Through The Legal Looking Glass--Restoring The Rules

In earlier posts, Andrew Price and I have touched on the issue of appeals. Two important cases have recently been handed down from the Supreme Court, both reversing lower court decisions where race was was an issue. One of the two lower court decisions was written by President Obama's nominee to the Supreme Court, Sonia Sotomayor.

Since many of you are familiar with the case of Ricci v DeStefano from an earlier post on this site, I will address that one first. The City of New Haven, Connecticut had created a race-neutral promotion examination for its firefighters. One Hispanic and nineteen White firefighters passed the examination. None of the Black firefighters who took the exam passed. The city knew it was facing inevitable bias lawsuits solely because of the result, so it voided the examination and promoted nobody. The successful firefighters then sued the city for failing to promote them. Using the legal reasoning and rhetoric of the early days of civil rights litigation, each successive court ruled against the firefighters. Despite overwhelming evidence, testimony and currently prevailing legal arguments, Sotomayor upheld the decision of the lower court, and ruled against the firefighters.

The United States Supreme Court then heard the appeal from Sotomayor's court. The justices agreed unanimously that Sotomayor and the lower court had misapplied the law by ignoring the abundance of evidence, testimony and argument in favor of the firefighters. But the final decision was 5-4 in favor of the firefighters because the liberal wing of the court liked the Sotomayor result, so they reviewed the evidence, testimony and argument, and found that it was insufficient to sustain the firefighters' cause. The majority held otherwise, and Sotomayor was reversed, with some rather strong language in the majority opinion.

One of the elements of the majority decision was the classic legal principle of "burden of proof." In all cases, one side or the other is charged with producing evidence that outweighs the evidence produced by the other side. But burdens of proof shift with developments in the legal arena. As racial relations improved over the years, and both business and governmental hiring and promotion policies became chaotic because of a myriad of "bias"lawsuits, the burden of proof had been steadily shifting away from the defendant being required to prove that it had not discriminated to a more modern burden requiring that the plaintiff (complaining party) prove that the employer had discriminated either by misapplying valid protective statutes or constitutional precedent.

In the Ricci case, all the Supreme Court justices agreed that there was a requisite burden of establishing discrimination, and that by ignoring the evidence, testimony and argument, Sotomayor had failed to allow the firefighters the opportunity to prove such discrimination. But in the minority opinion, the liberal wing reviewed all that, and said that the firefighters had not sustained their burden of proving discrimination. The majority not only disagreed, but chided Sotomayor for relying in her opinion on simple dismissal of the evidence, testimony and argument entirely. Equally importantly, they chided her for being inconsistent by deviating from her own usual course of simply ruling in favor of the mere allegation of discrimination (wrong burden of proof) and instead ruling that there was no basis for the lawsuit at all.

What was the difference this time for Sotomayor? This was the first case presented to Sotomayor where the complainants were not Black or favored minorities and the defendants were not white employers with a history of de facto bias. The majority reminded Sotomayor that the burden of proof requiring evidence of discrimination, not the mere allegation by itself, should have been applied in this case, regardless of the color or ethnicity of either the plaintiffs or the defendants. In other words, the fact that no Black candidate passed is not proof that there was any sort of forbidden bias. And the firefighters' proof clearly established that the examination was completely unbiased under any legal test.

The other case is Northwest Austin Municipal Utility District (NAMUD) v Holder. Certain sections of the country had been very diligent in enforcing racial segregation and when that fell, it was replaced with racial discrimination. NAMUD in Texas was in one of those sections. It was subject to the Civil Rights Act of 1964 and the more specific Voting Rights Act (VRA) of 1965 which ordered that the courts and the Attorney General must supervise and insure that any deviation from the draconian voting rules of the two Acts be approved by the federal monitors. Section 5 of the VRA was one of those provisions, passed as an "emergency" five year measure. NAMUD along with several other districts, asked that it be excluded from the provisions of the emergency measures, since the voting rules change it wanted had nothing to do with race or ethnicity.

