Wednesday, March 31, 2021

Trump’s Tweets Sink a Non-Disclosure Agreement

Businesses have a legitimate interest in protecting confidential and sensitive information as well as their public reputation. Requiring employees to sign non-disclosure and non-disparagement agreements (NDAs) are one method of ensuring that. These written agreements may also be used with third-party contractors and volunteers (especially to political campaigns).

NDAs may also have the effect of limiting an individual’s free expression rights under the First Amendment. Therefore, the agreements require a delicate balancing of the inherent rights of the two parties.

Jessica Denson was hired by the Trump campaign in 2016 as a Hispanic outreach director. She accused the campaign of sex discrimination. Under the terms of the NDA, an arbitrator was appointed and issued a $50,000 award against her for violating the terms of the agreement. The arbitrator based his ruling only on the terms of the NDA. It was not his role to decide whether the NDA was actually enforceable. That award was later overturned.

Denson then filed suit against Donald J. Trump For President, Inc. in Federal court, claiming that the NDA was so broad in its scope that it was not enforceable and was an unwarranted intrusion on her Constitutional right of free expression.

The Federal District Court judge examined the NDA to see if it was “reasonable in time and area, necessary to protect the employer’s legitimate interests, not harmful to the general public and not unreasonably burdensome to the employee.” Yesterday's ruling said it was clearly not.

For example, the agreement placed NO limits on time and area. It also was incredibly broad as to the people and entities who were “protected” by the agreements.

The provision applies not only to President Trump and his family members – including unnamed spouses, children, and grandchildren – but also to any legal entity ‘that, in whole or in part, was created by or for the benefit of . . . or is controlled or owned by’ President Trump or any of his family members. President Trump himself is affiliated with more than 500 companies, and his family members may be affiliated with yet more.

Showing that the NDA was overly broad was only half of Denson’s battle. She next needed to show that her free expression would likely be infringed by it. In other words, would there be an attempt to enforce it?

In many cases, this would be difficult to prove. Here, Trump did it for her. All the court needed to do was to quote his tweets. Here is one of the many that the court quoted.

[On] August 31, 2019, President Trump tweeted, ‘...Yes, I am currently suing various people for violating their confidentiality agreements. Disgusting and foul mouthed Omarosa is one. I gave her every break, despite the fact that she was despised by everyone, and she went for some cheap money from a book. Numerous others also!”

The court concluded: 

[T]he Campaign has engaged in a pattern of enforcing or threatening to enforce the Employment Agreement’s non-disclosure and non-disparagement provisions against former Campaign employees, including Denson, Newman, Sims, and Johnson. And the primary intended beneficiary of the Employment Agreement – President Trump – has tweeted about his efforts to enforce non-disclosure agreements. Given this record, Denson has demonstrated a “well-founded fear” that the Employment Agreement will be enforced against her.

Trump’s lawyers tried one last gambit. Maybe the court could salvage the good parts of the NDA, something called “blue lining.” The judge said no, that the agreement was not salvageable without a complete rewrite.

To summarize, the NDA attempted to do much more than just protect legitimate business interests and Denson was harmed by it. 

Denson’s win only applies to her own NDA. However, it is likely that others who were required to sign similar agreements may also try to get them declared invalid.

Considering that dozens, if not hundreds, of similar NDAs exist out there, the exposure to the Trump organizations is extensive. Therefore, expect an appeal of this ruling.

Tuesday, March 30, 2021

Trump’s Greatest Vulnerability—the Deposition

Vulnerability is not the same as guilt. I need to emphasize that up front.

Today, New York’s highest state court ruled that Summer Zervos may proceed with her lawsuit against Donald Trump. Zervos claims that Trump sexually assaulted her a number of years ago. He responded by calling her a liar. She filed suit against him for defamation. The litigation was placed on hold, due to Trump’s claim of presidential immunity. In essence, the court today said that since Trump is no longer president, the immunity arguments have disappeared.

Now that the case can continue, Zervos will be entitled to take Trump’s deposition. Why is that so immportant?

