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									                                          Current Cases
                                            January 2012

                                       Summary Statistics

                                   Open Cases                      Closed During 2011
        Direct                        24                                   10
        Amicus                         7                                    9

         Total                         31                                   19

                                  (New developments in bold)
                                         Religious Liberty

Jewish War Veterans of the United States of America, Inc. et al. v. Rumsfeld (direct) – This case
is the latest chapter in the ongoing challenge to the cross atop Mount Soledad. In an attempt to
help the City of San Diego evade a series of unfavorable decisions that the City’s display of the
Mt. Soledad cross violated the California Constitution, the United States took title to the cross
and its surrounding property through eminent domain. In response, the ACLU filed suit in
federal court because the Establishment Clause also prohibits the government from sponsoring
this Latin cross on public land. The district court ruled for the government on July 29, 2008. We
appealed to the Ninth Circuit. The case was argued on December 9, 2009. In a unanimous
opinion written by San Diego resident Judge Margaret McKeown, the court ruled in our favor on
January 4, 2011. After reviewing the full social, historical, and physical context of the Mt.
Soledad cross, the court found that “the Memorial, presently configured and as a whole,
primarily conveys a message of government endorsement of religion that violates the
Establishment Clause.” On October 14, 2011, the Ninth Circuit denied rehearing en banc, with a
dissent by Judge Bea, joined by Judges O’Scannlain, Tallman, Callahan, and Ikuta. The
government is deciding whether to ask the Supreme Court to review the case, the deadline
for which has been extended to February 11, 2012.

Barnes-Wallace et al. v. City of San Diego et al. (direct) – This lawsuit was filed on behalf of an
agnostic family and a family with lesbian parents, both containing persons explicitly excluded
from membership in the Boy Scouts of America. The City of San Diego was leasing public
property to the BSA for only $1/year, which a federal district judge said “provided not even the
pretense of neutrality” toward religion, thus violating the federal and state constitutions. The
City of San Diego settled with plaintiffs, agreeing to pay attorney’s fees and to terminate the
lease at the earliest opportunity. The Scouts appealed. In December 2006, after briefing and
argument, the Ninth Circuit held that plaintiffs have standing and certified potentially dispositive
questions of state law to the California Supreme Court. The Scouts petitioned for rehearing. On
June 11, 2008, the court issued a new order, confirming that plaintiffs have standing but on a
different theory than it relied on previously, and again asking the California Supreme Court to
decide the state law questions. The California Supreme Court declined to answer the questions
while the standing issue was pending. After the United States Supreme Court denied the Scouts’

interlocutory petition for certiorari on the standing issue, the Ninth Circuit again certified state
law issues to the California Supreme Court on June 3, 2010. However, on October 13, 2010, the
California Supreme Court declined the case, sending it back to the Ninth Circuit for decision on
the merits. The Ninth Circuit directed the parties to file supplemental briefs addressing relevant
developments in state and federal law occurring after the original briefing was completed in
2005. The court then heard oral argument on June 20, 2011. We are waiting for a decision.

                             Freedom of Expression and Information

Harris v. County of Los Angeles (direct) – We joined a public records case brought with the other
California affiliates against Los Angeles County and its district attorney. The case arises from a
California Public Records Act request for documents concerning the costs of homicide and death
penalty prosecutions. Though other counties produced documents in response to similar
requests, including standard reimbursement forms, the Los Angeles District Attorney denied that
it possessed any documents covered by the request. The case is now in discovery.

Oceanside Music Ban (direct) – After Mark Mayville played his electric guitar with a portable
amplifier on the Oceanside Pier, he was cited and found guilty of violating a section of the
Oceanside municipal code that bans any form of live music with or without amplification on any
public sidewalk. On September 6, 2011, we sent a letter to Oceanside explaining that this
section of the municipal code is clearly unconstitutional. We asked the city to vacate the guilty
finding and amend the ordinance in order to avoid litigation. Though it did not admit fault, the
city responded by moving to vacate the finding and considering amendments to its noise
ordinance. The Oceanside City Attorney’s office indicated that it hoped to present amendments
to the City Council before the end of 2011. We are following up on the status of proposed

