Never Can Say Goodbye: Judge Mulls Dismissing Flynn Proceedings with Room for Prosecution by “A New Administration”


United States v. Michael T. Flynn, No. 1:17-cr-232 (EGS).  Hearing on government’s motion to dismiss on September 29, 2020.



A hearing was held today on the government’s motion to dismiss proceedings against Gen. Michael T. Flynn, and in particular whether the government may deny it, notwithstanding that the government has represented that there is no case against General Flynn.  The court, persuaded that he had discretion to deny the government’s motion to dismiss, wanted to know from counsel where that discretion began and where it ends.  The court mused about whether dismissal might be granted without prejudice, allowing room for further proceedings by  “a new administration,” or, the court quickly added, perhaps in a continuation of the current administration.

The court’s amicus urged the court not to succumb to the importuning of a coordinate branch, stating that the court ought not tarnish its chambers with dismissal because “the President wants Flynn off the hook.”   

With respect to defendant’s arguments that the government sought to create circumstances in which it would appear that Flynn had lied, amicus offered, “Where ya been?  That’s what they do!”  

[JustLawful aside:  Perhaps amicus, by virtue of his experience in the law, and as a judge, has grown deaf to the appearance of such remarks to those who may be unacquainted with investigative pressures.  “That’s what they do!” suggests that, simply by virtue of a thing being done, it were acceptable.  Were this so, of course, there would be no criminal law at all, and while custom and usage go far in the law, custom and usage are always bounded by the Constitution.]

Amicus assured the judge that the judge had done a good job in summarizing the case.  

Counsel for the government argued the law as well as for the moral dignity of the Department of Justice in its prosecutorial functions.  Counsel argued strenuously that prosecutors may cease prosecution on discovery that there was no basis to proceed, and that this was so in this case, as the facts disclosed to the court revealed.  A senior counsel in the U.S. Attorney’s office expressed distress that the office had been accused of behaving with political motivation, assuring the court that the Department of Justice  acts with integrity, and that includes review if a prosecution seems to have gone awry.

Counsel for General Flynn was last in line for the court’s inquiry, which was preceded by the court’s intimating that counsel had behaved unethically in communicating with the Attorney General when initially retained.  In addition,the court was particularly interested in counsel’s contacts with the President, which counsel disclosed.  Thus the threat of bar disciplinary proceedings was made before counsel was permitted to advocate.  

Counsel for General Flynn asserted that there is no basis in law for the court’s appointment of a private prosecutor in this matter in the guise of an amicus, and noted that the court’s intention to orchestrate the possibility of future prosecutions provided yet more evidence of bias, and moved for recusal of the judge, with written motions to follow.

There will be additional filings by counsel for the defendant as well as by the United States, as the court has asked the Department of Justice to look into what was done with evidence concerning texts between an FBI official and a private attorney.

The court took the matter under advisement, noting how voluminous was the record before him. 

 

Sound at the Time: Federal Court in Massachusetts Upholds Initial Pandemic-Related Eviction Moratorium with Exception for Compelled Referrals to Landlords’ Adversaries


Baptiste, et al. v. Kennealy, et al., No. 1:20-cv-11335 (MLW) (D. Mass.) (September 25, 2020).  Conference concerning future proceedings set for October 2, 2020.  


The court has released a 100 page opinion articulating all of its reasons for concluding that at the time that the statewide prohibition on evictions and eviction proceedings was a valid use of the state’s emergency powers to protect public health.  The court cautioned that under differing tests of constitutional sufficiency the state’s action would not survive constitutional scrutiny and stressed that changed conditions could affect the court’s determination.  The court urged  the governor of Massachusetts to bear the federal and state constitutions in mind when determining, upon the expiration of the emergency measures in mid-October,  whether further prohibition of eviction activity is necessary.

The court struck down the state’s regulation requiring any landlord notifying a tenant of rent arrearages to provide written referrals to tenant advocates to aid in countering the landlord’s position, as such provisions were unconstitutional compelled speech, as held in National Institute of Family and Life Advocates v. Becerra, No. 16-1140 (June 26, 2018).  

The court stated that if the state agreed to abandon the regulation, the court would not enter judgment against the state.  

The opinion is encyclopedic in its review of the law applicable to the use of emergency powers, particularly with reference to the Contracts Clause, the Takings Clause and the First Amendment.  This indicates that the court was concerned not only with the opinion of courts of appeals reviewing the opinion but also with respect to the lens of history, noting Korematsu v. United States, 323 U.S. 214 (1944).  

