Category Archives: Fifth Amendment

Item 1.01. Entry into a Material Definitive Agreement.

SiteOne Landscape Supply, Inc. (the "Company") announced that certain of itssubsidiaries have entered into the Fifth Amendment to Amended and RestatedCredit Agreement, dated as of March 23, 2021 (the "Fifth Amendment"), by andamong SiteOne Landscape Supply Holding, LLC ("Holding") and SiteOne LandscapeSupply, LLC, as borrowers (collectively, the "Borrowers"), JPMorgan Chase Bank,N.A. (the "New Agent"), as administrative agent and collateral agent, theseveral banks and other financial institutions party thereto and certain otherparties party thereto from time to time. The Fifth Amendment amends and restatesthe Amended and Restated Credit Agreement, dated as of April 29, 2016, among theBorrowers, the lenders from time to time party thereto and UBS AG, StamfordBranch (the "Existing Agent") as administrative agent and collateral agent (asamended prior to March 23, 2021, the "Existing Credit Agreement" and, as soamended and restated pursuant to the Fifth Amendment, the "Second Amended andRestated Credit Agreement") in order to, among other things, (i) incur $325million of term loans (the "New Term Loans"), (ii) replace the Existing Agent asadministrative and collateral agent with the New Agent and (iii) make such otherchanges in the Second Amended and Restated Credit Agreement as agreed among theBorrowers and the lenders. Proceeds of the New Term Loans were used to, amongother things, (i) repay in full the Tranche E Term Loans outstanding under theExisting Credit Agreement immediately prior to effectiveness of the FifthAmendment (the "Existing Term Loans"), (ii) to pay fees and expenses related tothe Fifth Amendment and the Second Amended and Restated Credit Agreement and(iii) for working capital and other general corporate purposes.

The New Term Loans bear interest, at Holding's option, at either (i) an adjustedLIBOR rate plus an applicable margin equal to 2.00% (with a LIBOR floor of0.50%) or (ii) an alternative base rate plus an applicable margin equal to1.00%. Voluntary prepayments of the New Term Loans are permitted at any time, inminimum principal amounts, without premium or penalty, subject to a 1.00%premium payable in connection with certain repricing transactions within thefirst twelve months after the date of the initial funding of the New Term Loans.The New Term Loans will mature on March 23, 2028.

The foregoing summary is qualified in its entirety by reference to the text ofthe Fifth Amendment and the Second Amended and Restated Credit Agreement, whichare filed as Exhibit 10.1 hereto and are incorporated herein by reference.

Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an

The information contained in Item 1.01 concerning the Company's direct financialobligations under the Second Amended and Restated Credit Agreement is herebyincorporated herein by reference.

Item 9.01 Financial Statements and Exhibits.

Edgar Online, source Glimpses

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SITEONE LANDSCAPE SUPPLY, INC. : Entry into a Material Definitive Agreement, Creation of a Direct Financial Obligation or an Obligation under an...

The city of Columbus announced Thursday thatit is ordering six officers to answer questions about potential criminal misconduct by other officers during summer racial injustice protests Downtown.

But the police unionsays those officers do not have to comply under the terms of the contract with the city, and that threats of insubordination charges are empty.

More: Complaint alleges investigators hired by Columbus using unconstitutional tactics to force officer interviews in police probe

On Thursday morning, the city Department of Public Safety said independent investigator Richard Wozniak, a retired FBI agent, issued "Garrity notices" to six police officers "compelling the officers to answer questions."

If officers don't cooperate, the announcement said, they could face departmental charges of insubordination. The announcement said the six officers are "strictly witness officers" and not the focus of criminal investigation.

"Information they can provide is essential to the ability to identify officers who may have committed a crime, and necessary for any prosecution of those who might be charged with crimes," the announcement said.

More: Cost of probe into possible Columbus police crimes during protests passes $50,000

The city's contract with Fraternal Order of Police Capitol City Lodge No. 9 says that no member officer regardless of whether they are the focus of the investigation or not is required to give evidence if the investigation could result in criminal charges.

"If a member has been advised that the investigation may result in criminal charges, the member's refusal to answer questions or to participate in the investigation shall not be considered insubordination or like offense," the contract says.

Glenn McEntyre, assistant director of public safety, said the city disagrees "with that interpretation of the contract."

The independent investigation, which was announced in June by Mayor Andrew J. Ginther, seeks to determine whether Columbus police officers committed any crimes while responding to civil unrest here that began on May 28, three days after the death of George Floyd while in the custody of Minneapolis police.

More: City seeks public's help in investigation of criminal misconduct during summer protests

Wozniak and former Franklin County assistant prosecutor Kathleen Garber were hired as an independent investigator and special prosecutor, respectively, to conduct the investigation.

Chapter 1903.01 of the city's ordinances requires police to investigate "whenever any person is physically injured or any property is damaged or destroyed by an employee of the city, or when city property is damaged or destroyed as a result of criminal action or a traffic accident."

Last week, Garber and Wozniak issued investigative subpoenas to five officers using a rarely, if ever, used section of Columbus City Code. Attorneys for the officers filed a complaint and motion for a restraining order, saying the subpoenas violated the union contract, Ohio's constitution and Ohio's rules for criminal procedure.

