Courtroom Strategy by Attorney Oscar Michelen Commentary on Current Litigation and Legal Issues Thu, 17 Sep 2020 17:59:32 +0000 en-US hourly 1 Courtroom Strategy by Attorney Oscar Michelen 32 32 14390642 Fed Judge Rips DOJ After Brady Violations Cause Dismissal of Criminal Case Thu, 17 Sep 2020 17:59:31 +0000 [...]]]> Yesterday Judge Alison Nathan of the Southern District of New York, issued a scathing decision calling for an investigation in procedures and systems in the US Attorney’s office for the Southern District of New York. The basis for the judge’s opinion was the dismissal of the criminal case and conviction in US v. Ali Sadr Hasemi Nejad due to the DOJ’s repeated violations of Brady v. Maryland, which requires prosecutors to turn over any evidence in their possession which tends to exculpate the defendant.

The unusual case had the government abandoning a prosecution it had already won, after disclosures that federal prosecutors and agents had failed to turn over evidence that could have helped Mr. Nejad mount a defense. The defendant was arrested in 2018 and tried in March 2020, in the middle of the covid pandemic.

More than three months after the trial, and two years after the indictment, the U.S. Attorney’s office revealed an email exchange where one prosecutor suggested, in the middle of trial, that they might “bury” a document in a stack of other papers they were giving Sadr’s lawyers. Authorities had told the court the paper was not, in fact, buried because they handed it over less than 24 hours later.

Nejad had been accused of violating American sanctions laws against Iran by moving millions of dollars in payments for his family business through the U.S. financial system. The criminal case against him could have had serious implications for his liberty and his immigration status. Critical to the proof in these cases is that the defendant knew that he was dealing with entities that had Iranian connections in violation of the sanctions law.

Hidden from the defense were two key items: (a) the method the FBI used to obtain the defendant’s emails, which apparently violated the Fourth Amendment; and (b) emails that tended to show that the defendant would have reason to believe the transaction were legal and not funneling money to Iran-related entities. The court found that it appeared that the first issue was caused by SDNY prosecutors knowingly making false representations during the arguments on the defendant’s motion to suppress the evidence. The smoking gun came in regards to the second issue when various emails revealed an intent to hide or obfuscate the existence of the Brady material. When an AUSA had suggested turning it over “stat” another responded:

“[I]’m wondering if we should wait until tomorrow [a Saturday, by the way] and bury it in some other documents.”

The AUSA then agreed and took the plan further by proposing documents along which it could be buried when disclosing it to the defense. Specifically, she replied, “that’s fine too—some of the [Financial Action Task Force] stuff,” referring to another exhibit. Later in that chat, the AUSA noted that the Government “need[ed] to come up with some explanation for why the defense is just seeing this for the first time . . . .”

So they exchanged it on a Saturday in the middle of a bunch of other documents the defense had already had alleging the exchange was to get the defense to agree to their authenticity so they could be admitted into evidence. But the defense caught on and recognized the document as something that had not been turned over and was in fact critical to the defense. The defense objected on the following Monday and the AUSA said that they had believed that it had been turned over as part of a production made by Commerz Bank in response to a government subpoena. Not wanting to delay the trial further as the City was in the process of shutting down due to covid, the court allowed the trial to move forward and said it would conduct a hearing after the verdict to assess what happened. The defendant was convicted, and the court scheduled the hearing requiring prosecutors to turn over their emails about the document.

The emails not only revealed the plan to “bury” the document but also revealed that one AUSA had said: “Among other difficulties with doing that is the fact that I don’t know that it was ever produced to defense (it’s
not in the Commerzbank subpoena production).”
This statement proved that the court had been lied to that the AUSA had believed it was turned over in that same subpoena production. To their credit, though the judge in her opinion called the document clearly exculpatory, the emails show that the AUSAs believed the document to be helpful to their case, not exculpatory. One AUSA even emailed” How could we have missed this?” That may prevent them from being sanctioned.

The defense moved for a new trial and with the consent of the government vacated the defendant’s conviction. The government then moved to dismiss the entire case with prejudice.

The court railed against the office and its practice and procedures noting that fourteen prosecutors had worked on this case including four on the trial team. That much personnel meant no consistent handling of the case and no one with ultimate responsibility for the case’s handling. She demanded that at a forthcoming hearing to determine if sanctions are warranted that each of the prosecutors who touched the case respond to a series of questions she drafted about the document and the exchange. She also required every – that’s right every- AUSA in the SDNY to read the decision. The court noted that in US v. Pizarro, the criminal case Judge Nathan tried right before this one, the government “also seriously breached its Brady obligations.”

It seems worth noting, though I am not suggesting necessarily any correlation, that unlike many SDNY judges, Judge Nathan was never an AUSA. She went from a Federal clerkship to clerking for Justice Stevens on SCOTUS to private practice to White House counsel under Barack Obama.

The SDNY has until the end of October to file its answers to Judge Nathan’s questionnaire. Judge Nathan included in her opinion a quote from a 1935 Supreme Court case Berger v. United States:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done . . . . He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

She then went onto make a strong but necessary statement:

The Government in this case has failed to live up to these ideals. The Court has recounted these breaches of trust, proposed some systemic solutions, urged referral to the Office of Professional Responsibility for admitted prosecutorial failures apparent in the existing record, and ordered further fact-finding. The cost of such Government misconduct is high. With each
misstep, the public faith in the criminal-justice system further erodes. With each document wrongfully withheld, an innocent person faces the chance of wrongful conviction. And with each unforced Government error, the likelihood grows that a reviewing court will be forced to reverse a conviction or even dismiss an indictment, resulting in wasted resources, delayed justice, and individuals guilty of crimes potentially going unpunished.

The Court thus issues this Opinion with hopes that in future prosecutions, the United States Attorney for the Southern District of New York will use only “legitimate means to bring about a just” result. Id. Nothing less is expected of the revered Office of the United States Attorney for the Southern District of New York. That Office has a well- and hard-earned
reputation for outstanding lawyers, fierce independence, and the highest of ethical standards. The daily work of the prosecutors in that Office is critically important to the safety of our community and the rule of law. Those who stand up in court every day on behalf of that Office
get the benefit of that reputation—but they also have the responsibility to maintain it.

Follow me on Twitter @oscarmichelen

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Payroll Tax Order Causes More Problems Than It Solves Tue, 11 Aug 2020 14:54:53 +0000 [...]]]> This past Saturday, from the golf course, President Trump signed an executive order touted as a relief to employees from payroll tax. The order relieves employers from collecting the employees’ share of payroll tax. But issued without any guidance from the Treasury Department or the IRS, it raises many more issues than it purports to solve.

The current payroll tax is 15.3% split equally between employer and employee. So employees could see 7.65% more money in their checks if the employer doesn’t have to collect the tax. But the tax is NOT forgiven – meaning as it stands right now, employees will have to pay that 7.65% back to the Feds at some point. So basically its an interest free loan from Uncle Sam right now.

For employers though, especially large employers, it becomes an accounting nightmare. Withholding schedules are not that easy to change and then change back. It could also lead to financial uncertainty in 2021 as companies and employees wait to see whether the money will be forgiven or collected. If it is forgiven, what happens to Social Security and Medicare which are funded by the payroll tax? (BTW – if every employee withheld their payroll tax through the end of 2020 that’s $40 Billion per month less to Social Security and Medicare). Simply forgiving the money would require the government to either defund Social Security and Medicare to that amount; find new sources of equivalent tax revenue; and/or continue to balloon the deficit and debt. ( I’m old enough to remember when the GOP claimed to be the party of “debt and deficit hawks”).

Is anybody home? Can we get some guidance please!!

Many of our employment law clients have already called us or shot us an email asking what this executive order means and whether it is mandatory. Right now it seems difficult to see how the Treasury Dept could enforce this order since employers may tell their employees that since it has to be paid back, they will escrow aside the money and if it is later forgiven, then they will give it to the employee. This would deplete the alleged purpose of the order, which is to infuse the economy with this employee’s extra cash. Of course, continuing the$600 per month unemployment benefit would also do that, but Congress can’t get that passed and the administration is against it’s extension. If employees do spend all the money into the economy, where will that money be when they have to pay it back? Maybe by doubling the payroll tax until it paid off?

That also puts the Democrats in a tough position. Fighting this order (which is “constitutional slop” to quote GOP Senator Ben Sasse) in court will likely be successful but it would be spun as the Dems taking $40 Billion per month out of the hands of US workers. Never mind that the money would have had top have been paid back anyway – its a bad look.

We are advising employers to hold off on taking any steps now until the IRS or the Treasury Dept provide some guidance. It might be worth a call to their payroll company to see how, when and how much it would cost to effectuate the new withholding scheme. If the order does go in to effect, then employers can decide what to do. Without assurances that the loan will be forgiven, employers at the very least should warn employees that this is a LOAN and not a GIFT. They should offer the employee the option of having the company hold the money back until its clear when or if it has to be paid back.

This executive order is another crisis in leadership. To issue it without guidance leaves employers large and small in the lurch. It causes further economic uncertainty in already uncertain times. If the loan is forgiven, it defunds Social Security and Medicare and blow further holes in the deficit and debt; if it is not forgiven, it will have a harmful effect on the economy when it is collected. If companies have gone under in the interim or if employees have been laid off, then there may be no way to collect it all back. In my opinion I see no good outcomes from this policy and until we get more information and guidance, its hard to advise employers how to move forward.

Follow me on Twitter @oscarmichelen

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Fed Judge Grants Qualified Immunity But Writes Powerful Decision Against It Thu, 06 Aug 2020 13:27:08 +0000 [...]]]> Federal Judge Carlton Reeves, of the Southern District of Mississippi, ruled that the doctrine of qualified immunity meant that a white police officer could not be sued for racially profiling and then terrorizing an innocent black man on the side of the road. Judge Reeves ruled that the law required the dismissal of the case but in the process he wrote a lengthy and powerful piece on why its time for the doctrine to go. He also lambasted the Supreme Court for repeatedly refusing to take on the issue.

