Code of Georgia, the most an individual engaging in similar actions to both the defendant in Cullen and Updkye can face is ten years' incarnation.184 Furthermore, any restitution is limited to the ability of the defendant to pay the entire cost of damage inflicted upon one of Georgia's living natural assets. Despite a ten year sentence and the potential for a significant restitution order for poisoning a natural asset appearing to be a significant deterrent, the examples provided by the Treaty Oak and the Toomer's Oaks-jurisdictions containing analogous sentencing requirements to Georgia-establish the need for Georgia to extend additional protection to the living natural assets of the state to deter these actions from occurring. IV. How TO PROTECT THE THINGS THAT CANNOT PROTECT THEMSELVES

Much like the various other beings that cannot protect

181. Mosley, 478 F.3d at 1356.

182. O.C.G.A. ยง 16-7-23(b). 183. See supra Part III.A.1-4 discussion & accompanying text. 184. See O.C.G.A. ยง 16-7-22(b) (imposing "imprisonment for not less than one nore more than ten years"); O.C.G.A. ยง 16-7-23(b) (imposing "imprisonment for not less than one nore more than five years"). 185. O.C.G.A. ยง 17-14-10(a) (West 2011) ("In determining the nature and amount of restitution, the ordering authority shall consider: (1) The financial resources and other assets of the offender or person ordered to pay restitution including whether any of the assets are jointly controlled; (2) The earnings and other income of the offender or person ordered to pay restitution; (3) Any financial obligations of the offender or person ordered to pay restitution, including obligations to dependents; (4) The amount of damages; (5) The goal of restitution to the victim and the goal of rehabilitation of the offender; (6) Any restitution previously made; (7) The period of time during which the restitution order will be in effect; and (8) Other factors which the ordering authority deems to be appropriate.").

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themselves, 186 living natural assets need additional protection. As demonstrated by the defects of private agreements, the restrictions imposed by restrictive covenants or conservation easements may only restrict the actions of parties, or the subsequent successors or assigns, that agree to the restrictions.18 7 One defect of conservation easements is the courts' general unwillingness to award monetary damages for breach of the easement's terms " or to impose criminal sanctions upon the breach thereof by third parties not bound to the easement's terms.189 Thus, additional protection for natural assets may be obtained by increasing the monetary penalties associated with a violation of the underlying statute used to protect the natural asset, in addition to using private agreements. While land use regulations, mainly in the form of tree protection ordinances, 0 may appear to be the most effective way to prevent third party harm to living natural assets, ordinances fall short absent sufficient criminal penalties to deter individuals from breaching the terms. Although criminal sanctions are available, a violation of land use regulations generally results in civil damages, which limit the remedy to monetary damages for the harm inflicted.191 As such, the punishment needs to, and must, fit the crime.192 Instead of making the tree whole again, civil liability alone does not afford 186. See supra Part II. discussion & accompanying text. 187. See supra Part III.A. 1-2 discussion & accompanying text. 188. Cf Western N.Y. Land Conservancy, Inc. v. Cullen, 886 N.Y.S.2d 303 (N.Y. App. Div. 2009) (affirming punitive damages award of $500,000 for defendant's egregious acts of trespassing on Land Conservancy property and cutting down and removing trees). 189. See DIEHL & BARRETT, supra note 103, at 4-5; but see Jesse J. Richardson, Jr., Conservation Easements and Ethics, 17 SAN JOAQUIN AGRIC. L. REv. 31, 35 (2007-2008) (providing discussion of criminal penalties imposed against "attorney's land trust, and land trust personal, accountants, appraisers, and others" for tax fraud in relation to a conservation easement). 190. Arnold, supra note 128, at 840. 191. See generally M. T. Van Hecke, Zoning Ordinancesand Restrictions in Deeds, 37 YALE L.J. 407 (1928) (tracing the historical origins and contemporary developments of zoning ordinances and deed restrictions). "The method 192. 4 WILLIAM BLACKSTONE, COMMENTARIES *12. always to be proportioned to the however of inflicting punishment ought exceed it[.]" Id. particular purpose it is meant to serve, and by no means

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sufficient protection to things that cannot protect themselves due to a lack of adequate deterrent measures.' 93 For example, what is the monetary damage associated with the willful intent to destroy a treasured tree, bush, or shrub in Georgia? Can monetary damages alone replace one of the many things money cannot buy-time? While the funds are necessary to offset the financial cost incurred as a result of the damage to the asset, these costs can be embodied in the form of additional punitive damage, 194 and in instances where the defendant is unable to satisfy the monetary penalty, alternative compensation methods of community service may help to repay society and deter future analogous actions. Despite the proactive attempts of traditional property law approaches erecting invisible barriers of protection, criminal statutes too are limited in the extent of effectiveness because in order for a criminal sanction to be imposed, an individual must have taken action resulting in the very harm sought to be prevented. As a result, much like the various real property approaches discussed, criminal sanctions impose insufficient barriers to protect the assets from harm. In addition, any punishment imposed cannot be founded upon the common maxim of lexis talionis-aneye for an eye. 1 95 With regards to a living natural asset and a human being, a literal application of an eye for an eye surpasses all bounds of human decency, "for that would be expiation, and not punishment."' 9 6 By combining 193. Id. at *11-12. 194. See, e.g., Gertz v. Welch, 418 U.S. 323, 350 (1974) (defining

punitive damages in private defamation action as "private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence"). 195. 4 WILLIAM BLACKSTONE, COMMENTARIES *13. [R]etaliation may sometimes be too easy a sentence; as, if a man maliciously should put out the remaining eye of him who had lost one before, it is too slight a punishment for the maimer to lose only one of his: and therefore the law of Locrians, which demanded an eye for an eye, was in this instance judiciously altered; by decreeing, in imitation of Solon's laws, that he who struck out the eye of a oneeye man, should lose both his own in return. Id. (internal citation omitted). 196. Id. "Theft cannot be punished by theft, defamation by defamation, forgery by forgery, adultery by adultery, and the like. Death is ordered to be punished with death; not because one is equivalent to the other, for that

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the proactive effects of land use restrictions with the effects of criminal sanctions, beyond the current structure, the invisible and untimely barriers attempting to protect the natural assets may become the deterrent force necessary to protect Georgia's living natural assets. Thus, reforming the current attempts at protecting Georgia's living natural assets by extending protection to the natural beings through increased access to historical preservation statutes, tree preservation ordinances, and an expansion of the deterrent effects inherent in increased penalties, both penal and monetary, will help to prevent the harms like those inflicted on the Treaty Oak and the Toomer's Oaks from occurring within the state of Georgia. A. Expansion ofHistoricalProtection Currently under the Georgia Historic Preservation Actl 97 the "historic preservation commission," a local committee of appointed individuals in each community, determines the natural assets qualifying for protection as historic properties. 198 As a local body, the commission is charged with the duty of protecting the localities historic resources by reviewing applications for historical protection, recommending assets "to be designated by ordinance as historic properties or historic districts[,]" and, among other things, "promot[ing] the acquisition . .. of conservation easements ... ."' 99 The major benefit of the current historic perseveration commission structure is the ability of the commission to promote land use restrictions and conservation easements to provide additional protection to natural assets. In addition, as a local body, the historic preservation commission has the ability to understand and assess the needs to the community's natural assets in need of protection. Thus, the current historical preservation restrictions apply the most effective property law methods of protecting Georgia's living natural assets, while enabling the locality the ability to determine which assets are extended protection. Despite these distinct benefits, the historic preservation would be expiation, and not punishment." Id. 197. O.C.G.A. ยง 44-10-20. 198. Id. ยง 44-10-24. 199. Id. ยง 44-10-25(a)(1)-(1 1).

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commission as one significant drawback: the limited acknowledgement of living natural assets. For a tree, bush, or shrub to gain additional protection, the property where the living natural asset is located must qualify as a historical property200 or a "natural area."201 Under the GHPA, protection is only extended to the most deserving of living natural assetsthose deemed "historic" by the local historic preservation commission.202 But the term "historic" does not have an objective definition; rather, it is based on the subjective unreviewable, determination of the local commission.201 Currently, the Georgia Urban Forest Council-a private organization promoting awareness of local natural assets--lists thirty-six trees containing the label of a landmark and historic But unless these living natural assets qualify for tree. inclusion by the historic preservation board on the National

200. O.C.G.A. ยง 12-3-50.2(a)(1)(B) (West 2011) ("Historic property which is defined as . . . objects which possess integrity of location, design,

setting, materials, workmanship, feeling, and association and which is determined to meet the criteria for listing in the Georgia Register of Historic Places according to the criteria outlined in regulations promulgated by the Board of Natural Resources."). 201. O.C.G.A. ยง 12-3-92 (West 2011) ("[T]he term 'natural areas' means a tract of land in its natural state which may be set aside and permanently protected or managed for the purpose of the preservation of native plant or animal communities, rare or valuable individual members of such communities, or any other natural features of significant scientific, education, geological, ecological, or scenic value."). 202. See NAT'L PARK SERV., U.S. DEP'T OF THE INTERIOR, National Register of Historic Places, http://www.nps.gov/nr/index.htm (last visited Dec. 16, 2011). "The National Register of Historic Places is the official list of the Nation's historic places [and living natural assets] worthy of preservation." Id. 203. See, e.g., Hatmaker v. Georgia Dep't of Transp., 973 F.Supp. 1058, 1070 (M.D. Ga. 1997) (affirming Georgia Department of Transportation's "determination that the Friendship Oak is not eligible for inclusion on the National Register [of Historic Places]"). 204. GEORGIA URBAN FOREST COUNCIL, LAND MARK & HISTORIC TREES, http://www.gufc.org/programs/landmark-and-historic-tree/#Tree List (last visited Dec. 16, 2011); but see Hatmaker, 973 F. Supp. at 1065 (asserting the Georgia Forestry Commission is the only organization that has the ability to designate a living natural assets "as an historic landmark[,]" not the Urban Forest Council Register); see also GEORGIA FORESTRY COMM'N, http://www.gatrees.org/ (last visited Dec. 16, 2011).

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Register of Historic Places, the tree, bush, or shrub is no more protected than without the arbitrary acknowledgment by the Georgia Urban Forest Council. 206 This problem is further compounded by the insulated structure of the historic preservation commission. Despite the requirement that "[a] majority of the members shall have demonstrated special interest, experience, or education . . ." the

board is not elected; rather, its members are appointed by the local governing body. 2 0 7 In addition, the local governing body has the power to "determine the number of members of the

commission[.], 208 One issue that arises with the historical preservation of living natural assets is the age-old conundrum of which comes first: the historical notoriety of the land or the historical notoriety of the living natural asset? If the living natural asset in need of protection is situated on a parcel of land that is deemed historical, and thus deserving of preservation efforts, the natural asset residing on the land enjoys the same protection as the land itself. For example, the trees, bushes, and shrubs that reside within the confines of the Andersonville National Historic site in Sumter, Georgia,209 are protected by rangers from the National Park Service charged with the duty of preserving the historical integrity of the site. But this protection comes at a great expense due to the financial burdens associated with operating a National Park and the limitations imposed on the general public's access to the natural assets. Despite these necessary drawbacks, the natural assets need only fear the general destructive forces of nature; they need not worry about an heir of a Union solider commencing an attack on the living 205. 16 U.S.C. ยง 470, et seq. (West 2011) ("National Historic Preservation Act"); 36 C.F.R. ยง 60.4 (West 2011) (providing the criteria for inclusion on the National Register). 206. See Hatmaker, 973 F.Supp. at 1065. 207. O.C.G.A. ยง 44-10-24(a) ("The local governing body of a municipality or county electing to enact an ordinance to provide for the protection, enhancement, perpetuation, or use of historic properties or historic districts shall establish or designate a historic preservation commission."). 208. Id. 209. NAT'L PARK SERV., U.S. DEP'T OF THE INTERIOR, Andersonville National Historic Site Georgia, http://www.nps.gov/ande/index.htm (last visited Dec. 16, 2011).

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natural asset due to any association with the Confederacy.210 In addition, any new growth living natural asset that affixes itself to this protected land is given the protection needed to grow to a size and age that potentially may earn the living natural asset protection and notoriety for the inherent qualities associated with old growth trees, bushes, or shrubs. But if neither the land nor the natural asset is yet of historical significance, the trees, bushes, and shrubs do not enjoy the same protection as the natural assets so fortunately positioned. Because living natural assets do not choose where they will call home, the assets are limited to the luck of fate determining whether they will take root upon a hallowed piece of property. Thus, for a living natural asset, it appears auspiciously taking root upon a notable piece of historical property has a distinct advantage. Unfortunately, trees, bushes, and shrubs do not decide which parcel of property will become home. Individuals have the ability to plant, or transplant, any living natural asset to property currently enjoying increased protection. For example, during the 1996 Olympic Games in Atlanta, Georgia, the hedges at the University of Georgia were uprooted and transplanted to Arizona to ensure their safety and make room for the soccer competition.211 Generally, other than young and undeveloped living natural assets, the act of transplanting the tree, bush, or shrub may in fact lead to the destruction of the living natural asset, frustrating any effort to bring the asset to the protection. 2 12 Therefore, in some instances, the protection must go to living natural asset. Before a living natural asset can be protected, the qualities of the natural asset must be determined to resolve the issue of 210. Another potential grounds for attack to Georgia's, and any of the former Confederate states, natural assets lie in any old growth tree that assisted a lynch mob in carrying out their reign of terror upon the African American race. Thus, these old growth trees that supported the noose employed to deprive another individual of life for merely being of a different race, have the potential of being destroyed by the heirs of the deceased or any other individual who believes the mere existence of this natural player embodies the hatred of the human actors. 211. See Ward, supra note 69 (discussing how the hedges were relocated for the 1996 Olympic Games). 212. But see id

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whether the tree, bush, or shrub is in need of protection. 213 While some of Georgia's iconic living natural assets-the Great Cypress trees of Savannah,2 14 the Toombs Oak of Athens,2 1 5 the privet hedges at the University of Georgia, 2 16 and all of the thirty-six trees identified by the Georgia Urban Forest Council as "landmark [and] historic trees" 2 17 -are notable and infamous here in Georgia, the majority of these living natural assets are not included on the National Register of Historic Places.2 18 Due to this void of adequate protection, the expansion advocated in this Comment is to reform the standards of qualification under the GHPA, potentially enabling access to the National Register of Historic Places for the living natural assets. Due to the protection associated with the National Register needing to be accessible to natural assets deserving of the protection, by first qualifying and placing the tree, bush, or shrub under the GHPA, the locality will being to take the steps necessary to protect the asset. In conjunction with this historical notoriety, applying tree preservation statutes to the land and living natural assets will create the additional protection needed to educate the public of the tree's special status and notify any would-be attacker of the significance of the asset. But not all trees need to be included because as "one man's trash is another's treasure,"219 so too can one man's 213. See 36 C.F.R. ยง 60.4 (West 2011). 214. Mary Landers, 700-Year-Old Cypress Tell Story of Survival, SAVANNAHNOW.COM, Aug. 30, 2010, http://savannahnow.com/news/2010-

08-30/700-year-old-cypress-tell-story-survival (last visited Dec. 16, 2011). 215. COULTER, supranote 140.

216. Ward, supra note 69. 217. GEORGIA URBAN FOREST COUNCIL, supra note 204.

218. The Georgia Forestry Commission, qualifies a notable tree-one worthy of additional protection-as a "Champion Tree." GEORGIA FORESTRY

COMM'N,

Georgia's

Champion

Tree

Program,

http://www.gatrees.org/ForestManagement/ChampionTree.cfm (last visited Dec. 16, 2011). Of the 348 trees identified as "Champion Trees," only 27 trees qualify for the "National Register." Id. (follow "Champion Tree List In Georgia" hyperlink). 219. See generally Jonathan H. Adler, Waste & the Dormant Commerce Clause - A Reply, 3 GREEN BAG 2D 353, 354 (2000) ("The analytical

distinction between 'goods' and 'bads' is not as clear as Epstein implies. For one thing, one man's trash is another's treasure. Many items that are disposed of as waster in one sector of the economy are reclaimed and

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special tree be another man's meal ticket.2 20 Therefore, opening membership to the historic preservation commission to additional members from all of the relevant forestry councils 22 1 and requiring an arborist to be a member of the preservation commission ensures that only those living natural assets that are dear to many individuals-and thus vulnerable to attack-will obtain the additional protection needed. But in expanding the board, the resources and needs of the locality must not be forgotten. This reform may also open the door for those living natural assets currently deemed unworthy of protection by the Georgia Forest Commission to gain the potential of becoming

recycled elsewhere as a good."). While the dormant commence clause is not within the scope of this Comment, the emphasis is on the fact that as a natural asset maybe been seen as a burden or barrier to one group, others may view the natural asset as a treasured being. Moreover, the idiom has further application with regards to the remains of the living natural assets that cease to grow, for the remains of the tree, bush, or shrub may provide a market for those valuing the tree, thus desiring to retain a piece of the natural asset to commemorate and remember the natural asset. In addition to the remains of the deceased natural assets, the byproducts of natural assets provide an additional market for revenues, but suppose an individual were to periodically destroy or remove all of these byproducts. See, e.g., Woodham, supra note 12 (discussing the increase in Toomer's Oaks seedlings after the poisoning). "[W]ith more than 5,000 people registering for a lottery to have a chance to buy one of the 600 'baby Toomer's oaks' that are left[] . . [t]he remaining stocks of Toomer's seedling is expected to be depleted by the end of October." Id. Now suppose the Toomer's seedling were not owned and distributed by the University of Auburn, rather a private individual with a desire to increase profit margins on the seedlings. Would the individual be able to poison the "parents" to increase the demand for the "children" and thereby the purchase price, to offset the statutory caps on any potential fines? But incarnation for a period of up to ten years may serve to curb these hypothetical actions. 220. See Ben D. Jackson, Forestryon a Budget, COOPERATIVE EXTENSION SERV., UNIV. OF GEORGIA COLL. OF AGRIC. ATHENS (May 1998) (providing comprehensive overview of Georgia's forestry industry). "In Georgia, there are 23.6 million acres of commercial forest land .

. produc[ing] 24 percent

of total output in the state. This is $1 of each $4 of output manufacturing added to the Georgia economy." Id. at 3. 221. Relevant forestry counsel should include members from: Georgia Forestry Commission, Georgia Historic Preservation Division, Georgia Urban Forest Council, local zoning boards, and other knowable arborist and concerned citizens.

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treasured living natural assets to more of Georgia's citizens.2 2 2 Once membership of the historic preservation commission is expanded, the framework for defining a living natural asset in need of protection should be borrowed from the recent amendment to O.C.G.A. ยง 32-6-75.3, relating to tree removal and vegetation trimming along the state highway system in connection with commercial signs. 2 2 3 This objective definition will further instruct the impartial commission as to the appropriate guidelines for determining assets capable of being placed on the list, while leaving significant requisites for qualification to prevent unworthy assets from obtaining To protect certain assets against Georgia protection. Department of Transportation employees clearing them, the Official Georgia Code now prohibits the removal of any landmark, historic, or specimen tree. 22 4 Thus, if the historic preservation commission should adhere to the same standards controlling the destruction of living natural assets caught in the path of state highway expansion, the uniform application of all state and local departments will increase public awareness of the specific assets protected. The categories for historical qualification and additional ordinances encompass a historic tree, a landmark tree, a symbolic tree, or specimen tree. 22 5 A "historic tree" includes all living natural assets: (i) Identified by a unit of government to recognize an individual or group; (ii) Located at the site of a historic event and significantly impact an individual's perception of the event; (iii) Dated to the time of a historic event at the location of the tree, as identified by a unit of government; or (iv) Confirmed as the progeny of a tree that meets any of the 222. According to the Georgia Forestry Commission, current threats to living natural assets include: "water quality and quantity, urbanization, forest health, biodiversity, air quality, fire management, fragmentation and parcelization, economic and changing markets." GEORGIA FORESTRY COMM'N, Georgia Forest Facts, http://www.gatrees.org/Resources/documents/GeorgiaForestFacts.pdf (last visited Dec. 15, 2011). 223. O.C.G.A. ยง 32-6-75.3 (West 2011) (as amended by H.B. 179, 151th Gen. Assem., 1st Reg. Sess. (Ga. 2011)). 224. Id. ยง 32-6-75.3(e)(3). 225. Id. ยง 32-6-75.3(e).

No. 1] ProtectingThings That Cannot Protect Themselves 225 - * *226 criteria contained in this division. A "landmark tree" includes any old growth tree that is "more than 75 years old" and has "been planted for education purposes" or "planted as a memorial to an individual, group, event, or cause[.]"227 In addition, if the state of Georgia declared "prior to July 1, 2010[]" that the tree "[s]ymbolize[s] a historically significant individual, place, event, or contribution" the tree may also be deemed a landmark. 22 8 Lastly, a tree may be regarded as a "specimen tree" if the living natural asset is a hardwood and "is determined to be in excess of 7 5 ears of age as determined by a registered forester or arborist."22 By implementing a less stringent standard for approval, along the lines of the requirements for protection from state highway clearance, more of Georgia's living natural assets will qualify for historic protection. Thus, by expanding the scope of living natural assets afforded protection under current historic preservation statutes, the tree, bush, or shrub is extended extra protection because the natural object may be considered venerated, thereby enhancing the availability of charges against the alleged attacker. 2 30 Absent additional protection in the form of historic notoriety, the living natural assets of Georgia remain exposed to attack.

B. Mandatory Minimums for Violations

In keeping with "Click It or Ticket,",23 1 drunk driving programs, 32 and statutory rape laws,2 3 3 by imposing increased 226. Id. ยง 32-6-75.3(e)(3)(A)(i)-(iv). 227. Id. ยง 32-6-75.3(e)(3)(B)(i)-(ii).

228. Id. ยง 32-6-75.3(e)(3)(B)(iii) (applying only to trees recognized by a government unit prior to July 1, 2010). 229. Id. ยง 32-6-75.3(e)(3)(C). 230. See, e.g., MODEL PENAL CODE ยง 250.9 (West 2011). 231. GOvERNOR'S OFFICE OF HIGHWAY SAFETY, Click It or Ticket in

Georgia, http://www.gahighwaysafety.org/click.html (last visited Dec. 16, 2011) ("Click It or Ticket [] is the most successful seat belt enforcement campaign ever, helping create a seat belt usage rate of around 90 percent."); see also NAT'L HIGHWAY TRAFFIC SAFETY ADMIN., SUMMARY OF VEHICLE

OCCUPANT

PROTECTION

LAWS

(June

2010),

available

http://www.nhtsa.gov/staticfiles/nti/pdf/811458.pdf (last visited Dec. 16, 2011). 232. NAT'L HIGHWAY TRAFFIC SAFETY ADMIN., Drive Sober or Get

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mandatory minimum penalties, in conjunction with flexible culpability elements,2 on individuals that harm Georgia's living natural assets deemed historic and protected, the deterrent effects of the laws may begin to take root. But as with any crime, the punishment must fit the crime. 2 35 Thus, the appropriate starting point for the mandatory punishment should be determined under the current statutory schemes enabling the state to protect the living natural assets currently at risk of attack. Currently under Georgia's criminal destruction of property statutes, O.C.G.A. §§ 16-7-22 and 16-7-23, a mandatory one year of imprisonment is imposed upon a finding of guilt for the destruction of living natural assets, with incarceration neither exceeding five years for second degree offenses, 23 6 nor ten years for first degree offenses. 237 By increasing this minimum to two or three years of mandatory incarceration, individuals desiring to harm Georgia's living natural assets may be deterred from engaging in the destructive actions. In addition, increasing the maximum length of incarceration may also provide deterrent effects by enabling the state to seek enhanced penalties when the destruction to living natural assets is severe. As a result of these increased sentences, the "Al's from Dadeville" may be deterred from dispensing herbicides onto Georgia's living natural assets, and if not, upon a conviction, the community as a whole will be educated as to the effects of engaging in activity that society has deemed inappropriate. Pulled Over, http://drivesober.nhtsa.gov/ (last visited Dec. 16, 2011). 233. 42 U.S.C. § 14016 (West 2011); O.C.G.A. § 16-6-3 (West 2011). 234. Due to a strict liability standard for natural asset protection constituting a violation of the due process clause, a criminal statute which focuses on the harm to the natural asset and affords the accused the opportunity to justify the actions that resulted in harm or destruction to the natural asset comply with the constitutional mandates and safeguards. See Greater Atlanta Homebuilders Ass'n. v. DeKalb County, 588 S.E.2d 694, 699 (Ga. 2003) ("[A]ny party cited for a violation of the Tree Ordinance will have the opportunity in Recorder's Court to show why he has not violated its provisions. Therefore, no strict liability exists."). 235. See 4 WILLIAM BLACKSTONE, COMMENTARIES *12. "The method however of inflicting punishment ought always to be proportioned to the particular purpose it is meant to serve, and by no means exceed it[.]" Id. 236. O.C.G.A. § 16-7-23. 237. Id. § 16-7-22.

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Other avenues of punishment should also be explored, enabling the judiciary the ability to sentence the accused to perform community service in and around the community where the living natural asset was attacked. Having the attacker perform the community service in the locality where the crime was committed gives back to the community to offset the effects of the crime, and provides other individuals with notice of the potential effects for engaging in similar activities. In addition, restitution presents an additional avenue to compensate society for the damage imposed. But if the individual is unable to satisfy this monetary sanction, the judiciary should rely on other forms of punishment to offset, and compensate, the deficient restitution payment. The Georgia legislature needs to take additional steps to authorize criminal sanctions, while imposing mandatory restitution provisions in extreme instances, where the harm inflicted upon a living natural asset deemed deserving of protection is willfully or intentionally damaged or destroyed. The addition of criminal sanctions may serve to increase awareness of the proscription against the underlying activity, as well as deter individuals wishing to willfully or intentionally harm a living natural asset unable to protect itself from the would-be attacker. Moreover, mandatory restitution orders have the ability to offset the damages inflicted by providing the funds necessary to attempt to rectify and reverse the harm inflicted upon the living natural asset. By holding the actor financially responsible, above and beyond the general sanctionable monetary confines, the would-be actor is deterred from engaging in the action. Thus, if the deterrence effects do not take root, the monetary penalties provide society with the financial recourses necessary to attempt to rehabilitate the living natural asset subject to attack. By following suit with other areas of law that have recognized society's need to protect those that cannot protect themselves,238 Georgia can effectively provide protection to its living natural assets by increasing the availability, and thereby recognition, of historic living natural assets unable to ward off By imposing increased mandatory would-be attackers. and monetary form, Georgia can punitive minimums, both in 238. See supra PartII & accompanying text.

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deter the willful and egregious actions of those desiring to inflict harm, or destruction, upon the living natural assets affixed to property located within the state. In addition, the monetary damages to both the Treaty Oak and the Toomer's Oaks establish that current statutory caps for the destruction of any living natural asset are insufficient to provide the requisite monetary reserves to offset the effects caused by both defendants' unlawful actions. Thus, by increasing the statutory fines in relation to natural assets, the deterrent affects of preventing future attacks may begin to take root, and prevent future attacks to Georgia's treasured living natural assets. V. CONCLUSION

All trees, bushes, or shrubs may hold significant importance to some, but protective expansion need only extend to those living natural assets holding significance to large segments of society. While all trees, bushes, or shrubs make a sound when they fall, the sound of some-those in need of protection-is undoubtedly louder than others. As the stories of the Toomer's Oaks and Treaty Oak show, the potential threat to Georgia's natural assets is real. Despite the Toomer's Oaks alleged attacker recently apologizing "for all the damage ... done[, absent adequate legislation to protect the assets that cannot protect themselves, Georgia's treasured natural icons remain exposed to the risk of attack. By creating an expansion of local historic preservation commissions, and refining the definitions for determining protection, the local commissions have the ability to identify the asset in need of protection, then provide an enhanced barrier of protection in the form of historic preservation statutes and the imposition of tree preservation ordinances. While all trees, bushes, and shrubs add value to and benefit the environment as a whole, many are not the subject of future attack, and therefore do not need additional protection. Once the living natural asset is qualified for the additional protection, judicial enforcement in the forms of mandatory 239. Harvey Updyke Jr. Apologizes to Auburn, ESPN.COM, (Sept. 29, 2011, 1:07) PM, http://espn.go.com/collegefootball/story/_/id/7034280/alleged-toomer-corner-poisoner-harvey-updykejr-apologizes-auburn-tigers-fans.

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minimums for violations and increased statutory penalties to assist in the rehabilitation efforts of the living natural victims will help to ensure the message is clear that Georgia is protecting its living natural assets. Absent an adopted set of protective legislative reforms for Georgia's living natural assets, with subsequent judicial enforcement upon violation, all of Georgia's trees, bushes, and shrubs remain at risk of attack from the "Al's from Dadeville." Thomas 0. Rainey, IV

* J.D., Atlanta's John Marshall Law School (anticipated graduation May 2012); B.A., Political Science, Hampden-Sydney College (2006). 1 would first like to thank my parents, for without their support, guidance, and understanding over the years, this Comment would not have been possible. Special thanks to Professor Liza Karsai and Professor Michael B. Kent, Jr. for their professional guidance in relation to this piece. Lastly, I dedicate this Comment to my father, whose strength and courage provide me with the determination to persevere through all of life's endeavors-this one's for you Pop.

UNNECESSARY ROUGHNESS: WHY THE NFL SHOULD NOT BE FLAGGED FOR ANTITRUST SCRUTINY IN LABOR RELATIONS

INTRODUCTION

II.

LEGAL FRAMEWORK A. B.

III.

.............................

..... 233

Antitrust Law.................................... .................... Antitrust andLabor Relations .................................... 1. Legislation 2. StatutoryAntitrust Exemption ...................... .................... 3. The Nonstatutory Exemption

Major League Baseball,It's Just a Game.... The NFL and Antitrust Scrutiny

233 234 234 236 238

........... 241 .............. 241 ...................... 247

WHY THE NFL SHOULD NOT BE FLAGGED FOR ANTITRUST SCRUTINY ........... 255 INLABOR RELATIONS ........................... A. B. C.

...... 231

ANTITRUST LAW AND PROFESSIONAL SPORTS ....... A. B.

IV.

.................................

255 .................. The Needfor MLB PlayerProtection The Lack of a Needfor NFL Player Protection...................... 259 .................... 264 Addressing the Counter Argument

CONCLUSION........................................

INTRODUCTION

"When you take that field today, you've got to lay that heart

on the line, men. From the souls of your feet, with every ounce of blood you've got in your body, lay it on the line

268

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until the final whistle blows. And if you do that, if you do that, we cannot lose." We Are Marshall'

You have no voice; your hands are sore from banging on the back of the seats in front of you; and you have a splitting headache from either celebrating your team's win, or mourning its loss. This is a typical case of the "Mondays" for any National Football League (the "NFL") fan who attended her favorite team's game the day before. 2 Sundays at NFL games provide priceless good times and memories for all in attendance, as well as those watching at home. But fans across the country were heartbroken this past March when the players union filed suit against the NFL. 3 Though the legal aspect of the situation could be defined as confusing at best, fans knew this lawsuit meant one thing: if the suit was not settled and a deal not reached no football would be played in the upcoming fall season. Thankfully, a deal was completed but not without unnecessarily expended time, energy, and finances. 5 The parties could have come to an agreement had they stayed at the bargaining table in negotiations. This Comment compares the NFL, Major League Baseball ("MLB"), the antitrust status of each, and the relation of that status to the labor relations each sport has with its respective players' leagues. This Comment hopes to demonstrate that the NFL should not be subject to antitrust sanctions in regards to labor relations, but that MLB needs such protection for its players. Section II outlines the legal framework of antitrust law and labor relations. Section III discusses MLB's and the NFL's relationship with antitrust law. Section IV addresses why MLB needs antitrust regulation in connection with labor disputes, 1. WE ARE MARSHALL (Warner Brother Pictures 2006). 2. OFFICE SPACE (20th Century Fox 1999). 3. See, e.g., Fact Sheets, NFL

LOCKOUT.COM,

(providing information http://www.nfllockout.com/important-termsfacts/ regarding the effects of the lockout on fans, players, and owners). 4. Daniel Roberts, The Biggest Losers in an NFL Lockout? Everyone., CNNMoNEY, Mar. 4, 2011, 4:45 PM, http://money.cnn.com/2011/03/03/news/companies/nfl-lockout-losers-labor .fortune/index.htm. 5. Adam Schefter, Sources: Deal to End Lockout Reached, ESPN.COM, July 25, 2011, 12:14 AM, http://espn.go.com/nfl/story/_/id/6797238/2011nfl-lockout-owners-players-come-deal-all-points-sources-say.

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based on the minor league systems and lack of antitrust regulation in any other aspect of its business. Section IV also explains why the NFL does not need antitrust sanctions to fully function and protect its players, while addressing the counter argument against the NFL receiving antitrust freedom. This Comment concludes that the NFL should not be subject to antitrust sanctions in labor relations because the NFL has a history of self-policing and protecting its profit-making players, and the current nonstatutory exemption has been stretched so far by courts as to render it ineffectual. Indeed, the exemption has become more of a weapon for the players to use against the NFL than the shield for its players the exemption was initially designed to offer. II. LEGAL FRAMEWORK

"It's not a question of enough, pal. It's a zero sum game, somebody wins, somebody loses. Money itself isn't lost or made, it's simply transferred from one perception to another." Wall Street 6 A. Antitrust Law

The Sherman Act arose in response to employees organizing into unions at the height of the Industrial Revolution and the monopolization of entire industries by a small number of owners. 7 The Sherman Act states: "[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal." 8 Though the Sherman Act did not say much, when the courts applied it, they used it to combat both big business monopolies and organized labor.9 For example, in United States v. Debs, the Northern District Court of Illinois found a labor union to be in violation of the Sherman Act, stating, "combinations are condemned, not only when they take the form of trusts, but in whatever form found, if they be in

6. WALL STREET (20th Century Fox 1987).

7. Martin L. Kaminsky, THE ANTITRUST LABOR EXEMPTION: AN 16 SETON HALL L. REv. 4, 7-8 (1986). 8. The Sherman Act, 15 U.S.C. ยง 1 (West 2011). 9. United States v. Debs, 64 F. 724, 747 (N.D. Ill. 1894).

EMPLOYER PERSPECTIVE,

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restraint of trade." 10 The court interpreted the Sherman Act to mean that neither employers nor employees could restrain trade. 1 In analyzing whether a party has violated the Sherman Act, the courts have used two tests: the per se analysis and the rule of reason analysis. 12 The per se standard recognizes certain actions as facial violations of antitrust acts, including: "price fixing, group boycotts, market allocation, restrictive practices involving patents, and certain competition-preclusive conduct by monopoly groups." 1 3 The rule of reason test, "involves, .among other factors, a study of consequences of the conduct' on the relevant market." 1 4 Though the tests seem simple enough, the courts have had a difficult time in applying them, especially in the realm of labor relations and antitrust. B. Antitrust and Labor Relations 1. Legislation Though the Sherman Act forbade any organization that restricted competition, whether it be on the part of employers or employees, the Great Depression and subsequent New Deal legislation brought about change regarding antitrust and labor relations.1 6 Congress enacted the following legislation to prevent labor unions from violating antitrust laws. The first of these legislative activities was the Clayton Act.17 10. Id. 11. Id.

12. See Kaminsky, supra note 7, at 63. 13. George R. Whitten, Jr., Inc. v. Paddock Pool Builders, Inc., 508 F.2d 547, 559 (1st Cir. 1974). 14. Id. 15. Compare Apex Hoisery Co. v. Leader, 310 U.S. 469, 487 (1940) (stating that there is no difference between labor and nonlabor antitrust cases and the courts can still apply the rule of reason analysis in the appropriate circumstances) with Klor's Inc. v. Broadway-Hale Stores, 359 U.S. 207 n.7 (arguing that labor unions should be treated differently than other violations of the Sherman Act because their violations do not have "commercial objectives."). 16. See Kaminsky, supra note 7, at 11-12. 17. The Clayton Act, 15 U.S.C. Â§Â§ 12-27 (West 2011). Though the Clayton Act was enacted before the Great Depression, it was the first of this type of legislation regarding labor and antitrust and is best addressed in this

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The Clayton Act carved out an exception to the Sherman Act by stating, "[t]he labor of a human being is not a commodity or article of commerce. Nothing contained in the antitrust laws shall be construed to forbid the existence and operation of labor . . . organizations[.]"1 8

The Clayton Act further prevented

courts from issuing injunctions in a dispute concerning "terms or conditions of employment, unless necessary to 9prevent irreparable injury to property or property rights[.]" This exception allowed labor organizations to collude with each other without judicial interference, which the Sherman Act had previously prevented.20 In 1935, Congress enacted the National Labor Relations Act. 2 1 This Act "legalized unions and mandated that employers bargain with them. It labeled coercive acts by employers 'unfair labor practices' and subjected such employers to sanctions by the newly created National Labor Relations Board (NLRB)." 2 The NLRB is a specialized government regulatory agency that investigates and arbitrates claims of unfair labor practices.23 Congress then enacted the Norris-LaGuardia Act, which explicitly prevented employers from stopping employees from organizing into labor unions. 24 Further, the NorrisLaGuardia Act prevented the courts from interfering with enumerated aspects of labor disputes between labor unions and employers. 25 These legislative acts allowed employees to organize into unions and bargain collectively with single and multiple employers. 2 6 Employees organize into a union that bargains for section with the other New Deal legislation. 18. The Clayton Act, 15 U.S.C. § 17 (West 2011). 19. The Clayton Act, 29 U.S.C. § 52 (West 2011). 20. See Kaminsky, supra note 7, at 10.

21. Nat'1 Labor Relations Act, 29 U.S.C. §§ 151-169 (West 2011). 22. See Kaminsky, supra note 7, at 12 (citing 29 U.S.C. §§ 153, 148, 160 (1982)). 23. 29 U.S.C. § 158 (West 2011). 24. The Norris-LaGuardia Act, 29 U.S.C. § 104 (West 2011). Some of the enumerations exempt from judicial interference include: (1) work stoppages and peaceful strikes, (2) giving publicity to a unions cause for complaint, and (3) becoming a member of a union. 25. Id. 26. Louis ALTMAN & RUDOLF CALLMANN, CALLMANN ON UNFAIR COMP.

TR. AND MONO.

§ 1:5 (Thompson-West 4th ed. 2007).

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equal rights on behalf of all employees. 27 This gives employees greater bargaining power against the employers, who typically held the bulk of the power in the past.28 However, in order for labor unions to sue for a violation of the antitrust laws, labor unions must disband, a process known as decertification. 29 Decertification is a "relinquish[ment] of [the union's] rights as a bargaining unit for its members." 30 Once they have decertified, the employees are able to sue emplo ,ers in their individual capacity for violations of antitrust laws. 2. Statutory Antitrust Exemption

The statutory exemption to the Sherman Act is the combination of the Clayton Act, the National Labor Relations Act, and the Norris LaGuardia Act and was first applied in the 1941 case of United States v. Hutcheson.32 In Hutcheson, a union of carpenters who worked for Anheuser-Busch claimed it was entitled to a job to build another factory for the beer company. 33 Anheuser-Busch had given the jobs to another union and claimed that the carpenters' union had agreed to arbitrate any disputes for these jobs.3 4 Instead of arbitrating, the carpenters union instituted a strike, picketed in front of the Anheuser-Busch factory, and sent out letters asking individuals to boycott buying the beer company's product. 35 The carpenters were charged with criminal conspiracy in violation of the

Sherman Act. 36 At issue was whether the carpenters union's acts fell under the Clayton Act and would therefore be exempt from antitrust

27. Id. at n.7.

28. Id. 29. Timothy Silverman, Comment, The Effect of Decertification on the Bargaining Process: The Reversal of Dresser Industries, 25 SAN DIEGO L. REV. 581, 587-88 (1988). 30. Mark T. Gould, Case Comment, Brown v. Pro Football, Inc.: To Decertify or Not to Decertify?, 14-SUM ENT. & SPORTS LAW. 9 (1996). 3 1. Id. 32. U.S. v. Hutcheson, 312 U.S. 219 (1941). 33. Id. at 228. 34. Id. 35. Id.

36. Id.

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scrutiny through the statutory exemption. The Court held that the union's conduct was precisely the type that Congress aimed to exempt with the Clayton Act. 38 It did not matter that the carpenters' conduct was based on competition with another union for jobs. 3 9 Congress never explicitly stated an exception for union versus union competition and the Court refused to read one into the antitrust legislation. 4 0 Instead, the Court ruled that the Clayton Act and the Norris-LaGuardia Act created a statutory exemption for unions from the Sherman Act to a certain extent: So long as a union acts in its self-interest and does not combine with non-labor groups, the licit and the illicit under [§] 20 [of the Clayton Act] are not to be distinguished by any judgment regarding the wisdom or unwisdom, the rightness or wrongness, the selfishness or unselfishness of the end of which the particular union activities are the means. 41 Following this case, Congress responded with the TaftHartley Act2 and Landrum-Griffin Act 4 3, which both amended the National Labor Relations Act. These amendments were meant to balance the power between unions and employers, because the statutory exemption seemed to expand unions' powers beyond that of employers.44 The Taft-Hartley Act prevented unions from using unfair bargaining tactics against The Landrum-Griffin Act further restricted employers. 4 5 unions' powers and required employers and unions to bargain 37. Id. at 232. 38. Id. at 233. The refusal of the Carpenters to work for Anheuser-Busch or on construction work being done for it and its adjoining tenant, and the peaceful attempt to get members of other unions similarly to refuse to work, are plainly within the free scope accorded to workers by [§] 20 for 'terminating any relation of employment', or 'ceasing to perform any work or labor', or 'recommending, advising or persuading others by peaceful means so to do'. Id. (internal citations omitted). 39. Id. at 233. 40. Id. at 232. 41. Id. (internal citations omitted). 42. The Taft-Hartley Act, 29 U.S.C. §§ 151-187 (West 2011). 43. The Landrum-Griffin Act, 29 U.S.C. §§ 401-435 (West 2011). 44. See Kaminsky, supra note 7, at 17. 45. See Taft-Hartley, supra note 42, at 36.

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over wages, hours, and working conditions through a collective bargaining process.4 6 Though the statutory exemption covered a wide range of labor and antitrust issues, there were still holes that needed to be addressed and the nonstatutory exemption followed. 3. The Nonstatutory Exemption

The nonstatutory exemption was first addressed in the case of In Pennington, a union of mine workers entered into an industrywide wage agreement with employers. 4 8 The purpose of this wage agreement was to flush out the smaller coal companies who were unable to meet the wage scale, so the bigger companies could make a greater profit and in turn pay the workers more. 49 The plaintiff argued that the agreement was imposed upon the smaller coal mine operators who could not afford to pay it and was therefore an unfair restraint on trade in violation of the Sherman Act.5 0 The Court held that because wages are a mandatory bargaining provision under the statutory exemption, a wage agreement is typically exempt from antitrust scrutiny. However, a wage agreement has to actually abide by antitrust laws.52 "One group of employers may not conspire to eliminate competitors from the industry and the union is liable with the employers if it becomes a party to the conspiracy." 5 3 Therefore, when employee unions and multi-employers collectively bargain for the best interests of the employee union alone, the union wage scale falls outside the scope of antitrust laws.5 But where the union and employer use this bargaining process to conspire to freeze out competition, antitrust scrutiny must United Mine Workers of America v. Pennington.47

46. See Landrum-Griffin, supra note 43. See also, Kaminsky, supra note 7, at 18. 47. United Mine Workers of Am. v. Pennington, 381 U.S. 657 (1965). 48. Id. at 660. 49. Id. at 661. 50. Id. 51. Id. at 664. 52. Id. 53. Id. at 665-66. 54. Id. at 664.

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apply.5 5 Pennington left open the question of how far multiemployers and unions could go in their collective bargaining agreements without stepping outside of antitrust exemption.5 6 The Court followed Pennington with Local 189, Amalgamated Meat Cutters v. Jewel Tea Co. in which the Court fashioned a test to answer the question left open by Jewel Tea centered around a collective Pennington.5 7 bargaining agreement between butcher unions and the stores that sold the butchers' meat.5 8 In negotiations for the collective bargaining agreement, two stores, Jewel Tea and National Tea, wanted to be able to sell meat on Fridays, and asked the unions to bring this to a vote with its members.5 9 The workers rejected the proposal and threatened to strike if Jewel Tea and National Tea refused to sign the collective bargaining agreement.60 Jewel Tea and National Tea then sued, alleging violations of the Sherman Act. 6 1 The union argued its actions should be exempt from antitrust scrutiny, because they involved wage negotiations. 62 The Court stated that they did not have to look so broadly as to whether the union was in violation of antitrust laws and instead utilized the nonstatutory labor exemption. 6 3 The Court stated: Employers and unions are required [under the statutory scheme] to bargain about wages, hours and working conditions, and this fact weighs heavily in favor of antitrust exemption for agreements on these subjects. But neither party need bargain about other matters and either party commits an unfair labor practice if it conditions its bargaining on the discussions of a nonmandatory subject.64 55. Id. at 666. 56. See Kaminsky, supra note 7, at 19.

57. Local Un. No. 189, Amalgamated Meat Cutters v. Jewel Tea Co., 381 U.S. 676 (1965). 58. Id. at 680. 59. Id.

60. 61. 62. 63.

Id. at 681. Id Id. at 688. Id. at 689. 64. Id. (citing Nat'1 Labor Relations Bd. v. Div. of Wooster Borg-Warner Corp., 356 U.S. 342 (1958)); accord Kaminsky, supra note 7, at 20.

