New York Law School

Art Leonard Observations

The Alabama Supreme Court’s Marriage Inequality Antics

On March 3 the Alabama Supreme Court “pulled a fast one,” issuing a per curiam decision seeking to effectively override some federal district court opinions, ordering the probate judges throughout the state to continue enforcing Alabama’s constitutional and statutory prohibitions on same-sex marriage even though the federal district court has declared them unconstitutional, and both the 11th Circuit and the Supreme Court had denied Attorney General Luther Strange’s petition for a stay pending appeal to the 11th Circuit.  (The 11th Circuit, by the way, quickly indicated that it would take no action on Strange’s appeals until after the Supreme Court rules on marriage equality in June.)  The case is called Ex parte State of Alabama ex rel. Alabama Policy Institute, Alabama Citizens Action Program and John E. Enslen, in his official capacity as Judge of Probate for Elmore County (In re Alan L. King, in his official capacity as Judge of Probate for Jefferson County, et al.).  (King is president of the state’s Probate Judges Association, so earns the honor of being listed first among the defendant probate judges.)

What the Alabama Supreme Court did, in effect, was to conduct a virtual judicial review of the federal district court’s decision and try to reverse it, even though the parties to that decision were not before the court.  The Attorney General, named defendant in those district court cases, appealed them to the 11th Circuit, not to the Alabama Supreme Court, which has no authority to review federal district court decisions.  Instead, this case was initiated by non-parties against non-parties.  Two organizations, Alabama Policy Institute and Alabama Citizens Action Program, both active opponents of LGBT equality, purported to petition the court for “emergency” relief on behalf of the state (without securing the permission or authorization of the state to do so), naming as defendants all of the state’s probate judges, seeking an order from the court directing the probate judges to continue enforcing the state’s ban on same-sex marriage, despite the federal district court’s decision finding the ban unconstitutional.  One of the probate judges, John E. Enslen of Elmore County, signified to the court that he agreed with the position of the Petitioners, so the court repositioned him as a co-plaintiff, which at least theoretically bolstered the proposition that at least one of the Petitioners might have actually standing (a direct personal interest) to raise the issues posed by the case – but just theoretically.

What the Petitioners were asking the Alabama Supreme Court to do was to assert its independent authority to construe the federal constitution, unbound by the federal district court’s decision.  This raises interesting issues of federalism, hierarchy, precedent, and judicial authority.  For one thing, it is totally clear that a decision by a federal district court is not precedential, in the sense that it does not bind or control the decisions of any other courts.  As a trial court, a federal district court can only bind the parties to the case.  If its decision is appealed and upheld by the court of appeals, that creates a binding precedent on federal district courts throughout the circuit, which consists of the states of Florida, Alabama and Georgia.  If the case goes to the U.S. Supreme Court, which affirms the district court on the merits, that would create a national precedent that would bind not only all lower federal courts but also all state and local courts, since state court rulings on federal constitutional questions are ultimately appealable to the U.S. Supreme Court.

So, in a sense, Alabama Chief Justice Roy Moore (who recused himself from participating in this proceeding, and appropriately so since his “open letter” to Governor Bentley and subsequent “Order” to the Probate Judges really turns him into a de facto party in this case) was correct to assert that the Alabama courts do have the authority (recognized in the Constitution) to construe the federal constitution, and are not, literally speaking, bound by the federal district court’s decision on the merits.  An Alabama court can reach the opposite conclusion from a federal district court about whether Alabama’s anti-gay marriage policy violates the 14th Amendment, and the only federal court with authority to overrule such a state court decision is the Supreme Court.  Which is why, considering the emotional resistance to marriage equality in Alabama, it would have most likely been sensible for the 11th Circuit and/or the Supreme Court to grant a stay of the district court’s ruling.  The 11th Circuit didn’t do so, however, because they got the message from the Supreme Court’s prior refusal to stay the Florida ruling.  If the Supreme Court was willing to allow the Florida decision to go into effect, there was no intellectually respectable way to distinguish the situation in Alabama, other than to note that the Supreme Court had in the meantime agreed to review (and, probably reverse) the 6th Circuit’s anti-same-sex marriage ruling.

While it is true that the plaintiffs in these marriage equality cases, and all other same-sex couples in Alabama seeking to marry or have their existing marriages recognized, do suffer an irreparable injury every day that their 14th Amendment rights are denied, nonetheless the U.S. Supreme Court has agreed to review the 6th Circuit’s decision in DeBoer v. Snyder, and judging by its actions on stay petitions ever since October 6, it seems highly likely that sometime in June the Supreme Court is going to issue a ruling in favor of marriage equality by a vote of at least 5-4, and possibly even 6-3 or 7-2, although these bigger majorities seem less likely.  Thus, one might well just counsel “patience” for the same-sex couples in Alabama.  Wait a few months longer and your rights will be vindicated.  Even Chief Justice Moore, for all his fulminating about the Divine creation of the Sacred institution of marriage (as so identified in Alabama’s Sanctity of Marriage Amendment), seems to recognize that the Supreme Court’s ruling under the 14th Amendment would be binding on Alabama courts (even though he would dispute its correctness as a matter of constitutional interpretation).

In the meantime, however, one can question the bona fides of the Alabama Supreme Court’s 7-1 decision.  The dissenter, Justice Greg Shaw, did not state any disagreement with the court’s analysis of the federal constitutional issues.  Rather, he dissented from the court’s decision to take the case and issue a ruling, because he believed the case was not properly before the court and it did not have jurisdiction to issue the ruling that it issued.

Justice Shaw explained why it was inappropriate for the petitioners to bring their case directly to the Supreme Court, since what they are seeking in this case does not fall within the “original jurisdiction” of the Supreme Court.  “Original jurisdiction” means cases that can be originated in the Supreme Court, rather than brought to that court as an appeal from a lower court.  The majority of the Supreme Court purports in its opinion to be acting in its role of supervising the operation of the state courts, since what they are doing is issuing an order to the probate judges.  But, as Justice Shaw points out, when the probate judges are issuing marriage licenses, they are not acting in a judicial capacity, but more in a clerical capacity, performing ministerial acts.  In most states, this function is confided to county clerks, who are elected in some places and not in others.  Some states, however, have set things up so that elected probate judges perform this clerical function by direction of the legislature.  It is not a function that calls for judging; it is a function that employees of the probate court carry out in much the same way that employees of an elected county clerk in other states would receive marriage license applications, check that the form was properly filled out, and then issue the license.  No real “judging” takes place.  No exercise of legal analysis or judicial discretion is required.  Thus, it is not a legitimate exercise of the Supreme Court’s role of supervising the state judiciary to direct probate judges on how they are to issue marriage licenses.  It is not part of their “original jurisdiction” and it is not proper for them to take this direct petition that has not been considered first by a lower state trial court.

It is worth observing that the U.S. District Judge, Callie Granade, has not issued an order requiring the probate judges of the state to issue marriage licenses to same-sex couples.  She has, in exercising her judicial authority in the cases before her, ordered one probate judge in Mobile County to issue licenses to same-sex couples or to recognize their marriages upon concluding in two specific cases that the state’s restrictions on doing so violate the federal constitution.  When asked to clarify the scope of her Orders, she made clear that only the probate judge who was a defendant in the cases before her was literally bound by her Order, but pointed out, of course, that if the state’s ban on same-sex marriage was unconstitutional, as she had found, any probate judge in the state who refused to issue a license or recognize a valid same-sex marriage could open themselves to a federal constitutional lawsuit, with attendant expenses.  On that basis, most of the other probate judges in the state started issuing the licenses.  (By one count, as many as 48 out of 67, covering most of the state’s population by county.)  And this was not because one federal district judge had found the law unconstitutional.  If her decision was an outlier, they might well have decided to take the risk and refused to issue the licenses.  What is significant at this point is that her decisions in the two cases were relentlessly in the mainstream of American jurisprudence as it has developed over the past two years, consistent with the spirit of the U.S. Supreme Court’s decision striking down Section 3 of the Defense of Marriage Act and the subsequent rulings by four circuit courts of appeals and dozens of district courts in other states.  The outliers, at this point, are the 6th Circuit’s decision that the Supreme Court has agreed to review, and district court decisions in Louisiana and Puerto Rico, that are being considered on appeal by the 5th and 1st Circuits.  Otherwise, there is a solid foundation of precedent upon which Judge Granade based her rulings.  So a probate judge put in the position of having to decide how to proceed would have to take all this history into account and decide whether they were likely to be the loser if sued for refusing to issue a license or recognize a marriage.

By purporting to invoke the “supervisory” authority of the Alabama Supreme Court, the petitioners were seeking to have that court order the probate judges to side with the federal “outliers,” even though the Supreme Court’s denials of stays communicate, without explanation, that the leading outlier, the 6th Circuit, is highly likely to be reversed in a few months.  By issuing their opinion, in which they adopt the position of the outliers (citing to and quoting their opinions, as well as the dissenting opinions of a handful of federal circuit judges) in a thoroughly retrograde opinion that would probably earn a “D” if it was submitted as an answer to a final exam question in most contemporary Constitutional Law classes, the court is possibly trying to influence the U.S. Supreme Court by arguing in favor of upholding the 6th Circuit’s decision.   One can’t tar them as totally non-professional; after all, their opinion is also consistent with a handful of opinions by other state high courts prior to the 2013 Windsor opinion, most notably the atrocious opinion issued by the New York Court of Appeals in Hernandez v. Robles, 7 N.Y.3d 338 (2006), which endorsed the peculiar “responsible procreation” rationale and entertained a version of equal protection analysis virtually unrecognizable to most constitutional law scholars.