But the decision’s strongest point is its introduction. (NOTE:the parentheticals were contained in footnotes in the original decision)

Clarence Jamison wasn’t jaywalking (That was Michael Brown). He wasn’t outside playing with a toy gun (That was Tamir Rice). He didn’t look like a “suspicious person” (That was Elijah McClain) He wasn’t suspected of “selling loose, untaxed cigarettes” (That was Eric Garner). He wasn’t suspected of passing a counterfeit $20 bill (That was George Floyd). He didn’t look like anyone suspected of a crime (That was Philando Castille and Tony McDade). He wasn’t mentally ill and in need of help (That was Jason Harrison). He wasn’t assisting an autistic patient who had wandered away from a group home (That was Charles Kinsey). He wasn’t walking home from an after-school job (That was James Earl Green). He wasn’t walking back from a restaurant (That was Ben Brown). He wasn’t hanging out on a college campus (That was Phillip Gibbs). He wasn’t standing outside of his apartment (That was Amadou Diallo). He wasn’t inside his apartment eating ice cream (That was Botham Jean). He wasn’t sleeping in his bed (That was Breonna Taylor). He wasn’t sleeping in his car (That was Rayshard Brooks). He didn’t make an “improper lane change.” (That was Sandra Bland) He didn’t have a broken tail light (That was Walter Scott). He wasn’t driving over the speed limit (That was Hannah Fizer). He wasn’t driving under the speed limit (That was Ace Perry). No, Clarence Jamison was a black man driving a Mercedes convertible.”

Jamison was pulled over by officer Nick McClendon, allegedly because he claimed that the car had a temporary license plate that was folded over. Jamison provided all the paperwork asked for – registration, license, insurance – and told the officer he had just bought the car two weeks earlier. McClendon took the paperwork and ran it through a computer check. It all came back clean, and verified Jamison’s story. That is where it would end for most Americans. But not for a male black in Mississippi.

As he got ready to leave, the officer put his hand on the inside of the passenger door and told Jamison to wait. He went back to run Jamison’s name through the NCIC, a national criminal record database. Before the NCIC report came back, the officer went back to the car and repeatedly asked if he could search the car. When Jamison asked “Why?” and “What for?” the officer twice lied stating that he got a tip that Jamison had 10 kilos of cocaine in his car.

After being harassed for a consent search more than four times, Jamison ultimately relented. By now two more officers arrived and they proceeded to basically tear the interior of the car apart. Finding nothing illegal, the officer then asked Jamison if would let a canine unit sniff the car. Jamison consented, the dog was brought in and of course nothing was found.

Although he was physically uninjured during the process, Jamison was left to stand by the side of the road in the middle of the night while his new car was torn apart. The stop and search lasted two hours. Or as the judge noted enough time that “Dorothy and Toto could have made it up and down the yellow brick road and back to Kansas” (noting the 119 minute runtime of The Wizard of Oz).

Jamison sued for violation of his constitutional rights under 42 USC 1983 a powerful tool originally passed in 1871 and meant to stop the Ku Klux Klan, some of whom were law enforcement officers. Judge Reeves goes through a lengthy analysis of the powerful intent behind the statute then summarized its purpose:

The Act’s mandate was expansive. Section 2 of the Act provided for civil and criminal sanctions against those who conspired to deprive people of the “equal protection of the laws. Sections 3 and 4 authorized the use of federal force to redress a state’s inability or unwillingness to deal with Klan or other violence. The Act was strong medicine.

But then came Reconstruction and the Jim Crow Era and courts were unwilling to employ the full strength of the Act. And just as the liberal Supreme Court of the 1960s revived the Act’s strength and vitality after Brown v. Bd. of Education, conservative judges and courts thereafter have returned to narrow its reach. And no doctrine has been more powerful in diminishing the Act’s remedies than “Qualified Immunity.”

Judge Carlton Reeves – Image courtesy of the University of Virginia

Created by the Supreme Court, qualified immunity holds that officers should be shielded from liability when acting in good faith – at least in the context of constitutional violations that mirrored the common law tort of false arrest and imprisonment. Subsequent decisions expanded the policy goals behind qualified immunity. The Supreme Court eventually characterized the doctrine as an “attempt to balance competing values: not only the importance of a damages remedy to protect the rights of citizens, but also the need to protect officials who are required to exercise discretion and the related public interest in encouraging the vigorous exercise of official authority.” Sure, but it has gone on well beyond that.

Once, qualified immunity only protected officers who acted in “good faith.” The doctrine has been broadly and regularly expanded so that it now protects all officers, no matter how egregious their conduct, if the law they broke was not “clearly established.” In 2011, SCOTUS added “beyond debate” to “clearly established” and said that the motive of the officer was largely irrelevant. As Judge Reeves explains:

In other words, “for the law to be clearly established, it must have been ‘beyond debate’ that [the officer] broke the law.” An officer cannot be held liable unless every reasonable officer would understand that what he is doing violates the law.

This of course would allow suit only in the most egregious and extreme cases. Courts are reluctant to find that an officer has broken a law that is “clearly established.” And since SCOTUS readily encourages federal courts to dismiss under qualified immunity as soon as possible, most cases get dismissed without any discovery at all and then rarely get appealed – a lengthy and expensive process. That means that there are not a lot of decisions plaintiffs can rely upon to prove that a violation of a law that was clearly established occurred.

Fifth Circuit Judge Don Willett has succinctly explained the problem with the clearly established analysis:

Section 1983 meets Catch-22. Plaintiffs must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely because no one’s answered them before. Courts then rely on that judicial silence to conclude there’s no equivalent case on the books. No precedent = no clearly established law = no liability. An Escherian Stairwell. Heads government wins, tails plaintiff loses.

Applying the analysis to this case, Judge Reeves first said that the search was not consensual due to the numerous requests, positioning of the officer’s arm deep into the vehicle, and the lies the officer used to get the consent. Adding to those facts, the court said it could not also ignore the elephant in the room:

Jamison was a Black man driving through Mississippi, a state known for the violent deaths of Black people and others who fought for their freedom. By the time Jamison was pulled over, more than 600 people had been killed by police officers in 2013 alone.2 Jamison was stopped just 16 days after the man who killed Trayvon Martin was acquitted. On that day, Alicia Garza wrote a Facebook post that said, “Black people. I love you. I love us. We matter. Our lives matter, Black lives matter.” And that week, “thousands of demonstrators gathered in dozens of cities” to commemorate Martin “and to add their voices to a debate on race that his death . . . set off.”A movement was in its early stages that would shine a light on killings by police and police brutality writ large – a problem Black people have endured since “states replaced slave patrols with police officers who enforced ‘Black codes.’” Jamison’s traffic stop cannot be separated from this context. Black people in this country are acutely aware of the danger traffic stops pose to Black lives.

But that did not end the analysis as the judge had to determine whether it was clearly established that “an officer who has made five sequential requests for consent to search a car, lied, promised leniency, and placed his arm inside of a person’s car during a traffic stop while awaiting background check results has violated the Fourth Amendment.”

He ruled that it was not clearly established since plaintiff provided no other similar cases. He noted that since Congress is unlikely to act in this arena any time soon, its time SCOTUS shed qualified immunity like it did “separate but equal” or at least restored it to its original “good faith” analysis. He notes that Justice Thomas and Justice Sotomayor have stated in opinions that they believe qualified immunity has been stretched too far. Judge Reeves stated that qualified immunity turned a law designed “to protect the people from the government into a law that protects the government from the people.”

Despite the eloquence and clarity of Judge Reeves decision, I see no end to Qualified Immunity any time soon. After all, even he felt obligated to dismiss the 1983 claim against the officer. Maybe the right case will come along where the Court can chip away at it piecemeal. In the meantime, people like Mr. Jamison, whose Constitutional rights have been violated, will have no recourse against bad State actors.

Follow me on Twitter @oscarmichelen

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Joy Reid Loses Libel Suit but Big Loser Will Be Media Fri, 17 Jul 2020 19:28:48 +0000 [...]]]> Prominent MSNBC anchor Joy Reid lost a big appellate decision that will shape the rules of many cases involving free speech. Fighting this case made no sense and in the end it dealt a large blow to protections long relied upon by the media.

Last week, the Second Circuit Court of Appeals reinstated libel claims from a Trump supporter named Roslyn La Liberte. (Her real name apparently). In doing so, the Court decided that special laws enacted by states like California to protect First Amendment activity don’t apply in federal court.

La Liberte sued over statements about the following picture …

This is Ms. La Liberte NOT making racist statements.

La Liberte is the one in the MAGA hat. The scene is a city council meeting in California during debate over SB 54, aimed at limiting local law enforcement cooperation with federal immigration authorities. Reid was sued after she retweeted an activist who had posted the above picture along with the caption, “You are going to be the first deported.” In a second post on Instagram, she wrote that the woman in the photo had screamed “You are going to be the first deported … dirty Mexican!” Subsequently, on Instagram and Facebook, Reid wrote, “Make the picture black and white and it could be the 1950s and the desegregation of a school. Hate is real, y’all. It hasn’t even really gone away.”

Just one minor issue. The boy shown in the picture had given interviews where he said the picture is taken out of context and that Ms. La Liberte was being very civil and not offensive at all. Ms. La Liberte had also not made the racist remarks attributed to her.

Last September, Reid prevailed at a district court. The judge ruled that La Liberte was a “limited purpose public figure” because she had injected herself into public controversy around immigration. And, according to the judge, La Liberte couldn’t demonstrate that Reid acted with actual malice when she had wrongfully written that the woman had screamed “dirty Mexican.” Since public figures must demonstrate malice in order to prevail on libel claims, La Liberte’s suit was dismissed.

