Ciceronian Review

Everybody Attorney General

SB 8 is a private attorney general statute as has been pointed out many times by many commentators, and so, they say, it is not different than a multitude of other private attorney general statutes used to enforce various health and safety and anti-discrimination laws.  That description is misleading.  SB 8 enables anyone to sue regarding any abortion (more than 6 weeks after last menstrual cycle).  But not anyone can sue to enforce anti-discrimination laws, or ADA, or disclosure laws.  The plaintiffs has to be injured in some way before a suit may be brought.  For example, to sue under the ADA statutes, one has to disabled int he appropriate sense and be deprived of access in the appropriate sense.  Not just anyone who may sue.  There are similar requirements for all of the private attorneys general statutes that I am aware of.  No injury at all is required under SB 8.  That makes it quite different. I think unprecedented, but I have not surveyed all private attorney general statutes.

Formalism and Realism: Law

Reading commentary on SB 8 I have not found any discussion of the effect of abortion service providers closing in Texas.  Perhaps I read too narrow a selection of legal commentary sites.  Perhaps something else.  Whatever the explanation, I have been waiting for a discussion of what happens, is in fact happening, to women denied access to abortion while the judicial process walks along its circuitous path and whether the nature of the effect matters or should matter to whether the circuitous should be followed.  Unwanted pregnancies will be continued, and children consequent will be born.  What of that effect?  Is there a way that burden can be ameliorated after the fact?  I have not thought of a similar problem for other constitutional rights. Maybe that is a limitation of my imagination, maybe this is unique (or nearly so).  It seems to me that this effect -- unwanted pregnancies compelled to continue and consequent children -- should matter a great deal to the way the judicial processes should work here.

Surely the law will be fully tested in just a matter of weeks, one might think.  First, a matter of weeks matters a good deal here as that pushes some unwanted pregnancies too far out under current law.  Second, why think this will be resolved in a matter of weeks.  The Fifth Circuit has made plain that it will uphold any regulation of abortion.  Surely those judges and their minions can see ways to delay resolution of any appeal.  Set a regular briefing schedule, sit on the decision, etc.  Or simply stay consideration until the Supreme Court acts on Dobbs.

Adhere to proper procedure is fine, but there is also the principle that courts should look to substance over form, and procedure is nothing if not form.    

 

Another Odd Implication of SB 8

The statute provides that anyone in Texas may sue anyone who aids or abets or performs an abortion.  There are no exceptions to the 6 week limit on abortions other than a vague "health" of the woman.  No exceptions for rape or incest.  So, A rapes Woman who as a result becomes pregnant.  She seeks an abortion past the 6 week deadline.  Rapist, as a Texan, is free to sue the doctor, nurses, receptionist, etc. for violation of §171, each for the statutory amount of $10,000.  So the rapist also can benefit financially from his crime.  Same with one who perpetrates incest (which in most cases is just a case of intra-familial rape).

Maybe somewhere else in the Texas Codes there is something to block this outcome.

Astonishing

This story is the most surprising thing I have read in a newspaper in a very long time, maybe ever.   Ahmaud Arbery was a Black man jogging through town who was confronted and murdered by three White men.  Jackie Johnson, the Glynn County Georigia prosecutor, declined action.  (The three men were eventually charged and convicted.)  Here is the surprising information in the article:  First, Ms. Jackson was defeated in the next election, and hence removed as county prosecutor.  Second, she has now been charged with crimes, indicted no less, for her conduct.  I cannot recall any prosecutor being charged with a crime, let alone indicted, for malfeasance.  I suppose it must have happened, but I cannot recall another instance.   I am astonished. 

"Ms. Johnson is charged with “violation of oath of public officer” and “obstruction and hindering a law enforcement officer,” according to the indictment, which the state attorney general’s office released on Thursday.

 

The indictment says Ms. Johnson failed “to treat Ahmaud Arbery and his family fairly and with dignity” by not disclosing that she had sought the assistance of another district attorney before recommending that he take over the case. Ms. Johnson recused herself because Gregory McMichael had worked in her office.

She also “knowingly and willfully” directed two Glynn County police officers not to arrest Travis McMichael, “contrary to the laws of said state,” the indictment said.

“Our office is committed to ensuring those who are entrusted to serve are carrying out their duties ethically and honestly,” the state attorney general, Chris Carr, said in a statement, adding that the state was continuing to investigate Mr. Arbery’s case.

It is now being led by a fourth prosecutor, whom Mr. Carr appointed in May 2020."

Supreme Court Yields to Facebook

This may be the best comment (posted September 2) on the Supreme Court in recent months.

