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I. Mr. Akele Jones, whose family’s seed business is a client of the firm’s, has come to the office to ask you for legal advice about a racetrack that has been opened next door to his place. After he told you his story, you did some preliminary research regarding the racetrack and the upstate NY auto racing scene in general. The relevant facts for Jones’ case are as follows:
Jones lives in an unincorporated area of small farms in rural, upstate New York. The new local racetrack, Bubba Raceway Park, is built for short track racing, with a half-mile asphalt oval and a third of a mile dirt one. It hosts races for stock cars, open wheels, sprints, dirt-track motorcycles and modifieds (stock cars modified for dirt tracks). Races are held in the evenings, but engine warm-up and pit runs start much earlier.
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Jones’ residence is located on a quarter section of his property that runs right along part of the northern section line of the Raceway property. Although the house itself is nearly a quarter mile from the shared property line, the vehicles nevertheless cause a large amount of dirt plus tire or rubber debris to fall on lawn/garden and outdoor patio area as they move along the dirt track. It covers the lawn and vegetation, the outside surfaces, cars and outdoor furniture. The cars and the crowds are also extremely noisy, and exhaust fumes waft into his yard. Because of the early warm-up times during weekends, Jones is unable to sleep past 8 a.m., which he views as a particularly annoying inconvenience. Jones’ is also concerned that the value of his residence, which can be sold separately from the rest of the farming sections, will be reduced because of the track. This was confirmed recently when he had a real estate agent give him an estimate of the residence’s worth. She gave a figure that was a full $50,000 less than the appraisal he had received from a different agent a year before the track opened.
Jones has checked with local government officials, who say the racetrack is complying with all current local regulations. The country does not have zoning regulations that would apply in unincorporated areas, and there is no county decibel level ordinance and no state or county air pollution regulations that are applicable.
The racing events held at the track are extremely popular in the local community, where entertainment venues are few and far between. It also employs about 250 people, which is a sizable number in the sparsely populated county. The owners invested around $300,000 to open it and expect to make around $80,000 profit per year through entrance fees, competitor fees, and sales of food and souvenirs.
Jones did some research and talked to experts who indicated that if the racetrack required all drivers to add heavy duty mufflers, special tires and exhaust emission control devices to their cars, it would lessen the noise, dirt and fumes. Jones asked the racetrack owners if they would do that. They said they are not running at a profit and do not want to discourage drivers, car owners or fans, and said no. Jones has asked the other landowners whose properties are close to the racetrack to join him in bringing a suit against the racetrack, but most of them do not have their residences near to a property line shared with the track, and so far no one has taken him up on the idea.
We need to explore whether Jones could bring a viable claim against the racetrack; his chances of success on such a claim, if any; and what judicial relief he could expect, if any.
2. At our meeting this afternoon, Ms. Melinda Sims and I reviewed the information she provided me the morning of June 25 when we met at the Yolo County Jail. She also provided me with some additional facts. Ms. Sims (Client) is a 42-year-old, white female who resides at 596 El Dorado Drive, Woodland, CA. On the evening of June 24, Client went to a concert with three friends. Client drove her 2004 Jeep Wrangler to see a Neil Diamond concert at the Arco Arena, a venue in Sacramento, at approximately 8:00 pm. Client consumed two beers during the concert. After the concert finished, Client and her party went to a nearby bar, The Pelican, where Client had one glass of wine. At approximately 11:00 pm, Client left the bar and drove home via Interstate 5.
After taking the Main St. exit off Interstate 5, Client was stopped by a Yolo County police officer and asked for her driver’s license and vehicle registration. She complied and then was asked to step out of her car and perform several tasks to determine if she was intoxicated. Client again complied and proceeded to recite the alphabet while standing on one leg. She then, upon request, paced a straight line. When she turned to walk back, the officer drew his gun and shouted: “Put your hands up!” The officer then approached Client and demanded she place her hands behind her head and lie face down on the road. Once Client had done so, the officer patted Client down and removed from her left jacket pocket a pair of barber scissors. After being read her rights, Client was taken into custody at the Yolo County Jail. Client was charged with possession of a concealed dirk or dagger under California Penal Code Section 12020.