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At issue then, was how to classify the wage-hour provision.65 The Court asked: Whether the marketing-hours restriction, like wages, and unlike prices, is so intimately related to wages, hours and working conditions that the unions' successful attempt to obtain that provision through bona fide, arm's-length bargaining in pursuit of their own labor union policies, and not at the behest of or in combination with nonlabor groups, falls within the protection of the national labor policy and is therefore exempt from the Sherman Act.6 6 The Court held that the days of the week and hours within that day an employee works may not be mandatory provisions of bargaining, but are so closely related to "wages, hours, and other terms and conditions of employment " that they are Therefore, the outside the scope of Sherman Act liability. union could not be held liable for imposing these terms on Jewel Tea and National Tea.68 Thus, as it stands, the current antitrust labor relations framework consists of the statutory and nonstatutory exemptions to the Sherman Act's total bar of any collusion. Under the statutory exemption of the Clayton Act and Congress' subsequent enactments previously discussed, unions and employers must negotiate over wages, hours, and working conditions through a collective bargaining process.69 Unions bargaining with multiple employers are exempt from the Sherman Act in the enumerated cases of the Clayton and NorrisLaGuardia Acts, as seen in Hutchenson.7 0 The judicially created nonstatutory exemption sets out how far the union and employers may push in their collective bargaining agreement and still be exempt from Sherman Act scrutiny.' The nonstatutory exemption asks: (1) Is the conduct at issue intimately related to "a mandatory subject of collective bargaining," such as wages, hours or 65. Id. at 689.

66. Id. at 689-90. 67. Id. at 691. 68. Id.

69. See supra text accompanying notes 32-46. 70. Ethan Lock, The Scope of the Labor Exemption in ProfessionalSports, 1989 DUKE L.J. 339 (1989). 71. Id.

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working conditions? (2) Does it "primarily [affect] only the parties" who stand in a collective bargaining relationship together? [and] (3) Is it "the product of bona fide arm'slength bargaining"? 72 III. ANTITRUST LAW AND PROFESSIONAL SPORTS

A. Major League Baseball,It's Just a Game "A good friend of mine used to say, 'This is a very simple game. You throw the ball, you catch the ball, you hit the ball. Sometimes you win, sometimes you lose, sometimes it rains.' Think about that for a while." Bull Durham7 3 Professional baseball has traditionally enjoyed an overall exemption from antitrust scrutiny in all aspects of its business, not just labor relations. MLB's labor practices were challenged in the early 1900s. The Supreme Court decided professional baseball is "just a game" and not subject to antitrust laws. 7 4 The National League organized in 1900, and the American League followed closely on its heels, staking a claim in cities where the National League did not have teams.7 5 This heated competition gave rise to the reserve clause. 7 6 The reserve clause required teams to offer uniform contracts to the players but confined the player to the team until the team exercised its discretion and released the player. 7 7 The team held this power The reserve clause even after the term of the contract ended. furthered the American and National Leagues' goals of staying relevant and competitive as new leagues formed and sought to steal the leagues' players. 7 9

72. See Kaminsky, supra note 7, at 34 (internal citations omitted). 73. BULL DURHAM (MGM Studios 1988). 74. Fed. Baseball Club of Baltimore, Inc. v. Nat'l League of Prof. Baseball Clubs, 259 U.S. 200 (1922). 75. The [hereinafter

Commissionership: A Historical Perspective, MLB.COM, Commissionership], The

(last http://mlb.mlb.com/mlb/history/mlb-historypeople.jsp?storycom visited on Dec. 16, 2011). "The National and American leagues were considered the best of the best, making them into two "major" leagues." Id. 76. Id.

77. Flood v. Kuhn, 407 U.S. 251 n.l (1972). 78. Id. 79. See The Commissionership,supra note 75.

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One such competitive league was the Federal League.so The American and National leagues, not wishing to compete with yet another body of professional baseball players, organized a settlement and buyout of the Federal League, but left behind one of the Leagues' teams located in Baltimore. 8 1 Alleging a violation of the Sherman Act, 82 the Federal League sued the "Major Leagues." 83 Though the Federal League won at the trial level, the D.C. Court of Appeals went through a lengthy dissertation as to why professional baseball did not fall under the Sherman Act, and reversed the trial court's decision. 84 On review by the Supreme Court, Justice Holmes affirmed the decision of the D.C. Circuit.85 The Court held that baseball is not interstate commerce,86 even though the teams travel between states to play games. The business is giving exhibitions of base ball [sic], which are purely state affairs. It is true that in order to attain for these exhibitions the great popularity that they have achieved, competitions must be arranged between clubs from different cities and States. But the fact that in order to give the exhibitions the Leagues must induce free persons to cross state lines and must arrange and pay for their doing so is not 80. Fed. Baseball Club of Baltimore, Inc. v. Nat'l League of Prof. Baseball Clubs, 259 U.S. 200 (1922). 8 1. Id 82. See Sherman Act, supranote 8. 83. Nat'l League of Prof. Baseball Clubs v. Fed. Baseball Club of Baltimore, 269 F. 681 (D.C. App. 1920) (naming the National and American leagues, as well as the presidents of both leagues and a third person, known as the "National Commission" as defendants). "The National Agreement created a National Commission, a three-man body endowed with supervisory control of professional baseball [both the National and American leagues]. The commission was also granted the power to interpret and carry out the terms and provisions of the National Agreement[.]" The Commissionership, supra note 75. This suit came five years after the Federal League first sued the Majors, but had the unlucky hand of being docketed before the Honorable Kenesaw M. Landis, not only a huge baseball supporter, but the first commissioner of Major League Baseball, who encouraged the parties to settle and "play ball." Id. 84. Nat'1 League, 269 F. at 685 (stating "[t]he fact that the appellants produce baseball games as a source of profit, large or small, cannot change the character of the games. They are still sport, not trade."). 85. Fed Baseball, 259 U.S. at 207. 86. Id. at 209.

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enough to change the character of the business[] .

. [t]he

transport is a mere incident, not the essential thing. This set Major League Baseball on a field of its own in the world of antitrust litigation because professional baseball was just a game, and not subject to sanctions under the Sherman Act. " In 1953, the Court again addressed the issue in Toolson v. New York Yankees. 89 The players challenged the reserve clause, arguing that "organized baseball, through its illegal monopoly and unreasonable restraints of trade, exploits the players who attract the profits for the benefit of the clubs and leagues." 90 The Court refused to go back on its earlier decision in Federal Baseball, and stated that Congress should fix the problem through legislation.91 The Court next addressed MLB's antitrust exemption in Flood v. Kuhn. 9 2 After being traded from the St. Louis Cardinals to the Philadelphia Phillies, Curt Flood challenged the reserve clause because he did not wish to stay with the Phillies into retirement. 93 Flood's concern was shared by many other players, and in his letter to Commissioner Kuhn expressing these concerns, Flood stated that, "[a]fter twelve years of being in the major leagues, I do not feel I am a piece of property to be bought and sold irrespective of my wishes." 94 Flood filed suit 87. Id. at 88. Id. at

208-09 (internal citations omitted). 209.

89. Toolson v. N.Y. Yankees, 346 U.S. 356 (1953).

90. Id. at 363. 91. Id. at 357 (stating "if there are evils in this field which now warrant application to it of the antitrust laws, it should be by legislation."). 92. Flood v. Kuhn, 407 U.S. 258, 265 (1972). 93. Id. The issue for Flood was not exactly with the Philadelphia Phillies, but with the fact that he was traded from a team who he felt he had given devote service to for an extensive amount of time. Stan R. Hoch, Cynical Documentary Waters Down Contributions of Curt Flood, PHILADELPHIA INQUIRER, July 12, 2011, available at http://articles.philly.com/2011-07"Flood got the 12/sports/29765016 1 curt-flood-slavery-documentary/2.

news from the publicity guy, so far down the chain of command he rattled when he walked." Id. 94. ANDREW ZIMBALIST, BASEBALL AND BILLIONS: A PROBING LOOK INSIDE THE BIG BUSINESS OF OUR NATIONAL PASTTIME 18 (Basic Books

1994); accord Joshua P. Jones, Note, A CongressionalSwing and a Miss: The Curt Flood Act, Player Control, and the National Pastime, 33 GA. L.

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alleging that the reserve clause violated antitrust laws, naming Commissioner Kuhn and Major League Baseball as

defendants. 95 The Supreme Court again had to address why professional baseball was exempt from antitrust sanctions, while other professional sports leagues were not. 9 6 After a detailed discussion of Federal Baseball , the Court said it was

"concerned" about the current state of baseball. 97 However, something greater controlled the Court-the doctrine of stare decisis. 98 The Court admitted that baseball is a business and engaged in interstate commerce, and it also conceded that baseball's exemption from antitrust sanctions is an "exception and an anomaly" in the world of antitrust regulation, labor, and professional sports. 99 But Congress had to have a reason for not enacting legislation after Toolson: "Congress as yet has had no intention to subject baseball's reserve system to the reach of the antitrust statutes. This, obviously, has been deemed to be something other than mere congressional silence and passivity."oo If Congress was unwilling to rectify the problem, the Court was not going to overturn Federal Baseball and its progeny, which would confuse the issue of antitrust and labor in sports even more. 101 The Court went on to state: If there is any inconsistency or illogic in all this, it is an inconsistency and illogic of long standing that is to be remedied by the Congress and not by this Court. If we were to act otherwise, we would be withdrawing from the conclusion as to congressional intent made in [Toolson] and from the concerns as to retrospectivity therein expressed. Under these circumstances, there is merit in consistency even though some might claim that beneath that consistency is a layer of inconsistency.' 0 2 REv. 639, 655 (1999). 95. Flood, 407 U.S. at 266. 96. Id. at 267-68. 97. Id. at 283. 98. Id. at 290. 99. Id. at 282. 100. Flood, 407 U.S. at 283 (citing Boys Marekts, Inc. v. Retail Clerk's Un., 398 U.S. 235, 241-42 (1970)). 101. Id. 102. Id. at 284 (emphasis added).

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The Court reasoned that baseball had "unique characteristics and needs" that justified it receiving exceptional treatment.'o3 While Curt Flood was in court fighting for player's rights, the first association of MLB players was forming. Finally, the players obtained the right to arbitrate over grievances and made MLB raise players' base salaries.104 Further, "pension funds, licensing rights and revenues were brought to new levels, laying the groundwork that helped create what is widely 10considered 5 one of the strongest [players'] unions in the country." Curt Flood's efforts did not go unrecognized. Flood is widely considered recognized as the person who ended the reserve clause.106 As one commentator notes: "Flood eventually lost his case in the U.S. Supreme Court, but the battle educated countless players and millions of Americans about the 1. fundamental inequity of the reserve system . . ."107

Then, in 1994, out of frustration with a potential salary cap, the players went on strike resulting in the loss of the entire season, including the World Series. In response to the strike, Congress repealed a portion of MLB's total antitrust exemption, subjecting them to antitrust scrutiny in labor relations. 10 The Flood Act, stated: It is the purpose of this legislation to state that major league baseball players are covered under the antitrust laws (i.e., that major league baseball players will have the same rights under the antitrust laws as do other professional athletes, e.g., football and basketball players), along with a provision that makes it clear that the passage of this Act does not change the application of the antitrust laws in any other 103. Id. at 282. 104. History of the Major League Baseball Players Association, MLBPA

INFO, http://mlbplayers.mlb.com/pa/info/history.jsp (last visited Dec. 16, 2011). 105. Id. 106. Id.

107. Id. The players finally obtained a free agency system after two players challenged the reserve clause again in 1975. Id. Under the collective agreement in effect at that time, the players and league had to arbitrate their dispute. Id. The arbiter ruled in favor of the players and the reserve clause ended. 108. 1994 Strike Was a Low Point for Baseball, ESPN.COM, Aug. 10,

2004, 8:49 PM, http://sports.espn.go.com/mlb/news/story?id=1856626. 109. The Flood Act, Pub. L. No. 105-297, ยง 2, 1998 Stat. 53 (1998).

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context or with respect to any other person or entity. 110 However, the Flood Act does not appear to reach as far as players would like."' First, the Flood Act only protects major league players under antitrust laws in labor relations. 112 The Flood Act was supposed to make MLB operate as the other professional sports leagues do. For example, in the NFL, the players are organized under a players league that bargains with all of the team owners for terms of employment (i.e. collective bargaining), and individual players negotiate for specific salaries with teams. Teams are required to meet all the terms of the collective agreement in making deals with individual players, but, obviously, salaries vary by player. 113 If the players wish to challenge the league under antitrust laws, they must decertify and sue in an individual capacity. 1 14 Instead, the Act "specifically excludes Minor League Baseball, the amateur draft, [and] the relationship between the major leagues and the minors .. .. 15 Therefore, the Act was supposed to be the "end of what is left of baseball's antitrust exemption[,]"ll 6 but instead left more questions than before its enactment.117 The MLB can still control major aspects of its business free from scrutiny, such as the location of teams.118 Many commentators feel that the Flood Act merely codified MLB's antitrust exemption because it was so broad and still did not protect any of the minor league players.119 Others feel it 110. Id. 111. Nathaniel Grow, "Defining the Business of Baseball": A Proposed Frameworkfor Determining the Scope ofBaseball'sAntitrust Exemption, 44 U.C. DAvis L. REV. 557, 576 (2010). 112. Id. 113. FAQs, NFL PLAYERS ASS'N, https://www.nflplayers.com/aboutus/FAQs/ (last visited Dec. 16, 2011). 114. See supra text accompanying notes 26-31. 115. John T. Wolohan, Major League Baseball Contraction andAntitrust Law, 10 VILL. SPORTS & ENT. L.J. 5, 20 (2003). 116. 144 Cong. Rec. S10, 417 (daily ed. Sept. 16, 1998) (statement of Sen. Leahy). 117. J. Philip Calabrese, Antitrust and Baseball, 36 HARV. J. ON LEGIS. 531 (1999). 118. The Flood Act, Pub. L. No. 105-297, ยง 3, 1998 Stat. 53 (1998) (stating the Act does not apply to any other aspect of baseball such as franchising and franchise relocation). 119. Id.

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was just a way to make the players and league come to a collective bargaining agreement after the strike. o Either way, it seems that the Flood Act has not given the players the protection they may have thought it would. Though the Flood Act is supposed to require MLB to function as other professional sports leagues do regarding labor,121 it still exempts MLB from any sort of antitrust sanctions in all other functions of its business. Even though players can challenge MLB under antitrust law, it still derives enormous benefits from not being subject to antitrust litigation, like being able to control where there teams are located and how revenue will be spent.12 2 Thus, the MLB still has the power to monopolize baseball in all other areas besides labor and only be challenged in labor relations by the professional players. B.

The NFL andAntitrust Scrutiny

"According to Greek mythology, the Titans were greater even than the gods. They ruled their universe with absolute power! Well, that football field out there tonight, that's our universe. Let's rule it like Titans!" Remember the Titans123 While MLB has been free from antitrust sanctions, professional football has operated under the same antitrust scheme as any other business.124 The NFL formed its players association in 1956, even though the NFL, as a whole, had operated under a more fair system than professional baseball since its inception in the 1920s.12 5 120. Morgen A. Sullivan, Note, "A Derelict in the Stream of the Law": Overruling Baseball's Antitrust Exemption, 48 DuKE L.J. 1265, 1286 (1999) (stating that the legislative history supports that Congress pushed the bill through to placate the players and the league). 121. See FAQs, supra note 113. 122. See Darren Rovell, Baseball's Antitrust Exemption: Q & A, ESPN.coM, Dec. 6, 2001, 9:17 PM, http://sports.espn.go.com/espn/print?id=1290707&type=story (last visited Dec. 16, 2011). For example, in 2001, a substantial issue in baseball was the restrictions on teams being able to relocate and change hands in ownership. Id. Though there was legislation presented to totally strip MLB of their antitrust exemptions in light of these issues, nothing was ever enacted. Id. 123. REMEMBER THE TITANS (Walt Disney 2000). 124. See Clayton Act, supra note 17; see also Norris-LaGuardia Act, supra note 24. 125. Chronology of Professional Football, NFL HISTORY, [hereinafter

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In Radovich v. NFL, the NFL was directed that it was indeed subject to antitrust sanctions, unlike MLB.1 26 Radovich's complaint was similar to Curt Flood's complaint. 2 7 Radovich wanted to leave the Detroit Lions to play for a team in Los Angeles. 12 8 When the Lions would not release Radovich from his contract he signed with a rival league's team in Los Angeles, breaking the contract with the Lions.12 9 The NFL then "blacklisted" Radovich by threatening penalties on any NFL team that signed Radovich to another contract.' 3 0 Radovich challenged the "blacklisting" under the Sherman Act.13 1 The NFL argued it should not be subject to the Sherman Act because professional baseball was not subject to the Sherman Act.1 32 The Supreme Court held that in both Federal Baseball and Toolson it specifically limited the antitrust exemption itarticulated to only MLB.' 3 3 It did not apply to any other professional sport. After the Radovich case, "the owners quietl granted many of the demands from the players association." ' While Curt Flood and MLB players struggled for the freedom to change teams, the NFL was instituting pension and health insurance

plans for its players.1 3 5 NFL HISTORY], available at http://www.nfl.com/history (last visited Dec. 16, 2011). For example, in 1933, the NFL, deviated from following the rules of college football, and enacted rules to better fit the "style and play" of professional football, and keep it interesting for fans. Id. Also, the league was divided into two divisions, the winner of which would meet in a championship game, which we now know as the Super Bowl. Id. They constantly sought to not only keep the game interesting and exciting for fans, but looked out for the players, as well. Id. From changing how many points a field goal was worth, to implementing the "face mask rule" (which penalizes the grabbing of another players protective mask), the NFL sought to make the game as safe and entertaining as possible. Id. at 6. 126. Radovich v. NFL, 352 U.S. 445 (1957). 127. Id.; See also Flood v. Kuhn, 407 U.S. 258 (1972). 128. Id. at 447. 129. Id. 130. Id. 131. Id. at 447-48. 132. Id. at 450. 133. Id. 134. See NFL HISTORY, supra note 125. 135. Compare Hoch, supra note 93, with NFL HISTORY, supra note 125.

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In 1976, 36 NFL players challenged the "Rozelle Rule" instituted by the NFL in 1963.136 The rule, as set out in the NFL's bylaws, stated: Any player, whose contract with a League club has expired, shall thereupon become a free agent and shall no longer be considered a member of the team of that club following the expiration date of such contract. Whenever a player, becoming a free agent in such manner, thereafter signed a contract with a different club in the League, then, unless mutually satisfactory arrangements have been concluded between the two League clubs, the Commissioner may name and then award to the former club one or more players, from the Active, Reserve, or Selection List (including future selection choices) of the acquiring club as the Commissioner in his sole discretion deems fair and equitable; any such decision by the Commissioner shall be final and conclusive.' The NFL argued that this rule maintained competitive balance amongst the teams, while the players argued that the unilateral enacting of this provision constituted a conspiracy and restraint of their freedom to contract under both the Sherman and Clayton Acts. 1 3 8 The league argued that the nonstatutory exemptionl 3 9 should apply because the "Rozelle Rule" onl affected the parties to the collective bargaining agreement. The players argued that the "Rozelle Rule" was not a mandatory bargaining provision and was unilaterally implemented on them by the league and the nonstatutory exemption could not apply. 141 Because the parties did not bargain for the "Rozelle Rule", the league the 8 th Circuit held the third prongl42 of the nonstatutory exemption could not apply. 3 The clause amounted to a contractual restraint on trade in violation of the

136. Mackey v. Nat'1 Football League, 543 F.2d 606 (8th Cir. 1976). 137. Id. at 610-11. 138. Id. at 612. 139. See supra text accompanying notes 47-68. 140. Mackey, 543 F.2d 606 at 612. 141. Id. at 612 142. See Kaminsky, supra note 7, at 34. 143. Id. at 616; see also Kaminsky, supra note 7, at 63.

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Sherman Act. 1 4 4 However, the court could not agree with the district court's finding that it was a "per se violation" of the Act instead analyzing the issue under the rule of reason.143 According to that analysis the Court concluded: The Rozelle Rule significantly deters clubs from negotiating with and signing free agents; that it acts as a substantial deterrent to players playing out their options and becoming free agents; that it significantly decreases players' bargaining power in contract negotiations; that players are thus denied the right to sell their services in a free and open market; that as a result, the salaries paid by each club are lower than if competitive bidding were allowed to prevail; and that absent the Rozelle Rule, there would be increased movement in interstate commerce of players from one club to another. 146 Further, the Eighth Circuit Court of Appeals held, "[i]t may be that some reasonable restrictions relating to player transfers are necessary for the successful operation of the NFL. The protection of mutual interests of both the players and the clubs may indeed require this." 1 4 7 The court indicated that collective bargaining is the proper avenue to address these issues.148 The courts were again brought onto the gridiron in 1989, when the players association challenged the NFL's right of first refusal. 14 After the relevant collective bargaining agreement expired, the league continued abiding by the terms of the relevant collective bargaining agreement, while the players 144. Mackey, 543 F.2d at 616. 145. Id. at 619-20 (declaring a per se violation was not appropriate in the circumstances of the case, as the NFL and players are more so in a "joint venture" then a typical business/employee type relationship); see also, Kaminsky, supranote 7, at 63. 146. Mackey, 543 F.2d at 620. 147. Id. 148. Id. at 623. 149. Powell v. Nat'l Football Leagues, 930 F.2d 1293, 1295 (8th Cir. 1989). "The First Refusal/Compensation system provided that a team could retain a veteran free agent by exercising a right of first refusal and by matching a competing club's offer." Id. Today, NFL free agency depends "on the number of 'accrued seasons' the player has at the time his contract expires. An accrued season is a season in which the player has been on 'full pay status' for six (6) or more regular season games." FAQs, supra note 113. There are three levels of free agents, with each free agent having more bargaining power with their current team the longer they have played. Id.

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implemented a strike.15 0 On ap eal, the players argued that the parties had reached an impasse' in the bargaining process and that the court had to take action and grant an injunction in their favor.15 2 The court disagreed and held that even if the parties were at an impasse, the players had other remedies available to them under the collective bargaining process. The court noted that "[g]iven the array of remedies available to management and unions after impasse, a dispute such as the one before us ought to be resolved free of intervention by the courts" where "the union has had a sufficient impact in shaping the content of the employer's offers" and where the challenged restraint is "clothed with union approval." 5 3 The labor arena is one with well established rules that are intended to foster negotiated settlements rather than intervention by the courts. The League and the Players have accepted this "level playing field" as the basis for their often tempestuous relationship, and we believe that there is substantial justification for requiring the parties to continue to fight on it, so that bargaining and the exertion of economic force may be used to bring about legitimate compromise. 154 The Court in Powell did not let the players use litigation as an avenue to place blame on the league when the players had not bargained in good faith to negotiate a legitimate deal. In 1996, the NFL found itself back in court.1 55 As one collective bargaining agreement expired and another was negotiated, the NFL wanted to implement a developmental squad, 15 6 setting out a flat $1000 per week salary for all

150. Powell, 930 F.2d at 1296. 151. Id. at 1299 (stating an impasse occurs when the players and league just cannot make a deal). 152. Id. at 1296. 153. Id. at 1302 (quoting John C. Weistart & Cym H. Lowell, The Law of Sports ยง 5.06, at 590 (1979)). "To allow the claims here asserted by the Players would, we conclude, be inconsistent with federal labor policy." Id. at 1303 (footnoted omitted). 154. Id. at 1303. 155. Brown v. Pro Football, Inc., 518 U.S. 231 (1996). 156. This squad is similar to today's practice squad, where players are developed for a particular team.

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Eligible players for the members of this squad.15 7 developmental program brought suit alleginF it violated their freedom to contract under the Sherman Act. The players were awarded over $30 million in damages at trial, and the NFL appealed. 159 The NFL was victorious in the Court of Appeals, and the Supreme Court was next to take on the issue. 160 In examining the nonstatutory exemption, the Court stated, "the implicit exemption recognizes that, to give effect to federal labor laws and policies and to allow meaningful collective bargaining to take place, some restraints on competition imposed through the bargaining process must be shielded from antitrust sanctions." 1 6 1 The court explained that collective bargaining currently flourishes in both professional sorts labor But to negotiations, as well as outside the sports arena. challenge the Leagues' practices in the way the players sought in this case would, require antitrust courts to answer a host of important practical questions about how collective bargaining over wages, hours, and working conditions is to proceed-the very result that the implicit labor exemption seeks to avoid. And it is to place in jeopardy some of the potentially beneficial labor-related effects that multiemployer bargaining can achieve. That is because unlike labor law, which sometimes welcomes anticompetitive agreements conducive to industrial harmony, antitrust law forbids all agreements among competitors (such as competing employers) that unreasonably lessen competition among or between them in virtually any respect whatsoever. 163 "All this is to say that to permit antitrust liability [in the context of labor negotiations] threatens to introduce instability and uncertainty into the collective-bargaining process because antitrust law often forbids what collective bargaining requires.',164

The Court appeared to expand the nonstatutory

157. Brown, 518 U.S. at 234. 158. Id. at 235.

159.Id. 160.Id. 161. Id. at 237. 162. Id. at 240. 163. Id. at 240-241. 164. Id. at 242. See also Jonathan P. Heyl, Note, Brown v. Pro Football,

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exemption to let the policy of collective bargaining flourish.16 5 One of the most notable aspects of Brown was Justice Stevens' dissent.166 Stevens took issue with the fact that the Court analyzed the facts of the case as if it were any other labor dispute: [T]he Court chooses to analyze this case as though it represented a typical impasse in an unexceptional multiemployer bargaining process. In so doing, it glosses over .

. unique features of the case that are critical to the

inquiry into whether the policies of the labor laws require extension of the nonstatutory labor exemption to this atypical case.167 The majority's response even acknowledged how different the NFL was from regular employer/employee relationships: We also concede that football players often have special individual talents, and, unlike many unionized workers, they often negotiate their pay individually with their employers. But this characteristic seems simply a feature, like so many others, that might give employees (or employers) more (or less) bargaining power, that might lead some (or all) of them to favor a particular kind of bargaining, or that might lead to certain demands at the bargaining table. We do not see how it could make a critical legal difference in determining the underlying framework in which bargaining is to take place.16 Recognizing that the NFL and the NFL players association are in a different position than most employer/employee relationships, Justice Stevens stated: The Court appears to conclude instead that the exemption should apply merely because the employers' action was implemented during a lawful negotiating process concerning a mandatory subject of bargaining. Thus, the Court's analysis would seem to constitute both an unprecedented expansion

of a heretofore limited exemption, and an unexplained repudiation of the reasoning in a prior, nonconstitutional Inc.: Pulling a Tarp ofAntitrust Immunity Over the Entire Playing Field and Leaving the Game, 75 N.C. L. REv. 1030, 1036 (1997). 165. Id. 166. Id. (Stevens, J. dissenting). 167. Id. 168. Id. at 249.

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decision that Congress itself has not seen fit to override. 169 Therefore, Justice Stevens' dissent outlined two important points. First, he noted that the Court neglected to recognize the differences in the NFL's collective bar aining in comparison to Second, he illustrated other "typical" bargaining processes. that the Court expanded a formerly "limited" exemption, and only cited a concurring opinion from Jewel Tea to do so.171 Justice Stevens felt that this extensive expansion should be done by Congress and that the court should not create a statute from

the bench.172 The NFL players once again marched into court in 2011; after their collective bargaining agreement expired March 3 2011, the players union decertified, and filed Brady v. NFL.17 Brady asserted violations of both the Sherman and Clayton Acts, alleging that the NFL owners conspired to "lock out" the players and price fix the players' contracts.1 74 The players argued that it was "not in their interest to remain unionized if the existence of such a union would serve to allow the NFL to impose anticompetitive restrictions with impunity." 75 Though the district court ruled in favor of the players, the Eighth Circuit reversed, citing the Norris-LaGuardia Act, which prevents any court from granting an injunction in any non-violent labor dispute. 176 The court vacated the district court's injunction in favor of the players, 17 7 and the parties finally agreed on a new collective bargaining deal that was ratified on July 21, 2011. 169. Id. at 260 (emphasis added). 170. Id. at 249. 171.Id. at 260. 172.Id. 173. Brady v. NFL, 644 F.3d 661 (8th Cir. 2011). The case was filed by New England Patriots quarterback, Tom Brady, and signed on with Peyton Manning, and Drew Brees. The named plaintiffs include several NFL stars: Vincent Jackson, Ben Leber, Logan Mankins, Brian Robison, Osi Umenyiora, Mike Vrabel, and Von Miller. 174. Id. at 663. 175. Id. 176. Id. 177. Id. 178. Seth Wenig, NFL Lockout Timeline, U.S.A. TODAY, June 21, 2011, http://www.usatoday.com/sports/football/nfl/2011-07-21 available at

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IV. WHY THE NFL SHOULD NOT BE FLAGGED FOR ANTITRUST SCRUTINY IN LABOR RELATIONS

A. The Needfor MLB PlayerProtection

"The American Express Card. Don't steal home without it." Major Leaguel79

Major League Baseball's lack of antitrust scrutiny in all areas outside of labor leaves the league with immense power, which in turn radiates into the labor arena, whether Congress intended it to or not. MLB's minor league system is an exceptional situation in the transitioning of non-professional players into professional players. The antitrust protection MLB receives is integral to its minor league system operating effectively, because the minor league players do not receive antitrust labor protection under the Flood Act. 180 While the NFL makes use of collegiate players who are already regulated by the governing body of the NCAA and are only eligible for the draft after a specified period of time, MLB's draft works much differently, with much less regulation, and then relies on the minor leagues for player development. 18 1 At first, MLB did not draft players because its reserve system locked in the players it wanted. 82 Even when MLB tried to institute a draft, three of the minor league teams that were loaded with the best players refused to participate in the draft, causing MLB teams to bargain with the minors to obtain the strongest players. 183 The minor league teams held the power to lockout-timeline n.htm. 179. MAJOR LEAGUE (Paramount Pictures 1989). 180. See supra text accompanying notes 109-120. 181.

Draft

FAQ,

First

Year

Player

Draft,

MLB.com,

http://mlb.mlb.com/mlb/draftday/faq.jsp (last visited Dec. 16, 2011). Those eligible for the draft are "A player who is a resident of the United States or Canada and who has not previously contracted with a Major League or Minor League Club, so long as the player is eligible to sign under the High School, College or Junior College Rules contained in Major League Rule 3." Id. Rule 3 further outlines requirements of high school, junior college, and university level students for the draft. Id. The draft operates as other professional leagues, with teams who did not perform well picking early in the draft and the better performing teams pick later. Id. 182. See Jones, supra note 94, at 650. 183. Id.

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develop the strongest players, compete with other minor league teams on the field to gain revenue, and also compete with major league teams in dealing for players. The first draft that included minor league participation was finally held in 1965, at which time the current draft system was implemented.18 4 Not only are the minor leagues a unique source of player acquisition by the major league teams, most are either owned or directly affiliated with the teams in MLB thanks to MLB's lack of antitrust scrutiny.' 8 5 For example, the Atlanta Braves have a total of seven minor league teams at their disposal for player These teams assist not only in rookie development.1 86 development, but also serve as rehabilitation facilities for those major league players coming back from injury, as well as discounted entertainment for baseball fans in general. 187 Even though MLB now has a full draft, the minor leagues are an integral part in the functioning of MLB. After a player is drafted, MLB has fifteen days to provide the draftee with a contract.' 8 8 This is not always a contract to an MLB team, but is usually a contract to a minor league affiliate.1 8 9 Therefore, the team that drafts a player has exclusive rights to such player, and can determine when and where they will develop for their major league career, without the players being able to sue under the Sherman Act.19 0 Even more alarming is the statistical fact that only 10% percent of players drafted and signed to a minor league contract

184. History of the Game, MLB.COM, http://mlb.mlb.com/mlbIhistory/index.jsp. Now, minor league teams act as feeder systems for drafted players. Id. See also Draft FAQ, supra note 181. 185. See generally TEAMS BY AFFILIATION, available at http://www.minorleaguebaseball.com/milb/info/affiliations.jsp. 186. Id. 187. Official Sponsorship Info, MINOR LEAGUE BASEBALL, available at http://web.minorleaguebaseball.com/milb/info/sponsorship.jsp (stating the average cost of a game outing for a family of four is approximately 50% less than a MLB game, and that the total number of spectators surpassed the NFL and NBA last season). available at MLB.coM, Rules, Draft 188. Official http://mlb.mlb.com/mlb/draftday/rules.jsp. See also Jones, supra note 94, at 650. 189. See Official Draft Rules, supra note 188. 190. Id.

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will actually play in a single major league game.191 Though each team drafts between 45-50, it releases about the same amount every year, giving MLB teams a significant turnover rate.192 In addition every first year player has a set salary of $850 per month,19 while the lowest median salary on the lowest revenue generating team in MLB is $ 850,000 (i.e., $70,833.33 a month).194 For each player that jumps ship, there are twice as many waiting behind him, at a more cost-effective price. 195 Therefore, MLB has the power to substantially pressure these minor league players clawing to reach the major leagues into more cost effective contracts for team owners, not taking the players' wishes into consideration. 19 6 Also, MLB contains rosters of 25 players.1 97 Amongst the 25 players on the team, the disparity between the players' salaries is substantial. For example, the St. Louis Cardinals' top earner has a yearly salary of $ 16,317,774, while their lowest earning player makes $ 414,000.198 MLB owners are able to negotiate and structure the deals with their players in direct comparison to their performance, all while holding the power to offer a top earner a guaranteed contract, which is not as readily available in the NFL 99 for millions of dollars. For example, as Vince Gennaro, sports consultant and author stated: Baseball tends to favor the players . . . with higher

compensation, longer careers, and contracts that are 191. Draft FAQ,supra note 18 1. 192. Id. 193. Id. 194. See MLB

SALARY

DATABASE,

http://content.usatoday.com/sportsdata/baseball/mlb/salaries/team (citing the Kansas City Royals' median salary, the lowest of the MLB teams). 195. Id. 196. Id. 197. Stephen J. Dubner, N.F.L. vs. ML.B. as a Labor Market: A Freakonomics Quorum, Nov. 28, 2007,

http://www.freakonomics.com/2007/11/28/nfl-vs-mlb-as-a-labor-market-afreakonomics-quorum [hereinafter Blog]. 198. See MLB SALARY DATABASE, http://content.usatoday.com/sportsdata/baseball/mlb/Cardinals/salaries/20 11 (illustrating Matt Holliday & Daniel Descalso respective salaries). 199. In the new collective bargaining agreement, there are some instances where players can receive guaranteed contracts. See CBA Summary, infra note 229.

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guaranteed in the event of an injury. Also, because baseball is without a salary cap and many teams depend on winning to drive the revenue engine, owners tend to award lavish contracts to an impact player in the hopes that he will carry

the team deep into October, unlocking future revenues.

Baseball's Alex Rodriguez has agreed to a contract worth nearly $30 million per year, while N.F.L. stars Peyton Manning and Tom Brady each make about $10 million per year. 200 Though some commentators feel this benefits the players of MLB, it actually requires the need for more protection. Not for players like Alex Rodriguez, 20 1 but for those second basemen making a fraction of his salary. These players are fighting to stay relevant on a professional team. As long as Rodriguez hits well and showcases his talent, he will continue to be one of the top earning players in all of sports, while the team owners can rotate "disposable" players through the roster to support him. Also, MLB teams are not subject to a salary cap 2 02 but instead a "luxury tax" that any team at the top of its game will freely pay to keep its top performers on board.2 0 3 The Flood Act is the only limitation on the league protecting the professional players and even the Flood Act itself provides limited protection. Further, MLB teams operate in a more local format than NFL teams. According to Vince Gennaro, "an M.L.B. team is essentially a local business. Less than 25 percent of all revenues are distributed evenly among the 30 teams. . . . The

primary revenues of a baseball team-attendance, ticket price increases, luxury suite rentals, and local broadcast ratings and subsequent rights fees-can rise and fall with winning and 200. See Blog, supra note 197 (emphasis added). 201. Alex Rodriguez plays third base for the New York Yankees, earning See Baseball Salaries, salary of $ 32,000,000. an annual http://content.usatoday.com/sportsdata/baseball/mlb/Yankees/salaries/2011. 202. Sean W.L. Alford, Comment, Dusting Off the A.K.-47: An Examination of the NFL Players' Most Powerful Weapon in an Antitrust Law Suit Against the NFL, 88 N.C. L. REv. 212 (2009). The NFL has a "hard" salary cap, meaning all teams have to stay under a certain total amount for all of their players salaries. 203. Cork Gaines, Chart of the Day: The ALB Luxury Tax Should Really Be Called "The Yankees Tax", BUSINESS INSIDER, Apr. 6, 2011, available at http://www.businessinsider.com/chart-yankees-luxury-tax-2011-4. 204. See supra text accompanying notes 109-120.

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losing seasons." 205 This makes the competition between teams off the field much more intense than in the NFL, which has a revenue sharing model. 206 Teams will vie for the top players, at whatever costs, without the players' rights in mind. The owners have a vested interest in making sure their respective teams are the best, on the field and off, at the expense of the players. The minor league system and lack of salary cap both contribute to MLB's overreach of power. While the top veteran players can find career stability and enormous amounts of money, the players at the lower end of the totem pole carry the load in their low salaries and threat of disposability. 2 Minor league and inexperienced players are bound to "a reserve system under which they are not eligible for salary arbitration. Therefore, these players are at the mercy of organizations seeking to minimize their player development costs in order to gain a return on their investment." 20 8 This illustrates that the Flood Act does protect the players' rights in a situation where their rights are not as clear-cut as some would assume. MLB has an extensive amount of freedom and power over the players, and it is not subject to litigation in its dealings outside of the league-major league player relationship. The Flood Act allows the players association to decertify as a bargaining unit and sue MLB for violations of antitrust laws. 2 09 This is the only protection the players have and even this protection does not provide much to the players. MLB players need the extra protection the Flood Act provides so as to not to be defeated by MLB's power. B.

The Lack of a Needfor NFL Player Protection

"First and foremost it is your passion for the game that

drives us all, and we will not lose sight of this as we continue to work for a deal that works for everyone."-

205. See Blog, supra note 197. 206. See CBA Summary, infra note 229. All of the NFL teams share in

revenues, including their television revenue. Id. This is the one area where the NFL is insulated from antitrust sanctions. See also, Sports Broadcasting Act of 1961, 15 U.S.C.A. ยง 1291 (1961). 207. See Jones, supra note 94, at 677. 208. Id. at 683. 209. See Flood Act, supra note 109.

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Goodell Letter to Fans during 2011 Lockout. 210

The NFL, on the other hand, no longer faces the player restraint and disparity that MLB does. Also, courts have expanded the nonstatutory exemption in the NFL and labor relations to the point where uncertainty reigns in its application, giving the players association leverage to keep the it one step ahead in bargaining process. In negotiating the collective bargaining agreement, almost all terms-such as practice times, pre-season games, and most importantly, salaries-fall outside the scope of antitrust liability under the nonstatutory exemption, yet the players are still able to stop negotiations and sue.21 If the Court has already stretched the nonstatutory exemption as far as it did in Brown, Congress should take the next step and grant them a statutory exemption in the world of labor relations. An antitrust exemption in labor relations would still foster the policy behind antitrust regulation. As one commentator stated: "[t]he clear goal of the Court's decision in Brown was to promote the unhindered operation of the collective bargaining process. Keeping the "antitrust courts" [sic] out of the labor arena by exempting virtually the entire bargaining process was meant to encourage collective bargaining agreements, presumably by removing labor unions' fallback position of bringing an antitrust claim." 2 12 Because most of the collective bargaining process has been removed from antitrust scrutiny, an employer would have to push rather far in order to fail the nonstatutory exemption's three prongs. Instead players association can use the threat of antitrust litigation to make the NFL look like the bad guy, and blackmail the NFL until it makes a deal. The NFL's player development system can be contrasted from MLB's minor league development system. First, NFL players come from an already regulated system in the NCAA, in which they have to reach a certain age or year in college in order to come to the NFL, unlike MLB's loosely regulated draft and minor league system which directly feeds players into 210.

Roger

Goodell,

Open

Letter

Fans, available at

http://profootballtalk.nbcsports.com/2011/03/11 /roger-goodells-letter-tofans-your-passion-for-the-game-drives-us-all. 211. 212.

See Heyl, supranote 164, at 1065. Id.

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teams, at a low cost. 2 13 From college, there is practically no other place for players to go; it is the NFL or bust.214 Coming from the highly competitive world of NCAA football and then fighting for a spot on a lucrative NFL team breeds the talent that ends up on each and every NFL team; talent that is given outstanding salaries, 2 15 whether they are starters or bench players who never see a minute of playing time. MLB, on the other hand has the constant turnover of players previously

discussed.2?6 Further, "NFL football is sufficiently distinctive so that the League also does not compete with college football or professional leagues in other sports. No real substitutes exist for the League's product." 217 While some would say that lends to the argument supporting the need for antitrust sanctions, it actually does the opposite. As one commentator notes: "[b]ecause of the collective nature of athletic contests, players associations recognize that a player's value to any particular team depends not only on the player's skill level, but also on the nature of the player's skills and the player's attitude, conduct, age, and relationship with teammates." 2 ' Therefore, each and every player on an NFL team is born and bred to be an integral part of the team, with the success of each team depending on every player, not just one as is the situation with Alex Rodriguez and the Yankees.2f9 It is also important to consider why the collective bargaining process, in particular, works so well for the NFL and the players association. The NFL players association has been in effect for over 50 years, and has used whatever methods it can to get the 213. See Draft FAQ, supra note 181.

214. While there are both Canadian and Arena football leagues, they have not received the recognition or following that the NFL has, and making a sustainable career in one of these leagues would be tenuous in comparison to a NFL player's career. 215. See NFL Salary Database, USA TODAY, available at http://content.usatoday.com/sportsdata/football/nfl/salaries/team (stating that the Kansas City Chiefs, with the lowest total payroll, has the average salary of $1,419,850). 216. See supra Part IV.A. 217. See Lock, supra note 70. 218. Id. at 354. 219. See supra Part IV.A.

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players what they want, including litigation. 2 20 The most valuable part of the collective bargaining process is the fact that all of the players, regardless of their "price," bargain together. 22 1 "If the most skilled workers were able to opt out of the collectivity, the employer would be under less compulsion to make generous settlements with the union." 222 Regardless of skill and salary potential, all of the players want certain rights both on and off the field, so their best interests are served via the collective bargaining process with the League. The nature of the game of football has owners and coaches alike seeking team chemistry which has become the most important aspect of the game. This means that all players, on all sides 224of the ball, are equally important, and integral to Tom Brady, though arguably one of the best winning. quarterbacks of this decade, would not be the player he is without offensive line protection giving him time to work his magic, outstanding wide receivers to throw the ball to, and an immovable defense to get the ball back from the opponent. Each puzzle piece is vital to an NFL team's success. NFL teams load their roster with these integral players, so if a starter goes out with injury, the team does not miss a beat.2 25 This differs not only from MLB, but from typical employee situations as well. MLB has one to two outstanding players and

220. See NFL HISTORY, supra note 125.

221. Michael S. Jacobs & Ralph K. Winter, Jr., Antitrust Principles and Collective Bargainingby Athletes: of Superstars in Peonage, 81 YALE L. J. 1 (1971).

222. Id.

223. Don Banks, NFL Teams not Worried by Technology Affecting 2:13pm, August 25, 2011, Chemistry, SPORTS ILLUSTRATED, http://sportsillustrated.cnn.com/20 11/writers/donbanks/08/25/technology/in dex.html. 224. For example, prior to the 2010 season, the New York Jets could be seen chasing after one player (a corner named Darelle Revis) the entire offseason, to get him to re-sign a contract. Everyone from the head coach to the owner of the team made personal visits to Revis, who was holding out for a bigger, better contract. HardKnocks: NY Jets (HBO 2010). Revis illustrates the necessity of top quality players on all sides of the ball. 225. For example, this season's Houston Texans are down to their thirdstring quarterback due to injury, but are still in first place in the AFC. See generally, HouSTON TEXANS WEBSITE, www.houstontexans.com.

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a minor league system of other players to carry the load.2 2 6 Also, a typical labor union would never be made up of irreplaceable employees. The typical employer (and MLB) have leverage against the employee-their work can be replaced. On the other hand, the NFL cannot substitute replacement players and expect to maintain the level of success it currently has. In this area, the nonstatutory exemption works in favor of the players association because it knows it can go to court to get what it wants in bargaining. There are also no substitutes for the NFL for those quality players and teams. A fan would not come to Metlife Stadium every Sunday to see a "scab" quarterback, they come to see Eli Manning and the "smash and dash" New York Giants' offense. As one commentator notes: "No real substitutes exist for the League's product. Moreover, demand for NFL football is high (the League has operated at about 90% attendance capacity over the past decade.)" 22 7 The NFL would be downright foolish to do anything to jeopardize the high quality of players that has dominated every team just to make extra revenue for itself. The Brady case is illustrative of this point. Though the League used bargaining tactics throughout the entire process, the League did not want to walk away from the bargainin table.2 2 8 Instead, the players did, and they ran right to court. Even after losing in the Eighth Circuit the players were still able to get what they wanted in the collective bargaining the agreement.230 An overwhelming majority of the provisions players wanted in the new agreement were instituted. 2 3 1 These provisions include practice limitations, no rookie wage scale, some guaranteed contracts against injury, contribution to pension glans for players from every team, and minimum salary increase. 32 The litigation unnecessarily extended the period of 226. See MLB SALARY DATABASE, supra note 194.

227. See Lock, supra note 70, at 357. 228. Brady v. NFL, 644 F.3d 661 (8th Cir. 2011). 229. Id. 230. Id. See also, Summary of the New NFL Collective Bargaining at available ILLUSTRATED, SPORTS Agreement, http://sportsillustrated.cnn.com/2011 /football/nfl/07/25/cba-settlementsummary/index.html [hereinafter CBA Summary]. 231. See CBA Summary, supra note 230. 232.Id.

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negotiations, or what were supposed to be negotiations, for a period of six months, when the parties could have stayed in negotiations and worked the deal out in due time, without losing a significant part of the off-season training and pre-season Luckily, in this situation, a significant amount preparations. of revenue was not lost, as it would have been had the entire season been called off. 2 34 Nonetheless, it had the potential to be detrimental to the League and players alike, all because the players association has this escape route from the negotiation table. Without the antitrust litigation potential looming over the League as they tried to negotiate the new deal, the two parties would have had to stay and negotiate, and could have gotten a deal done faster. If the NFL was not subject to this antitrust sanction, the players could still have the recourse of a strike, if a deal was at a standstill. This is highly unlikely because the League would not risk its livelihood-the players-to "get their own way". The key aspect needed for the League to function is bargaining, and one party being able to opt of bargaining, especially when that party comes to negotiations with more strength then the opposite party, undermines the entire theory behind the nonstatutory exemption. 235 Moreover, the nonstatutory exemption is stretched and blurred to an inapplicable standard, leaving the players at an extreme advantage in any bargaining situation. C.

