One of the great things about practicing law is working with people. We see people often at their worst, sometimes at their best, but always as their genuine selves. From a Texas Bar Journal, I find this story about two spouses who prosecuted their own divorce. The two spouses wrote their own divorce decree. Since they were planning to continue to share the same house until it was sold, they came up with some rules on sharing that household, which they hoped would minimize friction:

  • Husband shall exceptional care during and after Dallas Cowboys games to not break any material objects in the house and to remain cordial to wife, who is not responsible for the outcome of sporting events (emphasis in the original).
  • Wife shall endeavor to give Husband the space he needs to recover from Cowboys losses.

That is just two people trying to work things out…..

Among the many forces unleashed in the past year or so is anti-Semitism. Bomb threats against Jewish Community Centers, the place where many people, Jewish and otherwise, find rumba lessons, tennis lessons and basketball. More than 100 JCC’s across the country have been the targets of bomb threats. Two Jewish cemeteries have been vandalized. Two Indians were shot in a bar in Kansas City, because the shooter thought they were Iranians. See CNN news report.

The FBI is investigating. They do not yet know who is making these threats. But, we can assume whoever it is, they do not dance, play tennis or otherwise engage in their community.

The colonel hearing the court martial of Bowe Bergdahl will not dismiss the charges against the young sergeant. He agreed the comments by then Candidate Trump were troubling. But, he would not agree they were so pervasive and unfair as to saturate the community and cause prejudice. See CNN news report. The lawyer for SGT Bergdahl will appeal.

All I can say is the defense has a pretty good appeal issue now or later. Candidate Trump’s comments were very unwise. He repeatedly referred to SGT Bergdahl as a traitor during his campaign.

A county prosecutor showed up at the local school to listen to a young student read aloud an Old Testament story in his native language. The state had recently passed a law against speaking a language other than English in school. Nebraska passed the Siman Act in 1919 which forbade instruction in a foreign tongue. The County D.A. saw the act and brought criminal charges against the teacher for allowing the use of a language in school other than English. The teacher, Robert Meyer, was tried and found guilty. But, he refused to pay the fine. He appealed. The Nebraska Supreme Court ruled that the Siman Act, like education itself, was part of the state’s powers and was lawful. This Act was directed at a security threat. The country had been at war with Germany, and speaking German was deemed a threat to national security. The teacher was charged in 1923. The boy who read Old Testament story was named Raymond Parpart and he was speaking German in class, in violation of the Siman Act.

Mr. Meyer appealed to the U.S. Supreme Court. In a 7-2 decision, the Supreme Court disagreed with the Nebraska Supreme Court. The federal court derided the law as an affront not only to the rights of teachers, but also to parents who wished their children to be educated as they saw fit. The court noted that the Siman Act prohibited current foreign tongues, such as Spanish, Italian and German, but not ancient languages, like Greek, Hebrew and Latin. The Act, said the court, was proscribing educational principles. Justice James C. McReynolds also noted the irrational, disproportionate treatment of German immigrants. “Mere knowledge of the German language cannot reasonably be regarded as harmful.” The court was saying that knowledge of how to speak German in itself does not make a person sympathetic to the Kaiser. Just as today, mere knowledge of how to speak Arabic does not in itself make a person a terrorist. Just as today, knowledge of how to speak Spanish does not make a person a Mexican drug smuggler.

The court noted that the protections of the U.S. Constitution extend to persons who speak English, as well as to persons who speak a foreign tongue. The court allowed that it might be better for persons to speak English in school and learn ordinary speech. But, said the court, this cannot be enforced by methods that conflict with the Constitution. A valid goal cannot be achieved by prohibited means.

Yes, the more things change, the more they stay the same. See the decision in Meyer v. Nebraska, 262 US 390 (1923) here.

In the world of jobs, anything is possible. In the employment world, we deal with human behavior in all its manifestations. We see a crazy case in Fisher v. Lufkin Industries, Inc., No. 15-40428 (5th Cir. 2/10/2017). William Fisher had worked for Lufkin Industries off and on for some 20 years when he was fussed at by his boss, Steve Saxton. “Boy, I don’t know why every time come over here [to Fisher’s work area] its a hassle!” His voice was raised. Mr. Fisher is African-American. Fisher reported the use of the term “boy” to HR and said it was racial. HR tasked another manager to look into the matter. That manager found that the use of the term “boy” was used as exclamation, not in a derogatory way.

[I am not sure what that means, but it could mean Mr. Saxton referred that way to white and black workers.]

Mr. Saxton’s manager. David Jinkins, was also asked to look into the matter. About a month later, a co-worker of Mr. Fisher, David Rhoden, approached Manager Jinkins and said he did not like hearing that Fisher had complained about the use of the term “boy.” Mr. Rhoden said Fisher had said he would get Mr. Saxton fired. During this conversation, Mr. Rhoden mentioned that for a long time, Mr. Fisher had been selling DVD’s out of his lunch box and some of the CD’s were pornographic. Rhodes would later testify that it was Mr. Jinkins who asked about the CD’s.