Makaeff v. Trump University LLC (amicus) – Tarla Makaeff sued Trump University LLC for
unlawful and deceptive business practices, false advertising, fraud and other claims. According
to the complaint, “Trump University” is an “education” company founded by Donald Trump that
trades on Donald Trump’s name and image to offer “courses in real estate, asset management,
entrepreneurship and wealth creation,” though it is not an accredited university. According to
the complaint, students were promised “priceless insight and information” from mentors who
were “experts in the real estate industry” but instead gained little or no information of value
despite paying over $35,000 in fees. Trump University counterclaimed for defamation arising
from her criticisms. The district court denied Ms. Makaeff’s anti-SLAPP motion to strike the
defamation claim on the ground that Trump University, unlike Donald Trump as an individual, is
not a public figure subject to stringent First Amendment standards for proving defamation. We
filed an amicus brief in support of Ms. Makaeff’s appeal, arguing that Trump University is a
public figure because it is inextricably intertwined with Donald Trump’s persona for First
Amendment purposes. The case is scheduled for argument on January 18, 2012.

California Highway Patrol Censorship in Escondido (direct) – As Escondido police officers
have previously done, CHP officers unlawfully prevented demonstrators from exercising their
First Amendment right to protest vehicle checkpoints from a public sidewalk adjacent to a public
street. Citing an inapplicable Vehicle Code provision that applies to selling goods and services

within 500 feet of a freeway ramp, an officer unconstitutionally instructed the demonstrators to
move away from their location on a public sidewalk. In response to an initial demand letter,
CHP asserted the officer was concerned with “driver safety, as he believed passing traffic was
being distracted by the protest signs.” In a follow-up letter, sent as a precursor to litigation if
necessary, we explain that alleged driver distraction is not a legitimate basis to curtail roadside
political speech, especially when the location in question has numerous commercial signs.

Hoshijima v. Shelburne (direct) – Yumehiko Hoshijima is a recent graduate of La Jolla High
School (LJHS), which has a tradition of allowing students to paint various messages on the
“senior benches.” On February 15, 2011, the day after massive popular protests erupted in Iran,
two LJHS students painted “Freedom for Iran” and “Down with Dictator” on the benches to
express their support for freedom and democracy in Iran. After the LJHS principal, Dana
Shelburne, ordered staff to whitewash those messages on the ground that the benches were
limited to “positive messages about LJHS students and school activities,” Mr. Hoshijima painted
the benches with “Freedom for LJHS & Iran” and “Ed. Code 48907.” Shelburne likewise
ordered the whitewashing of those messages. After the school district failed to help us resolve
the case without litigation, we filed suit on May 16, 2011, seeking an immediate restraining order
against further censorship. On June 7, 2011, after the motion for restraining order was argued,
the school district stipulated to a preliminary injunction prohibiting removal of the benches or
further censorship pending resolution of the case. We are preparing final documents to
implement an agreed settlement.

Martin v. Naval Criminal Investigative Service (direct) – Carolyn Martin is a former Marine who
works as a contract defense investigator in Navy and Marine Corps court-martial cases. Though
civilian defense counsel routinely employ independent investigators, appointed by the court if
necessary, the military justice system rarely if ever provides defense investigators. Her zealous
work, leading to acquittal or other favorable results in numerous cases, has incurred the wrath of
certain Naval Criminal Investigative Service (NCIS) agents and a Staff Judge Advocate at
Marine Corps Recruit Depot (MCRD) San Diego. They have retaliated against her by
harassment, illegal seizure, intimidation, and restriction of her right to attend court at MCRD.
We filed a cutting-edge legal challenge against this retaliation. In response to our motion for
preliminary injunction to restore Ms. Martin’s First Amendment right to attend court at MCRD,
the government conceded that MCRD allows the public, including Ms. Martin, to attend open
hearings on base. On August 3, 2011, the court denied motions to dismiss our core First
Amendment claims for retaliation and access to court. NCIS Agent Gerald Martin appealed the
court’s ruling that he is not entitled to qualified immunity in his individual capacity for violating
Ms. Martin’s constitutional rights. The other defendants filed an answer denying fault. We have
moved to amend the complaint to add claims under the Federal Tort Claims Act, which
holds the United States liable for certain torts committed by its employees.

