9th Circuit can’t count deceased judge’s vote, Supreme Court rules; pay-equity decision vacated

U.S. Supreme Court

The U.S. Supreme Court has vacated a pay-equity ruling by a federal appeals court because the circuit judge who wrote the opinion was no longer alive when it was issued.

The Supreme Court granted certiorari and ruled on Monday in a per curiam opinion. The court remanded to the 9th U.S. Circuit Court of Appeals at San Francisco without reaching the merits of the pay-equity dispute.

Judge Stephen Reinhardt of the 9th Circuit had written the decision for the en banc court before his death last March. The decision was issued the following month.

Five living justices joined Reinhardt’s opinion, while five others wrote or joined concurrences that were based on different reasoning. “The upshot is that Judge Reinhardt’s vote made a difference,” the Supreme Court said.

Reinhardt’s opinion said salary history cannot be used to justify paying less to women in comparable jobs with men. The decision was based on a reading of the Equal Pay Act.

The 9th Circuit had explained in a footnote that Reinhardt’s opinion and the concurrences were final before Reinhardt’s death. The Supreme Court questioned that statement.

“As for judicial practice,” the Supreme Court said, “we are not aware of any rule or decision of the 9th Circuit that renders judges’ votes and opinions immutable at some point in time prior to their public release. And it is generally understood that a judge may change his or her position up to the very moment when a decision is released.”

The Supreme Court referred to a 1960 Supreme Court ruling that found a circuit judge who had provided the critical vote in an en banc case wasn’t eligible to participate because he took senior status before the opinion was issued. At the time, senior judges weren’t allowed to participate in en banc cases.

The holding applies to Reinhardt’s case “with equal if not greater force,” the Supreme Court said.

“Because Judge Reinhardt was no longer a judge at the time when the en banc decision in this case was filed, the 9th Circuit erred in counting him as a member of the majority,” the Supreme Court said. “That practice effectively allowed a deceased judge to exercise the judicial power of the United States after his death. But federal judges are appointed for life, not for eternity.”

Hat tip to the National Law Journal and SCOTUSblog, which had early coverage of the decision, Yovino v. Rizo.

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See the video: Prosecutor delivers opening statement on love before proposing to his girlfriend

Personal Lives

A Florida lawyer who invited his girlfriend to watch his opening statement in a DUI case instead delivered a marriage proposal in front of a jury of family and friends.

She said yes. Fox News, the Daily Business Review, the South Florida Sun Sentinel and CBS 12 News have stories.

Lawyer Brandon Dinetz had spent months planning the fake Feb. 7 trial in the Palm Beach County courthouse. He told his girlfriend, lawyer Jen Lettman, that he wanted her to watch the arguments. They had met in 2016 while working together at the state attorney’s office, but Lettman is now a lawyer at Link & Rockenbach.

“When we worked together, we would regularly watch each other’s opening statements and critique each other, so it wasn’t unusual for me to be in the courtroom with him,” Lettman told Fox News. “I didn’t know the facts about the DUI trial he made up, and I didn’t really ask.

“I wasn’t really paying attention until I recognized that one of the jurors looked like Brandon’s dad, which I thought was funny. Then I saw my dad and I was so confused. When I saw my sister I knew what was happening, and I started crying.”

Dinetz delivered an opening statement on love before getting on his knee to propose.

Dinetz told the Daily Business Review that he wanted to make sure there were no ethical problems with the fake trial. He took the day off, he found a courtroom without any scheduled hearings, and no one there was on the clock at taxpayer expense.

“It was the toughest secret I’ve ever kept,” Dinetz told CBS 12 News.

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Male-only draft violates equal protection principles, federal judge rules

Constitutional Law

A federal judge in Houston has ruled that the male-only draft violates equal protection principles of the Fifth Amendment’s due process clause.

U.S. District Judge Gray Miller ruled Friday in a suit by the National Coalition for Men, report USA Today, the San Diego Union-Tribune, the New York Times and NPR. Miller granted the group’s motion for summary judgment but did not grant an injunction because the issue had not been briefed.

The U.S. Military currently relies on volunteers. But the Military Selective Service Act still requires men between ages 18 and 26 to register for the draft. Men who fail to register can be fined up to $10,000 and imprisoned for up to five years.

Miller noted that the U.S. Supreme Court had upheld the draft-registration law in 1981 in Rostker v. Goldberg. But women weren’t eligible for combat at the time, and the purpose of draft registration was to prepare for a draft of combat troops.

Circumstances have changed since that ruling, Miller said. In 2013, the U.S. Department of Defense lifted the ban on women in combat, and in 2015, the department lifted all gender-based restrictions on military service.

The government had argued that the decision to exclude women was justified by the administrative burdens of registering them. But the government did not present any evidence that Congress considered whether a female draft was unjustified because fewer women than men will be able to meet the physical standards of combat, Miller said.

