Tuesday, July 7, 2009

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.


StanH said...

Interesting read Lawhawk your and Andrews essays in understanding the legal profession are instructive! Your puddy cat at least earns it’s keep our cats just laze around waiting for Tender Vittles, “what can be done?”

AndrewPrice said...

Thanks Stan, glad to hear we've been helpful.

Lawhawk, nice analysis. To me, this is the type of thing that tells me that Sotomayor is not a good judge -- not her biases, because all judges are biased, but her ignorance of the rules and procedures involved in law. When a judge ignores things like burden of proof, they have truly become arbitrary.

CrisD said...

Your acumen in the law is really so superior to my poor mind. Some of it made it through...thanks to Kitty.

May I add a layman's comment? I know several people who have been assisted to high positions through affirmative action and racial-equality "bullying." Anecdotal as it is, I must tell you that these women enjoy it with a Cheshire cat smile and are quite vocal about their need to do as little work as possible.

AndrewPrice said...

CrisD, you're always welcome to leave any comment you like! :-)

When I graduated law school, I went to work for Club Fed. Our office, like many of the others I encountered, had several people who were hired for reasons other than their ability. And these people had no qualms about exploiting that fact. They didn't work, they caused problems, and whenever anyone said anything, they raised their "status" as a defense.

Since it was virtually impossible to fire them, the managers basically set them in a room somewhere and stopped asking them to do any work.

I can't imagine wasting my life sitting at a desk 8 hours a day with nothing to do, but apparently they can.

Unknown said...

StanH: One of the things that the Roberts Court has been bringing back is the rule of law instead of the rule of political emotion. Understanding how seemingly unsimilar cases set precedent for future rulings is not something for lazy lawyers. Sotomayor is one of those lazy lawyers who simply "doesn't get it."

PS: Kitty Kelly took one look at the article and demanded a raise. We negotiated a settlement, so I now have to get her a ball of yarn, a velvet collar, and a minimum of five kitty treats per week. And she gets every other Sunday off.

Unknown said...

Andrew: California has been in the forefront of many anti-government initiatives. It was among the first to forbid racial discrimination in public employment. It is also in the forefront of ignoring the clear will of the people. For California politicians, the California Civil Rights Initiative (CCRI) is to be followed more in the breach than in the observance. The California Supreme Court has ruled properly in the few post CCRI appeals which have been brought to it, but the Attorney General in each case has been so half-hearted (or openly hostile) toward enforcement of the Initiative, that the burden of proof necessary for strong rulings has been absent. It's a sad demonstration of how a court which believes in proper proof and judicial restraint can be limited in its ability to implement the law by the "lawless" lawyers who appear before it.

Unknown said...

CrisD: You are so right. Any law (or perversion of the law) which creates a special class of persons to be privileged instead of forbidding special classes of any kind will automatically be creating a special class of "untouchables." That creates a large cadre of employees who know that any discipline imposed or production requirement demanded will easily be finessed by a claim that it's a violation of their protected status. Why do your job when you don't have to?

freedom21 said...

Excellent Article. Thank you so much.

I nearly ruined another TV when the decision came out an a CNN reporter said something like, "well, sonia sotomayor was only overruled by five of the nine judges so her opinion isn't too far from the main stream, especially given the conservative leanings of this court." It's as if all they did was look at the "box score" and thought it looked like a tight game...never even checking to see what exactly happened in the real game...or what the rules were.

Two disclaimers: 1. I'm in Atlanta, all the televisions are set to CNN. It wasnt my choosing. 2. Do we know how many black fire fighters took the exam?

Unknown said...

Freedom21: The number of Blacks who took the exam has been carefully squelched. The best estimate is that one Black captain and "seven or eight" of the regular firefighters took the exam, but that is pure speculation. Whatever the number, it was certainly sufficient for the city to fear an attack from the ACLU, the NAACP and the many other "civil rights" organizations.

