Short take-away: Agent's admissions are not "deemed admitted" by principal (Inzunza v. Naranja)

 

Short take-away - it was error to preclude the principal from contesting factual matters deemed admitted as to the agent

The Second Appellate District, Division Four, has held that factual matters deemed admitted as to an agent do not preclude the principal from contesting liability. (Inzunza v Naranja (August 21, 2023) B318956.)  Naranja, the driver of the vehicle involved in a fatal collision with Inzunza, had factual matters "deemed admitted" against him because he failed to respond to requests that he, for example, admit he was entirely at fault and the driver of the other vehicle was not comparatively negligent.  Inzuna's heirs moved by way of a motion in limine to prohibit any party from introducing any evidence at trial that was contrary to these party admissions, effectively precluding the principal, employer CRGTS, from fully defending the action. In an opinion written by Justice Currey, the Second District held with clarity that admissions pertaining to an agent did not preclude the principal from contesting liability:

We begin with the plain language of the statute. . . section 2033.410 provides, in relevant part, that any matter deemed admitted “is conclusively established against the party making the admission” and is “binding only on that party.” (§ 2033.410, subds. (a) and (b), italics added.) It is undisputed that Inzunza failed to respond to plaintiffs’ requests for admission propounded on him, and the trial court correctly deemed the matters in the requests admitted by Inzunza. It is also undisputed, however, that CRGTS timely responded to plaintiffs’ requests for admission, and denied some of the same requests as those deemed admitted by Inzunza. . . .  The basis of plaintiffs’ action against CRGTS is vicarious liability arising from the acts of Inzunza. Vicarious liability of an employer is wholly derivative of the employee’s fault. If the employee is not at fault, the employer is not vicariously liable. [Citation.]  Thus, by precluding CRGTS from introducing evidence contesting liability, the trial court saddled it with Inzunza’s deemed admissions—making his admissions of fault binding not only on Inzunza, but also CRGTS, in violation of section 2033.410. (Id., pp. 7-8.)

Inzunza noted that while an agent's actions bind the principal, the agent's actions in failing to respond to discovery were not within the "course and scope" of employment.  The appellate court also noted that CACI No. 210 provided guidance in this area, providing in brackets that the jury, where appropriate, should be instructed, ". . . these matters must be considered true only as they apply to the party who admitted they were true.” Moreover, the directions for CACI 210 provide plainly that “The bracketed phrase should be given if there are multiple parties.” 

 

The jury should be told the agent's admissions do not bind the principal

The Second District expressly instructed the Superior Court that upon retrial the jury should be told the employee's admissions do not bind his employer.  Therefore, the text quoted above, which the jury was not given during the first trial, must be read to the jurors.

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Short-takeway - Agent of employer on hook for asking illegal questions of job applicants (Raines v. US Healthworks)

 

Short Take-away:  Agent of employer who asked invasive questions as part of a pre-employment screening may be sued under California's FEHA

Responding to a question from the Ninth Circuit Court of Appeals, the California Supreme Court has held the agent of an employer may be sued under the Fair Housing and Employment Act (FEHA) when it acts on behalf of an employer and asks intrusive questions prohibited by law. (Raines v. US Healthworks (August 24, 2023) S273630.)  Questions from defendant US Healthworks Medical Group to potential employees of the hiring employer included:

. . . USHW required job applicants to complete a written health history questionnaire that included numerous health-related questions having no bearing on the applicant’s ability to perform job-related functions. According to plaintiffs, these questions covered details of the applicant’s health history including “whether the applicant has and/or has ever had: 1) venereal disease; 2) painful or irregular vaginal discharge or pain; 3) problems with menstrual periods; 4) irregular menstrual period; 5); penile discharge, prostate problems, genital pain or masses; 6) cancer; 7) mental illness; 8) HIV; 9) permanent disabilities; 10) painful/frequent urination; 11) hair loss; 12) hemorrhoids; 13) diarrhea; 14) black stool; 15) constipation; 16) tumors; 17) organ transplant; 18) stroke; or 19) a history of tobacco or alcohol use.” In addition, the questionnaire asked whether the job applicant was pregnant, sought information regarding medications taken, and required the job applicant to disclose prior job-related injuries and illnesses. (Id., pp. 2-3.)

Justice Jenkins wrote for a unanimous court, which held that instead of the rules of common-law agency, the relevant and applicable authority was Government Code section 12940 of the FEHA.  This section provides that "[e]mployer’ includes. . .  any person. .  acting as an agent of an employer. . . ."

