Our Rights, Our Future

Protect the Victim, Not the Aggressor

In 2002, the CIA came to suspect 39-year-old Canadian telecommunications engineer Maher Arar of having ties to Al-Qaeda. The CIA convinced the Canadian government to share information on Arar's whereabouts. While Arar was returning home to Canada from a vacation in Tunisia, transferring planes at Kennedy airport, he was taken into custody and held in New York for two weeks before being ushered off to a prison in Syria.  He was tortured and otherwise subjected to inhumane conditions for a year, and then released.

After returning to his home in Ottawa, Arar sought justice. He filed near-identical lawsuits in both Canada and the United States. In Canada, after an investigation, a judge confirmed that Arar had undergone intensive torture while in Syria.  It was also found that the initial allegation that Mr. Arar was a probable al-Qaeda terrorist had no substance. The judiciary also found that Canadian officials were 'unintentionally complicit' in overseas torture. A mediation was held with federal government officials and a near-record $10.5-million in damages was awarded to Arar and his family.

Despite the fact that both the Canadian and U.S. lawsuits were essentially the same -- and that the U.S. was actually responsible for Arar’s extraordinary rendition -- the lawsuit played out very differently in the U.S. courts. Firstly, a federal judge dismissed Arar’s U.S. suit in 2006, a decision that was affirmed in 2008 by a three-judge appeals panel. Then, in a surprising move, the full bench of judges on the Second Circuit Court of Appeals decided to hear the case. The 59-page ruling, released last week, concluded that Arar could not sue the officials involved in his rendition, namely former Attorney General John Ashcroft. The Second Circuit said that if a civil damages remedy were to be created, Congress would have to do it.

In the majority opinion, Judge Jacobs wrote that it was for the executive branch to “decide how to implement extraordinary rendition, and for the elected members of Congress — and not for us as judges — to decide whether an individual may seek compensation” from officials for a constitutional violation.  Funny, that sounds exactly like what the judiciary should be doing.

Judge Jacobs defended the court’s stance by saying that allowing suits against policymakers in rendition cases would “affect diplomacy, foreign policy and the security of the nation.” Is no one concerned with the integrity of our nation? Finally, Justice Jacobs said that administrations had practiced rendition since at least 1995, and judicial review would “offend the separation of powers.” Again, judicial review is supposed to provide the separation of powers, and should not offend it in any way.

The four judges who disagreed with the ruling were not shy about expressing their disappointment. Judge Calabresi wrote, “I believe that when the history of this distinguished court is written, today’s majority decision will be viewed with dismay.” He asserted that the majority opinion had gone astray in its “utter subservience to the executive branch.” Judge Calabresi further expressed his “conviction that in calmer times, wise people will ask themselves: How could such able and worthy judges have done that?” The American public should be asking that question now.

The Center for Constitutional Rights, which has spearheaded Arar’s case, issued the following statement on Arar’s behalf:

“After seven years of pain and hard struggle it was my hope that the court system would listen to my plea and act as an independent body from the executive branch. Unfortunately… the court system in the United States has become more or less a tool that the executive branch can easily manipulate through unfounded allegations and fear mongering. If anything, this decision is a loss to all Americans and to the rule of law.”

There is a good chance that Arar and his lawyers will appeal the decision to the Supreme Court; let’s keep our fingers crossed that our nation’s highest court will decide to protect the victim, not the aggressor.

(Photo by erokCom.)

Judges: Modern-Day Superheroes?

The state of California recently descended into such financial difficulties that British paper The Guardian questioned whether it might prove to be the first failed US state: “Desperate to pay off a crippling budget deficit, California is slashing spending in education and healthcare, laying off vast numbers of workers and forcing others to take unpaid leave.” The California Progress Report, a local forum for progressive advocates, listed the extent of permanent state budget cuts in social services as including developmental services, Medi-Cal, SSI/SSP (Supplemental Security Income/State Supplemental Payment Program), programs for senior citizens, mental health services, and programs for students with disabilities in community colleges.

Amidst the reductions, cutbacks in the In-Home Supportive Services (IHSS) program were particularly disappointing to disability advocates. The In-Home Supportive Services program currently serves approximately 450,000 children and adults with disabilities and mental health needs, people who are blind and low-income senior citizens. The Department of Health Care Services also plays a big role in overseeing the program for the state, because the program receives matching federal Medicaid (Medi-Cal) funding as well as state and county resources. The IHSS program is administered locally at the county level.