By issuing this Order, the Alabama Supreme Court “gives the finger” to the federal district court and proclaims its independence as an interpreter of federal constitutional law.  Most probate judges in Alabama will be reluctant to defy any order of their state’s Supreme Court, even if they were willing to ignore the order issued on February 8 by Chief Justice Moore (whose authority on his own motion to issue such an order is completely unclear).  Soon the U.S. Supreme Court will rule, and the Alabama Supreme Court’s decision will be relegated to a historical artifact of some embarrassment to the state’s legal profession.  This is not to say, however, that the spirit behind it will necessarily be vanquished by a U.S. Supreme Court decision.  It would not be surprising to see localized outbreaks of defiance around the country, and not just contained to those states that have yet to experience marriage equality.  (For example, a state judge in Tucson, Arizona, has reportedly refused to recognize an out of state same-sex marriage for purposes of a divorce proceeding, even though the state decided not to appeal a federal district court marriage equality ruling last year in light of the 9th Circuit’s decision in Latta v. Otter.  The judge there is channeling the Alabama Supreme Court’s argument: that as a state trial judge he is not bound by a federal district court decision, or even a 9th Circuit decision.)  One would hope, however, that a U.S. Supreme Court decision would put an end to the matter.

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Federal Judge Enjoins Nebraska Ban on Same-Sex Marriage

Finding that Nebraska’s constitutional amendment banning same-sex marriages violates the 14th Amendment’s Equal Protection Clause, Senior U.S. District Judge Joseph F. Bataillon granted a motion by seven same-sex couples to issue a preliminary injunction against its enforcement on March 2.  While denying the state’s request to stay his order pending appeal, Judge Bataillon agreed to delay his ruling taking effect until 8 am on March 9 to give the state a chance to ask the 8th Circuit Court of Appeals for a stay.  Nebraska Attorney General Doug Peterson filed a notice of appeal with the 8th Circuit shortly after the ruling was announced, indicating that the defendants (who include as well Governor Pete Ricketts, two cabinet members and a county clerk) would be asking the circuit court to issue a stay before March 9.

It seems likely that the 8th Circuit will grant the state’s request.  Appeals of marriage equality rulings from South Dakota, Missouri and Arkansas are now pending before the 8th Circuit, which set an expedited briefing schedule and plans to hear arguments in May.  The district courts in those cases all stayed their rulings pending appeal.  Unlike the 11th Circuit, which has announced that it will take no action on pending appeals of marriage equality rulings by Florida and Alabama until after the Supreme Court rules on the plaintiffs’ appeals of the adverse ruling by the 6th Circuit affecting the states of Michigan, Ohio, Kentucky and Tennessee, the 8th Circuit seems poised to move ahead on the marriage issue.  Recently, that court rejected a request by counsel for the Missouri plaintiffs to lift the Missouri district court’s stay.

What might persuade the 8th Circuit to reject the emergency request by Nebraska Attorney General Doug Peterson, however, is the Supreme Court’s recent action denying a stay of the Alabama marriage equality ruling by District Judge Callie Granade, after the 11th Circuit had rejected that state’s request for a stay.  Dissenting from the Supreme Court’s refusal to intervene, Justice Clarence Thomas (joined by Justice Antonin Scalia) accused the Court of improperly sending a signal about how a majority planned to deal with the marriage equality issue when it rules in June.  Judge Bataillon took specific note of this in his own decision not to stay his ruling beyond March 9, quoting Thomas’s dissent.

Judge Bataillon, a former public defender who was appointed to the district court by President Bill Clinton in 1997 and took senior status in 2014, has a history with the marriage issue.  He was the trial judge a decade ago when gay Nebraskans challenged the constitutionality of the state’s initiative marriage amendment the first time around, and he then ruled that it was unconstitutional, only to be rebuffed by the 8th Circuit in 2006, in a case titled Citizens for Equal Protection v. Bruning.  The plaintiffs in that case were not claiming a constitutional right to marry under the 14th Amendment, however.  Instead, they were challenging the idea that the people of Nebraska could amend their constitution specifically to prevent gay Nebraskans from seeking the right to marry through the ordinary political process of lobbying the legislature.  They argued that this improperly excluded gay people from participation in the ordinary political process.  The 8th Circuit, rejecting this argument, took note of the limited scope of their claim.   That has persuaded district judges in Missouri, Arkansas and South Dakota that the 2006 ruling did not prevent them from addressing the 14th Amendment right to marry claim presented in the new marriage equality lawsuits filed after the Supreme Court’s 2013 ruling in U.S. v. Windsor.

Bataillon took the same view, and also joined with the dozens of district courts and four federal circuit courts that have rejected the argument that a 35-year-old refusal by the Supreme Court to review a marriage equality case from Minnesota, Baker v. Nelson, would now block a lower federal court from ruling for the plaintiffs on this issue.

Some recent marriage equality rulings have been grounded in the theory of a fundamental right to marry protected as a liberty interest by the Due Process Clause.  Others have preferred to base their holding on the Equal Protection Clause, finding that the exclusion of same-sex couples is a form of unjustified discrimination, either based on sexual orientation, sex, or both.  Bataillon preferred the equal protection route, although his opinion also discussed the due process argument.

Because he was deciding a motion for a preliminary injunction rather than issuing a final ruling on the merits, the judge’s discussion of the constitutional issues was focused on predicting what an eventual ruling on the merits might be.  At this stage, the burden on the plaintiffs was to persuade him that they are likely to prevail when he makes a final ruling on the merits in response to a summary judgment motion.  As to that, a simple process of counting decisions by other courts pro or con would easily suffice to meet the burden.  Bataillon pointed out that the Supreme Court in U.S. v. Windsor (2013), striking down part of the federal Defense of Marriage Act, subsequent rulings by four U.S. Circuit Courts of Appeals, and the overwhelming majority of dozens of federal district court opinions, have all rejected the justifications that states have advanced for refusing to allow same sex couples to marry and refusing to recognize their out of state marriages.  Stacked up against that, a mere handful of federal trial judges and one court of appeals (by a divided vote) have rejected plaintiffs’ claims. For purposes of prediction, that is sufficient to hold for the plaintiffs.

The court easily found that the other prerequisites for preliminary injunction relief were met, finding that the harms to plaintiffs massively outweigh potential harms to the state of ordering it to cease enforcing its ban.

Judge Bataillon drew heavily on the forceful marriage equality opinion by Judge Richard Posner of the 7th Circuit Court of Appeals in Baskin v. Bogan, which had focused particularly on the harms to children imposed by denying same-sex couples the right to marry.  “In Baskin,” he wrote, “the Seventh Circuit rejected the rationale that same-sex couples and their children do not need marriage because same-sex couples cannot produce children, whether intended or unintended, as an argument ‘so full of holes that it cannot be taken seriously.'”  He continued, “The Seventh Circuit found prohibitions on same-sex adoption particularly troubling.  The refusal to allow same-sex couples to adopt ‘harms the children, by telling them they don’t have two parents, like other children, and harms the parent who is not the adoptive parent by depriving him or her of the legal status of a parent.'”

“An asserted preference for opposite sex parents does not, under heightened scrutiny, come close to justifying unequal treatment on the basis of sexual orientation,” wrote Bataillon.  Furthermore, he embraced the view, previously adopted by a minority of the district court judges and by one concurring judge in the 9th Circuit, that the ban on same-sex marriage is a form of sex discrimination, meriting heightened scrutiny, without any need to find that sexual orientation discrimination claims also merit heightened scrutiny.  “Under existing precedent,” he wrote, “Nebraska’s same-sex marriage ban is at least deserving of heightened scrutiny because the challenged amendment proceeds ‘along suspect lines,’ as either gender-based or gender-stereotype-based discrimination.  The court finds it unnecessary, in light of this conclusion, to address the issue of whether the fundamental right to marry extends to same-sex relationships.”

In support of its argument that the same-sex marriage ban serves a legitimate state interest, Nebraska relied upon several widely-discredited “studies,” including two articles published by University of Texas Professor Mark Regnerus, disparaging the parenting skills of same-sex couples.  Bataillon dispatched them in a footnote, observing that the federal district court in Michigan found them to be “unbelievable and not worthy of consideration,” characterizing them as a “fringe viewpoint that is rejected by the vast majority of [the studies’ authors’] colleagues across a variety of social science fields.”  Why are state attorneys general continuing to cite such unreliable and vigorously disparaged publications? Aren’t they embarrassed to do so?