Depositions are a formal pre-trial process where an individual answers questions under oath. In a criminal case, a defendant has little to fear by being deposed. The defendant has the right to refuse to answer questions (5th Amendment right to not incriminate yourself). The fact that the defendant has refused to answer questions may not be introduced into evidence at the later trial.

In civil cases (where money damages are the usual goal), you have no 5th amendment rights. There are only three ways to answer a question, and all of these answers may create later problems.

First, you can answer the question. This answer had better be truthful. If is later shown to be a lie, you can be later charged separately for lying under oath (perjury). Even if you are not charged with perjury, the jury can use the lie to help them decide your credibility.

Second, you can refuse to answer the question. That refusal can be entered into evidence at trial, affecting your credibility to the jury. Separately, the other side may go to the judge after the deposition is over and have the judge require you to answer the question.

Third, you can say you do not know the answer or don’t remember. Again, your lack of knowledge or memory may be considered by the jury to determine your credibility.

This is not where deposition problems end. One of the issues that plaintiffs have is that some of the information they need to prove their case may be only known to or available to the defendant.

Answers to deposition questions often reveal the names of other people with knowledge of the circumstances. They may become witnesses later. Perhaps more importantly, depositions may reveal the existence of documents that may be relevant to the case. The plaintiff may follow the deposition by requesting that these documents be produced.

Defendants such as Trump are extremely guarded about written information that they think will make them vulnerable or the names of people with individual knowledge of what happened. The deposition process has the potential to open the door to that evidence.

If there were only one case pending or threatened against Trump, the opened door might not be a big deal. However, once the evidence comes to light, other cases may find a way to make use of it as well. And that is where the true vulnerability lies.

Friday, March 26, 2021

Dominion Sues Fox News Network: Why This Case Is Different

Dominion Voting Systems has already sued a number of individuals for defamation, including attorney Sidney Powell and My Pillow’s Mike Lindell.  These lawsuits all concern post-election statements that questioned the integrity of Dominion’s products and how manipulation affected the presidential election. Today, they also sued Fox News Network (FOX) for $1.6 billion.

What makes this case different?

When you sue an individual for defamation, you are maintaining that the person knowingly made false statements about you (or that the statements were made with reckless disregard for the truth), that they were believable to the audience, and that you can trace your damages to the statements they made.

The defense that individuals offer, even assuming that their statements were wrong, often hinge on the credibility of the person offering the opinion. Remember, for example, that a prior defamation case against Tucker Carlson was thrown out because he was a pundit and not a journalist. As his attorney stated: “No reasonable person” believes his statements to be factual.

Similarly, in the current defamation case against Sidney Powell, her lawyer’s motion to dismiss argued against her own credibility, explaining that much of what she said was (and was understood to be) overstatement and hyperbole. Again, no reasonable person would take what she said at face value.

News organizations are held to a different standard. It is expected that what they report as “news” will be accurately reported. News organizations are therefore generally careful to cover themselves from making false statements by using weasel words in their reporting. That is why their reporting of ongoing investigations so often uses the words “alleged” or “allegedly.” At times it may seem ridiculous to hear news reports talk about an “alleged shooter” when there is video of him, but this is the level of care news organizations take to ensure that they are not misrepresenting facts.

In a splendid move, the Dominion lawsuit against FOX “accuses” them of being a reputable news organization. Dominion notes that FOX has millions of regular viewers and reaches them through a vast variety of media. And, as a huge for-profit company, FOX’s primary concern is its financial bottom line.

Dominion further suggests that FOX, which once touted itself as conservative news outlet that was “fair and balanced”, morphed into an organization that tied its financial well-being to the adulation of Donald Trump and his most ardent supporters.

Seeing its viewership drop precipitously after FOX called the state of Arizona for Biden, and was chided for it by Trump, Dominion alleges that FOX needed to do something to reengage the faithful. They saw Dominion as an easy target to help promote the concept of election fraud.

In painstaking detail, the complaint shows how a variety of FOX news and opinion shows promoted the allegations by Guiliani, Powell, Lindell and others that accused Dominion of wrongdoing, One result, Dominion says, is that FOX reentered the good graces of Trump, recaptured its viewership, and improved its bottom line. The victim in this scenario was Dominion Voting Systems.