The court stated that it is possible that its denial of injunctive relief will effectively terminate the case but has ordered counsel to confer and to inform the court by October 2 of contemplated further proceedings.

2020 09 25 Baptiste et al v. Kennealy et al. No 11335 (MLW)

National Institute of Family and Life Advocates v. Becerra, No. 16-1140 (June 26, 2018)

Trump v. Hawaii, No. 17-965 (June 26, 2017)

Toyosaburo Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944)

Referrals to Potential Adversaries Not Required: U.S.D.C. in Massachusetts Strikes Down Landlord’s Compelled Speech, Opines that Injunctive Relief Will Be Denied, Declines to Opine Further, and Promises a Written Opinion

Baptiste et al. v. Commonwealth, No. 1:20-cv-11335 (D. Mass.). Hearing on September 10, 2020.

_________________________________________________

Today the court declined to deliver an opinion on injunctive relief and dismissal orally, offering that the issues were sufficiently complex that doing so would be ill-advised, and promising to deliver a written opinion, admittedly still in draft.

The court noted that it would deny injunctive relief except that it had found the Commonwealth’s requirement that any landlord notifying tenants of nonpayment must provide referrals to representation was unconstitutional compelled speech under National Institutes of Family and Life Advocates v. Becerra, 585 U.S. ____ (2018). Applying principles of severability, that determination would not extend to other portions of the regulations promulgated in connection with the eviction moratorium enacted in response to the COVID-19 pandemic.

The court noted that much of the law imposing the moratorium would not survive strict scrutiny analysis, but the court is inclined to the view that strict scrutiny analysis is not warranted.

The court indicated that counsel should discuss how they wished to proceed going forward, bearing in mind changed conditions since the beginning of the moratorium and impending state action concerning continuation or cessation of the moratorium on evictions in mid-October.

The court offered that it would deny injunctive relief and that its reasoning on injunctive relief and dismissal would be presented all in one decision. The admonition to counsel to consider the future is some indication that dismissal will not be granted.

The court appeared to be focused on precedent from Chief Justice Stone of the Supreme Court who relied on Justice Holmes for the principle that it is within a court’s purview to consider whether an exigency that prompted state action has ceased to exist. Notwithstanding that the court seemed inclined to the view that the exigencies apparent last spring may no longer be present, the court also indicated fear that any action might be perceived in hindsight as being of a caliber of the now discredited Korematsu v. United States, 323 U.S. 214 (1944).

Private Property, Public Problems: Landlords Challenge Massachusetts’ Eviction Moratorium in Federal and State Proceedings

Baptiste, et al. v. Secretary of Housing and Economic Development, et al., No. 1:20-cv-11335 (MLW) (D. Mass.).  Oral argument on motions for preliminary injunctive relief and for dismissal or stay held September 2 and 3. 

Matorin and Smith v. Executive Office of Housing and Development, No. 2084CV01134 (Sup. Ct.).  Memorandum and Order on Motion for Preliminary Injunction entered August 26, 2020.


Massachusetts’ Eviction Moratorium. In response to the health and economic crisis precipitated by the COVID-19 virus, last spring the Massachusetts legislature enacted a law suspending processes of eviction and foreclosure.  Regulations governing this moratorium forbade many communications between landlord and tenant except as dictated by the state, including advising tenants in obtaining financial and legal aid.  

Originally intended to expire in mid-August, the moratorium has been extended into mid-October.  It is not known whether or for how long the suspension will remain in effect, but it may, potentially, extend up to a year beyond the culmination of the COVID-19 crisis.

The Massachusetts act prohibits initiation of eviction proceedings as well as processes in aid of those proceedings occurring at or after the time the legislation and regulations became effective.  Although it is specifically stated that the moratorium does not relieve tenants of the obligation to pay rent, in practice the measures have been interpreted to permit exactly that.

Landlords Respond. Small landlords have launched state and federal challenges, asserting that the state law and regulations unconstitutionally inhibit property owners’ access to the courts, violate First Amendment rights both by proscribing and prescribing speech, constitute physical and/or regulatory takings, and violate the Contracts Clause.

No injunctive relief in state court, but ruling on motion for injunctive relief in federal court promised for September 9th. Having lost their motion to enjoin the act in state court, this week two days of argument were had in federal court, at the close of which the court invited commentary on issues arising during proceedings.  The federal court has scheduled a hearing on September 9th and has promised a ruling on injunctive relief at that time.  