The Supreme Court  explained this result is supported by public policy because it makes liable the entity who (allegedly) violated FEHA, and indeed, the entity who no doubt drafted the offensive questionnaire:

If a business entity contracts with an employer to provide services that will affect that employer’s employees, and if, in providing those services, the business-entity agent violates FEHA’s antidiscrimination policies, causing injury to the employer’s employees, it is consistent with sound public policy to treat the business entity as an employer of the injured employees for purposes of applying the FEHA. This interpretation imposes FEHA liability not only on the employer but also extends it to the entity that is most directly responsible for the FEHA violation. (Id., p. 27.)

As a final comment, it is difficult to understand how US Healthworks could even consider asking such improper questions, such as whether female employees are pregnant, and not run afoul of California law.  The idea that US Healthworks may escape liability by claiming they are merely an agent of the employer seems to border on subterfuge, and, indeed may appear to be an attempt by the hiring employer and its agent to evade rules forbidding employers from asking questions that clearly violate California law.

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Plaintiff who did not have to pay for drug may not make unfair competition claim (Williamson v Genetech)

 

A plaintiff may not use the “collateral source rule” to “borrow” an insurer’s injury so as to state a claim under California’s Unfair Competition law 

Plaintiff Williamson paid only his prescription-drug deductible, which he would have paid no matter the price of his medicine.  Nonetheless, he sued the drug maker, defendant Genetech, both individually and as representative of a putative class, alleging they overcharged for a leukemia drug. (Williamson v. Genetech (August 11, 2023) A164426.)  Despite his lack of actual harm, the plaintiff plead the novel theory that under the “collateral source” rule the harm to his insurer in having to overpay for a drug could support his individual claim:

Williamson later sued Genentech, on behalf of himself and a putative class of similarly situated individuals, alleging that Genentech violates the unfair competition law by selling Rituxan (and three other medications) in excessively large single-use vials.

In his operative (third amended) complaint, Williamson alleges that, because the appropriate dosage varies based on a patient’s body size, Genentech’s vial sizes are too large for most patients. He insists Genentech should be required to offer smaller vial sizes. . . to reduce waste of expensive medicine. . . . . However, Williamson alleges that he took only Rituxan, not the other three medications, and that, to do so, he paid a $231.15 deductible. He admits that “[a]ll remaining payments” were made by his health insurer. . . . (Id., p. 2.)

Genetech’s demurer was sustained without leave to amend by the Hon. Daniel S. Murphy of the Los Angeles County Superior Court and plaintiff appealed.  The Second District agreed with the trial court that under the facts plead plaintiff could not state an Unfair Competition claim:

The obvious problem here is that Williamson suffered no injury. He paid a deductible of $231.15 to obtain Rituxan; his insurer paid the remaining cost. He concedes that he would have paid the same deductible regardless of the size of Genentech’s vials. Thus, Genentech’s alleged unfair business practice—using excessively large vials—has not injured Williamson in any way. (See Kwikset, supra, 51 Cal.4th at pp. 323, 326.) Williamson does not dispute this point.

. . . Williamson wants to borrow an injury from somebody else to establish standing, using the collateral source rule. . . .

It is a creative argument. The collateral source rule concerns the amount of money owed by a tortfeasor to the injured victim: “if an injured party receives some compensation for his injuries from a source wholly independent of the tortfeasor, such payment should not be deducted from the damages which the plaintiff would otherwise collect from the tortfeasor.” (Id., pp. 4-4.)[2] 

Therefore, the Williamson panel outright rejected plaintiff’s “collateral source” theory:

The collateral source rule has no application here. First, in both tort and criminal restitution cases, the rule applies when a defendant injured a victim, and the issue is simply how much compensation the defendant owes to the victim in light of payments from an insurer or other collateral source. Williamson cites no cases in which the rule applied to a plaintiff who suffered no injury. (Id., p. 6.)

Williamson therefore held plaintiff simply had no“Article III standing” [1] to bring suit. 

The appellate court also rejected plaintiff’s argument that permitting him to bring a claim would “encourage” others to buy insurance, succinctly noting “people with insurance, like Williamson, are not injured, and people without insurance are injured.” (Id., p. 7; emphasis added.)

The appellate court further agreed with the trial court that plaintiff should not, as he requested, be granted leave to amend to add another class representative who may have suffered actual harm.  Not only are rulings regarding leave to amend left to the sound discretion of the trial court, meaning such decisions will not be disturbed absent an “abuse of discretion,” but the Second District found it relevant that plaintiff had not identified even one other potential plaintiff to take the place of Williamson. (Id., p. 8.)

