Tag Archives: constitution

Legal Documents of the LA Clippers Forced Sale

The forced sale of the Los Angeles Clippers may be moot, but the legal issues surrounding the forced sale are interesting.

Donald Sterling made offensive racial comments during what appears to be a private conversation that was taped and then leaked to news outlets.  The league claimed in it’s summary of dismissal, Sterling “disparaged African-Americans and ‘minorities’; denigrated the contribution of NBA players; directed a female acquaintance not to associate publicly with African-Americans; admonished that acquaintance for posting pictures of herself with African-Americans on social media; directed that acquaintance not to bring African-Americans to Clippers games; and criticized African-Americans for not supporting their communities.”  A public uproar ensued.  NBA Commissioner Adam Silver then fined Sterling $2.5 million dollars and placed an indefinite ban on him doing anything relating to the Clippers.  It appears Donald Sterling gave power to his wife to sell the team.

This really does not deal with an issue in Arizona, but the Phoenix Suns are part of the NBA and I found the topic interesting.

The National Basketball Association is kind of an oligarchy.  There is not much competition and very few owners.  Outside of college basketball, where the players are not paid, the only real alternatives are the WNBA and the D-League both of which have strong affiliations with the NBA — it is not fair to call them competitors.  With thirty majority owners (one for each team), it is a pretty exclusive club.  The owners collective hire the Commissioner who enforces the rules.  Furthermore, each team has a stake in creating the rules via the NBA Board of Governors (explained in the NBA Constitution).

How does it operate?  Outside of lockouts and rule changes, it does not seem like there is a lot of information on its operations.  Since it is unlikely that I will ever have the privilege of owning a sports team, it interests me to see how things run from the inside.

The NBA is guided by it’s own Constitution and By-Laws, which were apparently made public after the taped Donald Sterling comments.  It is nice to be able to see the rules the NBA owners have chosen to live by.

Termination of Ownership

The NBA Constitution directly deals with the termination of ownership in Article 13.  Like reported in the media, Article 13 says the interest of an owner may terminated by a 3/4ths vote for one of the enumerated activities.

  • ” Willfully violate any of the provisions of the Constitution and By-Laws, resolutions, or agreements of the Association.”
  • Transfer or attempt to transfer an ownership interest in violation of Article 5.
  • Fail to pay dues or other debts.
  • “Fail or refuse to fulfill its contractual obligations to the Association, its Members, Players, or any other third party in such a way as to affect the Association or its Members adversely.”
  • Betting on games.
  • Allowing others to bet on games.
  • Fixing the score of a game — to allow others to bet on a game.
  • Disband the team during the season.
  • Intentionally fail to keep team from playing a game.
  • Intentionally lie on membership application.

— NBA Const. art. 13.

There is not a moral clause anywhere in there — after all, he is being charged with being immoral.   Offensive comments are not grounds for termination of ownership, nor are they illegal.  There really isn’t anything in the express language of the Constitution that Donald Sterling violated.

It is apparent the Commissioner exercised another section of the Constitution when it banned Donald Sterling.

The Commissioner shall have the power to suspend a Player, Coach, Member, Owner, or other person subject to the Commissioner’s jurisdiction for a definite or indefinite period and to impose such fines and other penalties as are authorized by Article 35, 35A…

— NBA Const. art. 24, sec. (h)(i).

Furthermore, Article 24, section (l) gives the Commissioner the power to impose fines.  The qualification to levy a fine is that there must not be a “fixed penalty” for the violation.  This section was most likely utilized in order to impose the fine upon Sterling.

NBA’s Arguments For Termination

The NBA in it’s Summary of Termination (see link below) argues that Sterling violated Article 13, sections (a), (c) and (d).