Private enterprises, not public agencies. Plaintiffs assert that the state has demanded that landlords have been conscripted, without consent and without compensation, to act as state housing authorities by providing free lodging indefinitely to individuals who have no right to be on the landlords’ properties.  Plaintiffs further assert that the moratorium decimates leases and other contracts.  The Commonwealth denies that the landlords face the hardships they described as the state has enacted only temporary measures, the impact of which may be less than landlords perceive.  

Only temporary. The state has responded to plaintiffs’ claims by asserting  immunity and by arguing that the moratorium is a valid exercise of the state’s plenary emergency powers for the general welfare, and that no rights have been deprived or infringed by its temporary measures.  The Commonwealth has argued that no taking has occurred, that there is no right to injunctive relief in takings cases.  

No end in sight. Just as there is no certainty concerning the duration of the eviction moratorium, so too is there no certainty concerning resolution of this litigation, which has attracted the attention of advocacy groups seeking to serve as amici.  

Post argument submissions. Plaintiffs have submitted two post-argument memoranda of law, the first addressing the proper standard of review for deprivations of rights of petition, arguing that scholars perceive that some rights are so fundamental that only strict scrutiny will suffice. 

The Commonwealth’s response is that there can be no deprivation of rights of access to the courts where, in the Commonwealth’s view, there is no underlying case for adjudication.  A temporary interruption of enforcement mechanisms during an emergency works no harm where those remedies will become available when the emergency is over. 

Plaintiffs observe that the emergency is all but over and that the successful implementation of social distancing and other recommendations make the state’s draconian prohibitions unnecessary now if ever they were.  

Plaintiffs point to Massachusetts precedent finding significant deprivations of rights of access to the courts to have occurred over a period of weeks, and that the indefinite nature of the moratorium only enhances deprivations already suffered.  

The Commonwealth has commented on the state’s favorable view of statutory and regulatory severability which would permit the court to excise any portion of the moratorium provisions found to be unconstitutional while leaving the remainder intact.

The Center for Disease Control Weighs In. Plaintiffs point to a newly promulgated federal prohibition on evictions as proof that the state’s measures are needlessly harsh.  The federal measure permits evictions while permitting tenants to avoid eviction by submission of proof of financial difficulty and/or ability to obtain new housing, thus demonstrating that the state’s perceived link between access to the courts and public health is ill-founded.  

Ruling on Motion for a Preliminary Injunction in Superior Court 

2020 08 26 Matorin-v-Commonwealth-of-Massachusetts-Decision-on-Preliminary-Injunction

Memoranda of Law Submitted in Federal Court

2020 07 15 Memorandum of Law in Support of Preliminary Injunction

2020 07 24 Memorandum of Law in Support of Dismissal or Stay

2020 07 25 Opposition to Motion for Preliminary Injunction

2020 09 03 Supplemental Memorandum in Opposition to Preliminary Injunction

2020 09 03 Supplemental Memorandum Addressing Newly Raised Issues

2020 09 03 Supplemental Memorandum Addressing CDC Order

Centers for Disease Control Order

https://www.federalregister.gov/documents/2020/09/04/2020-19654/temporary-halt-in-residential-evictions-to-prevent-the-further-spread-of-covid-19

Monitoring the Unblinking Mechanical Eye: Unlimited Static Pole Camera Surveillance of Personal Residence Requires Probable Cause and Warrant Under Massachusetts Constitution, State Supreme Court Concludes

Commonwealth v. Nelson Mora, SJC-12890 (August 6, 2020).

In investigating a drug distribution network, Massachusetts police installed video cameras on telephone and electric poles (“pole cameras”), some of which faced the homes of alleged drug distributors. 

Evidence from the video cameras, as well as other evidence, resulted in indictments.  Several defendants moved to suppress the pole camera evidence and the fruits thereof, arguing that evidence garnered in this way violated Article 14 of the Massachusetts Constitution and the Fourth Amendment of the U.S. Constitution.  

On interlocutory appeal from denial of defendants’ motion to suppress, the Supreme Judicial Court of the Commonwealth of Massachusetts concluded that protracted warrantless video surveillance violated the state constitution.  Having done so, the court declined to address the U.S. Constitutional issues.  

The court remanded the case to permit the trial court to determine whether probable cause supported the installation of the cameras surveilling the personal residences from the outset.

How it happened.  A confidential informant identified defendant Mora as a drug dealer. After a staged purchase of drugs, cameras were installed outside Moran’s and another defendant’s houses.  The cameras provided a view of the front of the house as well as the sidewalk and the adjacent street.  The cameras recorded continuously — for five months in Mora’s case –without audio and were static except for the capacity to zoom in and out.  The interior of homes could not be seen and no particular features permitted nighttime surveillance.  