On appeal, La Liberte argued  that the judge had wrongfully dismissed the suit and shifted attorney fees to the winner under California’s anti-SLAPP statute. Anti-SLAPP (Strategic Lawsuit Against Public Participation) laws are intended to deter frivolous litigation aimed at thwarting First Amendment activity. After a complaint is filed, the defendant brings a motion to dismiss under the anti-SLAPP statute. Unless a plaintiff can convincingly show a likelihood of ultimately prevailing on his or her claims, the case is thrown out and the court can award legal fees to the winner. Media companies have relied on anti-SLAPP laws to protect themselves from constant litigation.

Under federal rules of civil procedure, to survive a motion to dismiss, plaintiffs must only show the plausibility — not the probability — of success on the claims. Under this lesser standard, escaping a suit for media companies becomes harder. So folks who want to hit media companies have been pushing the right cases to weaken anti-SLAPP statutes.

Justice Brett Kavanaugh and many conservative judges believe that the State laws wrongfully conflict with federal procedure. Appellate circuits throughout the nation are split on the question of whether federal judges may entertain anti-SLAPP motions and what standard is applicable. The Fifth, Eleventh, and D.C. Circuits have decided they may not while many of the other circuits (including California’s Ninth) have gone the other way. It’s an important issue that is almost assuredly destined for the Supreme Court.

In the La Liberte case, the Second Circuit decided that the easier Federal standard applies. This is important not just because its another court weighing in on the side against media but because its covers New York and along with California is arguably the most important court in media cases. So now one media giant (NY’s 2d Circuit) and another media giant (California’s 9th) are at odds. SCOTUS here we come! The Court stated:

“Reid urges us to follow the Ninth Circuit, which holds that California’s anti-SLAPP statute and the Federal Rules can exist side by side … without conflict. We disagree.”

Here’s the full opinion.

After coming to the conclusion that SLAPP rules impermissibly regulate procedure, the Court tackles other issues including what the court determined to be the district judge’s erroneous conclusion that La Liberte is a public figure. The Court writes that it isn’t enough that she attended meetings about California’s immigration law and spoke up publicly and had her photo taken by news photographers:

“Thin as the findings are to begin with, the district court did not take into account the requirement that a limited purpose public figure maintain ‘regular and continuing access to the media,’

The court noted that part of the reason for imposing an actual malice requirement on public figures is that they have alternative access to media channels enabling them to protect their reputations when someone says something false. “La Liberte plainly lacked such media access,” the court stated in its decision. What “limited public figure” ever has such access one wonders? Great, so now the stricter standard of actual malice will apply to even less people, making fighting SLAPP suits even harder.

But wait! There’s more! The Second Circuit then tackles whether Reid enjoys immunity under Section 230 of the Communications Decency Act, which affords tech services and users of tech services immunity for content posted by third parties. Reid argued that she merely retweeted the alleged defamatory statements. The appellate court disagreed with Reid’s lawyers and held that she wasn’t protected by the CDA.

Key to that conclusion is that the original tweet read “they yelled” at the teenager whereas Reid was the one who attributed the remark specifically to La Liberte. The court noted Reid “went way beyond her earlier retweet … in ways that intensified and specified the vile conduct that she was attributing to La Liberte. She accordingly stands liable for any defamatory content.”

To her credit Reid did take down the post when she received a cease and desist letter from La Liberte’s lawyers, but La Liberte decided to file suit anyway. In my opinion, that was when the case should have settled. There’s a saying in litigation “Bad cases make bad law.” And that’s what happened here. Reid should not have editorialized the original post by directly attributing the racist comments to Ms. La Liberte, especially when the youth involved said La Liberte was civil and not the one using the epithets. Also by adding her two cents, Ms. Reid was found to have lost the protection of Section 230 CDA. Because of this decision, the Second Circuit is now added to the list of courts that hold that State anti-SLAPP statutes do not have an impact on federal procedure. This triple whammy is going to hurt media companies – already under fire due to the current administration’s anti-media stance – for a long time as SCOTUS, once it gets one of these cases will likely decide the issue in line with this opinion.

Follow me on Twitter @oscarmichelen

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In Another 5-4 SCOTUS Decision, Religious Schools Can Now Get Gov’t Funding Thu, 02 Jul 2020 14:12:35 +0000 [...]]]> This SCOTUS season is turning this into a full-time Supreme Court Blog which is not what it is supposed to be. But these past few decisions have been so important -not just for the decisions themselves, but as a window into this divided, politicized Court, that I wanted to write about them.

In a huge win for backers of school choice including Education Secretary Betsy DeVos, SCOTUS yesterday sided with three Montana families who asked the court to declare that excluding religious schools from student aid programs is unconstitutional.

The case, Espinoza v. Montana Department of Revenue, which has drawn intense interest from the Trump administration, could have major implications for the use of public dollars to pay for religious schools. My wife and I raised out three sons in the Herricks School District on Long Island NY; it was a case from Herricks that ended prayer in schools. Who knows how that case would have been decided today with SCOTUS approval of State funds going to religious organizations.

FACTS: The Montana Legislature established a program that grants tax credits to those who donate to organizations that award scholarships for private school tuition. A family whose child is awarded a scholarship under the program may use it at any “qualified education provider”—
that is, any private school that meets certain accreditation, testing, and safety requirements. Virtually every private school in Montana qualifies. Upon receiving a scholarship, the family designates its school of choice, and the scholarship organization sends the scholarship funds directly to the school. Neither the scholarship organization nor its donors can restrict
awards to particular schools.

To reconcile the program with a provision of the Montana Constitution that bars government aid to any school “controlled in whole or in part by any church, sect, or denomination,” Art. X, §6(1), the Montana Department of Revenue promulgated “Rule 1,” which prohibited families from using the scholarships at religious schools. These type of provisions exist in nearly 40 states, and are also known as “Blaine Amendments.” Blaine Amendments are controversial state constitutional provisions originally rooted in 19th century anti-Catholic bigotry. Their purpose was to prevent the government from funding Catholic schools. States continue to maintain “Blaine Amendments” not to discriminate against Catholics but to keep a line between Church and State.  

Three mothers who were blocked by Rule 1 from using scholarship funds for their children’s tuition at Stillwater Christian School sued the Department in state court, alleging that the Rule discriminated on the basis of their religious views and the religious nature of the school they had chosen. The trial court enjoined Rule 1 from being applied. Reversing, the Montana Supreme Court held that the program, unmodified by Rule 1, aided religious schools in violation of the Montana Constitution’s no-aid provision. The Montana Supreme Court further held that the violation required invalidating the entire program.

The case presents the struggle between the First Amendment’s promise of the Free Exercise of Religion and the Establishment Clause, the promise that the government will do nothing to “establish” a religion.

SCOTUS, in another fractured 5-4 decision, held that Rule 1 violated the Free Exercise Clause and that the State Supreme Court had no right to invalidate the entire program.

Justice Roberts’ Majority Opinion joined by Thomas, Alito, Gorsuch and Kavanaugh

Roberts held that Rule 1 impinges on the Free Exercise clause because it discriminates against schools merely because they are owned by religious institutions. He cited the 2017 case of Trinity Lutheran Church v. Comer, which reversed denial of money from the State to a Christian school to repave its playground. The State had argued that Trinity did not apply because those were general funds available to all schools for use for facilities while these are funds directly for education so it amounted to State-funded religious education. (Trinity was the first SCOTUS case that allowed direct money to go from the State to a religious institution in this manner.) Roberts disagreed with the State’s argument saying that this was discrimination based on “religious status” not on “religious use.” He noted that the law did not prohibit money just for religious use but for any school owned by a religious institution. (But the money was for a tuition scholarship – so it could not be used for anything but education!) Roberts went on that this blanket restriction “inevitably deters or discourages the
exercise of First Amendment rights.”

Roberts distinguished this case from the Court’s 2004 precedent of Locke v. Davey, which upheld a Washington State law prohibiting State scholarship money to be used by the defendant to get educated as a minister. Thus, Roberts said, Mr. Davey “was denied a scholarship because of what he proposed to do—use the funds to prepare for the ministry” not the religious status of the school. Again, this is to me a tortured distinction. The parents (like Davey) get scholarship money from the State (like Davey) and then use it for religious education (like Davey). Its clearly a religious use.

Roberts made sure to put in the decision that the original source of the Blaine amendments was Anti-Catholic discrimination and that many States -even those with Blaine amendments – allow funds to go to religious institutions through vouchers and other programs.

The Montana Supreme Court asserted that the no-aid provision serves Montana’s interest in separating church and State “more fiercely” than the Federal Constitution. (A State Constitution can guarantee more rights than the Federal Constitution, but not less). Roberts held “that interest cannot qualify as compelling” in the face of the infringement of free exercise here: “A State’s interest in achieving greater separation of church and State than is already ensured under the Establishment Clause . . . is limited by the Free Exercise Clause. . . . A State need not subsidize private education. But once a
State decides to do so, it cannot disqualify some private schools solely because they are religious.” Roberts also said that the problem was not solved by the Montana Supreme Court ending the program entirely since only the Legislature can do that.

Justice Thomas’ Concurrence, joined by Gorsuch

Thomas wanted to make clear that he believes the Establishment Clause is basically overrated. He argues (as he has in many other cases) that Supreme Court jurisprudence on this Clause has been wrong from the beginning.:

“As this Court stated in its first case applying the Establishment Clause to the States, the government cannot “pass laws which aid one religion, aid all religions, or prefer one religion over another. This “equality principle,” the theory goes, prohibits the government from expressing any preference for religion—or even permitting any signs of religion in the governmental realm. Thus, when a plaintiff brings a free exercise claim, the government may defend its law, as Montana did here, on the ground that the law’s restrictions are required to prevent it from “establishing” religion.”

But that’s wrong , he says. His view is that the Clause served only to “protec[t] States, and by extension their citizens, from the imposition of an established religion by the Federal Government. Under this view, the Clause resists incorporation against the States.” So as per Thomas (and now Gorsuch) States can freely establish religions I guess.