“Had Congress compared male and female rates of physical eligibility, for example, and concluded that it was not administratively wise to draft women, the court may have been bound to defer to Congress’ judgment,” Miller wrote. “Instead, at most, it appears that Congress obliquely relied on assumptions and overly broad stereotypes about women and their ability to fulfill combat roles.”

In a footnote, Miller said that combat roles “no longer uniformly require sheer size or muscle.” Women “could conceivably be better suited physically for some of today’s combat positions than the average man, depending on which skills the position required,” he said.

The Selective Service System had argued that a ruling on the case should be postponed under separation of powers principles because Congress is currently considering whether to add women to the draft. The government had argued that the congressional debate also meant the case is not yet ripe for review.

The government noted that a national commission was considering congressional recommendations.

But there is no guarantee that Congress will act, Miller said. Congress has been debating the male-only draft since at least 1980 and recently rejected a proposal to include women, he wrote. And national security concerns don’t justify a refusal to act by the courts, he said.

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Plaintiff seeks judge’s removal over ‘intimate’ hand clasp with opposing lawyer


A condominium association is asking a Florida appeals court to kick the judge off its case because he affectionately clasped the hands of the opposing counsel after she approached the bench to speak about an unrelated matter.

The De Soleil South Beach Residential Condominium Association has filed a petition for a writ of prohibition to remove Judge William Thomas from the case, the Daily Business Review reports. Previous coverage has identified the judge as openly gay.

The opposing lawyer is Mary Barzee Flores, a former judge who served on the Miami-Dade circuit court at the same time as Thomas before she left the bench in 2011. She also worked in the federal public defender’s office with Thomas.

The hand clasp occurred at the conclusion of a status conference Jan. 17, according to the condo association petition. After Barzee Flores approached the judge, she placed her hands on the bench in front of him.

“While they were speaking, Judge Thomas took his two hands and clasped former Judge Barzee-Flores’ hands in a highly unusual and intimate sign of affection,” the petition says.

Throughout the conversation, which lasted a few minutes, the hand clasping between Barzee Flores and Thomas led the condo president “to reasonably believe that their relationship was so close and tender that it appeared familial or one based on a lifelong or extremely personal relationship,” the petition says.

During the status conference before the incident, Thomas also appeared to favor Barzee Flores, the petition says. Thomas would look directly at Barzee Flores, “giving her his rapt attention and respect.” But when condo lawyers spoke, “Thomas would look down or appear annoyed and even displayed a tone
of hostility.”

Thomas denied a motion to disqualify himself on Feb. 4.

A response to the motion says Barzee Flores had approached Thomas to tell him about her new position as deputy commissioner for consumer affairs for Florida’s agriculture commissioner. She is no longer on the case because of the new job.

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Special veterans courts see little money, little demand



Eric Gonzalez says he doesn’t remember getting pulled over, nor does he remember evading his arrest in Fullerton, California. The only thing he knows is that he woke up very hungover and faced up to nine years in prison for assaulting a police officer, along with five other charges.

Gonzalez, however, was on active duty in the U.S. Marine Corps when he was arrested in 2012, and thus eligible for an alternative: a veterans treatment court that helps service members charged with misdemeanors and some felonies avoid incarceration, if the crime is related to a mental health issue or drug dependency.

For nearly a year in the veterans treatment court program, he went to therapy, sobered up and finished his schooling. He’s out of the military and now works as an audio engineer.

“When I say [the program] changed my life,” he said, “I mean it.”

But to take advantage of it, he had to relocate to a neighboring county, away from his friends and family. There was no veterans treatment court near his home in San Bernardino County.

While almost all of the more than 3,000 counties in the U.S. have established specialized courts for drug addicts and the mentally ill, veterans courts have languished because of a lack of financial support, reliance on volunteer judges and low usage. Only about 500 counties have opened vet courts since the first ones in 2008.

The Marshall Project contacted 35 courts in counties with large concentrations of veterans and found that few see more than a couple of dozen cases a year. One Iowa veterans court has tried 10 cases since 2015.

“In order for this to work, there needs to be a combination of several different things: primarily a judge who’s interested and a county attorney who’s open-minded,” said Jeffrey Paulson, the presiding judge who volunteers once a week to oversee the veterans treatment court in Woodbury, Iowa. “It’s got to be a labor of love.”

Because the courts are newer and there are so few, research on their efficacy is scarce. Anecdotally, among participants, the courts seem to work. But there’s been only a handful of studies done over the past few years that have shown varied results with lowering recidivism among veterans who attend the courts compared with civilians.

“This veterans court model evolved like many of the other specialty courts, just out of [judges who] believed there was a need from what they saw in their courtrooms … and it spread without scientific evaluation,” says Julie Baldwin, associate director for research for justice programs at American University in Washington, D.C. “To say one veterans treatment court works doesn’t mean they all work.”