Newcomb v. U.S. Office of Special Counsel (direct) – Christopher Newcomb is a former naval
officer and a civilian employee of the Navy. In July 2009, he was appointed to fill the unexpired
term of a school board member for the Alpine Union School District. He ran for election to the
board in November 2010. He is covered by the Hatch Act, which places strict limits on the
political activities of federal employees. As interpreted by the U.S. Office of Special Counsel
(OSC), which enforces the Act, a federal employee may not run in any election if another

candidate represents a political party, even if the employee is strictly independent and the
election is nonpartisan under state law. Mr. Newcomb ran a completely nonpartisan campaign,
but two of his opponents were supported by political parties. We sought a declaratory judgment
that the Hatch Act did not prohibit him from running. On October 15, 2010, the court dismissed
the case as not “ripe for review.” Though Mr. Newcomb lost the election, he intends to run
again in 2012. In response to our request for a further opinion, OSC advised on March 28, 2011
that the mere endorsement of other candidates by political parties does not disqualify Newcomb
from running. However, the opinion avoids the question whether the election is “partisan” if
other candidates receive support from parties in the form of campaign mailings, which is the
primary benefit of party endorsement in a small school board election. OSC then refused to
clarify its position and stated it would have to open a formal investigation of Newcomb to
proceed further. As a result, we filed a new case on October 18, 2011, again seeking to protect
his First Amendment right to run a nonpartisan campaign unclouded by the threat of Hatch Act
investigation or enforcement. OSC moved to dismiss the case. Our response was filed
January 13, 2012. The motion is scheduled to be heard January 30, 2012.

Johnson v. Poway Unified School District (amicus) – Bradley Johnson is a teacher at Westview
High School in the Poway Unified School District. The District ordered Johnson to remove two
banners he had posted in his classroom. One banner has red, white, and blue stripes, and has
four phrases in large block letters, one over another: “IN GOD WE TRUST”; “ONE NATION
other banner reads, in large font: “All Men Are Created Equal, They Are Endowed By Their
CREATOR.” At the same time, the District allowed another teacher to continue posting a 35-40
foot string of Tibetan prayer flags. On appeal from summary judgment against it, the District
argues that teachers have no free speech rights in the classroom, while Johnson argues that free
speech rights trump any Establishment Clause concerns over his banners. On September 7,
2010, we filed an amicus brief taking a middle ground. We argue that teachers retain certain free
speech rights in the classroom, but those rights must be interpreted in light of the Establishment
Clause. Students reasonably believe that public school teachers speak for the government,
regardless of whether their speech is specifically authorized by the school. As a result, the
District has a compelling interest in preventing teachers from giving the appearance that the
District is endorsing religion. The District thus acted properly in ordering Johnson to remove his
banners. However, the District improperly discriminated by not ordering removal of the prayer
flags, which are sacred symbols and also raised Establishment Clause concerns. On September
13, 2011, the Ninth Circuit reversed the district court’s judgment and ruled for the District on all
issues. Without dissent, the full court denied rehearing en banc on October 21, 2011. If
Johnson intends to ask the Supreme Court to review the case, he must file a petition by
January 19, 2012 unless the deadline is extended.

Thalheimer et al. v. City of San Diego (amicus) – Several plaintiffs filed suit in federal court
challenging various portions of the City of San Diego’s campaign finance ordinance. Consistent
with ACLU policy, we filed an amicus brief arguing that three provisions violate the First
Amendment: (1) a ban on candidates using their own resources to campaign more than 12
months before a primary election; (2) a ban on seeking or accepting campaign contributions
more than 12 months before a primary election; and (3) restrictions on independent expenditures,
which by definition are uncoordinated with a candidate. On February 16, 2010, the court issued

a preliminary injunction agreeing with us on the first and third points but not the second.
Plaintiffs and the City both appealed to the Ninth Circuit. On May 6, 2010, we filed an amicus
brief in the Ninth Circuit consistent with our position in the district court. The case was argued
in the Ninth Circuit on October 4, 2010. Emphasizing the limited nature of the factual record at
this early stage of the case, the Ninth Circuit affirmed the district court’s order on June 9, 2011.
The Ninth Circuit then denied plaintiffs’ petition for rehearing en banc. The district court
heard cross-motions for summary judgment on January 6, 2012.