FOX cannot claim ignorance of its actions, according to Dominion. Ninety people within the FOX organization regularly received factual updates from Dominion about the security of its voting systems and the fact that it has no relationship to Smartmatic or Hugo Chavez in Venezuela. Numerous requests for retractions were ignored.

All of these allegations suggest that FOX is being held to a different standard than political pundits or individuals who are engaged in self-promotion. FOX has, according to Dominion, violated a public trust to their detriment.

Reminder: the filing of a lawsuit is just the first step in litigation. As always, Dominion will need to prove their allegations and show that the standards for defamation are met.

Monday, March 22, 2021

Sidney Powell’s Defamation Defense: No Reasonable Person Would Believe My Election Rigging Claims on FOX

Dominion Voting Systems sued Attorney Sidney Powell for $1.3 billion for defamation. The suit said that she knowingly made baseless claims about Dominion, its background, and the reliability of its results. The suit said that some of her comments were “inherently Improbable” if not “impossible.”

When you are sued, the first thing you try is to get the case thrown out before it is even considered. You might suggest that there are procedural reasons to have the case dismissed: wrong party being sued, wrong place to bring the lawsuit, wrong time to bring the suit, etc.

You can also claim that the complaint, even if everything in it is assumed to be true, would not give the person suing you any right to the relief they are requesting. This is called “failure to state a claim upon which relief may be granted.”

All of these arguments are raised in a “motion to dismiss.” Sidney Powell has raised virtually all of these arguments in her motion to dismiss the Dominion complaint.

For purposes of this note, I’ll focus on just the “failure to state a claim” argument.

You may remember from a couple of years ago that Tucker Carlson was sued for defamation. The complaint against him was dismissed because, according to the court, no reasonable person would believe that Carlson’s statements were factual. To put it bluntly, if you take what Tucker Carlson says on FOX at face value, you are stupid.

This is essentially the Sidney Powell defense. She quotes from the complaint’s allegations that her comments were “wild accusations” and “outlandish claims” to prove that a reasonable person would not believe her claims, even though they were repeated both on FOX and in some of her previously filed post-election lawsuits.

Tucker Carlson actually had a decent defense—that he is a pundit and not a journalist. It remains to be seen whether the judge will agree with Powell that her comments are, in actuality, political statements “that are inherently prone to exaggeration and hyperbole.”

Remember that defense: no reasonable person would believe her.

Thursday, March 18, 2021

Defamation Allegations: Should You Retract or Double Down?

In recent weeks, we have seen many defamation lawsuits filed. The most prominent of these have concerned allegations that individuals (and media outlets) have made false and derogatory statements about the Dominion and Smartmatic voting systems. The litigation argues that the statements and actions by prominent people and media have dramatically harmed them financially.

The filing of a lawsuit is a last resort in this process.

We have all made comments or done things, unaware that they were wrong or harmful. Usually, when we are informed of what we did, we apologize. There may be residual hard feelings, but the apology at least gives a starting point for healing.

This process works for innocent mistakes. Defamation cases arise when the individual knows, or should have known, that what they are saying or doing was wrong.  

The first step in the defamation process is to give individuals the benefit of the doubt. A lawyer sends a letter to the individual stating three things: what was said (or done), why it was wrong or harmful, and what corrective action is requested. The “corrective action” may be nothing more than “don’t do this again” or may rise to the level of “retract your statement publicly and pay us for the damage you caused.”

If the mistake was innocent, the party receiving the letter will generally apologize and take appropriate action to make things right.

Even if the mistake was not innocent, the party receiving the letter may stop what they were doing anyway in order to not further compound the problem. Legally, this is called mitigation of damages. In other words, things may be bad, but we can at least keep things from getting worse. Under these circumstances, the parties may come to an agreement about how best to resolve the matter, possibly including some financial compensation.

If the offending party refuses to acknowledge what they did (allegedly), the only recourse is to file a suit for defamation. This complaint will list the elements that were included in the letter (what was said/done and why it was harmful). The complaint ends with a “prayer for relief”—what is requested—that may include a demand for a retraction and money damages.

Not all defamation lawsuits end up in a trial. Often, after the full extent of the wrongdoing has been revealed (through depositions of individuals with personal knowledge and expertise or the production of documents), the case is settled.