Garber withdrew the subpoenas shortly after the complaint was filed.

In Thursday's announcement, the city said Garber has determined that "there is probable cause to believe that someofficers committed misdemeanor crimes" and that other officers witnessed those crimes.

More: Pepper spray used as protests over death of George Floyd spread to Columbus

"Extensive efforts have been made to elicit the cooperation of those witness officers, including assurances of immunity from prosecution or administrative sanctions," the city said. "To date, only five witness officers have agreed to be interviewed, only after receiving a guarantee that they would not be criminally prosecuted. The other identified witness officers have refused to be interviewed or provide information on other officers who appear to have committed illegal acts."

The city said officers also have been provided an internal website to provide information anonymously.

"The only investigative means left to determine if a witness officer has information is by Garrity interview," the city said.

Garrity rights protect public employees from beingcompelled to incriminatethemselves during investigatory interviews conducted by their employers. The protection is provided under the Fifth Amendment to the U.S. Constitution, which states employeescannot be compelled by the government (their employer) to be a witness against themselves, and the Fourteenth Amendment's "equal protection" clause that covers public employees of municipal, county and state governments.

The protections are named Garrity rights after Edward Garrity, police chief of Bellmawr Township, New Jersey, who along with five other employees was told they must answer questions in a 1961state attorney general's investigation into whether they were involved in fixing traffic tickets in Bellmawr and Barrington Township or lose their jobs. Their statements were later used to prosecute and convict them.

The U.S. Supreme Court overturned their convictions in 1967, ruling in Garrity v. New Jersey that the statements of Garrity and the other employees,made under threat of termination, were unconstitutional because they were compelledby the state in violation of the Fifth and Fourteenth Amendments. The court ruled the option to lose their means of livelihood or pay the penalty of self-incrimination is the antithesis of free choice to speak or to remain silent.

The city said Wozniak has asked 60 officers to be a part of the investigation and55 have refused, 44 of them through attorneys.

In a statement, Garber said the focus of the investigation is accountability.

"If laws were broken, we will hold those responsibleaccountable," Garber said."It is concerning and disappointing that the people standing in the way of that accountability are fellow officers."

Mark Collins, who represents the officers who have been given the Garrity notices, said they will be pursuing legal options "to prevent the city from violating these officers constitutional and contractual rights."

"In Ohio, individuals cannot be forced to give interviews on misdemeanor crimes. That's the law," Collins said. "The contract requires the city to follow the law, so by ordering them to do something against the law, it not only violates the law but it also violates the contract."

Collins also said Garber's statement would imply the officers who are "strictly witness officers" could face criminal charges.

"If what she claims she believes is true, and if the officer doesn't respond to a crime they witnessed, it could be dereliction of duty," Collins said.

Collins also said if Wozniak and Garber have evidence, they could file the charges in Franklin County Municipal Court.

"If they have the probable cause, file the charges," Collins said. "File the charges and we'll see you in court."

Collins added that information provided in a press release from the city including an example of how Garrity works is incorrect, showing a lack of understanding by those leading the investigation.

"If an officer is given Garrity, they have to talk," Collins said. "If they don't, they can get fired for insubordination. They don't have Fifth Amendment rights at that point, but the information can't be used in criminal prosecutions. That's the whole point of having Garrity."

To date, Wozniak and Garber have been paid more than $100,000 combined for the investigation.

The city also hired BakerHostetler, a local law firm whose partners have previously donated to Ginther's campaigns, in a no-bid contract to investigate any administrative wrongdoing. That contract was for $500,000.

The city has not yet provided a dollar amount as to how much that administrative investigation has cost to date, citing the potential for more investigations to take place after Wozniak and Garber have finished their work.

The BakerHostetler investigation resulted in 49 reports, some of which involved multiple complaints. Of the 49 reports, only eight involved sustained allegations and only one of the eight resulted in discipline. That officer was given documented counseling for not filing the proper paperwork.

Three allegations were withdrawn, 28 were not sustained, 19 were unfounded and five were exonerated.

bbruner@dispatch.com

@bethany_bruner

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City issues order to force Columbus police officers to give evidence in protest probe - The Columbus Dispatch

The separation of the judiciary from other organs of the state remains elusive even after 50 years of Bangladeshs independence as successive governments have amended the constitution to control the judiciary.

Legal experts said that Article 96 of the constitution on the removal of Supreme Court judges for misbehaviour or incapacity was amended on eight occasions between January 1975 and September 2014 while Article 116 on the control and discipline of the lower judiciary was amended on three occasions in 1975, 1979 and 2011.

It is painful that we are deprived of getting full independence of the judiciary from the executive, even though the establishment of an independent judiciary was one of the core objectives of our 1972 constitution, Dhaka University law professor Md Mizanur Rahman told New Age.

Although the law ministry is consulting with the Supreme Court to deal with administrative affairs in the subordinate judiciary, questions can be raised on how much the consultation is effective, he added.