He calls the Court’s long-established case of Lemon v. Kurtzman which set guidelines for drawing the line between Establishment and Free Exercise, “infamous.” He said it has been used to denigrate “those who continue to adhere to traditional moral standards, as well as laws even remotely
influenced by such standards, as outmoded at best and bigoted at worst.” In support of this statement, he cites Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n (baker not allowed to refuse to sell cake to couple for legal gay marriage) and Obergefell v. Hodges (States cannot prohibit gay marriage). “So long as this hostility remains, fostered by our distorted understanding of the Establishment Clause, free exercise rights will continue to suffer.” For a jurist who claims to love and adhere to the Founding Fathers, he envisions an America far different from the one envisioned by Madison, Jefferson and Monroe.

Justice Alito’s Concurrence

Alito decided to write a lengthy dissertation on the Anti-Catholic foundations of Blaine Amendments, poo-pooing the undisputed fact that most States (including Montana) specifically reconvened conventions to re-pass these laws without a discriminatory basis. Montana in particular even made sure that many Catholic voices were invited to the Constitutional convention and were heard in support of the new version of the Blaine Amendment. Alito says “never mind that” and says that the foundation of the laws taints all these laws. Permanently I guess? Even if they were specifically re-drafted to start a new life without any discriminatory basis?

But Alito also wanted to make clear that he feels that there should be essentially full and direct funding by States of religious private schools since the rich can do this any way – so why keep the poor from this right?:

Today’s public schools are quite different from those envisioned by Horace Mann, but many parents of many different faiths still believe that their local schools inculcate a worldview that is antithetical to what they teach at home. Many have turned to religious schools, at considerable expense, or have undertaken the burden of homeschooling. . .. The [Montana] program helped parents of modest means do what more affluent parents can do: send their children to a school of their choice. The argument that the decision below treats everyone the same is reminiscent of Anatole France’s sardonic remark that “‘[t]he law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.’”

Justice Gorsuch’s Concurrence

Apparently eager to show that he is even more in favor of basically undoing the Establishment Clause, Gorsuch wrote to opine that even if the scholarship money was for religious use he would uphold the program being used by religious parents at religious institutions: Calling it discrimination on the basis of religious status or religious activity
makes no difference: It is unconstitutional all the same.

How that fits in with the Establishment Clause is not clear – oh right, he doesn’t believe it applies to the States.

More 5-4 decisions are likely from this crew

Justice Ginsburg’s Dissent, joined by Justice Kagan

Ginsburg dodges the whole issue by saying once the Montana Supreme Court struck down the entire law – so no one got the money- the case was over. There was no longer a Free Exercise or Establishment Clause issue:

A State may distinguish within a benefit program between secular and sectarian schools, or it may decline to fund all private schools. The Court agrees that the First Amendment permits the latter course. Because that is the path the Montana Supreme Court took in this case, there was no reason for this Court to address the alternative.

Justice Breyer’s Dissent, joined as to Part I by Kagan

Breyer in Part I, discusses the long-standing distaste of the Founding Fathers, particularly Jefferson, and earlier Supreme Courts, of State money going to fund religious education. He says the issue here is not the schools’ status (the basis of Roberts’ opinion) but rather that the parents’ use of the money to fund religious education for their children. For that reason, he says its indistinguishable from Locke:

For our purposes it is enough to say that, among those who gave shape to the young Republic were people, including Madison and Jefferson, who
perceived a grave threat to individual liberty and communal harmony in tax support for the teaching of religious truths. These “historic and substantial” concerns have consistently guided the Court’s application of the Religion Clauses since. If, for 250 years, we have drawn a line at forcing taxpayers to pay the salaries of those who teach their faith from the pulpit, I do not see how we can today require Montana to adopt a different view respecting those who teach it in the classroom.

In Part II, he says the Court’s decision is too broad and sweeping and may have many unintended consequences and leaves a lot of gray area as States will try to increase public money going to religious schools. He says that it is better not to craft a one-size-fits-all approach but rather decide each case on its own facts.

Justice Sotomayor’s Dissent

Sotomayor agrees with Ginsburg that the case was unnecessarily decided since the court below struck down the law in its entirety. But she writes that she felt compelled to write her own opinion because this decision “slights both our precedents and our history” and “weakens this country’s longstanding commitment to a separation of church and state beneficial to

She points out the difference in this case from Trinity Lutheran (though she dissented in that as well):

Although the Establishment Clause permits some government funding of secular functions performed by sectarian organizations the Courts’ decisions provided no precedent for the use of public funds to finance religious activities.”

(Until now, that is)

She then pulls no punches by saying that the majority is wrong to say that the law discriminates against the religious: “A decision to treat entities
differently based on distinctions that the Religion Clauses make relevant does not amount to discrimination.” She finishes with some strong language:

Today’s ruling is perverse. Without any need or power to do so, the Court appears to require a State to reinstate a tax-credit program that the Constitution did not demand in the first place. We once recognized that while the Free Exercise Clause clearly prohibits the use of state action to deny the rights of free exercise to anyone, it has never meant that a majority could use the machinery of the State to practice its beliefs .Today’s Court, by contrast, rejects the Religion Clauses’ balanced values in favor of a new theory of free exercise, and it does so only by setting aside well-established judicial constraints.

What Now?

This decision is a phenomenal victory for Secretary of Education Betsy DeVos who has devoted most of her life to trying to get public funds out of public schools and into the hands of religious schools. I am certain that she will now encourage many other States to follow suit and enact similar programs. That money will now be taken out of public school coffers and will be used by religious teachers to teach religious doctrine to kids. With over 90% of children in the US being educated by public schools that are already financially strapped, this loss of funding will undoubtedly impact public education.

But far more damage has been done to the formally clear line between Church and State. This case will open the floodgates for public funding of religious institutions. One wonders if a challenge to the tax-exempt status of religious schools that receive Federal funding could be raised now. Can private religious institutions have it both ways – get money from the government and not pay taxes?

The case also teaches an important message for litigators and activists alike. Its all about the long game. Large scale wars are won not in one fell swoop, but in small, focused, repetitive battles. Chip away a little here; carve out an exception there; win some key local, then state , then national elections; and then wait for the right case to hit the home run. To be fair, its the way abortion rights and gay rights were won and now parochial schools can eat their cake and have it to.

Moral: Elections matter.

Read the full decision here:

Follow me on Twitter @oscarmichelen

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In Yet Another 5-4 decision SCOTUS Strikes Down Louisiana’s Restrictive Abortion Law Tue, 30 Jun 2020 04:01:03 +0000 [...]]]> Its been a heck of a SCOTUS term so far, with key rulings on Gay Rights; DACA and now abortion. This decision today in June Medical Services LLC v. Russo, is a great relief to supporters of women’s reproductive rights. Since the language of this law was nearly identical to the Texas law struck down by SCOTUS in Whole Women’s Health v. Hellerstedt (“WWH”), just four years ago, this should have been a cut and dried 9-0 based on stare decisis, the legal principle that courts should adhere to the principles in cases previously decided. But with such a highly politicized court, we end up with six different opinions resulting in a 5-4 split. This will likely push both political parties to heighten the importance of the next President.

So let’s break it down quickly. FACTS: A Louisiana women’s health care center sued to stop enforcement of a Louisiana state law requiring doctors performing abortions to have an admitting privileges in an area hospital. Never mind that abortion is often performed in doctor’s offices and is one of the safest surgical procedures practiced. And of course, Louisiana hospitals were finding reasons to deny privileges to the plaintiff doctors so that they effectively were prevented from performing abortions. The law at issue  was Louisiana’s Act 620, which “requires an abortion provider to have admitting privileges at a hospital within 30 miles of where any abortion is performed,” among other changes. Act 620 is an example of a “targeted regulation of abortion providers,” or TRAP law, legislation expressly crafted to impose unnecessary regulations on clinics and physicians providing abortion care in an effort to curtail or cease their ability to operate.

The District Court found that this evidence established that the regulations placed an undue burden on the right to an abortion. It actually spent eighteen months monitoring four plaintiff doctors’ attempt to gain admitting privileges. Thirteen hospitals in total in those eighteen months denied privileges to the plaintiffs. The District Court struck down the law as unconstitutional under Roe v. Wade and its progeny. On appeal, in a 2-1 vote, the Fifth Circuit Court of Appeals, reversed the District Court saying it disagreed with its factual findings and the impact it would have on women’s healthcare. That lead to SCOTUS taking up the case.

Opinion Of Justice Breyer, sigend onto by Justices Ginsurg, Kagan, & Sotomayor

Justice Breyer noted the relevant factual findings of the District Court after a six day bench trial. Generally, that abortion in Louisiana has been a very safe procedure; that this law serves no legitimate benefit to the State other than serving as an obstacle to abortion; that 10,000 women annually in Louisiana get an abortion from five clinics in the whole State serviced by six doctors; that this law already forced the closure of two of those clinics and the retirement of one of those six doctors; because of the difficulty of getting the privileges the law was likely to reduce the number of those clinics to two, possibly even one and to reduce the number of doctors to only one.

With these stark facts in place, Justice Breyer first had to deal with a procedural argument raised by the State: whether the doctors had legal standing to contest the law since they were abortion providers and not abortion recipients. The State raised this issue for the first time before SCOTUS so Breyer held that they had waived it. He ruled that even if the State hadn’t waived it, the doctors could still bring the challenge on behalf of their patients since the law affected their conduct as well. he noted that this was the case in other abortion cases and in cases involving a challenge to a law forbidding sale of alcohol to minors brought by a convenience store owners.

Having dealt with that hurdle, Breyer pointed out the great deference normally given to trial court’s findings of fact. He wrote the decision in WWH, and made clear that he saw no reason why this case was any different:

“In Whole Woman’s Health, we quoted Planned Parenthood v. Casey
in explaining that “‘a statute which, while furthering [a] valid state interest has the effect of placing a substantial obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its legitimate ends.” We added that “ ‘[u]nnecessary health regulations’” impose an unconstitutional “‘undue burden’” if they have “‘the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion.’”

