Western Michigan University Thomas M. Cooley Law Review - Volume 34 | 2017

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

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

Cherie L. Beck – Corporate Secretary

Kathleen A. Conklin – Chief Financial Officer, Treasurer

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

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

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

PROFESSORS EMERITI Sherry Batzer Lewis Langham Donna McKneelen Norman PlateDan Ray

James Carey Ashley Lowe Monica Navarro Kevin Scott Karen Truszkowski

Heather Garretson Paul Marineau Florise Neville-Ewell Lorna Patricia Thorpe-Mock

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

Christine Church Associate Dean and Professor of Law

Karen Gustafson Assistant Dean and Associate Professor

Lisa Halushka Assistant Dean and Professor of Law

Laura LeDuc Associate Dean of Planning, Assessment & Accreditation

Mable Martin-Scott Assistant Dean and Professor of Law

Michael McDaniel Associate Dean and Professor of Law

Charles C. Mickens Associate Dean of Innovation and Technology

Nelson P. Miller Associate Dean and Professor of Law

James D. Robb Associate Dean of External Affairs

Duane A. Strojny Associate Dean and Professor of Law

Ronald Sutton Associate Dean and Professor of Law

Amy Timmer Associate Dean and Professor of Law

Charles R. Toy Associate Dean of Career & Professional Development

Joan Vestrand Associate Dean and Professor of Law

Paul J. Zelenski Associate Dean of Enrollment & Student Services

PROFESSORS Frank C. Aiello Brendan Beery Paul Carrier Lisa DeMoss David Finnegan Dustin Foster Christopher Hastings Barbara Kalinowski Gerald MacDonald Michael K. Molitor Kimberly Oâ&#x20AC;&#x2122;Leary John N. Scott Stevie J. Swanson Patrick Tolan

Tammy Asher Erika Breitfeld Bradley Charles Mark Dotson Gerald Fisher Marjorie Gell Richard C. Henke Linda Kisabeth Daniel W. Matthews Martha Moore Lauren Rousseau Dan Sheaffer Jeffrey Swartz Christopher Trudeau Victoria Vuletich

Gary Bauer Jeanette Buttrey Mark Cooney Renalia DuBose Anthony Flores Katherine Gustafson Emily Horvath Tonya Krause-Phelan Marla Mitchell-Cichon Monica Nuckolls Devin Schindler Paul Sorensen David Tarrien Gerald Tschura

ADJUNCT PROFESSORS Wafa Adib-Lobo Geoffery Aurini Amy Bandow Kristina Bilowus William Burleson Joseph Celello Russel Church Pat Corbett Victoria Cruz-Garcia Janice Cunningham Steve Dolan Lisa Fadler William Fleener Rachel Glogowski Christi Henke Timothy Innes Julie Janeway Caroline Johnson Levine Justin Lighty Peggy MacDougall Sarah Matwiesczyk Thomas Moga Nicholas Nazaretian John Pierce Daniel Reinecke Traci Schenkel Kim Seace Michael Shea Daniel Stauffer Regina Thomas Victor Veschio

Mustafa Ameenuddin Byron Babbish Joseph Bellanca David Bilson James Carey Steven Cernak Vickie Coe Michael Costello Lindsay Cummings Richard DiGiacomo Douglas Dosson Steven Fantetti Richard Garcia Michael Hanrahan Daniel Houlf Woodon Isom Jr. Lewis Langham Bryan Levy Kymberlie London Steven Mann Tiffany McEvans Thomas Myers Steven Owen Kerry Przybylo Dale Reitberg Charles Schutze Carly Self Valerie Simmons Robert Stocker David Tirella Michael Walton Dionnie Wynter

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James Anderton Jamie Baker David Berry Charles Bullock Terrence Cavanaugh Eric Cholack Patrick Conlin Jr Martin Critchell James Cunningham Stacey Dinser Heather Dunbar Joseph Farah Jack Gilbreath Robert Heitmeyer Michael Hughes Ronald Jacobs Lawrence Lefler Shari Lesnick Matthew Lucas Matthew Marin Scott Mertens John Nicolucci Dee Pascoe Thomas Rasmusson Christopher Sabella Kevin Scott Thomas Shaevsky Eric Skinner Brad Sysol Gregory Ulrich Graham Ward

WESTERN MICHIGAN UNIVERSITY THOMAS M. COOLEY LAW REVIEW HILARY 2017 BOARD OF EDITORS Luciana Viramontes Editor-In-Chief Andrew Hendra Interim Editor-In-Chief

Alison Brajdich Managing Editor Eric Langton Subcite Editor

Alysha Warren Symposium Editor

Shane Henry Articles Editor

I. Eric Nordan Solicitation Editor

Megan Leyva Interim Articles Editor

Mark Cooney Faculty Advisor

ASSISTANT EDITORS Amanda Miller Amanda Mendez

Andrea Randall Brandon Grysko Adrienne McClain

Matthew Demint Elisa Roeseler

MANAGING ASSOCIATE EDITORS David Lee Natalie Winquist

SENIOR ASSOCIATE EDITORS Sheila M. Lake Erick Bradtke Najla Mackie

Sara Trudgeon Colleen Hinson Nicholas Gobbo

Michael Parish Andrew Collison

ASSOCIATE EDITORS Shelika Tate Rachael Joss

Theresa Ferriolo Tiffany Shelton

Jennifer Wilburn

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

WMU-COOLEY LAW REVIEW TRINITY 2017 BOARD OF EDITORS Andrew Hendra Editor-In-Chief Alison Brajdich Managing Editor

Alysha Warren Symposium Editor

Christina M. Reid Interim Managing Editor

Erinn R. Kane Interim Symposium Editor

Eric Langton Subcite Editor

Dr. I. Eric Nordan Solicitation Editor

McKay Gregory Miles Interim Subcite Editor

Tiffany Shelton Interim Solicitation Editor Mark Cooney Faculty Advisor

Megan Leyva Articles Editor

ASSISTANT EDITORS Amanda Miller Amanda Mendez

Andrea Muroto Bilabaye Brandon Grysko Dylan Van Tubergen

Matthew Demint Ken Ono

MANAGING ASSOCIATE EDITORS David Lee Brittany Van Camp

SENIOR ASSOCIATE EDITORS Shelika Tate

Rachael Joss Theresa Ferriolo

Jen Wilburn

ASSOCIATE EDITORS Marc C. Hansen Jose G. Mancera

Carrie E. Trimpe Sharon Plavnick Nathan Quebbeman

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Cody Brooks Katherine Taylor

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WMU-COOLEY LAW REVIEW MICHEALMAS 2017 BOARD OF EDITORS Andrew Hendra Editor-In-Chief Tami Salzbrenner Interim Editor-In-Chief

Christina Reid Managing Editor McKay Miles Subcite Editor

Erinn Kane Symposium Editor

Megan Leyva Articles Editor

Tiffany Shelton Solicitation Editor

Jessie Thueme Interim Articles Editor

Mark Cooney Faculty Advisor

ASSISTANT EDITORS Amanda Miller Amanda Mendez

Andrea Muroto-Bilabaye Meagan Jones

Dylan Van Tubergen

MANAGING ASSOCIATE EDITORS Nicholas Gowings Brittany Van Camp

SENIOR ASSOCIATE EDITORS Marc C. Hansen Jose G. Mancera Theresa Ferriolo

Rachael Joss Carrie E. Trimpe Sharon Plavnick Nathan Quebbeman

Cody Brooks Katherine Taylor Jen Wilburn

ASSOCIATE EDITORS Ryan Moore

Parisa Sadrina

Geoffrey Bilabye

Contents

Volume 34

2017

Fall Issue

From the Editor ............................................................................... xiii Distinguished Briefs Gro-Green Farm's Application for Leave To Appeal John J. Bursch and Matthew T. Nelson. ............................................. 1 Articles Tug v. Mingo: Let the Plaintiffs Sue—Opioid Addiction, the Wrongful Conduct Rule, and the Culpability Exception Lauren Rousseau and Dr. I. Eric Nordan .......................................... 33 Executive Order “Protecting the Nation from Foreign Terrorist Entry into the United States”: Violating First Amendment Rights or Altering Constitutional Provisions Granting Foreign Policy Powers to the President? Melissa Brooke Winkler ................................................................... 79 Improving Traffic Safety Outcomes by Engaging Suspended and Revoked Drivers Thomas A. Ginster .......................................................................... 111 “Girls Will Be Boys, and Boys Will Be Girls”: The Emergence of the Transgender Athlete and a Game Plan for High Schools That Want to Keep Their Playing Fields Level For All Student Athletes Ray D. Hacke .................................................................................. 121

Comments Golf-Course Greens Fees: License Fees or Land Income? Peter J. Mancini .............................................................................. 159 A Primer on Michigan Firearms Regulation, University Campuses, and Constitutional Interpretation Jason B. Puscas ............................................................................... 201

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FROM THE EDITOR The Western Michigan University Thomas M. Cooley Law Review board of editors is pleased to bring you the first issue of Volume 34. In this issue, we bring you a wide assortment of articles in various formats. First, we are excited to include one of the two award-winning briefs of the 2017 Distinguished Brief Awards hosted by the Western Michigan University Cooley Law Review. We are also pleased to publish articles written by prominent practicing attorneys and Western Michigan University Thomas M. Cooley Law School Professors. The first article, by Professor Lauren Rousseau and Dr. I. Eric Nordan, addresses the opiate epidemic and the advances in the law that could help combat it. The second article, by Melissa Brooke Winkler, provides a valuable discussion about constitutionality of President Trumpâ&#x20AC;&#x2122;s executive orders on foreign entry into the US. Our third article, authored by Thomas A. Ginster, provides us with a new approach to improve traffic safety outcomes. Lastly, our fourth article, by Ray D. Hacke, provides a look at the emergence of transgender athletes and the application of Title IX. Finally, we are proud to present two student-written pieces (at least they were students when they were written, Peter Mancini has since graduated). The first comment, by Peter Mancini, examines the treatment of golf courses in secured transactions. The second piece, by Jason Puscas, explores the relationship between the unique constitutional autonomy enjoyed by Michigan's universities and the legislative authority to preempt the regulation of firearms in the state. I would like to thank our patrons and subscribers that continue to give us their support. It is currently as important as ever that academic legal work continues. I would also like to thank all the members of our law review that have worked overtime to ensure that this issue was completed. As law school enrollment is down across the country, Law Review enrollment has also taken a hit. Without the contributions of each one of our members, this collection of academic work could not exist. Lastly, I would like to thank our faculty for their supportâ&#x20AC;&#x201D;including Professor Mark Cooney, for his commitment, dedication, and continuous support of our publication, and our library liaisons. Please enjoy this issue of the Western Michigan University Thomas M. Cooley Law Review.

Sincerely, Andrew Hendra

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DISTINGUISHED BRIEF The Distinguished Brief Award is given in recognition of the most scholarly briefs filed before the Michigan Supreme Court, as determined by a panel of eminent jurists. Three briefs are chosen each year and printed in the Western Michigan University Thomas M. Cooley Law Review. To preserve the authors’ style, the brief has been reprinted in its entirety, exactly as submitted to the Michigan Supreme Court. INTRODUCTION FREMONT INSURANCE COMPANY, STEVE & DIANE FOLEY d/b/a RAINBOW CREEK FARMS, Plaintiffs-Appellant/Cross-Appellees, v. GRO-GREEN FARMS, INC, Defendant-Appellee/Cross-Appellant. Gro-Green Farms, Inc. was sued because its straw bales allegedly spontaneously combusted and burned down its customer’s barn. The plaintiffs submitted expert testimony that the presence of clinkers— glassy, irregular masses formed by melted sand and other impurities in the baled straw—proved spontaneous combustion. The circuit court excluded the expert’s testimony based on more recent studies finding that clinkers form in fires started by spontaneous combustion and external ignition. The Court of Appeals reversed. In its application, Gro-Green argued that the evidence the Court of Appeals allowed into evidence is unreliable junk science. Gro-Green explained that the Court of Appeals’ review of orders excluding expert testimony is supposed to apply an abuse-of-discretion standard, but the Court of Appeals reverses such decisions more than 70% of the time. Gro-Green asked the Michigan Supreme Court to take the case to address this trend which continues despite the Michigan Supreme Court’s rebuff in Elher v Misra, 499 Mich 11 (2016). The Michigan Supreme Court declined. As my colleague noted, it’s too bad that the Michigan Supreme Court does not take applications based on the quality of the writing!

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BIOGRAPHICAL STATEMENT John J. Bursch- founded Bursch Law PLLC (www.burschlaw.com), which focuses on complex litigation matters involving high-stakes issues, substantial publicity, and the highest levels of the court system. With a regular U.S. Supreme Court practice and a dominant Michigan Supreme Court presence, John represents some of the nation's largest and most respected companies as well as states, Governors, Attorney Generals, and other public officials. John previously served three years as Michigan Solicitor General and 15 years at Warner Norcross & Judd LLP, where he founded and co-chaired the Firm's Appellate & Supreme Court Practice and the One Court of Justice Blog (www.ociblog.com). John recently argued his 11th case in the U.S. Supreme Court and his 26th in the Michigan Supreme Court. He is a Fellow of the American Academy of Appellate Lawyers, a Member of the American Law Institute, past chair of the American Bar Association's Council of Appellate Lawyers, a Best Lawyers 2017 Appellate Practice "Lawyer of the Year," a Michigan Super Lawyers "Top 100" attorney, and an adjunct faculty member for the Western Michigan University Thomas M. Cooley Law School. John was awarded three Best Brief Awards from the National Association of Attorneys General for his work in the U.S. Supreme Court, one for each year he served as Solicitor General. He is receiving his record 7th and 8th Distinguished Brief Awards from the Western Michigan University Thomas M. Cooley Law Review. Matt Nelson-is the chair of the Appellate and Supreme Court practice at Warner Norcross & Judd LLP. He has successfully argued cases to various appellate courts including the United States Supreme Court. Last term, he participated in two U.S. Supreme Court merits cases; one involving copyrighting cheerleader uniforms and the other, immigration sanctions for criminal conduct. He went 1 for 2. If you have a cheerleader in the family, itâ&#x20AC;&#x2122;s not his fault that the uniforms are so expensive! A graduate of Notre Dame Law School, Matt has been named a Best Lawyer, a Super Lawyer, and an Up & Coming Lawyer by Michigan Lawyers Weekly. Matt has received two previous distinguished brief awards, and is honored to receive an award again this year.

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TUG V. MINGO: LET THE PLAINTIFFS SUE— OPIOID ADDICTION, THE WRONGFUL CONDUCT RULE, AND THE CULPABILITY EXCEPTION LAUREN ROUSSEAU* I. ERIC NORDAN** ABSTRACT The United States is in the throes of a drug epidemic that is killing an average of 175 people per day, driven largely by addiction to opioid drugs. The drive to obtain these drugs often leads to criminal behavior, such as forging prescriptions, lying to obtain drugs, and unlawfully possessing and using drugs – behavior which has also been recognized as symptomatic of the disease of addiction. Many jurisdictions have adopted some form of the “wrongful conduct rule”, which in essence provides that when a claim is based in whole or in part on a party’s * Lauren Rousseau is a tenured Professor of Law at Western Michigan University Cooley Law School. She chairs the school’s Civil Procedure, Evidence & Practice Skills Department, and has served as Assistant Dean at two of the school’s campuses. She also sits on the Boards of Directors of several nonprofit organizations, including the Northwest Wayne County Chapter of Families Against Narcotics, where she serves as President; Home of New Vision, an addiction treatment nonprofit corporation; and Access to Bankruptcy Court, a nonprofit corporation providing pro bono bankruptcy services to indigent clients. She has spoken and written extensively on the subject of addiction and the opioid epidemic, including co-presenting a webinar for the State Bar of Michigan on this subject. In September 2016, Professor Rousseau was honored as one of Michigan Lawyers Weekly’s Women in the Law, in recognition of her work in the realm of addiction treatment, education, and advocacy. Before coming to WMU Cooley, Professor Rousseau held positions as general counsel of a mid-sized automotive supplier; senior litigation attorney at Ford Motor Company; and associate attorney for the Detroit law firm Dykema Gossett. She received both her Bachelor of Arts degree and her Juris Doctor degree from the University of Michigan. She can be contacted at rousseal@cooley.edu. ** Dr. I. Eric Nordan, RPh. will graduate from the WMU-Cooley Law School— summa cum laude—in January 2018. He is a graduate of the University of Michigan with a BS in Chemistry and Medicinal Chemistry as well as a Doctor of Pharmacy. Working as a community pharmacist for over 15 years and as a pharmacy compliance/FWA auditor for 6 years, Dr. Nordan developed a strong interest in the mechanisms and complications of opioid misuse and abuse. He currently works as a law clerk/consultant in Birmingham, Michigan and may be contacted at nordani@cooley.edu.

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own unlawful or immoral conduct, that claim is barred and the party cannot recover. Multiple courts have applied this rule to drugaddicted plaintiffs, holding that they are barred from recovering civilly from doctors, pharmacists, or pharmaceutical companies for wrongfully creating or perpetuating their addictions, due to the unlawful conduct associated with the plaintiffs’ drug use. The West Virginia Supreme Court in Tug v Mingo broke with this precedent, deciding instead that principles of comparative negligence should be applied to the claims of plaintiffs against the defendant medical providers. The plaintiffs alleged that the defendants created or perpetuated the plaintiffs’ drug seeking behavior by deliberately engaging in unlawful prescribing and dispensing practices. This article argues that, as awareness of prescription drug misuse and addiction broadens, and as policymakers, the judiciary, and the community-at-large begin to view addiction less as morally depraved behavior and more as a health issue, it becomes harder to justify application of the “wrongful conduct rule” to bar a plaintiff’s recovery in cases like Tug. When medical providers, pharmacists, or pharmaceutical companies deliberately engage in behavior that creates or perpetuates a plaintiff’s addiction, the “wrongful conduct” of the plaintiff that is symptomatic of his disease should not completely bar his recovery.

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TABLE OF CONTENTS I. INTRODUCTION ............................................................................... 35 II. SUBSTANTIVE BACKGROUND ........................................................ 41 A. Addiction and Opioid Use Disorder .................................. 41 B. Regulation of Controlled Substances ................................. 44 C. Fiduciary Relationships ..................................................... 46 D. CDC Guidelines for Opioid Prescribing and Monitoring. 47 E. Prescription Drug Monitoring Programs .......................... 50 III. DRUG ADDICTION AND THE WRONGFUL CONDUCT RULE .................................................................................... 52 A. Orzel v. Scott Drug Co. (1993) .......................................... 55 B. Pappas v. Clark (1992) ...................................................... 57 C. Foister v. Purdue Pharma (2003)...................................... 57 D. Price v. Purdue Pharma (2006) ........................................ 59 E. Kaminer v. Eckerd Corp. of Florida (2007) ...................... 60 IV. TUG V. MINGO: A BREAK WITH PRECEDENT (2015)......... 60 A. Facts................................................................................... 60 B. Opinion Summary .............................................................. 64 C. The Majority Opinion ........................................................ 65 D. The Concurring Opinion ................................................... 68 E. Dissenting Opinions ........................................................... 69 V. POLICY IMPLICATIONS .......................................................... 71 VI. CONCLUSION ............................................................................... 77 I. INTRODUCTION The modern era of drug addiction began with good intentions in the early 1990s. The World Health Organization and other professional groups published guidelines on opioid1 use for treating cancer pain.2 1. See generally Drugs of Abuse: Opioids, NAT’L INST. ON DRUG ABUSE, http://www.drugabuse.gov/drugs-abuse/opioids (last visited Jul. 12, 2016) (classifying opioids as a class of medications used to treat pain and diarrhea). Many new drugs are synthesized by chemically modifying naturally occurring alkaloids in the opium poppy resin. Drug Record: Opioids, Opioid Antagonists, U.S. NAT’L LIBRARY OF MED., https://livertox.nlm.nih.gov/Opioids.htm (last visited Jul. 21, 2016). 2. See Diane E. Hoffman, New Perspectives on Familiar Issues: Treating Pain v. Reducing Drug Diversion and Abuse: Recalibrating the Balance in Our Drug Control Laws and Policies, 1 ST. LOUIS U. J. HEALTH L. & POL’Y 231, 267 (2008).

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In 1996, the American Pain Society introduced the phrase “pain as the 5th vital sign” and launched an initiative emphasizing the importance of pain assessment and the responsibility of clinicians to take action when patients reported pain.3 By the mid-to-late nineties, professional groups and state medical boards determined that pain was undertreated in the United States, and guidelines were issued for treating nonmalignant chronic pain.4 The pharmaceutical industry capitalized on the changing attitudes towards pain management, recommending the use of opioid pain relievers to treat not only severe, short-term pain but to treat less severe, chronic pain as well. In December 1995, the federal Food and Drug Administration approved Purdue Pharma’s novel oxycodone product:5 OxyContin.6 Because OxyContin was a controlled-release product, it contained more active drug than existing oxycodone products, giving prescribers a new option for long-term pain management therapy. In their marketing literature, pharmaceutical companies like Purdue claimed that their opioid medications were virtually nonaddictive when used for pain.7 Purdue began aggressively marketing OxyContin to prescribers as a treatment option for nonmalignant chronic pain, and sales of OxyContin exploded—going from $48 million in 1996 to almost $1.1 billion in 2000.8 In 2001, Purdue spent

3. NAT’L PHARM. COUNCIL, PAIN: CURRENT UNDERSTANDING OF ASSESSMENT, MANAGEMENT, AND TREATMENTS 21 (2001), http://www.npcnow.org/system/ files/research/download/Pain-Current-Understanding-of-Assessment-Managementand-Treatments.pdf. 4. See id. 5. See generally Richard C. Ausness, Symposium–Prescription Drug Abuse: The Law’s Struggle to Address an Epidemic: The Role of Litigation in the Fight Against Prescription Drug Abuse, 116 W. VA. L. REV. 1117, 1118–19 (2014) (stating oxycodone is a synthetic opioid developed in 1916 and was the active ingredient in pain medications such as Percocet, Percodan, and Tylox, and stating that those medications were typically dosed every four to six hours, thus creating the need for a once or twice daily dosage form like OxyContin). 6. See Melissa M. Ferrara, The Disparate Treatment of Addiction-Assistance Medications and Opiate Pain Medications Under the Law: Permitting the Proliferation of Opiates and Limiting Access to Treatment, 42 SETON HALL L. REV. 741, 749 (2012). 7. Art Van Zee, The Promotion and Marketing of OxyContin: Commercial Triumph, Public Health Tragedy, AM. J. PUB. HEALTH (2009), https://www. ncbi.nlm.nih.gov/pmc/articles/PMC2622774/. 8. Id.

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$200 million in marketing and advertising to promote OxyContin.9 By 2009, prescribers wrote over six million prescriptions for OxyContin; retail sales were roughly $3 billion.10 However, the claims of Purdue and others that opioid medications were non-addictive when used for pain were based on faulty science.11 In fact, opioid pain medications are extremely addictive. Purdue has been repeatedly sued based on the company’s misrepresentations about the addictive nature of its opioid drugs and, in fact, pled guilty to systematically misleading regulators, doctors, and patients about the addictive potential of OxyContin in 2007.12 The company has paid millions of dollars to settle such lawsuits.13 Other opioid drug manufacturers have also been sued for similar misrepresentations.14 The dangers of prescription painkiller abuse are now well documented.15 The Centers for Disease Control and Prevention (CDC)

9. Id. 10. Ausness, supra note 5, at 1119. 11. Sonia Moghe, Opioid history: From ‘wonder drug’ to abuse epidemic, CNN (Oct. 14, 2016), http://www.cnn.com/2016/05/12/health/opioid-addiction-history/. 12. Barry Meier, In Guilty Plea, OxyContin Maker to Pay $600 Million, N.Y. TIMES (May 10, 2007), http://www.nytimes.com/2007/05/10/business/11drugweb.html. 13. Moghe, supra note 11 (Purdue Pharma pleaded guilty in 2007 to systematically misleading regulators, doctors, and patients about OxyContin’s risk of addiction and potential for abuse). 14. See, e.g., Chicago v. Purdue Pharma, 211 F. Supp. 1058 (N.D. Ill. 2016); Counties sue narcotics makers, L.A. TIMES (May 21, 2014), http:// documents.latimes.com/counties-sue-narcotics-makers/; Stephanie Gosk & David Douglas, OxyContin Maker Purdue Pharma Hit with Unprecedented Lawsuit by Washington City, NBC NEWS (Mar. 9, 2017), http://www.nbcnews. com/storyline/americas-heroin-epidemic/oxycontin-maker-purdue-pharma-hitunprecedented-lawsuit-washington-n731571; Drugmakers and distributors face barrage of lawsuits over opioid epidemic, THE WASHINGTON POST (July 4, 2017), https://www.washingtonpost.com/investigations/drugmakers-anddistributors-face-barrage-of-lawsuits-over-opioid-epidemic/2017/07/04/3fc33c645794-11e7-b38e-35fd8e0c288f_story.html?utm_term=.eb6453c2fb5b. 15. E.g. Prescription Drug Misuse and Abuse, SUBSTANCE ABUSE & MENTAL HEALTH SERVICES ADMIN., https://www.samhsa.gov/prescription-drug-misuseabuse (indicating about “fifteen million people aged twelve or older used prescription drugs non-medically in the past year”); Number and Age-Adjusted Rates of Drug-poisoning Deaths Involving Opioid Analgesics and Heroin: United States, 2000-2014, NAT’L CTR. FOR HEALTH STATISTICS (2015), https://www.cdc.gov/ nchs/data/health_policy/AADR_drug_poisoning_involving_OA_Heroin_US_2000 -2014.pdf (showing 18,893 overdose deaths related to prescription pain relievers).

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consider painkiller abuse a “health epidemic.”16 Since 2000, drug overdose deaths nationally have more than doubled, reaching 52,404 deaths in 2015.17 This increase was largely driven by opioid overdoses, including heroin. In 2015, the overdose deaths from all opioids, including heroin, were 33,091.18 Overdose deaths from prescription opioids alone were 20,101.19 There is a link between prescription painkiller abuse and heroin addiction. Both are opiate-based, and the majority of heroin addicts start as prescription pain pill addicts.20 Opioid addicts often turn to heroin when pills become unavailable or too expensive.21 Many factors are proposed as to the cause of prescription opioid abuse and mortality: state poverty levels, unwillingness of state and federal legislatures to pay for treatment programs, pharmaceutical industry marketing campaigns, a general overprescribing of opioid medications by physicians,22 workman’s compensation regulations, drug dealers, and the rise of the “pill mill.”23 A pill mill is a doctor, clinic or pharmacy that is prescribing or dispensing powerful narcotics

16. See Opioid Overdose, CTR. FOR DISEASE CONTROL & PREVENTION, https://www.cdc.gov/drugoverdose/ (last visited July 7, 2017). 17. Opioid Addiction: 2016 Facts and Figures, AM. SOC’Y OF ADDICTIVE MED. (2016), http://www.asam.org/docs/default-source/advocacy/opioid-addictiondisease-facts-figures.pdf. (In September 2017, the National Institute of Health released drug overdose statistics for 2016, revealing that our nation’s current drug epidemic continues to worsen. More than 64,000 people died of drug overdose in the United States in 2016, an increase of 21% over 2015 and an average of more than 175 deaths per day.); See National Institute on Drug Abuse Overdose Death Rates, https://www.drugabuse.gov/related-topics/trends-statistics/overdose-death-rates (last visited September 25, 2017). 18. Id. 19. Id. 20. Id. 21. 5 Reasons Prescription Addiction Turns to Heroin, NARCONON, http://www.narconon.org/blog/heroin-addiction/5-reasons-prescription-addictionturns-to-heroin/ (last visited July 2, 2017). 22. The United States is home to approximately five percent of the world’s population, yet it prescribes more than 80% of the world’s opioid medications, nearly 260 million prescriptions for opioids were written in the United States in 2012. See Stephen R. Smith, Pain and Profit, CMTY. CATALYST (Sept. 25, 2014), http://www.communitycatalyst.org/blog/pain-and-profit#.VVZh17lViko. 23. See generally Scott Finn, The Front Porch: Who’s to Blame for Appalachia’s Drug Addiction?, WV PUB. BROAD. (May 29, 2015), http://wvpublic.org/post/frontporch-whos-blame-appalachias-drug-addiction.

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inappropriately or for non-medical reasons.24 Pill mills are generally staffed by unethical prescribers operating on a cash-only basis where very little clinical patient contact occurs.25 Essentially, these prescribers are tantamount to illegal drug dealers. The widespread abuse of opioids, OxyContin in particular, hit areas of Appalachia particularly hard.26 West Virginia was among the first group of states reporting OxyContin diversion and abuse.27 The drug overdose death rate in West Virginia was the highest in the nation in 2011—36.2 deaths per 100,000 residents, which is more than the national average and nearly double the state’s rate in 2006.28 This has risen even further in the following years to 41.5 deaths per 100,000 residents in 2015.29 The state with the next highest overdose rate is New Hampshire with 34.3 deaths per 100,000 residents.30 The West Virginia Supreme Court, in Tug Valley Pharmacy v. Mingo, is the first high court in the nation to recognize that patients addicted to controlled substances who engage in the criminality associated with drug addiction should be allowed to sue prescribing physicians and dispensing pharmacists who cause or perpetuate the addiction for pecuniary gain.31 Over time, there has been an increasing number of physicians and pharmaceutical companies that have been sued or prosecuted for 24. See Jonathon S. Miller, In the Pill Mill Age, It’s Time Florida Invokes a “Healthcare Privilege” Providing Pharmacists Layered Insulation from Defamation, 90 FLA. BAR J. 33, 33 (2016) (defining “pill mill” as “[a]ny doctor or clinic that prescribes narcotics for nonmedical reasons or in excess of accepted standards of medical care in the community”). 25. Peter Johnson, Florida’s Opioid Crisis Fueled by Pill Mills, DRUGREHAB.COM (Mar. 1, 2017), https://www.drugrehab.com/2017/03/01/floridapill-mill-crisis/. 26. See Ausness, supra note 5, at 1119. 27. Mark Rose, Course # 96100: Prescribing Opioids and Preventing Drug Diversion: The West Virginia Requirement (2014), NETCE, http:// www.netce.com/courseoverview.php?courseid=1051 (last visited July 12, 2016). 28. Id.; see Rose A. Rudd et al., Morbidity and Mortality Weekly Report (MMWR): Increases in Drug and Opioid Overdose Deaths – United States, 20002014, CTR. FOR DISEASE CONTROL & PREVENTION (Jan. 1, 2016), https://www.cdc.gov/mmwr/preview/mmwrhtml/mm6450a3.htm (providing stateby-state drug and opioid mortality data). 29. Drug Overdose Death Data, CTR. FOR DISEASE & PREVENTION, https:// www.cdc.gov/drugoverdose/data/statedeaths.html (last visited July 10, 2017). 30. Id. 31. See Tug Valley Pharm. v. All Plaintiffs Below in Mingo Cty., 773 S.E.2d 627, 628 (W. Va. 2015).

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marketing or prescribing opioid medications in a manner that is now recognized to have fueled the current opioid epidemic.32 Physicians have been criminally prosecuted for dispensing opioids that resulted in a patient’s death or when the courts determined there was no legitimate medical purpose for the prescription.33 But no high court before Tug has recognized a drug-addicted plaintiff’s right to pursue a civil cause of action for monetary damages against medical providers who allegedly caused or perpetuated his addiction through improper prescribing practices. In recognizing that right, the court in Tug held that precepts of comparative negligence should be applied to assess the wrongdoing and relative fault of the parties, rather than applying the “wrongful conduct rule,” to bar the plaintiff’s cause of action.34 This paper examines the Tug v. Mingo decision and argues the importance of allowing drug-addicted patients to sue unscrupulous providers who knowingly cause or perpetuate the drug-addicted patient’s addiction. Part II provides a substantive background on addiction and opioid use disorder, the regulation of controlled substances in the United States, and the fiduciary relationship between healthcare practitioners and patients. The new CDC guidelines for chronic opioid prescribing will be discussed, as well as a review of prescription drug monitoring programs that are used to identify use and abuse patterns of controlled substances. Part III will introduce the foundational basis for the wrongful conduct rule and will examine other wrongful conduct cases involving drug misuse. Part IV will examine the Tug decision in detail, including the majority, concurring, and dissenting opinions. Finally, Part V will consider the policy implications of applying the wrongful conduct rule in drug addiction cases and the implications of the Tug court’s more lenient approach in 32. Corky Siemaszko, Ohio Sues Big Pharma, Blaming Drug Makers for Causing Opioid Epidemic, NBC NEWS (May 31, 2017), http://www.nbcnews.com/ storyline/americas-heroin-epidemic/ohio-sues-big-pharma-blaming-drug-makerscausing-opioid-epidemic-n766706. See Harriet Ryan, City devastated by OxyContin use sues Purdue Pharma, claims drugmaker put profits over citizens’ welfare, L.A. TIMES (Jan. 19, 2017), http://www.latimes.com/local/lanow/la-me-oxycontinlawsuit-20170118-story.html. 33. See Erica Trachtman, Note, A Horrific Violation of Trust: Prosecuting Doctors for Patients’ Prescription Overdoses, AM. CRIM. L. REV. (2012), http://www.americancriminallawreview.com/aclr-online/horrific-violation-trustprosecuting-doctors-patients-prescription-overdoses/ (stating the DEA “reports a steady rise in successful criminal prosecutions of physicians, from just 15 convictions in 2003 to 43 in 2008”). 34. See Tug Valley, 773 S.E.2d at 627.

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light of changing attitudes towards drug addiction in the context of the current opioid epidemic. II. SUBSTANTIVE BACKGROUND A. Addiction and Opioid Use Disorder There has long been disagreement among researchers, treatment professionals, and the community at large regarding the nature of addiction and how it should be viewed. Various models have been put forth to explain it, with one or more assuming the dominant position in different time periods.35 Historically, addiction was viewed as a moral failing and evidence of weak character.36 This “moral model” looks at addiction in the same way that one would view any other socially disapproved behavior that can be controlled by the perpetrator. In 1962, Charles Winick published a controversial article entitled Maturing Out of Narcotic Addiction.37 In the article, he cited research supporting the notion that most people naturally grow out of addictive behavior as they assume adult responsibilities and make progress in key areas of their lives. More recently, Boston College psychologist, Gene Heyman, in his 2009 book entitled “Addiction: A Disorder of Choice,” argued that addiction is voluntary and that drug use, like all choices, is influenced by preferences and goals.38 It is undisputed that addicts often engage in immoral and illegal conduct to support their addiction. Maintaining an addiction is expensive, and addicts are often unable to maintain jobs or other legitimate means of obtaining money to support their substance misuse. As a result, many addicts lie, steal, and engage in similar bad behavior to get what they need. The moral model poses that addiction is merely an excuse for drug users to ignore moral and legal social

35. Hanna Pickard, Serge Ahmed, Bennett Foddy, Alternative Models of Addiction, Front Psychiatry 2015, 6:20, available at https://www.ncbi.nlm.nih.gov/ pmc/articles/PMC4327176; see also Marc Lewis, The Biology of Desire: Why Addiction is Not a Disease, PUBLIC AFFAIRS (2016). 36. Id. 37. See Charles Winick, Maturing out of narcotic addiction, UNITED NATIONS OFFICE ON DRUGS AND CRIME (1962), available at https://www.unodc.org/ unodc/en/data-and-analysis/bulletin/bulletin_1962-01-01_1_page002.html. 38. See Bruce Bower, The Addiction Paradox: Drug Dependence has Two Faces—As a Chronic Disease and a Temporary Failure to Cope, 6 SCIENCE NEWS 16 (2014).

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responsibility.39 Under this view, drug abusers who engage in illegal or immoral conduct, including possession and use of illegal drugs, should be prosecuted and punished. The moral model provides justification for the War on Drugs, which contributed significantly to the exponential rise in the American prison population from approximately 220,000 in 1974 to more than 1.5 million in 2014.40 Between 1980 and 2015, the number of people incarcerated for a drug offense grew from 40,900 to 469,545.41 In contrast to the moral model, the disease model of addiction has been the prevailing view since 1956.42 According to leaders in neurobiological addiction research, “addiction is a chronic brain disease.”43 It is believed to be a product of genetic, biological, and environmental risk factors, and, like other chronic diseases such as diabetes or cancer, includes a life-long risk of relapse.44 The disease model is supported by studies establishing that chronic drug use physically changes brain structure and function, making it extremely difficult for the addict to stop seeking or using the drug at issue.45 The Diagnostic and Statistical Manual (DSM) published by the American Psychiatric Association contains formal diagnostic criteria for ten separate substance addictions, including opioids, termed “substance use disorders.”46 The DSM-V also recognizes that not all people are equally susceptible to developing a substance use disorder. Some people may have a greater neurobiological predisposition to addiction than others.47 39. See generally Wayne Hall & Adrian Carter, Anticipating Possible Policy Uses of Addiction Neuroscience Research, 20(3) DRUGS: EDUC., PREVENTION, & POLICY 249 (2013). 40. Criminal Justice Facts, SENTENCING PROJECT, http://www.sentencingproject .org/criminal-justice-facts/ (last visited July 2, 2017). 41. Id. 42. Addiction A-Z, ADDICTION.COM, https://www.addiction.com/a-z/diseasemodel-of-addiction/ (last visited July 10, 2017). 43. Hall & Carter, supra note 39, at 249. 44. Definition of Addiction, AM. SOC’Y OF ADDICTIVE MED. (Apr. 19, 2011), https://www.asam.org/quality-practice/definition-of-addiction; The Science of Drug Abuse and Addiction: The Basics, NAT’L INST. OF DRUG ABUSE, https://www.drugabuse.gov/publications/media-guide/science-drug-abuseaddiction-basics (last updated Oct. 2016). 45. See generally Hall & Carter, supra note 39. 46. AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (5th ed. 2013) [hereinafter DSM-V]. 47. See Elizabeth Hartney, DSM 5 Criteria for Substance Use Disorders: The Symptoms Used for the Diagnosis of Substance Use Disorders, VERYWELL (June 21,

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The DSM-V recognizes that addiction varies not only based on the substance used but also in terms of severity, identifying diagnoses on a scale of mild (two symptoms), moderate (four to five symptoms), and severe (six or more symptoms).48 Some of the diagnostic features of opioid abuse disorder include: [C]ompulsive, prolonged self-administration of opioid substances that are used for no legitimate medical purpose or, if another medical condition is present that requires opioid treatment, that are used in doses greatly in excess of the amount needed for that medical condition. (For example, some individuals prescribed analgesic opioids for pain relief at adequate dosing will use significantly more than prescribed and not only because of persistent pain.) Individuals with opioid use disorder tend to develop such regular patterns of compulsive drug use that daily activities are planned around obtaining and administering opioids. Opioids are usually purchased on the illegal market but may also be obtained from physicians by falsifying or exaggerating general medical problems or by receiving simultaneous prescriptions from several physicians. Health care professionals with opioid use disorder will often obtain opioids by writing prescriptions for themselves or by diverting opioids that have been prescribed for patients or from pharmacy supplies. Most individuals with opioid use disorder have significant levels of tolerance and will experience withdrawal on abrupt discontinuation of opioid substances.49 Thus, the DSM-V recognizes certain immoral and illegal conduct as symptomatic of the substance use disorder. Opioids affect different areas of the body (brainstem, spinal cord, gastrointestinal tract), and extremely unpleasant withdrawal symptoms

2017), https://www.verywell.com/dsm-5-criteria-for-substance-use-disorders21926. 48. Opioid Use Disorder Diagnostic Criteria, AM. PSYCHIATRIC ASSâ&#x20AC;&#x2122;N 2â&#x20AC;&#x201C;3 (2014), http://pcssmat.org/wp-content/uploads/2014/02/5B-DSM-5-Opioid-UseDisorder-Diagnostic-Criteria.pdf. 49. Id. at 3 (emphasis added).

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occur when no more drug is available after prolonged use.50 Early symptoms that begin within the first twenty-four hours can include anxiety, restlessness, muscle aches, insomnia, runny nose, and excessive sweating. Symptoms that begin after a day and usually resolve within three days include diarrhea, nausea and vomiting, cramping, blurred vision, rapid heart rate, and high blood pressure.51 Addicts usually manage these uncomfortable withdrawal symptoms by seeking more opioids either legally or illegally,52 thus not only perpetuating the cycle of addiction but also the criminality associated with addiction. It is important to recognize the difference between addiction (or substance use disorder) and physical dependence. Most people who use opioid medications for extended periods of time will become physically dependent on them and will experience the unpleasant physical withdrawal symptoms mentioned above if opioid use is abruptly stopped. But not everyone who becomes physically dependent on the drug will become an addict. While statistics in this area are varied, a recent study concluded that approximately 10% of pain patients develop an addiction to their opioid medications.53 Addiction involves a pathological attachment to the euphoric feeling that use of the drug elicits.54 Addicts crave that feeling to the point that they are unable to control or limit their use of the drug despite the accumulation of negative consequences.55 An addict requires increasing amounts of the drug over time in order to experience the drug-induced euphoria he craves because of the “tolerance” phenomenon.56 B. Regulation of Controlled Substances In 1970, Congress passed the Comprehensive Drug Abuse Prevention and Control Act. Title II of the Act is the Controlled Substance Act (CSA), which classifies controlled substances into five 50. Christine Case-Lo, Opiate Withdrawal, HEALTHLINE (Oct. 20, 2015), http://www.healthline.com/health/opiate-withdrawal#Overview1. 51. See id. 52. See id. 53. Kevin E. Vowles et al., Rates of Opioid Misuse, Abuse, and Addiction in Chronic Pain: A Systematic Review and Data Synthesis, 156 PAIN 569, 569–76 (Apr. 2015). 54. Id. 55. Definition of Addiction, supra note 46. 56. Id.

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categories (Schedules I through V) based on potential for abuse, accepted medical use, and safety for use, including the potential for physical or psychological dependence.57 The most addictive drugs with no medical benefits–heroin, LSD, and synthetic “bath salts”–are grouped under Schedule I.58 Schedule II medications include opioid drugs such as hydrocodone (Vicodin, Norco, Lortab),59 Oxycodone (OxyContin, Percocet, Percodan), morphine (MSIR, MS Contin), and oxymorphone (Opana), as well as stimulants such as methylphenidate (Ritalin, Concerta) and amphetamine salts (Adderall). These medications all have a legitimate medical purpose but also a high potential for abuse, with the result that possession, use, and distribution without a valid written prescription from a licensed medical practitioner is illegal.60 Schedule V includes medications such as cough syrups containing codeine and anti-diarrheal preparations containing diphenoxylate, a synthetic opioid. The CSA addresses prescriber and pharmacist responsibilities when authorizing or dispensing controlled substances. To comply with the Act, a physician’s prescription of a controlled substance must be “knowing and intentional,” must serve a “legitimate medical purpose,” and must be “within the usual course of medical practice.”61 Pharmacists run afoul of the Act if they fill a prescription that they know was not authorized by a valid prescriber acting in the usual

57. 21 U.S.C.A. § 812 (Westlaw 2017). 58. See generally id. (classifying controlled substance Schedules I-V by definition and giving specific chemical designations in each class). 59. See Douglas C. Throckmorton, Re-scheduling Prescription Hydrocodone Combination Drug Products: An Important Step Toward Controlling Misuse and Abuse, FDA VOICE BLOG (Oct. 6, 2014), http://blogs.fda.gov/fdavoice/ index.php/2014/10/re-scheduling-prescription-hydrocodone-combination-drugproducts-an-important-step-toward-controlling-misuse-and-abuse/. 60. Pharmacist’s Manual, DRUG ENFORCEMENT ADMIN. 29–59, https://www.deadiversion.usdoj.gov/pubs/manuals/pharm2/pharm_manual.pdf (revised 2010). 61. Michael C. Barnes & Stacey L. Sklaver, Active Verification and Vigilance: A Method to Avoid Civil and Criminal Liability When Prescribing Controlled Substances, 15 DEPAUL J. HEALTH CARE L. 93, 103 (2013); United States v. Rosenberg, 515 F.2d 190, 196–97 (1975) (holding that “‘in the usual course of professional practice’ and ‘legitimate medical purpose’ have the same meaning”); see also Deborah Hellman, Pushing Drugs or Pushing the Envelope: The Prosecution of Doctors in Connection with Over-Prescribing Opium-Based Drugs, 28 PHIL. & PUB. POL’Y Q. 7 (2008), http://digitalcommons.law.umaryland.edu/ cgi/viewcontent.cgi?article=1801&context=fac_pubs.

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course of his or her professional practice and was not prescribed for a legitimate medical purpose.62 C. Fiduciary Relationships In exploring the issues presented by Tug, as well as other cases involving illegal drug use and the wrongful conduct rule, it is important to consider the nature of the physician-patient relationship. The philosophical and sociological underpinnings of that relationship have been examined in literature since the days of Hippocrates.63 The Hippocratic oath requires doctors to uphold specific ethical standards and, although not specifically stated in the oath, “do no harm” to the patient.64 The oath of a pharmacist is similar in responsibility.65 The physician-patient relationship, and by extension the pharmacist-patient relationship, is recognized by courts66 as fiduciary in nature.67 Fiduciary relationships often arise out of perceived imbalances of power. “[A] fiduciary relationship will be found to exist ‘when the circumstances make it certain the parties do not deal on equal terms,’” either because of an overmastering dominance on one side or weakness, dependence, or justifiable trust on the other.68 The law of fiduciaries applies to relationships in which one party (the fiduciary) is entrusted to use power or property for the benefit of another; this entrustment is often based on the fiduciary’s specialized knowledge and requires the fiduciary to exercise judgment in order to advance the interests of the other, who is typically

62. 21 C.F.R. § 1306.04(a); 21 U.S.C.A. § 842 (Westlaw 2017). 63. See Susan Dorr Goold & Mack Lipkin, Jr., The Doctor–Patient Relationship Challenges, Opportunities, and Strategies, 14 J. GEN. INTERN. MED. S26, S26–S33 (Supp. I 1999), http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1496871/. 64. See Peter Tyson, The Hippocratic Oath Today, NOVA (Mar. 27, 2001), http://www.pbs.org/wgbh/nova/body/hippocratic-oath-today.html. 65. See Oath of a Pharmacist, AM. PHARMACISTS’ ASS’N (2007), http://www.pharmacist.com/oath-pharmacist. 66. See, e.g., Hoopes v. Hammargren, 725 P.2d 238, 242 (Nev. 1986); Massey v. Litton, 669 P.2d 248, 252 (Nev. 1983); see generally Anonymous v. CVS Corp., 728 N.Y.S.2d 333 (Sup. Ct. 2001). 67. Mary Crossley, Infected Judgment: Legal Responses to Physician Bias, 48 VILL. L. REV. 195, 250–51 (2003). 68. Doe v. Liberatore, 478 F.Supp.2d 742, 765–66 (2007) (citing Frowen v. Blank, 425 A.2d 412, 416 (Pa. 1981)).

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unable to supervise adequately the fiduciary’s performance.69 The physician-patient relationship is based on several factors listed above: the trust and confidence the patient places in the physician, the patient’s dependence on the physician’s specialized knowledge, and a patient’s inability to supervise the physician’s performance. A physician is “obligated to exercise utmost good faith”70 and is required to act in the patient’s best interest even if that interest conflicts with the physician’s own beliefs.71 D. CDC Guidelines for Opioid Prescribing and Monitoring Prior to 2016, there were no uniform federal guidelines for prescribing opioid medications for chronic pain.72 This lack of guidance, coupled with false marketing by pharmaceutical companies asserting that opioids were virtually non-addictive when prescribed for pain, led to a general tendency on the part of many medical practitioners to increase their prescriptions of opioid medications for pain management. The chart below shows the increase in opioid sales in the United States from 1999 to 2010.73 The quantity of prescription painkillers sold to pharmacies, hospitals, and doctors’ offices was four times larger in 2010 than in 1999. Opioid overdose deaths and opioid treatment admissions rose in tandem with the increased number of opioid sales.74

69. Crossley, supra note 68, at 250–51 (citing Marc A. Rodwin, Strains in the Fiduciary Metaphor: Divided Physician Loyalties and Obligations in a Changing Health Care System, 21 AM. J.L. & MED. 241, 243-44 (1995)). 70. Hoopes, 725 P.2d at 242. 71. See Susan Dorr Goold & Mack Lipkin, Jr., supra note 63, at S26–S33. 72. See generally Deborah Dowell et al., CDC Guideline for Prescribing Opioids for Chronic Pain—United States, 2016, 65 RECOMMENDATIONS & REPORTS 1, 3 (2016), https://www.cdc.gov/mmwr/volumes/65/rr/rr6501e1.htm. 73. Prescription Painkiller Overdoses in the US Infographic, CTR. FOR DISEASE CONTROL & PREVENTION, https://www.cdc.gov/vitalsigns/painkilleroverdoses/ infographic.html (showing rates of prescription-painkiller sales, deaths, and substance abuse treatment admissions (1999-2010)) (last updated Nov. 1, 2011). 74. Id.

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By 2012, opioid prescribing nationwide had hit a new high, with the number of opioid prescriptions in some states exceeding the number of people, as demonstrated by the below infographic.75

75. Opioid Painkiller Prescribing Infographic, CTR. FOR DISEASE CONTROL & PREVENTION, https://www.cdc.gov/vitalsigns/opioid-prescribing/infographic.html (last updated July 1, 2014).

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Considering the increasingly obvious correlation between the number of opioid prescriptions sold and the number of opioid overdose deaths, the CDC issued its first-ever guidelines for the prescription of opioids for chronic pain in March 2016.76 The guidance is intended to “reduce the risks associated with long-term opioid therapy, including opioid use disorder, overdose, and death.”77 The guidelines are limited to prescriptions for chronic pain; prescribing for “active cancer treatment, palliative care, and end-oflife care” is specifically excluded.78 Chronic pain is defined as “pain conditions that typically lasts [more than three] months or past the time of normal tissue healing.”79 Furthermore, guidance is limited to “patients [eighteen] and older in primary care settings.”80 The guidelines address three areas. The first focuses on when to start or continue opioid use and discusses using alternative therapies other than medications as well as trying non-opioid medication therapy.81 The guidelines encourage establishing realistic goals for pain management and require that the risks and benefits of opioid treatment be discussed with the patient as well as when and how to discontinue opioid therapy.82 The second area addressed by the guidelines is the choice of opioid drug use, including dosage; how long it will be used; what type of follow-up is required; and when to stop. The guidelines indicate that patients should be started on the lowest effective dose, and guidance is given on when and how to increase the dose.83 In addition, patients should start on immediate-release opioids rather than extended-release 76. See generally CDC Guidelines for Prescribing Opioids for Chronic Pain— United States, 2016, CTR. FOR DISEASE CONTROL & PREVENTION (Mar. 18, 2016) [hereinafter CDC Guidelines], https://www.cdc.gov/mmwr/volumes/65/rr/pdfs/ rr6501e1.pdf; Briefing on PDMP Effectiveness, PRESCRIPTION DRUG MONITORING PROGRAM CTR. OF EXCELLENCE AT BRANDEIS (Sept. 2014), http:// www.pdmpassist.org/pdf/COE_documents/Add_to_TTAC/Briefing%20on%20PD MP%20Effectiveness%203rd%20revision.pdf (stating the CDC developed these guidelines with input from subject matter experts, representatives of primary care professional organizations and state agencies). 77. CDC Guidelines, supra note 76, at 1. 78. Id. 79. Id. at 2. 80. Guideline Information for Providers, CTR. FOR DISEASE CONTROL & PREVENTION, https://www.cdc.gov/drugoverdose/prescribing/providers.html (last updated Feb. 9, 2017). 81. CDC Guidelines, supra note 76, at 17. 82. Id. at 19–20. 83. See id. at 22.