He said that it is not a good sign for a democracy and such deviations bring no blessings for a country and a nation. When the judiciary is kept under the executive, democracy the first casualty, he pointed out.

The power to remove SC judges was vested in the president through the parliament in 1972, then in January 1975, through the Fourth Amendment to the constitution, the president became the sole arbiter.

Later in 1977, the president and the chief martial law administrator were authorised to exercise the power through the chief justice-led Supreme Judicial Council and the system of Supreme Judicial Council was ratified by the fifth amendment to the constitution in 1979, and the power was again vested in the chief martial law administrator in 1983.

All the martial law proclamations, including the Supreme Judicial Council of the fifth amendment, were revived through martial law proclamation in 1986 with the power vested in the chief martial law administrator.

All the martial law proclamations were declared unconstitutional by the High Court on August 29, 2005 in a Bangladesh Italian Marble Works Ltd case, but the Appellate Division in February 2010 retained the Supreme Judicial Council until December 31, 2012 with the observation that the parliament would make necessary amendment to the constitution regarding issues related to the Article 96.

On June 30, 2011, the parliament upheld the Supreme Judicial Council by amending the constitution through the 15th amendment.

In 2014, the government through the 16th amendment vested the power again in the parliament but the High Court on May 5, 2016 declared 16th amendment unconstitutional and restored the Supreme Judicial Council and the Appellate Division to upheld the HC verdict on July 3, 2017.

Jurist Shahdeen Malik told New Age that though the government has yet to amend the constitution to restore the Supreme Judicial Council on the ground that its appeal against the Supreme Courts ruling awaits a hearing, the online version of the constitution incorporated the parliaments authority to remove SC judges.

He said that the separation of the lower judiciary from the law ministry on November 1, 2007 remained on paper because the ministry continued influencing the subordinate judiciary.

He said that the process of recruitments of SC judges was not transparent and partisanship became the norm since early 2000 as no law has been framed yet to set up the qualifications of the judges as per Article 95 of the constitution.

Consequently, there are always some doubts in independent functioning of the higher judiciary, he said.

There is dual control of subordinate judges by the law ministry and the Supreme Court, said Shahdeen, who also added that the law ministry should not have any control over the judiciary as per the constitution.

Although the judiciary has been developed on paper, the independence of the judiciary could not be achieved in reality, SC lawyer and right activist Md Asaduzzaman said.

He said that the judiciary became relatively weaker and more affected since former chief justice Surendra Kumar Sinha was removed as it is him who penned the 16th amendment verdict in 2017.

Judges have been appointed on the political choice of the governments in absence of any law or rules and this is why the higher judiciary has become questionable sometimes, he said.

Asaduzzaman said that the partisan judgements on this occasion come from the judges.

He said that the government wanted to control the judges without making any law for setting out qualifications for Supreme Court judges.

The Appellate Division in the 16th amendment case also restored Articles 115 and 116 from the 1972 constitution.

The governments petition seeking a review of the 16th amendment verdict still awaits a hearing.

The authority of control and discipline of judges and magistrates shall vest in the Supreme Court as per Article 116 of the 1972 constitution.

The Supreme Court lost the authority as the government vested the authority in the president amending the constitution through the fourth amendment.

The Supreme Court lost its authority over lower court judges after the Appellate Division upheld the High Courts verdict that had declared the fifth amendment unconstitutional.

On June 30, 2011, the government restored the fifth amendment provision relating to Article 115 and 116 paying no heed to the Appellate Divisions observation in its verdict on the fifth amendment to reinstate original Articles 115 and 116.

Article 115(1) of the 1972 constitution empowered the president to appoint district judges on the recommendations of the Supreme Court and other persons after consultation of the Public Service Commission and the Supreme Court.

The Supreme Court also lost the authority to appoint district judges and magistrates as the government through the fourth amendment empowered the president to exercise the power in accordance with rules made by him.

The president still retained the power.

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Separation of judiciary still elusive in Bangladesh - newagebd.net

While the COVID-19 relief bill brought the $15 an hour minimum wage.

Looking back in history, the fight for a minimum wage has been full of political struggle and labor conflict. Here are some notable developments in U.S. history.

The first state-level minimum wage law was passed by Massachusetts in 1912. Soon, other states followed suit over the next two decades. But the state laws were reversed by the Supreme Court in a case called Adkins v. Childrens Hospital of D.C., which ruled that a minimum wage violated employers and workers rights to liberty of contracts under the Fifth Amendment.

In 1938, at the height of the Great Depression, the first federal minimum wage was passed under Franklin D. Roosevelt. Congress passed the Fair Labor Standards Act to improve workers living condition and boost their purchasing power amid the colossal disruption in the American economy. The rate was set at 25 cents per hour, which is worth about $4 today.

Since then, Congress has raised the minimum wage 22 times under 12 different presidents. Most times, Democrats held a majority when Congress approved a minimum wage increase. The current level is at $7.25 an hour, set in 2009.

States and cities have the right to set their own minimum wage standards. Now, 29 states and D.C. have minimum wages above the federal level.

