A Trial Lawyer in Federal Court- Grappling With Pseudo-Law

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Litigation is often compared to sports.  An imperfect analogy, but not a bad one.  There are usually at least two “teams” (the “plaintiff” or “prosecutor” and the “defendant”) and normally a winner and a loser.  The stakes for the players are often high.  In criminal cases, the defendant’s very liberty is at risk.  In the civil context, a monetary award can change the lives of both plaintiffs and defendants.  This is particularly true for plaintiffs who have suffered catastrophic injuries and can no longer work, or are facing enormous medical bills.  Because of the high stakes, both sides prepare zealously for their day in court. Trial is a winner-take-all proposition.  It is an unscripted and unpredictable match, filled with drama, shifting strategy and gamesmanship.  At the end of the trial, 12 random jurors (people with their own unique life experiences, education and inherent biases) will decide the winner and the loser.  The decision is a profound one, often altering the lives of those involved.

In the mist of the inherent unpredictability of litigation, litigants and lawyers take some small comfort in knowing the process is at least governed by rules.  And these “rules” are enforced by a judge, who plays a role very similar to a referee.  The judge makes sure both sides play a fair game.  So although litigants don’t know what the outcome of litigation will be, they at least know how the game is supposed to be played.  And that is important.  Because the thin line separating what is just from what is arbitrary is called predictability.

In large part, our entire legal system is set-up to establish predicable rules.  This isn’t news.  Our nation began with a bunch of colonist fed up with the arbitrary impositions of a monarch sitting on a throne across the Atlantic.  It wasn’t so much the ridiculous taxes that had colonist fuming, it was the fact that they were being imposed out of left field, with no rhyme or reason. How can anyone live that way?  With such uncertainty! We need rules because rules create predictability.  Predictability, in turn, gives us at least a sense of control and allows us to plan our tomorrows.  This isn’t so much a legal principle as it is an element of human nature.

But law is a reflection of human nature.  So for the system to work, the law needs to be predicable. The law does not always need to be right. It does need to be consistent.

Written judicial opinions are a linchpin of our nation’s legal system and are paramount to ensuring consistent, predictable rules.  One important point of a written opinion is to allow a judge to explain and justify his or her legal decision to specific parties in specific cases.  But more important, judicial opinions either create or follow precedent.   They either create new legal rules (for instance in cases where no rule has ever been established or where a prior rule is no longer viable), or they follow the legal rules that have been established in prior cases.  In situations where there is a well-established legal precedent that still works, judges are expected and normally required to follow those established rules.

But let’s be clear. The point of legal precedent is not to create the “best,” the “most practical” or the “most rational” rules.  That’s not it at all.  The purpose of legal precedent is to create consistent rules that are consistently applied. In a simplified sense, legal precedent serves a similar purpose to a rule book in sports. You might believe that a specific rule is not fair or illogical.  You might believe a specific rule is outdated and should be changed (happens all the time in professional sports).  But as long as everyone knows the rules ahead of time and those rules are followed during “the game,” there is at least a rough sense of justice.

But, imagine a situation where two professional sports teams square off in championship game.  Both teams put in a tremendous amount of work to get to this final game and made significant personal sacrifices. This “game,” this moment in time, will impact the future of these players. The outcome is not just about deciding the “winner” and the “loser.”  It is bigger than that.  There are financial stakes, careers and legacies on the line.  No doubt there will be unpredictable moments, key turning points in the match.  Both sides are hoping to play their best and catch a few lucky breaks along the way.  As they walk out onto the field to start the match, neither side knows exactly what is going to happen.  In fact they live every day in a world of stress and uncertainty.  The only comfort these players have is that they know how to play the game.  They may not know the outcome, but they know the rules. And that is something vital.  Crucial.  Because at its core, this “game,” inherently influenced by unpredictability and randomness, has a set of consistent principles that the players can rely upon.  They can plan around these principles! Without them there is only chaos.