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or long-acting opioids like OxyContin.84 When patients need opioids for acute pain, immediate-release opioids in the lowest effective dose should be used, generally for less than seven days.85 If patients begin chronic pain therapy, then therapy should be reevaluated at least every three months to ensure that the benefits continue to outweigh the risks.86 The final area addresses opioid-related harms such as abuse, addiction, and potential for overdose. Careful monitoring is advised for special needs populations, such as patients with mental health conditions or existing substance use disorders. Appropriate addiction mitigation strategies are recommended.87 Prescribers and dispensers are advised to monitor patients’ controlled substance use history using the state’s prescription drug monitoring program (PDMP)88 and to avoid concurrent benzodiazepine and opioid therapy because there is a greater chance of fatal overdose when used together.89 Finally, for patients with moderate to severe opioid use disorder, physicians are advised to offer medication-assisted treatment.90 E. Prescription Drug Monitoring Programs Prescription drug monitoring programs (PDMPs) are one of the most effective tools to limit controlled substance prescribing and dispensing.91 A PDMP is a state-run electronic database that tracks the dispensing of controlled substances, including opioid painkillers. Pharmacies, and in certain states prescribing physicians, upload controlled substance prescription pill information into the state

84. See id. at 21. 85. See id. at 24. 86. See id. at 25. 87. See id. at 26. 88. See id. at 29. 89. See id. at 31–32. 90. See id. at 32. 91. See generally Briefing on PDMP Effectiveness, supra note 76 (providing that evidence is showing that PDMP’s are effective in curbing the prescription drug abuse epidemic by reducing opioid diversion and improving clinical decision-making); Christine Vestal, States Require Opioid Prescribers to Check for ‘Doctor Shopping’, PEWTRUSTS.ORG (May 09, 2016), http://www.pewtrusts.org/en/research-andanalysis/blogs/stateline/2016/05/09/states-require-opioid-prescribers-to-check-fordoctor-shopping (stating that PDMP databases have been effectively used by law enforcement to track down so-called pill mills).

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database. Currently, all states except Missouri have an operational PDMP.92 A PDMP is only as effective as the data received and used, and states differ in terms of their willingness to compel prescribers to use the system.Thirty-five states require providers to access the state’s PDMP before prescribing or dispensing in certain situations.93 Kentucky, New York, Ohio, Connecticut, and Maine have comprehensive requirements that compel prescribers to check the PDMP before prescribing opioids and additionally require further checks at three-month intervals for ongoing treatment.94 The remaining states require less querying of the data; however, more states will likely require more comprehensive checks as the effectiveness of these programs is demonstrated and the opioid epidemic continues.95 Studies show that PDMPs are effective in reducing doctorshopping and prescription opioid abuse.96 For example, Florida saw a sixty-five percent decline in doctor shopping after implementing a PDMP in 2011.97 New York and Tennessee, which require prescribers to check the PDMP before prescribing Schedule II medications, saw 92. See generally Vestal, supra note 91; see also Briefing on PDMP, supra note 91. On July 17, 2017, Missouri’s governor signed an executive order requiring the Missouri Department of Health & Senior Services to begin work on the development of a PDMP. See Governor Eric Greitens Announces Statewide Prescription Drug Monitoring Program, OFFICE OF MISSOURI GOVERNOR ERIC GREITENS (July 17, 2017), https://governor.mo.gov/news/archive/governor-eric-greitensannounces-statewide-prescription-drug-monitoring-program. 93. National Alliance for Model State Drug Laws, Compilation of Prescription Monitoring Programs, May 2016. http://www.namsdl.org/library/CADB8FE8-D3F1-8AB4-74F0AB49EAE9FA66/. 94. See COE Briefing, PDMP Prescriber Use Mandates: Characteristics, Current Status, and Outcomes in Selected States, PRESCRIPTION DRUG MONITORING PROGRAM CTR. OF EXCELLENCE AT BRANDEIS (May 3, 2016) [hereinafter PDMP Prescriber Use Mandates], http://www.pdmpassist.org/pdf/COE_documents/ Add_to_TTAC/COE%20briefing%20on%20mandates%203rd%20revision.pdf. 95. See id. 96. See Robert Parker Tricarico, A Nation in the Throes of Addiction: Why a National Prescription Drug Monitoring Program is Needed Before it is Too Late, 37 WHITTIER L. REV. 117, 136 (2015). 97. See FLA. HEALTH, ELECTRONIC-FLORIDA ONLINE REPORTING OF CONTROLLED SUBSTANCE EVALUATION: 2014-2015, PRESCRIPTION DRUG MONITORING PROGRAM ANNUAL REPORT 5, 23–24, 29 (Dec. 1, 2015), http:// www.floridahealth.gov/statistics-and-data/e-forcse/news-reports/_documents/2015pdmp-annual-report.pdf.

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similar declines: a thirty-six percent decrease in doctor shopping in Tennessee in 2012, and a nearly seventy-five percent decrease in doctor shopping in New York from the end of 2012 to the end of 2013.98 Because evidence shows that most fatal opioid overdoses are associated with patients consuming high doses of opioids and receiving opioids from several prescribers, PDMPs can help save lives. Both data points—high doses and multiple prescribers—are available to prescribers when querying the state’s PDMP.99 III. DRUG ADDICTION AND THE WRONGFUL CONDUCT RULE Many jurisdictions in this country have adopted some form of the “wrongful conduct rule,” either through court adoption or through statute.100 The essence of the rule is that, when a claim is based in whole or in part on a party’s own wrongful conduct, that claim is barred and the party cannot recover.101 In 1995, the Michigan Supreme Court provided the “modern statement”102 of the rule in Orzel v. Scott Drug103: “[A] person cannot maintain an action if, in order to establish his cause of action, he must rely, in whole or in part, on an illegal or immoral act or transaction to which he is a party.”104 The wrongful conduct rule is supported by the public policy belief that “courts should not lend their aid to a plaintiff who founded his cause of action on his own illegal conduct.”105 Courts adopting the rule 98. DoseSpot, 5 Shortcomings You Need to Know About Prescription Drug Monitoring Programs (PDMPS), E-PRESCRIBING BLOG (Feb. 8, 2017) http://www.eprescribing.org/tag/e-prescribing-controlled-substances/ (reporting decreases in doctor shopping in New York and Tennessee). See PDMP Prescriber Use Mandates, supra note 94 99. CDC Guidelines, supra note 76, at 29. 100. Tug Valley Pharmacy v. All Plaintiffs Below in Mingo Cty., 773 S.E.2d 627, 629 (2015) (pointing to respondents who invoked the wrongful conduct rule adopted by other jurisdictions). 101. A limited version of the rule can be found in the doctrine of in pari delicto, which provides that where two parties are “equally in the wrong, the law will not lend itself to afford relief to one as against the other, but will leave them as it finds them.” 1A C.J.S. Actions § 29, p. 388. See also Tug Valley Pharmacy, 773 S.E.2d at 631 (citing Orzel v. Scott Drug Co., 537 N.W.2d 208, 212 (Mich. 1995)). 102. Tug Valley Pharmacy, 773 S.E.2d at 629, 631. 103. Orzel, 537 N.W.2d at 208. 104. Id. at 212 (quoting 1A C.J.S. Actions § 29, p. 386); see also 1 AM..JUR. 2D Actions § 45, p. 752). 105. Id. at 213.

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rationalize that if aid were given, a number of unfortunate consequences would follow: First, by making relief potentially available for wrongdoers, courts in effect would condone and encourage illegal conduct. Second, some wrongdoers would be able to receive a profit or compensation as a result of their illegal acts. Third, and related to the two previously mentioned results, the public would view the legal system as a mockery of justice. Fourth, and finally, wrongdoers would be able to shift much of the responsibility for their illegal acts to other parties.106 Jurisdictions adopting this rule have faced challenges in determining its appropriate scope and breadth. For example, how “wrongful” must wrongful conduct be to trigger application of the rule? And to what extent must a party’s claim be related to his wrongful conduct in order to justify barring his claim? Finally, should there be any exceptions to the rule? In Orzel, the court noted that “the mere fact that a plaintiff engaged in illegal conduct at the time of his injury does not mean that his claim is automatically barred under the wrongful conduct rule.” To implicate the rule, the court said that “the plaintiff’s conduct must be prohibited or almost entirely prohibited under a penal or criminal statute.”107 The court added that where a party’s illegal conduct constituted only violation of a “safety statute,” such as a traffic law or workplace regulation, it would not “rise to the level of serious misconduct sufficient to bar a cause of action . . . .”108 However, other courts have characterized the nature of the conduct required to implicate the rule differently. In Oden, the Alabama Supreme Court held that the rule applies to bar a plaintiff’s claim only when the claim resulted from the plaintiff’s “knowing and intentional participation in a crime involving moral turpitude.”109 In Barker, the New York Supreme Court stated that the rule applies “when the plaintiff has engaged in activities prohibited, as opposed to merely regulated, by law.”110

106. 107. 108. 109. 110.

Id. at 213–14. Id. at 214. Id. Oden v. Pepsi Cola Bottling Co., 621 So.2d 953, 955 (Ala. 1993). Barker v. Kallash, 468 N.E.2d 39, 41 (N.Y. 1984).

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Courts have also wrestled with the degree of “relatedness” that must exist between a plaintiff’s wrongful conduct and his claim in order to justify application of the rule. Generally, courts have required “a high degree of causality between the wrongful conduct and the plaintiff’s injury.”111 In Oden and Barker, the courts stated that the injuries must directly result from the plaintiff’s wrongful acts.112 In Orzel, the court noted that the plaintiff’s illegal conduct must be a proximate cause of his injury, stating: The unlawful act must be at once the source of both his criminal responsibility and his civil right. The injury must be traceable to his own breach of the law and such breach must be an integral and essential part of his case. Where the violation of law is merely a condition and not a contributing cause of the injury, a recovery may be permitted.113 Finally, courts have identified certain exceptions to application of the wrongful conduct rule. One of these is the “culpability exception,” which the Orzel court explained as follows: An exception to the wrongful conduct rule may apply where both the plaintiff and defendant have engaged in illegal conduct, but the parties do not stand in pari delicto. In other words, even though a plaintiff has engaged in serious illegal conduct and the illegal conduct has proximately caused the plaintiff’s injuries, a plaintiff may still seek recovery against the defendant if the defendant’s culpability is greater than the plaintiff’s culpability for the injuries, such as where the plaintiff has acted “under circumstances of oppression, imposition, hardship, undue influence, or great inequality of condition or age . . .”114

111. Tug Valley Pharmacy. v. All Plaintiffs Below in Mingo Cty., 773 S.E.2d 627, 631 (W. Va. 2015). 112. Oden, 621 So.2d 955; Barker, 468 N.E.2d at 41. 113. Orzel, 537 N.W.2d at 215–16 (citing Manning v. Bishop of Marquette, 76 N.W.2d 75 (Mich. 1956)). 114. Id. at 217, (quoting Pantely v. Garris, Garris & Garris, P.C., 447 N.W.2d 864, 867-68 (Mich. Ct. App. 1989)). See also Rimert v. Mortell, 680 N.E.2d 867, 874–75 (Ind. Ct. App. 1997) (indicating that application of wrongful conduct rule “is simply not justified when a plaintiff is not responsible for the act or acts in question”).

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Prior to the decision in Tug, five courts in five different states considered application of the wrongful conduct rule in the context of claims seeking damages for drug addiction. These cases are discussed below. A. Orzel v. Scott Drug Co. (1993) Mr. Orzel and his family filed suit against the defendant Scott Drug Co., alleging that the pharmacy was negligent in providing him with prescriptions of Desoxyn after he was already addicted to and abusing the drug.115 The plaintiffs claimed the pharmacy had filled an excessive amount of Desoxyn prescriptions without asking for identification116 and without allowing for an adequate interval between prescriptions.117 Mr. Orzel’s addiction began between 1979 and 1980, when he started purchasing one to two Desoxyns per day from his co-workers at General Motors.118 At the peak of his addiction, he was taking “between ten to fifteen Desoxyns a day.”119 Ultimately, his drug use caused him to experience auditory and visual hallucinations and mental illness, including paranoid schizophrenia. In January 1982, Mr. Orzel entered the Northville Mental Hospital suffering from Desoxyninduced amphetamine psychosis.120 The trial court allowed the case to go to trial despite the defendant’s motion seeking dismissal based on Mr. Orzel’s wrongful conduct, instructing the jury to apply principles of comparative negligence to the case. The jury found the defendant negligent and determined the plaintiffs’ damages to be $3.8 million. This amount was reduced to $1.9 million because the jury found Mr. Orzel comparatively negligent. The defendant then filed a motion for judgment notwithstanding the verdict, which the trial judge granted 115. Desoxyn is the brand (trade) name for methamphetamine, a highly addictive stimulant, classified as a schedule II controlled substance. Desoxyn, DRUGS.COM, https://www.drugs.com/pro/desoxyn.htm (last visited July 22, 2016). It is used to treat Attention Deficit with Hyperactivity Disorder (ADHD). Id. 116. Orzel, 537 N.W.2d at 208, n.3 (“The evidence at trial showed that John Orzel presented the defendant with prescriptions for Desoxyn where the prescriptions had been written for persons with names other than ‘John Orzel.’ The defendant still filled such prescriptions and gave them to John Orzel.”). 117. Id. at 210. 118. Id. at 211. 119. Id. 120. Id.

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finding that Mr. Orzel’s illegal acts barred his claim. The Court of Appeals reversed, holding that principles of comparative negligence should apply rather than a wrongful conduct bar. Alternatively, the Court of Appeals determined that even if the wrongful conduct rule were adopted, it could not apply in this case because Mr. Orzel was insane at the time of his illegal acts, making him unaccountable for those acts. In reversing the Court of Appeals, the Michigan Supreme Court reasoned that Mr. Orzel’s illegal conduct warranted application of the wrongful conduct rule.121 By his own admission, Mr. Orzel repeatedly violated several provisions of the Controlled Substances Act when he “obtained, possessed, and used Desoxyn without a prescription,”122 acquired controlled substances through misrepresentation (felony), illegally possessed a Schedule I or II controlled substance (felony), and illegally used a controlled substance (misdemeanor).123 The court considered and rejected application of the “culpability exception” to the wrongful conduct rule, stating: In comparing John Orzel’s wrongful conduct with the defendant’s wrongful conduct, we conclude that the two wrongdoers are equally at fault. Both parties played pivotal roles in making the illegal acts possible, and we cannot say that one party is more guilty than the other. While the plaintiffs argue that John Orzel’s culpability is less than the defendant’s because of his alleged disability, we are not convinced. Even if we were to accept the plaintiffs’ characterization for John Orzel’s status as legally insane, that status does not prompt applicability of the culpability exception in this case because it was John Orzel who, by his continuous illegal use of the Desoxyn, caused himself to become both addicted and insane. . . [B]ecause John Orzel is ultimately responsible for causing any “great inequality of condition” in the first place, we conclude that it would be inappropriate to apply the culpability exception under these facts.”124

121. 122. 123. 124.

Id. at 214. Id. Id. at 215. Id. at 217–18.

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The court determined that no other exceptions to the wrongful conduct rule applied to Mr. Orzel’s case; therefore, he could not recover damages.125 B. Pappas v. Clark (1992) In 1991, Carla Pappas filed suit against a doctor, a pharmacist, and several pharmacies in connection with her husband’s death from a selfinjected lethal dose of cocaine. 126 Prior to his death, Mr. Pappas was illegally acquiring prescription drugs from several local pharmacies.127 He forged prescriptions and pretended to be a doctor over the phone to get his drugs.128 The plaintiff claimed that Mr. Pappas’ doctor should have recognized his addiction and started treatment.129 She also claimed that the defendant pharmacist discovered the forged prescriptions but wrongfully failed to alert other pharmacies and failed to monitor Mr. Pappas’ prescription drug abuse.130 Finally, the plaintiff asserted that the defendant pharmacies had wrongfully failed to adequately check her husband’s prescriptions to verify that they were legitimate. The plaintiff claimed that as a result of all these failures on the part of the defendants, her husband became addicted to prescription pills, which led to his cocaine use and ultimately, his death. 131 The Iowa Court of Appeals held that the plaintiff’s claims were “barred by the public policy of the State of Iowa, which generally denies relief to those injured in whole or in part because of their own illegal acts.” 132 Mr. Pappas’ conduct in fraudulently obtaining prescriptions and using illegal drugs was in clear violation of Iowa statutory law and eventually resulted in his death. As such, Mr. Pappas’ unlawful activities precluded the plaintiff’s claims against the defendants. 133 C. Foister v. Purdue Pharma (2003) As abuse of OxyContin increased across the United States, plaintiffs began to bring suit against the manufacturer, arguing that 125. 126. 127. 128. 129. 130. 131. 132. 133.

Id. at 220–21. Pappas v. Clark, 494 N.W.2d 245, 246 (Iowa Ct. App. 1992). Id. Id. Id. Id. Id. Id. at 247. Id.

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Purdue Pharma failed to adequately inform users that OxyContin could cause drug addiction. In Foister, eight plaintiffs claimed that the use of OxyContin caused them (or a deceased family member) to become addicted to the drug, in some cases resulting in death. The court noted that “[w]hile the use of OxyContin by some plaintiffs began legitimately, others abused the drug from the outset and in a manner that was clearly contrary to the instructions of their prescribing physician.”134 At some point during their use of OxyContin, seven of the eight plaintiffs either “chewed, snorted, or injected their pills,”135 thus fundamentally altering the characteristics of the drug in order to increase the effect.136 Additionally, the same seven plaintiffs engaged in unlawful activity such as illegally obtaining controlled substances, doctor shopping, forging OxyContin prescriptions, and conspiring to possess, sell, and deliver illegal controlled substances.137 The defendants filed a motion for summary judgment seeking dismissal of the plaintiffs’ claims on several grounds, including the wrongful conduct rule. They argued that “as a matter of public policy, the seven plaintiffs who violated the law in their use of OxyContin should not be able to recover.”138 Citing Orzel and Pappas, the Kentucky federal district court agreed, stating that because the plaintiffs had no choice but to rely on their own illegal actions to establish their claims, the case should be dismissed. 139 It is interesting to note that only four years after the Foister decision, Purdue Pharma pleaded guilty to falsely marketing and promoting OxyContin as a non-addictive pain medication and paid over $700 million in settlement of that criminal case.140 In light of what we now know about the addictive nature of that drug, a court today might reasonably make a distinction between those plaintiffs who began using OxyContin in accordance with their doctors’ instructions but eventually succumbed to addiction and its associated wrongful behaviors, and those plaintiffs who were in the grips of addiction before ingesting their first OxyContin pill. 134. Foister v. Purdue Pharma., L.P., 295 F. Supp. 2d 693, 695 (E.D. Ky. 2003). 135. Id. at 696–70, 703. 136. Id. at 703. 137. Id. at 696–70. 138. Id. at 704. 139. Id. at 705. 140. Shannon Henson, Purdue, Employees To Pay $700M In OxyContin Case, LAW360 (May 10, 2007), https://www.law360.com/illinois/articles/24509/purdueemployees-to-pay-700m-in-oxycontin-case.

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D. Price v. Purdue Pharma (2006) Ernest Price had sickle cell anemia, an extremely painful, debilitating disease.141 His doctors prescribed OxyContin to help Mr. Price manage pain. Several pharmacies filled his prescriptions; Purdue Pharma made the drug.142 Mr. Price became addicted to the drug, and in order to feed his addiction, began seeing multiple doctors and obtaining numerous prescriptions. Between November 1999 and October 2000, Mr. Price was treated by ten different doctors from ten different clinics in two cities and used seven different pharmacies in three cities to fill his OxyContin prescriptions.143 Ultimately, Mr. Price sued Purdue Pharma, Abbot Laboratories, and the doctors and pharmacies who prescribed and distributed the drug to him, claiming that the drug was addictive and that its addictive nature had caused him injury.144 In upholding the trial court’s dismissal of the case, the Mississippi Supreme Court relied on the “principle of public policy that no court will lend its aid to a party who grounds his action upon an immoral or illegal act.”145 The court noted that Mr. Price had violated Mississippi’s criminal statutory restrictions by obtaining multiple OxyContin prescriptions from different doctors at the same time,146 and further determined that Mr. Price’s entire claim against the defendants was based on these transgressions. The court stated, “[h]is violation of the law is not merely a condition, but instead an integral and essential part of his case, and the contributing cause of his alleged injury.”147 In concluding, the court said: We now join those jurisdictions in holding that “the wrongful conduct rule” in Mississippi prevents a plaintiff from suing caregivers, pharmacies, and pharmaceutical companies and laboratories for addiction to a controlled substance which he obtained through his own fraud, deception and subterfuge. This 141. See Sickle Cell Anemia, U.S. NAT’L LIBR. OF MED., https://www.nlm. nih.gov/medlineplus/ency/article/000527.htm. See generally Price v. Purdue Pharma Co., 920 So. 2d 479 (Miss. 2006). 142. Price, 920 So. 2d at 482. 143. Id. 144. Id. 145. Id. at 484 (quoting Western Union Telegraph Co. v. McLaurin, 66 So. 739, 740 (Miss. 1914)). 146. Id. 147. Id. at 485.

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Court will not lend aid to a party whose cause of action directly results from an immoral or an illegal act committed by that party.148 E. Kaminer v. Eckerd Corp. of Florida (2007) In this case, OxyContin ended up in the marketplace because a pharmacy technician stole 126 eighty-milligram pills from the Eckerd Pharmacy where he worked.149 Matt Kaminer obtained some of these stolen pills from a fraternity brother, consumed the pills at a party, and died. Kaminer’s estate filed suit against Eckerd, alleging that the pharmacy had negligently failed to follow federal regulations or its own procedures for safeguarding the drug. Eckerd did not argue that it was not negligent; instead, it argued that Kaminer’s criminal conduct in ingesting the stolen pills barred recovery.150 Following the decision in Orzel, Florida’s Fourth District Court of Appeals affirmed the lower court’s grant of summary judgment in Eckerd’s favor, applying the common-law rule that a party who commits an illegal act cannot maintain an action based on that act.151 IV. TUG V. MINGO: A BREAK WITH PRECEDENT (2015) A. Facts In Tug, twenty-nine individual plaintiffs filed eight civil actions against different combinations of four doctors, three pharmacies, and a medical center. The plaintiffs alleged that the defendants negligently prescribed and dispensed OxyContin and other controlled substances in a manner that caused or furthered the plaintiffs’ addiction to and abuse of these drugs.152 The plaintiffs admitted their own criminal behavior in connection with their drug use, but nevertheless sought to recover damages from the defendants on the theory that their criminal behavior was a consequence of their addiction, which had been unlawfully caused or furthered by the providers.153 All of the plaintiffs 148. Id. at 486. 149. Kaminer v. Eckerd Corp. of Fla., 966 So. 2d 452, 453 (Fla. Dist. Ct. App. 2007). 150. Id. 151. Id. at 454-55. 152. Tug Valley Pharm. v. All Plaintiffs Below in Mingo Cty., 773 S.E.2d 627 (W. Va. 2015). 153. Id.

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admitted to at least one of the following criminal activities associated with drug addiction: [C]riminal possession of pain medications; criminal distribution, purchase, and receipt of pain medications (‘off the street’); criminally acquiring and obtaining narcotics through misrepresentation, fraud, forgery, deception, and subterfuge (not advising doctors of addiction or receipt of narcotics from other doctors); criminally obtaining narcotics from multiple doctors concurrently (commonly known as ‘doctor shopping’); and abusing and/or misusing pain medication by ingesting greater amounts than prescribed and snorting or injecting the medications to enhance their effects.154 The plaintiffs’ association with the defendants began when they sought treatment at the defendant medical center for automobile accident or workplace injuries.155 Based on the volume of controlled substances prescribed and dispensed, it was alleged that the defendant doctors and pharmacists acted together to create an illegal “pill mill.”156 The FBI independently investigated the medical center, the physicians, and the pharmacists involved in the scheme. Several of these providers were found guilty of violating federal and state laws regarding the improper prescribing and dispensing of controlled substances.157 Dr. Diane Shafer, one of the defendant physicians, went to prison and lost her medical license for improperly using her DEA license to dispense controlled substances. She was subject to a separate wrongful-death action involving controlled substances where the estate alleged the doctor “handed out prescriptions in exchange for cash, even pre-signing scrips for patient files . . . . No medicine was practiced at her office.”158 Dr. Shafer reportedly issued 188,145 controlled substance prescriptions from December 2002 to January 154. Id. at 629. 155. Id. 156. Id. 157. Id. 158. Respondents’ Brief at 7, Tug Valley Pharmacy, LLC v. All Plaintiffs Below in Mingo County Civil Actions Nos. 10-C-251, 11-C-332, 12-C-38, 10-C-252, 10C-319, 12-C-35, and 11-C-370, No. 14-0144 (W. Va. Jun. 2, 2014), available at http://www.courtswv.gov/supreme-court/calendar/2015/briefs/march15/140144respondent.pdf.

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2010, including at least 17,065 in 2009.159 When the FBI searched Shafer’s home, $91,000 in cash was found in her bedroom.160 Her bank holdings were also seized yielding more than $500,000 in cash and valuables, about half of which were stacks of $100 bills found in one of her safety deposit boxes.161 Dr. William Ryckman, another defendant, also went to prison.162 Although he was not at the facility where the plaintiffs obtained their OxyContin, his DEA number was used for narcotic prescriptions.163 A bank account in his name contained over one million dollars.164 Defendant Dr. Katherine Hoover reportedly wrote 355,132 controlled substance prescriptions between 2002 and 2010, making her the number-one prescriber of controlled substances in West Virginia for that time period.165 Hoover, Ryckman, and defendant Dr. Victorino Teleron were all involved with the Williamson Wellness Center, which through questionable transfers of ownership, became the Mountain Medical Center, LLC., also a named defendant.166 The center was the subject of a federal search and subsequently closed. Reportedly, a state-federal probe surveilled hundreds of people who paid between $150 and $450 cash for controlled substance prescriptions, including prescriptions for pain pills.167 After the center was closed, Hoover fled to the Bahamas168 and never faced criminal charges.169 Defendant Strosnider Pharmacy, operating under the Sav-Rite name, dispensed 3,194,400 dosage units of hydrocodone in 2006 and, among retail pharmacies, ranked 22nd in the nation for hydrocodone units purchased.170 The pharmacy’s gross sales in 2006 were 159. Lawrence Messina, West Virginia Doctor Probed Over Workers’ Compensation Prescriptions, INS. J., (Apr. 5, 2010), http://www.insurancejournal. com/news/southeast/2010/04/05/108729.htm. 160. Id. 161. Id. 162. Respondents’ Brief, supra note 160, at 6–7. 163. Id. at 8. 164. Id. 165. Tug Valley Pharmacy v. All Plaintiffs Below in Mingo Cty., 773 S.E.2d 627, n.4 (W. Va. 2015). 166. Respondents’ Brief, supra note 160, at 9. 167. Messina, supra note 161. 168. Respondents’ Brief, supra note 160, at 9 n.5. 169. See WSAZ News Staff, NEW INFO: Former Pain Clinic Office Manager Sentenced, WSAZ.COM (Aug. 29, 2013), http://www.wsaz.com/news/headlines/ NEW_INFO__Feds_Want_to_Confiscate_88K_from_Williamson_Doctor.html. 170. Respondents’ Brief, supra note 160, at 9–10.

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$6,545,159. On average, the pharmacy filled one prescription per minute. Strosnider opened a second Sav-Rite pharmacy nearby that dispensed 7,185 prescriptions for controlled substances in the course of four months before they were closed. 171 The two Sav-Rite pharmacies were owned by James Wooley.172 Wooley pleaded guilty in U.S. District Court and was sentenced to “six months in federal prison along with one year of supervised release and a $5,000 fine, for conspiracy to acquire or obtain controlled substances by misrepresentation, fraud, forgery, deception, and subterfuge.”173 Wooley admitted to knowingly dispensing invalid prescriptions issued to various patients and to dispensing multiple illegal prescriptions using a doctor’s DEA number without the doctor’s consent.174 Defendant B&K Pharmacy was located in Kentucky. Some of the plaintiffs had filled “an astounding amount of narcotics of the kind known to be misused by those who become addicted to pain medications”175 at this pharmacy. The owner/pharmacist in charge of this pharmacy professed ignorance when it came to the amount of narcotics being dispensed, the existence of the nearby “pill mills,” and the convictions of local doctors who wrote large amounts of prescriptions for controlled substances.176 Defendant Tug Valley Pharmacy was owned by Randy Ballengee.177 The pharmacy was located near both Dr. Shafer’s office and the Mountain Medical Center. Mr. Ballengee reportedly filled between 150 and 200 prescriptions per day from the Center and claimed he never knew people were abusing the narcotics his pharmacy was providing.178 Allegations were made against the pharmacy that drugs were being illegally sold outside the pharmacy, the pharmacy filled narcotic prescriptions early when cash was paid,

171. Id. 172. Id. 173. U.S. Attorney’s Office Southern District of West Virginia, Mingo County Pharmacist Sentenced to Prison Time for Conspiracy to Acquire Controlled Substances by Fraud, FBI.GOV (Nov. 15, 2012), https://www.fbi.gov/ pittsburgh/press-releases/2012/mingo-county-pharmacist-sentenced-to-prison-timefor-conspiracy-to-acquire-controlled-substances-by-fraud. 174. Id. 175. Respondents’ Brief, supra note 160, at 10. 176. Id. at 11. 177. Id. at 12. 178. Id.

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and the pharmacy filled prescriptions “too often and for excessive periods of time.”179 The defendants moved for summary judgment based on the plaintiffs’ admission of criminal activity, arguing that their claims were barred as a matter of law180 by both the wrongful conduct rule and the doctrine of in pari delicto.181 The plaintiffs responded that, from a policy standpoint, application of the wrongful conduct rule to bar their claims was tantamount to condoning the egregious activities of the defendants, which were equally criminal. They argued that the better approach would be to apply West Virginia’s principles of comparative negligence to their claims. B. Opinion Summary The case came before the West Virginia Supreme Court by certified questions182 from the lower court, which had denied the defendant’s summary judgment motion and held that the plaintiffs’ claims were not barred. The West Virginia Supreme Court summarized the certified questions as follows: [W]hether the respondents/plaintiffs below (hereinafter “respondents”) in the cases below may maintain causes of action against the petitioners/defendants below (hereinafter “petitioners”) for allegedly causing or contributing to respondents’ addiction to controlled substances, where respondents admit to engaging in

179. Id. at 13. 180. Tug Valley Pharmacy v. All Plaintiffs Below in Mingo Cty., 773 S.E.2d 627, 629 (W. Va. 2015). 181. See Pantely v. Garris, Garris & Garris, P.C., 447 N.W.2d 864, 867 (Mich. Ct. App. 1989) (“Suit is barred not because the defendant is right, but rather because the plaintiff, being equally wrong, has forfeited any claim to the aid of the court.”) (citation omitted); see also Bateman Eichler, Hill Richards, Inc. v. Berner, 472 U.S. 299, 306 (1985) (stating the in pari delicto defense “is grounded on two premises: first, that courts should not lend their good offices to mediating disputes among wrongdoers; and second, that denying judicial relief to an admitted wrongdoer is an effective means of deterring illegality”) (footnote omitted). 182. See Certification of Question, BALLENTINE’S LEGAL DICTIONARY, LEXIS.COM, (“A practice, based on a procedure first developed in the federal courts, under which an entire case or a specific question of law involved in a case, may be sent from a lower to a higher court for decision.”).

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criminal conduct associated with their acquisition and abuse of the controlled substances.183 The court noted that it had not previously endorsed, either expressly or implicitly, the wrongful conduct rule and that it had made only “passing reference” to the doctrine of in pari delicto. It summarized the arguments of the parties thusly: Petitioners argue that this Court should adopt a wrongful conduct bar which would bar entirely a claim where a plaintiff must rely on his or her illegal or immoral act to establish the cause of action. Respondents counter that such a rule merely rewards defendants’ own wrongful and tortious conduct and that a plaintiff’s conduct must be assessed according to our comparative fault concepts.184 In a three-to-two decision, the court declined to adopt a wrongful conduct rule that would operate as a complete bar to a plaintiff’s cause of action. Instead, the court determined that “any wrongdoing on the part of the respondents must be assessed under our long-standing precepts of comparative negligence . . . .”185 The dissenting justices each submitted opinions supporting a broad application of the wrongful conduct rule.186 Justice Benjamin, concurring, argued that the plaintiffs should be permitted to pursue their claims because West Virginia’s narrow version of the wrongful conduct rule, adopted through recent legislation, did not bar the claims and made application of a broader common-law version of the rule improper.187 C. The Majority Opinion The defendant providers argued that the broad version of the wrongful conduct rule adopted in Orzel should be applied by the West Virginia Supreme Court to bar the plaintiffs’ claims.188 Writing for the court, Chief Justice Workman reviewed the policy justifications for the 183. Tug Valley Pharmacy, 773 S.E.2d at 628. 184. Id. at 630–31. 185. Id. at 628. 186. Id. at 638 (Loughry, J., dissenting); Id. at 637 (Ketchum, J., dissenting). 187. See id. at 646 (Benjamin, J., concurring). 188. Orzel v. Scott Drug Co., 537 N.W.2d 208, 212 (Mich. 1995); see also Greenwald v. Van Handel, 88 A.3d 467, 472 (Conn. 2014). See generally Tug Valley Pharmacy, 773 S.E.2d.

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rule, as well as the ambiguities inherent in its application (e.g., how “related” to the claim does the wrongful conduct have to be to trigger the rule? What constitutes “immoral” conduct within the meaning of the rule?). The court also noted numerous exceptions that had been recognized by courts that had adopted this rule.189 In considering the rule’s numerous ambiguities and exceptions, the court concluded that they served to nearly “obliterate the rule altogether.”190 Justice Workman said that “attempting to accommodate all factual scenarios and policy concerns raised by the wrongful conduct rule make it virtually impossible to comprehensively articulate and therefore highly unlikely to be judiciously applied.”191 The court was unpersuaded by the policy justifications supporting the rule, agreeing with the plaintiffs that its indiscriminate application would serve only to reward the defendants’ highly improper and often illegal actions. In responding to the plaintiffs’ argument that the defendants’ actions “were equally abhorrent to public policy and, in some instances, likewise criminal,”192 the Court said: “[i]n fact, it may reasonably be argued that wrongdoing by highly-trained, licensed professionals, charged with the grave responsibility of the health and welfare of the public, may actually be considered more abhorrent.”193 The court acknowledged that the wrongful conduct rule is “superficially appealing,” stating “[t]his Court is not so obtuse as to be unaware of the facially offensive premise that admitted criminal drug abusers should abdicate responsibility for their illegal conduct and make such conduct a source of income.”194 However, the court determined that this concern was best addressed through application of West Virginia’s “comparative fault” scheme, as articulated in Bradley v Appalachian Power Co.195 In Bradley, the West Virginia Supreme Court had abandoned the state’s strict contributory negligence rule—which precluded recovery by a plaintiff if he was even one percent at fault—in favor of a modified comparative negligence approach.196 Under this approach, a 189. 18). 190. 191. 192. 193. 194. 195. 196.

Tug Valley Pharm, 773 S.E.2d at 632 (quoting Orzel, 537 N.W.2d at 217– Id. at 633. Id. at 628, 633. Id. Id. at 633 n.10. Id. at 633. Bradley v. Appalachian Power Co., S.E.2d 879, 885 (W.Va. 1979). See id.

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party can recover on a claim even if he or she was partially at fault for the events that caused the injury, so long as the fault does not equal or exceed the combined fault of the other parties.197 In abolishing the strict contributory negligence rule, the Bradley court said that “a rule ‘that prohibits recovery to the plaintiff if he is at fault in the slightest degree is manifestly unfair, and in effect rewards the substantially negligent defendant by permitting him to escape any responsibility for his negligence.’”198 Justice Workman noted that in the years since Bradley, the comparative negligence rule had thrived in West Virginia, and had, in fact, subsumed a number of other common law doctrines that, like the wrongful conduct rule, purported to construct a complete bar to a plaintiff’s recovery.199 The common law defense of assumption of risk, for example, had given way to a comparative fault analysis, and the court observed that conduct subject to attack under that defense and the criminal conduct of the plaintiffs in Tug shared some common characteristics: Like conduct subject to attack under ‘assumption of risk,’ immoral or illegal conduct certainly has the same earmarks of knowledge, willfulness, and appreciation of danger; the actor proceeds irrespective of the foolishness or illegality, respectively, of his or her conduct. This Court has made plain that such conduct does not bar the claim, but is to be considered by the jury and managed through the apportionment of fault.200 The majority concluded that a comparative negligence approach was “the most legally sound and well-reasoned approach to dealing with a plaintiff who has engaged in immoral or illegal conduct,”201 stating: We find that in cases where a plaintiff has engaged in allegedly immoral or criminal acts, the jury must consider the nature of those actions, the cause of those actions, and the extent to which such acts contributed to their injuries, for purposes of assessment of 197. 198. 199. 200. 201.

See Tug Valley Pharmacy, 773 S.E.2d at 634. Id. at 634–35 (quoting Bradley, 256 S.E.2d at 885). See id. at 635. Id. Id.

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comparative fault. These are highly factual inquiries, all of which require the jury’s venerable analysis and respected consideration . . . [and] are not resolved by simply placing a ‘bad actor’ tag on each of the parties and washing the courts’ hands of the matter.202 Based on this principle, the court concluded that the plaintiffs’ immoral or criminal conduct associated with their drug use did not constitute an automatic bar precluding them from pursuing their claims against the defendants.203 D. The Concurring Opinion On March 2, 2015, House Bill 2002 containing West Virginia’s version of a wrongful conduct rule was sent to the governor for approval. The bill was signed into law three days later on March 5, 2015. The Tug case was presented to the Supreme Court of West Virginia for oral argument on March 4, 2015,204 and thus the West Virginia legislature had adopted the statutory wrongful conduct rule before the Court decided the case. H.B. 2002 reads as follows: In any civil action, a defendant is not liable for damages that the plaintiff suffers as a result of the negligence or gross negligence of a defendant while the plaintiff is attempting to commit, committing or fleeing from the commission of a felony criminal act; Provided, That the plaintiff has been convicted of such felony, or if deceased, the jury makes a finding beyond a reasonable doubt that the decedent committed such felony.205 In concurrence, Justice Benjamin argued that the question of whether West Virginia should adopt the common law wrongful conduct rule articulated in Orzel was moot in light of the legislature’s action.206 In his view, the new statute controlled the issue and required a decision in the plaintiffs’ favor because there was no evidence that any of the plaintiffs had been convicted of a felony.207

202. 203. 204. 205. 206. 207.

Id. at 635–36 (citations omitted). See id. at 636. Id. at 643 n.5 (Benjamin, J., concurring). Id. (emphasis added). See id. at 641–42 (Benjamin, J., concurring). See id.

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Justice Benjamin noted that in West Virginia, there is a presumption of open access to the courts, and that such access should not be denied absent curtailment by the legislature.208 He argued that the principle of judicial conservatism209 precluded the Court from adopting a broader common law version of a doctrine that had already been adopted by statute, and noted that the proper role of the court is to defer to the legislative branch, “not to bestow upon ourselves the role of superlegislature simply because we do not believe they went far enough.”210 In his view, the judicial adoption of a wrongful conduct rule that was “plainly inconsistent with the Rule adopted by the Legislature . . . would be ‘wrongful conduct’ on our part.”211 The Court majority dismissed Justice Benjamin’s argument in a footnote to its opinion, stating: We are cognizant of and expressly note that in its most recent session, our Legislature enacted a similar statute which would bar recovery for a plaintiff whose damages “arise out of the plaintiff’s commission, attempt to commit or fleeing from the commission of a felony criminal act insofar as the plaintiff is convicted of the felony . . . .” However, the instant certified question, which asks this Court to adopt a common law version of the wrongful conduct rule, is unaffected by this enactment which is not yet effective as of the date this case was submitted to the Court or this opinion . . . . The effect of this statute is simply not before the Court.212 E. Dissenting Opinions Justices Ketchum and Loughry dissented, arguing in support of a broad wrongful conduct rule in line with what was adopted in Orzel. Both justices disagreed with the majority’s position that such a rule 208. See id. at 644. 209. See generally David A. Strauss, Originalism, Conservatism, and Judicial Restraint, 34 HARV. J.L. & PUB. POL’Y 137 (2011) (indicating that judicial conservatism means conserving what has been done in the past); see also W. Va. State Board of Educ. v. Barnette, 319 U.S. 624, 646 (1943) (Frankfurter, J., dissenting). 210. Tug Valley Pharmacy, 773 S.Ed.2d at 642 (Benjamin, J., concurring). 211. Id. at 644–45. 212. See id. at 630 n.6. (citation omitted).

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was unworkable due to its ambiguities and necessary exceptions.213 As stated by Justice Ketchum, “[t]he wrongful conduct rule is straightforward and requires a court to exercise its basic common sense . . . .”214 Justice Loughry added, “[d]espite the majority’s empty protestations, both the wrongful conduct rule and its rationale are easily understood and applied.”215 The two dissenting opinions express frustration with the rampant drug-abuse problem that has taken hold in West Virginia. They advanced as the primary justification for adoption of the wrongful conduct rule the perceived reprehensibility of the plaintiffs’ conduct. The justices seemed outraged at the notion that a drug addict who had engaged in criminality associated with his drug use should be allowed to recover against a defendant who had allegedly facilitated that drug use and caused or perpetuated the addiction. Justice Loughry stated: Assuming all facts as alleged by the parties are true, there are no even remotely innocent victims here. Rather, there are only individuals who knowingly participated in varying degrees of criminal or grossly reckless activity . . . [T]he majority’s decision requires hard-working West Virginians to immerse themselves in the sordid details of the parties’ enterprise in an attempt to determine who is the least culpable— a drug addict or his dealer . . . . In a state where drug abuse is so prevalent and where its devastating effects are routinely seen in cases brought before this Court, it is simply unconscionable to me that the majority would permit admitted criminal drug abusers to manipulate our justice system to obtain monetary damages to further fund their abuse and addiction.216 As further stated by Justice Ketchum: I dissent because criminals should not be allowed to use our judicial system to profit from their criminal activity. The twenty-nine plaintiffs in the present matter have admitted to engaging in . . . criminal [conduct] . . 213. 214. 215. 216.

See id. at 638–39 (Ketchum & Loughry, JJ., dissenting). Id. at 638. Id. at 639. Id. at 638, 641.

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. The majority’s ruling permitting criminal plaintiffs to maintain these civil lawsuits ignores common sense and will encourage other criminals to file similar lawsuits in an attempt to profit from their criminal behavior. I strongly disagree with this ruling . . . .”217 V. POLICY IMPLICATIONS The West Virginia Supreme Court’s decision in Tug is arguably reflective of changing attitudes toward addiction resulting from the widespread and devastating opioid epidemic. Although the medical community has recognized addiction as a disease since the 1950s, the community at large and public policy have generally approached addiction as a behavioral issue that is best dealt with through criminalization and incarceration.218 The War on Drugs is a reflection of that view, as is application of the wrongful conduct rule to preclude any civil litigation recovery by addicts, no matter how egregious, wrongful, or even criminal, the behavior of the opposing party may be. Because of the broad reach of the opioid epidemic—which has impacted people from every socioeconomic class, every race and gender, every age group and community, including inner-city, rural, suburban, and Middle-American households—the public at large is now realizing, often through first-hand experience, that addiction is a health issue.219 People are beginning to recognize that certain behaviors which have been historically criminalized, leaving addicts to contend with the burden of criminal records and other ramifications, are in fact symptoms of a disease that should be handled with compassion rather than incarceration. To echo a phrase that is frequently heard today at every level of government and in law enforcement, “we cannot arrest our way out of this drug epidemic.”220 217. Id. at 637. 218. See generally Bryan Stevenson, Drug Policy, Criminal Justice and Mass Imprisonment, GLOBAL COMMISSION ON DRUG POL’YS (2011), http://www.global commissionondrugs.org/wp-content/themes/gcdp_v1/pdf/Global_Com_Bryan_ Stevenson.pdf. 219. See generally Addiction, SURGEON GENERAL (June 12, 2017), https:// www.surgeongeneral.gov/priorities/index.html. 220. See, e.g., Jill Westmoreland Rose, We Can’t Arrest Our Way Out, CHARLOTTE OBSERVER (Sept. 20, 2016), http://www.charlotteobserver.com/opinion/op-ed/article103032432.html; see also Carol Robidoux, NH Top Cops: ‘We Can’t Arrest Our Way Out’ of oxy, heroin epidemic, MANCHESTER INK LINK (Oct. 11, 2014), https://manchesterinklink. com/nh-top-cops-cant-arrest-way-oxy-heroin-epidemic/.

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West Virginia has been hit harder by the opioid epidemic than any other state in the nation.221 Therefore, it makes sense that the West Virginia Supreme Court would be the first to reject a rule that would completely bar addicted plaintiffs from recovering civilly from defendants alleged to have caused or perpetuated their addiction. The behavior of the defendants in Tug was egregious and most of the providers were convicted of controlled-substance violations, indicating that prescriptions were not issued for legitimate medical purposes. It is reasonable to conclude, based upon the volume of controlled substances prescribed by both Shafer and Hoover, as well as the cash found after multiple law enforcement investigations, that the doctors were operating a “pill mill.” The pharmacists from SavRite, B&K, and Tug Valley similarly contributed to the plaintiffs’ addictions. Although they claimed ignorance of the narcotic abuse, it is not reasonable that they were unaware of the “pill mill” activities going on around them. Certainly, the plaintiffs had also engaged in wrongful behavior. It is criminal to forge prescriptions, to acquire controlled substances without a prescription, to take controlled substances in doses that exceed prescription, and the like. But all of those behaviors are part and parcel of the disease of addiction. They are symptoms so classic that they are cited in the DSM-V. As previously discussed, the diagnostic features of severe opioid use disorder include the following: using for no legitimate medical purpose, using in amounts that greatly exceed the amount needed, purchasing on the illegal market, exaggerating physical symptoms to prescribers to get prescriptions, shopping around for doctors, and forging documents to obtain prescriptions. Does this mean that the behavior of the plaintiffs should be entirely excused? No. But the diagnostic features of opioid use disorder should be considered in weighing the “wrongfulness” of the plaintiffs’ conduct; and such conduct should not, by itself and with no consideration of the conduct of the opposing party, constitute a bar to recovery in a civil lawsuit. Although language reflective of the moral model of addiction echoes throughout the opinions of the dissenting justices in Tug, and to some extent in the language of the majority opinion as well, the West Virginia Supreme Court decision effectively recognized this truth. 221. See Harrison Jacobs, Here’s why the opioid epidemic is so bad in West Virginia, BUSINESS INSIDER (May 1, 2016), http://www.businessinsider.com/whythe-opioid-epidemic-is-so-bad-in-west-virginia-2016-4.

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One might argue that if courts were to truly recognize addiction as a disease, and the associated criminality as its symptoms, then a case like Tug would come out the same way even if the wrongful conduct rule of Orzel were applied. As discussed earlier, the Orzel court recognized a “culpability exception” to the wrongful conduct rule: [E]ven though a plaintiff has engaged in serious illegal conduct and the illegal conduct has proximately caused the plaintiff’s injuries, a plaintiff may still seek recovery against the defendant if the defendant’s culpability is greater than the plaintiff’s culpability for the injuries, such as where the plaintiff has acted “under circumstances of oppression, imposition, hardship, undue influence, or great inequality of condition or age . . . .”222 If one accepts that addiction is a disease, and that the wrongful behavior in which the Tug plaintiffs engaged is symptomatic of that disease, then one might agree that the plaintiffs were acting under its influence, and this might reasonably be characterized as oppressive, a hardship, an undue influence, or an inequality of condition. This approach is lent even greater credibility when one considers the relationship of the plaintiffs with the defendants. As explained earlier, doctor-patient and pharmacist-patient relationships are fiduciary in nature. A fiduciary relationship exists when the parties do not deal with each other on equal terms. Patients typically trust their doctors’ superior knowledge and experience in the medical field and believe that doctors will act in their best interests. Certainly, a patient would never suspect that a doctor might prescribe a drug in a manner that could cause or perpetuate the patient’s addiction. Once addicted, the disease itself drives the patient to engage in behaviors that are wrongful or criminal. Opioid addicts need a continual supply of opioids or appropriate addiction treatment. Without one of these two options, the addict will suffer withdrawal symptoms and irresistible cravings for the drug that are hallmarks of the disease. Lack of acknowledgement of the power held by doctors over patients and addicts contributes to poor public policy because it leads to further criminal acts by the addicted patients to mitigate withdrawal symptoms and feed their addiction. A plaintiff’s addiction should not excuse all wrongful or criminal behavior without regard to its severity. Moreover, the plaintiff’s 222. Orzel v. Scott Drug Co., 537 N.W.2d 208, 217 (Mich. 1995).

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conduct should be weighed against the egregiousness of the defendant’s conduct. Under Orzel, determining whether the culpability exception applies requires consideration of the defendant’s culpability, as well as the plaintiff’s.223 When considering the criminality of addiction as a culpability factor, it is necessary to look at the circumstances: who is most responsible for contributing to the addiction, the doctor through negligence and greed or the addict through subterfuge and misrepresentation? Furthermore, in assessing the medical provider’s culpability, it must be determined whether the provider is legitimately treating chronic pain with opioid therapy. This treatment question is complex. No two people are alike when it comes to opioid effects.224 Some people respond very well to low doses of opioids, can take them for weeks, and can stop treatment with minimal problems. Other patients need higher doses to start and require progressively higher doses as treatment continues.225 Some people have a propensity to addiction while others do not.226 Tolerance and physical dependence are often mislabeled as addiction.227 The Orzel court found the culpability exception to be inapplicable because it determined that the two wrongdoers—Mr. Orzel and the pharmacy—were equally at fault.228 Mr. Orzel illegally obtained drugs from coworkers and other sources, obtained multiple prescriptions from different physicians by repeatedly misrepresenting his need, and had pharmacies fill prescriptions written in other people’s names, all during the same time period he was getting prescriptions filled by the defendant pharmacy.229 Meanwhile, the defendant filled prescriptions for Mr. Orzel before they were due, filled them without confirming 223. Id. 224. See generally Tony L. Yaksh & Mark S. Wallace, Chapter 18: Opioids, Analgesia, and Pain Management, GOODMAN & GILMAN’S: THE PHARMACOLOGICAL BASIS OF THERAPEUTICS, 12E, 481–526, (Laurence L. Brunton, Bruce A. Chabner, Björn C. Knollmann, eds., 2011); see also Elizabeth Hartney, supra note 45. 225. See Seddon R. Savage, et al., Definitions Related to the Medical Use of Opioids: Evolution Towards Universal Agreement, 26 J. PAIN SYMPTOM MGMT. 655, 658 (2003). 226. See Kevin P. Conway, et al., Measuring Addiction Propensity and Severity: The Need for a New Instrument, 111(1-2) DRUG ALCOHOL DEPENDENCY. 10 (2010), http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2930133/pdf/nihms206523.pdf. 227. See Savage, supra note 228, at 656. 228. Orzel, 537 N.W.2d at 212. 229. See id. at 210.

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Mr. Orzel’s identity, and filled them when the prescriptions were written for “weight control” rather than obesity.230 There was no evidence that the pharmacy had engaged in deliberate misconduct; rather, the pharmacy’s alleged misconduct appeared to be the result of carelessness. Mr. Orzel was already addicted to the drug long before the defendant pharmacy filled the first prescription for him. Under these circumstances, it makes sense that the culpability exception should not be applied to avoid application of the wrongful conduct rule, even when recognizing that Mr. Orzel’s conduct was symptomatic of his addiction disease. In cases preceding Tug that are discussed herein, the courts made no mention of the culpability exception. Courts simply applied the wrongful conduct rule to bar the causes of action, with no discussion of whether circumstances should mitigate a plaintiffs’ culpability. It makes sense to revisit these cases now with the above discussion in mind—should recognition of addiction as a disease, and the associated criminality as its classic symptom, render application of the culpability exception to the wrongful conduct rule appropriate? The conduct of the plaintiff’s decedent and the defendants in Pappas v Clark is similar to the conduct of the parties in Orzel. The plaintiff’s decedent engaged in classic “addict behavior”—he illegally obtained prescriptions for controlled substances through forgery and misrepresentation.231 The wrongful conduct of the defendants, as alleged by plaintiff, was the doctor’s failure to recognize and treat Mr. Pappas’ addiction, the pharmacist’s failure to alert other pharmacies of the decedent’s forged prescriptions, and the pharmacies’ failure to verify that the decedent’s prescriptions were legitimate.232 As in Orzel, the defendants’ conduct, as alleged, appeared to be at best negligent, rather than deliberately wrongful. For the same reason the culpability exception would likely not apply in Orzel, the exception should not apply in Pappas. Kaminer is an easy case with regard to applicability—or rather, the inapplicability—of the culpability exception.233 There was no evidence in that case that Kaminer suffered from the disease of addiction.234 Instead, he died from consuming pills at a party provided 230. 231. 232. 233. 2007). 234.