Since 1938, the federal minimum wage went up bit by bit every few years. However, the increase stopped in the 1980s, mostly under the Reagan administration. At the time, America ushered in a wave of conservative thinking that bolstered the idea of the free market. The argument against increasing minimum wage is that it would result in a decrease in jobs, because businesses would be less inclined to hire more workers.

The minimum wage has caused more misery and unemployment than anything since the Great Depression, Ronald Reagan said in 1980 about the Fair Labor Standards Act.

Reagan also suggested that employers should be able to pay young people at a rate lower than the federal minimum wage. He said that teenaged workers tend to be unskilled and a lower-than-minimum wage would help relieve the high youth employment rate, which was more than 18% in 1980.

In 1989, Congress passed an amendment to the 1938 law so that it applies only to businesses with a $500,000 annual revenue. It also mandates small retail businesses to pay its workers the minimum wage and overtime pay in any work week in which they either engage in commerce or make products that will be sold in another state.

The increase of federal minimum wage picked up again in the 1990s, rising from $3.35 an hour in 1989 to $5.15 an hour in 2007. That year, President George W. Bush signed into law the Fair Minimum Wage Act to raise the minimum wage to $7.25 an hour in three stages over two years. It marked a victory for the Democrats who had been pushing for a change for the past decade. However, since 2009, the federal minimum wage has stagnated at $7.25 an hour, while the cost of living has become higher and higher.

In November 2012, a couple hundred fast food workers, backed by Service Employee International Union (SEIU), demonstrated under the banner of $15 in New York City. It marked the beginning of the Fight for $15 grassroots movement to demand a $15 hourly wage, a wage that people can live on.

At first, the demand to almost double the federal minimum wage was a fringe idea in Washington, even within the Democratic party. President Barack Obama endorsed a raise to $10.10 an hour in 2014. Hillary Clinton said that she favored a $12 an hour minimum wage in 2015, before endorsing the Fight for $15 effort shortly after.

The movement mainly focused at the state and city level. Seattle became the first city to adopt the $15 standard in 2014, following the victory of Ed Murray, a mayoral candidate backed by SEIU. New York and California, two large progressive states home to many of the members in the Fight for $15, also followed suit. Progressive activists then moved to moderate and conservative states like Illinois and Arizona. Since January 2014, 28 states and D.C. have raised their minimum wages.

Besides fighting on a local level, Fight for $15 also targeted big businesses like McDonalds, Walmart, and Target.

Now, the movement has long extended beyond fast food and retail. A $15 an hour minimum wage nationwide has become a mainstream idea widely embraced by the Democrats.

The most recent debate about federal minimum wage sees a divide among three camps, not conforming expected ideological or business groupings.

As for the long-held belief that a raise in minimum wage would kill jobs, the Congressional Budget Office said in February that a rise in the minimum wage to $15 an hour would result in 1.4 million job losses by 2025. Other studies have shown mixed results. Some even indicate that higher minimum wages increase employment.

That Congressional Budget Office assessment also estimated that raising the minimum wage would lift 900,000 people out of poverty.

Since the beginning of 2021, 20 states have raised minimum wages. Many fast-food and retail giants, including McDonalds, Amazon, Target, and Costco have committed to paying workers at least a $15 minimum wage.

But the fight for higher pay and labor rights continues. Experts say the new battlegrounds could lie in hero pay, tipped minimum wage, and joint employment.

The pandemic has highlighted how many people in America are living close to the financial edge. For years, working one full-time job has not been enough for many minimum wage workers to get by. Should a full-time job in America guarantee a living wage? NBCLX storyteller Cody Broadway explores how the system is working against our essential workers.

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The Fight Over Minimum Wage Has a Long History in the US. Here's What to Know About It - NBC 6 South Florida

U.S. Immigration and Customs Enforcement has asked the federal court to dismiss Denis Uvarov's lawsuit.

A 33-year-old Russian national, Uvarov sought the return of his passport and demanded $80,000 in compensation for his suffering and for punitive damages.

Uvarov, in his complaint, named officials from Immigration and Customs Enforcement and the Department of Homeland Security as defendants.

Through the U.S. Attorneys Office for the Districts of Guam and the NMI, DHS and USCIS told the court that Uvarovs passport was released to him on Feb. 8, 2021 and therefore his Fifth Amendment claim for injunctive relief is moot.

Uvarov also boarded a plane on March 19, 2021 outbound to Seoul, South Korea, the U.S. Attorneys Office said.

It added that ICE Supervisory Detention and Deportation Officer Chris Danaher approached Uvarov and positively identified him.

Uvarov informed Danaher that he planned to travel to Ukraine, the U.S. Attorneys Office added.

Thus, plaintiffs stated goal of departing the United States was accomplished, it said.

The U.S. Attorneys Office also reiterated that ICEs retention of Uvarovs passport was a reasonable exercise of its broad authority over immigration.

In November 2017, Uvarov arrived in the CNMI as a tourist. When he sought political asylum or refugee status, he said ICE confiscated his passport.

After waiting for two years and never having received an asylum interview, he said he had changed his mind.

On July 10, 2020, Uvarov demanded the return of his passport so that he could leave the island.