Because the trial court found that the law presented a “substantial obstacle” to abortion, it was unconstitutional. He summed it up neatly by saying “This case is similar to, nearly identical with, Whole Woman’s Health. And the law must consequently reach a similar conclusion. Act 620 is unconstitutional.”

Here I come to save the day!!

Chief Justice Roberts Concurs

Roberts actually would have given the case even shorter shrift than the plurality opinion. First he said that under Casey, the re was no need for the Court to weigh the benefits of the law against the burdens imposed by the law. If the trial court found that the law placed a “substantial obstacle” to abortion and if that finding was not “clearly erroneous” then it should be upheld and the law struck down.

Even though he voted in the minority in WWH, he stated that it was decided just four years ago and it involved a nearly identical statute with similar results regarding abortion obstacles. That meant the Court was bound to follow it, like it or not:

Stare decisis instructs us to treat like cases alike. The result in this case is controlled by our decision four years ago invalidating a nearly identical Texas law. The Louisiana law burdens women seeking previability abortions to the same extent as the Texas law, according to factual findings that are not clearly erroneous. For that reason, I concur in the judgment of the Court that the Louisiana law is unconstitutional.

This should be comforting language to pro-choice supporters. It means that if the Court maintains its current balance these TRAP laws will die on the vine and Roe is relatively safe. But the next President is likely to appoint one or two judges to the high court within the next four years so the Court’s composition could easily change.

Justice Thomas’ Dissent

Thomas spends most of his opinion saying that the plaintiff’s lack of standing should have ended the inquiry:

Today a majority of the Court perpetuates its ill-founded abortion jurisprudence by enjoining a perfectly legitimate state law and doing so without jurisdiction. As is often the case with legal challenges to abortion regulations, this suit was brought by abortionists and abortion clinics. Their sole claim before this Court is that Louisiana’s law violates the purported substantive due process right of a woman to abort her unborn child. But they concede that this right does not belong to them, and they seek to vindicate no private rights of their own. Under a proper understanding of Article III, these plaintiffs lack standing to invoke our jurisdiction.

But that would not be enough for Thomas. He needed to make clear where he stood on abortion, lest anyone had any doubt:

But today’s decision is wrong for a far simpler reason: The Constitution does not constrain the States’ ability to regulate or even prohibit abortion. This Court created the right to abortion based on an amorphous, unwritten right to privacy, which it grounded in the “legal fiction” of substantive
due process, McDonald v. Chicago, 561 U. S. 742, 811 (2010) (THOMAS, J., concurring in part and concurring in judgment). As the origins of this jurisprudence readily demonstrate, the putative right to abortion is a creation that should be undone

He adds that it is “farcical” to believe that the 14th Amendment, which was ratified in 1868, protects abortion, when nearly all the States had laws against abortion in 1868. He states simply at the end of his opinion, that Roe should be overruled.

Justice Alito’s dissent, joined in part by Justices Thomas, Gorsuch and Kavanaugh

Justice Alito says that the Casey test of “substantial obstacle” is all that matters and that both this case and WWH are wrong in applying a balancing test between the obstacles and the benefits of the law. He says that on this he agrees with Roberts so he can’t understand why Roberts is so bound to WWH as precedent since he acknowledged that at least part of it was dead wrong.

While he cites what he believes is lack of sufficient and sincere effort on the part of the plaintiffs to secure privileges, he says the case should be sent back down to the trial court to analyze the facts under the Casey standard alone. He adds that he also agrees that only abortion seekers and not abortion providers have standing to challenge these laws. So on remand, he would suggest that the trial court allow the plaintiffs to amend their complaint to add an abortion seeker as a party.

Justice Gorsuch’s Dissent

Gorsuch felt the Court gave insufficient deference to the State Legislature which conducted hearings and took testimony and even considered the law’s burden on abortion seekers into account before passing the law. He also agrees that the doctors lacked standing to bring the law. Finally, he states that in Casey the standard was whether unnecessary health regulations imposed as substantial obstacle. Here, there was sufficient evidence in the record that the law was not unnecessary and no evidence that the court considered whether it was unnecessary. He said that in reaching its conclusion today, the Court abandoned man of its time-honored principles:

To arrive at today’s result, rules must be brushed aside and shortcuts taken. While the concurrence parts ways with the plurality at the last turn, the road both travel leads us to a strangely open space, unconstrained by many of the neutral principles that normally govern the judicial process. The temptation to proceed this direction, closer with each step toward an unobstructed exercise of will, may be always with us, a danger inherent in judicial review. But it is an impulse this Court normally strives mightily to resist. Today, in a highly politicized and contentious arena, we prove unwilling, or perhaps unable, to resist that temptation. Either way, respectfully, it is a sign we have lost our way.

Justice Kavanaugh’s Dissent

While Kavanaugh agrees with most of Alito’s opinion, he wrote a brief one pager of his own to say he feels that there was not enough evidence in the record of the providers’ efforts to comply with the law. He would have remanded the matter back to the trial court for more fact-finding and to consider the standing argument.


The case shows the highly politicized nature of the abortion rights issue and the Court itself. Five justices (Roberts, Alito, Gorsuch, Thomas and Kavanaugh) feel that the “cost-benefit” analysis in WWH is wrong and that the Casey “undue burden” or “substantial obstacle” case controls. A different five (Breyer, Kagan, Ginsburg, Sotomayor and Roberts) feel the Louisiana law like the Texas law in WWH was a substantial burden on the right to an abortion. Rarely has a Supreme Court been this divided and politicized. The next justice’s retirement and their next replacement could have a significant shift in the way the Court sees abortion and a number of other significant legal challenges. For now though, this case was a good stop-gap measure on TRAP laws designed to limit access to abortion. The case showcases the importance of who sits not just on the high court but in your State legislature.

Read the full decision here:

Follow me on twitter @oscarmichelen

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5-4 SCOTUS Upholds DACA: Admin Had No Right to Terminate Program Thu, 18 Jun 2020 19:08:16 +0000 [...]]]> Another day, another big loss for the Trump Administration and I would argue another great win for American society. In a 5-4 vote, with Chief Justice John Roberts joining the liberal wing of the Court to form a majority, the Supreme Court blocked the Trump administration from ending the Deferred Action for Childhood Arrivals (DACA) program that allows nearly 700,000 young, undocumented immigrants to live and work in the United States without fear of deportation.

A signature accomplishment of the Obama Administration, in 2012 the Department of Homeland Security (DHA) issued the DACA program which authorized undocumented aliens in the United States who had arrived here as children to have a two-year renewable forbearance from deportation. That allowed them to get work authorizations and obtain certain Federal benefits. Then in 2014, the program was proposed to be expanded to include parents of DACA members; that program was called DAPA. Texas sued to stop implementation of DAPA and SCOTUS upheld lower court’s injunction barring the program as violating the Immigration and Nationality Act which had set out guidelines for eligibility of benefits.

Then of course, there was a change of administration in 2017. DHS rescinded DAPA based on the Federal litigation. Attorney General Jeff Sessions then issued a letter to DHS stating that DACA suffered from the same legal failings as DAPA and DHS rescinded DACA, providing one final window for those already receiving its benefits to get an extension. Several States sued saying DHS’s decision was “arbitrary and capricious.”

This decision is the culmination of that litigation and the case is entitled Department of Homeland Security v, Regents of the University of California. The various respondents raised two arguments: (1) That the decision violated the Administrative Procedures Act and (2) That the decision violated the Fifth Amendment’s guarantee of equal protection under the law.

Justice Roberts’ Opinion Joined by Breyer, Ginsburg, Kagan, and Sotomayor (except as to Part IV)

Roberts largely focused on how DACA was undone. Acting DHS Secretary Elaine Duke guided by Sessions’ letter and the SCOTUS decision issued a memorandum that found that DACA was illegally enacted. That was it. When new Acting DHS Secretary Kristjen Nielsen took over, she declined to issue a new decision but said she was relying on the Duke memo and then issued an opinion with three further reasons for terminating DACA, even though there was pending litigation over the Duke memo..

Roberts said that was wrong. He stated that a government agency must rely solely on the reasons given at the time it decided to act and that Nielsen’s relying on the Duke memo and then adding three additional explanations – without issuing an entirely new decision that would be subject to judicial review by the courts – was improper. He acknowledged that while it may seem a highly procedural technicality to hang his hat on, he noted the importance of propriety and following rules when acting as the government and the importance and impact of the decision on the 700,000 DACA recipients and 4.3. Million potential DAP recipients, citing a legendary lion of the Supreme Court:

Justice Holmes famously wrote that “men must turn square corners when dealing with the Government.” But it is also true, particularly when so much is at stake, that the Government turn square corners when dealing with the people. The basic rule here is clear: An agency must defend itself based on the reasons it gave when it acted. This is not the case for cutting corners to allow DHS to rely upon reasons absent from its original decision.

He also noted that Duke’s decision was “arbitrary and capricious” because it failed to fully consider the impact of her decision and consider alternative, less restrictive means. While acknowledging that it was the attorney General’s sole prerogative to determine whether a Federal program was illegal, it was DHS’ role to determine how to implement the unwinding of it. The Fifth Circuit’s decision SCOTUS upheld and the Attorney General’s opinion on illegality only dealt with one element of DACA and DAPA – receipt of Federal benefits. But the DHS memo also dis away with the most important feature of DACA and DAPA – forbearance from deportation. Wiping out this provision without any basis was “arbitrary and capricious.” This is especially so when prior SCOTUS opinions have held that when an agency rescinds a prior policy it must consider alternatives that exist “within the ambit of the prior policy.” When you think about it, this reasoning is a smart stop-gap for wholesale policy swaps when new administrations come in. The new administration must not just provide a sound basis for the reversal but determine whether another alternative can exist short of full rescission.

Roberts also stated that there was no evidence that Duke had considered whether there was significant reliance on the original DACA memo that created the program – another prerequisite under prior SCOTUS decisions dealing with administrative reversals. The States had pointed out that since DACA was started hundreds of thousands of DACA recipients have gone to college, started businesses and that rescinding the program would impact American citizens as many businesses and schools employ DACA members. The States calculated that taking DACA members out of the economy would result in a loss of $215 billion in economic activity with a resulting loss of $60 billion in federal tax revenue. As Roberts said ” there was a lot to consider” in this area and DHS did not take it into account at all.