Id. at 210, 217. See Pappas v. Clark, 494 N.W.2d 245, 246 (Iowa Ct. App. 1992). See id. See Kaminer v. Eckerd Corp. of Fla., 966 So. 2d 452 (Fla. Dist. Ct. App. See id. at 454.

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by his fraternity brother, which in turn had been stolen from the defendant pharmacy.235 Our operating premise in re-analyzing these cases is that addiction is a disease which might legitimately trigger the culpability exception to the wrongful conduct rule. Because Kaminer wasn’t afflicted with this disease, the culpability exception does not apply, and application of the wrongful conduct rule to bar his claim against the pharmacy was appropriate. Finally, we have the two cases filed against Purdue Pharma and other defendants—Foister and Price. In each of these cases, it would be appropriate to apply the culpability exception to permit the plaintiffs to pursue their claims against the pharmaceutical company. In Foister, the eight plaintiffs claimed that use of OxyContin caused them or their decedent to become addicted to the drug, in some cases resulting in death. Did the plaintiffs engage in wrongful conduct? Yes, they did—the kind of conduct that is described in the DSM-V as textbook symptoms of addiction. They engaged in “doctor shopping,” forged OxyContin prescriptions, and conspired to possess, sell, and deliver illegal controlled substances.236 Each of these plaintiffs also adulterated the OxyContin tablets by chewing, snorting, or extracting the oxycodone for injection.237 Although this conduct was illegal, it was driven by a disease that plaintiffs alleged was caused by Purdue. And it is undisputed that Purdue Pharma had grossly misrepresented the addictive potential of its drug. As previously mentioned, Purdue Pharma has been sued multiple times by various cities and counties, as well as criminally prosecuted for these misrepresentations. The broad distribution of OxyContin coupled with these misrepresentations has largely been recognized as a significant cause of the current opioid epidemic devastating our country. If ever a defendant’s egregious conduct supported the application of the culpability exception for an addict plaintiff, it exists here. In Price, the plaintiff developed an opioid addiction due to the OxyContin prescribed by his doctor to treat his sickle cell anemia, and subsequently acted illegally by obtaining numerous prescriptions for the drug from multiple doctors.238 He sued Purdue Pharma, Abbot Laboratories, and the doctors and pharmacies who prescribed and distributed the drug to him. The facts of the case as stated in the 235. 236. 2003). 237. 238.

Id. See Foister v. Purdue Pharma, L.P., 295 F. Supp. 2d 693, 696–700 (E.D. Ky. Id. Price v. Purdue Pharma Co., 920 So. 2d 479, 482 (Miss. Ct. App. 2006).

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opinion do not appear to suggest any significant wrongdoing on the part of the doctors or pharmacies, and it would not make sense to apply the culpability exception to Mr. Price’s claims against them. It would, however, make sense to apply the exception to Mr. Price’s claim against Purdue and allow the suit to go forward, for the same reasons identified above. VI. CONCLUSION Looking to the future, Tug v. Mingo sets an important but limited precedent for addicted plaintiffs seeking to recover damages from medical providers who caused or perpetuated their addiction. The West Virginia Supreme Court adopted an appropriately compassionate stance, refusing to categorically bar plaintiffs from pursuing such claims solely because of wrongful behavior symptomatic of their disease and disregarding the egregiousness of the defendants’ conduct. The Court cited Bradley v. Appalachian Power Co. for the proposition that completely barring recovery, even where a plaintiff is only slightly at fault, is “manifestly unfair” and has the effect of rewarding the defendant’s wrongful conduct. 239 This approach resonates particularly powerfully at a time when more than 175 people are dying per day in this country because of drug overdoses240 and in circumstances where doctors and pharmacists conspire to capitalize on their patients’ addictions by running pill mills and operating as “legal” drug dealers. In such circumstances, criminal sanctions against the medical providers are not enough. The victimized patients, trapped in the nightmare of a disease that drives their wrongful behavior, deserve some recompense against these drug dealers in white coats. And the threat of potential civil liability will serve as an added deterrent to discourage such behavior on the part of unscrupulous medical providers. As noted above, even courts that have adopted the wrongful conduct rule can appropriately soften their stance when faced with an addict suing a medical provider. By recognizing addiction as a disease that drives symptomatic wrongful behavior, such courts could appropriately apply the culpability exception to allow civil suit where medical providers have deliberately and knowingly engaged in unlawful prescribing practices that caused or perpetuated the plaintiff’s disease. 239. Bradley v. Appalachian Power Co., 256 S.E.2d 879 (W. Va. 1979). 240. National Institute on Drug Abuse Overdose Death Rates, supra, at note 17.

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No one can claim to be unaware of the addictive potential of opioid medications anymore. Recent implementation of new CDC prescribing guidelines, coupled with improved PDMP procedures in many states, are making inappropriate opioid prescribing that is not for â&#x20AC;&#x153;legitimate medical purposesâ&#x20AC;? easier to spot. Allowing civil suits in these circumstances is not only a fair outcome for addicted plaintiffs but also serves as a deterrent to unacceptable and unlawful behavior on the part of medical practitioners, which behavior contributes to the severity of the opioid epidemic.

EXECUTIVE ORDER “PROTECTING THE NATION FROM FOREIGN TERRORIST ENTRY INTO THE UNITED STATES”: VIOLATING FIRST AMENDMENT RIGHTS OR ALTERING CONSTITUTIONAL PROVISIONS GRANTING FOREIGN POLICY POWERS TO THE PRESIDENT? MELISSA BROOKE WINKLER1 TABLE OF CONTENTS I.BACKGROUND ON NATIONAL SECURITY MEASURES LEADING TO THE 2017 EXECUTIVE ORDERS .......................................................... 80 II.TIMELINE OF THE TWO EXECUTIVE ORDERS AND COURT DECISIONS PERTAINING TO THE ORDERS ...................................................... 82 A. Original Case by the State of Washington and the State of Minnesota Challenging the First Executive Order ........... 82 B. State of Hawaii Case Challenging Second Executive Order Resulting in an Order Granting Motion for Temporary Restraining Order .............................................................. 87 C. Dissent Filed to State of Washington and State of Minnesota’s Cases ............................................................. 90 D. Order Granting the State of Hawaii’s Request to Convert the TRO to a Preliminary Injunction ....................................... 91 III.A TIMELINE OF CASES DEMONSTRATING THE EXECUTIVE POWER OVER IMMIGRATION ................................................................... 93 A. Chae Chan Ping v. United States ...................................... 94 B. Shamsian v. Ilchert ............................................................ 94 C. Knauff v. Shaughnessy ....................................................... 95 D. INS v. Aguirre-Aguirre ...................................................... 96

1. Melissa B. Winkler is an attorney at the Fakhoury Law Group in Troy, Michigan. Ms. Winkler received both her J.D. and LL.M. in Homeland and National Security Law from Western Michigan University Thomas M. Cooley Law School. Ms. Winkler is a member of the State Bar of Michigan and American Immigration Lawyers Association. Ms. Winkler was the Senior Editor of the Homeland and National Security Law Review and has written numerous articles on EmploymentBased immigration matters. One of Ms. Winkler’s proudest accomplishments is being named the youngest member of Oakland County’s 40 under 40 class of 2015. Ms. Winkler is fluent in Spanish and English. She is thankful for the support of her husband and daughters during the writing of this publication.

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E. Cases Made for Limiting the Power of the Judiciary Pertaining to Immigration, Foreign Policy, and National Security .............................................................................. 97 IV.CONSTITUTIONAL RIGHTS OF NON-CITIZENS ............................... 98 A. Declaration of Independence and the United States Constitution Discussion on Non-Citizen Constitutional Rights ................................................................................. 99 B. Case Law and Regulations Addressing Non-Citizens Constitutional Rights ......................................................... 99 V.STANDING ARGUMENTS IN THE STATE OF WASHINGTON AND STATE OF HAWAII CASES AND THE SUBSEQUENT IMPLICATIONS OF THE COURT’S RATIONALE ............................................................... 101 VI.ESTABLISHMENT CLAUSE ARGUMENTS: PROTECTING FIRST AMENDMENT RIGHTS OR EXPANDING RIGHTS OF NON-CITIZENS?.............................................................. 105 VII.CONCLUSION ............................................................................. 108 A. National Security Implications of the Ninth Circuit Decision ......................................................... 108 B. Next Steps for the Trump Administration: ....................... 108 “Above all, in a democracy, we have the duty to preserve the liberty of the people by keeping the enormous powers of the national government separated.” - Judge Bybee2 I.

BACKGROUND ON NATIONAL SECURITY MEASURES LEADING TO THE 2017 EXECUTIVE ORDERS

Unfortunate events over the past fifteen years of our nation’s history have heightened the perceived need for enhanced national security measures. The terrorist attacks on September 11th had dramatic consequences on immigration law and policy.3 The fear of terrorism led to tighter immigration restrictions, stricter scrutiny of foreign nationals, and firmer policies for Arab non-citizens including registration requirements and selective removal.4 With the rise of the 2. Washington v. Trump, 853 F.3d 933, 946 (9th Cir. 2017) (Bybee, J., dissenting), amended and superseded by Washington v. Trump, No. 17-35105, 2017 WL 2468700 (9th Cir. Mar. 17, 2017). 3. See Kevin R. Johnson, Protecting National Security Through More Liberal Admission of Immigrants, 2007 U. CHI. LEGAL F. 157, 158 n.5 (2007) (discussing various articles and studies on the effects of the War on Terror on U.S. universities). 4. See id.

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Islamic State of Iraq and the Levant (ISIL) and attacks on Western nations worldwide, the panic in the United States over protective borders and anti-terrorist measures has once again swelled.5 President Donald Trump spearheaded his campaign on a crusade against illegal immigration and a promise to implement measures to “Make America Safe Again.” During these campaign promises, candidate Trump made comments such as establishing “extreme vetting” procedures to keep radical Islamic terrorists out of the United States. On December 7, 2015, Trump went further by calling “for a ‘total and complete shutdown’ of the entry of Muslims to the United States ‘until our country’s representatives can figure out what is going on.’”6 These comments and President Trump’s surprising and sweeping electoral victory demonstrate to what level of importance these issues resounded with the American public. This foundation illustrates why the Executive Orders, Executive Order No. 13,769 entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” and Executive Order No. 13,780 similarly entitled “Protecting the Nation from Foreign Terrorist Entry into the United States”, were put in place. Political uproar and numerous court cases ensued as a result of these Executive Orders. Both Executive Orders relied on a provision in the Immigration and Nationality Act which states that, Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.7 There are three resounding legal issues surrounding the Ninth Circuit’s decision. The first issue is whether a president may legally block immigrants via an executive order and the President’s powers 5. See generally Tim Lister et al., ISIS Goes Global: 143 Attacks in 29 Countries Have Killed 2,043, CNN (Feb. 13, 2017), http://www.cnn. com/2015/12/17/world/mapping-isis-attacks-around-the-world/. 6. Jenna Johnson, Trump Calls for ‘Total and Complete Shutdown of Muslims Entering the United States’, WASH. POST (Dec. 7, 2015), https://www. washingtonpost.com/news/post-politics/wp/2015/12/07/donald-trump-calls-fortotal-and-complete-shutdown-of-muslims-entering-the-unitedstates/?utm_term=.0b66b6da646b. 7. 8 U.S.C.A. § 1182(f) (Westlaw 2017).

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over immigration. Second, the paper will address what level of constitutional protections non-citizens are afforded under the United States Constitution. The courts relied on the Establishment Clause to show that the Executive Order violated the First Amendment of the U.S. Constitution. This paper will evaluate whether this was an appropriate application of the Establishment Clause considering constitutional protections of non-citizens. Third, the paper will evaluate whether a court may read beyond the face of the Executive Order to statements made by the author to infer intent. Supported by numerous regulations and case law, this article argues that the executive orders were legal as non-citizens outside the United States do not have the opportunity to enjoy the same freedoms as those inside our country. II.

TIMELINE OF THE TWO EXECUTIVE ORDERS AND COURT DECISIONS PERTAINING TO THE ORDERS

In the aftermath of the controversial Executive Orders by the Trump Administration, several states, groups, and individuals brought suit over the constitutionality of the Executive Orders. The following summaries will review the case pertaining to the initial Executive order and the subsequent cases in Hawaii challenging the subsequent Executive Order. Additional cases have been brought outside of the Ninth Circuit Court.8 A.

Original Case by the State of Washington and the State of Minnesota Challenging the First Executive Order

On January 27, 2017, President Donald J. Trump issued Executive Order No. 13,769, “Protecting the Nation from Foreign Terrorist Entry Into the United States.”9 Part of the order banned entry for individuals from seven countries—including Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen—for 90 days.10 The seven countries selected for the initial executive order were originally identified as countries of concern by former President Barack Obama’s administration.11 8. E.g., International Refugee Assistance Program v. Trump, 2017 WL 1018235 (D. Md. Mar. 15,2017), aff’d in part, vacated in part Int’l Refugee Assistance Program v. Trump, 2017 WL 2273306 (4th Cir. June 2, 2017). 9. Exec. Order No. 13769, 82, Fed. Reg. 8977 (Jan. 27, 2017), superseded by Exec. Order No. 13780, 82 Fed. Reg. 13209 (Mar. 6, 2017). 10. Exec. Order No. 13769, 82, Fed. Reg. 8978 (Jan. 27, 2017). 11. Kyle Blaine & Julia Horowitz, How the Trump Administration Chose the 7 Countries in the Immigration Executive Order, CNN (Jan. 30, 2017),

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Former President Obama signed a law in December 2015 placing restrictions on travelers who visited Iran, Iraq, Sudan, or Syria on or after March 1, 2011. Two months later, the law President Obama signed added Libya, Somalia, and Yemen to the restricted traveler list to address the growing threat of foreign terrorists originating from these countries.12 The order cited the terrorist attacks of September 11, 2001, as one of the main motivations for the list change, explaining that numerous foreign-born individuals were convicted of terrorismrelated crimes, and that the U.S. must bar entry of those bearing hostile attitudes toward U.S. founding principles.13 Criticism ensued regarding the countries selected. Many questioned why the executive order omitted countries with direct links to terrorist attacks. For example, the September 11th hijackers were from Saudi Arabia, Egypt, the United Arab Emirates (UAE), and Lebanon.14 The ban was not explicitly a Muslim ban, but the countries selected are primarily Muslim.15 As such, various advocacy groups claimed the order amounted to a Muslim ban. The countries included in the ban, however, are not the most populous Muslim nations.16 If the motivating factor was truly for the ban to restrict entry based on religion, why would it not also include the most populous Muslim nations? The Executive Order suspended the Refugee Admissions Program for 120 days, and ordered that on the resumption of the refugee program, the Secretary of State should prioritize refugee claims based on religious persecution where a refugee’s religion is the minority religion in the country of his or her nationality.17 Finally, the Executive Order indefinitely suspended the entry of all Syrian Refugees.18 Immediately following the Executive Order, chaos ensued at U.S. airports. “[V]isas were immediately canceled, hundreds of travelers with such visas were prevented from boarding airplanes bound for the http://www.cnn.com/2017/01/29/politics/how-the-trump-administration-chose-the7-countries/. 12. Id. 13. Exec. Order No. 13769, 82 Fed. Reg. 8977 (Jan. 27, 2017), superseded by Exec. Order No. 13780, 82 Fed. Reg. 13209 (Mar. 6, 2017). 14. Exec. Order No. 13769, 82 Fed. Reg. 8977 (Jan. 27, 2017). 15. Krishnadev Calamur, What Trump’s Executive Order on Immigration Does—and Doesn’t Do, ATLANTIC (Jan. 30 2017), https://www. theatlantic.com/news/archive/2017/01/trump-immigration-order-muslims/514844/. 16. Id. 17. Exec. Order 13769, 82 Fed. Reg. 8979 (Jan. 27, 2017). 18. Id.

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United States or denied entry on arrival, and some travelers were detained.”19 The State of Washington filed a suit challenging the Executive Order and alleged that the order violated the First and Fifth Amendments, Immigration and Nationality Act (INA), Foreign Affairs Reform and Restructuring Act, Religious Freedom Restoration Act, and Administrative Procedure Act because it unconstitutionally stranded its residents abroad, split its residents families, restricted travel, and damaged the State’s economy and public universities.20 Washington also asserted that the travel ban was not crafted in a way to prevent terrorism, but rather to act as a “Muslim Ban” and fulfill campaign promises President Donald Trump made during the 2016 presidential election.21 Washington’s emergency motion for a temporary restraining order (TRO) was granted and the Government filed a notice of appeal seeking an emergency stay in the Ninth Circuit.22 After reviewing the parties’ standing, the court looked at the ability to review the constitutionality of the executive action.23 The court cited Boumediene v. Bush, stating that “federal courts routinely review the constitutionality of—and even invalidate—actions taken by the executive to promote national security, and have done so even in times of conflict.”24 The court also looked at cases where the court held that statutes or actions denying passports or detaining individuals under national security concerns were struck down as unconstitutional.25 Unlike the subsequent Executive Order, the first Executive Order blocked lawful permanent residents.26 The court held that the lawful permanent residents are entitled to due process hearings if there is an attempt to refuse entry.27 The court also looked at a religious discrimination claim. The First Amendment prohibits Congress from passing any “law respecting an establishment of religion.”28 Under the Lemon test, established in Lemon v. Kurtzman, a “law that has a religious, not secular, purpose 19. Washington v. Trump, 847 F.3d 1151, 1157 (9th Cir. 2017). 20. Id. 21. Id. 22. Id. at 1157–58. 23. Id. at 1161. 24. Id. at 1163. 25. Id. (citing Apthekar v. Secretary of State, 378 U.S. 500 (1964); and then citing Ex parte Endo, 323 U.S. 283 (1944)). 26. Id. at 1165. 27. Id. (quoting Rosenberg v. Fleuti, 374 U.S. 449, 460 (1963)). 28. U.S. CONST. amend. I.

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violates that clause.”29 “The States argue[d] that the Executive Order violate[d] the Establishment and Equal Protection Clauses because it was intended to disfavor Muslims.”30 The court looked at statements President Trump made on his intention to implement a “Muslim Ban.”31 The decision also stated that looking beyond the face of the law is acceptable when evaluating Establishment and Equal Protection claims.32 The court found that the Government did not meet its burden of showing a likelihood of success on appeal regarding a due process claim.33 Finally, the court balanced the hardships with the public interest. First, the court pointed out that the Government did not present evidence that any alien from the “banned countries” had committed a terrorist attack in the U.S.34 Alternatively, the courts found that the states provided an abundant amount of evidence showing that the travel ban harmed the States’ university employees and students, separated families, and stranded residents abroad and these constitute “substantial injuries and even irreparable harms”.35 Following the first ruling, Trump received support from various political leaders nation-wide. For example, Texas Attorney General Ken Paxton urged the court to reconsider their block on the executive order by filing an amicus brief asking the court to rehear en banc the Trump administration’s request for a stay.36 Paxton stated that the panel erred in finding concerns under the Establishment Clause, the due process, and the equal rights protections guaranteed under the Fifth Amendment.37 The amicus brief stated, “Rather than accord the executive’s delegated national-security decision the strongest presumption of validity, the panel found an extraordinary extension of 29. Washington, 847 F.3d at 1167 (citing Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971)). 30. Id. 31. Id. 32. Id. (citing Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993)). 33. Id. at 1168. 34. Id. 35. Id. at 1168–69. 36. See AG Paxton Leads 13-State Coalition in Amicus Brief Supporting President Trump’s Revised Immigration Order, ATTORNEY GENERAL OF TEXAS (Mar. 27, 2017), https://texasattorneygeneral.gov/news/releases/ag-paxton-leads13-state-coalition-in-amicus-brief-supporting-president-tru. 37. Brief for Appellants, International Refugee Assistance Program v. Trump, 2017 WL 2273306 (4th Cir. June 2, 2017) (No. 17-1351).

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constitutional rights to nonresident aliens who are outside the country and attempting to enter the country.”38 The brief went on to say that there are no cases that extend “constitutional rights in anything close to the degree the plaintiff’s advocate.”39 The brief finds that noncitizens do not have due process rights, equal protection rights, or protections under the Establishment clause.40 Finally, the brief states that the nationality-based restrictions have a rational basis and are not simply a way to restrict foreign nationals based on their religion.41 Subsequently, Texas was joined in the amicus brief by Alabama, Arizona, Arkansas, Florida, Kansas, Louisiana, Montana, Oklahoma, South Carolina, South Dakota, West Virginia, and Mississippi Governor Phil Bryant.42 Similarly, a resolution was passed in the U.S. House of Representatives reprimanding the judge and stating that the court ignored the Constitution, federal law, and court precedent when it issued the TRO against the Executive Order.43 There has been significant controversy over this case because United States Circuit Courts have the power to bind the nation by its decisions. The federal Circuit Courts exercise enormous power in deciding cases that determine the rights of Americans. The vast majority of cases do not go to the Supreme Court, but are decided by the Federal Courts of Appeal. “The Supreme Court of the United States hears about 100 to 150 appeals of the more than 7,000 cases it is asked to review every year. That means the decisions made by the 12 Circuit Courts of Appeals across the country and the Federal Circuit Court are the last word in thousands of cases.”44 Consequently, there is significant tension and controversy over the Circuit Court’s decisions as they may be the final word on this issue should the Supreme Court decide not to accept the case.

38. Id. 39. Id. 40. Id. 41. Id. 42. AG Paxton, supra note 36. 43. See H.R.J. Res. 120, 115th Cong. § 1 (2017). 44. About the U.S. Courts of Appeals, UNITED STATES COURTS, http://www.uscourts.gov/about-federal-courts/court-role-and-structure/about-uscourts-appeals (last visited May 2, 2017).

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B. State of Hawaii Case Challenging Second Executive Order Resulting in an Order Granting Motion for Temporary Restraining Order On March 6, 2017, the President issued an identically titled Executive Order No. 13,780. This order addressed the concerns raised in the first executive order but similarly restricted the entry of foreign nationals from specified countries and suspended the Unites States Refugee Program for a specified period of time.45 Unlike its predecessor, the second executive order removed Iraq from the list of restricted countries.46 Also, the new order amended the restriction to only include individuals who are outside the United States and who do not have a valid visa.47 As such, the new order, unlike the first order, allowed both immigrant and non-immigrant visa holders to enter the United States. This follows the rationale and complaints that the opponents of the original order had regarding visa holders, especially lawful permanent residents, had already undergone multiple reviews. The new order even went as far as to say that foreign nationals who are suspended by the order may still seek entry on a case-by-case basis and may receive a waiver based on a list of appropriate conditions.48 The new Executive Order removes the language referring to an individual’s status as a “religious minority” and does not include a Syria-specific ban on refugees.49 To refute the claim made by the first court case that it wasn’t necessary for national security, the new order identified examples of terrorism-related crimes committed in the U.S. by foreign national refugees or those entering legally on visas.50 The Government made the case that the new Executive Order responds to the Ninth Circuit’s decision in Washington v. Trump clarifying and narrowing the scope of the executive action and eliminating potential constitutional concerns.51 In the State of Hawaii and Ismail Elshikh v. Trump, the state asserts, like the case challenging the first order, that the “Executive 45. Exec. Order No. 13780, 82 Fed. Reg. 13209, 13209, 13212–15 (Mar. 6, 2017). 46. Id. at 13209, 13211, 13213. 47. Id. at 13213. 48. Id. at 13213–14. 49. Id. at 13215–16 50. Id. at 13212. 51. Hawaii v. Trump, No. 17-00050, 2017 WL 1011673 (D. Haw. Mar. 15, 2017) (referencing the Notice of Filing of the Executive Order.).

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Order inflicts constitutional and statutory injuries upon its residents, employers, and educational institutions.”52 Dr. Elshikh alleges that he, his family members, and members of his mosque were injured from the order.53 Both the State and Dr. Elshikh allege that individuals would face discrimination in violation of the Constitution and INA, including being denied the right to associate with family members abroad due to their religion or national origin.54 Hawaii also claims that the order will hurt its economy.55 Finally, the Plaintiffs claim that the order creates a perception that the Government has “[e]stablished a Disfavored religion.”56 Like the first order, the Plaintiffs reference statements the president made regarding the desire to implement a “Muslim Ban.”57 In reference to these claims, the Plaintiff’s request a Temporary Restraining Order (TRO) by asserting a violation of the Establishment Clause of the First Amendment, violation of the equal protection guarantees of the Fifth Amendment’s Due Process Clause on the basis of religion, national origin, nationality, or alienage, violation of the Fifth Amendment Due Process Clause based on due process rights, violation of procedural due process under the Fifth Amendment, and a violation of the INA due to discrimination.58 Finally, the “Plaintiffs assert that both sections [of the executive order] infringe ‘on the due process rights of numerous U.S. citizens and institutions by barring the entry of non-citizens with whom they have close relationships.’”59 Non-citizens virtually have no rights with regards to entering the United States, even if they have a close relationship with a U.S. citizen or U.S. institution.60 Regardless of the 52. Id. at *4. 53. Id. 54. Id. 55. Id. 56. Id. 57. Id. 58. Id. at *6. 59. Id. 60. If a foreign national wants to enter the United States, he or she must first determine whether he or she fits in an immigrant category for permanent residence or a non-immigrant category for temporary residence in the United States. He or she will submit an application to United States Citizenship and Immigration Services (USCIS) who will determine whether the individual is admissible. Subsequently, the Department of State (DOS) will determine whether to grant the foreign national a visa to enter the United States. See Know Your Rights: When Encountering Law Enforcement, ACLU, https://www.aclukansas.org/sites/ default/files/field_documents/know_your_rights_english.pdf (last visited June 5, 2017). See also Frost, infra note 139, at 500-01.

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relationship, the foreign national seeking entry to the United States will have to apply for a visa, be granted the visa at a consular post, and be permitted entry by a Customs and Border officer. It is surprising that the Ninth Circuit gave this argument standing. This article will discuss in more detail below the constitutional rights of non-citizens. To establish that a TRO should be granted, the Plaintiffs would need to show that he or she will likely suffer irreparable harm in the absence of preliminary relief, that the balance of the equities lean in his or her favor, and an injunction is in the public interest.61 The court focused on an Establishment Clause violation and found that Dr. Elshikh did show direct and concrete injuries to his Establishment Clause rights, and he will suffer irreparable injury in the absence of a TRO. In conducting a balancing test, the court found that while national security is important to the public, the Plaintiffs and public do have an interest in freedom of travel, avoiding separation of families, and freedom from discrimination.62 As such, the court granted the TRO.63 While the case brought by the states of Washington and Minnesota was largely similar to the case brought by the State of Hawaii and Dr. Elshikh, there are some notable differences. The latter case was brought in response to the second Executive Order, which made several changes to the first executive order. The second Executive Order had no provisions for religious minorities.64 Therefore, it is arguable that the court in the State of Hawaii and Dr. Elshikhâ&#x20AC;&#x2122;s cases had to dig even further to comments made during President Trumpâ&#x20AC;&#x2122;s campaign to rely on an Establishment Clause claim. An additional notable difference between the two orders, and as such, the two cases, is that the first order banned lawful permanent residents while the second order found that visa holders are not affected. As such, the only individuals affected under the new order are those that under current law have no right of entry to the United States. This is significant because, as discussed below, the Ninth Circuit Court in the State of Hawaii and Dr. Elshikh case appear to be providing additional rights to non-citizens abroad, family members who wish to bring those family members to the United States, or the State having an interest in those non-citizens traveling to their state.65 61. 62. 63. 64. 65.

Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 19 (2008). Hawaii, 2017 WL 1011673, at *16. Id. at *17. Id. Id.

90 C.

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Dissent Filed to State of Washington and State of Minnesota’s Cases

On March 15, 2017, in response to the Ninth Circuit Order Granting Motion for Temporary Restraining Order, Circuit Judge Bybee along with four other judges filed a dissent from the denial to reconsider the case en banc.66 The dissent suggests that the panel of judges should have put aside their personal opinions on the President or the Executive Order and looked at whether the President’s decision was within the powers of the presidency. The dissent states that policy decisions made by the president are not a matter for the court’s consideration.67 The court should still review presidential immigration policy, but that review is limited by Kleindienst v. Mandel.68 In Kleindienst, the courts found that there has been a judicial pattern increasing federal control on the admissibility of foreign nationals and the court should not intervene if the executive used its power on the basis of a facially legitimate and bona fide reason.69 Like the case at point, in Mandel, the courts found that First Amendment rights were implicated; however, it concluded that when the executive exercised its authority to exclude aliens for a legitimate and bona fide reason, the courts should not look beyond that exercise of discretion or balance its justification against the First Amendment interests of those individuals who seek interaction with the foreign national applicant.70 Similarly, Henderson v. Mayor of N.Y. stated that courts have found that the power to expel or exclude foreign nationals is a part of the Government’s political departments and is largely immune from judicial control.71 The dissent stated that Congress has the power to control the nation’s borders, and policies toward foreign nationals are interwoven 66. Washington v. Trump, 853 F.3d 933, 936 (9th Cir. 2017) (Bybee, J., dissenting) (noting the original case was decided by a panel of judges, instead of the entire bench. “I regret that we did not decide to reconsider this case en banc for the purpose of vacating the panel’s opinion. We have an obligation to correct our own errors, particularly when those errors so confound Supreme Court and Ninth Circuit precedent that neither we nor our district courts will know what law to apply in the future.”), amended and superseded by Washington v. Trump, No. 17-35105, 2017 WL 2468700 (9th Cir. Mar. 17, 2017). 67. Id. (the dissent references the case Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 165 (1993)). 68. Id. 69. Kleindienst v. Mandel, 408 U.S. 753, 761–62, 770 (1972). 70. Id. at 770. 71. Henderson v. Mayor of N.Y., 92 U.S. 259, 270–71 (1876).

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with the conduct of foreign relations.72 The President has foreign policy powers derived from his role as “Commander and Chief,” his right to “receive ambassadors and other public ministers,” and his duty to “take Care that the Laws be faithfully executed.”73 In the INA, Congress delegates the authority to the president to suspend the entry of any class of aliens he deems appropriate.74 As discussed below and cited in the dissent, numerous presidents have invoked this authority to bar the entry of aliens from specific, identified countries.75 The dissent established that the panel faulted the government for not showing more support, including classified information, of the executive order being drafted for national security measures.76 The dissent stated that this goes beyond what the courts should do.77 If there is “facial legitimacy,” the courts should not look behind the president’s discretion.78 In prior cases, the Supreme Court found that the court should not review sensitive facts in camera in light of the dangers of handling sensate national security materials.79 The dissent concluded that even though there were an enormous controversy and chaos surrounding the issuance of the executive order, judicial power should not be used to balance interests as judges see fit and let personal inclinations override important democratic principles.80 In an argument supporting separation of powers principles, Judge Bybee stated, “Even when we disagree with the judgment of the political branches—and perhaps especially when we disagree—we have to trust that the wisdom of the nation as a whole will prevail in the end.”81 D.

Order Granting the State of Hawaii’s Request to Convert the TRO to a Preliminary Injunction

Following the Order Granting Motion for TRO issued on March 15, 2017, Plaintiffs, State of Hawaii and Dr. Ismail Elshikh, moved to 72. Washington, 853 F.3d at 936–37. 73. Id. (quoting American Ins. Ass’n v. Garamendi, 539 U.S. 396, 414 (2003)). 74. 8 U.S.C.A. § 1182(f) (Westlaw 2017). 75. Washington, 853 F.3d at 936. 76. Id. at 945. 77. Id. 78. Id. at 940. 79. Id. at 945. (citing Kerry v. Din, 135 S.Ct. 2128, (2015) (Kennedy, J., concurring)). 80. Id. at 946. 81. Id.

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convert the TRO to a preliminary injunction.82 The Plaintiffs again asserted that the Executive Order results in citizens having to “live in a country and State where there is the perception that the government has established a disfavored religion.”83 Taking it a step further, the Plaintiffs claim that the Executive Order stigmatizes immigrants, refugees, and Muslim citizens of the U.S.84 The Plaintiffs again presented evidence that they contend undermines the national security rationale behind the Executive Order.85 The court reaffirmed its findings for the TRO and why the Plaintiffs are entitled to preliminary injunctive relief.86 The purpose of granting a preliminary injunction is to preserve the status quo and prevent irreparable harm.87 In its discretion, the court may “convert a temporary restraining order into a preliminary injunction.”88 In this case, the court again looked at an Establishment Clause Violation by applying the Lemon test.89 The Government once again urged “the court not to look beyond the four corners of the Executive Order” and provide the President with deference in the national security context.90 The Court found that the Establishment Clause does still apply to the Executive, and the Court may look at evidence beyond the face of the challenged law to evaluate Establishment and Equal Protection Clause Claims.91 When the Government stated that they had amended the Executive Order to address the Establishment Clause Concerns, the court responded that the government purpose hasn’t changed.92 To determine whether to convert the TRO to a Preliminary Injunction, the court analyzed whether there would be irreparable harm and found that “irreparable harm may be presumed with the finding of a violation of the First Amendment.”93 The court found that Dr. 82. Plaintiffs’ Mot. to Convert TRO to Prelim. Inj., ECF No. 238, Hawaii v. Trump, CV 17-00050 DKW-KSC, 2017 WL 1167383 (D. Haw. Mar. 29, 2017). 83. Id. at *2. 84. Id. 85. Id. 86. Id. at *3. 87. Reno Air Racing Ass’n v. McCord, 452 F.3d 1126, 1131 (9th Cir. 2006). 88. Hawaii v. Trump, No. 17-00050, 2017 WL 1011673, *5 (D. Haw. Mar. 15, 2017). 89. Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971). 90. Hawaii, 2017 WL 1167383 at *6. 91. Id. 92. Id. at *7. 93. Id. (citing Klein v. City of San Clemente, 584 F.3d 1196, 1208 (9th Cir. 2009)).

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Elshikh would likely suffer irreparable, ongoing, and significant injury.94 The Court then balanced the equities and public interests affected and found that while national security and providing deference to the President’s constitutional and statutory responsibilities to immigration policy is important to public interest, public interest weighs in favor of maintaining the status quo because the Executive Order violates the First Amendment rights under the Constitution.95 The court subsequently granted the Motion to Convert the Temporary Restraining Order to a Preliminary Injunction.96 The following sections will discuss the power the Executive Branch has over immigration and the Constitutional rights of noncitizens. Subsequently, the article will review the Establishment Clause arguments made by the Ninth Circuit decision and analyze whether the court appropriately applied Establishment Clause Principles. Finally, the article will review the standing arguments made by the court and what implications this could have on immigration, national security, and foreign policy going forward. III.

A TIMELINE OF CASES DEMONSTRATING THE EXECUTIVE POWER OVER IMMIGRATION

The succeeding cases demonstrate the power the Executive Branch maintains over immigration and how that control evolved. The decisions involving foreign policy, including judgments pertaining to immigration and national security, have been determined to be “political, not judicial” in nature.97 Specifically, the Government relied on 8 U.S.C. § 1182(f) which states that the president may, by proclamation, exclude classes of aliens whose admission would, in his judgment, be detrimental to the United States.98

94. Id. 95. Id. 96. Id. at *8. 97. Chicago & S. Air Lines, Inc. v. Waterman, 333 U.S. 103 (1948) (“[Foreign policy issues] are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and have long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.”). 98. 8 U.S.C.A. § 1182(f) (Westlaw 2017).

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Chae Chan Ping v. United States

In some of the earliest showings of executive power over immigration, the court in Chae Chan Ping v. United States found that the federal government does have the power to exclude non-citizens from the nation.99 The Supreme Court went on to say that the decision on whether to exclude immigrants from the United States is a political question which is not subject to review by the judiciary.100 In another case, the Supreme Court affirmed the findings in Chae Chan Ping but looked beyond the United States constitutional policies by turning to principles of customary international law to find that all sovereign nations have the inherent authority to exclude individuals from their territory.101 B.

Shamsian v. Ilchert

During the Iranian Hostage Crisis in which Iranian students stormed the U.S. Embassy in Tehran and took more than sixty American Hostages, President Carter went much further than current President Trump with his directive to the Attorney General.102 President Carter directed the Attorney General to identify and deport Iranians here unlawfully.103 Several months later, President Carter expanded the policy to policy to “invalidate all visas issued to Iranian citizens for future entry into the United States.”104 The order went on to state that the government would no longer “issue new visas, except for compelling and proven humanitarian reasons, or where the national interest of our own country requires.” Again, this is a significantly more restrictive policy than President Trump’s order which only refuses entry for any non-citizens from particular countries but does not invalidate visas. Further, President Carter’s order went significantly further to invalidate all visas whereas the second executive order issued by the Trump administration allowed both 99. Chae Chan Ping v. United States, 130 U.S. 581 (1889). 100. Id. at 601–02. 101. Fong Yue Ting v. United States, 149 U.S. 698, 705–09 (1893). 102. Iran Hostage Crisis, HISTORY, http://www.history.com/topics/iran-hostagecrisis (last visited Mar. 11, 2017). 103. John M. Goshko, Carter Orders Deportation of Illegal Students, WASH. POST (Nov. 11, 1979), https://www.washingtonpost.com/archive/politics/1979/11/11/ carter-orders-deportation-of-illegal-students/2f242d98-cf30-46bb-8e8a-c0898f4 5eda8/?utm_term=.eb2ee8cbb0d2. 104. Shamsian v. Ilchert, 534 F. Supp. 178, 184 (N.D. Cal. 1982) (emphasis added).

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immigrant and non-immigrant visa holders entry to the United States.105 In Shamsian v. Ilchert, Iranian Nationals applied for an extension of stay as non-immigrants and for a change of status and were denied during the Iranian “hostage crisis.”106 The court found that the individuals should be denied an extension of their visa and change of status because the President’s foreign policy regulation imposing restrictions on Iranians entry was authorized.107 The court elaborated that, “Any ambiguity in the President’s statement, following Iranian seizure of American Embassy, that the government could not reissue visas was to be resolved in favor of the President.”108 This sentiment is also iterated in Yassini v. Crosland, where the court found that if there is an ambiguity in the sensitive area of foreign policy, the ambiguity should be resolved in favor of the President.109 The Ninth Circuit court appears to have abandoned or forgotten this directive in the most recent rulings as they have rejected any priorities of the president and certainly did not rule “in favor of the President.” The court in Shamsian cited various immigration laws and cases which established the legality of President Carter’s actions. First, the court looked at the regulations which state that non-immigrants do not have a right to remain in the United States and their admission is granted as a courtesy only.110 Further, discretionary withdrawal of the privilege of entry to the United States is a core element of international diplomacy in response to the actions by foreign countries and the President may constitutionally draw distinctions on the basis of nationality unless wholly irrational.111 In the context of the Trump Executive Orders, the administration was acting in response to the recent terrorist attacks and creating international security. C.

Knauff v. Shaughnessy

Knauff v. Shaughnessy was one of the key cases cited by the Government during the Ninth Circuit cases as well as in Judge

105. 106. 107. 108. 109. 110. 111.

Id.; Exec. Order No. 13780, 82 Fed. Reg. 13209 (2017). Shamsian, 534 F. Supp. at 178. Id. Id. at 180. Yassini v. Crosland, 618 F.2d 1356, 1361 n.6 (1980). 8 C.F.R. § 245.2(a)(2) (2011). See Narenji v. Civiletti, 617 F.2d 745, 745 (D.C. Cir. 1979).

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Bybee’.112 In Knauff, the Court suggested that the President has inherent authority to regulate the entry of non-citizens into the United States.113 Ellen Knauff, a German Citizen, married an American officer and sought entry to the United States.114 She was subsequently excluded without a trial.115 The Court looked at the sovereign power that developed in the foundational immigration law cases, some of which are mentioned above.116 The Court found that when Congress prescribes a procedure regarding the admissibility of foreign nationals, it is also “implementing an inherent executive power.”117 This shows that the President may possess power over immigration even beyond congressional authorization. D.

INS v. Aguirre-Aguirre

Another recent example of heightened deference to the Executive Branch over the entry of non-citizens to the United States can be found in I.N.S. v. Aguirre-Aguirre.118 The courts were tasked with reviewing the statutory provision that “an alien is ineligible for withholding of removal if the Attorney General determines that the alien has committed a serious nonpolitical crime outside the United States before entering the United States.”119 The Board of Immigration Appeals (BIA) denied withholding of removal, which would provide a person who demonstrates more than a 50% chance that they will be persecuted in their home country on account of their race, religion, nationality, membership in a particular social group, or political opinion protection from being deported to a country where they fear persecution.120 The Ninth Circuit Court reversed the BIA’s decision, and the Supreme Court subsequently stated that the Ninth Circuit 112. Washington v. Trump, 853 F.3d 933, 946 (9th Cir. 2017) (Bybee, J., dissenting). 113. United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950) (“The exclusion of aliens is a fundamental act of sovereignty. The right to do so stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation.”). 114. Id. at 539. 115. Id. at 542. 116. Id. 117. Id. 118. I.N.S. v. Aguirre-Aguirre, 526 U.S. 415 (1999). 119. 8 U.S.C.A. § 1253(h)(2)(c) (Westlaw 2017). 120. 8 C.F.R. § 208.16 (2009). See also Deportation Removal Defense, FAMILIA AMERICA IMMIGRATION, https://www.familiaamerica.com/practice-areas/deport ation-removal-defense/ (last visited June 4, 2017).

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Court failed to show deference to the executive branch which is “especially important in the immigration context, where officials exercise particularly sensitive foreign policy judgments.”121 This is incredibly similar to the decision by the Ninth Circuit regarding Trump’s executive order where the Ninth Circuit failed to take into consideration the foreign policy judgments the President may be taking with regards to the entry of foreign nationals to our country. It is possible that if the case is reviewed by the Supreme Court, the Court could make a parallel decision to that of Aguirre. E. Cases Made for Limiting the Power of the Judiciary Pertaining to Immigration, Foreign Policy, and National Security Some recent cases discussed a separation of powers concept by also shining a light on Congress’s power over immigration. The court, notably, did specifically limit the power of the judiciary in immigration cases and in doing so makes it clear that the power to regulate immigration rests more heavily in the executive and legislative branches. For example, in Galvan v. Press, the court again found that immigration law and the power to exclude foreign nationals is a fundamental sovereign power left to the political branches.122 In Galvan, the court looked at several other recent immigration cases that limited judicial review of immigration cases.123 In INS v. Chadha, the court provided power to congress by stating, “Congress’s Art. 1 power ‘To establish a uniform Rule of Naturalization,’ combined with the Necessary and Proper Clause, grants it unreviewable authority over the regulation of aliens. The plenary authority of Congress over aliens under Art. 1, § 8, cl. 4, is not open to question.”124 Interestingly, none of the cases reviewed whether the Executive Order complied with the “Youngstown Test” as set forth in Youngstown Sheet & Tube Co. v. Sawyer when President Truman attempted to seize a Youngstown plant to be used as a tool during the war with North Korea.125 In the decision, Justice Jackson’s concurrence provided a test for determining the legality of an Executive order.126 First, where the President acts pursuant to an 121. Adam B. Cox & Cristina M. Rodriguez, The President and Immigration Law, 119 YALE L.J. 458, 481–82 (2009) (discussing I.N.S., 526 U.S. 415.). 122. Galvan v. Press, 347 U.S. 522, 531 (1954). 123. Id. 124. I.N.S. v. Chadha, 462 U.S. 919, 936 (1983). 125. See generally Youngstown Sheet & Tube Co. v. Sawyer, 343 US 579 (1952). 126. Id.

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express or implied authorization of Congress, he has the greatest constitutional authority, and the burden of persuasion is on whoever attacks the order.127 Second, when the President acts without a congressional grant or denial of authority, he can only rely on his own independent powers, but the President and Congress may have concurrent authority.128 The test of power in this situation would depend on the imperatives of the events.129 Third and finally, when the President’s actions are incompatible with the expressed or implied will of Congress, he has the lowest level of power, and he can only rely on his constitutional power “minus any constitutional powers of Congress over the matter.”130 Trump’s Executive Order should be valid under both the first and second prongs of the Youngstown test. First, Trump relied on explicit grants of authority by Congress codified at 8 U.S.C. § 1182 providing the President the authority to suspend the entry of a class of aliens as he deems appropriate.131 The Executive Order would also meet the second part of the Youngstown Test as the Constitution clearly sets forth the President’s power to oversee Foreign Relations which encompasses the entry of immigrants to the country.132 IV.

CONSTITUTIONAL RIGHTS OF NON-CITIZENS

Non-Citizens of the United States, especially those that are outside of the United States, do not receive the same level of protections as those individuals inside the U.S. borders. From the Declaration of Independence and United States Constitution and through various case law, it has been clearly established that those within the U.S. borders do receive constitutional freedoms guaranteed by the U.S. Constitution, but the Constitution will not expand to apply to all individuals worldwide.

127. Id. at 635–37. 128. Id. at 637. 129. Id. 130. Id. at 637–38. 131. 8 U.S.C.A. § 1182(f) (Westlaw 2017). 132. U.S. CONST. art II (granting the President the powers to make treaties and appoint ambassadors with the advice and consent of the Senate).

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A. Declaration of Independence and the United States Constitution Discussion on Non-Citizen Constitutional Rights The United States Constitution has little to say regarding the rights of non-citizens or the regulation of immigrants to the United States. It can be argued that Constitution grants Congress’s authority of immigration by providing Congress with the power to “establish a Uniform Rule of Naturalization” and Congress’s power to “regulate Commerce with foreign Nations.”133 The question pertaining to the Ninth Circuit decisions revolves around the extent to which U.S. constitutional protections apply to non-citizens. Further, the plenary power doctrine in immigration law limits judicial scrutiny of the immigration rules adopted by Congress and the President and through various Supreme Court cases, as discussed below, emphasize that immigration issues are best left to the executive and legislative branches.134 B.

Case Law and Regulations Addressing Non-Citizens Constitutional Rights

Case law and regulations support the fact that the constitutional protections do apply to those within the United States, even if they are immigrants, non-immigrants, or illegal aliens.135 This may be due to the fact that the Bill of Rights refers to the rights of “persons” rather than “citizens.”136 Similarly, the Constitution’s preamble seems to suggest, by stating “We the People of the United States” and “establish this Constitution for the United States of America”, that the protections were intended only for the people within the U.S. borders and not for non-citizens abroad.137 Republicans, including James Madison, looked to the Declaration of Independence and argued that non-citizens have the right to the constitution’s protections regardless of whether they are parties to the constitutional compact.138 The courts supported this principle in Yick Wo v. Hopkins, where a Chinese national and legal resident claimed that a San Francisco ordinance regarding laundry facilities in wooden buildings was a 133. U.S. CONST. art. I, § 8, cl. 3–4. 134. See Chae Chan Ping v. United States, 130 U.S. 581 (1889). 135. See Plyler v. Doe, 457 U.S. 202 (1982). 136. Louis Henkin, The Constitution as a Compact and as a Conscience: Individual Rights Abroad and at Our Gates, 27 WM. & MARY L. REV. 11, 12 (1985). 137. U.S. CONST. pmbl. (emphasis added). 138. Amanda Frost, Independence and Immigration, 89 S. CAL. L. REV. 485, 496– 97 (2016).

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violation of the Fourteenth Amendment’s Equal Protection Clause.139 This was the first time the court addressed the question of whether the Constitution protects non-citizens.140 The court did find that the Fourteenth Amendment’s Equal Protection Clause applied to citizens as well as noncitizens. Similarly, the court in Wong Wing v. United States stated that the Constitution applied to legally present noncitizens.141 In more recent case law, the decision in Plyer v. Doe, where a group of undocumented school children challenged a Texas law that barred them from public U.S. education, the court found that the undocumented aliens are still entitled to the Constitution’s protection, even if they are deportable.142 In Kerry v. Din, the government asserted that non-citizens have no basis for claiming a right to obtain a visa or seek admission.143 However, the Supreme Court reversed the Ninth Circuit court and affirmed the executive’s decision under the Constitutional Plenary Power Doctrine to deny the visa for a spouse of a U.S. citizen upholding the principle that the federal government still maintains the power to select non-citizens for entry to the U.S.144 In summary, [C]onstitutional treatment of noncitizens is cleaved into two conflicting lines of cases. Although noncitizens residing in the United States—whether legally present or not— are protected by the Constitution, noncitizens have almost no constitutional rights when they seek to enter or reenter the United States, and they have very few such rights when they seek to avoid deportation from the United States. In other words, the Constitution is read through a universalist lens when it comes to the rules regulating noncitizens’ conduct, but not when it comes to the rules selecting them for entry into the United States.145 The Ninth Circuit seemed to redefine the protections to which noncitizens may be afforded while they are outside the United States. The 139. 140. 141. 142. 143. 144. 145.

See Yick Wo v. Hopkins, 118 U.S. 356 (1886). Id. Wong Wing v. United States, 163 U.S. 228, 238 (1896). Plyler v. Doe, 457 U.S. 202, 226 (1982). Kerry v. Din, 135 S. Ct. 2128, 2131 (2015). Id. Frost, supra note139, at 500–01.

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Ninth Circuit appears to be arguing that the United States Constitution applies to everyone around the world. However, case law and the constitution itself seems to argue that there must be limits on who is permitted to benefit from the U.S. Constitutional protections. The above authorities find that the Constitution should protect all noncitizens within the United States from laws regulating their conduct, but not from laws regulating an alien’s ability to enter and remain in the United States. STANDING ARGUMENTS IN THE STATE OF WASHINGTON AND STATE OF HAWAII CASES AND THE SUBSEQUENT IMPLICATIONS OF THE COURT’S RATIONALE V.

The doctrine of “standing” establishes who can challenge government actions in a federal court. To establish standing, a potential plaintiff must show that he or she has suffered a violation of a recognized right, and the injuries are “concrete and particularized”146, imminent, traceable to the defendant, and a favorable decision will amend the injury.147 The Plaintiff must have a personal stake in the outcome of the controversy to have an adversary context for the case.148 In the Washington case, the States argued that the Executive Order “causes a concrete and particularized injury to their public universities, which the parties do not dispute are branches of the States under state law.”149 Specifically, the States allege that the Executive Order would have a negative impact on the faculty and students who are nationals of the listed countries.150 For example, the faculty and students would be unable to travel for research or academic collaboration, and family abroad would be unable to visit.151 This would impact the universities’ research and teaching endeavors.152 The Plaintiffs cited examples, including two visiting scholars who were not permitted to enter the U.S., three prospective employees the University of Washington was sponsoring that would have been unable to enter the U.S. under the 146. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992) (The injury must be non-speculative and the injury must affect the plaintiff in a personal and individual way.). 147. Id. 148. Baker v. Carr, 369 U.S. 186, 204 (1962). 149. Washington v. Trump, 847 F.3d 1151, 1159 (9th Cir. 2017). 150. Id. 151. Id. 152. Id.