Some Points re Texas SB8

The Supreme Court declined injunctive relief for the Plaintiffs, so SB8 went into force. The Court's refusal to act has been based on the procedural morass that the case presents as there are no state agents empowered to act under SB8.  The decision, of course, says that nothing should be inferred about the merits of the case from this denial and that there are serious constitutional questions about the law.  It is hard to be fooled by such talk,  Doing nothing entails that there will no access to abortion services in Texas.  Every Justice knows that.  Admittedly, it is possible that a Justice who has voted to let SB8 take effect might still vote to retain Roe and Casey.  But why would that happen, as a practical matter?  I think the Justices have committed themselves.

There is no dispute that procedural elements of the statute are quite a problem for those challenging it.  Some suggest a single case against a single clerk and judge is the proper vehicle, with other defendants added as appropriate.  That, of course, is a rather expensive process, and a challenge to financial viability of service providers, as intended.  In fact, the law really doe snot need much to have full effect of shutting down abortion services in Texas.  An almost limitless number of suits are available to anti-abortion stalwarts, at very little comparative costs, and no risk under the statute.  All as designed.

I wonder about what it portends for other issues.  If successful, there is no reason the strategy won't be followed and work for other controversies.  

Here are the points I wanted to make:

Various commentators, including law professors, complain that news media and others wrongly claim that SB8 bars abortions as early as 8 weeks because SB8 refers to Roe and Casey and so does not apply at 6 weeks.  But the professors have the worst of that argument.  The statute does bar abortions: makes actionable any abortion involving a detectable fetal heartbeat (which occurs around 6 weeks).  §171.204(a) (Prohibition of Abortion of Unborn Child with Detectable Fetal Heartbeat).  It says: "Except as provided by Section 171.205, a physician may not knowingly perform or induce an abortion of a pregnant woman if the physician detected a fetal heartbeat for the unborn child...".  171.205 is a "medical emergency" exception (which is quite vague).  So the statute on its face, for textualists and orginalists the end of the story, says abortions after 6 weeks are actionable, i.e., practically speaking, banned.

So where are Roe and Casey?  Two places, first, in a prefatory remark stating that Texas has not repealed its criminal statutes against abortion, and, second, in §171.209(e).  That section provides that the affirmative defense in 209(b) will not be available if either Roe or Casey is overruled regardless of whether the abortion occurred before or after either case is overruled.   209(b)'s affirmative defense is a claim that the defendant has standing to assert a third party constitutional right re abortion and that relief would impose an undue burden on the woman (or group of women).  Now that is the Casey standard, but acknowledging the affirmative defense is not an incorporation of Casey or Roe into the statute in a meaningful sense.  This is an affirmative defense, it admits the validity of §171.204 and 205, and so admits that the state may and has prohibited abortions beginning at six weeks.  That is how affirmative defenses work.  They operate only after there is prima facie liability.   

 

Kraken - No Exit Through Bankruptcy

A few more thoughts regarding the Kraken crew, Sydney Powell, Lin Wood, et al. 

I don't know what the sanction amount will be in the Michigan case.  I don't have a sense of how much time was put in by the Defendants or how many briefs got filed.  And they were  represented by government lawyers I believe (but am not sure), whose hourly rates are different from those of private firms.  I expect the number will be several hundred thousand dollars.  We shall see.  Suppose so.  The lawyers are, as a group, sufficiently wealthy to pay that sort of sanction.  Individually, it is a different matter.  I expect that one or two would be ruined if faced with the total. And, in the end, it is up to the Defendants whom they collect from -- the award is joint and several.  But just in case one is curious, the kind of sanctions imposed in this case are not dischargeable in bankruptcy.  Under 11 U.S.C. §523(a)(6), a judgment based on an injury resulting from willful and malicious conduct is not dischargeable.  Willful injury is "a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury."  Kawaauhau, 523 U.S. at 61 (emphasis in original).  An act is malicious under 523(a)(6) when the person acts in conscious disregard of their duties or without just cause or excuse.  Malicious intent occurs when the actor desires to cause the consequences of his act, or believes that the consequences are substantially certain to result form it."  In re Moore, 357 F.3d at 1129.   Those standards are met.  Judge Parker's order clearly and explicitly attributes to each lawyer individually bad faith conduct.  That is, each is found to have acted in conscious disregard of their duties (as lawyers) and of the rights of Defendants.  Their conduct aimed at imposing costs on Defendants, not vindication of any cognizable rights of Plaintiffs: "And this case was never about fraud--it was about undermining the People's faith in our democracy and debasing the judicial process to do so."  (3)  A point supported by the failures to correct errors or to withdraw papers that are either moot or unfounded, itself grounds for sanctions.