The league claims Sterling “willfully violated” 13(a) “when LAC destroyed evidence, provided false and misleading evidence, and issued a false and misleading public statement, as described above.”  Granted this is only the league’s summary, but the document does not state what was violated.  Section (a) is pretty clear the Constitution, By-Laws, or some other agreement needs to be violated.  Unfortunately, the Summary does not state a specific agreement that is violated.  Perhaps a potential violation could be found in Article 35A(c) of the league Constitution, “[a]ny person who gives, makes, issues, authorizes or endorses any statement having, or designed to have, an effect prejudicial or detrimental to the best interests of basketball or of the Association or of a Member or its Team, shall be liable to a fine not exceeding $1,000,000 to be imposed by the Commissioner.”  This is just a guess on what the NBA could argue for breach.

The second claim is 13(c) gives the league cause when an owner fails to pay debts to the league.  The league considers the $2.5 million dollar fine a debt to the league.  Since Sterling refuses to pay the fine, the league says that is grounds for terminating his ownership.  This seems like a fairly reasonable interpretation of the league’s constitutional language.

Lastly, and the point the league spends the most time on, is a violation of 13(d).  There seems to be a lot of overlap with this alleged violation and the one alleged in 13(a).  The league claims that 13(d) could be violated by, “[T]he taking or supporting of a position or action which may have a material adverse impact on the league or its teams.”  Again, just looking at the Constitution probably the closest clause for a violation would be Article 35A(c).

An option not mentioned in the Summary is the NBA may have used Article 17(a) without an express breach.  This allows the Constitution and By-Laws to be changed by a 3/4s vote.  If the owners employed enough solidarity, they could write-in any act or behavior to prohibit, and could have easily have created some sort of morality clause after the fact.  It is not clear if the owners utilized this provision or not, but it is a likely option.  This option was tossed around in the media, but it did not receive a lot of support because of the precedent it would set.  Theoretically the argument goes, since Sterling’s comments arose out of a private, taped conversation, then it open the doors for the owners to amend the NBA Constitution to prohibit any private behaviors they find objectionable in the future.  From the facts I have gathered, it is unclear if this option ultimately was used, however some gave it a lot of weight.

Sterling’s Response to NBA (out of court)

The response by Sterling is interesting because his arguments are a hybrid of criminal law and the NBA Constitution.

First, Sterling argues that the taped call is inadmissible.  It is against California law for taped calls to be permissible into court.  While Sterling acknowledges the NBA Board of governors does not follow strict rules of evidence (either under California or federal law), but he cites the NBA does have some standards for what evidence it will look at.

Then he turns his attention to alleged violation of the NBA’s Constitution.

A jealous rant to a lover never intended to be published cannot offend the NBA rules.

— Donald Sterling’s Answer To Charge, In the Matter of the Termination of the National Basketball Association Membership of LAC Basketball Club, Inc., 3 (May 27, 2014).

He argues that Article 13(a) is a stretch.  Since the clause has the word “willful” it means that Sterling had to intend the results of his comments.  Since his comments were made in private, it would be very difficult for the NBA to argue Sterling comments were made with the intention of causing the NBA harm.  If Sterling only made the offensive comments in private, it would be one thing.  However, Sterling has a history of offensive racially charged conduct, and the public interviews he made in his defense in the aftermath only seemed to reinforce what he said in private.

Similar logic is used to defend against the charge of violating 13(d).  He argues that since his conversation was in private he did not take a position that was meant to harm the NBA or its affiliates.  As indicated above, the topic of the conversation was not about the course of the NBA’s business, but it was an argument about Sterling’s apparent girlfriend hanging out with other men.

Conclusion

On Friday, Sterling filed suit against the NBA on May 29 for violation of constitutional rights, breach of contract, antitrust violations and more.  The suit is seeking $1 billion in damages.  Since the league makes it’s own policies, Sterling’s best chance for keeping his team may be fighting in federal court.

Sources:

NBA Constitution and By-Laws

NBA Summary of Sterling Termination Charge

Donald Sterling’s Response to NBA Charge

 

 

 

The Free Exercise of Religion in Arizona – Part 2

This is the second post in a series that examines the free exercise of religion in Arizona. It is helpful to read the first part before reading the second, but it is not necessary.

The Free Exercise of Religion – Part 1 (constitutional theory).