In common with many of the other district judges who have ruled on this issue over the past year and a half, Judge Bataillon rose to a vigorously stated conclusion.  “Nebraska’s ‘Defense of Marriage’ Constitutional Amendment, Section 29, is an unabashedly gender-specific infringement of the equal rights of its citizens,” he wrote.  “The State primarily offers as its rational basis for this gender-specific discrimination the encouragement of biological family units.  The essence of this rationale has been rejected by most courts and by no less than the Supreme Court [in Windsor].  With the advent of modern science and modern adoption laws, same sex couples can and do responsibly raise children.  Unfortunately, this law inhibits their commendable efforts.  For the majority of married couples, those without children in the home, marriage is a legal and emotional commitment to the welfare of their partner.  The State clearly has the right to encourage couples to marry and provide support for one another.  However, those laws must be enforced equally and without respect to gender.  It is time to bring this unequal provision to an end.”

The plaintiffs are represented by the ACLU of Nebraska Foundation and the ACLU Foundation’s Lesbian and Gay Rights Project, with Omaha divorce attorneys Susan Koenig and Angela Dunn as local counsel.  The ACLU attorneys working on the case include Amy Miller of the Nebraska affiliate, and Leslie Cooper and Joshua Block with the national organization.

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Teacher Can Pursue Constitutional Claims Challenging Her Dismissal Over Anti-Gay Facebook Postings

A New Jersey federal judge has ruled that a Union County public school teacher who lost her job after posting anti-gay comments to her Facebook page may continue her lawsuit against the school board and various officials on claims of constitutional violations.  Although District Judge Kevin McNulty dismissed several of Jenye Viki Knox’s claims, the central constitutional claims survived the defendants’ motion to dismiss in Knox v. Union Township Board of Education, 2015 U.S. Dist. LEXIS 21536 (D.N.J., Feb. 23, 2015).

Knox was employed as a special education teacher at Union Township High School, and was awarded tenure in 2003.  Knox is African-American, a fact that is relevant due to the race discrimination charges in her complaint.  While employed at the high school, she served as academic advisor for The Seekers Club, a Christian Bible study group, and she was also the advisor for the school’s Gospel Choir.  Knox is an ordained minister as well, a fact known by the school authorities named as defendants in her complaint.

Knox took offense to a billboard in the school and posted comments on her Facebook page in September 2011.  According to Judge McNulty’s summary of her allegations, she “posted a public message on Facebook stating that a school billboard that promoted alternative lifestyles did not accord with her religious beliefs.”  She posted these comments from her home computer.  “Facebook users commented on Knox’s post, and Knox responded.  Her responses included an explanation of her religious objections to the billboard; statements about the Bible and homosexuality; characterizations of homosexuality as a sin and disobedience to God; and descriptions of salvation through Jesus Christ.  Knox’s comments prompted racist posts from other users, who are not identified,” wrote the judge.

The ongoing conversation prompted by Knox’s postings soon came to the attention of school authorities, who reacted swiftly early in October.  “Without prior notice,” wrote McNulty, “Know was removed from her classroom.  The removal took place during school hours, in front of her students and other teachers.” she was taken to a small room and interrogated about the Facebook posts by the school board’s attorney, the Assistant Superintendent, and the Vice President of the teachers union.  “She alleges that she ‘was then pressured by these individuals to say that her religious beliefs were wrong, and felt extremely intimidated by them.’  She alleges that the individuals spoke critically about her religious beliefs and her expression of them.  Those individuals did not discuss or express ‘dismay’ about any of the racist third-party comments to her Facebook posts,” which she alleges was “tacit approval of the racism that she was subject to.”

Although she was allowed to return to her classroom, she was removed again a few days later, in the presence of students, and questioned against, this time by the Superintendent, the Principal of the school, and the union president.  In this meeting she was told that she was suspended with pay,” which Knox alleges is what the “racists” had advocated in their postings on Facebook.  She characterized the suspension as “part of the ongoing pattern of intimidation the Board leveled against [her] as a result of her religious beliefs and/or race,” and that the Board was attempting to “undermine” her “reputation” and “humiliate” her.  After she was told that she was suspended, she was escorted back to her classroom to gather her personal belongs and escorted from the building, against in the presence of students and other teachers, which she said caused her “further humiliation and embarrassment.”  The Board held a public meeting about the situation on October 18.

On December 23, the Board’s attorney notified Knox that her suspension would henceforth be without pay and that the Board was filing charges to remove her tenure.  Knox claims that her health deteriorated after these experiences, and she resigned her position on June 30.  She later characterized this as a “constructive discharge” and made it part of her lawsuit.  Four months after she resigned, she agreed to a negotiated settlement of the tenure proceedings, under which she agreed to resign her tenured position and to refund the school the money she was paid during the paid suspension period.  The parties agreed to forego a formal hearing and the Board and an Administrative Law Judge approved the settlement, which was finally approved by the state Commissioner of Education, which involved dismissal of the Tenure Charge.  Knox never filed a grievance under the union contract, and never filed a discrimination charge with state or federal agencies.

On October 2, 2013, she filed her lawsuit against the School Board and several individual defendants who were involved with her suspension and discharge, stating ten distinct claims, four of which Judge McNulty dismissed in response to the School Board’s motion.  At the heart of the School Board’s motion was the claim that the court should defer to the settlement that had been negotiated, but McNulty pointed out that the School Board could have negotiated for a waiver of claims by Knox as part of the settlement, but had not done so.

Although certain claims were precluded because of the settlement, the court found that her claims of denial of due process of law, violations of her rights to freedom of speech and free exercise of religion, violation of equal protection of the laws and violation of the New Jersey Free Exercise and Enjoyment of Religion Clauses all survived the motion to dismiss, as did her claim of a violation of the 1st Amendment establishment clause.  The race discrimination claims she brought were dismissed without prejudice to the filing of a properly supported motion to amend the complaint.  Judge McNulty had found that the factual allegations in the complaint were insufficient to support a race discrimination claim, but was willing to give Knox an opportunity to plead the necessary facts if possible.  McNulty granted the motion to dismiss a claim of “constructive discharge,” finding that there is no independent cause of action by that name in New Jersey (although constructive discharge is a theory that can be used by an employee who claims to have been forced to quit because of her race, religion, political views, and so forth).  He also dismissed her claim of intentional infliction of emotional distress, but against without prejudice to the right to amend her complaint with more specific factual allegations.

The School District’s attorney, Jonathan Cohen, expressed pleasure at the dismissal of four of the 10 counts of the complaint.  Knox’s attorney, Demetrios Stratis, pointed out that the claims that survived the motion were “the thrust of our case” and argued that when Knox spoke as an individual, from home on her Facebook page, “she certainly is entitled to do that.  Just because she became a teacher, it doesn’t mean she gives that up.”

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Military Appeals Court Changes Analysis of “Aggravated Assault” HIV Exposure Cases

Reversing the conviction of HIV-positive Air Force Technical Sergeant David Gutierrez on charges of aggravated assault for engaging in unprotected oral and vaginal sex with women during “swingers” parties, the U.S. Court of Appeals for the Armed Forces ruled on February 23 in United States v. Gutierrez, No. 13-0522, that statistics about the likelihood of transmission of HIV under such circumstances would not support a conviction under Article 128(b) of the Uniform Code of Military Justice, which applies when a person “commits an assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm.”

Gutierrez was convicted of “aggravated assault” and other charges at a court martial presided over by Military Judge William C. Muldoon, Jr., who applied a 1993 decision, United States v. Joseph, 37 M.J. 392 (C.M.A. 1993), which held that “the question is not the statistical probability of HIV invading the victim’s body, but rather the likelihood of the virus causing death or serious bodily harm if it invades the victim’s body.  The probability of infection need only be more than merely a fanciful, speculative, or remote possibility.”  Thus, Muldoon rejected Gutierrez’s contention that the statistics presented in the court martial would not support a conclusion that his conduct was “likely” to cause death or grievous injury to the women with whom he was having sex.

The court of appeals, bowing to criticism of its prior reasoning as having become outmoded as a result of medical advances and better knowledge about how HIV is transmitted, agreed that if HIV transmission is highly unlikely as a statistical matter, then it cannot be said that the defendant had acted in way that was “likely to produce death or grievous bodily harm.”

Clearly, any sexual activity using barrier contraception (condoms) could not constitute an aggravated assault on this reasoning, in light of the very high rate of effectiveness of condoms in preventing transmission.  The expert testimony presented in this case, wrote Judge Baker, “makes clear that condom use protects against the transmission of bodily fluids in ninety-seven to ninety-eight percent of cases, and that any transmission risk only obtains in the transmission of bodily fluids.”  The government’s own expert witness had testified that the risk of HIV transmission  in a case of “protected vaginal sex was only ‘remotely possible.'”  As such, it could hardly be called “likely.”

As to unprotected vaginal sex, the same expert put the risk of transmission at 20 out of 10,000, or about 1-in-500, which was described as the “high-end” statistic.  Based on this number, the court concluded that “HIV transmission is not the likely consequence of unprotected vaginal sex.  This is so because, in law, as in plain English, an event is not ‘likely’ to occur when there is a 1-in-500 chance of occurrence.  As a result, Appellant’s conviction for aggravated assault by engaging in unprotected vaginal sex is legally insufficient” to support the conviction.