Lessons for practitioners

In a suit such as this it is, of course, counsel rather than the client who “drives the train,” so to speak, as counsel defines the scope of the potential class claiming injury and must decide who is the named “representative.”  For the reasons stated above, plaintiff Williamson was not a suitable party, either as an individual or such a representative.  Presumably, there may have been another plaintiff who in fact suffered actual injury and who therefore would be better-suited to be the named plaintiff.  Indeed, one could argue that counsel admitted such in maintaining the complaint could be amended to add such another lead plaintiff.  But, as noted, counsel did not propose any specific person to take the place of Williamson.

1 - Plaintiff had no “actual injury” and therefore no Constitutional "standing" under Unfair Competition law.  Williamson explained that California law requires such an injury.  Moreover, standing, as defined by Federal law, and, in particular, Article III of the United States Constitution, requires an injury that is “(a) concrete and particularized, and (b) actual or imminent, not ‘conjectural’ or ‘hypothetical.’” (Williamson, p. 4, citing Kwikset Corp. v. Superior Court (2011) 51 Cal. 4th 310, at 232.) 

2 - On this and other points Williamson cited Helfend v. Southern California Rapid Transit Dist. (1970) 2 Cal.3d 1, as the leading case defining the scope of the “collateral source” rule in California. 

Equitable tolling may apply due to prior foreign actions (Metabyte v Technicolor)

“Equitable tolling” applies broadly so that prior civil and criminal complaints in France alleging similar harm may save a California suit filed beyond the statute of limitations

Justice Stratton, Presiding Justice of the Second Appellate District, Division Eight, explained that the legal saga in Metabyte v. Technicolor (August 9, 2023) B319338, had involved no less than four separate actions, two in the United States and two in France:

In a case which seems destined for the pages of a civil procedure casebook, Metabyte, Inc., appeals from the trial court's judgment of dismissal and order sustaining Technicolor's demurrer without leave to amend. This 2021 action represents Metabyte's fourth attempt to hold Technicolor liable for Technicolor's allegedly improper auction of a patent portfolio in 2009. The first two actions were brought in France, where Technicolor is headquartered. Metabyte brought a proceeding under Article 145 of the French Code of Civil Procedure (Article 145 proceeding), and then filed a criminal “plainte” against Technicolor. After the French courts ruled they lacked jurisdiction in the criminal action, Metabyte brought an action in United States District Court in California alleging a federal RICO claim and several state law causes of action. After the district court ruled that equitable tolling did not apply to its RICO claim as a matter of federal law, Metabyte dismissed the federal action and brought its state law claims in Los Angeles County Superior Court. (Id., p. 2; footnote omitted.)

These claims, of course, included fraud and related torts.  The Hon. Daniel S. Murphy of the Los Angeles County Superior Court granted Technicolor's demurrer without leave to amend, finding the Article 145 proceeding was dissimilar in the relief it sought and therefore equitably tolling did not apply.  The California action was therefore barred by the Statute of Limitations.

The genesis of Metabyte’s claims was that after obtaining a majority interest in a portfolio of patents owned by its subsidiary MNI, Technicolor then auctioned them off in a process that resulted in payment being made to preferred shares only and thus nothing to common shareholders such as Metabyte.

Metabyte is a California corporation. Metabyte's subsidiary Metabyte Networks, Inc (MNI) owned patents on digital video recording (DVR) technology used by cable television companies in set top boxes. Metabyte and its CEO and principal shareholder Manu Mehta owned the stock of MNI. At some point, Metabyte sold shares in MNI to an entity eventually known as Technicolor USA, but it retained majority ownership of MNI's stock. When MNI needed additional financing, it sold shares to Canal+ Technologies, a corporation in which Technicolor S.A. was a minority shareholder. An entity which became Technicolor International then purchased a controlling interest in Canal+ Technologies, giving Technicolor majority ownership of MNI stock.

At some point, Technicolor decided to liquidate MNI. In July 2001, liquidation preferences were set. Common shareholders such as Metabyte could not receive any money from the liquidation of assets until the preferred shareholders received over $16.4 million. In December 2009, Technicolor forced an auction of MNI's patent portfolio. A Technicolor subsidiary bought the patents for $1 million. In October 2010, Technicolor dissolved MNI. (Id., pp. 3-4.)