To justify their anger at the Supreme Court decision, the Sotomayor supporters point out that the city is 37% Black, but there is only one Black captain. Without realizing they have done so, they have proven that Sotomayor merely looked at "results" and concluded it must be racism. Several leftist commentators went so far as to say that she was just one of the members of the appellate panel, and merely joined in the majority opinion of the panel. That is a patent lie. She included a separate concurring opinion, and praised the trial judge for her brilliant logic and legal reasoning in ignoring everything that was relevant to the case. That was why all nine (all nine) of the Supreme Court justices admonished her for her complete misunderstanding of the legal process.

Writer X said...

Your article reinforces the importance of the selection of Supreme Court Justices. I wonder if most people understand that, especially given how they vote (and how infrequently).

P.S. Love the kitty. And the name. Very appropriate. Hopefully she's paid more than minimum wage.

patti said...

kitty kelly: i can has cheezburger now?!


Tennessee Jed said...

Hawk - what I particularly like about your writing is your ability to take legal language and break it down making it more understable. An excellent article, thanks.

Andrew - It has been said she has more experience than any recent nominee. As you suggest, experience may not be everything. Still, I'm not certain she really is all that ignorant of rules and procedures or all that arbitrary. In the tape of one of her speeches, she made it clear appellate is where judges learn to legislate from the bench. She may know exactly what she is doing; e.g. ignore the law to get to the result she desires.

AndrewPrice said...


She knows the results she wants, but she's not a good judge. A good judge is able to move through the labyrinth of law to get to the result they want. And if they can't get there, then they can't get there. These kinds of judges are impossible to appeal.

A bad judge doesn't understand their role at the various stages and just imposes the outcome they want with a hammer. These judges, like Sotomayor, are easy to appeal.

Think of the first kind of judge like a very talented con-man, who robs you and never know you've been taken. The second kind shoves a gun in your face and takes your wallet.

Unfortunately, elevating someone like her to the appellate level all but guarantees you a series of very sloppy, strange, unpredictable decisions. That is how most really bad decisions get made.

Unknown said...

WriterX: The selection process seems to mystify the vast majority of Americans. But nearly universally they think these people must have some kind of legal or judicial track record to recommend them. Too bad it isn't true, although Bush did a fine job of selecting highly-qualified justices (ignore Harriet Miers behind the curtain).

Patti: She already got extra toys, treats, a velvet collar and every other Sunday off. The cheezburger is mine!

SQT said...

Excellent article as always.

I saw an old tape of Sotomayor in which she said she was a great example of affirmative action. She also said she wasn't one of the brighter students in her class-- or something to that effect. *Sigh* We might as well put Biden on the bench. I doubt we'd know the difference.

Sorry I haven't been around much lately. I've had some family drama going on. I'll try to get something posted soon though.

Unknown said...

Tennessee and Andrew: Sotomayor has the qualifications to be a municipal court judge under the watchful eye of a competent presiding judge. She has gone way past her level of incompetence. She knows just enough to make her dangerous. She is highly political, racially-skewed, and follows the crazy philosophy of "social justice" which is being taught in every major law school instead of teaching them law.

A judge with years of experience and considerable legal scholarship has the option of looking at a case, deciding what the proper legal and constitutional outcome should be, and coming up with the law to support it. That is not the same thing as looking at a case, deciding what the political or social outcome should be, then "making" law to support it. Sotomayor fits into the latter category.

Unknown said...

SQT: Good to hear that you're OK. We were beginning to worry. Miss your input a lot.

Sotomayor admitting that she was not one of the brightest students in her class comes as a bit of a surprise. Ignorant people usually don't know they're ignorant. I only graduated cum laude, which is two grades below summa and magna, so I knew I wasn't the brightest crayon in the box. But I have my charms, and a great legal assistant.

AndrewPrice said...

SQT . . . Biden on the Court? Ok, I can support that. We can call it "Obama's Comedic Legacy."

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