The Free Exercise of Religion – Part 3 (Arizona case law).

Onto the second part.

Arizona

State constitutions can expand upon liberties granted in the United States Constitution, but cannot restrict them.  The United States Constitution is the supreme law of the land and cannot be overridden by a state. See Large v. Superior Court, In & For Maricopa Cnty.,714 P.2d 399, 405 (1986) (stating United States Constitution is a “benchmark” for minimum constitutional protection).  When looking at the Arizona Constitution, it is important to keep in mind that it can only expand liberties the United States Constitution grants.

The Arizona Constitution contains two different sections that deal with religion Ariz. Const. art. 2, § 12, and Ariz. Const. art. 20, § 1. Both Arizona constitutional provisions to work together to secure religious liberty, in sort of a piecemeal approach.  “The first amendment (sic) to the United States Constitution and Ariz. Const. Art. 20 guarantee religious freedom. Perfect religious toleration is qualified by Ariz.Const. Art. 2, § 12.” Matter of Appeal In Cochise Cnty. Juvenile Action No. 5666-J, 650 P.2d 459, 465 (Ariz. 1982). The court noted further that religious acts are not absolutely protected.  However, the basis of the protection of religious acts, or the free exercise is discussed in part 1.

Ariz. Const. art. 20, § 1.

“Perfect toleration of religious sentiment shall be secured to every inhabitant of this state, and no inhabitant of this state shall ever be molested in person or property on account of his or her mode of religious worship, or lack of the same.”

The term perfect toleration is not defined in the Arizona Constitution, nor is it defined in Arizona case law.  However, our courts have told us the term perfect toleration is not absolute.  See Barlow v. Blackburn, 798 P.2d 1360, 1363 (Ariz. Ct. App. 1990) (stating “the of our constitution (sic) did not intend the perfect toleration clause to protect the practice of polygamy”).  Even though Arizona courts are hesitant to define the term, they do provide us with some context.  “[S]tatehood was expressly conditioned on the ‘perfect toleration of religious sentiment.'” Kotterman v. Killian, 972 P.2d 606, 636 (Ariz. 1999).

Even though the language of this clause seems to be absolute on its face, the Arizona courts have followed in the footsteps of the United States Supreme Court precedent that no rights or liberties are absolute.  C.f. City of Woodinville v. Northshore United Church of Christ, 211 P.3d 406, 410 (Wash. 2009) (stating article I, sec. 11 of the Washington Constitution “absolutely protects” the exercise of free religion).  Some states have broadened the scope of rights considerably.  In Arizona, we know that there can be exceptions to the rule.

Ariz. Const. art. 2, § 12.

Article 2 of the Arizona Constitution is entitled Declaration of Rights.  Presumably, this is the section that gives rights to the ‘liberty of conscience,’ and ‘religious freedoms.’

The liberty of conscience secured by the provisions of this constitution shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace and safety of the state. . . No

opinion on matters of religion, nor be questioned touching his religious belief in any court of justice to affect the weight of his testimony.

This provision of the Arizona Constitution protects religious beliefs / thoughts.  The state cannot tell any citizen what to think about religious matters, nor hold her religious opinions against her.  This is consistent with United States Supreme Court jurisprudence.  See generally Sherbert v. Verner, 374 U.S. 398 (1963) (holding unemployment benefits cannot be withheld based upon religious beliefs).

The first sentence in this section can be problematic because the word ‘licentiousness’ is very broad and acts as a limiting instruction. Typically, when a rights rights are thought of in a constitutional sense, it is a grant of rights, but here there is an express limitation on the right. The express language Licentiousness is a restriction upon an act, not upon a thought.  The constitutional provision allows for all thoughts, but the freedom of thought cannot be used as a justification for an act of licentiousness. See Planned Parenthood Arizona, Inc. v. Am. Ass’n of Pro-Life Obstetricians & Gynecologists, 257 P.3d 181, 197 (Ariz. Ct. App. 2011) (citation omitted) (stating licentiousness acts as a limitation on the judiciary, but the legislature can pass statutes to provide greater protections).  Neither Arizona’s constitution, statutes, or case law define the term ‘licentious.’  So there appears to be some vagueness of what licentiousness entails.