Rivera v. Carter (direct) – The federal government filed a RICO indictment in the Central
District of California against then-current and former members of the Mongols Nation
Motorcycle Club, alleging that trademarks used by Club members to affirm their membership are
subject to forfeiture if the criminal defendants are convicted. After obtaining an ex parte
restraining order in the criminal case, the government confiscated items bearing the marks from
uncharged members and supporters of the Club, in violation of their First Amendment rights. On
behalf of Ramon Rivera, an uncharged Club member, we filed an action to enjoin federal agents
from seizing or attempting to seize items bearing the marks. On July 31, 2009, the court granted
a preliminary injunction in our favor, ruling that the government violated forfeiture, trademark,
and First Amendment law. Later, we defeated a motion to dismiss and overcame multiple
procedural obstacles thrown up by the government. We then moved for summary judgment and
a permanent injunction. On January 4, 2011, the court ruled in our favor on all issues,
condemning the government’s theory as “creative to a fault” and again holding that the
government violated basic principles of forfeiture, trademark, and First Amendment law. On
August 4, 2011, the court disposed of the government’s motion to amend the judgment. The
government initially filed a notice of appeal, but the Ninth Circuit dismissed the appeal on the
government’s motion. We filed a motion for attorney fees on November 23, 2011. The
motion is scheduled to be heard on February 13, 2012.

                                           Voting Rights

No active cases.

                                          Police Practices

Martin v. NCIS (direct) – See above under Freedom of Expression and Information.

                                        Immigrants’ Rights

Fernandez Crespo v. Baker, et al. (new case) (direct) – Miguel Angel Fernandez Crespo is an
asylum seeker from Cuba who has been detained by the Department of Homeland Security
(DHS) for more than a year at the immigration detention center in Otay Mesa. Mr. Fernandez is
a former political activist who opposed the Castro regime. He twice sought to flee to the United
States from Cuba on makeshift rafts, but the regime arrested and punished him for trying to
leave. Later, the Castro regime convicted him of “terrorism” in “national security” court
proceedings lacking in even the most basic due process protections. During his subsequent
imprisonment, both the Vatican and the U.S. Agency for International Development called Mr.
Fernandez a political prisoner. Now that Mr. Fernandez has finally reached our shores, DHS

seeks to block him from obtaining asylum based on the “terrorism” conviction and refuses to
release him based on “national security” concerns. On December 27, 2011, we filed a petition
for writ of habeas corpus in federal district court seeking his immediate release or, in the
alternative, a bond hearing before a neutral decision maker to determine whether his ongoing
detention is actually justified. The case presents important questions about the due process rights
of detained asylum seekers and about the government’s reliance on foreign judicial proceedings
that are fundamentally unfair. The government’s response to the petition is due January 27, 2012
and our reply brief is due February 10.

Salas v. Sierra Chemical Co. (amicus) – We joined with the other California affiliates and
numerous labor, employment, legal aid, immigrants’ rights, and civil rights organizations in a
letter to the California Supreme Court asking it to review a lower court decision holding that an
employer may escape liability for employment discrimination by relying on evidence it acquired
after the discrimination occurred to claim that the employee is unauthorized to work in the
United States. We argue the court misconstrued California statutes meant to protect
undocumented workers from unlawful employment practices. The petition for review was
granted on November 16, 2011.

Centeno v. Culley, et al. (direct) – Glorismel Centeno-Ortiz has lived in the United States since
his family brought him here as a boy, fleeing war and violence in El Salvador. But because he
left the United States for a few hours to enjoy a night out in Tijuana with some friends, before
seeking to reenter the U.S., the Department of Homeland Security considers him an “arriving
alien” who can be detained indefinitely with no right to a hearing to challenge his detention. Mr.
Centeno has now been detained by DHS for nearly three years without any opportunity to
challenge the justification for his detention. On August 26, 2011, we filed a petition for writ of
habeas corpus, challenging the legality of his detention without procedural safeguards. On
September 29, a few days before the government’s response to the petition was due, DHS
released Mr. Centeno from detention. It then asked the court to dismiss the case, arguing that
Mr. Centeno’s release makes his case moot. On October 17, we opposed the government’s
request, arguing the case is not moot because DHS did not disavow its authority to detain Mr.
Centeno again and because he was released on a number of onerous conditions. The case
remains pending in the district court.