Beginning November 1st, the state of California decided to eliminate all IHSS services for an estimated 40,000 low-income senior citizens and people with disabilities. Another 90,000 people were slotted to lose services such as food shopping and assistance and help with laundry and housecleaning. These services are often crucial to a person’s ability to live independently, outside of more costly and generally inappropriate institutional settings.

Rather than let this happen, a coalition of lawyers and advocates filed a class action lawsuit on October 1st, in hope that the court would stop the cuts before they went into effect. The state had chosen October 19th as the date it would begin to inform the 130,000 people that they would be losing all or some of their services under the program.

In V.L. v Wagner, a federal judge named Claudia Wilken ruled that the state must suspend its proposed cuts to the IHSS program, because they would result in substantial harm, damage and injury. The judge objected to the arbitrary withdrawal of essential services, saying that the indicators that the state used to revise program eligibility were clearly not based on need, and, as such, “people could lose something irreplaceable – the ability to remain safely in their homes.” Judge Wilken argued that the plaintiffs were likely to show at trial that the cuts to services violate federal law.

Melinda Bird of Disability Rights California, the attorney leading the legal battle, spoke about the significance of the victory: “We are convinced a humanitarian disaster would have resulted from the precipitous and arbitrary withdrawal of essential services approved by the legislature and the administration in the budget, and are delighted that the Court agreed with us.”

This is a great example of the way in which our system of checks and balances works.  In this case, the court system came through to protect 130,000 Californians from an arbitrary government action that would have had real consequences for their well-being. Yet again, our access to justice makes a difference.

(Photo by Borya.)

Becoming a Juror Just Got More Complicated: Why the Gross Decision Matters.

by Koert Wehberg

In February 2007, Lilliann Williams-Jackson, an elementary school counselor in Washington, DC, was called to serve as a  juror in a death penalty case. A person’s life hung in the balance and Williams -Jackson took her obligation seriously.  Like countless citizens before her, Williams-Jackson believed her job would be waiting for her when she returned.  Unfortunately, she returned from jury duty in June only to learn that she had been involuntarily transferred to a different elementary school. 

Not believing the school principal’s story about budget cuts, Williams-Jackson sued the District, alleging that she had been transferred in violation of the Juror Act, a law protecting people from mistreatment by employers for having served jury duty.  During the trial that followed, a federal judge found the testimony of Williams-Jackson’s school principal, Cheryl Warley, to be inconsistent. Evidence indicated that signatures on documents from a school committee approving the transfer were forged and that members of the committee had not even participated in the meetings that lead to the reassignment. However, the judge said that she had to follow the Supreme Court’s analysis from a previous case known as Gross v. FBL Financial Services, decided in June of this year.

In Gross, Justice Clarence Thomas held that the Age Discrimination in Employment Act (ADEA) required plaintiffs to prove that they had  experienced discrimination because of their age.  If there was no direct evidence of discrimination then they would not be able to prove their case.  This makes things exceedingly difficult for plaintiffs, especially in an employment situation, where employers have several motivations for demoting or terminating employees. 

In the Williams-Jackson case, Judge Collyer compared the text of the Juror Act to that of the ADEA.  Where the Juror Act defines discrimination as retaliation “by reason of” jury service, the Supreme Court held that the ADEA required plaintiffs to prove that they experienced discrimination “because of” their age. Since Williams-Jackson did not offer any direct evidence that her jury duty by itself caused her involuntary transfer, she did not succeed in her suit.  If people can be reassigned for performing their civic duty or demoted because of their age by failing to circumvent such a high evidentiary burden there is no telling what other protections under anti-discrimination laws hang in the balance.
 
In the jury duty case, where the mistakes of the school district were made evident, there was no recourse for the plaintiff. Based on Gross’s narrow interpretation of the ADEA, those that want to prove discrimination have a much higher bar, subsequently thwarting the public’s ability to get their discrimination cases into court. The Williams-Jackson case serves to illustrate the transcendence of the Gross ruling, showing that whether it be an issue of civic duty or age discrimination, Gross will continue to have negative consequences on civil rights in the United States.


Koert Wehberg is an Equal Justice Works Fellow and Staff Attorney in the Disability Law Center at New York Lawyers for the Public Interest. Koert's fellowship focuses on eliminating physical access barriers for low-income people of color with disabilities.  Some of these barriers include a lack of ramp access for wheelchair users as well as Braille signage for people who are blind.  Koert also works on housing discrimination cases representing people with disabilities who seek accommodations from landlords.  Koert graduated from Hamilton College with a BA in English and went on to receive his JD from the Syracuse University College of Law with a certificate in Disability Law and Policy.  He is a native New Yorker and enjoys listening to heavy metal in his spare time.