Client was found not to be legally intoxicated. Her blood alcohol level was .03, well below the legal limit of .08. No charges related to driving under the influence were filed.
After her arrest, before counsel was retained, client provided the police with a statement about why she was carrying the barber scissors. Though copies of the police record have not yet arrived at the office, Client asserts that she told the police that she carried the scissors for protection from a belligerent ex-boyfriend. She carried them in her left jacket pocket. The scissors, which Client believes were about 8 inches long from end to end, would have protruded from Client’s jacket pocket by at least two inches.
Client has been released on her recognizance and is awaiting trial. Please evaluate our client’s case, considering the following materials.
To: Judicial Law Clerk From: Hon. Roberta Smith, E.D. MO Date: X X, 2010 Re: Obiako v. Rodriguez, No. 5:08-CV-2677 CAS
I am hearing oral arguments on summary judgment motions in this case next week. The issue is one of first impression in the 8th Circuit. Please read the attached materials and the facts as I have given them below (from the pleadings and the parties’ memoranda). I’d like to go pertinent questions and possible rulings as soon as possible. Limit research to the materials attached. Overall, I want to know what the 9th and 3rd Circuits hold, and which has the better argument. Also, what deference do we need to give to the USCIS?
In October 2008, an American freelance journalist named Elizabeth Vargass was in Pinerolo, Italy to cover the annual Maschera di Ferro festival. This is a festival recreating the legend of the man in the iron mask, Maschera di Ferro, a mysterious prisoner held in Pinrolo for 11 years without showing anyone his face. The highlight of the festival is the unmasking of the actor who plays Maschera di Ferro. This year the actor was Jimuake Obiako, a Nigerian national who is a prominent actor and Afrobeat jazz musician. Jimuake was born in 1977 in Enugu, Nigeria. Elizabeth interviewed him, and they hit it off. Shortly thereafter they became romantically involved, and Jimuake proposed marriage to Elizabeth a few weeks later.
Elizabeth returned to St. Louis, her home in the United States, and Jimuake soon followed. He was admitted to the U.S. as a fiancé of a U.S. citizen on a K-1 visa on January 3, 2009. Jimuake found work almost immediately with the St. Louis Opera Theatre. On February 14, 2009, he and Elizabeth were married at the St. Louis Cathedral Basilica. In March 2009, Elizabeth filed a Form I-130, Petition for Alien Relative, seeking to have Jimuake reclassified as eligible to apply for an immigrant visa as an “immediate relative” with the U.S. Citizenship and Immigration Services (USCIS) of the Department of Homeland Security (DHS). Jimuake filed a Form I-485 on the same day, seeking adjustment of his status to that of a lawful permanent resident, relying on Elizabeth’s petition attesting to his status as her spouse. The I-30 petition and I-485 application were received and accepted for processing on April 4, 2009.
In July 2009, Elizabeth received a special assignment in Kirkuk, Iraq. On August 10, 2009, while she was travelling by helicopter to a remote area, Elizabeth died immediately when the helicopter crashed.
On September 19, 2009, Mr. Obiako’s Form I-485 rejected. The USCIS also terminated Elizabeth’s Form I-130, which was still under adjudication. The USCIS district director stated that, under 8 U.S.C. § 1151, an alienspouse is no longer eligible for immigration benefits as an “immediate relative” when the marriage did not last for two years. The I-485 petition was terminated because its approval depended on the I-130 petition. Mr. Obiako appealed to this court. The government argues for the Department of Homeland Security that the marriage terminated upon Mrs. Vargass-Obiako’s death, so that Jimuake was no longer a spouse.
Mr. Obiako has not remarried since. I am not eager to challenge the USCIS & DHS interpretation of the statutes they administer, but I’m a bit disturbed by the facts. It seems like a “double whammy” to lose a spouse and have die with her your opportunity to adjust your status to a lawful permanent resident and remain in the country.