Metabyte later learned of allegations that Technicolor was being investigated in France for wrongfully acquiring assets of another company in which it invested, driving it into bankruptcy and then acquiring its assets for less than market value.  Metabyte alleged Technicolor committed similar fraud here in that it valued the patent portfolio originally owned by MNI for less than it was worth so that Metabyte received nothing. 

In 2010 Metabyte initiated an Article 145 proceeding in France, the result of which appears to have been mixed at best.  Metabyte obtained an order to have a bailiff appear unannounced at Technicolor to seize documents from Technicolor, but was then denied access to some of these documents.  While the Cour D’Appel and the Cour de Cassation (respectively, the Court of Appeal and Supreme Court) both ruled in favor of Metabyte, it appears Technicolor’s threats and an order it obtained from the Paris Bar discouraged the Bailiff in the section 145 proceeding from releasing documents to Metabyte.

Metabyte also initiated a criminal complaint in France.  However, the Prosecuting Magistrate found France lacked jurisdiction to prosecute French entity Technicolor on behalf of the American entity Metabyte.

Metabyte then filed a RICO complaint in the United States District Court for the Northern District of California.  The District Court granted Technicolor’s Rule 12(b) motion to dismiss, noting equitable tolling did not apply because the Article 145 proceeding did not seek the same relief and the statute of limitations barred the action.  Metabyte then voluntarily dismissed the District Court action but without prejudice.

When Metabyte filed the present suit in the Superior Court of Los Angeles County, Technicolor adopted the District Court’s reasoning as its chief defense argument.  Technicolor filed a demurrer based, inter alia, upon the statute of limitations which, as noted, was sustained without leave to amend.

Metabyte should have been given the opportunity to state additional facts showing equitable tolling might apply

Technicolor not only argued that equitable tolling did not apply to save the last-filed California court action, but also that judicial estoppel applied to bar the new California complaint.  Specifically, Technicolor argued the dismissal of the RICO action barred any subsequent state law claims by Metabyte.  The Second District disagreed, noting that where a demurrer is sustained with leave to amend (and, of course, the Rule 12(b) motion was akin to a demurrer), any subsequent dismissal “without prejudice” is not dispositive, and thus not res judicata on the claims dismissed so as to preclude these claims.  In a footnote, the appellate  court explained that even where a complaint is dismissed “with prejudice,” the res judicata effect is limited and a subsequent claim is not barred if “new or additional facts are alleged that cure the effects in the original pleading. . . .” (Metabyte, p. 12, citing to Wells v. Marina City Properties (1981) 29 Cal. 3d. 781, at 789.)

        

Having disposed of Technicolor’s argument that claim preclusion did not apply to bar the action, it turned to Metabyte’s argument that equitable tolling applied save the otherwise timely claims for fraud dating from the 2009 patent auction.  Technicolor argued the dissimilarity in the prior French actions meant the doctrine did not apply.  However, the appellate court stressed this was not the proper test; rather, in order to extend the statute of limitations by way of “equitable tolling,” a court must conduct a three-part analysis:

To determine whether equitable tolling may extend a statute of limitations, courts must analyze whether a plaintiff has established the doctrine's three elements: timely notice to the defendant, lack of prejudice to the defendant, and reasonable and good faith conduct by the plaintiff. (Metabyte, p. 16, quoting from Saint Francis Memorial Hospital v. State Dept. of Public Health (2020) 9 Cal. 5th 710, pp. 725–726.)

Metabyte then discussed the nature of this three-part analysis, calling it “fact-intensive” and concluding such issues are more properly resolved by way of a motion for summary judgment. (Id., pp. 16-17.)  Towards this, the Second District rejected Technicolor’s argument that the Article 145 procedure was so dissimilar as to make it impossible for plaintiff Metabyte to show a lack of prejudice to Technicolor, noting that the original French civil proceeding gave Technicolor sufficient notice to begin a defense to Metabyte’s claims.

The appellate court therefore held the trial court had improperly failed to grant leave to amend, explaining Metabyte should be given an opportunity to plead further facts which indicate it is entitled to equitable tolling, such as that it acted reasonably and in good faith in bringing the French actions before the California suit.  The Second District found this “good faith” had not been sufficiently plead, but also held Metabyte should be permitted to plead such facts.  In summary, the Metabyte court found that equitable tolling could, at least in theory, be based upon the section 145 proceeding:

We reverse the order insofar as it requires a legal remedy which seeks to lessen damages and which holds that Article 145 proceedings can never satisfy the requirements for equitable proceedings. (Id., p. 20.)