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order, and two medical and science interns who would have been prevented entry under the order.153 The University of Washington already incurred the cost of the visa application and have a mission of “Global Engagement,” which would be hindered under the order.154 Under the “Third Party Standing” Doctrine, the court found that the injuries to the state universities confer standing for the States to defend the rights of those impacted by the Order.155 The court found that the States may represent the students and faculty members, and their injuries would be redressed if they obtained relief by declaring the Executive Order violates the Constitution and received an injunction barring its enforcement.156 As such, the court found the States have standing.157 In the case brought forth by the State of Hawaii and Dr. Ismail Elshikh, the State alleges injuries to proprietary interests and protection of its citizens.158 Hawaii also states that the Executive Order will have an impact on the University of Hawaii, and the State of Hawaii would lose out on tourism from the impacted countries which would harm Hawaii’s businesses and State revenue.159 The court conferred standing to the State finding that the university would suffer monetary damages and intangible harm, the State’s economy would suffer a loss of revenue, and the State would not suffer these harms in the absence of implementing the Executive Order.160 Dr. Elshikh is an Egyptian citizen and Hawaiian resident.161 His wife is Syrian and his mother-in-law is also Syrian with a pending visa filed in September 2015.162 Following the Executive Order, the National Visa Center said that Dr. Elshikh’s mother-in-law’s visa 153. Id. 154. Id. 155. Id. at 1151. See Singleton v. Wulff, 428 U.S. 106, 114–16 (1976) (explaining the ability to grant third-party standing). 156. Id. 157. Id. 158. Hawaii v. Trump, No. 17-00050, 2017 WL 1011673 (D. Haw. Mar. 15, 2017) (The state asserted its role as parens patrae by alleging it has a quasi-sovereign interest in protecting its residents from the harmful effects of discrimination. The court referenced its decision in Washington finding the same logic to confer standing under parens patrae as it did in providing standing based on the States’ interests in their public universities.). 159. Id. 160. Id. 161. Id. 162. Id.

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application had been put on hold because of the Executive Order.163 Dr. Elshikh’s mother-in-law could be barred in the short-term from entering the U.S. unless she receives a waiver because she is not a visa holder.164 The court finds that Dr. Elshikh claimed that he and his family suffers injuries and is “deeply saddened” by the message of the executive orders.165 As discussed in detail above, non-citizens, or nonvisa holders, do not possess a right to enter the United States, regardless of the feelings of their family members. Those outside the U.S. must follow the immigration laws of the U.S. to seek entry to the country. The court is, in essence, taking the hurt feelings of residents to confer legal rights to non-visa holders abroad. The court’s rationale for granting standing sets a dangerous precedence providing more rights to non-citizens than allowed in the past. In the Washington case, the courts essentially provided rights to prospective students and professors or even as far as those family members of international students and professors.166 This is unprecedented in Immigration law. In the Hawaii case, the courts gave deference to the state’s impacted tourist industry.167 The Order under which the Hawaii case was brought only applies to new visas from the six countries listed and does not apply to international travelers who already have visas. As such, it would only harm the tourist industry for those that do not already have a valid visa. If looking at national security interests, this is a flawed balancing test. The State of Hawaii had 8.9 million visitors in 2016.168 Of those, only 6,800 were from the Middle East—this from the Middle East as a whole, not the six countries included in the Order.169 This accounts for less than .1% of the tourist industry in Hawaii in which the court rests its finding of standing. In following the cases and explanation of constitutional rights for non-citizens above, if a business owner in a foreign country who does not have a visa granting him entry to the United States or a green card, 163. Id. 164. Id. 165. Id. 166. See generally Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017). 167. Hawaii v. Trump, No. 17-00050, 2017 WL 1011673 (D. Haw. Mar. 15, 2017). 168. Cathy Bussewitz, Hawaii Fears Travel Ban Could Jeopardize Tourism, the State’s Main Economic Driver, CHI. TRIB. (Mar. 15, 2017), http://www.chicagotribune.com/news/nationworld/ct-hawaii-travel-ban-tourism20170315-story.html. 169. Id.

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he has effectively no recognized Constitutional rights to gain entry into this country. If that same individual hired an attorney to sue in court for entry into the United States claiming First Amendment privileges, the court would find the person has no standing. In essence, Hawaiiâ&#x20AC;&#x2122;s suit used the frustration of Hawaiian residents and the potential, even if small, economic harm to American states to grant constitutional rights to non-Americans. Following the example of the business owner in a foreign nation who wants to enter the United States, if that individual is from Libya and wanted to enter as a tourist on a B-1 visa.170 Under the second executive order, this individual would be banned from entry because they do not already possess a valid visa or green card for entry into the United States. The Ninth Circuit essentially held that all people should be free of the temporary travel ban regardless of where they want to travel in the U.S. By relying on an establishment clause freedom of religion argument, which is discussed in greater detail below, the courtâ&#x20AC;&#x2122;s decision finding that some of its citizens had a right to be free of a government message disapproving of their religion, all non-citizens should be free from a temporary travel ban. Furthermore, this extended any potential due process rights beyond just green-card holding lawful permanent residents to any non-citizens from countries, even those that are adversarial to the United States, to enter the U.S. for the first time. In the Washington and Hawaii cases and the subsequent order granting the motion to convert the TRO to a preliminary injunction, the court even specifically declined to limit the injunction to green card holders only and said that the States would continue to have standing and potential claims regarding possible due process rights violations.171 While the cases the court cited are not specifically on point, the Ninth Circuit used this case law authority to grant due-process rights to potential immigrants to the point of outweighing a national interest balancing test. Furthermore, the ruling pertaining to the Stateâ&#x20AC;&#x2122;s standing would essentially provide state attorneys general with the extraordinarily broad powers to act as lawyers for all immigrants or potential immigrants because the court used the potential of a harm to provide

170. B-1 Temporary Business Visitor, U.S. CITIZENSHIP AND IMMIGR. SERVS., https://www.uscis.gov/working-united-states/temporary-visitors-business/b-1temporary-business-visitor (last updated July 14, 2015). 171. See Hawaii, 2017 WL 1011673; See also Washington v. Trump, 853 F.3d 933 (9th Cir. 2017) (Bybee, J., dissenting).

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standing for the “states to act on behalf of immigrants as a class.”172 By finding that the states have standing due to their interest in having foreign students and scholars at their universities, the court inherently found that interest to be more valuable than the public’s interest in excluding aliens who may be potential terrorists or hostile to our Constitution and culture. VI. ESTABLISHMENT CLAUSE ARGUMENTS: PROTECTING FIRST AMENDMENT RIGHTS OR EXPANDING RIGHTS OF NON-CITIZENS? The Establishment Clause decrees that one religious denomination may not be officially preferred over another.173 To determine whether an Executive Order breaks this command, the courts must review the three-part test for Establishment Clause claims in Lemon v. Kurtzman.174 The Lemon Test finds that the government action must have a primarily secular purpose, may not have the principal effect of advancing or inhibiting religion, and may not foster an excessive entanglement with religion.175 If any of these three prongs are not met, the law should be invalidated.176 The federal district court in Hawaii found that the Executive Order failed the first prong of having a primarily secular purpose.177 While the court acknowledges that the Executive Order does not facially discriminate against a particular religion, the court finds that additional evidence demonstrates the purpose as being a “Muslim Ban.”178 The Government argued that the Order applied to all individuals in the countries; however, the court stated that the countries have “overwhelmingly Muslim populations ranging from 90.7% – 99.8%.”179 The court charged that they may look beyond the face of the law when evaluating Establishment and Equal Protection Clause 172. See David French, The Ninth Circuit Just Issued a Dangerous Ruling Against Donald Trump’s Immigration Order, NAT’L REV. (Feb. 9, 2017), http://www.nationalreview.com/article/444785/ninth-circuits-donald-trump-travelban-ruling-dangerous. 173. Larson v. Valente, 456 U.S. 228, 244 (1982). 174. See Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971). 175. Id. 176. See Newdow v. Rio Linda Union Sch. Dist., 597 F.3d 1007, 1076 (9th Cir. 2010). 177. See Hawaii v. Trump, No. 17-00050, 2017 WL 1011673 at *12 (D. Haw. Mar. 15, 2017). 178. See id. at *12–*16. 179. Id. at *12.

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claims.180 The Court concluded that after a review of the comments made during the election, it is evident that there is a religious disposition as a motivating factor behind the Executive Order.181 The Court referenced several statements Mr. Trump made during his presidential candidacy.182 “[T]he Court emphasizes that its preliminary assessment rests on the peculiar circumstances and specific historical record present[ed]” in the decision.183 There are conflicting cases and judicial views regarding the text of the law versus the purpose of the law. The Hawaii cases cite to several precedent cases in which it was appropriate to look beyond the four corners of the law to interpret the purpose of the law, especially in First Amendment issues.184 Conversely, Justice Scalia and Bryan Garner, attorney and legal writing expert, explain that the Constitution and laws must be read on the basis of the fairest meaning of the text.185 Justice Scalia argues that judges should not look at extrinsic factors like the purpose of the law or what was said when the statute was enacted.186 More liberal judges have argued that judges should pay attention to a provision’s purpose when the language is unclear. For example, Justice Steven Breyer has written, “[o]ver-emphasis on text can lead courts astray, divorcing law from life.”187 The Establishment Clause traditionally has had no application to immigration in American History.188 As mentioned above, noncitizens abroad are not afforded the same constitutional protections as those within U.S. borders.189 Traditionally, U.S. courts have been tremendously deferential to matters of immigration, foreign policy, 180. See id. at *8 (citing Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993)). 181. See id. at *14. 182. See id. at *13. 183. Id. at *16. 184. See id. at *12. 185. ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS (2012). 186. Id. 187. Pete Williams, Scalia: Judges Should Interpret Words, Not Intent, NBC (Aug. 22, 2012), http://dailynightly.nbcnews.com/_news/2012/08/22/13416169scalia-judges-should-interpret-words-not-intent?lite. 188. See Hans A. von Spakovsky, Why Trump’s Immigration Order is Legal and Constitutional, NAT’L REV. (Mar. 20, 2017), http://www.national review.com/article/445905/trump-immigration-order-legal-constitutional-fivefederal-judges-explain-why. 189. See Frost, supra note 138, at 500–01.

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and defense as they are inherently political.190 The Ninth Circuit decision abandons this longstanding policy. There are numerous policy concerns surrounding the Ninth Circuit’s decision pertaining to the Establishment Clause. First, a “slippery slope” result could occur if a President decided to use military force against a predominately Muslim country. Would this violate the Establishment clause?191 Referencing the standing argument made above in the previous example, nearly anyone would have the standing to challenge this hypothetical use of military force. “If America’s courts are now holding that congressional action in areas of enumerated, exclusive authority are subject to Bill of Rights review on behalf of anyone who may be hurt, then judicial review will have been extended to absolutely everything — up to and including the decision to declare war.”192 Second, another interesting impact of this ruling is that it may change how the asylum and refugee laws are applied to foreign nationals. Under Asylum and Refugee law, the government may favor specific, persecuted religious minorities.193 Applying the Lemon test to immigration policy may mean that it is “unconstitutional for the American government to favor specific, persecuted religious minorities.”194 The Lemon test prohibits advancing religion as well as inhibiting religion.195 The Ninth Circuit appears to be articulating a new standard of rights for non-citizens of the United States. The Ninth Circuit completely disregarded the Mandel test, which found that the courts should not look beyond that exercise of discretion or balance its justification against the First Amendment interests of those individuals who seek interaction with the foreign national applicant.196 The Lemon test and the Establishment Clause of the Constitution apply to an area that the Constitution provides both Congress and the president

190. See Kleindienst v. Mandel, 408 U.S. 753, 765–66 (1972) (“In the exercise of Congress’ plenary power to exclude aliens or prescribe the conditions for their entry into this country, Congress in § 212(a)(28) of the Act has delegated conditional exercise of this power to the Executive Branch.”). 191. See Charles C. W. Cooke, Judge Watson’s Decision Was Reckless, NAT’L REV. (Mar. 16, 2017), http://www.nationalreview.com/corner/445836/judgewatsons-ruling-trumps-executive-order-was-reckless. 192. Id. 193. See 8 U.S.C.A. § 1158(a)(2)(A) (Westlaw 2017). 194. See French, supra note 172. 195. See Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971). 196. See Kleindienst v. Mandel, 408 U.S. 753, 770 (1972).

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extraordinary authority, as established by both case law and the Code of Federal Regulations. VII. A.

CONCLUSION

National Security Implications of the Ninth Circuit Decision

From a National Security perspective, the court balanced the public interests and potential national security concerns when deciding whether to convert the TRO to a preliminary injunction and found that public interests in stopping enforcement of the Executive Order outweighed any prospective national security concerns.197 Constitutional law attorney, David French, astutely stated, [W]hether an attack has been completed in this country is not the standard for implementing heightened security measures. The president doesn’t have to wait for completed attacks to protect the U.S. from dangerous immigrants. He can see the deteriorating security situation on the ground, evaluate the intentions and capabilities of the enemy, and then act before the enemy can strike. Indeed, that’s the goal of national defense—to prevent attacks, not respond after the carnage.198 Essentially, the Ninth Circuit court made a decision that has severely poor national security implications. The ability of political branches to control foreign national’s entry into the United States and the heightened deference formerly owed by the courts to the national security judgments of the political branches are at stake in the outcome of the Trump Executive Order matter.199 B.

Next Steps for the Trump Administration:

In a rally following Judge Watson’s order on the second Executive Order, President Trump exclaimed, “We’re going to take our case as far as it needs to go, including all the way up to the Supreme Court.

197. See Hawaii v. Trump, No. 17-00050, 2017 WL 1011673, *16 (D. Haw. Mar. 29, 2017). 198. French, supra note 172. 199. See French, supra note 172.

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We’re going to win, we’re going to keep our citizens safe . . . .”200 The Government has already filed appeals for the cases where district courts have issued TRO’s or a preliminary injunction. Whether President Trump will, in fact, take the case to the Supreme Court and subsequently win has yet to be determined. It is possible that the Supreme Court will follow reasoning like its recent decision in Kerry v. Din, and again reverse the decision of the Ninth Circuit and leaving, and the regulations support, the decision to disallow non-citizens from the U.S. in the hands of the executive. The Justice Department challenged Int’l Refugee Assistance Project,201 which, unlike in Hawaii,202 issued a preliminary injunction rather than a temporary restraining order, and the preliminary injunction may be more easily appealed.203 If the court wins the case challenging the Maryland order, it could create a situation where the travel ban is enforced in one part of the country but not in the other. Immigration law falls under federal law, meaning that it trumps state law.204 On May 8, 2017, the Fourth Circuit decided to have a full bench hearing, rather than a panel hearing, 205 which occurred in Washington

200. Ian Schwartz, Trump: We’re Going to Take Travel Ban Case as Far as It Needs to Go, REALCLEAR POLS. (Mar. 15, 2017), http://www.realclear politics.com/video/2017/03/15/trump_were_going_to_take_travel_ban_case_as_far _as_it_needs_to_go.html (see video at 2:15). 201. Int’l Refugee Assistance Project v. Trump, No. 17-0361, 2017 WL 1018235 (D. Md. Mar. 16, 2017). 202. Hawaii, 2017 WL 1011673, hearing en banc denied sub nom. Hawaii v. Trump, No 17-15589, 2017 WL 1420813 (9th Cir. Apr. 21, 2017). 203. See Devlin Barrett, Trump Administration Files Notice It Will Appeal Ruling Against Second Version of Travel Ban, WASH. POST (Mar. 17, 2017), https://www.washingtonpost.com/world/national-security/trump-administrationfiles-notice-it-will-appeal-ruling-against-second-version-of-travelban/2017/03/17/6fe4b33a-0b1f-11e7-b77c0047d15a24e0_story.html?utm_term=.4aa180c56027. 204. See Arizona v. United States, 567 US 387, 401 (2012) (citing American Ins. Ass’n v. Garamendi, 539 U.S. 396, 419 (2003)) (holding that “the Federal Government has occupied the field of alien registration.”). 205. Suevon Lee, Trump Travel Ban Case Heads Straight to En Banc 4th Circ., LAW360 (Apr. 10, 2017), https://www.law360.com/immigration/articles/912097/ trump-travel-ban-case-heads-straight-to-en-banc-4th-circ-?nl_pk=1f6bedfa-5c6143c8-9c36-a0675487da80&utm_source=newsletter&utm_medium=email&utm_ campaign=immigration.

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and Hawaii.206 The Ninth Circuit will also hear arguments for an appeal on May 15, 2017.207 It is left to be determined whether the case will go to the Supreme Court and if it does whether the Supreme Court will agree with the dissent by Judge Bybee. The case has the opportunity to set precedent with regards to the rights provided to non-citizens. Furthermore, should the Ninth Circuitâ&#x20AC;&#x2122;s decision stand, this changes the separation of powers with regards to the deference provided to the president to make decisions pertaining to national security. As the dissent wisely stated, Above all, in a democracy, we have the duty to preserve the liberty of the people by keeping the enormous powers of the national government separated . . . . [T]he meta-source of our law, the U.S. Constitution, commits the power to make foreign policy, including the decisions to permit or forbid entry into the United States, to the President and Congress.208

206. Washington v. Trump, 853 F.3d 933 (9th Cir. 2017); Hawaii, 2017 WL 1420813. 207. Maura Dolan, 9th Circuit Appeals Court Declines Wider Review of Trumpâ&#x20AC;&#x2122;s Travel Ban, L.A. TIMES (Apr. 21, 2017), http://www.latimes.com/politics/ washington/la-na-essential-washington-updates-9th-circuit-declines-wider-reviewof-1492811910-htmlstory.html. 208. Washington, 853 F.3d at 946.

IMPROVING TRAFFIC SAFETY OUTCOMES BY ENGAGING SUSPENDED AND REVOKED DRIVERS THOMAS A. GINSTER* ABSTRACT The massive number of Michigan residents driving with suspended or revoked licenses has overwhelmed the ability the administrative and court system’s ability to provide a meaningful deterrent. With no meaningful response from the criminal justice system, drunk driving recidivists and other dangerous drivers are going to continue to drive whether they have a license or not. In most cases, it’s consistent with public safety for the administrative and court system to engage this population by allowing them to drive with a restricted license to and from work, alcohol counseling, support groups and in some cases with an alcohol ignition interlock. Michigan lawmakers should create a systemic incentive for more suspended and revoked drivers to petition the courts or Secretary of State for restricted driving privileges, including greater use of ignition interlock devices. Such reforms should significantly reduce both the number of suspended and revoked drivers and the tragic number of deaths and serious injuries on Michigan’s roadways.

* Thomas A. Ginster practices law in Greenville, Michigan. From 2003 to 2007, he served as a Special Assistant Attorney General. From 1994 to 2002, he was a policy advisor to Governor John Engler and served as acting Director of the Michigan Office of Drug Control Policy. He previously served as an assistant prosecuting attorney for Saginaw and Montcalm Counties. He earned his law degree from Cooley and holds a degree in Public Administration from Michigan State.

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TABLE OF CONTENTS BACKGROUND ............................................................................ 114 SUMMARY OF EXISTING LAW.......................................... 115 2016 P.A. 117 ....................................................................... 116 SUGGESTED REFORMS .............................................................. 117 CONCLUSION ............................................................................... 119 Our government’s first, and most important, covenant with its citizens is the protection of the public. In 2015, there were sixty-eight percent more fatalities on Michigan’s highways than from nonvehicular homicide.1 Additionally, tens of thousands of people were seriously injured on the roadway.2 A grossly disproportionate share of the highway carnage is caused by drunk-driving recidivists and others driving on a suspended or revoked license.3 To help combat the staggering cost of traffic crashes,4 Michigan Governor Rick Snyder recently signed 2016 P.A. 117 into law. This law gives the state’s circuit judges more discretion to restrict or reestablish full driving privileges to drivers with suspended or revoked driver’s licenses.5 In

1. Compare Mich. Dep’t of St. Police Crim. Just. Info. Ctr., Mich. Ann. Drunk Driving Audit 181 (2016) (http://www.michigan.gov/documents/msp/ 2015_DDA_528502_7.pdf) (reporting 963 vehicle fatalities in 2015), with Mich. Incident Crime Reporting, 2015 Mich.’s Crime at a Glance 1 (2016) (http://www.michigan.gov/documents/msp/Crime_At_A_Glance_528343_7.pdf) (reporting 572 murders and non-negligent manslaughters in 2015). 2. See MICH. DEP’T OF ST. POLICE CRIM. JUST. INFO. CTR., MICH. ANN. DRUNK DRIVING AUDIT 181 (2016) (http://www.michigan.gov/documents/msp/ 2015_DDA_528502_7.pdf) (showing that the total number of injuries from crashes in 2015 was 74,157). 3. See TIMOTHY R. NEUMAN, ET AL., A Guide for Addressing Collisions Involving Unlicensed Drivers and Drivers with Suspended or Revoked Licenses, 500 NAT’L COOPERATIVE HIGHWAY RES. PROGRAM REP. 2 (2003) (http://onlinepubs. trb.org/onlinepubs/nchrp/nchrp_rpt_500v2.pdf) (explaining that suspended and revoked drivers are overrepresented in subsequent violations and crashes and greatly overrepresented in fatal crashes by a factor of 3.7:1). 4. See Lydia P. Kostyniuk, Lisa J. Molnar, Renee M. St. Louis, Nicole Zanier, & David W. Eby, Societal Costs of Traffic Crashes and Crime in Michigan: 2011 Update, UMTRI (2011) (“For 2011, overall traffic crashes in Michigan resulted in $4.8 billion in monetary costs and $9.1 billion in total costs. Of those costs, alcoholinvolved crashes accounted for $0.8 billion in monetary costs and $1.9 billion in total costs.”). 5. MICH. COMP. LAWS ANN. § 257.323 (Westlaw 2017).

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drunk or impaired driving cases, this measure is intended to help people remain employed or obtain a job when their license is taken away.6 In such cases, people with suspended or revoked drivers licenses are now eligible for restricted driving privileges, but only if they install the ignition interlock device in their car.7 The suspended population can further be divided between those unable to meet their financial obligations,8 those with alcohol-related driving convictions, and those with too many demerit points.9 People can fall into any of the categories. Repeat offenders, drunk driving recidivists, and those with too many points pose the greatest danger to the public because these people cause the greatest number of traffic fatalities. Secretary of State hearing officers grant full or restricted driving privileges, including the requirement of a breath alcohol ignition interlock device, in about half of all driver’s license revocation appeals.10 Petitioners granted restricted driving privileges must demonstrate that they abstain from alcohol and other drugs, drive during certain hours for specific purposes, and are monitored themselves with an ignition interlock device.11 (The information is periodically downloaded from the devices and sent to the SOS to determine if there are any minor or major violations.) For repeat offenders granted a partial or full restoration of their driving privileges through the administrative hearing process, recidivism is less than two percent.12 Measured in terms of public safety, policy makers should

6. ASSOCIATED PRESS, Law Gives Judges More Leeway to Restore Driving Privileges, FOX 17 NEWS (May 18, 2016, 4:31 AM), http://fox17online.com/ 2016/05/18/law-gives-judges-more-leeway-to-restore-driving-privileges/. 7. Id. 8. Id. (FAC/FCJ, falling behind in child support obligations, failure to pay driver responsibility fees, maintain insurance or failing to pay a subrogation judgment). 9. DMV.ORG, https://www.dmv.org/mi-michigan/suspended-license.php (last visited Jan. 10, 2017). 10. See, e.g., MICH. DEP’T OF STATE, DRIVER LICENSE APPEAL PRACTICE MANUAL, app. G (2005) (http://www.michigan.gov/documents/Hearing_Officer_ Relief_Rate_Appendix_G_128114_7.pdf); MICH. COMP. LAWS § 257.322(6)(a) (Westlaw 2017) (requiring successful petitioners to install an ignition interlock device where their license was revoked for drug or alcohol abuses). 11. MICH. DEP’T OF STATE, supra note 10, at 30–31. 12. MICH. DEP’T OF STATE, supra note 10, at 28.

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encourage drivers with suspended and revoked licenses to apply for restricted driving privileges. It is safe to assume that not all repeat offenders undergo the costly and time-consuming effort required to petition the Secretary of State to restore their driving privileges. One study estimates that approximately three-fourths of drivers with suspended and revoked licenses continue to drive.13 This demonstrates how easy it is to circumvent some existing sanctions, like license plate confiscation and vehicle immobilization. It also explains why the number of drivers caught driving with suspended or revoked licenses has overwhelmed Michigan’s criminal justice system.14 Licensed or not, without an effective response from the criminal justice system, many, if not most, repeat offenders continue to drive.15 BACKGROUND Before 1992, the judiciary and Secretary of State had concurrent jurisdiction to impose licensing sanctions and grant restricted driving privileges to suspended drivers.16 In 1992, and again in 1999, Michigan’s Legislature enacted comprehensive reforms to eliminate the role of the state’s district court and significantly limit jurisdiction of its circuit courts in granting restricted driving privileges.17 The circuit court was formerly empowered to issue restricted licenses to drunk driving recidivists on a hardship basis, and the court did so in 85% of all cases.18

13. See NEUMAN, ET AL., supra note 3, at 1. 14. See generally ROBERT C. BORUCHOWITZ ET AL., MINOR CRIMES, MASSIVE WASTE: THE TERRIBLE TOLL OF AMERICA’S BROKEN MISDEMEANOR COURTS (2009), https://www.nacdl.org/WorkArea/linkit.aspx?LinkIdentifier=id&ItemID=20808. 15. NEUMAN ET AL., supra note 3, at 1; see also MICH. DEP’T OF STATE, supra note 10, at 1 (noting anywhere between thirty and seventy percent). 16. MICH. DEP’T OF STATE, Driver License Restoration Appeal to Circuit Court, (Jan. 6, 2017), http://www.michigan.gov/sos/0,4670,7-127-1627_8665_907429754—,00.html. 17. Id. 18. MICH. DEP’T OF STATE, supra note 10, at 28.

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SUMMARY OF EXISTING LAW Michigan’s circuit court can no longer issue restricted driving privileges to drunk-driving recidivists on a hardship basis.19 The circuit court’s authority to grant restricted driving privileges based upon hardship include: • During the first one-year implied-consent suspension under Section 625f (“refusal to blow”). • A non-alcohol related driver assessment action under Sections 303(1)(d) and 310(d) (e.g., too many points). • A non-drinking and driving suspension imposed under Sections 904(10) or (11).20 Again, revocations (including drunk-driving recidivists) are not appealable to circuit court on hardship or equity; only suspensions that fall in the categories above are appealable on hardship or equity.21 Habitual offenders,22 and others with revoked driving privileges, may petition the Secretary of State for a restricted license after one year for two drinking and driving convictions or five years for three or more driving and driving related convictions.23 These petitions are treated like other administrative appeals under the Michigan Administrative Procedures Act and limit the circuit court’s review of the record.24 The scope of the circuit court’s review of driver’s license appeals is confined to an examination of the hearing record.25 A Secretary of State hearing officer’s decision can be set aside only if his or her decision was “arbitrary, capricious,” “clearly an abuse of unwarranted exercise of discretion,” or “[n]ot supported by substantial,

19. 20. 21. 22.

MICH. DEP’T OF STATE, supra note 10, at 37. MICH. COMP. LAWS ANN. § 257.323(3)–(4) (Westlaw 2017). MICH. DEP’T OF STATE, supra note 10, at 33. MICH. COMP. LAWS ANN. § 257.303 (Westlaw 2017) See also, MICH. COMP. LAWS ANN. § 257.303(4)(b), § 257.323(4)(b)(ii)(C) (Westlaw 2017) (requiring clear and convincing evidence for a drunk driver recidivist to rebut the presumption that he or she is a habitual offender). 23. MICH. ADMIN. CODE R 257.301 (Westlaw 2017) et. seq. are the administrative rules that govern the hearing process. 24. MICH. COMP. LAWS ANN. § 257.323(4)(b)(ii)(B) (Westlaw 2017). See also, MICH. DEP’T OF STATE, supra note 10, at 34 (explaining that immobilization, vehicle forfeiture, using a vehicle in the commission of a felony and other criminal sanctions are only reviewable by the circuit court by appealing the sentence imposed for the criminal conviction). 25. MICH. DEP’T OF STATE, supra note 10, at 33.

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material, and competent evidence on the whole record.”26 Upon such a finding, the circuit court may set aside the Secretary of State’s decision in favor of granting the appellant a restricted driver’s license, with or without an engine interlock device.27 2016 P.A. 117 The new law took effect on August 19, 2016.28 Under the new schema, a habitual offender, and others seeking partial or full restoration of their driving privileges, must continue to exhaust their administrative remedies through the Secretary of State’s administrative hearing system.29 The circuit court’s decision to grant or deny restricted driving privileges is no longer confined to an examination of the administrative hearing record, exclusively.30 In cases where a petitioner is seeking restricted driving privileges, short of a de novo review, the new law provides that “the court may take additional testimony to supplement the [administrative hearing] record . . . but shall not expand the record.”31 The legislative intent of this seemingly contradictory language is unclear. One reasonable interpretation is that the court may take additional testimony pertaining to the issues addressed at the hearing and the hearing officer’s findings, but the court may not raise new issues. Again, the additional testimony is limited to the court’s consideration of whether to grant restricted driving privileges.32 In cases appealing the denial of full restoration, the court continues to be limited to review of the record established in

26. Driver License Appeal to Circuit Court, MICHIGAN.GOV, http://www.michigan.gov/sos/0,4670,7-127-1627_8665_9074-29754—,00.html (last visited Feb. 6, 2017) (The other basis of review includes whether the administrative decision was in violation of the Michigan or US Constitutions; in excess of the statutory authority or jurisdiction of the Secretary of State; “[m]ade upon unlawful procedure resulting in material prejudice to the petitioner”; or “affected by other substantial and material error of law.”). 27. MICH. COMP. LAWS ANN. § 257.323 (Westlaw 2017). 28. Id. 29. Id. 30. The State Court Administrative Office form # CC269 (Order Regarding Driver’s License Restoration After Review of the Record) does not reflect the statutory changes. 31. MCL § 257.323(4)(b)(ii)(B); § 257.323(5). 32. MICH. COMP. LAWS ANN. § 257.323 (Westlaw 2017).

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the administrative hearing.33 In such cases, the court may remand the case to the Secretary of State for additional testimony or evidence.34 In the appeals process, the circuit court is no longer required to give complete deference to the conclusions of the Secretary of State hearing officer.35 Under certain circumstances, the court may exercise its independent judgment as to whether the petitioner has rebutted the presumption that he or she is a habitual offender by clear and convincing evidence.36 However, before granting the restoration of driving privileges, the court must adhere to all of the Secretary of State’s requirements under the administrative rules.37 If the court determines that the petitioner-appellant is eligible for a restricted license, it must require the installation of an ignition interlock device for a period of at least one year.38 If there were no major violations of the ignition interlock device or traffic citations after one year, the Secretary of State or circuit court may grant full restoration of driving privileges.39 SUGGESTED REFORMS • The district courts, which have primary jurisdiction over traffic cases and are already familiar with the offense and the offender, should once again be given the discretion to grant restricted driving privileges under certain conditions—including greater use of ignition interlock devices. Judges, unlike Secretary of State hearing officers, are publicly elected and accountable.40 The district courts have the resources to deal

33. Id. 34. SCAO Court Form CC 269 § 2(c), Order Regarding Driver’s License Restoration After Review of the Record, http://courts.mi.gov/Administration/ SCAO/Forms/courtforms/cc269.pdf (last visited Feb. 6, 2017). 35. MICH. COMP. LAWS ANN. § 257.323 (Westlaw 2017). 36. Id. 37. See, e.g., MICH. ADMIN. CODE R 257.313 (Westlaw 2017) (requiring petitioner to prove by clear and convincing evidence that his or her alcohol or substance abuse is under control and unlikely to arise again). 38. MICH. COMP. LAWS ANN. § 257.323(5)(b) (Westlaw 2017) (requiring an ignition interlock device to be installed into each vehicle operated by the petitioner for at least one year). 39. MICH. COMP. LAWS ANN. § 257.323(3), (4) (Westlaw 2017). 40. MICH. COMP. LAWS ANN. § 257.322(1) (Westlaw 2017).

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with the prodigious suspended and revoked population.41 Such a reform would likely provide an incentive to thousands of currently suspended drivers to seek or continue with 12-step programs, drug and alcohol counseling, or to participate in a sobriety court program. • The jurisdiction over administrative implied-consent hearings should be transferred to the district court. Currently, defendants who refuse a chemical test can appeal the decision at a Secretary of State hearing to address four statutory requirements, including whether there was “reasonable grounds” for their arrest, similar to probable cause, an issue typically addressed in court.42 The arresting officer is summoned to both proceedings and has the burden of proof.43 If the arresting officer fails to appear, the petitioner prevails.44 Transferring impliedconsent hearings to the district court would likely help alleviate the heavy caseload of the Secretary of State Hearings Division, reduce police overtime, and place more officers back on patrol. • There should be zero-tolerance for repeat offenders. Commercial drivers, airline pilots, and underage drivers are subject to a 0.02% blood alcohol content limit and are given zero tolerance for any violations.45 By comparison, repeat offenders, drivers with two or more prior alcohol convictions, may continue to lawfully drink and drive if their blood alcohol content is below 0.08% or they are not otherwise impaired.46 This sends the wrong message. For repeat offenders, one drink is too many.

41. MICH. CTS., Trial Court Judgeships by Court Type and Region (Jan. 7, 2017), http://courts.mi.gov/Administration/SCAO/Resources/Documents/other/regional composition.pdf. 42. An implied consent hearing is limited to the following issues: “(a) whether the peace officer had reasonable grounds to believe that the person was operating a motor vehicle while intoxicated or while impaired; (b) whether the person was placed under arrest for suspected operating while impaired, intoxicated by alcohol or a controlled substance; (c) “[i]f the person refused to submit to (a chemical) test at the request of a police officer,” and “whether the refusal was reasonable”; and (d) whether the person was advised of his or her implied consent rights. MICH. COMP. LAWS ANN. § 257.625f(4) (Westlaw 2017). 43. MICH. ADMIN. CODE R 257.310(8)–(9) (Westlaw 2017). 44. MICH. ADMIN. CODE R 257.309(3)(b) (Westlaw 2017). 45. Michigan OWI / OWVI / OUIL Help, GOTDUI.COM, http://gotdui.com/ statespecific.asp (last visited Jan. 7, 2017). 46. Rich Stim, Michigan DUI & OWI Laws: Penalties & Fines, DRIVINGLAWS, http://dui.drivinglaws.org/michigan.php (last visited Jan. 7, 2017).

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CONCLUSION It is time for an intelligent reassessment of how we deal with suspended and revoked drivers. The number of suspended drivers on Michigan roadways has reached epidemic proportions and has overwhelmed the criminal justice system’s ability to provide a meaningful deterrent—challenging the very integrity of the licensing system.47 Hardcore drunk driving recidivists should never get their licenses back. For there to be an effective response from the criminal justice system for hardcore repeat offenders who continue to drive on a suspended or revoked license, the overall number of those driving illegally must be significantly reduced. For those drivers, whose privileges are suspended or revoked and are motivated to address their alcohol problem, it is consistent with public safety to issue restricted licenses for this population to attend work or alcohol counseling with an alcohol ignition interlock.48 Michigan lawmakers should encourage more suspended and revoked drivers to petition the courts or Secretary of State for restricted driving privileges, including greater use of ignition interlock devices. Such reforms should significantly reduce the tragic number of deaths and serious injuries on Michigan’s roadways.

47. Elaine H. Charney, Repeat Offender Driver Reform, 79 MICH. B.J. 810, 810 (2000). 48. MICH. DEP’T OF STATE, supra note 10, at 30–31.

“GIRLS WILL BE BOYS, AND BOYS WILL BE GIRLS”: THE EMERGENCE OF THE TRANSGENDER ATHLETE AND A GAME PLAN FOR HIGH SCHOOLS THAT WANT TO KEEP THEIR PLAYING FIELDS LEVEL FOR ALL STUDENT ATHLETES RAY D. HACKE* ABSTRACT High school sports programs have long maintained separate teams for boys and girls. Doing so has not only increased opportunities for girls in interscholastic athletics, it has also protected them from the physical and psychological harms that come with facing boys on the field and undressing around them off of it. The emergence of the transgender athlete, whose perception of what gender he or she is does not match the athlete’s biological gender, places public high schools in a thorny position: Must schools accommodate transgender athletes by permitting them to compete on teams of their chosen gender? If schools do accommodate such athletes, can they place restrictions on the athletes’ participation? In this article, Ray D. Hacke examines the transgender issue through the lenses of three laws (or sets of laws): 1) The U.S. Constitution’s Equal Protection Clause, which permits sexbased segregation of school sports programs where such segregation redresses invidious discrimination toward girls and accounts for physiological differences between genders; 2) Title IX, the federal law that was specifically enacted to ensure equal educational opportunities for women and which has greatly increased female participation in sports; and 3) state laws requiring accommodation of transgender athletes, which must yield to federal laws where the two conflict. Ultimately, Hacke concludes that schools, and the athletic *

Ray D. Hacke is an attorney who lives in California and has been licensed to practice law for five years. An award-winning sportswriter before attending the University of the Pacific’s McGeorge School of Law—and to a limited degree since—Mr. Hacke has spent a great deal of time around, and has a tremendous passion for, high school sports. He has also developed a passion for constitutional law, which he now practices as a staff attorney for the Pacific Justice Institute, for whom he clerked in law school. Mr. Hacke is married and has a 6-year-old daughter, Ava.

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associations that govern them, may either maintain sex-segregated athletic programs or require transgender athletes to comply with certain conditions in order to compete as a member of their chosen gender. Hacke further provides high schools and athletic associations with defensive legal strategies to maintain sex-segregated sports programs based on the benefits such segregation provides. TABLE OF CONTENTS DISCLAIMER ……………………………………………………...123 I.INTRODUCTION .............................................................................. 123 II.THE EQUAL PROTECTION CLAUSE ............................................... 129 A. Physiological and Psychological Differences Between Cisgender and Transgender Athletes Do Exist and Should Be Accounted for in Equal Protection Analyses ................... 131 B. Physiological Differences Between Biological Boys and Girls Place Girls at a Competitive Disadvantage and Put Them in Harm’s Way ....................................................... 133 C. Allowing Transgender Athletes to Use Opposite-Sex Locker Rooms Might Protect Transgender Athletes, But Not Their Cisgender Counterparts .................................................. 140 III.TITLE IX ……………………………………………………...142 A. Title IX Was Created to Advance Opportunities for Women, Not Biological Men Who Identify as Women .................. 143 1. For Title IX’s Purposes, “Sex” Means “Biological Sex” ............................................................. 144 2. Forcing Girls to Compete Against Boys for Athletic Opportunities Violates Title IX ................................. 146 B. Denying Transgender Athletes the Chance to Compete on Teams that Match Their Gender Identity Would Not Deny Them an Equal Opportunity to Compete ......................... 147 C. Courts Should Not Interpret Title IX in a Way That Undermines Its Purpose .................................................. 148 IV.STATE LAWS CONCERNING TRANSGENDER ATHLETES............... 150 V.HIGH SCHOOLS’ GAME PLAN ....................................................... 152 A. Equal Protection Clause .................................................. 153 B. Title IX ............................................................................. 155 C. State law .......................................................................... 156 VI.CONCLUSION .............................................................................. 157

2017] GIRLS WILL BE BOYS, AND BOYS WILL BE GIRLS 123 DISCLAIMER To avoid confusion, this article uses the terms “man,” “woman,” “boy,” “girl,” “male,” and “female” according to their traditional definitions. The author recognizes that transgender males define themselves as female, transgender females define themselves as male, and those sympathetic to transgender persons honor those selfdefinitions. The author intends no disrespect to transgender persons by his use of traditional definitions, but intends clarity and consistency of terminology throughout this article. I.

INTRODUCTION

In the 1990 film Kindergarten Cop, an impish little boy delights in greeting unsuspecting adults by proudly broadcasting the extent of his carnal knowledge: “Boys have a penis; girls have a vagina.”1 In one scene, a police detective visits the boy’s kindergarten classroom where the detective’s fellow police officer, the title character, has been posing as a teacher while working undercover.2 When the boy incites his classmates’ laughter by blindsiding the detective with his oft-repeated tidbit about human anatomy, the detective, smirking wryly, tells her fellow officer, “You taught them the basics. That’s important.”3 For high school sports programs across the United States, distinguishing boys from girls is no longer so basic.4 This is due to the acknowledgment of transgender athletes, whose gender identity—the perception or expression of the gender an athlete believes himself or herself to be—may or may not match the gender listed on the athlete’s birth certificate and other legal records, and may or may not match the athlete’s anatomy, depending on whether the athlete has undergone sex-reassignment surgery.5 As of this writing, sixteen states, either by law or through their high school athletic associations’ bylaws, currently require high schools—at least public ones, if not all 1. KINDERGARTEN COP (Universal Pictures 1990). 2. Id. 3. Id. 4. Although this article specifically concerns high school sports programs, most of the statutes and legal principles discussed here also apply to elementary school, junior high, and college sports. 5. PAT GRIFFIN & HELEN J. CARROLL, ON THE TEAM: EQUAL OPPORTUNITY FOR TRANSGENDER STUDENT ATHLETES 47 (2010) (defining gender identity as “[o]ne’s inner concept of self as male or female or both or neither” and noting that some individuals assigned one gender at birth “choose to live socially as the other gender”).

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participating schools—to let students compete on athletic teams or in athletic contests based on their gender identity.6 The transgender community deems these states “inclusive.” Athletes in these states need not undergo gender-reassignment surgery, hormone therapy, or any other medical intervention to compete against athletes of the gender with which they identify.7 Among the other thirty-four states, seventeen deal with transgender athletes on a case-by-case basis and ten have no policy concerning transgender athletes at all.8 Those states that deal with transgender athletes on a case-by-case basis vary in their approaches:  Alaska lets individual schools and school districts decide whether to permit transgender athletes to compete on teams that match the athlete’s gender identity rather than their biological gender.9 If a school or district has no written policy in place concerning transgender athletes, the gender on the athlete’s birth certificate is the determining factor.10  Kansas, Pennsylvania, and Wisconsin let individual schools or districts make the call.11 However, Kansas and Wisconsin schools, must notify their respective state athletic associations of their decisions, and Kansas’s association may overrule a school’s decision if a dispute arises concerning an eligibility determination.12  Illinois has a more complicated approach. When an athlete’s gender identity does not match the gender listed on the athlete’s birth certificate or school registration card, the athlete’s school must present to the Illinois High School Association information concerning (1) the athlete’s birth certificate or school records; (2) any medical documentation concerning hormonal treatments, sex-reassignment surgery, counseling, or other treatment that the athlete has undergone; and (3) any physical advantages the athlete might have if permitted to play for a team associated with the opposite gender.13 The Association

6. K-12 Policies for Transgender Student Athletes, TRANSATHLETE.COM, (June 8, 2016) [hereinafter K-12 Policies], http://www.transathlete.com/#!k12/c4w2. 7. Id. 8. K-12 Policies, supra note 6. 9. K-12 Policies, supra note 6. 10. K-12 Policies, supra note 6. 11. K-12 Policies, supra note 6. 12. K-12 Policies, supra note 6. 13. K-12 Policies, supra note 6.

2017] GIRLS WILL BE BOYS, AND BOYS WILL BE GIRLS 125 then rules based on the advice of an established group of medical personnel.14  Iowa has separate associations governing girls’ and boys’ sports.15 The boys’ association lets girls who identify as male compete on boys’ teams “as long as [they] consistently identif[y] as a male at school[,] home, and socially.”16 The girls’ association has a virtually identical rule concerning males who identify as female, but provides an exception that allows schools to exclude males from participating on girls’ teams consistent with state law.17  Maine gives student athletes the freedom to choose which teams they want to play for subject to an “approval process that considers competitive balance and safety” for other student athletes.18 Maine’s governing body has a Gender Identity Equity Committee that must approve a transgender athlete’s request to compete on a team associated with the athlete’s gender identity unless it is convinced that the student’s claim to be transgender is not bona fide or that allowing the student to compete on a single sex team consistent with his or her gender identity would likely give the student athlete an unfair athletic advantage or pose an unacceptable risk of [physical] injury to other student athletes.19  Missouri requires athletes to undergo hormone treatments before participating on teams that do not match their biological gender.20 Girls seeking to play on boys’ teams must obtain treatment to increase their testosterone levels, while boys who wish to play on girls’ teams must receive treatments to suppress their testosterone levels.21

14. K-12 Policies, supra note 6. 15. K-12 Policies, supra note 6. 16. K-12 Policies, supra note 6. 17. Sherry Tegtmeier, Iowa Girls High School Athletic Union Transgender Statement (Aug. 22, 2014), http://ighsau.org/2014/08/22/transgender-statement/ (citing IOWA CODE ANN. § 216.9 (Westlaw 2017)). 18. K-12 Policies, supra note 6; see also ME. PRINCIPALS’ ASS’N, MPA HANDBOOK 2013-2014 21 (2013) [hereinafter MPA HANDBOOK], http://media.wix.com/ugd/2bc3fc_3a66b1ce818149b3ae23bb108ccf8921.pdf. 19. MPA HANDBOOK, supra note 18, at 21 (citing § 12(b)). 20. K-12 Policies, supra note 6. 21. K-12 Policies, supra note 6.

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 Oklahoma and Nebraska have rules and guidelines centering around medical therapy or gender-reassignment surgery.22  New Jersey and New Mexico both require that student athletes either provide an official record demonstrating legal recognition of their gender identity or proof that they have transitioned, or are transitioning, to their reassigned sex.23  Oregon lets girls who identify as male participate on boys’ teams regardless of whether they are taking hormone treatments, but once they decide to do so, they “must consistently participate as that gender throughout their high school career.”24 Girls who are receiving testosterone treatments may only compete on boys’ teams.25 Boys, meanwhile, are ineligible to compete on girls’ teams unless they have completed at least one year of hormone treatments.26 Idaho has rules that are similar, but not identical, to Oregon’s.27  Ohio gives boys who wish to play on girls’ teams two options: (1) complete at least one year of hormone treatments related to gender transition or (2) demonstrate, via sound medical evidence, that they do not have physical advantages over biological females in the same age group.28 Such advantages include, but are not limited to, bone structure, muscle mass, and high testosterone levels.29 Girls can compete on boys’ teams without undergoing medically prescribed testosterone treatments.30 Girls who have begun such treatments may compete on boys’ teams but must submit to regular testing of their hormone levels.31 Only four states—Alabama, Kentucky, North Carolina, and Texas—still restrict participation in sports based on the gender listed on athletes’ birth certificates.32 The transgender community considers these states “discriminatory.”33

22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33.

K-12 Policies, supra note 6. K-12 Policies, supra note 6. K-12 Policies, supra note 6. K-12 Policies, supra note 6. K-12 Policies, supra note 6. K-12 Policies, supra note 6. K-12 Policies, supra note 6. K-12 Policies, supra note 6. K-12 Policies, supra note 6. K-12 Policies, supra note 6. K-12 Policies, supra note 6. K-12 Policies, supra note 6.

2017] GIRLS WILL BE BOYS, AND BOYS WILL BE GIRLS 127 Foremost among the fifteen “inclusive” states is California, which amended § 221.5 of California’s Education Code in August 2013 to include paragraph (f), which states: A pupil shall be permitted to participate in sexsegregated school programs and activities, including athletic teams and competitions, and use facilities consistent with his or her gender identity, irrespective of the gender listed on the pupil’s records.34 Under this law, a boy who identifies as female has “the right to try out for the girls’ basketball team, potentially taking away an opportunity from a girl who might otherwise make the team.”35 So far, at least two transgender athletes, both biological males who consider themselves female, have taken advantage of § 221.5(f).36 Pat (née Patrick) Cordova-Goff 37 hit .588 with five home runs and twelve RBI, all team highs, in eleven games for Azusa High’s softball team38 in 2014, according to the high school sports website MaxPreps.com (“MaxPreps”).39 Anry (née Henry) Fuentes played soccer for Denair High during the 2015-16 season,40 scoring at least one goal and assisting on at least one more in three games, according to MaxPreps.41 34. CAL. EDUC. CODE § 221.5(f) (Westlaw 2017) (emphasis added). 35. Press Release, Pacific Justice Institute, New Bill Would Allow Boys to Play on Girls Teams, Share “Facilities” (Jan. 9, 2012), http://www.pacificjustice.org/press-releases/new-bill-would-allow-boys-to-playon-girls-teams-share-facilities (concerning AB 266, the California Assembly’s first attempt to amend CAL. EDUC. CODE § 221.5). 36. Fred Robledo, Melissa Masatani, & Zen Vuong, Transgender Student to Play on Azusa High School Softball Team, SAN GABRIEL VALLEY TRIB. (Feb. 13, 2014, 10:28 AM), http://www.sgvtribune.com/sports/20140213/transgender-student-toplay-on-azusa-high-school-softball-team. 37. See Perry Chiaramonte, California’s Transgender Law Allows Male High Schooler to Make Girls Softball Team, FOX NEWS (Feb. 14, 2014), http://www.foxnews.com/us/2014/02/14/california-transgender-law-allows-malehigh-schooler-to-make-girls-softball.html (showing an image of Pat). 38. Unless noted otherwise, all sports teams and athletes competed at the high school varsity level. 39. See Azusa 2014 Softball Stats by Player, MAXPREPS, http://www.maxpreps.com/high-schools/azusa-aztecs-(azusa,ca)/softball-spring14/stats.htm (last visited Feb. 11, 2017). 40. Fusion, No League of Their Own: Transgender Athletes, YOUTUBE (Aug. 5, 2016) [hereinafter No League], https://www.youtube.com/watch?v=qZ8axU8POs4 (discussion at 16:20). 41. See Anry Fuentes’ Girls Soccer Stats, MAXPREPS, http://www.maxpreps.com/athlete/anry-fuentes/Rc0S8-IvEeW-

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Cordova-Goff and Fuentes are not the only biologically male transgender high school athletes to have success competing against biologically female high school athletes.42 In May 2016, Nattaphon Wangyot, a sprinter for Alaska’s Haines High, earned all-state honors in girls’ track-and-field by placing third in the 200 meter and fifth in the 100 meter at Alaska’s state meet.43 Wangyot, who claims to have taken female hormones and other drugs to suppress his body’s testosterone levels, also played girls’ volleyball and basketball for Haines.44 Competition with athletes like Cordova-Goff, Fuentes, and Wangyot would have increased for biological girls if the Obama Administration had succeeded in its education plan—laws like those in California, and other inclusive states, would have become the national standard. On May 13, 2016, the U.S. Department of Education’s Office of Civil Rights issued a controversial national directive (Obama Directive) ordering every public school in the nation to allow transgender students to use bathrooms, locker rooms and shower facilities, and play on sports teams that are consistent with the students’ gender identity.45 President Obama asserted that Title IX46 provided the basis for the order.47 Title IX is the federal law requiring schools that receive federal funding to provide girls and women with the same opportunity to compete in scholastic sports that their male

8KA2nzwbTA/gendersport/girls-soccer-stats.htm#year=15-16 (last visited Feb. 11, 2017). 42. Cordova-Goff and Fuentes’ statistical totals on MaxPreps appeared to be incomplete as of this writing, so their statistical totals could be even higher. 43. 7Sport, Rivals Cry Foul After Losing to Transgender Athlete, YAHOO (June 6, 2016), https://au.sports.yahoo.com/a/31775203/nattaphon-wangyot-rivals-cryfoul-after-losing-out-to-transgender-athlete/#page1). 44. Ben Rohrbach, Transgender Track Athlete Makes History as Controversy Swirls Around Her, USA TODAY HIGH SCH. SPORTS (June 2, 2016), http://usatodayhss.com/2016/transgender-track-athlete-makes-history-ascontroversy-stirs-around-her/. 45. U.S. Dep’t of Educ. & U.S. Dep’t of Civil Rights, Opinion Letter on Transgender Students (May 13, 2016), http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ixtransgender.pdf [hereinafter OCR Ltr.]; see also Todd Starnes, Starnes: We Must Defy Obama’s Transgender Decree—No Matter the Cost, FOX NEWS (May 13, 2016), http://www.foxnews.com/opinion/2016/05/13/starnes-must-defy-obamastransgender-decree-no-matter-cost.html. 46. 20 U.S.C.A. § 1681 (Westlaw 2017). 47. Starnes, supra note 46.