The whistle blows, the game starts.  But then something funny happens.  It is not truly funny, it is bizarre and utterly frightening.  The referees who are supposed to be enforcing the rules are acting strangely, unpredictably.  In fact they are not following the rules at all.  They are making arbitrary decisions. They are not enforcing the written rules.  They are making calls that seem to make no sense.  Refusing to blow the whistle when it is clearly appropriate. The players are confused, tentative.  They are not sure what is happening and not sure what to do.  The game being played on the field is completely different than the game they have played throughout their career.  They look to the referees for answers, but get no explanation that makes sense. With no guidance, the players throw out their game plan, ignore the rule book and start doing whatever the referees will allow.

At some point the game ends.  One team is declared the winner.  But everyone understands it is not a just result because the game was not played according to the rules.  It was chaos.  The losing team is demoralized and angry. They were never given a fair shot.  The rug had been pulled out from under them by referees who decided, apparently on their own, to change the rules during the game.  They feel betrayed, but utterly powerless.  Although they are reluctant to say anything critical of the referees, even the winning team will concede that the game was strange and the rulings unpredictable.

The losing team really does not have much of an option.  They can only complain to the league’s front office.  They file a formal petition, a protest, and ask that the game be replayed.  They point out that the referees were acting erratically and did not follow the rules. In fact their protest points out specific examples of the referees’ mistakes and demonstrates beyond question that the mistakes cost them the game.  The response they get is cold comfort.  The league’s front office sends a letter to the losing team and acknowledges that things went a little sideways during the game.  The league concedes that the referees did not apply the rules as written and “yeah, okay, maybe some mistakes were made.”  But, from the league’s perspective, it’s no big deal.  It was only one game after all and no-one is perfect!  Although the referees did not follow the rules in this particular game, it’s not like they created a whole new rule book.  Next year, when the seasons starts again, the same old rule book that had always been in place will still be used. Next year the referees will be expected to follow the old rules – not the random decisions made by the referees in last season’s championship game.  Maybe the losing team got the short end of the stick in this single game, they lost unfairly.  But life is not always fair and in the scheme of things, all will be well.  We don’t need to “replay” the game, because it was only a minor, one-time hiccup.  The letter concludes by “reassuring” the losing team that if other referees in future games start applying different rules, if it becomes a consistent problem, the league will take formal action “to do something about it.”  Until then, let’s all just move along.

The losing team is clearly not satisfied with this response.  “Ok, great,” the team thinks, if it happens again the league will “do something about it.”  But “what about us,” they say?  “We lost a game we should have won!”  “Where is the justice for us?”  What is really frustrating though, is that everyone else in the league seems to be okay with the league’s explanation.  Everyone seems to be okay with the fact that the losing team was treated unfairly.  Justice for one particular team doesn’t matter, as long as unfair treatment does not become a systemic problem.  So long as it does not happen again next year . . .

This fictional scenario seems absurd, even outrageous.  It is an embellishment, to be sure.  But the truth is that our federal appellate courts actually operate in an analogous manner.  Today, federal courts of appeal decide most cases by issuing written opinions that are designated as “non-precedential.”  The idea of a “non-precedential” opinion is to expeditiously resolve specific disputes between litigants without creating precedent.  In fact, these non-precedential opinions contain a specific disclaimer that the decision is not precedential and “does not bind the court.”  In other words, the circuit courts are basically saying, “Okay, well we decided this particular case this particular way.  But, that doesn’t mean we won’t change our mind and do the opposite next time. Carry on and good luck.”

The fundamental problem with this approach are easy to see.  But before discussing the problems with non-precedential opinions, why do these things exist in the first place? Ultimately, non-precedential opinions became a thing because of volume.  Historically, federal appellate court decisions were published in bound books sometimes called “Reporters.” Still are in fact.  In the 1950s and 1960s the volume of appeals began to rise dramatically and, thus, so did the volume of written appellate decisions.  The consequence of this increase in appellate decision was that the official bound Reporter containing appellate court opinions was becoming too large and unwieldy.  The Judicial Conference noted this problem, and also recognized that a lot of the opinions being crammed into the Reporter were redundant and only addressed well-established legal rules.  Because these opinions were not creating new precedent or clarifying old precedent, they really were not all that important.  So why take up space in the Reporter with these run-of-the-mill opinions?