Lessons for practitioners

Perhaps an overly-simplistic way in which to view this foregoing is to note the “home court” advantage which Technicolor obtained in France, where the Bailiff would not turn over documents despite multiple orders to do so, and, at the same time, the advantage Metabyte obtained in California, where the appellate court revived claims of fraud based on a 2009 patent sale.  

Whether one agrees with this somewhat cynical view, the opinion offers other lessons for practitioners.  The Second District appears to have taken a broad view of when leave to amend should be granted, giving the plaintiff the benefit of the doubt as to facts which one could plead on the issue of equitable tolling so that the suit might survive claims it was untimely.  On this point one may speculate the actions of Technicolor in effectively blocking the Article 145 action and preventing the Bailiff from providing documents to Metabyte may have had some bearing on the issue of whether equitable tolling — with an emphasis on the word “equitable’ — applied in the California action

A more jaundiced view might be that a party who has plead a claim since 2009 on two continents has already been given sufficient opportunity to plead whatever it might plead.  Nonetheless, Metabyte was given leave at this late date to state additional facts to meet the test for the application of equitable tolling.  

Also relevant is the appellate court’s discussion of res judicata, giving a nuanced approach as to when the doctrine applies. Therefore, those who encounter an argument that dismissal with prejudice bars all future claims might want to cite Metabyte in support of their counter-argument that newly-discovered facts may in fact be an exception.

Towing legally- parked cars for unpaid tickets violates 4th Amendment (Coalition v. SF)

 

Warrantless tows of parked vehicles for past parking violations constitute an unlawful seizure of private property

As do other municipalities, the City and County of San Fransisco tows vehicles that are lawfully-parked at present for past violations of parking rules and resulting unpaid parking fines.  The unstated subtext, of course, is that there may be persons residing in these lawfully-parked vehicles as such vehicles may also be used for purposes of sleeping.  At the same time, such vehicles are often considered abandoned as they be left in a particular spot for several days. 

The Coalition for the Homeless (“Coalition”) sued the City and County of San Francisco, law enforcement, and the local transit authority (“San Francisco”).  The Coalition the towing, and thus seizure and search, of a vehicle violates the Fourth Amendment, which bars warrantless searches unless there are “exigent circumstances” and/or other recognized exceptions to the requirement a warrant is needed.  

The California Court of Appeal for the First District agreed. (Coalition on Homelessness v. City and County of San Fransisco (July 21, 2023) A164180.)  Despite broad-ranging issues involving civil liberties, due process, and the enforcement of parking rules, the appellate court stated the issue succinctly and therefore held a Fourth Amendment analysis was dispositive:

The principal issue on appeal is whether the challenged warrantless tows are permissible under the vehicular community caretaking exception to the Fourth Amendment’s warrant requirement. We conclude respondents have not shown that legally parked cars with unpaid parking tickets that present no threat to “public safety and the efficient movement of vehicular traffic” may be towed under that exception. In particular, we reject respondents’ argument that their interest in deterring parking violations and nonpayment of parking fines justifies warrantless tows under the vehicular community caretaking exception. Such deterrence does not justify warrantless tows of lawfully registered and lawfully parked vehicles. (Id., p. 2; footnote and citation omitted.)

As discussed below, the appellate court also rejected the argument that towing the entire vehicle for unpaid parking tickets was justified as a “forfeiture” of private property.

The supposed “community caretaking” exception to the requirement that a warrant issue before a search and/or seizure does not apply to towing legally-parked vehicles

The First District began by discussing the statute upon which San Francisco relied for the authority to tow vehicles.  Vehicle Code section 22651 permits towing of vehicles where there is notice of multiple parking violations and there is no response within 21 days. Despite this statute, the Coalition filed a Petition for Writ of Mandate and Injunctive and Declaratory Relief.  San Francisco admitted it did not obtain a warrant before towing lawfully-parked vehicles, but argued that under section 22651 no warrant was required.  The trial court found no warrant was required pursuant to the so-called “community caretaking” exception to the Fourth Amendment and the Hon. Ethan P. Schulman of the San Francisco Superior Court therefore entered judgment for San Francisco.  Plaintiff appealed.