How the Supreme Court Pulled a Fast One, and America Didn't Notice.

The media storm surrounding Supreme Court Justice Sonia Sotomayor's confirmation provided us with a powerful illustration of the ways in which our court system not only mirrors, but affects our day-to-day lives. In a nation that is 12.5% Latin American (as of the 2000 Census) and roughly 50% female, the appointment of the first Latina Supreme Court Justice was certainly long overdue. However, legal issues that get zero attention in the mainstream media also have a profound impact on our lives, perhaps more given their ability to slide by unnoticed. This is especially true of two recent cases that flew under the radar, Bell Atlantic Corp vs. Twombly, and Ashcroft vs. Iqbal.

These two cases reflect a significant shift in the Supreme Court’s thinking around the issue of how much people have to know and present to bring a case to court.  In Twombly and Iqbal, the Supreme Court decided to impose a new and vague standard – the 'plausibility standard' – in order to start a case.  What does the term ‘plausibility standard’ mean?  The courts and perhaps Congress are going to take a while to sort it out, but it seems to mean that those seeking to bring a lawsuit not only have to show that the alleged misconduct was not only possible, but plausible. In the past, demonstrating that sort of proof was required during the course of the lawsuit, not as part of the initial papers filed at the start of the case. For example, if people are subject to employment discrimination they may know that they were demoted or fired and that they didn’t do anything wrong, but they don’t have access to the behind-the-scenes information that went into the firing/demotion decision. That means that a person would have a hard time getting proof of discrimination, which is now required in order for that person to bring their case to court.

When the Supreme Court first announced the new standard in Twombly, the media did not pick up on the new requirement. This is likely due to the distinct lack of sex-appeal in anti-trust cases. The media only cottoned on to the ‘plausibility standard’ with the Iqbal decision. Iqbal received slightly more media attention due to the facts of the case dealing with the abuse inflicted upon Pakistani immigrant Javaid Iqbal in detention. Nevertheless, the media did not delve into the shift in ‘pleading standard’ or its impacts, certainly not to any significant degree.

According to Alex Reinert, who argued the case, “The difficult question is how courts are supposed to figure out whether or not a complaint plausibly shows an entitlement of relief. One of the things that the Court refers to is ‘the common sense of judges,’ so it’s possible that the Court is suggesting that a judge is supposed to make an inquiry of his or her own as to whether or not he or she thinks that the complaint is plausible, that is, that the facts alleged in the complaint are plausible in the real world.”

Most law students learn that there’s something called “notice pleading” in federal courts.  Notice pleading means that a person starting a new case has to file papers with enough information to give notice to the other side, letting them know what the case is about.  Have the ‘conservative’ members of the court decided to depart from the time-honored, written-in-stone notice pleading? Why?

Whatever the motivation, the change is likely to affect cases of discrimination. This is expected to be a barrier for people who feel they have to prove that their employer or landlord were intentionally discriminating against them.  It’s often nearly impossible to get the e-mails or memos documenting the intent of an employer or landlord before you file a case.  No one hands documents over until they are required to do so.  Now, it’s likely that cases won’t get to the stage when these kinds of documents would be required to be turned over.  This new barrier posed by the Supreme Court appears to be too high.

Professor Reinert highlighted a further concern raised by the vague new pleading standard, adding, “I don’t know if that’s what the Court was saying, but if that is what the Court is saying, then litigators at least should be worried over whether or not that violates the Seventh Amendment right to a jury trial, because the Seventh Amendment says that juries are to determine facts, not judges. And so if courts start to use this plausibility standard to determine facts on their own, then I think we need to start being worried about whether or not our Seventh Amendment rights are being eroded as well."

Given the bedlam caused by both decisions, Senator Arlen Specter (D-PA), recently introduced a bill in Congress, attempting to restore the standard that existed before Twombly and Iqbal.  The Senator's bill should be given due consideration as a means of curbing the national trend of using technicalities to block access to justice.

Equally important is the public’s role. We the people need honest discourse and a clear understanding of the role of judges and courts in our society. Americans need to understand that what happens in the courtrooms of our nation, however obscure, will inevitably play out in the course of our daily lives.  Even these so-called conservative judges are “making law.”  We, and our media, should be paying attention.