The second issue, also the result of an uptick in volume, was that the number of appellate court judges was not keeping pace with the number of appeals.  So as the number of appeals continued to grow, appellate judges were forced to churn out more and more opinions.  The strain on judicial time and resources started becoming a problem.

So the Judicial Conference came up with a simple solution that would reduce the size of the federal appellate Reporter and relieve the strain on appellate court judges.  Instead of the appellate courts deciding each appeal with a precedential opinion, why not create “non-precedential opinions”?  The idea being that for run-of-the-mill cases, those that do not involve new issues of law or novel issues of fact, why not let appellate court judges dispose of these cases quickly, without much effort? A lot of time and attention is spent on precedential judicial opinions because litigants rely on those decisions and lower court judges are required to follow them (trial court judges are “bound” by the appellate court decision). Precedential opinions have a ripple effect, they impact everyone, not just the parties involved in the specific lawsuit being decided by the appellate court.  But if we allow appellate judges to designate an opinion as “non-precedential,” we can do away with this ripple effect! Other litigants will not be allowed to rely on “non-precedential decisions” and lower courts will not be bound by them.  It’s like it never happened!  These non-precedential opinions don’t really exist!  And if they don’t really exist and won’t impact anyone else, appellate court judges do not need to spend as much time on them.  If they get it wrong, it’s no big deal because the damage will be limited. Plus, these “non-precedential opinions” will not be placed in the federal Reporter so they would not take up valuable space on the bookshelf.  Sounds like a great plan, right?

For their part, the various circuit courts of appeal were really digging this new “non-precedential” opinion deal.  In fact, non-precedential opinions became so popular that the in the past 10 years, the vast majority of all appellate court decisions are non-precedential.  From 2000 through 2008, for instance, approximately 85% of the Third Circuit’s decisions were non-precedential (the Third Circuit includes Pennsylvania, New Jersey and Delaware).

But this “non-precedential” opinion approach has its problems.  In fact it is a quintessential example of a plan looking really good on paper, but having really troubling implications.  One of the prime problems being that non-precedential opinions appear fundamentally unfair.  Another is that non-precedential opinions turn the entire concept of predictable rules on its head.

Let’s start with the issue of fairness.  First of all, allowing judges to “decide” which cases to designate as non-precedential (i.e. not worthy of publication or precedent) gives the unmistakable impression that appellate courts prejudge certain cases before even getting to the merits.  From the outside, it looks like appellate courts are imposing a subjective and opaque classification system. Deciding, without explanation, which cases are worthy enough for publication (and, some would argue, entitled to more time and attention) and which are not. From an optics perspective, this is problematic.  Although it is true that most appeals do not implicate broad social, political or financial concerns, that doesn’t mean they are insignificant.  You can bet that even a “run-of-the-mill” case is vitally important to the litigants involved.  For “the little guy,” when their appeal is dispatched with a short, terse opinion, it looks like the appellate court did not take their case seriously.  It feels like they didn’t get a fair shake.  Perception and all of that.

The length and quality of non-precedential opinions often make matters worse.  I have not done any research on this issue and I don’t have any empirical evidence, data or metrics supporting my position.  However, in my experience as a practicing trial lawyer (including my time as a federal law clerk), non-precedential opinions are often significantly shorter and contain less rigorous analysis than precedential decisions.  There are exceptions of course.  But, in general non-precedential opinions appear hastier. The product of a system valuing quantity over quality.  But is this what we want from our courts of appeal?