The trial court found the surveillance unexceptional.  The trial judge denied defendants’ motions to suppress because the cameras captured only information in plain public view.  The cameras aimed at a fixed point and were not capable of capturing detailed activities and associations.  Observation of matters on public display traditionally does not carry a reasonable expectation of privacy and does not require a warrant.  The court concluded that pole cameras did no more than that.  

In de novo review of the central question whether the pole cameras’ surveillance were unconstitutional warrantless searches, the Supreme Judicial Court asked first whether there was a search.  A search may be unconstitutional if it intrudes upon an individual’s reasonable expectation of privacy, but no such expectation is ordinarily found where the observation is of matters in plain view of the publix. 

Pole cameras have been in use for several decades.  Other courts’ reviews have yielded mixed results. 

The court found it unnecessary to address federal issues and noted that the Massachusetts Constitution may afford more protections than the U.S. Constitution.  The court framed the central question is whether a defendant had a reasonable subjective expectation of privacy and whether society would recognize the expectation as unreasonable.  

The appellate court recognized that defendants had subjective expectations that their homes would not be subjected to extended surveillance.  There was no need to create barriers around the property to obtain constitutional protection.  Such a requirement would make the constitutional resource dependant, and an impermissible result, as the home is a castle no matter how humble.  (Slip Op. at 14.)

What society may recognize as objectively reasonable is a large and difficult question, the court opined, but noted that case law has recognized that extended surveillance without probable cause and judicial supervision is problematic.

Location, location, location…and duration. The duration and location of surveillance matters, the court found, making it possible to extend protection to protracted video recording of houses but not to public places, particularly as surveillance cameras are abundant there and in commercial venues.

The Founders’ Prescience. Protecting the home from government intrusion is the reason that federal and state constitutions were drafted as they were.  The promise that the sanctity of the home will not be needlessly or recklessly breached is historically significant, and the framers may be thanked for a prescience that precludes a contemporary Orwellian state.  (Slip. Op. at 22.)

The argument that pole cameras outside the home catch no more than a police officer might see must faile, as the very inexhaustibility of the machines negates comparison.

As heretofore it has not been thought necessary to obtain a warrant to conduct pole camera surveillance, the Supreme Judicial Court decided that remand to determine whether propane cause for use of the cameras existed at the time of installation, which might be established by review of existing evidence submitted in support of warrants that were obtained or by supplementary evidence if needed.  If probable cause existed for installation of all of the cameras, suppression of evidence must be denied, but if probable cause did not exist, suppression as to the cameras surveilling the homes only may be allowed. 

Commonwealth v. Mora, SJC 12890 (August 6 2020)

  

 

 

 

 

Sectarian Versus Secular Civil Rights: Supreme Court Permits Church Employers Latitude in Defining Employee Roles and Rights

Our Lady of Guadalupe School v. Morrissey-Berru, No. 19-267 (July 8, 2020); St. James’ School v. Biel, No. 19-348 (July 8, 2020).


In this challenge to churches’ capacity to determine their own rules of employment, Justice Alito wrote for the Court’s majority; Justices Thomas and Gorsuch wrote separately in concurrence; and Justices Sotomayor and Ginsburg dissented.


Teachers at the religious schools in the cases now before the Court have responsibilities similar to those described in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, 565 U.S. 171 (2012).   These teachers do not, however, have titles associated with professed religious persons or functions.

Mid-twentieth century precedent established that religious institutions have the capacity to decide matters of church governance without state interference.  Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America, 344 U.S. 94, 116 (1952).

Here, one elementary school teacher who taught all subjects, including religion, complained to the Equal Employment Opportunity Commission (“EEOC”) that the school administration’s determination to change her to part-time status was age discrimination.  The other plaintiff claimed discrimination in discharge because of her need for breast cancer treatment.  Both responding employers stated that their decisions were bawsed on employee performance.

The question is how the principles of independence constitutionally assured in church governance apply to church autonomy in employment decisions, in which churches enjoy a “ministerial exception” to otherwise applicable laws for religious positions.  An individual’s role in conveying the church’s mission and the trust conferred on that individual are significant, but the title “minister” in itself will not require exemption nor is it necessary to confer exemption.  Where both teachers in these cases were entrusted with performance of religious duties, the ministerial exception appropriately applies. The determination whether the exception applies cannot be made by rote review of titles and checklists as ultimately a court, unschooled and unskilled in religious matters, must look to what an individual does, not what he or she is called.