When ICE and the USCIS Los Angeles Asylum Office failed to return his passport, Uvarov filed a complaint in federal court, but it was dismissed for lack of jurisdiction on Oct. 26, 2020.

On Dec. 2, 2020, Uvarov filed an amended complaint.

He also received an email from USCIS Los Angeles Asylum office, which informed him that we are unable to schedule non-detained interviews in Saipan at this time. When we are able to resume interviews you will be contacted and scheduled for an interview.

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USCIS: Uvarov's request for injunctive relief moot; passport returned and he has departed NMI - Marianas Variety

A defense attorney filed a motion this week attempting to keep a jury from hearing an alleged confession of a woman who is accused of helping her boyfriend cover up the murder of a 20-year-old Fort Hood soldier almost a year ago.

Cecily Aguilar, 22, was being held without bond in the McLennan County Jail on Thursday. She is accused of helping Army Spc. Aaron Robinson, 20, dispose of the body of Vanessa Guillen after he had killed her with a hammer on April 22, 2020, according to a federal criminal complaint.

Spc. Aaron David Robinson is the man who took his own life while being a suspect in the disappearance of Spc. Vanessa Guillen, Fort Hood officials said.

During a hearing next month, U.S. Magistrate Judge Jeffrey C. Manske is set to rule on a 16-page motion to suppress that was filed by Aguilars defense attorney on Wednesday.

According to the motion, Aguilar made statements during an interview with police on June 30, 2020, without being advised of her Miranda rights, which would be a violation of her Fifth Amendment rights against self-incrimination.

The officers did not provide Aguilar (with) Miranda warnings until after three hours of questioning, the motion reads. Instead, they encouraged her to tell them about the alleged crime in order to help herself, without ever informing her that what she said could be used against her in court

Aguilars defense attorney claims that her Fourth Amendment protections against illegal search and seizure were violated before the statements were made, when police performed a traffic stop on a vehicle in which she was a passenger.

The detention morphed into an arrest. (The traffic stop) was not supported by a warrant or reasonable suspicion, according to the motion. Any evidence obtained from the illegal seizures and fruits therefrom should be suppressed.

A hearing on the motion to suppress will be held on April 27 at the federal courthouse in Waco.

Aguilar pleaded not guilty on July 14, 2020, to one count of conspiracy to tamper with evidence and two substantive counts of tampering with evidence. If convicted, she faces up to 20 years in federal prison for each count, according to the U.S. Attorneys Office, Western District of Texas.

So far, four trial dates most recently for March 8 have been set in her case. As of Thursday, no new trial date has been set.

Vanessa Guillen case

The case dates back 11 months. Guillen was reported missing on April 23, 2020.

Months later, on June 30, 2020, her remains were discovered by contractors working along the Leon River near Belton.

The criminal complaint alleges that Robinson murdered Guillen on April 22, 2020, with a hammer and that Aguilar helped him attempt to dispose of the body.

Robinson died on July 1, 2020, from a self-inflicted gunshot wound after he was confronted by Killeen police, officials said.

Aguilar initially lied to police to cover for Robinson, but later helped investigators by letting them record several phone conversations with him, according to the complaint.

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Lawyer tries to throw out confession of Killeen woman charged in Vanessa Guillen case - The Killeen Daily Herald

The view outside the Nevada Legislature on Sunday, Aug. 2, 2020.

Assemblywoman Lisa Krasner, R-Reno, joined by public defenders across the state, called on lawmakers to pass legislation designed to make sure juveniles younger than 18 dont waive their Fifth Amendment rights without first talking to a parent, guardian or an attorney.Kendra Bertschy of the Washoe County Public Defenders Office said more than 40 percent of juveniles waive those rights without understanding the consequences. AB251 would require police with a juvenile in custody get them in contact with a parent, guardian or attorney before asking any questions.But Chuck Callaway, representing the sheriffs and police, said if officers cant question juveniles, officers will just arrest everyone. The Nevada DAs Association also came out against AB251 as did several juvenile officers.Bertschy responded saying she was disappointed that law enforcement thinks their only option is arresting everyone.Krasner said the bill would also seal a juveniles arrest record at age 18 to give them a clean slate as they become adults under the law. She said a series of misdemeanors on juveniles records can impact their ability to get a job, go to college and other things.Serious crimes in a juvenile record, including sex offenses, would not be sealed.Alex Ortiz of Clark Countys financial office said he has no problem with the policy in the legislation but is concerned about its potential cost. He said the county would have to open, staff and run another juvenile housing unit at a cost of $2 million a year.The committee took no action on the bill with Krasner saying she would work with stakeholders to resolve some of their issues while still trying to protect juvenile suspects from themselves when taken into custody.

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Bill would protect juveniles' Fifth Amendment rights | Serving Carson City for over 150 years - Nevada Appeal

The Supreme Court of the United States will hear oral arguments Monday in Cedar Point Nursery v. Hassid, a case about the union rights of farmworkers. It could impact the future of anti-discrimination law and much more.