What sort of defense might the attorneys have put on once the Court gave notice that it was considering sanctions?  That is something I have pondered from time to time since listening to the July 12 2021 hearing.  The defense that presented at the hearing (save for Newman and Rohl) was hard to credit.  The argument was that these various 'witnesses' signed affidavits and some of the affidavits had been submitted to other (state) courts.  Attorneys are entitled to rely on affidavits as reasonable investigation and attorneys themselves are entitled to be believed by the court.  Finally, we can show that the affidavits are credible if, Judge, you will hold an evidentiary hearing so the 'witnesses' can be examined.  But none of those arguments makes sense.  The affidavits submitted to the state court had been found to be inaccurate and not credible.  Anyway, how would the fact if filing make the affidavit credible, or remove the duty to investigate?  More importantly, it would make no difference because the affidavits just do not support the allegations of the Complaint; whether true or false, the affidavits are irrelevant to the allegations of the Complaint.  It is the Complaint that the lawyers are responsible for, and that is unsupported.  It is just false that attorneys can step out from the duty of reasonable investigation by blind reliance on a party's or third party's assertions -- the assertions have to be plausible.  These weren't.  And attorneys are not entitled to credibility or plausibility merely because they are the source of some allegation.   As to the evidentiary hearing line, well, it would serve no purpose.  The affidavits are irrelevant.  Having witnesses repeat the statements cannot change that.  As the Plaintiffs' lawyers knew what the Judge was concerned about before the hearing, namely the basis for and investigation of the allegations of the Complaint and Amended Complaint, the lawyers' arguments seem to be so bad as to invite sanctions.  (I was a little surprised that the Judge did not impose further sanctions for such bad arguments.)  All I have come up with that they might have accepted fault for the conduct and requested leniency.  Which is not a defense, I know.

Another Loss For Kraken

The US District Court for the Eastern District of Michigan handed down its order on the motions for sanctions against Plaintiffs' counsel, the Team Kraken.  The decision, as expected, went against Team Kraken.  It s a long order, 110 pages, covering the jurisdiction and authority of the court, the standards for imposing sanctions, the procedure to date, the factual bases for sanctions, and individually for the offending conduct the of the attorneys sanctioned.  There are a couple of points  want to note today, before a longer discussion (perhaps) tomorrow.

The primary Plaintiffs' lawyers were Lin Wood, Sydney Powell, Howard Kleinhendler, Stefania Junttila, Julia Haller, Brandon Johnson, Scott Hagerstrom.  Their misdeeds and misconceived arguments are set out in detail.  They got what they deserved: monetary sanctions, order to take CLE (to be attested by counsel in Michigan), and referral for disciplinary proceedings including disbarment.  More about them in a later post.

Two lawyers played much smaller roles: Emily Newman and Gregory Rohl.  Newman was contract lawyer, did not have a role in drafting the complaint, and had quite limited work on the case (about 5 hours).  (34)  Rohl was local counsel.  He filed the papers at the request of the lead counsel, and, he said, reviewed the complaint before filing -- 830 pages in about an hour. (36).  They both received sanctions.  In fact, all of the lawyers are subject to the same set of sanctions: jointly and severally liable for Defendants' fees (excluding Davis), completion of 6 hours of CLE credits on pleading standards and 6 hours on election laws, and all were referred to their respective Bar for disciplinary investigation and proceedings.

Newman's name was on at least some of the offending papers, in particular the initial and amended complaint.  In permitting (or agreeing) to have her name on the papers, she endorsed the papers, took responsibility for the papers complying with Rule 11 and attested that the papers were filed in good faith and a proper purpose.  She did not withdraw her name from any of the papers, and did not disassociate herself from the failure to voluntarily and timely dismiss the complaint when the complaint became moot.  She signed on.  Rohl is the same boat.  He signed the papers and never withdrew. 

It is not new that sanctions can be imposed on local counsel for papers drawn up by lead counsel.  The days of "dropbox" local counsel have been long gone.  There is no dispute that local counsel vouches for what they file and that they have to review the papers to make sure a reasonable attorney would file them.  Nor can local counsel get protection by having lead counsel do their own filing after the initial papers and pro hac admission.  In the jurisdictions where I practiced, the rules required local counsel to be on every paper filed and affirm that they would ensure compliance with all of the rules.  So Rohl goes with Powell and Lin.

Newman is, I think, a more sympathetic case.  Contract lawyers have little control over anything, lead economically precarious lives, more so that other attorneys I believe.  She put in few hours and had no part in the worst papers.  But her name was on them, and other offending papers.  That put her on the same block to be chopped along with Powell and Wood.  For us, that is other lawyers, she an example of risks exceeding responsibility and compensation.  Does she deserve the same treatment as Powell and Wood and thier cohort?  Perhaps not (I think not).  But how fine should the lines be drawn in this case?  I see reasons for the judge to decline making distinctions, e.g., all signed the  papers, none took proper steps to withdraw or amend, none investigated any of the allegations or claims before filing (or even after I think).  Lie down with dogs.. 