California has adopted Federal law as to the scope of the Fourth Amendment, and the Coalition court explained it was readily-apparent that towing a car is a “seizure” as defined by said amendment.  It also held the government has the burden of showing a particular seizure falls under one of the “few” and “specifically established” exceptions to the warrant requirement:

“ ‘A seizure conducted without a warrant is per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well delineated exceptions. The burden is on the Government to persuade the . . . court that a seizure comes under one of a few specifically established exceptions to the warrant requirement.’ ” (Miranda, supra, 429 F.3d at p. 862; see also City of Los Angeles v. Patel (2015) 576 U.S. 409, 419; Ovieda, supra, 7 Cal.5th at p. 1041 [“ ‘The burden is on the People to establish an exception applies.’ ”].)  (Id., p. 7.)

The appellate court found that San Francisco did not meet this burden, as it did not make any showing that a legally parked car was a public safety or health threat.  This is a crucial fact as the “community caretaking” exception has only been applied where there is such a present threat.  In point of fact, Coalition analyzed the scope and history of relevant precedent and found that, in reality, there was no “community caretaking” exception to the requirement that a warrant issue; rather, there is only a “vehicular community caretaking” exception, and such applies only where, at the time of the seizure, the vehicle is parked illegally. (Id., p 11-12; original emphasis.)  Therefore, this exception must serve an “immediate public need.” (Id.)

Coalition flatly rejected the argument that such “need” includes deterring future and hypothetical violations of parking regulations by making it possible to seize a legally-parked vehicle as a result of prior parking violations which have not yet been remedied:

We do not doubt that the threat of impoundment may encourage compliance with parking laws, by owners at all income levels. However, respondents cite no authority that such deterrence is a sufficient basis for a warrantless tow of a legally parked car under the vehicular community caretaker exception. To the contrary, the Miranda [v. City of Cornelius (9th Cir. 2005) 429 F.3d 858, at 865] court expressly rejected a deterrence rationale as justification for impoundment of a vehicle that was not “actually ‘impeding traffic or threatening public safety and convenience’ on the streets.” (Id., p. 18; other citations omitted but original emphasis.)

Not surprisingly, San Francisco argued the failure to tow legally-parked vehicles would mean that parking citations could be ignored with “impunity.”  But Coalition explained there in fact other remedies to collect these monies other than towing a legally-parked vehicle.  For example, where there has actually been an adjudicative process as to unpaid fines, the resulting default judgment may result in towing and impoundment of a vehicle even if legally parked. (Id., p. 26.)  Further, Coalition stressed its holding did not apply where, for example, there was an immediate need for a tow, the vehicle was unregistered, or the vehicle was otherwise illegally parked. (Id., p. 20.)

Finally, the First District rejected the claim that towing a legally-parked vehicle in order to collect unpaid parking violations was akin to a “forfeiture” of private property, i.e., a supposed “progressive forfeiture” based upon the fact the vehicle may, at some point, be legally sold in order to pay unpaid parking tickets.  Cases implying a vehicle may be sold after impoundment as a “forfeiture” were not analogous because here the vehicles were not subject to forfeiture at the time of towing and therefore would only be forfeited at a later date if the amounts owed were not paid.

The appellate court’s public policy analysis was less than robust

Other than responding to the arguments set forth in the briefs, the appellate court did not utilize this opportunity to fully discuss the public policy implications of its ruling vis a vis the towing policy.  On the one hand, one may argue that Fourth Amendment protections should not depend on how courts interpret ever-shifting public policy considerations. 

But it cannot be said that exceptions to the Fourth Amendment are not based, at least in part, upon rationales that involve public policy.  For example, the well-recognized “exigent circumstances” exception is rooted in concerns for public safety and the harm to public safety from the delay occasioned by obtaining a warrant, and therefore the application of this exception cannot be divorced from public policy.  

There is no doubt that the public policy issues involved in towing a vehicle which is presumably worth several times the amount of unpaid parking tickets have many dimensions.  For example, to the extent someone lives in the vehicle, such persons may now have nowhere to sleep.  

Further, the primary beneficiary of the towing policy may often be the towing company itself when one considers the increasingly large fees charged to tow and impound vehicles.  At the same time, general knowledge that warrantless tows of legally-parked vehicle are forbidden does nothing to encourage payment of parking tickets.  Further, the due process which a default judgment affords a vehicle owner prior to the vehicle being impounded benefits the owner but not necessarily the municipality.  The rejoinder is that the Fourth Amendment is not designed for the purpose of making law enforcement more efficient but in order to protect private citizens from governmental intrusion, and therefore applies even where its effect is quite the opposite.

