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I first wrote about attacks on judges in 2011 and 2012. Newt Gingrich, the former Speaker of the U.S. House, even joined in on attacks on Judge Fred Biery in San Antonio. That was in 2011 and 2012. See those posts here. Those attacks have continued. Candidate and later Pres. Trump has now raised attacks on judges to an art form. Doing so is dangerous. There is a thin reed of civility that protects state and federal judges. Chief Justice Roberts has now issued his own warning against threats and intimidation toward the judiciary.

Chief Justice Roberts tells us that threats against judges have risen 100 fold in the last 10 years. Law enforcement officers around the country must now devote significant resources to protecting judges and investigating those threats – resources which would be better used to catch violent criminals. Too, accusing judges of political bias undermines their credibility, notes the Justice.

Politics

True, but during the Trump administration, all Federal judges were picked from the Federalist Society. Politics was injected into their nomination from the get-go. I suppose Justice Roberts prefers to avoid that elephant in the room.

The Chief Justice also notes the increasing public comments by politicians that judicial opinions should be ignored. The Justice’s comments are remarkable since he authored the decision that gave sitting Presidents virtually complete immunity for official acts. Pres. Trump will certainly feel emboldened to disregard which ever laws and edicts he disfavors.

Still, before 2011, threats against judges were relatively rare. The public discourse has changed dramatically. Making very public accusations of political bias used to be rare. See the ABA Bar Journal report for more information regarding Chief Justice Roberts’ warning.

I wrote a post the other day stating that mere fear of contracting the COVID19 virus is not a disability for purposes of the Americans with Disabilities Act. See that post here. But, in a similar lawsuit concerning mail-in balloting, the Western District of Texas has found that anxiety over the coronavirus does indeed amount to a disability for purposes of voting. See that decision here in the case of Texas Democratic Party v. Abbott, No. 20-CA-438 (W.D.Tex. 5/19/2020).  The court noted that in the past few years, the Texas Attorney General Ken Paxton has authored contradictory AG opinions regarding voting. He issued an opinion in 2015 saying that no particular definition of disability is required for mail-in voting. In 2017, he issued an AG opinion stating that sexual deviancy qualified as disabled under the Texas Election Code. These decisions contrast to the same AG now claiming fear of infection does not qualify as a disability. The court rightly noted the apparent hypocrisy in AG Paxton’s positions.

The court also noted the lack of voter fraud in Texas. And, the court noted that under the Texas Election Code, persons over the age of 65 can vote by mail regardless of disability. If vote by mail has so much fraud, why is that possible?

The Texas Election Code defines “disability” as a physical condition that prevents a voter from appearing at a polling place without a likelihood of injuring the voter’s health. This definition is more broad than the definition found in the ADA. The ADA definition focuses on how an impairment affects a person’s major life activities. The court points to the documented stress and anxiety currently among the U.S. population due to the coronavirus. The court then finds that fear and anxiety are intertwined with the health of voters. The lack of immunity is a physical condition, says the court. The court then grants a temporary restraining order allowing voters, Democratic and Republican, to cite the coronavirus and fear as basis for voting by mail.

Judge Biery’s decision is not scholarly. He points to no precedent for his ruling. There probably is no precedent. The decision will surely be appealed. Fear of infection has been held in federal courts as not a disability under the ADA. The Texas Election Code definition of disability is broader. But, I am doubtful that lack of immunity will be held to constitute a “physical condition.” Although, as a matter of policy, it ought to be. We should institute policies that encourage voting, not discourage it. But, it is true that the current AG has taken contradictory positions in the past.

In a very brief order on May 20, the Fifth Circuit issued a stay stopping Judge Biery’s decision. See that decision here. The stay does not overrule the lower court’s decision.

Be Safe.