As to unprotected oral sex, the expert testimony said that the chance of transmission through that mechanism was “almost zero.”  Under the court’s new reasoning, that testimony would not support a conviction for aggravated assault.

The court also rejected the government’s argument that Gutierrez could be convicted of “attempted aggravated assault,” since that would require proof of “specific intent to commit the offense of afflicting “grievous bodily harm” on the victim.  The court hypothesized that an HIV-positive person who filled a syringe with his own blood and injected it into another person could be convicted of this offense.

However, the court held that David Gutierrez was guilty of the lesser-included offense of simple assault, which requires that the accused “did bodily harm” which includes “any offensive touching of another, however slight.”  Since the women involved testified that they would not have consented to unprotected sex with Gutierrez had they known he was HIV-positive, they did not give “informed consent” based on awareness of the risks involved.  “Here, Appellant’s conduct included an offensive touching to which his sexual partners did not provide meaningful informed consent,” wrote Judge Baker.  Thus, Gutierrez “is therefore guilty of assault consummated by battery, and we affirm that offense as a lesser included offense of aggravated assault.”

The court stated that it was expressly overruling U.S. v. Joseph and reversing the aggravate assault conviction, but affirming the conviction on other charges (including adultery, in that these swingers parties in which Gutierrez and his wife participated included other married couples and everybody was mixing it up with each other’s spouses).  The case was sent back to the lower court to either reassess the sentence originally imposed or to hold a new sentencing hearing. Recognizing that this case has dragged on for a very long time, the court also charged the Air Force Court of Criminal Appeals with considering whether Gutierrez’s due process rights were violated “by the facially unreasonable appellate delay that occurred in this case.”

This ruling raises important issues outside the military context, since civilian courts have also imposed severe penalties in some cases upon HIV-positive defendants comparable to Gutierrez, using much the same reasoning.  It is noteworthy, however, that in the past few years courts have started to become much more sensitive to the developing knowledge about transmission risks, especially when HIV-positive people are compliant with anti-retroviral therapy rendering their viral load undetectable or are using condoms to block transmission.  This military case involved a “swingers” club that, so far as the court’s decision went, didn’t involve same-sex contact or anal sex.  It will be interesting to see whether the military courts will be consistent in their reasoning if they are presented with cases involving gay service members who credibly testify that they are compliant with treatment regimens that have sharply reduced their infectiousness to the vanishing point.

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American Symphony Revives Von Schillings’ “Mona Lisa”

I haven’t been blogging concerts and theater this season… too overwhelmed with legal developments and work.  But having just attended the American Symphony Orchestra’s presentation of Max Von Schillings’ opera “Mona Lisa” at Carnegie Hall, I couldn’t resist offering a few observations.

First, to thank Leon Botstein, the ASO, the singers and chorus for the enormous effort that goes into putting on these revivals of forgotten music.  They usually have to go to significant lengths to track down scores and parts, and everybody involved has to spend time learning music that nobody has performed and that they are unlikely to be called upon to perform again.  This is especially true of the singers.  While they don’t memorize their parts, as they would have to do for a staged production, it still is a tremendous effort to get beyond sight reading, putting in significant time to learn a part that it is unlikely one will ever sing again.

I emphasize the unlikeliness of living off this capital investment because accomplished as this opera is, it isn’t likely to hold the stage.  There are too many problems with it.  The plot is a silly soap opera, and the piece is structurally unbalanced to a pronounced degree.  The first act is about twice as long as the second, and this disproportion is even more pronounced when you look at the libretto: 42 pages of text, of which all but the last 9 pages come before the intermission.  (And a word to the ASO and Carnegie Hall – when so much has been invested in producing a libretto booklet and distributing it to everybody, why do you dim the lights during the performance, making it eye-straining to follow along?  What is the sense in this???  It is particularly useful to be able to follow text for a virtually unknown work.  I found the effort and eyestrain exhausting and gave up mid-way through the first act.  Better luck with the second, which may be why I enjoyed it a bit more.)  The music, while containing moments of great beauty and inventive orchestration, lacks truly memorable thematic material.  The first act just goes on for too long, and the fine singers are taxed with technically difficult extended solos that have little real dramatic pay-off.

All that said, it is fantastic that the ASO makes the effort to produce these concerts. They are a window into the past that is so valuable for music lovers, because it gives us a context within which to understand the masterworks contemporary with it and to appreciate them all the more.  This piece was composed in 1913-15 and premiered in 1915.  Thus it is contemporary with Stravinsky’s Le Sacre du Printemps, and postdates by just a few years Mahler’s Das Lied von der Erde and 9th Symphony.  It falls somewhere between the works of these composers – not nearly as dissonant and rhythmically inventive as the Stravinsky, but perhaps a further step in the line of Mahler, albeit without Mahler’s flare for inventing and developing memorable themes.  Listening to Schillings, one understands the background against which Mahler and Stravinsky was composing, and why their works survive to be part of our standard repertory.

The performance seemed more than adequate to communicate what is interesting about the work.  The lead singers – Petra Maria Schnitzer, Michael Anthony McGee, and Paul McNamara – each provided very fine, alert, involved singing, the orchestra — while it could have used a bigger string section to balance the big wind complement (I counted 7 horns on stage) — seemed well-rehearsed and confident, Botstein’s direction was very effective, and the supporting roles and choral interventions, including some soloists from the Bard Festival Chorale, was fine (if the chorus was underused by the composer).  Hat tip to James Bagwell for preparation of the chorus, which was sterling when called upon.

Although the work itself is not particularly memorable, certainly the evening was…

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NY High Court Approves Reduced Charges in HIV Transmission Case

The New York Court of Appeals, the state’s highest court, ruled 4-1 on February 19 that a Syracuse (Onondaga County) trial judge had appropriately granted a defendant’s motion to reduce charges against him from felony to misdemeanor reckless endangerment where the defendant had apparently transmitted HIV to another man by engaging in unprotected anal sex without disclosing his HIV status, reassuring his sex partner that it was “okay.”  People v. Williams, 2015 WL 685818.  The defendant also faces a misdemeanor assault charge.  The court’s decision is premised on its conclusion that evidence presented to the grand jury would not support the conclusion that the defendant acted with “depraved indifference to human life.”

According to the court’s statement of the facts, the victim and Terrance Williams became friends in July 2010, and their relationship became sexual later in the summer “when they engaged in anal sexual conduct.”  The first few times they used condoms, but eventually they had unprotected sex.  “The first time this happened,” wrote the court, “the victim reached for a condom only to have defendant take the condom away from him,” assuring him that it was “safe for them to have unprotected sex.”  The men had previously conversed several times about HIV and “the need to be careful to avoid infection.”  In October 2010, Williams told his partner that Williams might be HIV-positive, because a prior sexual partner with whom he had unprotected sex had been diagnosed.   Williams urged his partner to get tested, and shortly after this conversation their relationship ended.  In February 2011, the victim experienced symptoms, got tested, and turned out to be infected.  He started on antiretroviral therapy soon thereafter.

In April 2011, the victim received a message through social media from Williams, in which Williams confessed that he had been diagnosed as HIV positive before he and the victim had started having sex, and Williams expressed remorse about having lied to him.  “I want to start by saying that I sincerely apologize for giving you HIV,” he wrote.  “I made my biggest mistake that night I said I didn’t want to use a condom knowing my status but still being so deep in love with you that I wanted us to be one person.  I was selfish and I was more so concerned with my own false happiness than your health.”  The victim contacted the police, and this prosecution ensued.

The Onondaga County District Attorney’s office presented the case to a grand jury, which voted to indict Williams on charges of reckless endangerment in the first degree (Penal Law section 120.25) and third-degree assault (Penal Law section 120.00[2]).  Reckless endangerment in the first degree is a Class D felony, subjecting a defendant to a potential prison term of up to seven years.  Conviction requires a finding that the defendant “under circumstances evincing a depraved indifference to human life … recklessly engages in conduct which creates a grave risk of death to another person.”  The third-degree assault charge applies to situations where a defendant intentionally, recklessly or negligently causes a physical injury to another.  In cases of negligence, the defendant must have use a deadly weapon or a dangerous instrument.  This is a misdemeanor with a maximum prison sentence of a year.

Williams filed a pretrial motion challenging the appropriateness of the first degree reckless endangerment charge, arguing that his conduct did not show depraved indifference to human life and that in light of current medical treatments he did not subject the victim to a “grave risk of death” by transmitting HIV to him.  Onondaga Supreme Court Justice John J. Brunetti granted the motion and reduced the charge to second degree reckless endangerment (Penal Law section 120.20), which applies when a defendant “recklessly engages in conduct which creates a substantial risk of serious physical injury to another person.”  This is a Class A misdemeanor, carrying the same potential prison sentence as the assault charge.

