In federal court, all lawyers run into the challenge of an overbearing judge. It can happen in state court. But, generally, pushy judges are mot likely to be encountered in federal court. In the Paul Manafort trial, the judge is not necessary overbearing, but he constantly presses the two sides to avoid lengthy, tedious testimony. That pressure has led to verbal fencing between the judge and the prosecutor.

For example, there was this exchange between Greg Andres, the prosecutor and Judge T.S. Ellis:

“The day’s first significant altercation came as Andres sought to question Manafort’s former  deputy, Rick Gates,            about his travels, using his passport as a visual aid.

“Let’s go to the heart of the matter,” Ellis said.

“Judge, we’ve been at the heart. …” Andres replied, before the judge cut him off.

“Just listen to me. … Don’t speak while I’m speaking,” the judge said, sharply. He added that he didn’t see how the testimony on travel “amounts to a hill of beans” with regard to the charges against Manafort, the former Trump campaign chairman.

See Politico news report.

There have been several such instances of Mr. Andres sniping at the judge and the judge fussing at him for perceived lack of respect, not looking at the judge, rolling his eyes, etc. In a criminal trial, the prosecutor can sometimes take the judge on like that. But, in a civil trial. the jury will perceive it as bad that the judge is fussing at a lawyer. So, usually in civil trials, we do not fuss back. In any event, it is frustrating that some judges will not let you provide testimony you believe essential to your case.

Pres. Trump and AG Sessions started a policy separating children from their parents at the border last April. It lasted just a few weeks, but resulted in some 2500 children separated form their children. The policy was changed and the federal government was able to re-unify most of the families. But, there are still several hundred children who are apart from some 500 parents.A federal judge in San Diego has presided over a lawsuit filed by the American Civil Liberties Union, the ACLU. The challenge now is those 500 parents were deported. This is a transient, mobile population. It will be very difficult to find them.

In a recent filing, the Department of Justice unwisely said the ACLU could locate these parents. DOJ said with their network of NGO’s. volunteers and other resources, the ACLU could find the parents. The DOJ was apparently trying to make a joke. The ACLU has no such network. It is more or less a national law firm, composed of individual lawyers in various cities. “NGO” refers to non-governmental organizations. The ACLU has no “network” of NGO’s. DOJ knows that. I can only think they intended the comment as a joke of some sort.

The judge, Dana Sabraw, said to be a dignified sort of judge, did not rise to the bait. He simply told the DOJ that this problem, created by the Trump administration must be solved by the Trump Administration. Judge Sabraw said that sort of plan was not “acceptable.”

It is never wise to make jokes about major problems. The judge will remember that callous humor later when DOJ might wish to be taken seriously. See AP news report here.

The National Labor Relations Act has always protected a worker’s right to discuss “terms and conditions” of employment. Sec. 7 of the NLRA protects the right of workers to discuss conditions at their job. Sec. 7 of the NLRA is found at 29 U.S.C. § 158(a)(1). 

But, because labor unions are so rare in the country now, very few people are aware of this right. The right applies even before a union is formed. When the NLRA was passed into law, Congress recognized that to form a union, workers would have to discuss problems at work. I last discussed those Sec. 7 rights here. The Fifth Circuit has recently re-affirmed the right to discuss conditions at work. In the case of In-N-Out Burger v. NLRB, No. 17-60241 (5th Cir. 7/6/2018), some fast food workers demonstrated solidarity with a national movement to raise the minimum wage to $15. The workers wore buttons with the slogan “Fight for $15” to work.

Management then cited a company rule that forbade workers from wearing any pins or stickers on their work uniform. The workers complied. Someone filed a complaint with the NLRB. The NLRB found the burger chain to have violated Sec. 7. The Fifth Circuit agreed. Despite the rule against buttons, the burger chain requires its workers to wear holiday themed buttons at Christmas time and a donation button in April seeking donations to the In-N-Out Foundation. The burger chain argued that “special circumstances” under the NLRA would allow them to implement rules regarding food safety and to project a certain “public image.”