The plaintiffs in the case are two California fruit producers who are suing over a 1975 state regulation that allows union organizers to have temporary access to an agricultural employers property during non-work hours. The laws rationale is to support workers right to unionize by allowing workers access to their workplace premises for after-hours meetings.

California law requires agricultural businesses to allow labor organizers onto their property three times a day for 120 days each year. The state contends that the regulation is necessary in the specific context of farming: farmworkers tend to be inaccessible to union organizers through other channels, and farm properties lack parking lots or public areas that other workers typically use for gathering. From Californias brief:

[Farmworkers] are highly migratory, moving to follow the harvest every few weeks or months; they often live in temporary housing, sometimes on their employers property; they frequently lack access to modern telecommunications technology; many speak only indigenous languages; and many are illiterate even in their native language. The Boards regulation authorizes a limited number of organizers to access the property of agricultural employers, for brief periods, during non-work hours, solely for the purpose of discussing organizing with employees, and only after notifying the Board and the employer.

Cedar Point Nursery and Fowler Packing Company sued to have the law invalidated, and their argument is based on land use. They say that the law allowing union organizers to meet with workers on their property is an easement that amounts to a per se taking something that would require compensation under the Fifth Amendment.

The after-hours union meetings dont disrupt the employers businesses, and the state of California isnt actually taking the property so to make a Fifth-Amendment argument, the plaintiffs needed to frame their loss as interference with a guarantee that is constitutionally protected. They chose the right to exclude unwanted persons. In other words, the California unionizing regulation deprives the owners of their inherent property right to kick people off their land.

A panel of the Ninth Circuit sided with California, as did the district court. The panel said that because the regulation didnot amount to a physical taking because it did notallow random members of the public to unpredictably traverse their property 24 hours a day, 365 days a year.The panel also ruled that the statute wasnt a regulatory taking because the only property right affected was the right to exclude and thats simply not enough.

Now, SCOTUS will decide whether the Fifth Amendment protects a right to exclude on par with other inherent property rights. If the justices side with the landowners and agree that the regulation amounts to a taking, it would mean the regulation cannot continue to operate without California paying compensation for its taking of the land. Thats novel in itself, but theres far more drama to be had outside the arena of farming and unionizing.

The fruit-producer plaintiffs argue that the right to exclude should take its rightful place among the most sacred of protected interests: fundamental rights.

When a right is fundamental, any law abridging that right triggers the highest level of constitutional scrutiny. Accordingly, a state regulation that interferes with a fundamental right must be narrowly tailored to achieve a compelling state interest in order to pass constitutional muster. In short, state regulations fail almost always fail this test, because the right being protected has been deemed basically untouchable. (Other fundamental rights include the right to marry, the right to privacy, freedom of religion, and freedom of assembly.)

In an email to Law&Crime,Pacific Legal Foundation attorney Wen Fa, who represents the petitioner fruit sellers in the litigation, explained his clients position in the case:

The Constitution prohibits government from requiring you to allow unwanted strangers into your property. The California regulation here is unconstitutional because it forces property owners to allow unwanted union activists onto their property, and violates the property owners fundamental right to exclude trespassers.

However, Aaron Tang, a constitutional law professor and former clerk to Justice Sonia Sotomayor, warned in a Washington Post piece Thursday that as devastating as a ruling for the plaintiffs would be in the context of unions, its real danger lies outside far outside the context of employment law.

Tang writes:

The disputethreatenshavoc just as great outside the union context. Considerstate lawsthat permit child protection inspectors to make unannounced home visits. Now suppose a homeowner suspected of abuse or neglect wants to keep the inspector out. Under the challengers logic, such individuals would have a Fifth Amendment right to do so unless the government paid the suspected abuser to access the property. The same problem would ensnarenursing home visitsandfood safety inspections.

Indeed, we have seen anti-discrimination ordinances challenged on the grounds that they interfere with First Amendment rights; a ruling that the right to exclude is fundamental would mean an entirely separate basis for bringing legal challenges, rooted in property law (a legal landscape far less politically-charged than religious freedom). The cases potential for broad impact is underscored by the more than 30 amicus briefs submitted to the Court by interested yet uninvolved parties.

As for the justices, their position in the case poses some intriguing questions. The Court decided a landmark union case in 2018; it ruled that an employee who is not a member of a union could not be forced to pay union fees for the collective bargaining done on his behalf. In that case, conservative justice Samuel Alitopenned a decision joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, and Neil Gorsuch. JusticesSotomayor, Elena Kagan, Ruth Bader Ginsburg, and Stephen Breyer dissented.

A conservative majority might similarly side against the pro-union ordinance in the Cedar Point litigation. However, if decided on Fifth Amendment grounds, such a decision threatens to create just the kind of chaos the conservative justices usually endeavor to avoid.

Oral arguments in the case are scheduled for at 10:00 a.m. on Monday, March 22, 2021.

[Photo by Samuel Corum/Getty Images]

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SCOTUS to Decide Whether There Is a Fundamental Right to Kick People Off Your Property - Law & Crime

In 2013, the government forced Rose Knick to grant the public access to her farmland after it was rumored to be the location of a former burial site.

