MAUREEN CAVANAUGH (Host): I'm Maureen Cavanaugh, and you're listening to These Days on KPBS. The big legal story in recent days, one that will likely dominate headlines this summer, is the retirement of U.S. Supreme Court Justice John Paul Stevens and the nomination of his successor. We'll be talking about that a little later on in our Legal Update this morning. But first, two local legal stories: the continually evolving tale of the seals at the Children's Pool in La Jolla and a case from San Diego that challenges the technicalities of U.S. citizenship. I'd like to welcome my guest, These Days Legal Analyst Dan Eaton. Good morning, Dan.
DAN EATON (KPBS Legal Analyst): Good morning, Maureen.
CAVANAUGH: Well, we start with the seals versus the kids at the pool in La Jolla. A San Diego City Council committee just made a key decision that may bring us closer to the end of this long-running controversy. What did the council panel do?
EATON: Well, it was the four-member council Committee on Natural Resources and Culture, Maureen. And what they did last week was that they unanimously adopted a proposal to deal with the seals issue. Basically, what the score is now is seals-2, children-0. I mean, if you’re keeping track. What the council committee did was they unanimously approved a proposal to close the Children’s Pool to the public annually, 24-hours a day during pupping season which runs from December 15th to May 15th, and also to seek an emergency coastal development permit to put a rope barrier around the seal enclave year round. There were other portions of this proposal as well that they adopted. They said dogs would be prohibited from the Children’s Pool area year round. You may require (sic) that there was a court order at one point that was going to use audio of dogs barking…
CAVANAUGH: Yes, I remember that.
EATON: …because they frightened the seals away and so forth. That was when the state court had asked that the pool be returned to its original purpose of a children’s pool. And then the third element of the proposal will seek private funding for a park ranger or a lifeguard in the area to patrol the – this particular area year round at the Children’s Pool. Now this part of the proposal also would authorize, Maureen, creation of a docent program to teach children and other visitors and tourists about the seals in the area and so forth but it would seek private funding. There are also some other aspects that the committee asked for. For example, they asked the mayor to come back to talk about the feasibility of having, for example, merchandise tables to exploit the tourists that come there and also presumably to offset some of the funding concerns of having this park ranger and lifeguard patrol the area.
CAVANAUGH: Okay, so the city council Natural Resources and Culture Committee came up with this proposal. Where does this proposal go now?
EATON: Well, now it’ll go to the city council, actually, and to the full city council. And assuming it’s approved there, that is really not the end of the story. It has to go to the California Coastal Commission for approval of these amendments to the various development plans and so forth that are at issue that currently govern the Children’s Pool area. So that’s the next step. It’ll go – Presuming it passes the full city council, it’ll go to the California Coastal Commission and then perhaps, just perhaps, we may see this come to an end. But, again, we are a ways off from that. In fact, the City Attorney’s office was asked by the council committee just exactly how long this was going to take, the timeline. And what the City Attorney prudently responded was that the question cannot be answered because, quote, it depends on variables such as the completeness of the application that the City makes to the various authorizing agencies, state agencies, and the workload of the staff, closed quote. So in other words, we sort of know that the light is at the end of the tunnel but we just don’t know how bright it is right now, Maureen.
CAVANAUGH: Exactly. So there’ll be another chapter in this story probably.
EATON: Oh, yeah. Oh, no. Yeah, there will be certainly further developments.
CAVANAUGH: Let me move on to a case that is highly technical but also extremely interesting. It’s an immigration case from San Diego that the U.S. Supreme Court agreed to hear. It’s, in a way, it’s more actually about gender than it is about immigration. What can you tell us about this case?
EATON: This is a very interesting case and it took me a while reading it to understand all of the technicalities so I’m going to try to take our listeners through it, Maureen. By March 22, 2010, the United States Supreme Court agreed to hear the appeal of a man named Ruben Flores-Villar out of San Diego, who was actually convicted of being an unauthorized – an illegal – a non-authorized alien who had been subject to a prior deportation order. Alien is the word, by the way, that the federal statute used obviously. He was actually born here – born in Tijuana in 1974 to an American man and a Mexican woman who were not married to each other. He grew up in San Diego in Chula Vista with his father, his paternal grandmother and siblings. Now according to the San Diego federal trial court judge, Ruben even had little contact with his biological mother who continued to live in Mexico. But Ruben’s father was 16 at the time of his birth and San Diego Federal Judge Barry T. Moskowitz convicted Ruben, who had earlier been deported six times, of being a deported alien found in the United States after deportation. But it was Ruben’s father’s age that was critical in this case.
CAVANAUGH: It is Ruben’s father’s age that’s critical because of this, as we’re saying, the technicality of what it means to be born as a U.S. citizen under these laws. Tell us about that.