Attorney General Holder's office denied the request, and NAMUD sued. The District's argument was made up of the fact that the Act was forty-four years old and though necessary at the time, was an inordinate and extraordinary intrusion into the state's power to regulate its own elections. Furthermore, the section challenged was an "emergency measure" set to expire in five years (or thirty-nine years ago). By ignoring the Districts' sound reasons for requesting restoration of the state's right to control its own voting procedures, the Attorney General was ignoring all the underlying facts and purposes of the original Act. And like the Ricci case, it was also ignoring all the facts, evidence, testimony and argument.

The Supreme Court reversed Holder's refusal to grant NAMUD an exemption ("bailout") and the lower courts sustaining it, but as often happens (contrary to common belief) the constitutional issue was sidestepped, since the Court found reason to rule on narrower statutory grounds. The evidence and testimony established that the "bailout" (or "opt out") provisions had been routinely ignored by the overreaching federal courts and executive branch, so much so that it established a clear pattern of using the Act for unintended purposes.

Reviewing all the facts and evidence, the Supreme Court found Section 5 to be highly suspect. First of all, the Section was a five year emergency measure that had been mindlessly renewed by Congress for twenty-five years, thus circumventing the Supreme Court's ability to rule on its statutory legitimacy and/or its constitutionality. It also found that over the past twenty three years alone, over 12,000 requests to be allowed to bail out of the provisions had been denied, while only a minuscule 17 have ever been approved. In that period of time, nearly one-half of the districts have become either majority Black or nearly so, thus gutting the very core of the Act in general, and Section 5 in particular.

The overarching authority of the federal government in state matters, necessitated by the facts existing in 1965 had been almost entirely extinguished by 2008 (when the case originated). And yet the federal authorities insist on exercising that authority solely for the perpetuation of federal power over state matters. How strong was the Supreme Court's warning to the federal authorities? As strong as it can get. Only Justice Thomas dissented, but not because he disagreed with the result. He simply thought that it was time for the Court to address the constitutionality of Section 5 directly, rather than attacking it on statutory and evidentiary grounds. Thus, this is essentially a unanimous opinion against the federal authorities and in favor of state autonomy.

Both cases address the issue of race. But that is not actually their common thread on appeal. One is a business/government employment discrimination case, and the other is a voting rights case. So what issue do they share on appeal? Both cases were decided on statutory and factual grounds. Neither was decided on constitutional grounds. And in both cases, the Supreme Court declared that the burden of proof is vital to the decision-making process. It is a common-sense rule that asserts that courts do not have the option of simply making their decisions by citing previous cases without considering the facts, evidence testimony and argument in each new case on appeal. Somebody actually has to prove something, not merely allege wrongdoing or unfair outcome.

In both cases, the lower courts had simply relied on the previous court's opinion. Sotomayor's opinion was reversed because the lower court paid no attention to the burden of proof, and neither did she. In the NAMUD case, the burden of proof was on the federal government to establish that the underlying legislation was still valid, that federal control of state matters was still necessary, and that the facts presented at trial proved that the District had either violated the rules or was incapable of following the rules without federal intervention. The feds failed utterly in that task. The burden of proof in such cases is "preponderance of the evidence," although Justices Roberts and Scalia seemed to indicate that they thought the burden for the federal government was "clear and compelling" evidence since this is such an immense interference with sovereign state authority. In Ricci, the plaintiffs satisfied that burden, and the lower courts ignored it entirely. In NAMUD, the plaintiffs satisfied that burden, and the lower courts dismissed it as inconsequential. The Supreme Court reversed the lower court opinion in both cases.

The courts are being warned that cases can no longer be decided solely on prior decisions and outmoded law. In neither case is this judicial activism on the part of the Supreme Court, since it simply reinstated rules that have been applied in cases for most of the history of the Republic, only to be waved off in the Warren to Rehnquist period. Thus, in cases in which plaintiffs are denied the right to prove their cases, both Ricci and NAMUD may be cited as precedent, even though on their face they seem to cover entirely different issues.

NOTE: No legal writer is complete without a strong assistant to organize the research and do the drudge duty of editing and typing the papers. I wish to acknowledge my able assistant, Kitty Kelly (pictured below). Without her, I would get nothing done.