Rose was offered no compensation in exchange for this requirement to allow would-be grave seekers to trespass on her private farma violation of her constitutional rights.

Youve just come face-to-face with the legal principle of takings, under which a government entity takes your private property for public use, either directly by an eminent domain seizure, or indirectly by regulation.

If theres good news in this scenario, its that as a property owner in the United States, youll still enjoy certain rights when youre faced with a property taking, including a right to full compensation and a right to challenge the seizure in court.

In Roses case, Pacific Legal Foundation represented her free of charge, ultimately resulting in a victory at the Supreme Court.

But what is the actual concept of a taking, and why is it so important in our system of government?

As with so many contemporary legal questions, the origin of the debate over property rights stretches back to the very founding of our nation.

Among the key goals of our nations founding documents was to protect individual rights and to place strict limitations on the powers of both the federal and state governments. The Founders well understood that protecting private property rights was of paramount importance in meeting those goals.

While the colonists were still living under British rule, property rights were routinely violated. Writs of Assistance subjected colonists to invasive searches and seizures by British troops under the guise of searching for goods that may have been imported illegally and on which taxes had not been collected. This is precisely why the Fourth Amendment came into existence.

Several other key provisions in the Constitution recognize the fundamental purpose of property rights. For example, the Takings Clause of the Fifth Amendment, which limits the power of the federal government, provides that nor shall private property be taken for public use, without just compensation.

Or consider the Due Process Clause of the Fourteenth Amendment, which similarly limits the power of state and local governments by commanding that nor shall any state deprive any person of life, liberty, or property, without due process of law.

These provisions recognize the fundamental nature of the rights we call propertythe right to tell otherskeep out; the right to develop and use land; and the right to derive income from that property. These rights were critically important, both to the Founders who adopted the original Constitution after the Revolution and the drafters of the Fourteenth Amendment after the Civil War.

And this is where takings come in. The usual situation where the governments power is limited is when it acquires private property by eminent domain. As the Supreme Court has recognized, all sovereign governments have the power of eminent domain by which they can force the owner of private property to sell it to the government.

But that power is limited: it can be executed only as long as the taking is for public use, and the government provides the owner with just compensation. If the public benefits from taking someones private property, it is only fair that the entire publicand not a lone property ownerbear the cost.

That is exactly how the Supreme Court summed it up more than 50 years ago:

The Fifth Amendments guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.

A half-century later, that assessment remains a sound basis for limiting government power and protecting property owners in disputes over takings.

The typical situation is where private property is taken for some public use, such as a highway, post office, or military base, and the government agrees to compensate the owner. It may not seem fair to be forced to give up property, but at least the owner can be confident theyll be justly compensated for the loss, thanks to the aforementioned Fifth Amendment guarantee.

Thats one kind of taking. But the other kind of taking is perhaps a greater threat to property rights because it is more subtle and insidious: regulatory takings.

In a regulatory taking, the government simply adopts regulations that have the effect of restricting the use and value of the property, rather than outright seizing the property. Regulatory takings include things like severe environmental restrictions, outlawing otherwise legal uses, or requiring that the owner allow members of the public on their land.

And critically, even where a regulation severely limits the uses of the property or seriously devalues it, the government does not recognize any obligation to provide the owner with compensation. In such cases, officials will typically say they are only regulating property, not taking it, even though from the owners perspective, the effects on use or value are so severe that government might as well have taken it through eminent domain.

As it turns out, these regulatory takings are eminent domain in all but name, as PLF has proven in court repeatedly.

Nearly a century ago, in Pennsylvania Coal Company v. Mahon, the U.S. Supreme Court recognized the governments constitutional obligation to pay just compensation when it regulates property so severely that it has a devastating effect on the owners use or value.

PLF has drawn on that critical precedent, as well as the language of the Fifth and Fourteenth Amendments to the Constitution, when representing property owners in takings cases, including Supreme Court victories in Nollan v. California Coastal Commission, Knick v. Township of Scott, Pennsylvania, and other cases.

In the most recent example, Cedar Point Nursery v. Hassid, a case now pending at the Supreme Court, PLF represents a California nursery that is being forced by state labor regulations to open its land and allow union representatives on the property to make their pitch to workers.

But what about the owners right to tell others to keep out? Dont California property owners have that right, and why dont Californias rules recognize that there are other places where union organizers can reach these workers just as easily? If California wants to use Cedar Points land as a venue for labor organizing, isnt that essentially the same thing as a taking by eminent domain?

Those are the very questions at the heart of Cedar Point Nurserys challenge to the State of California, in which PLF is arguing that the states union access rule amounts to yet another form of regulatory taking. In so doing, well be adding a new chapter to the long defense of private property rightsa story thats been in development for some two and a half centuries.

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What is the Takings Clause of the 5th Amendment? - Pacific Legal Foundation (PLF)

The term 5th Amendment refers to the more well-known aspect of the Fifth Amendment to the U.S. Constitution, which states that no one can be forced to testify against himself in court. The 5th Amendment also ensures that no one can be tried a second time for a crime of which they were already acquitted. This is referred to as double jeopardy. To explore this concept, consider the following 5th Amendment definition.