EATON: Yeah, and I’m going to take our listeners through this fairly slowly because I had to read the case law four or five times to get it myself.
CAVANAUGH: Right.
EATON: All right, under federal law at the time that Mr. Flores-Villar was born, a child born in a foreign country such as Mexico, out of wedlock, is – to an American man and a non-American woman, after December 23rd, 1952, was deemed an American citizen only if the father had been physically present in the United States prior to the child’s birth for a period of 10 years, at least 5 years of which were after the father’s 14th birthday.
CAVANAUGH: Umm-hmm.
EATON: Now when Ruben was born, remember, the father was 16 years old. That means that even if his father had lived his entire life in San Diego, at the time of his birth, the father, by definition, could not have – could have lived no more than 2 years after his 14th birthday in the United States at the time Ruben was born. Mr. Flores-Villar, therefore, could not show that prior to his birth that his father had lived in the United States for at least 5 years after his father’s 14th birthday because, of course, his father would have to have been at least…
CAVANAUGH: At least 18, right.
EATON: …19 years old to satisfy the requirement of federal law.
CAVANAUGH: Now to make this even more complicated under the law that we’re talking about, it’s completely different. If he had been born with – by an American mother out of wedlock in a foreign country.
EATON: Father on this side, mother on that side, different rules apply. That’s exactly right. Now had that been situation, had the citizenships been reversed, that is to say the mother had been an American and he’d still been born abroad, under the law in effect at the time, it would’ve considered Mr. Flores-Villar an American citizen if, before his birth, his mother had been continuously present for only one year in America, not 5, and there was no requirement that the one year had occurred before the mother reached a certain age.
CAVANAUGH: And now in order to ease people’s minds about this. This law actually has been amended in – since Mr. – since Ruben was born, is that correct?
EATON: That’s right. In 1986, the law was changed so that the father only has to have lived at – lived 5 years in the United States or continuously be present in the United States for at least 5 years, at least 2 of which were after he turned 14. Now had that been the law, depending on exactly how many months after 16 years old Mr. Flores-Villar’s father was, he would’ve satisfied the law. But the law in effect at the time Mr. Flores-Villar was born is the law that controls, so this amendment that was enacted in 1986 has no effect on this case.
CAVANAUGH: And it seems to me that the crux of what the Supreme Court is going to hear is whether or not it’s right to be able to distinguish between the genders as to whether or not someone can actually be considered a U.S. citizen.
EATON: Certainly that’s the main issue but it’s also age, of course, and that is really the critical question. What Mr. Flores-Villar is claiming is that this is – this deprives him of equal protection. Why? Because his citizenship, his right to be here, his very conviction on the grounds of being an undocumented immigrant who previously had been deported, depends on this idea that his citizenship, improperly passed, would have passed to him had his mother been of a different citizenship. It was just the accident of his father being a citizen at the age of 16 that deprived him of citizenship. And that, he says, deprives him of equal protection.
CAVANAUGH: Well, I tell you, the Supreme Court, the justices are going to have to be wide awake when they hear this one.
EATON: Well, except the San Diego Federal judge and the Ninth Circuit Court of Appeals both rejected Ruben’s contention and it’s important to understand why they thought the difference was okay between a mother and a father. What they said was that the different treatment of citizenship in the law furthered the government’s interest in avoiding having children born without a nationality. That could happen if a child is born in one of the many countries in which citizenship is conferred based on bloodline—you following this?—rather as United States does based on the location of birth. Thus, if a U.S. citizen mother is not a dual-national and the illegitimate child is born in a country that does not recognize citizenship based on where the child is born, the child would be left with only the mother’s citizenship, which could be unavailable if the mother could not meet the requirements that are imposed on unwed fathers…
CAVANAUGH: Oh, dear. Oh, dear…
EATON: …and left with what the U.S. Supreme Court called in a 1958 case, although in a very different context, the, quote, disastrous consequences, closed quote, of statelessness. Now if you’re not confused by all of this – that’s why they pay the men and women up in Washington the big bucks.
CAVANAUGH: Exactly, and the Supreme Court there is going to hear argument on this case sometime in the fall but when they do, the oldest Justice on the Supreme Court will not be hearing this case.
EATON: No.
CAVANAUGH: Some claim the most liberal member of the court, John Paul Stevens, is retiring. Tell us about Justice Stevens.
EATON: Well, of course, if he’s not the most liberal member, he’s clearly the leader of the liberal bloc. One week from today, Maureen, Justice John Paul Steven (sic), who was appointed by Gerald Ford in 1975, will turn 90 years old. And he has decided it’s time to hang up his spurs at this point. He was, like the president, who – like President Obama, he actually hails from Chicago, Illinois. He was a graduate of Northwestern Law School and the only member of the court who didn’t attend either Harvard or Yale Law Schools, actually.