The hiring exemption permitting churches to prefer members of their religion in hiring decisions is of a different character than the ministerial exception, and the principle applicable there do not need to be imported to the ministerial exemption.  Judicial inquiry into who is a member of a faith and who is not would impermissibly intrude on a church’s definition of participation.

A rigid formula for characterizing employment as religious is inapt.  “When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teachers threatens the school’s independence in a way that the First Amendment does not allow.”  (Slip Op. at 26-27.)

Justices Thomas and Gorsuch concur.  Justice Thomas asserts that courts must defer to church determinations of what is ministerial, as this is inherently a theological question that cannot be answered by civil law.

Justices Sotomayor and Ginsburg dissent.  The dissenting justices point to the predominantly secular functions performed by the teachers in these cases, their lack of religious training, and the absence of any religious requirement attaching to their positions.  Employers are required to conform to generally applicable laws and Congress has created exemptions where appropriate.  The ministerial exception is judge made law.  Because of its sweep, which would permit religious animus, the exception must be narrow, as it is subject to abuse.  It is to be preferred to make constitutional determinations on a case by case, holistic, basis.  The “functional status” analysis adopted here, focused on what an employee does, rewrites Hosanna-Tabor, making a two justice concurrence in that case into the prevailing opinion.

Where the civil rights of thousands of employees in religious organizations are in issues, analytical vagueness and deference to religious entities determinations invites abuse, permitting religious bodies to determine for themselves what the law is ad absolving the institutions of responsibility for religious animus.  Justice Sotomayor’s application of Hosanna-Tabor would lead to a conclusion contrary to that of the majority.  Biel was a teacher who participated in religious functions with a half day’s training in religious pedagogy. Morrissey-Berru taught various subjects and taught religious matters from a workbook chosen by the church.

Neither plaintiff ought to have bee barred from asserting claims based on a ministerial exception.  Neither was a minister, neither was trained as such, neither had a leadership role in the faith community, and both function predominantly as academic teachers. Depriving them of civil rights based o a small amount of time engaged in religious activity is harsh, especially where no religious reason was proffered for the churches’ acts concerning plaintiffs’ employment.

Our Lady of Guadalupe v. Morrissey-Berru, No. 19-267 July 8, 2020

 

Case Dismissed! Federal Court of Appeals Orders D.C. Federal District Court to Grant United States’ Motion to Dismiss Criminal Case Subsequent to Plea Agreement Admitting False Statements to Federal Bureau of Investigation

In re. Michael T. Flynn, No. 20-5143 (D.C. Cir.) Petition for writ of mandamus granted in part on June 24, 2020.


General Michael T. Flynn was investigated by the Federal Bureau of Investigation in relation to contacts with foreign sources.  General Flynn plead guilty to lying to federal officers, testifying under oath that he was in fact guilty and had not been subjected to duress.  Months later the United States moved to dismiss the case against General Flynn, having concluded that any false statements made were not material to any investigation.

The United States District Court for the District of Columbia did not look kindly on the United States’ motion to dismiss, and in response invited amici submissions and scheduled hearings to determine whether he ought to find General Flynn guilty of perjury notwithstanding the United States no longer wishing to pursue the matter.

General Flynn’s counsel petitioned the D.C. Circuit Court of Appeals for a Writ of Mandamus which was today granted in part.   The appellate court has ordered the trial court to dismiss the case, but the appellate court refused to transfer the case to another judge.  In light of these determinations, disputes about the engagement of an amicus to assist the trial judge were rendered moot.


The D.C. Circuit  opined that dismissals of criminal matters rest soundly with prosecutorial discretion.  Rule 48 of the Federal Rules of Criminal Procedure has a limited “leave of court” requirement that is intended to protect against prosecutorial harassment.   United States . Fokker Services B.V., No. 15-1306 (D. D.C. 2016).

The court observed that this is not an extraordinary case in which judicial involvement in dismissal could be warranted.  General Flynn agrees with the prosecution, there is no evidence of harassment, and recently produced exculpatory evidence supports the Department of Justice’s view that the interviews with General Flynn in issue were not material to any prosecution.

Moreover, the appellate court concluded, harm to the prosecution in refusing to dismiss is not speculative, particularly in that the hearings proposed by the trial court would provide a foray into the deliberative processes of the Executive Branch.  It is right to attend to the interests of the Executive Branch, the court found, as the executive is not just any party, but is the branch responsible for criminal prosecutions.  Equally significant is that a trial court’s assumption of a supervisory role over the executive would not be a theoretical breach of the separation of powers, but would chill effective prosecutions.