Fairness aside, it is difficult to square non-precedential opinions with a legal system that values consistency, predictability and, quite frankly, due process.  As I noted above, at the very top of every non-precedential opinion is a disclaimer that the opinion you are about to read is not binding precedent.  That allows the same circuit court to decide the same legal issues differently in different cases.  Applying the law differently to different people is inconsistent with bedrock constitutional principles, namely due process.  To be fair, our nation is dual sovereignty with 50 states and 13 federal circuits.  So we are bound to end up with inconsistent legal rulings across the federal circuits (called “Circuit splits”) from time to time. But when different circuits decide the same legal issue differently, when there is a Circuit Split, the Supreme Court usually steps in to resolve the inconsistency.

But this is different.  It’s different because non-precedential opinions allow and arguably encourage individual circuit courts to render inconsistent rulings. Simply by designating an opinion as non-precedential, a circuit court is explicitly reserving the right to change its mind next time it hears the same issue.  The practical impact of such a discretionary system is that it provides zero clarity to litigants.  It provides zero predictability.  Today the court of appeals is saying the law is X, tomorrow it is Y, and next week it is Z. It doesn’t matter though, because the opinions are “non-precedential!”  They don’t really count!!!!

Sounds questionable, right?  Sounds fundamentally flawed?  It is, and the inherent problems are exposed when a losing party asks the circuit court for a rehearing en banc.  Normally an appeal to a circuit court is heard and decided by a three judge panel.  On rare occasions, the entire court of appeals for a circuit will decide a case together.  So, for instance, in the Third Circuit there are presently 14 active judges.  Normally a case appealed to the Third Circuit is sent to a panel of 3 judges. This is done for efficiency reasons.  If all 14 judges had to decide every case not a lot of cases would be decided. When a three judge panel makes a decision, the losing party can ask for a rehearing en banc, meaning that all of the judges on the Third Circuit reconsider the case together.

An en banc hearing is extraordinarily rare and requests for a rehearing en banc are almost always denied.   The criteria for granting an en banc rehearing is very limited.  One of the primary factors the Third Circuit will consider in deciding to proceed with an en banc rehearing is whether the panel’s decision “involves a question of exceptional importance.”  Naturally, when a losing party requests an en banc hearing they typically argue that not only was the panel’s decision wrong, but the legal issue is so important it requires an en banc rehearing to fix the mistake.  And here is where the justification and rational for non-precedential opinions begin to break down.   If the winning party files a response to the request for a rehearing en banc, it often argues that the panel’s decision was correct AND even if it is wrong, the decision is not of “exceptional importance.”  Why not? Well if the panel’s decision was non-precedential (and it almost always is), the winning side usually argues that because it is a non-precedential opinion, other courts and other judges don’t need to follow it. In fact they can ignore the decision and “fix it” next time.  In other words, there is no ripple effect.  The panel’s decision may be wrong, but the only person impacted is the guy who lost.  That may be sad for him, it may be unfair, but life is not fair and his unfortunate loss is not “exceptionally important.”

The crazy thing is, this is a legitimate argument.

So what’s the solution?  The easy answer is to do away with non-precedential opinions altogether.  The historic justification for creating non-precedential opinions is dubious and at the very least outdated.  Most attorneys do their case research online these days so ongoing concerns about thick, unwieldy hard-copy Reporters are questionable. Nobody really uses them!  It is also fair to question the argument that non-precedential opinions can be drafted faster and more efficiently than precedential decisions. If the justification is that non-precedential opinions are reserved to routine decisions based on well-established law, well then why can’t these decisions be made just as quickly without assigning a “non-precedential” label?  Shouldn’t appellate judges make the same effort in all cases? Shouldn’t they stand by the quality and clarity of their work?

Look, I get it.  Some will argue there are still advantages to non-precedential opinions.  It’s faster (again I doubt this).  It’s more efficient!  Maybe.  If you value speed and efficiency in appellate review, maybe this is a good thing.  But if you value individual justice, if you value predictability, well, you may have some legitimate concerns.

