New York Law School

Art Leonard Observations

American Symphony Orchestra Examines Obscure Works of Major Composers

Last night at Carnegie Hall, the American Symphony Orchestra presented “Opus Posthumous,” a concert devoted to works that were not first performed until after the deaths of their composers. These included an opera overture by Franz Schubert to an opera never published or performed in his lifetime, Anton Bruckner’s Symphony No. 00 (a study symphony he composed but did not consider suitable for performance), and Antonin Dvorak’s Symphony No. 1, which was composed for entry into a composition contest. Dvorak sent his only copy of the handwritten manuscript, which was never returned to him, and the work was long thought lost, only to show up years later in a bookstore where it was purchased by somebody who shared the composer’s surname but was not a relative. The piece was first performed long after the composer’s death, and then in an abridged version.

This was a very pleasant concert of 19th century romantic music, but none of the works is an imperishable masterpiece. Indeed, my opinion after the concert was that Dvorak was lucky the piece was not played when it was written, because it could have impeded his career.  The orchestration is amateurish in places, creating a heavy and clotted effect, and the development of the themes is unduly repetitious.  Some good ideas are just buried under clumsy orchestration, unfortunately. 

Dvorak and Bruckner were late bloomers as mature symphonists.  Dvorak wrote nine symphonies, but published only the last five, and until mid-20th century, most music lovers would say their favorite was Dvorak’s Symphony No. 5, the “New World Symphony.”  By the time I was learning about classical music in the 1960s, it was usually identified as Symphony No. 9 (old “No. 5″), as by then the earlier unpublished symphonies had been edited and published in a complete edition of Dvorak’s music.  But the first four symphonies are rarely performed, as he really didn’t hit his stride until “old No. 1,” which is now known as Symphony No. 6.  Old No. 2 became Symphony No. 7, Old No. 3 became Symphony No. 5, and Old No. 4 became Symphony No. 8.  This is all ancient history for the generation of classical music lovers following me.  With Bruckner, there is last night’s Symphony No. 00, then his first published Symphony, No. 1, then Symphony No. 0 which comes before Symphony No. 2.  Bruckner was very self-critical and withheld pieces from publication if they didn’t meet his high standards.  Bruckner’s situation is complicated by his tendency to revise, abetted by some of his younger supporters who thought his music would be more readily accepted if he would just shorten things!  So there are multiple versions of most of the published symphonies, including so many versions of Symphony No. 3 and Symphony No. 4 (two completely different versions of one of the movements are floating about) that one can easily lose count.

Last night’s Bruckner was a pleasant student work that shows few signs of the mature composer.  Indeed, it sounded much like the Schubert overture that came before it on the program.

There’s nothing seriously wrong with any of these pieces, but none of them stand to become part of the standard orchestral repertory, as they are put in the shade by other works of the composers. The ASO played them all very well under Leon Botstein’s direction, as members of the audience had a rare opportunity to hear works by major composers that they are not likely to get to hear in live performance ever again! This is central to the ASO’s mission under Botstein’s leadership.  To cast light in dark corners….

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Federal Court Orders Stay of New Family & Medical Leave Act Regulation

U.S. District Judge Reed O’Connor, sitting in the U.S. District Court for the Northern District of Texas in Wichita Falls, issued an order on March 26 requiring the U.S. Department of Labor to stay the implementation of a new regulation that changes the definition of “spouse” under the federal Family and Medical Leave Act to include same-sex couple, wherever they reside, who were married in a jurisdiction that allows same-sex marriages. State of Texas v. United States of America, 2015 U.S. Dist. LEXIS 38264. Judge O’Connor’s order was part of a preliminary injunction awarded to the states of Texas, Arkansas, Louisiana and Nebraska, who joined together as co-plaintiffs in a case originally filed by Texas Attorney General Ken Paxton.

It was unclear from the court’s order whether the regulation was stayed in all of its applications, or just as applied to the state government acting as employers. It was also unclear whether it would apply just to the four co-plaintiff states, or to all states that do not presently recognize same-sex marriages.

The Family and Medical Leave Act, enacted during the Clinton Administration in 1993, requires employers with 50 or more employees to make unpaid leave available for certain purposes to full-time employees after they have completed a year of service. The FMLA also applies to state governments acting as employers.

Family leave could include time off to take care of a spouse or child with health problems. The statute defined “spouse” as “a husband or wife, as the case may be.” Regulations proposed by the Labor Department in 1993 provided that “spouse” means “a husband or wife as defined or recognized under state law for purposes of marriage in states where it is recognized.” In 1995, the Department published a “final rule” making clear that the law of the state where an employee resides would control for purposes of determining spousal status.

After the Supreme Court struck down Section 3 of the Defense of Marriage Act in 2013, the federal government came under the constitutional obligation to recognize legally-married same-sex couples. However, many states withhold such recognition, and the existing FMLA regulation would thus withhold the federal benefit entitlement from married same-sex couples living in states that did not recognize their marriages.

The Labor Department proposed to solve this problem by issuing a new regulation, changing the definition of “spouse” to include all legally-married same-sex couples, regardless where they live. The proposed regulation was published in the Federal Register, comments were received and studied, and a final rule was published in the Federal Register, to go into effect on March 27.

Texas Attorney General Paxton’s lawsuit claimed that the Labor Department could not change the definition of spouse for state government employers. For one thing, he argued, Section 2 of the Defense of Marriage Act, which the Supreme Court did not address in its DOMA decision, specifically provides that states are not required to recognize same-sex marriages performed in other states. For another, he argued, the Supreme Court’s ruling acknowledged that states are entitled to decide who can marry and whose marriages will be recognized within their borders. According to this reading of the case, U.S. v. Windsor, Section 3 of DOMA was unconstitutional because Congress does not have authority to withhold recognition for federal purposes of marriages that states allow and recognize. This is the view, argued by Chief Justice John Roberts in his concurring opinion, that Windsor is essentially a “federalism” case. It’s a view that Justice Anthony Kennedy specifically disclaimed in his opinion for the Court, however, and the question of how to characterize that decision is a topic of lively debate among legal scholars and lower court judges.