The prosecutor appealed Brunetti’s ruling, but the Appellate Division, 4th Department, affirmed Brunetti by a unanimous 5-0 panel vote.  The panel wrote that the evidence presented to the grand jury would not support a finding of depraved indifference to human life.  The court focused on Williams’ explanation why he did not disclose his HIV status (he was “afraid [the victim] would not want to be with” him, and he “loved [the victim] so very much”), and on his action of urging the victim to be tested and then sending his apology.  “The fact that defendant encouraged the victim to be tested for HIV indicates that defendant was trying, however weakly and ineffectively, to prevent any grave risk that might result from his conduct.  We thus conclude that, while the evidence certainly shows that defendant cared much too little about [the victim]’s safety, it cannot support a finding that he did not care at all,” which would be necessary to support a finding of “depraved indifference to human life.”  The Appellate Division panel also found that medical evidence presented to the grand jury countered the conclusion that transmitting HIV today puts somebody in grave risk of death.  A doctor had testified that the prognosis for somebody who starts antiretroviral therapy soon after being infected is “outstanding.”  The prosecutor applied to the Court of Appeals for review of this decision.

The Court of Appeals abstained from deciding whether HIV infection today creates a grave risk of death, instead focusing on the depraved indifference issue.  “Here,” wrote the court, “there is no evidence that defendant exposed the victim to the risk of HIV infection out of any malevolent desire for the victim to contract the virus, or that he was utterly indifferent to the victim’s fate.  Without a doubt, defendant’s conduct was reckless, selfish and reprehensible.  Under our caselaw, though, this is not enough to make out a prima facie case of depraved indifference.”  Since it concluded that the evidence would not support a finding of “depraved indifference,” the Court of Appeals saw no need to rule on whether the medical evidence would show a “grave risk of death.”

Judge Eugene Pigott, Jr., dissented, contending that the evidence presented to the grand jury was sufficient to support the felony charge.  “The People’s evidence established that defendant knew at the time he engaged in sexual conduct with the victim that he had been infected with HIV.  The victim was unaware of defendant’s condition.  Prior to engaging in unprotected intercourse, defendant and the victim had spoken about the need for people to be careful when engaging in unprotected sex, but defendant intentionally failed to tell the victim that defendant had been diagnosed with HIV in December 2009, eight months before he and the victim had met.  The grand jury testimony established that when the victim reach for a condom, defendant took it away from the victim, and after the victim had asked defendant four times whether it was safe to engaged in unprotected sex with the defendant, defendant responded that it was ‘okay.’  These facts, viewed in the light most favorable to the People, established at the very least that defendant acted with ‘wanton cruelty, brutality or callousness’ and ‘utter indifference’ to the victim’s fate.”  Judge Pigott contended that Williams’ subsequent remorse was irrelevant; his state of mind at the time the acts were committed were the relevant consideration.  He argued that it was inappropriate for the court to substitute its judgment for the grand jury on this point.  Further, he noted that the grand jury received conflicting evidence on the “grave risk of death issue,” which in his view was “legally sufficient” to establish that element of the charged offense.

The Court of Appeals’ action means that the prosecution will continue with the reduced charge of second degree reckless endangerment and the original third-degree assault charge.  Unless Williams is contesting the prosecution’s factual case, it is likely that this case will end with some sort of plea bargain.  Reduction of the reckless endangerment charge to a misdemeanor probably increases the likelihood of a plea to a short prison sentence.  The district attorney’s appeal through two levels suggests that the office feels strongly enough about this case that it is unlikely they would offer a plea that doesn’t involve prison time.

The court’s ruling raises interesting public policy issues.  Surely it is reprehensible for somebody who knows they are infected and capable of transmitting HIV to fail to disclose their status to a sex partner while assuring them that it is “safe” for them to have unprotected anal sex.  The question is whether such conduct should be treated as merely a misdemeanor, and whether actual transmission of HIV under those circumstances should also be treated as a mere misdemeanor under the assault statute?  Some have argued that criminal law is too blunt an instrument altogether to address issues of sexual ethics in the context of consensual gay sex where undisclosed HIV is involved, while others would undoubtedly be glad to “throw the book” at somebody who affirmatively lies about their HIV status to get a partner for whom they supposedly feel love to submit to a serious risk of permanent infection with HIV and all the complications that might ensue. (Nothing is said in the opinion about using PREP to prevent transmission, so presumably Williams had no basis for arguing that he was not infectious.)  This is not one of those outrageous cases where somebody is prosecuted and sentenced to decades in prison for “exposing” another to the virus under circumstances where the chance of transmission is slight, where transmission did not actually take place, and where the defendant did not affirmatively misrepresent his medical condition.  Perhaps further fine-tuning of the statutes is needed.


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New Jersey Trial Judge Finds Conversion Therapy Outfit Violated Consumer Fraud Law

A New Jersey trial judge issued two rulings in February in a pending consumer fraud case against JONAH (Jews Offering New Alternatives for Healing), an organization that provides so-called “conversion therapy” seeking to “assist individuals to purge unwanted same-sex attractions,” finding that certain representations made by JONAH to potential clients violate the state’s law against consumer fraud.  The judge, Peter  F. Bariso, Jr., of the Superior Court in Hudson County, also ruled that most of the expert witnesses proposed by JONAH should be barred from testifying, because their opinions were premised on discredited views about homosexuality.  Ferguson v. JONAH, 2015 N.J. Super. Unpub. LEXIS 236 (Feb. 5) (ruling on expert witnesses); Ferguson v. JONAH, Docket No. L-5473-12 (Feb. 10) (ruling on summary judgment motions).

Six individuals represented by the Southern Poverty Law Center and attorneys from Clearly Gottlieb Steen & Hamilton (NY) and Lite DePalma Greenberg (NJ) filed the lawsuit in November 2014, claiming that they had been defrauded by JONAH and demanding reimbursement of the fees they had paid and compensation for the costs of therapy they had to undergo to undo the damage caused by JONAH’s ministrations.  Both sides had filed motions seeking to disqualify expert witnesses listed to testify by their opponents, and both parties filed motions seeking to have the court decide certain key issues in the case as a matter of law, without the need to submit disputed facts to the jury.  Judge Bariso issued his opinion on the expert witnesses on February 5, and his opinion on the summary judgment motions on February 10.

Common to both rulings was the question whether it is fraudulent for somebody to market a conversion therapy program by representing homosexuality as a mental illness, disease or disorder that can be “changed” by treatment, whether it was deceptive to make statements that would lead a prospective client to believe that they would be able to change their sexual orientation as opposed to merely being conditioned not to engage in same-sex activity, and whether it was fraudulent to include specific “success” statistics when there is no factual basis for calculating such statistics.  Judge Bariso made clear in his decisions that the plaintiffs were not mounting a general attack on the practice of sexual orientation change efforts (SOCE) by mental health professionals, a practice that was recently made unlawful by a New Jersey statute that has withstood constitutional attack in federal court.  Rather, this consumer fraud suit is more narrowly focused on the question whether JONAH has defrauded and harmed these plaintiffs by the representations it made about its services.

“In the area of scientific evidence,” wrote Judge Bariso, “expert testimony will be deemed acceptable only if the technique or mode of analysis used has ‘a sufficient scientific basis to produce uniform and reasonably reliable results so as to contribute materially to the ascertainment of the truth,'” quoting from a 2005 New Jersey Supreme Court decision, State v. Torres.  “The reliability requirement applies to all scientific fields, including the social and psychological sciences.  In New Jersey, reliability of a scientific technique can be proven in most cases by showing its ‘general acceptance in the particular field in which it belongs,'” quoting a leading case on the criteria for expert testimony, Frye v. United States.  In other words, if a proposed expert is going to express views on scientific topics that lie outside the “general acceptance” of the relevant profession, are not supported by “authoritative scientific and legal writing indicating that the scientific community accepts the premises underlying the proffered testimony;” or do not  have the support of relevant judicial opinions finding general acceptance, then such testimony should be excluded.

Using this standard, Judge Bariso found that the proposed scientific experts, all affiliated in some way with organizations supporting conversion therapy, were not qualified to testify.  “The overwhelming weight of scientific authority concludes that homosexuality is not a disorder or abnormal,” he found.  “The universal acceptance of that scientific conclusion — save for outliers such as JONAH — requires that any expert opinions to the contrary must be barred.”  The judge focused on the 1973 vote by members of the American Psychiatric Association to remove “homosexuality” from its official listing of mental disorders, the Diagnostic and Statistical Manual (DSM), which was soon followed by other professional and public health organizations both domestically and internationally.

“JONAH’s suggestion that the court should ignore the DSM misapprehends basic New Jersey law,” he wrote.  “Under the general acceptance standard, the DSM is unquestionably authoritative in the mental health field; courts repeatedly have concluded this to be the case.”  JONAH contended, as some critics have argued, that the APA’s vote was “a politically motivated decision to de-stigmatize homosexuality, and was not based on science.”  But, countered the judge, it is not up to a trial court to “substitute its judgment for that of the relevant scientific community.”  The court does not sit in judgment of whether the APA’s decision was correct, “and no proper basis has been advanced on which a court may reassess the scientific accuracy of the psychiatric characterization of homosexuality.”  After reciting the long list of prestigious organizations that followed the APA’s lead, Bariso commented, “JONAH can hardly argue that all of these organizations — including a federal appellate court [rejecting the challenge to New Jersey’s ban on SOCE therapy] — were the victims of manipulation by ‘gay lobbying’ groups.”