Addressing the Counter Argument

"In America, we have laws laws against killing, laws against stealing. It is just accepted that as a member of American society, you will live by these laws. In West Canaan, Texas, there is another society which has its own 233. See NFL Lockout Timeline, supra note 178. "[A] decertified union. . cannot represent players in grievances or administer pensions and other union benefits. In addition, decertification may leave unions with no legal means for gathering and distributing salary information to players and to agents, a linchpin of contract negotiations . . . ." See also Gould, supra note

30, at 9. 234. See Roberts, supra note 4. 235. Gary R. Roberts, Reconciling Federal Labor and Antitrust Policy: The Special Case of Sports League Labor Market Restraints, 75 GEO. L.J. 19 (1986). See also Brown v. Pro Football, Inc., 518 U.S. 231 (1996).

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laws. Football is a way of life." Varsity Blues 236 The alternative argument to the NFL being free of labor related sanctions is wrapped around the media perception of NFL owners and of the NFL Commissioner, Roger Goodell. For instance, one commentator calls Commissioner Goodell, "Gotti," comparing the way he has managed the NFL with the former mob boss John Gotti.2 3 7 Further, Goodell has been criticized in his management of the Brady situation, asAtlanta Falcons' wide receiver Roddy White stated: "[h]e's not a guy who gets acclimated with the players and things like that, which is what you need to do as a commissioner." 2 39 Players accused Goodell of not actively participating in the negotiations, instead leaving well-liked team owners such as Jim Mora of the New York Giants and Jerry Jones of the Dallas Cowboys to deal with the players. 2 3 9 Players have also complained about being disciplined in various degrees for the "same" types of incidents as a showing of Goodell's power. 24 0 Further, the players themselves took to the media from the time the collective bargaining agreement ended in 2008 until the deal was completed in 2011. Drew Brees 24 1 commentated on what could happen if the League was not subject to antitrust litigation: [T]he absence of antitrust scrutiny would enable the owners 236. VARSiTY BLUES (Paramount Pictures 1999). 237. Does "Roger Goodell Gotti" Have too Much Power?, MIDWEST at available 2011) 18, (August FANS SPORTS

http://www.midwestsportsfans.com/2011/08/does-roger-goodell-gotti-havetoo-much-power. Ironically, the players have recently been accused of overstepping their power. A group of retired players has sued the NFL players association over their handling and negotiating on the retired player's behalf, without their consent, during this collective bargaining process. Retired Players sue Brady, and NFLPA,

Fox SPORTS, available at

http://msn.foxsports.com/nfl/story/Tom-Brady-Retired-players-sue-NFLPA09131 1?GTI=39002. 238. Jason Cole, Goodell's Standing Among Players Falters, YAHOO! at available 2011), 1, (Aug. SPORTS http://sports.yahoo.com/nfl/news?slug-jccole goodellharrison image conduct 080111. 239. Id. 240. Id.

One such instance was fining two players differing amounts for the same type of "helmet-to-helmet" hit on another player. 241. Drew Brees is the starting quarterback for the New Orleans Saints.

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to exert total control over this multibillion-dollar business. What might the owners do? They could agree to end or severely restrict free agency, continue to enter into exclusive agreements that will further raise prices on merchandise, lock coaches into salary scales that don't reward them when they're promoted and set higher ticket prices (including preventing teams from competing through ticket discounts).

But Brees' argument is without merit. First, ticket prices and merchandise prices are reflective of the economy; little has to do with what is going on in the front office of the League.2 4 3 Regarding free agency, the NFL has notoriously "self policed" when it comes to free agency. Though the League did have a form of a reserve system, it was in the process of bargaining that system away when the Mackey case came about and the players had run from negotiations. 44 Now, the current free agency system has proved to be the most important aspect of the competitive balance on which the NFL thrives.2 4 5 Competitive balance is the key to the NFL's success, as the saying "any given Sunday" 24 6 holds true week after week. For example, since the first Super Bowl in 1967, 28 of the total 38 teams in the League have made appearances in the big game.2 4 7 Whether it is seeing the underdog New Orleans Saints stand up after the devastating effects of Hurricane Katrina to defeat the dominating Indianapolis Colts,248 or seeing a classic team like 242. Drew Brees, Saints Quarterback Weighs in on the NFL's Supreme Court Case, WASHINGTON POST (Jan. 10, 2010), available at http://www.washingtonpost.com/wpdyn/content/article/2010/01/07/AR2010010702947.html. 243. Adam Schefter, NFL Lowers Ticket Prices in Response to Economic 7:16pm, 18, 2008, Nov. NFL.CoM, Conditions, http://www.nfl.com/news/story/09000d5d8Oc6eeb8/article/nfl-lowersplayoff-ticket-prices-in-response-to-economic-conditions. 244. Mackey v. Nat'l Football League, 543 F.2d 606 (8th Cir. 1976). 245. See Lock, supra note 70, at 357. 246. The saying "any given Sunday" refers to the unpredictable nature of weekly NFL contests. It was later a box office hit. See ANY GIVEN SUNDAY, infra note 264. 247. See generally, NFL HISTORY, supra note 125. Further, eighteen teams have won, while ten teams have appeared and lost. Id. 248. See Super Bowl XLIV at Super Bowl History, NFL.COM, http://www.nfl.com/superbowl/history.

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the Green Bay Packers methodically unwind the hard-hitting Pittsburg Steelers,2 4 9 fans from near and far strive to tune in every Sunday to follow their team, their team's competitors, and the attention-grabbing story of the week. 250 They follow these story lines and players all the way to the Super Bowl, which is regularly the highest watched program on television year after year. 251 The League's self-policing can be illustrated through the terms it was trying to bargain for in this year's "lock out." Two of the terms that drew the largest objections from the players were the amount and distribution of player pay and a schedule expansion. 2 52 In 2009, the NFL grossed over $8.88 billion in revenue, with $4.5 billion of that money going to the players. 25 3

Further, the "[p]layers' share of incremental increases to all revenues under the NFL's expired contract was about 53 percent from 2006 to 2009, according to calculations by the accounting firm that audited the collective bargaining agreement for both sides."2 5 4 The League did not want to cut the players' salaries, but wanted to restructure the salary system.2 5 5 The players felt this was the League unilaterally imposing new terms on them that they did not want.2 5 6 Even with the Eighth Circuit ruling in 249. See Superbowl XLV at Super Bowl History, NFL.CoM, http://www.nfl.com/superbowl/history. 250. Bill Carter, Super Bowl Ratings Cap Record Year for NFL, NY TIMES (Feb. 7, 2011), available at http://mediadecoder.blogs.nytimes.com/2011/02/07/super-bowl-ratings-caprecord-year-for-n-f-l/. 25 1.Id. 252. Associated Press, League, Players Disagree on Interpretation of Revenue Figures, NFL.coM, http://www.nfl.com/news/story/09OO0d5d81 edda24/printable/league-playersdisagree-on-interpretation-of-revenue-figures. See also, William Browning, Main Issues Behind NFL Lockout, Mar. 14, 2010, http://sports.yahoo.com/nfl/news?slug=ycn-805 1788. 253. Id. 254. Id. PricewaterhouseCoopers performed an independent audit for both sides, at the request of the NFLPA during collective bargaining negotiations (before the players decertified), so that the league and the NFLPA were able to have bright line numbers to work with in restructuring the players' salary distribution. Id. This ended up being problematic, because the two sides could not come to an agreement on what was "revenue." Id. 255. Id. 256. See Browning, supra note 252.

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favor of the League, the new collective bargaining agreement still implemented a favorable "all revenue" system, which allows the players both a minimum salary increase and a fortyseven floor percentage of the League's revenue, with the players association having a discretionary fund of $20 million dollars to use towards "health, safety, and former player issues." 2 5 7 On the issue of the expansion of the schedule, the League wanted to generate more revenue, approximately half of which goes to the players, by converting two of the four preseason games into regular season matchups. 2 5 8 The players stated this would be detrimental to their careers, with the extra two games providing excessive wear and tear on their bodies.2 59 The result, accordinato the players, would be to shorten the length of their careers. Even though the NFL was victorious in court, there has been no change in the schedule or terms of schedule in the NF L. 261 Instead, the new collective bargaining agreement limits the amount the teams can practice throughout the off-season, mini-camp period, and pre-season, providing for healthier, longer careers of the players. 262 Also, the collective bargaining agreement limits the teams to fourteen total padded practices during the regular season. 2 63 Yet again, the players received the protection they wanted without relief from the court, as the League was unwilling to sacrifice the football season for an idea it felt would be beneficial. V. CONCLUSION

"You find out life's this game of inches, so is football. Because in either game-life or football-the margin for

error is so small. I mean, one half a step too late or too early and you don't quite make it. One half second too slow, too

fast and you don't quite catch it. The inches we need are 257. See CBA Summary, supra note 230. 258. See Browning, supra note 252. 259.Id. 260.Id. 261. See CBA Summary, supra note 230. This could be due to the shortened off-season after the lockout, but is more likely due to the League not wanting to implement something on its players that they were so incessantly opposed to. 262. Id. 263. Id.

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everywhere around us. They're in every break of the game, every minute, every second. On this team we fight for that inch. On this team we tear ourselves and everyone else around us to pieces for that inch. We claw with our fingernails for that inch . . . That's a team gentlemen, and

either, we heal as a team, or we will die as individuals. That's football guys, that's all it is. Now what are you gonna do?" Any Given Sunday.264

The Court's expansion of the nonstatutory exemption has left no need for antitrust sanctions against the NFL in labor relations. Not having the antitrust litigation to fall back on would require both the NFL and the players association to stay at the bargaining table, and the players (if being unfairly treated) would still have the recourse to strike. Unlike MLB, the players hold the power, as there is no substitute for what they can provide on the field. While MLB has layers of minor league players in their feeder system who cannot claim antitrust violations against MLB, the NFL has the option to draft players from college, and not much else. MLB's full antitrust exemption requires more protection for players in the labor realm because the owners are basically immune from antitrust litigation in every other sense and have the power to oppress most of the players. On the other hand, the NFL league owners have regulated themselves, especially regarding their interaction with players, and are still subject to a litigation dance, as the NFL players use antitrust litigation as a threat against the NFL. The NFL players come to the bargaining table armed with their irreplaceable talent, as well as the NFL's susceptibility to antitrust sanctions, allowing them to run away to court whenever they feel mistreated. This just impedes the bargaining process, undermining the policy of antitrust regulation of the past 100 years, as seen in the Brady case. The league functions because of the collective bargaining process, and both parties need to stay at the table and get a deal done in order to function. Even if the players association had won the Brady case, "the union and its members may [have been] be awarded large damages and injunctive relief, but [are] still required . . . to

bargain with the employer over the matter, and inevitably an agreement will be reached settling the lawsuit and exempting

264. ANY GIVEN SUNDAY (Warner Bros 1999).

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whatever conduct the parties agree upon." 2 65 This bolsters the fact that the current antitrust and labor status of the NFL is defunct, and serves as a sword for the players instead of their shield; while MLB, in contrast, needs this protection. Antitrust sanctions in labor in the NFL should hit the showers, and let the NFL get back to football. Kimberly A. Colmey*

265. See Roberts, supra note 235, at 88. *Juris Doctor Candidate, Atlanta's John Marshall Law School, May 2012; Bachelor of Science in Sport Management, St. John's University, May 2005. I'd like to thank our wonderful Editor-in-Chief, Ms. Stacie Chapman, for her patience with me throughout this law school journey. I'd also like to thank my entire family, especially my parents, for their unwavering love and support. Lastly, I'd like to thank my sister, for always reminding me of my dolphin-like nature: "I feel you beating in my chest, I'd be dead without, sister."-David J. Matthews.

151sT GEORGIA GENERAL ASSEMBLY 2011 LEGISLATIVE SESSION

HOUSE BILL 30': CONTRACTS; ILLEGAL OR VOID Amending 0. C. G.A. Chapter 8 of Title 13 by Repealing 0. C. G.A. § 13-8-2.1 and 0. C. G.A. Article 4; and Creating O.C.G.A. §§ 13-8-50 to -59

First Signature: Representative Wendell Willard (49th) Co-Sponsor: Senator Bill Cowsert (46th) Summary: House Bill 30 sought to re-enact and clarify House Bill 173 (Act No. 64, Ga. L. 2009, p. 231) due to suggestions concerning House Bill 173's legality after it was2 enacted and passed by the voters in the 2010 public election. House Bill 30, like House Bill 173, was enacted to amend Chapter 8 of Title 13 by repealing Code Section 13-8-2.1.3 Code Section 13-8-2.1 related to contracts that partially restrained trade, specifically restrictive covenants, and allowed the courts to enforce valid portions of the contracts. 4 House Bill 30 also sought to clarify provisions "relating to contracts contravening public policy[.]" 5 The Bill repealed restrictive to Article 4 of Chapter 8 of Title 13, relating 13-8Sections Code created and detail, covenants in greater 50 to -59, providing definitions and construction of restrictive covenants, enforcement of restrictive covenants in specific 1. H.B. 30, 15 1st Gen. Assemb., 1st Reg. Sess. (Ga. 2011) (enacted), availableat http://www.legis.ga.gov/Legislation/20112012/116863.pdf. 2. Id. § 1. 3. Id. § 2. 4. Id. § 4. 5. Id. § 2.

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types of contracts, and other purposes.6 Status: Enacted into law as Act 99 on May 11, 201 1.7 TEXT OF HOUSE BILL 30

ยง 1. During the 2009 legislative session the General Assembly enacted House Bill 173 (Act No. 64, Ga. L. 2009, p. 231), which was a bill that dealt with the issue of restrictive covenants in contracts and which was contingently effective on the passage of a constitutional amendment. During the 2010 legislative session the General Assembly enacted HR 178 (Ga. L. 2010, p. 1260), the constitutional amendment necessary for the statutory language of House Bill 173 (Act No. 64, Ga. L. 2009, p. 231), and the voters ratified the constitutional amendment on November 2, 2010. It has been suggested by certain parties that because of the effective date provisions of House Bill 173 (Act No. 64, Ga. L. 2009, p. 231), there may be some question about the validity of that legislation. It is the intention of this Act to remove any such uncertainty by substantially reenacting the substantive provisions of House Bill 173 (Act No. 64, Ga. L. 2009, p. 231), but the enactment of this Act should not be taken as evidence of a legislative determination that House Bill 173 (Act No. 64, Ga. L. 2009, p. 231) was in fact invalid.

ยง2. Chapter 8 of Title 13 of the Official Code of Georgia Annotated, relating to illegal and void contracts generally, is amended by repealing subsection (a) of Code Section 13-8-2, relating to contracts contravening public policy, and enacting a new subsection (a) to read as follows: "(a) A contract that is against the policy of the law cannot be 6. Id. ยง 4. 7. 2011-2012 Regular Session-HB 30, Contracts; illegal or void; repeal certain code sections; change provisions, GA. GEN. ASSEMB.,

http://www.legis.ga.gov/legislation/en-US/display/32007 15, 2011) [hereinafter H.B. 30 Status Sheet].

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enforced. Contracts deemed contrary to public policy include but are not limited to: (1) Contracts tending to corrupt legislation or the judiciary; (2) Contracts in general restraint of trade, as distinguished from contracts which restrict certain competitive activities, as provided in Article 4 of this chapter; (3) Contracts to evade or oppose the revenue laws of another country; (4) Wagering contracts; or (5) Contracts of maintenance or champerty." ยง 3. Said chapter is further amended by repealing Code Section 138-2.1, relating to contracts in partial restraint of trade.

ยง4. Said chapter is further amended by repealing Article 4, relating to restrictive covenants in contracts, and enacting a new Article 4 to read as follows: "ARTICLE 4 13-8-50. The General Assembly finds that reasonable restrictive covenants contained in employment and commercial contracts serve the legitimate purpose of protecting legitimate business interests and creating an environment that is favorable to attracting commercial enterprises to Georgia and keeping existing businesses within the state. Further, the General Assembly desires to provide statutory guidance so that all parties to such agreements may be certain of the validity and enforceability of such provisions and may know their rights and duties according to such provisions. 13-8-51. As used in this article, the term: (1) 'Affiliate' means: (A) A person or entity that directly, or indirectly through one or more intermediaries, controls or is controlled by

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or is under common control with another person or entity: (B) Any entity of which a person is an officer, director, or partner or holds an equity interest or ownership position that accounts for 25 percent or more of the voting rights or profit interest of such entity: (C) Any trust or other estate in which the person or entity has a beneficial interest of 25 percent or more or as to which such person or entity serves as trustee or in a similar fiduciary capacity: or (D) The spouse, lineal ancestors, lineal descendants, and siblings of the person, as well as each of their spouses. (2) 'Business' means any line of trade or business conducted by the seller or employer, as such terms are defined in this Code section. (3) 'Confidential information' means data and information: (A) Relating to the business of the employer, regardless of whether the data or information constitutes a trade secret as that term is defined in Code Section 10-1-761: (B) Disclosed to the employee or of which the employee became aware of as a consequence of the employee's relationship with the employer; (C) Having value to the employer; (D) Not generally known to competitors of the employer; and (E) Which includes trade secrets, methods of operation, names of customers, price lists, financial information and projections, route books, personnel data, and similar information; provided, however, that such term shall not mean data or information (A) which has been voluntarily disclosed to the public by the employer, except where such public disclosure has been made by the employee without authorization from the employer; (B) which has been independently developed and disclosed by others; or (C) which has otherwise entered the public domain through lawful means. (4) 'Controlling interest' means any equity interest or ownership participation held by a person or entity with respect to a business that accounts for 25 percent or more of the voting rights or profit interest of the business prior to

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the sale, alone or in combination with the interest or participation held by affiliates of such person or entity. (5) 'Employee' means: (A) An executive employee; (B) Research and development personnel or other persons or entities of an employer, including, without limitation, independent contractors, in possession of confidential information that is important to the business of the employer: (C) Any other person or entity, including an independent contractor, in possession of selective or specialized skills, learning, or abilities or customer contacts, customer information, or confidential information who or that has obtained such skills, learning, abilities, contacts, or information by reason of having worked for an employer; or (D) A franchisee, distributor, lessee, licensee, or party to a partnership agreement or a sales agent, broker, or franchise, with connection in representative distributorship, lease, license, or partnership agreements. Such term shall not include any employee who lacks selective or specialized skills, learning, or abilities or customer contacts, customer information, or confidential information. (6) 'Employer' means any corporation, partnership, proprietorship, or other business organization, whether for profit or not for profit, including, without limitation, any successor in interest to such an entity, who or that conducts business or any person or entity who or that directly or indirectly owns an equity interest or ownership participation in such an entity accounting for 25 percent or more of the voting rights or profit interest of such entity. Such term also means the buyer or seller of a business organization. (7) 'Executive employee' means a member of the board of directors, an officer, a key employee, a manager, or a supervisor of an employer. (8) 'Key employee' means an employee who, by reason of the employer's investment of time, training, money, trust, exposure to the public, or exposure to customers, vendors, or other business relationships during the course of the

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employee's employment with the employer, has gained a high level of notoriety, fame, reputation, or public persona as the employer's representative or spokesperson or has gained a high level of influence or credibility with the employer's customers, vendors, or other business relationships or is intimately involved in the planning for or direction of the business of the employer or a defined unit of the business of the employer. Such term also means an employee in possession of selective or specialized skills, learning, or abilities or customer contacts or customer information who has obtained such skills, learning, abilities, contacts, or information by reason of having worked for the employer. (9) 'Legitimate business interest' includes, but is not limited to: (A) Trade secrets, as defined by Code Section 10-1-761; (B) Valuable confidential information that otherwise does not qualify as a trade secret; (C) Substantial relationships with specific prospective or existing customers, patients, vendors, or clients; (D) Customer, patient, or client good will associated (i) An ongoing business, commercial, or professional practice, including, but not limited to, by way of trade name, trademark, service mark, or trade dress; (ii) A specific geographic location; or (iii) A specific marketing or trade area; and (E) Extraordinary or specialized training. (10) 'Material contact' means the contact between an employee and each customer or potential customer; (A) With whom or which the employee dealt on behalf of the employer: (B) Whose dealings with the employer were coordinated or supervised by the employee; (C) About whom the employee obtained confidential information in the ordinary course of business as a result of such employee's association with the employer; or (D) Who receives products or services authorized by the employer, the sale or provision of which results or resulted in compensation, commissions, or earnings for the employee within two years prior to the date of the

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employee's termination. ( 1) 'Modification' means the limitation of a restrictive covenant to render it reasonable in light of the circumstances in which it was made. Such term shall include: (A) Severing or removing that part of a restrictive covenant that would otherwise make the entire restrictive covenant unenforceable; and (B) Enforcing the provisions of a restrictive covenant to the extent that the provisions are reasonable. (12) 'Modify' means to make, to cause, or otherwise to bring about a modification. (13) 'Products or services' means anything of commercial value, including, without limitation, goods; personal, real, or intangible property; services; financial products; business opportunities or assistance; or any other object or aspect of business or the conduct thereof. (14) 'Professional' means an employee who has as a primary duty the performance of work requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction or requiring invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor. Such term shall not include employees performing technician work using knowledge acquired through on-the-job and classroom training, rather than by acquiring the knowledge through prolonged academic study, such as might be performed, without limitation, by a mechanic, a manual laborer, or a ministerial employee. (15) 'Restrictive covenant' means an agreement between two or more parties that exists to protect the first party's or parties' interest in property, confidential information, customer good will, business relationships, employees, or any other economic advantages that the second party has obtained for the benefit of the first party or parties, to which the second party has gained access in the course of his or her relationship with the first party or parties, or which the first party or parties has acquired from the second party as the result of a sale. Such restrictive covenants may exist within or ancillary to contacts between or among employers and employees, distributors and

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manufacturers, lessors and lessees, partnerships and partners, employers and independent contractors, franchisors and franchisees, and sellers and purchasers of a business or commercial enterprise and any two or more employers. A restrictive covenant shall not include covenants appurtenant to real property. (16) 'Sale' means any sale or transfer of the good will or substantially all of the assets of a business or any sale or transfer of a controlling interest in a business, whether by sale, exchange, redemption, merger, or otherwise. (17) 'Seller' means any person or entity, including any successor-in-interest to such an entity, that is: (A) An owner of a controlling interest; (B) An executive employee of the business who receives, at a minimum, consideration in connection with a sale; or (C) An affiliate of a person or entity described in subparagraph (A) of this paragraph; provided, however, that each sale involving a restrictive covenant shall be binding only on the person or entity entering into such covenant, its successors-in-interest, and, if so specified in the covenant, any entity that directly or indirectly through one or more affiliates is controlled by or is under common control of such person or entity. (18) 'Termination' means the termination of an employee's engagement with an employer, whether with or without cause, upon the initiative of either party. (19) 'Trade dress' means the distinctive packaging or design of a product that promotes the product and distinguishes it from other products in the marketplace. 13-8-52. (a) The provisions of this article shall be applicable only to contracts and agreements between or among: (1) Employers and employees; (2) Distributors and manufacturers; (3) Lessors and lessees; (4) Partnerships and partners; (5) Franchisors and franchisees; (6) Sellers and purchasers of a business or commercial enterprise; and

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(7) Two or more employers; (b) The provisions of this article shall not apply to any contract or agreement not described in subsection (a) of this Code section. 13-8-53. (a) Notwithstanding any other provision of this chapter, enforcement of contracts that restrict competition during the term of a restrictive covenant, so long as such restrictions are reasonable in time, geographic area, and scope of prohibited activities, shall be permitted. However, enforcement of contracts that restrict competition after the term of employment, as distinguished from a customer nonsolicitation provision, as described in subsection (b) of this Code section, or a nondisclosure of confidential information provision, as described in subsection (e) of this Code section, shall not be permitted against any employee who does not, in the course of his or her employment; (1) Customarily and regularly solicit for the employer customers or prospective customers: (2) Customarily and regularly engage in making sales or obtaining order or contracts for products or services to be performed by others; (3) Perform the following duties; (A) Have a primary duty of managing the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof: (B) Customarily and regularly direct the work of two or more other employees; and (C) Have the authority to hire or fire other employees or have particular weight given to suggestions and recommendations as to the hiring, firing, advancement, promotion, or any other change of status of other employees: or (4) Perform the duties of a key employee or of a professional. (b) Notwithstanding any other provision of this chapter, an employee may agree in writing for the benefit of an employer to refrain, for a stated period of time following termination, from soliciting, or attempting to solicit, directly or by assisting others. any business from any of such emplover's

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customers, including actively seeking prospective customers, with whom the employee had material contact during his or her employment for purposes of providing products or services that are competitive with those provided by the employer's business. No express reference to geographic area or the types of products or services considered to be competitive shall be required in order for the restraint to be enforceable. Any reference to a prohibition against 'soliciting or attempting to solicit business from customers' or similar language shall be adequate for such purpose and narrowly construed to apply only to: (1) such of the employer's customers, including actively sought prospective customers, with whom the employee had material contact; and (2) products or services that are competitive with those provided by the employer's business. (c)(1) Activities, products or services that are competitive with the activities, products or services of an employer shall include activities, products, or services that are the same as or similar to the activities, products, or services of the employer. Whenever a description of activities, products, or services, or geographic areas, is required by this Code section, any description that provides fair notice of the maximum reasonable scope of the restraint shall satisfy such requirement, even if the description is generalized or could possibly be stated more narrowly to exclude extraneous matters. In case of a postemployment covenant entered into prior to termination, any good faith estimate of the activities, products, or services, or geographic areas, that may be applicable at the time of termination shall also satisfy such requirement, even if such estimate is capable of including or ultimately proves to include extraneous activities, products, or services, or geographic areas. The postemployment covenant shall be construed ultimately to cover only so much of such estimate as relates to the activities actually conducted, the products or services actually offered, or the geographic areas actually involved within a reasonable period of time prior to termination. (2) Activities, products, or services shall be considered sufficiently described if a reference to the activities, products, or services is provided and qualified by the phrase 'of the type conducted, authorized, offered, or

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provided within two years prior to termination' or similar language containing the same or a lesser time period. The phrase 'the territory where the employee is working at the time of termination' or similar language shall be considered sufficient as a description of geographic areas if the person or entity bound by the restraint can reasonably determine the maximum reasonable scope of the restraint at the time of termination. (d) Any restrictive covenant not in compliance with the provisions of this article is unlawful and is void and unenforceable; provided, however, that a court may modify a covenant that is otherwise void and unenforceable so long as the modification does not render the covenant more restrictive with regard to the employee than as originally drafted by the parties. (e) Nothing in this article shall be construed to limit the period of time for which a party may agree to maintain information as confidential or as a trade secret, or to limit the geographic area within which such information must be kept confidential or as a trade secret, for so long as the information or material remains confidential or a trade secret, as applicable. 13-8-54. (a) A court shall construe a restrictive covenant to comport with the reasonable intent and expectations of the parties to the covenant and in favor of providing reasonable protection to all legitimate business interests established by the person seeking enforcement. (b) In any action concerning enforcement of a restrictive covenant, a court shall not enforce a restrictive covenant unless it is in compliance with the provisions of Code Section 13-8-53; provided, however, that if a court finds that a contractually specified restraint does not comply with the provision of Code Section 13-8-53, then the court may modify the restraint provision and grant only the relief reasonably necessary to protect such interest or interests and to achieve the original intent of the contracting parties to the extent possible. 13-8-55.

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The person seeking enforcement of a restrictive covenant shall plead and prove the existence of one or more legitimate business interests justifying the restrictive covenant. If a person seeking enforcement of the restrictive covenant establishes by prima-facie evidence that the restraint is in compliance with the provisions of Code Section 13-8-53, then any person opposing enforcement has the burden of establishing that the contractually specified restraint does not comply with such requirements or that such covenant is unreasonable. 13-8-56. In determining the reasonableness of a restrictive covenant that limits or restricts competition during or after the term of an employment or business relationship, the court shall make the following presumptions: (1) During the term of the relationship, a time period equal to or measured by duration of the parties' business or commercial relationship is reasonable, provided that the reasonableness of a time period after a term of employment shall be as provided for in Code Section 13-8-57; (2) A geographic territory which includes the areas in which the employer does business at any time during the parties' relationship, even if not known at the time of entry into the restrictive covenant, is reasonable provided that; (A) The total distance encompassed by the provisions of the covenant also is reasonable; (B) The agreement contains a list of particular competitors as prohibited employers for a limited period of time after the term of employment or a business or commercial relationship; or (C) Both subparagraphs (A) and (B) of this paragraph; (3) The scope of competition restricted is measured by the business of the employer or other person or entity in whose favor the restrictive covenant is given; provided, however, that a court shall not refuse to enforce the provisions of a restrictive covenant because the person seeking enforcement establishes evidence that a restrictive covenant has been violated but has not proven that the covenant has been violated as to the entire scope of the prohibited activities of the person seeking enforcement or as to the

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entire geographic area of the covenant; and (4) Any restriction that operates during the term of an employment relationship, agency relationship, independent contractor relationship, partnership, franchise, distributorship, license, ownership of a stake in a business entity, or other ongoing business relationship shall not be considered unreasonable because it lacks any specific limitation upon scope of activity, duration, or geographic area so long as it promotes or protects the purpose or subject matter of the agreement or relationship or deters any potential conflict of interest. 13-8-57. (a) In determining the reasonableness in time of a restrictive covenant sought to be enforced after a term of employment, a court shall apply the rebuttable presumptions provided in this Code section. (b) In the case of a restrictive covenant sought to be enforced against a former employee and not associated with the sale or ownership of all or a material part of: (1) The assets of a business, professional practice, or other commercial enterprise; (2) The shares of a corporation: (3) A partnership interest; (4) A limited liability company membership; or (5) An equity interest or profit participation, of any other type, in a business, professional practice, or other commercial enterprise, a court shall presume to be reasonable in time any restraint two years or less in duration and shall presume to be unreasonable in time any restraint more than two years in duration, measured from the date of the termination of the business relationship. (c) In the case of a restrictive covenant sought to be enforced against a current or former distributor, dealer, franchisee, lessee of real or personal property, or licensee of a trademark, trade dress, or service mark and not associated with the sale of all or a part of: (1) The assets of a business, professional practice, or other commercial enterprise; (2) The shares of a corporation;

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(3) A partnership interest; (4) A limited liability company membership; or (5) An equity interest or profit participation, of any other type, in a business, professional practice, or other commercial enterprise, a court shall presume to be reasonable in time any restraint three years or less in duration and shall presume to be unreasonable in time any restraint more than three years in duration, measured from the date of termination of the business relationship. (d) In the case of a restrictive covenant sought to be enforced against the owner or seller of all or a material part of: (1) The assets of a business, professional practice, or other commercial enterprise; (2) The shares of a corporation; (3) A partnership interest; (4) A limited liability company membership: or (5) An equity interest or profit participation, of any other type, in a business, professional practice, or other commercial enterprise, a court shall presume to be reasonable in time any restraint the longer of five years or less in duration or equal to the period of time during which payments are being made to the owner or seller as a result of any sale referred to in this subsection and shall presume to be unreasonable in time any restraint more than the longer of five years in duration or the period of time during which payments are being made to the owner or seller as a result of any sale referred to in this subsection, measured from the date of termination or disposition of such interest. 13-8-58. (a) A court shall not refuse to enforce a restrictive covenant on the ground that the person seeking enforcement is a thirdparty beneficiary of such contract or is an assignee or successor to a party to such contract. (b) In determining the enforceability of a restrictive covenant, it is not a defense that the person seeking enforcement no longer continues in business in the scope of the prohibited activities that is the subject of the action to enforce the restrictive covenant if such discontinuance of business is the

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result of a violation of the restriction. (c) A court shall enforce a restrictive covenant by any appropriate and effective remedy available at law or equity, including, but not limited to, temporary and permanent injunctions. (d) In determining the reasonableness of a restrictive covenant between an employer and an employee, as such term is defined in subparagraphs (A) through (C) of paragraph (5) of Code Section 13-8-51, a court may consider the economic hardship imposed upon an employee by enforcement of the covenant; provided, however, that this subsection shall not apply to contracts or agreements between or among those persons or entities listed in paragraphs (2) through (7) of subsection (a) of Code Section 13-8-52. 13-8-59. Nothing in this article shall be construed to allow or to make enforceable any restraint of trade or commerce that is otherwise illegal or unenforceable under the laws of the United States or under the Constitution of this state or of the United States." ยง5. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval and shall apply to contracts entered into on & after such date and shall not apply in actions determining the enforceability of restrictive covenants entered into before such date.

ยง6. All laws and parts of laws in conflict with this Act are repealed. SPONSOR'S RATIONALE

House Bill 30, now Act 99, was introduced by Representative Wendell Willard, of the 49th district, and co-sponsored by Senator Bill Cowsert, of the 46th district, as a means to re-enact legislation that was passed in the 2009 Regular Session, and

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voted on by the people in the 2010 election.8 According to Representative Willard, a question arose regarding the effective date of the previously passed House Bill 173 from the 2009 Regular Session.9 Representative Willard was the Chair to the Judicial Committee that reviewed House Bill 173, and although he had reservations at first, Representative Willard concluded there was a need for legislation in the area of contracts and restrictive covenants. 10 He said that this legislation "brings to the law certainty where there has been in the past very much uncertainty."" Restrictive covenants in contracts are used as a means to protect one's interest in relationships, proprietary information, property, "customer goodwill," and "other economic advantages . . . generated ....

For example, an

employer may include a restrictive covenant, such as a noncompete clause, in an employment contract which effectively prohibits an employee from engaging in certain activities. Restrictive covenants are also included in partnership franchise and contracts, landlord-tenant agreements, others.14 among agreements, Prior to the proposal of House Bill 173, there was no clear law regarding restrictive covenants other than caselaw, 15 which 8. Interview with Rep. Wendell Willard, H. Dist. 49, in Fulton County, Ga. (Sept. 1, 2011) [hereinafter Willard Interview]. 9. Id. 10. Id. 11. Id. 12. Shogun J. Khadye, Comment, An UncertainFuture: Georgia's Policy on Restrictive Covenants in Employment Contracts, 2 JOHN MARSHALL L.J.

208, 211 (2009) (footnote omitted). 13. Thomas E. Jordan, Comment, The Application of Contract Law to Georgia Noncompete Agreements: Have We Been Overlooking Something Obvious?, 41 MERCER L. REv. 723, 723-24 (1990).

14. O.C.G.A. ยง 13-8-52 (West 2011) (defining the scope of "Restrictive Covenants in Contracts"). 15. See, e.g., Uni-Worth Enter., Inc. v. Wilson, 261 S.E.2d 572, 575 (Ga. 1979) (declaring indefinite covenant in employment contract unenforceable where restrictions imposed are unreasonable and inconsistent); Johnstone v. Tom's Amusement Co., Inc., 491 S.E.2d 394, 396 (Ga. Ct. App. 1997) ("[R]estrictive 'covenants in the sale of a business, unlike covenants in contracts of employment, can be blue penciled to make them valid."') (quoting Lyle v. Memar, 378 S.E.2d 465, 466 (Ga. 1989)); Khadye, supra note 12, at 209 ("The case law [sic] is filled with subtle distinctions due to

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frequently changes.1 6 The only statutory law existing prior to 1991 was Section 13-8-2.1 of the Official Code of Georgia, which the Georgia Supreme Court found to be unconstitutional. 1 7 Over the years, Georgia appellate courts have tried to craft rules and guidelines to assist in determining the validity of restrictive covenants,' 8 especially those contained within employment, doctor-group, and franchise contracts.19 This has proven difficult because of Georgia's right-to-work theory,2 0 the constant changes in common law, and the difficulty in determining what would be "acceptable." 21 Representative Willard said that the courts "saw limitations" despite recognizing businesses' rights to enter into these types The "back and forth movement by the court in of contracts. its decisions" has created much uncertainty.23 Representative Willard, a corporate law practitioner, stated that the courts created so much uncertainty that attorneys could not properly the infinite number of permutations in factual and legal circumstances that may arise in employment."). 16. Willard Interview, supra note 8. 17. Jackson & Coker, Inc. v. Hart, 405 S.E.2d 253, 254 (Ga. 1991) (finding the statute unconstitutional because "the Act [was] beyond the power of the General Assembly inasmuch as it is one that authorizes contracts and agreements which may have the effect of or which are intended to have the effect of defeating or lessening competition or encouraging monopoly."). 18. See, e.g., Kole v. Linkenhoker, 395 S.E.2d 378, 378 (Ga. Ct. App. 1990) ("The validity of such restrictive covenants is subject to the overriding requirements that, as to territoriality and/or duration, they be reasonably necessary to protect the interests of the covenantee's protection, and that they not unduly prejudice the interests of the public.") (quoting Webster v. Star Distrib. Co., 244 S.E.2d 826, 828 (Ga. 1978)). 19. Willard Interview, supra note 8. 20. O.C.G.A. Â§Â§ 34-6-21 to -24 (West 2011); Looper v. Ga., S. & Fla. Ry. Co., 99 S.E.2d 101, 104 (Ga. 1957) ("[A] single person armed with right-the right work, should in all courts of justice be able to defeat the selfish demands of multitudes though they be members of a labor union who seek to deprive him of that right."). 21. Id. Representative Willard used the term "acceptable" during the interview, but he also stated the "legality" could be questioned as well. Id. 22. GeneralAssembly Video Archive: House Session (Georgia

Public

Broadcasting internet broadcast Feb. 22, 2011), available at http://www.gpb.org/lawmakers/20 11/day- 17 [hereinafter Willard Hearing]. 23. Id.

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advise their clients about "entering into . . . contracts of this

nature." 24 Perhaps as a sign of this uncertainty, General Assembly members began receiving phone calls from the Georgia Chamber of Commerce, indicating that businesses were concerned about locating or moving offices to Georgia. 2 5 Businesses were worried about bringing employees into the state with proprietary information, then having those employees leave the company and taking that information with them in a competitive manner, which would be harmful to the losing 26 Representative Willard indicated business and its clientele. that members also received concerns from numerous corporate attorneys regarding the confusion involved in drafting employment contracts. 27 Even clinics expressed worry that doctors they employed would leave the clinic and take patients. 28 All of the concerns arose from Georgia caselaw, which established that courts would not uphold a contract that contained an invalid restrictive covenant, a covenant that was unreasonable. 29 Covenants that were not specific as to geographic area, prohibited activity, and duration were 24. Id. 25. Willard Interview, supra note 8. 26. Id. 27. Id. 28. Id. Representative Willard indicated that concerns were received through the Chamber of Commerce and other individual representatives, but he did not indicate if the concerns were expressed through phone calls, letters, emails, or one-on-one conversations. Id. But these concerns were the reasons for presenting House Bill 173 in the 2009-2010 Session. Id. 29. E.g., Rakestraw v. Lanier, 30 S.E. 735, 738 (Ga. 1898) ("It is . . . satisfactorily established that, as a matter of law, such a contract is to be upheld if the restraint imposed is not unreasonable[.") (citation omitted); W.R. Grace & Co. v. Mouyal, 422 S.E.2d 529, 532 (Ga. 1992) (finding a restrictive covenant unreasonable in an employment contract that limited a "former employee from post-employment solicitation in a geographic area where the employer had no business interest[]" within the territory) (citations omitted). See also Dougherty, McKinnon & Luby, P.C. v. Greenwald, Denzik & Davis, P.C., 447 S.E.2d 94, 96 (Ga. Ct. App. 1994) (holding that a restriction prohibiting "former employee accountants from performing services for any and all former clients . . . provide[d] [corporation] with

greater protection than needed[,]" thus was "overbroad" and unreasonable) (citations omitted).

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consistently found unreasonable. 30 When a restrictive covenant was found unreasonable, Georgia courts would render the whole covenant unenforceable, rather than severing the provision.31 According to Representative Willard, this "all-or-nothing" approach was consistently used. 32 Unlike Georgia, a majority of courts in other states follow the blue-pencil doctrine. 33 The blue-pencil doctrine allows courts to modify or sever unreasonable portions of the covenant rather than striking the whole covenant as invalid, but the courts rarely, if ever, use blue-penciling to clarify vagueness. 34 House Bill 30 is a re-enactment of House Bill 173 from the 2009 regular session.3 5 House Bill 173 provided a means for the courts to effectively adopt the blue-pencil doctrine of 30. Klein v. Williams, 441 S.E.2d 270, 272 (Ga. Ct. App. 1994) (holding that "reasonableness . . . must be analyzed in terms of time, territory, and description of the prohibited activity[.] ). In Klein, the time restriction was not unreasonable because the contract was for "the sale of a business rather than employment contract[.]" Id. As a result of this factual difference, "[a] different standard is applied in determining the validity of covenants . . . which are a part of a contract to sell a business." (quoting Watson v. Waffle House, 324 S.E. 2d 175, 177 (Ga. 1985)); see also Gynecologic Oncology, P.C. v. Weiser, 443 S.E.2d 526, 528 (Ga. Ct. App.. 1994) (declaring time limitation in an employment contract unreasonable because a "tolling provision potentially extends the duration of the covenant without limit and renders it unreasonable and unenforceable on its face.") (quoting ALW Marketing Corp. v. McKinney, 421 S.E.2d 565, 568 (1992)). 31. Khadye, supra note 12, at 214 ("The 'no-modification' rule, also known as the 'all-or-nothing' rule, precludes the use of the blue-pencil doctrine entirely.") (citation omitted); Willard Interview, supra note 8. 32. Willard Interview, supra note 8. 33. Khadye, supra note 12, at 237; Willard Interview, supra note 8. 34. E.g., Hamrick v. Kelly, 392 S.E.2d 518, 519 (Ga. 1990) ("The 'blue pencil' marks, but it does not write. It may limit an area, thus making it reasonable, but it may not rewrite a contract void for vagueness, making it definite by designating a new, clearly demarcated area."); see also Khadye, supra note 12, at 214 (discussing how courts following a "strict blue-pencil approach" can "strike unreasonable contractual provisions," but a "liberal blue-pencil or 'partial enforcement' approach provides flexibility for a court to . . . modify or reform the agreement to the extent that it is reasonable[.]") (footnotes omitted); Willard Interview, supra note 8. According to Representative Willard, House Bill 30 attempts to provide guidance for determining "reasonableness" while still protecting employees and employers. Id. 35. Willard Interview, supra note 8.

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Representative Kevin severability in certain circumstances. Levitas was the sponsor of House Bill 173.37 According to Representative Willard, Representative Levitas' goal in proposing the Bill was to provide guidance to the courts clarifying the definitions and standards as to reasonableness. Although House Bill 173 was initially broad, the representatives drafted a bill that they thought would accomplish this intended goal. 39 But in order to avoid problems with future cases, the Georgia Constitution would need to change to accomplish what the drafters intended.4 0 In House Bill 173, the drafters included a requirement that the Bill would become effective upon ratification of a constitutional amendment to be placed on the ballot in the 2010 general election if House Resolution 178 passed. 4 1 The Resolution, providing for a constitutional amendment for the Bill's contents, was voted on and passed by Georgia voters in the 2010 general election.4 2 The listed requirement of the effective date created a potential problem for the legislature. House Bill 173 indicated that it would become effective upon ratification; however, the constitutional amendment was silent as to when it would become effective. 4 3 According to the Georgia Constitution, when there is silence in a constitutional amendment as to an effective date, the amendment "shall become effective on the first day of January following its ratification." 44 Thus, House Bill 173 would be effective upon approval from the voters in the 36. H.B. 173, 150th Gen. Assemb., Ist Reg. Sess. (Ga. 2009) (as passed), availableat http://www.legis.ga.gov/Legislation/20092010/96472.pdf. 37. 2009-2010 Regular Sessions-HB 173, Illegal or void contracts;partial restraint of trade; repeal, GA. GEN. ASSEMB., http://www.legis.ga.gov/legislation/en-US/display/26315 (last visted Nov. 29, 2011) [hereinafter H.B. 173 Status Sheet]. 38. Willard Interview, supranote 8. 39. Id. 40. Id. 41. E-mail from Rep. Brian Thomas, H. Dist. 100, to Ginger Fowler, Staff Member, John Marshall Law Journal (Oct. 17, 201, 8:10 AM) [hereinafter Thomas E-mail 2] (on file with the John Marshall Law Journal). 42. H.R. 178, 150th Gen Assemb., 1st Reg. Sess. (Ga. 2009) (as passed), available at http://www.legis.ga.gov/Legislation/20092010/107442.pdf. See also Thomas E-mail 2, supra note 41; Willard Interview, supra note 8. 43. Willard Interview, supra note 8. 44. GA. CONST. art. X, ยง 1, para. 4.

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referendum, November 3rd, but the constitutional amendment would not be effective until January 1st. 4 5 Unless there is "supporting constitutional language in place to allow the statute," an act becomes void and cannot be revived, even with an amendment.4 6 Therefore, the representatives believed the only "reasonable and logical way" to resolve the problem was to "have the Act come through the legislature again for enactment by the General Assembly and be signed by the Governor." 47 Representative Willard put forth the proposal of House Bill 30 in December 2010 in preparation for the 2011 Regular Session.48 The provisions in House Bill 30 stated it would become effective upon the governor's signage, therefore overcoming the previous problem. 4 9 Representative Willard found a little more opposition to the Bill this time through the House than with House Bill 173 in 2009.50 This is evident in that there were only 22 nays in the 2009 vote compared to 58 nays in the 2011 vote.5 1 Representative Willard indicated that there were more discussions on the floor and within the committee hearings, so the passage took longer than he expected.5 2 Representative Willard also stated that the opposition increased because more representatives and senators were now concerned about what effect blue-penciling would have on small businesses. 5 3 He indicated that some argued that the Bill seemed to favor employers' rights over employees' rights, and the opponents were concerned that employees would lose opportunities to work after their employment termination because of a noncompete or non-solicit clause. 54 Representative Willard said that the supporters eventually assured most opponents that this Bill was not intended to impact those self-employed or small 45. Willard Hearing, supra note 16. 46. Id. 47. Id. 48. Willard Interview, supra note 8. 49. Id. 50.Id. 51. Compare H.B. 173 Status Sheet, supra note 37, with H.B. 30 Status Sheet, supra note 7.