Paxton argued that the Labor Department can’t order Texas through a regulation to recognize marriages contrary to the Texas Constitution and statutes, especially when that regulation conflicts with Texas’s right, under Section 2 of DOMA, to refuse to recognize the marriages.

Although there is a respectable body of scholarly opinion that Section 2 of DOMA is unconstitutional, and many federal courts, including four circuit courts of appeals, have ruled that states are required to recognize legally contracted same-sex marriages, the Supreme Court will not speak on the merits of these issues until it rules in Obergefell v. Hodges, most likely in June after the April 28 oral argument in Washington.

Until then, Judge O’Connor pointed out, the district court is bound by existing precedents in the 5th Circuit. Although a panel of the 5th Circuit heard arguments in several marriage equality appeals early in January, it has yet to issue a decision. Since prior 5th Circuit precedents mandate that trial judges in the circuit use the most deferential standard of judicial review when considering laws that discriminate because of sexual orientation, and Section 2 of DOMA is still in effect, Judge O’Connor concluded that a state government employer cannot be compelled by a federal regulation to recognize same-sex marriages performed in other states.

This is only a preliminary injunction, and Judge O’Connor cautioned that upon a full consideration of the merits there might a different conclusion, especially if that takes place after either the 5th Circuit or the Supreme Court rules on pending marriage equality cases. So this stay may turn out to be a temporary road-bump on the path to equal treatment for married same-sex couples living in states that don’t recognize their marriages.

Although Judge O’Connor’s legal analysis concluded that the Labor Department could not by regulation order states to recognize same-sex marriages, his stay was phrased in more general terms: “The Department of Labor must stay the application of the Final Rule, pending a full determination of this matter on the merits.” This might just mean that for now the rule does not apply to government workplaces in Texas and the other plaintiff states, but can go into effect for other workplaces. That’s what it should mean to be consistent with the court’s reasoning. The test will come when a private sector employee in Texas requests FMLA leave to care for a same-sex spouse, is turned down, and seeks vindication in the courts. But the entire problem may disappear when the Supreme Court rules in June.

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Missouri Appeals Court Frees Gay Man from Sex Offender Registration Requirement

In 1988 Jerome Keeney, Jr., was arrested in a typical sting operation by a St. Louis County vice cop, and pled guilty in 1989 to the charge of attempted “sexual misconduct.”   His crime?  Groping an undercover police officer who specifically sat with him in his parked car at a highway rest stop and chatted him up seeking to provoke such a move.  The St. Louis County Circuit Court imposed a suspended sentence (no jail time) and two years’ probation.  So he thought that was the end of it.

Flash forward to January 8, 2010, when Keeney was instructed to file a registration with the Missouri Sex Offender Registry on account of that 21-year-old guilty plea.  Outrageous, especially considering that the offense to which he pled guilty was no longer a crime.  He had been charged with attempting to violate the Missouri sodomy law, which became unenforceable due to the U.S. Supreme Court’s 2003 decision in Lawrence v. Texas, and which was subsequently repealed by the Missouri legislature.

So Keeney protested and filed a Petition with the St. Louis County Circuit Court, arguing that he should not be required to register.  The trial judge, Robert S. Cohen, ruled against him, holding that his conduct in 1988 was not innocent at the time, that it was “in public” and so not constitutionally protected because Lawrence v. Texas only protected consenting sexual conduct in “the home,” and that it was not consensual.  Indeed, the state produced an affidavit from the plainclothes police officer, sworn to in 2014, claiming that it was not consensual.  Keeney had leaned over and groped him, said the officer, without his permission.

Keeney appealed, and the Missouri Eastern District Court of Appeals ruled in his favor on March 24 in Keeney v. Fitch, 2015 Mo. App. LEXIS 307.  A unanimous three-judge panel ruled that Keeney should not be required to register.

Writing for the court, Judge Sherri B. Sullivan filled in the history.  In 2006, Congress passed a law instructing states to set up sex offender registration systems and require previously convicted sex offenders to register.  The definition of a “sex offender” in the federal statute is “an individual who was convicted of a sex offense,” which includes “a criminal offense that has an element involving a sexual act or sexual contact with another” and “an attempt or conspiracy to commit” that sexual act or contact.  The federal law specifically applies to convictions under state sex crimes laws.

Missouri had enacted its own registration law back in 1994, which was amended in 2006 to provide that anybody required to register as a sex offender under federal law was also required to register under the state law.

Keeney had pleaded guilty to a charge of attempting to violate a Missouri law that provided that “a person commits the crime of sexual misconduct if he has deviate sexual intercourse with another person of the same sex.”  The charge was that his groping of the vice cop was a prelude to oral or anal sex that would violate the statute.  But, Judge Sullivan pointed out, this Missouri law was “in all relevant respects identical” to the Texas law struck down in the 2003 Supreme Court decision.

The Missouri legislature had amended the law several times after Keeney’s arrest, but the most significant amendment, in 2006, removed the reference to “deviate sexual intercourse with another person of the same sex.”  As of 2006, the statute defines “sexual misconduct” to include when a “person purposely subjects another person to sexual contact without that person’s consent.”  This explains why the state, in opposing Keeney’s new lawsuit, produced an affidavit from the vice cop claiming the he had not consented to be groped by Keeney.

Missouri’s old sodomy law had been challenged in state court, but the challenge was rejected in 1986, two years before Keeney’s arrest.  In 2013, in a dissenting opinion in the Missouri Supreme Court, several justices commented that the 1986 decision was “no longer viable in light of  Lawrence v. Texas.”

“Homosexual deviate sexual intercourse is no longer a sexual offense in Missouri,” wrote Judge Sullivan.  “A such, there is no logical existent reason to require Appellant to register on the sexual offender registry.”  Although there is no procedure available for Keeney to get the court to vacate his 1989 guilty plea, he can sue to get a declaration that he does not have to register as a sex offender, contrary to what Judge Cohen had ruled in rejecting his case.