The appellate court was not impressed. It reviewed the history of Sec. 7, noting its critical role in forming labor unions. It noted that “special circumstances” under the NLRA pertain to work place safety. The no pins or buttons rule had no direct connection to the company’s desire to presenting consistent menu and ownership structure at each restaurant. Prior cases law does not support a “special circumstances” privilege in regard to buttons and interacting with the public. And, the use of a Christmas button and a donation button undercut the company’s claim that “special circumstances” required that uniforms be button free. The appellate court found in favor of the NLRB. See the decision here.

Overcoming Sec. 7 is very difficult. In-N-Out Burger wasted a lot of effort.

Judge Lynn Hughes in the Southern District of Texas is a difficult judge. He harangues attorneys who appear before him. He cancels discovery, even though the federal rules of civil procedure provide otherwise. He is a difficult judge on several levels. In the case of USA v. Swenson, No. 17-20131 (5th Cir. 7/3/2018), the US Attorney prosecuted an adoption agency for fraud. Shortly before trial, the US Attorney dumped thousands of documents on the defense. There were indications that the prosecution had been hiding or withholding documents until the defense knew to ask for those specific documents. The day before trial, the parties had another conference in front of Judge Hughes. The prosecution brought yet another large pdf file of documents to the hearing. The prosecutor apologized to the court, saying she had overlooked the documents.

Judge Hughes fussed at the prosecutor. He said she is supposed to know what she is doing. He said it was better in the old days, because the prosecutors wore dark suits and blue ties. They did not let “girls” do this in the old days. The case had been continued three time already. So, the judge dismissed the case with prejudice.

On appeal, the Fifth Circuit panel found there was no Brady violation here, meaning the prosecutor did not intentionally withhold material that would have helped the defense. It noted that the district court did not explain why one more continuance – the first continuance to be requested by the prosecutor  – would not suffice. The Fifth Circuit reversed the dismissal and remanded the matter back to the district court. But, remarkably, the appellate court remanded the case not back to the same judge, but to the chief judge to re-assign the case to a different judge. That is, the court remanded the case to a different judge, not back to Judge Hughes. See the decision here.

Reassigning to a different judge is as clear a rebuke as judges get. I expect it was the comment about “girls” that concerned the court of appeals. But, Judge Hughes is always a concern for the Fifth Circuit.

Sexual harassment cases are complicated. The legal standard is that harassment by co-workers which is “severe or pervasive” will constitute a hostile work environment – if of course, management knows about the harassment and does nothing. But, what happens when the harasser is a customer? If an employer is aware of the harassment and does nothing, the employer is liable. In Gardner v. CLC of Pascagoula, LLC, No. 17-60052 (5th Cir. 6/29/2018), we see an additional twist. What happens when the person doing the harassment is a patient suffering from dementia?

The plaintiff was employed as a certified nursing assistant at an assisted living facility. She had years of experience in the field. Perhaps, that is why she was assigned to J.S., a difficult patient. J.S. was elderly. He suffered from dimentia. He would grope the female employees and become violent when they would resist. One day, he tried to grope Ms. Gardner. She resisted. He struck her breast. He struck her again, as they tried to move him. She may or may not have swung toward him deliberately missing him. She walked out, allegedly saying she was the wrong skin color. The other white nurse apparently was able to calm down J.S.

Ms. Gardner went out on worker’s compensation leave and was fired when she returned to work. The employer said her comment was racist and that she tried to hit J.S. The CNA filed suit. The employer was granted summary judgment.

There was no question J.S. frequently tried to grope women, on their thighs, breast, buttocks and their private areas. He did this daily. The appellate court found this was “severe or pervasive” harassment. J.S. was eventually moved to an all-male facility with lock-down security.