Obama Names Four Federal Judge Nominees for California

Last week, President Obama named four new judicial nominees for California’s federal bench. Included in the group is Judge Jacquelyn H. Nguyen, who if confirmed would be the nation’s first Vietnamese district judge. Three of the four nominees are Asian Americans, a group long underrepresented on the federal bench.

The new nominees are Dolly Gee, age 50; Judge Jacquelyn H. Nguyen, age 44; Judge Edward M. Chen, age 56; and Judge Richard G. Seeborg, age 52. Ms. Gee is a labor and employment litigator, and past president of the Southern California Chinese Lawyers Association. She is currently managing partner of the Los Angeles law firm Schwartz, Steinsapir, Dohrmann & Sommers LLP. Jacquelyn H. Nguyen is currently a Los Angeles County Superior Court Judge, and a graduate of UCLA law. Senate conformation would make her the nation's first Vietnamese district judge. Edward M. Chen is a U.S. Magistrate Judge, who worked as an attorney for the American Civil Liberties Union before his judicial appointment. If confirmed, Judge Chen would be the only Asian American on the Northern District bench. Richard G. Seeborg is a  U.S. Magistrate Judge, who served as an assistant U.S. attorney in San Jose. Seeborg worked at Morrison & Foerster in Palo Alto and San Francisco prior to being named a magistrate judge.

 
Supreme Court Justice Sonia Sotomayor was grilled for almost a week by members of the Senate Judiciary Committee. However, Obama's district court appointments will likely be subject to less scrutiny as lower court nominations are usually less controversial. Regardless, these nominations will have a massive impact on the future of civil rights in the U.S. Within Congressional and Constitutional limits, district courts can hear nearly all categories of federal cases, including both civil and criminal matters. District courts are relied on to apply the law at trial, while appeals court judges have more leeway to interpret a law's intent and context. Currently, the U.S. 9th Circuit Court of Appeals in San Francisco has two of its 28 judgeships vacant, and a third possible opening early next year. Therefore, it is crucial that we pay close attention to the proceedings, our rights do hang in the balance.

NCRCR Interview Series: The Civil Rights Impact Of Sonia Sotomayor's Confirmation

The Campaign spoke this week with Cesar Perales, the President and General Counsel of LatinoJustice PRLDEF, about Justice Sonia Sotomayor's historic confirmation. Mr. Perales served with Justice Sotomayor during her tenure as a member of PRLDEF's board. He provides excellent insight into the hearing's meaning for civil rights and the continuing politicization of the judiciary. A short version of the interview is available here:

The full interview is available here:

Senate Confirms Nation's First Hispanic Supreme Court Justice, Sonia Sotomayor

The Senate voted today 68-31 to confirm Sonia Sotomayor as the newest Associate Justice of the Supreme Court. The historic confirmation vote makes Justice Sotomayor the nation's first hispanic justice, and the third woman ever to serve on the nation’s highest Court.

Sotomayor's Record Confirms Neutrality On Issues Of Discrimination

The record of Supreme Court nominee Sonia Sotomayor continues to attract attention as her confirmation hearing draws neigh. In a recent analysis of the 96 race-related cases that came before Justice Sotomayor while on the Second Circuit Court of Appeals, Tom Goldstein at SCOTUS Blog found that Sotomayor rejected claims of discrimination 78 times, disagreeing with her colleagues in only four instances. Goldstein’s analysis paints the picture of an impartial jurist who refuses to elevate claims of racial discrimination above the law.

Obama Nominates Sonia Sotomayor To Replace Justice Souter

President Obama has announced his intention to nominate Sonia Sotomayor to the Supreme Court, filling a seat soon to be vacated by Justice David Souter. If confirmed, Sotomayor will be the third woman, and the first ever Latina Supreme Court Justice. Described by many as a sharp legal mind with a clear commitment to the rule of law, Judge Sotomayor is widely considered a strong candidate for the seat. In a recent development, the GOP has suggested that they will not try to filibuster Sonia Sotomayor's Supreme Court nomination. However Senator Jeff Sessions (R-AL), the top Republican on the Senate Judiciary Committee, made it clear that Republicans are ready to raise questions, "We have an absolute constitutional duty to make sure that any nominee, no matter what their background and what kind of life story they have... will be faithful to the law and not allow their personal views to influence decision-making."