There are almost 200,000 veterans incarcerated in American prisons and jails, according to the Bureau of Justice Statistics. A third of those served in Iraq and Afghanistan, two operations that have resulted in what many refer to as “invisible wounds,” such as post-traumatic stress disorder and mild traumatic brain injuries. These cognitive disorders are known to increase drug usage and alcoholism, and tens of thousands of veterans or active members are incarcerated for drug possession or other misdemeanor crimes each year.

For veterans or active service members to qualify for the court they must have a mental health condition related to their deployment in an active battle zone. Prosecutors work with defense attorneys to negotiate whether the case should be heard in the treatment court, and service members go through counseling funded by the Department of Veterans Affairs. Once they are finished with the program, which can last from a few months to years, all charges are dropped.

President Donald Trump last year signed off on $20 million in grant funds through the Bureau of Justice Assistance for treatment courts, and both President Barack Obama and President George W. Bush pushed for greater funding as well.

But the veterans treatment courts haven’t disseminated to areas where there might be the most need, especially in rural areas, says Baldwin, who co-wrote a paper calling for the courts to be more critically scrutinized. Nine states have no veterans treatment courts at all, according to the National Center for State Courts, and some have only one, forcing some users to travel hundreds of miles.

In West Virginia, Republican state Sen. Ryan Weld (also an Air Force Reserves captain) pushed for veterans courts statewide in a bill this year. A handful of courts existed in the state’s northern panhandle until last year when the state supreme court abolished them, citing cost concerns.

“I think it’s important that instead of finding these people guilty, convicting them of a crime and incarcerating them, it’s important to try and find a root cause of what brought them to this point,”said Weld, once an assistant prosecutor.

In North Carolina, where there are four courts, Tommy Rieman, a former Army staff sergeant who was charged with driving under the influence, had to travel two hours every week for his court dates near Fort Bragg, 125 miles from where he lived in Charlotte.

“North Carolina is supposed to be this amazing state that is supportive of the military,” Rieman said, adding that the time and travel costs often put him in a financial bind.

But even where the courts have expanded, usually through the initiative of judges, there sometimes is little demand for them.

In Springfield, Missouri, the veterans court has seen 43 cases in the past six years. That’s primarily because the 9,000 veterans who live in the area are almost all retired and older, says Rhonda Ledbetter, the county’s court coordinator.

Even in counties that have a younger population, such as Phoenix or Dallas, few people go through the courts.

In San Diego and Seattle, both hubs for the U.S. Navy, only 200 cases have been heard in the past seven years—combined.

Some court administrators point to limitations on what cases can be heard, which vary from county to county. A felony that might make someone eligible in one jurisdiction, for example, would disqualify them in another.

Terree Schmidt-Whelan, executive director of Pierce County Alliance, which keeps records for the district court in Tacoma, Washington, said that because their program only takes on certain misdemeanors—the low-hanging fruit, essentially—the total number of service members their court sees is drastically fewer than what they want.

In Bell County, Texas, north of Austin, the veteran population accounts for 9 percent of those who come into contact with the criminal justice system and 18 percent of probationers.

“That’s double the national average,” according to Todd Jermstadt, director of community supervision for Bell County’s Department of Corrections. He also works with the county’s veterans treatment court, which has tried 177 cases in the last three years.

The number shocked him.

“I don’t get it,” he said. “Those numbers are just so low, I can’t fathom. Why aren’t we seeing these people? They’re out there. It’s not that hard to find veterans in Bell County.”

This article was originally published by the Marshall Project, a nonprofit news organization covering the U.S. criminal justice system. Sign up for the newsletter, or follow the Marshall Project on Facebook or Twitter.

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Takedown order for union’s giant inflatable rat didn’t violate First Amendment, 7th Circuit rules

First Amendment

Scabby the Rat court document image

Image via Chief Circuit Judge Diane Wood’s decision.

A Wisconsin town did not violate a local union’s First Amendment rights by requiring it to take down a giant inflatable rat erected on a highway median, a federal appeals court has ruled.

The 7th U.S. Circuit Court of Appeals at Chicago ruled last week that the town of Grand Chute’s 2014 sign ordinance, which banned private signs on the public way, did not discriminate on the basis of content in violation of the First Amendment. The court also said the city code enforcement officer did not selectively enforce the ordinance.

Chief Circuit Judge Diane Wood wrote the Feb. 14 decision that included an ad with pictures of the rat balloons, How Appealing notes. Bloomberg Law and the Cook County Record have coverage.

The local union had sued after the town’s code enforcement officer ordered the takedown of a 12-foot balloon known as Scabby the Rat in 2014. Construction and General Laborers’ Local Union No. 330 had erected the balloon across from a Toyota dealership employing a masonry company that allegedly was not paying standard wages and benefits.

The appeals court affirmed a federal judge’s decision that the town did not discriminate under a 2014 ordinance then in effect. The town passed a new ordinance in 2015, but any dispute over that law was not yet ripe for review, the appeals court said.

According to Bloomberg Law, other federal appeals courts have analyzed the First Amendment issues differently, making it possible that the U.S. Supreme Court will eventually be asked to rule.

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