The court rejected the state’s attempt to try to expand upon the 1988 charges in order to label Keeney’s conduct as still unprotected by Lawrence v. Texas because it was not “consensual” and took place “in public.”  He was charged with attempting to violate the sodomy law, Sullivan pointed out.  “From the defendant’s perspective,” she wrote, “for his guilty plea to be a voluntary and intelligent admission that he committed the offense leveled against him by the prosecutor, the defendant must receive real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.  The prosecutor’s choice in charging Appellant in 1988 cannot be revisited or revised today.  Appellant’s plea is now a part of history.  Additionally, it nearly goes without saying that Respondents also cannot bring forward newly manufactured evidence, i.e., Detective Bayes’s 2014 affidavit, to support a new theory of Appellant’s culpability.”

Besides, Sullivan pointed out, Detective Bayes specifically went to that location to attract solicitations from gay men, since his goal was to “rid the area of homosexual behavior.”  Getting somebody to grope him so he could make an arrest “would be considered a success by Detective Bayes” given his mission.  “To characterize himself today as a victim of unwanted sexual touching by Appellant that night is incongruous.”

The court raised the same objection to the state’s attempt to introduce the “public sex” issue, since once again that was not a focus of the 1988 charges against Keeney.  Since the state did not charge him “with a crime with a public aspect to it” at that time, that was no longer relevant to whether he should have to register based on that guilty plea.

The court concluded that Judge Cohen erred in not granting Keeney’s motion for summary judgment, reversed Cohen’s judgment, ordered Cohen to grant Keeney the declaratory judgment he sought, and ordered the state officials to “remove Appellant’s name and all other registration information from the Missouri Sex Offender Registry.”

Keeney was represented by St. Louis Attorney Michael T. George.  The court noted that its decision is not final until expiration of the time in which the state can file a motion for rehearing, most likely a mere formality.

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Puerto Rico Urges Reversal of Anti-Marriage Equality Ruling

In an unusual turnabout, the Commonwealth of Puerto Rico, respondent in Lambda Legal’s appeal of the anti-marriage equality ruling in Conde-Vidal v. Garcia-Padilla, 2014 WL 5361987 (D. P.R., Oct. 21, 2014), is urging the 1st Circuit Court of Appeals to reverse the district court’s ruling that dismissed the challenge to the Commonwealth’s ban on licensing or recognizing same-sex marriages.

Lambda Legal sued on behalf of several same-sex couples seeking either to marry in Puerto Rico or to have their marriages from other jurisdictions recognized there.  U.S. District Judge Juan M. Perez-Gimenez granted the government’s motion to dismiss the case, holding that the complaint did not state a claim because of the Supreme Court’s ruling in Baker v. Nelson, 409 U.S. 810 (1972), which reject an appeal from an adverse ruling by the Minnesota Supreme Court, that the issue of same-sex marriage did not present a “substantial federal question.”  Judge Perez-Gimenez found that the Supreme Court had never overruled this decision, and as a lower federal court judge he was bound by it, rejecting the argument that subsequent rulings by the Supreme Court had rendered Baker a nullity.  Nonetheless, he also proceeded to find that the state had a rational basis to distinguish between same-sex and different-sex couples, relying on arguments that have been repeatedly rejected by several dozen other federal courts (including four circuit courts of appeal) over the past two years.  Plaintiffs appealed to the 1st Circuit, and Puerto Rico’s responsive brief was due to be filed on March 20.

The brief filed over the names of Solicitor General Margarita Mercado-Echegaray and Assistant Solicitor General Andres Gonzalez-Berdecia observed that the Supreme Court’s decision in January to grant petitions for certiorari seeking review of the 6th Circuit’s decision in DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014), as well as the Supreme Court’s refusal to stay marriage equality rulings in response to every stay petition filed since October 6, 2014 (including a stay petition filed by Alabama after the Court had granted the cert. petition), meant that clearly Baker v. Nelson was no longer controlling on the district court.  If same-sex marriage does not present a substantial federal question, then the Court would not have granted cert. to review the 6th Circuit’s decision, which was premised in part on Michigan’s contention that Baker v. Nelson bound the lower federal courts to deny marriage equality claims.  Although Puerto Rico had won its motion to dismiss by advancing Baker v. Nelson as a determinative precedent, that argument is no longer available before the 1st Circuit in light of these subsequent developments.

Furthermore, wrote Puerto Rico’s lawyers, they agree with the plaintiffs’ contention that denying the right to marriage to same-sex couples implicates a fundamental right.  If it is open to the court to proceed to the merits, then some form of heightened or even strict scrutiny would apply.  Although an equal protection claim in the 1st Circuit was accorded only rational basis review in that circuit’s pre-Windsor cases, it was possible that heightened scrutiny might be applied to such a claim as well.  Under either theory, the lawyers conceded, the ban on same-sex marriage was no longer defensible.

“It is not usual for the Executive Branch of the Commonwealth of Puerto Rico to refuse to defend the constitutionality of legally-enacted statues,” they wrote.  “It is even less usual to adopt a somewhat different position at the appellate level than the one espoused before the lower court.  But this is not a usual case and neither the law nor common sense requires us to treat it as such.  In a constitutional democracy there are some rights that have been reserved to the People directly and which no government may infringe, regardless of individual or personal views on the matter. ‘Our obligation [like this Court’s] is to define the liberty of all, not to mandate our own moral code.’ Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850 (1992).  Article 68 of the Civil Code of Puerto Rico excludes LGBT couples from the legal entitlements and rights attendant to civil marriage.  Thus, the Commonwealth of Puerto Rico acknowledges that the statute in controversy raises substantial constitutional questions anent the constitutional guarantees of equal protection of the laws and substantive due process.”