52. Willard Interview, supra note 8. 53.Id. 54.Id.

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business owners, people with a "bread route or Orkin route or person that had a Snap-on tool route."5 5 If a person left an employer for whatever reason, the individual would still be able to work in the "same line of employment;" but would not be restricted from performing the previous trade. 5 6 As passed, Act 99 protects large companies from losing proprietary information, trade secrets, or clients.5 7 The Act also shields large companies from harm while still protecting the employees' right to work. OPPOSITION'S RATIONALE

Based on concerns received from the Chamber of Commerce, businesses, and attorneys, the Georgia House established a Study Committee in 2008 to "examine the proper functioning of restrictive covenants . . . and to fulfill the legislature's role in

defining public policy in this area." 5 9 A member of that committee, Representative Brian Thomas, of the 100th district, stated that many concerns regarding restrictive covenants arose during the hearings and that neither House Bill 173 nor House Bill 30 addressed those concerns.60 As such, Representative Brian Thomas spoke out against House Bill 30.61 He was also an opponent of the original House Bill 173 and its constitutional amendment on the 2010 election ballot. 6 2 Representative Thomas says he is passionate about both a person's right to work and the problems with House Bill 30.63 He believes "that this change in the law unduly benefits

55. Willard Hearing, supra note 22. 56. Id. 57. Id.

58. Willard Interview, supranote 8. 59. Khadye, supra note 12, at 228 (citing H.R. 1879, 149th Gen. Assemb., at available (Ga. 2008), Sess. Reg. http://www.legis.ga.gov/Legislation/20072008/85348.pdf)). 60. E-mail from Rep. Brian Thomas, H. Dist. 100, to Ginger Fowler, Staff Member, John Marshall Law Journal (Sept. 20, 201, 3:23 PM) [hereinafter Thomas E-mail] (on file with the John Marshall Law Journal). 6 1.Id. 62. Id. 63. Id.

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employers at the expense of employees."64 For example, when reviewing the statutory definition of "Employee" Representative Thomas stated that this definition was more encompassing than proponents argue.65

When combined with the definition of

"Confidential Information"66 and the fact that the terminated employee is restricted by a broad non-compete clause which could prevent the employee from competing in, for example, "ANY territory that the EMPLOYER does business AT ANY TIME during the employee's relationshi'P with the employer," The employee may the employee is at a great disadvantage. now be limited in earning potential for up to two years. Representative Thomas analogized this to his job as an If his archeologist employed by a national company. employment contract contained a non-compete clause and his current employment was terminated, under this statute he would not be able to work as an archeologist anywhere in the country because his employer is a national company. 70 His analogy is just an example of his and other opponents' concerns that there are no "specific limitations" to the geographic areas, the twoyear limitation is unreasonable, and the "employee" definition is too broad.n Representative Thomas is also concerned about the lack of negotiation power regarding restrictive covenants in contracts. 64. Id. 65. Id. In his e-mail, Representative Thomas included relevant portions of the Official Code of Georgia Annotated defining "employee" as "persons ... in possession of confidential information that is important to the business of the employer." Id. (citing O.C.G.A. ยง 13-8-51(5)(B) (West 2011)). 66. O.C.G.A. ยง 13-8-51(3). 67. Thomas E-mail, supra note 60; see O.C.G.A. ยง 13-8-56(2) (West 2011) (defining the geographic territory). 68. Thomas E-mail, supra note 60; see O.C.G.A. ยง 13-8-57(b)(5) (West 2011) ("[A] court shall presume to be reasonable in time any restraint two years or less in duration and shall presume to be unreasonable in time any restraint more than two years in duration, measured from the date of the termination of the business relationship."). 69. General Assembly Video Archive: House Session (Georgia Public 2011) 22, Feb. broadcast internet Broadcasting http://www.gpb.org/lawmakers/20 11/day-i 7. 70. Id. 71. Id. Representative Thomas proposed an amendment to change the two year limitation to one year, but the amendment was not passed. Id

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Georgia is an "at-will" or "right-to-work" state, which means that absent discrimination, an employer can terminate an employee without cause, and the employee does not have any recourse.72 With the passage of House Bill 30, Representative Thomas believes that companies now "have free reign to require any employee to sign a non-compete contract" which will contain broad restrictions. 73 Since Georgia is an "at-will" state,7 4 the employee is essentially forced to sign the employment contract without the ability to negotiate or face the 75 Without equal bargaining power, possibility of termination. these employment contracts become "an adhesion contract for most employees-take these terms or leave it."76 In addition to an employee's lack of negotiation power, the statue's authorization of "blue-penciling" contracts amplifies the problem for employees. 77 Representative Thomas believes that the blue-pencil provision is inappropriate because it essentially gives courts the ability to re-write contracts.78 The courts have never had a law allowing them to change a void and unenforceable contract to one that is enforceable. But House Bill 30 allows the courts to change a once void contract.8 0 The Bill will also allow a business to construct a restrictive covenant ''as restrictive as they would like and the courts [will] ameliorate their over-restrictiveness."w Representative Thomas does not believe that giving the courts this ability makes for good policy.82 Because the courts now have this ability, employees could be bound by unreasonable restrictions. 72. Thomas E-mail, supra note 60. 73.Id. 74. O.C.G.A. ยง 34-7-1 (West 2011); see also W. Melvin Haas III et al., Labor and Employment Law, 62 MERCER L. REv. 181, 185-87 (2010) (discussing H.B. 173 in relation to O.C.G.A. ยง 34-7-1 and Georgia's "employment at will" status). 75. Thomas E-mail, supra note 60. 76. Id. 77. Id. 78. Id. 79. Id. 80. Id. 81. Id. 82. Id. 83. Khadye, supra note 12, at 241 ("If courts are allowed to modify restrictive covenants, . . . the employer is encouraged to create more overly

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IMPLICATIONS IN GEORGIA

It appears that House Bill 30 will have ramifications for both proponents and detractors. In the legal field, the Bill has certainly increased business for corporate attorneys.84 Companies are hiring attorneys to draft employment contracts with covenants that will meet the definitions specified within the Official Code of Georgia Annotated. For example, some companies have had to hire attorneys to redraft employment contracts already in force in order to comply with the new laws. 86 Courts may also rule as invalid any contracts drafted prior to the enactment of House Bill 30 (since O.C.G.A. 13-82.1 was repealed), including those contracts thought to be valid under House Bill 173. Additionally, House Bill 30 could also affect Georgia's economy on the whole. If companies believe that their information, property, goodwill, and clientele are all protected they are more likely to establish offices within the state.8 Establishing more business offices will thus increase the job market and infuse more money into the State's economy.89 But the restrictions could prevent the growth of small broad restrictions with the knowledge that the majority of them will not be challenged.

. . . Thus, the implementation of the blue-pencil doctrine in

Georgia will lead to an influx of overly broad restrictive covenants that will have the effect of restricting employee mobility."). 84. Willard Interview, supra note 8. Representative Willard stated that the corporate attorneys were happy the Bill passed in that it had increased their business because businesses were hiring attorneys to draft employment contracts or redraft employment contracts already in force in order to comply with the new laws. Id. Any contracts drafted prior to the passage of House Bill 30 are invalid, including those contracts thought to be valid under former House Bill 173. Id. 85. Id. 86. Id. Representative Willard did not give any specifics as to what may have to be redrafted other than stating that contracts drafted based on the validity of House Bill 173 were now having to be redrafted since the reenactment. Id. 87. Id.

88. See Khadye, supra note 12, at 236; Thomas E-mail, supra note 60; Willard Interview, supra note 8. 89. Willard Interview, supranote 8.

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businesses-the non-compete and non-solicitation clauses could make it difficult for a person to obtain new clients if he attempts to establish a business within the same area. 90 Although House Bill 30 may impact a person's entrepreneurial possibilities, the Bill should not impact that person's employment with an established company because of Georgia's right-to-work theory. 9 1 Also, some representatives believe the courts will not allow covenants to be so restrictive as to keep an employee

from working. 92 Finally, and most importantly, the passage of House Bill 30 should now give the courts both more clarity and broader scope when interpreting the effectiveness of restrictive covenants. The courts' authority is now broadened because the "all-ornothing" approach has been abandoned. 93 Courts will no longer have to void entire covenants due to the invalidity or Guidelines are unreasonableness of a single provision.9 4 contained within the Bill, but if the courts believe this to be too much under the reasonableness standard, they have the flexibility to modify a requirement to something less. 9 5 House Bill 30 provides additional flexibility to protect a party, such as an employer, distributor, or franchisor, by modifying language in the agreement. For example, if an employment contract contains a time restriction stating a terminated employee cannot compete with the employer for five years, previously courts could have voided the entire covenant. Under House Bill 30, the court has the authority to modif the covenant to what is While still using a statutorily defined as reasonable. 90. Id. 9 1. Id.

92. Id. 93. Id. 94. See, e.g., Rakestraw, 30 S.E. at 741 (holding that "[w]e are to construe [the contract] as it is written, ... we hold it to be void and of no biding force and effect."). 95. Willard Interview, supra note 8. Representative Willard gave an example that if the court thought two years was too long, the court could chose to use a lesser term when modifying the covenant within the contract. Id. 96. O.C.G.A. ยง 13-8-57(b)(5) (defining a reasonable time restraint against a former employee to be enforceable for two years or less). But if the contract specified a longer time, the court would have the option of modifying it to two years or less. Khadye, supra note 12, at 209-10. This

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"reasonableness" standard, the courts now have definitions, modification provisions, and "pleading requirements standards of reasonableness, presumptions, and remedies. . . ."9 Despite the perceived positive force of House Bill 30, the passage of the Bill could also have negative effects. One effect the new Bill has is that it shifts "the burden of establishing that the covenants are unreasonablel]" to the "parties challenging such restrictive covenants. . . ."9 The reason for this is that the

employer will only need to overcome the "initial burden of showing that restrictive covenants are in compliance with the statute [.]"99 LEGISLATIVE GENEALOGY

House Bill 30 was first introduced and read on January 24, 2011, and was then assigned to the House Judiciary Civil Committee. 0 0 The Bill was read for a second time on January 25, 2011.101 The Judiciary Civil Committee reported favorably to the House on February 15, 2011.102 But the Committee offered a substitute to the Bill with minimal changes.' 0 3 The Committee sought to include a reasonableness time determination for periods after employment, not just during employment.104 The Bill was then read for a third time on February 22, 2011, and the House passed by a vote of 104-58.los House Bill 30 then moved to the Georgia Senate, where it was read for the first time, and referred to Senate Judiciary allows for flexibility and broader scope while protecting the company's interest and the employee's right-to-work. Id. at 208. 97. Khadye, supra note 12, at 230. 98. Dan Hart, What Georgia's Restrictive Covenant Act Means - and Doesn't Mean -for Employers, TRADINGSECRETSLAW.COM (May 16, 2011,

9:37 AM) http://www.tradesecretslaw.com/2011/05/articles/noncompeteenforceability/what-georgias-restrictive-covenant-act-means-and-doesntmean-for-employers/print.html (last visited Dec. 15, 2011). 99. Id. 100. H.B. 30 Status Sheet, supra note 7. 101. Id. 102. Id. 103. H.B. 30, 15 1st Gen. Assemb., 1st Reg. Sess. (Ga. 2011) (H. Comm. at available Substitute), http://www.legis.ga.gov/Legislation/20112012/110035.pdf. 104. Id. 105. H.B. 30 Status Sheet, supra note 7.

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The Senate Judiciary Committee on February 23, 2011.10 Committee reported favorably on March 28, 2011, while making minor changes by adding "commercial" to line 290 and by removing "business or commercial" from line 293.107 The Senate Judiciary Committee also wanted to further clarify the term so as to apply to commercial or business relationships by modifying line 294.108 Then, the Bill was read for a second time before the Senate on March 29, 2011.109 Senator William T. Ligon, Jr., of the 3rd district made a proposal from the senate floor to add to line 10 of the Bill to also amend Title 50.110 Then, Senator Hardie Davis, of the 22nd district, offered two word changes to Senator Ligon's proposal.' 1 The Bill was read before the Senate for a third time on April 12, 2011.112 The Senate then passed the Bill by a vote of 42-6.113 House Bill 30 then returned to the House of Representative for final approval. 114 The House disagreed with the amendment and substitution that the Senate proposed, and the Bill was returned to the Senate on April 14, 2011.115 The minute modifications made by the Senate had no substantial effect on 106. Id.

107. H.B. 30, 151st Gen. Assemb., 1st Reg. Sess. (Ga. 2011) (S. Comm. at available Substitute), http://www.legis.ga.gov/Legislation/20112012/114248.pdf. 108. Id. 109. H.B. 30 Status Sheet, supra note 7. 110. H.B. 30, 151st Gen. Assemb., 1st Reg. Sess. (Ga. 2011) (Sen. Ligon at available Amendment), The http://www.1egis.ga.gov/Legislation/20112012/115606.pdf. amendment, in part, provided: "to amend Title 50 of the Official Code of Georgia Annotated, relating to state government, so as to provide that no contract between the Governor and any Indian tribe shall be signed without the consent of the General Assembly." Id. 111. H.B. 30, 15 1st Gen. Assemb., 1st Reg. Sess. (Ga. 2011) (Sen. Davis at available Amendment), http://www.legis.ga.gov/Legislation/20112012/115616.pdf. The amendment provided: "by deleting the word 'house' on line 18 and inserting the word 'chamber.' [and] line 17 insert 'pertaining to gambling' between the words tribe and shall." Id. 112. H.B. 30 Status Sheet, supra note 7. 113. Id. 114. Id.

115. Id.

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the meaning of the code other than moving words from O.C.G.A. 13-8-56(1) to the heading paragraph of O.C.G.A. ยง 13-8-56. The Senate receded from including amending Title 50 and the word changes it had proposed.' The General Assembly approved House Bill 30 and sent it to the Governor Nathan Deal on April 21, 2011.118 Governor Deal signed the Bill on May 11, 2011 and the Bill, labeled Act 99, became effective on that date.114 Prepared by: Ginger Fowler

116. See supra notes 110-14 & discussion. 117. H.B. 30 Status Sheet, supra note 3. 118. Id. 119. Id.

HOUSE BILL 511: COMMERCE AND TRADE; DEPOSIT ON BEVERAGE CONTAINERS; RECYCLING.

CreatingO.C.G.A. Â§Â§ 10-16-1 to -9 First Signature: Representative Shelia Jones (44th) Co-Sponsors: Representative E. Culver "Rusty" Kidd (141st) Summary: House Bill 51 seeks to amend Title 10 of the Official Code of Georgia Annotated, as it relates to commerce and trade, to provide for a five cent deposit on metal, glass, and plastic beverage containers.2 The goal of House Bill 51 is to encourage the collection and recycling of beverage containers, and to provide for redemption centers for the public to return the containers and mandatory acceptance of the containers by House Bill 51 also establishes labeling the dealers. 3 requirements for the beverage containers, provides for the payments of deposits and refunds, and a procedure for the deposit and disposition of the refunds.4 House Bill 51 provides for a revenue commissioner to issue rules and regulations for the deposit program and to provide for public education about the Bill. Status: House Second Readers on January 25, 2011 and assigned to the House Natural Resources and Environment Committee 6 1. H.B. 51, 151st Gen. Assemb. 1st Reg. Sess. (Ga. 2011), available at http://www.legis.ga.gov/Legislation/20112012/108222.pdf [hereinafter Ga. H.B. 51]. 2. Id. 3. Id.

4. Id. 5. id.

6. 2011-2012 Regular Session-HB 51, Commerce and trade; deposit on beverage containers; recycling; provide, GA. GEN ASSEMB., available at http://www.legis.ga.gov/Legislation/en-US/display.aspx?Legislation=32055 (last visited Dec. 15, 2011) [hereinafter H.B. 51 Status Sheet].

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TEXT OF HOUSE BILL 51

ยง1. Title 10 of the Official Code of Georgia Annotated, relating to commerce and trade, is amended by adding a new chapter, to read as follows: "CHAPTER 16 10-16-1. The General Assembly finds that litter composed of discarded beverage containers is a growing problem of state concern and a direct threat to the health and safety of the citizens of this state. Discarded beverage containers create a hazard to vehicular traffic, a source of physical injury to pedestrians and farm animals, a hazard to farm and other machinery, and an unsightly accumulation of litter which must be disposed of at increasing public expense. Beverage containers also create an unnecessary addition to the state's and municipalities' already overburdened solid waste and refuse disposal systems. Unsegregated disposal of such containers creates an impediment to the efficient operation of resource recovery plants. Further, the General Assembly finds that the uninhibited discarding of beverage containers constitutes a waste of both mineral and energy resources. The General Assembly hereby finds that requiring a deposit on all beverage containers, along with certain other facilitating measures, will provide a necessary incentive for the economically efficient and environmentally benign collection and recycling of such containers. 10-16-2. As used in this chapter, the term: (1) 'Beverage' means carbonated soft drinks, water, beer, other malt beverages, and wine. (2) 'Beverage container' means the individual, separate, sealed glass, metal, aluminum, steel, or plastic bottle, can, or jar used for containing less than one gallon or 3.78 liters at the time of sale or offer for

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sale of a beverage intended for use or consumption in this state. Beverage containers sold or offered for sale or distributed aboard aircraft or ships shall be considered as intended for use or consumption outside this state. (3) 'Bottler' means a person, firm, or corporation who: (A) Bottles, cans, or otherwise packages beverages in beverage containers except that if such packaging is for a distributor having the right to bottle, can, or otherwise package the same brand of beverage, then such distributor shall be the bottler; or (B) Imports filled beverage containers into the United States. (4) 'Commissioner' means the revenue commissioner. (5) 'Dealer' means every person, firm, or corporation who engages in the sale of beverages in beverage containers to a consumer for off-premises consumption in this state. (6) 'Department' means the Department of Revenue. (7) 'Deposit initiator' for each beverage container for which a refund value is established under Code Section 1016-3 means: (A) The bottler of the beverage in such container; (B) The distributor of such container if such distributor's purchase of such container was not, directly or indirectly, from a registered deposit initiator; (C) A dealer of such container, who sells or offers for sale such container in this state, whose purchase of such container was not, directly or indirectly, from a registered deposit initiator; or (D) An agent acting on behalf of a registered deposit initiator. (8) 'Distributor' means any person, firm, or corporation which engages in the sale or offer for sale of beverages in beverage containers to a dealer. (9) 'Malt beverages' means any beverage obtained by the alcoholic fermentation or infusion or decoction of barley, malt, hops, or other wholesome grain or cereal and water, including, but not limited to, ale, stout, or malt liquor. (10) 'Place of business' means the location at which a dealer sells or offers for sale beverages in beverage containers to consumers. (11) 'Redeemer' means every verson who demands the

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refund value provided for in this chapter in exchange for the empty beverage container, but shall not include a dealer. (12) 'Redemption center' means any person offering to pay the refund value of an empty beverage container to a redeemer, or any person who contracts with one or more dealers or distributors to collect, sort, and obtain the refund value and handling fee of empty beverage containers for, or on behalf of, such dealer or distributor under the provisions of Code Section 10-16-8. (13) 'Reverse vending machine' means an automated device that uses a laser scanner, microprocessor, or other technology to accurately recognize the universal product code on containers to determine if the container is redeemable and accumulates information regarding containers redeemed, including the number of such containers redeemed, thereby enabling the reverse vending machine to accept containers from redeemers and to issue a scrip or receipt for their refund value. (14) 'Ship' or 'ships' means any ocean-going vessel used to carry passengers or freight in interstate or foreign commerce. (15) 'Universal product code' or 'UPC code' means a standard for encoding a set of lines and spaces that can be scanned and interpreted into numbers to identify a product. Universal Product Code may also mean any accepted industry barcode which replaces the UPC code, including EAN and other codes that may be used to identify a product. (16) 'Use or consumption' means the exercise of any right or power incident to the ownership of a beverage, other than the sale or the keeping or retention of a beverage for the purpose of sale. (17) 'Water' means any beverage identified through the use of letters, words, or symbols on its product label as a type of water, including any flavored water or nutritionally enhanced water; provided, however, that 'water' does not include any beverage identified as a type of water to which a sugar has been added. 10-16-3.

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No person shall sell or offer for sale a beverage container in this state unless the deposit on such beverage container is or has been collected by a registered deposit initiator and unless such container has a refund value of not less than five cents which is clearly indicated thereon as provided in Code Section 10-16-6. 10-16-4. (a) Except as provided in Code Section 10-16-5: (1) A dealer shall accept at his or her place of business from a redeemer any empty beverage containers of the design, shape, size, color, composition, and brand sold or offered for sale by the dealer and shall pay to the redeemer the refund value of each such beverage container as established in Code Section 10-16-3. Redemptions of refund value shall be in legal tender, or a scrip or receipt from a reverse vending machine, provided that the scrip or receipt can be exchanged for legal tender for a period of not less than 60 days without requiring the purchase of other goods. The use or presence of a reverse vending machine shall not relieve a dealer of any obligations imposed pursuant to this chapter. If a dealer utilizes a reverse vending machine to redeem containers, the dealer shall provide redemption of beverage containers when the reverse vending machine is full, broken, under repair, or does not accept a type of beverage container sold or offered for sale by such dealer and shall not limit the hours or days of redemption except as provided by subsection (c) of this Code section; (2) Beginning January 1, 2012, a dealer whose place of business is part of a chain engaged in the same general field of business which operates ten or more units in this state under common ownership and whose business exceeds: (A) Forty thousand square feet but is less than 60,000 square feet shall install and maintain at least three reverse vending machines at the dealer's place of business; (B) Sixty thousand square feet but is less than 85,000 square feet shall install and maintain at least four reverse vending machines at the dealer's place of business; or (C) Eighty-five thousand square feet shall install and maintain at least eight reverse vending machines at the

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dealer's place of business; provided, however, that the requirements of this paragraph to install and maintain reverse vending machines shall not apply to a dealer that sells only refrigerated beverage containers of 20 ounces or less where each beverage container is sold as an individual container that is not connected to or packaged with any other beverage container: (3) A dealer to which paragraph (2) of this subsection does not apply and whose place of business is at least 40,000 square feet which does not utilize reverse vending machines to process empty beverage containers for redemption shall: (A) Establish and maintain a dedicated area within such business to accept beverage containers for redemption; (B) Adequately staff such area to facilitate efficient acceptance and processing of such containers during business hours; and (C) Post one or more conspicuous signs conforming to the size and color requirements described in subsection (b) of this Code section at each public entrance to the business which describes where in the business the redemption area is located. The commissioner may establish in rules and regulations additional standards for the efficient processing of beverage containers by such dealers; and (4) For the purposes of this subsection, on any day that a dealer is open for less than 24 hours, the dealer may restrict or refuse the payment of refund values during the first and last hour the dealer is open for business. (b) A dealer shall post a conspicuous sign, at the point of sale, that states: 'GEORGIA BOTTLE REFUND BILL OF RIGHTS STATE LAW REQUIRES US TO REDEEM EMPTY RETURNABLE BEVERAGE CONTAINERS OF THE SAME TYPE AND BRAND THAT WE SELL OR OFFER FOR SALE YOU HAVE CERTAIN RIGHTS UNDER THE GEORGIA BOTTLE REFUND ACT: THE RIGHT to return your empties for refund to any dealer who sells the same brand, type, and size, whether you bought the beverage from the dealer or not. It is illegal to return

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containers for refund that you did not pay a deposit on in Georgia. THE RIGHT to get your deposit refund in cash, without proof of purchase. THE RIGHT to return your empties any day, any hour, except for the first and last hour of the dealer's business day (empty containers may be redeemed at any time in 24 hour stores). THE RIGHT to return your containers if they are empty and intact. Washing containers is not required by law, but is strongly recommended to maintain sanitary conditions. These provisions can be enforced by the Georgia Department of Revenue.' Such sign shall be no less than eight inches by ten inches in size and have lettering a minimum of one-quarter inch high, and of a color which contrasts with the background. The department shall maintain a toll-free telephone number for a 'bottle complaint line' that shall be available from 9:00 A.M. to 5:00 P.M. each business day to receive reports of violations of this chapter. The telephone number shall be listed on any sign required by this Code section. (c) On or after June 1, 2012, a dealer may limit the number of empty beverage containers to be accepted for redemption at the dealer's place of business to no less than 72 containers per visit, per redeemer, per day, provided that: (1) The dealer has a written agreement with a redemption center, be it either at a fixed physical location within the same county and within one-half mile of the dealer's place of business, or a mobile redemption center, operated by a redemption center, that is located within one-quarter mile of the dealer's place of business. The redemption center shall have a written agreement with the dealer to accept containers on behalf of the dealer; and the redemption center's hours of operation shall cover at least 9:00 A.M. through 7:00 P.M. daily or in the case of a mobile redemption center, the hours of operation shall cover at least four consecutive hours between 8:00 A.M. and 8:00 P.M. daily. The dealer shall post a conspicuous, permanent sign, meeting the size and color specifications set forth in subsection (b) of this Code section, open to public view, identifying the location and hours of operation of the affiliated

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redemption center or mobile redemption center, (2) The dealer provides, at a minimum, a consecutive two-hour period between 7:00 A.M. and 7:00 P.M. daily whereby the dealer will accept up to 240 containers, per redeemer, per day, and posts a conspicuous, permanent sign, meeting the size and color specifications set forth in subsection (b) of this Code section, open to public view, identifying those hours. The dealer shall not change the hours of redemption without first posting a 30 day notice, and (3) The dealer's primary business is the sale of food or beverages for consumption off premises, and the dealer's place of business is less than 10,000 square feet in size. (d) A deposit initiator shall accept from a dealer or operator of a redemption center any empty beverage container of the design, shape, size, color, composition, and brand sold or offered for sale by the deposit initiator and shall pay the dealer or operator of a redemption center the refund value of each such beverage container as established by Code Section 10-16-3. A deposit initiator shall accept and redeem all such empty beverage containers from a dealer or redemption center without limitation on quantity. (e) A deposit initiator's or distributor's failure to pick up empty beverage containers, including containers processed in a reverse vending machine, from a redemption center, dealer, or the operator of a reverse vending machine shall be a violation of this chapter. (f) In addition to the refund value of a beverage container as established by Code Section 10-16-3, a deposit initiator shall pay to any dealer or operator of a redemption center a handling fee of three and one-half cents for each beverage container accepted by the deposit initiator from such dealer or operator of a redemption center. Payment of the handling fee shall be as compensation for collecting, sorting, and packaging of empty beverage containers for transport back to the deposit initiator or its designee. Payment of the handling fee shall not be conditioned on the purchase of any goods or services, nor shall such payment be made out of the refund value account established pursuant to Code Section 10-16-7. A distributor who does not initiate deposits on a type of beveraae container shall be considered a dealer only for the

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purpose of receiving a handling fee from a deposit initiator. (g) A deposit initiator on a brand shall accept from a distributor who does not initiate deposits on that brand any empty beverage containers of that brand accepted by the distributor from a dealer or operator of a redemption center and shall reimburse the distributor the refund value of each such beverage container, as established by Code Section 1016-3. In addition, the deposit initiator shall reimburse such distributor for each such beverage container the handling fee established under subsection (f) of this Code section. Without limiting the rights of the department or any person, firm, or corporation under this subsection or any other provision of this Code section, a distributor shall have a civil right of action to enforce this subsection, including, upon three days notice, the right to apply for temporary and preliminary injunctive relief against continuing violations and until arrangements for collection and return of empty containers or reimbursement of such distributor for such deposits and handling fees are made. (h) It shall be the responsibility of the deposit initiator or distributor to provide to a dealer or redemption center a sufficient number of bags, cartons, or other suitable containers, at no cost, for the packaging, handling, and pickup of empty beverage containers that are not redeemed through a reverse vending machine. The bags, cartons, or containers shall be provided by the deposit initiator or distributor on a schedule that allows the dealer or redemption center sufficient time to sort the empty beverage containers prior to pickup by the deposit initiator or distributor. In addition: (1) When picking up empty beverage containers, a deposit initiator or distributor shall not require a dealer or redemption center to load their own bags, cartons, or containers onto or into the deposit initiator's or distributor's vehicle or vehicles or provide the staff or equipment needed to do so; (2) A deposit initiator or distributor shall not require empty containers to be counted at a location other than the redemption center or dealer's place of business. The dealer or redemption center shall have the right to be present at the count- and (3) A deposit initiator or distributor shall pick up empty

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beverage containers from the dealer or redemption center at reasonable times and intervals as determined in rules or regulations promulgated by the department. (i) No person shall return or assist another to return to a dealer or redemption center an empty beverage container for its refund value if such container had previously been accepted for redemption by a dealer, redemption center, or deposit initiator who initiates deposits on beverage containers of the same brand. (j) A redeemer, dealer, distributor, or redemption center shall not knowingly redeem an empty beverage container on which a deposit was never paid in Georgia. (k) Notwithstanding the provisions of subsection (b) of Code Section 10-16-5, a deposit initiator or distributor shall accept and redeem beverage containers if the dealer or operator of a redemption center shall have accepted and paid the refund value of such beverage containers. 10-16-5. (a) A dealer or operator of a redemption center may refuse to accept from a redeemer, and a deposit initiator or distributor may refuse to accept from a dealer or operator of a redemption center, any empty beverage container which does not state thereon a refund value as established by Code Section 10-16-3 and provided by Code Section 10-16-6. (b) A dealer or operator of a redemption center may also refuse to accept any broken bottle, corroded or dismembered can, or any beverage container which contains a significant amount of foreign material, as determined in rules and regulations to be promulgated by the commissioner. 10-16-6. (a) Every beverage container sold or offered for sale in this state by a distributor or dealer shall clearly indicate by permanently marking or embossing the container or by printing as part of the product label the refund value of the container and the words 'Georgia' or the letters 'GA'; provided, however, that in the case of private label beverages, such information may be embossed or printed on a label which is securely or permanently affixed to the beverage container. As used in this Code section. the term 'erivate

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label beverage' means beverages purchased from a beverage manufacturer in beverage containers bearing a brand name or trademark for sale at retail directly by the owner or licensee of such brand name or trademark or through retail dealers affiliated with such owner or licensee by a cooperative or franchise agreement. (b) Such embossing or permanent imprinting on the beverage container shall be the responsibility of the person, firm, or corporation which bottles, cans, or otherwise fills or packages a beverage container or a brand owner for whose exclusive account private label beverages are bottled, canned, or otherwise packaged; provided, however, that the duly authorized agent of any such person, firm, or corporation may indicate such refund value by a label securely affixed on any beverage container containing beverages imported into the United States. (c) No deposit initiator, distributor, or dealer shall sell or offer for sale, at wholesale or retail in this state, any metal beverage container designed and constructed with a part of the container which is detachable in opening the container unless such detachable part will decompose by photodegradation or biodegradation. (d) No deposit initiator, distributor, or dealer shall sell or offer for sale in this state beverage containers connected to each other by a separate holding device constructed of plastic which does not decompose by photodegradation or biodegradation. 10-16-7. (a) Each deposit initiator shall deposit in a refund value account an amount equal to the refund value initiated under Code Section 10-16-3 which is received with respect to each beverage container sold by such deposit initiator. Such deposit initiator shall hold the amounts in the refund value account in trust for the state. A refund value account shall be an interest-bearing account established in a banking institution located in this state, the deposits in which are insured by an agency of the federal government. Deposits of such amounts into the refund value account shall be made not less frequently than every five business days. All interest, dividends, and returns earned on the refund value account

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shall be paid directly into said account. The moneys in such accounts shall be kept separate and apart from all other moneys in the possession of the deposit initiator. The commissioner may specify a system of accounts and records to be maintained with respect to accounts established under this subsection. (b) Payments of refund values pursuant to Code Section 1016-4 shall be paid from each deposit initiator's refund value account. No other payment or withdrawal from such account shall be made except as prescribed by this Code section. (c) Each deposit initiator shall file quarterly reports with the commissioner on a form and in the manner prescribed by the commissioner. The commissioner may require such reports to be filed electronically. The quarterly reports required by this subsection shall be filed for the quarterly periods ending on the last day of May, August, November, and February of each year, and each such report shall be filed within 20 days after the end of the quarterly period covered thereby. Each such report shall include all information the commissioner shall determine appropriate, including, but not limited to, the following information: (1) The balance in the refund value account at the beginning of the quarter for which the report is prepared; (2) All such deposits credited to the refund value account and all interest, dividends, or returns received on such account, during such quarter; (3) All withdrawals from the refund value account during such quarter, including all reimbursements paid pursuant to subsection (b) of this Code section, all service charges on the account, and all payments made pursuant to subsection (d) of this Code section; and (4) The balance in the refund value account at the close of such quarter. (d)(1) Quarterly payments. An amount equal to 80 percent of the balance outstanding in the refund value account at the close of each quarter shall be paid to the commissioner at the time the report provided for in subsection (c) of this Code section is required to be filed. The commissioner may require that the payments be made electronically. The remaining 20 percent of the balance outstanding at the close of each quarter shall be the monevs of the deposit initiator

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and may be withdrawn from such account by the deposit initiator. If the provisions of this Code section with respect to such account have not been fully complied with, each deposit initiator shall pay to the commissioner at such time, in lieu of the amount described in the preceding sentence, an amount equal to the balance which would have been outstanding on such date had such provisions been fully complied with. The commissioner may require that the payments be made electronically. (2) Refund value account shortfall. In the event a deposit initiator pays out more in refund values than it collects in deposits of refund values during the course of a quarterly period as described in subsection (c) of this Code section, the deposit initiator may apply to the commissioner for a refund of the amount of such excess payment of refund values from sources other than the refund value account, in the manner as provided by the commissioner. A deposit initiator shall apply for a refund no later than 12 months after the due date for filing the quarterly report for the quarterly period for which the refund claim is made. No interest shall be payable for any refund paid pursuant to this paragraph. (3) Final report. A deposit initiator who ceases to do business in this state as a deposit initiator shall file a final report and remit payment of 80 percent of all amounts remaining in the refund value account as of the close of the deposit initiator's last day of business. The commissioner may require that the payments be made electronically. The deposit initiator shall indicate on the report that it is a 'final report.' The final report shall be due to be filed with payment 20 days after the close of the quarterly period in which the deposit initiator ceases to do business. In the event the deposit initiator pays out more in refund values than it collects in such final quarterly period, the deposit initiator may apply to the commissioner for a refund of the amount of such excess payment of refund values from sources other than the refund value account, in the manner as provided by the commissioner. (e) All moneys collected or received by the department pursuant to this chapter shall be deposited with such responsible banks or trust companies as may be designated by the commissioner. Such deposits shall be kept separate and

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apart from all other moneys in the possession of the commissioner. The commissioner shall require adequate security from all such depositories. Of the total revenue collected, the commissioner shall retain the amount determined by the commissioner to be necessary for refunds out of which the commissioner shall pay any refunds to which a deposit initiator may be entitled. After reserving the amount to pay refunds, the commissioner shall, by the tenth day of each month, pay into the state treasury to the credit of the general fund the revenue deposited under this subsection during the preceding calendar month. (f) The commissioner shall promulgate such rules and regulations as may be necessary to effectuate the purposes of this chapter. (g)(1) Any person who is a deposit initiator under this chapter before January 1, 2012, shall apply by June 1, 2012, to the commissioner for registration as a deposit initiator. Any person who becomes a deposit initiator on or after January 1, 2012, shall apply for registration prior to collecting any deposits as such a deposit initiator. Such application shall be in a form prescribed by the commissioner and shall require such information deemed to be necessary for proper administration of this chapter. The commissioner may require that applications for registration shall be submitted electronically. The commissioner shall electronically issue a deposit initiator registration certificate in a form prescribed by the commissioner within 15 days of receipt of such application. A registration certificate issued pursuant to this subsection may be issued for a specified term of not less than three years and shall be subject to renewal in accordance with procedures specified by the commissioner. The commissioner shall maintain a complete list of registered deposit initiators and shall continually update such list as warranted. (2) The commissioner shall have the authority to revoke or refuse to renew any registration issued pursuant to this subsection when he or she has determined that any of the provisions of this chapter or rules and regulations promulgated thereunder have been violated. Such violations shall include, but not be limited to, the failure to file quarterly reports, the failure to make payments pursuant to this chapter, the providing of false or fraudulent

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information to the department, or knowingly aiding or abetting another person in violating any of the provisions of this chapter. A deposit initiator whose registration has been revoked or not renewed shall cease to do business as a deposit initiator in this state until this chapter has been complied with and a new registration has been issued. Any deposit initiator whose registration has been revoked shall not apply for registration for two years from the date such revocation takes effect. (h) The commissioner may require the maintenance of such accounts, records, or documents relating to the sale of beverage containers by any deposit initiator, bottler, distributor, dealer, or redemption center as the commissioner may deem appropriate for the administration of this chapter. The commissioner may make examinations, including the conduct of facility inspections during regular business hours, with respect to the accounts, records, or documents required to be maintained under this chapter. Such accounts, records, and documents shall be preserved for a period of three years, except that the commissioner may require that they be kept longer. Such accounts, records, and documents may be kept within the meaning of this subsection when reproduced by any photographic, photostatic, microfilm, micro-card, miniature photographic, or other process which actually reproduces the original accounts, records, or documents. (i)(1) Any person required to be registered under this chapter who, without being so registered, sells or offers for sale beverage containers in this state, in addition to any other penalty imposed by this chapter, shall be subject to a penalty to be assessed by the commissioner in an amount not to exceed $500.00 for the first day on which such sales or offers for sale are made, plus an amount not to exceed $500.00 for each subsequent day on which such sales or offers for sale are made, not to exceed $25,000.00 in the aggregate. (2) Any deposit initiator who fails to maintain accounts or records pursuant to this chapter, unless it is shown that such failure was due to reasonable cause and not due to negligence or willful neglect, in addition to any other penalty imposed by this chapter, shall be subject to a penalty to be assessed by the commissioner of not more than $1,000.00 for each quarter during which such failure

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occurred and an additional penalty of not more than $1,000.00 for each quarter such failure continues. (j) Beginning on January 1, 2012, each deposit initiator shall register the container label of any beverage offered for sale in this state on which it initiates a deposit. Any such registered container label shall bear a universal product code. Such Universal Product Code shall be Georgia specific, in order to identify the beverage container as offered for sale exclusively in Georgia and as a means of preventing illegal redemption of beverage containers purchased out of state. Registration shall be on forms as prescribed by the department and shall include the Universal Product Code for each combination of beverage and container manufactured. The commissioner may require that such forms be filed electronically. The deposit initiator shall renew a label registration whenever that label is revised by altering the Universal Product Code or whenever the container on which it appears is changed in size, composition, or glass color. 10-16-8. The commissioner shall be empowered to promulgate rules and regulations governing: (1) The circumstances in which dealers and distributors, individually or collectively, are required to accept the return of empty beverage containers and make payment therefore; (2) The sorting of the containers which a deposit initiator or distributor may require of dealers and redemption centers; (3) The collection of returned beverage containers by deposit initiators or distributors, including the party to whom such expense is to be charged, the frequency of such pickups, and the payment for refunds and handling fees thereon;

(4) The right of dealers to restrict or limit the number of containers redeemed, the rules for redemption at the dealers' place of business, and the redemption of containers from a beverage for which sales have been discontinued and to issue permits to persons, firms, or corporations which establish redemption centers, subject to applicable provisions of local and state laws, at which redeemers and dealers may return empty beverage containers and receive

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payment of the refund value of such beverage containers. No dealer or distributor shall be required to obtain a permit to operate a redemption center at the same location as the dealer's or distributor's place of business. Operators of such redemption centers shall receive payment of the refund value of each beverage container from the appropriate deposit initiator or distributor as provided under Code Section 10-16-4. 10-16-9. The commissioner shall establish a public education program to disseminate information regarding implementation of this chapter. Such information shall include, but not be limited to, publication of information specifying the procedures necessary to establish a redemption center; publication of information delineating the relevant rights and responsibilities of deposit initiators, distributors, dealers, redemption centers, and redeemers under the provisions of this chapter; publication of information regarding the requirement that deposit initiators register with the department; and publication of information on the general benefits of recycling."

ยง2. This Act shall become effective on January 1, 2012.

ยง3. All laws and parts of laws in conflict with this Act are repealed. SPONSOR'S RATIONALE

Some of the most common items found on Georgia's highways are aluminum cans. Eight out of ten motorists litter because it is easier than saving the trash to discard later.8 Georgia defines litter as "any discarded or abandoned refuse,

Facts,

GA.

DEP'T

TRANSP.,

http://www.dot.state.ga.us/informationcenter/programs/environment/litter/Pa ges/Facts.aspx (last visited Dec. 15, 2011). 8. Id.

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rubbish, junk, or other waste material." 9 Georgia currently has a recycle rate of 55% and approximately 40% of Georgia's landfills contain recyclable materials.' 0 House Bill 51 will require a consumer to pay a five cent ($0.05) deposit on particular beverage containers, at the time of purchase, with the goal of reducing the amount of litter and reducing the amount of waste in Georgia's landfills by encouraging citizens to recycle used beverage containers." When the consumer returns the containers to a redemption center, the consumer then gets the five cent deposit back. Representative Kidd, House Bill 51's second sponsor,13 became interested in deposit legislation when he read about how many plastic bottles were being discarded everyday in Georgia. 14 Representative Kidd considers this to be not only a wasted resource, but also a significant landfill issue." While he thinks that Georgia should consider deposit legislation, he notes that the bottle industry is very opposed to this type of legislation 9. O.C.G.A. ยง 16-7-42(1)(A) (West 1993), amended by H.B. 1320, 145th available at 2006), (Ga. Sess. 2d Reg. Assemb., Gen. http://wwwl.legis.ga.gov/legis/2005_06/pdf/hbl320.pdf. 10. YouGOTTABEKIDDING.ORG, http://www.yougottabekidding.org/RecycleinGeorgia/FAQ/tabid/63/Default. aspx (last visited Dec. 15, 2011). The Georgia Department of Community the funds Management of Environmental Office Affairs YouGottaBeKidding.org campaign to raise awareness about the benefits of recycling. About the Campaign, YouGOTTABEKIDDING.ORG, http://www.yougottabekidding.org/RecycleinGeorgia/AboutTheCampaign/ta bid/65/Default.aspx (last visited Dec. 15, 2011). The campaign is part of a comprehensive strategy to boost recycling in Georgia and to keep valuable materials out of landfills. Id. The program's slogan, "you gotta be kidding[,]" is a response to the reasons why 45% of Georgians do not recycle. YOUGOTTABEKIDDING.ORG, http://www.yougottabekidding.org/RecycleinGeorgia/FAQ/tabid/63/Default. aspx (last visited Dec. 15, 2011). 11. Ga. H.B. 51, supra note 1. 12. Id.

13. H.B. 51 Status Sheet, supra note 6. House Bill 51's primary sponsor, Representative Sheila Jones, was unavailable for comment about her rationale for introducing House Bill 51. 14. E-mail from Rep. Rusty Kidd, H. Dist. 141, to Ethan Williams, Staff Member, John Marshall Law Journal (Sep. 7, 2011, 3:08 PM) [hereinafter Rep. Kidd E-mail] (on file with the John Marshall Law Journal). 15. Id.

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and doubts that it will get very far in the General Assembly's 2012 session.16 OPPOSITION'S RATIONALE

Oregon was the first state to establish a deposit on beverage containers when it passed "The Beverage Container Act" in 1971. 17 Since then, any type of legislation that requires a deposit on beverage containers has been deemed a "bottle bill."18 The main opposition to bottle bills comes from soft drink beverage producers.19 The Coca-Cola Company's website states that bottle bill deposit legislation "is too narrowly focused to effectively address the solid waste problem" and that bottle bills "actually hurt municipal recycling efforts" because bottle bills remove the "most valuable materials" needed to support recycling programs. 2 0 PepsiCo. Inc. actively opposes bottle bill legislation while at the same time claiming to "spend millions of dollars in support of beverage container recovery." 2 1 PepsiCo.'s approach to recycling focuses on using recycled products in its bottles and cans, reducing the amount of aluminum and plastic in its containers and making sure its beverage containers are The soft drink industry overall argues that easy to recycle. bottle bills increase operating costs by forcing bottlers to invest in more warehouse space and trucks to handle the beverage containers.2 3 16. Id. What is a Bottle Bill?, BOTTLE BILL REs. GUIDE, 17. http://www.bottlebill.org/about/whatis.htm (last visited Dec. 15, 2011). 18. Id. 19. Bottle Bill Opponents, CONTAINER RECYCLING INST.: BOTTLE BILL

TOOL KIT, http://toolkit.bottlebill.org/opposition/opponents.htm (last visited Dec. 15, 2011) [hereinafter Bottle Bill Opponents]. http://www.thecocaCO., COCA-COLA FAQs-General, 20. colacompany.com/contactus/faq/general.html (follow "Ask Coca Cola" hyperlink to open pop-up window, search "deposit legislation," click "Submit") [hereinafter FAQs-General]. 21. PEPSICO. INC., PROXY STATEMENT, at 59-60, (2009), available at http://www.pepsico.com/AnnualReports/2008/downloads/files/PepsiCo_2009-Proxy-Statement.pdf (encouraging shareholders to vote against deposit legislation measures). 22. Id. at 60. 23. Coca-Cola Company on Bottle Bills, CONTAINER RECYCLING INST.:

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Bottlers and distributors, along with many retail grocers and liquor stores, also oppose bottle bill legislation. 2 4 Bottlers argue they have to hire more employees to handle container redemption and are required to pay handling fees to offset the costs incurred by retailers and redemption centers that handle the containers.25 The amount of the handling fees varies from state to state and can be as much as four cents ($0.04) per 26 container.26 Retailers argue that they must find additional space for the redeemed containers, hire additional staff to sort the containers, and incur expenses for insect and rodent control. 27 it is also argued that bottle bills are inconvenient because consumers have to separate deposit containers from their existing recyclables and bring the containers to a redemption center, instead of using curb side recycling programs or other drop-off recycling centers.2 8 In recent years, waste haulers and owners of material recovery facilities have also joined the opposition.29 Waste haulers and recovery centers argue that bottle bills are not as efficient as curb side recycling and remove the most valuable materials from the waste stream.3 0 As a result, curbside recycling programs will require larger government subsidies because the glass, aluminum, and plastic containers will go directly back the producer, instead of being added to the waste stream.3 1 It is predicted that curbside recycling programs could experience a 50% reduction in income due to the loss of these valuable containers. 32 Furthermore, if a state that already has BOTTLE

BILL

TOOL

KIT,

(last http://toolkit.bottlebill.org/opposition/arguments/coke-position.htm visited Dec. 15, 2011) [hereinafter Coca-Cola Company on Bottle Bills]. 24. Bottle Bill Opponents, supra note 19. 25. Id. GUIDE, BILL RES. Bottle Bills, BOTTLE All US 26. http://www.bottlebill.org/legislation/usa/allstates.htm (last visited Dec. 15, 2011). 27. Coca-Cola Company on Bottle Bills, supra note 23. 28. Id. 29. Id.