Manager Jinkins asked Rhoden to buy a CD from Fisher, so they could use it as proof. Rhoden resisted. Jenkins said, “You scratch my back, I’ll scratch yours.” Mr. Rhoden bought a CD a few days later. It turned out to be blank. Mr. Jinkins told Rhoden to try again. This time, the CD was pornographic, said Mr. Jinkins. An investigation ensued. The company said Mr. Fisher violated a company rule in selling CD’s on company property. Mr. Fisher did not deny the accusation, nor did he agree with it. The company officials went to Mr. Fisher’s car to search it. As the search began, Mr. Fisher said he received a call from his wife and he had to go. One official said he heard the phone ring. Two other officials present said they did not hear any phone ring. The car was never searched. Mr. Fisher was fired a day later.

Mr. Fisher filed suit. In his lawsuit, he said he had been subjected to reprisal for opposing discriminatory conduct.

The lower court granted summary judgment. The court said the investigation was retaliatory. Many employees sold things at work. Many employees possessed pornographic material at work. There was no specific rule prohibiting selling things at work. But, Mr. Fisher lied to company investigators and did not cooperate in the search of his car, said the district court. Therefore, said the court, the firing was justified. It granted summary judgment apparently seeing the termination by HR, which meant the HR official was not motivated by retaliation.

On appeal, the Fifth Circuit was perplexed. It noted that the investigation was retaliatory. The lower court found it was retaliatory and facts supported that finding. But, under the cat’s paw theory, a supervisor can act on the retaliatory motive of a subordinate manager. Manager Jinkins appeared to have a retaliatory motive. His investigation and “sting” operation reflected an unusual interest in Mr. Fisher. The investigation would not have occurred but for Rhoden’s and Jinkin’s retaliatory motive. Mr. Fisher’s lack of cooperation with a retaliatory motivated investigation was “inextricably” tied to the retaliatory motive of Jinkins and Rhoden. The actions of Mr. Rhoden and Mr. Fisher were proximate causes of Fisher’s termination. So, the Fifth Circuit panel reversed the grant of summary judgment. See decision here.

It was a simple question. The reporter just wanted to know what the President would do about an increase in anti-Semitic activity. But, the President, perhaps feeling defensive already, accused the Jewish reporter of asking an unfair question. He explained why he is not prejudiced against Jewish persons. But, that was not the question. If you cannot ask the President of the United States what he will do about rising anti-Semitism, who can you ask? See CBS news report.

It does not matter the cause, at least not yet. But, there is a rise in bomb threats against Jewish Community Centers across the country. The President is in a good place to speak against that sort of ethnic prejudice. Unfortunately, Pres. Trump either misunderstood the question or chose not to answer. He told the reporter it was an unfair questions and he should sit down.

Dr. Ricardo Romo, President of the University of Texas at San Antonio, has been placed on leave immediately. The school has not offered an explanation for the sudden leave. But, there is pending a complaint of sexual harassment against the President by two employees. The two employees had been fired and apparently complained the termination was retaliation. See San Antonio Express News report.

Another federal judge has granted an injunction to stop the administration’s travel ban. Judge Brinkema in Virginia granted an injunction that applies to the state of Virginia. Like the judge in Washington state, she pointed to the campaign statements by then Candidate Trump that he would institute a ban on Muslim immigration and that the administration has not offered a rationale for the travel ban. Like the Ninth Circuit judges, Judge Bronkema chided the administration for not offering a rationale for the ban other than the executive is responsible for immigration. See CBS news report.

As I mentioned in a previous post, judges do not appreciate being told essentially that we can do it because we can do it. The proffered rationale is a key component of a discrimination case. Why did the employer do what it did? If discrimination was not the motive, what was the true motive? If the employer’s response is simply because it can, that persuades no one. And, it suggests the true motive was an improper one.

Its a fundamental part of the military court martial process that a commander may not discuss a pending court martial. Anything a general says will prejudice the military jury. But, what happens when the commander speaking about a prominent court martial is a candidate for president? Donald Trump spoke often about Bowe Bergdahl. The candidate referred to him as a traitor many times and at least once, suggested he be dropped out of a plane. Candidate Trump is now Pres. Trump. His words have consequences.

SGT. Bergdahl’s lawyers have filed a motion claiming they cannot obtain a fair trial. The Army lawyers have responded that the use of the term “traitor” was not meant in a legal way, but in a “conversational” sense, whatever that might mean. They also argue that no reasonable person would interpret Candidate now Pres. Trump’s words as anything other than campaign rhetoric. Again, I do not know what that means. Words have consequences. The military lawyers cannot un-ring the bell. They cannot withdraw or undo Mr. Trump’s words. I am doubtful the Army authorities will accept that sort of explanation. See CBS news report. If these remarks had been made by a general, there is no question the court martial would be dismissed. Those sorts of remarks do indeed prejudice any potential military jury. That the remarks were made by a candidate for President might make a difference. We will see.

There is a reason why candidates for any office generally refrain from commenting about pending cases.