Judge Fred Biery is a wonderful asset to the San Antonio legal community. Recently, he demonstrated again why he is the right judge at the right time. One of the costliest and most time-consuming lawsuits in recent memory is the House Canary v. Quicken Loans, Inc., No. SA-18-CV-0519 (W.D. Tex. 8/14/2018) lawsuit. A few months ago, a Bexar County jury awarded $700 million to the tech startup, House Canary. The lawsuit stems from a subsidiary of Quicken Loans which had asked House Canary to develop software. The subsidiary sued for fraud and breach of contract. Quicken Loans lost in one of the largest jury verdicts in Bexar County ever. See San Antonio Business Journal report here.

Quicken Loans then filed a related lawsuit in federal court. House Canary moved to dismiss or to transfer the suit to Michigan. At issue are jurisdiction, venue, and opposition to injunctive relief, all the normal requisites for time-consuming and expensive litigation. Judge Biery often speaks to the increased cost of lawsuits. His father and uncle were well known trial lawyers in San Antonio. Judge Biery is qualified to speak to the increased litigation costs in today’s society.

So, he called for a status conference, likely anticipating yet another drawn out legal battle. He wanted the parties to act in a civil manner. He expects zealous advocacy, he said, but no “elementary school behavior.” He expects the parties to produce all information requested in discovery. Lay the cards on the table, he ordered. The Court observed, and the respective lawyers surely know, that all would be revealed anyway if the case is appealed and then remanded. It would be more efficient to first produce what you have.

He asked the parties (i.e. the respective lawyers) to avoid “shrill” pleadings. He warned them that he has in past lawsuits ordered opposing lawyers who violated his rules to sit in timeout in the rotunda of the courthouse. He ordered another set of lawyers to kiss each other on the lips in front of the Alamo with cameras present. He discussed indirectly the change in litigation in San Antonio. Once the city was home to some 300 lawyers, all of whom, knew each other. They did not need court orders, because once they reached an agreement, they would abide by that agreement. He seemed then to point the finger at “Yankee” lawyers, that is lawyers moving into the state from the north and western regions of the country. He helped to make his point by including a map of Texas with arrows pointing at the state boundaries from Oklahoma and New Mexico, indicating migration from those states and beyond. He reminded us of a saying by Hobart Huson, a former San Antonio lawyer and historian, “Texans, you are guarding the wrong river.”

The Judge is certainly correct that us lawyers are more litigious than our predecessors. But, perhaps, if we start guarding the right river, we can find a balance. See Judge Biery’s order here.

One of the many challenges with every employment case involves which judge hears the lawsuit. If the wrong judge is assigned to a given lawsuit, the chances  of prevailing diminish. Lauren Browning learned this when she filed a lawsuit in 2005 alleging she was discriminated against on the basis of her gender at Southwest Research Institute here in San Antonio, Texas. Dr. Browning was a scientist, the only female scientist in her department. She complained about discrimination in general and in regard to her pay. In response, she was threatened with firing and was told her travel reimbursement requests would be looked at very closely. The SWRI Administrator pounded his fist on her desk and accused her of abusing the travel rules at the Institute. Her supervisor kept a secret file on her. Her boss warned her not to go to HR about her pay issues, again. Dr. Browning quit. She filed suit a year later.

The employer moved for summary judgment. Magistrate Judge Primomo recommended granting the motion. In his Recommendation, he consistently construed the evidence in favor of the employer, not the employee. For example, he mentioned that Dr,. Browning’s supposed written complaints about discrimination did not clearly invoke discrimination. He never mentioned that she also complained verbally. His recommendation disregarded Plaintiff’s affidavit that she wrote on the back of one of her evaluations that she felt she was the victim of wage disparities based on her gender. Yet, the Magistrate did accept affidavit testimony from her superior. The magistrate was expecting a higher level of evidence from the plaintiff than from the defendant.

The Magistrate Judge discussed the plaintiff’s allegation that she was not promoted, while men with inferior qualifications were promoted. The Magistrate Judge concluded that the plaintiff claimed no supervisor “approached” her about seeking a promotion. The Magistrate was suggesting the plaintiff expected management to come to her about possible promotions, an obviously unrealistic expectation. But, the plaintiff’s claims involved much more than that. The plaintiff actually said there was no way for a scientist to learn of any promotion opportunity because the openings were not posted. Even if they were posted, there was no mechanism by which an employee could apply for given position. Again, the Magistrate Judge construed the available evidence against the employee.