CAVANAUGH: Wow.
EATON: And so now while he joined the court after the court’s landmark abortion decision, of course, in Roe versus Wade, initially Justice Stevens was considered a moderate conservative on the court. For example, in the case of Regents of the University of California versus Bakke, the landmark affirmative action decision out of 1978, Justice Stevens actually wrote the opinion for the four justices who would have – who said that, look, under Title VI of the Federal Civil Rights Act, affirmative – this particular plan by which a certain number of slots at the University of California Davis Medical School could be set aside violated federal civil rights law because it took race into account and it was a program receiving federal funding. So Justice Stevens voted with the conservatives in that case…
CAVANAUGH: Right.
EATON: …and so on.
CAVANAUGH: Hardly. He’s living up to the idea we have of him now as perhaps the most liberal, the leader of the liberal bloc…
EATON: Well, right.
CAVANAUGH: …on the court.
EATON: I mean, in the most recent affirmative action decision, Gratz and Grutter, involving University of Michigan, he actually voted with the liberals but there the issue was a constitutional one and whether constitutionally the University of Michigan college, on the one hand, and law school, on the other hand, could allow these programs that were designed to increase minority participation in their schools.
CAVANAUGH: What are some of Justice Stevens’ other really sort of landmark opinions?
EATON: Well, I mean, his landmark opinions include, for example, Clinton versus Jones, which was a very interesting case that people will remember were brought against – was brought by Paula Jones, a former Arkansas state trooper (sic), against President Bill Clinton. Essentially, the nub of her claim was she had been mistreated. I won’t go into the particular statutes under which she sued. But the question is whether a sitting president could be sued and distracted by a lawsuit during this time. Justice Stevens ruled for the court, yes, he could be called to account while he was a sitting president. That, of course, resulted in a deposition where he gave some testimony about the nature of his relationship with Monica Lewinsky and that ultimately set in course the events that led to his impeachment and then ultimate acquittal by the United States Senate. But Justice Stevens famously said, when he announced the opinion, that he didn’t think that this was going to end up taking that much time from the President of the United States, and that ended up not being quite right.
CAVANAUGH: Well, since President Obama will be nominating Justice Stevens’ replacement, I suppose the ideological balance is not expected to be shifted on the court but who might President Obama consider as Justice Stevens’ successor?
EATON: Well, in response to your first comment, remember that Byron White, the Supreme Court Justice appointed by President Kennedy, once said that every new justice is a new court. So we don’t really know how a new justice, regardless of whether they are the same ideology as the one they’re replacing, will actually affect the dynamics of the court. But that said, let’s look at some of the names that are being talked about. There are several, several who were disappointed candidates when Sotomayor was appointed. You have Elena Kagan, who is the current Solicitor General, the attorney who represents the federal government before the United States Supreme Court and a former Dean of Harvard Law School, who has the benefit of not having been a judge and not having a judicial trail that can be attacked. Then, of course, you have Diane Wood, the Seventh Circuit Court of Appeal judge who also was, by the way, did not attend Harvard or Yale Law School. There are other law schools out there, guys. A University of Texas Law School graduate who has been known to be a very assertive liberal and has been able to go toe-to-toe with what is considered a very conservative court out of Chicago, the U.S. Court of Appeals. And then, of course, you have Merrick Garland, who is a United States Court of Appeal judge and the only man on that slot, at least obviously so far, who is a United States Court of Appeal judge out of the District of Columbia and is considered by what I have been reading about Court Observer, the most moderate of the three. And now a new name was just added to the list yester – well, several new names, actually: Sidney Thomas of the United States Court of Appeal of the Ninth Circuit out of Montana, who, again, is in this sort of centrist mold. And I saw another name which was kind of odd, which was Martha Minow, who is the current Dean of Harvard Law School and my former civil procedure professor…
CAVANAUGH: Wow.
EATON: …which was kind of funny and I saw her. But, you know, there’s some pressure that – for him to appoint someone who’s going to win bipartisan support, Maureen, and that means appointing someone that can gain the confidence of the Republicans. But if he appoints a woman, Maureen, you could have a situation where, for the first time in history, there are three women sitting on the Supreme Court.
CAVANAUGH: Well, we’ll have to talk about it again when that name becomes clear.
EATON: And he’s going to make that decision fairly quickly, you can bet. This is – it’s been reported that he has been vetting this since Justice Stevens has made it known that he was thinking of retiring for a long time. And, in fact, he had these names left over from the Sotomayor consideration.
CAVANAUGH: Thank you so much. So much good information again. Thanks, Dan.
EATON: All right, thank you, Maureen.
CAVANAUGH: These Days legal analyst Dan Eaton. If you’d like to comment about anything you’ve heard, go online, KPBS.org/thesedays. You’re listening to These Days on KPBS.