30. Ann E. Carlson, Recycling Norms, 89 CAL. L. REV. 1231, 1267 (2001). 31. JAMES O'RELLY, STATE AND LOCAL GOVERNMENT SOLID WASTE MANAGEMENT ยง 4:12 (2d ed. 2010). 32. Id.

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recycling centers set up were to pass a bottle bill, these recycling centers "would be dealt a very severe blow." 33 Opponents to bottle bills have taken several other positions against deposit legislation. Opponents to bottle bills argue that curbside and drop-off programs are superior to bottle bills because they have lower transaction costs and are more convenient for the consumer.3 4 The Coca-Cola Company states that bottle bills only divert 3% of the waste stream where as comprehensive waste systems divert up to 25%.35 Delaware's legislature agreed with the opponents' arguments when it repealed the state's bottle bill in 2009.36 The legislature deemed the bottle bill ineffective when compared against single-stream recycle systems. 37 Opponents to the proposed South Carolina bottle bill3 8 argue that the bill is a tax that will cost businesses and customers more to purchase beverages.3 9 The opposition to the proposed Tennessee bottle bill 40 argues that drink containers are less than 10% of the litter stream, the bill is a new tax on consumers, and people from non-bottle bill states could redeem containers that were not purchased in Tennessee.41 Finally, the opponents of bottle bills have argued that bottle bills are unconstitutional.4 2 However, courts have upheld the constitutionality of bottle bills as a proper exercise of state authority 4 3 stating that bottle bills are not arbitrary,44 have a 33.Id. 34. Id. 35. FAQs-General,supra note 20. 36. O'REILLY, supra note 31. 37. Id.

38. H.B. 3590, 119th Gen. Assemb., 1st Reg. Sess. (S.C. 2011), available at http://www.scstatehouse.gov/sess 119_2011-2012/bills/3590.htm. 39. SC Bill Requiring Beverage Deposit Gets No Support, BLOOMBERG

(Feb. 16, 2011, 9:22 AM), http://www.businessweek.com/ap/financialnews/D9LDTR200.htm. 40. H.B. 289, 107th Gen. Assemb., 1st Reg. Sess. (Tenn. 2011), available at http://www.capitol.tn.gov/Bills/07/Bill/HBO289.pdf. 41. TRASH THE BOTTLE BILL, http://www.trashthebottlebill.com (last visited Dec. 15, 2011). 42. O'REILLY, supra note 31. 43. Anchor Hocking Glass Corp. v. Barber, 105 A.2d 271, 276-77 (Vt. 1954) (discussing Vermont statute prohibiting the sale of beer or ale in nonreturnable glass containers to reduce the amount of litter on state highways held as a legitimate exercise of police powers). BUSINESSWEEK

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rational basis, 4 5 and are not substantially burdensome on interstate commerce.4 6 For example, the American Beverage Association sued the state of Michigan, claiming that the provision of the state's bottle bill that requires returnable containers to include a "symbol, mark or other distinguishing characteristic" unique to Michigan violated the dormant Commerce Clause of the Constitution. 7 Michigan argued that the unique-mark requirement was necessary to prevent people from other states redeeming bottles not purchased in Michigan. 4 8 The court ruled that the unique-mark requirement provision of the bottle bill, on its face, did not violate the dormant Commerce Clause as it was neither discriminatory nor extraterritorial. 4 9 However, the court did say that an issue of material fact did exist as to whether the provision clearly was excessive in relation to the putative local benefits and to what extent the provision would. impose on* interstate commerce. 50 The court recognized that the American Beverage Association would suffer a burden from the provision, but the scope of that burden was unclear to the court. 44. Bowie Inn, Inc. v. City of Bowie, 335 A.2d 679, 686-87 (Md. 1975) (holding that the city of Bowie's ordinance which required a five cent deposit on any soft drink and malt beverage container was reasonable and substantially related to the ordinance's goal to protect against litter). 45. Mid-State Distrib. Co. v. City of Columbia, 617 S.W.2d 419, 426-27 (Mo. Ct. App. 1981) (holding that the city of Columbia's ordinance to required a five cent deposit on certain beverage containers had a rational relationship to the ordinance's goal to reduce litter and promote recycling). 46. Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 471-72 (1981). Minnesota statute which banned plastic nonreturnable, nonrefillable milk containers for the purpose of conservation and easing solid waste disposal was held to be not in violation of the dormant commerce clause because it regulated evenhandedly and the "burden imposed on interstate commerce by the statute [was] relatively minor." Id.; Mid-State Distrib. Co., 617 S.W.2d at 430 (holding that the ordinance does not discriminate between interstate and intrastate commerce as it "regulates evenhandedly by applying the deposit-refund requirements to all the containers within its scope without regard to whether they are from inside the state or outside."). 47. Am. Beverage Ass'n v. Snyder, No. 1:11-CV-195, 2011 WL 2182080 at *3 (W. D. Mich. May 31, 2011). 48. Id. at *2. 49. Id. at *13. 50. Id. at *13-15. 51. Id. at *15.

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IMPLICATIONS IN GEORGIA

States that have enacted bottle bills are California, Connecticut, Delaware, Hawaii, Iowa, Massachusetts, Maine, Michigan, New York, Oregon, and Vermont. 52 Since enacting bottle bills, these states have reduced their beverage container litter by 69-84%, depending on the state. 5 3 The deposit amounts for the beverage containers vary, with Michigan having the highest deposit amount at ten cents and California having the lowest deposit amount at two and a half cents while all the other states have a deposit amount of five cents. Therefore, it is relevant to look at the effects bottle bills have had on other states' economies and environments to determine what implications House Bill 51 might have on the state of Georgia. Representative Jones's bottle bill is very similar to New York's current bottle bill, the "Returnable Container Act."55 New York's original bottle bill was enacted in 1982 and required a five cent deposit on beverage containers under one gallon that were made of airtight metal, glass, paper, or plastic which contained beer, wine, malt beverages, carbonated soft drinks & mineral water.56 The overall purpose of the bill was to reduce litter on the state's roadsides, ease the burden on waste facilities and encourage recycling activity. 57 In 2009, New York amended its bottle bill to include beverage containers that contained water and tea. Since its enactment, the Returnable Container Act has reduced the amount of roadside beverage 52. Bevin Ashenmiller, Externalitiesfrom Recycling Laws: Evidence from

Crime Rates, 12 AM. L. & EcON. REV. 245, 253 (2010). Delaware repealed its 28 year old bottle bill in 2009, which became effective in 2010. O'RELLY, supra note 31. 53. Marc L. Lerner, Cashfor Clunkers, Dimesfor Duracells:An Effective Model to Motivate the Proper Disposal of Household Toxic Waste, 51

JURIMETRICS J. 141, 161 (2011). 54. Ashenmiller, supra note 52, at 253. 55. N.Y. ENVTL. CONSERVATION LAW

ยง 27-1001 to -1019 (McKinney

2009). 56.

N Y

Bottle

Bill

History,

BOTTLE

BILL

RES.

GUIDE,

http://www.bottlebill.org/legislation/usa/history/nyhis.htm (last visited Dec. 15, 2011) [hereinafter N. Y Bottle Bill History]. 57. Id.

58. Id.

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container litter in New York by as much as 70%.59 According to New York's Department of Environmental Conservation website, the Act has also helped to "recycle[] 90 billion containers, equal to 6 million tons of materials . . . save[] more

than 52 million barrels of oil, and eliminate[] 200,000 metric tons of greenhouse gases each year."60 New York had an overall redemption rate of 66.8% and specific beverage container redemption rates of 76.5% for beer, 58.7% for soda and 77.1% for wine.61 While New York's original bottle bill allowed the distributors and bottlers to retain any unclaimed deposits, the 2009 amendment required that 80% of the unclaimed deposits go to the state General Fund.6 2 Although the state had to pay $207,914,860.00 for redeemed deposits on beverage containers, the unclaimed deposits totaled

$103,434,828.00.63 Along with New York, other states have amended their bottle bills to include water bottles, require all unclaimed deposits be retained by the state, or to have the deposit amount changed based on the redemption rate.64 Connecticut amended its bottle bill in 2009 to include water bottles along with beer, malt, and carbonated soft drinks and to allow the state to retain any unclaimed deposits. 65 Maine, which has a redemption rate of 90%, changed its bottle bill in 2003 to allow the state to keep all unclaimed deposits in a state general fund instead of being 59. New York's Bottle Bill Returnable Container Act (RCA), N.Y. ST, DEP'T ENVTL. CONSERVATION http://www.dec.ny.gov/chemical/8500.html (last visited Dec. 15, 2011) [hereinafter New York's Bottle Bill Returnable ContainerAct (RCA)]. 60. Id. 61. N.Y. STATE DEP'T OF ENVTL. CONSERVATION, BEVERAGE CONTAINER DEPOSIT AND REDEMPTION STATISTICS AS REPORTED FOR THE PERIOD OCTOBER 1, 2006-SEPTEMBER 30, 2007, at 3, http://www.dec.ny.gov/docs/materials-mineralspdf/0607rcarpt.pdf [hereinafter 2007 N.Y. STATISTICS]. 62. N. Y. Bottle Bill History, supra note 56. 63. 2007 N.Y. STATISTICS, supra note 61, at 2. 64. See BOTTLE BILL RES. GUIDE, http://www.bottlebill.org (last visited Dec. 15, 2011) (providing a comprehensive review of enacted and pending bottle bills). 65. Connecticut Bottle Bill History, BOTTLE BILL RES. GUIDE, http://www.bottlebill.org/legislation/usa/history/cthis.htm (last visited Dec. 15, 2011).

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retained by the distributors and bottlers.6 6 Massachusetts, which has an overall redemption rate of 70.8%, amended its bottle bill the same year to allow the state to retain any unclaimed deposits in a state general fund as well.6 7 The state of Oregon, which has a redemption rate of 75%, significantly changed its bottle bill this past year to require the deposit amount to increase when the redemption rates decrease. 68 The new bottle bill mandates that the five cent deposit amount will rise to ten cents if the redemption rate falls below 80% two years in a row.69 Furthermore, Oregon expanded its bill to include sports drinks and "just about any glass, metal or plastic beverage container, except for those that hold milk, wine or liquor."70 The states of Hawaii,71 Iowa,72 Vermont,73 Michigan 7 4 and California7 5 have 66. Bottle Bills in the

USA: Maine, BOTTLE BILL RES. GUIDE,

http://www.bottlebill.org/legislation/usa/maine.htm 2011).

(last visited Dec. 15,

67. Massachusetts Bottle Bill History, BOTTLE BILL RES. GUIDE,

http://www.bottlebill.org/legislation/usa/history/mahis.htm (last visited Dec. 15, 2011). 26,

68. Kitzhaber Inks Widening of Bottle Deposit System, BULLETIN (Aug. 2011, 6:57 AM),

http://www.bendbulletin.com/article/20110610/NEWS0 107/106100347. 69. Id. 70. Ryan Kost, Gov. Kitzhaber Signs Vast Expansion of Oregon Bottle Bill, OREGONLIVE.COM (Jun. 9, 2011, 10:22 AM),

http://www.oregonlive.com/portland/index.ssf/2011/06/gov-kitzhaber-signs vast expan.html. 71. Bottle Bills in the USA: Hawaii, BOTTLE BILL RES. GUIDE,

http://www.bottlebill.org/legislation/usa/hawaii.htm (last visited Dec. 15, 2011). Hawaii retains all unclaimed deposits and has a 76% redemption rate overall. Id. 72.

Bottle Bills of the USA:

Iowa, BOTTLE

BILL RES. GUIDE,

http://www.bottlebill.org/legislation/usa/iowa.htm (last visited Dec. 15, 2011). Iowa has an overall redemption rate of 86% and the unclaimed deposits are retained by distributor/bottlers. Id. 73. Bottle Bills of the USA:

Vermont, BOTTLE BILL RES. GUIDE,

http://www.bottlebill.org/legislation/usa/vermont.htm (last visited Dec. 15, 2011). Vermont has an overall redemption rate of 85% and the unclaimed deposits are retained by distributor/bottlers. Id. 74. Bottle Bills of the USA: Michigan, BOTTLE BILL RES. GUIDE,

http://www.bottlebill.org/legislation/usalmichigan.htm (last visited Dec. 15, 2011). Michigan has the highest redemption rate at 96.9% and requires that 75% of all unclaimed deposits go to state environment programs. Id. 75. Bottle Bills of the USA: California, BOTTLE BILL RES. GUIDE,

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left their bottle bills virtually unchanged since they were enacted. Enactment of House Bill 51 may have environmental impacts similar to those states that have current bottle bills. If Georgia were to recycle 1.7 million tons of the 2.6 million tons of recyclables thrown away annually, it would potentially "conserve 4% of the total energy consumed annually within the state" and "conserve more than 7 million barrels of oil" for an annual savings of almost $700 million. 76 Furthermore, if the Bill were enacted, motorists may be less likely to throw aluminum cans on the highway and Georgia may see an increase in its overall recycling rate equivalent to the states that have bottle bills. Along with the environmental impacts, House Bill 51 may have economic impacts as well. New York's current bottle bill allows the state to retain 80% of the unclaimed deposits. 77 New York's share of the unclaimed deposits totaled approximately Georgia may chose to retain a $103 million in 2009. percentage or all of the unclaimed deposits in its general fund to supplement various state programs. In addition to the benefits of increased recycling and the potential for states to supplement general funds, bottle bills have provided job opportunities and have affected the incomes of low-wage workers. 79 California encourages people to start their own redemption center recycling business or a current business may become certified as a redemption center.8 0 Although bottle bills are designed to encourage recycling, many higher income http://www.bottlebill.org/legislation/usa/califomia.htm (last visited Dec. 15, 2011). California has an overall redemption rate of 82% and the unclaimed deposits are the property of the program and used for program administration and grants to non-profits. Id. 76. FAQ, YoUGOTTABEKIDDING.ORG, http://www.yougottabekidding.org/RecycleinGeorgia/FAQ/tabid/63/Default. aspx (last visited Dec. 15, 2011). 77. New York's Bottle Bill Returnable ContainerAct (RCA), supra note 59. 78. Id. 79. Ashenmiller, supra note 53, at 245. 8o. See CA. DEP'T OF CONSERVATION-DIV. OF RECYCLING, STARTING A RECYCLING BUSINESS (2011), http://www.calrecycle.ca.gov/Publications/BevContainer/2011020.pdf (providing information on how to start a recycling business in California).

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households continue to discard their bottles.8' These discarded bottles end up as litter or trash, which are then collected by Part-time professional part-time or full-time recyclers. 82 recyclers are mainly people who are underemployed and fulltime recyclers are mainly people who are unemployable or people who have very poor job market opportunities. In 12% of households that have an income of $10,000 or less, recycling discarded bottles represents roughly 7-9% of their annual income.8 4 This indicates that passing a bottle bill when the economic conditions are unfavorable would have positive effects by creating self-employed jobs for low income households.ss Along with the potential to create jobs, the increase in income from recycling has indirectly benefited society as whole by reducing the amount of petty theft crimes. 8 6 Cities located in bottle bill states have, on average, an 11% lower petty theft crime rate than cities located in non-bottle bill states.1 The reduction of petty theft crimes indicates that individuals in the low income bracket are more likely to enga e in part-time or full-time recycling than engage in petty theft. These statistics tend to show that a bottle bill could possibly reduce petty crime rates. 89

The enactment of a bottle bill in Georgia may supplement the income of Georgia's lower economic households and potentially decrease the state's larceny crime rate. According to the Georgia Department of labor, Georgia's unemployment rate is 10.3%.90 The enactment of a bottle bill in Georgia may provide jobs at redemption centers for unemployed workers to handle the redeemed bottles and cans. The United States 81. Ashenmiller, supra note 53, at 258. 82. Id. 83. Id. at 249-50. 84. Id. at 248. 85. Id. at 258. 86. Id. at 248, 258. A petty theft crime is defined as a larceny where the property value is under $200. Id. 87. Id. at 258. 88. Id. 89. Id. at 259. 90. GA. DEP'T OF LABOR, http://www.dol.state.ga.us (last visited Dec. 15, 2011).

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Census Bureau reports that 8.3% of Georgia's households earn less than $10,000 and 5.7% earn between $10,000 and $14,999.9' A bottle bill in Georgia may allow people in these households to supplement their income by engaging in part-time or full-time recycling. Petty theft, or simple larceny in Georgia, is defined as "the wrongful taking and carrying away by any person of the personal goods of another with the intent to steal the same." 92 In 2010, there were 218,499 reported larcenies, approximately 57% of all property crime in Georgia.9 3 The decrease in petty thefts in states that currently have bottle bills indicates that the enactment of a bottle bill may potentially decrease the amount of simple larcenies committed in Georgia. LEGISLATIVE GENEALOGY

House Bill 51 was first read in the House of Representatives on January 24, 2011.94 It was read for a second time on January 25, 2011, and assigned to the House Natural Resources and Environment Committee.9 5 Representative Jones has not requested that the Natural Resources and Environment Committee have a hearing on House Bill 5 1.96 Prepared by: Ethan Williams

91. Georgia: Selected Economic Characteristics (2005-2009), U.S. CENSUS BUREAU-AM. FACTFINDER, http://factfinder.census.gov/serviet/ADPTable?_bm y&geo_id=04000US13&-qrname=ACS_2009_5YRGOO DP5YR3&ds name=ACS 2009 5YR GOO &- lang-en&-_sse=on (last visited Dec. 15, 2011). 92. Belmas v. State, 82 S.E. 819, 819 (Ga. Ct. App. 1914); see also Hartford Fire Ins. Co. v. Wimbish, 78 S.E. 265, 266 (Ga. Ct. App. 1913) (defining terms "petty theft" and "simple larceny" as being synonymous). 93. UNIF. CRIME REPORTING PROGRAM, GA. CRIME INFO. CTR., 2010 SUMMARY REPORT (2010), at 3, http://investigative.gbi.georgia.gov/vgn/images/portal/cit_1210/23/32/17340 93362010%20Summary%20Report.pdf. 94. H.B. 51 Status Sheet, supra note 6. 95. Id.

96. Telephone interview with Michelle Sloan, Staff Support to Linda Smith, Chairman of the Natural Res. & Envtl. Comm. (August 22, 2011).

HOUSE BILL 1311: CONSERVATION AND NATURAL RESOURCES; CERTAIN CIVIL PENALTIES; EXEMPT STATE AGENCIES

Amending O.C.G.A. ยง12-5-52 First Signature: Representative Bubber Epps (140th)

Co-Sponsors: Representative Jay Roberts (154th), Representative David Lucas, Jr. (139th), Representative Glenn Baker (78th) Summary: House Bill 131 seeks to amend Chapter 5 of Title 12 of the Official Code of GeorPia Annotated, relating to civil The amendment to Code penalties for water pollution. Section 12-5-52 would limit civil penalties issued by Environmental Protection Division concerning erosion and sedimentation violations for state agencies and those fulfilling a contract with a state agency.3 House Bill 131 limits penalties to $5,000 per day and gives state agencies, as well as those fulfilling a contract with a state agency, 30 days to cure an alleged violation. 4 Additionally, the Bill provides for mediation of erosion and sediment control disputes by the Erosion and Sediment Control Overview Council. Withdrawn and Recommitted Status: House Transportation Committee on April 14, 2011.6

1. H.B. 131, 15 1st Gen. Assemb., 1st Reg. Sess. (Ga. 2011), available at http://www.legis.ga.gov/Legislation/20112012/113021.pdf [hereinafter Ga. H.B. 131]. 2. Id. 3. Id. 4. Id. 5. Id. 6. 2011-2012 Regular Session-HB 131, Conservation and natural resources; certain civil penalties; exempt state agencies, GA. GEN. ASSEMB.,

http://www.legis.ga.gov/Legislation/en-US/display/20112012/HB/131 visited Dec. 15, 2011) [hereinafter H.B. 131 Status Sheet].

(last

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TEXT OF HOUSE BILL 131

ยง1. Title 12 of the Official Code of Georgia Annotated, relating to conservation and natural resources, is amended by adding a new subsection to Code Section 12-5-52, relating to civil penalties for water pollution, to read as follows: "(c) Any person violating this article where such violation consists of erosion and sedimentation in violation of a National Pollutant Discharge Elimination System permit issued pursuant to 40 C.F.R. Part 123 and such violation is alleged to have been committed by a state agency, department, or authority, or any person fulfilling the requirements of a contract with a state agency, department, or authority, shall not be liable for the civil penalty provided for by subsection (a) of this Code section but shall be liable for a civil penalty not to exceed $5,000.00 per day for each day during which such violation continues. Except as otherwise required by federal law, such penalty shall not be enforced against such state agencies, departments, or authorities, or against such persons, until the alleged violator has been given not less than 24 hours' written notice of such alleged violation, and for not less than 30 days after receipt of such written notice, the alleged violator shall be allowed to cure such alleged violation without fine or penalty."

ยง2. Said title is further amended by revising subsection (f) and adding a new subsection to Code Section 12-7-7.1, relating to the preparation and implementation of an erosion and sediment control plan, as follows: "(f)(1) There shall be an Erosion and Sediment Control Overview Council which shall provide guidance on the best management practices for implementing any erosion and sediment control plan for purposes of this Code section. The council shall be composed of fine seven members, including one member who shall be appointed by the Speaker of the House of Representatives and serve at the pleasure thereof, one member who shall be appointed by the Lieutenant thereof; pleasure the at serve and Governor

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and seven five members who shall be appointed by the Governor and serve at the pleasure thereof, including one of Department the from each employee of Division Protection the Environmental Transportation; and the Department of Natural Resources, and the Georgia Regional T1-Tanpeatifl-Atthef, a professional engineer licensed to practice in this state from a private engineering consulting firm practicing environmental engineering, two representatives one representative of the highway contracting industry certified by the Department of Transportation, and a chairperson. The council shall meet at the call of the chairperson. Each councilmember shall receive a daily allowance in the amount specified in subsection (b) of Code Section 45-7-21; provided, however, that any full-time state employee serving on the council shall draw no compensation but shall receive necessary expenses. The commissioner is authorized to pay such compensation and expenses from department funds. (2) The council may develop recommendations governing the preparation of plans and the installation and maintenance of best management practices. If a dispute concerning the requirements of this Code section should arise, the Erosion and Sediment Control Overview Council shall mediate the dispute. (3) The council may also mediate any disputes, including without limitation the issuance of orders or levying of fines by the division, relating to erosion and sediment control compliance enforcement actions taken by the division against the Department of Transportation, the State Road and Tollway Authority, or persons fulfilling the requirements of a contract with the Department of Transportation or State Road and Tollway Authority. Mediation may be requested by any of the aforementioned parties by submitting a written request to the chairperson of the council. The decision of the council shall be binding upon the parties unless an appeal is taken pursuant to the procedures of Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act.' The decision of the council shall be a contested case for purposes of such chapter." "(h) Nothing in this Code section shall apply to projects developed under the provisions of Code Section 32-2-80 or

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32-2-81." ยง3. This Act shall become effective on July 1, 2011, provided, however, that if deemed necessary by the Attorney General, the director of the Environmental Protection Division of the Department of Natural Resources shall initiate a program revision pursuant to the procedures of 40 C.F.R. Section 123.62, submitting the provisions of Section 1 of this Act to the federal Environmental Protection Agency as a revision of the state program under the National Pollutant Discharge Elimination System permit program. If such program revision is not approved pursuant to 40 C.F.R. Section 123.62(3), then Section 1 of this Act shall stand repealed on the date of such disapproval.

ยง4. All laws and parts of laws in conflict with this Act are repealed. SPONSOR'S RATIONALE

Representative Bubber Epps, Secretary of the House Transportation Committee, introduced House Bill 131 to put an end to fining the Georgia Department of Transportation ("the GDOT") and other state agencies for water pollution, while still protecting waterways. 7 State lawmakers pushing the Bill believe exempting the GDOT from fines paid to the Environmental Protection Division ("the EPD") would free up money for more road projects in Georgia.8 Although the EPD issues fines for erosion and sedimentation violations as a local authority, the EPD does not receive the money from these fines. 9 The EPD remits the money collected from the GDOT to 7. April Hunt, Bill Exempts DOT from Pollution Fines, ATLANTA J.9, 2011), http://www.ajc.com/news/georgia--politicsCONST. (Feb. [hereinafter Bill Exempts elections/bill-exempts-dot-from-833008.htnl DOT]. 8. Id. 9. E-mail from Stephanie Carter, Senior Policy Advisor, Ga. Dep't Transp., to Jenna Melton, Staff Member, John Marshall Law Journal (Aug. 26, 2011, 9:26 AM) [hereinafter Carter E-mail, Aug. 26, 9:26 AM] (on file

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the State Treasury's general fund.' 0 In order to pay the EPD issued fines, the GDOT must use revenue from fuel tax, which is "constitutionally dedicated to road and bridge construction."" Representative Epps believes these fines are "punitive damages that move money from one state agency to another."' 2 The GDOT equates this to moving money from the right pocket to the left pocket.' 3 Sponsors of the Bill believe this practice does not benefit Georgia.14 Representative Epps's proposal will put an end to the practice of moving money from one state agency to another.' 5 According to the EPD's records, the GDOT accumulated $104,000 in fines for six project sites in 2010.16 Contrary to speculation,17 the GDOT says it is not the State's largest polluter.18 Because "the GDOT's maintenance and contracted construction projects account for the largest regulated land disturbing activities of the state," significant resources are required in order to meet federal agency regulations that minimize impacts on the environment.' The GDOT must also comply with state regulations similar to these federal 20 se The Bill seeks to reduce those state and federal regulations. regulations that overlap. 2 1 Additionally, Representative Epps is concerned private contractors, working simultaneously on GDOT projects and private projects, could suffer inconsistent penalties.22 There is a disparity in the amount of fines assessed with the John Marshall Law Journal). 10. Id.

11. Telephone Interview with Rep. Bubber Epps, House Dist. 140 (Sept. 1, 2011) [hereinafter Epps Interview]; April Hunt, Proposalto Exempt State DOT Advances, ATLANTA J.-CONST., Feb. 25, 2011, at B3 [hereinafter Proposalto Exempt]. 12. Bill Exempts DOT, supra note 7; Epps Interview, supra note 11.

13. Carter E-mail, Aug. 26, 9:26 AM, supra note 9. 14. Epps Interview, supra note 11. 15. Bill Exempts DOT, supra note 7. 16. Id. 17. E.g., Bill Exempts DOT, supra note 7; Proposalto Exempt, supra note

11. 18. Carter E-mail, Aug. 26, 9:26 AM, supra note 9. 19. Id. 20. Id. 2 1. Id.

22. E-mail from Stephanie Carter, Senior Policy Advisor, Ga. Dep't

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under the EPD and the amount assessed by local governments, looking to ensure the same degree of protection of natural resources. 23 The EPD's fines often far exceed the minimum federal amount of $5,000 per day for each violation. 24 Although the Bill prevents fining state agencies with civil penalties, the Bill does not eliminate the EPD's enforcement of compliance with conservation and natural resource 2 5 regulations. The Bill never sought to remove the EPD's ability to protect the environment or remove the EPD's "punitive strong arm." 26 When there is a dispute relating to the EPD's enforcement actions, supporters of the Bill believe the dispute can be relieved through mediation provided by the Bill.2 7 Sponsors of the Bill intended for the amendment to section 12-5-52 of the Official Code of Georgia to address The private contractors' concerns regarding the Bill. 2 8 amendment implements a system where the Erosion and Sediment Control Overview Council will not only mediate disputes regarding issuance of orders or levying fines on state agencies, but also mediate disputes regarding fines issued to those of contractors fulfilling state agency projects.29 Additionally, the amendment would provide private contractors who fulfill contracts with state agencies thirty days to cure violations before incurring a fine. 30 Transp., to Jenna Melton, Staff Member, John Marshall Law Journal (Sept. 15, 2011, 12:11 PM) [hereinafter Carter E-mail, Sept. 15] (on file with the John Marshall Law Journal); Epps Interview, supra note 11. Without the proposed House Bill 131 amendment to O.C.G.A. ยง 12-5-52, local fines issued on a private project can be around $2,500 per violation per day and fines issued on a GDOT project, for the same infraction, can be as high as $50,000 per violation per day. Id. 23. Carter E-mail, Sept. 15, supra note 22. 24. Id.

25. E-mail from Stephanie Carter, Senior Policy Advisor, Ga. Dept. of Transp., to Jenna Melton, Staff Member, John Marshall Law Journal (Aug. 26, 2011, 8:58 AM) [hereinafter Carter E-mail Aug. 26, 8:58 AM] (on file with the John Marshall Law Journal); Epps Interview, supra note 11. 26. Epps Interview, supra note 11. 27. Proposalto Exempt, supra note 11. 28. Id.; Ga. H.B. 131, supra note 1. 29. Ga. H.B. 131, supra note 1. 30. Proposal to Exempt, supra note 11; Carter E-mail, Sept. 15, supra note 22.

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OPPOSITION'S RATIONALE

Some lawmakers are in opposition to House Bill 131 because the Bill would threaten federal intervention with local issues. 3 1 An exemption of fines for state agencies could violate agreements between federal and state agencies, as these agreements allow state agencies to oversee compliance of the Clean Water Act. 32 This would lead to federal intervention, and opponents believe Georgians do not want federal agencies to handle local issues.3 3 Environmental groups and other organizations are concerned pollution problems will worsen if state agencies are exempted from penalties. 34 Jack Dozier, Executive Director of the Georgia Association of Water Professionals, believes the purpose of the penalties is to change business practices, not to collect money. Additionally, Executive Director Dozier said, "the State should be setting an examgle, not trying to find Those in opposition loopholes in environmental legislation." to the Bill believe it is difficult to prevent negative effects on the environment when sustaining nine million people, but state agencies should not cross thresholds meant to protect the Additionally, EPD Director Allen Barnes environment. 37 believes that although the EPD inspectors will continue to issue fines, the thirty day window to fix sedimentation and erosion violation before incurring fines is not appropriate.3 8 31. Bill Exempts DOT, supra note 7. "[S]ome House leaders argue the

change removes the teeth of environmental regulations and runs afoul of federal law, which would lead to federal intervention." Id. 32. Id.

33. Id. Violations of agreements between state and federal agencies would cause "the federal Environmental Protection Agency to take over the permitting process for" moving dirt in Georgia. Id. 34. Id. According to Mark Woodall, Chairman of the Sierra Club of Georgia, "Penalties exist as deterrents, not moneymakers." Id. 35. Interview with Jack Dozier, Exec. Dir., Ga. Ass'n of Water Prof'ls, in Marietta, Ga. (August 24, 2011) [hereinafter Dozier Interview]. 36. Id. 37. Id.

38. Maggie Environmental

Lee, Road Builders en Route to Fines, MACON.COM (Mar.

Lowest Possible 10, 2011),

http://www.macon.com/2011/03/10/1481392/road-builders-en-route-to-

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Some House leaders have concerns with allowing state agencies to receive exemptions when businesses and individuals within the same industry are unable to receive exemptions. 3 9 Private contractors for state agency projects are also concerned because exemptions could make them solely responsible for paying fines when problems arise.4 0 State agencies and private highway contractors are both parties to the permit process. 41 Because private highway contractors are implementing the plans the State put into design, contractors believe both state agencies and contractors should be held accountable. 4 2 IMPLICATIONS IN GEORGIA

According to Stephanie Carter, Senior Policy Advisor at the GDOT, the taxpayers would benefit from House Bill 131 because the GDOT would deliver projects on time and under budget.4 3 Representative Epps believes if the GDOT "[does not] have to pay fines, [the GDOT] can put that money into road projects," that is, free up funding for the GDOT.4 4 Representative Epps has stated that the Bill proposes a $5,000 penalty cap, lowered from $50,000, which complies with the federal Clean Water Act and will not result in more sedimentthe State's largest water pollutant. 4 5 Additionally, Representative Epps believes the Bill will give the system a sense of equality and balance by removing the "diversity of enforcement codes." 46 Without enforcement by state agencies, opponents of the Bill lowest.html [hereinafter Road Builders]. 39. Bill Exempts DOT, supra note 7; Proposalto Exempt, supra note 11. 40. Proposalto Exempt, supra note 11. 41. Id. 42. Id. 43. Carter E-mail Aug. 26, 8:58 AM, supra note 25. 44. April Hunt, Bill Calls for Letting DOT off Hook for Environmental 2011), 4, (Feb. J.-CONST. ATLANTA Fines, http://www.ajc.com/news/georgia-politics-elections/bill-calls-for-letting828114.html. 45. Road Builders, supra note 38. 46. Epps Interview, supra note 11. The imbalance of the system in place is the result of issuing different fines for the same erosion and sediment violations. Id. Removing this imbalance will result in "equalization of the fining scheme." Id.

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fear federal agencies would step in to enforce the Clean Water Act because the EPA delegated the permittinp and enforcement of the Clean Water Act to Georgia's EPD. If state agencies fail to enforce the Clean Water Act as delegated, any fines collected for violations would go to federal agencies.48 Moreover, environmental groups argue exemptions will cause the regulations to become ineffective. 49 The GDOT and other state agencies will pay less attention to regulations, causing reservoirs to become more expensive to treat and inflict damage on the biological community due to soil entering waterways during road construction projects. 5 0 These effects will cause the water quality to worsen and cause pollution problems "downstream."5 1 LEGISLATIVE GENEALOGY

House Bill 131 was introduced on February 1, 2011.52 The first reading of the Bill occurred on February 2, 2011 and was assigned to the House Committee on Transportation ("the Committee). 53 The second reading took place on February 3, 2011.54 On March 10, 2011, the Committee reported favorably on the Bill.5 5 During the Committee meeting, the Committee's Chairman added an amendment to the Bill concerning changes to inter-basin transfers, which was originally part of House Bill 132.56 Subsequently, House Bill 131 was withdrawn due to disagreements regarding the added language of House Bill

47. Proposalto Exempt, supra note 11. 48. Id.

49. Id. 50. Dozier Interview, supra note 35. "Dirt is the biggest polluter of water in the state, because mud flowing into creeks, waters and lakes can literally choke the life out of the water." Bill Exempts DOT, supra note 7. 51. April Hunt, Interbasin Transfer Becomes Part of DOT Fine-reducing Bill, ATLANTA J.-CONST. (Mar. 9, 2011), http://www.ajc.com/news/georgia-

politics-elections/interbasin-transfer-becomes-part-866788.html. 52. H.B. 131 Status Sheet, supra note 6. 53. 54. 55. 56.

Id. Id. Id. Carter E-mail, Sept. 15, supra note 22.

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132." The Committee reported favorably on House Bill 131, as substituted, on March 11, 2011.58 Because the Bill was late getting out of the Committee, the Bill did not make it to the House floor and was withdrawn and recommitted to the House Committee on Transportation on April 14, 2011.59 Prepared by: Jenna L. Melton

57. Id.

58. H.B. 131 Status Sheet, supra note 6. 59. Carter E-mail, Sept. 15, supra note 22; H.B. 131 Status Sheet, supra note 6.

HOUSE BILL 2611: DISCLOSURE; CERTAIN PUBLIC RECORDS EXEMPT

Amending O.C.G.A. 50-18-72: "Georgia's Open Records" Act

First Signature: Representative Alex Atwood (179th) Co-Sponsors: Joe Wilkinson (52nd), Edward Lindsey (54th), Sean Jerguson (22nd), Buzz Brockway (101st), and Randy Nix (69th) Summary: House Bill 261 amends O.C.G.A. 50-18-72 ("Georgia's Open Records Act") relating to when public disclosure of public records is not required and disclosure of exempting legal authority, so as to provide an exemption for those public records relating to government operated security training programs, including the names and addresses of those 2 participating in those programs. Status: House Bill 261 was signed by Governor Nathan Deal on May 12, 2011, as the 2011 Georgia Laws Act 199, which became effective on July 1, 2011.3 TEXT OF HOUSE BILL 261

ยง1. Code Section 50-18-72 of the Official Code of Georgia Annotated, relating to when public disclosure of public records is not required and disclosure of exempting legal authority, is 1. H.B. 261, 151st Gen. Assemb., 1st Reg. Sess. (Ga. 2011), available at http://www.legis.ga.gov/Legislation/20112012/115057.pdf [hereinafter Ga. H.B. 261]. 2. Id. 3. 2011-2012 Regular Session-HB 261, Disclosure;certainpublic records exempt; provide, GA. GEN. ASSEMB.,

http://www.legis.ga.gov/Legislation/en-US/display.aspx?Legislation=32775 (last visited Dec. 15, 2011) [hereinafter H.B. 261 Status Sheet].

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amended by revising subparagraph (A) of paragraph (15) of subsection (a) as follows: "(A) Records, the disclosure of which would compromise security against sabotage or criminal or terrorist acts and the nondisclosure of which is necessary for the protection of life, safety, or public property, which shall be limited to the following: (i) Security plans and vulnerability assessments for any public utility, technology infrastructure, building, facility, function, or activity in effect at the time of the request for disclosure or pertaining to a plan or assessment in effect at such time; (ii) Any plan for protection against terrorist or other attacks, which plan depends for its effectiveness in whole or in part upon a lack of general public knowledge of its details; (iii) Any document relating to the existence, nature, location, or function of security devices designed to protect against terrorist or other attacks, which devices depend for their effectiveness in whole or in part upon a lack of general public knowledge; and (iv) Any plan, blueprint, or other material which if made public could compromise security against sabotage, criminal, or terroristic actsnd (v) Records of any government sponsored programs concerning training relative to governmental security measures which would identify persons being trained or instructors or would reveal information described in divisions (i) through (iv) of this subparagraph."

ยง2. All laws and parts of laws in conflict with this Act are repealed. SPONSOR'S RATIONALE

House Bill 261 was authored by Representative Alex Atwood of the 179th district.4 The Bill amends "Georgia's Open 4. Telephone Interview with Rep. Edward Lindsey, H. Dist. 54 (Aug. 30,

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Records Act" to exclude from disclosure the records of any government sponsored programs concerning training relative to governmental security measures which would identify instructors, persons being trained, or would reveal information described in the previous version of the Act.5 In crafting the Bill, Representative Atwood worked with Attorney General Sam Olens, the Georgia Press Association, and the First Amendment Foundation. 6 Initially, Representative Atwood introduced a very broad version of the Bill, which received a fair amount of opposition, including opposition from the First However, prior to any media Amendment Foundation. releases, Representative Atwood had already prepared a committee substitute to drastically narrow the language of the Bill to make sure that the public would still be able to receive any information it wanted without disclosing the identities of students and instructors. Representative Atwood's focus in crafting the Bill was to keep the wording as narrow as possible so that it would not exclude more information than necessary from the Freedom to Information Act.9 As a former judge in Glynn County, Georgia, a federal Special Agent, and Chief of Legal Training at the Federal Law Enforcement Training Center in Brunswick, Georgia, Representative Atwood became concerned when he learned that there had been requests for the names and addresses of those that had trained with the Georgia International Law Enforcement Exchange ("GILEE") program. 10 Because of the way the Georgia Open Records Act was structured prior to the Bill, the requested information, including the names and addresses of those individuals participating and teaching in the GILEE program, would be available to the public upon

2011) [hereinafter Rep. Lindsey Interview]. 5. Id.

Bill Helps Police with Anti-Terrorism Training, AUGUSTA CHRON.,

Mar. 15, 2011, available at http://chronicle.augusta.com/news/metro/201103-15/across-region [hereinafter Bill Helps Police]. 7. Telephone Interview with Rep. Alex Atwood, H. Dist. 179 (Sept. 2, 2011) [hereinafter Rep. Atwood Interview]. 8. Id.

9. Rep. Lindsey Interview, supra note 4. 10. Rep. Atwood Interview, supra note 7.

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request." Representative Atwood became concerned because GILEE is an award winning program at Georgia State University that works with local, state, and federal law enforcement agencies to train officers recommended by its 12 Representative programs in counter terrorism tactics. Atwood's primary concern was that certain groups existed that wanted to threaten the program's instructors, participants, and their families.13 There were also threats made, by some foreign governments that send police officers for training in the United States, to withdraw their funding without the confidentiality provided by the Bill.14 Representative Atwood, a supporter of open records, proposed an initial version of the Bill to get the process started, but then worked diligently to craft the language of the Bill as narrowly as possible to avoid diminishing the rights of citizens to obtain information contained in government records.15 By narrowly crafting the Bill, Representative Atwood hoped to ensure the public would still be able to access information regarding other aspects of the program, such as funding and other non-exempt information, while protecting the identities of anyone training in the GILEE or similar programs in Georgia.16 Majority Whip Representative Edward Lindsey referred to the Bill as a "good, common sense bill," and stated that the Bill arose out of a concern that various organizations, for "nefarious reasons," would want to obtain the records of those individuals participating in various security schools.' 7 Initially, there was a federal concern for those training schools located in Israel, and this concern eventually expanded to the State of Georgia which operates both the GILEE program and a similar training program in Glynn County.1 People from all over the world, 11. Id. 12. Id 13. Id; Walter Jones, Bill Protecting Anti-Terrorism Trainers, Students Clears Senate Committee, AUGUSTA CHRON., March 22, 2011,

http://chronicle.augusta.com/latest-news/2011-03-22/bill-protecting-antiterrorism-trainers-students-clears-senate-committee. 14. Jones, supra note 13. 15. Rep. Atwood Interview, supra note 7. 16. Id. 17. Rep. Lindsey Interview, supranote 4. 18. Id.

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particularly Israel, travel to Glynn County to participate in the The concern was that teachers, training program.19 administrators, and students in GILEE and the Glynn County programs would find themselves targeted by terrorist organizations or individuals planning terrorist attacks. 2 0 Supporters of the Bill also wanted to prevent such organizations and individuals from being able to obtain the information As disseminated to participants in the program. 2 1 Representative Lindsey stated, "you don't want to tip off the bad guys." 22 Representative Nix, of the 69th district, furthered this sentiment by stating, "we don't need to tell potential terrorist[sl what our training programs are and who is being trained.",2 OPPOSITION'S RATIONALE

Representative Bobby Franklin, of the 43rd district, was the sole dissenting vote to the passage of House Bill 261. 24 Members of the public who stood in opposition to the Bill posted their fears on public internet forums and stated the Bill would "decrease the capacity for police accountability and transparency to the public." 2 5 Some detractors believed House Bill 261 was completely in opposition to Georgia's current public policy which allows the public access to government records and information regarding government programs. 19. Id. 20. Id. 21. Id. 22. Id. 23. E-mail from Rep. Randy Nix, H. Dist. 69, to Kristen Turner, Staff Member, John Marshall Law Journal (Aug. 22, 2011, 2:49 PM) (discussing his reason for supporting HB 261) (on file with the John Marshall Law Journal). 24. 2011-2012 Regular Session, [HB 261], House Vote #161 (PASSAGE), GA. GEN. ASSEMB. (Mar. 14, 2011), http://www.legis.ga.gov/Legislation/enRepresentative US/vote.aspx?VoteID=7962 [hereinafter House Vote]. Bobby Franklin was unavailable to comment on his opposition to the passage of House Bill 261. 25. Ctcentralinfo, Comment to The House Passed HB 261 - State of Georgia, RED STOMP FORUMS (Mar. 16, 2011, 11:05 PM), http://redstomp.org/forums/archive/index.php/t- 1159.html. 26. Id.

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A member of the Bill's opposition is Mr. Ayman Fadel, who is an organizer of the Central Savannah River Area Peace Alliance, a board member of the Fadel Educational Foundation, and writer of the blog Muslim Media Review.2 7 Mr. Fadel created a post on the Atlanta Independent Media Center's website, stating the public should be opposed to the exclusion of "government security measures" for the following reasons: 1. Much "counter terrorism" training is done by unqualified trainers and promotes bias. 2. "Counter-Terrorism" training may jeopardize other law enforcement priorities, and transparency will help the public evaluate whether there is a proper use of resources 3. There is potential for misuse of Federal, State, and Municipal sources of funding. 4. "Counter-terrorism" training focuses on political dissent, not security risk. 5. Open Records Requests are a tool to expose police misconduct regarding "counter-terrorism." 2 8 The post also stated that the Georgia First Amendment Foundation, an organization that Representative Atwood worked with in crafting the Bill, opposed the Bill.29 However, after working with Representative Atwood in narrowing the language of the Bill, the Georgia First Amendment Foundation withdrew its objections. 3 0 In one newspaper article, Mr. Fadel stated, "The Open Records Request law already allows agencies to refuse disclosure of information such as names of informants and details of ongoing investigations. Continuing to require release of names of trainers and trainees will not jeopardize such information[.]" 3 1 Further, Mr. Fadel stated that the "real purpose of [House Bill] 261 ... is namely to keep public money

flowing into ideological security bureaucracies and contractors

27. Jones, supra note 13. 28. Ayman Fadel, Why Georgians Should Oppose HB 261, ATLANTA PM), 5:09 2011, 22, (March CTR. MEDIA INDEP. http://atlanta.indymedia.org/local/why-georgians-should-oppose-hb- 2 6 1. 29. Id. 30. Rep. Atwood Interview, supra note 7. 31. Id.; Jones, supra note 13.