Franco-Gonzalez v. Holder (direct) – An estimated 15 percent of all immigration detainees have
a mental disability. Yet unlike the criminal justice system, the immigration system has no
standard procedures to resolve cases against detainees with mental disabilities who are
incompetent to follow the proceedings against them or unable to represent themselves effectively
in the byzantine world of immigration law. Representing detainees with severe mental
disabilities, some of whom languished in detention for years, we joined with the ACLU’s
Southern California affiliate, ACLU Immigrants’ Rights Project, Public Counsel, Mental Health
Advocacy Services, Northwest Immigrant Rights Project, and Sullivan & Cromwell LLP to
pursue a class action challenge against the government in Los Angeles federal court. Our case
argues that the government is violating due process, immigration statutes, and the Rehabilitation
Act by failing to provide competency evaluations, detention hearings or release from custody,
and when necessary appointed counsel to detainees with mental disabilities. We have prevailed
on early rulings that require the government to provide individual plaintiffs with qualified

representatives and appropriate bond hearings. On November 21, 2011, the court certified our
case as a class action. After this critical victory, we are proceeding with discovery.

Sanchez de Gomez v. Baker (direct) – Guillermo Gomez-Sanchez is a long-time lawful resident
of the United States and a Mexican citizen who suffers from serious mental illnesses. We filed a
petition for writ of habeas corpus on his behalf, through his mother acting as his next friend, on
March 26, 2010, after Mr. Gomez-Sanchez spent over four years in immigration detention. For
over half that time, Mr. Gomez-Sanchez’s case was administratively closed, because the
government did not comply with the immigration judge’s order to conduct an evaluation of Mr.
Gomez-Sanchez’s competency. Our petition raises challenges to the length of Mr. Gomez-
Sanchez’s detention under immigration statutes, the Constitution, and the Rehabilitation Act.
Five days after we filed the petition, the government released Mr. Gomez-Sanchez on electronic
monitoring and other conditions. On July 29, 2010, the court dismissed the case as moot, and we
appealed. We completed our Ninth Circuit briefing, arguing the government cannot avoid
scrutiny of its illegal detention practices simply by releasing the detainee after a case is filed.
We presented oral argument to the Ninth Circuit panel on October 12, 2011.

Woods et al. v. Myers et al. (direct) – This is a class action case challenging unconstitutional
denial of medical care to immigration detainees at San Diego Correctional Facility (SDCF), a
private detention center run by Corrections Corporation of America, Inc. (CCA), under contract
to U.S. Immigration and Customs Enforcement (ICE). Persons detained at SDCF have been
routinely subjected to long delays before treatment, denied necessary medication for chronic
illnesses, and refused essential referrals prescribed by medical staff. Delays in providing
necessary care have resulted in death in certain cases. The denials of care often resulted from an
excessively restrictive “Covered Services Package” imposed by the federal government’s
Division of Immigration Health Services. After an extensive mediation process, the parties
agreed to a settlement under which the government will revise the Covered Services Package to
ensure that the serious medical needs of detainees will be treated before they become life-
threatening emergencies. In addition, the settlement requires the government to provide health
care to SDCF detainees that meets or exceeds National Commission on Correctional Health Care
standards, and to provide an additional full-time psychiatrist and four full-time psychiatric nurses
at SDCF. On April 21, 2011, the district court certified a settlement class of current and future
SDCF detainees. At a hearing on June 10, 2011, the court approved the settlement. We are
monitoring settlement compliance and medical care issues. Recently, in response to a letter we
wrote based on our investigation, the government agreed to provide medical care to an individual
detainee who had been denied surgery necessary to relieve severe pain. We continue to monitor