They continued: “Because Puerto Rico’s marriage ban impermissibly burdens Plaintiffs’ right to the equal protection of the laws and the fundamental right to marry, we have decided to cease defending its constitutionality based on an independent assessment about its validity under the current state of the law. . .  If History has taught us anything, it is that ‘times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.  As the Constitution endures, persons in every generation can invokes its principles in their own search for greater freedom.’  Lawrence, 579 U.S. at 579.  This case represents but another attempt from a politically disadvantaged group of our society to be included within the full scope of the legal and constitutional protections that most of us take for granted.  Plaintiffs seek no preferential treatment; only equality.  The Executive Branch of the Commonwealth recognizes the LGBT community’s right to equality under the law.”

It is unclear from the brief whether the government is asking the 1st Circuit to issue a final ruling on the merits, or merely to reverse the motion to dismiss and remand the case for further proceedings in the district court.  However, if the 1st Circuit were just to reverse the dismissal order, it is likely that the Supreme Court will have issued its ruling, anticipated to come by the end of June, before the district court would get around to issuing a ruling on a subsequent motion for summary judgment by the plaintiffs.  In any event, if the appeal before them is unopposed, it might be appropriate for the 1st Circuit to dispense with oral argument, reverse the district court without an opinion, and remand the matter to the district court for further proceedings.

In the meantime, however, it was clear that there was not unanimous support in Puerto Rico for the government’s action, as some local legislators called for action to defend the statutory marriage ban before the 1st Circuit.  Although the defendants-appellees will not defend the statute, it is possible that the legislature will authorize some kind of attempted intervention to present a defense.  It seems clear that relying on Baker v. Nelson is no longer viable; even Supreme Court Justice Clarence Thomas, no supporter of same-sex marriage, opined in his dissent from the denial of a stay in the Alabama case that the topic presents an important constitutional question, so the dismissive 1972 statement no longer applies.  But the never-say-die opponents of marriage equality continue to insist, as the 6th Circuit majority held, that the question of “defining” marriage should be left to the political process, and that an institution whose heterosexual definition dates back millennia cannot have suddenly become unconstitutional, and they will undoubtedly attempt to put such arguments before the 1st Circuit – even though that Circuit has essentially rejected them in its ruling striking down Section 3 of DOMA, Commonwealth of Massachusetts v. U.S. Dep’t of Health & Human Services, 682 F.3d 1 (1st Cir. 2012), cert. denied, 133 S. Ct. 2884, 133 S. Ct. 2887 (June 27, 2013).

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A Triumphant Weekend at Peoples’ Symphony Concerts – Johannes Quartet & ECCO

This weekend Peoples’ Symphony Concerts in New York presented two excellent concerts.  In the Arens Series at Washington Irving High School, we heard the Johannes String Quartet, joined with guests from the Guarneri String Quartet, violist John Dalley and cellist Peter Wiley.  In the Festival Series at Town Hall, we heard the East Coast Chamber Orchestra.  Each concert include one unusual “modern” work, although these were not necessarily the real highlights of the programs.

The Johannes Quartet is one of many fine chamber groups that have grown out of acquaintances formed at the Marlboro Music Festival, a summer program that brings together the most talented young musicians with a group of experienced professionals to study and play together.  I’ve heard them before at Peoples’ Symphony Concerts, and was eagerly anticipating this program.

They led off with “Homunculus for String Quartet” by Esa-Pekka Salonen, who is being heavily promoted these days by the music critics of the New York Times as a logical successor to Alan Gilbert as music director of the NY Philharmonic.  I was present decades ago at Mr. Salonen’s debut with the Philharmonic, and remember going to the green room to congratulate him at that time.  He subsequently became music director of the Los Angeles Philharmonic, while retaining important ties with orchestras in Europe.  He stepped down from the L.A. position after a long and successful run, commenting that he wanted to spend much more time composing.  This piece was one of the first fruits of his stepped-up compositional activity.  We had a special treat last night at Peoples’ Symphony because Salonen was present to speak about his piece prior to the performance.  He explained that the short duration was in response to the particular demands of the commission — to produce a short piece that would balance out a program of two full string quartets — so he wrote a quartet in miniature and named it “Homunculus” inspired by the primitive theory of human reproduction that posited the notion that each sperm is actually a tiny person waiting to be incubated.  He pointed out the reduction ad absurdum consequences of such a theory, which brought quite a laugh from the audience.  The piece turned out to be very listener-friendly — even more so than his large-scale orchestral works, which tend to be more busy and dissonant than this quartet.  I would not venture to say much more about it after a first hearing, other than that it certainly left me with the desire to hear it again and get better acquainted.

The first half was concluded with Felix Mendelssohn’s String Quartet No. 6, Op. 80, a work written by the composer in the last year of his life – 1847.  But that does not mean it is a “late work,” because unfortunately Mendelssohn died in his mid-30s.   As with Mozart, there is really no “late” period for this composer, alas.  The quartet begins in a vigorous manner, somewhat like the Salonen piece, making it a logical progression, and the Johannes gave it an excellent performance.

But the real treat for me was to hear a rare live performance after intermission of Johannes Brahms’s String Sextet No. 2, Op. 36, with Dalley and Wiley joining the group.  Because of the need for extra players, it is unusual to hear the Brahms sextets in concert.  They are extraordinary pieces, so hearing this is a real event.  Indeed, the piece has a symphonic feel, which was well projected by the ensemble last night.

PSC’s winning streak continued with ECCO this afternoon.  This is a conductorless ensemble of 18 string players who come together several times a year to work up programs for their own pleasure in creative interaction.  Many of them are parts of the string sections of major symphony orchestras or established chamber ensembles, but they enjoy the special freedom of tackling larger scale string orchestra works in chamber music style.  The results are very impressive.

They began with an early work of Osvaldo Golijov, “Last Round” from 1996, a piece that put me in mind at times of Astor Piazzolla.  They played it with lots of energy and polish.  This was followed by a tender Canzonetta for strings by Jean Sibelius, and an inflation to string orchestra size of Leos Janacek’s “Kreutzer Sonata” String Quartet.  I have to confess to a blind spot with Janacek:  although I like the sound of his music, I usually find my mind drifting off during it.  So I don’t have a strong recollection of this performance.