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without public oversight." 32 IMPLICATIONS IN GEORGIA

House Bill 261 amends "Georgia's Open Records Act" to allow for an exclusion of those governmental records that "if released could compromise security for the national, state, or local governments or its citizens." 33 The Bill also allows for the protection of those Israeli citizens that come to the United States to train in GILEE or the training program based in Glynn County, Georgia. 34 The Bill only added one sentence to the existing legislation, allowing for the exemption of "records of any government sponsored programs concerning training relative to governmental security measures which would identify persons being trained or instructors described" in the prior legislation.3 5 The public is still able to access the same information it could prior to the enactment of the Bill, such as Now, the only the costs of program implementation. 36 information restricted from the public is the names of those training and instructing in governmental security programs like

GILEE. 37 LEGISLATIVE GENEALOGY

House Bill 261 was introduced to the Georgia House of Representatives in the House Hopper by Representative Alex Atwood on February 15, 2011.38 The Bill was referred to the House First Readers on February 16, 2011.39 The Bill was introduced to the House Second Readers on February 17, House Bill 261 was sent to the House of 2011.40 32. E-mail from Ayman Fadel, to Kristen Turner, Staff Member, John Marshall Law Journal (Sept, 2, 2011, 7:04 AM) (on file with the John Marshall Law Journal). 33. Rep. Lindsey Interview, supra note 4. 34. Id. 35. Ga. H.B. 261, supra note 1. 36. Rep. Atwood Interview, supra note 7. 37. Id. 38. H.B. 261 Status Sheet, supra note 3. 39. Id. 40. Id.

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Representatives' Judiciary Committee. 4 1 While being reviewed, House Bill 261 had overwhelming support with the focus remaining on narrowing the language to allow the utmost information to remain open to the public. 42 The Judiciary Committee favorably reported on March 4, 2011.43 On March 14, 2011, the Bill went to the House Third Readers. 44 On the same day, House Bill 261 was passed with a floor vote of 1571.45 The Bill was passed under a modified structured rule, 46

which was necessary due to the legislators' efforts to try to draft the Bill with language that was as narrow as possible. 47 It is difficult to control the narrowness of the language of the Bill when amendments are being seen for the first time on the 48 floor .

After passing in the House of Representatives, the Bill was read and referred by the Georgia Senate on March 16, 2011.49 The Bill was referred to the Senate Public Safety Committee, which favorably reported on March 22, 2011.50 The Senate read the Bill for the second time on March 23, 2011, and a third time on March 30, 2011.51 The Senate passed the Bill on March 30, 2011, unanimously with all forty seven reporting senators voting yea without any changes to the language proposed and used by the Georgia House of Representatives. The House of Representatives sent the Bill to Governor Nathan Deal on April 19, 201 1.53 The Bill was signed by Governor Deal on May 12, 2011, and became the 2011 Georgia 41. Id. 42. Rep. Lindsey Interview, supranote 4. 43. H.B. 261 Status Sheet, supra note 3. 44. Id. 45. Id. 46. Rep. Lindsey Interview, supra note 4. A modified structured rule means that any floor amendments had to be first proposed in rules committee and the rules committee then had to approve any amendments that went to the floor. Id. 47. Id. 48. Id. 49. H.B. 261 Status Sheet, supra note 3. 50. Id. 5 1. Id. 52. Id.; Rep. Lindsey Interview, supranote 4. 53. H.B. 261 Status Sheet, supranote 3.

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Laws Act 199.54 The 2011 Georgia Laws Act 199 became effective on July 1, 201 1. Prepared by: Kristen Turner

54. Id. 55. Id.

HOUSE BILL 4021: GEORGIA CRIME INFORMATION CENTER; CRIMINAL RECORDS

Amending O.C.G.A. §§ 35-3-37, §5-6-34, § 15-11-83 First Signature: Representative Mark Hatfield (117th) Co-Sponsors: Representative Lindsay Edward (54th), Representative Stephanie Benfield (85th), Representative Quincy Murphy (120th), Representative Jay Neal (1st) and Representative Kathy Ashe (5 6 th) Summary: House Bill 402 seeks to amend Article 2 of Chapter 3 of Title 35 of the Official Code of Georgia Annotated, relating to the Georgia Crime Information Center, changing the provisions of disclosure and dissemination of a person's criminal record to non-law enforcement.2 The Bill seeks to change provisions relating to inspection, purging, modifying, or supplementing criminal records by providing time frames and procedure for which these actions must be taken. 3 The Bill provides that individuals who have not been convicted of a crime may have their records restricted, pursuant to exceptions. Finally, the Bill seeks to amend Code Section 5-6-34 of the Official Code of Georgia Annotated, relating to judgments and rulings deemed directly appealable. 5 The Bill also seeks to amend Code Section 1511-83 of the Official Code of Georgia Annotated, relating to when a child may be fingerprinted or photographed and the confidentiality of information. 6

1. H.B. 402, 151st Gen. Assemb., Spec. Sess. (Ga. 2011), available at http://www.legis.ga.gov/Legislation/20112012/113373.pdf [hereinafter Ga. H.B. 402]. 2. Id. 3. Id. 4. Id. 5. Id. 6. Id.

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Status: House Judiciary Non-Civil Committee on August 17,

201 17 TEXT OF HOUSE BILL 402

ยง 1. Article 2 of Chapter 3 of Title 35 of the Official Code of

Georgia Annotated, relating to the Georgia Crime Information Center, is amended by revising paragraph (1) of subsection (a) of Code Section 35-3-34, relating to disclosure and dissemination of criminal records to private persons and businesses, by deleting "and" at the end of subparagraph (B), by replacing "or" with "and" at the end of subparagraph (C), and by adding a new subparagraph to read as follows: "(D) The center shall not provide records of arrests, charges, or dispositions when access has been restricted pursuant to paragraph (1) or (2) of subsection (h) of Code Section 35-3-37; or"

ยง2. Said article is further amended by revising Code Section 35-337, relating to inspection, purging, modifying, or supplementing of criminal records, as follows: "35-3-37.

(a) Nothing in this atile shall be construed so as to authorize Cther legal entity to any per-son, agency, Sess ration , or invade the privacy of an iize s defined by the General Assembly or the couts other than to the extent proevided in this aticle. (b) The center shall make a person's criminal reS available for inspection by suceh person or his or her attorney upn written applicatin to the en ter. Should the person or his or her atoney cntest the aeuracy of any pSioaun of the rerds, it shall be mandatory upon the center to mk available to the person or suceh person's attorney a copy of the 7. 2011-2012 Regular Session-HR 402, Georgia Crime Information Center; criminal records; change provisions, GA. GEN. AsSEMB., http://www. legis.ga.gov/Legislation/en-US/display.aspx?Legislation=33 2 3 1 (last visited Dec. 15, 2011) [hereinafter H.B. 402 Status Sheet].

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contested record upon written application identifying the poton of the reeord contested and showing the reason for the contest ofaccuracy. Forms, procedures, identification, and other related aspects pe--nen toacss to reeords may-be pfesefibed by th- ------(e) if an individual belie-ves hi s or her eriminal reerdEs to be iarate or incomplete, he or she may requtest the original such changes. Shouild the agency decline to act or should h individuial believe the agency's decision to be unsatisfactory, the individual or his or her attorney may, within 30 days ot such decision, enter: an appeal to the superior court of the county of his or her residence or to the court in the count-y where the agnc exits, with notice to the agency, to acqui're an orueF by the couri LhflU the stitJCCL rnfurmatiuo expunged, modified, or supplemented by the agency ol rerd. The cout shall conduct a de novo hearing and may order such relief as it finds to be required by law. Sc appeals shall be entered in the same manner as appeals are entered fromn the probate court, except that the appellantshl not be required to post bond or pay the costs in advance. II judge at the first termn or in chamibers. A notice sent by reitered or ertified mail or statuor oveC;iht deliver~y shl--l be sufficient sef-iee on the agency having custody or control of disputed record that such appeal has been entered. Should the record in questien be fouind to be iniaccurate, incomplete, or misleading as set forth in paragraph (3) oe subsection (d) of this Code section, the court shall order it to be approepriately expunged, modified, or supplemented by-an explanatornoai. Each agency or individual in the state withcustdypossession, or control of any such record shall promtly caus each and every copy thereof in his or e custody, possin or control to be altered in accordance with the court's order.- Notification of each such deletion, amendment, and supplementary ntation shall be promwptly disseminated to any individuals oraeceincluding the center, to which the r eords in questien have been comuncaed,as well as to th.e individual whose r-eords have been ordered so altered. (d)( 1) An individuial who was-

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(A) Affested for an offense utnder the laws of this state bt subsequent to such afrest is released by the afresting agnc withetut such offense being refefred to the prosecuiting aft orey for prosecution; or (B) After suceh offense referred to the proper prosecuiting attorney, and the proesecuiting attorney dismisses the charges without seeking an indictment or filing a aeeusatien may request the original agency in writing to expungeth records of such afrest, incluiding any, fingerprints Or photographs of the individual taken in conjunction wt suceh fogm~ as the center shall prescribe. Reasonable fe shall be charged by the original agency and the center fo the aetual costs of the prging of such rerds, provide that suceh fees shal not exxeed $50.00. (2) Upon receipt of such written request the agency shall provide a copy of the request to the proper prosecting attorey. Upon receipt of a copy of the request to expunge crimninal rerd, the proesecuiting attorney shall proemptly review the request to deternmine if it meets the criteriafo if the request meets those criteria, the prosecuting atorey shall review the reords of the arrest to detenmine if any ot the material contained ther~ein must be preserved in ordert proetect the eonstitioinal rights of an accuised under Brady (3) An individual has the right to have his or her rerd ol suceh arrest expunged, including any finger-prints or. photographs of the individual taken in conjunction wt such arrest, if the prosctn attorney detennines thatth felownefier-a-ee sae(A) The charge was dismissed unfder the conditions set u fethi prgrah (1 ofti against th (B) No other criminal charges aepnig individual; and (C) The individual has not been previously coenvicted of the same or similar off-ense under the laws of this state, the United States, or any other state within the last five years, excluiding any period of incarceration. (4) The agency shall expunge the rerd by destroyingth

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finger~print cards, photographs, and docuiments relating exclusively to such person. Any mfaterial whieh cannot b physically destroyed or which the prosecuiting attorney determinies must be prcser~'ed uinder Brady v. M~arylan shall be restricted by the agency and shall not be subjectt disclosurfe to any person except by direction ofth prosecuiting attorney or as ordered by a courft of rerd o this-state. (5)- it shall be the duty of the agency to notify promptly the center of any rerds which are exipunged pursuant to thi subsection. Upon receipt of notice from an agency that-a record has been expunged, the center shall, within -a such person relating to such charge. Records for whic access is restricted pursuant to this subsection shall b writenappication for official judicial law eforcement orf criminal invetgtv purposes. individual may file an action in the suero cut where th agency is located as pro'vided in CoAde Section 50 13 19A decision of the agency shall be uipheld only if it i detefinined by clear and convincing evidence that the individual did not meet the criteria set forth in paragraph paragraph (7) of this sutb stiein. Teot in its discretion may award reasonable cout costs incluiding attorney's fees tthe individual if he or she prevails in the appellate process. Any suceh action shall be sefvedl uipon the agency , the center, the prosecting afttorney having jurisdiction oer the offense sought to be expuinged, and the Attorey General who may becoe paie to the actiont. (7) After the filing of -an inidictment or an accuisation,--a record shall not be expunged if the prosecuiting attorney shows that the charges were nolle pressed, dead docketed, or otherwise dismissed becauise: (A) Of a plea agreement resuilting in a conviction fogr an offense arising out of the same uinderlying transaction or occurrence as the conviction; (B) The govermnent was barred from introducing

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ineluding but not limited to the granit of a motion te suppress or motien in limine; (C) A material witness refused to testify or was unavailable to testify against the individual uinless suceh witness refused to te stify based on his or her statutory fight to do so-, (D) The individuial was incarerfated on other crimina charges and the proesecutin afIoIney elected noet to proesecuite for reasons of judicial economy; (E) The individual successfully completed a pretria did not diversion program, the ternms of which

specifically prov'ide for expungement of the affest rerd-, (F) The conduct which resulted in the arrfest of the individual was part of a pattern of criminal activity which was prosecuited in another cour of this state, the United States, another state, or foreign nation; or (G) The individual had diplomatic, consuilar, or similar immunity or inviolability froem affest or proesecutioni. (8) if the proesecutinig attorney having jurisdiction detenmines that the records should not be expunged because the criteria set forth in paragraph (3) or subparagraphs (A) thfouagh (G) of paragraph (7) of this subsection were not met,an the agency or enfter fails to follow the prosecuting attorney's recommendation, the proesecuiting attorney having jurfisdiction over the offense sought to be expuniged or the Attorney General may appeal a decision byth agency or center to expunge acriinal histoe aspoied in Gode Sectin 50 1.3 19Q.(9) An individual who has been indicted or charged by accusation that was suibsequtently expungemen as proided by paragaphs (1) through (3)--of this suibsection; provided, however, that if the pr-osecuitnfg attorney objects to the expuingement request within 60 days after receivn a copy of said request from the agency, th agencey shall declin.e to expunge and the individual shall have the right to appeal as proevided by paragraph (6) ofti (10) Nothing in this subsection shall be eeonstfued as requiring the destrFuction of incident reports or other recod

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that a erime was committed of reported to law enforceement. Further, nothing in this subsection shall be construed t apply to cutstodial records maintained by couinty or municipal jail or detention eenters. It shall be the duty-of the agency to take such action as may be reasonable to prevent disclosuire of informnation to the public which would identify such person whese reerds were expunged. (e) Agencies, incluiding the center, at which criminal offender records are sought to be inspected may prescribe reason-able houirs and places of inpcinand may impose suceh additional proceedures, fees no oexeeed $3.00, or restrictions including fingerprinting as are reasonably necessary to assure the rerds' securfity, to verify the identities of those iwho seek to inspect them, and to maintain an orderly and efficint mechanism for inspectiont of rerds. (f) The proevisions of Chapter 13 of Title 50, the 'Geri Administrative Proceedure Act,' shall not apply topoceings

under this Code section. prohibited fromn purchasing or possessing a handg-n pursuant to Pat 5 of Article 4 of Chapter 11 of Title 16 and if the prohibition is the result of suceh person's being involuintarily hospitalized within the immediately preceding five years, upon suceh person or his or her attorney making an application to inspect his or her rerds, the center shall proevideth rerd of involuntary hospitalization and also informth Person er atternev of his or her riaht to a hearing before the judge of the probae court or supro cort relative to suceh person's eligibility to poss otrnprt a ha-ndgun. (a) As used in this Code section, the term 'entity' means the arresting law enforcement agency, other law enforcement agency, including county and municipal jails and detention centers, or clerk of court's office. (b) Nothing in this article shall be construed so as to authorize any person, agency, corporation, or other legal entity of this state to invade the privacy of any citizen as defined by the General Assembly or as defined by the courts other than to the extent provided in this article. (c) The center shall make an individual's criminal history record information available for review by such individual or his or her attorney upon written application to the center. ---

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Forms, procedures, identification, and other related aspects pertinent to access to criminal history record information may be prescribed by the center. (d) If an individual believes his or her criminal history record information to be inaccurate, incomplete, or misleading, he or she may request a criminal history record information inspection at the center or entity having custody or control of the criminal history record information. The center and any entity at which criminal history record information is sought to be inspected may prescribe reasonable hours and places of inspection and may impose such additional procedures or restrictions, including fingerprinting, as are reasonably necessary to assure the security of the criminal history record information, to verify the identities of those who seek to inspect such information, and to maintain an orderly and efficient mechanism for inspection of criminal history record information. The fee for inspection of criminal history record information shall not exceed $15.00, which shall not include the cost of the fingerprinting. (e) If the criminal history record information is believed to be inaccurate, incomplete, or misleading, the individual may request the entity having custody or control of the challenged information to modify, correct, supplement, amend, or seal the information and to notify the center of such changes within 60 days. In the case of county and municipal jails and detention centers, such notice to the center shall not be required. If the entity declines to act within 60 days of such request or if the individual believes the entity's decision to be unsatisfactory, within 30 days of the end of the 60 day period or of the issuance of the unsatisfactory decision, whichever occurs last, the individual shall have the right to appeal to the superior court of the county where the entity is located. (f) An appeal pursuant to subsection (e) of this Code section shall be to acquire an order by the court that the subject information be modified, corrected, supplemented, amended, or sealed by the entity with custody of such information. Such appeals shall be entered in the same manner as appeals are entered from the probate court, except that the appellant shall not be required to post bond or pay the costs in advance. Notice of the appeal shall be provided to the entity. A notice sent by registered or certified mail or statutory overnight delivery shall be sufficient service on the entity having

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custody or control of the disputed criminal history record information. The court shall conduct a de novo review and shall, if requested by a party, hold a hearing within 90 days of the filing of the appeal; provided, however, that such time requirement may be waived if agreed upon by both parties. If the appellant requests, the appeal may be heard by the judge in chambers. The proceedings shall be recorded at the request of the appellant. (g) The court shall file a decision within 60 days of the hearing should the court find by a preponderance of the evidence that the criminal history record information in question is inaccurate, incomplete, or misleading and the court shall order such information to be appropriately modified, corrected, supplemented, amended, or sealed as the court deems appropriate. Any entity with custody, possession, or control of any such criminal history record information shall cause each and every copy thereof in its custody, possession, or control to be altered in accordance with the court's order within 60 days of the entry of the order. To the extent that the entity has previously disseminated the inaccurate, incomplete, or misleading criminal history record information, and upon written request by the individual, or his or her designee, whose criminal history record information is at issue, notification of each modification, correction, supplement, amendment, or sealing shall be disseminated to any individuals or agencies, including the center, to which the information in question has been communicated, as well as to the individual whose information has been ordered so altered within 60 days of the court order. If the court declines to modify, correct, supplement, amend, or seal an individual's criminal history record information or if the court's order is contrary to the desires of the entity or prosecuting attorney, any party may file an appeal pursuant to Code Section 5-6-34. The ruling of the court shall not be reversed absent a showing of an abuse of discretion. (h) The center shall restrict access to an individual's criminal history record information, including any fingerprints or photographs of the individual taken in conjunction with the arrest, for the following types of dispositions: (1) Prior to indictment or accusation: (A) The case was never referred for further prosecution to the prosecuting attorney by the arresting law

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enforcement agency because either such agency closed the case without referring the case to the prosecuting attorney or a period of two years for misdemeanor offenses or four years for felony offenses has elapsed from the date of arrest; or (B) The case was referred to the prosecuting attorney but was later dismissed; and (2) After indictment or accusation: (A) The case was dismissed or nolle prossed or the case was placed on the dead docket without the consent of the state and a period of 12 months has expired from the date of placing such case on the dead docket: (B) The individual was convicted of an offense and was sentenced to punishment other than the death penalty, but such conviction was vacated by the trial court or reversed by an appellate court, the decision of which has been made final, and the prosecuting attorney has not retried the case within 18 months of the final order of the court unless the prosecuting attorney obtains a court order, prior to the expiration of the 18 months, lengthening the time due to ongoing investigation or other appropriate circumstances; or (C) The grand jury returned two no bills. (i) After the filing of an indictment or accusation, a record shall not be restricted if: (1) The charges were nolle prossed, dead docketed, or otherwise dismissed because of a plea agreement resulting in a conviction for an offense arising out of the same underlying transaction or occurrence as the conviction, (2) The charges were tried and some but not all of the charges resulted in an acquittal; (3) The conduct which resulted in the arrest of the individual was part of a pattern of criminal activity which was prosecuted in another court of this state, the United States, another state, or a foreign nation; or (4) The individual had diplomatic, consular, or similar immunity or inviolability from arrest or prosecution. (j) An individual may petition the superior court for the jurisdiction in which the arrest for the offense occurred to restrict access to criminal history record information for such offense within four years of the arrest. Such court shall

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maintain jurisdiction over the case for this limited purpose and duration. Such petition shall be served on the arresting law enforcement agency. Such court shall hear evidence and may hold a hearing, if requested, and shall grant such relief as the court deems appropriate if extraordinary circumstances are shown to warrant restricted access to the criminal history record information; provided, however, that access shall not be restricted to criminal history record information of any arrest which resulted in a felony conviction of the petitioner. Such court shall file its order granting or denying the request for restricting information within 60 days of the hearing. Any party may file an appeal of an order entered pursuant to this subsection as provided in Code Section 5-6-34. (k)(1) The center shall notify the arresting law enforcement agency or other law enforcement agency of any criminal history record information, access to which has been restricted pursuant to this Code section, within 30 days of the date access to such information is restricted. Upon receipt of notice from the center that access to information has been restricted, the arresting law enforcement agency or other law enforcement agency shall, within 30 days, restrict access to all such information maintained by such arresting law enforcement agency or other law enforcement agency for such individual's offense. (2) An individual who has had criminal history record information restricted pursuant to this Code section may submit a written request to the appropriate county or municipal jail or detention center to have all records maintained by the appropriate county or municipal jail or detention center restricted. Within 30 days of such request, the appropriate county or municipal jail or detention center shall restrict access to all such information maintained by such appropriate county or municipal jail or detention center for such individual's offense. (3) As to all arrests occurring subsequent to the effective date of this Code section, a clerk of court shall restrict access to an individual's criminal history record information if such criminal history record information is required to be restricted pursuant to this Code section. (4) As to arrests occurring prior to the effective date of this Code section, an individual who has had criminal history record information restricted pursuant to this Code section

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may submit a written request to a clerk of court to have all records maintained by such clerk of court restricted. Within 60 days of such request, the clerk of court shall restrict access to all such information maintained by such clerk of court for such individual's offense. (5) Information for which access is restricted pursuant to this subsection shall be made available only to criminal justice officials for official judicial law enforcement or criminal investigative purposes. (1)If criminal history record information is restricted pursuant to this Code section and if an entity declines to restrict access to such information, the individual may file an action in the superior court where the entity is located as provided in Code Section 50-13-19. A decision of the entity shall be upheld only if it is determined by clear and convincing evidence that the individual did not meet the criteria set forth in paragraph (1) or (2) of subsection (h) of this Code section. Any such action shall be served upon the entity, the center, the prosecuting attorney having jurisdiction over the offense sought to be restricted, and the Attorney General who may become parties to the action. (m) It shall be the duty of the entity to take such action as may be reasonable to prevent disclosure of information to the public which would identify any individual whose criminal history record information is restricted. (n) If the center has notified a firearms dealer that an individual is prohibited from purchasing or possessing a handgun pursuant to Part 5 of Article 4 of Chapter 11 of Title16 and if the prohibition is the result of such individual being involuntarily hospitalized within the immediately preceding five years, upon such individual or his or her attorney making an application to inspect his or her criminal history record information, the center shall provide the record of involuntary hospitalization and also inform the individual or attorney of his or her right to a hearing before the judge of the probate court or superior court relative to such individual's eligibility to possess or transport a handgun." ยง3. Code Section 5-6-34 of the Official Code of Georgia Annotated, relating to judgments and rulings deemed directly appealable, is

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amended in subsection (a) by striking "and" at the end of paragraph (10), by striking the period and inserting "; and" at the end of paragraph (11), and by adding a new paragraph to read as follows: "(12) All judgments or orders entered pursuant to Code Section 35-3-37."

ยง4. Code Section 15-11-83 of the Official Code of Georgia Annotated, relating to when a child may be fingerprinted or photographed and confidentiality of information, is amended by revising subsection (e) as follows: "(e) Upon application of the child, fingerprints and photographs of a child shall be removed from the file and destroyed if a petition alleging delinquency is not filed or the proceedings are dismissed after either a petition is filed or the case is transferred to the juvenile court as provided in Code Section 15-11-30.4 or the child is adjudicated not to be a delinquent child. The court shall notify the deputy director of the Georgia Crime Information Center when fingerprints and photographs are destroyed pursuant to this subsection, and the Georgia Bureau of Investigation shall treat such records in the same manner as expunged-feeerds criminal history record information restricted pursuant to subseetion-(e) of Code Section 35-3-37." ยง5.

This Act shall become effective only if: (1) Funds are specifically appropriated for purposes of this Act in an appropriations Act making specific reference to this Act and only if funds so appropriated become available for expenditure; or (2) Funds are otherwise made available to the Georgia Bureau of Investigation for purposes of this Act, provided that the director of the bureau shall certify in writing to the Office of Legislative Counsel, as staff for the Code Revision Commission, that funds have been made available for such purposes and the date such funds became available.

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ยง6. All laws and parts of laws in conflict with this Act are repealed. SPONSOR'S RATIONALE

To expunge and clear one's record of criminal charges, a person must have approval from the prosecutor's office and file a request with the Georgia Bureau of Investigation's ("GBI") Georgia Crime Information Center ("GCIC"). The individual must complete a form and send it to the arresting agency who then forwards the application to the prosecutor's office for approval.9 If the prosecutor's office approves the request, the arresting agency will either send it to the GCIC or return the approved request to the individual who sends it to GCIC and pays $25 to process the information.' 0 This process is required for each arrest an individual wishes to have expunged. 1 If someone chooses not to have their record expunged, they are subject to the charge appearing on a criminal background Public access to the GCIC, the statewide criminal check.1 database, is restricted; however, "the public may access many criminal records at courthouses."l 3 Private background search companies such as LexisNexis and ChoicePoint perform extensive background checks which may include private investigators searching county courthouse records that may be

8. GA. CRIME INFO. CTR., GA. BUREAU OF INVESTIGATION, INSTRUCTIONS RECORD, ARREST TO EXPUNGE REQUEST FOR

http://www.georgia.gov/vgn/images/portal/cit_1210/61/11/149330265200936%20Attachment%20A%20%20Instructions%20for%20Request%20to%2OExpunge%2OArrest%2OReco TO INSTRUCTIONS [hereinafter rd%20and%20Request%2OForm.pdf EXPUNGE ARREST RECORD]. 9. Id. 10. Id. 11. Id.

12. Telephone Interview with Marissa McCall Dodson, Lead Coming Home Attorney, Ga. Justice Project (Aug. 22, 2011) [hereinafter Dodson Aug. Interview]. 13. Kathleen Baydala Joyner, District Attorneys Battle Arrest Records Bill, DAILY REPORT, August 23, 2011, at 9, available at http://www.gjp.org/node/876.

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otherwise restricted. 14 Representative Mark Hatfield of the 17 7 th district, introduced House Bill 402 at the request of Georgia Justice Project ("GJP"), who authored the legislation, and the Georgia Association of Criminal Defense Lawyers ("GACDL").1 5 GJP has assisted numerous clients in expunging their records and GACDL is an organization made up of criminal defense lawyers who spend significant efforts on policy work in criminal law.16 The groups have been working together since 2009 to change the expungement law' 7 so that public access to arrest records is restricted and expungement automatic.18 One of the main goals of the Bill is to help people who have not been able to obtain employment due to unproven or dismissed charges.' 9 Under the current statute, people whose charges were dismissed must first seek the approval from the prosecutor's office in order to remove those charges from their record. 20 This process can take over a year and the individual seeking expungement must pay up to $50 per arrest that he or she wants removed. 2 1 The Bill strives to ease the process of expungement by making it a shorter, less costly process for the individual.2 2 In addition to making the process of expungement automatic, the Georgia Association of Criminal Defense Lawyers wants to restrict the public's access to arrest records because of the recent proliferation of private companies searching records. 2 3 An employer can request a background check either in person or via facsimile from GCIC; however, the process can be 14. Telephone Interview with Marissa McCall Dodson, Lead Coming Home Attorney, Georgia Justice Project (Sept. 29, 2011) [hereinafter Dodson Sept. Interview]. To restrict a record, one must send a request to the Georgia Crime and Information Center or the state agency officially tasked with preserving and disseminating criminal records in Georgia. Id. 15. Dodson Aug. Interview, supra note 12. 16. Dodson Sept. Interview, supra note 14. 17. O.C.G.A. ยง 35-3-37 (West 2011). 18. Joyner, supra note 13, at 9; Dodson Aug. Interview, supra note 12. 19. Dodson Aug. Interview, supra note 12. 20. Joyner, supra note 13, at 9. 21. O.C.G.A. ยง 35-3-37(d)(1)(B) (West 2011); Dodson Sept. Interview, supra note 14.

22. Dodson Aug. Interview, supra note 12. 23. Joyner, supra note 13, at 9.

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lengthy.2 4 Rather than using the GCIC to perform a background check, large companies often hire private background search companies who offer more information and records.2 5 Because clerk's records are considered public records, private background search companies are able to pay private investigators to go to courthouses, detention centers, and jails to 26 obtain records of a potential employee. GACDL sees clients who experience difficulty obtaining a job and/or housing when a client is arrested and acquitted or their charges do not go forward.2 7 GACDL wants to restrict the public's access to records because employers are often reluctant to hire individuals with arrest records, even when warrants end up being "bogus." 28 GJP's overarching goal of the Bill is to reduce recidivism, the likelihood of a person recommitting a crime.29 There is a strong correlation between unemployment and recidivism.30 When people are prevented from working due to their criminal record, it is more likely they will recommit a crime in order to support their family. 3 1 GJP wants to eliminate this likelihood by restricting public access to records in cases where a person has not been convicted of a crime.3 2 OPPOSITION'S RATIONALE

Those opposing the passage of House Bill 402 include the Prosecuting Attorney's Council and District Attorney's Association.3 3 Kermit N. McManus, District Attorney for the Conasuga Judicial Circuit and legislative liaison for the Prosecuting Attorneys' Council and the District Attorney's Association, has expressed that "prosecutors are concerned that [the Bill] would improperly conceal some suspects' records and take away prosecutors' authority to determine which records 24. Dodson Sept. Interview, supra note 14. 25. Id. 26. Id.

27. Joyner, supra note 13, at 9. 28. Id.

29. Dodson Sept. Interview, supranote 14. 30. Id. 31. Id. 32. Id.

33. Joyner, supra note 13, at 1.

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should be kept out of the public eye." 34 District Attorney McManus also explained that prosecutors want to remain part of the expungement process. 35 Currently, a person must seek approval from the prosecuting attorney in order to expunge each The Bill would eliminate this step, removing arrest.36 prosecutors from the process and making expungement automatic. 37 Additionally, District Attorney McManus "[does not] think the government should be keeping vital information from the public[.]38 According to the opposition, "the [B]ill goes too far" 39 because "[t]here may be a good reason a case [is not] reprosecuted[,]" such as "a material witness may not have been available due to death or other means." 40 As an example, District Attorney McManus explained that "you [do not] want a babysitter who has been charged with child molestation but acquitted because the child could not be a witness[.]4 1 Because the reason for acquittal or dismissal may have nothing to do with one's innocence or guilt, opposing groups do not want to restrict non-law enforcement's access to records.4 2 IMPLICATIONS IN GEORGIA

The proposed Bill "would require the [GCIC] . . . and court

clerks to restrict automatically non-law enforcement access to arrest records in cases where the arresting law enforcement agency never referred the suspect's case for prosecution or the prosecuting agency dismissed it." 4 3 The [Bill] also would restrict access to arrest records in [the following] types of cases: [(I)] those dismissed after indictment, nolle prossed or placed on the dead docket and at least a year has passed; [(2)] cases in which the defendant 34. Joyner, supra note 13, at 9. 35. Id. 36. INSTRUCTIONS TO EXPUNGE ARREST RECORD, supra note 8.

37. Dodson Aug. Interview, supra note 12. 38. Joyner, supra note 13, at 1. 39. Id. at 9. 40. Id. 41. Id. 42. Id. 43. Id.

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was sentenced to a penalty other than death but had the conviction reversed in trial court or on appeal; and [(3)] cases in which the grand jury returned two no bills.44 In cases where the defendant has accepted a plea deal or is acquitted of some charges but not others, records would not be automatically restricted. 5 Also, where "the conduct resulting in [an] arrest is part of a pattern of criminal activity that was prosecuted in other states or countries, then the suspect's arrest records would remain open to the public." 46 Bill drafters are still determining who would monitor this type of situation.4 7 Arrest records would not be restricted in cases that were dropped because a person holds diplomatic, consular, or similar immunity. Adjustments within the clerks' offices throughout the state will have to accommodate the expungement process the Bill provides. 49 The latest version of the Bill requires clerks to automatically restrict records in the types of cases listed above.o This automatic restriction will be easier to accomplish for clerks' offices that store its records electronically versus physically.5 1 Offices that store physical records will have to black out a person's name and make the records physically unavailable to the public.52 No additional funding will be provided to clerks' offices to accomplish this new task. Funding is the biggest pushback to the Bill, as it will cost at least $60,000.00 for GCIC to implement the automatic expungement software.5 4 The Bill states that it shall be effective only if funds are appropriated for purposes of the Act

44. Joyner, supra note 13, at 9. A "no bill" is a grand jury's notation that insufficient evidence exists for an indictment on a criminal charge) BLACK'S LAW DICTIONARY 1145 (9th ed. 2009); Joyner, supra note 13, at 9. 45. Joyner, supra note 13, at 9. 46. Id. 47. Dodson Sept. Interview, supra note 14. 48. Id. 49. Dodson Aug. Interview, supra note 12. 50. Dodson Sept. Interview, supra note 14. 5 1.Id. 52. Id. 53. Id. 54. Id.

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or if funds are otherwise made available to the GBI.5 5 LEGISLATIVE GENEALOGY

House Bill 402 was placed in the House Hopper, the place where legislators file bills for introduction with the Clerk of the House of Representatives,56 on February 28, 2011.7 The Bill was first read in the House of Representatives on February 28, It was read for a second time on March 1, 2011, and 2011. referred to the House Judiciary Non-Civil Committee.59 On March 16, 2011, the House Judiciary Non-Civil Committee favorably re orted and referred the Bill to the House Rules Because of opposition from prosecutors and Committee.6 clerks' concerns about their ability to perform automatic expungement, the Bill was withdrawn from the House Rules Committee and recommitted to the House Judiciary Non-Civil Committee on April 14, 2011.61 After crossover day, the House Judiciary Non-Civil Committee voted to add the Bill to Senate Bill 80 but later removed the Bill from Senate Bill 80 due to fears that it would complicate the Bill too much and therefore, would not have enough support to pass.62 After revisions were made, the Bill was reintroduced on August 17, 2011, at the House Judiciary Non-Civil Committee hearing. 6 3 The prior version of the Bill did not include exceptions for restrictions of records and was revised to include exceptions listed in section (i) of the Bill. 64 Also, drafters revised the Bill to require individuals to go to detention centers and jails in order to remove their records from those facilities, rather than expungement occurring at all locations at the same 55. Ga. H.B. 402, supra note 1. 56. Legislative Terms Associated with the Georgia General Assembly,

http://georgiainfo.galileo.usg.edu/legchart/legterms.htm (last visited Dec. 15, 2011). 57. H.B. 402 Status Sheet, supra note 7. GEORGIAINFO,

58. Id. 59. Id. 60. Id.

61. Dodson Sept. Interview, supra note 14. 62. Id.

63. Joyner, supra note 13, at 1.

64. Dodson Sept. Interview, supra note 14.

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time.6 5 After discussion and debate over the effects of the Bill, Representative Mark Hatfield, first signature of House Bill 402 and Vice Chairman of the House Judiciary Non-Civil Committee, ended the hearing "by promising to continue to work with prosecutor and defense attorney groups to hammer out a balance between the right of public information for public safety and protecting people who are kept from finding employment due to unfair or unproven accusations." 66 The Bill remains in the House Judiciary Non-Civil Committee. 6 7 An identical bill, House Bill 663 was introduced in the House of Representatives during the regular session and referred to the House Judiciary Non-Civil Committee.68 Both bills will be voted on during the 2011-2012 legislative session.69 Prepared by: Joy Smith

65. Id.

66. 67. 68. 69.

Joyner, supra note 13, at 9. H.B. 402 Status Sheet, supra note 7. Dodson Sept. Interview, supra note 14. Id.

HOUSE RESOLUTION 1861: HORSE RACING; PARI-MUTUEL WAGERING

Amending Article I, Section II, ParagraphVIII of the Constitution of Georgia

First Signature: Representative Harry Geisinger (48th) Co-Sponsors: Representative Tom McCall (30th), Representative Edward Lindsey (54th), Representative Mary Margaret Oliver (83rd), Representative Roger Bruce (64th), Representative Ralph Long (61st) Summary: House Resolution 186 is a proposed amendment to the Georgia Constitution that authorizes the General Assembly to provide for pari-mutuel wagering on horse racing, as well as provide for the submission of this amendment for ratification or rejection by voters, and other purposes. 2 Status: House Withdrawn & Recommitted on April 14, 201 13 TEXT OF HOUSE RESOLUTION 186

ยง1. Article I, Section II, Paragraph VIII of the Constitution is amended by adding a new subparagraph to read as follows: "(e) The General Assembly may provide by law for the operation and regulation of pari-mutuel wagering in this state on horse racing by or on behalf of the state and for any matters relating to such activities, provided that such 1. H.R. 186, 15 1st Gen. Assemb., 1st Reg. Sess. (Ga. 2011), available at http://wwwl.legis.ga.gov/legis/2011_12/pdf/hrl86.pdf [hereinafter Ga. H.R. 186]. 2. Id. 3. 2011-2012 Regular Session-HR 186, Horse racing; pari-mutuel wagering; provide CA, GA. GEN. ASSEMB.,

http://www.legis.ga.gov/Legislation/en-US/display/20112012/HR/186 visited Dec. 15, 2011) [hereinafter H.R. 186 Status Sheet].

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activities, except for electronic, Internet, and telephonic parimutuel wagering which the General Assembly may authorize and regulate by general law, shall not be conducted in a county or municipality until such activities are approved by a majority of the electors of such county or municipality voting in a referendum on the conduct of such activities within such county or municipality. The General Assembly shall provide for the dedication of the net revenues and proceeds derived from such activities after payment of all necessary operating expenses and purses and cash prizes to one or more of the specific purposes set forth in this subparagraph. Such revenues and proceeds shall not be subject to Article III, Section IX, Paragraph IV(c); Article III, Section IX, Paragraph VI(a); or Article VII, Section III, Paragraph II unless the General Assembly so provides by law. Such net revenues and proceeds shall be separately accounted for and shall be specifically identified by the Governor in the annual budget presented to the General Assembly as a separate budget category entitled 'Pari-mutuel Wagering Proceeds,' and the Governor shall make specific recommendations as to the programs for which such net revenues and proceeds shall be appropriated. Such net revenues and proceeds shall be used to supplement, not supplant, nonpari-mutuel wagering resources for the following programs and purposes: (1) Tuition grants, scholarships, or loans to citizens of this state to enable such citizens to attend colleges and universities located within this state, regardless of whether such colleges or universities are operated by the board of regents, or to attend institutions operated under the authority of the Technical College Systems of Georgia; (2) Voluntary prekindergarten; and (3) Funding any and all costs or any portion of the costs of providing trauma care services by public and private hospitals and medical facilities in this state. The General Assembly shall appropriate all such net revenues and proceeds in accordance with law."

ยง2. The above proposed amendment to the Constitution shall be published and submitted as provided in Article X, Section I, Paragraph II of the Constitution. The ballot submitting the

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above proposed amendment shall have written or printed thereon the following: Shall the Constitution of Georgia be amended "( ) YES so as to authorize the General Assembly to provide by law for pari-mutuel wagering in ( ) NO Georgia on horse racing conditioned, except for electronic, Internet, and telephonic pari-mutuel wagering which the General Assembly may authorize and regulate by general law, upon the approval by the electors of the county or municipality in which such activities are to be conducted in a referendum and for the use of the net revenues and proceeds only for the purposes of funding educational grants, voluntary loans; or scholarships, prekindergarten programs; and funding any and all costs or any portion of the costs of providing trauma care services by public and private hospitals and medical facilities in this state?" All persons desiring to vote in favor of ratifying the proposed amendment shall vote "Yes." All persons desiring to vote against ratifying the proposed amendment shall vote "No." If such amendment shall be ratified as provided in said Paragraph of the Constitution, it shall become a part of the Constitution of this State. SPONSOR'S RATIONALE

Representative Harry Geisinger introduced House Resolution 1864 (and House Bill 4675) to provide for pari-mutuel wagering Representative or betting on horse racing in Georgia.6 Geisinger's goal was to provide for revenue growth in Georgia's communities through direct and indirect expansion of 4. Id. 5. 2011-2012 Regular Session-HB 467, State government; pari-mutuel wagering on horse racing; provide, GA. GEN. ASSEMB.,

http://www.legis.ga.gov/Legislation/en-US/display/20112012/HB/467 visited Dec. 15, 2011) [hereinafter H.B. 467 Status Sheet]. 6. Id.; Ga. H.R. 186, supra note 1.

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Georgia's existing businesses and new industry opportunities. In Florida, the horse industry contributes $3 billion to the economy. This figure jumps to a projected $5.1 billion when the multiplier effect of spending by industry suppliers and employees are taken into account.9 The number increases beyond that amount when the dollars spent by attendees in local businesses is considered.' 0 Florida's horse industry provides for approximately 38,000 full-time equivalent jobs.' The current estimate of job creation for Georgia, if pari-mutuel wagering were to be allowed, is 10,000 jobs within the first three to five years.12 During a fourteen month period ending in February 2010, a state Department of Agriculture study showed that 177,000 horses passed through Georgia on the way to Florida.13 Based on the economic impact in Florida and other states, Representative Geisinger believes that Georgia has an opportunity to create jobs and promote industries, thereby increasing revenue for the State and providing needed funds for education and trauma care.14 Representative Roger Bruce to commented that pari-mutuel wagering is an opportunity 15 increase revenue to the state without taxing its citizens. In addition to generating revenue, Representative Geisinger's objective was for revenue associated with wagering or betting to be placed in a fund and provided to Georgia citizens.' 6 The fund would provide the following: tuition grants, scholarships, 7. Telephone Interview with Rep. Harry Geisinger, H. Dist. 48 (Sept. 2, 2011) [hereinafter Geisinger Interview]. 8. State Breakout Studies, AM. HORSE COUNCIL, (last http://www.horsecouncil.org/state-breakout-studies-following-states visited Dec. 15, 2011). 9. Id. 10. Id. 11. Id. 12. Geisinger Interview, supranote 7. 13. Horse Racing in Georgia to Get a Look From State Lawmakers, PUB. GAMING

RESEARCH

INST.,

available

http://publicgaming.com/index.php?option=comcontent&view-article&id= 8890:horse-racing-in-georgia-to-get-a-look-from-statelawmakers&catid=38:political&Itemid=57 (last visited Dec. 15, 2011). 14. Geisinger Interview, supra note 7. 15. Telephone Interview with Rep. Roger Bruce, H. Dist. 64 (Sept. 2, 2011) [hereinafter Bruce Interview]. 16. Ga. H.R. 186, supra note 1.

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or loans to attend colleges and universities located within the state; voluntary prekindergarten; and trauma care services by public and private hospitals and medical facilities in Georgia. 17 Representative Tom McCall believes the legislation will provide growth opportunities for existing farmers, breeding facilities, feed related businesses, tourism, and land purchases while also resulting in new markets for agricultural products.1 9 As an added benefit, Representative McCall believes the land that would be required for the horses will preserve green space in the State of Georgia. 1 9 Representative Edward Lindsey, the Majority Whip, commented that the expenses and tuition associated with the HOPE scholarship in Georgia has increased over 200% in the last decade. 2 0 Representative Lindsey believes the revenue generated from pari-mutuel wagering for the HOPE scholarship will compliment, not compete, with the Georgia Lottery because ,. 21 both include the HOPE scholarship as a recipient of funding.21 OPPOSITION's RATIONALE

The Christian Coalition of Georgia has stated their position on gambling: [g]ambling has been demonstrated to be destructive to individual lives, families, businesses and society as a whole. Gambling preys upon our youth, the elderly, minorities and those with less education. Millions of Americans are problem or pathological gamblers, producing huge financial and social costs. Whether a lottery, video gambling or any other form of gambling, the Christian Coalition is unwilling to risk the life of one individual or the destruction of one

family.2 2

17. Id. 18. Telephone Interview with Rep. Tom McCall, H. Dist. 30 (Aug. 30, 2011). 19. Id. 20. Telephone Interview with Rep. Edward Lindsey, H. Dist. 54 (Aug. 28, 2011). 2 1. Id. 22. Our Position on Gambling, GA. CHRISTIAN COAL., http://www.gachristiancoalition.com/gambling.php (last visited Dec. 15, 2011).

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Nationally, horse racing is monitored by groups such as The Humane Society of the United States ("HSUS").23 In 2008 HSUS made a plea for reform in the horse racing industry.24 HSUS stated that deaths on the track are tragic but it was also concerned about "the discarding of horses no longer useful to the industry and the wanton over breeding of these animals." 25 The HSUS explained that "some Thoroughbred owners and other segments of the equine economy routinely churn out more horses than the current market can support-a stable, responsible secondary market does not exist." 2 6 The HSUS commented that some leaders in the racing industry have started to become more proactive in accepting responsibility for those horses that no longer race.27 The HSUS stated that the American Quarter Horse Association and its members send more horses to their deaths at slaughter than any other breed, and should consider following those in Thoroughbred racing on this matter. 2 8 In 2009, the HSUS applauded the Kentucky Racing Commission for its efforts and acknowledgment of the need for better enforcement of the Horse Protection Act. 2 9 Kentucky has improved efforts to enforce violations associated with the cruel practice of "soring" 30 and the HSUS has asked the Kentucky Legislature to add stiff penalties to its cruelty code. 3 1 Soring is the intentional infliction of pain through the use of chemicals, action devices and other pain inducing applications to the foot of the horse, which artificially induce the animal to react with a high-stepping gait and achieve a 23. See generally Keith Dane, Horse Deaths Signal Need for Reform, (May 9, 2008), Soc'Y U.S. HUMANE

http://www.humanesociety.org/news/news/2008/05/horsedeaths-reform05 0908.html. 24. Id 25. Id. 26. Id. 27. Id. 2 8. Id.

29. The HSUS Applauds Kentucky Horse Racing Commission for StrengtheningHorse Protection Act Inspections, HuMANE Soc'Y U.S. (Sept. 2009), 10, http://www.humanesociety.org/news/press releases/2009/09/ky horse-racin g_commissionenforcement_091009.html. 30. Id.

3 1. Id.