The Magistrate Judge claimed the secret file on her could not have upset her, because it was secret. The Magistrate Judge never mentioned that keeping a secret file suggests illicit motive on the part of the supervisor. He was viewing the evidence in the light most favorable to the movant, not to the non-movant.

It did not help Dr. Browning’s case that she quit. After years of abusive treatment, Dr. Browning quit. That means in a lawsuit for Title VII discrimination, she must show she was forced to quit. Mag. Judge Primomo found the conditions were not so bad that she truly had to quit. In finding the conditions were not so bad, the Magistrate Judge relied on testimony from the management witnesses while disregarding Dr. Browning’s testimony.

The Magistrate even found an argument not advanced by the employer. The Magistrate claimed that having Dr. Browning interview her replacement was not humiliating because she did not yet know she would resign. Yet, there was no evidence in the record regarding when the plaintiff decided to resign. The Magistrate Judge was looking for evidence to help the employer, not the employee. Mag. Judge Primomo did the same thing in Heinsohn v. Carabin and Shaw, No. 14-CV-00094 (W.D.Tex.). In Heinsohn, Mag. Judge Primomo again came up with an argument that helped the employer which had not been advanced by the employer. A court should not enter a summary judgment for an employer based upon a reason not articulated by the employer but identified sua sponte by the district court. Thomas v. Eastman Kodak Co., 183 F.3d 38, 62 (1st Cir. 1999). The Magistrate Judge was trying to help the employer. Yet, at the summary judgment stage, his task was to construe evidence in favor of the employee.

Regarding summary judgment, the court must view the evidence in favor of the non-movant. The point of summary judgment is not to arrive at the truth, but to test the evidence and see whether there is enough evidence to justify a trial. A tie ought to go to the plaintiff. The Browning v. Southwest Research Institute case was complicated. The briefs for both sides exceeded 40 pages each. The plaintiff appealed to the appointed judge, Fred Biery. But, Judge Biery accepted the Magistrate’s finding with a very brief three page opinion. Judge Biery’s decision accepted the Recommendation with little discussion of the very complicated evidence.

The plaintiff then appealed to the Fifth Circuit in New Orleans. Dr. Browning drew a generally pro-employer judge, Edith Jones. Judge Jones issued a decision that does not discuss the evidence in any detail. Instead, the opinion simply refers to the plaintiffs’ “broad conclusory” allegations. The decision nitpicks the evidence to find objective facts supporting a failure to promote while disregarding the subjective use made of those apparent facts. For example, Dr. Browning is accused of making gratuitous negative comments about co-workers, as if that alone would justify a low evaluation. But, the better question is how were comparable male workers evaluated for same or similar offenses? Did male co-workers receive the same poor evaluations for a similar offense? That is the critical question. Judge Jones never asked that question. The Fifth Circuit decision looks at the incident in which her boss threatened her with termination when she complained about unequal pay and concludes they were simply discussing pay issues. Judge Jones minimized her evidence. Again, the judge construed the evidence not in favor of the employee, but in favor of the employer.

The Fifth Circuit decision never mentioned the incident in which the Administrator pounded his fist on Dr. Browning’s desk and said he would scrutinize Dr. Browning’s travel reimbursement requests. In the end, the Fifth Circuit opinion found nothing occurred other than the normal “petty annoyances” in any job. The Fifth Circuit and Judge Jones issued a result-oriented decision. Dr. Browning lost, again. See the Fifth Circuit opinion here.

So, in a case in which a woman complained about discrimination and was met with fist pounding and threats of termination, she could not even get a trial. The plaintiff appealed to the U.S. Supreme court. But, the Supreme Court accepts less than 1% of the appeal filed. Hers was not one of the lucky few.