But after intermission came the real treat:  the piece that is the trademark of this group, Tchaikovsky’s Serenade for String Orchestra, Op. 48.  I’ve heard them play it before, and have their recording, but each time I hear them it is different and better than the previous performance.  This performance was truly magnificent.  The combination of precision, vigor, and spontaneity, was entrancing.  The third movement Elegy held the audience breathless.  While listening, I thought — just as I had each previous time — that this must be one of the greatest pieces ever written.  And that is surely the result of a superior performance as well as the genius of Tchaikovsky!

I hope they will continue to seek out new repertory, will continue to develop their extraordinary interpretation of the Tchaikovsky, and will return to PSC.   I would love to hear them play Kilar’s Orawa, as it would be a perfect showpiece for them!




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New Jersey Supreme Court Ruling Imperils Ravi Conviction in Bias Crime Case

A unanimous ruling by New Jersey’s Supreme Court in State v. Pomianek, 2015 N.J. LEXIS 275, 2015 WL 1182529 (March 17, 2015), striking down part of the state’s Bias Intimidation Law, may imperil the conviction of Dharun Ravi in the suicide of Tyler Clementi , the gay Rutgers University freshman who had been Ravi’s dormitory roommate.

The court’s ruling came in the case of David Pomianek, Jr., a white man who was convicted by a superior court jury of bias-harassment of an African-American co-worker by locking him in a cage at work for a brief period of time in what Pomianek considered to be a “harmless caper,” according to the opinion by Justice Barry Albin.

Under N.J.S.A. 2C:16-1(a)(3), a person could be convicted even though he did not intend to intimidate the victim or even have knowledge that the victim might be intimated by his conduct, so long as the victim felt intimidated and believed that he was being harassed because of a forbidden ground under the statute.  In this case it was race.  In the Ravi case, it was sexual orientation which, together with gender identity, are also forbidden grounds for harassment under the statute.

The jury in Pomianek’s case found a lack of intent or knowledge on his part on the bias charges, but convicted based on the victim’s perceptions of being harassed because of his race, as well as some other related charges.  Pomianek’s conviction under this provision was reversed by the New Jersey Appellate Division, which concluded that a conviction “based on the victim’s perception” and not on the “defendant’s biased intent” would violate the 1st Amendment.  The Appellate Division then “read into” the statute an intent requirement and sent the case back to the superior court for a new trial.

The state appealed, and the Supreme Court focused on the Due Process Clause of the 14th Amendment rather than the 1st Amendment.  “In focusing on the victim’s perception and not the defendant’s intent,” wrote Justice Albin, “the statute does not give a defendant sufficient guidance or notice on how to conform to the law.  That is so because a defendant may be convicted of a bias crime even though a jury may conclude that the defendant had no intent to commit such a crime.”   Since a defendant would not necessarily know that a particular person would feel intimidated by particular conduct, they would not be on notice that their conduct might be illegal.

Disagreeing with the Appellate Division, however, Albin found that courts cannot “rewrite” a statute to supply a missing intent requirement.  “That level of judicial tinkering with legislation exceeds the bounds of our authority,” he wrote.  Since the court had resolved the case on 14th Amendment grounds, it refrained from addressing the Appellate Division’s 1st Amendment holding.  The court reversed Pomianek’s conviction under the bias law.  Since the jury found no intent, there was no basis to uphold it, or to require a new trial.

According to the court’s opinion, the provision basing criminal liability entirely on the victim’s perceptions made the New Jersey statute “unique,” as no other hate crime law in the country imposes liability in such circumstances.  The ruling leaves intact the other two operative provisions of the law, criminalizing intentional or knowing bias intimidation.  The requirement to show the requisite intent has proven a major stumbling block in hate crime prosecutions around the country, and has deterred prosecutors in some cases from bringing hate crime charges in cases that appear, at least circumstantially, to involve defendant bias, where there was not strong evidence of discriminatory intent.

The Dharum Ravi trial became a rallying point for people concerned about bullying of gay students.  Ravi was charged with using a webcam to spy on Clementi having sex with another man in their dorm room, and then sharing the images with others online, leading Clementi, a sensitive young man whose coming out to his parents had not been a total success, to become despondent and ultimately suicidal.  Clementi  jumped off the George Washington Bridge just days after learning that the webcam images were spreading on Twitter.  Rutgers University undertook major reforms in response to the incident, and Clementi’s family established a foundation to promote understanding for young gays.

Charges were brought against Ravi under several provisions, including the one struck down in the Pomianek case, and the judge allowed evidence about Clementi’s reactions to learning about the webcam spying to be presented to the jury.  The New York Times reported on March 18 that jurors in the Ravi case “said after the conviction that some of the most convincing evidence of Mr. Ravi’s guilt came from Mr. Clementi’s own complaints and online posts after he learned that he had been spied on.”

The judge was sufficiently concerned about flaws in this provision that he did not enhance Ravi’s sentence to reflect conviction on this ground, according to the account in the Times.  Ravi received a short prison sentence – 30 days – and was released after only 20 days for good behavior in prison.  The state appealed the judge’s failure to enhance the penalty due to the bias harassment conviction.  Ravi’s lawyer raised constitutional concerns in responding to the state’s appeal. The case is still pending in the New Jersey court system.

The Supreme Court’s March 17 ruling makes it likely that some or all of the Ravi conviction will also be reversed.

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Alabama Probate Judge Caught Between Conflicting Rulings

The Mobile County, Alabama, Probate Court is not issuing marriage licenses to anybody, as Judge Don Davis tries to figure out exactly what he is supposed to be doing.  On January 26, U.S. District Judge Callie Granade ruled in a lawsuit brought by a same-sex couple in Mobile County seeking a marriage license that they were entitled to receive one because the state’s ban on same-sex marriage violated the 14th Amendment of the U.S. Constitution.  She stayed her ruling until February 9 to give the state a chance to seek a stay pending appeal from a higher court.  The defendant in that case, Alabama Attorney General Luther Strange, asked the U.S. Court of Appeals for the 11th Circuit and then the U.S. Supreme Court to stay Judge Granade’s order, but was turned down.  Strange appealed the district court’s order to the 11th Circuit, but that court indicated it would not take up the case while a marriage equality case is being considered by the U.S. Supreme Court.