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competitive advantage. A particularly egregious form of soring, known as pressure shoeing, involves the cutting a horse's hoof almost to the quick and tightly nailing on a shoe, or standing a horse for hours with the sensitive part of his soles on a block or other raised object. This causes excruciating pressure and pain whenever the horse puts weight on the hoof. Georgia has the opportunity to consider implementing legislation to require humane practices if the pari-mutuel wagering Bill passes. IMPLICATIONS IN GEORGIA

In August of 2011, House Speaker David Ralston appointed six members to the House Study Committee on the Horse Racing Industry.3 3 Representative Jon Bums, a member of the Committee, stated the objective of the study is to consider all aspects of how the legislation could affect Georgia.3 4 The committee will explore such issues as: (1) the impact on economic development; (2) the potential impact on trauma care funding; (3) education including the HOPE scholarship; (4) how allowing pari-mutuel wagering has affected other states (both positively and negatively); and (5) social concerns of Georgia citizens surrounding the issue of horse wagering. 35 The State of Iowa provides an example of how pari-mutuel wagering can impact an economy.36 The Iowa Race Horse Industry generated a total economic impact of $123 million in expenditures and 2,180 full-time equivalent jobs in the State in 2007.37 The $123 million represents direct revenue of $59.7

32. Id. 33. Otis Brumby et al., Around Town: Legalized horse racing for Georgia?It's too soon to say 'neigh', MARIETTA DAILY J. (Aug. 8, 2011), http://mdjonline.com/printer_friendly/14989698. 34. Telephone Interview with Rep. Jon Bums, H. Dist. 157 (Aug. 30, 2011). 35. Id. 36. THALHEIMER RESEARCH Assocs., THE ECONOMIC IMPACT OF THE IoWA RACE HORSE INDUSTRY ON THE IOWA ECONOMY, at 49 (2008),

http://iowathoroughbredbreedersowners.com/Thalheimer-report.pdf. 37. Id.

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million and indirect 3 8 revenue of $63.3 million. 39 Representative Bruce explained that if the legislation is will decide if they want pari-mutuel passed, the - counties * * 40 wagering in their communities. If a county wants pari-mutuel wagerinp, the county will then provide their cities with the The idea is to let the citizens of Georgia decide for option. themselves whether they want pari-mutuel wagering in their community.4 2 LEGISLATIVE GENEALOGY

House Bill 467 was first read on March 4, 2011.43 On March 7, 2011, the Bill had a second reading. 4 4 House Resolution 186 was placed in the House Hopper on February 7, 2011.45 The first reading occurred on February 9, 2011.46 On February 10, The House 2011, a second reading was performed.4 7 Committee reported favorably on March 2, 2011. April 14, 2011, the House withdrew the Resolution and recommitted it.4 9 This is not the first time that pari-mutuel wagering has come before the General Assembly, as House Resolution 1177 was last introduced in 2010.50 Both House Resolution 186 and House Bill 467 are in the Regulated Industries Committee. 1 The signatories hope that the legislation will be passed in the next session of the General Assembly and that House 38. See supra text accompanying notes 48-50. 39. Id. 40. Bruce Interview, supra note 20. 41. Id.

42.Id. 43. H.B. 467 Status Sheet, supra note 5. 44.Id. 45. H.R. 186 Status Sheet, supra note 3. 46.Id. 47.Id. 48.Id. 49. Id. 50. 2009-2010 Regular Session-HR 1177, General Assembly; law for

pari-mutuel wagering on horse racing; provide-CA, GA. GEN. ASSEMB., http://www.legis.ga.gov/Legislation/en-US/display/20092010/HR/1177 (last visited Dec. 15, 2011). 51. H.R. 186 Status Sheet, supra note 3; H.B. 467 Status Sheet, supra note 5.

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Resolution 186 will be placed on the 2012 ballot. 52 If House Resolution 186 is passed by the General Assembly and ratified by voters in 2012, House Bill 467 shall become law effective January 1, 2013.53 Prepared by: Jennifer K. Walker

52. Bruce Interview, supra note 20. 53. Ga. H.B. 467.

SENATE BILL 10 : ALCOHOLIC BEVERAGES; IF APPROVED BY REFERENDUM; EACH COUNTY MAY AUTHORIZE PACKAGE SALES BY RETAILER ON SUNDAY

Amending O.C.G.A ยง 3-3-7 First Signature: Senator John Bulloch (11th) Co-Sponsors: Senator Chip Rogers (21st), Senator Don Balfour (9th), Senator Doug Stoner (6th), Senator Freddie Sims (12th), Senator Johnny Grant (25th) and others Summary: Senate Bill 10 provides that in each county or municipality in which package sales of malt beverages, wine and distilled spirits by retailers are lawful, the option for governing authority of the county or municipality to authorize package sales by a retailer of malt beverages, wine and distilled spirits on Sundays from 12:30 P.M. until 11:30 P.M. if approved by referendum.2 Status: Enacted into a law as Act 48 on April 28, 20113 TEXT OF SENATE BILL 10

ยง1. Code Section 3-3-7 of the Official Code of Georgia Annotated, relating to the local authorization and regulation of sales of alcoholic beverages on Sunday, is amended by adding new subsections to read as follows: 1. S.B. 10, 151st Gen. Assemb., 2d Reg. Sess. (Ga. 2011) available at http://www.legis.ga.gov/legis/2011 12/pdf/sbl0.pdf. 2. Id. 3. 2011-2012 Regular Session-SB 10, Alcoholic Beverages; if approved by referendum; each county may authorize package sales by a retailer on Sundays, GA. GEN. ASSEMB., http://www.legis.ga.gov/Legislation/enUS/display/20112012/SB/10 (last visited Dec. 15, 2011) [hereinafter S.B. 10 Status Sheet].

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"(p)(1) Notwithstanding other laws, in each county or municipality in which package sales of malt beverages and wine by retailers are lawful, but package sales of distilled spirits by retailers are not lawful, the governing authority of the county or municipality, as appropriate, may authorize package sales by retailers of malt beverages and wine on Sundays between the hours of 12:30 P.M. and 11:30 P.M., if such Sunday sales of both malt beverages and wine are approved by referendum as provided in paragraph (2) of this subsection. (2) Any governing authority desiring to permit and regulate package sales by retailers of both malt beverages and wine on Sundays between the hours of 12:30 P.M. and 11:30 P.M., pursuant to paragraph (1) of this subsection, shall so provide by proper resolution or ordinance specifying the hours during such period when such package sales may occur. Upon receipt of the resolution or ordinance, the election superintendent shall issue the call for an election for the purpose of submitting the question of Sunday package sales by retailers of both malt beverages and wine to the electors of that county or municipality for approval or rejection. The election superintendent shall issue the call and shall conduct the election on a date and in the manner authorized under Code Section 21-2-540. The election superintendent shall cause the date and purpose of the election to be published once a week for four weeks immediately preceding the date of the election in the official organ of the county. The ballot shall have written or printed thereon the words: Shall the governing authority of (name of YES ' county or municipality) be authorized to permit and regulate package sales by NO retailers of both malt beverages and wine on Sundays between the hours of 12:30 P.M. and 11:30 P.M.?' All persons desiring to vote for approval of package sales by retailers of malt beverages and wine on Sundays

between the hours of 12:30 P.M. and 11:30 P.M. shall vote 'Yes,' and all persons desiring to vote for rejection of package sales by retailers of malt beverages and wine on Sundays between the hours of 12:30 P.M. and 11:30 P.M.

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shall vote 'No.' If more than one-half of the votes cast on the question are for approval of Sunday package sales by retailers of malt beverages and wine on Sundays between the hours of 12:30 P.M. and 11:30 P.M., the resolution or ordinance approving such Sunday package sales by retailers of malt beverages and wine shall become effective upon the date so specified in that resolution or ordinance. The expense of the election shall be borne by the county or municipality in which the election is held. The election superintendent shall canvass the returns, declare the result of the election, and certify the result to the Secretary of State. (3) Whenever package sales of malt beverages and wine on Sundays between the hours of 12:30 P.M. and 11:30 P.M. are authorized by a county or municipality pursuant to this subsection, Sunday package sales by retailers of malt beverages and wine may be made only by licensed retailers that are licensed to sell by the package. (4) The provisions of this subsection are in addition to or cumulative of and not in lieu of any other provisions of this title relative to the sale of malt beverages and wine by retailers. (q)(1) Notwithstanding other laws, in each county or municipality in which package sales of malt beverages, wine, and distilled spirits by retailers are all lawful, the goveming authority of the county or municipality, as appropriate, may authorize package sales by retailers of malt beverages, wine, and distilled spirits on Sundays between the hours of 12:30 P.M. and 11:30 P.M., if such Sunday sales of malt beverages, wine, and distilled spirits are approved by referendum as provided in paragraph (2) of this subsection. If the goveming authority seeks authorization for Sunday sales of alcoholic beverages pursuant to this subsection, the goveming authority shall seek authorization of package sales by retailers of all alcoholic beverages, including malt beverages, wine, and distilled spirits, and not of only one type of alcoholic beverage. (2) Any goveming authority desiring to permit and regulate package sales by retailers of malt beverages, wine, and distilled spirits on Sundays between the hours of 12:30 P.M. and 11:30 P.M., pursuant to paragraph (1) of this

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subsection, shall so provide by proper resolution or ordinance specifying the hours during such period when such package sales may occur. Upon receipt of the resolution or ordinance, the election superintendent shall issue the call for an election for the purpose of submitting the question of Sunday package sales by retailers of malt beverages, wine, and distilled spirits to the electors of that county or municipality for approval or rejection. The election superintendent shall issue the call and shall conduct the election on a date and in the manner authorized under Code Section 21-2-540. The election superintendent shall cause the date and purpose of the election to be published once a week for four weeks immediately preceding the date of the election in the official organ of the county. The ballot shall have written or printed thereon the words: Shall the governing authority of (name of '()YES county or municipality) be authorized to permit and regulate package sales by ( ) NO retailers of malt beverages, wine, and distilled spirits on Sundays between the hours of 12:30 P.M. and 11:30 P.M.?' All persons desiring to vote for approval of package sales by retailers of malt beverages, wine, and distilled spirits on Sundays between the hours of 12:30 P.M. and 11:30 P.M. shall vote 'Yes,' and all persons desiring to vote for rejection of package sales by retailers of malt beverages, wine, and distilled spirits on Sundays between the hours of 12:30 P.M. and 11:30 P.M. shall vote 'No.' If more than one-half of the votes cast on the question are for approval of Sunday package sales by retailers of malt beverages, wine, and distilled spirits on Sundays between the hours of 12:30 P.M. and 11:30 P.M., the resolution or ordinance approving such Sunday package sales by retailers of malt beverages, wine, and distilled spirits shall become effective upon the date so specified in that resolution or ordinance. The expense of the election shall be borne by the county or municipality in which the election is held. The election superintendent shall canvass the returns, declare the result of the election, and certify the result to the Secretary of State.

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(3) Whenever package sales of malt beverages, wine, and distilled spirits on Sundays between the hours of 12:30 P.M. and 11:30 P.M. are authorized by a county or municipality pursuant to this subsection, Sunday package sales by retailers of malt beverages, wine, and distilled spirits may be made only by licensed retailers that are licensed to sell by the package. (4) The provisions of this subsection are in addition to or cumulative of and not in lieu of any other provisions of this title relative to the sale of alcoholic beverages by retailers."

ยง2. All laws and parts of laws in conflict with this Act are repealed. SPONSOR'S RATIONALE

Senator John Bulloch, of the I Ith district, and author of Senate Bill 10, stated that the Bill is about local authority in each community, and giving authority to local cities and counties to decide for themselves whether to sell alcohol on Sundays in retail establishments. 4 The Bill allows for those cities and counties that have already elected to sell beer, wine, and distilled spirits to vote on whether to allow retail sales on Sunday. Senator Bulloch stated in a rhetorical question "how much closer to democracy could you get than letting people make that decision." 6 Senator Bulloch also expressed his concern that Georgia is one of only three states in the United States that does not allow alcohol retail sales on Sunday. 7 By introducing the legislation, Senator Bulloch expressed his concerns over the revenue that Georgia is losing to neighboring

4. STATE & LOCAL Gov'T OPERATIONS COMM., MEETING MINUTES

(2011), http://www.senate.ga.gov/committees/documents/2011Minutes85 5 .pdf [hereinafter SLGO Minutes 2011]. 5. S.B. 10 Status Sheet, supra note 3. 6. Patrick Rodgers, The Right to Choose Booze, CONNECT SAVANNAH (Feb. 22, 2011), http://www.connectsavannah.com/news/article/103735. 7. Id. (noting that Indiana and Connecticut are the other two states that do not provide Sunday retail sales).

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states by prohibiting Sunday sales. 8 This view is equally realized by Jim Tudor, the president of the Georgia Association of Convenience Stores. 9 OPPOSITION'S RATIONALE

This is not the first time that legislation similar to Senate Bill 10 has been introduced into the Georgia General Assembly; this sort of legislation has been previously introduced five times.' 0 In those prior times, former Governor Perdue was a well known opponent to the enactment of Sunday alcohol sales due to his Former strong convictions as a religious conservative.11 to his came if it ever the bill to veto vowed Governor Perdue desk. 12 Another major opponent to the enactment of Sunday alcohol sales in Georgia is the Georgia Christian Coalition ("the Coalition").13 In opposing the legislation, the Coalition states that it aims to strengthen the family and protect Christian values. 14 The Coalition further desires to protect innocent life, educate parents, protect Georgia citizens from gambling and pornography, ease taxes on families, and defend traditional marriage. Jerry Luquire, president of the Coalition, stated that "we oppose the Sunday sales bill because it disrupts family life and creates another Saturday."l 6 Mr. Luquire alluded to the fact that there is a proven increase in danger when there is an

8. Id. 9. Telephone Interview with Jim Tudor, President of Ga. Ass'n of Convenience Stores (Sep. 2, 2011) [hereinafter Tudor Interview]. 10. Shannon McCaffery, Deal Signs Bill on Sunday Alcohol Sales, BLOOMBERG

BUSINESSWEEK

(Apr.

28,

2011),

http://www.businessweek.com/ap/financialnews/D9MSSBOOO.htm. 11. James Salzar, House Gives Final Passage to Sunday Alcohol Sales Bill, ATLANTA J.-CONST. (Apr. 12, 2011), http://www.ajc.com/news/georgiapolitics-elections/house-gives-final-passage-907162.html. 12. Id. 13. Id.

14. GA. CHRISTIAN COAL., http://www.gachristiancoalition.com visited Dec. 15, 2011).

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15. Id.

16. Telephone Interview with Jerry Luquire, President, Ga. Christian Coal. (Sept. 2, 2011) [hereinafter Luquire Interview].

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increase in alcohol consumption.17 Mr. Luquire further believes that the Coalition is misunderstood as merely protecting Christian values, but is equally-if not more so-concerned with protecting a healthy family lifestyle.' 8 Further, it is the Coalition's position that permitting Sunday alcohol sales will not increase revenue. '9 The Coalition is just one of many groups in opposition to Sunday alcohol sales. 2 0 Several religious leaders are against the permission of Sunday alcohol sales because they believe that Sunday is a day for honoring God. 2 ' Senator Hardie Davis, a minister as well as an Augusta Democrat, believes that allowing alcohol sales on Sunday takes away from the sanctity of Sunday, and provides spirits other than the "Holy Spirit." 2 A study done in the past three years has shown that those states that have legalized Sunday retail sales have shown a 15% decline in weekly churchgoers and a 25% decrease in donations for those continuing to go.2 3 Some smaller liquor stores have also opposed extending retail alcohol sales to Sunday.24 These liquor stores contend that Sunday is their day off because they tend to have a smaller staff than grocery stores and larger liquor stores. 25 Store owners 17. Id.; Ctr. for Disease Control, Alcohol and Public Health Fact Sheet, http://www.cdc.gov/alcohol/fact-sheets/alcohol-use.htm (last visited Dec. 15, 2011). 18. Luquire Interview, supra note 16. 19. Id. (arguing that people will spread out their purchases of alcohol over Saturday and Sunday rather than just buying on Saturdays). 20. Id. 21. Laura Fishman, SB 10 Passes in Senate, Sunday Alcohol Sales Could Come Soon, ATLANTA DUI LAW BLOG, (Mar. 18, 2011), available at http://www.atlantaduinews.com/2011/03/sb- 10-passes-in-senate-sunday-

alcohol-sales-could-come-soon.html. 22. Walter Jones, Ga. Senate Passes Sunday Alcohol Sales, AUGUSTA CHRON. (Mar. 16, 2011, 1:26 PM), http://chronicle.augusta.com/latestnews/2011-03-16/ga-senate-passes-sunday-alcohol-sales. 23. Justin Ewers, Blue Laws: Easing up on Sunday Liquor Sales, U.S. NEWS & WORLD REP. (Jul 8. 2008), http://www.usnews.com/news/national/articles/2008/07/08/easing-up-onsunday-liquor-sales. 24. Paula Duffy, Georgia Edges Toward Sunday Liquor Sales, HULIQ (Jan. 27, 2011), http://www.huliq.com/10061/georgia-edges-toward-sundayliquor-sales. 25. Id.

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contend that Sunday sales will require them to suffer operating costs for a seven day week, while earning the profits of a six day week. 2 6 Similar to Mr. Luquire's contention mentioned above, these small stores do not believe that they will earn any additional profits from Sunday sales.2 7 IMPLICATIONS IN GEORGIA

The enactment of Senate Bill 10 creates implications that will affect Georgians both socially and economically. It is well known that Senate Bill 10 gives Georgians the opportunity to vote and choose for themselves whether they want to allow alcohol sales on Sundays.28 Senator Bulloch acknowledged concerns to those worried about compromised safety on the roads and increased family violence. 2 9 However, Senator Bulloch was of the position that because alcohol was already available on Sundays, the Bill would not create any greater risk than what is already possible.30 Many convenience and grocery store owners support the Bill for both social and economical reasons. 3 ' These owners are interested in supporting Sunday alcohol sales because they believe that they can increase their sales by 13%.32 Georgia Food Industry Association president Kathy Kuzava stated that "the legislation is about providing good customer service; it was the customers who encouraged them to pass the local-option legislation." 3 3 Distilled Spirits Council President Peter Cressy stated that Senate Bill 10 "is an important step for consumer convenience, market modernization and free enterprise." 34 Jim Tudor, President of the Georgia Association of 26. Id. 27. Luquire Interview, supra note 16. 28. S.B. 10 Status Sheet, supranote 3. 29. Id. 30. Id. 3 1. Id. 32. Id. 33. Aaron Gould Sheinin, Deal Signs Bill ClearingPathfor Sunday Sales of Alcohol, ATLANTA J.-CONST. (Apr. 28, 2011), http://www.ajc.com/news/georgia-politics-elections/deal-signs-bill-clearing928440.html. 34. Id.

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Convenience Stores also supported the Bill providing citizens Tudor furthermore the choice to vote on Sunday sales.3 believes that providing the Sunday sales in Georgia is necessa 7 for Georgia to remain competitive with its neighboring states. He feels that many Georgia convenience stores are losing profits to Alabama, South Carolina, and Florida by not allowing Sunday alcohol sales. 3 7 Also, he believes that not having Sunday sales is a drawback on tourism in Atlanta and Savannah.3 Most people who come to Georgia to visit are used to having the ability to purchase alcohol on Sunday.3 9 The Distilled Spirits Council of the United States (DISCUS) is another proponent of Sunday alcohol sales. 4 0 Similar to the other proponents, DISCUS believes that it is a customer convenience issue. 1 DISCUS mentions that Sunday is the second most common shopping day for people age group 3554.42 By not allowing Sunday sales for spirits alone, DISCUS has determined that the industry has missed an opportunity for an additional 7% profit. 4 3 They further explain that shoppers are more likely to spend more money on Sunday for groceries Ben Jenkins, vice president of DISCUS than any other day. stated that "the government shouldn't be in the business of 35. Tudor Interview, supra note 9. 36. Id. 37. Id. 38. Id. (arguing people that come on vacation to Atlanta and Savannah expect to be able to buy alcohol). Those people not from Georgia, Indiana, and Connecticut are accustomed to being able to purchase alcohol on Sundays. Id. By preventing them to purchase alcohol is a roadblock to Georgia's collection of revenue, as well as limiting Georgia's desirability as a tourist destination. Id. 39. Id. Connecticut and Indiana are the only two states other than Georgia that do not allow Sunday sales. Rodgers, supra note 6. 40. Distilled Spirits Council of the U.S., Sunday Spirit's Sales: Rolling Back the Blue Laws, http://www.discus.org/issues/sunday.asp (last visited Dec. 15, 2011). 41. Id. 42. Id. 43. Id. DISCUS uses a formula determining that 43% of the people who shop on that day by spirits and that based on this number they were able to determine that a 7% profit is what is missed by not allowing these sales. Id. 44. Id. (noting that throughout the week the average grocery basket will contain $23.37, while a Sunday basket will contain $28.27, a 21% increase in profit).

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mandating what day is the Sabbath. Religious conservatives may choose not to drink or buy alcohol on Sunday. There are other people out there that would like to."4 5 Jenkins feels that Georgia has missed a great economic opportunity by failing to repeal the ban for so many years.4 6 He feels that in upholding the ban, the State of Georgia misses out on the opportunity to gain much needed tax revenue. 4 7 Jenkins notes that in a recent economic study that was conducted that it was shown that selling spirits alone on Sunday could generate an additional $3.4 to $4.8 million dollars a year in additional state revenues. 48 On top of the increase in general tax revenue from having Sunday sales, Jenkins also notes that there are no negative social externalities.4 9 One fear people have of legalizing Sunday retail sales is the heightened traffic fatalities related to alcohol addressed by Senator Bill Cowsert and others.5 0 A study by Mark Stehr, Economics Professor at Drexel University, conducted upon the previous forty-eight states that have legalized Sunday sales, showed only one state, New Mexico, has had an increase in traffic related fatalities.5 1 It was also noted that the New Mexico study was biased because at the same time Sunday sales were permitted, the state also raised speed limits on highways to seventy-five miles per hour.52 Further Georgia has allowed restaurants and venues to serve alcohol for a number of years now and there has been no noted increase in alcohol related

45. Rodgers, supra note 6. 46. Ben Jenkins & Jerry Luquire, Pro & Con: Should Georgia Allow Retail Alcohol Sales on Sunday, ATLANTA J.-CONST., Feb. 14, 2011, at All. 47.Id. 48. Id. These statistics only include spirits; the statistics would likely be greater if wine and beer are added. Id. 49. Id. (stating that there are no greater increases in drunken driving or underage drinking). 50. Eric Stirgus, Lawmaker's Claim on Sunday Sales Proves Flawed, POLITIFACT GEORGIA (Mar. 16. 2011), http://www.politifact.com/georgia/statements/20 11/mar/i 8/georgia-statesenators/lawmakers-claim-sunday-alcohol-sales-proves-flawed. 51. Mark Stehr, The Effect of Sunday Sales of Alcohol on Highway Crash Fatalities, 10 B.E. J. ECON. ANALYSIS & POL'Y, no. 1, 2010, art. 73, at 11; see Stirgus, supra note 50. 52. Stirgus, supra note 50.

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crashes. LEGISLATIVE GENEALOGY

Senate Bill 10 was first introduced and read on January 25, 2010.54 On January 25, 2010, it was referred to the State and On Local Government Operations Committee (SLGO)." February 3, 2011, after brief discussion among the committee Senator Tate, of the 38th district, moved for a "do pass." Senator James, of the 35th district, seconded the motion and after a vote the Bill passed with a 5-1 vote. 57 SLGO favorably reported on Senate Bill 10 to the President of the Senate. 58 On February 7, 2011, Senate Bill 10 was read to the floor for a second time. 59 On March 16, 2011, Senate Bill 10 was read to the Senate floor for a third time. 6 0 March 16, 2011 was the last day that the Senate could pass the Bill before it would move to the House or die, so Senator Fort, of the 39th district, motioned that Senate Bill 10 be put on the table, and this motion was denied on a vote of 48-6.61 Following the denial of this motion, Senator Bulloch proposed an amendment to the Bill.62 Six other proposed amendments were offered by various Senators; however, none of these were

53. Governor's Office of Highway Safety, Alcohol Fact Sheet, GA. HIGHWAY

SAFETY

STATISTICAL

INFO.,

http://www.gahighwaysafety.org/statistics/alcohol.html (last visited Dec. 15, 2011). 54. S.B. 10 Status Sheet, supra note 3. 55. Ga. S., 151st Gen. Assemb., 1st Reg. Sess., at 72 (2011), http://www.senate.ga.gov/sos/Documents/Journal/201 1SenateJournal.pdf. [hereinafter Senate Journal]. 56. SLGO Minutes 2011, supra note 4. 57. Id.

58. S.B. 10 Status Sheet, supra note 3. 59. Senate Journal, supra note 55, at 123. 60. S.B. 10 Status Sheet, supra note 3. 61. Senate Journal, supra note 55, at 1384. 62. Id. The amendment proposed would work to replace "from 12:30 to 11:30" with "between the hours of 12:30 to 11:30" everywhere that it appeared in the Bill. Id. This amendment would give the cities and counties more local authority to decide the hours they wanted to sell opposed to being required to sell from 12:30 to 11:30. Id.

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adopted. 63 The Senate President called for a vote on the passage of Senate Bill 10 after a favorable report from SLGO committee. 64 The Bill passed with a vote of 32-22 and after receiving the requisite constitutional majority, the Bill was passed as amended.65 On March 21, 2011, Senate Bill 10 was first read to the House where it was then assigned to the Regulated Industries Committee.66 It was sponsored in the House by Roger Williams of the 4th district.6 7 On March 22, 2011, the Bill was read to the House for the second time after the Regulated Industries favorably reported on it.68 On April 12, 2011, it was read to the House for the third time and was passed by a vote of 127-44.69 On April 18, 2011, the Senate sent the Bill to Governor Deal's desk where it would eventually be signed on April 28, 201 1.70 Senate Bill 10 is now known as Act 48, which became effective

on July 1, 201 1.7 1 Prepared by: Benjamin Stidham

63. Id. 64. Id. (noting that a number of amendments were suggested to the Senate, only one of which was accepted). 65. Id.; S.B. 10, 151st Gen. Assemb., 2d Reg. Sess. (Ga. 2011) (as at available passed), http://www.legis.ga.gov/Legislation/20112012/116243.pdf. 66. S.B. 10 Status Sheet, supra note 3. 67. Id. 68. Id.

69. Id. 70. Id. 71. Id.

SENATE BILL 631: GEORGIA MEDICAL ASSISTANCE FRAUD PREVENTION PROGRAM

Amending Chapter 4 of Title 49 of the Official Code of Georgia Annotated, relatingto public assistance,so as to enact the "GeorgiaMedical Assistance FraudPreventionProgram First Signature: Senator John Albers (56th) Co-Sponsors: Senator William Ligon, Jr. (3rd), Senator Charlie Bethel (54th), Senator Cecil Staton (18th), Senator Butch Miller (49th), Senator Frank Ginn (47th) Summary: Senate Bill 63 seeks to amend Chapter 4 of Title 49 of the Official Code of Georgia Annotated, relating to public assistance, so as to enact the "Georgia Medical Assistance Fraud Prevention Program." 2 The Bill provides for the issuing of "smart cards" with certain biometric information to Medicaid recipients as a preventative measure against Medicaid fraud. The Bill also provides for a pilot program to evaluate the program on a small scale basis before implementing the program across the State of Georgia.4 Status: House Second Readers on March 21, 2011'

1. S.B. 63, 151st Gen. Assemb., 1st Reg. Sess. (Ga. 2011), available at http://wwwl.legis.ga.gov/legis/2011_12/pdf/sb63.pdf [hereinafter Ga. S.B. 63]. 2. Id. 3. Id. 4. Id. 5. 2011-2012 Regular Session-SB 63, Georgia Medical Assistance Fraud ASSEMB., GEN. GA. enact, Program; Prevention (last http://www.legis.ga.gov/Legislation/en-US/display/20112012/SB/63 visited Dec. 15, 2011) [hereinafter S.B. 63 Status Sheet].

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TEXT OF SENATE BILL 63

ยง1. Chapter 4 of Title 49 of the Official Code of Georgia Annotated, relating to public assistance, is amended by adding a new article to read as follows: "Article 10 49-4-200. This article shall be known and may be cited as the 'Georgia Medical Assistance Fraud Prevention Program.' 49-4-201. As used in this article, the term: (1) 'Board' means the Board of Community Health established under Chapter 2 of Title 31. (2) 'Care management organization' means an entity that is organized for the purpose of providing or arranging health care, which has been granted a certificate of authority by the Commissioner of Insurance as a health maintenance organization pursuant to Chapter 21 of Title 33, and which has entered into a contract with the department to provide or arrange health care services, products, or both on a prepaid, capitated basis to members. (3) 'Claim' includes any request or demand, whether under a contract or otherwise, for money, property, or services, which is made to the Georgia Medicaid program, or to any officer, employee, fiscal intermediary, grantee, or contractor of the Georgia Medicaid program, or to other persons or entities if it results in payments by the Georgia Medicaid program, if the Georgia Medicaid program provides or will provide any portion of the money or property requested or demanded, or if the Georgia Medicaid program will reimburse the contractor, grantee, or other recipient for any portion of the money or property requested or demanded. A claim includes a request or demand made orally, in writing, electronically, or magnetically and: (A) Identifies a product or service provided or purported to have been provided within the State of Georgia to a

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recipient as reimbursable under the medical assistance program, without regard to whether the money that is requested or demanded is paid, (B) States the income earned or expense incurred by a provider in providing a product or a service and that is used to determine a rate of payment under the medical assistance program; and (C) Has been generated at the point of transaction and as a result of recipients participating in prescribed method of identity authentication as defined in paragraph (2) of subsection (c) and paragraphs (1) and (2) of subsection (d) of Code Section 49-4-203. (4) 'Commissioner' means the commissioner of community health. (5) 'Department' means the Department of Community Health established under Chapter 2 of Title 31. (6) 'Health care provider' means any person, partnership, professional association, corporation, facility, or institution certified, licensed, or registered by the State of Georgia that has contracted with a care management organization to provide health care services, products, or both to members. (7) 'Medicaid' means the ioint federal and state program of medical assistance established by Title XIX of the federal Social Security Act, which is administered in this state by the department pursuant to Article 7 of this chapter. (8) 'Medical assistance' means payment to a provider of a part or all of the cost of certain items of medical or remedial care or service rendered by the provider to a recipient, provided such items are rendered and received in accordance with such provisions of Title XIX of the federal Social Security Act of 1935, as amended, regulations promulgated pursuant thereto by the secretary of health and human services, all applicable laws of this state, the state plan, and regulations of the department which are in effect on the date on which the items are rendered. (9) 'Medical assistance card' means Medicaid cards currently used by recipients prior to the implementation of the statewide rollout pursuant to this article, and which will be replaced by secure identification cards pursuant to this article, which shall identify eligible recipients and their account numbers, and shall be used by recipients to obtain medical

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assistance for which payment by the state shall be tendered. (10) 'Member' means a Medicaid or PeachCare for Kids recipient who is currently enrolled in a care management organization plan. (11) 'PeachCare for Kids' means the State of Georgia's State Children's Health Insurance Program established pursuant to Title XXI of the federal Social Security Act, which is administered in this state by the department pursuant to Article 13 of Chapter 5 of this title. (12) 'Physician' means a physician licensed to practice medicine in this state pursuant to Chapter 34 of Title 43. (13) 'Pilot program' means a proactive medical assistance fraud prevention pilot program implemented pursuant to this article prior to a state-wide rollout of the Georgia Medical Assistance Fraud Prevention Program. (14) 'Point of transaction' means the act of a recipient obtaining a service, product, or both provided by a provider, which service, product, or both is submitted as a claim to be paid for by the Georgia Medicaid program as established by Title XIX of the federal Social Security Act, which is administered in this state by the Department of Community Health pursuant to Article 7 of this chapter. (15) 'Program' means the Georgia Medical Assistance Fraud Prevention Program established and operated pursuant to this article. (16) 'Provider' means a health care provider or provider of medical assistance. (17) 'Provider of medical assistance' means a person or institution, public or private, including its employees, which possesses all licenses, permits, certificates, approvals, registrations, charters, and other forms of permission issued by entities other than the department, which forms of permission are required by law either to render health care services, products, or both or to receive medical assistance in which federal financial participation is available and which meets the further requirements for participation prescribed by the department and which is enrolled, in the manner and according to the terms prescribed by the department, to participate in the state plan. (18) 'Recipient' means a member or recipient of medical assistance.

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(19) 'Recipient of medical assistance' means a person who has been certified eligible, pursuant to the state plan, to have medical assistance paid on his or her behalf. (20) 'Secure identification card' means a card issued by the department pursuant to Code Section 49-4-203. (21) 'Service' includes care or treatment of recipients. (22) 'State plan' means all documentation submitted by the commissioner on behalf of the department to and for approval by the secretary of health and human services, pursuant to Title XIX of the federal Social Security Act, as amended (Act of July 30, 1965, P.L. 89-97, Stat. 343, as amended). 49-4-202. (a) The department shall establish and administer the Georgia Medical Assistance Fraud Prevention Program. The board shall have the authority to enter into an agreement with one or more third-party vendors for the purpose of implementing and maintaining the program in accordance with this article. (b) Prior to a state-wide rollout of the program, the department shall conduct a proactive medical assistance fraud prevention pilot program. The board shall determine the scope of the pilot program and shall have the authority to enter into an agreement with one or more third-party vendors for the purpose of developing and executing the pilot program in accordance with this article. Further, the board is authorized to establish such rules and regulations as may be necessary or desirable in order to execute the pilot program. (c) The department shall implement a pilot program for not less than three months and not more than six months, within three counties or municipalities. One county or one municipality shall be from each of following population brackets according to the United States Decennial Census of 2000: (1) 50,000 or less, (2) 100,000 to 250,000, and (3) more than 300,000. The pilot program shall involve enrollment, distribution, and use of secure identification cards by all recipients as replacements for currently used Medicaid assistance cards. The pilot program shall involve verifying the status of each recipient of medical assistance at the point of transaction including at least: (1) Verification of the authenticity of the recipient and the secure identification card; (2) Verification that the secure identification card has not

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been reported lost, stolen, revoked, or damaged; (3) Verification that the recipient of medical services remains eligible to receive medical assistance prior to health care provider administering service; (4) Verification that the health care provider is or remains eligible to administer services to recipients of medical assistance; and (5) Verification by the recipient that one or more health care providers provided the stated services. (d) The board shall mandate sufficient participation in the pilot program by providers and recipients in the counties and municipalities in which the pilot program is conducted to ensure proper evaluation of the pilot results. (e) The department shall implement the pilot program not later than October 1, 2011. 49-4-203. (a) The department may implement the Georgia Medical Assistance Fraud Prevention Program to address Medicaid fraud, waste, and abuse. (b) The program shall be designed to: (1) Authenticate recipients and their eligibility status at the onset and completion of each point of transaction in order to prevent card sharing and other forms of fraud and to confirm with the recipient that services were indeed administered by one or more approved health care providers; (2) Deny ineligible persons at the point of transaction; (3) Authenticate providers of services including their eligibility status and each recipient of medical assistance at the point of transaction to prevent phantom billing and other forms of provider fraud; (4) Secure and protect the personal identity and information of recipients; and (5) Reduce the total amount of medical assistance expenditures by reducing the average cost per recipient. (c) The program shall include: (1) Secure identification cards issued to each recipient of medical assistance that incorporate overt and covert security features which shall be blended with the personal data printed on the card to form a significant barrier to imitation, replication, and duplication. The secure identification cards

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shall incorporate custom optical variable devices, demetalized optical variable devices, and a color photograph of the recipient viewable under ambient light from the front and back of the card incorporating microtext and unique alphanumeric serialization specific to the eligible card holder. Other novel physical and electronic security features that prevent the duplication, counterfeiting, forging, or modification of the card may be employed as well that provide the greatest security for the least amount of cost; (2) The assignment or personal selection of a unique personal identification number or password for use by each recipient of medical assistance; (3) The assignment or personal selection of a unique personal identification number or password for use by each health care provider administrator and point of transaction operator; (4) Priority to the vendors that satisfies all of the requirements of this article and requires the least amount of new infrastructure for the health care provider and at the point of transaction thereby keeping program costs and the impact on health care providers at a minimum; (5) A secure, web based information system for recording and reporting authenticated transactions, including secure access, audit logging, and nonrepudiation to support and validate each component and member in the system; (6) A secure, web based information system that interfaces with one or more systems of record to determine eligibility of recipients and health care providers that: (A) Exposes only the minimal and required personal privacy information data to authorized parties: (B) Provides mechanisms for recipients and health care provider administrators to manage and control their personal or organizational data; and (C) Fully complies with local, state, and federal privacy laws, including the federal Health Insurance Portability and Accountability Act of 1996, P.L. 104-191. (7) A secure, web based information system that gathers analytical information in order to assist in data-mining processes; (8) Priority to the vendors that requires the least amount of information to be gathered and stored by the state, thereby reducing the liability and risk to the state:

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(9) No requirement for preenrollment of recipients; and (10) A photograph of each recipient stored on the secure identification card and information system data base, for viewing by health care providers at the point of transaction prior to administrating services for the purposes of verifying identity. (d) In implementing the program, the department may: (1) Enter and store billing codes, deductible amounts, and bill confirmations; (2) Allow electronic prescribing services and prescription data base integration and tracking in order to prevent medical error and to reduce pharmaceutical abuse and lower health care costs through information sharing; and (3) Implement quick pay incentives for providers when electronic prescribing services, electronic health records, electronic patient records, or computerized patient records used by providers automatically synchronize with the information system to electronically submit a claim. (e) The department may implement a state-wide rollout of the program after completion of a successful pilot program. The pilot program shall be considered a success if it meets the minimum criteria defined in subsections (b) and (c) of this Code section and reduces the average monthly cost of recipients within the pilot program area by a minimum of 5 percent. In the event that the pilot program does not meet the minimum criteria to be considered a success, the department may be authorized to extend and revise the pilot program as necessary and to reevaluate the results. In order to evaluate the average monthly cost of recipients within the pilot program and develop the strategy necessary to target the highest rate of savings to the state plan, four sample sets of figures shall be analyzed for the pilot program, including: (1) Establishment of base figures: Claims data for a first sample set shall be gathered which shall include all claims for the recipients within the pilot program area and the average cost per recipient by provider type and county or municipality from at least the prior year for the exact time period for all areas in the pilot program; (2) Adjusted base figures for increase or decrease in cost of services: In order to evaluate increases or decreases in the cost of

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services, a second sample set shall be gathered and adjusted to the base figures of the first sample set. The second sample set of claims data shall represent a corresponding county or municipality of a similar size not participating in the pilot program, with as closely as possible the same demographics as the population of recipients in the pilot program areas, including specific data relating to sex, age, race, and ethnicity, county or municipality similarities, number of providers, and the average cost per recipient. This sample set shall be analyzed against the prior year's figures and compared to current year figures for the same time frame and county or municipality to determine an increase or decrease in cost of services. This sample shall not have any major changes from the prior year to the current year that would change the comparison, such as the introduction of managed care in the area. The increase or decrease in cost per recipient from this sampling shall be factored into the data set determined pursuant to paragraph (1) of this subsection to derive at an adjusted base figure or average cost per recipient per month; (3) Comparison of base figures to current figures: A third sample set of data shall be gathered reflecting the claims data of the recipients and the average cost per recipient on a monthly basis during the pilot program by provider type. A comparison of the adjusted base figures arrived at by the Prior sampling with the actual figures from this third sample set shall be made to determine how much the state saved by provider type. Recipients leaving the Pilot program area to avoid fraud detection will be noted, thus, the third sample set will be adjusted by claims derived outside of the pilot program area; and (4) Recipient surveying: A fourth sample set of data shall be obtained by sampling 2 percent of Georgia Medicaid recipients in the pilot program area who shall be surveyed prior to the start of the pilot program to acknowledge services used, frequency of services used, and satisfaction of services used. This survey shall be taken again at the completion of the pilot program to rate the level of satisfaction of the pilot program. (f) The department shall adopt a plan to implement the program state wide in phases. The plan shall include for each phase:

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(1) A description of the policies and procedures concerning the handling of lost, forgotten, stolen, and damaged secure identification cards, as well as situations in which the recipient's identity cannot be confirmed; (2) A description of the policies and procedures for enrolling all recipients, regardless of age, for participation in the program; (3) A description of the policies and procedures for distributing and activating secure identification cards for all recipients; and (4) A description of the policies and procedures for implementing one or more third-party vendor's solutions at health care provider locations, including program management, distribution and installation, initial and ongoing training, and initial and ongoing support and maintenance. () The board shall mandate participation in the program by all providers and recipients as the program is rolled out. 49-4-204. The department, in preparation for implementing the pilot program required by this article, shall submit a monthly report regarding the progress of pre-implementation of the pilot program to the Governor, Lieutenant Governor, Speaker of the House of Representatives, and presiding officer of each standing committee of the Senate and House of Representatives having jurisdiction over the Georgia Medicaid program. Upon implementation of the pilot program, a quarterly report shall be submitted by the department. The first quarterly report shall include an evaluation of the success of the pilot program, as required by subsection (e) of Code Section 49-4-203. 49-4-205. The Department of Human Services shall cooperate and assist the department in the process of adopting and administering both the program and the pilot program. 49-4-206. It is the intention of the department that this article be construed consistent with the federal Social Security Act, and any provision of this article found to be in conflict with the federal Social Security Act shall be deemed to be void and of no effect.

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It is further the intention of the department, in view of the joint state and federal financial participation in the Georgia plan, that the department shall be authorized to adopt such regulations as may be necessary to comply with the requirements of the federal Social Security Act. 49-4-207. The department may refer matters to the Attorney General for handling pursuant to Code Section 49-4-168.2 relating to possible violations of Article 7B of this chapter. 49-4-208. If, before implementing any provision of this article, the department determines that a waiver or authorization from a federal agency is necessary for implementation of that provision, the department shall request the waiver or authorization." ยง2. All laws and parts of laws in conflict with this Act are repealed. SPONSOR'S RATIONALE

Senator John Albers, of the 56th district, introduced Senate Bill 63 to decrease the amount of money lost to Medicaid fraud. 6 Medicaid is the second largest line item in Georgia's annual state budget, constituting $2 billion, or 22% of total spending. Georgia Medicaid fraud estimates range from 1015% of all money spent on Medicaid, which significantly impacts the State's budget.8 Presently, the Georgia Medicaid Fraud Control Unit ("the 6. Telephone Interview with Sen. John Albers, S. Dist. 56 (Aug 30, 2011) [hereinafter Albers Interview]. 7. Press Release, Senate Press Office, Senate Passes Sen. Albers' Bill to Curb Medicaid Fraud (Mar. 14, 2011), available at http://senatoralbers.com/pdf/Albers%20Medicaid%20Fraud%2OBill%20pass es%20Senate.pdf. "'Georgia spends $4 billion on Medicaid every year, and it's our responsibility as stewards of taxpayer dollars to ensure that this money is protected for those who need it most,' said Albers." Id. 8. Albers Interview, supra note 6.

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Unit") and the Inspector General assigned to Georgia's Medicaid program are in charge of recovering state and federal funds that have been lost due to Medicaid fraud. 9 As of March 2011, the Unit and the Inspector General have recovered about $29 million in state and federal funds.' 0 However, Senator Albers believes that there should be more done to prevent Medicaid fraud from happening in the first place." Senator Albers further postulated that if "Obamacare" 1 2 becomes law, Senate Bill 63 would help prevent further financial hardship to the healthcare system in this state.' 3 For example, because more people will be eligible for Medicaid under "Obamacare," Senator Albers expects a greater demand for Medicaid services. 14 For Medicaid to continue to be a viable recourse for those who are unable to afford medical care, Senator Albers deems it imperative to ensure the taxpayers' money is being used for authorized Medicaid purposes. Senate Bill 63 requires that Medicaid recipients carry a "smart card" that shows certain biometric information such as the patient's name, picture, and date of birth, as well as embedded information which is only accessible by health care providers when they scan the card through the card reader.1 6 The card is presented to the health care provider at the beginning and end of each visit. 17 This two-step requirement aids in preventing fraud by adding an extra security measure that confirms the patient's identity and provides proof that a 9. Carrie Teegardin & Christopher Quinn, Medicaid Smart Card Idea Raises Questions, ATLANTA J.-CONST., Mar. 25, 2011, at Al. 10. id. 11. Id.

12. "Obamacare" is a widely used term for the Patient Protection and Affordable Care Act ("PPACA") by opponents of the PPACA, including Senator John Albers. Albers Interview, supra note 6. The PPACA was signed into law by President Barack Obama on March 23, 2010. Bill Summary & Status: 111th Congress (2009-2010) H.R. 3590, THOMAS, http://thomas.loc.gov/cgibin/bdquery/z?dl l:HRO3590:@@@L&summ2=m&#status (last visited Dec. 15, 2011). 13. Albers Interview, supra note 6. 14. Id. 15. Id. 16. Id. 17. Id.

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patient received services from his or her doctors.'" This verification process prevents "phantom billing," (billing for services that were not received) by confirming the services rendered at the end of each visit.1 OPPOSITION's RATIONALE

Those who are opposed to the Bill are concerned about privacy, cost-efficiency, and procedural efficiency in the medical office. 20 These concerns arise from people in varying positions in the political spectrum, including conservatives and liberals, and also different professional groups including medical associations. 2 ' The opposition raises several arguments including that (1) Senate Bill 63 will expose too much private information to the government; (2) the cost to implement the proposed system is higher than the fraud it seeks to deflect because there is not sufficient information that Medicaid fraud is a problem in Georgia; and (3) the proposed system will make it more difficult for doctors to do their job.2 2 First, some Georgians disagree with the use of the cards because they believe it poses a threat to privacy. 23 With all the information that is stored in the card database, some Georgians believe the information has a potential of being used by the government in "a more overbearing manner down the road." 2 4 Many conservatives are concerned that the card is too similar to a national I.D. card, which this group also opposes because of

18. Id.

19. Press Release, Senate Press Office, Important Legislation Introduced this Week (Feb. 11, 2011), available at http://senatoralbers.com/pdf/Albers%20Weekly/ 2OUpdate%202- 11-11 .pdf. 20. Telephone interview with Richard Ward, Exec. Dir. at the Ga. Chapter of the Am. Acad. of Pediatrics (Oct. 9, 2011) [hereinafter Ward Interview]; Georgia SB-63 ... Preventing Fraud...And a Bunch of Other Hidden Stuff Too, PERSPICACIOUS CONSERVATIVE (Mar. 17, 2011),

http://theperspicaciousconservative.wordpress.com/2011/03/17/6/ [hereinafter Perspicacious Article]. 21. See Perspicacious Article, supra note 20; Ward Interview, supra note 20; Teegarden & Quinn, supra note 9. 22. Perspicacious Article, supra note 20; Ward Interview, supra note 20. 23. See Perspicacious Article, supra note 20. 24. Id.