                                      Rights of the Accused

Presentment Delay and Short-Term Detention Problems (direct) – Individuals arrested for
federal criminal prosecution by Customs and Border Protection (CBP) and Border Patrol often
face delays of five or more days before being brought to court for an initial appearance, or
presentment. During their detention in CBP and Border Patrol custody, arrestees are sometimes
held incommunicado and are normally subjected to inhumane and unsafe conditions: sleeping
on a hard floor in an overcrowded hold room, not receiving enough to eat, not being given a

change of clothes, not being provided with an opportunity to shower, and not being provided
medical care for serious chronic conditions. We sent a demand letter to CBP and other agencies
on October 19, 2011, arguing that the delays and conditions violate the Constitution and other
laws. Apparently motivated in part by our letter, the district court directed the
government to account for all criminal detainees not yet presented for arraignment, by
order issued in a pending criminal case. Though the court has stayed the order at the
government’s request, the order prompted the government to begin implementing systemic
changes to eliminate unreasonable delays in arraignment and unconstitutional conditions
of pre-arraignment detention.

                                         Prisoners’ Rights

Armstrong v. Board of Supervisors (direct) – In violation of constitutional, statutory and
administrative requirements, San Diego County jails were severely overcrowded. Even though a
consent decree setting population caps for each facility was adopted in 1988, the County’s only
jail for women was still severely overcrowded in 1993, at which point the ACLU initiated
contempt hearings. The Fourth District Court of Appeal affirmed the part of the lower court’s
decision holding the Sheriff in contempt, and the contempt finding and the attendant fines
continued until 1997, when the order was lifted due to an acceptable stabilization in the prison
population. The ACLU continues to monitor compliance with the consent decree. By shifting
responsibility for many future offenders from the state to counties, the recent realignment of the
California correctional system presents potential compliance problems. We are watching the
County closely to make sure it remains in compliance with the consent decree.

In the Matter of Overcrowding of Detainees at San Diego County Juvenile Hall (direct) –
Immediately after court oversight of conditions at Juvenile Hall ended in 1996, the population at
the facility increased to the point that there were eighty more children than beds. In mid-1998,
the ACLU contacted the San Diego County Counsel’s office to resolve the crisis without
resorting to new litigation. After meeting with the ACLU in September 1998, the presiding judge
of the juvenile court limited the number of detainees at Juvenile Hall, which has yet to exceed
that limit. The ACLU continues to monitor compliance.

                                         Education Rights

Doe v. State of California (direct) – This case arises from the statewide problem that public
schools are charging fees to students to obtain assigned materials in courses for academic credit.
Though California law is clear that such fees are illegal, schools often resort to such fees to help
cover budget shortfalls over which they have little control, because public education funding is
largely controlled by state government. The California ACLU affiliates filed suit in Los Angeles
County Superior Court against the state to require it to properly enforce the free schools
guarantee of the California Constitution. After negotiations, the parties preliminarily agreed to a
settlement under which the state would provide clear notice to school districts on what student
fees are legal and illegal. In addition, the Legislature approved a bill – AB 165 – to clarify the
law on student fees and establish enforcement mechanisms: (1) an administrative complaint and
review process; and (2) amendments to audit requirements in the Education Code, requiring
auditors to certify that no illegal fees have been charged and requiring the state to withhold a

certain amount of administrative funds from school districts until any illegal fees have been
reimbursed. Unfortunately, Governor Brown vetoed AB 165. The court will hear defendants’
motions to dismiss the case on January 25, 2012.

Williams v. State of California (direct) – The ACLU, as part of a large coalition of civil rights
groups, sued the State of California in 2000 alleging that California was negligent in assuring
equal access to public education, as public schools serving the poor children and children of
color were lacking in basic resources. On August 13, 2004, a settlement was reached with the
state, approved by the Court on March 23, 2005, that required all California public schools to be
clean and functional, and all public school students to have qualified teachers and instructional
materials. This affiliate is currently working on implementing the settlement in our territory.