Peace and safety of the state are probably easier to define.  These are more common terms in contemporary society with more context for definition.

Strategies To Interpret Arizona Constitution’s Religious Freedom Sections

When faced with a statute that is unclear on its face the court of appeals instructs us: “When a constitutional or statutory provision is not clear, we may look to the context, subject matter, historical background, effects, consequences, spirit, and purpose of the law. Finally, we strive to interpret a constitutional provision or statute in a manner that gives meaning to all of its language.” Chavez v. Brewer, 214 P.3d 397, 407 (Ariz. Ct. App.2009); C.f. 1 William Blackstone, Commentaries 59 (1765).  In other words, the court will look to all evidence that it can find to make the strongest argument.

To find a common definition of a word would be to look to a popular dictionary.  Merriam Webster’s dictionary defines licentiousness as lack moral or legal restraints, especially sexual restraints. This definition is pretty broad and really does not provide any guidance in one direction or another.

Another option would be to take a historical look to the law of Arizona.

Looking back at the construction and intent of the Arizona Constitution may provide some insights. The Arizona constitutional convention consumed a mere two months from beginning to end. As one of the last states admitted to the Union, Arizona borrowed much from those that preceded it. Language was lifted from the constitutions of Washington, Oregon, Texas, and Oklahoma, to name a few.” Kotterman v. Killian, 972 P.2d 606, 624 (1999) (citations omitted). There is some speculation that the language of Arizona’s Constitution article II, § 12 was borrowed from the state of Washington’s Constitution.  “Article I, § 11 of the Washington Constitution is in pertinent part identical to Arizona’s article II, § 12. It is therefore safe to assume that our provision was borrowed. Thus, Washington cases interpreting their constitution are persuasive authority with respect to our constitution.” Kotterman v. Killian, 972 P.2d 606, 638 (Ariz. 1999). Reading Washington’s Constitution article I, § 11 the first two sentences are almost exactly the same, word-for-word. Because of the sameness of Arizona’s and Washington’s constitutional section on religious freedoms, Washington’s interpretation of that particular section is persuasive in Arizona courts.  What that means is Arizona courts will strongly look at how Washington handled any claim that fell under its constitutional religious freedom section, but Arizona reserves the right to interpret it’s own Constitution the way it wants.

Looking to the common law could also provide an understanding to what the legislature’s intentions were when the constitutional provision was passed.  When Arizona joined statehood the legislature criminalized several immoral or sexual acts: rape, human trafficking, indecent exposure, adultery, disturbing a church service, using offensive or abusive language in the presence of women, and owning and operating a public dance house.  Ariz. Rev. Stat. of 1913, Part I, Title IX Crimes Against the Person and Against Public Decency and Good Morals.  The breadth of offenses categorized as criminal at the common law is staggering.  Not only are many of the crimes listed at Arizona’s statehood not applicable today, there are some things that are considered crimes today which were not on the books then.

Current Arizona laws can provide the intent of how the legislature currently interprets the constitutional provisions.  There are a couple of state statutes that deal with religion.

The section of the state statutes that deals most with religion is 41-1493 et. seq. (means the whole chapter), which deals with the freedom of religion as a civil right.  The Definitions section is helpful because it defines what it means to “exercise religion” as “the ability to act or refusal to act in a manner substantially motivated by a religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief.” Ariz. Rev. Stat. § 41-1493(2). That helps provide a scope for religion and the constitutional sections above.  To further re-enforce the standard the legislature included a statute on what it means for free religion to be protected — the state statute is modeled after the federal Religious Freedoms Restoration Act.  See Ariz. Rev. Stat. § 41-1493.01; C.f. 42 U.S.C. § 2000bb.

Part 3 of this series will analyze Arizona case law to see how the courts have interpreted free exercise of religion in Arizona.