JONAH had pointed to the National Association for Research and Therapy of Homosexuality (NARTH), a small organization co-founded by one of the proposed expert witnesses, Dr. Joseph Nicolosi, a fervent proponent of conversion therapy, as an example of contrary scientific opinion by a professional organization, but the judge pointed out that there need not be unanimity of professional opinion, merely general acceptance.  “The existence of a minority of conversion therapy proponents does not and cannot negate the fact that the DSM and its exclusion of homosexuality are generally accepted in the mental health field,” wrote Bariso.  “Furthermore, a group of a few closely associated experts cannot incestuously validate one another as a means of establishing the reliability of their shared theories.”

Furthermore, he pointed out, “JONAH has not identified any case that provides a standard for the admission of obsolete and discredited scientific theories.  By definition, such theories are unreliable and can offer no assistance to the jury, but rather present only confusion and prejudice.”

Judge Bariso also ruled that two proposed experts should be denied because their testimony was not really relevant to the consumer fraud claims before the court.  Whether JONAH’s statements were consistent with Orthodox Judaism, for example, was irrelevant if the statements were misleading about homosexuality and the efficacy of the therapy offered by JONAH.  Similarly irrelevant was testimony about the health risks of engaging in homosexual conduct.

The findings about homosexuality in the court’s February 5 ruling were incorporated by reference into the February 10 ruling on the summary judgment motions.  Judge Bariso denied all of JONAH’s motions, and granted several of the plaintiffs’ motions.  Specifically, he ruled that “it is a misrepresentation in violation of the Consumer Fraud Act, in advertising or selling conversion therapy services, to describe homosexuality, not as being a normal variation of human sexuality, but as being a mental illness, disease, disorder, or equivalent thereof” and that “it is a misrepresentation in violation of the Consumer Fraud Act, in advertising or selling conversion therapy services, to include specific ‘success’ statistics when there is no factual basis for calculating such statistics, e.g., when client outcomes are not tracked and no records of client outcomes are maintained.”  However, the judge concluded that it should be up to a jury to decide whether a person would be misled by JONAH’s description of the “change” its therapy sought to achieve with clients.  The court also struck out several affirmative defenses advanced by JONAH, including claims that its representations were constitutionally protected speech or free exercise of religion.

While these pretrial rulings do not end the case, they sharply increase the likelihood that JONAH will be found at trial to be liable to the plaintiffs for damages.  It will be up to the plaintiffs to prove that JONAH made the unlawful representations, that its statements about the “change” it sought to achieve through therapy were similarly misleading, and that as a result the plaintiffs were defrauded and are entitled to a refund of fees (in some cases as much as $10,000 for a year of treatment) as well as compensation for the treatment they subsequently sought because of the psychological injury they claim to have suffered as a result of the therapy.  The burden at trial to prove these injuries is placed on the plaintiffs.

Although New Jersey Superior Court decisions are not routinely published, the legal database LEXIS has published Judge Bariso’s February 5 ruling, which includes a detailed report of the plaintiffs’ allegations about some of the treatment methods used by JONAH’s counselors.  To this reader, these techniques appear on their face to be simplistic, misguided, and potentially damaging to the mental health of the clients, as the plaintiffs claim.  They also sound, in some cases, strangely homoerotic as well, and thus potentially quite troubling to clients who were desperate to purge themselves of homosexual attractions.

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Third Strike Against Andrew Shirvell – 6th Circuit Upholds Substantial Damage Award

Just weeks ago, Michigan’s Court of Appeals dealt two strikes against former Michigan Assistant Attorney General Andrew Shirvell, rejecting his challenge to his discharge by former Attorney General Mike Cox and denying his claim for unemployment benefits.  Shirvell, who had undertaken an obsessive campaign to discredit the openly gay president of the student government association at his alma mater, University of Michigan, was held by the state appeals court to lack any First Amendment free speech claim in connection with his discharge.

Now another court has dealt him a third strike, as a unanimous three-judge panel of the U.S. Court of Appeals for the 6th Circuit, based in Cincinnati with jurisdiction over cases from Michigan, approved a damage award of $3.5 million against Shirvell, payable to Christopher Armstrong, the young gay man who was the victim of Shirvell’s actions.  Armstrong v. Shirvell, 2015 Westlaw 410545 (February 2, 2015).  This court also rejected any First Amendment defense.

Armstrong sued Shirvell on multiple tort claims, including defamation, false light invasion of privacy, intentional infliction of emotional distress, abuse of process, intrusion upon seclusion, and stalking.  Shirvell removed the action from state to federal court and the number of claims was reduced through pretrial actions.  The trial judge rejected Shirvell’s pretrial summary judgment motion, and Shirvell formally refused to retract various statements he had made about Armstrong.   Then the case went to trial in August 2012.  The jury found Shirvell liable for defamation, intentional infliction of emotional distress, false light invasion of privacy, and stalking, awarding Armstrong $4.5 million in total damages.  Shirvell had filed motions during and after the trial seeking to have the case dismissed, but none were granted, and the trial judge ordered Shirvell to pay the damages plus interest, denying his request to have the damages reduced.

Shirvell’s appeal attacked every aspect of the verdict, arguing that his conduct and speech were protected by the First Amendment, that the evidence did not support the jury’s conclusions, and that the trial judge’s instructions misled the jury to award excessive damages.  Writing for the Court of Appeals, Judge Julia Smith Gibbons found merit in only one of Shirvell’s objections: that inaccuracies in the trial judge’s jury charge led to the imposition of duplicative damages for defamation.

As to the merits, however, the court found that the trial record fully supported the jury’s conclusions.  As to the defamation claim, for example, Judge Gibbons wrote, “The evidence in Armstrong’s favor — demonstrating harm caused by statements that were properly submitted to the jury as defamatory — was immensely one-sided.  Through a special verdict form, the jury found over 100 statement by Shirvell defamatory and over 60 of those defamatory statements were made with actual malice.”  “Actual malice” is a legal term of art indicating that the jury found that Shirvell knew the statements were false or proceeded with reckless disregard as to whether they were true.  Even though it was arguable that the jury might have been wrong as to a few of those statements, or that some statements were not, as a matter of law, defamatory, “there is very little chance that the small number of potentially erroneous statements made a difference in the quantum of harm to Armstrong’s reputation, or to his mental or emotional state,” wrote Gibbons.

The court also rejected Shirvell’s attempt to argue that Michigan student body president Armstrong was a public figure.  The Supreme Court’s defamation cases have made it extremely difficult for a public figure to win damages for defamation, requiring a finding of “actual malice” in such cases.  The court disagreed with Shirvell about how to characterize Armstrong.  The student body president is not a public official or a government spokesperson, and the court concluded that he even fell short of the category of “limited public figure” — somebody who can be considered a public figure for limited purposes because he has thrust himself forward into a public controversy.  The only controversy in this case was created by Shirvell, not Armstrong.  But this argument would not get Shirvell very far even if the court had agreed with him, because the jury found that over 60 of Shirvell’s defamatory statements were made with actual malice, so he would be liable to Armstrong even if Armstrong was deemed to be a public figure.

As to the finding of “actual malice,” the court thought the trial record provided plenty of evidence to support the jury’s conclusion.  “A reasonable jury could conclude from the evidence that many of Shirvell’s statements were pure fabrications,” wrote Judge Gibbons.  “For example, he claims that police ‘raided’ Armstrong’s house during a party, but the evidence contradicted this.  A reasonable jury could conclude that Shirvell — who was standing outside, filming the house — simply fabricated his story.”  She described Shirvell’s attempts to minimize some of the evidence as “disingenuous” and “implausible.”

Shirvell claimed that Armstrong failed to prove that he suffered any real injury as a result of Shirvell’s actions, but the court found that there was plenty of evidence to support the jury’s conclusion that Armstrong was entitled to compensatory damages.  For one thing, having found that some of Shirvell’s statements fell into the category of per se defamation (statements that are presumed to inflict injury, such as, for example, tarring Armstrong as a racist, a liar and a Nazi), the jury could award compensatory damages without any need to find that Armstrong had suffered physically, emotionally, or financially as a result of Shirvell’s actions.  But, wrote Gibbons, the jury could have found that Armstrong did suffer actual losses. For example, it appears possible that Shirvell’s activities contributed to Armstrong’s rejection by the Teach for America program, and distracted him sufficiently during the job-seeking process to interfere with his obtaining employment after graduation.  Armstrong ended up taking unpaid internships while continuing his job search.  Although he had a modestly-compensated job by the time of trial, he testified about his concern that the notoriety around this case would adversely affect his future job searches.

Judge Gibbons also found that there was “significant evidence of the emotional harm that Armstrong suffered,” and so the court upheld the award of compensatory damages and punitive damages.