                                        Rights of the Poor

Isaiah Project et al. v. City of San Diego et al. (direct) – On three occasions in September and
October 2009, employees of the City of San Diego and/or Downtown San Diego Partnership
(DSDP) illegally confiscated and destroyed the personal property of homeless persons, including
clothes, shoes, bedding, identification, medication, and irreplaceable photographs and family
mementos. The employees also destroyed shopping carts bought by the Isaiah Project and
provided to homeless people at no charge. With the Dreher Law Firm, which has a long history
of advocacy on behalf of the poor and homeless, we filed a complaint and motion for temporary
restraining order in federal district court on December 2, 2009, alleging that the City and DSDP
violated state and federal constitutional rights, state statutes, and common law in summarily
confiscating and destroying the vital and often irreplaceable personal property of homeless
people. After the defendants agreed not to resume similar conduct while the case is pending, we
withdrew the motion for temporary restraining order and began settlement negotiations. On
January 11, 2011, the San Diego City Council unanimously approved a negotiated settlement.
The City and DSDP agreed to pay a total of $160,000 , allocated as follows: (1) $100,000 to the
Isaiah Project to operate a facility for storage of homeless people’s personal belongings, modeled
after a successful program in Los Angeles; (2) $20,000 to a compensation fund for victims of the
raids; and (3) $40,000 in attorneys’ fees. Because this is a class action, the settlement must be
approved by the district court. On May 10, 2011, the court provisionally certified the class for
settlement purposes. On November 22, 2011, after a hearing, the court issued an order
certifying the class for settlement purposes and approving the settlement. The
compensation fund is being distributed to class members under the settlement.

Bautista v. State of California (direct) – On July 30, 2009, we joined as co-counsel in a lawsuit
filed by ACLU of Southern California on behalf of individual farm workers and the United Farm
Workers of America, challenging the state’s failure to adopt sufficient safeguards to protect farm
workers from excessive heat as a violation of the California Constitution and relevant statutes.
After briefing and argument on a defense motion to dismiss the case, on May 18, 2010 the court
dismissed Plaintiffs’ claim against the State of California, the State Department of Industrial
Relations (DIR), and the State Occupational Safety and Health Standards Board (OSHB) for
violation of Article XIV, section 4 of the California Constitution, which established the workers’
compensation system. However, the court denied the motion to dismiss claims against the
Division of Occupational Safety and Health (a component of DIR) for violation of its mandatory

duties under the California Occupational Safety and Health Act and other provisions of the Labor
Code. On December 6, 2011, the Court of Appeal upheld the dismissal of our constitutional
claim. With respect to the statutory claims, the state produced certain documents in
discovery but objected to disclosing others. The state then filed a petition for writ of
mandate in the Court of Appeal objecting to the Superior Court’s order compelling
disclosure. On December 15, 2011, the Court of Appeal issued an order staying the case
and scheduling argument on the writ for February 8, 2012.

                                           LGBT Rights

Every Nation Campus Ministries at San Diego State University, et al., v. Reed et al. (amicus) –
see below under Freedom from Discrimination.

                                       Reproductive Rights

Attorney General Opinion (direct) – The California Attorney General received a request from
State Senator Mark Wyland to issue an opinion on whether a certain statute requires school
counselors to disclose a minor student’s pregnancy to the principal and the student’s parents or
guardian, and whether failure to make such disclosure could expose the school or counselor to
liability for negligence per se. In response to a request from the Attorney General for comment,
we joined with the other California ACLU affiliates in a detailed letter explaining why the statute
neither requires nor authorizes such disclosure and therefore why there is no liability for not
making such disclosure. We explained that the statute by itself does not require disclosure and
that it must be construed in light of other statutes guaranteeing confidentiality to minors
regarding pregnancy-related information, as well as the California Constitution, to prohibit such
disclosure without the minor’s consent. On December 29, 2011, the Attorney General issued
an opinion agreeing with us that the statute does not require school counselors to disclose a
student’s pregnancy-related information. According to the Attorney General, the statute
permits but does not require counselors to disclose such information when the counselor
has reasonable cause to believe that disclosure is necessary to avert a clear and present
danger to the student’s health, safety, or welfare. So construed, the statute does not violate
the state constitutional right to privacy because if such circumstances exist, disclosure is
necessary to serve a compelling state interest. Because the statute creates no mandatory
duty of disclosure, neither a school district nor counselor is liable for negligence per se
arising from nondisclosure. The case is now closed.