James Goslee is a trial attorney in Philadelphia and can be reached at http://jamiegoslee.com/about/

Think the First Amendment Applies in Philadelphia? Only if You Know the “Magic Words”

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Free Speech – It’s More Than Just Words

The right to speak freely is the right to live freely.  It is a fundamental aspect of liberty.  Of all the rights protected by the Constitution, freedom of speech is generally regarded as the most powerful guard against oppression.  And for good reason. The right to express thoughts, ideas and concepts without fear of repression or reprisal is quintessential to self-determination and a bedrock principle of democracy.  But it is even more than that.  It is part of our national identity as Americans.  We are free people.  That means, above everything, we can speak freely.

You would think then, that freedom of speech and expression is not a contingent right. You would think that there are no prerequisites or hoops to jump through before we can speak our mind.  It’s not like we have to tell the government we are “opting into” the First Amendment to enjoy its privileges, right?  We don’t need to tell the government we intend to exercise our First Amendment right before we express ourselves, right?  The First Amendment applies automatically, right?????  Well, until last week, you would be correct.  But according to one federal district court judge in Philadelphia, we are all sadly mistaken.

Before discussing Judge Mark Kearney’s remarkable decision last week in Fields v. City of Philadelphia, et. al., it would be helpful to put the First Amendment in context.  The actual text of the First Amendment dealing with speech is pretty short, but its interpretation and application is incredibly broad.  The First Amendment itself states:

“Congress shall make no laws respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

Like I said, the text is pretty short. But over the past 200 plus years, Courts interpreting the First Amendment have applied it very broadly.  Which makes sense, because the First Amendment was not intended to apply only to verbal “speech.”  We don’t just communicate through words after all. For instance, shaking your head side-to-side is just as effective as saying the word “no.”  Likewise, whether words are used or not, artwork and artistic performance are quintessential mediums of expression and enjoy the same First Amendment privilege as actual speech.

The point here is that “freedom of speech” does not just apply to speech, but to actions that can reasonable be considered expressive (e.g., shaking your head, pointing a finger, dancing, even remaining silent).  And there is no itemized list of non-verbal communications that can be considered “speech.”  Judges are often tasked with the job of determining when certain non-verbal conduct constitutes expression for purposes of the First Amendment.

Is Videotaping Police Officers Protected by the First Amendment?

Over the past few years, one novel form of non-verbal conduct that has been considered a protected form of expression is citizens taking photographs or video footage of police officers.  This is considered a “novel” form of speech because it really didn’t become a thing until the recent advent of smart phones with built in cameras.  But today, especially with recent controversies involving allegations of police brutality and misconduct, it has become rather common practice for citizens to video tape and photograph police officers.  This is especially true when citizens, right or wrong, are concerned about the conduct of officers making arrests.

Why is recording police in the field considered protected speech? Because, again, the freedom of speech does not just apply to speech.  In the context of recording police officers, there are two important interests at stake for purposes of the First Amendment.  First, the act of recording police officers in action can be considered “expressive conduct” because it can imply criticism or protest of the police action. Moreover, the art of taking photographs (or shooting film) is inherently artistic and requires artistic judgment (ask any professional photographer).  Even more importantly, recording police officers is considered “news gathering” and historically the right of journalist to record what they believe to be newsworthy footage has been afforded First Amendment protection.  The idea being that photographing and/or recording the actions of government officials promotes discussion of government affairs.

Virtually every court that has considered the issue of recording police officers has concluded that it is protected by the First Amendment.  The list includes federal courts of appeal in the First, Fourth, Ninth and Eleventh Circuits.  The First Circuit addressed this issue way back in 2011 and was pretty firm in deciding that the First Amendment protected citizens filming on-duty police officers. In Glick v. Cunniffe, the First Circuit explained its rational as follows:

It is firmly established that the First Amendment’s [reach] extends further than the text’s proscription on laws “abridging the freedom of speech, or of the press,” and encompasses a range of conduct related to gathering and dissemination of information.  . . . An important corollary to this interest in protecting the stock of public information is that ‘there is an undoubted right to gather news ‘from any source by means within the law. . . . The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities fits comfortably within these principles. Gathering information about government officials in a form that can be readily disseminated to others serves a cardinal First Amendment interest in protecting and promoting ‘the free discussion of government affairs.’