But the court agreed with Shirvell that the trial court’s instructions misled the jury into awarding duplicative damages for defamation and false light invasion of privacy.  Although Michigan law allows a plaintiff to sue for defamation and false light invasion of privacy in the same case, the two theories are so highly related that the plaintiff may “have but one recovery for a single instance of publicity,” according to a state court precedent cited by Judge Gibbons.  “Here, the jury found that seventy-seven of Shirvell’s statements constituted false light.  The jury found that each one of those statements also constituted defamation.  It then awarded a total of $1.25 million in damages for defamation and $1 million for false light.  It did not specify whether each statement generated damages for the defamation claim or the false light claim.  This suggests that the verdict allowed Armstrong to recover for the same harm under two separate theories.”

Such a duplicative recovery is not allowed, so the court of appeals cancelled the damage award for the false light claims, finding that they had already been compensated through the defamation damage award.  This reduced the overall verdict from $4.5 million to $3.5 million.  Neither of those sums seems likely ever to be actually collected by Armstrong, unless the hapless Mr. Shirvell has suddenly become a fabulously wealthy internet entrepreneur.  At this point, the verdict seems more about symbolic vindication.


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California Supreme Court Revives Mandatory Sex Offender Registration for Non-Vaginal Sex With Minors

The California Supreme Court ruled 5-2 on January 29, 2015, that the state’s sex offender registration law does not violate equal protection when it gives courts discretion whether to impose a registration requirement on adults who engage in vaginal intercourse with minors age 16 or 17, but mandates registration for other sexual acts involving minors of those ages.  Johnson v. Department of Justice, 2015 WL 363184.  The decision overruled a 2006 case, People v. Hofsheier, 37 Cal.4th 1185, in which the court had ruled that all adults who had sex with 16 or 17 year olds were similarly situated and that there was no rational basis for the differential treatment, so that judges should be able to exercise discretion about whether to require registration in all cases.

The dissent, by Justice Kathryn Werdegar with the concurrence of Justice Goodwin Liu, argued that the distinction had a homophobic origin and would disparately harm gay people.  Justice Werdegar argued that the court’s departure from its general rule of not overruling recent decisions was not warranted in this case.  The court’s opinion was written by Justice Marvin Baxter, who had dissented in 2008 when the court ruled that same-sex couples were entitled to marry and that sexual orientation is a suspect classification for purposes of equal protection under the California Constitution.

Justice Werdegar’s dissent sets out the background for the distinction in registration requirements, dating back to 1947, when the sex offender registration statute listed oral sex and sodomy with a minor as registerable offenses, but did not list sexual intercourse with a minor.  (Sexual intercourse is defined for purposes of the statute as vaginal intercourse.)  At the time, the statute required registration for all oral sex, even if it involved only consenting adults.  Back then, the only lawful sex act in California was vaginal intercourse involving a married couple.  Subsequent liberalization of the sex crimes laws led to passage of the Brown Act in 1975, which decriminalized consensual sex between adults, including gay sex.  The legislature also gave the courts discretionary authority to order sex offender registration in cases involving vaginal intercourse between adults and minors, but retained mandatory registration for all other sex acts involving minors.  One of the results of this change was that men who faced multiple charges including both oral and vaginal sex with a minor could plea bargain their cases down to avoid mandatory registration.  This option was not available to gay men charged with sexual activity with teenage boys in the specified age range, for whom registration was mandatory.

Justice Baxter asserted that the 2006 case in which the court found the equal protection violation had been intended to make a narrow exception, involving a young man who had consensual oral sex with a teenage girl, but that the lower courts in California had run with it to reject mandatory registration in cases involving much wider age gaps.  Painting a picture of disarray in the lower courts, a majority of the Supreme Court decided to reexamine its prior ruling.

The starting point for that analysis is that there is no constitutionally protected liberty interest for adults to have sex with minors, as the U.S. Supreme Court implied in Lawrence v. Texas when it emphasized that its ruling striking down the Texas Homosexual Conduct Law was focused on sexual activities of consenting adult same-sex couples.  Since no fundamental right is involved, wrote Baxter, the legislature’s policy choice is reviewed under the rational basis test.  Any legitimate reason for the distinction in treatment that the court might hypothesize could serve to uphold the law.

In the 2006 case, the court had ruled that there was no practical difference between vaginal intercourse and other forms of sex that would justify a different treatment, as they were all equality outlawed if minors were involved but legal as between adults.  Baxter disagreed, writing for the court that because vaginal intercourse could lead to pregnancy and other forms of intercourse could not, the legislature could rationally treat it differently.  The state is concerned with the welfare of children, and children born as a result of consensual intercourse between a man and a 16 or 17 year old girl could be disadvantaged if their father, stigmatized as a registered sex offender, was restricted as to where he could live and might be excluded from a wide range of employment opportunities.  Thus, ruled the court, it was rational for the legislature to authorize judges to exercise their discretion about whether to mandate registration in such cases.

In her dissent, Justice Werdegar contended that this avoided the important question whether such discretion should be afforded in all cases so that judges could consider whether mandatory registration would be appropriate in cases involving oral or anal sex as well.  There might be many reasons to distinguish among cases, especially where the adult and the teen are relatively close in age and their relationship was consensual.  She noted that most of the enforcement of the “statutory rape” laws, under which otherwise legal sex is outlawed because of the age of a participant, tends to be targeted against gay men, and that mandatory sex offender registration could just as severely affect them as it might affect straight men who get teenage girls pregnant.   And this targeting was originally because of moral disapproval of homosexuality, as exemplified by a 1974 California court decision, rejecting a constitutional challenge to the mandatory registration requirement, which said that “the defendant’s arguments were those of ‘the congenital homosexual to whom that is natural which the vast majority of the population deems unnatural.'”

She observed that a 1966 UCLA Law Review study of sex crimes enforcement practices “found that police officers, when they had a choice of statutes under which to arrest gay men, consciously chose those offenses requiring registration. . ., the ‘predominant view’ being that ‘homosexual offenders should be registered.’  In interviews, officials gave various reasons for wanting to register homosexuals, including the beliefs that they were prone to commit forcible sex offenses or offenses against children and that requiring registration would discourage homosexual conduct.”

The differential registration requirements, she wrote, perpetuate the old distinction between heterosexuality as “normal” and homosexuality as “abnormal.”  “Indeed, as the majority notes, when the prohibition on sexual intercourse with underage girls was removed from California’s rape statute and designated as the new offense of ‘unlawful sexual intercourse,’ the principal goal was to eliminate the social stigma of labeling offenders as ‘rapists,'” she observed.  This reflected legislators’ views that apart from the age of the younger sex partner, there was nothing abnormal or necessarily immoral about heterosexual men having vaginal intercourse with teenage girls.

“What is clear,” she wrote, “is that even in 1970, when all oral copulation was still banned as a sexual perversion, sexual intercourse with a minor was deemed unworthy of social stigma.  The difference in attitude towards oral copulation and sexual intercourse reflected in [the] differential registration requirement is thus a continuation of historical attitudes: while sexual intercourse with minors was an offense, the act itself was a normal one not considered deserving of any social stigma; oral copulation, in contrast, was an unnatural act typically engaged in by homosexuals.”

Criticizing the majority for its proposed “rational basis” for the continuing distinction, she wrote: “Careful attention to whether a posited reason is plausible and realistic is particularly appropriate here given that our registration law’s differential treatment of oral copulation and sexual intercourse has origins in irrational homophobia, continues to impact gay people in a differentially harsh way (as those in a same-sex relationship cannot plead to the discretionary registration offense of unlawful sexual intercourse) and involves severe restrictions on liberty and privacy.  We should hesitate to approve a statutory discrimination that may still bear the taint of irrational prejudice against homosexuals.”

Of course, there is a ready solution to this problem.  The California legislature, which has a large majority of gay-friendly Democrats in both houses, could immediately end this discrimination by giving judges discretionary authority in all cases of sexual contact between adults and minors to determine whether sex offender registration is an appropriate response to the charged offense, taking into account the age of the parties and the circumstances under which the activity occurred.  Justice Werdegar’s dissent is a clear call for legislative reform, as she explains that by overruling the 2006 decision, “the majority reinstates a scheme that had a disproportionately adverse effect on gay and lesbian youth and unnecessarily saddled nonpredatory offenders of either sexual orientation with the stigma and restricted liberties attendant on sex offender registration.  Adherence to stare decisis is not a rigid command, but in this instance it is the wiser course; Hofsheier should not be overruled.”



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Federal Judge Voids Alabama Same-Sex Marriage Ban

U.S. District Judge Callie V. S. Granade ruled on January 23 that Alabama’s constitutional and statutory ban on same-sex marriage violates the 14th Amendment.  Her ruling in Searcy v. Strange, 2015 U.S. Dist. LEXIS 7776 (S.D. Alabama), released on a Friday afternoon, did not make any mention of a stay pending appeal, but the public announcement of its release came too late in the day for same-sex couples to apply for licenses at county clerks’ offices, which were closed for the weekend.  Anticipating the possibility that same-sex couples would seek licenses when offices opened on Monday morning, Attorney General Luther Strange filed a motion seeking a stay on Friday night, arguing that the state should not be required to issue marriage licenses to same-sex couples unless the Supreme Court ruled in favor of same-sex marriage in a decision that is widely-expected to be issued late in June.