2017] GIRLS WILL BE BOYS, AND BOYS WILL BE GIRLS 129 counterparts have.48 However, a federal district court in Texas has held that the Office of Civil Rights based the Obama Directive on a misreading of Title IX. The court held that “Title IX ‘is not ambiguous’ about sex being defined as ‘the biological and anatomical differences between male and female students as determined at their birth.’”49 Indeed, courts typically discern the intent of a statute by looking first at its plain meaning. When Title IX was enacted in 1972, “virtually every dictionary definition of ‘sex’ referred to the physiological distinctions between males and females.”50 The Supreme Court itself recognized just one year later that “sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth.”51 All of the above begs the question: Does the law really require that schools eliminate sex-segregated sports programs—or at least bend the traditional definitions of terms such as “boy” and “girl”—to accommodate transgender students, even in transgender-friendly states? To answer this question, this article examines whether the U.S. Constitution’s Equal Protection Clause, Title IX, and state law require that schools permit transgender athletes to use bathrooms and locker rooms and play on sports teams of their choosing—even when including such athletes denies opportunities to, or arguably endangers, biological females. The purpose of exploring these issues is to provide high schools that wish to maintain separate athletic programs for girls and boys with a game plan that lets them do so lawfully. II.

THE EQUAL PROTECTION CLAUSE

Section 1 of the U.S. Constitution’s Fourteenth Amendment, also known as the Equal Protection Clause, prohibits states from denying to anyone within their jurisdiction equal protection of the law.52 The 48. See Title IX: What’s in a Name?, TITLE NINE, https://www.titlenine.com/category/company-info/title-ix-stats-womens-sportsheroes.do (last visited Feb. 11, 2017). 49. Paul J. Weber, Judge in Texas Temporarily Blocks Obama’s Transgender Rules, ASSOCIATED PRESS (Aug. 22, 2016), http://bigstory.ap.org/article/fc9eb93fd45f4629b7813bdb5f5f1821/texas-judgetemporarily-blocks-obamas-transgender-directive (emphasis added) (quoting Texas v. United States, F. Supp. 3d *1, *14 (N.D. Tex. 2016)). 50. G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709, 736 (4th Cir. 2016) (Niemayer, J., dissenting). 51. Frontiero v. Richardson, 411 U.S. 677, 686 (1973). 52. U.S. CONST. amend. XIV, § 1.

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Equal Protection Clause applies whenever a state, or one of its agencies, takes action that treats distinct classes of similarly situated persons differently.53 State actors include high school athletic associations—which, while not officially agencies of state governments, are usually “[so] overborne by the pervasive entwinement of public institutions and public officials in [their] composition and workings [that] there is no substantial reason to claim unfairness in applying constitutional standards to [them].”54 The Supreme Court has held that gender-based classifications are permissible under the Equal Protection Clause so long as they (1) serve important governmental objectives and (2) are substantially related to achievement of those objectives.55 Some states have held that classifications must also “reflect reasoned judgments rather than prejudice.”56 While courts view gender-based classifications as inherently suspect, due to their potential to “relegat[e] the entire class of females to inferior legal status without regard to the actual capabilities of its female members,”57 laws pass muster under the Equal Protection Clause if they are aimed at (1) remedying invidious discrimination, (2) enabling women to receive opportunities that have previously been denied them, and (3) empowering women to overcome obstacles they face with regard to advancing their status.58 This is especially true in the context of high school sports, where maintaining separate teams for boys and girls clearly addresses “the goal of redressing past discrimination and providing equal opportunities for women.”59 53. Ross v. Moffitt, 417 U.S. 600, 609 (1974). 54. Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 298 (2001); see also Clark v. Ariz. Interscholastic Ass’n, 695 F.2d 1126, 1128 (9th Cir. 1982) (citing cases from multiple jurisdictions asserting that high school athletic associations “are so intertwined with the state that their actions are considered state action”). 55. Craig v. Boren, 429 U.S. 190, 197 (1976). 56. See, e.g., Kleczek v. R.I. Interscholastic League, Inc., 612 A.2d 734, 737 (R.I. 1992). 57. Frontiero v. Richardson, 411 U.S. 677, 686–87 (1973). 58. See Kahn v. Shevin, 416 U.S. 351, 353–55 (1974) (upholding a Florida tax law that was “reasonably designed to further the state policy of cushioning the impact of spousal loss upon the sex for which that loss imposes a disproportionately heavy burden” due to the fact that while widowed men can typically continue working after the death of a spouse, widowed women often find themselves “suddenly forced into a job market with which [they are] unfamiliar, and in which, because of [their] former economic dependency, [they] will have fewer skills to offer”). 59. Clark, 695 F.2d at 1131.

2017] GIRLS WILL BE BOYS, AND BOYS WILL BE GIRLS 131 A. Physiological and Psychological Differences Between Cisgender and Transgender Athletes Do Exist and Should Be Accounted for in Equal Protection Analyses The Equal Protection Clause does not require “things which are different in fact . . . to be treated in law as though they are the same.”60 This is especially true where a law was enacted to protect women and girls from harms that they suffer uniquely or disproportionately.61 Indeed, the Supreme Court has consistently held that a statute does not violate the Equal Protection Clause when it “realistically reflects the fact that the sexes are not similarly situated in certain circumstances.”62 If one thing is clear about transgender athletes, it is that they are different in fact from their “cisgender” counterparts—those whose gender identities match their biological makeup.63 From a physiological standpoint, a boy who considers himself a girl and wishes to be treated as such is differently situated from a biological girl and vice versa. There is a medical term for the cognitive dissonance that occurs when a transgender person’s biological sex does not match the person’s perception of himself or herself as a member of the opposite sex—”gender dysphoria,” formerly known as “gender identity disorder.”64 Although some medical professionals reject the notion that gender dysphoria is a mental illness,65 at least one prominent psychiatrist, Dr. Paul McHugh of the Johns Hopkins University School of Medicine, openly declares his controversial opinion that it is.66 Dr. McHugh, who has studied transgenderism and

60. Michael M. v. Super. Ct. of Sonoma Cty., 450 U.S. 464, 469 (1981) (quoting Rinaldi v. Yeager, 384 U.S. 305, 309 (1966)). 61. Id. at 469–70 (holding that a statute making it a crime for males to engage in illicit sexual intercourse with under-aged females passed constitutional muster, even though it did not protect under-aged males and females equally, because the statute’s purpose to protect under-aged females from illegitimate teenage pregnancies). 62. Id. at 469 (citing Parham v. Hughes, 441 U.S. 347, 354 (1979)). 63. Sunnivie Brydum, The True Meaning of the Word ‘Cisgender’, ADVOCATE (July 31, 2015), http://www.advocate.com/transgender/2015/07/31/true-meaningword-cisgender. 64. See When You Don’t Feel at Home with Your Gender, WEBMD, http://www.webmd.com/mental-health/gender-dysphoria (last visited Feb. 12, 2017). 65. See id. 66. Michael W. Chapman, Johns Hopkins Psychiatrist: Transgender is ‘Mental Disorder’; Sex Change ‘Biologically Impossible’, CNS NEWS (June 2, 2015) [hereinafter Chapman, Transgender is ‘Mental Disorder’],

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sex-reassignment surgery for 40 years,67 and Dr. Lawrence Mayer, a scholar-in-residence in Johns Hopkins’ psychiatry department, have published a report analyzing more than 200 peer-reviewed studies indicating that “the belief that gender identity is an innate, fixed human property independent of biological sex—so that a person might be ‘a man trapped in a woman’s body’ or ‘a woman trapped in a man’s body’—is not supported by scientific evidence.”68 Yet, Dr. McHugh is not alone in his assessment. The American College of Pediatricians has stated as follows: A person’s belief that he or she is something they are not is, at best, a sign of confused thinking. When an otherwise healthy biological boy believes he is a girl, or an otherwise healthy biological girl believes she is a boy, an objective psychological problem exists that lies in the mind[,] not the body, and it should be treated as such. These children suffer from gender dysphoria. Gender dysphoria (GD), formerly listed as Gender Identity Disorder (GID), is a recognized mental disorder in the most recent edition of the Diagnostic and Statistical Manual of the American Psychiatric Association . . . .69 Transgender advocates have accused Dr. McHugh of cherrypicking portions of the studies he reviewed to support an agenda of hatred towards transgender people.70 Still other medical professionals believe that the stress, anxiety, and depression associated with gender dysphoria, not the dysphoria itself, are what really need to be treated— http://www.cnsnews.com/news/article/michael-w-chapman/johns-hopkinspsychiatrist-transgender-mental-disorder-sex-change. 67. Michael W. Chapman, Johns Hopkins Psychiatrist: Support of Transgenderism and Sex-Change Surgery is ‘Collaborating with Madness’, CNS NEWS (June 2, 2016), http://cnsnews.com/blog/michael-w-chapman/johns-hopkinspsychiatrist-support-transgenderism-and-sex-change-surgery. 68. Louis DeBroux, ‘Born This Way’? New Study Debunks LGBT Claims, PATRIOT POST (Aug. 25, 2016), https://patriotpost.us/articles/44470. 69. Gender Ideology Harms Children, AM. C. PEDIATRICIANS (emphasis added), https://www.acpeds.org/the-college-speaks/position-statements/gender-ideologyharms-children (last updated Jan. 2017). 70. Mari Brighe, Clinging to a Dangerous Past: Dr. Paul McHugh’s Selective Reading of Transgender Medical Literature, TRANSADVOCATE, http://transadvocate.com/clinging-to-a-dangerous-past-dr-paul-mchughs-selectivereading-of-transgender-medical-literature_n_13842.htm (last visited Feb. 12, 2017).

2017] GIRLS WILL BE BOYS, AND BOYS WILL BE GIRLS 133 and that bringing the person’s body in line with his or her selfperception through hormone therapy, gender-reassignment surgery, or other forms of treatment will accomplish that.71 Despite various theories on what makes an individual identify with the opposite gender, and whether treatment is appropriate, there is no denying that there are natural biological, physical, and psychological differences that should be considered. B. Physiological Differences Between Biological Boys and Girls Place Girls at a Competitive Disadvantage and Put Them in Harm’s Way Courts should remain mindful that physiological differences between the sexes do exist. In fact, several courts have ruled that due to those physiological differences, the Equal Protection Clause does not require that schools let boys compete on girls’ sports teams even though (1) the boys’ schools do not offer comparable teams and (2) girls have been allowed to compete on boys’ teams.72 The biggest reason why courts have allowed girls to compete on boys’ teams, but not vice versa, is that gender-based classifications “are based on the realization that distinguishing between boys and girls in interscholastic sports will help promote safety, increase competition within each classification, and provide more athletic opportunities for both boys and girls.”73 Boys generally tend to be bigger, taller, stronger, and faster than girls—all of which give boys an advantage over girls in sports that schools have traditionally reserved exclusively for girls, such as field hockey and volleyball.74 From a safety standpoint, one way to compensate for the strength differential between girls and boys is to create classes of teams where 71. Id. (stating that Dr. McHugh’s beliefs are outdated and do not conform with modern medical practices); see also WebMD, supra note 65 (stating that “[t]he mismatch between body and internal sense of gender is not a mental illness. Instead, what needs to be addressed are the stress, anxiety, and depression that go along with it.”). 72. See, e.g., Clark v. Ariz. Interscholastic Ass’n, 695 F.2d 1126, 1127, 1131–32 (9th Cir. 1982). 73. Kleczek v. R.I. Interscholastic League, Inc., 612 A.2d 734, 739 (R.I. 1992). 74. See Petrie, 394 N.E.2d at 861, 863; Rick Reilly, Not Your Average Skirt Chaser, SPORTS ILLUSTRATED (Nov. 26, 2001), http://www.si.com/vault/2001/11/26/314458/not-your-average-skirt-chaser) (noting that a 6-foot-5, 205-pound male field hockey player “has a slap shot that nearly separated a few girls from their sports bras”).

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boys’ advantages of size and strength are eliminated.75 Football, a typically all-male sport, provides the best example of how such classes could work. Some colleges—Princeton University, for instance—had separate teams for players who weighed 172 pounds or less,76 and many high school, elementary school, and youth football programs place players onto teams based on their age or weight.77 However, further categorizing varsity, junior varsity, and freshman teams in multiple classes would be impractical for schools for several reasons— not the least of which is budget concerns.78 Another reason is that it would be difficult to devise a system of measurement that would place girls in classes where they are physically on par with boys because “any rating of players could only be done on a very subjective basis and would not be practical.”79 To illustrate, female track-and-field athletes might be considered elite when compared to other females, but their running times, jumping, or throwing marks may measure differently when compared to their male counterparts.80 In sports like basketball or soccer, a tall, strong, fast, athletic girl who dominates against other girls may be surpassed when competing against boys.81 A class system that groups boys and girls together would also require state athletic associations to revamp their rules to account for variables between boys’ and girls’ sports that may be impacted differently when sports are segregated by sex. For instance, female discus throwers use a smaller discus than males.82 In girls’ volleyball, 75. See Petrie, 394 N.E.2d at 861–62. 76. Phil Taylor, Losing Isn’t Everything, SPORTS ILLUSTRATED (Oct. 1, 2012), http://www.si.com/vault/2012/10/01/106238749/losing-isnt-everything (concerning Princeton’s “sprint” football team). 77. Petrie, 394 N.E.2d at 861–62; see also http://www.popwarner.com/football/footballstructure.htm (concerning ages and weight classes in Pop Warner football). 78. Petrie, 394 N.E.2d at 862 (stating “that public institutions have a limited amount of funds and it is common knowledge that many school districts are extremely pressed to maintain their present programs. The extra expense of having this number of squads is obvious”). 79. Id. 80. Id. at 861 (“[I]n the high school track season previous to the trial, none of the girls’ State record holders in track and field would have qualified in any event for the boys’ state track and field meet.”). 81. Hoover v. Meiklejohn, 430 F. Supp. 164, 166 (D. Colo. 1977) (“[A]pplying the formula of force equals mass times acceleration, a collision between a male and a female of equal weights, running at full speed, would tend to be to the disadvantage of the female”). 82. Petrie, 394 N.E.2d at 863.

2017] GIRLS WILL BE BOYS, AND BOYS WILL BE GIRLS 135 the net is several inches lower than in boys’ volleyball.83 Additionally, dimensions for diamonds in girls’ softball are smaller than those in boys’ baseball.84 Girls’ basketball teams use a smaller ball than their male counterparts,85 and, although the nets they shoot at are equal in height off the ground, at least one prominent college women’s coach suggested that the net should be lowered to make the girls’ game as high-scoring as the boys’.86 Boys’ and girls’ lacrosse are played with slightly different equipment under radically different rules—the chief one being that the boys’ game allows checking (body-to-body hits), while the girls’ game does not.87 Thus, any creation of a class system of co-ed sports that would accommodate transgender athletes stands to negate any benefits the current segregated system provides to female athletes.88 From a competitive standpoint, if males were permitted to compete for positions on a girls’ sports team, “due to average physiological differences, males would displace females to a substantial extent . . . [t]hus, athletic opportunities for women would be diminished.”89 Put another way, “[a]t the high school level, the average male is objectively more physically capable than the average female. Open competition would, in all probability, relegate the majority of females 83. Gomes v. R.I. Interscholastic League, 469 F. Supp. 659, 661 (D.R.I. 1979). 84. Zach Schonbrun, Idea to Lower Rim for Women’s Basketball Stirs Talk, N.Y. TIMES (Oct. 25, 2012), http://www.nytimes.com/2012/10/26/sports/ncaabasketball/geno-auriemma-ofuconn-proposes-lower-rim-for-womens-basketball.html). 85. See Jeff Gordon, What are the Biggest Differences Between Girls’ and Boys’ High School Basketball?, LIVESTRONG.COM (Dec. 21, 2015) http://www.livestrong.com/article/488454-what-are-the-biggest-differencesbetween-girls-and-boys-high-school-basketball/ (noting girls use a slightly smaller basketball that is 28.5 to 29 inches in circumference and 18 to 20 oz. in weight and a boys’ basketball is 29 to 30 inches in circumference and 20 to 22 oz.). 86. Schonbrun, supra note 85 (describing University of Connecticut women’s basketball coach Geno Auriemma’s assertion that fans are less interested in women’s basketball than men’s because women’s teams “were not scoring with the ease and regularity that they should”). 87. Preston Williams, Varsity Letter: For Boys and Girls, Lacrosse is Two Games with One Ball, WASH. POST (May 28, 2009), http://www.washingtonpost.com/wpdyn/content/article/2009/05/26/AR2009052603359.html. 88. Petrie v. Ill. High Sch. Athletic Ass’n, 394 N.E.2d 855, 862 (Ill. 1979) (stating that a class system would be “inconsistent with a system of full competition which boys have had for years and girls are seeking to achieve”). 89. Clark v. Ariz. Interscholastic Ass’n, 695 F.2d 1126, 1131 (9th Cir. 1982).

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to second-class positions as benchwarmers or spectators.”90 Therefore, letting boys—even ones who identify as female—compete on girls’ teams would violate the Equal Protection Clause because biological girls would be denied athletic opportunities previously afforded to them. This is especially true given that these boys would be competing with biological girls, who already have less opportunity to compete in sports beyond high school for college athletic scholarships.91 Not every state recognizes that the physiological differences between boys and girls are a valid reason to keep boys from participating in girls’ sports, or vice versa. The five states in the Fourth Circuit’s jurisdiction—Maryland, Virginia, West Virginia, North Carolina, and South Carolina92—cannot do so, at least for the time being, due to the court’s ruling in G.G. ex rel. Grimm v. Gloucester County Sch. Bd.93 In Grimm, the court stated that a transgender boy was entitled to an injunction requiring his Virginia school district to let him use the boys’ restroom.94 The district appealed the ruling to the Supreme Court, but in March 2017 the Supreme Court remanded the case back to the Fourth Circuit for further consideration after the Trump Administration rescinded the Obama Directive.95 In Massachusetts, preventing boys from joining girls’ sports teams violates the state’s Equal Rights Amendment.96 90. Gomes v. R.I. Interscholastic League, 469 F. Supp. 659, 662 (D.R.I. 1979). 91. Betsey Stevenson, Title IX and the Evolution of High School Sports, 25 CONTEMP. ECON. POL’Y NO. 4 486, 487 (Oct. 2007) (noting that over 7 million students compete in high school athletics each year, compared to approximately 400,000 at the collegiate level; of that approximately 400,000, less than half (170,526) were female). 92. See U.S. CT. OF APP. 4TH CIR., http://www.ca4.uscourts.gov/about-the-court (last visited Sept. 18, 2016). 93. G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709 (4th Cir. 2016). 94. Adam J. MacLeod, Federal Courts, Government Agencies, and Transgender Bathroom Policy, PUBLIC DISCOURSE (Apr. 25, 2016), http://www.thepublicdiscourse.com/2016/04/16826/. 95. Robert Barnes, Supreme Court Sends Virginia Transgender Case Back to Lower Court, Washington Post (March 6, 2017) (viewed online on March 25, 2017 at https://www.washingtonpost.com/politics/courts_law/supreme-court-sendstransgender-case-back-to-lower-court/2017/03/06/0fc98c62-027a-11e7-b9faed727b644a0b_story.html?utm_term=.f1be0ff56e02). 96. Christopher Marquis, An Equal Playing Field: The Potential Conflict Between Title IX and the Massachusetts Equal Rights Amendment, B.C. J. L. & SOC. JUST. 77, 78 n.6 (2014) (citing MASS. CONST. pt. 1, art. I and Atty. Gen. v. Mass. Interscholastic Athletic Assn., 393 N.E.2d 284, 290 (Mass. 1979); see also Reilly, supra note 75.

2017] GIRLS WILL BE BOYS, AND BOYS WILL BE GIRLS 137 Furthermore, many transgender athletes would argue that the physiological differences are not an issue anyway, because both male and female athletes come in all shapes and sizes as well as have a wide variety of abilities that give one athlete a competitive advantage over the other.97 Anry Fuentes, the boy who played for Denair (California) High’s girls’ soccer team in 2015, said that if “a girl on the other team felt I was stronger than her because I’m physically male, I’d tell her, ‘It’s not even gender—it’s body type.’”98 In a case involving a girl seeking to play soccer on a boys’ team, a court has stated that “the range of [physical] differences among individuals in both sexes is greater than the average differences between the sexes.”99 That court also held that “[t]he failure to establish any physical criteria to protect small or weak males destroys the credibility of the reasoning urged in support of the sex classification.”100 Requiring transgender athletes who have begun transitioning to the opposite gender to compete against athletes of their own biological gender can create its own set of problems. Texas’s governing body for public school sports, the University Interscholastic League (UIL), learned this the hard way in February 2017 when Mack Beggs, a wrestler for Trinity High in the Fort Worth area who is biologically female but identifies as male, won a state title in the girls’ 110-pound weight class.101 Beggs engendered controversy by going 58-0 against exclusively female competition after chronicling, via social media, how she had taken the male hormone testosterone for two years.102 Testosterone, of course, is recognized by the World Anti-Doping Administration as a performance-enhancing drug (PED).103 Both Texas law and UIL rules thus prohibit female athletes from using 97. Fusion, No League of Their Own: Transgender Athletes, YouTube (Aug. 7, 2016), https://www.youtube.com/watch?v=qZ8axU8POs4. 98. Id. 99. Hoover v. Meiklejohn, 430 F. Supp. 164, 169 (D. Colo. 1977). 100. Id. 101. Kent Babb, Transgender Athlete Mack Beggs Identifies as Male. He Just Won the Texas State Girls Title, The Washington Post (Feb. 25, 2017) (hereinafter Babb, Transgender Athlete) (viewed online on March 27, 2017 at https://www.washingtonpost.com/sports/highschools/meet-the-texas-wrestler-whowon-a-girls-state-title-his-name-is-mack/2017/02/25/982bd61c-fb6f-11e6-be051a3817ac21a5_story.html?utm_term=.3edfbc1902b9). 102. Id. 103. The World Anti-Doping Code International Standard Prohibited List, World Anti-Doping Agency (Jan. 2017) (viewed online on March 25, 2017 at http://www.usada.org/wp-content/uploads/wada-2017-prohibited-list-en.pdf).

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testosterone under penalty of ineligibility.104 Coaches of opposing wrestlers noticed that Beggs gained an unmistakable strength advantage after taking testosterone to transition from female to male.105 Beggs, however, went untested during the 2016-17 season because, the UIL claims, the Texas state legislature cut off funding for the UIL’s PED testing program in 2015.106 Beggs actually wanted to wrestle against boys, but UIL rules, which classify athletes according to the gender listed on their birth certificates, prohibited Beggs from doing so.107 That may change if a lawsuit filed in the wake of Beggs’ victory proves successful: The lawsuit seeks an injunction mandating that the UIL not only allow, but require, Beggs – who has one year of high school eligibility remaining – to compete as a boy during the 2017-18 season.108 Interestingly, the lawsuit was filed not on Beggs’s behalf, but on behalf of wrestlers who either lost to Beggs during the regular season or forfeited matches to Beggs due to safety concerns.109 Transgender athletes who have undergone hormone therapy treatments—which seek to decrease testosterone levels and increase estrogen levels in males who wish to become female and vice versa— argue that such treatments adversely impact their bodies, thus negating any perceived physical advantages they might have.110 Dr. Joshua Safer, a Boston-based endocrinologist, asserts that when a male undergoes hormone treatments to become female, his muscle mass shrinks to female proportions.111 Chloe Anderson, a college volleyball player who transitioned from male to female, says that after she began receiving hormone treatments, her arms became weaker, she hit and served the ball with less power, she could not run as fast, and “struggled a lot to recalibrate [her] body.”112 Joanna Harper, a transgender male-turned-female, former distance runner, who now serves as a gender and sports consultant with the International Olympic 104. See Texas Educ. Code § 33.091 and Kate Hector, UIL Statement Regarding 2017 UIL Wrestling Tournament (Feb. 22, 2017) (hereinafter Hector, UIL Statement) (viewed online on March 25, 2017 at http://www.uiltexas.org/pressreleases/detail/uil-statement-regarding-2017-wrestling-state-tournament). 105. Babb, Transgender Athlete. 106. Hector, UIL Statement. 107. Babb, Transgender Athlete. 108. Id. 109. Id. 110. Fusion, supra note 97. 111. Id. 112. Id.

2017] GIRLS WILL BE BOYS, AND BOYS WILL BE GIRLS 139 Committee, compares her post-transition body to “a large car with a small engine competing against small cars with small engines.”113 Taking Safer, Anderson, and Harper at their respective words, it remains apparent that even though some states disregard the physiological differences between boys and girls—or at least treat them as trivial—the reality is that such differences can, and often do, disadvantage and endanger girls on the athletic field. Boys cannot reasonably be expected to restrain themselves, or give less than full effort, when facing girls in athletic competition, any more than they can when facing other boys.114 This may understandably make girls fearful of facing boys who are significantly taller, heavier, and stronger than they are; who strike balls with more force than they do; and who in some cases, have experience playing more violent contact sports.115 While such fears are not entirely unfounded,116 they would not tip the Equal Protection Clause’s scales in favor of schools that wish to maintain separate athletic programs for boys and girls. Transgender athletes would argue that such fears constitute prejudice, and though “[p]rivate biases may be outside the reach of the law . . . the law cannot, directly, or indirectly, give them effect.”117 What would tip the scales in the schools’ favor is that sex-segregated athletic programs do not violate the Equal Protection Clause because they account for and eliminate the dangers that biologically female athletes would frequently face if required to compete against biological males.118 113. Id. 114. See Knight v. Jewett, 834 P.2d 696, 710 (Cal. 1992) [I]n the heat of an active sporting event, a participant’s normal energetic conduct often includes accidentally careless behavior. The courts have concluded that participation in such sporting events likely would be chilled if legal liability were to be imposed on a participant only on the basis of his or her ordinary careless conduct. Id. 115. See Reilly, supra note 75. 116. Id. (concerning a female field hockey player who doubled over after being struck in the pelvic region by a male player’s slap shot); see also Marquis, supra note 96, at 77–78 (concerning a female goalkeeper who suffered a concussion after colliding with a male forward in 2010 Massachusetts field hockey match). 117. Cf. Palmore v. Sidoti, 466 U.S. 429, 433 (1981) (holding that no matter how prevalent racial prejudice may be in mainstream U.S. society, it could never serve as justification for a court prohibiting an African-American man from adopting his white stepdaughter). 118. Clark v. Ariz. Interscholastic Ass’n, 695 F.2d 1126, 1130 (9th Cir. 1982) (citing Petrie v. Ill. High Sch. Athletic Ass’n, 394 N.E.2d 855, 862 (Ill. 1979)) (supporting the proposition that segregating sports programs based on innate differences between the sexes did not violate the Equal Protection Clause as long as

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Having boys on a girls’ team can rob girls of the satisfaction that comes with victory: “[w]hen you win, people think it’s only because of the boys on your team,” a female field hockey player told nationally renowned sportswriter Rick Reilly in 2001. “It’s so defeating.”119 It is worth noting that some female athletes can defeat, and have defeated, biological males in certain sports.120 Still, this does not mean that female athletes should have to compete against males, especially when the presence of biological males in girls’ high school sports undermines the “legitimate and important government interest” in “redressing past discrimination against women in athletics and promoting equality of athletic opportunity between the sexes.”121 This is especially true given that “mixed-sex teams would probably be dominated by males.”122 Based on the foregoing, when deciding cases under the Equal Protection Clause that concern transgender athletes, courts should continue to factor physiological differences between the sexes into their analyses. C. Allowing Transgender Athletes to Use Opposite-Sex Locker Rooms Might Protect Transgender Athletes, But Not Their Cisgender Counterparts As important as on-field issues are to Equal Protection Clause analysis, off-field issues are equally important. This is particularly true of issues involving locker rooms and other places where athletes undress and shower before or after games. Place even the most effeminate boy in a girls’ locker room, and girls will be keenly aware that a boy is in their midst—if not because they are unwillingly exposed to his genitalia, then because they are uncomfortable being in a state of undress in the boy’s presence, especially when they have not consented to undress in front of him.123 High school girls are insecure such classifications are not based on archaic generalizations or paternalistic attitudes). 119. Reilly, supra note 75. 120. See, e.g., Rivals Cry Foul After Losing Out to Transgender Athlete, YAHOO (June 6, 2016), https://au.sports.yahoo.com/a/31775203/nattaphon-wangyot-rivalscry-foul-after-losing-out-to-transgender-athlete/#page1. 121. Clark v. Ariz. Interscholastic Ass’n, 695 F.2d 1126, 1131 (9th Cir. 1982) (citing Petrie v. Ill. High Sch. Athletic Ass’n, 394 N.E.2d 855, 862 (Ill. 1979)). 122. Hoover v. Meiklejohn, 430 F. Supp. 164, 170 (D. Colo. 1977). 123. Kelsey Harkness, Why These High School Girls Don’t Want ‘Student A’ in Their Locker Room, STREAM

2017] GIRLS WILL BE BOYS, AND BOYS WILL BE GIRLS 141 around other girls when they are fully or partially naked.124 Forcing girls to be naked in front of a boy, even one who identifies as a girl, may expose them to some psychological harm, especially in a world where boys are increasingly objectifying girls’ bodies and subjecting girls to sexual bullying or harassment at an alarming rate.125 Allowing a biological boy who has not undergone gender-reassignment surgery to undress in a girls’ locker room undermines the concept of equal protection. The boy may be protected, but the girls are not.126 The same is true if a biologically female athlete were to dress or shower in a boys’ locker room. Like their female counterparts, teenage boys going through puberty can struggle to feel comfortable with their changing bodies and changing in front of girls can heighten their insecurities.127 Furthermore, a boy may not wish to pull down his pants in front of a girl for fear she may accuse him of rape, sexual assault, or sexual harassment.128 “[M]ales’ privacy rights in single-sex spaces should be upheld just as the same rights for women should be upheld in situations where women have complained of male transgendered exhibitionists.”129 “Superficially, the maintenance of separate sports teams suggests the possibility of denial of equal protection of the laws, but sound reason dictates that ‘separate but equal’ in the realm of sports competition, unlike racial discrimination, is justifiable and should be allowed to stand . . ..”130 Ultimately, if the dangers and competitive (Dec. 9, 2015), https://stream.org/high-school-girls-dont-want-transgender-studentlocker-room/. 124. Id. 125. Melinda Tankard Reist, Sex Before Kissing: How 15-Year-Old Girls Are Dealing With Porn-Addicted Boys, FIGHT THE NEW DRUG (April 16, 2016), http://fightthenewdrug.org/sex-before-kissing-15-year-old-girls-dealing-with-boys/. 126. Michael E. Miller, A Transgender Teen Used the Girls’ Locker Room. Now Her Community is Up in Arms, WASH. POST (Sept. 2, 2015), https://www.washingtonpost.com/news/morning-mix/wp/2015/09/02/atransgender-teen-used-the-girls-locker-room-now-her-community-is-up-in-arms/. 127. Dr. Keith Ablow, All Wrong—In California, Girls Can Use Urinals in the Boys’ Restroom, FOXNEWS (Jan. 14, 2014), http://www.foxnews.com/opinion/2014/01/14/all-wrong-in-california-girls-canuse-urinals-in-boys-restroom.html. 128. Chris Ricketts, The Transgender Threat to Boys and Men, AM. THINKER (April 29, 2016), http://www.americanthinker.com/articles/2016/04/the_transgender_threat_to_boys _and_men_.html. 129. Id. 130. Ritacco v. Norwin Sch. Dist., 361 F. Supp. 930, 932 (W.D. Pa. 1973).

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disadvantages that biological girls typically face when they have to compete against biological boys are not enough to convince courts that public high schools should continue to maintain separate teams, the lack of equal opportunities for biological girls should.131 III.

TITLE IX

“The statute known as Title IX, 20 U.S.C. § 1681, is widely recognized as a source of vast expansion of athletic opportunities for women in the nation’s schools and universities . . . .”132 Although Title IX does not mention interscholastic sports specifically, the statute does state that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”133 “Regulations promulgated under the statute assure that Title IX covers such educational activities as high school athletics.”134 When a statute does not define a term, courts typically construe the term in accordance with its ordinary and natural meaning.135 Title IX does not define the term “women”; in fact, the statute does not even mention the word “women.”136 The statute merely states that no educational institution receiving federal funding shall discriminate “against any person in the United States . . . on the basis of sex.”137 Title IX does not define the word “sex” either.138 This was especially problematic in Grimm, in which the Fourth Circuit ruled that a Virginia school district’s exclusion of a transgender boy from a boys’ locker 131. See Gomes v. R.I. Interscholastic League, 469 F. Supp. 659, 664 (“Providing women with separate and exclusive athletic teams in sports previously dominated by men appears a legitimate and narrowly drawn attempt to rectify past discrimination.”); see also Carly Holtzman, Mother of Girl Who Lost to Transgender Athlete Speaks Out—and She’s Furious, THEBLAZE (June 7, 2016), http://www.theblaze.com/stories/2016/06/07/mother-of-girl-who-lost-race-totransgender-athlete-speaks-out-and-shes-furious/). 132. Mansourian v. Regents of the Univ. of Calif., Univ. of Calif. at Davis, 594 F.3d 1095, 1099 (9th Cir. 2010). 133. Id. at 1101 (emphasis added) (quoting 20 U.S.C.A. § 1681(a) (Westlaw 2017)). 134. Gomes, 469 F. Supp. at 660 (citing 45 C.F.R. § 86.41). 135. FDIC v. Meyer, 510 U.S. 471, 476 (1994). 136. See 20 U.S.C.A. § 1681 (Westlaw 2017). 137. Id. 138. Id.; see also Jae Alexis Lee, How Does Title IX Define Gender?, QUORA (May 13, 2016), https://www.quora.com/How-does-title-IX-define-gender.

2017] GIRLS WILL BE BOYS, AND BOYS WILL BE GIRLS 143 room violated Title IX.139 While transgenders and other individuals “do currently discuss sex and gender as decoupled concepts relatively frequently . . . it’s fairly obvious that” in 1972, when Congress enacted Title IX, “the lawmakers of the time were not thinking of sex and gender as decoupled concepts in need of explicit definitions.”140 Courts thus interpret Title IX’s provisions “through relevant law interpreting parallel language in Title VII . . . [which] prohibits discrimination by an employer” based on sex, among other factors.141 “Courts have interpreted the word ‘sex’” in Title VII “narrowly to mean biological sex.”142 “Based on this interpretation of Title VII, courts also interpret the meaning of ‘sex’ within Title IX to mean biological sex, not sexual orientation or gender identity.”143 A.

Title IX Was Created to Advance Opportunities for Women, Not Biological Men Who Identify as Women

To ascertain Congress’s intent for the construction of Title IX, courts must look to Title IX’s legislative history.144 Title IX’s legislative history indicates that Congress enacted it as a “response to significant concerns about discrimination against women in education.”145 Title IX’s primary sponsor, Senator Birch Bayh of Indiana, stated that Title IX was specifically enacted toprovide for the women of America something that was rightfully theirs—an equal chance to attend the schools of their choice, to develop the skills they want, and to apply those skills with the knowledge that they will have a fair chance to secure the jobs of their choice with equal pay for equal work.146

139. MacLeod, supra note 94. 140. Lee, supra note 138. 141. Leena D. Phadke, When Women Aren’t Women and Men Aren’t Men: The Problem of Transgender Sex Discrimination Under Title IX, 54 KAN. L. REV. 837, 839 (April 2006) (quoting 42 U.S.C. § 2000e-2(a) (2000)). 142. Id. (citing Holloway v. Arthur Andersen & Co., 566 F.2d 659, 663 (9th Cir. 1977); Patricia A. Cain, Stories From The Gender Garden: Transsexuals and AntiDiscrimination Law, 75 DENV. U. L. REV. 1321, 1355 (1998) (stating that “the court’s holding in Holloway declared, without serious question, that there can only be two sexes – male and female”). 143. Id. at 840. 144. North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 535 n.26 (1982). 145. Neal v. Bd. of Trustees of Calif. State Univs., 198 F.3d 763, 766 (9th Cir. 1999). 146. Id. (quoting 118 CONG. REC. 5808 (1972)).

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“Senator Bayh’s remarks. . . are an authoritative guide to the statute’s construction . . . .”147 Furthermore, while words and their combinations may be subject to multiple reasonable interpretations, “particularly in matters as complex as legislative enactments,”148 “[m]ultiple accepted meanings do not exist merely because a statute’s ‘authors did not have the forethought to contradict any creative contortion that may later be constructed to expand or prune its scope.’”149 In other words, courts should not interpret Title IX in a way that would undermine its purpose of advancing educational opportunities for women and girls or, to be more accurate, biological women and girls—including and especially athletic opportunities.150 1.

For Title IX’s Purposes, “Sex” Means “Biological Sex”

How, then, should schools classify transgender athletes for purposes of Title IX? Should schools treat males who identify as female as female, and vice versa, regardless of whether they have undergone hormone treatments or sex-reassignment surgery? Transgender advocates would argue that schools should.151 The only known case specifically involving a transgender athlete suing for the right to compete as a member of the athlete’s chosen gender, Richards v. U.S. Tennis Association,152 was brought not under Title IX, but under New York State’s Human Rights Law. In Richards, a tennis player who was born male but underwent sex-reassignment surgery to become female sued for, and won, the right to compete in the U.S. Open’s 35-and-over women’s singles bracket.153 In granting an injunction allowing the player to compete as a woman, the court found the U.S. Tennis Association’s demand that the player take a sexdetermination test to be “grossly unfair, discriminatory, and inequitable.”154 The court also held that “[t]he only justification for 147. Id. (emphasis added) (quoting Bell, 456 U.S. at 526–27). 148. U.S. v. Sherbondy, 865 F.2d 996, 1000 (9th Cir. 1988). 149. Calix v. Lynch, 784 F.3d 1000, 1005 (5th Cir. 2015) (quoting Moore v. Hannon Food Services, Inc., 317 F.3d 489, 497 (5th Cir. 2003)). 150. Neal, 198 F.3d at 767 (noting that Title IX’s drafters understood that “(m)ale athletes had been given an enormous head start in the race for athletic resources, and Title IX would prompt universities to level the proverbial playing field”). 151. See K-12 Policies, supra note 6 (defining “inclusive” to mean “no medical hormones or surgery required” and “discriminatory” to mean “requires birth certificate or surgery and hormone wait period”). 152. Richards v. U.S. Tennis Ass’n, 400 N.Y.S.2d 267, 268 (N.Y. Sup. 1977). 153. Id. at 273. 154. Id. at 272.

2017] GIRLS WILL BE BOYS, AND BOYS WILL BE GIRLS 145 using a sex determination test in athletic competition is to prevent fraud, i.e., men masquerading as women, competing as women.”155 While some courts might find Richards instructive, justice for high school athletes would be better served by analyzing the transgender issue through the lens of Title VII—which, as stated above, serves as a guideline for Title IX cases.156 As noted by one commentator, “[t]he dominant interpretation of Title VII examines its legislative history, which suggests that Congress did not intend for its prohibition of sex discrimination to include a prohibition of transgender sex discrimination.”157 In a seminal case concerning Title VII’s applicability to individuals who have undergone sex-reassignment surgery, the Ninth Circuit held that “a transsexual individual’s decision to undergo sex change surgery does not bring that individual, nor transsexuals as a class, within the scope of Title VII. This court refuses to extend the coverage of Title VII to situations that Congress clearly did not contemplate.”158 Another federal appellate court reached the same conclusion: The phrase in Title VII prohibiting discrimination based on sex, in its plain meaning, implies that it is unlawful to discriminate against women because they are women and men because they are men. The words of Title VII do not outlaw discrimination against a person who has a sexual identity disorder, i.e., a person born with a male body who believes himself to be female, or a person born with a female body who believes herself to be male; a prohibition against discrimination based on an individual’s sex is not synonymous with a prohibition against discrimination based on an individual’s sexual identity disorder or discontent with the sex into which they were born.159 At least one court has held “that discrimination based on a claimant’s failure to meet sex stereotypes violates Title VII even when it involves transgender individuals.”160 In this court’s view, if an 155. Id. 156. Phadke, supra note 141, at 842. 157. Phadke, supra note 141, at 842–43. 158. Holloway v. Arthur Andersen & Co., 566 F.2d 659, 664 (9th Cir. 1977). 159. Ulane v. Eastern Airlines, Inc., 742 F.2d 1081, 1085 (7th Cir. 1984). 160. Phadke, supra note 141, at 844–47 (citing Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004)).

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employer discriminates against an individual because he or she refuses to dress, talk, or otherwise behave in a manner that conforms with expectations of the individual’s biological gender, the individual may sue the employer under Title VII for sex stereotyping and gender discrimination.161 However, as stated above, “[i]t is a maxim of statutory construction that, unless otherwise defined, words should be given their ordinary, common meaning.”162 “Courts have [thus] interpreted the word ‘sex’ narrowly to typically mean biological sex . . . .”163 Under this construction of the word sex, “any discrimination based on an individual’s sexual orientation or gender identity would not violate Title VII because as such, it would not constitute discrimination based on a person’s biological sex but rather because of a quality related to sex.”164 Applying this principle to Title IX, a school does not unlawfully discriminate against a boy who identifies as a girl by treating him as a boy, and vice versa. 2.

Forcing Girls to Compete Against Boys for Athletic Opportunities Violates Title IX

The Ninth Circuit has held that forcing women to compete against men for spots on the same athletic team undermines Title IX’s purpose. In Mansourian v. Regents of the Univ. of Calif., Univ. of Calif. at Davis, four female wrestlers sued the University of California at Davis (UCD) for kicking them off the university’s wrestling team, then giving them a chance to rejoin if they defeated male counterparts in their respective weight classes using men’s collegiate wrestling rules.165 Before their dismissal, the female wrestlers had only wrestled against other women using international freestyle rules.166 Whether they proved unable to physically compete with the men or refused to wrestle out of discomfort, lack of knowledge or practice of men’s collegiate rules, etcetera, the female wrestlers lost scholarships and academic credit because they refused to participate.167 In holding that UCD’s exclusion of the female wrestlers violated Title IX, the Ninth 161. Smith, 378 F.3d at 572 (citing Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)). 162. Ulane, 742 F.2d, at 1085. 163. Phadke, supra note 141, at 839. 164. Phadke, supra note 141, at 840. 165. Mansourian v. Regents of Univ. of Calif., 594 F.3d 1095, 1099 (9th Cir. 2010). 166. Id. at 1099–1100. 167. Id.

2017] GIRLS WILL BE BOYS, AND BOYS WILL BE GIRLS 147 Circuit stated that “[b]y requiring women to prevail against men, the university changed the conditions under which women could participate in varsity wrestling in a manner that foreseeably concluded their future participation.”168 B. Denying Transgender Athletes the Chance to Compete on Teams that Match Their Gender Identity Would Not Deny Them an Equal Opportunity to Compete Where the school offers teams for both sexes, transgender athletes continue to have an equal opportunity to compete with their biological sex. In O’Connor v. Bd. of Educ. of Sch. Dist. 23, 449 U.S. 1301 (1980), the Supreme Court held that “without a gender-based classification in competitive contact sports, there would be a substantial risk that boys participating in the girls’ programs would dominate those programs and deny girls an equal opportunity to participate in interscholastic events.”169 “[C]ontact sports include boxing, wrestling, rugby, ice hockey, football, basketball and other sports the purpose of major activity of which involves bodily contact.”170 O’Connor involved a female junior-high basketball player whose basketball skills greatly exceeded those of other girls her age or older, and were at least equal to those of many boys her age or older.171 Because of this, the player sought—and won—an injunction from her local federal district court permitting her to try out for one of her school’s boys teams and to compete against boys in interscholastic competition if she made the team.172 The player’s school district successfully appealed the lower court’s ruling and was granted a stay of the injunction.173 In denying the player’s motion to vacate the stay, the Supreme Court held that only where (1) a school operates or sponsors a team for one sex in a particular sport but does not operate or sponsor a team from the opposite sex, and (2) athletic opportunities for members of the excluded sex have previously been limited, must the school permit members of the excluded sex to try out for the team offered.174 Because the school district had offered the female basketball player an equal 168. 169. 170. 171. 172. 173. 174.

Id. at 1108 n.16. O’Connor v. Bd. of Educ. of Sch. Dist. 23, 449 U.S. 1301, 1307 (1980). Id. n.5 (quoting 45 C.F.R. § 86.41(b) (1979)). Id. at 1302–03. Id. Id. at 1303–04. Id. at 1307–08 n.5 (quoting 45 C.F.R. § 86.41(b) (1979)).

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opportunity to participate in interscholastic athletic competition not only by fielding girls’ basketball teams, but also by devoting equal time, money, personnel, and facilities to the girls’ teams at the player’s school, the district had complied with Title IX.175 O’Connor thus illustrates that schools do not deny equal opportunities to athletes of either gender—and thus violate Title IX—by requiring them to compete on teams set apart based on biological gender.176 C.

Courts Should Not Interpret Title IX in a Way That Undermines Its Purpose

It should be noted here that the Office of Civil Rights was created to regulate federally funded schools as to athletic opportunities under Title IX.177 It was the Office of Civil Rights that issued the Obama Directive.178 “It is well established that the federal courts are to defer substantially to an agency’s interpretation of its own regulations.”179 But a court has no obligation to show substantial deference to an agency’s interpretation of a statute or regulation when it conflicts with a prior, consistently held interpretation.180 Courts should thus treat as invalid any agency’s interpretation of Title IX that disadvantages biological girls and undermines the statute’s remedial purposes.181 The Office of Civil Rights’ interpretation of Title IX, as set forth in the Obama Directive, does just that. Whereas the term “sex” in Title IX is to be construed consistently with the meaning prescribed in Title VII, and courts have consistently determined that term to mean “biological 175. Id. at 1306 (stating that if a gender-based classification “is reasonable in substantially all of its applications . . . the general rule [cannot] be said to be unconstitutional simply because it appears arbitrary in an individual case”). 176. O’Connor, 449 U.S. at 1306 [T]he question whether the discrimination is justified cannot depend entirely on whether the girls’ program will offer [the player] opportunities that are equal in all respects to the advantages she would gain from the higher level of competition in the boys’ program. The answer must depend on whether it is permissible for the [school district] to structure [its] athletic programs by using sex as one criterion for eligibility. Id. 177. Neal v. Bd. of Trustees of Calif. State Univs., 198 F.3d 763, 770 (9th Cir. 1999) (quoting Cohen v. Brown Univ., 991 F.2d 888, 895 (1st Cir. 1993)). 178. See OCR Ltr., supra note 46, at 1–8. 179. Neal, 198 F.3d at 770. 180. Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 515 (1994). 181. Neal, 198 F.3d at 768 (quoting Cohen v. Brown Univ., 101 F.3d 155, 174 (1st Cir. 1996)).

2017] GIRLS WILL BE BOYS, AND BOYS WILL BE GIRLS 149 sex,”182 the Obama Directive asserts that the term also includes “gender identity.”183 If a male athlete identifies as female, or vice versa, is to take precedent over—or at least be given equal weight with—biology, then there are no such things as males or females for Title IX’s purposes, and the term “sex” is rendered meaningless. Taken together, Mansourian and O’Connor stand for the proposition that interpreting Title IX to require that high schools permit transgender athletes to compete on whichever athletic teams match their gender identity would, in fact, disadvantage biological women and undermine Title IX’s remedial purposes. As Mansourian illustrates, a high school may violate Title IX by requiring biological girls to compete with biological boys for spots on an athletic team that were once reserved exclusively for the girls: “By requiring women to prevail against men, the university changed the conditions under which women could participate in varsity wrestling in a manner that foreseeably precluded their future participation.”184 As long as a school provides athletic teams for persons of both genders that are roughly equal in terms of the time, money, personnel, and facilities devoted to each team, the equal-opportunity requirement is met.185 Requiring sex-segregated teams to include persons whose gender identity does not match their biological gender “would hinder, and quite possibly reverse, the steady increases in women’s participation and interest in sports that have followed Title IX’s enactment.”186 Courts should thus uphold Title IX’s purpose of expanding athletic opportunities for women by not letting men who identify as women deny them such opportunities.187

182. Phadke, supra note 141, at 839. 183. Emma Margolin, Transgender Students Protected Under Title IX, DOE Says, MSNBC (April 30, 2014), http://www.msnbc.com/msnbc/transgender-studentsprotected-under-title-ix (quoting the Obama Directive’s statement that “Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity . . ..”). 184. Mansourian v. Regents of Univ. of Calif., 594 F.3d 1095, 1108 n.16 (9th Cir. 2010). 185. Id. at 1108. 186. Neal v. Bd. of Trustees of Calif. State Univs., 198 F.3d 763, 769 (9th Cir. 1999). 187. Id. at 766 (citing North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 526– 27(1982)).

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STATE LAWS CONCERNING TRANSGENDER ATHLETES

Inconsistent state laws place schools in a legal predicament. Since the Supreme Court issued its landmark decision in McCulloch v. Maryland in 1819, “it has been settled that state law that conflicts with federal law is ‘without effect.’”188 Under the U.S. Constitution’s Supremacy Clause, “Congress has the power to preempt state law.”189 “Even without an express provision for preemption . . . state law must yield to a congressional act in at least two circumstances.”190 “When Congress intends federal law to ‘occupy the field,’ state law in that area is preempted.”191 “And even if Congress has not occupied the field, state law is naturally preempted to the extent of any conflict with a federal statute.”192 California actually has two laws which mandate that its public high schools permit transgender athletes to compete on teams, or in events, based on their gender identity.193 Besides Educ. Code § 221.5(f), cited earlier, there is the Unruh Civil Rights Act (Unruh Act), which prohibits business establishments from discriminating based on “gender identity and gender related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.”194 The term “business establishment” is to be construed as broadly as possible: The word ‘business’ embraces everything about which one can be employed, and it is often synonymous with ‘calling, occupation, or trade, engaged in for the purpose of making a livelihood or gain.’ The word ‘establishment,’ as broadly defined, includes not only a 188. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992) (citing McCulloch v. Maryland, 17 U.S. 316 (1819), and quoting Maryland v. Louisiana, 451 U.S. 725, 746 (1981)). 189. Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372 (2000) (citing U.S. CONST. art. VI, cl. 2). 190. Id. 191. Id. 192. Id. 193. Although this portion of the article specifically discusses laws in California, the legal principles discussed apply in all other U.S. states, districts, and territories which have similar laws, rules, and regulations concerning transgender studentathletes. 194. See CAL. CIV. CODE § 51(e)(5) (Westlaw 2017) (incorporating by reference CAL. GOV. CODE § 12926(p) (Westlaw 2017); see also CAL. GOV. CODE § 11135(a) (Westlaw 2017); CAL. EDUC. CODE §§ 200, 201, 220 (Westlaw 2017).

2017] GIRLS WILL BE BOYS, AND BOYS WILL BE GIRLS 151 fixed location, such as the ‘place where one is permanently fixed for residence or business,’ but also a permanent ‘commercial force or organization’ . . ..195 Public schools qualify as business establishments under the Unruh Act.196 So, for that matter, would the California Interscholastic Federation and the regional sections that oversee high school sports on its behalf (collectively the CIF). Though no court has declared the CIF to be a business establishment, the CIF organizes and conducts high school sports events throughout the state on an annual basis and generates revenue from the sales of tickets, event programs, T-shirts, and concessions, which would almost certainly qualify the CIF as “a permanent force or organization.”197 The CIF’s status as a non-profit organization would not exempt it from the Unruh Act’s provisions.198 Private religious schools, however, are not subject to the Unruh Act,199 which is also inapplicable where it conflicts with the First Amendment.200 In other words, private schools that wish to adhere to the biblical teaching “that at the beginning the Creator ‘made them male and female’”201 are free to do so. The state laws discussed above have put California’s public high schools in a legal bind. If schools do not let transgender athletes compete for spots on teams that match their gender identity, the schools could be sued for violating Educ. Code § 221.5(f), the Unruh Act, the Equal Protection Clause, and, based on the Fourth Circuit’s ruling in Grimm, Title IX.202 If schools do let transgender athletes compete on teams that match their gender identity, and thus displace biological boys or girls who would otherwise have earned spots on 195. Hart v. Cult Awareness Network, 13 Cal. App. 4th 777, 786 (Cal. App. 2d Dist. 1982) (emphasis added) (quoting Burks v. Poppy Construction Co., 57 Cal.2d 463, 468–69 (1962)). 196. Sullivan v. Vallejo City Sch. Dist., 731 F. Supp. 947, 953 (E.D. Cal. 1990). 197. Id. at 952 (quoting Isbister v. Boys Club of Santa Cruz, Inc., 40 Cal. 3d 72, 76 (Cal. 1985)) (stating that in enacting the Unruh Act, the California Legislature intended for the statute to apply to “all private and public organizations . . . that may reasonably be found to constitute business establishments of every type [sic] whatsoever” (internal quotations omitted)). 198. Id. (citing O’Connor v. Vill. Green Owners Ass’n, 33 Cal. 3d 790 (Cal. 1983)). 199. Doe v. Calif. Lutheran High Sch. Ass’n, 170 Cal. App. 4th 828, 838–39 (2009). 200. Hart, 13 Cal. App. 4th at 792. 201. Matthew 19:4; see also Genesis 1:27, 5:2. 202. G.G. ex rel Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709 (4th Cir. 2016).