Fields v. City of Philadelphia

Now, with this background in place, let’s discuss Judge Kearney’s recent decision in Fields v. City of Philadelphia.  The Fields case is actually two similar (companion) cases involving the same issue – does the First Amendment protect citizens filming on-duty police officers?  Judge Kearney concluded that, based on the factual circumstances of the cases before him, it did not.  It’s not so much Judge Kearny’s conclusion that the First Amendment did not apply to the plaintiffs in Fields (which is inconsistent with virtually every other federal decision on the issue) that is troubling.  Rather, it is how he rationalized his decision.

In 2013, Richard Fields was a student at Temple University in Philadelphia.  Allegedly, he was walking down the street and saw about 20 officers standing outside of a house party.  Fields thought it was an interesting scene – seeing so many officers outside a house party – and thought it would make a good picture.  So he took one.  At that point, one of the officer on the scene approached Fields and allegedly stated “do you like taking pictures of grown men” and insisted Fields “move along.”  For his part, Fields didn’t particularly enjoy photographing grown men, and, quite appropriately, declined the officer’s invitation to “move along.”  It is a free country after all! At which point he was arrested and cited for “Obstructing Highways and Other Public Passages.”  The officer also took Fields’ phone and began looking through the photos, but did not delete them.

Not to be outdone by Fields, in 2012 Amanda Geraci attended a public protest against hydraulic fracking outside the Pennsylvania Convention Center.  At some point during the protest, one of the protesters was being arrested.  Geraci took out her phone and began recording the arrest.  According to Geraci, she was “attacked” by an officer who restrained her and prevented her from recording the arrest.  She was not arrested or cited.

Both Fields and Geraci sued the City of Philadelphia.  Both alleged that the Philadelphia Police violated their civil rights and, specifically, the First Amendment.  Both suits came before Federal District Court Judge Mark Kearney.

At the close of discovery, the City filed Motions for Summary Judgment against both plaintiffs, contending that there is no general First Amendment protection for citizens recording on-duty police officers.  As Judge Kearney saw it, the square issue for him to decide was “whether photographing or filming police . . . without challenging the police is expressive conduct protected by the First Amendment.”

Now, for legal observers this case seemed like a slam dunk for the plaintiffs.  As noted above, the issue had already been decided by a number of appellate courts and everyone seems to agree the First Amendment applies.  But Judge Kearney saw things a bit differently and rejected the plaintiffs’ First Amendment claims.  The decision itself is almost certainly wrong, but that’s not the real issue.  The real issue is the legal reasoning Judge Kearney used to reach his conclusion.  In Judge Kearney’s opinion, the First Amendment only protects citizens recording on-duty officers if they first explain to the officers why they are recording them.

According to Judge Kearney,if you are going to photograph the police you need to tell them why you are taking the photograph. The act of photographing or recording alone is not “expressive conduct.”  More specifically, before the First Amendment protections apply, Judge Kearney would require citizens to explain that they are recording police (1) out of protest or (2) because they are critical of the police officers conduct. In other words, if you live in Philadelphia and are interested in the fundamental protections guaranteed by the First Amendment, you literally need to say so.

In theory, Judge Kearney’s decision is difficult to reconcile with . . . well…the whole concept that the First Amendment is a fundamental, inalienable right.  But the real, practical problem (and one I don’t think the Judge intended) is that the decision in Fields makes the First Amendment contingent; It only applies if a citizen can explain to a police officer why it applies. That cannot be the law.

