What Ruth Bader Ginsburg means to me

In 1974, I found myself facing a law school admissions officer, who was going to interview me and determine if I were suitable to attend her law school. I sat there nervously, waiting for her first question. My brother had already gone through the process and told me how she peppered him with questions. My reasons for going to law school were simple. My older brother, my hero, was going to law school and I wanted to do whatever he did. After all, we were very similar. I also wanted to be self-employed and independent. It was as simple as that. I watched the admissions officer's face but she was looking down and shuffling my papers. Finally, she looked up and said, "Okay, you're in." I was surprised. "But you didn't ask me a single question," I said. She looked me straight in the face and responded, "Look, you prepared your application a year ahead of time, your college grades are great, and you're a woman. You're in!"

I was admitted to the California Bar at the ripe old age of 22. At that time, women comprised only 10% of the attorneys and we faced enormous obstacles. Someone decided it was okay for us to do family or contract law, but not trial work. We wore skirts because we would have been marked as competing with men if we attempted to wear pants. (Now, most women wear pants, leaving the uncomfortable skirts and heels at home.) I wish I had a nickel for every time a male attorney or judge mistook me for a secretary, asked me to get coffee or to go to bed with them. Those nickels could have funded my 401(k) plan for the rest of my life.  

Appearing in court presented another set of problems. Male attorneys and judges were often hostile as if we didn't know our place was really in the kitchen or the bedroom. When I took over a case from a male attorney (who later became a judge), I tried to discuss the case with him. He took one look at me and exclaimed, "I am being replaced by a woman! No way am I talking with you." When I appeared in Court to ask for the right to amend a pleading, my male opponent objected and the judge replied, "I am going to give this little lady anything she asks for!" Good for me but totally unsatisfying as to showing the proper respect for an attorney.

We had only a handful of women to look up to, including Ruth Bader Ginsburg, who blazed the trail ahead of us. When I faced a new client who said, "I want a real pit bull for an attorney. Are you sure you are up to it," I thought of Ruth Bader Ginsburg and how she did not have to resort to yelling or threats to get her point across. Pit bulls cost more money and they aren't always effective. Some clients watch too much television.

When Ruth encouraged women to help others who were less fortunate, I turned my sights away from big business and focused on the "little guy." I spent most of my career working for people and helping them in any way I could. Sometimes just by giving advice or calling another colleague. No one left without a possible remedy for his or her problems. 

I certainly admired, no worshipped, Ruth Bader Ginsburg. I would tell others that she was my aunt, only she didn't know it. Of course, she wasn't, although I wanted her to be. When I looked at some comments on the Internet, here are some of her accomplishments:

Because of her.....

* Women can take out a credit card in their own names without

a male signatory

* Women can't be fired for being pregnant

* Women can earn admittance into military academies

* Women are legally protected from any form of violence

* Women are allowed to live with their significant other without

being married

* Women can ask for divorce due to domestic violence

* Women can open their own bank accounts without male

permission

* Women can adopt a baby as a single woman

* Women are allowed to sue companies for pay discrimination

even after six months have passed

and on...and on...and on.

I will miss you, Ruth Bader Ginsburg. I will always try to follow your example. I hope you will get your wish that a new justice will be appointed after the election. It may not be possible, but we will fight for that dream.

Why the rule of law matters

When I am asked what films had an impact on my decision to become a lawyer, To Kill a Mockingbird is an obvious choice. I would also add A Man for All Seasons, a play written by Robert Bolt that eventually became a movie. I was so impressed with Sir Thomas More's choice to die rather than sign the Oath of Supremacy, which acknowledged King Henry VIII as the supreme head of the Church of England and recognized the annulment of his marriage to Catherine of Aragon. Because of his refusal to sign the Oath, More was convicted of treason and executed in 1535. (I wonder if I could have held to my beliefs under those circumstances.)

In that play, Robert Bolt, who was apparently an agnostic, wrote about the importance of the rule of law. When William Roper asked why More could not just sign the Oath, even if he did not believe in its contents, they had this exchange: 

William Roper: “So, now you give the Devil the benefit of law!”

Sir Thomas More: “Yes! What would you do? Cut a great road through the law to get after the Devil?”

William Roper: “Yes, I'd cut down every law in England to do that!”

Sir Thomas More: “Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!”

That passage has resonated with me for my entire career. It gave me a reason to support the rights of those who I might not necessarily agree with or like. Maintaining the rule of the law was for not just their protection but mine as well. That meant standing up for those who are discriminated against now and not waiting for the discrimination to be practiced on those who were like me.