Justice Thomas'' concurrence in the landmark case Students for Fair Admissions v. Harvard

Justice Thomas’ concurrence declares “[t]wo discriminatory wrongs cannot make a right” and we should not pick “winners and losers” based upon “the color of their skin”

With Students for Fair Admissions v. Harvard 600 U. S. ____ (2023), a six to three majority held that using race in admissions to universities violates the equal protection clause of the 14th Amendment.  Justice Roberts wrote the majority opinion, and Justices Sotomayor, Kagan, and Jackson dissented.  Much attention has been given to the dissent of Justice Jackson and her citation to facts in turn cited by amicus curie. [1]  

This brief article, however, will focus solely upon the concurrence of Justice Clarence Thomas and his rationale for both supporting the majority and also for writing his strongly-worded concurrence. [2]  Justice Thomas explained that “all such discrimination,” including what is referred to as either race-based admissions or “affirmative action,” has what he called pernicious effects:

Because the Court today applies genuine strict scrutiny to the race-conscious admissions policies employed at Harvard and the University of North Carolina (UNC) and finds that they fail that searching review, I join the majority opinion in full. I write separately to offer an originalist defense of the colorblind Constitution; to explain further the flaws of the Court’s Grutter jurisprudence; to clarify that all forms of discrimination based on race—including so-called affirmative action—are prohibited under the Constitution; and to emphasize the pernicious effects of all such discrimination. (Concurrence by Thomas, p. 2.)

Justice Thomas was especially critical of Grutter v. Bollinger, 539 U. S. 306, 326, a decision of 20 years ago, which applied strict scrutiny to policies favoring one race over another in school admissions but noted that such preferences — ostensibly to redress past wrongs by virtue of student admissions today — should have an ending time-limit.  As Griutter held, “[w]e expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” (539 U. S., at 343.)  Thomas made it clear Grutter was wrongfully decided and should be overturned:

I wrote separately in Grutter, explaining that the use of race in higher education admissions decisions—regardless of whether intended to help or to hurt—violates the Fourteenth Amendment. Id., at 351 (opinion concurring in part and dissenting in part). In the decades since, I have repeatedly stated that Grutter was wrongly decided and should be overruled. Fisher v. University of Tex. at Austin, 570 U. S. 297, 315, 328 (2013) (concurring opinion) (Fisher I ); Fisher v. University of Tex. at Austin, 579 U. S. 365, 389 (2016) (dissenting opinion). Today, and despite a lengthy interreg- num, the Constitution prevails.  (Id., p. 3)

After a lengthy discussion of the phrase “equal protection under the law” the enactment of both the post-Civil War constitutional Amendment and the Civil Rights Acts of 1866 and 1875, Justice Thomas then discussed the supposed rationale for allowing admissions to be a deciding factor in school admissions.  Specifically, the arguments that such mesas meet the “strict scrutiny” the Constitution demands where the government itself (or those taking government aid) distinguishes between citizens based on their race.  He therefore discussed the rationale that “racial diversity” improves education, noting the lack of any argument that such improves, for example, text scores, and noting that Harvard and similar universities argue that racial diversity increases the viewpoints students may be exposed to while, at the same time, such schools do not considere diversity of viewpoints important in areas other than race qua race:

More fundamentally, it is not clear how racial diversity, as opposed to other forms of diversity, uniquely and independently advances Harvard’s goal. This is particularly true because Harvard blinds itself to other forms of applicant diversity, such as religion. See 2 App. in No. 20–1199, pp. 734–743. It may be the case that exposure to different perspectives and thoughts can foster debate, sharpen young minds, and hone students’ reasoning skills. But, it is not clear how diversity with respect to race, qua race, furthers this goal. Two white students, one from rural Appalachia and one from a wealthy San Francisco suburb, may well have more diverse outlooks on this metric than two students from Manhattan’s Upper East Side attending its most elite schools, one of whom is white and [sic] other of whom is black. If Harvard cannot even explain the link between racial diversity and education, then surely its interest in racial diversity cannot be compelling enough to overcome the constitutional limits on race consciousness. (Id., pp. 25-26.)