Further, the trial court’s designation of an advocate for for the prosecution put the two coequal branches of government on a collision course.

The appellate court refused to rewrite the limited “leave of court” provision of Rule 48, F.R.Crim.P. to permit elaborate mic submissions and extensive hearings, finding that “[t]he district court has no mechanism by which it can maintain a prosecution in the absence of the Executive Branch moving forward.”  (Slip. Op. at 14.)

Dismissal cannot turn on what a judge independently thinks in in the public interest.  A court should not second guess except in an extreme case:  extensive, pershpas inquisitorial, inquiry in a non-extreme case would contravene Supreme Court precedent and would be inconsistent with  Article III powers.

The majority countered the dissent’s position that a writ of mandamus cannot issue until the trial court has acted, finding that an actual ruling on the motion to dismiss was not necessary where the court had already invited amici and scheduled hearings.

Dissenting Justice Wilkins opined that the majority wholly misdefies the issue at hand.  The question is not whether a court may deny a Rule 48 motion to dismiss but whether the court is precluded from making any inquiry at all.  The appell majority ruling that the district court overstepped its authority has been followed by the appellate court’s following suit, for there is no basis for the court to issue a writ of mandamus absent a discrete action by the district court.

The dissent found the majority’s reliance on Fokker disengenuous, for in that case, a deferred prosecution agreement, not dismissal was in issue.  Reliance on Fokker, Justice Wilkins found, “transforms dicta into dogma.”  (Slip Op. Dissent at p. 3, Part B).

The dissent expressed fear that the majority has read the public interest out of Rule 48.  The law is not as settled as the majority would say and it is not possible to say that petitioner has no other relief available, where it is clear that it exists.

The dissent offered that there is no reason, even in the absence of explicit authority, that a trial judge cannot enlist assistance in charting its course on a case.

Prosecutorial discretion cannot be made into an impenetrable shield.  The dissent observed that the appellate ruling decimates the discretion that resies in trial court’s concerning motions to dismiss.

This is particularly worrisome, Justice Wilkins found, where but months ago the statements now deemed ‘immaterial’ were said to have gone to “the heart of the government’s case.”  (Slip. Op. Dissent at p. 17).

2020 06 24 Opinion In re Michael T. Flynn

2020 06 24 Order in re Michael T. Flynn

 

 

 

 

 

 

 

 

Time and Tide and Textualism: Supreme Court Holds “Sex” in Civil Rights Act Includes Orientation and Transexual Status

GERALD LYNN BOSTOCK v. CLAYTON COUNTY, GEORGIA, No. 17-1618; ALTITUDE EXPRESS, INC., ET AL. v. MELISSA ZARDA AND WILLIAM ALLEN MOORE, JR., CO-INDEPENDENT EXECUTORS OF THE ESTATE OF DONALD ZARDA, No 17-1623; R.G. & G.R. HARRIS FUNERAL HOMES, INC. v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,ET AL., No. 18-107 (June 15, 2020)


Today the United States Supreme Court held that interpretation of the statutory language of Title VII of the Civil Rights Act of 1964, as amended, compels the conclusion that sexual orientation and transexual status, inextricably bound to sex, are within the meaning of the statute prohibiting discrimination because of sex.

The decision will undoubtedly be hailed as a great victory for rights activists while the opinion of the majority and the opinions of the dissenting justices will undoubtedly provide grist for the jurisprudential mill for years to come.

Justice Gorsuch, writing for the majority, observed that what Congress foresaw when it enacted the Civil Rights Act of 1964 does not mean that the legislation must be myopically interpreted according to that time:

“…the limits of the drafters’ imaginations supply no reason to ignore the law’s demands.  When the express terms of a statute give us our 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.”

Slip. Op. at 2.

Each of the plaintiffs was a long term employee and each was terminated from employment because of sexual orientation or transgender status.  Employers argued that neither orientation nor transgender status are part of Title VII and that, therefore, the terminations were not discriminatory. Three federal circuit courts of appeal interpreted Title VII without consensus.

Statutory construction looks to the “ordinary public meaning” of words at the time of a law’s enactment.  This inhibits judicial meddling in legislative affairs and promotes soundness in public perception of rights and obligations.

Assuming that in 1964 “sex” meant biological sex, the majority wrote, then “because of sex” meant “by reason of” or “on account of” sex.  This establishes but-for causation and obviates the need for parsing concomitant or serial causes.  Once an employment decision is made that would not be made if an individual’s sex were different, liability attaches and it is immaterial if other causes are present.  It does an employer no good to point to other reasons once sex is a reason for a decision.  Indeed, over time the Congress has amended the Civil Rights Act to include liability where sex is a “motivating factor” in a decision.