                                          Privacy Rights

Campbell et al. v. AT&T Communication of California, Inc. et al.; Riordan et al. v. Verizon
Communications, Inc. et al. (direct) – The California ACLU affiliates filed a lawsuit in state
court in their own names and on behalf of multiple plaintiffs, requesting injunctions against
AT&T and Verizon to prevent them from providing the NSA with the personal phone records of
millions of customers. The complaints allege that the companies violated the right to privacy in
Article I, Section I of the California Constitution, as well as the Public Utilities Code, which says
that no telephone company shall “make available” a residential subscriber’s calling information
unless the subscriber has given written permission. AT&T and Verizon removed the cases to

federal court, asserting federal jurisdiction, and the federal government intervened. The ACLU
unsuccessfully moved to remand the cases to state court. The district court held that the state
secrets privilege does not bar this action. However, the district court dismissed our case under
the retroactive immunity provision in the FISA amendments of 2008. We appealed on the
ground that the FISA amendments unconstitutionally granted retroactive immunity. On
December 29, 2011, the Ninth Circuit disagreed and affirmed the district court’s order.
We are evaluating whether to seek further review.

                                  Freedom from Discrimination

Harris v. City of Santa Monica (amicus) – We joined an amicus brief filed by the California
ACLU affiliates and several other civil rights organizations in an employment discrimination
case. The brief asks the California Supreme Court to hold that an employer violates the Fair
Employment and Housing Act (FEHA) whenever it takes adverse action against an employee
that is motivated by a prohibited factor (in this case, pregnancy), regardless of whether the
employer would have made the same decision for other reasons. If applied to immunize an
employer from liability, the “same-decision” defense significantly undermines the protections of
anti-discrimination law. To the extent appropriate in individual cases, the court may use its
equitable powers to craft appropriate remedies rather than exempt the defendant from liability for
its unlawful discrimination. The case is fully briefed and waiting for an argument date.

Every Nation Campus Ministries at San Diego State University, et al., v. Reed et al. (amicus) –
The plaintiffs refused to comply with university policies requiring student groups who seek the
benefits of formal recognition to refrain from discriminating on the basis of religion or sexual
orientation in accepting members or electing leaders. Without such recognition, they remained
free to speak and associate on campus, but without the official subsidies and benefits granted to
recognized groups. Plaintiffs sued the universities and relevant officials on First Amendment
grounds, seeking official recognition and funding. The ACLU’s of San Diego and Southern
California filed an amicus brief in support of dismissing plaintiffs’ First Amendment claims,
arguing that non-discrimination policies regulate conduct, not speech, and do not violate
plaintiffs’ right to expressive association or free exercise of religion. On February 6, 2009, the
district court agreed with our position and granted summary judgment against the plaintiffs,
dismissing their case. Some of the plaintiffs appealed to the Ninth Circuit. The lead plaintiff on
appeal is Alpha Delta Chi, Delta Chapter. On July 30, 2009, together with ACLU LGBT &
AIDS Project and ACLU Program on Freedom of Religion and Belief, we filed an amicus brief
in the Ninth Circuit. We argue that the university has a compelling interest in eradicating
invidious discrimination in programs to which it provides official support and that organizations
that violate viewpoint-neutral rules against discrimination have no constitutional right to official
subsidies. On August 2, 2011, the court issued an opinion agreeing with our position. Plaintiffs
filed a petition on December 14, 2011 asking the Supreme Court to review the case.

                                        Drug Law Reform

Pack v. Superior Court (amicus) – By invitation of the California Court of Appeal, Second
Appellate District, the national ACLU and California affiliates filed an amicus brief on June 23,
2011, together with the Drug Policy Alliance and Americans for Safe Access, regarding the City

of Long Beach’s ordinance on medical marijuana collectives. We argue that the ordinance is not
preempted by federal law but that certain provisions violate the constitutional right against self-
incrimination by requiring the collectives to collect and report information that exposes
individuals to prosecution for violations of federal law. On October 4, 2011, the Court of Appeal
held that federal law preempts local regulation of collectives permitted by state law. The opinion
arguably conflicts with County of San Diego v. San Diego NORML, in which we successfully
argued that federal law does not preempt the requirement that counties issue identification cards
to qualified patients who properly request them. We joined an amicus letter to the California
Supreme Court on December 12, 2011, asking the court to grant review or order
depublication of the opinion. The court is scheduled to decide whether to grant review on
or before February 8, 2012.

                                        Access to Courts

No active cases
                                          Youth Rights

No active cases


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