Justice Thomas was therefore critical of the arguments set forth by Harvard and the University of North Carolina which, according to Justice Thomas, used vague goals of societal diversity — without explanation as to any specifics — to justify the use of admissions to disadvantage specific students in their admissions to specific universities. [3]  Justice Thomas therefore concluded that permitting consideration of race by publicly-funded universities gives the impression, and, indeed, constitutes a policy whereby race is used to pick “winners and losers:”

Most troubling of all is what the dissent must make these omissions to defend: a judiciary that picks winners and losers based on the color of their skin. While the dissent would certainly not permit university programs that discriminated against black and Latino applicants, it is perfectly willing to let the programs here continue. In its view, this Court is supposed to tell state actors when they have picked the right races to benefit. Separate but equal is “inherently unequal,” said Brown. 347 U. S., at 495 (emphasis added). It depends, says the dissent. (Id., p. 38.)

Therefore attempts to redress past discriminatory wrongs by virtue of discriminating in the present must do the following in order to withstand Constitutional muster:

First, to satisfy strict scrutiny, universities must be able to establish an actual link between racial discrimination and educational benefits. Second, those engaged in racial discrimination do not deserve deference with respect to their reasons for discriminating. Third, attempts to remedy past governmental discrimination must be closely tailored to address that particular past governmental discrimination.  (Id., p. 23.)

Such a standard is difficult to meet, noted Justice Thomas, where we are applying broad societal goals in a fashion that discriminates against specific students — such a Chinese-American applicant — applying for college today:

How, for example, would JUSTICE JACKSON explain the need for race-based preferences to the Chinese student who has worked hard his whole life, only to be denied college admission in part because of his skin color? If such a burden would seem difficult to impose on a bright-eyed young person, that’s because it should be. History has taught us to abhor theories that call for elites to pick racial winners and losers in the name of sociological experimentation. (Id., p. 53.)

In his characteristic style, Justice Thomas reinforces this point by noting the persons the dissenting Justices argue may be discriminated against today — Asian-Americans — have historically been discriminated against just as African-Americans have, noting law specifically targeting Asians and, of course, the forced internment and theft of property from Japanese-Americans during World War II. Indeed, the irony of the negative effect of Harvard’s admissions policies upon Asian-Americans should not go unnoticed:

As the Court’s opinion today explains, the zero-sum nature of college admissions—where students compete for a finite number of seats in each school’s entering class—aptly demonstrates the point. Ante, at 27. Petitioner here represents Asian Americans who allege that, at the margins, Asian applicants were denied admission because of their race. Yet, Asian Americans can hardly be described as the beneficiaries of historical racial advantages. To the contrary, our Nation’s first immigration ban targeted the Chinese, in part, based on “worker resentment of the low wage rates accepted by Chinese workers.” 

In subsequent years, “strong anti-Asian sentiments in the Western States led to the adoption of many discriminatory laws at the State and local levels, similar to those aimed at blacks in the South,” and “segregation in public facilities, including schools, was quite common until after the Second World War.” Indeed, this Court even sanctioned this segregation—in the context of schools, no less. In Gong Lum v. Rice, 275 U. S. 78, 81–82, 85–87 (1927), the Court held that a 9-year-old Chinese-American girl could be denied en- try to a “white” school because she was “a member of the Mongolian or yellow race.” 

Also, following the Japanese attack on the U. S. Navy base at Pearl Harbor, Japanese Americans in the American West were evacuated and interned in relocation camps.  Over 120,000 were removed to camps beginning in 1942, and the last camp that held Japanese Americans did not close until 1948. . . . In the interim, this Court endorsed the practice. Korematsu v. United States, 323 U. S. 214 (1944). 

Given the history of discrimination against Asian Americans, especially their history with segregated schools, it seems particularly incongruous to suggest that a past history of segregationist policies toward blacks should be remedied at the expense of Asian American college applicants. But this problem is not limited to Asian Americans; more broadly, universities’ discriminatory policies burden millions of applicants [4] who are not responsible for the racial discrimination that sullied our Nation’s past. (Id., p.  42-44; citations and footnotes omitted but emphasis added.)

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1 - Justice Jackson’s dissent makes several points worthy of further discussion, including her citation to the claims in amici briefs, which are worthy of further discussion.

2- Where this opinion will lead us in the future is also outside the scope of this relatively brief article and is also worthy of further discussion.

3 - As the majority opinion discussed, the current use of race lessens the percentage of certain racial groups, such as Asian-American or European-American students, in order to increase the number of members of other racial groups, such as African-American or Hispanic students.  However, it must be noted that the two universities at issue in Students for Fair Admissions have admitted their current practices are not based upon remediation of any specific past harm at their institution.

4 - There is no doubt the majority of such students of Asian-American and European-American ancestry were born in years from the late 1990's to the early 2000's.