The Court rejected the employers’ argument that discrimination could only be in reference to others similarly situated, as the statute repeatedly references individuals.  It is of no moment if an employer generally treats women well if in an individual case a decision was based unlawfully on sex.

If sex cannot be relevant to employment decisions, the Court reasoned, then neither can sexual orientation or status, as both are inextricable from sex.

Since enactment of the Civil Rights Act of 1964, discrimination “because of sex” has come to include discrimination based on habitual perceptions or stereotypes or actuarial assumptions.

It is no answer to say that Congress could not or did not foresee sexual orientation or status as a concern at the time of enactment when the statutory language addresses sex and orientation and status are inseparably related to sex.

It makes no difference, the majority found, that orientation or status was not included in the statutory language where those traits are inextricably interwoven in sex.

Concluding that orientation or status is not within Title VII based on Congress’ failure to amend Title VII where it has directly considered sexual orientation in other statutes would be speculation.

Asserting that meanings have changed since 1964 is unavailing where the plain meaning of the statute supplies the answer needed. The breadth of Title VII as it has been interpreted over time cannot be denied.  As such, the Court’s decision in this case is not unusual in light of the many unanticipated decisions flowing from the Civil Rights Act in the more than half century since its passage.

Three Dissenting Justices, Two Dissenting Opinions.   Justice Alito, joined by Justice Thomas, chastised the majority for having confused textualism with legislation, performing the former poorly and usurping Congress’ function in the latter.

The majority has engaged in a “false flag” textualist operation, as neither sexual orientation nor transgender status appear in the text and the form of ‘textualism’ which would permit the legislative updates provided by the majority was denounced by textualism’s primary proponent, Justice Antonin Scalia.

Justice Alito notes that an exhaustive review of dictionaries failed to disclose any incorporation of orientation or status within the meaning of “sex.” Moreover, orientation and status are in fact separable from “sex.”  Plaintiffs’ counsel conceded at oral argument that if an employer were to prohibit hiring on the basis of gay or transgender status but hiring would be without knowledge of biological sex, this practice would not be discrimination “because of sex.”

This very concession makes the majority’s reasoning all the more lacking, Justice Alito found. Moreover, if an employer is unaware of a potential employee’s sexual orientation or status, that employer cannot be found liable for intentional discrimination on that basis.

Justice Alito sees a rich irony in the majority’s effective statutory amendment under the guise of ‘textualism’.  Although the majority purports to interpret the statutory language as it is written, the majority overlooks more than a half century’s interpretations of that text, all the while declaring its ‘judicial humility’.

The ramifications of the Court’s decision cannot be overlooked.  The decision may impact facilities access, sports participation, housing, religious employment, and health insurance coverage for gender reassignment.  Speech freedoms may be implicated by forms of address and language.

Writing separately in dissent, Justice Kavanaugh opined that Congress and not the Supreme Court must address the question before the Court.  While stressing his position that sexual orientation and transgender stratus must fall within the law, the decision maker on this policy belongs to the legislative branch.

Justice Kavanaugh questioned the utility of the literalist textualism that he saw in the majority’s view, as the law requires that interpretation look to the ordinary, not the literal, meanings of words and phrases.  A rigid literal approach is not a good textual approach, according to textualism’s proponents.  And literal interpretations, disregarding as they may the everyday meaning of words, fail to perform the essential work of the law, which is to put the citizenry on notice of what the law is.

Equally problematic is the majority’s decision to rewrite history in creating its new interpretation.  To disregard history serves no goal well, no matter how laudable in principle that goal may be.  Historically sexual orientation discrimination has been seen as a form of discrimination separate from sex discrimination.

While it is understandable that those affected and those who support them would find joy in the majority’s decision, Justice Kavanaugh fears that the majority’s methodology will be questioned by many, and that, as a result, many will simply not buy it. A lack of confidence in the opinion is of little aid to those supporting the conclusion and undermines confidence in the Court as an institution.

17-1618 Bostock v. Clayton County (06_15_2020)

 

 

 

 

 

“[T]he mere fact of an emergency does not increase constitutional power, nor diminish constitutional restrictions.”

ACA International v. Maura Healey, Attorney General of the Commonwealth of Massachusetts, No. 20-10767-RGS (U.S.D.C. Mass.) May 6, 2020.