Throughout this process, the lawyer regularly sits down with the defendant client and goes through a risk/reward analysis—is the risk of an adverse (and perhaps costly) judgment greater than the benefit of continuing to contest the action. The willingness to carefully evaluate the actual risks and rewards varies, of course, from client to client. To put it bluntly, some clients refuse to admit mistakes and will double down, continuing to do the things that gave rise to the defamation action.

As you watch the Dominion and Smartmatic lawsuits progress, focus on the actions and responses of the defendants. Even subtle changes in their behavior may tell you a lot about the strength of the case. For other defendants, expect the doubling down to continue, regardless of the risk.

Tuesday, March 16, 2021

Arizona Republican Party Undermined Election’s Integrity; Is Assessed Attorney’s Fees

Conducting litigation is not inexpensive. Parties understand that, win or lose, they will likely be responsible for the attorney’s fees they incurred. One exception is where the other party acted in bad faith. In those cases, the court may require the other party to pay your fees. That is what happed late Monday in the case of Arizona Republican Party v. Adrian Fontes, et al.

The Maricopa County judge undertook a ten-page analysis of how the Arizona Republican Party used the courts to purposely undermine public confidence in the electoral process.  From the Court’s conclusion:

“Arizona law gives political parties a privileged position in the electoral process on which our self-government depends. The public has a right to expect the Arizona Republican Party to conduct itself respectfully when it participates in that process. It has failed to do so in this case.” (This and all other quotations are from the court’s opinion.)

As background, the lawsuit itself was previously dismissed for being “groundless because the relief sought was not legally available from the parties that were sued at the time the suit was filed.”

The mere fact of a suit is “groundless” is not enough for a court to assess attorney’s fees. The rules for assessing fees are set out in state law. “A.R.S. section 12-349 requires the court to assess reasonable attorney's fees and expenses against an attorney or party that brings or defends a claim without substantial justification or solely or primarily for delay or harassment.”

The judge began his analysis by noting that the Republican Party’s legal position was “flat wrong as a matter of law.” He noted that “[a]n election challenge based on a procedural statute states a cause of action only if the plaintiff alleges that fraud has occurred or that the result would have been different had proper procedures been followed.” Plaintiff’s statement that “that fraud was ‘not germane to the case’ is to say that there was no colorable cause of action in the first place.”

The Republican Party, even after conceding that there was no fraud, refused to admit that they had sued the wrong party. “When a litigant resorts to that kind of sophistry, instead of simply admitting it made a mistake, it invites inquiry into its motives. The Court now turns to that inquiry.”

After reciting what plaintiffs claimed they were trying to accomplish, the judge found absolutely no merit in it. “These were flimsy excuses for a lawsuit.” 

The judge continued: “The plaintiff is effectively admitting that the suit was brought primarily for an improper purpose. It is conceding that the method of sampling ballots for the hand count audit is a minor procedural requirement, not a necessary step toward a fair election. It is saying that it filed this lawsuit for political reasons. ‘Public mistrust’ is a political issue, not a legal or factual basis for litigation.”

The judge was just getting warmed up. Next, he questioned the plaintiff’s basic integrity. “The plaintiff is not characterizing either its litigation posture or the Court’s inquiry honestly. The Court’s questions addressed the plaintiff’s own arguments. For the plaintiff to suggest otherwise is gaslighting. It evinces a lack of good faith. By their own admission, the responsible individuals here made no serious pre-filing effort to determine the validity of the claims. …

“Perhaps the most telling fact of all is what the plaintiff did after the other parties disclosed, in response to the complaint, that the Maricopa County hand count was complete and that it showed the electronic tabulation was flawless. At that point the plaintiff could have quietly walked away from the lawsuit and publicized the audit results to reassure the public. Instead it filed its petition to enjoin the election canvass.”

It was because of statements made by the plaintiffs themselves that “the Court raised the question whether the plaintiff brought suit in order to 'cast false shadows on the election’s legitimacy.' Undercutting the election’s legitimacy by raising 'questions' is exactly what the plaintiff did. It is what the plaintiff does again when it suggests that an adverse ruling on the secretary of state’s fee application will cause the public to question the Court’s impartiality and undermine respect for the courts. … It is a threat to the rule of law posing as an expression of concern. It is direct evidence of bad faith.”