The Ninth Circuit affirmed the lower court’s issuance of an injunction which stopped the travel ban. The travel ban has received enormous attention since it was issued Jan. 27. In its opinion, State of Washington, v. Trump, No.17-35105 (9th Cir. 2/9/2017), the court first explained that yes, Presidential directives regarding immigration are reviewable by the courts and have been since at least 1866. The President is entitled to latitude, especially regarding security issues. But, noted the court, the U.S. Supreme Court has reviewed the President’s directives regarding immigration during World War II, the Viet Nam War and during the Afghanistan War after 9/11.

The decision does not address the merits of the travel ban. The appeal concerns the judge’s stay of the travel ban. So, the issue is more about whether the proponent of the travel ban is likely to succeed, what sort of harm will follow if the injunction is overturned, and about the public interest. The court finds that the two states, Washington and Minnesota, are likely to prevail on the due process claim. The court also notes the “serious nature” of the religious discrimination claims. That sentence indicates that while the court is not ready to find the states are likely to prevail on the religious discrimination claims, it does not look good for the federal Government on that issue.

Due Process

“Due process” simply means the government must provide notice and an opportunity to be heard when depriving persons of their right to life, liberty or property. Not only has the federal Government not shown that there was notice before issuing the ban, it did not even contend that it provided notice to those persons who would be affected. The Government argued that “most” of the person affected by the travel ban had no rights to due process. But, noted the court, the due process clause of the U.S. Constitution applies to citizens and aliens alike. It applies to anyone within the U.S. borders. Due process applies to unlawful aliens regardless of how they arrived in the US. But, the court focused mostly on those immigrants who do have a legal right to be in the US. It noted that the Government did not show that aliens with a lawful right to be here were accorded an opportunity to challenge the ban as it applied to each lawful alien.

[It is fairly well known among constitutional lawyers that unlawful aliens have some minimal protections in the U.S. It is surprising that the Government’s lawyers would claim differently. That error does reflect the ad hoc and hurried nature of the travel ban. “Winging it” does not work well in lawsuits].

The court noted that soon after the ban was issued, the government issued new “guidance” from the White House Counsel that appeared to remove lawful aliens (i.e. those aliens with visas) from the travel ban. But, said the Ninth Circuit, the Government could not show that the White House Counsel has authority to supersede a prior issued Executive Order. Indeed, there is no guarantee that the White House Counsel’s guidance applies to other executive branches. And, added the court, even it the Government could show that lawful aliens have been removed from the effects of the ban, the states can show that unlawful aliens still enjoy due process protections.

[The court appears to engage in some mild sarcasm here. Of course, a lawyer’s “guidance” is nothing more than another legal interpretation. It has no binding effect. To truly remove lawful aliens from the effect of the travel ban, the White House could have issued a new Executive Order. This passage does suggest the White House either overlooked a critical portion of its case or simply thought it could bluff the court of appeals. It is never wise to try to bluff a court of appeals].

The Government argued that the lower court’s injunction is too broad. It should not apply to the entire country. But, replied the Ninth Circuit, there is caselaw finding that nation wide application is more efficient and it pointed to a recent injunction issued by a lower court in Texas regarding an Executive Order issued by Pres. Obama in 2014. And, added the court, it is not the court’s place to re-word an Executive Order.

Religious Discrimination

The Court also addressed the argument that the travel ban implements religious discrimination. The Executive Order specifically allows special consideration for persons in a  religious minority in the seven countries. The two states argued that this exemption was intended to favor Christians over Moslems. The two states pointed to many statements by Pres. Trump indicating he would ban Moslems from the U.S. There is ample caselaw finding that a court may consider intent when reviewing the religious establishment clause of the U.S. Constitution. The court simply concluded that “serious allegations” have been raised which present “significant constitutional questions.”

Public Interest

The court addressed the alleged security concerns. It found that despite repeated requests for evidence of security concerns emanating from the seven named countries, the Government has yet to produce such evidence. The court noted that instead of providing evidence of security issues from the seven countries, the Government simply argued that the courts cannot review its decision. In a footnote, the court noted that the Congress and the President identified these same seven countries as countries of concern in 2015 and 2016, But, no-one has explained how Congress and the President arrived at that description or the basis for that status. See decision here.

It does sound like the Government lawyers rushed this. I am surprised they could not present a better explanation for why they cannot provide evidence of security issues, other than simply telling the courts, “Don’t worry, we got this.” That never works with most judges I know. That is an obvious question to expect on appeal. Yet, the Government did not have a ready answer other than an answer that would cause offense. One must wonder if the administration has brought its “A” game to this lawsuit.

Yes, those many anti-Muslim comments by the President since 2016 do make a difference. His comments in 2017 matter. The judges did not discuss Pres. Trump’s attacks on the courts. But, I can attest that judges do not look kindly on persons who accuse them of making “political” decisions. Indeed, some judges will feel almost as if they must find against someone who accuses them of being political. Thats as an exceedingly unwise thing to say.