Ms. Gardner might have still lost her claim, but her supervisors were derisive toward her complaints about J.S. One of them told her to put on her big girl pants. And, as the court pointed out, another element of a sexual harassment claim is that management takes no action to stop the harassment. The court faulted management for doing nothing to even try to stop the harassment. After J.S. had punched her three times, she asked to be transferred. Management told her no. Management clearly was not even trying to fix the problem. The plaintiff presented evidence regarding what other nursing facilities had done where she worked. They would require two or more aids, try to use medications to control behavior, or simply transfer the patient to some other facility. CLC took none of steps. And, of course, long after firing Ms. Gardner, CLC did finally transfer J.S. out of the facility.

The court recognized that there may be times when it is simply not physically possible to keep an ill patient from acting aggressively. But, there were things the employer could have done this time, in this case. But, it did none of those. The Fifth Circuit reversed the grant of summary judgment. See the decisions here.

Parties to a lawsuit rarely discuss sanctions, but at least in federal court, sanctions are a real, if rare, possibility. Secretary of State for the state of Kansas, Kris Kobach, learned about sanctions. Mr. Kobach was advocating for the state’s voter ID law. The federal judge hearing the matter struck it down, finding that there were only 67 instances of non-citizens registering or attempting to vote in 19 years. The court found that the state of Kansas did not show an actual problem existed.

Secretary Kobach represented the state in the lawsuit. He was the responsible party. The state of Kansas failed to comply with discovery rules several times. The Judge said Secretary Kobach chose to represent himself in this matter. As such, the responsibility is his. The judge had previously found the Secretary of State in contempt for failing to follow court orders regarding voter notices. He had also been ordered to pay the plaintiff’s attorney fees.

Mr. Kobach excluded evidence which had been requested, yet he tried to use the same evidence during trial. That is as clear a violation of the discovery rules as it gets. The judge ordered the Secretary of State to take an extra six hours of Continuing Legal Education credit hours. The case is styled Fisher v. Kobach. See ABA Bar Journal report.

You know you messed up when the judge orders you to take CLE. Most of would suffer acute embarassment over being sent to Sunday school.  But, in the midst of the culture wars, Mr. Kobach may use this as a springboard to higher office. This is the same Kris Kobach who formerly chaired the President’s so-called Commission on Voter Fraud.

A frequent issue in discrimination cases concerns when does the time for filing a complaint start? The answer can be complicated when a teacher, for example, is notified her contract will not be renewed the next school year. Do her six months to file start when she is told she will not be re-hired, or does it start at the end of the school year, when the decision takes effect? In Reyes v. San Felipe Del Rio Consolidated ISD, No. 14-17-00488, 2018 WL 1176487 (Tex.App. San Antonio 3/7/2018), the Court said the time to file started when the school district board told the teacher it had accepted the Superintendent’s proposal to terminate her employment.

Situations involving public school teachers are particularly confusing, because they are entitled to a hearing before the school board. Before a teacher’s termination becomes final, she can ask for a hearing before the school board. Ms. Reyes had such a hearing. She lost, as do most teachers. She was the told by letter dated Jan. 18, 2012 that her employment would be terminated. According to the letter, her employment was terminated effective Jan. 11, 2012. She then filed her charge of discrimination on May 23, 2012. She later filed suit. The district filed a plea to the jurisdiction, which is comparable to a motion to dismiss. It is based on the pleadings. The district argued that she had missed her deadline to file her charge. The district argued that her deadline started not in January, 2012, but in August, 2011 whene was first told the board had accepted the Superintendent’s recommendation that she be terminated.

The court looked at the Texas Education Code which explains the appeal process for public school teachers. The court found that under the Texas Commission on Human Rights Act, Tex. Lab.C. Sec. 21.202, the key event occurred when a decision was made, not when that decision took effect. The focus of the statute, said the court, is on the unlawful decision. So, her six months started in August, 2011, not in January, 2012. And, the court affirmed the dismissal of her case. See the decision here.