At the plaintiffs’ request, Judge Davis was added as a defendant in the case, and Judge Granade clarified her order to require Davis to issue licenses to the plaintiffs, including some additional same-sex couples who had joined the lawsuit. However,  the night before Judge Granade’s order was to go into effect, Alabama Supreme Court Chief Justice Roy Moore, contending that the federal court had no authority to order state probate judges to issue marriage licenses to same-sex couples, had sent all the Probate Judges an order not to issue such licenses.

When Judge Granade’s temporary stay was lifted and Davis was then added as a defendant, Davis and a few other probate judges did issue licenses, as Judge Granade also supplemented her earlier rulings to make clear that her declaration that the same-sex marriage ban was unconstitutional was binding on all probate judges, not just Judge Davis.  Two organizations opposed to marriage equality then filed an emergency petition with the Alabama Supreme Court, purporting to represent the interest of the state, calling on the court to stop the probate judges from issuing marriage licenses to same-sex couples.  After seeking responses from the probate judges, the Supreme Court issued a decision on March 3, a majority voting to order the probate judges not to issue licenses to same-sex couples.

In response to the Alabama Supreme Court’s call for the probate judges to respond to the emergency petition, Judge Davis had submitted a request to be dismissed from the lawsuit because he was subject to Judge Granade’s order.  The court directed him to advise the court by letter within two days “as to whether he is bound by any existing federal court order regarding the issuance of any marriage license other than the four marriage licenses he was ordered to issue.”  After asking the court for more time to respond, Judge Davis submitted a response on March 9, asking to be excused from complying with the Alabama Supreme Court’s order, “out of concern that doing so would require him to violate the federal district court order.”

The Alabama Supreme Court responded to this with a new order on March 11, refusing to excuse Davis from complying with its order not to issue marriage licenses to same-sex couples, as the Supreme Court decided that Judge Granade’s order required Davis to issue marriage licenses to the plaintiffs in that case only.  Wrote the court, “Federal jurisprudence contemplates that a federal district court adjudicates the obligations, if any, of a defendant or defendants only with respect to the plaintiff or plaintiffs in the case before the court.”    Since the case had not been brought as a class action on behalf of all those seeking marriage licenses, reasoned the court, Judge Granade’s order could not require Davis to issue licenses to any other couples.

Thus, ruled the court, Davis was subject to its March 3 order.  The court commented that Alabama statutes say that probate judges “may” issue “marriage licenses.”  “To the extent he exercises this authority, ” concluded the court, “he must issue those licenses in accordance with the meaning of the term ‘marriage’” as defined in Alabama law.  This might be construed as a broad hint that Davis could avoid violating both orders by keeping the marriage window in his courthouse shut until this matter is ultimately resolved.

This ruling placed Davis in a dilemma, since he was not sure whether the Alabama Supreme Court had correctly determined  his obligations under Judge Granade’s order.  So he kept the marriage window closed in his courthouse as the Supreme Court had obliquely suggested, and went back to Judge Granade with an emergency motion  to stay her ruling, because he had been “placed in a potential conflict” between her order, the Supreme Court’s order, and Chief Justice Moore’s order.

“Although the court would agree that the developments in these same-sex marriage cases has at times seemed dizzying,” wrote Judge Granade in a new order issued on March 16, “the court finds that Judge Davis has not shown that a stay is warranted.”  Under the usual test for staying an order, the party seeking the stay has to show that he is likely to win the case on the merits, but Davis was not even arguing that this was likely, and Judge Granade found that he had also failed to show that denying the stay would cause “irreparable harm” to him.    Although Davis pointed to the Alabama Supreme Court’s refusal to exempt him from its order, the court pointed out that Davis was bound by the federal court’s order.  Davis also pointed out that a federal judge elsewhere in the state had put a new marriage equality case “on hold” pending the U.S. Supreme Court’s anticipated decision, but Granade responded that the stay in that case “has no bearing on the instant case.”

Meanwhile, the plaintiffs had filed a motion to expand this case to a class action.  On March 18, Granade granted the motion.  Acknowledging that Attorney General Strange had opposed making this case a class action, Granade rejected Strange’s argument that the case had gone on for too long to suddenly expand it beyond the existing parties, pointing out that the case “as only progressed to the preliminary injunction stage and although the current Plaintiffs have apparently all received marriage licenses the licenses are of little value if they are not recognized as valid in Alabama.  Under the circumstances,” she concluded, “allowing the amendment is not likely to significantly delay resolution of the case for the current parties.  The requested amendment will not disturb any schedule set by the Court in this case.”

However, she also acknowledged that the plaintiffs had yet to submit a statement of the basic facts underlying their request for class certification, so the motion to certify the class “is not yet ripe.”  The judge determined that the plaintiff’s motions had said enough to “allege class claims,” the court “will not engage in a detailed and rigorous analysis of the class claims until all of the current parties have had the opportunity to oppose or support the motion for class certification.”  She gave Attorney General Strange until March 23 to respond directly to the plaintiff’s motion to certify the class. Once a state-wide plaintiff class is certified, a state-wide defendant class of all probate judges would be a logical extension of the case.

While the Attorney General is battling it out in court, the legislature, anticipating that eventually Alabama is going to have to allow same-sex couples to marry, is considering a response to how that will be implemented.  The state’s House of Representatives voted on March 12 to approve a bill that would excuse ministers and judges from performing any marriage ceremonies to which they had religious objections.  One expects other legislative proposals will follow.