[Update note on January29: Judge Granade granted the state a 14-day stay to February 9 to give it a chance to ask the 11th Circuit for a stay pending appeal.  She also issued second opinion in the case of a gay male couple seeking the right to marry, Strawser v. Strange, and, dismissing the argument that her first ruling was binding only on the parties and not on the state’s Probate Judges, who issue marriage licenses and register marriages, she issued a “clarifying opinion” that quoted from the New Year’s Day opinion by Florida District Court Judge Robert Hinkle, making clear that her declaration of unconstitutionality was binding on all state officials, not just the Attorney General.  Responding to that, the state’s Probate Judges Association announced a change in its view, assuring that its members statewide would issue licenses to same-sex couples if and when the stay is lifted.  Attorney General Strange promptly filed a notice of appeal and motion for a stay with the 11th Circuit.  The National Center for Lesbian Rights’ legal director Shannon Minter will represent the Strawser plaintiffs in defending their victory in the expected appeal by Strange.]

Alabama is in the same federal circuit as Florida, the 11th, where a federal court declared that Florida’s same-sex marriage bans are unconstitutional last summer but twice stayed its ruling, first to see what the Supreme Court would do with several pending petitions in marriage equality states (which were denied on October 6), and then to allow the state to seek a stay of the ruling from the 11th Circuit.  In December, a panel of the 11th Circuit refused to stay the Florida ruling and the Supreme Court also refused to stay it, with two justices, Antonin Scalia and Clarence Thomas, noting that they would have granted the stay.  As a result, the Florida ruling went into effect on January 5, even though the 11th Circuit has not yet ruled on a marriage equality case.  This sequence of events suggests that Alabama should not be able to get a stay.  The one intervening event that might suggest otherwise is the Supreme Court’s announcement on January 16 that it was granting petitions from plaintiffs in four states to review the 6th Circuit’s decision rejecting constitutional challenges to  same-sex marriage bans in Ohio, Michigan, Tennessee and Kentucky, thus creating an argument that any new developments in lower federal courts on marriage equality should wait for the Supreme Court’s ruling in that case.  However, although the Supreme Court had not yet conferenced the various petitions from the 6th Circuit at the time it denied the Florida stay request on December 19, the justices were certainly aware of those petitions and the likelihood that they would be granted when it denied that stay.  Since the Supreme Court does not explain its decisions on stay motions, however, lower courts are left to guess at what they should mean for subsequent stay requests.

The Attorney General’s motion for stay relies heavily on the many stay decisions that were issued by lower federal courts during 2014 on the ground that the possibility of Supreme Court review required maintaining the “status quo” rather than allowing a marriage ruling that might ultimately be reversed go into effect.  Attorney General Strange repeated the arguments of his colleagues from other states, asserting that allowing same-sex marriages prior to a final definitive ruling could lead to “confusion” about the status of the marriages.  A few courts have now ruled, however, that there is no confusion about the status of such marriages, upholding the validity of same-sex marriages performed in Utah and Michigan under analogous circumstances.

Judge Granade, who was appointed to the bench by President George W. Bush in 2001 and took office in 2002, wrote a brief but decisive opinion, shorter than almost all the marriage equality opinions released by federal district judges since the first in Utah in December 2013.  Her bottom line was that the state had not articulated a rational basis for excluding same-sex couples from marriage, much less the compelling interest that would be necessary to sustain a deprivation of the fundamental constitutional right to marry.

The case was brought on behalf of Cari D. Searcy and Kimberly McKeand by private counsel, and is one of several marriage equality cases pending in Alabama.  The women were legally married in California.  McKeand bore a son through donor insemination and the couple wanted to have the child formally adopted by Searcy under a provision of Alabama’s adoption law that allows a person to adopted their “spouse’s child,” but she was turned down by the Mobile County Probate Court, which ruled that Alabama’s “Sanctity of Marriage Amendment” and “Marriage Protection Act” barred the court from treating Searcy as McKeand’s “spouse.”  This denial was upheld by the Alabama Court of Civil Appeals and the women turned to federal court, seeking both a ruling that the state’s marriage ban is unconstitutional and an order prohibiting the state from enforcing it.

In blatant defiance of the 1st Amendment of the U.S. Constitution, the Alabama marriage amendment refers to marriage as “a sacred covenant,” and thus belies the religious motivations of its framers, but the lawsuit by Searcy and McKeand did not attack it on that basis.  Instead, building on the wave of marriage equality rulings issued by district courts in the wake of the Supreme Court’s 2013 decision striking down the Defense of Marriage Act, U.S. v. Windsor, they asserted a violation of the 14th Amendment Due Process and Equal Protection Clauses.

The state’s first line of defense was to argue that the lawsuit must be rejected because of Baker v. Nelson, in which the Supreme Court summarily dismissed a challenge to Minnesota’s ban on same-sex marriage in 1972, saying that it did not raise a “substantial federal question.”  Judge Granade rejected this argument, pointing out that almost all of the federal courts that have ruled in marriage cases since 2013 have found it to have been superseded by later “doctrinal developments.”  At the appellate level, the only outlier from this virtual consensus has been the 6th Circuit Court of Appeals, whose November 7 ruling will be reviewed by the Supreme Court.  The 2nd, 4th, 7th, 9th, and 10th Circuits have all agreed that Baker is no longer a binding precedent on lower federal courts.

Turning to the 14th Amendment arguments, the judge noted that in the 11th Circuit she is bound to apply the rationality test in equal protection cases involving sexual orientation discrimination because of prior decisions by the circuit court.  She observed, however, that “the post-Windsor landscape may ultimately change the view” that the 11th Circuit had previously expressed, although “no clear majority of Justices in Windsor stated that sexual orientation was a suspect category.” (The 9th Circuit has disagreed, ruling last year that because of Windsor lower federal courts must apply “heightened scrutiny” to sexual orientation discrimination claims.)

In a case involving a fundamental right, however, a higher level of scrutiny is applied both under due process and equal protection theories.  “Numerous cases have recognized marriage as a fundamental right,” she wrote, “describing it as a right of liberty, of privacy, and of association.”  She quoted from a series of Supreme Court decisions describing the “strict scrutiny” that must be applied in reviewing laws that deprive individuals of this liberty.  Under that approach, the defendant “cannot rest upon a generalized assertion as to the classification’s relevance to its goals,” she wrote, quoting from a 1989 Supreme Court opinion concerning racial preferences in government contracting.  Instead, the government’s burden is to show that the law is “narrowly tailored” to achieve a “compelling interest.”

The state’s policy argument in support of its ban was based on its asserted “legitimate interest in protecting the ties between children and their biological parents and other biological kin.”  This did not impress Judge Granade as sufficient.  She wrote, “The Court finds that the laws in question are not narrowly tailored to fulfill the reported interest.  The Attorney General does not explain how allowing or recognizing same-sex marriage between two consenting adults will prevent heterosexual parents or other biological kin from caring for their biological children.  He proffers no justification for why it is that the provision in question singles out same-sex couples and prohibits them, and them alone, from marrying in order to meet that goal.  Alabama does not exclude from marriage any other couples who are either unwilling or unable to biologically procreate.  There is no law prohibiting infertile couples, elderly couples, or couples who do not wish to procreate from marrying.  Nor does the state prohibit recognition of marriages between such couples from other states.”

“The Attorney General fails to demonstrate any rational, much less compelling, link between its prohibition and non-recognition of same-sex marriage and its goal of having more children raised in the biological family structure the state wishes to promote,” she continued.  “There has been no evidence presented that these marriage laws have any effect on the choices of couples to have or raise children, whether they are same-sex couples or opposite-sex couples.  In sum, the laws in question are an irrational way of promoting biological relationships in Alabama.”

The judge also pointed out that if the state’s goal is “promoting optimal environments for children,” it was defeating its goal.  “Those children currently being raised by same-sex parents in Alabama are just as worthy of protection and recognition by the State as are the children being raised by opposite-sex children,” she asserted.  She quoted from Supreme Court Justice Anthony M. Kennedy’s opinion in U.S. v. Windsor, where he asserted that a law denying recognition to same-sex marriages “humiliates thousands of children now being raised by same-sex couples” and “brings financial harm” to them.  “Additionally,” she wrote, “these laws further injure those children of all couples who are themselves gay or lesbian, and who will grow up knowing that Alabama does not believe they are as capable of creating a family as their heterosexual friends.”

Having found the bans unconstitutional, Judge Granade granted the plaintiffs’ motion for summary judgment and denied the state’s contrary motion, ordering that the defendant, Attorney General Luther Strange, who was sued in his capacity as the state’s chief legal officer, be enjoined from enforcing those laws.  The judge made no mention of whether the state had taken the precaution of asking for a stay as part of its summary judgment motion papers, and did not respond immediately to the motion for stay filed several hours later by the Attorney General’s office.

According to the organization Freedom To Marry, the Alabama ruling is the 60th decision in favor of marriage equality that has been rendered since the Supreme Court’s 2013 DOMA decision, mostly by federal trial judges.  On the other side of this equation are a mere handful of state and federal trial-level rulings.


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