Some Questions From Union Gospel

The decision in Union Gospel is built on the ministerial exemption afforded to religious institutions under the First Amendment of the US Constitution and, presumably, state constitutions.  What sort of group qualifies as a religious institution for this purpose?  Surely religious entities that are incorporated under applicable law -- churches, temples, and the like.  Do confraternities count, i.e., lay organizations engaged in religious work or missions?  Union Gospel is an employment case.  Do its terms also apply to voluntary organizations?  May a lay group bar from membership those not in compliance with its doctrines?  I would guess it could, but that is a guess.  I do not know the areas of applicable law well enough to offer more than that.  But suppose the organization provides services, along the lines of Union Gospel.  Does that change things, or is the important line whether it has employees?  Or requests payment for (some) services? 

In her concurrence, Justice Yu says: "Given our state’s long-standing commitment to eradicating discrimination and to fostering a diverse workforce, it is my greatest hope that religious institutions will recognize and embrace the choice to limit the “ministerial exception” to those employees for whom such an exception is absolutely necessary and grounded in sound reason and purpose. After all, the right to exclude the LGBTQ+ community from ministerial employment by religious institutions is not a right that must be exercised. Rather, it is a choice by that religious institution and it is a choice that is not governed by an external judicial doctrine but rather one carved out by the religious entity itself."  (¶46, emphasis added.)  I wonder what Justice Yu means by "absolutely necessary and grounded in sound reason and purpose".  In the instant case, what sort of factors would count toward "absolutely necessary and grounded in sound reason and purpose"?  Would it be enough to point to salient passage in the Christian Bible?  IS some further doctrinal defense needed?  Is the religious belief or beliefs to be grounded in reason, not revelation?  To the second emphasized phrase, is it appropriate to put the issue in such voluntaristic terms?  What does Justice Yu mean by choice?  Is it her thought that, e.g., whether to believe in pre-destination is a matter of choice for Calvinists?  Do the religious choose what to believe?  I think the answer is a rather mixed response -- conversion is not always a choice, and I think normally not really voluntaristic.  In other words, is the identity put at issue not a fundamental aspect of identity, quite unlike whether to be a lawyer or a teacher?  Or, to be a bit tendentious, is religious identity less important than sexual orientation? 

The passage, for me, reads as a call to religious institutions to minimize their religious commitments, and to embody a certain lack of respect for the religious.  Washington permits ideological legal services I believe, e.g., legal services that represent particular causes or groups.  Lawyers limit their practices in all sorts of ways.  Why would it be that modeling the religious commitment to alleviating need not count as "elucidating or teaching" the faith? 

Can The Fifth Say No?

Yesterday the Fifth Circuit Court of Appeals upheld yet another set of restrictions on abortion, vacating and reversing the district court in Whole Women's Health et al. v. Paxton et al.  The opinions in the en banc decision are here.  I skimmed the dissent, but read the majority and concurrence with care.  In recent years the Fifth Circuit's decisions on abortion have gone up to the Supreme Court twice, both times reversed by the Supreme Court.  Both times the Fifth Circuit approved restrictions on access to abortion, uncritically accepting the state governments' (Texas and Louisiana) claims.  And again this week, the Fifth Circuit finds that it really does not much matter what the burdens are.  Restriction get low scrutiny as long as the restrictions do not, by themselves and without considering any other factors (e.g, other restrictions and costs) "unduly burden" some undefined large fraction of women seeking abortion services.  This decision is notable for continuing the process of excluding from consideration the relation between the supposed benefits of the legislation and supposed burdens of the legislation.  It does not matter that removal of wisdom teeth is more dangerous for the patient than are abortion procedures, or that the health and safety regulations do not have anything much to do with either health or safety, nor that the speech compelled is inaccurate and tendentious.  This set of judges sees no burden so great that it is undue.  A concurrence also gives us the benefit of a lesson in the history of biological sciences, explaining that some discoveries are not immediately taken up by the medical community, so, of course, judges should not put much store by expert testimony (well, except in criminal cases when stuff like bite-mark testimony is accepted). Judge Ho's concurrence is unrelated to the actual issues, and is misleading even considered in the most favorable of lights.  The decision is ordinary politics. Access to abortion services is a right grounded in the Constitution, like a host of other rights not mentioned in the text, like the right to travel among states, like privacy, etc.  Legal realism is the real doctrine of these judges.