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those teams, the schools could be subject to liability on the same grounds. V.

HIGH SCHOOLS’ GAME PLAN

Other than lobby their federal and state legislators for changes in existing law, there does not seem to be much that high schools can do to wriggle out of the proverbial “rock and a hard place” that the transgender issue presents. However, schools need not sit back and wait to be sued to assert their right to maintain a level playing field for all their athletes by maintaining separate athletic programs for boys and girls. For starters, high schools can maintain the status quo. As previously discussed, Title IX was enacted to advance educational opportunities for girls.203 By ensuring that spots on athletic teams established for girls go to biological girls, schools can do just that. A boy who wants to play on a girls’ team, or vice versa, is not “excluded from participation in [or] denied the benefits of . . . [an] education program or activity receiving Federal financial assistance” if the school has teams available for persons of their biological gender,204 especially given Title IX’s purpose of remedying discrimination toward girls.205 High schools with the resources to do so can also sue an appropriate state official on behalf of their athletic teams. An organization “has standing to bring suit on behalf of its members when its members would have standing to sue in their own right, the interests at stake are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires individual members’ participation in the lawsuit.”206 A girl who loses a spot on a school athletic team to a biological male would certainly have standing to sue her school and school district for discriminating against her under Title IX. And a school that has been put in a position whereby it is forced to violate Title IX should be able to bring that suit on the girl’s behalf. The best defense might be a good offense in such a circumstance.

203. Neal v. Bd. of Trustees of Calif. State Univs., 198 F.3d 763, 766 (9th Cir. 1999). 204. 20 U.S.C.A. § 1681 (Westlaw 2017). 205. Neal, 198 F.3d at 766. 206. Ala. Legis. Black Caucus v. Alabama, 135 S. Ct. 1257, 1268 (2015) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000)).

2017] GIRLS WILL BE BOYS, AND BOYS WILL BE GIRLS 153 If a high school is sued by a transgender athlete, however, a school seeking to preserve its sex-segregated sports programs can and should assert the following defenses: A. Equal Protection Clause As stated above, the Equal Protection Clause does not require “things which are different in fact . . . to be treated in law as though they are the same.”207 Psychologically and biologically, transgender athletes are distinguishable from their cisgender counterparts. Accordingly, schools, as state actors subject to the Equal Protection Clause, are free to treat transgender males as female and vice versa for purposes of team placement and determining which locker rooms to use. Given that “distinguishing between boys and girls in interscholastic sports will help promote safety, increase competition within each classification, and provide more athletic opportunities for both boys and girls,”208 schools can assert the government interest in achieving those goals. For one thing, the presence of transgender athletes on sports teams that do not match their biological gender poses physical and psychological dangers to their cisgender teammates, both in the locker room and on the field. Schools should not be forced to harm one group to accommodate the other. Remember, the Equal Protection Clause entitles both boys and girls to “equal protection,” not “special protection.” Furthermore, although unlikely, it is theoretically possible for a girls’ team to be populated largely with boys who claim to be transgender,209 which would deny equal athletic opportunities to biological girls and thus undermine the goal of “redressing past discrimination and providing equal opportunities for women.”210 Even if maintaining sex-segregated sports programs is not the only way to achieve that goal, it is almost certainly the best way, as noted by one court: We deem the preservation, fostering, and promotion of interscholastic athletic competition for both boys and girls to be a matter of compelling governmental interest. Both because of past disparity of opportunity 207. Michael M. v. Super. Ct. of Sonota Cty., 450 U.S. 464, 469 (1981). 208. Kleczek v. R.I. Interscholastic League, Inc., 612 A.2d 734, 739 (R.I. 1992). 209. O’Connor v. Bd. of Educ. of Sch. Dist. 23, 449 U.S. 1301, 1307 (1980). 210. Clark v. Ariz. Interscholastic Ass’n, 695 F.2d 1126, 1131 (9th Cir. 1982) (citing Petrie v. Ill. High Sch. Athletic Ass’n, 394 N.E.2d 855, 862 (Ill. 1979)).

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and because of innate differences, boys and girls are not similarly situated as they enter into most athletic endeavors. Although classification of teams based on gender is not an absolute necessity to achieve those governmental interests, we are persuaded that the combination of problems which we believe to be likely to arise from attempts to do so through other classifications, creates a substantial element of necessity.211 Schools that wish to accommodate transgender athletes are also within their rights to require proof of the athletes’ transgender bona fides so as to prevent fraud.212 Most, if not all, transgender athletes deny that anyone would claim to be transgender to obtain an easier path to athletic glory given the potential bullying, harassment, and other types of persecution the person may face for doing so.213 However, an athlete who is desperate enough could be willing to pay that price, especially if it means being hailed as a groundbreaker.214 Schools are thus permitted under the Equal Protection Clause to condition participation on an opposite-gender team by requiring that a transgender athlete (1) provide legal or medical evidence of transgender status, (2) undergo hormone treatments or sexreassignment surgery before permitting the student to compete on an opposite-gender team, or (3) compete as a member of their identifying gender for the remainder of their high-school career—all of which are approaches taken in various states.215 Transgender athletes may argue that conditioning participation on opposite-gender teams is discriminatory216 and, furthermore, that

211. Petrie, 394 N.E.2d at 863. 212. Richards v. U.S. Tennis Ass’n, 400 N.Y.S.2d 267, 272 (N.Y. Sup. 1977). 213. No League, supra note 41 (featuring Caitlyn Jenner—who, as Bruce Jenner, won the men’s decathlon at the 1976 Olympic Games in Montreal and is the most prominent current or former athlete who identifies as transgender—and transgender triathlete Chris Mosier, a biological female, who deny that men would seek to compete as women to gain a competitive advantage). 214. See Walsh, supra note 202 (stating that as Fallon Fox “gloated about his physical dominance over (his) outmatched female” opponent in a mixed martial arts bout, and “media outlets and advocacy groups hailed him as a pioneer”). 215. See K-12 Policies, supra note 6. 216. See K-12 Policies, supra note 6.

2017] GIRLS WILL BE BOYS, AND BOYS WILL BE GIRLS 155 requesting proof of their transgender bona fides violates privacy interests protected by their federal and state constitutions.217 However, [u]nlike the general population, student athletes undergo frequent physical examinations, reveal their bodily and medical conditions to coaches and trainers, and often dress and undress in same-sex locker rooms. In so doing, they normally and reasonably forgo a measure of their privacy in exchange for the personal and professional benefits of extracurricular athletics.218 In other words, transgender athletes give up their reasonable expectation of privacy by voluntarily participating in interscholastic athletics.219 This is especially true since disclosure of their transgender status is necessary from a practical standpoint to gain approval to compete for an opposite-sex team. The transgender athlete’s already diminished expectation of privacy is also outweighed by other legitimate legal objectives, such as ensuring equality of opportunity for both boys and girls and ensuring the physical and psychological safety of other athletes.220 The bottom line is that all the Equal Protection Clause requires is that whatever opportunities schools provide for their students to compete in interscholastic athletics must be open to all on equal terms.221 Maintaining sex-segregated sports programs, and limiting participation in those programs to persons of a specific biological gender, accomplishes that goal.222 B. Title IX By ensuring that as many biological girls and boys have the chance to compete in interscholastic athletic competition, schools comply with the letter, spirit, and intent of Title IX.223 Neither boys nor girls are denied equal athletic opportunities under Title IX by being required 217. See, Nguon v. Wolf, 517 F. Supp. 2d 1177, 1191–97 (C.D. Cal. 2007) (noting that minor students in California have privacy rights concerning their sexual orientation that are protected under both the federal and state constitutions). The same would likely be equally applicable to one’s gender identity. 218. Hill v. Nat’l Collegiate Athletic Ass’n, 865 P.2d 633, 637 (Cal. 1994). 219. Id. 220. Kleczek v. R.I. Interscholastic League, Inc., 612 A.2d 734, 739 (R.I. 1992). 221. Hoover v. Meiklejohn, 430 F. Supp. 164, 171 (D. Colo. 1977). 222. See Clark v. Ariz. Interscholastic Ass’n, 695 F.2d 1126, 1131 (9th Cir. 1982). 223. See O’Connor v. Bd. of Educ. of Sch. Dist. 23, 449 U.S. 1301, 1306 (1980).

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to try out for, and participate on, teams set apart exclusively for persons of their gender.224 However, by permitting transgender males to compete on teams set apart for girls, schools change the conditions under which girls may participate in a manner that effectively denies girls the opportunity to participate in interscholastic athletics.225 In other words, a girl who loses a spot on a girls’ team to a transgender male loses out on the very type of educational opportunity that Title IX was enacted to provide to her.226 This would not only undermine Title IX’s purpose, it “would hinder, and quite possibly reverse, the steady increases in women’s participation and interest in sports that have followed Title IX’s enactment.”227 To ensure true equality of athletic opportunities under Title IX, a school should continue to maintain separate athletic programs for boys and girls and limit participation in those programs to persons of the gender specified. C. State law Where state law forces schools to violate federal law, state law must yield.228 Title IX is a federal law enacted to “eliminate discrimination on the basis of sex in education programs and activities receiving federal financial assistance.”229 If a school has to violate Title IX, a federal law, to accommodate a transgender athlete under state law, then Title IX’s very language and purpose would be rendered meaningless. Schools are thus free to disregard state law in such circumstances.230

224. Id. at 1306. 225. Mansourian v. Regents of the Univ. of Calif., Univ. of Calif. at Davis, 594 F.3d 1095, 1098 n.16 (9th Cir. 2010). 226. See generally Neal v. Bd. of Trustees of Calif. State Univs., 198 F.3d 763, 767 (9th Cir. 1999). 227. Id. at 770. 228. Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372 (2000) (“[S]tate law is naturally preempted to the extent of any conflict with a federal statute.”). 229. O’Connor, 449 U.S. at 1307 n.5. 230. See, e.g., CAL. CIV. CODE § 51(c) (stating that the Unruh Act “shall not be construed to confer any right or privilege on a person that is conditioned or limited by law or that is applicable alike to persons of every sex, color, race, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation or to persons regardless of their genetic information” (emphasis added)).

2017] GIRLS WILL BE BOYS, AND BOYS WILL BE GIRLS 157 VI.

CONCLUSION

Public high schools do not deny transgender athletes the opportunity to compete in interscholastic athletics—and thereby violate the law—by requiring transgender athletes to compete on teams associated with their biological gender or placing conditions on their participation on an opposite-gender team, such as obtaining hormone treatments or sex-reassignment surgery.231 There are valid, legally recognized reasons to classify transgender athletes according to their anatomy, rather than the gender they identify as, for purposes of their placement on teams. “The basics” of human anatomy have not changed, and schools can thus treat transgender athletes accordingly.232

231. Gomes v. R.I. Interscholastic League, 469 F. Supp. 659, 665 (D.R.I. 1979) (stating that just because a public high school denied a boy the opportunity to play volleyball for the school’s girls volleyball team, and did not have a boys team for him to compete on, did not mean that the school had denied him the opportunity to compete in interscholastic athletics). 232. KINDERGARTEN COP (Universal Pictures 1990).

COMMENT GOLF-COURSE GREENS FEES: LICENSE FEES OR LAND INCOME? PETER J. MANCINI* ABSTRACT This Comment explains the current treatment of golf-course-greens fees by courts and creditors. This Comment calls for a change in their treatment, especially in bankruptcy court, which will change how creditors document their loans. This Comment argues that the current treatment of golf-course-greens fees should no longer be treated as just personal property because the past rationale used to support this is no longer valid. Thus, treatment of these fees must be modernized. Why is this so important? Without loans made by creditors, new golf courses will not be built and existing golf courses will not be bought or sold because, for golf-course creditors, millions of dollars are often at risk. And if the risks of default and loss are too great, creditors will tighten credit standards significantly, reduce loans made to businesses within this industry, or exit this industry altogether. To avoid this, this Comment calls for a paradigm shift. Golf-course-greens fees should no longer be treated solely as personal property. Rather, depending upon circumstances and intent, they should be characterized and treated differently. This, then, would require different means of lien perfection based on a simple, commonsense analysis. Put simply, it is time for a change.

* The author is a graduate of the Graduate School of Banking at the University of Wisconsin and holds a Master in Business Administration from Eastern Michigan University. Between 1998 and 2014, he held commercial lending positions with several Midwest banks and credit unions. From 2010 to 2014, he also managed collections departments in two Michigan credit unions. Mr. Mancini would like to thank Prof. Stacy Dinser who edited this Comment originally and a second thank you to his wife, Marianne, his children, Zachary and Chloe, and his parents for providing support while he was writing this Comment. Without their help, he could not have done this.

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TABLE OF CONTENTS INTRODUCTION .......................................................................... 161 I. BACKGROUND ......................................................................... 163 Credit-Risk Management Through High-Risk Industry Identification ......................................... 163 Risk Management Through Proper Loan Documentation ... 164 A. Commercial Real Estate Lending .............................. 164 B. Asset-Based Lending ................................................. 166 C. Repayment When There is a Default or Insolvency .. 168 D. Lending Summary ..................................................... 169 Evolution and Changes in the Golfing Industry and Their Impact on Lending ................................. 169 II. ANALYSIS ................................................................................ 170 Golf-Course-Greens-Fees Case Law ................................... 170 A. The Precedent is Set .................................................. 170 B. The Precedent is Upheld............................................ 174 C. The Precedent is Reaffirmed and Green-fees Treatment is Extended to Golf Memberships in McKim................................................. 176 D. Bankruptcy Appeals Panel Considers if Greens Fees are Personal Property ............................................. 177 E. Greens Fees Case-Law Summary .............................. 182 Revisiting the Underlying Premise: Today, Do Hotel Guests Pay Room Rents or Usage Fees? ............. 182 A. Circuit Courts Split on Payments to Hotels as Rents or Fees .................................................................. 182 B. The Two Faces of Everett Home Town Ltd. Partnership and Far East Nat’l Bank .............................. 183 C. The Times, They Are A-Changin . . . ........................ 185 Alternative, Analogous Industries for Comparison.............. 186 A. Marinas ...................................................................... 186 B. Trailer and Recreational Vehicle Parks ..................... 191 C. Car-parking Garages .................................................. 192 D. Car, Trailers, and Recreational Vehicles Parking Summary ........................................................... 193 E. A New Analogy and a New Paradigm from a New Industry ...................................................... 193 F. Devil’s Advocate View: Are Marina’s Really a Better Analogous Industry? ............................. 194

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III. CONCLUSION .............................................................................. 195 New Treatment for Golf-Course Greens Fees Based on Marina Case Law ......................................................................... 195 A. A Brave New World .................................................. 195 Creditor Impact .................................................................... 197 A. Real Estate Secured Lenders ..................................... 197 B. Asset-Based Lenders ................................................. 198 Golf Course Impact .............................................................. 198 Summary Conclusion............................................................ 198 INTRODUCTION Prudent lending is all about risk management.1 To manage risk, creditors must know what assets they take as collateral, and what is the right way to attach and perfect liens to create a proper security interest in collateral.2 Creditors that properly attach and perfect liens are protected against claims by other creditors or claims made by bankruptcy trustees in the event of borrower default or insolvency.3 Greens fees are money paid for the privilege of playing golf, usually one round, on a golf course4 and are typically the primary, recurring source of income for golf courses.5 However, greens fees pose problems to lenders. In many ways, greens fees resemble money paid to possess land – rents, income, profits, or issues6 stemming from land. The idea behind this belief is that golfers pay to occupy a golf

1. OFFICE OF THE COMPTROLLER OF THE CURRENCY, COMPTROLLER’S HANDBOOK, COMMERCIAL REAL ESTATE LENDING 41 (2013) (“All loans have risk; prudent lending requires the bank to identify risks, assess their nature and magnitude, and structure the loan in a way that sufficiently mitigates them.”) [hereinafter REAL ESTATE LENDING]. 2. See U.S. SMALL BUSINESS ADMINISTRATION, LENDER AND DEVELOPMENT COMPANY LOAN PROGRAMS 154–64 (SOP 50 10 5(I) 2017) [hereinafter SBA LOAN PROGRAMS]. 3. See NYAL D. DEEMS, MICHIGAN REAL ESTATE PRACTICE AND FORMS 1536 (3d ed. 2015) [hereinafter MICHIGAN REAL ESTATE]. 4. Greens fees, MERRIAM-WEBSTER DICTIONARY.COM, http://www.merriamwebster.com/dictionary/greens%20fee (last visited Feb. 2, 2017). 5. In re GGVXX, Ltd., 130 B.R. 322, 326 (Bankr. D. Colo. 1991). 6. “To accrue rents issuing from land.” (angle brackets omitted) Issue, BLACK’S LAW DICTIONARY (4th Pocket ed. 2011).

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course.7 But greens fees also resemble money paid as license8 fees for land use. The belief here is that golfers are permitted to use a golf course if they pay for the course’s upkeep and maintenance.9 Under a 1991 precedent case, a court held that greens fees are license payments – fees paid for course use.10 Subsequent courts, however, came to this conclusion based on inconsistent reasoning. Inconsistent court reasoning puts golf-course lenders at risk. If a lender’s lien is not properly attached and perfected the lender will become a general, unsecured creditor.11 If the debtor goes bankrupt, general, unsecured creditors usually get paid pennies on the dollar, if anything at all.12 Whereas, if a lender’s lien is properly attached and perfected, a lender’s security interests in collateral will survive bankruptcy, allowing the lender to liquidate the collateral to pay off the debt.13 Often, millions of dollars are at risk in a single golf-course loan14–sometimes more.15 So for golf-course lenders, knowing how to properly attach and perfect liens on greens fees is paramount.

7. In re GGVXX, Ltd., 130 B.R. at 326. 8. “A permission, [usually] revocable, to commit some act that would otherwise be unlawful; [especially], an agreement . . . that it is lawful for the licensee to enter the licensor’s land to do some act that otherwise be illegal, such as hunting game.” License, BLACK’S LAW DICTIONARY (4th Pocket ed. 2011). 9. In re GGVXX, Ltd., 130 B.R. at 326. 10. Id. at 322. 11. 11 U.S.C.A. § 507 (Westlaw 2017) (explaining that a bankrupt’s creditor will be classified based on its lien status and that debtor relief is tied to its priority as determined by the creditor classification). 12. In re Cox & Schepp, Inc., 523 B.R. 511, 519 (Bankr. W.D.N.C. 2014) (“[U]nsecured creditors in the bankruptcy case will receive pennies on the dollar for their claims.”). 13. 11 U.S.C.A. §§ 501–11 (Westlaw 2017) (describing the credit claims process); see also MICHIGAN REAL ESTATE, supra note 2, at 1540. 14. See Far East Nat’l Bank v. United States Tr., 477 B.R. 767, 770 (B.A.P. 9th Cir. 2012) (Creditor loaned $11,500,000 from debtor to fund its golf course.); see also Everett Home Town, L.P., 146 B.R. 453, 455 (Bankr. D. Ariz. 1992) (Debtor borrowed $20,000,000 from creditor to fund its golf course.). 15. Creditors that suffer too many losses in an industry may stop lending to businesses in that industry. If too many creditors exit an industry, credit becomes scarce, and those businesses must pay higher interest rates. If credit becomes too scarce, the industry may even seize up or fail. See, e.g., Robert Stowe, Back from the Brink, MORTGAGE BANKING, Jan. 1, 2009, at 40 (Due to extraordinarily large losses from bad real-estate loans and related investments, Lehman Brothers failed. This failure caused the bank-to-bank lending market to seize up. For the same reasons as Lehman’s failure, the near failure of AIG, Merrill Lynch, Citibank, J.P. Morgan

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First, this Comment will provide an overview on commercial lending law to set the stage for this controversy. Second, the background on the past treatment of greens fees will be presented through relevant case law that will explore the rationale behind prior court decisions related to greens fees. Third, this Comment will look at controversial decisions that call into question the reasoning behind treating greens fees as license fees. Fourth, this Comment will then delve into other similar areas of law to see how analogous businesses treat similar income streams and assets. Based on current case law, new treatments for greens fees will be presented that will resolve the inadequate, historical treatment of greens fees presently in place. Finally, this Comment will discuss the proper manner to perfect golfcourse-greens-fees liens, so the liens will survive challenges by other creditors and bankruptcy under the new proposed paradigm. I. BACKGROUND Credit-Risk Management Through High-Risk Industry Identification Risk management starts with a creditor first identifying higher-risk industries.16 Generally, higher-risk industries share similar properties: they have single-purpose collateral,17 require a lot of capital to establish and maintain,18 sell non-essential goods or services to customers who are spending discretionary income, compete against many others providing the same product or service, and are seasonal.19 When creditors make loans to businesses in high-risk industries, their loans are typically deemed high-risk.20 Chase & Co., and Wells Fargo caused the real estate mortgage market to seize up and nearly collapse). 16. See generally SBA LOAN PROGRAMS, supra note 2 at 224. See generally 13 C.F.R. §§ 120.910–913 (2017). 17. SBA LOAN PROGRAMS, supra note 2 at 220 (defining a limited or special purpose property as having a unique design, special construction, or other facts that limit utility). 18. See, e.g., In re Premier Golf Props., L.P., 477 B.R. at 770 (stating debtor borrowed $11,500,000 to fund its golf course); see also, e.g., Everett Home Town L.P., 146 B.R. at 455 (stating debtor borrowed $20,000,000 to fund its golf course). 19. Jon Swartz, Golf Clubs Suffer in Recession as Membership Dwindles, USA TODAY, https://usatoday30.usatoday.com/money/economy/2010-08-03-golf03_cv_ n.htm (updated Aug. 3, 2010) (reporting on the demise of golf courses after the economic downturn that started in 2008). 20. Cf. REAL ESTATE LENDING, supra note 1, at 38 (Aug. 2013 updated Jan. 2017) (stating that prudent lending requires risk management, so where there is high

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Usually, golf courses are considered high-risk debtors.21 Their collateral is single-purposeâ&#x20AC;&#x201C;for golfing. Golf courses generally require a lot of capital to establish and maintain.22 Golfers are playing a recreational sport for entertainment; though some die-hard golfers may disagree, playing golf is not essential. In the United States, there are many golf courses open for play resulting in significant competition.23 Golfing in North America is a seasonal sport because in most states winter weather prevents golf courses from staying open all year. Therefore, golf courses are high-risk businesses to lend to. Risk Management Through Proper Loan Documentation A. Commercial Real Estate Lending Lend for flash; document for cash. The first part of this old-schoollending adage sums up what most perceive is the art of lending. Creditors make loans to their debtors after considering default24 and loss risks.25 However, the second part of this adage sums up the reality of lending. A creditor must do what is needed to protect its security interests to get repaid. It must properly document its loans and attach

risk of loss or default in an industry, loans made within those high-risk industries are high-risk loans requiring proper risk mitigation). 21. SBA LOAN PROGRAMS, supra note 2, at 224â&#x20AC;&#x201C;25 (defining golf courses as a limited or special purpose property; and requiring larger capital injections by the borrower to the mitigate risk of loss due to its collateral having a limited or special purpose). 22. In re Premier Golf Props., L.P., 477 B.R. at 770 (stating debtor golf courses required multimillion-dollar commercial loans to fund its business prior to filing for bankruptcy protection). 23. U.S. Golf Courses in Steady Decline, ESPN.COM, http://espn. go.com/golf/story/_/id/12461331/number-us-golf-courses-steady-decline-saysreport (last visited Feb. 2, 2017) (reporting in 2015 that the Unites States had 15,372 golf courses). 24. Default risk refers to the danger that the debtor may fail to make payments as agreed; see, e.g., Brockbank v. Best Capital Corp., 341 S.C. 372, 382 (2000) (citing to Chrysler Credit Corp. v. B.J.M., Jr., Inc., 834 F. Supp. 813, 831â&#x20AC;&#x201C;32 (E.D. Pa. 1993)). Courts have also recognized other forms of default, such as failing to maintain adequate insurance coverage. Regions Bank v. Thomas, 422 S.W.3d 550, 567 (Tenn. Ct. App. 2013). 25. Loss risk refers to the probability that the creditor will not be paid in full after all collection options have been exhausted.

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and perfect its liens and assignments to be assured of repayment.26 For the latter reason, most creditors prefer taking real estate as collateral.27 The benefits are many while the risks are quantifiable and few. Underwriting documentation is straight forward for real estate loans. Real estate appraisals take away most of the valuation guesswork.28 Basic environment assessments shed light on possible contamination issues;29 advanced environmental assessments quantify the contamination issues and provide options for remediation.30 Surveys easily map out what is being conveyed as collateral; they identify encroachments, set-backs, and lot line disparities.31 Title searches and title insurance provide creditors with assurances that their lien will be in first position, or the insurance company will cover the costs to correct.32 And if the loan is underwritten and documented properly, there is a viable secondary market, allowing creditors to sell commercial real estate loans to investors who assume the risks of default and loss, while the creditor gets paid to service the loan and generate loan statements.33 Most often, the default risk is tied to income, and loss risk is tied to collateral value.34 Where commercial real estate is involved, income is generally rents, profits, accounts, and issues stemming from the use of real estate.35 Rent is consideration – usually money – given for the use or occupancy of property, typically paid periodically.36 And in 26. E.g., MICHIGAN REAL ESTATE, supra note 3, at 370–71, 385–88 (stating a lender needs a note tied to a real estate mortgage for proper documentation of an obligation to repay a real-estate secured loan). 27. See generally MICHIGAN REAL ESTATE, supra note 3, at 391–404. 28. E.g., ALVIN L. ARNOLD & MARSHALL E. TRACHT, CONSTRUCTION & DEVELOPMENT FINANCING § 3:39 (Westlaw 2017). 29. E.g., MICHIGAN CONSTRUCTION LAW MANUAL § 11:67 (Westlaw 2017). 30. Id. at § 11:70. 31. E.g., MICHIGAN REAL ESTATE, supra note 3, at 21 (stating that during the due-diligence process, a buyer should check past and present surveys for “easements, encroachments, or other encumbrances that have arisen”). 32. E.g., MICHIGAN REAL ESTATE, supra note 3, at 564–65 (providing an overview to title insurance companies and the use of their products). 33. E.g., MICHIGAN REAL ESTATE, supra note 3, at 392–93 (stating properly underwritten and documented commercial loans can be sold into the secondary market if fairly rigid standards are adhered to). 34. Esa Jokivuolle & Samu Peura, Incorporating Collateral Value Uncertainty in Loss Given Default Estimates and Loan-to-Value Ratios, 9 EUROPEAN FIN. MGMT. 299, 311 (2003). 35. E.g., CONSTRUCTION & DEVELOPMENT FINANCING, supra note 28, at § 3:71. 36. Rent, BLACK’S LAW DICTIONARY (4th Pocket ed. 2011).

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commercial real estate lending, collateral value is determined by appraisal. When properly underwritten and documented, creditors often believe that commercial real estate lending is less risky than other commercial lending because seizing commercial real estate is now governed by state code and is a quicker remedy.37 Property common law is created and defined by state law unless federal interests supersede state law.38 Consequently, in many jurisdictions, creditors secure repayment rights in real estate with secured loans through a commercial mortgage or deed of trust39 with a separate assignment of rents and leases.40 In the event of default, the mortgage or deed of trust allows the creditor to seize the pledged real estate and sell it at a sheriff’s sale.41 The assignment of rents and leases provides the creditor with the right to demand rent, issues, and profit payments stemming from the land to be applied to the amount due while the debtor is in default.42 B. Asset-Based Lending “Show me the money!”43 best sums up asset-based lending. As its name implies, asset-based lending is making loans to businesses based on their assets, and asset liquidation provides loan repayment.44 In this specialized lending area, creditors make loans against business

37. MICHIGAN REAL ESTATE, supra note 3, at 1579–80. 38. In re GGVXX, Ltd., 130 B.R. 322, 324 (Bankr. D. Colo. 1991). 39. E.g., COM. FIN. COMMITTEE, A.B.A., COMMERCIAL LENDING LAW A STATEBY-STATE GUIDE 64 (Brian D. Hulse et al. eds., 2009) (stating the use of mortgages or deeds of trust is governed by state law and in some states, such as Arizona, either mortgages or deeds of trust may be used). 40. E.g., MICHIGAN REAL ESTATE, supra note 3, at 408 (explaining mortgaged commercial properties include an interest in rents, issues, and profits under leases requiring separate assignments). 41. E.g., COMMERCIAL LENDING LAW A STATE-BY-STATE GUIDE, supra note 40, at 64. 42. E.g., COMMERCIAL LENDING LAW A STATE-BY-STATE GUIDE, supra note 40, at 66 (stating most lenders use an absolute assignment of rents and leases with a license back to the debtor allowing the debtor to use the rent proceeds until there is a default). 43. JERRY MAGUIRE (TriStar Pictures 1996). 44. As opposed to cash-flow lending, where creditors lend based on ability to repay from cash flow.

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accounts and rely on account collection for repayment.45 Asset-based lending is popular because not all businesses own commercial real estate; many businesses lease space instead. As such, businesses that do not own real estate can rely on other assets to be pledged as collateral46 to secure a loan. Accounts are one of the most common business assets and are frequently used to secure lines of credit.47 Accounts are the right to a payment of money regardless if it is earned or unearned.48 This includes money received for property that has been leased or rented49 or for services rendered.50 For a creditor to be able to use an account for collateral, the lender must attach51 and perfect52 its security interest in the collateral. A security interest in collateral attaches when it becomes enforceable against the debtor.53 Perfection is the validation of a security interest in collateral against other creditors.54 For accounts, a creditor will use a security agreement and financing statement listing the debtor’s accounts as collateral, and once the financing statement is properly filed, the security interest in the accounts is perfected.55 So, if the debtor defaults or becomes insolvent, the creditor can liquidate these accounts for repayment.56 During default or insolvency, asset-based lenders worry about one thing, money in the form of accounts.57 Unlike other forms of lending, asset-based lending focuses more on the quality of the collateral pledged and less on the cash flow generated by a business.58 The 45. See generally OFFICE OF THE COMPTROLLER OF CURRENCY, COMPTROLLER’S HANDBOOK, ASSET-BASED LENDING 7–9 (Mar. 2014 updated Jan. 2017) [hereinafter ASSET-BASED LENDING]. 46. U.C.C. §§ 9-102(a)(12)–(12)(B) (AM. LAW INST. & UNIF. LAW COMM’N 2010). 47. See Fischer Inv. Cap., Inc. v. Cohen (In re Cohen), 334 B.R. 392, 398 (Bankr. N.D. Ill. 2005). See generally ASSET-BASED LENDING, supra note 46, at 1–2. 48. U.C.C. § 9-102(a)(2) (AM. LAW INST. & UNIF. LAW COMM’N 2010). 49. Id. at § 9-102(a)(2)(i). 50. Id. at § 9-102(a)(2)(ii). 51. Id. at § 9-203(a) (stating that attachment comes from having a properly executed security agreement). 52. See id. at § 9-310 (requiring a financing statement to be filed in the proper place to perfect an account as collateral). 53. § 9-203(a). 54. Perfection, BLACK’S LAW DICTIONARY (10th ed. 2014). 55. See U.C.C. § 9-308 (AM. LAW INST. & UNIF. LAW COMM’N 2010). 56. See id. § 9-610. 57. See generally ASSET-BASED LENDING, supra note 46, at 7–8. 58. See ASSET-BASED LENDING, supra note 46, at 1.

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reason is simple: in asset-based lending, the creditor’s collateral is the debtor’s accounts, and a creditor’s repayment comes from the debtor’s account liquidation and not from the operation’s cash flow.59 The creditor’s main concern is the ability of the debtor’s customers to pay as agreed on their accounts.60 This requires proper loan documentation that allows collateral to be seized and liquidated should the debtor default or become insolvent.61 This is the reason asset-based lenders spend most of their time analyzing debtor accounts and properly documenting their loans.62 C. Repayment When There is a Default or Insolvency On rare occasions, when a debtor recognizes it cannot meet its obligations, the debtor will let the creditor liquidate the collateral to satisfy the debtor’s obligation and avoid default.63 In some instances, debtors will instead seek bankruptcy protection when insolvent.64 During repossession, foreclosure, or bankruptcy, a creditor’s claim to collateral can be challenged.65 If the creditor improperly documents a secured loan and fails to create a proper security interest, it will lose its rights in the collateral,66 resulting in a high risk of loss.67 Conversely, if a creditor properly documents a secured loan and creates a security interest, the risk of loss is low.68 For this reason, it is paramount for creditors to properly document loan agreements so they may preserve their rights and get repaid.69

59. JEFFREY J. WONG, MICHAEL A. LEICHTLING, & BARRY A. DUBLIN, COMMERCIAL FINANCE GUIDE § 6.01 (2016) 60. See id. § 6.02. 61. Id. 62. See id. 63. See, e.g., Bank of Am., N.A. v. Corporex Realty & Inv. Corp., 661 F. App’x 305, 310 (6th Cir. 2016) (stating Bank of America’s Special Assets Group had several options to pursue when collecting on a past-due loan, including accepting a deed in lieu of foreclosure). 64. See generally MICHIGAN REAL ESTATE, supra note 3, at 1528. 65. See 9C AM. JUR. 2d Bankruptcy § 2518 (2017). 66. MICHIGAN REAL ESTATE, supra note 3, at 1534 (stating that secured creditors have an interest in a debtor’s property to assure performance even in bankruptcy). 67. See AM. JUR. 2d, supra note 66. 68. See AM. JUR. 2d, supra note 66. 69. See AM. JUR. 2d, supra note 66.

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D. Lending Summary Creditors lend money to debtors with the expectation of full repayment. Before lending money, creditors underwrite to identify the default and loss risks before determining if the risks are acceptable.70 To ensure repayment, creditors often secure their loans with collateral.71 Collateral can take many forms: real estate or nearly any other business asset.72 Under common law or state code, creditors use mortgages with assignments of rents and leases to perfect repayment security interests in real estate.73 Under the Uniform Commercial Code (U.C.C.), creditors use a security agreement to attach a lien and file a financing statement to perfect a lien for most other business assets.74 If creditors document their loans correctly, their rights will be preserved in the event of debtor default or insolvency.75 Regardless of the collateral, making loans requires proper documentation to assure repayment. Evolution and Changes in the Golfing Industry and Their Impact on Lending In 1991, In re GGVXX, Ltd.’s seminal ruling determined that greens fees are not rent.76 Since then, much has changed in the relationship between golf courses and golfers. Long gone are the days where golfers fell into two categories: semi-professional, country-club members or casual, weekend duffers.77 Golfers are now enticed to become golf course members, neighbors, and equity stakeholders to ensure game play.78 In this way, golf courses have become more 70. See generally SBA LOAN PROGRAMS, supra note 2, at 148–71. 71. See SBA LOAN PROGRAMS, supra note 2, at 154–56. 72. See SBA LOAN PROGRAMS, supra note 2, at 154–56. 73. See Commercial Real Estate FAQs, A.B.A., http://www.americanbar. org/groups/real_property_trust_estate/resources/real_estate_index/real_estate_com mercial_faqs.html (last visited Mar. 26, 2017). 74. U.C.C. §§ 9-201, 9-203, 9-301–316 (AM. LAW INST. & UNIF. LAW COMM’N 2010). 75. Id. 76. In re GGVXX, Ltd., 130 B.R. 322, 326 (Bankr. D. Colo. 1991). 77. See, e.g., Glossary of Real Estate Terms: Club Membership Terms, PRIVATECOMMUNITIES.COM, http://www.privatecommunities.com/second-homebuying/glossary/club-membership-terms.htm (last visited Mar. 26, 2017). 78. See, e.g., Homesites, LAKEWOOD SHORES RESORT, http://www. lakewoodshores.com/index.php/home/homesites (last visited Feb. 2, 2017) (explaining that a purchaser of a lot adjacent to the course gets discounted play on the Serradella course and can purchase a second lot for $10 more).

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creative in structuring their ownership to garner more game play and retain golfers. Course management leverages image to bolster course play and the desire to be affiliated with a course by hiring world-famous course designers to help brand their golf course.79 Golfers consider not only how challenging a course is but also the natural beauty that surrounds them as they play, as well as the amenities available to enhance their time spent golfing.80 This is all due to the proliferation of golf courses in the United States.81 Consequently, players have become more demanding and now seek the best value for their greens fees.82 So precedent-setting case law that addressed the legal treatment of greens fees in 1991 does not adequately address what greens fees are today. Now, depending on the structure, greens fees arguably could be accounts; proceeds from a license; rents paid to occupy land; or proceeds, income, profits, or issues from land use.83 Therefore, it is unclear as to which attachment and perfection method is proper to assure a creditor is repaid should a debtor default or becomes insolvent. II. ANALYSIS Golf-Course-Greens-Fees Case Law A. 1.

The Precedent is Set

Background and Facts: In re GGVXX, Ltd.

In In re GGVXX, Ltd., King Valley Development Corp. (King) was a creditor who had lent money to GGVXX, which owned and operated a golf course.84 King secured its loan when GGVXX pledged its golf

79. See, e.g., Golf Course Design Company Overview, NICKLAUS DESIGN NEWS, http://www.nicklaus.com/design/overview.php (last visited Feb. 2, 2017) (showcasing Jack Nicklausâ&#x20AC;&#x2122;s designs of 298 signature golf courses in forty-one countries). 80. See Ron Varrial, Pick the Perfect Golf Community: 11 Secrets to Find Your Dream Place, NEWSMAX.COM (July 7, 2015), http://www.newsmax.com/Ron Varrial/perfect-golf-community-secrets/2015/07/07/id/653779/. 81. See Brett Avery, How to Join a Private Club, GOLF DIG. (Aug. 12, 2008), http://www.golfdigest.com/story/privateclubs_avery. 82. See id. 83. See In re GGVXX, Ltd., 130 B.R. 322, 326 (Bankr. D. Colo. 1991). 84. Id. at 324.

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course and certain personal property as collateral.85 King did this through a commercial real estate mortgage with assignment of rents and leases and a fixtures filing.86 Later, GGVXX voluntarily sought bankruptcy protection from its creditors in late 1990.87 In its bankruptcy filing, GGVXX disclosed in its financial statements that its main sources of income were “from greens fees, cart rentals, range balls, and club rentals.”88 In early 1991, King “allege[d] that it [was] an assignee for value and the present holder of certain first, second, and third priority, perfected secured liens against [GGVXX’s] real property and ‘certain personal property’” based on its commercial real estate mortgage and fixtures filing.89 After GGVXX filed its Chapter 11 bankruptcy petition, King filed a motion to bar GGVXX from spending certain revenues GGVXX had received while under bankruptcy protection.90 The revenues in question included “greens fees, cart rentals, [sale of] range balls, . . . golf club rentals[, and rents from GGVXX’s golf school].”91 King claimed these revenues were part of the collateral pledged by GGVXX to assure repayment and that GGVXX should not be permitted to use these funds to support operations while the bankruptcy stay was in place.92 2.

The Arguments

When King filed several motions supporting its position,93 it argued these certain revenues were rent, income, profits, or issues stemming from the land and that under the mortgage with assignment of rents and leases, these rents were due to it when GGVXX defaulted

85. Id. at 324 & n.5. 86. Id. 87. Id. at 324. 88. Id. 89. Id. 90. See id. 91. Id. at 324 & n.4. 92. See id. at 323 n.2. 93. Id. at 324 (where the motions filed were “a Motion to Prohibit Use of Cash Collateral and Noncash Collateral, to Require Sequestration of Cash Collateral, to Require an Accounting Regarding Cash Collateral and Noncash Collateral, and for Adequate Protection with Respect to Cash Collateral and Noncash Collateral”).

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and became insolvent.94 Conversely, GGVXX argued in its motion95 that these revenues were not part of the collateral pledged under its mortgage with assignment of rents and leases or the fixtures filing.96 Rather, GGVXX claimed these revenues were personal property or accounts, which required a valid security agreement and a financing statement be used to properly attach and perfect a lien against these certain assets.97 3.

The Holding

The court held “that the principal revenues of the Debtor [GGVXX], primarily derived from greens fees and similar use fees, are not rents; they are essentially personal property . . . .”98 The court reasoned through analogy.99 The court did this because there was no case law setting a precedent on this issue.100 So it drew from case law related to hotels and innkeepers for its analogies.101 The court heavily relied on one particular case102–In re Kearney Hotel Partners.103 4. Court’s Reasoning Through Analogy with the Hotel Industry In In re Kearney Hotel Partners, “the court [found] that room receipts generated by hotel guests are personalty[104] . . . .”105 Further, “[t]o hold otherwise would totally distort [U.C.C.] § 9-104(j) and bring within its keen security interests in income attributable to other licensees of realty, e.g.: greens fees paid for use of golf courses . . . .”106 And from this citation within Kearney, the GGVXX court 94. Id. at 323 nn.1–2, 324 n.6. 95. Id. at 323 (stating that debtor filed a motion to vacate cash collateral order in an attempt to access and use the fees without restriction). 96. Id. at 323. 97. See id. at 323 & nn.1–2, 324 & n.5. 98. Id. at 326. 99. Id. at 324–26. 100. Id. at 324. 101. Id. at 325. 102. See id. at 324 & n.7, 325. 103. Id. at n.7 (citing In re Kearney Hotel Partners, 92 B.R. 95 (Bankr. S.D.N.Y. 1998)). 104. Personalty means “[p]ersonal property as distinguished from real property.” Personalty, BLACK’S LAW DICTIONARY (10th ed. 2014). 105. In re GGVXX, Ltd. 130 B.R. at 324 n.7 (citing In re Kearney Hotel Partners, 92 B.R. at 99). 106. Id. at 324–25 n.7 (alternation in original) (emphasis added) (quoting In re Kearney Hotel Partners, 92 B.R. at 99).

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concluded the hotel industry provides the best analogy to model its reasoning on.107 The GGVXX court also found numerous other hotel or motel cases that were used to further support this view.108 However, the GGVXX court also found one contrary view in a hotel-related case: In re Mid-City Hotel Assoc.109 In In re Mid-City Hotel, the Minnesota Bankruptcy Court held that although moneys paid for use of a room in a hotel were not rents, these moneys paid are considered “income, profits, and issues,” which were covered by the creditor’s assignment of rents and leases.110 This court’s rationale was simple. “[A] hotelier cannot host without a hotel.”111 However, after considering this minority view, the GGVXX court went with the clear majority.112 Part of the GGVXX court’s rationale also stemmed from the definition of a license under Arizona case law.113 Arizona case law defined a license as merely a permit or privilege to do what otherwise would be unlawful, while a lease gives the right of possession of the property leased and exclusive use or occupation of it for all purposes not prohibited by its terms.114 The GGVXX court extended this reasoning: it concluded that case law considered any hotel patron as a guest, and all guests are treated accordingly as short-term guests.115 So this court noted that a hotel guest has the right to use a hotel, while the hotelier retains possession and control over the hotel.116 Conversely, a tenant or renter receives exclusive rights to possession and quiet enjoyment in consideration for the rents paid.117 107. Id. at 324–25. 108. See, e.g., id. at 325 (citing In re Ashoka, Inc., 125 B.R. 845, 846 (Bankr. S.D. Fla. 1990)) (revenues from hotel/motel room occupancy are personal property or accounts receivable and not ‘rents’); In re Shore Haven Motor Inn, Inc., 124 B.R. 617, 618 (Bankr. S.D. Fla. 1991)). 109. In re GGVXX, Ltd. 130 B.R. at 325 n.8 (citing In re Mid-City Hotel Assoc., 114 B.R. 634 (Bankr. D. Minn. 1990)). 110. See In re Mid-City Hotel Assoc., 114 B.R. at 644. 111. Id. at 642 n.10. 112. In re GGVXX, Ltd. 130 B.R. at 325. 113. Id. 114. Id. (quoting Tanner Cos. v. Arizona State Land Dep’t, 688 P.2d 1075 (Ariz. Ct. App. 1984)). 115. Id. at 326. 116. Id. (citing Buck v. Del City Apartments, Inc., 431 P.2d 360, 363 (Okla. 1967)). 117. Id. at 325.

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To support this train of thought, the GGVXX court referred to an earlier case: In re Zeeway Corp.118 The GGVXX court looked closely at how the Zeeway panel had concluded that race-course gate receipts were not within the scope of rents: gate receipts were derived from business operations and not from real property rental.119 From this analysis, the Zeeway panel developed its own test for rents: the Zeeway test.120 In the Zeeway test, the panel looked to see where revenues were generated.121 If revenues stem from the business and its operations, then the revenues are considered personal property.122 If revenues stem from the land, then the revenues are considered rents.123 5.

The Holding

In applying Zeeway to GGVXX’s various revenues sources, the court held nearly all revenue forms were derived from business operations and not from real property.124 The exception was rents the golf school paid for teaching on GGVXX’s property.125 As such, GGVXX’s greens fees were not real property revenues; they were “essentially personal property.”126 B.

The Precedent is Upheld

1. Background and Facts: Everett Home Town Ltd. Partnership In Everett Home Town Ltd. Partnership, the debtor was a partnership whose main asset was the Ventana Canyon Golf and Racquet Club (Club).127 Adjacent to the Club was Loew’s Ventana Canyon Resort Hotel (Hotel), which contracted with the Club to allow the Hotel’s guests first priority to play golf at the Club.128 Under their agreement, the Hotel guaranteed a minimum annual revenue stream to the Club, which was mainly greens fees.129 The Club also operated as 118. 119. 120. 121. 122. 123. 124. 125. 126. 127. 128. 129.

Id. at 326 (citing In re Zeeway Corp., 71 B.R. 210 (B.A.P. 9th Cir. 1987)). Id. In re Zeeway Corp., 71 B.R. at 210. Id. at 211–12. Id. Id. In re GGVXX, Ltd., 130 B.R. at 326. Id. Id. Everett Home Town L.P., 146 B.R. 453, 455 (Bankr. D. Ariz. 1992). Id. Id.

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a private club with about 800 members.130 Club members were entitled to certain exclusive rights, primarily being the use of one of the two golf courses.131 However, the Club was not completely private; the public had access to one of the golf courses on an “‘as available basis.’”132 The Club had various income sources. Generally, income came from greens and cart fees paid by members and Hotel guests, and fees related to suite rental, restaurant dining, lessons, equipment rental, and others.133 Here the creditor argued greens fees were rents and under its mortgage with assignment of rents and leases, were income, revenues, issues, or profits from real property.134 The debtor, Everett Hometown Limited Partnership, argued its income sources were not rents; instead, they were fees collected for land use.135 2. Court’s Reasoning While deciding Everett, the court looked to Zeeway for its test and to GGVXX as the precedent-setting case.136 Applying the Zeeway test, the court concluded that the Club’s income was from business operations and not the land.137 Looking to GGVXX, the court determined the income from the Club’s golfing operations, specifically greens fees, stemmed from golf course use and were not rents.138 It made this conclusion after looking at the nonmember use agreements.139 This court concluded greens fees and other membership-related revenues were not proceeds of the membership agreements.140 Reasoning instead that member payments were made pursuant to the membership agreement, which granted the members use of the Club’s golf course and not possession.141

130. 131. 132. 133. 134. 135. 136. 137. 138. 139. 140. 141.

Id. Id. Id. Id. Id. at 458. Id. at 454-56. Id. at 456. Id. Id. at 458. Id. Id. Id.

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3. Holding Based on its findings under the Zeeway test, and consideration given to GGVXX, the court held that the Club’s greens-fees income was not rents.142 Since the Club’s creditor had not properly perfected its lien against greens fees, the creditor’s rights to collect ended when the debtor filed for bankruptcy protection.143 Additionally, the court held that any proceeds from membership accounts, including greens fees, were not rents.144 This was due in part to members paying membership dues in addition to greens fees for exclusive access to one of the Club’s golf courses.145 4. Background and Facts: In re McCann In In re McCann, the debtor owned the Steeplechase Golf Course.146 The creditor lent money to the debtor and secured its interests through a commercial real estate mortgage with assignment of rents and leases.147 When the debtor entered bankruptcy, the creditor argued the assignment of rents and leases granted absolute rights to the income generated from the golf course.148 5. Analysis and Holding When deciding McCann, the court looked to GGVXX to determine if greens fees were rent payments.149 And the court concluded greens fees were not “manifestly” rents.150 Instead, this court concluded greens fees were personal property.151 C.

The Precedent is Reaffirmed and Green-fees Treatment is Extended to Golf Memberships in McKim

Citing the decision in Everett, the court in McKim held one-time golf memberships that were paid to allow unlimited golf at the debtor’s

142. Id. at 456. 143. Id. 144. Id. at 458. 145. Id. 146. In re McCann, 140 B.R. 926, 927 (Bankr. E.D. Mass. 1992). 147. Id. 148. Id. (citing Great West Life Assurance Co. v. Rothman (In re Ventura-Louise Props., 490 F.2d 1141, 1145 (9th Cir. 1974)). 149. Id. at 930. 150. Id. 151. Id.

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golf course constituted prepaid greens fees.152 It reasoned that because members were not charged anything more to play unlimited golf, the debtor golf course had actually collected prepayment for the use of the facilities as well as services provided.153 D.

Bankruptcy Appeals Panel Considers if Greens Fees are Personal Property 1.

Background and Facts: Far East Nat’l Bank

Premier Golf Properties, L.P. owned and operated a golf course in California.154 The primary revenue generated by this golf course was greens fees, range fees, membership fees, golf lesson fees, and cart rental fees.155 In late 2007, Premier borrowed $11,500,000 from Far East National Bank.156 In Far East’s security agreement, the bank took security interests in all assets and the proceeds from those assets.157 Specifically, the security agreement named “[a]ll accounts, . . . all revenues, . . . [all] income, . . . [all] accounts receivable, . . . including without limitation license fees, golf club and membership initiation fees, greens fees, driving range fees, . . . membership fees[,] and dues.”158 Far East also took a security interest in proceeds from these revenue streams, including “profits . . . arising from (i) rentals . . . license[s], concession[s], or other grant of right[s] of possession, use or occupancy . . . .”159 Within Far East’s security agreement, the bank took an assignment of rents and leases in addition to its mortgage.160 After the loan closing, Far East perfected its security interests in all non-real estate collateral by filing a financing statement.161 In mid-2011, Premier filed for Chapter 11 bankruptcy protection.162 Premier continued operating the golf course as a debtor in possession.163 As required under a Chapter 11 bankruptcy, the 152. 153. 154. 2012). 155. 156. 157. 158. 159. 160. 161. 162. 163.

In re McKim, 217 B.R. 97, 98 (Bankr. D. R.I. 1998). Id. Far East Nat’l Bank v. United States Tr., 477 B.R. 767, 769 (B.A.P. 9th Cir. Id. at 770. Id. Id. Id. Id. Id. Id. Id. Id.