For months, I have observed the dismantling of the rule of law by the Trump Administration. Honestly, it sent chills through me as I watched Trump ignore the rule of law over and over again. Now that violation of his oath and duty as president has reached a new pinnacle. Every citizen of this country should be afraid, really afraid, as Trump has sent federal agents of DHS and ICE to act as the Gestapo in the streets of our cities - mostly Democratic-run states - to instill fear in our citizens.

From the beginning, the Black Lives Matters protests marked a change in our national conscience. Perhaps it was the fact that many of us were self-isolating from the tragic spread of COVID-19. Maybe we were facing our own mortality. Maybe we were examining our country - #1 at what? - and resisting the idea that we were going to be ruled by racism. Many felt, as I do, that we are better than this, but in striving to reach a higher level of of love and tolerance, we still had to face our racist past. For some, that was not part of the past; it is very much part of their present. I support those protests, which were mostly non-violent, because they are making a difference. Of course, there was always the fear that the protests would be taken over by others with a different agenda. Still, the accomplishments are something to be proud of.

As his ratings in the polls continue to slump, Trump has decided that he will appeal to his base and maybe others who want a law-and-order president, one who will not tolerate graffiti and damage to real property. At the express resistance of our local governments, these federal officers have shown up and exacerbated the situation. And why not? Could Trump justify sending in his Gestapo to quell a non-violent uprising of graffiti? That is hardly worth federal law enforcement stepping in at taxpayer expense.

But the snatching of protesters off the streets and whisking them away in unmarked cars by unidentified militia without probable cause is truly frightening. These actions are not done under the color of law and they are conducted in violation of the rule of law. Many laws. And, of course, they are making the situation worse, rather than quelling the protests. That simply plays into Trump's hands so he can justify the use of violence against peaceful protesters.

What about protestings who trespass on property, cause damage to personal property, or use graffiti? Law enforcement could take care of that and property owners have access to the courts to seek redress. Does it justify snatching people off the streets in unmarked cars? No, it does not. Because if we create excuses to apply the rule of law, then we are doomed, just as William Roper would be doomed in A Man for All Seasons.  

When I was very young, I wrote letters to world leaders for Amnesty International, imploring them to follow the rule of law and not simply imprison people who tried to protest. I would innocently urge them to look to our system of government where people could not be imprisoned without cause or indefinitely, and they had certain rights, even if they had committed terrible crimes. We knew of cases where individuals were snatched by their governments in the dead of night, never to be heard from again. Or their bodies would be found months later, dumped in forests or at the side of the road. I was so grateful I lived in a country where I thought that was not possible.

But it is possible now. If Trump's Gestapo is willing to beat up our citizens or snatch people off the streets without probable cause, then making them disappear may be the next step. We need to speak up!

The first death by the federal government in 17 years

Last week the federal government performed its first execution in over 17 years when it put Daniel Lewis Lee to death, using lethal objection. Mr. Lee was convicted of murdering an Arkanasas family in a 1990s plot to build a whites-only nation in the Pacific Northwest.

The U.S. Supreme Court received an application for a stay or vacatur one day after the District Court issued an order granting a preliminary injunction. A few hours before the execution was scheduled, the District Court enjoined four executions on the ground that the use of a single drug, pentobarbital sodium, constitutes cruel and unusual punishment by the Eighth Amendment. The plaintiffs cited new expert declarations that pentobarbital causes the recipient to experience "flash pulmonary edema," a form of respiratory distress that may produce the sensation of drowing or asphyxiation. The Government countered that such experiences occurs only after the person had died or been rendered fully insensate.

Of course, prisoners have sought stays of execution for many years. What is important here is the fact that the Court was split - as usual - in a 5-4 decision. Justice Breyer, who was joined by Justice Ginsburg, dissented, writing that we must ensure prisoners receive full and fair procedures, and furthermore, they do not spend an excessively long time on death row. As a third consideration, Justice Breyer indicated that the courts have the responsibility to ensure the executions are not inhumane.  

Justice Breyer noted Mr. Lee was sentenced to death in 1999 and spent over 20 years on death row, a delay that can "inflict severe psychological suffering on inmates and undermine the penological rationale for the death penalty." Mr. Lee's co-defendant, who was identified as the perpetrator who did the actual killing, was sentenced to lfie imprisonment. He also noted the District Court concluded the scientific evidence "overwhelmingly" indicated the method of killing would cause "extreme pain and needless suffering." He pointed out there were other available and alternative methods that would reduce that risk.  