In Part IV of the opinion , Roberts said there was no basis however to find that the decision was based on racial animus towards Latinos. He noted that obviously due to circumstances, the Latino population was mostly affected by DACA and its rescission. But that does not mean the decision targeted Latinos specifically. And while the Court acknowledged that President Trump made racially charged comments against Latinos, they were too remote in time from the time of the action and about unrelated issues so as to ascribe discriminatory intent on DHS’s part. He therefore dismissed the equal protection arguments.

Chief Justice John G. Roberts.

Justice Sotomayor’s Concurrence

Sotomayor would have allowed the equal protection argument to move forward. She noted hat all the courts below found sufficient evidence to meet the minimum pleading threshold and stated that the respondents should have the opportunity to flesh out the argument in the lower courts.

She cited many of President Trump’s statements that “illegal aliens” are “animals” “drug dealers” “rapists” etc. She noted that stopping Mexican immigration was a cornerstone of Trump’s campaign and policy once in office. She said this alone was enough to make out a claim that the President’s words were proof of “discriminatory animus” being a basis for the DACA rescission. She added that the majority too quickly did away with the argument that Latinos would be disproportionately affected. That too had to be viewed in context of the racial statements made by the President. She argued that at this early stage of the litigation (motion to dismiss the complaint) it was wrong not to let the respondents try to prove this part of their case.

She noted that as late as June 2017, DHS issued a statement saying it remained committed to maintaining DACA even after it rescinded DAPA. A short three months later, it rescinded DACA without any of the considerations required under the law. She stated:

The abrupt change in position plausibly suggests that something other than questions about the legality of DACA motivated the rescission decision. . .It raises the possibility of a significant mismatch between the decision made and the rationale behind it.

NOTE: The below opinions are discussed as dissents though technically they also concurred in the decision of Roberts that the Equal Protection Clause did not apply. That portion of the Roberts decision was decided 8-1 with Judge Sotomayor being the lone dissent.

Justice Thomas’ Dissent, joined By Alito and Gorsuch

Justice Thomas starts out by saying its “mystifying that the Court would take this position when DACA was created by President Obama via a memorandum from DHS and then rescinded by President Trump by a memorandum by DHS. He says since DACA was created without statutory authority and outside the ordinary rulemaking process it was illegal from the beginning. The Court should not scrutinize why and how an agency decides to rescind an illegal action as long as the determination that it was illegal was sound.

In a thorough, well-written, well-reasoned, decision, he takes the reader through DACA’s history which was labeled a “prosecutorial discretion decision” by the DHS Secretary Janet Napolitano which does not confer any new rights or substantive benefit to the DACA/DAPA class, but which Thomas says in fact created a new class of non-removable aliens; Congress and only Congress has the right to amend or expand the Immigration and Nationality Act.

I have to agree with Justice Thomas that its a bit of a stretch to say that DACA confers no new rights as to the benefits portion of the law, but as to the forbearance section, that restricts what the government will do not what rights the aliens have. So while the forbearance portion ultimately results in DACA members having the right to stay, that’s only because DHS is making a decision not to deport them,, not because they have been included in the INA.

He noted that DHS undertook none of the required rule-making steps under the APA before issuing the DACA memorandum and that alone provides another reason for rescission. And as for Roberts’ arguments on reliance, he notes that no one has a right to rely on an illegal law and that in any event even the DHS memorandum states that it can be rescinded at anytime. He states:

Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision

Justice Alito dissenting

Justice Alito wrote a one page separate dissent to point out that the system as he sees it is broken when it comes to this issue. He notes that DHS almost at the start of the Trump presidency rescinded DACA. Here it is near the end of Trump’s first term, Alito states, and this Court just bounced it back for more determination: “Our Constitutional system is not supposed to work that way.” He also says the case is simple even if you don’t believe DACA was illegally enacted (as he believes). If DACA was an exercise of prosecutorial discretion, then its rescission is also a decision of prosecutorial discretion.

Justice Kavanaugh, dissenting

In his dissent, Justice Kavanaugh does not say DACA was illegal from the start. He instead focuses on the Roberts’ decision that the original DHS memo rescinding it did not state sufficient reasons or give sufficient clarity. While Roberts says that the Nielsen memo came too far after the original one to be considered, Kavanaugh says the Court should be more practical and consider it now that the issue is before the Court..

So he says that because the Nielsen memo more fully complies with the APA and provides clarity and a rational basis for rescinding DACA, the rescission should be upheld.

Much like he did in this weeks earlier decision on LGBTQ rights, Kavanaugh again took pains to express that he understand the issues and concerns but lays it on the fault of Congress for deciding how to address the issue once and for all:

For the last 20 years, the country has engaged in consequential policy, religious and moral debates, about the legal status of millions of young immigrants who, as children, were brought to the United States and have lived here ever since. . . They live, go to school, and work here with uncertainty about their futures. Despite many attempts, Congress has not yet enacted legislation to afford legal status to those immigrants. . . .That uncertainty is a result of Congress’ inability thus far to agree on legislation which in turn has forced successive administrations to improvise thereby triggering many rounds of endless litigation with the prospect of more litigation to come. In contrast, . . . Article I legislation . . could produce a sturdy and enduring solution to this issue, one way or the other, thereby remove the uncertainty that has persisted for years for these young immigrants and the Nation’s immigration system.


All the judges would agree that they would love for the Congress to finally make DACA law (or not). But with a divided Congress, that will never happen. Say what you like about Thomas and the others who voted against it, but it was a Constitutional stretch to say DACA was not an executive reach into the legislative process; sure I could certainly rationalize it and easily argue why it was authorized. But the arguments raised by Thomas in his decision have a sound basis as well. It all comes down to how you view DACA (as law or as discretionary agency authority).

And I agree with Justice Kavanaugh that this decision only prolongs the legal limbo that DACA members live under. While it is worthy to celebrate this temporary reprieve, it falls far short of a legislative change to the INA. We need the Senate to approve the proposed DACA legislation that has been repeatedly referred to them by the House. Then it will fall on the President to veto or sign it into law.

Read the full decision here:

Follow me on Twitter @oscarmichelen

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SCOTUS Rules LGBTQ Workers Covered Under Civil Rights Act Mon, 15 Jun 2020 19:47:22 +0000 [...]]]> In a landmark ruling, the U.S. Supreme Court ruled that Title VII of the Civil Rights Act prohibits job discrimination on the basis of sexual orientation and transgender status, a major victory for advocates of gay rights; the transgender rights movement; and anyone who recognizes the invalidity of discrimination against any class of people on the basis of any personal trait.

By a vote of 6-3, the Court ruled that Title VII’s ban on discrimination “on the basis of sex” also covers sexual orientation and transgender status. It upheld rulings from lower courts that said sexual orientation discrimination was a form of sex discrimination.

President Donald Trump’s first Supreme Court appointee, Neil Gorsuch, wrote the opinion and was joined by Chief Justice John Roberts and the court’s four more liberal members to form a majority. It will likely come as a shocking blow to the administration which had just last week pulled back healthcare protections for transgender workers; that move is now in jeopardy. Justice Alito wrote a dissenting opinion which Justice Thomas joined and Justice Kavanaugh wrote his own dissent. Its a 172 page decision but a quick breakdown follows.

Majority Opinion – Justice Gorsuch, joined by Roberts, Breyer, Ginsburg, Kagan, and Sotomayor

I don’t usually like merely block-quoting parts of opinions but frankly Gorsuch’s introduction is just about all you need to read as it presents a concise argument of how clearly “sexual orientation” and “transgender” is covered under the terms “sex.”

Sometimes small gestures can have unexpected consequences. Major initiatives practically guarantee them. In our time, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964. There, in Title VII, Congress outlawed discrimination in the workplace on the
basis of race, color, religion, sex, or national origin. Today,we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids. Those who adopted the Civil Rights Act might not have
anticipated their work would lead to this particular result.
Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.

I particularly like that line “But the limits of the drafters’ imagination supply no reason to ignore the law’s demands.” It shows the difference between being a “strict constructionist” and being a “textualist.” The former means that you interpret the law solely in the context of the times it was written in while the latter says you rely on the text of the law to determine its meaning and scope and apply it to the issues it was meant to address but in the light of today’s knowledge and events.

Gorsuch starts out his analysis by engaging in classic statutory analysis. He parses out the words that make out the law and applies them to the current case. He notes that “because of” means “on account of ” or “by reason of” and that signifies under the law that “sex” need only be one factor behind why a person was terminated or discriminated against to qualify under the law. Congress, he notes, could have used “solely” but did not.

Next Gorsuch analyzes what the statute means by “discriminate against.” Relying on a Websters Dictionary definition from 1964 (when the law was passed) he gives the following definition: “To make a difference in treatment or favor of one as compared with others.” This means that “disparate treatment” short of actual firing or hiring is actionable under the law.

He then tackles Alito’s argument in his dissent (discussed below) that the Act is meant to prohibit broader discrimination against a group not individual, isolated cases by again looking at the statute. He notes that the statute uses the word “individual” three times in defining the prohibited conduct: Employers may not “fail or refuse to hire or . . . discharge any individual, or otherwise . . . discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex.” Seems pretty clear but Gorsuch, to be safe goes back to Websters for a definition of an individual: “A particular being as distinguished from a class, species, or collection.”

Noting that previous SCOTUS decisions have stated that Title VII words and in tent a re “simple but momentous” he states:

The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.

