Trends and Transitions: July/August 2012 | STATE LEGISLATURES MAGAZINE

The Unreasonableness (or not) of GPS

Modern technology used by law enforcement investigators poses new legal questions for state officials, particularly whether its use complies with the Fourth Amendment’s ban on “unreasonable searches and seizures.”

More and more police departments, for example, are using Global Positioning Systems, which can track suspects and give detailed information about their movements anywhere on Earth. Some law enforcement agencies even have ballistic capabilities to fire and stick the device on getaway cars to track them without engaging in dangerous chases.  

In January, in United States v. Jones, the U.S. Supreme Court  held that gathering data through a GPS tracking device on a suspect’s car, even while on public streets, is a “search” as defined under the Fourth Amendment. The court, however, did not address whether the search was reasonable under the circumstances. Police in this case had a search warrant, but the search was conducted outside its geographic area and the time frame of the warrant.

The physical intrusion of the device on the suspect’s car was key to the court ruling that it constituted a search. Four of the justices noted in a concurring opinion that, in “circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative action. A legislative body is well-situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way.”

At least 10 states—Florida, Hawaii, Minnesota, Oklahoma, Oregon, Pennsylvania, Texas, South Carolina, Utah and Virginia—have enacted laws that address the use of GPS devices by law enforcement officers. In April, Virginia became the latest; its law gives police the authority and protocol to apply for search warrants that permit the use of GPS tracking devices.     

—Rich Williams

States Plan for Settlement Money

The nation’s five largest mortgage servicers—Ally Financial, Bank of America, Citigroup, JPMorgan Chase and Wells Fargo—agreed in February to a $25 billion settlement over some questionable mortgage and foreclosure practices, including “robo-signing,” which refers to signing mortgage documents without verifying their accuracy. Together these five companies collect and process mortgage payments and handle defaults and foreclosures for nearly 60 percent of the U.S. mortgage market.

The settlement—which involved more than a year of negotiations with the states’ attorneys general, the U.S. Department of Justice and other federal agencies—includes direct payments to the federal government, the participating 49 states and individual borrowers. Oklahoma was the only state that chose to settle separately for $18.6 million.

The states will split $2.5 billion based on the number of foreclosures and other factors. Another $1.5 billion is set aside for people whose homes were foreclosed between in 2008 and 2011; nearly $3 billion is committed to refinance “underwater” mortgages for borrowers who are paying on loans greater than their home’s current value; and about $17 billion is dedicated to consumers for a variety of mortgage activities.
California is in line to receive the largest amount, followed by Florida, Texas, New York and Illinois. As of May 24, nine states—Arkansas, Colorado, Connecticut, Georgia, Idaho, Indiana, Massachusetts, Nebraska and Utah—had decided how they plan to use their share of the settlement funds.

• Arkansas will split most of its $12.8 million among the state Development Finance Authority, the Access to Justice Commission, and two law schools at the University of Arkansas. The remainder will go  into the state general fund.
• Colorado plans to spend most of its $50 million on affordable housing, mortgage loan-modification programs, housing counseling programs and the state’s foreclosure hotline.
• Georgia will split its $99 million equally among regional economic business assistance grants and other rural economic development efforts.
• Idaho will receive $13 million, some of which will go to the Consumer Protection Fund, the State Bar Volunteers Legal Program, Legal Aid Services, the Community Action Partnership, and others as determined by the attorney general. The rest will go into the state general fund.
• The Indiana General Assembly divided $43.8 million between low-income energy assistance, the Consumer Protection Division’s homeowners unit and other efforts to prevent foreclosures.
• The Utah Legislature decided to appropriate some of its $21.9 million to homeless shelters and services, and mortgage fraud investigations. The rest will go into the general fund.
• Connecticut will use $21.9 million of its $28.8 million award to support foreclosure assistance initiatives. Other funds will add attorneys and housing counselors to various state offices such as the Fair Housing Center and pay for public service announcements on foreclosure assistance. The general fund will receive $2.6 million in civil penalties.
• Massachusetts’ attorney general launched an initiative to support borrowers and prevent foreclosures with more than half of the $44 million the state received. Another $10 million will go to crisis response grants and municipal and community restoration grants.
• In Nebraska, the attorney general directed its $8.4 million award into the state’s rainy day fund. 

The banks also agreed to allow greater transparency and follow new mortgage loan and foreclosure standards. “Dual tracking,” where the lender continues with foreclosure while the homeowner is trying to modify a loan, is now restricted, as are compensation arrangements that encourage foreclosure over other options. The settlement also enhances protections for military personnel.

The settlement, however, did not resolve all potential claims against these five servicers. The federal government and states may still pursue prosecutions for criminal offenses and violations.

—Heather Morton
 

The Allocations

Will November Be Good for Women?

More than 6,000 state legislative seats are up for election this November. With the combined effects of redistricting, an acutely partisan environment and term limits in 15 states, plenty of new candidates will be vying to test the political waters of the statehouse. Several organizations are working hard to ensure that women are among those who choose to dive in.

Frustrated by the slow rate of increase in female state legislators (from 20.5 percent in 1993 to 23.6 percent today), the groups are focused on recruiting women and providing campaign training. Research shows women are more likely to run if they are personally asked to do so. When they run, they win at the same rate as men, if conditions are equal. Thus, more women on the ballot should result in more women elected.

The White House Project has offered nonpartisan leadership and campaign training for women for several years. The 2012 Project connects women to local organizations that train female candidates. Emerge America and the National Federation of Republican Women offer assistance to Democrats and Republicans, respectively, and many state partisan and nonpartisan programs do the same.

Currently, Colorado (40 percent), Vermont (38.9 percent), Hawaii (34.2 percent), Arizona (33.3 percent) and Minnesota (32.8 percent) have the largest percentages of women lawmakers. Of all female legislators in the country, 60 percent are Democrats and 39 percent are Republicans.
                           
—Katie Ziegler

Marriage Laws

State legislatures and citizens continue to debate how to define “marriage,” and have reached different conclusions. Most recently, voters in North Carolina decided to restrict marriage to a union between a man and a woman, as do 37 other states. Six states and and the District of Columbia grant marriage licenses to same-sex couples. Laws passed in Maryland and Washington this year allow same-sex marriages, but they have not yet taken effect. In addition, a federal appeals court decision has halted same-sex marriages in California, and the case may be headed to the U.S. Supreme Court.

—Rochelle Finzel