Justice Sotomayor, joined by Justices Ginsburg and Kagan, also dissented, but expanded the reasons, focusing on the procedures employed by the Government to seek emergency relief. She wrote, "Yet because of the Court's rush to dispose of this litigation in an emergency posture, there will be no meaningful judicial review of the grave, fact-heavy challenges respondents bring to the way in which the Government plans to execute them."

On June 15, 2020, the Government scheduled new execution dates. Four days later, the respondents filed a motion for a preliminary injunction, as well as a motion for expedited discovery, submitting hundreds of pages of briefing and exhibits. The District Court stayed the executions to permit full consideration of the claims after two sister courts had independently stayed two of the executions. The Court of Appeals denied the Government's motion for a stay, because the "novel and difficult constitutional questions" required "further factual and legal development." The District Court set an expedited briefing schedule to resolve the appeal. Then the U.S. Supreme Court stepped in to grant the Government's last-minute application to vacate the stay allowing for the executions to take place before a proper consideration of the respondents' claims.

Justice Sotomayor noted the Court had previously denied a similar request by the Government seven months ago, when it prohibited the executions before the Court of Appeals could address respondents' challenge to the federal execution protocol, including challenges to the merits of respondents' Administrative Procedure Act (APA) claim. The Court's decision "forecloses any review of respondents' APA claims and bypasses the appellate court's review of a novel challenge to the federal execution protocol," noting there was conflicting expert evidence that pentobarbital causes pain and suffering before the person is rendered insenstate, a claim that has never been adjudicated. Justice Sotomayor focused on the use of an emergency application from the Government for extraordinary relief, which inflicts "the most irreparable of harms without the deliberation such an action warrants."  

Justice Sotomayor concluded:

Today's decision illustrates just how grave the consequences of such accelerated decisionmaking can be. The Court forever deprives respondents of their ability to press a constitutional challenge to their lethal injunctions, and prevents lower courts from reviewing that challenge.  all of that is at sharp odds from this Court's own ruling mere months earlier. In its hurry to resolve the Government's emergency motions, I fear the Court has overlooked not only its prior ruling, but also its role in safeguarding robust federal judicial review. I respectfuly dissent."

When I was young, I was in favor of the death penalty as a means of punishment but many years ago I changed my opinion and felt that it should be abolished. That decision came after years of reading about criminal cases involving prosecutorial misconduct where evidence favorable to the defendant was concealed or never explored. Since man and by extension the Government and its army of lawyers are imperfect, then mistakes will happen, and these mistakes, whether intentional or negligent, increase the risk that innocent people will be executed. I also believe that employing the death penalty imposes psychological damage on those employing it. I would never be willing to put someone to death myself, so why should I ask others.  In Mr. Lee's case, even the family of the victims objected to executing him. And who knows what value that person might bring to the world, even from a prison cell. Execution does not seem a civilized way of dealing with crime and the fact that a man can sit on death row for decades seems cruel. Or the method employed produces pain, making the Government itself a cruel killer. We should rise above that as most other countries have.

Finally, the use of emergency procedures to avoid a full and meaningful review, when several lower courts felt there was "overwhelming" evidence by experts of the inhuman method of execution and wanted a full review and adjudication, seems riddled with problems. Why are we in such a rush to execute federal prisoners when we have not done so for 17 years?

Arbitration: What does that mean?

 

A guest post by Sandra Smith Gangle, J.D.,
Author of “Madam Arbitrator” (now available on Amazon)

            Often, when I tell people I am an arbitrator, they bombard me with questions. “What does that mean?” “Are you a counselor? A mediator?” I have even been asked whether I “meditate in a particular religion.” And once, I was asked if I “prescribe medication” as part of my work.   

            The short answer is that an arbitrator is more like a judge than any of those other professionals. I am a labor arbitrator, which means I am neutral and impartial in labor relations matters. I am not biased in favor of either unions or management and I am knowledgeable in collective bargaining law. I apply labor contract language, like just cause, to resolving workplace disputes. I have been approved to conduct contested hearings in private industries and in the federal government, through FMCS, and in cases involving public employees like teachers, police officers and government workers though the states of Oregon, Washington and Alaska. 

            I also have arbitrated cases involving small claims in the Marion County Circuit Court.  In those cases, where no jury was required, the judges could assign a private arbitrator to conduct the hearing and make a decision that was then enforceable as if it were a judicial order.