4. Mrs. Mahnoor Adil is a 28-year-old woman who wants to resume attending the Miami-Dade County Community College. She is of Pakistani descent, a citizen of the United States, and a life-long resident of Florida. She is also a sincere follower of Islam.
She, her husband and their extended family members regularly pray at the Islamic Center of Miami. She dresses modestly in public and wears the Islamic headscarf or “hijab.” She has worn the hijab since her later primary school years. She believes it is an outward sign of her religion that identifies her as a sincere Muslim woman. Although the Islamic Center of Miami does not specifically require that the hijab be worn, Mahnoor believes it is customary for adult Muslim women. She personally believes obedience to God and the Qur’an requires that she wear a hijab. All the adult women in her family wear it as well. The hijab generally covers a woman’s head, hair and neck but not the face.
The senior Imam of the Islamic Center of Miami, Muhammad Nur Abdul, says in an affidavit that God states in the Qur’an that “believing women should . . . guard their modesty.” He says God also states in the Qur’an that women should “draw their veils over their bosoms and not display their beauty except to their husbands, their fathers” and certain other adult men. The Imam also states, “the vast majority of Muslim scholars and jurists have determined that the minimum requirements for women’s dress [are] clothing [that] cover[s] the entire body, with the exception of the face and the hands.” He also says the custom of wearing the hijab varies among Muslim faith communities. The hijab is not required of women who attend prayer and other activities at the Islamic Center of Miami; however, it is customary, and most of the women do wear the hijab.
Mrs. Adil lives within walking distance of the Miami-Dade County Community College. Her primary and secondary education was at a private school affiliated with the Islamic Center. She has decided to resume her education after a 15-year break; she plans to become a nurse. She was accepted at the nursing program of Miami-Dade County Community College only a few weeks before the fall semester began. During the first two days of the week-long orientation, Mrs. Adil wore her normal attire, including the hijab.
On the third day, Mr. Menendez, the College Dean of Student Affairs, requested that she come to his office. She did, and at this visit, Dean Menendez told her that she could not wear the hijab while on campus because it was prohibited by Section 10(b) of the college procedures. Embarrassed, Mrs. Adil went home immediately.
The complete text of Section 10(b) of the Miami-Dade County Community College Procedures follows: Headgear and Head Covering
No student or College employee may wear headgear or head covering of any type when on campus or inside college buildings during times in which classes are held. The Dean of Student Affairs may grant permission to wear headgear or head covering when appropriate in his or her discretion.
Mrs. Adil returned to Dean Menendez office the next day with her husband, and they told him she wore the hijab because of her religion, Islam. They asked if he could make an exception to the rule and allow
her to wear it while she was at the college. Mr. Menendez refused to make an exception but said he would take the matter to the Faculty/Student Council on Student Life. Mrs. Adil stayed home, missing most of the orientation.
On Friday of the following week, Dean Menendez called her and said the Council met, discussed her request for an exception to Section 10(b) as a Muslim woman wearing the hijab, and voted against granting it. He said the Council discussion and votes were confidential. Mrs. Adil appealed within the college grievance procedures.
She has a written denial of an exception signed by the College President, Dr. Learned Hand. It states the full text of the rule, Section 10(b), and says: “An exception to Section 10(b) of the College Rules & Procedures for a student to wear a headscarf for religious reasons on campus and in class is denied. Granting such an exception runs counter to the Miami-Dade County Community College’s policy of uniformly enforcing its Rules & Procedures.”
Mrs. Adil is not taking classes anywhere presently. She normally only drives in emergencies, and other nursing programs are located too far from her home for her to walk and be available for the needs of her primary school age children. In addition, the Miami-Dade Community College has the most affordable nursing program of any in the area.
Before January 2002, the applicable provision of the college procedures simply said: “No hats in campus buildings.” Office of Student Affairs senior staff discussed changing this language at a rules and procedures review meeting held at the end of the fall 2001 semester. They substituted the words, “headgear or head covering” for hats but and did not limit the prohibition to times in which classes are held. In response, Dean Menendez changed the draft to the present wording of Section 10(b), extending it to employees, adding the time limitation, and providing he could make exceptions. He first gave it to the senior OSA staff to review, proposed it to the Faculty/Student Council on Student Life, and then the Vice- President. In January of 2002, Section 10(b) was approved, along with other rule and procedure changes in the College rule & Procedures, by the President and the Board.