He cites three major, long-accepted, SCOTUS rulings where while “sex” was in and of itself not a factor, the person’s sex was inextricably tied to the factor. In Phillips v. Martin Marietta Corp., a company allegedly refused to hire women with young children, but did hire men with children the
same age. Because its discrimination depended not only on the employee’s sex as a female but also on the presence of another criterion—namely, being a parent of young children—the company contended it hadn’t engaged in discrimination “because of ” sex. The company maintained, too,
that it hadn’t violated the law because, as a whole, it tended to favor hiring women over men. These submissions did not sway the Court, Gorsuch noted. “That an employer discriminates intentionally against an individual
only in part because of sex supplies no defense to Title VII. Nor does the fact an employer may happen to favor women as a class.”

In Los Angeles Dept. of Water and Power v. Manhart, a public employer required women to make larger pension fund contributions than men. The employer sought to justify its disparate treatment on the ground that
women tend to live longer than men, and thus are likely to receive more from the pension fund over time. The defendant argued since they were merely using a proven statistical fact, they could not be found to be discriminating against women. Gorsuch cited this case also because the way SCOTUS refuted that statistical argument was by saying the law protected individuals and that therefore a woman may make this larger pension payments but die at the same age or earlier than the average man. The employer violated Title VII, SCOTUS ruled, because, when its policy worked exactly as planned, it could not “pass the simple test” asking whether an individual female employee would have been treated the
same regardless of her sex.

Finally Gorsuch cited Oncale v. Sundowner Offshore Services, Inc., where a male plaintiff alleged that he was singled out by his male co-workers for sexual harassment. The Court held it was immaterial that members of the same sex as the victim committed the alleged discrimination. Nor did the
Court concern itself with whether men as a group were subject to discrimination or whether something in addition to sex contributed to the discrimination, like the plaintiff ’s conduct or personal attributes. “[A]ssuredly,” the case didn’t involve “the principal evil Congress was concerned with when it enacted Title VII.” But, the Court unanimously explained, it is “the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Because the plaintiff alleged that the harassment would not have taken place but for his
sex—that is, the plaintiff would not have suffered similar treatment if he were female—a triable Title VII claim existed.

Having analyzed the statute piece by piece, and then putting all these cases together he goes through all of the defendants and dissenters positions, including that if you were to ask the plaintiffs why they were fired they would say because they were gay or transgender not “because of their sex.” I wont go through them all but will quickly discuss one main defense: that the statute does not say “sexual orientation” and sexual orientation” is different than “sex.” To that argument Gorsuch stated:

We agree that homosexuality and transgender status are distinct concepts from sex. But, as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.

In conclusion Gorsuch wrote: In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law

Associate Justice Neil M. Gorsuch; photograph by Franz Jantzen, 2017.

Alito’s Dissent, joined by Thomas

Alito chose to ride the horse he came to town on : strict constructionist. He opens his dissent by stating:

There is only one word for what the Court has done today: legislation. The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive. . . The Court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous. Even as understood today, the concept of discrimination because of “sex” is different from discrimination because of “sexual orientation” or “gender identity.” And in any event, our duty is to interpret statutory terms to “mean what they conveyed to reasonable people at the time they were written.” (Citing Scalia for that last phrase). Many will applaud today’s decision because they agree on policy grounds with the Court’s updating of Title VII. But the question in these cases is not whether discrimination because of sexual orientation or gender identity should be
outlawed. The question is whether Congress did that in 1964.
It indisputably did not.

Alito primarily focused on many past cases in lower Federal appeals courts that did not reach SCOTUS where sexual orientation was found not to be covered by “sex” and on the many times that trying to amend Title VII to include sexual orientation” and “gender identity” failed to pass in the House or the Senate (depending on which body the GOP controlled at the time). He also noted that there used to be many laws on a State and Federal level discriminating against homosexuality which were revoked or amended by future legislatures. And he argues that is the course that should have followed here.

To resolve the transgender issues, Alito discusses how “gender dysphoria” was seen in 1964 as a form of psychotic behavior so how could it have been covered by Title VII. But that’s not enough for him. He then has to list “potential consequences” of the Court’s decision.

He leads off with a fan favorite – this will allow transgender people to use the bathroom of their gender identity not their biological identity. He adds to that college dorm room assignments; insurers having to pay for gender reassignment surgery; women’s sports; requiring people especially teachers to use a person’s preferred pronoun or any number of new gender neutral pronouns. Justice Gorsuch dealt with all of these in short order by saying that the Court cannot be concerned with issues that have not come before it or the potential future application of its decisions – it will take those issues on as they come before the Court, but for now this decision only says that Title VII prohibits people from getting fired or being disparately treated at work because of their sexual orientation and gender identity.

Alito also turned to a section of the oral argument where, as he put it, a prominent professor of Constitutional Law who was arguing for the plaintiffs was asked if an employer had a policy that discriminated against the LGBTQ community but which was enacted in such a way as to eliminate the employer knowing what the sex of the person was, would that be discrimination under the law? The professor answered that maybe in that rare example sexual orientation would not be included in the term “sex.” He felt that this answer made the plaintiff’s case “collapse.”

But he was referring to Stanford Law School professor Pamela Karlan, whose oral argument was nothing short of brilliant that day. She knew that she needed to get conservative votes – at least one – to win for her clients. So she tried to frame it as a simple acknowledgement that as applied in these cases, discriminating on the basis of orientation was discriminating on the basis of sex. And she used the words of Scalia, in the Oncale case that Gorsuch relied upon:

The critical issue, Title VII’s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.

So, since women who date and love men are not discriminated against and men who date and love men are, those men are being discriminated against on the basis of their sex.

Justice Kavanaugh’s Dissent

I won;t take up too much space talking about Justice Kavanaugh’s dissent. He basically makes the argument that this is legislation not opinion because it doesn’t use the “ordinary” meaning of words but the “literal” or contextual meaning of words. Once you step aside from the “ordinary” meaning of words you are making discretionary decision and re-defining words. So he lists several court cases where SCOTUS had to interpret whether a particular item or event was covered under existing language and where because Congress used a very specific word, the Court held it was not covered: “tomatoes” ordinary definition is vegetable though technically they are fruit; the word “vehicle” does not include “airplanes”; “beans” are not “seeds;” etc etc. Therefore, in common parlance, “sexual orientation” is not the same as “sex.” He adds a snarky comment, as he is wont to do:

It also rewrites history. Seneca Falls was not Stonewall. The women’s rights movement was not (and is not) the gay rights movement, although many people obviously support or participate in both. So to think that sexual orientation discrimination is just a form of sex discrimination is not just
a mistake of language and psychology, but also a mistake of history and sociology.

Of course, this misses Judge Gorsuch’s main point – He never said “sexual orientation” and “sex” are the same. He said that discriminating on these bases necessarily means you are discriminating based on sex – the common parlance of the word sex – and that is prohibited.

Kavanaugh like Alito relies on numerous prior decisions in lower Federal courts where it was held that sexual orientation was not covered by Title VII. Like Alito he notes how many times Congress tried to amend it to add those words, indicating that Congress thought it was a different characteristic that had to be included in order to be covered. He says this is nothing more than legislation by judicial decision and a wholesale violation of the separation of powers. He closes though with a statement that he applauds the result, its just the method of obtaining it that he opposes:

Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to
achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result. Under the Constitution’s separation of powers, however, I believe that it was Congress’s role, not this Court’s, to amend Title VII.

Well he is certainly right about that. This is a long overdue victory for LGBTQ rights. It will have a tremendously powerful, positive impact on the community members’ daily lives, even more than the Obergfell decision which allowed same-sex marriage. It’s also a declaration and guarantee that the LGBTQ community are protected members of American society.

No doubt this decision will resonate in the upcoming election as the Dept of Justice did a 180 when it retracted its brief in support of the plaintiffs (done under the Obama administration) to file a brief in support of the defendants. Its recent decision to limit access to healthcare to the transgender population is likely now moot. The make-up of this decision bodes favorably for some other big, up and coming, SCOTUS decisions.

But like Gorsuch said, let’s not worry about the future right now. Let’s just accept and bask in this hard-fought decision in support of equality and common sense. Congratulations to the many, many advocates for this cause who never gave up on this battle and worked tirelessly to get it over the finish line. Today is a good day.

Se the full decision here:

Follow me on Twitter: @oscarmichelen

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Say What You Want About Lenny Dykstra . . . . I Mean It, NY Ct. Rules You Can’t Defame Him. Thu, 04 Jun 2020 03:33:40 +0000 [...]]]> The arc of Lenny “Nails” Dykstra’s life is like a roller coaster. Well at least that first part of the rollercoaster where you go up a huge hill, reach the top, and then speedily plummet to the bottom. Lenny’s hit so rock-bottom that recently a NY Judge ruled he is “libel-proof.” That is, his public reputation is so low that it can’t be made lower no matter what you say about him basically. Even if that includes that he repeatedly hurled, horrible, racist slurs at Boston Red Sox pitcher Oil Can Boyd during the 1986 World Series.

At least, that’s what former NY Met pitching star Ron Darling said. In 2019, Darling and a ghostwriter published a book entitled “108 Stitches: Loose Threads, Ripping Yarns, and the Darndest Characters from My Time in the Game (the “book”).” The book contains a story regarding an alleged interaction between Dykstra and Boston Red Sox pitcher Dennis “Oil Can” Boyd (“Boyd”) during Game 3 of the 1986 World Series (the “Series”). Darling claims that while on the on-deck circle Dykstra began shouting racist slurs and comments at Boyd. Darling says he is ashamed he didn’t say anything at the time because the incident was one of the lowest points of his life. He even refused to print the actual words in his book but said he was sure it was even worse than what Jackie Robinson endured his first time around the league.

Dykstra filed suit alleging defamation and infliction of emotional distress. The claim was dead on arrival – (A) Dykstra is a public figure so one would have to prove that Darling and his publisher St. Martin’s Press maliciously lied about him; (B) If Darling insisted it was true, and that he heard it himself, it would be a “He said-He said” situation and without any audio or video of the conversation between Dykstra and Boyd, how could Dykstra prove that Darling was lying? (C) Darling published a book in 2017 where he basically said the exact same thing and Dykstra did nothing about it and apparently suffered no harm from it; and (D) How could Dykstra prove he was financially damaged from this one paragraph in a book about an incident that happened 30 years ago when he was already publicly reviled?