The court concluded that the Arizona Republic Party owed the Arizona Secretary of State $18,237.59, an amount it found to be “reasonable and appropriate.”

So when you hear people claiming that Americans are losing faith in the integrity of the election process, this case illustrates at least one reason.

Wednesday, March 10, 2021

Changing Your Mind At the Supreme Court

Fair warning: the conclusion of this article may not be what you expect.

Presidents are free to establish their own priorities and policies, often through administrative rulemaking or executive order. Predictably, It is not unusual for the more dramatic of these orders or rulemaking to be challenged in court. With the exception of emergency matters, it takes a lot of time for cases to run their course.

While the legal process is unfolding, a new president may take office with priorities of his own. When that happens, the new administration must decide whether to continue to defend the legal position taken in those existing cases. 

That situation unfolded in the case of State of New York v. U.S. Department of Homeland Security. Here, the prior administration attempted to severely limit the ability of immigrants to enter the country and obtain legal status by obtaining a “green card.”

The prior rule (that had been in effect for nearly 150 years) prohibited legal status if people were likely to become a “public charge.” Congress described these as people who were likely to become long-term residents of “poor-houses and alms-houses.” The common day equivalent would be people who were institutionalized and wholly dependent on the government for their care. The same law recognized that new immigrants might need public assistance early on and even established an “immigrant fund” to provide temporary relief. This rule, then, allowed immigrants who were currently poor to enter the country and make a new life for themselves—a definition that included a great number of our ancestors.

The proposed rule from the Trump administration attempted to change the definition of “public charge” to allow rejection of applicants if, in the opinion of DHS personnel, they are “likely at any time to become a public charge.” It also stated that accepting ANY form of temporary government assistance could be disqualifying, again leaving this to the discretion of DHS officials. The legal challenge to this proposed rule suggested that the new definition was arbitrary and would allow the targeting of immigrants coming from particular locales.

This case had just arrived at the U.S. Supreme Court when President Biden was elected. Biden had made it clear that he would be returning “public charge” to the definition that had been in place for 150 years.

The Supreme Court knew that the position of the administration might change but it was understandably not going to second guess what the incoming administration might do. The parties were allowed to file their legal briefs in December.

The Trump administration in its reply brief acknowledged that the new administration had the right to change policy (and probably would) but that the Court should still rule that their new public charge rule was legitimate.

As expected, the Biden administration revoked the new public charge rule and advised the Supreme Court that, due to the administration’s different position on the matter, all parties to the litigation now believed that the appeal should be dismissed. The Supreme Court agreed and dismissed the suit yesterday. (Parenthetically, this is the third immigration-related appeal that has been dismissed in this manner.)

This is where it gets interesting. If the Trump administration knew that their public charge rule was going to be reversed, why press the Supreme Court to issue a ruling anyway? The answer is all about advancing the narrative. Had the Supreme Court ruled in favor of the public charge change, Trump would have proclaimed that his position was vindicated. Had it been defeated, he could continue his well-documented attacks on the Court as being cowardly. By dismissing the case without opinion, The Court silenced both sets of talking points.

Monday, March 8, 2021

Green Eggs and Sham

I am a bit of a photographer. It is not unusual for me to take my camera and sit for an hour, searching for the best shot. 

When I return home, I sort through those pictures carefully. Nobody tells me what to keep and what to delete. It is also my choice alone to give away or publish the ones I find most pleasing.

The legal term for what I have created is intellectual property.

Pictures of birds or landscapes are generally not controversial, and what people tend to like or not like is just a matter of personal preference. Photographs that show people can be more challenging. Let’s face it, some people are not particularly photogenic. 

I will not publish shots that show people in a bad light. Furthermore, I respect individuals’ rights not to be photographed at all or to remove shots of them that they find displeasing. There have been times when I have pulled photos for that reason.

In other words, there are two components to my publishing guidelines: my personal intellectual property rights as a photographer and my sensitivity to others who may be affected or offended.