Among other state measures taken during the COVID-19 emergency, the Attorney General of Massachusetts promulgated measures prohibiting credit and collections agencies from initiating telephone calls or lawsuits to collect debts. Many creditors were exempted from these regulations that operate against entities deemed essential by bank regulators.

The Association of Credit and Collections Professionals (ACA) sought injunctive relief in federal court challenging the regulations on first amendment speech and petition grounds and state law.

The court examined the traditional grounds for injunctive relief in matters concerning protected First Amendment interests, concerning which any infringement presumes irreparable harm: the likelihood that the moving party will succeed on the merits, the balance of equities and the public interest. The court declined to decide claims premised on asserted violations of state law, mindful that precedent limits federal courts’ powers over state officials to matters of federal law.

The intermediate scrutiny applicable to commercial speech gained no favor for the state, as the court could not credit the Attorney General’s unsupported beliefs that citizens would be more vulnerable than otherwise during an emergency or that banning telephone calls would ensure citizens well being or ensure domestic tranquility.

As extant state law regulations already circumscribe creditor activities, and incorporate federal protections, the court could not find a substantial government interest in redundant measures.

Neither could the court justify an outright ban on initiating litigation because some legislative litigation burdens some access to courts. Simply preserving rights until the unknown end of the emergency, particularly when several types of creditors are exempted from the regulations, is not sufficient to justify outright denial of petitionary rights, stating: “[t]he mere fact of an emergency does not increase constitutional power, nor diminish constitutional restrictions.” (Slip op. 25-26).

In balancing the equities, the court observed that debtors have substantial extant protections against unlawful creditor activity, while the emergency regulations could force some creditors out of business, a hardship underscored by medical entities’ dependence on such agencies to recover funds.

The court entered a temporary restraining order enjoining enforcement of the emergency regulations.

ACA International v. Healey, Attorney General. TRO Order May 6, 2020

Some Kind of Hearing: Perceiving Procedural Deficiencies, Federal Court Orders University of Connecticut to Enroll Suspended Student

Doe v. University of Connecticut, No. 3:20-cv-092. Temporary restraining order granted January 23, 2020. Hearing on preliminary injunction continued to February 19th.


That procedural due process must be accorded when the state acts to limit constitutionally protected interests seems to be second nature in our conceptions of fundamental fairness, yet it was only a half century ago, a millisecond in the slow emergence and refinement of legal principles, that the centrality of such promises was articulated in Matthews v. Eldridge, 424 U.S. 319 (1975).   And since Matthews was decided, there has been ongoing development of principles that will breathe life into its meaning.  If it is not enough that due process requires notice and an opportunity to be heard, but to be heard in a meaningful time and in a meaningful manner, the contours of the process that must be provided continue to evolve.

Recently a federal district court in Connecticut ordered the state university to reinstate a student suspended based on allegations of sexual assault where the court observed that the university’s process failed to permit the student to present witness testimony tending to negate the accuser’s credibility and failed to permit the submission of questions to the accuser.   These deprivations in themselves so distorted the proceedings that relief from the university’s decision was in order.

Doe had been months from graduation when he was accused of sexual assault. Initially the university expelled him, then revised its determination to a two year suspension, subsequent to which the school agreed to consider, but not guarantee, an application for readmission without consideration of credit earned elsewhere.

The court did not decide whether students facing discipline have confrontational rights that include cross examination, an issue of controversy within the federal courts, but focused instead on the school’s failure to permit the submission of some questions to the accuser and the presentation of witness statements helpful to Doe.

The court observed that the potentially catastrophic losses which would follow delay or preclusion of Doe’s education, as well as losses of economic and reputational interests, outweighed the university’s interest in student discipline on these facts. In light of the irreparable nature of the potential losses to Doe, the extraordinary measure of temporary mandatory injunctive relief was substantiated.  

While the interests of Doe’s accuser were not insignificant, the court noted, they would not preclude ordering temporary relief, particularly where Doe and the accuser had encountered each other subsequent to the alleged assault without incident.

A full hearing on injunctive relief having been scheduled, the parties have represented to the court that settlement discussions have been undertaken in earnest. 

This case is one among several that have within recent months caused federal courts to question the sufficiency of educational institutions’ responses to allegations of sexual assault.  Financial pressure has been applied to compel schools’ compliance with federal laws demanding sexual parity.  While such measures require close institutional attention to allegations of sexual assault, lest federal financial support be lost, some courts appear to be unwilling to permit an accused’s constitutional interests to be sacrificed in service of financial concerns.  

2020 01 23 Doe v. University of Connecticut, No. 3:20-cv-92 (MPS)