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Grindr Not Liable for Hook-up with Underage User

A gay man’s attempt to hold Grindr responsible for his arrest and prosecution for sex with a minor was cut short on March 13 when U.S. District Judge Jerome B. Simandle in New Jersey ruled that the provider of an “interactive computer service” enjoys statutory immunity from liability for harm resulting from the content posted to its service by third parties.  Saponaro v. Grindr, LLC, 2015 U.S. Dist. LEXIS 30795.

Because Judge Simandle was ruling on Grindr’s motion to dismiss a complaint, he had to accept as true for purposes of deciding the motion William F. Saponaro, Jr.’s claim that he was unaware that the boy who turned up for the threesome with Saponaro, age 52, and his friend Mark LeMunyon, 24, was only 13 years old.  The issue for Judge Simandle was whether Saponaro’s factual allegations, if hypothetically accepted as true, would be sufficient to assert a legal claim for liability against Grindr.

According to Saponaro’s complaint, LeMunyon set up the threesome after the 13-year-old boy, who was a registered Grindr user, contacted LeMunyon seeking a “sexual encounter.”  Judge Simandle noted, “It appears that LeMunyon and Plaintiff had some form of pre-existing relationship prior to the operative events of this case,” but that the nature of that relationship was not spelled out in Saponaro’s complaint.  Saponaro alleged that he is not a registered Grindr user.

Grindr’s Terms of Use provide that the service is available only to adults.  Saponaro claims that when he questioned LeMunyon about the boy’s age, LeMunyon assured him that the boy had contacted LeMunyon through Grindr so he must be at least 18.  Evidently Grindr does not take any steps to verify the age of those who register to use the service.

The boy contacted LeMunyon on June 21, 2012, and LeMunyon then contacted Saponaro to arrange the meeting, which “came to fruition at Plaintiff’s home in Cape May some time during the following week,” wrote Judge Simandle.   Saponaro and LeMunyon were arrested on June 28 and charged with sexual assault and endangering the welfare of a child.  They face potential prison terms of up to 20 years.

Almost two years after his arrest, Saponaro filed his lawsuit against Grindr in New Jersey Superior Court in Cape May County, claiming that Grindr was negligent “by allowing the minor to hold himself out as an adult of consenting age on its on-line service.”  Saponaro claimed that he reasonably relied on Grindr’s Terms of Service, and that Grindr’s negligent failure to verify the age of registrants had led to Saponaro’s arrest and the costs he has incurred in defending himself from the criminal charges.  Saponaro also added a claim for negligent infliction of emotional distress.

Section 230 of the Communications Decency Act (CDA), a federal law, affords broad protection to providers and users of any “interactive computer service,” who are not to be treated as the “publisher” or “speaker” of any information provided by “another information content provider.”  Translated into everyday language, this means that Grindr is not liable for information posted to its service by individuals, and can’t be held responsible to perform the functions of an editor or gatekeeper regarding the content of publications.   By contrast, for example, a newspaper may be held liable for printing defamatory letters to the editor.  Numerous federal courts have dismissed lawsuits against internet service providers by individuals claiming to have been harmed as a result of information posted on their services, relying on Section 230 of the CDA.

Saponaro’s complaint relied on a 2008 decision by the 9th Circuit Court of Appeals, upholding liability for, an online roommate-matching service, for violating laws against housing discrimination. required applicants for its service to fill out a questionnaire that inquired about their sex, family status and sexual orientation, in violation of a local housing discrimination law.  Judge Simandle found the situations distinguishable.’s questions “develop content that facially violates a state or federal statute.”  By contrast, the questionnaire that Grindr users complete “asks users to enter information about themselves but these questions are facially benign.”  In other words, Grindr’s questionnaire did not ask people for illegal information in the context of dating and match-making.

The court found that Congress had strong policy support for adopting the broad protection for ISPs, as the statute states that it is U.S. policy to “preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.”  Congress considered that holding internet service providers responsible for third party content would severely stifle freedom of speech on the internet, as providers would likely err on the side of excluding material rather than risk being sued.  Also, given the sheer  volume of third party content posted on interactive websites, the costs of monitoring and removing objectionable posts would be overwhelming.  Websites that do attempt to remove objectionable content rely on users to alert them.

Even if the CDA did not protect Grindr in this case, Judge Simandle ruled, Saponaro had also failed to assert a valid claim under New Jersey negligence law.  In order to hold somebody liable for harm caused by their negligence, a plaintiff has to show that the defendant violated some duty owed to the plaintiff.  The scope of duty is circumscribed by foreseeability on the part of the defendant that its conduct may cause harm to the plaintiff.  Perhaps LeMunyon, the Grindr user approached by the 13-year-old for sex, might raise such a claim, but Saponaro, who is not a registered Grindr user could not.

“The communications that occurred on Defendant’s website that ultimately led to the illegal sexual encounter were exclusively between LeMunyon and the minor, both of whom were registered subscribers to the website,” wrote the court.  “Plaintiff does not allege to be a subscriber to the website, nor does he allege to have participated in the communications with the minor on Defendant’s site.  Indeed, there is no allegation that Plaintiff ever used Defendant’s site at all.  He was not a foreseeable plaintiff in this case, and therefore Defendant did not owe a duty of care towards him.”

The court rejected Saponaro’s argument that “defendants must clearly have foreseen the potential for use by minors,” speculating that this argument might be relevant to “the question of whether harm to an underage user of Grindr was foreseeable,” but “does not show that there was a foreseeable risk that a non-Grindr user would be injured by the online actions of a minor.”  Furthermore, the 3rd Circuit Court of Appeals, whose rulings are binding on federal courts in New Jersey, had previously ruled that “publishers of online content do not have the ability to exercise care over user-generated content.”

Given these conclusions, Judge Simandle said he need not address Grindr’s alternative defensive argument that Saponaro was “the intervening cause of his own harm, since it was Plaintiff who met and had contact with this 13-year-old boy, not Defendant.”  Concluded the judge, “Much common sense supports this argument, but it may not be resolvable on a motion to dismiss in which Plaintiff’s allegation, that he was unaware of the boy’s age, must be accepted as true.”