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debtor in possession becomes a trustee for its business assets and must segregate pre-bankruptcy assets from post-bankruptcy asset.164 Premier established depository accounts and segregated most of its revenues.165 However, it did not segregate revenues received from greens fees and driving range fees.166 Once aware of this, Far East filed a motion to prohibit Premier’s use of cash being generated by greens fees and driving range fees while under bankruptcy protection.167 Far East then challenged Premier’s use of greens fees and driving range fees for funding its continued operations without regard to Far East’s claim to these funds.168 Premier opposed the creditor claims to its post-bankruptcy fee income, asserting it was not using the fees to fund its ongoing operations.169 Far East replied to this argument by asserting greens fees and driving-range fees were part of the bank’s cash collateral because they were derived from land use and were therefore rents.170 Far East also presented an alternative argument. If greens fees were not rents, then greens fees were still cash collateral because they were generated from personal property use as proceeds or payment intangibles.171 2.

Trial Court Holding

In September 2011, the bankruptcy court denied Far East’s motion to prohibit the use of greens fees as cash collateral in its decision.172 Far East appealed.173 3.

The Issue for Consideration

The sole issue the Bankruptcy Appellate Panel (B.A.P.) considered in this case was “whether the Golf Club’s greens fees and driving range fees are cash collateral[,]”174 thereby reexamining whether greens fees are proceeds from personal property or rents.

164. 11 U.S.C.A. § 1107 (Westlaw 2017). 165. Far East Nat’l Bank, 477 B.R. at 770. 166. Id. 167. Id. 168. Id. 169. Id. 170. Id. 171. Id. at 771. 172. Id. (citing In re Premier Golf Props., L.P., 2011 Bankr. WL 4352003 (Bankr. S.D. Cal. 2011)). 173. Id. 174. Id. at 770 n.1.

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The B.A.P. Analysis

When a business is under Chapter 11 bankruptcy protection, a debtor in possession cannot use cash collateral for continuing operations or other purposes without the creditor’s consent or the court’s approval.175 Cash collateral is cash and cash equivalents, including negotiable instruments and depository accounts in which creditors have interest.176 In general, revenues received after a bankruptcy petition have been filed are not considered cash collateral.177 Accordingly, prebankruptcy creditor security interests will not extend post-bankruptcy, regardless of any “after acquired” clause in the creditor’s security agreement.178 This is done to allow debtors to generate as much money as possible while under bankruptcy protection, and possibly satisfy all creditor claims.179 An exception to this rule allows for pre-bankruptcy security interests to survive bankruptcy if they were properly attached to the collateral and perfected prior to the bankruptcy.180 Therefore, creditor claims would continue collecting proceeds and profits from collateral pledged pre-bankruptcy.181 Similarly, creditor claims in rents, use fees, or occupancy fees continue when they are paid to the debtor.182 In this way, the Bankruptcy Code protects creditor claims in collateral so that a debtor cannot use collateral while under bankruptcy protection.183 The reasoning behind this is to balance the desire to free a debtor of its prebankruptcy obligations with the creditor’s bargained-for security interest in the debtor’s collateral.184 a. Greens Fees as Rents: Creditor Argues Perspective and Intent Must Be Considered Far East argued that when determining if revenue was rent, the court should take into account the source’s income perspective and the 175. 176. 177. 178. 179. 180. 181. 182. 183. 184.

Id. at 771 (citing 11 U.S.C. § 362(c)(2)). Id. (citing 11 U.S.C. § 363(a)). Id. Id. (citing 11 U.S.C. § 552(a)). Id. (citing 11 U.S.C. § 552(a)). Id. at 772 (citing 11 U.S.C. § 552(b)). Id. (citing 11 U.S.C. § 552(b)(2)). Id. (citing 11 U.S.C. § 552(b)(2)). Id. at 771 (citing 11 U.S.C. §§ 552(b)(2), 363(c)(2)). Id.

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bargain struck by the party.185 Far East further argued that the source’s income perspective would be that of Far East’s, as well as “the contractual and economic intent of the parties at the time the loan was made, and the economic consequences on the financing market.”186 Far East also contended that greens fees and driving range fees are “primary components of the value of the [l]and.”187 The Far East B.A.P. was not persuaded by these arguments and looked only to the Zeeway test to determine if the greens fees revenues were rents.188 Applying the Zeeway test, the panel concluded the greens fees and driving range fees were not produced from the land because these fees were used to pay for “planting, seeding, mowing, repositioning holes, watering, fertilizing, and maintaining the golf course.”189 From this, the panel held that greens fees and driving range fees were not rents.190 b. Greens Fees as Intangible Property The panel then turned to Far East’s alternative agreement, that greens fees and driving range fees were proceeds from intangible property.191 After reviewing the definition of proceeds192 and general intangibles,193 the panel concluded that “‘general intangibles’ is a ‘residual’ category of personal property, and includes right[s] that arise under a license and payment intangibles.”194 So, the panel had to consider if greens fees were collected on Premier’s golf course as general intangible property under a license.195 “A license is a contract that authorizes the use of an asset without an accompanying transfer of ownership.”196 A license is not an interest in real estate.197 This panel determined that golf courses licensed land 185. Id. at 773. 186. Id. at 774. 187. Id. 188. Id. at 772–74. 189. Id. at 774. 190. Id. 191. Id. 192. Id. (citing U.C.C. § 9-102(a)(64)). 193. Id. (citing U.C.C. § 9-102(a)(42)). 194. Id. (citing U.C.C. § 9-102(a)(42) cmt. 5(d)). 195. Id. 196. Id. (citing Everex Sys. Inc., v. Cadtrak Corp., 89 F.3d 673, 677 n.2 (9th Cir. 1996)). 197. Id. at 775 (citing In re Wright Group, Inc. 443 B.R. 795, 800 (Bankr. N.D. Ind. 2011)).

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use, and golfers pay for the temporary right to use a golf course.198 So golfers are merely licensees who may use a golf course nonexclusively for a short period of time.199 As a result, proceeds from a license are not subject to an assignment of rents and leases, or a mortgage.200 Instead, proceeds from a license are personal property and are subject to attachment and perfection under the U.C.C.201 Further, Premier argued that the golfers own the licenses, so their asset could not be part of Far East’s security agreement.202 However, this panel rejected that argument concluding that Premier collects greens fees in exchange for a license, which permits golfers to use its golf course.203 In turn, Premier used greens fees to maintain its golf course through its own “labor and . . . operational resources.”204 So, the court held greens fees are not proceeds generated from Far East’s collateral, which was premised upon GGVXX’s hotel-income analysis.205 c. Greens Fees as Payment Intangibles The Far East B.A.P. found that case law regarding greens fees as payment intangibles was sparse.206 The closest analogous case addressing this issue was related to a miniature golf course.207 In that case, the court concluded that a licensee was granted simultaneously as the fee was paid to play miniature golf.208 In this case, cash was paid for playing a round of miniature golf; there were no sales on credit, so there were no account or payment intangibles created.209 Thus, the land itself, the miniature golf course, generated no proceeds.210 It generated money, which does not fall under the description of a general 198. Id. at 776 (citing In re GGVXX, Ltd., 130 B.R. 322, 326 (Bankr. D. Colo. 1991)). 199. Id. (citing In re GGVXX, Ltd., 130 B.R. at 326). 200. Id. 201. Id. (citing U.C.C. § 9-102(a)(64); Sacramento Mansion, Ltd. v. Sacramento Savings & Loan Ass’n (In re Sacramento Mansion, Ltd.), 117 B.R. 592, 607 (Bankr. D. Colo. 1990); & In re GGVXX, Ltd., 130 B.R. at 326)). 202. Id. 203. Id. 204. Id. 205. Id. 206. Id. at 777. 207. Id. (citing In re Wright Group, Inc. 443 B.R. 795, 802–03 (Bankr. N.D. Ind. 2011)). 208. Id. 209. Id. 210. Id.

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intangible.211 Based on this reasoning, the Far East B.A.P. concluded greens fees and driving range fees paid by golfers for the use of a golf course is also “a simultaneous transaction that does not produce monetary obligation.”212 5.

B.A.P.’s Holding

The panel held that greens fees and driving range fees are not rents, proceeds, or profits.213 The Far East B.A.P. concluded that greens fees and driving range fees were not Far East’s cash collateral.214 E. Greens Fees Case-Law Summary From GGVXX to more current cases like Far East, bankruptcy courts have consistently held greens fees do not flow from the land as rents.215 Instead, they are license proceeds.216 This was premised upon analogies made exclusively between the hotel industry and the golf industry.217 From this analogy, greens fees were considered licensee proceeds because golfers were paying for access and use of the golf course, just as hotel guests’ payment for room use.218 In addition to access and use of the golf course, greens fees would be used to maintain the golf course.219 Within this arrangement, the courts did not see the golf course passing a right in the land to the golfer.220 Revisiting the Underlying Premise: Today, Do Hotel Guests Pay Room Rents or Usage Fees? A. Circuit Courts Split on Payments to Hotels as Rents or Fees In its analysis of what constitutes greens fees, the GGVXX court looked to the hotel industry to see how it treated hotel-patron proceeds from room use.221 There it found that a number of circuit courts and 211. Id. (citing In re Wright Group, Inc. 443 B.R. at 805–06). 212. Id. 213. Id. 214. Id. 215. From 1991 in In re GGVXX, Ltd., 130 B.R. 322 (Bankr. D. Colo. 1991) to Far East Nat’l Bank, 477 B.R. 767 in 2012. 216. Far East Nat’l Bank, 477 B.R. at 767. 217. Id. 218. Id. 219. In re GGVXX, Ltd., 130 B.R. 322. 220. Id. 221. Id. at 324–25.

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states have treated hotel-guest proceeds as fees for a license.222 The court concluded that, “a clear majority of these cases turns upon the characterization of a hotel/motel guest as a mere licensee . . . .”223 However, this court found a case that concluded otherwise: In re MidCity Hotel Assoc.224 In Mid-City, the court concluded hotel guests pay neither fees nor rents.225 This court concluded hotel guest payments were “‘income, profits, and issues’” that stem from the land.226 As such, a creditor would rely on an assignment of rents and leases that had been filed with a commercial mortgage to perfect its security interest.227 Since then, a number of other jurisdictions and circuits have held the same.228 This has resulted in a Circuit Court split where the Fifth, Ninth, and Eleventh Circuits now hold hotel guests pay rent to a hotel for their rooms.229 Oddly, the courts in Everett and Far East also held the same.230 B. The Two Faces of Everett Home Town Ltd. Partnership and Far East Nat’l Bank In Everett, Ventana Canyon Golf and Racquet Club (Club) had several forms of income in addition to greens fees.231 The Club maintained fifty guest suites that could be rented out.232 The court in 222. See generally id. 223. In re GGVXX, Ltd., 130 B.R. at 325. 224. Id. (citing In re Mid-City Hotel Assoc., 114 B.R. 634 (Bankr. D. Minn. 1990)). 225. Id. (citing In re Mid-City Hotel Assoc., 114 B.R. 634). 226. In re Mid-City Hotel Assoc., 114 B.R. at 644. 227. In re GGVXX, Ltd., 130 B.R. at 325. 228. E.g., T-H New Orleans v. Fin. Sec. Assurance, Inc., 10 F3d. 1099 (5th Cir. 1993), cert. denied, T-H New Orleans Ltd. P’ship v. Fin. Sec. Assurance, 511 U.S. 1083 (1994), aff’d on reh’g, Fin. Sec. Assurance v. T-H New Orleans Ltd. P’ship (In re T-H New Orleans Ltd. P’ship), 116 F.3d 790 (5th Cir. 1997) (holding hotel revenues are rents); Pavilion Hotel, Inc. v. Valley Nat’l Bank, 180 Ariz. 498 (1994); Fin. Sec. Assurance, Inc. v. Days Cal. Riverside Ltd. P’ship (In re Days Cal. Riverside Ltd. P’ship, 27 F.3d 374 (9th Cir. 1994); In re Churchill Properties VIII Ltd. P’ship, 164 B.R. 607 (Bankr. N.D. Ill. 1994); Fin. Sec. Assurance, Inc. v. Tollman-Hundley Dalton, L.P., 74 F.3d 1120 (11th Cir. 1996); and Chequers Inv. Assoc. v. Hotel Sierra Vista Ltd. P’ship, 112 F3d 429 (9th Cir. 1997). 229. See cases cited supra not229. 230. Everett Home Town L.P., 146 B.R. 453, 457 (Bankr. D. Ariz. 1992); Far East Nat’l Bank v. United States Tr., 477 B.R. 767 (B.A.P. 9th Cir. 2012). 231. Everett Home Town Ltd. P’ship, 146 B.R. at 455. 232. Id.

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Everett analyzed the suite income separately.233 The court looked to the Arizona U.C.C.234 and concluded hotel or suite revenues were not accounts.235 The court concluded the Club’s “suite revenues are essentially the same as revenues earned by hotels.”236 This court then determined “that hotel revenues were rents.”237 Immediately after this determination, this court re-analyzed the legal standing of suite income, holding it was comprised of rents because it was the same form or income earned by hotels.238 But wait! In its reasoning, the GGVXX court concluded the opposite. The GGVXX court held that innkeepers were not paid rents.239 The court in Everett held otherwise: “this [c]ourt concludes that hotel revenues are rents.”240 In doing so, the court failed to be consistent with its treatment of income derived from land. Thus, using the Everett court’s train of thought and applying it through analogy, as was done in GGVXX, greens fees are proceeds from the occupation of land, including rents, income, profits, or issues. This inconsistency was recognized by the Far East B.A.P. during its analysis.241 The Far East B.A.P. referred back to GGVXX. 242 Far East B.A.P. applied the Zeeway test to its facts.243 Under the Zeeway test, the Far East B.A.P. determined that when real property generates income based on occupancy, this income is rent; whereas, real property generating income based on a service is not rent.244 The Far East B.A.P. used this reasoning to conclude hotel guests pay rents for “shelter or occupancy” and golf course greens are paid for entertainment use. 245 By doing so, this panel held that “the bankruptcy court did not err in determining that . . . greens fees . . . were not rents.”246 233. 234. 235. 236. 237. 238. 239. 240. 241. 2012). 242. 243. 244. 245. 246.

Id. at 456. Id. (citing A.R.S. § 47-9106). Id. Id. at 457. Id. at 458. Id. In re GGVXX, Ltd., 130 B.R. 322, 325 (Bankr. D. Colo. 1991) Everett Home Town L.P., 146 B.R. 453, 458 (Bankr. D. Ariz. 1992) Far East Nat’l Bank v. United States Tr., 477 B.R. 767, 773 (B.A.P. 9th Cir. Id. at 773–74. Id. at 773 Id. Id. at 774–75. Id. at 775.

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Courts have consistently held that golfers are the same as hotel guests.247 This is the foundation for the GGVXX court’s analysis. However, this analysis breaks down when there are two treatments for hotel-guest revenues. If there is more than one way to treat hotel-guest revenues, then the analogy between hotels and golf courses fails, since it only recognizes one of the two revenue treatments. Therefore, courts need to go back to the drawing board and seek out a new analogous industry to compare golf courses with—one that does not have such conflicting treatment of revenue like hotels do. C. The Times, They Are A-Changin . . .248 Courts began to recognize the hotel-revenue treatment inconsistency and called it into question.249 Recognizing the problems with the circuit courts treating hotel income differently, Congress revised the Bankruptcy Code in 1994 and addressed this issue head on.250 Part of the 1994 revision was directed at overruling case law that supported the inconsistency.251 However, the revision’s scope was limited; it only addressed hotels.252 As such, the greens fees controversy continued.253 Arguments have been made to further modernize the treatment of rents.254 But until legislative modernization occurs, courts must create a new paradigm for greens fees so the treatment is consistent with the analogies used to establish it. Under this new paradigm, the court needs to move away from the Zeeway test for rents and move toward a new test that addresses all forms of income derived from a golf course. The court must consider more than whether income stems from a business or from the land. The court must shift its focus to the relationship between the golfer and the 247. Everett Home Town L.P., 146 B.R. 453 (Bankr. D. Ariz. 1992); Far E. Nat’l Bank, 477 B.R. 767. 248. BOB DYLAN, THE TIMES THEY ARE A-CHANGIN’ (Columbia Records 1964). 249. In re Churchill Properties VIII Ltd. P’ship, 164 B.R. 607, 608 (Bankr. N.D. Ill. 1994) (“Put more simply, are the hotel revenues ‘rents’ or are they ‘accounts?’ . . . Indeed, the totality of case law on this issue might be described as an unfathomable quagmire.”). 250. 11 U.S.C. § 553(b)(2) (amended 1994). 251. 5-552 COLLIER ON BANKRUPTCY P 552.03 (2015), Lexis Advance (citing Bankruptcy Reform Act of 1994, Pub. L. No. 103-394 (1994)); R. Wilson Freyermuth, Modernizing Security in Rents: The New Uniform Assignment of Rents Act, 71 MO. L. REV. 1, 14 (2006). 252. Freyermuth, supra note 252. 253. Id. at 14 n.1. 254. Id.

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golf course. Consideration must be given to the golfer’s affiliation with the course and to the terms of play. Of course, this new paradigm must be based on established case law. And that case law must be from an industry that is like golf courses. The hotel industry is not the sole industry the courts can look to for analogies. There are numerous other industries with established case law for courts to consider including marinas, trailer parks, recreational vehicle parks, and parking garages. Alternative, Analogous Industries for Comparison A. Marinas 1. Similarities between marinas and golf courses In many ways, marinas are like golf courses—more so than hotels. In North America, both marinas and golf courses are seasonal businesses tied to warmer weather.255 Both have regular members and transient users who use services irregularly.256 Both are tied to

255. Generally speaking, states in the northern United States with extensive coastlines and golf courses, such as Michigan, have much shorter boating and golfing seasons than states in the south with similar characteristics, such as Florida. Cf. WEATHER.COM, WINTER NEWS, https://weather.com/storms/winter/news/firstsnow-average-date (last visited Feb. 2, 2017) (stating the earliest snow fall in Detroit, Michigan, was on Oct. 12, 2006 and the average first snow fall is on Nov. 5., which together herald the end of the boating and golfing seasons because it is far too cold; whereas, there are no statistic supplied for first snow fall or average snow fall for Florida, which implies that golfing and boating would not generally be adversely impacted by winter weather); cf. N.O.A.A. NATIONAL CENTERS FOR ENVIRONMENTAL INFORMATION, DATA TOOLS: 1981-2010 NORMALS, https://www.ncdc.noaa.gov/cdo-web/datatools/normals (last visited Feb. 2, 2017) (stating the average normal temperature from 1981 to 2010 for Detroit, Michigan, was 71.7 ºF in the summer, and the average temperature for the spring was 48.7 ºF, for the autumn was 52.8 ºF, and for the winter was 27.9 ºF, which supports that it would be too cold in the late autumn, winter, and early spring for golfing and boating in Michigan; whereas, for Miami, Florida, during the same period, average normal temperature was 83.7 ºF in the summer, and the average temperature for the spring was 76.1 ºF, for the autumn was 79.2 ºF, and the average for the winter was 69.6 ºF, which would support that golfing and boating could be enjoyed year round). 256. Golf courses have single-round players, season-long players, and long-term members. See In re GGVXX, Ltd., 130 B.R. 322 (Bankr. D. Colo. 1991). And, similarly, marinas provide slip rentals for the weekend, for the season, or for longterm members. See In re Northport Marina Assoc., 136 B.R. 911 (Bankr. E.D.N.Y. 1992).

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recreation. Typically, both provide similar goods and services for consumption. Golf courses provide leisure and recreation through golfing. They generally have at least one course to play on, have a driving range for practice, and provide carts while golfing.257 Most courses sell food and drinks through a restaurant, bar, snack wagon, or snack shack.258 Some provide amenities like caddies to enhance play, locker rooms, and showers for grooming after playing golf, as well as storage for clubs while not in use.259 Further, golfing is a seasonal sport in North America governed by the onset of winter. Comparatively, marinas also provide leisure and recreation through boating. They generally have a boat launch, numerous boat slips for use, have bait or tackle shops for fishermen, and sell fuel.260 Most have repair facilities and sell food and drinks through a restaurant or a bar.261 Some have amenities including locker rooms and showers or a bait shop selling tackle, bait, and boating supplies.262 Marinas are also seasonal because boating in North America is governed by the onset of winter. Some marinas provide off-season storage services when boats are not in use.263 The strongest similarity is that both require land to operate because without land, neither a golf course nor a marina could exist.264 With so many similarities, marinas are analogous to golf courses.

257. E.g., In re GGVXX, Ltd., 130 B.R. 322. 258. Id. 259. Id. 260. E.g., In re Northport Marina Assoc., 136 B.R. 911. 261. Id. 262. Id. 263. Id. 264. That is not to say the current analogous industry, hotels, does not need land. For the most part, it does. However, some hotels do not. See, e.g., Hotels, UNIQ HOTELS, http://www.uniqhotels.com/free-spirit-spheres (last visited Feb. 2, 2017) (advertising capsule-treehouse hotels in Vancouver, British Columbia) and Home, JULESâ&#x20AC;&#x2122; UNDERSEA LODGE, http://jul.com/ (last visited Feb. 2, 2017) (advertising an undersea lodge near Key Largo, Florida). Cf. Cool Rooms, ICEHOTEL, http://www.icehotel.com/accommodation/winter/ (last visited Feb. 2, 2017) (advertising hotels made of ice available for rent during winter only) and Accommodations: Snow Igloos, KAKSLAUTTANEN, http://www.kakslauttanen. fi/en/accommodation/#snow-igloos (last visited Feb. 2, 2017) (advertising hotels made of snow available for rent during winter only). This cannot be said of marinas and golf courses though. Marinas and golf courses require land.

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2. Marina Case Law a. Marina Slip Fees are Rents (i) In re Hamlin’s Joint Venture In In re Hamlin’s Joint Venture, the court held a real estate development in Florida included marina-generated rents. 265 Under the creditor’s mortgage with assignment of rents and leases, the income generated by the marina was assignable to a creditor post-bankruptcy without a receiver.266 (ii) In re Harbour Pointe Ltd. Partnership In In re Harbour Pointe Ltd. Partnership, the debtor owned a marina in Virginia.267 The creditor claimed income generated by the marina under its assignment of rents and leases in a Bankruptcy action.268 The creditor made this claim because the value of the collateral was insufficient to pay the amount due to the creditor.269 This court concluded the creditor could seize the marina’s post-bankruptcy income, but the marina’s pre-bankruptcy income could not be seized. In doing so, this court determined marina income was “simply assumed to be rents.”270 (iii) Additional Court Holdings That Marina Slips are Rented Subsequent to In re Northport Marina Assoc., in both published and unpublished cases, courts continue to hold that marinas rent slips to boaters.271 As recently as 2009, case law supporting this view has not been invalidated.272

265. In re Hamlin’s Landing Joint Venture, 77 B.R. 916, 919–20 (Bankr. M.D. Fla. 1987). 266. Id. 267. In re Harbour Pointe Ltd. P’ship, 132 B.R. 501, 502 (Bankr. D.D.C. 1991). 268. Id. 269. Id. at 502. 270. Id. at 502–03. 271. In re Boston Harbor Marina Co., 157 B.R. 726, 736 (Bankr. D. Mass. 1993) (stating the debtor marina collected rents); In re Kkemko, Inc., 181 B.R. 47, 51 (Bankr. S.D. Ohio 1995) (stating marinas rent moorings among the other services provided); and In re Easthaven Marina Group, L.L.C., 2009 WL 500847, 2 (Bankr. E.D.N.C. 2009) (stating “revenue from boat slip rental fees is rent from property[,]” and these rents are to be put in escrow by order of this court). 272. In re Easthaven Marina Group, L.L.C., 2009 WL at 2.

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b. Marina Income Segregated into Usage Fees and Rents (i) In re Northport Marina Assoc. Background and Facts After In re Hamlin’s Joint Venture and In re Harbour Pointe Ltd. Partnership, the court dug deeper into marina income and concluded it should be categorized based on time. The Northport Marina court held marina income could be rents from boaters using slips for a season, license fees from boaters using slips short-term, and accounts from boaters who stored their boats during the off-season.273 In Northport Marina, the debtor (Northport Marina Assoc.) owned and operated a marina and recreational complex in New York.274 The marina was made up of floating docks, sun decks, tennis courts, a swimming pool, various buildings, and 310 boat slips.275 The property also included a retail complex, a boat display, a storage area, and a parking lot.276 Plans were in place for further expansion that would include “a lounge, exercise rooms, cabanas, a sauna, snack bar, locker rooms[,] and storage areas.”277 Initially, the boat slips were rented to individual boaters, but the developer’s intention was to convert the boat slips to “dockominiums,” which had not happened at the time of the bankruptcy filing.278 The marina rented slips to casual, transient, or long-term boaters.279 Longterm boaters could rent space through two programs: a winter storage agreement or a slip rental membership.280 Under the winter storage agreement, a boater could store a boat from November 15 to April 1, either in wet or dry storage.281 Boats in dry storage could be inside or outside.282 The marina reserved the right to place any stored boat anywhere and could move it at any time within its facility.283 About 800 boats could be stored wet—in the water— 273. 1992). 274. 275. 276. 277. 278. 279. 280. 281. 282. 283.

In re Northport Marina Assoc., 136 B.R. 911, 915–16 (Bankr. E.D.N.Y. Id. at 912. Id. Id. Id. Id. Id. at 914–15. Id. at 914. Id. Id. Id.

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during the winter because the marina had a bubbler system in place to keep ice from forming.284 Under the slip rental membership, a boater could moor a boat in a slip from May 1 to October 31.285 Just as in the winter storage agreement, the marina reserved the right to place a boat in any slip of its choosing.286 The marina’s contract clearly expressed that boat storage or slip rental did not create an exclusive right in any specific boatslip.287 The marina also provided other services to boaters such as security services, assistance with loading and unloading boats, boat maintenance, boat repairs, and boat master or dock attendant services.288 The marina also generated income from renting slips to individuals or entire boating clubs for short-term stays—a night or two.289 The debtor borrowed nearly $19,750,000 from the creditor (Citibank).290 The creditor obtained security interests through a commercial real-estate mortgage with an assignment of rents.291 When the debtor filed for Chapter 11 bankruptcy protection, the creditor argued slip income was rent; whereas, the debtor argued slip income was not rent.292 (ii) In re Northport Marina Assoc. Reasoning The court first referenced numerous cases, mostly related to hotels and campgrounds, to analyze this matter.293 This court looked at how many jurisdictions held that hotel guests pay fees for access and room use.294 Coincidentally, this court also compared greens fees in GGVXX to marina income.295 The court recognized that not all jurisdictions held that hotel guests paid fees for use of a room and that a minority of jurisdictions held that revenues from real property occupancy were

284. 285. 286. 287. 288. 289. 290. 291. 292. 293. 294. 295.

Id. Id. Id. Id. Id. Id. Id. at 912. Id. at 912–13. Id. at 915. See generally id. Id. at 916. Id.

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rents.296 Further, the court considered Harbour Pointe where the court determined that the marina’s income was “simply assumed to be rents.”297 (iii) In re Northport Marina Assoc. Holding The Northport Marina court rejected analogies to other industries, including hotels, by creating its own income treatment scheme, which modified the prior precedent. The court held that income generated by the transient boaters for short stays were accounts or use fees.298 This court also held that income generated under the slip-rental membership agreements, lasting from May 1 to October 31, were rents.299 Lastly, this court determined that income generated from winter storage was accounts.300 c. Marina Law Summary In short, boaters pay marinas rents for their slips.301 In a later case, the court concluded the same after considering other analogous industries—including golf courses.302 And the court further delineated marina income streams and held that boaters paid license fees for short-term slip use.303 Boaters paid rents when they committed to a long-term—six-months or more—slip-rental agreement.304 On the other hand, boaters paid on accounts when storing boats over winter.305 B. Trailer and Recreational Vehicle Parks 1. Similarities between golf courses, trailers, and recreational vehicle (RV) parks Arguably, there are some similarities between golf courses, trailers, and recreational vehicle parks. Generally, all three are 296. Id. (citing In re S.F. Drake Hotel Assoc., 131 B.R. 156 (Bankr. N.D. Cal. 1991)). 297. In re Harbour Pointe Ltd. P’ship, 132 B.R. 501, 502–03 (Bankr. D.D.C. 1991). 298. In re Northport Marina Assoc., 136 B.R. at 916. 299. Id. at 915–16. 300. Id. 301. In re Hamlin’s Landing Joint Venture, 77 B.R. 916 (Bankr. M.D. Fla. 1987); In re Harbour Pointe Ltd. P’ship, 132 B.R. 501. 302. In re Northport Marina Assoc., 136 B.R. 916. 303. Id. 304. Id. 305. JULIAN B. MCDONNELL & JAMES CHARLES SMITH, SECURED TRANSACTIONS UNDER THE UCC § 16.07 (2015).

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seasonal businesses in North America.306 All have transient, shortterm, and long-term users.307 All typically offer additional services or amenities.308 Trailer and RV parks usually have a common area for gathering, outside play areas for children, swimming facilities, and food services.309 As such, trailer and RV parks are like golf courses, but are not as similar as marinas are. 2. Trailer and Recreational Vehicle Park Case Law Case law in this area is very limited. In In re Johnson, the B.A.P. concluded trailer park income were rents.310 Similarly, in In re Oak Glen R-Vee, the court held that recreational-vehicle park income were rents.311 As such, RV and trailer park users pay rents. C. Car-parking Garages 1. Similarities Between Parking Garages and Golf Courses There are fewer similarities between parking garages and golf courses. Both can have transient, short-term, or long-term customers. Both rely on the land to generate income. But parking garages typically are a single service provider; they do not provide additional services or amenities. Also, parking garage use is not seasonal. Thus, this industry minimally compares to golf courses, unlike marinas. 306. See, e.g., Wayne County Fairgrounds RV Park, GOOD SAM CAMPING, http://www.goodsamcamping.com/travel/campgroundsandrvparks/generalinfo.aspx ?cgid=200000236 (last visited Feb. 2, 2017) (stating that an R.V. park that is 29 miles west of Detroit, Michigan, is open from April 1st to October 31st annually); Larry & Penny Thompson Campground, GOOD SAM CAMPING, http://www. goodsamcamping.com/travel/campgroundsandrvparks/generalinfo.aspx?cgid=7900 00019 (last visited Feb. 2, 2017) (stating that an R.V. park that is 25 west of Miami, Florida, is open all year round); Whereas temperature and weather for Detroit, Michigan, would not be conducive to year-round R.V. camping, and that the temperature and weather for Miami, Florida, would be conducive to year-round R.V. camping. 307. See, e.g., Larry & Penny Thompson Campground, MIAMIDADE.GOV, http://www.miamidade.gov/parks/larry-penny.asp (last visited Feb. 2, 2017) (stating this R.V. park has daily, weekly, and monthly rates with advanced seasonal reservations available). 308. See id. 309. See, e.g., supra note 307. 310. In re Johnson, 62 B.R. 24, 26 (B.A.P. 9th Cir. 1986). 311. In re Santa Fe Fed. Savings & Loan Assâ&#x20AC;&#x2122;n v. Oak Glen R-Vee (In re Oak Glen R-Vee), 8 B.R. 213, 215â&#x20AC;&#x201C;16 (Bankr. C.D. Cal. 1981).

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2. Parking Garages Case Law Parking-garage case law is also very limited. In In re Ashford Apartments, Ltd. Partnership, the principal issue was whether carparking-garage income was rents.312 This court found that garage income was rents.313 Similarly, in In re Griswold Building, L.L.C., the parties stipulated to parking-garage income as rents because rents are to paid to park cars in a garage.314 D. Car, Trailers, and Recreational Vehicles Parking Summary When considered together, the courts have consistently held that money paid for land used by car, trailer, or RV customers is considered rents and not license fees for use. Worth noting is that the land uses were not for shelter because other personal property—cars, trailers, or recreational vehicles—provided the actual shelter. Providing shelter was the key factor in the Far East B.A.P. reasoning that determined greens fees were not rents.315 The Far East B.A.P. stressed in its holding that golf course fee income was not rent because it did not stem from the “usage of real property as shelter or occupancy.”316 So, in regard to industries that are not hotels but are analogous to golf courses, the courts have recognized that shelter is not a requirement in the determination of rents. E. A New Analogy and a New Paradigm from a New Industry The similarities between the golf courses and marina are strong and in many ways, much stronger than the similarities between golf courses and hotels. Other industries, however, do not share these strong similarities. Case law governing marina income is consistent and well established. Courts have contemplated greens fees when considering treatment of marina income.317 Logically, marinas should be strongly considered as a replacement analogous industry for golf courses. As such, greens fees should be compared to marina income,

312. In re Ashford Apartments, Ltd. P’ship, 132 B.R. 217, 218 (Bankr. D. Mass. 1991). 313. Id. at 218. 314. In re Griswold Building, L.L.C., 420 B.R. 666, 700 (Bankr. E.D Mich. 2009). 315. Far East Nat’l Bank v. United States Tr., 477 B.R. 767, 774–75 (B.A.P. 9th Cir. 2012) (distinguishing greens fees from hotels that provide shelter). 316. Id. 317. In re Northport Marina Assoc., 136 B.R. 911, 915 (Bankr. E.D.N.Y. 1992).

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and the treatment of greens fees should parallel the treatment of marina income. F.

Devil’s Advocate View: Are Marina’s Really a Better Analogous Industry?

Critics will argue that marina case law is more limited than hotel case law, which is a shortcoming. And, when case law is limited, critics will further argue that it is not well-established and well-tested through the appeals process. Although marina case law is more limited than hotel case law, the marina cases have not been challenged on appeals for good reasons: they are consistent in their decisions and were established through sound reasoning. Since 1992, no challenges have been made in the B.A.P. in marina cases over slip rental. Likely, this is the result of thorough reasoning and logical holdings in marina cases. In In re Hamlin’s Landing Joint Venture and In re Harbour Pointe Ltd. Partnership, the courts addressed the issue of slip rentals in their analysis.318 The courts used common-sense, deductive reasoning to come to their conclusions, which went unchallenged. Then, the court further differentiated slip income and logically classified it based on time in Northport Marina.319 There was an appeal in Northport Marina;320 however, it was not concerning the court’s marina income holding. This decision went unchallenged too. Opportunities were present for appeals in marina case law, and the parties chose not to appeal.321 The most reasonable explanation is that the holdings were sound, and a successful challenge would be difficult, making this wellestablished case law without the need for appeals. So, of the many options available, marina law is the best analogous industry to golf courses because marinas are very similar and the law is well established.

318. In re Hamlin’s Landing Joint Venture, 77 B.R. 916 (Bankr. M.D. Fla. 1987); In re Harbour Pointe Ltd. P’ship, 132 B.R. 501 (Bankr. D.D.C. 1991). 319. In re Northport Marina Assoc., 136 B.R. at 914–16. 320. Northport Marina Assoc. v. J. M. Cashman, Inc., 146 B.R. 60 (Bankr. E.D.N.Y. 1992) (adversarial proceedings between Northport Marina Assoc. and a contractor over a mechanic’s lien foreclosure). 321. There is no record of subsequent appeals for the marina cases cited in supra note 312 and note 313.

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III. CONCLUSION New Treatment for Golf-Course Greens Fees Based on Marina Case Law A. A Brave New World 322 Of the many analogous industries, courts should adopt marina case law reasoning and apply it to golf course greens fees because marinas have the most in common with golf courses when compared to other industries. Marina case law is consistent and established. And courts have thoroughly analyzed slip rental, which is very akin to greens fees. In its analysis of marina fee income, the Northport Marina court presented three treatments to income:323 (1) transient boaters paid the marina fees akin to license fees for short-term slip use324 (2) long-term boaters paid rents for the season-long slip access,325 and (3) boaters, who stored their boats with the marina, paid storage fees on service accounts.326 Courts should adopt and apply this reasoning to greens feesâ&#x20AC;&#x201D; transient golfers pay greens fees akin to license fees for short-term golf course use and access, long-term golf members pay greens fees that are income, profits, rents, or issues stemming from the golf course, and golfers, who store their possessions or use other amenities that enhance the golfing experience, pay fees on service accounts. 1. Greens Fees Classifications a. Greens Fees Paid for Long-Term Golfing Relationships with a Golf Course In situations where a golfer is making a long-term commitment to a golf course,327 the greens fees should align with what a boater would pay for seasonal slip rental. Therefore, when a golfer contracts for a season or more, the greens fees that the golfer pays would then be considered rents.328 Because seasons in North America can vary based 322. ALDOUS HUXLEY, BRAVE NEW WORLD (1932). 323. In re Northport Marina Assoc., 136 B.R. at 914â&#x20AC;&#x201C;16. 324. Id. 325. Id. 326. Id. 327. Examples are lifetime membership, equity ownership, or season-long membership. 328. Greens fees could be rents, income, profits, or issues stemming from land. Rents will be used here to represent all these forms of revenues.

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on latitude, a threshold term needs to be defined. In these instances, using the Northport Marina threshold term of six months or greater329 would be appropriate. So, for members whose golf-course membership runs for a six-month season or longer, that member’s greens fees would be considered rents. Similarly, where a golf membership includes some sort of possessory interest in the golf course,330 greens fees paid by these members would be rents because of their long-term commitment. b. Greens Fees Paid for Short-Term Golfing Relationships with a Golf Course Conversely, for members whose contractual membership runs for less than a six-month season, those members’ greens fees would be considered license income and not rent. Further, for casual golfers who pay then play, so that their time commitment is for a golf round, those golfer’s greens fees would also be considered license income just as transient boater slip fees were akin to fees for license. c. Amenities Payments For members whose greens fees provide them additional benefits,331 those benefits would not directly tie to the land use; therefore, they would not be income, profits, rents, or issues stemming from the land. These amenities are benefits that enhance the golfing experience and are fees for services rendered. Amenity payments would then be accounts just as boat storage services at marinas were considered account payments. d. Treatment of Comingled Greens Fees with Amenity Payments Should golf courses commingle long-term member benefits332 with greens fees into a single payment? The “but-for” test is best to determine what part of the fee is stemming from the golf course and 329. In re Northport Marina Assoc., 136 B.R. at 915–16. 330. For example, Red Hawk Golf Club of Tawas City, Michigan, offered founding club members an ownership stake in the club and course that also granted unlimited, lifetime play for a one-time fee. Similarly, Garland Lodge and Resort of Lewiston, Michigan, offered golfers lifetime memberships in conjunction with the purchase of vacant lots adjacent to one of its four golf courses. 331. Examples are valet parking, golf club pick up or drop off, or use of a caddie. 332. Examples are greens fees, driving range fees, cart rentals, use of a caddie, valet parking, golf club pick up or drop off, and other amenities such as locker rooms, showers, and club storage.

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what part does not. Here, under the “but-for” test, income derives from land— the golf course.333 For instance, greens fees for playing a round of golf would be rents for a long-term member because a long-term member could not play a round of golf but for the golf course. Or greens fees that provide access to a driving range would be rents for a long-term member because a long-term member could not practice and warm up but for the golf course’s driving range. Conversely, long-term member greens fees that include use of a caddie or use of a golf cart would not be rents because it would fail the “but-for” test for land.334 These services are not provided but for the golf course; these services are provided as amenities to enhance or improve the golfing experience. As such, they would be reclassified accordingly. In summary, where greens fees provide a long-term member golfer with anything more than just a round of golf, the courts should use a “but-for-the-golf-course” test to determine if the income generated was directly tied to the land—the golf course. When long-termmember greens fees are tied to the golf course, it would be rents. To the extent that member greens fees are not directly tied to the land, that income would not be considered rents. Creditor Impact A. Real Estate Secured Lenders When a real-estate secured lender extends credit to a golf course and relies on greens fees for repayment, the creditor should perfect its interests through a properly executed security agreement referencing greens fees, a U.C.C. filing statement also referencing greens fees, a commercial real mortgage, and an assignment of rents and leases referencing greens fees. As such, creditors will be perfected under either treatment of greens fees. Where the U.C.C. governs greens fees as accounts, license fees, or personal property, the creditor would be attached and perfected. Where common law governs greens fees as rents, income, profits, or issues from land under common law, the creditor would receive an assignment and be secured. 333. The court’s reasoning from In re Mid-City Hotel Assoc. concludes but for a hotel, a hotelier cannot host. In re Mid-City Hotel Assoc., 114 B.R. 634, at 642 n.10 (Bankr. D. Minn. 1990). Ergo, but for the golf course, a golfer cannot play golf. 334. But for the caddie, the golfer’s clubs would not be transported. Therefore, caddie services are fees paid. But for the golf cart, the golfer and clubs would not travel the course unless the golfer walked. Therefore, cart usage would fall under rents for personal property but not greens fees as rents.

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B. Asset-Based Lenders When an asset secured creditor extends credit and relies on greens fees, the creditor should perfect its interests through a properly executed security agreement referencing greens fees and a U.C.C. filing statement also referencing greens fees. 335 However, under the proposed changes, asset-based lenders would be exposed to losses against long-term greens fees treated as rents, income, profits, and issues stemming from land. Asset-based creditors should then limit their exposure to only the greens fees that would be considered accounts under the U.C.C., which would result in smaller extensions of credit based only on accounts-receivable greens fees. Golf Course Impact Golf course management would have to consult with their accountants to determine the impact, if any, on balance sheets and income statements. Likely, it may require some additional income segregation and delineation so a golf courseâ&#x20AC;&#x2122;s balance sheet would accurately reflect account-receivable and rent-receivable greens fees. However, this would only apply when the debtor golf course is insolvent or under bankruptcy protection. When drafting membership agreements, golf course management need to be aware of the commingling of greens fees with fees for other services and amenities. If commingling occurs, management would need to be prepared to segregate the greens fees in anticipation of creditor challenges during insolvency or default. Summary Conclusion To foster loans to golf courses, creditors must know what greens fees are to properly document their loans and attach and perfect their security interests in collateral. For this, courts must determine what greens fees are based on consistent treatment of analogous income from other industries. The hotel industry is not a good analogous industry because of the circuit court split on guest-room-payment treatment and the resulting Congressional changes to the Bankruptcy Code. So it should be abandoned. While other industries are similar, marinas are most like golf courses. Therefore, marinas should be the analogous industry for 335. JULIAN B. MCDONNELL & JAMES CHARLES SMITH, SECURED TRANSACTIONS UNDER THE UCC Â§ 16.07 (2015).

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greens fees instead of hotels. Marina case law is established, consistent, and narrowly defines income streams. Further, greens fees should be segregated and treated differently based on considerations to both time and the golfer’s relationship to the golf course. Long-term members’ greens fees should be rents, income, profits, or issues stemming from the golf course. Short-term members’ or transient golfers’ greens fees should be license fees. All income related to golf course amenities should be accounts when greens fees pay for those amenities.

A PRIMER ON MICHIGAN FIREARMS REGULATION, UNIVERSITY CAMPUSES, AND CONSTITUTIONAL INTERPRETATION JASON B. PUSCAS1 ABSTRACT This article explores the relationship between the unique constitutional autonomy enjoyed by Michigan's universities and the legislative authority to preempt the regulation of firearms in the state. Following the landmark cases of Heller and McDonald, the article will analyze the modern interpretation of constitutional firearm rights and how those rights are tempered by current and potential statutory construction as well as competing public policy priorities at the state and federal level.

1. Jason Puscas is the Director of Government Relations for the Detroit Regional Chamber, focusing on public policy issues related to tax, financial services, economic development, and the environment. Previous experience includes time in the Michigan House of Representatives and various political campaigns across the state. The author holds a B.S. from Grand Valley State University, and currently attends the Western Michigan University Thomas M. Cooley Law School. The author resides in Grand Ledge, Michigan.

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TABLE OF CONTENTS I.INTRODUCTION ........................................................................ 203 A. ISSUE OVERVIEW .......................................................... 203 B. QUESTIONS PRESENTED ............................................. 203 II.BACKGROUND......................................................................... 204 A. AMERICA’S CONSTITUTION AND THE RIGHT TO CARRY ............................................................................. 204 B. MICHIGAN’S CONSTITUTION AND THE RIGHT TO CARRY ............................................................................. 210 C. MICHIGAN UNIVERSITIES ........................................... 211 D. OVERVIEW: FIREARMS AND UNIVERSITY CAMPUSES ................................................... 214 III.CURRENT MICHIGAN FIREARM LAW AND UNIVERSITY AUTONOMY .......................................................................... 218 A. STATE PREEMPTION .................................................... 218 B. UNIVERSITY AS A CONSTITUTIONAL CORPORATION .............................................................. 220 C. EXCEPTIONS TO UNIVERSITY AUTONOMY IN MICHIGAN...................................................................... 221 D. SIMILAR CASE LAW NATIONWIDE ............................. 224 IV.ANALYSIS: APPLYING THE LAW TO THE QUESTIONS PRESENTED .......................................................................... 225 A. MICHIGAN’S UNIVERSITIES HAVE THE RIGHT TO PROHIBIT THE CARRYING OF FIREARMS ON THEIR CAMPUSES UNDER CURRENT MICHIGAN LAW ...... 226 B. MICHIGAN’S LEGISLATURE LIKELY HAS THE AUTHORITY, ALBEIT LIMITED, TO IMPACT THE ABILITY OF A UNIVERSITY TO REGULATE FIREARMS THROUGH LEGISLATION ............................................ 227 V.CONCLUSION ........................................................................... 228

2017]A PRIMER ON MICHIGAN FIREARMS REGULATION 203 I.

INTRODUCTION

ISSUE OVERVIEW

Among the enumerated, fundamental principles etched into our Constitution, the Second Amendment guarantees the right to possess and carry firearms. This pillar of American independence is, however, nonetheless tempered by other public policy priorities. In the centuries since the momentous autumn of 1787, various limits have been imposed in an effort to create a balanced and manageable Second Amendment framework. The individual states have followed their nation’s lead, regulating a litany of different issues related to firearms: firearm type, firearm use, who can possess a firearm, and when and where firearms may be carried. Prevalent among these issues include the right to carry a firearm on the campuses of public universities. Michigan’s substantial recognition of the right to carry, in combination with the elevated constitutional status of its public universities, blend together to paint a unique and ever-evolving landscape to debate this hotly contested issue. B.

QUESTIONS PRESENTED

This Article explores two significant questions relevant to the powers of these divergent interests in Michigan. First, does a public university have the constitutional and statutory authority to prohibit the carrying of firearms on its property, even if contrary or in addition to current firearms statutes? Second, if so, does Michigan’s legislature have the constitutional authority to amend state statute and preempt universities from enacting such a regulation or ordinance? Part II examines the history of gun rights in the United States and Michigan, as well as the history of Michigan’s universities and the development of their constitutional autonomy. Part III examines current Michigan law to provide a foundation for the questions presented in Part I, weighing the constitutional autonomy universities enjoy against the authority of the legislature and the provisions of the U.S. Constitution. This examination will include comparisons with other recent state decisions in addition to challenging the influence of those cases in Michigan. It will also recognize exceptions to autonomy found elsewhere in Michigan case law, such as the State’s police power and the desire for uniformity in the application of statutes across

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the state, but, once again, challenge the extent of influence these exceptions hold. Part IV analyzes the information provided in an attempt to answer the questions presented. Michigan’s case law suggests that universities have the authority to limit the carrying of firearms on their campuses; other public policy priorities, however, likely limit that ability. Part V summarizes these suggestions in a succinct conclusion and attempts to glimpse at the immediate future of the issue. II. A.

BACKGROUND

AMERICA’S CONSTITUTION AND THE RIGHT TO CARRY

Since its inception, the right to possess and carry a firearm has been engrained in the framework of America’s Constitution.2 Subsequently, “the framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary

2. U.S. CONST. amend. II (“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”). Although simple in language, the Second Amendment has been subject to disparately contradictory interpretations. Especially relevant to this article is the term “to . . . bear Arms.” The Supreme Court recently defined the term’s natural meaning as “[t]o wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.” District of Columbia v. Heller, 554 U.S. 570, 584 (2008) (citing Muscarello v. United States, 524 U.S. 125, 143 (1998) (Ginsberg, R.B., dissenting)). The Heller Court used that definition as part of its interpretation that “[to] bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia as a broader provision which recognized “the natural right of defense of one’s person or house.” Id. (internal quotation omitted).

2017]A PRIMER ON MICHIGAN FIREARMS REGULATION 205 to our system of ordered liberty,”3 recognized as a pre-existing truth4 that “shall not be infringed”5 by the federal government or the several states.6 These Second Amendment rights are not, however, considered unlimited, never intended as a “right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”7 Recognizing this, the nation’s courts have exercised a delicate balance, largely based on the ongoing debate of constitutional scrutiny required to infringe upon the Second Amendment’s protections and paving the path for a landmark Supreme Court decision in 2008. In District of Columbia v. Heller, the Court affirmatively recognized the heightened level of scrutiny afforded to Second Amendment questions,8 and further elevated specific situations (e.g. self-defense at 3. McDonald v. City of Chicago, 561 U.S. 742, 749 (2010). In response to efforts by southern states to disarm African Americans, the “39th Congress [passed] the Freedmen’s Bureau Act of 1866 and the Civil Rights Act of 1866 to protect the right to keep and bear arms. Congress, however, ultimately deemed these legislative remedies insufficient, and approved the Fourteenth Amendment.” See also FREEDMEN’S BUREAU ACT Of 1866 § 14 (“[T]he right . . . to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, . . . including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens . . . .” (emphasis added)). See also Stephen P. Halbrook, The Freedmen’s Bureau Act and the Conundrum Over Whether the Fourteenth Amendment Incorporates the Second Amendment, 29 N. KY. L. REV. 683 (2002) (“The same two-thirds of Congress that proposed the Fourteenth Amendment to the United States Constitution in 1866 also enacted the Freedmen’s Bureau Act.”). 4. See United States v. Cruikshank, 92 U.S. 542 (1875) (“The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence.”). In respect of the Court’s gradual recognition of Constitutional incorporation amongst the states, it’s worth noting that Cruikshank actually held the Second Amendment did not apply to the several states; “[t]he second amendment means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the national government.” While relying on a limited interpretation of the Fourteenth Amendment’s Privileges or Immunities Clause, however, the Court did not engage “in the sort of Fourteenth Amendment inquiry required by [the Court in] later cases,” and “preceded the era in which the Court began the process of ‘selective incorporation’ under the Due Process Clause,” which was then re-visited in McDonald. 561 U.S. at 758. See infra at note 12. 5. U.S. CONST. amend. II. 6. See McDonald, 561 U.S. at 791. 7. Heller, 554 U.S. at 626; e.g., id. (“[L]aws forbidding the carrying of firearms in sensitive places such as schools and government buildings . . . .”). 8. Id. at 628 n.27 (“If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.”).

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home) deemed core values of this enumerated right.9 While leaving ample room for further clarification,10 at a minimum, “this standard of review requires that the government regulation’s [interference with Second Amendment rights] be properly proportioned to the compelling interest . . . [and] require a meaningful review of the regulation to ensure it does not excessively suppress the right it affects.”11 The Heller decision, despite—or perhaps due to—its extensive inquiry into the issue, provided as many new questions as it did answers, self-admittedly expressing that “one should not expect it to clarify the entire field,”12 and provoking an opportunity for further examination. Only two years later, the Court accepted its own invitation and returned to the topic, extending the Second Amendment right to protect against infringement by the states,13 but again refusing 9. See id. at 628, 635 (affirming strict scrutiny in at least certain circumstances, the Court recognized that the “inherent right of self-defense has been central to the Second Amendment right . . . . [and thus] surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home”). But see infra at note 7 (recognizing a competing government interest in regulating sensitive places). 10. See id. at 635 (“[S]ince this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field . . . . [T]here will be time enough to expound upon the historical justifications for the exceptions [the Court has] mentioned . . . .”) (emphasis added). The appellate courts did not hesitate to begin filling the voids left by the Court’s decision. See, e.g., United States v. Skoien, 614 F.3d 638, n.12 (7th Cir. 2010) (interpreting Heller to only allow strict scrutiny under certain circumstances). 11. Michael Rogers, Guns on Campus: Continuing Controversy, 38 J.C. & U.L. 663, 692 (2012). 12. Heller, 554 U.S. at 635. 13. McDonald v. City of Chicago, 561 U.S. 742, 749, 777 (2010) [T]he Second Amendment protects the right to keep and bear arms for the purpose of self-defense . . . . [M]ost of the provisions of the Bill of Rights apply with full force to both the Federal Government and the States. Applying [this standard, which] is well established in our case law, we hold that the Second Amendment right is fully applicable to the States. Id. The Court seeks to answer whether the Second Amendment right to keep and bear arms is incorporated in the concept of due process. In answering that question, . . . [the Court] must decide whether the right to keep and bear arms is fundamental to our scheme of ordered liberty . . . it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.