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the government's potential invasive use of the information. 25 Next, some question the cost-efficiency of the program and argue that Georgia may not even have a significant fraud problem. 2 6 For example, the Department of Community Health's inspector general said that "in the past two and a half years, the state has received only five reports of someone trying to use another person's Medicaid card." 7 Moreover, according to the Fiscal Note from State Auditor Russell W. Hinton to Senator Albers ("Fiscal Note"), the Bill will cost about $23.3 million to implement across the state, and at least $3.2 million per year thereafter. 28 State Auditor Hinton also states that there are other costs, such as "[m]aking necessary changes to the Medicaid Management Information System (MMIS) to facilitate information exchange with the smart cards and biometric technology," "[flurnishing training and set-up help to providers," and "[o]btaining an Independent Verification and Validation (IV&V) of the project as required by the Georgia Technology Authority," which were not included in the figure above, but may be significant. 2 9 Lastly, groups such as the Georgia Academy of Family Physicians ("GAFP") and the Georgia Chapter of American Academy of Pediatrics ("GCAAP") have voiced their concerns about the Bill. 30 The GAFP stated that the Bill could "present barriers to accessing care, and the methodology proposed has not been proven to be a successful method to target fraud within the Medicaid system." 3 1 Particularly, Richard Ward, executive 25. Id. The Perspicacious Article author writes: "I can't help but be incensed by the idea of a photo and computer chip installed on a card that people will be carrying in their wallets. Who's to say that this won't be used by the government in a more overbearing manner later on down the road??" Id. (emphasis in original). 26. Teegarden & Quinn, supra note 9. 27. Id. 28. Letter from Russell W. Hinton, State Auditor, Dep't of Audits & Accounts, to Honorable John Albers, Ga. State Senator (Feb. 25, 2011), at available http://www L.legis.ga.gov/legis/2011 12/versions/sb63 Fiscal ImpactNote 12.htm. 29. Id. 30. See infra notes 31-32 and accompanying text. 31. State Legislative News, GA. ACAD. FAM. PHYSICIANS, http://www.gafp.org/statelegislation news.asp (last updated May 23, 2011).

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director of the GCAAP, states that the GCAAP has concerns "regarding [the] administrative burden and [the cost to [all Mr. Ward medical] practices" that accept Medicaid patients. are children; patients all Medicaid of 70% claims that about therefore pediatricians would be greatly impacted by Senate Moreover, he asserts that the GCAAP certainly Bill 63. opposes fraud, but they have not seen any reports of Medicaid fraud, either by doctors or patients, in the pediatrician sector.3 4 Further, Mr. Ward asserts that the GCAAP has concerns about the stigmatization of children that may occur if those children on Medicare have to go through a noticeably different process for signing in and out of the doctor's office. Both the GAFP and the GCAAP have concerns as to the Bill's efficiency, at least at the onset of the program when doctors will have to learn how to use and implement the program in their offices. 3 6 IMPLICATIONS IN GEORGIA

The implications of Senate Bill 63 will be more precisely assessed by the pilot program which will take place before a state-wide roll out of the Bill.3 7 The pilot program "involve[s] enrollment, distribution, and use of secure identification cards by all [Medicaid] recipients [in various municipalities or ,38 counties]." People have voiced varying opinions as to the practical implications of the Bill.3 9 Moreover, although the 32. Legislative Affairs, GA. CHAPTER AM. ACAD. PEDIATRICS, http://www.gaaap.org/Legislative.htm (last visited Dec. 15, 2011); Ward Interview, supra note 20. 33. Ward Interview, supra note 20. 34. Id. 35. Id. 36. See State Legislative News, supra note 3 1; Legislative Affairs, supra

note 32. 37. Ga. S.B. 63, supra note 1. "Prior to a state-wide rollout of the program, the department shall conduct a proactive medical assistance fraud prevention pilot program." Id. 38. Id. 39. Compare Jerry Alderman, Letter to the Editor, Prevention of Medicare Fraud,BAXLEY NEWS-BANNER (Baxley, GA), Mar. 23, 2011, available at

http://www.baxleynewsbanner.com/archives/327-Prevention-of-Medicarefraud.html (stating that the "proactive approach to [correct the budget deficit issue] is to concentrate on THE PREVENTION OF MEDICAID FRAUD

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intent of this Bill is to prevent Medicaid fraud and thereby reduce the capital spent on fraudulent claims, it is uncertain how much money this program will save in the long ran. The Bill is intended to reduce Georgia's overall spending and save taxpayers' money currently being defrauded through the Medicaid system. 4 1 In the Fiscal Note, Senator Albers could not predict an exact amount that would be saved, but he asserts that the Bill will prevent fraud, and in turn, will reduce Georgia's 42 annual spending on Medicaid. Senator Albers expects that the Program will eventually pay for itself, and taxpayers may eventually see this as a reduction in state taxes.4 3 As to privacy, Senator Albers assures that the information will be encrypted such that the card by itself does not carry any information, and that the State will be in charge of the database, not individual service providers. 4 4 Further, he assures the information stored in the "smart cards" will not violate any Health Insurance Portability and Accountability Act ("HIPAA") laws. 4 5 Therefore, he does not foresee negative implications regarding intrusions into a card carrier's privacy.4 6 Regarding efficiency in practice, Senator Albers believes that the Bill will speed up the process of Medicaid payments to doctors because the fraud will be investigated on the front end.4 7 In turn, this will encourage more doctors to accept patients on Medicaid because the lesser chance of fraud being committed, the higher chance doctors will get reimbursed through the

AND ABUSE") (emphasis in original), with Teegarden & Quinn, supra note 9 (arguing that "[t]he system would cost more than $23 million to implement at a time when Georgia's budget is in dire straits and the potential payoff is uncertain"). 40. See Teegarden & Quinn, supra note 9. 41. Albers Interview, supra note 6. 42. Id. 43. Id. 44. Press Release, Senate Press Office, Sen. Albers Introduces Bill to Stop Medicaid Fraud (Feb. 9, 2011), available at http://senatoralbers.com/pdf/albersreleasemedicaidbill_020911 .pdf. "Patient information is encrypted and split between the card and the host system. Neither half is usable by itself." Id. 45. Albers Interview, supra note 6. 46. Id. 47. Albers Interview, supra note 6.

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system. 4 8 LEGISLATIVE GENEALOGY

The first reading of Senate Bill 63 took place on February 9, 2011, and the Bill was assigned to the Senate Health and Human Services Committee ("the Committee"). 4 9 On March 10, 2011, the Committee favorably reported but made a few changes to the Bill such as detailing the process of the pilot program, excluding the fingerprint or photograph requirement, and excluding the prescription history requirement.5 0 On March 11, 2011, the second reading took place. On March 14, 2011, the third and final reading took place, in which the Senate passed and adopted the Bill, with a few changes.52 These changes included deleting the section that allowed the program to be adapted for use by other state programs administered by the Department of Community Health and the Department of Human Services.5 3 On March 16, 2011, the first reading in the House of Representatives took place.5 4 The second reading in the House took place on March 21, 2011.5s No further legislative action has been taken on the Bill to date.56 The 2011 legislative session ended April 14, 2011, therefore the Bill must be reintroduced in the next legislative session to be considered. Prepared by: Viridiana G. Carreon

48. Id. 49. S.B. 63 Status Sheet, supra note 5. 50. Id. 5 1.Id. 52. Id. 53. Id.; Albers Interview, supra note 6. 54. S.B. 63 Status Sheet, supra note 5. 55. Id. 56. Id. 57. Legislative Chart, GA. http://georgiainfo.galileo.usg.edu/legchart/legchart.htm.

INFO,

SENATE BILL 801: EVIDENCE; PROVIDE FOR DNA ANALYSIS OF PERSONS ARRESTED FOR FELONY OFFENSES

Amending 0. C.G.A. Title 24 and Title 35 First Signature: Senator Joshua McKoon (29th) Co-Sponsors: Senator Charlie Bethel (3rd), Senator Bill Cowsert (46th), Senator Steve Gooch (5 1st), Senator John Albers (56th), Senator Cecil Staton (18th) Summary: Senate Bill 80 amends code sections 24-4-60 through 24-4-65 of the Official Code of Georgia Annotated, relating to requirement for DNA analysis of blood of persons convicted of a felony and incarcerated in a state correctional facility.2 Sections 24-4-60 through 24-4-65 were amended and moved to Title 35, specifically sections 35-3-160 through 35- 3-165. The Bill expands the types of convicted felons who shall have a DNA sample collected and maintained in the DNA database from certain designated sex offender felons to all convicted felons who are incarcerated or on probation or parole.4 The Bill also amends O.C.G.A. sections 5-5-41 and 17-5-56 which address the requirements of extraordinary motions for new trial, maintenance of physical evidence containing biological material, and proof so as to provide for matters relative to the collection of DNA. Status: Enacted into law as Act 67 on May 11, 20116 1. S.B. 80, 15 1st Gen. Assemb., 1st Reg. Sess. (Ga. 2011) (enacted), available at http://www.legis.ga.gov/Legislation/20112012/116767.pdf [hereinafter Ga. S.B. 80]. 2. Id. 3. Id.

4. Id. 5. Id. 6. 2011-2012 Regular Session-SB 80, Evidence; provide for DNA analysis of persons arrested for felony offenses, GA. GEN. ASSEMB.,

http://www.legis.ga.gov/legislation/en-US/display/SB/80 (last visited Dec.

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TEXT OF SENATE BILL 80

PART 1

ยง 1-1. This Act shall be known and may be cited as the "Johnia Berry Act."

ยง 1-2. Code Section 5-5-41 of the Official Code of Georgia Annotated, relating to requirements as to extraordinary motions for new trial generally, is amended by revising paragraph (1) of subsection (c), as follows: "(c)(1) Subject to the provisions of subsections (a) and (b) of this Code section, a person convicted of a serious violent felony as defined in Code Section 17 10 6.1 may file a written motion before the trial court that entered the judgment of conviction in his or her case, for the performance of forensic deoxyribonucleic acid (DNA) testing."

ยง 1-3. Code Section 17-5-56 of the Official Code of Georgia Annotated, relating to maintenance of physical evidence containing biological material, is amended by revising subsection (b) as follows: "(b) In a case in which the death penalty is imposed, the evidence shall be maintained until the sentence in the case has been carried out. in a ease that involves the presution of a seius violent felony as defined by Code Secticn 17 10 6.4, a ioation of Code Section 16 6 5.1, or sodomy, statitery rape, child molestation, bestiality, incest, or sexual battefy ais those terms are defined in Chapter 6 of Title 16, the evidene Evidence in all felony cases that contains biological material, including, but not limited to, stains, fluids, or hair samples that relate to the identity of the perpetrator of the crime shall be maintained for ten years after judgment in the criminal 15, 2011) [hereinafter S.B. 80 Status Sheet].

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ease becomes final o~r ten years after May 27, 203, whichever- is later. Evidenee in all other felony and misdemeanor- cases may be purged the period of time that the crime remains unsolved or until the sentence in the case is completed, whichever occurs last." PART II

ยง2-1. Chapter 4 of Title 24 of the Official Code of Georgia Annotated, relating to proof generally, is amended by redesignating Article 4 as Article 6A of Chapter 3 of Title 35 and by revising said article, relating to DNA analysis upon conviction of certain sex offenses, as follows: "ARTICLE-4 ARTICLE 6A 21 1 60 35-3-160.

(a) As used in subseetiew-(b)-ef this -ede seetion article, the term: (1) 'Department' means the Department of Corrections. (2) 'Division' means the Division of Forensic Sciences of the Georgia Bureau of Investigation. (3) 'Detention facility' 'state corectional facilty means a penal institution under the jurisdiction of the Department-ef Cefeetiois-department used for the detention of persons convicted of a felony, including penal institutions operated by a private company on behalf of the department, inmate work camps. and-inmate boot camps; provided, however, that such term shall not include-a., probation detention center, probation diversion center, or proebation boot camp under the jurisdiction of the Department of Correction centers, and parole revocation centers. Such term shall also mean any facility operated under the jurisdiction of a sheriff used for the detention of persons convicted of a felony including a county jail or county correctional facility. (b) Any person convicted of a criminal offense defined in Code Section 16 6 1, relating to the offense of rape; Coe

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Section 16 6 2, relating to the offense of sodomy or aggravated sodomy; Cde Setion 16 6 3, relating to the offense of statteoy rape; code Setion 16 6 4, relating to the Offense of hild moleston r oggravated child molestatsiwl Code Setion 16 6 5, relating to the offease of enticina utd' to the offense of sexuial assauilt aantprosi sexual assault against a prsio detned or a patient in a hospital or other instituation, or sexual assault by a practitioner of psychotherapy against a patient; Code Setion 16 6 6, relating to the offense of bestiality; Code Section 16 6 7, relating to the offense of nerophilia; or Code Section 1 , 22, relating to the offense of incest, shall hase a sample of his or her blood, an oral swab, or a sample obtained from a noninvasive proedurfe taken for DNA (deoxyriboneic aeid) analysis to detehmine idntification characteristis specific to the person. in addition, on and after Jutly 1, 2000, any person convicted of a felonty and incarcerated in a state correctional facilite felony offense who is held in a detention facility or placed on probation shall at the time of entering the odetention facility or being placed on probation filitydeai have a sample of his or her blood, an oral swab, or a sample obtained from a noninvasive procedure taken for DNA (deoxyribonucleic acid) analysis to determine identification characteristics specific to the person. The provisions and requirements of this Code section shall also apply to any person who has been convicted of a felony prior to July 1, 2-OO 2011, and who currently is incarcerated in a state eeffeetienal-detention facility in this state., serving a probation sentence, or serving under the jurisdiction of the Board of Pardons and Paroles for such offense. The provisions and reqirmets of this Code section shall also apply to any person who has been convicted of a felony in this state on or after July 1, 2000, and who is incarcerated in a privt correctional facility in this state for suceh offense pursuiant to a contract with the Department of Corrections uipon entering the facility, and fogr any person conivicted of a felony priort July 1, 2000, and who is incarcerated in a private correctional facility in this state pursuant to contract with the Department of Correctionis. It shall be the responsibility of the detention facility detaining or entity supervising a convicted felon to collect the samples reqiuired by this Code section and forward

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the sample to the division unless such sample has already been collected by the department or another agency or entity. (c.) The analysis shall be performed by the Division-of Forensic Sciencces of the Georgia Bureauf Of investigato division. The division shall be authorized to contract with individuals or organizations for services to perform such analysis. The identification characteristics of the profile resulting from the DNA analysis shall be stored and maintained by the bureau in a DNA data bank and shall be made available only as provided in Code Section 24-4 63 353-163. on probati.. shll swab, er-

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(L=) Code Section 16 8 40, relating to the off-ense of r-ebbefy, (N4) Code Section 16 8 411, relating to the offense oe aimed -ebbefy-, (N) Code Section 16 10 23, relating to the offense e& impersonating an offier; (0) Code Section 16 10 21, relating to the offense of obstruction of an effierf= (P) Article 4 of Chapter 11 of Title 16, relating to dangerous instfumentalities and practiees; and (Q) Chapter 13 of Title 16, relating to controlled

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Samples

24-4-61- 35-3-161. (a) Each sample required pursuant to Code Section 24 4 60 35-3-160 from persons who are to be incarcerated shall be withdrawn within the first 30 days of incarceration at the receiving unit of the detention facility or at such other place as is designated by the Department of Corrections department. Each sample required pursuant to Code Section24-460 35-3-160 from persons who are to be released from a state correctional facility or private correctional detention facility shall be withdrawn within the 12 months preceding such person's release at a place designated by the Department of Corretin department. The required samples from persons who are not sentenced to a term of confinement shall be withdrawn as a condition of probation. The Division division shall publish in its quality manuals the procedures for the collection and transfer of samples to such division pursuant to Code Section 35-3-154. Personnel at a Department of Corren detention facility shall implement

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the provisions of this Code section as part of the regular processing of offenders. (b) Samples collected by oral swab or by a noninvasive procedure may be collected by any individual who has been trained in the procedure. Only a correctional health nurse technician, physician, registered professional nurse, licensed practical nurse, graduate laboratory technician, or phlebotomist shall withdraw any sample of blood to be submitted for analysis. No civil liability shall attach to any person authorized to take a sample as provided in this article as a result of the act of taking a sample from any person submitting thereto, provided the sample was taken according to recognized medically accepted procedures. However, no person shall be relieved from liability for negligence in the withdrawing of any blood sample. (c) Chemically clean sterile disposable needles shall be used for the withdrawal of all samples of blood. The containers for blood samples, oral swabs, and the samples obtained by noninvasive procedures shall be sealed and labeled with the subject's name, social security number, date of birth, race, and gender plus the name of the person collecting the sample and the date and place of collection. The containers shall be secured to prevent tampering with the contents. The steps set forth in this subsection relating to the taking, handling, identification, and disposition of samples are procedural and not substantive. Substantial compliance therewith shall be deemed to be sufficient. The samples shall be transported to the Division of Ferensic Seienees f the Georgia Bureau ot investigatin division not more than 15 days following withdrawal and shall be analyzed and stored in the DNA data bank in accordance with Code Sections 24 4 62 35-3-162 and 24 4 63 35-3-163. 24 4 62 35-3-162. Whether or not the results of an analysis are to be included in the data bank, the bureau shall conduct the DNA analysis in accordance with procedures adopted by the bureau to determine identification characteristics specific to the individual whose sample is being analyzed. The director of or his or her designated the Geor-gia Bureau of Investigati representative shall complete and maintain on file a form indicating the name of the person whose sample is to be

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analyzed, the date and by whom the sample was received and examined, and a statement that the seal on the container containing the sample had not been broken or otherwise tampered with. The remainder of a sample submitted for analysis and inclusion in the data bank pursuant to Code Section 24-4-60 35-3-160 may be divided, if possible, labeled as provided for the original sample, and securely stored by the bureau in accordance with specific procedures of the bureau to ensure the integrity and confidentiality of the samples. All or part of the remainder of that sample may be used only to create a statistical data base provided no identifying information on the individual whose sample is being analyzed is included or for retesting by the bureau to validate or update the original analysis. A report of the results of a DNA analysis conducted by the bureau as authorized, including the identifying information, shall be made and maintained at the bureau. Except as specifically provided in this Code section and Code Section 24 4 63 35-3-163, the results of the analysis shall be securely stored and shall remain confidential. 24 4 63 35-3-163. (a) It shall be the duty of the bureau to receive samples and to analyze, classify, and file the results of DNA identification characteristics of samples submitted pursuant to Code Section 24-4-60 35-3-160 and to make such information available as provided in this Code section. The results of an analysis and comparison of the identification of the characteristics from two or more biological samples shall be made available directly to federal, state, and local law enforcement officers upon a request made in furtherance of an official investigation of any criminal offense. A request may be made by personal contact, mail, or electronic means. The name of the requestor and the purpose for which the information is requested shall be maintained on file with the bureau. (b) Upon request from a prosecutor or law enforcement agency, the bureau may compare a DNA profile from an analysis of a sample from a suspect in a criminal investigation where the sample was obtained through a search warrant, consent of the suspect, court order, or other lawful means to DNA profiles lawfully collected and maintained by the bureau. The bureau shall not add a DNA profile of any such

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suspect to any DNA data bank except upon conviction as provided in this article. (c)(1) Upon his or her request, a copy of the request for search shall be furnished to any person identified and charged with an offense as the result of a search of information in the data bank. Only when a sample or DNA profile supplied by the requestor satisfactorily matches the requestor's profile in the data bank shall the existence of data in the data bank be confirmed or identifying information from the data bank be disseminated. (2) The name of the convicted offender felon whose profile is contained in the data bank may be related to any other data bases which are constructed for law enforcement purposes and may be disseminated only for law enforcement purposes. (3) Upon a showing by the defendant accused in a criminal ease proceeding that access to the DNA data bank is material to the investigation, preparation, or presentation of a defense at trial or in a motion for a new trial postconviction proceeding, a superior court having proper jurisdiction over such criminal ease proceeding shall direct the bureau to compare a DNA profile which has been generated by the defendant accused through an independent test against the data bank, provided that such DNA profile has been generated in accordance with standards for forensic DNA analysis adopted pursuant to 42 U.S.C. Section 14131-as-afmended. (d) The bureau shall develop procedures governing the methods of obtaining information from the data bank in accordance with this Code section and procedures for verification of the identity and authority of the requestor. The bureau shall specify the positions in that agency which require regular access to the data bank and samples submitted as a necessary function of the job. (e) The bureau may create a separate statistical data base comprised of DNA profiles of samples of persons whose identity is unknown. Nothing in this Code section or Code Section 24-4-64 35-3-164 shall prohibit the bureau from sharing or otherwise disseminating the information in the statistical data base with law enforcement or criminal justice agencies within or outside the state. (f) The bureau may charge a reasonable fee to search and

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provide a comparative analysis of DNA profiles in the data bank to any authorized law enforcement agency outside of the this state. 24-4-64 35-3-164. (a) Any person who, without authority, disseminates information contained in the data bank shall be guilty of a misdemeanor. Any person who disseminates, receives, or otherwise uses or attempts to so use information in the data bank, knowing that such dissemination, receipt, or use is for a purpose other than as authorized by law, shall be guilty of a misdemeanor of a high and aggravated nature. (b) Except for purposes of law enforcement or as authorized by law this article, any person who, for purposes of having DNA analysis performed, obtains or attempts to obtain any sample submitted to the Diviion of Forensic Sciences division for analysis shall be guilty of a felony. 21 4 65 35-3-165. (RA person whose DNA profile has been included in the data bank pursuant to this article may request that it be expunged on the grounds that the conviction on which the authority for including his or her DNA profile was based has been reversed and the case dismissed. The bureau shall purge all records and identifiable information in the data bank pertaining to the person and destroy all samples from the person upon receipt of a written request that such data be expunged, pursuant to this Code section, and a certified copy of the court order reversing and dismissing the conviction. (b) A DNA sample obtained in good faith shall be deemed to have been obtained in accordance with the requirements of this article and its use in accordance with this article is authorized until a court order directing expungement is obtained and submitted to the bureau." PART III

ยง 3-1. Chapter 3 of Title 35 of the Official Code of Georgia Annotated, relating to the Georgia Bureau of Investigation, is amended by repealing Article 6A as enacted by HB 24,

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substantially revising, superseding, and modernizing provisions relating to evidence during the 2011-2012 biennium of the General Assembly, and enacting a new article to read as follows: "ARTICLE 6A 35-3-160. (a) As used in this article, the term: (1) 'Department' means the Department of Corrections. (2) 'Division' means the Division of Forensic Sciences of the Georgia Bureau of Investigation. (3) 'Detention facility' means a penal institution under the jurisdiction of the department used for the detention of persons convicted of a felony, including penal institutions operated by a private company on behalf of the department, inmate work camps, inmate boot camps, probation detention centers, and parole revocation centers. Such term shall also mean any facility operated under the jurisdiction of a sheriff used for the detention of persons convicted of a felony including a county jail or county correctional facility. (b) Any person convicted of a felony offense who is held in a detention facility or placed on probation shall at the time of entering the detention facility or being placed on probation have a sample of his or her blood, an oral swab, or a sample obtained from a noninvasive procedure taken for DNA (deoxyribonucleic acid) analysis to determine identification characteristics specific to the person. The provisions and requirements of this Code section shall also apply to any person who has been convicted of a felony prior to July 1, 2011, and who currently is incarcerated in a detention facility, serving a probation sentence, or serving under the jurisdiction of the Board of Pardons and Paroles for such offense. It shall be the responsibility of the detention facility detaining or entity supervising a convicted felon to collect the samples required by this Code section and forward the sample to the division unless such sample has already been collected by the department or another agency or entity. (c) The analysis shall be performed by the division. The division shall be authorized to contract with individuals or

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organizations for services to perform such analysis. The identification characteristics of the profile resulting from the DNA analysis shall be stored and maintained by the bureau in a DNA data bank and shall be made available only as provided in Code Section 35-3-163. 35-3-161. (a) Each sample required pursuant to Code Section 35-3-160 from persons who are to be incarcerated shall be withdrawn within the first 30 days of incarceration at the receiving unit of the detention facility or at such other place as is designated by the department. Each sample required pursuant to Code Section 35-3-160 from persons who are to be released from a detention facility shall be withdrawn within the 12 months preceding such person's release at a place designated by the department. The required samples from persons who are not sentenced to a term of confinement shall be withdrawn as a condition of probation. The division shall publish in its quality manuals the procedures for the collection and transfer of samples to such division pursuant to Code Section 35-3154. Personnel at a detention facility shall implement the provisions of this Code section as part of the regular processing of offenders. (b) Samples collected by oral swab or by a noninvasive procedure may be collected by any individual who has been trained in the procedure. Only a correctional health nurse technician, physician, registered professional nurse, licensed practical nurse, graduate laboratory technician, or phlebotomist shall withdraw any sample of blood to be submitted for analysis. No civil liability shall attach to any person authorized to take a sample as provided in this article as a result of the act of taking a sample from any person submitting thereto, provided the sample was taken according to recognized medically accepted procedures. However, no person shall be relieved from liability for negligence in the withdrawing of any blood sample. (c) Chemically clean sterile disposable needles shall be used for the withdrawal of all samples of blood. The containers for blood samples, oral swabs, and the samples obtained by noninvasive procedures shall be sealed and labeled with the subject's name, social security number, date of birth, race, and gender plus the name of the person collecting the sample

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and the date and place of collection. The containers shall be secured to prevent tampering with the contents. The steps set forth in this subsection relating to the taking, handling, identification, and disposition of samples are procedural and not substantive. Substantial compliance therewith shall be deemed to be sufficient. The samples shall be transported to the division not more than 15 days following withdrawal and shall be analyzed and stored in the DNA data bank in accordance with Code Sections 35-3-162 and 35-3-163. 35-3-162.

Whether or not the results of an analysis are to be included in the data bank, the bureau shall conduct the DNA analysis in accordance with procedures adopted by the bureau to determine identification characteristics specific to the individual whose sample is being analyzed. The director or his or her designated representative shall complete and maintain on file a form indicating the name of the person whose sample is to be analyzed, the date and by whom the sample was received and examined, and a statement that the seal on the container containing the sample had not been broken or otherwise tampered with. The remainder of a sample submitted for analysis and inclusion in the data bank pursuant to Code Section 35-3-160 may be divided, if possible, labeled as provided for the original sample, and securely stored by the bureau in accordance with specific procedures of the bureau to ensure the integrity and confidentiality of the samples. All or part of the remainder of that sample may be used only to create a statistical data base provided no identifying information on the individual whose sample is being analyzed is included or for retesting by the bureau to validate or update the original analysis. A report of the results of a DNA analysis conducted by the bureau as authorized, including the identifying information, shall be made and maintained at the bureau. Except as specifically provided in this Code section and Code Section 35-3-163, the results of the analysis shall be securely stored and shall remain confidential. 35-3-163. (a) It shall be the duty of the bureau to receive samples and to analyze, classify, and file the results of DNA identification

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characteristics of samples submitted pursuant to Code Section 35-3-160 and to make such information available as provided in this Code section. The results of an analysis and comparison of the identification of the characteristics from two or more biological samples shall be made available directly to federal, state, and local law enforcement officers upon a request made in furtherance of an official investigation of any criminal offense. A request may be made by personal contact, mail, or electronic means. The name of the requestor and the purpose for which the information is requested shall be maintained on file with the bureau. (b) Upon request from a prosecutor or law enforcement agency, the bureau may compare a DNA profile from an analysis of a sample from a suspect in a criminal investigation where the sample was obtained through a search warrant, consent of the suspect, court order, or other lawful means to DNA profiles lawfully collected and maintained by the bureau. The bureau shall not add a DNA profile of any such suspect to any DNA data bank except upon conviction as provided in this article. (c)(1) Upon his or her request, a copy of the request for search shall be furnished to any person identified and charged with an offense as the result of a search of information in the data bank. Only when a sample or DNA profile supplied by the requestor satisfactorily matches the requestor's profile in the data bank shall the existence of data in the data bank be confirmed or identifying information from the data bank be disseminated. (2) The name of the convicted felon whose profile is contained in the data bank may be related to any other data bases which are constructed for law enforcement purposes and may be disseminated only for law enforcement purposes. (3) Upon a showing by the accused in a criminal proceeding that access to the DNA data bank is material to the investigation, preparation, or presentation of a defense at trial or in a postconviction proceeding, a superior court having proper jurisdiction over such criminal proceeding shall direct the bureau to compare a DNA profile which has been generated by the accused through an independent test against the data bank, provided that such DNA profile has been generated in accordance with standards for forensic

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DNA analysis adopted pursuant to 42 U.S.C. Section 14131. (d) The bureau shall develop procedures governing the methods of obtaining information from the data bank in accordance with this Code section and procedures for verification of the identity and authority of the requestor. The bureau shall specify the positions in that agency which require regular access to the data bank and samples submitted as a necessary function of the job. (e) The bureau may create a separate statistical data base comprised of DNA profiles of samples of persons whose identity is unknown. Nothing in this Code section or Code Section 35-3-164 shall prohibit the bureau from sharing or otherwise disseminating the information in the statistical data base with law enforcement or criminal justice agencies within or outside the state. (f) The bureau may charge a reasonable fee to search and provide a comparative analysis of DNA profiles in the data bank to any authorized law enforcement agency outside of this state. 35-3-164. (a) Any person who, without authority, disseminates information contained in the data bank shall be guilty of a misdemeanor. Any person who disseminates, receives, or otherwise uses or attempts to so use information in the data bank, knowing that such dissemination, receipt, or use is for a purpose other than as authorized by law, shall be guilty of a misdemeanor of a high and aggravated nature. (b) Except for purposes of law enforcement or as authorized by this article, any person who, for purposes of having DNA analysis performed, obtains or attempts to obtain any sample submitted to the division for analysis shall be guilty of a felon. 35-3-165. (a) A person whose DNA profile has been included in the data bank pursuant to this article may request that it be expunged on the grounds that the conviction on which the authority for including his or her DNA profile was based has been reversed and the case dismissed. The bureau shall purge

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all records and identifiable information in the data bank pertaining to the person and destroy all samples from the person upon receipt of a written request that such data be expunged, pursuant to this Code section, and a certified copy of the court order reversing and dismissing the conviction. (b) A DNA sample obtained in good faith shall be deemed to have been obtained in accordance with the requirements of this article and its use in accordance with this article is authorized until a court order directing expungement is obtained and submitted to the bureau." PART IV

ยง4-1. (a) Parts I, II, and IV of this Act shall become effective upon its approval by the Governor or upon its becoming law without such approval, except as otherwise provided by subsection (b) of this section. (b)(1) Part III of this Act shall become effective only if HB 24, substantially revising, superseding, and modernizing provisions relating to evidence, is enacted during the 20112012 biennium of the General Assembly and becomes law on or before January 1, 2013, in which case Part III of this Act shall become effective on the same date that said HB 24 becomes effective. (2) Part II of this Act shall stand repealed if and when Part III of this Act becomes effective as provided by paragraph (1) of this subsection. (3) If said HB 24 does not become law on or before January 1, 2013, as provided by paragraph (1) of this subsection, then Part III of this Act shall stand repealed on January 1, 2013.

ยง4-2. All laws and parts of laws in conflict with this Act are repealed. SPONSOR'S RATIONALE

Senator Joshua McKoon introduced Senate Bill 80 to "[see] our justice system function to provide justice to victims and to

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protect the public."7 The Bill was a way to safeguard the citizens of Georgia by removing reoffending felons from society while exonerating falsely accused persons through DNA evidence.8 The Bill, known as the "Johnia Berry Act," was named after Johnia Berry, a Georgia native murdered in 2004 while attending graduate school in Tennessee.9 After Tennessee passed DNA legislation in 2007,10 Georgia became the final state in the Southeast to consider passing such a law. The Bill required anyone arrested for a felony, after a showing of "probable cause by a magistrate judge, grand jury, or court,"l2 to provide a cheek-swab DNA sample at the time they are booked at a state detention facility and have that DNA stored in the national database of Combined DNA Index System 7. E-mail from Sen. Joshua McKoon, to Tiffany Norris, Staff Member, John Marshall Law Journal (Aug. 29, 2011, 11:53 AM) [hereinafter Senator McKoon E-mail] (on file with Atlanta's John Marshall Law Journal). 8. Joshua McKoon, DNA: Why We Need the Johnia Berry Act, LEDGERhttp://www.1edger2011), (Apr. 3, ENQUIRER.COM enquirer.com/2011/04/03/1522299/dna.html [hereinafter Ledger Article]. 9. Teihet: Adopt DNA Expansion Act, MARIETTA DAILY J. (July 17, 2010),

http://www.mdjonline.com/view/fullstory/8795866/article-Teilhet--AdoptDNA-expansion-act. 10. See S.B. 1196, 105th Gen. Assemb., 1st Reg. Sess. (Tenn. 2007), available at http://state.tn.us/sos/acts/105/pub/pcO225.pdf. The Tennessee bill, entitled "Johnia Berry Act of 2007," was passed by the Tennessee legislature on May 9, 2007. Id. The bill amended Tennessee Code Annotated, Section 40-35-321 by adopting a provision that allowed local authorities to require a DNA sample from individuals arrested for violent felonies, including murder, kidnapping, assault, child abuse, burglary, robbery, and rape, among others. Id. The bill was signed by Tennessee Governor Phil Bredesen on May 24, 2007. Id. 11. See S.B. 2276, 2009 Leg. Sess., 1st Reg. Sess. (Fla. 2009) (enacted), available at http://laws.firules.org/files/Ch 2009-190.pdf; S.B. 87, 2008 Leg. Sess., 1st Reg. Sess. (Ala. 2008), available at http://alisondb.legislature.state.al.us/acas/SESSBillsStatusResultsMac.asp?Bi llNumber-sb87; H.B. 1403, 148th Gen. Assemb., 1st Reg. Sess. (N.C. 2009) (enacted),

available

http://www.ncga.state.nc.us/Sessions/2009/Bills/House/PDF/H1403v8.pdf; S.B. 890, 117th Gen. Assemb., 2d Reg. Sess. (S.C. 2008), available at http://www.scstatehouse.gov/sess 117_ 2 007-2008/bills/890.htm. 12. General Assembly Video:

Afternoon Senate Session 1, 30 Day

Crossover (Georgia Public Broadcasting internet broadcast Mar. 16, 2011), http://mediaml.gpb.org/ga/leg/201 1/ga-leg-senate_031611 PMI.wmv [hereinafter Senate Video].

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("CODIS").13 The CODIS software enables "[s]tate, local, and national law enforcement crime laboratories to compare DNA profiles electronically, thereby . .. matching DNA profiles from

crime scenes with profiles from convicted offenders."l 4 Former Georgia law "only require[d] DNA to be collected upon conviction of certain violent felonies."' 5 Senator McKoon stated that the reason for broadening the law to include all felonies was that "[m]any times violent criminals commit multiple offenses, some violent and others non-violent"' 6 and the research studies17 on criminal offenders tend to show that "a criminal [who] is convicted of one act, [may] have committed many other, more heinous crimes."' 8 During a Senate floor discussion just prior to voting to send the Bill to the House of Representatives, McKoon stated "DNA for all felonies is more effective with taking criminals off the street than just limiting the scope to violent felons."' 9 Senator McKoon believes that technology has allowed our society to have a more advanced way of identifying criminals and we should thus use the resources available to us. "DNA 13. Ga. S.B. 80, note 1. DNA would be on file with the Georgia Bureau of Investigation as well as the CODIS. Id. www.dna.gov/solving14. What is CODIS?, DNA INITIATIVE, crimes/cold-cases/howdatabasesaid/codis (last visited Dec. 15, 2011). 15. Keep GeorgiaSafe Honors GBI Director Vernon Keenan & Rep. Rob 2010), 8, (Mar. GEORGIASAFE.ORG Teilheit, http://keepgeorgiasafe.org/101/keep-georgia-safe-honors-gbi-directorvernon-keenan-rep-rob-teilhet. The violent felonies included under the former code section O.C.G.A ยง 24-4-63 included rape, sodomy, child molestation, bestiality, necrophilia, incest, burglary, robbery, impersonating an officer, among others. Ga. S.B. 80, supra note 1. 16. Senator McKoon E-mail, supranote 7. 17. See generally CITY OF CHICAGO, CHICAGO'S STUDY ON PREVENTABLE CRIMES (2005), www.dnasaves.org/files/ChicagoPreventableCrimes.pdf; DENVER DIST. ATTORNEY'S OFFICE, DENVER STUDY ON PREVENTABLE CRIMES, www.denverda.org/DNADocuments/ArresteeDatabase/Denver Preventable Crime Studyl.pdf; JAY SIEGEL & SUSAN D. NARVESON, WHY ARRESTEE DNA LEGISLATION CAN SAVE INDIANA TAXPAYERS OVER $60 MILLION PER YEAR (2009), MARYLAND www.dnasaves.org/files/IN_DNACostSavingsStudy.pdf; STUDY ON PREVENTABLE CRIMES (2007), www.dnasaves.org/files/MarylandDNAarresteestudy.pdf. 18. Senator McKoon E-mail, supra note 7. 19. Senate Video, supra note 12.

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identification is the 21st century version of fingerprinting."20 Requiring DNA from arrested felons is "not as invasive as the current laws allowing a booking officer to take fingerprints of everyone arrested, even on misdemeanor charges." 21 Senator McKoon stated that, although the major reason for the Bill was public safety, exonerating innocent persons was an equally important benefit to passing the Bill. 22 As an added safeguard to prevent innocent persons from being wrongly incarcerated, "anyone cleared of a felony charge can have his or her DNA removed from the database." 23 To qualify for expungement from the database a person must provide (1) a court order directing expungement, and (2) a written request for expungement.2 4 OPPOSITION'S RATIONALE

Those who oppose the Bill state that it is an invasion of privacy and a violation of the Fourth Amendment of the Constitution of the United States. 2 5 Senator Vincent Fort of the 39th district stated the Bill was an invasion of an individual's liberties, and the fact that Georgia's neighboring states have passed similar laws was not persuasive enough for Georgia to consider adopting such legislation. 26 Additionally, concerned citizens argue that individuals who have not committed a crime may be opened up to scrutiny after the passing of this Bill. 27 Individuals who have distant family members with very similar DNA structure could potentially have their rights violated because their DNA could be the same as the person who actually committed the crime.2 8 Another concern about the passage of the Bill was that the burden of proof for DNA to be expunged from the database is on the accused person instead of the State.2 9 Senators with 20. Ledger Article, supra note 8. 21. Id. 22. Senate Video, supra note 12. 23. Ledger Article, supra note 8. 24. See Ga. S.B 80, supra note 1. 25. Senate Video, supra note 12. 26. Id. 27. Ledger Article, supra note 8. 28. Id. 29. Senate Video, supra note 12.

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concerns about the Bill felt that, if an accused person was actually innocent, the burden should fall on the State to automatically expunge the falsely accused persons' DNA from the database. 30 Senators also voiced concerns that expungement should be made easier than the current process of making a motion before the presiding judge. 3 1 In light of these issues, both supporters and those with reservation agreed that expungement reform should be a topic addressed in future legislation.3 2 When a similar bill was introduced by former House Representative Rob Teilhet during the 2009-2010 Regular Session, Teilhet stated that he recognized the current backlog with the Georgia Bureau of Investigation ("GBI") in keeping up with the current DNA system, but that "[o]ne of the things we as a state have to do is simply decide that, consistent with our values, this [legislation] is a priority." 33 However, in a time of economic uncertainty and financial frugality which caused the GBI backlog, to fund the Bill would cost Georgia an upfront cost of $1 million in increased capital and an additional $3 million per year in DNA storage and personnel costs. 34 According to Senator McKoon, the Bill only becomes effective on the specific appropriation of funds, to avoid financial pressure to get funding. IMPLICATIONS IN GEORGIA

The Bill gives law enforcement another tool to use in the performance of their job duties. By allowing authorities access to national DNA databases, law enforcement will have the 30. See generally Senate Video, supra note 12. Senators who voiced concern with the burden of the expungement process being put on falsely accused individuals included Senator Doug Stoner of the 6th District, Senator Steve Thompson of the 33rd District, Senator Valencia Seay of the 34th District. Id. 31. Id. 32. Senator McKoon E-mail, supra note 7. 33. Evan Watson, New Bill Would Require Those Charged With a Felony to Give a DNA Sample, GA. DUI LAw BLOG (Feb. 2, 2010), http://www.georgiaduilawblog.com/category/blog. 34. Senate Video, supra note 12. 35. Id.

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opportunity to clear cold cases while at the same time removing dangerous individuals from the community. Allowing access to national databases may streamline the investigative process of GBI and local authorities by preventing them from duplicating their efforts in searching multiple databases in different jurisdictions. The more efficient process of conducting investigations could ultimately mean a cost savings to the investigative units. The Bill could also increase criminal justice jobs throughout Georgia. Legislators have said that, although the Bill would have upfront costs, in the long run, expanding the DNA database would save costs and create more criminal justice jobs. 3 6 Additionally, if the DNA database is later expanded to include misdemeanor as well as felony offenses, the system will require an increase in criminal justice resources possibly in both the public and private sectors. The Bill also has the potential to exonerate individuals who are falsely accused through the use of DNA evidence. 37 In other states with similar legislation, DNA evidence has exonerated individuals who were accused or incarcerated for crimes they did not commit. 38 Also, Georgia has cited examples of individuals who would have been exonerated had a DNA been taken from felons.3 9 Although the Bill allows falsely accused individuals to have their DNA expunged from the database, 4 0 the Bill has made apparent the need for expungement reform.4 ' Senate floor discussion revealed the current expungement process is burdensome and largely unknown to accused individuals.4 2 As such, Senator Valencia Seay of the 34th district, brought up the need to educate falsely accused persons about the expungement

36. Id. 37. Senate Video, supra note 12. 38.

See generally Facts on

Post-Conviction DNA

INNOCENCE

Exonerations, PROJECT,

http://www.innocenceproject.org/Content/Facts-onPostConvictionDNAE xonerations.php (last visited Dec. 15, 2011). 39. See generally Ledger Article, supra note 8. 40. Ga. S.B. 80, supra note 1.

41. Senator McKoon E-mail, supra note 7. 42. Senate Video, supra note 12.

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process and discussed the need for expungement reform. 4 3 However, the Senate agreed that expungement reform would be addressed during future legislation, leaving the issue unsettled at the time of this publication. LEGISLATIVE GENEALOGY

former Session, Regular the 2009-2010 During Representative Rob Teilhet of the 40th district proposed House Bill 1033, which was entitled the "Johnia Berry DNA Saves Act of 2010." 4 The Bill was read for the first time by the House on February 1, 2010, and the second time on February 2, 2010.46 The Bill was assigned to the Public Safety and Homeland Security committee, but there was no further action taken during that legislative session. 4 7 The 2011-2012 Regular Session produced Senate Bill 80 from Senator McKoon, entitled the "Johnia Berry Act," which was first read by the Senate February 15, 2011.48 After a favorable reporting by the Senate State Institutions and Property Committee on March 8, 2011, the Bill was read by the Senate for a second time on March 10, 2011.49 The Bill then passed the Senate by a vote of 39 to 13 after a third reading on March 16, 2011.50 The House of Representatives first read Senate Bill 80 on March 21, 2011.51 The House then referred the Bill to the 43. Id.

44. Id.

45. H.B. 1033, 150th Gen. Assemb., 2d Reg. Sess. (Ga 2010), available at http://www.legis.ga.gov/Legislation/20092010/98246.pdf. 46. 2009-2010 Regular Session-HB 1033, DNA analysis; persons arrested ASSEMB., GA. GEN. provide, offenses; felony for http://www.legis.ga.gov/legislation/en-US/display/29338 (last visited Dec. 15, 2011). 47. Id. A possible scenario is the bill failed to pass the House due to budget shortfalls. See generally Attorney General Candidate Rob Teilhet Fights for DNA Database Expansion, GA. POLITICO (Jul. 1, 2010),

http://gapolitico.com/en/2010/07/01/attorney-general-candidate-rob-teilhetfights-for-dna-database-expansion. 48. S.B. 80 Status Sheet, supra note 6. 49. Id. 50. Id.

51. Id.

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House's Judiciary Non-Civil Committee after its second reading on March 22, 2011.52 The Committee reported back to the House in favor of the Bill on March 28, 2011.53 The Committee report included amendments to the Bill, which also included amendments to O.C.G.A. 5-5-41 pertaining to requirements relating to extraordinary motions for a new trial and maintenance of physical evidence containing biological matter, O.C.G.A. 17-5-56 pertaining to maintenance of physical evidence contacting biological material, and re-designated Chapter 4 of Title 24 to Chapter 3 of Title 25.5 The Bill was read a third time by the House on April 12, 2011, and the Bill, including the amendments to the aforementioned code sections, was passed by a vote of 140 to 31. Upon the passing by the House, the Bill went back to the 56 Senate to approve the amendments. The Senate approved the House amendments by substitution on April 14, 201 1. On April 22, 2011 the Senate sent Senate Bill 80 to Governor Nathan Deal for his signature. Governor Deal signed the Bill into law as Act 67, and it became effective on May 11, 2011.59 Prepared by: Tiffany Norris

52. Id. 53. Id.

54. S.B. 80, 15 1st Gen. Assemb., 1st Reg. Sess. (Ga. 2011) (Substitute), availableat http://www.legis.ga.gov/Legislation/20112012/114222.pdf. 55. S.B. 80 Status Sheet, supra note 6. 56. Id.

57. Id. 58. Id. 59. Id.