Recently, Dr, Browning spoke with the Medium about her lawsuit experience. See Medium report here. Needless to say, she found the legal experience to be result oriented. Facts were less important than the fact that she was an employee and her case appeared in front of the wrong judges. Dr. Browning no longer works in her field. She was not able to find employment in the field she loved. The employer offered to settle her case, despite winning at the district court. Dr. Browning, however, declined to settle, since any settlement would require her to agree to a confidentiality clause. She insisted on her right to discuss what happened to her, both at her place of employment and in our civil justice system.

Judges are easy targets.  They rule on issues that affect everyone.  They are limited by ethical rules in how or even if they can respond to political attacks.  So, sure, Newt Gingrich attacks Judge Fred Biery as part of his campaign for president.  Mr. Gingrich says he would "do no more than eliminate Judge Biery in San Antonio and the Ninth Circuit."   See San Antonio Express News report.  That’s all he would do.  How comforting. 

Mr. Gingrich and others refer to Judge Biery ruling in the Medina Valley High School case.  He found that the school was sponsoring prayer at a graduation ceremony.  I previously wrote about the attacks on Judge Biery here.  Mr. Gingrich refers to Judge Biery as an "anti-religious, dictatorial bigot."  Apart from Speaker Gingrich’s grandiose rhetoric, he is flat wrong.  Judge Biery’s opinion offered advice, something judges are loath to do, to help the school get through the crisis.  He suggested removing language asking the audience to join in the prayer, so as to avoid the constitutional issues.  He wrote a paragraph suggesting the school district look at this issue as a "teachable" moment in tolerating different views.  In the judge world, he bent over backwards to avoid conflict.  Yet, he suffered threats.

There is a reason why we have independent judges under the US Constitution.  State judges must seek re-election every few years.  Federal judges have a job for life.  Every so often, some politician seeks to restrict that independence.  President Roosevelt attempted to pack the Supreme Court in the 1930’s.  President Tom Jefferson sought to remove President Adams’ judges and install his own.  Politicians in Florida are trying even now to limit the terms of the state judges in that state. 

But, without an independent federal judiciary, most of the civil rights gains of the 1960’s and 1970’s would not have occurred.  Judge John Minor Wisdom in New Orleans had to leave New Orleans to avoid the threats.  Without his courage, the schools in New Orleans would not integrated.  Without  a few brave judges in the South, we would still have separate but so-called equal facilities in stores, schools and government buildings. 

I believe Speaker Gingrich does not truly seek to diminish the independence of the federal judiciary.  Some of his rhetoric is often "over the top."    But, if he were to succeed in removing particular judges due to perceived judicial activism, he would indeed curtail the independence that makes he federal judiciary unique and vital to out form of democracy. 

During the 1960’s many federal judges had to seek safety because they enforced constitutional law regarding integration in Southern states.  These Southern judges did not necessarily advocate integration.  Instead, they were simply fulfilling their duty to enforce the law as it had already been decided by a higher court. 

Our own Judge Fred Biery has received many threats since he issued an order prohibiting prayer at a Medina High School graduation.  See San Antonio Express News report.  US Marshalls have placed him on 24/7 protection.  

I find this all ironic since based on what I read in the Express News, it appears to me that Judge Biery complied with the law on prayer in schools and he actually advised the school district on how to make their prayers more in line with the law.  Mention your personal belief, without calling on others to believe as you do, he advised.  He also suggested they avoid the words "benediction" and "convocation."  The school district took his advice and they later succeeded when they appealed to the Fifth Circuit Court of Appeals. 

Judges very rarely issue legal advice.  Judge Biery was clearly trying to help the plaintiffs.  For that, he must fear for his safety.  That is an issue in Iraq.  The judges there too often bend to pressure from well placed persons regarding terrorists.  Don’t even mention Mexico and the state of their judiciary.  

We should be thankful for judges like Fred Biery.  I have no idea what Judge Biery’s theology is.  But, I am sure he simply felt he was enforcing the law as it had already been decided by a higher court.  That is his duty as a US District Judge.