Nobody has ever accused me of being part of a cancel culture for making decisions about my own creations. That would be ludicrous; it is not how intellectual property works.

Last week, Dr. Seuss Enterprises, the copyright holder of the Theodor Geisel’s literary catalogue announced that they would no longer be publishing six of his books. They issued this statement. 

Today, on Dr. Seuss’s Birthday, Dr. Seuss Enterprises celebrates reading and also our mission of supporting all children and families with messages of hope, inspiration, inclusion, and friendship.

We are committed to action.  To that end, Dr. Seuss Enterprises, working with a panel of experts, including educators, reviewed our catalog of titles and made the decision last year to cease publication and licensing of the following titles:  And to Think That I Saw It on Mulberry StreetIf I Ran the Zoo, McElligot’s Pool, On Beyond Zebra!, Scrambled Eggs Super!, and The Cat’s Quizzer.  These books portray people in ways that are hurtful and wrong.

Ceasing sales of these books is only part of our commitment and our broader plan to ensure Dr. Seuss Enterprises’s catalog represents and supports all communities and families.

Similar to my photography decisions, Seuss Enterprises did not owe anybody an explanation about the publication of their intellectual property. They did so as a matter of courtesy and sensitivity.

Their decision was not, however, universally embraced. For example, Brian Kilmeade on Fox & Friends opined “The cancel culture is canceling Dr. Seuss.”

Discontinuing publication by the owner of intellectual property is not cancelling, and the owner of a copyright is not a cancel culture. Disagreeing with a copyright holder’s decision is one thing. Grossly misstating the law for your own purposes is quite another. Reasonable people understand the difference and respond accordingly.

“You have brains in your head. You have feet in your shoes. You can steer yourself any direction you choose.” – Oh, the Places You’ll Go! (1990)

Friday, March 5, 2021

Parler: “Well THAT didn’t work. Time to try a different court.”

Parler is a self-described “conservative microblogging alternative and competitor to Twitter.” At its height of popularity, it took a notably lax attitude toward the messages that were posted, stating “we prefer that removing community members or member-provided content be kept to the absolute minimum.” 

Beginning around the November election and through the lead up to the January 6 Capital invasion, Amazon Web Services (AWS), the provider of Parler’s cloud computing services, “claims that it received reports that Parler was failing to moderate posts that encouraged and incited violence, in violation of the terms” of its ”acceptable use policy.” After “Parler failed to respond to those concerns in a timely or adequate manner,” AWS suspended Parler’s services on January 10, 2021.

Parler sued AWS on January 11th in the Western Washington U.S. District Court, asserting a variety of federal and breach of contract claims. Parler also asked for a preliminary injunction to force AWS to resume hosting services while the matter was being litigated.

It took only ten days for the District Court to deny Parler’s injunction request, finding that Parler had met none of the requirements for issuing an injunction. Although the court did not rule specifically on the underlying claims made by Parler, it does not take much reading between the lines to figure out which way the court was leaning.

Parler had a decision to make. It could either let the lawsuit run its course and run the risk of losing, or it could voluntarily dismiss the case. Parler took the latter option on Tuesday. With the District Court case finished, Parler immediately filed suit against AWS in Washington STATE court. This suit repeats a couple of arguments from the Federal suit and adds in others that are specifically related to Washington state law.

There is nothing improper about this maneuver. In fact, there is a term for it—forum shopping. When there is a choice of courts in which to file suit, it makes sense to pick the court where you think you have a greater chance of success. Timing, of course, can be critical. Therefore, dismissing the first case before it was decided on the merits was the correct move. It remains to be seen whether the Washington state court takes a more favorable view of Parler’s arguments.

As an aside, courts understand the reasons for forum shopping and will generally not hold it against a party who chooses a different path in good faith. However, some litigants misuse the process and file meritless litigation in as many places as they can. Courts take a dim view of burdening the legal system and may punish litigants accordingly. This is why Sidney Powell and Lin Wood are facing possible court sanctions for their post-election litigation.

Wednesday, March 3, 2021

When the Supreme Court is not impressed

There were two instances in the last week when the U.S. Supreme Court gave none too subtle indications what they thought.