Ouch. The plaintiff made a rational decision to look to the result of her hearing before the school board. And, she lost because she relied on the wrong event. She might have the possibility of filing in federal court. But, because she filed her charge some ten months after August, 2011, that possibility would also would be problematic.

When I was a young lawyer, I did child abuse cases. I represented children who had been abused or neglected. In one of those cases, I represented two children. The mostly absent father came to my office and made threats to almost everyone he encountered there. I was gone, so I missed the drama. One of the lawyers present practiced family law. He confronted the father and told him he needed to leave. That same lawyer was involved in many difficult divorces. He shared with me several stories of spouses following him or thereatening him. He said he once pulled up to a traffic light in his car. He glanced to his right to see a husband in a car pulled up next to him pointing a pistol at him.

In Georgia, a husband apparently objected to how the lawyer representing his wife conducted himself. Within hours of the divorce becoming final, the man went to the lawyer’s office, shot him and then shot himself. See CBS news report.

The lawyer, Antonio Benjamin Mari, was said to have told colleagues he thought the ex-husband might try to harm him. The lawyer business can be very dangerous.

Well, the Supreme Court disagreed with me. But, only by a 5-4 vote. The Supreme Court ruled in favor of the President’s travel ban and rejected the appeal of the state of Hawaii. See the opinion in Trump v. Hawaii, No. 17-965 (6/26/2018) here. I previously wrote about that travel ban and its apparent religious bias here and here. The Supreme Court found that the President had broad authority to restrict immigration. And, this was after all the third version, the one the President referred to as a “watered down” version.

Chief Justice Roberts wrote the majority opinion. The President relied on 8 USC Sec. 1182(f), which allows the President broad authority to restrict immigration. Justice Roberts noted that the Proclamation implementing the travel ban is 12 pages long. It provided detailed reasons for the exclusions it sought.

Regarding the allegation that the executive order sought to exclude Muslims, the court noted that the Constitution provides that the government shall take no measure respecting the establishment of a religion. The court noted the many statements by Candidate and President Trump attacking the Muslim faith. In his first week as President, he referred to the first version of the ban as the “Muslim ban.” When the current immigration ban was implemented, he said it was “watered down” and that he wanted something stronger. Justice Roberts then recounted a long history, starting with George Washington, of presidents espousing religious tolerance and freedom. The Justice was clearly calling the current President to a higher standard than to espouse “Muslim bans.”

But, the court would not go so far as to assign bias to the executive order itself. Wearing blinders a bit, the Justice claimed the executive order itself is neutral in regard to the Muslim faith. Of coarse, that conclusion strikes me as naive. The court chose to ignore the President’s own stated bias in effecting this travel ban.

Justice Kennedy issued a concurring opinion, simply to remind the Prudent that he, like all federal officials, took an oath to defend and support the Constitution. Without naming Pres. Trump by name, he was clearly warning the President that he must adhere to the principle of the Constitution even in regard to travel restrictions.

Four justices dissented. This was a close vote. But, the vote to watch belongs to Justice Kennedy. He is the swing vote. He supported the President’s executive order, this time. But, he sent a warning to the executive branch. I am doubtful the President will notice. But, his lawyers will.

 

Well, the Texas Supreme Court surprisd me. They rejected the City of San Antonio’s appeal regarding the fire fighter’s union contract. I mentioned in 2015 that the City seemed to be relying on an appeal to the Texas Supreme Court. See my prior post here. The Supreme Court rejected the City’s appeal with no comment. That can mean the Supreme Court did not believe the issue was worthy of their time. Or, it could mean it did not disagree with the Fourth Court of Appeals decision. We do not know what the denial of the appeal means. When a Supreme Court rejects an appeal, the rules do not require an explanation.

The issue concerned the evergreen clause in the firefighter’s contract. When the Collective Bargaining Agreement ends, the provisions stay in effect for another ten years. That sort of clause is known as an “evergreen clause.”

For the City, whatever the meaning of the denial, the result is the same. They must now deal with a fire fighter union that feels vindicated. See San Antonio Express News report.