When I arbitrate a dispute, I conduct a hearing in which there is a claimant or grievant and a respondent who denies that the claim has any merit. I swear in witnesses for the claimant and respondent, so they must tell me the truth in their testimony. When the hearing ends, it is my duty to analyze the evidence (testimony and documents) in an objective and unbiased manner in light of the applicable legal standard, which is the private contract that the parties have negotiated or the public law in a court-connected arbitration. After carefully deliberating all the evidence, as well as the arguments made by the parties’ advocates, I decide whether the party that bore the burden of proof in the case convinced me that they proved their position by a preponderance, more than fifty percent, of the evidence. Then, if the claimant proved that the respondent violated the contract or law in some fashion, I must implement an appropriate remedy to make the claimant whole, that is, restore them to the condition they should have earned, as completely as possible.

Some non-union employees may see the word arbitration included in their employee handbook. They may believe they have the same protection as unionized workers, but they do not. If they believe they have been treated unfairly in the workplace, they may believe that an arbitrator will remedy their claim. Unfortunately, in such cases, which are known as employment arbitrations, there is usually no contractual right that an arbitrator can enforce, so the employer is more likely to prevail in the case. There is unlikely a just cause standard for termination, for instance, and there is probably no requirement that the employer consider seniority and qualifications when granting a promotion to a higher position.

For those reasons, I never accepted appointments in such cases. I knew the parties had played no role in creating the terms and conditions of employment, so I felt that the hearing would be biased in favor of the employer. My passion was to arbitrate cases in which the law of the case had been enacted through a democratic negotiation process, that is similar to a public law that is enacted by elected legislators. As a labor arbitrator, I always knew the employee-claimant would be represented by a union and the law of the case would be a collectively-bargained labor agreement, not the arbitrary policies of the employer.

I would enjoy talking to interested parties about how I became an arbitrator, where I practiced in a career heavily dominated by white males. My passion in writing my book, “Madam Arbitrator,” was to inspire other women and persons of color to choose to follow my road map to a great career as a legal practitioner.  

     Note: The author is now retired from her arbitration practice and is devoting her time to writing and speaking to groups of people who are interested in her career as a lawyer and arbitrator.  Her website is www.madamarbitratorgangle.com.  She can be reached at her e-mail address, ganglesandrajd@gmail.com, to schedule a book-discussion meeting, either in-person or virtually via Zoom.  

Enough legal news to make you forget the pandemic

Events in the U.S. are happening so quickly, it just makes my head spin. Nothing like a little diversion from the raging pandemic. In recent rulings, the Supreme Court filed several decisions that will make some people angry and others happy:

• In Trump v. Vance, the Court ruled that Trump must release his tax returns and financial records to the Manhattan D.A., who is pursuing him for hush money payouts. In the 7-2 decision written bu Chief Justice Roberts, and joined by Justices Neil Gorsuch and Brett Kavanaugh, the Court held a president is not absolutely immune from state criminal proceedings nor is he or she entitled to a heightened standard of need. Justice Kavanaugh acknowledged, “In our system of government, as this court has often stated, no one is above the law. That principle applies, of course, to a president.”  

• In another 7-2 ruling, the Court held religious schools are exempt from fair employment laws.  Two fifth-grade teachers at Catholic parochial schools in California filed lawsuits. One claimed age discrimination and the other claimed she was terminated when she told the school she had breast cancer and would need time off, a violation of the Americans with Disabilities Act. Justices Sotomayor and Ginsburg dissented.

• In Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, the Court upheld the Trump Administration regulation that allows employers with religious or moral objections to opt of out of birth control coverage. This decision will limit womens’ access to birth control coverage under the Affordable Care Act and could impact over 126,000 women.

• In McGirt v. Oklahoma, the Court ruled in a 5-4 decision that a large chuck of eastern Oklahoma belongs to American Indians. The decision was written by Justice Gorsuch and casts doubt on hundreds of criminal convictions, finding the state cannot pursue criminal cases against American Indian defendants. The decision covers over 3 million acres, including most of Tulsa. 

In other legal news, a federal appeals court ordered the dismissal of Michael Flynn by U.S. District J. Emmett Sullivan. A lot of money was spent on this case, but ultimately Trump probably would have pardoned him anyway. 

Harvard and MIT have filed lawsuits to challege the Trump Administration’s rule that foreign students will lose their student visas and could be deported by ICE if their classes are held online. The University of California has also filed a similar lawsuit, claiming this regulation could affect 27,000 undergraduate international students, and 14,000 graduate students. It will also result in a significant loss of money to the University of California as many of these students pay full tuition. 

At least, Trump can enjoy the fact that he has appointed 200 federal judges, 53 appellate judges, 85% of whom are white and 75% male. What else would you expect? In less than four years, Trump has created a lot of litigation. I would love to know how much our government has spent on legal fees.