When he explained the reasons for the rule change at a meeting of College noneducational staff members, Dean Menendez said the OAS staff meeting happened shortly after “the events of September 11, 2001.” He also said he and the OSA senior staff thought 9/11 “might increase the likelihood of problems about this on campus.” According to Dean Menendez’s deposition, one reason for the change was “to avoid cultural or religious tension.” He said a desire to protect “students wearing turbans, skull caps or Islamic head scarves” from “harassment” was discussed among the senior OSA staff initially and at other meetings presenting the draft. In addition, Dean Menendez said he and the senior staff hoped the new Section 10(b) would help to prevent students from wearing gang identifying rags or bandannas. Other reasons for Section 10(b) given by Dean Menendez were: 1) to prevent weapons (primarily knives) from coming onto the college campus and buildings; 2) to identify students more easily; and 3) to abide by customary etiquette, which requires men to remove their hats indoors.
The College is in a largely Christian, Roman Catholic, area of the state. Dean Menendez said he thought most of the students and staff were Roman Catholic and nearly all had some Christian background or orientation. Both the college student body and the county are racially mixed. The county is 67.7% Hispanic, 16.1% Black, 13.6% White, 1.55% Asian, and 0.6% Two+ residents.
There is no evidence of systematic, selective enforcement of Section 10(b) against religious or Muslim head covering or headscarves. Dean Menendez said he enforces it routinely, against all headgear, “pretty much.” He does not allow baseball caps — “really not anything.” He thinks the uniform and prompt enforcement since 2002 has kept the rule from being controversial. He does make exceptions routinely for hats, headgear and head scarves needed for College plays, special athletic events, dress practices of the marching band, special occasions — “[s]tuff like that.” He could only recall one other exception, for a student who wore a cast covering part of his head and neck for several weeks following an auto accident.
Dean Menendez said there was no other Muslim girl student at the college, apart from Mrs. Adil. He has not had a request to wear religious head coverings before. However, he began working at the college in the fall of 2000, and an affidavit from a former student, Mrs. Clara Lynn, states that in 1998, a Jewish boy visiting for a semester was allowed to wear a yarmulke.
The College has 15,000 students. It has had 176 recorded instances of weapons (knives) entering the College since the fall of 2000. A person in the College’s neighborhood is 2.5 times more likely to be a victim of violent crime than those in the surrounding suburban areas. Dean Menendez said there was also staff concern that some rags and bandanas could have gang significance.
The College had no reason to suspect Mrs. Adil of bringing in weapons, and she and her parents say she has “no record of public misbehavior or violent behavior.” All entrances to College buildings have metal detectors that can detect metal weapons hidden in clothes, bags, hats or headscarves. Dean Menendez said state law banned guns on campus, and the college has posted “No guns allowed on campus” signs. He noted that guns and other weapons, like knives, could be brought on campus nevertheless, in bags or backpacks. These are commonly put over or around the detectors to a friend to get through the detectors faster. Weapons that enter that way could then be put in headgear and brought to class.
However, Dean Menendez admitted the College does not have staff posted at detectors to ensure backpacks and bags do go through or to search them if they do not. The campus is not enclosed by fencing. The College does not require identification badges or use an electronic means to indicate who on campus has a reason to be there. Dean Menendez admitted identification was not a reason for the regulation mentioned either at the initial OAS senior staff meetings, or later presentations and meetings. Mrs. Adil’s face is not covered, and she believes she stands out because of her headscarf.
Dean Menendez said he did not think the practices of women wearing hats in church or Jewish men wearing a yarmulke indoors were considered bad etiquette in the community. Mrs. Adil wants to return to the College nursing program as soon as possible and be allowed to wear the hijab while on campus. She seeks our firm’s advice and assistance.