2017]A PRIMER ON MICHIGAN FIREARMS REGULATION 207 to set clear guidelines or otherwise clarify the ambiguities fashioned by the Heller Court.14 In the absence of Supreme Court clarification, the appellate courts have expressed a wide array of disagreement on how to interpret Heller in right to carry cases and where and how these standards should be applied. The first to offer an analysis of real consequence, the Seventh Circuit Court of Appeals opined in late 2012 that “Heller repeatedly invokes a broader Second Amendment right than the right to have a gun in one’s home,”15 which was reinforced by a similar decision later that month by the Second Circuit Court.16 Decisions by the First and Tenth Circuit Courts, however, sought to limit the scope of these decisions in discrepant opinions that the right to concealed carry, specifically, “does not fall within the scope of the Second Amendment’s protections”17 and that the “[l]icensing of the carrying of concealed weapons is presumptively lawful.”18 The Ninth Circuit subsequently embraced portions of both arguments, stating that, while states are able to permit—or presumably prohibit—concealed weapons, “the Second Amendment does require that the states permit Id. 14. McDonald, 561 U.S. at 786 (“[In] Heller . . . [we] recognized that the right to keep and bear arms is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose . . . . We repeat those assurances here.”) (internal quotations omitted). 15. Moore v. Madigan, 702 F.3d 933, 936–37 (7th Cir. 2012) (opining that Heller’s statement that “the need for defense of self, family, and property is most acute” in the home “doesn’t mean it is not acute outside the home,” and providing, as an example, that the Second Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation . . . . [and that c]onfrontations are not limited to the home”) (emphasis added). In fact, the court in Moore opined that a Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower. A woman who is being stalked or has obtained a protective order against a violent ex-husband is more vulnerable to being attacked while walking to or from her home than when inside . . . . But Illinois wants to deny the former claim, while compelled by McDonald to honor the former. That creates an arbitrary difference. Id. 16. See Kachalsky v. County of Westchester, 701 F.3d 81, 89 (2d Cir. 2012) (“[T]he [Second] Amendment must have some application in the very different context of the public possession of firearms . . . . The plain text of the Second Amendment does not limit the right to bear arms to the home.”). 17. Peterson v. Martinez, 707 F.3d 1197, 1201 (10th Cir. 2013) (referencing “our nation’s extensive practice of restricting citizens’ freedom to carry firearms in a concealed manner”). 18. Hightower v. Boston, 693 F.3d 61, 72–74 (1st Cir. 2012).

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some form of carry for self-defense outside the home.”19 Other circuits have chosen to deliberately avoid the issue for the present moment,20 and the Sixth Circuit has been conspicuously silent on the right of lawabiding and otherwise capable residents to carry since Heller. At the state level, courts have provided more pertinent application of the Heller decision as it relates to universities. The Supreme Court of Virginia ruled in 2011 that a state statute prohibiting the possession of firearms in university buildings or at university events was not a violation of the Second Amendment,21 based on Heller’s recognition that prohibiting firearms in sensitive places may be permissible.22 While Heller did not specifically mention universities as a sensitive place, the Court did reference schools and government buildings, albeit without elaborating as to whether universities fell into either of those categories.23 Instead, the Court again opened the door for further examination of the issue, stipulating that they “identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.”24 A state court of appeals decision in Florida, focusing specifically on university dormitories, reached a similar conclusion despite the heightened level of protection25—and thus, higher level of

19. Peruta v. County of San Diego, 742 F.3d 1144, 1172 (9th Cir. 2014), rev’d on other grounds, 824 F.3d 919 (9th Cir. 2016); see also Peruta, 742 F.3d at 1173 (“Heller’s favorable mention of concealed-carry restrictions is not the silver bullet [dissenters] had hoped it was.”). Peruta also offers a succinct, in-depth history on the Second Amendment’s guarantee “to keep and bear arms” and how this language is understood in a modern context. See id. at 1154–66. 20. See, e.g., Drake v. Filko, 724 F.3d 426, 430 (3d Cir. 2013) (“It remains unsettled whether the individual right to bear arms for the purpose of self-defense extends beyond the home.”); United States v. Mahin, 668 F.3d 119, 124 (4th Cir. 2012) (“[W]e have not held, that the Second Amendment extends beyond the home.”); Hightower, 693 F.3d at n.8 (“We do not reach the issue of the scope of the Second Amendment as to carrying firearms outside the vicinity of the home.”). 21. See DiGiacinto v. Rector of George Mason Univ., 704 S.E.2d 365, 370 (Va. 2011). 22. Id. at 369; See also District of Columbia v. Heller, 554 U.S. 570, 626 (2008) (“[T]he right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose . . . [such as] laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.”). 23. District of Columbia v. Heller, 554 U.S. 570, 626 (2008). 24. Id. at 627 n.26. 25. Id. Whether or not dormitory housing is considered a person’s “home” for the purposes of the Second Amendment is up for debate. See, e.g., Smyth v. Lubbers,

2017]A PRIMER ON MICHIGAN FIREARMS REGULATION 209 constitutional scrutiny26—traditionally afforded to a person’s home.27 While dormitories have often been included in the definition of a home for other purposes (such as for Fourth Amendment protections28), however, the same distinction has yet to be made by a higher court pertaining to the Second Amendment and issues of self-defense.29 Michigan seems particularly lacking in any guidance as to how a dormitory would fare in a similar dispute.30 398 F. Supp. 777, 786 (W.D.M. 1975) (“The plaintiff’s dormitory room is his house and home for all practical purposes.”). 26. See Heller, 554 U.S. at 635 (“[W]hatever else [the Second Amendment] leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.”) (emphasis added). 27. See Fla. Carry, Inc. v. Univ. of Fla., 180 So.3d 137, 147 (Fla. Dist. Ct. App. 2015). 28. See, e.g., Piazzola v. Watkins, 442 F.2d 284 (5th Cir. 1971) (concluding that a dormitory is a student’s home for purposes of the Fourth Amendment); Com. v. Neilson, 666 N.W.2d 984, 986 (Mass. 1996) (“The right to be free from unreasonable searches and seizures as guaranteed by the Fourth Amendment to the United States Constitution applies when the police search a dormitory room in a public college.”). But see Moore v. Student Affairs Comm. of Troy State Univ., 284 F. Supp. 725, 728 (Ala. D.C.M.D. 1968) (stating that the relationship between a student and university differs from a traditional tenant/landlord relationship because a university “has an affirmative obligation to promulgate and to enforce reasonable regulations designed to protect campus order and discipline and to promote an environment consistent with the educational process . . . . [The validity of a search] is determined by whether the regulation is a reasonable exercise of the college’s supervisory duty” (internal quotations omitted)). 29. See Lewis M. Wasserman, Gun Control on College and University Campuses in the Wake of District of Columbia v. Heller and McDonald v. City of Chicago, 19 VA. J. SOC. POL’Y & L 1, 37 (2011) (“It seems likely that a challenge will ensue under the Second Amendment as to whether a college or dormitory room is a ‘home’ in which the occupant enjoys the right to keep and bear arms under Second Amendment protection.”). 30. What is a dormitory? The term “dormitory” is defined in neither the Michigan Penal Code nor the Michigan Firearms Act. In fact, the only definition provided anywhere in Michigan’s statutes is in the Fire Prevention Code, which states that a dormitory “means a building that is located on the campus of a postsecondary educational institution; is owned, leased, or managed by, or under the direct control of, the postsecondary educational institution; is used to provide housing for more than 16 individuals who are not members of the same family; and does not provide individual cooking facilities for its residents, whether or not meals are provided to any of those residents.” See MICH. COMP. LAWS ANN. § 29.19a (Westlaw 2017). In construing the meaning of undefined terms in a statute, Michigan courts may look to appropriate dictionary definitions. Horace v. City of Pontiac, 575 N.W.2d 762, 766–

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MICHIGAN’S CONSTITUTION AND THE RIGHT TO CARRY

The rights—and limitations—of the Second Amendment have been similarly embodied in Michigan’s legal structure by an analogous constitutional guarantee in which “[e]very person has a right to keep and bear arms for the defense of himself and the state.”31 The ability to place limitations on this right through lawful regulatory measures is similarly maintained and, in consequence, subject to ongoing dispute in Michigan courts.32 Michigan law permits both the open and concealed carry of firearms. Any resident, unless specifically prohibited,33 has the right to 67 (Mich. 1998). The Merriam-Webster Dictionary defines a dormitory as (1) “a room for sleeping; especially: a large room containing numerous beds . . . [(2)] a residence hall providing rooms for individuals or for groups usually without private baths.” Dormitory, MERRIAM-WEBSTER ONLINE, http://www.merriamwebster.com/dictionary/dormitory (last visited Mar. 4, 2017). In reviewing the plain language of the statute, Michigan’s courts may consider whether the building provides individual or communal rooms, bathrooms, and cooking areas. Other potential factors may include the class of students who live in the building, the proximity of the building to other academic or university buildings, whether the housing is subject to municipal zoning, whether living options are only available to registered university students, or whether the housing is a source of incidental revenue for the university. 31. MICH. CONST. art. I, § 6. See also People v. Zerillo, 189 N.W. 927, 928 (Mich. 1922) (stating that every person in Michigan has the right to possess a firearm for the “legitimate defense of himself or his property”). See generally Firearms Laws of Mich., LEGIS. SERV. BUREAU (Oct. 2015), https://www.legislature.mi.gov/Publications/Firearms.pdf. 32. See, e.g., People v. Wilder, 861 N.W.2d 645, 649 (Mich. Ct. App. 2014) (“[S]ome limits can be placed on the right to keep and bear arms . . . . [T]here are constitutionally acceptable categorical regulations of gun possession.”); People v. Deroche, 829 N.W.2d 891, 895 (Mich. Ct. App. 2013) (“The Supreme Court therefore recognized that the right to carry and bear arms under the Second Amendment is not unlimited.”) (citing District of Columbia v. Heller, 554 U.S. 570, 626–27 (2008)); Kampf v. Kampf, 603 N.W.2d 295, n.3 (Mich. Ct. App. 1999) (“[T]he right [to bear arms] may yield to a legislative enactment that represents a reasonable regulation by the state in the exercise of its police power to protect the health, safety, and welfare of Michigan citizens.”); Zerillo, 189 N.W. at 928 (supporting the “right of the Legislature, under the police power, to regulate the carrying of firearms”). 33. See, e.g., MICH. COMP. LAWS ANN. § 750.224f (Westlaw 2017) (prohibiting possession of a firearm by a person convicted of a felony); id. § 600.2950 (Westlaw 2017) (outlining the ability for a judge to prohibit the purchase or possession of a firearm by a person who is subject to a personal protection order); id. § 28.422(3)(b)

2017]A PRIMER ON MICHIGAN FIREARMS REGULATION 211 openly carry a firearm.34 To carry a concealed pistol, an applicant must complete a mandatory background check, submit their fingerprints, and complete a firearm safety course including classroom and range training. The State then certifies that person and issues a concealed pistol license.35 A person’s right to carry a firearm is not absolute; it is unlawful to carry a firearm on certain premises deemed “Pistol Free Zones,” regardless of whether one carries open36 or concealed,37 which include locations such as churches, hospitals, theaters, arenas, and bars.38 C.

MICHIGAN UNIVERSITIES

A sufficient understanding of the unique status enjoyed by Michigan’s universities requires an adequate appreciation of its history and the public policy priorities contemplated and, consequently, embodied in the state’s constitution. While originally conceived in Detroit as the Catholepistemiad in 1817, the modern iteration of the University of Michigan has subsisted in Ann Arbor since 1837,39 only two years after the Constitution of 1835 established a mechanism for state funding to universities.40 Initially, the newly recognized university was statutorily placed under (Westlaw 2017) (stating that a person must be 18 years or older to possess a firearm); id. § 28.422(3)(f) (Westlaw 2017) (prohibiting possession of a firearm by a person adjudged insane). 34. See MICH. COMP. LAWS ANN. § 28.422(3) (Westlaw 2017). 35. See MICH. COMP. LAWS ANN. § 28.425b(7) (Westlaw 2017). 36. See MICH. COMP. LAWS ANN. § 750.234d. 37. See MICH. COMP. LAWS ANN. § 28.425o. 38. Note that, due to the statutory construction that waives a concealed pistol license holder from the Penal Code to instead regulate them under the Firearms Act, a concealed pistol license holder can technically openly carry (but not concealed carry) in a pistol free zone. See MICH. STATE POLICE, LEGAL UPDATE NO. 86 (Oct. 2010), http://www.michigan.gov/documents/msp/MSP_Legal_ Update_No._86_2_336854_7.pdf. It is generally accepted that this was an unintended loophole, and there have been several legislative attempts to close it, although none have so far been successful. See, e.g., S.B. 69, 96th Leg., Reg. Sess. (Mich. 2012). See also, e.g., S.B. 442, 98th Leg., Reg. Sess. (Mich. 2015). 39. MICH. LEGISLATURE, Mich. Manual 2009-2010: Ch. VII-Institutions of Higher Education 537 at n.1 (2009), http://www.legislature.mi.gov/(S(tqladeez3 k4v5niy0mhjtae1))/documents/2009-2010/michiganmanual/2009-MM-p0535p0537.pdf. 40. See MICH. CONST. art. X, § 5 (1835) (“The legislature shall take measures for the protection, improvement or other disposition . . . for the support of a University.”).

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the care of a board of regents consisting of twelve members appointed by the Governor (with the advice and consent of the Senate), the Governor, the Lieutenant Governor, the Members of the Supreme Court, and the Chancellor of the State.41 Condemned by swift scrutiny, however, a decisive consensus arose that this model of oversight provided by the new board of regents was hindering its development and growth as an educational institution for the state. An analysis conducted in 1840 concluded that: [n]o state institution in America has prospered as well as independent colleges, with equal, and often with less, means [than their public counterparts] . . . . [State institutions] have not been guided by that oneness of purpose and singleness of aim (essential to their prosperity) that independent colleges have whose trustees are a permanent body,—[sic]men chosen for their supposed fitness for that very office, and who, having become acquainted with their duties, can and are disposed to pursue a steady course, which inspires confidence and insures success, to the extent of their limited means. State institutions, on the contrary, have fallen into the hands of the several legislatures, fluctuating bodies of men, chosen with reference to their supposed qualifications for other duties than cherishing literary institutions.42 These sentiments were evident during the 1850 Constitutional Convention, where delegates expressed substantial concern that the University’s enrollment and success was being stifled by constant 41. See Historical Background, UNIV. OF MICH. BENTLEY HISTORICAL LIBRARY, http://bentley.umich.edu/collection-highlights/university-of-michigan/regents/ historical-background/ (last visited Dec. 2, 2015) (explaining that the Organic Act, which passed by the Michigan legislature on March 18, 1837, created a new appointment process and organization of the board of regents). 42. Sterling v. Regents of the Univ. of Mich., 68 N.W. 253, 255 (Mich. 1896) (quoting an excerpt of an 1840 report commissioned by the legislature to analyze the condition of the University of Michigan). See also id. at 256 (stating that, in the opinion of the court, it “is obvious to every intelligent and reflecting mind that such an institution would be safer and more certain of permanent success in the control of such a body than in that of the legislature, composed of 132 members, elected every two years, many of whom would, of necessity, know but little of its needs, and would have little or no time to intelligently investigate and determine the policy essential for the success of a great university”).

2017]A PRIMER ON MICHIGAN FIREARMS REGULATION 213 political intervention.43 In response, the Constitution of 1850 created a new, popularly elected board of regents, which would be completely autonomous from the other branches of government.44 Subsequent iterations of Michigan’s Constitution have maintained this principle of university autonomy, and the fourteen additional universities have since been similarly structured.45 Numerous cases have emerged since the adoption of the Constitution of 1850, which strive to explain the broadly defined level of autonomy and the extent of authority provided to individual universities. Early challenges firmly upheld the newly established autonomy of the University,46 clarifying that the new constitutional construction granted the universities a unique status as a separate and equal constitutional authority, which placed them “in the direct and exclusive control of the people themselves, through a constitutional body elected by them.”47 Challenges specifically related to firearms possession would not come until much later. 43. Id. at 254 (“It is apparent to any reader of the debates in this convention in regard to the constitutional provision for the university that they had in mind the idea . . . to place it beyond mere political influence, and to intrust it to those who should be directly responsible and amenable to the people.”). 44. See MICH. CONST. art. XIII, § 6 (1850) (“There shall be . . . eight regents of the University.”). See also id. § 8 (“The board of regents shall have the general supervision of the university, and the direction and control of all expenditures from the university interest fund.”). The Constitution of 1850 amended the selection of numerous other state-level positions to popular elections as well, including Attorney General, Secretary of State, and justices of the Supreme Court. See generally Judge Robert J. Danhof, Shaping the Judiciary, 80 MICH. B.J. 15 (2001) (“[W]hen Michigan came into the Union, in 1837, we were caught up in what was called Jacksonian Democracy. That called for electing everyone from dogcatcher on up, on bedsheet ballots.”). 45. See MICH. CONST. art. VIII, §§ 5–6. See also Mich. Manual 2009-2010: Ch. VII-Institutions of Higher Education, supra note 39, at n.1 (stating that the composition and election of the board of regents was again changed in 1862 to address concerns raised about the 1850 process, solidifying the board at eight members and staggering terms). There is one important distinction worth noting: of Michigan’s fifteen universities, three have elected boards while the other twelve have boards appointed by the Governor. 46. See, e.g., People ex rel. Drake v. Rg. of the Univ. of Mich., 4 Mich. 98, 106 (1856) (“The board of regents have a sound discretion to exercise, and until it is made apparent that they seek to evade the law, by unnecessary and willful delays, the exercise of our discretionary power cannot be called into action.”). 47. The court makes a distinction between this heightened construction and that of townships, counties, or boards of supervisors, whose powers are “prescribed by law” by the legislature. See Sterling, 68 N.W. at 257

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OVERVIEW: FIREARMS AND UNIVERSITY CAMPUSES

Despite the level of contention and passionate debate this issue often inspires, very little case law directly addresses the topic prior to the last decade. However, recent campus shootings—notably, the 2007 tragedy at Virginia Tech University48—have spurred a reinvigorated discussion about state and university policies related to firearms possession (specifically concealed carry), including the creation of several new advocacy groups attempting to enact legislative change across the nation. Notable proponents include the National Rifle Association through its Institute for Legislative Action (NRA-ILA) and Students for Concealed Carry on Campus (SCCC). The NRA-ILA, founded in 1975, has long advocated for the rights of its nearly five million members on any range of gun-related issues.49 It has included campus carry rights mostly under their broader emphasis on the right to “legally carry a concealed handgun for protection while away from home.”50 SCCC, a self-described national grassroots organization, The board of regents and the legislature derive their power from the same supreme authority, namely, the constitution. In so far as the powers of each are defined by that instrument, limitations are imposed, and a direct power conferred upon one necessarily excludes its existence in the other, in the absence of language showing the contrary intent . . . . [T]he intention was to place this institution in the direct and exclusive control of the people themselves, through a constitutional body elected by them. Id. 48. See VA. TECH. REVIEW PANEL, MASS SHOOTINGS AT VIRGINIA TECH 1 (2007), https://governor.virginia.gov/media/3772/fullreport.pdf (“On April 16, 2007, Seung Hui Cho, an angry and disturbed student, shot to death 32 students and faculty of Virginia Tech, wounded 17 more, and then killed himself.”). 49. See NATIONAL RIFLE ASSOC. INST. FOR LEG. ACTION, https://www.nraila.org/about/ (last visited Nov. 20, 2015). 50. Chris Cox, Political Report: On Campus Carry, We’ve Only Begun to Fight, NRA-ILA (Jul. 30, 2015), https://www.nraila.org/articles/20150730/political-reporton-campus-carry-we-ve-only-begun-to-fight. It’s worth noting that the NRA has not necessarily been the avid advocate on this specific issue that they are often portrayed to be, and has at times avoided the debate; this has not, however, prevented their nomenclature being cited in coverage of the issue. See, e.g., Claire Zillman, In 2015, U.S. States Pushed to Allow More Guns on College Campuses, FORTUNE, Oct. 3, 2015, http://fortune.com/2015/10/03/oregon-shooting-guns-campus/ (stating that “[t]he pro-gun bills that state legislatures considered this year are indicative of a push by the gun lobby to open up another market to potential gun owners–college students,” which is “very appealing to the industry’s biggest lobbying group, the National Rifle Association,” despite the fact that “[t]he NRA did not return Fortune’s

2017]A PRIMER ON MICHIGAN FIREARMS REGULATION 215 totals over 43,000 college students, parents, professors, and employees advocating that “concealed handgun license holders [be granted] the same rights on college campuses that those licensees currently enjoy in most other unsecured locations.”51 Most arguments by proponents focus on properly-licensed concealed-carry rights and center around two basic issues: the necessity of protecting the constitutional right to carry for self-defense, and the “actual need for self-defense” against crimes such as homicide, assault, rape, or robbery.52 Opponents have also organized advocacy efforts, such as Gun Free Kids (GFK) and Students for Gun Free Schools (SGFS). GFK and SGFS both have the specific mission of lobbying against groups like the NRA-ILA and SCCC with a message that permitting more firearms on college campuses will only create more violence.53These groups argue that firearms are not necessary due to the innate safety that university colleges already offer, citing statistics that, despite some recent university shootings, violent crime remains extremely low on university campuses – much lower than the U.S. average54 – and that

request for comment”); Tyler Kingkade, The Answer to Campus Rape: More Guns, Say NRA-Backed Lawmakers, HUFFINGTON POST, Mar. 12, 2015, http://www.huffingtonpost.com/2015/03/12/campus-rape-guns_n_6737272.html (stating that, despite the “NRA declin[ing] to comment,” the legislation being discussed is sponsored by a legislator “[admitting] a close relationship with an NRA lobbyist,” as well as similar legislation in other states with support from “gun advocates backed by the NRA”). 51. See STUDENTS FOR CONCEALED CARRY ON CAMPUS, http://concealedcampus.org (last visited Nov. 28, 2015). 52. See id. SCCC recognizes opponent’s arguments that campuses have lower crime rates (discussed infra note 58), but then continues by stating that “statistics clearly show that thousands of crimes take place on college campuses daily . . . [including, for example,] an average of more than nine sexual assaults a day.” The group also lists twelve examples of the successful use of a firearm for self-defense on a college campus. Id. 53. See GUNFREEKIDS.ORG, http://www.gunfreekids.org/about/ (last visited Nov. 20, 2015). See also STUDENTS FOR GUN FREE SCHOOLS, http://www. studentsforgunfreeschools.org/ (last visited Nov. 20, 2015). 54. See KATRINA BAUM & PATSY KLAUS, VIOLENT VICTIMIZATION OF COLLEGE STUDENTS, 1995-2002 2 (2005), http://bjs.ojp.usdoj.gov/content/pub/pdf/vvcs02.pdf (analyzing people aged 18-24, 87.7 per 1,000 college students reported experiencing violent crime on average, compared to 101.6 non-college students, and noting that only 9% of those crimes involved a firearm).

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most violent crimes against university students do not even occur oncampus.55 Furthermore, opponents argue “no evidence [exists] that suicidal shooters would be deterred from attacks on college campuses by concealed carry permit holders.”56 Opponents further argue permitting firearms would “detract from a healthy learning environment57 . . . [and] create additional risk for students . . . .”58 Why is this important in a constitutional debate? The extent of Second Amendment protections often rise and fall on public policy implications and, subsequently, balancing tests of one nature or another.59 The validity and weight of these arguments, both for and against the right to carry, may very well prove persuasive as constitutional challenges continue. It is also worth recognizing that states have all approached this issue differently. Currently, seventeen states completely prohibit the 55. See id. at 5 (stating that, overall, 90% of students were off-campus at the time of the crime, including 85% of students who lived on-campus). 56. Id. at 4. 57. Why Our Campuses Are Safer Without Concealed Handguns, STUDENTS FOR GUN FREE SCHOOLS 1, http://www.studentsforgunfreeschools.org/SGFSWhyOur Campuses-Electronic.pdf (last visited Dec. 2, 2015). SGFS argues that, “[i]n order to foster a healthy learning environment [on campus], it is critical that students and faculty feel safe . . . . Students and teachers must be able to express themselves freely in classroom environments, where discussions frequently touch on controversial topics that arouse passion. The introduction of handguns on our campuses would inhibit this dialogue . . . [and] restrain the open exchange of ideas that is so critical to the college experience.” See, contra, Common Arguments Against Campus Carry, STUDENTS FOR CONCEALED CARRY ON CAMPUS, http://concealedcampus.org/common-arguments/ (last visited Nov. 28, 2015) (arguing that concealed carry, by nature, would not inhibit learning since the presence of a weapon would not be known). See also, contra, Jordan E. Pratt, A First Amendment-Inspired Approach to Heller’s “Schools” and “Government Buildings” 92 NEB. L. REV. 537 n.196 (2014) (citing Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 517–18 (1969)) (stating that a strong argument could be made “that lawfully concealed firearms—which by definition must remain hidden—have much less potential to disrupt the learning environment than [armbands worn in classrooms to protest the Vietnam War in the 1960’s]”). 58. STUDENTS FOR GUN FREE SCHOOLS, supra (arguing that “gun violence would likely increase if more guns were present [due to the] prevalence of drugs and alcohol . . . risks of suicide and mental health issues . . . likelihood of gun thefts, and . . . [a]n increased risk of accidental shootings). See, contra, STUDENTS FOR CONCEALED CARRY ON CAMPUS, supra note 53 (claiming that no state has seen a resulting increase in gun violence as a result of legalizing concealed carry). 59. See supra Part II, § A.

2017]A PRIMER ON MICHIGAN FIREARMS REGULATION 217 carrying of a concealed weapon on college campuses, and eight states explicitly permit concealed carry with varying limitations.60 An additional twenty-four states give discretion to the individual universities.61 States have shown an interest in continuing to amend their statutes, and the last few years have seen a flurry of changes across the nation. In 2013, Kansas adopted legislation that would permit the carrying of firearms into any university building unless that building provided adequate security as defined by statute.62 In 2011, the Mississippi Legislature amended its statute to permit concealed carry on campus for certain people who have completed a required firearms course.63 Wisconsin also adopted legislation in 2011 to create concealed pistol licenses, possession of which included carrying on university campuses.64 Michigan appears to fall within the “middle” category, presumably permitting its public universities to adopt their own firearms policies. Of Michigan’s fifteen public universities, fourteen currently ban firearms on campus with limited exceptions, such as for law enforcement.65 The lone outlier, Michigan State University amended 60. Of the eight states that permit firearms on campus, only Utah explicitly accomplishes as much through statute. See Guns on Campus: Overview, NAT’L COUNCIL OF STATE LEGISLATURES, http://www.ncsl.org/research/education/gunson-campus-overview.aspx (last visited Nov. 20, 2015). See also UTAH CODE ANN. §§ 76-10-500–76-10-523 (Westlaw 2014). 61. See NAT’L COUNCIL OF STATE LEGISLATURES, supra note 60. 62. See H.B. 2052, 2013 Leg., Reg. Sess. (Kan. 2013) (enacted). The legislation was signed by the Governor on April 16, 2013, after passing the Senate 32-7 and the House 104-16. The legislation did not specifically mention universities; in fact, it eliminated a reference to them when it deleted the old pistol free zone statute. Instead, the new language required all public buildings to adhere to the new security requirements. See KAN. STAT. ANN. § 75.7c10 (2014). 63. See H.B. 506, 2011 Leg., Reg. Sess. (Miss. 2011) (enacted). 64. See S.B. 93, 2011-2012 Leg., Reg. Sess. (Wis. 2011) (enacted). 65. See, e.g., Firearms, Weapons, Electrical Devices, and Explosives, GRAND VALLEY STATE UNIV., http://www.gvsu.edu/studentcode/firearms-weaponselectrical-devices-and-explosives-30.htm (last updated Oct. 10, 2016). See also, e.g., THE STATEMENT: STATEMENT OF STUDENT RIGHTS AND RESPONSIBILITIES 3 (eff. Jan. 1, 2016) The following behaviors . . . contradict the values of the University community and are subject to action . . . Possessing, using, or storing firearms, explosives, or weapons on University controlled property or at University events or programs (unless approved by the Department of Public Safety; such approval will be given only in extraordinary circumstances. Id.

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its board ordinance in 2009 to generally permit the lawful carry of firearms on university property but continues to prohibit students from carrying weapons through their student regulations.66 III.

CURRENT MICHIGAN FIREARM LAW AND UNIVERSITY AUTONOMY

This section seeks to address common arguments regarding whether current statutes allow universities to prohibit the carrying of firearms, such as whether (1) the state has preempted the regulation of firearms by other government entities; (2) universities are included in the category of government entities covered by preemption; and (3) regardless of the general applicability of preemption statutes, exceptions exist that may otherwise bind the universities. A.

STATE PREEMPTION

“[S]tate law may preempt [i.e. prohibit] a regulation by any inferior level of government that attempts to regulate the same subject matter as a higher level of government.”67 As discussed below, this general rule of preemption has often been applied to local municipalities in Michigan in regards to firearms regulation; however, whether this extends to universities is a distinct and separate issue. Michigan generally has an inclusive carry statute; residents who are legally permitted to carry a firearm can do so anywhere not specifically excluded by law.68 These gun-free zones are essentially similar for open and concealed carry. Neither statute includes university campuses—with the exception of dormitories and classrooms69—although some generally listed zones may also apply to different areas on campuses, such as sports arenas or theaters.70

66. See MICH. STATE UNIV. ORDINANCE 18.01 (June 19, 2009) (“Except as permitted by state law regulating firearms, no person shall possess any firearm or weapon anywhere upon property governed by the Board.”). See generally MICH. COMP. LAWS ANN. § 28.422(3) (Westlaw 2014) (stating a general right to open carry). 67. Capital Area Dist. Library v. Mich. Open Carry, 826 N.W.2d 736, 743 (Mich. Ct. App. 2012). 68. MICH. COMP. LAWS ANN. § 28.422 (Westlaw 2014). 69. See MICH. STATE POLICE, LEGAL UPDATE NO. 86 1-3 (Oct. 2010) http://www.michigan.gov/documents/msp/MSP_Legal_Update_No._86_2_336854 _7.pdf. 70. See id.

2017]A PRIMER ON MICHIGAN FIREARMS REGULATION 219 Pro-carry advocates have argued that the applicable state statute preempts other public entities, such as universities, from enacting restrictions beyond what is specified in law. Generally, preemption by a state statutory scheme that implicitly or impliedly occupies the field of regulation prohibits a governmental entity from enacting a rule or ordinance, regardless of whether there is any “direct conflict between the two schemes of regulation.”71 Michigan has expressly prohibited the regulation of firearms by local units of government;72 “the Legislature made a clear policy choice to remove from local units of government the authority to dictate where firearms may be taken.”73 A “local unit of government” is strictly defined in the statute as a “city, village, township, or

71. People v. Llewellyn, 257 N.W.2d 902, 904–05 (Mich. 1977) A municipality is precluded from enacting an ordinance if [1] the ordinance is in direct conflict with the state statutory scheme, or [2] if the state statutory scheme preempts the ordinance by occupying the field of regulation which the municipality seeks to enter, to the exclusion of the ordinance, even where there is no direct conflict between the two schemes of regulation. In making the determination that the state has thus preempted the field of regulation which the city seeks to enter in this case, we look to certain guidelines. First, where the state law expressly provides that the state’s authority to regulate in a specified area of the law is to be exclusive, there is no doubt that municipal regulation is preempted. (citation omitted) Second, preemption of a field of regulation may be implied upon an examination of legislative history. (citation omitted) Third, the pervasiveness of the state regulatory scheme may support a finding of preemption. (citation omitted) Fourth, the nature of the regulated subject matter may demand exclusive state regulation to achieve the uniformity necessary to serve the state’s purpose or interest. Id. (footnote omitted)). 72. See MICH. COMP. LAWS ANN. § 123.1102 (Westlaw 2017) A local unit of government shall not impose special taxation on, enact or enforce any ordinance or regulation pertaining to, or regulate in any other manner the ownership, registration, purchase, sale, transfer, transportation, or possession of pistols, other firearms, or pneumatic guns, ammunition for pistols or other firearms, or components of pistols or other firearms, except as otherwise provided by federal law or a law of this state.”). See also Mich. Coal. for Resp. Gun Owners v. City of Ferndale, 662 N.W.2d 864, 874 (Mich. Ct. App. 2003) (“§ 1102 is a statute that specifically prohibits local units of government from enacting and enforcing any ordinances or regulations pertaining to the transportation and possession of firearms, and thus preempts any ordinance or regulation of a local unit of government concerning these areas.”). Id. 73. Mich. Coal. for Responsible Gun Owners v. City of Ferndale, 662 N.W.2d 864, 872 (Mich. Ct. App. 2003).

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county.”74 Based on a broader review of the statute’s plain meaning and legislative intent, Michigan’s courts have expanded their interpretation beyond the statutory text and clearly indicated that the pistol-free state statutes have in fact occupied the field for all lower levels of government.75 If preemption of lower level governments can be accepted as valid, the question that must then be answered is whether a university qualifies as a lower level of government for the purpose of being subject to preemption. B.

UNIVERSITY AS A CONSTITUTIONAL CORPORATION

The concept of universities as a constitutional authority has evolved greatly since the 1800s, and the Michigan Supreme Court has self-admittedly “jealously guarded these powers from legislative interference.”76 A sharp departure from its treatment of other, lowerlevel government entities, the Court instead considers a university— and particularly its governing board—as “the highest form of juristic person known to the law, a constitutional corporation of independent authority, which, within the scope of its functions, is co-ordinate with and equal to that of the legislature.”77 This draws a sharp distinction between universities and local governments, which “clearly subjects their authority to constitutional and statutory limitations.”78 Yet, universities are not completely “exempt . . . from all laws passed by the legislature. It is not an unlimited grant.”79 “Legislative regulation that clearly infringes on the university’s educational or financial autonomy must . . . yield to the university’s constitutional 74. MICH. COMP. LAWS ANN. § 123.1101(b) (Westlaw 2014). 75. See Capital Area Dist. Library v. Michigan Open Carry, 826 N.W.2d 736, 747 (Mich. Ct. App. 2012). (“[T]he pervasiveness of the Legislature’s regulation of firearms, and the need for exclusive, uniform state regulation of firearm possession as compared to a patchwork of inconsistent local regulations indicate that the Legislature has completely occupied the field.”). 76. Federated Publ’ns Inc. v. Bd. of Tr. of Mich. St. Univ., 594 N.W.2d 491, 497 (Mich. 1999) (internal quotations omitted) (citing Bd. of Control of E. Mich. Univ. v. Labor Mediation Bd., 184 N.W.2d 921, 922 (Mich. 1971)). 77. Bd. of Regents of Univ. of Mich. v. Auditor Gen., 132 N.W. 1037, 1040 (Mich. 1911). 78. Mack v. City of Detroit, 649 N.W.2d 47, 51 (Mich. 2002). See also MICH. CONST. art. VII, § 22 (“Each such city and village shall have power to adopt resolutions and ordinances relating to its municipal concerns, property and government, subject to the constitution and law.”) (emphasis added). 79. Labor Mediation Bd., 184 N.W.2d at 922.

2017]A PRIMER ON MICHIGAN FIREARMS REGULATION 221 power.”80 If the regulation falls outside of “these confines, however, there is no reason to allow the Regents to use their independence to thwart the clearly established public policy of the people of Michigan.”81 A recent decision by Michigan’s Court of Appeals attempted to provide some clarity to this framework. In their decision, the majority re-affirmed the University’s status as a constitutional corporation of independent authority and rejected arguments related to state pretemption, and thus opined that a firearms prohibition enacted by the University of Michigan in 2001 is permissible under Michigan statute and the recent Supreme Court guidance.82 Despite this recent decision, interpretation of Michigan’s law remains ripe for further analysis as the scope of a University’s authority on the subject continues to be debated. C.

EXCEPTIONS TO UNIVERSITY AUTONOMY IN MICHIGAN

Two common exceptions to university autonomy that have been generally recognized by the Michigan courts are (1) the exercise of police power, and (2) a limited influence through appropriation.83 First, the State can “validly exercise its police power for the welfare of the people of this State,” which can lawfully affect the state’s universities.84 Michigan’s courts have upheld the police power of the State on university campuses in specific—but limited— situations such as enforcing worker’s compensation,85 requiring

80. Federated Publ’ns Inc. 594 N.W.2d at 497 (emphasis added). 81. Regents of the Univ. of Mich. v. Mich. Emp’t Relations Comm’n 204 N.W.2d 218, 224 (Mich. 1973). 82. Wade v. Univ. of Mich., __ N.W.2d __, WL 2463395 (Mich. Ct. App. 2017). But see Wade, __ N.W.2d at 11 (Sawyer, J., dissenting) (“Clearly, the decisions of our courts on this topic do not support a proposition that defendant has free reign to determine which enactments of the Legislature it chooses to follow and which it chooses to ignore. . . . . Turning to the issue at hand, I do not view applying preemption to the issue of firearm possession as invading either the University’s educational or financial autonomy.”). 83. See infra Part III, § C. 84. Regents of the Univ. of Mich., 204 N.W.2d at 224 (“The University of Michigan is an independent branch of the government of the State of Michigan, but it is not an island . . . . In spite of its independence, the Board of Regents remains a part of the government of the State of Michigan.”). 85. See Peters v. Mich. State College, 30 N.W.2d 854, 857 (Mich. 1948)

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payment of automobile liability insurance,86 and permitting the limited organization of employees through statutorily sanctioned collective bargaining.87 In contrast, application of the Michigan Open Meetings Act has been considered an infringement on a university’s ability to “supervise the institution.”88 While Michigan’s courts have spoken generally that “the constitutionally guaranteed right to bear arms is subject to a reasonable exercise of the police power,”89 they have not spoken directly to the State’s police power in relation to firearms on university campuses. The [Workmen’s Compensation] Act is approved as a piece of legislation aimed not at the defendant alone, nor against any of the activities of the defendant of a nature peculiar to defendant. The act is of a broad scope addressed to the subject of the liability of employers in broad fields of employment. The [act] does not undertake to change or disturb the educational activities of the defendant board. Id. 86. See, e.g., Branum v. State, 145 N.W.2d 860, 862 (Mich. Ct. App. 1966) (eliminating the defense of governmental immunity to tort actions for public universities due to public policy reasons). 87. See, e.g., Rg. of Univ. of Mich. v. Labor Mediation Bd., 171 N.W.2d 477 (Mich. Ct. App. 1969) (recognizing, however, that academic staff may be held to a different standard). See also, e.g., Rg. of Univ. of Mich. v. Mich. Empl. Relations Comm., 204 N.W.2d 218, 224 (Mich. 1973) (stating that certain University of Michigan hospital employees, such as interns, residents, and post-doctoral fellows, may utilize collective bargaining, but that the scope of the bargaining may be limited to the extent that it cannot fall “clearly within the educational sphere”); Central Mich. Univ. Faculty Assoc. v. Central Mich. Univ., 273 N.W.2d 21, 27 (Mich. 1978) (differentiating between teacher evaluation methods as separate from the central purpose of the university to educate). 88. See Federated Publ’ns Inc. v. Bd. of Trustees of Mich. State Univ., 594 N.W.2d 491, 498 (Mich. 1999) In this case, we do not consider a generally applicable law that implicates university financial autonomy. Rather, we consider a law that dictates the manner in which the university operates on a day-to-day basis. . . . Given the constitutional authority to supervise the institution generally, application of the [Open Meetings Act] to the governing boards of our public universities is . . . beyond the realm of legislative authority. Id.; but see Booth Newspapers v. Univ. of Mich. Bd. of Regents, 507 N.W.2d 422 (Mich. 1993). Note, however, that a constitutional claim was not preserved on appeal in Booth, thus not part of the court’s decision. In fact, the court in Federated Publications specifically stated that they were “address[ing] today the constitutional question left open by Booth Newspapers.” 594 N.W.2d at 495. 89. People v. Swint, 572 N.W.2d 666, 671 (Mich. Ct. App. 1997) (citing Bay Co. Concealed Weapons Licensing Bd. v. Gasta, 293 N.W.2d 707, 708 (Mich. Ct. App. 1980)). See also People v. Sanders, 2005 WL 323277 (Mich. Ct. App. 2005) (stating that when presented with “reasonable laws in circumstances that unreasonably

2017]A PRIMER ON MICHIGAN FIREARMS REGULATION 223 The scope of police power can include the preemptive issue of uniformity. When the State has created a regulatory scheme, the nature of the regulated subject matter may demand exclusive state regulation to achieve the uniformity necessary to serve the state’s purpose or interest . . . . [W]here[, however,] the nature of the regulated subject matter calls for regulation adapted to local conditions, and the local regulation does not interfere with the state regulatory scheme, supplementary local regulation has generally been upheld.90 The question of uniformity is as much an issue of fact as it is an issue of law; the court could refer to the “reasonableness of the [regulation] rather than to the jurisdictional right to enact” the regulatory scheme.91 To postulate, this standard of reasonableness could examine whether a university has clearly established campus boundaries as opposed to a university situated in, and dispersed amongst, a local municipality,92 or whether the person subject to the regulation in question is a student or simply a pedestrian on route to another destination. The second exception addresses situations in which the legislature attempts to influence a university through the appropriations process. Some—but not all—conditions may be imposed on a university; while “conditions can be imposed upon an appropriation to a constitutional college or university . . . the Legislature may not interfere with the

impair the right to keep and bear arms, [its] police power must yield in those circumstances to the exercise of the right,” and then applying said test to a broad vs. narrow prohibition in statute). 90. People v. Llewellyn, 257 N.W.2d 902, 906 (Mich. 1977). 91. Robinson Twp. v. Bd. of Cty. Rd. Comm’rs of Ottawa Cty., 319 N.W.2d 589, 593 (Mich. Ct. App. 1982) (emphasis added) (discussing the ability of townships to designate truck routes and placing road signs, and recognizing “that if several townships each designate noncontiguous routes a chaotic patchwork will ensue”). 92. Cf. Capital Area Dist. Library v. Michigan Open Carry, 826 N.W.2d 736, 745 (Mich. Ct. App. 2012) Excluding a district library from the field of regulation . . . would undoubtedly lead to patchwork regulation . . . [l]eaving to the public the obligation of determining where they can bring—or avoid—guns . . . . An exclusive, uniform state regulatory scheme for firearm possession is far more efficient for purposes of obedience and enforcement than a patchwork of local regulation. Id.

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management and control of those institutions.”93 Whether the legislature is attempting to manage or control a university appears to rely largely on whether it falls within the broad prohibitions of infringing on educational or financial autonomy. In addition, the scope of the regulation is considered; if the regulation applies “only to the universities and not generally to the investment of public funds, it [does] not constitute a clearly established public policy of the state. The provision, therefore, [would be] an invalid infringement on the university’s autonomy.”94 If the legislature can overcome these hurdles, it is also limited in what funds it may regulate. While it may attach certain conditions to a new, special-purpose appropriation, it may not attempt to control the spending of existing funds or general purpose appropriations.95 When all the above prerequisite conditions have been satisfied, the university can always reject the funding in question and thus avoid the legislative influence.96 D.

SIMILAR CASE LAW NATIONWIDE

Recent decisions in other states have trended toward preempting universities from prohibiting firearms. These cases, however, deserve a more thorough study before they can be considered comparable to Michigan’s legal structure and, thus, persuasive in a Michigan debate.

93. Regents of Univ. of Mich. v. State, 235 N.W.2d 1, 6 (Mich. 1975) (citing State Bd. of Ag. v. State Admin. Bd., 197 N.W. 160 (Mich. 1924)) (discussing the impact of Weinberg v. Regents of Univ. of Mich., 56 N.W. 605 (Mich. 1893), the court stated that, although the legislature had an ability to attach conditions to appropriations, the court did “not mean to say that in order to avail itself of the money appropriated the state board of agriculture must turn over to the Legislature management and control of the college, or of any of its activities”). 94. Mich. OAG No. 6938, WL 180314 (1997) (citing Regents of Univ. of Mich. v. State, 219 N.W.2d 773 (Mich. Ct. App. 1988)). But see, e.g., W.T. Andrew Co. v. Mid-State Surety Corp., 545 N.W.2d 351, 357 (Mich. 1996) (addressing bond requirements on government construction projects, and stating that, while “the University of Michigan is a constitutionally created corporation, the Legislature can impose regulations on it that are designed to provide for the general welfare of society”). 95. Regents of Univ. of Mich. v. State, 235 N.W.2d 1, 6 (Mich. 1975), aff’g Weinberg, 56 N.W. 605 (Mich. 1893). 96. Booth Newspapers v. Univ. of Mich. Bd. of Regents, 507 N.W.2d 422, 444 (Mich. 1993) (citing Bd. of Agric. v. Auditor Gen., 197 N.W. 160, 161 (Mich. 1924)).

2017]A PRIMER ON MICHIGAN FIREARMS REGULATION 225 In 2012, the Supreme Court of Colorado affirmed a decision stating that the Colorado concealed-carry statute occupied the field of regulation and eliminated the university’s “preexisting authority to regulate concealed handgun possession.”97 Unlike Michigan, the constitutional autonomy vested in Colorado’s public universities is limited in that their general supervision is authorized “unless otherwise provided by law.”98 Since the Supreme Court found that the concealedcarry statute in question occupied the field of regulation, the University of Colorado was divested of its authority to create additional prohibitions.99 In 2011, the Court of Appeals of Oregon held invalid an administrative rule100 which permitted the regulation of firearms on campus, since the carrying of firearms was “expressly authorized by the Legislative Assembly.”101 Unlike Michigan (or Colorado), Oregon’s higher education institutions are not granted constitutional status but are instead managed under the State Board of Higher Education as a state department; “[a]lthough the State Board of Higher Education is an arm of the state, it is not the Legislative Assembly.”102 Since the administrative rule being challenged was “enacted pursuant to the quasi-legislative ‘lawmaking authority’”103 of the Board, the regulation was preempted by the legislative statute. IV.

ANALYSIS: APPLYING THE LAW TO THE QUESTIONS PRESENTED

This Article will not attempt to answer the larger constitutional questions related to the Second Amendment; instead, it will simply 97. Regents of Univ. of Colo. v. Students for Concealed Carry on Campus, 271 P.3d 496, 502 (Colo. 2012). 98. COLO. CONST. art. VIII, § 5 (“The governing boards of the state institutions of higher education . . . shall have the general supervision of their respective institutions and the exclusive control and direction of all funds of and appropriations to their respective institutions, unless otherwise provided by law.”) (emphasis added). 99. See Regents of Univ. of Colo., 271 P.3d at 502. 100. See OR. ADMIN. R. 580-022-0045 (1991) (stating that “[p]rocedures to impose applicable sanctions may be instituted against any person engaging in . . . [p]ossession or use of firearms . . . on institutionally owned or controlled property, unless authorized by law, Board, or institutional rules or policies”). 101. Oregon Firearms Educ. Found. v. Bd. of Higher Educ., 264 P.3d 160, 165 (Or. Ct. App. 2011) (internal quotations omitted). 102. Id. 103. Id.

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recognize that these are undoubtedly on a collision course as various state statutes and university policies are weighed against Heller104 and McDonald.105 Prominent amongst those may likely include whether a school or government building incorporates a higher education campus or structure, respectively; if not, whether a university otherwise falls under the concept of a sensitive place; whether a dormitory constitutes a student’s home; and the level of constitutional scrutiny to apply to all the issues mentioned. Universities, legislatures, and state courts should remain cognizant of these unresolved questions and be prepared to accommodate future guidance as they administer their respective duties. A.

MICHIGAN’S UNIVERSITIES HAVE THE RIGHT TO PROHIBIT THE CARRYING OF FIREARMS ON THEIR CAMPUSES UNDER CURRENT MICHIGAN LAW

Under the current iteration of Michigan’s Constitution and statute, universities seem evidently well within their rights to adopt and enforce firearms regulations beyond what statute requires. As a constitutional corporation of independent authority, Michigan’s universities are generally considered coordinate and equal to the legislature and, thus, beyond the scope of state preemption. Recent decisions in Oregon and Colorado are not persuasive since their universities do not enjoy the same extent of constitutional autonomy. While Michigan’s courts have recognized certain exceptions to this level of autonomy, they do not seem applicable to this issue. Although the Michigan carry statutes may arguably be considered general purpose laws, university regulations do not conflict with those statutes and, thus, are not restricting the police power of the State. The issue of uniformity seems minimal since there are a limited number of campuses which are primarily visited for specific and defined purposes, not as part of the normal day-to-day travel of Michigan residents. Further, although all fifteen of Michigan’s public universities receive state funding, no state statute or appropriations boilerplate contain conditions on funding based on firearms policies. Thus, no analysis of the legislature’s ability to influence university policy through appropriation is required under current law. Whether the legislature would be able to enact such boilerplate would likely rely on 104. District of Columbia v. Heller, 554 U.S. 570 (2008). 105. McDonald v. City of Chicago, 561 U.S. 742 (2010).

2017]A PRIMER ON MICHIGAN FIREARMS REGULATION 227 various factors such as the type of funding, amount of funding, and scope of the boilerplate limitations. While this question does not seem to demand further explanation or clarification, the ability to enact changes through statutory amendment offers a more quizzical issue. B. MICHIGAN’S LEGISLATURE LIKELY HAS THE AUTHORITY, ALBEIT LIMITED, TO IMPACT THE ABILITY OF A UNIVERSITY TO REGULATE FIREARMS THROUGH LEGISLATION The heightened constitutional status of Michigan’s universities seems not only to protect them from preemption under current statute; their broad net of educational and financial autonomy may generally shelter them from preemption under any proposed legislation. As discussed, however, specific situations may exist that could fall outside of this protective net. The legislature may, for instance, have a stronger constitutional argument for preempting firearms regulation on university property if education is not the primary use, such as certain facilities (e.g. hospitals, apartment housing) or off-campus property (e.g. farm or conservation land). Other specific situations may result in uniformity concerns or otherwise invoke the State’s police power. Notably, these would likely result from the application of a standard of reasonableness by the court to an individual situation with specific circumstances, which may not necessarily result in broader implications beyond the issue addressed in that particular case. The legislature may also have the ability to enact ancillary policy that could nonetheless have a substantial impact. For instance, they might consider defining a student’s residence in a dormitory as their legally recognized home, thus attempting to provide a greater level of scrutiny to restricting their Second Amendment rights; or, they might consider a categorical definition of “government building” which specifically excludes university facilities, thus clarifying that universities are not intended to be included in this explicitly defined list of sensitive places outlined in Heller.106 These considerations are made with the recognition that Michigan’s universities may have several different arguments in opposition to the legislature’s ability to enact such changes. Who prevails is a question for judicial interpretation on these issues as they

106. See Heller, 554 U.S. 570 (2008).

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arise, as well as the continued evolution of the broader constitutional questions presented. V.

CONCLUSION

Under current Michigan law, university firearms regulations seem to be on solid footing. However, this terrain becomes more precarious when considering potential legislative action and developing federal case law. There is merit to this level of uncertainty. The attention on this issue has largely risen only within the last decade, and general sentiment suggests that the Court has provided as many questions as answers following Heller and McDonald. Recognizing that the conclusions presented in this Article are notably absent direct guidance from the courts, as well as the proliferation of interest groups with an active agenda of pursuing legal challenges (whether in support of or in opposition to prohibitive campus regulations), more formal direction from the judiciary may well be on the horizon.