The first concerned yet another California case that challenged the indoor church ban. Even after the Supreme Court had issued an injunction against the ban earlier in the month, the Ninth Circuit in a different case allowed the ban to continue. Within less than two weeks of the Ninth Circuit ruling, the Supreme Court overturned them. The slap down on the Ninth Circuit decision made it clear that the technical distinctions between the cases were not enough to reach a different decision. As one pundit put it, these were distinctions without a difference.

As an aside, the lawyer for Santa Clara County took a head scratching approach. One day after filing their reply brief with the court, the attorneys announced that the ban would be lifted within a week. As a practice pointer, if you’re going to basically concede the issue, don’t waste the Court’s time by making them start working on reading your brief. To state the obvious: justices don’t appreciate that.

The second time in a week where the Court showed they were not impressed concerned the two remaining “release the Kraken” suits by Sidney Powell questioning the election results. Here, the Court didn’t even bother with a smackdown. The order simply said, without further explanation, that the petitions were denied.

This action by the Court is analogous to how you deal with a fly. You can either give it your attention and swat it or you can decide that it isn’t even worth bothering with it and simply wave your hand to make it go away.

Monday, March 1, 2021

Indoor Church Services, COVID, and the Supreme Court

We often look to the U.S. Supreme Court to provide legal clarity. It does not always work that way. A prime example is a recent ruling concerning the church opening restrictions in California during COVID.

The ruling is not as clear cut as some reports are making it sound. To make sense of the complexities, we need to first discuss something called a concurring opinion.

The cleanest Supreme Court cases are those where you have a decision where all justices taking a particular position agree on the rationale. So, for example, in a 5-4 case, you might find a written decision that is “joined by” four other justices. That majority opinion not only settles the case but also agrees on the reasoning. The decision then becomes binding (precedent) on the cases that follow, both in the lower courts and the Supreme Court itself.

Complications arise when a majority of the justices agree with the outcome of the case but disagree about the reasoning in the decision. These are expressed in concurring opinions. Concurring opinions take three basic forms.

A general concurrence usually involves a justice who think that some part of the reasoning for the decision needs greater explanation. This discussion may be nothing more than a tweak in the reasoning or may question one of the component parts.

A justice who “concurs in the result” agrees with the conclusion but disagrees with the reasoning used to reach the result.

Sometimes a justice will issue an opinion “concurring in part and dissenting in part.” This is the most problematic because some of the outcomes of the majority are accepted but other parts are rejected outright.

The impact of concurring opinions is more than an academic exercise. If you have a 5-4 decision where four justices in the majority agree with the reasoning but the fifth justice only agrees with the result, the final impact of the decision only applies to the present case. The failure of a majority to agree on legal reasoning means that the case can generally not be cited as conclusive authority in later matters.

With that as background, we come back to the California cases where church closing requirements due to COVID were challenged. In South Bay United Pentecostal Church v. Newsom, the church asked for an injunction against the prohibition against indoor services.

The Supreme Court ruled 6-3 to immediately enjoin the ban on indoor worship. Clear enough, right? Not so fast. After deciding that an outright ban should be stopped (so far so good), the Court next considered whether restrictions on indoor services should similarly be blocked. Here’s where the concurring opinions came into play.

Two justices (Thomas and Gorsuch) would have also immediately stopped the ban on singing and percentage caps on attendees.

Three justices (Roberts, Barrett and Kavanaugh) said that it was the CHURCH’s responsibility to show that these limitations should not apply.

Justice Alito said that the singing ban should go but that the STATE needed to provide proof to defend the percentage occupancy rule.

So, among the six justices who overturned the ban, there were three different opinions about the singing and percentage occupancy rules.

Once the decision is fully parsed, then, it is inaccurate to say that this case shows that freedom of religion trumps government regulations about COVID. The number of justices who took this precise position was … two.

Furthermore, the action of the Supreme Court was only on the request for an injunction. The case was sent back to the lower court for further evidence.

As should be apparent from the above, this discussion was not designed to be about the merits of the case or the various positions held. It was merely to show (through no small amount of oversimplification of the issues) that decisions of the Supreme Court can be quite complex animals.