Noun

Origin

1791 American Constitution

The 5th Amendment is the amendment to the Constitution that protects people from being forced to testify against themselves. On legal television shows, a character may say I plead the fifth! This means that he is invoking his right under the Fifth Amendment to not be forced to say anything on the stand that could incriminate him.

Unfortunately, while it is a persons right to plead the fifth, many believe that someone who pleads the 5th may, in fact, be guilty. Their opinion is that, if he has nothing to hide, why wouldnt he just testify and clear his name? Why would he make it harder for the attorneys to prove their case unless he had something he didnt want them to know.

The 5th Amendment also protects people from something called double jeopardy. Double jeopardy is the process by which a person who was accused of a crime, and found innocent, would then be charged with that same crime again. The 5th Amendment prevents this from happening. Once a person is found innocent by a jury of his peers, even if new evidence is raised after the fact that proves he is actually guilty, he cannot be tried again for that same crime.

The Fifth Amendment right to counsel provides that someone who is being interrogated by police has the right to have an attorney present during the process. This goes hand-in-hand with someone being read his Miranda rights (If you do not have an attorney, one will be provided for you.). In fact, the Fifth Amendment also requires that someone who is being arrested be read his Miranda rights (More on that later).

The right to counsel section of the Fifth Amendment has been invaluable to those who have been charged with a crime. Entire cases have been thrown out when defendants lawyers have shown that their clients werent read their Miranda rights upon being arrested.

For example, the 5th Amendment protects a defendant who provides police with information during an interrogation, which happened after not being read his Miranda rights. In such a case, all of the information he gave to the police can be considered inadmissible and thrown out even if he confessed to the crime.

This is why the right to counsel is so important. Without a good lawyer by his side, a defendant might not even know that certain evidence may be inadmissible, which is crucial to whether his case proceeds or gets thrown out.

There is an equal protection clause in the 5th and 14th Amendments that protects U.S. citizens right to life, liberty and property without interference from the government. For example, the 5th Amendment states:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

This section covers three equal protection clause rights in particular:

On the other hand, the 14th Amendment says that all persons born in the U.S., or provided with U.S. citizenship, are to be considered U.S. citizens, and no one can make a law that deprives a person of his right to life, liberty and property without due process of law. Due process of law is the entitlement that all U.S. citizens have to be treated fairly in the judicial system. Fair treatment includes, for instance, the right to a trial by jury upon being accused of a crime.

Both amendments are similarly worded with regard to their treatment of the equal protection clause. The main difference between them is that the 14th Amendment is more specific with regard to the inclusion of due process. With the 5th Amendment, due process takes place within the court system. With the 14th Amendment, however, due process is a natural right that protects American citizens from government interference with their ability to live their lives, unless what theyre doing is illegal.

For example, the 14th Amendment further protects a persons right to freedom of speech under the Bill of Rights to the Constitution. Therefore, while a protestor may anger a lot of people by burning the American flag, he has the right to do so under the 14th Amendment. What he is doing is not illegal, and therefore the government cannot interfere.

An example of the 5th Amendment at work can be found in the case that started it all when it comes to Miranda rights: Miranda v. Arizona. In 1966, Ernesto Miranda was arrested in Phoenix, Arizona on evidence that supposedly proved he was involved in a crime involving kidnapping and rape. After an interrogation that dragged on for hours, Miranda confessed to the charges. He also signed a statement acknowledging that he was voluntarily making the confession.

At no point before or during the interrogation was Miranda made aware of the fact that he had the right to have counsel present during the interrogation. He was also unaware of the fact that he had the right to remain silent, and he did not know that the statements he was making could be used against him during his trial. Upon learning this, he objected to the usage of his written confession at trial. He argued that because he was unaware of his rights under the 5th Amendment, his confession must be thrown out as involuntary.

Mirandas objection was overruled, and he was convicted of both crimes and sentenced to 20-30 years in prison. His written confession played a major role in his conviction. Miranda appealed his conviction, once again citing the involuntarily-made confession. The Arizona Supreme Court denied his appeal.

In June 1966, Miranda brought his case to the U.S. Supreme Court. The Court then had to decide whether the protections afforded to U.S. citizens under the 5th Amendment could be extended to cover police interrogations as well. The Court ruled in Mirandas favor, 5 4. Specifically, the Court held that:

The prosecution may not use statements, whether exculpatory or inculpatory, stemming from questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way, unless it demonstrates the use of procedural safeguards effective to secure the Fifth Amendments privilege against self-incrimination.

The Court also included more detailed criteria to support this argument, including:

The atmosphere and environment of incommunicado interrogation as it exists today is inherently intimidating, and works to undermine the privilege against self-incrimination. Unless adequate preventive measures are taken to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.

And

The privilege against self-incrimination, which has had a long and expansive historical development, is the essential mainstay of our adversary system, and guarantees to the individual the right to remain silent unless he chooses to speak in the unfettered exercise of his own will, during a period of custodial interrogation.

Related Legal Terms and Issues

Excerpt from:
5th Amendment - Definition, Examples, Cases, Processes