It was this last argument that the defendant’s pounced on. Relying on the legal doctrine called “the libel-proof plaintiff,” they moved to dismiss the case, saying that Dykstra’s reputation could not get more tarnished and that he could not suffer damages because he was already at bottom of the reputational barrel.

This picture of Dykstra is by Suzanne Russell and it perfectly captures how beaten up Lenny has gotten by life. The picture is haunting and truly says a thousand words.
Kudos to Ms. Russell for capturing the moment.

The “libel-proof plaintiff doctrine” was first created in 1981 in a series of Federal Court decisions. Rarely used, it bars relief in a defamation action, as a matter of law to a plaintiff whose “reputation with respect to a specific subject may be so badly tarnished that he cannot be further injured by allegedly false statements on that subject.” (Guccione v Hustler
Mag., Inc., 800 F2d 298, 303 [2d Cir 1986] cert. denied, 479 U.S. 1091 [1987] [reversing a district court verdict and finding that the plaintiff was “libel-proof” as to adultery because widely published articles were probative of the plaintiff’s notoriety for adultery].)

Dykstra’s lawyers argued that they needed to engage in discovery to see if they could find proof that his reputation had been damaged or that he lost revenue as a result of the book’s passage.

Judge Robert Kalish was not having it. I worked under Bob Kalish for several years at the Office of the Corporation Counsel (the City of New York’s lawyers) He was the chief of the Special Litigation Unit and I was one of the City’s Senior Trial Attorneys. Kalish was a huge Mets fan and probably loved both Dykstra and Darling. He had a sharp legal mind and was good at evaluating what arguments would work in front of a jury. Though my firm has cases in his courtroom, I have not personally appeared in front of him since he went onto the bench, but I am sure he is a deliberate and fair jurist – its just who he is as a person. Being a judge is something he always wanted. Here’s a shot of my old boss on the bench:

Last year, he dismissed a defamation suit brought against Fox News and one of its high-profile anchors, Jeannine Pirro by Black Lives Matter activist DeRay McKesson on the grounds that Pirro’s show is so notoriously “loud” and “caustic” that nothing on it could be construed as defamation. McKesson, who is also a noted speaker and podcast host, argued that Pirro had claimed on-air that he had “directed” violence against a Baton Rouge police officer. McKesson said that wasn’t true. Pirro argued that she was merely expressing the opinion that the injured officer could sue McKesson, arguing he is liable for the officer’s injuries. Judge Kalish agreed that Pirro had the right to express such an opinion, and noted that Pirro’s own lawyer had described her persona as “loud, caustic and hard hitting.” “Pirro’s lack of temperament, and caustic commentary is what she is known, celebrated and frequently criticized for,” Kalish wrote. He did temper his decision by acknowledging that there was a clear racial element in Pirro’s attack on McKesson, saying that “This Court is not blind to the undertones in this segment.” Nonetheless, Kalish found that Pirro’s words were protected speech.

Well, he minced no words in nailing Nails’ case into the coffin:

Based on the papers submitted on this motion, prior to the publication of the book, Dykstra was infamous for being, among other things, racist, misogynist, and anti-gay, as well as a sexual predator, a drug-abuser, a thief, and an embezzler. Further, Dykstra had a reputation— largely due to his autobiography—of being willing to do anything to benefit himself and his
team, including using steroids and blackmailing umpires. . . .

Moreover, in a 2013 book, Dykstra’s former magazine editor for the Players Club Christopher Frankie (“Frankie”) detailed his account of working with Dykstra and asserted that Dykstra described Willie Mays as “his field n—-r,” Venus and Serena Williams as “baboons,” and Celtics coach Doc Rivers as a “spear-chucker.” In his book, Frankie tells the story of how Dykstra allegedly said that the staff at the Carlyle Hotel “had been offended when [Dysktra] loudly used the word ‘n—-r’ in the lobby and had booted him out.” In another instance, Frankie tells the story about how Dykstra allegedly “refused to put ugly [b—–s], usually female Asian golfers in the magazine” saying “No one wants to see that[.]”

The judge goes onto list several other similar incidents and list the various crimes Dykstra was charged with and convicted of including drug charges,fraud, lewd conduct, embezzlement, tax evasion and assault. He then dismissed the lawsuit stating:

Given the aforesaid litany of stories concerning Dykstra’s poor and mean-spirited behavior particularly toward various groups including racial minorities, women, and the LGBTQ community—this Court finds that, as a matter of law, the reference cannot “induce an evil opinion of [Dykstra] in the minds of right-thinking persons” or “deprive him of their friendly
intercourse in society,” as that “evil opinion” has long existed.

As for Dykstra’s lawyers’ request to not decide the motion until they had more time time to complete discovery, the judge reminded them that there are real and more pressing issues the court has to deal with:

As such, this Court sees no legal basis for why it should use its very limited time and resources litigating whether Dykstra engaged in yet another example of bigoted behavior over thirty-years ago in a court of law. There are sports commentators, bloggers and legions of baseball fans to litigate this issue in a public space. This Court, however, has cases involving lost
livelihoods, damaged and lost lives, as well as plaintiffs that have suffered very real reputational injuries.

Lenny’s lawyers have 30 days to appeal. They seem like a competent experienced bunch; I hope they didn’t take this case on a contingency basis. Maybe they felt that celebrity clients (even a Lenny Dykstra) are hard to come by and that handling the case might help their own reputation.

You got to hand it Lenny though.. Building up such a reputation as an all-out asshat that you can’t even be legally defamed. That can’t have been easy.

To see the full decision go here:

Follow me on Twitter @oscarmichelen

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In Memoriam: Herb Stempel Tue, 02 Jun 2020 03:39:35 +0000 [...]]]> Herb Stempel, 93, would have loved to see his obit in the NY Times today. A full half page with a huge picture! I’m certain it would have brought a smile to his face. Famous again after years of anonymity!

If you worked in the Corporation Counsel’s Office (the City’s lawyers a/k/a the NYC Law Department) in the ’80s and ’90s, as a law student or lawyer, you probably met Herb Stempel. Herb was a professional witness, mostly for the sign shop of the Department of Transportation. You see, every City agency had at least one person who would be produced to testify at a deposition or a trial regarding records relating to their agency, so that employees that did the actual work of the agency wouldn’t have to come to court. Herb would testify for example when a stop sign or a one way arrow was missing at an intersection where an accident had occurred. He would talk about the records that showed whether anyone ever complained or when the sign was installed or last repaired. He was a steady-Eddie who never needed to be prepped; he knew to keep his testimony to the records and not to give an opinion about what they meant, just keep it to records. His goal was always to try and be done in a half hour.

But that’s the last stage of Herb’s crazy life. He started out as a whiz kid growing up in the Bronx. He went to Bronx Science but as a mild mannered quiet man might, he went to the Post Office, then got drafted, then got a college degree from City College of NY where he specialized in the history of the City of New York. He married , had a son, and was heading for a life in education when he auditioned to be a contestant on a TV game show called “Twenty-One.” At that time, TV was still a fledgling enterprise and game shows were all the rage. Herb was chosen.

The format of the show was a contestant would be pitted against another contestant and be asked the same series of trivia questions ranging from music, politics, history, literature, popular culture etc. The contestants would be in isolation booths so they had no idea how their opponents were doing. After seeing Herb in his thick glasses and Bronx nebbish persona who with a big brain rose through his early rounds of the show they couldn’t resist pitting him against another fan favorite, Charles Van Doren – the TV textbook opposite of Herb. Van Doren was handsome, sharp, a professor at Columbia University from a wealthy old NY family. Let me put it to you this way – in the movie about the two of them character actor John Turturro played Herb, stylish Ralph Fiennes played Van Doren.

The reason there was a movie (called Quiz Show) was because actually the fix was in. Seems since there was no law against it, most TV quiz shows were rigged – so the producers picked who they wanted to win and precisely how and when their favorites would win. Herb was handsomely paid to take a dive all the way at the end against Van Doren. They gave them all the right answers and told them how to react and build the tension over the course of the program. To add insult to injury, they made Herb take his dive on a question about his favorite movie, “Marty” which won Ernest Borgnine an Oscar for playing a nebbishy butcher from the Bronx. True to the script, Herb blurted out “On the Waterfront,” naming instead the Marlon Brando pic. Its ironic that in their youth Borgnine could have played Herb and Brando would have made a great Van Doren.

Herb Stempel in the isolation booth Photo Courtesy of Newsweek

Most men would have walked away with the $25,000 that they secretly gave him for losing, but Herb never felt right about deceiving the American public. So he turned whistleblower and brought the whole shooting match down. Grand juries were convened, hearings were held, the public was outraged. Van Doren went from golden boy on the cover of Time magazine to convicted for lying before one of those grand juries. Congress eventually banned the fixing of game shows and instituted other rules in 1960 via an amendment to the Communications Act of 1934.

Herb then lost to another golden boy later in life. After slipping into anonymity as a high school teacher, Herb managed to sell the story of his life for production of a movie destined to be called “The Herb Stempel Story.” By sheer coincidence, at exactly the same time, Robert Redford was gearing up to make “Quiz Show.” Redford quickly paid the producers of Herb’s movie to sell him the rights and killed the movie, though he did keep Herb on as a consultant.

Years later, as I got to know him, he told me the full story. I must have defended his deposition about a dozen times and called him as a trial witness at least three times. Usually when we were waiting for the deposition or trial to start (Herb was always early) he would bring me to one of the windows of whatever building we were in and just start spewing out facts about the buildings and the reasons behind the names of the streets. Once, he asked me what street I grew up in the Bronx and when I said “Tiemann Avenue” he told me it was named after Daniel Fawcett Tiemann, a short term mayor of the City of New York and that a lot of the blocks around me were named for former mayors.

He was a sweet man with a great mind who had a wild ride to anonymity. Rest easy Herb, you made it back into the NY Times!

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