The bottom line for Grindr users, of course, is not to rely on Grindr’s terms of service in drawing conclusions about the age or other salient characteristics of people they meet on-line.  While it might not seem particularly erotic or romantic, asking for proof of age of a youthful on-line contact is the safest way to go.

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New York Philharmonic Ades Premiere & Debut

The New York Philharmonic turned over the subscription series of March 12-14 to British composer-conductor-pianist Thomas Ades, who led the programs and presented the first U.S. performances of his new work, Totentanz for Mezzo-Soprano, Baritone & Orchestra.  For many New Yorkers, the programs presented a double discovery – an excellent and energetic conductor and an imaginative and talented composer.  Some of us already knew him from another role, having heard him collaborate with Matthias Goerne in an excellent song recital at Carnegie Hall a while back.  (I am one of that luck band.)

I’ve been a fan of Ades’s music since his first recordings washed up on our shores, and greatly enjoyed the New York City Opera production of his outrageous opera, Powder Her Face, presented at the Brooklyn Academy of Music during City Opera’s wandering years.  But this was my first opportunity to experience him conducting his own work, and it was very rewarding.

To start with the conducting, however, Ades appears slightly awkward at times on the podium, signaling that this is not his main occupation, but he had the NY Philharmonic playing brilliantly in Beethoven’s First Symphony and Berlioz’s dramatic overture, Les francs-juges.  Indeed, I found myself thinking that Berlioz would have really appreciated the performance.  In his autobiographical and critical writing, Berlioz repeatedly scorned conductors for excessive timidity in presenting his works.  He abhorred sluggish tempi, restricted dynamic range, and caution in presenting the outsize sonic effects.  Ades would have none of that.  The bass drum thwacks were gut-wrenching, the brass insistent, the finale as noisy as Berlioz could ever have wanted, and it all suited the music, of course.  The Beethoven was a tad more restrained, but still conveyed all the excitement of the brash young composer toying with the musical conventions of his day and even starting to stretch them in this earliest symphonic work.  I would be eager to hear what Mr. Ades would do with the Eroica!!

As to his own work, it is a sort of cantata setting the words of an anonymous old German text that appeared under a 15th-century frieze in the Marienkirche in Lubeck.  Luckily photographic reproductions of this ancient artwork survived the destruction of the church by bombing during World War II.  The theme is well-worn: that death is democratic, it comes to all at every rank and station, from the Pope of Rome down to the lowliest in social rank and even the infant.  The frieze depicted Death dancing and inviting various humans to join him.  Ades divides the text between mezzo-soprano (Christianne Stotijn) and baritone (Mark Stone), with the former singing the parts of the depicted humans and the latter the verses for Death.  From early in his career, Ades has been pegged as an enthusiastic eclectic who will assimilate all sorts of influences as he has established his own unique voice, which emphasizes a wide array of percussion sounds and virtuosic orchestration that brings to my mind the best of Stravinsky and Schoenberg.

I noted at the Saturday night performance an unusually young audience, filled out with plenty of student groups.  Perhaps there were lots of ticket returns from regular subscribers, as there are usually contingents of listeners who are “allergic” to contemporary music.  They should have come, and those timid souls who left at intermission should have stayed, as they might well have been pleased by what was offered.  One doesn’t necessarily leave an Ades composition humming tunes, but one can be haunted by the sounds he creates and the dramatic climaxes he reaches in his music, and this audience was much affected, as was this listener.  I hope a recording of this piece will emerge, since it’s the kind of thing one would want to engage with in repeat hearings.

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KLR Trio at Peoples’ Symphony Concerts

This afternoon the Kalichstein-Laredo-Robinson Trio performed a concert at Manhattan’s Town Hall under the auspices of Peoples’ Symphony Concerts.  This group has performed frequently at PSC, and their return is always welcome.  Since the retirement of the Beaux Arts Trio, they are probably the preeminent piano trio currently performing.

I was a bit put off prospectively by the conservatism of their program.  This program could have been given over 120 years ago: Beethoven’s Kakadu Variations, Op. 121a, Brahms’s Piano Trio No. 2, Op. 87, and Tchaikovsky’s Piano Trio, Op. 50.  On the other hand, this group brings together three masters of their instruments who really know how to play the “classics” with panache.

I’ve always been bored by Beethoven’s Kakadu Variations.  This performance, while more than merely proficient, didn’t get me any more excited about the piece.  The Brahms was fluent and energetic, about what I would expect from these performers.  Satisfying without being extraordinary.

But the Tchaikovsky was something else again.  I have long thought that this piece was among the composer’s least successful.  It is in two long movements.  The first, “Pezzo elegiac,” has always struck me as awfully repetitious, over-extended, and not as inspired as, for example, his first string quartet.  The second, a theme & variations with an extended coda, just seems to go on and on.  Tchaikovsky was not a great writer of variations, and many of them have struck me in the past as quite ordinary.

I have to say that all my preconceptions based on past hearings of the piece went out the window with today’s performance.  All three musicians seemed to really love this piece, and they were totally on fire this afternoon!  It was gripping.  Although I still felt the piece was overextended in both movements, I found that I didn’t really care because I was enjoying their passionate engagement with the music so much.  I wanted it to keep going on!

These folks have been around a long time.  One of the first LP’s I bought as a teenager was Jaime Laredo’s debut concerto recording for RCA of Bach’s 1st Violin Concerto (with Munch and the Boston Symphony strings) and Mozart’s 3rd Violin Concerto (with Howard Mitchell and the Washington National Symphony).  And when I bought it, it was already a budget reissue.  Another early LP acquisition was a Kalichstein recital on Vanguard’s mid-price Cardinal label. Old-time record collectors from the 1960’s may remember these recordings.  One might think that these senior folks would provide slow, laid-back performances.  But nothing of the sort.  Bright tempi, passionate engagement, real vigor marked this afternoon’s concert. Great going, guys!! Thanks for bringing them back this year, PSC!

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