Why not?  Well, let’s have some fun with this. With the recent passing of Justice Scalia, the Supreme Court lost its lone strict constructionist.  From a strict constructionist’s perspective, nowhere in the First Amendment does it say that the right to free speech is dependent upon a citizen’s ability to explain why the First Amendment should apply.  The Constitution does not put the burden on citizens to invoke guaranteed rights.  If it did, those rights would not be guaranteed, they would be contingent.

Another practical problem with the Fields approach is that it assumes (and really requires) that (1) all citizens know their Constitutional rights and (2) understand that to invoke those rights when filming police officers, they need to utter magic words protesting or criticizing the police (god help anyone unable to speak or with laryngitis!).  With respect to uttering words of protest or criticism towards police, if anything grafting such an arbitrary prerequisite onto the First Amendment would only serve to inflame or increase tensions between on-duty officers and the citizens recording them.  It really doesn’t make much sense.

To be fair, the line between traditional conduct (not protected by the First Amendment) and expressive conduct (protected by the First Amendment) is not always clear.  And whether conduct can be considered “expressive” is often in the eye of the beholder. To Judge Kearney’s credit, he recognized and acknowledged that his opinion in Fields contradicted similar decisions in other Circuits. Judge Kearney was not bound by any precedent in the 3rd Circuit and had the authority and the responsibility to decide the case on the facts before him.

But at the end of the day the Fields decision was wrongly decided.  Constitutional rights are considered “guaranteed” for a reason.  The Fields decision would fundamentally change the centuries of law by putting a new burden on plaintiffs’ to explain why they are entitled to constitutional rights before those rights can be invoked.  Such a burden is, on its face, inconsistent with concepts of liberty and freedom and frankly, unworkable.

It seems inevitable that the Fields decision will be overturned by the 3rd Circuit.  But until then, if you are in Philadelphia and get the urge to take photographs of police officers, best to play it safe and yell “protest” and “I am critical of police” while taking your pictures.

James Goslee is a trial attorney in Philadelphia and can be reached at http://jamiegoslee.com/about/

Photo Credit: Kristy Pargeter, Dreamstime Stock Photos

ARE YOU FROM PENNSYLVANIA? CONGRATULATIONS, HERE’S A 10 MINUTE PRIMER ON WHY YOUR GOVERNMENT SEEMS TO BE IMPLODING

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It’s tough to be a Pennsylvanian these days.  Especially if you are from Philadelphia.  Our State is on the verge of shutting down because we can’t pass a budget.  Our public school systems are still a problem and habitually underfunded.  And we can’t even take solace in our diversion of choice – sports (at least those of us in Philadelphia). The Flyers are terrible, the Eagles are worse and the Sixers are trying to lose games and have been for 3 years.

But compared to what’s going on in the upper echelon of our government, these seem like minor annoyances.  Because just now, Pennsylvania’s entire democratic government appears to be imploding.

The sheer volume and breadth of potentially career-ending allegations being asserted against the State’s political elite is astonishing and unprecedented.  If you haven’t been able to keep up with daily allegations of widespread political misconduct and corruption (and who could blame you), here is a quick rundown on the current state of your government:

  • Your elected Attorney General’s license to practice law has been revoked by the Pennsylvania Supreme Court and she is facing trial on multiple perjury charges, allegedly for lying about her role in leaking confidential grand jury information;
  • One of your elected Supreme Court Justices (Justice Seamus McCaffery) resigned after allegations that he sent pornographic, misogynistic and racially derogatory emails to other State employees, including prosecutors;
  • Governor Tom Wolf has formally requested that a second Supreme Court Justice (Justice Michael Eakin) resign, also for sending and receiving sexually and racially offensive emails. Justice Eakin has also been accused of exchanging offensive and inappropriate emails concerning female members of his staff;
  • A third Supreme Court Justice (the Court’s Chief Justice) has been accused of implementing a clandestine scheme to save his imperiled colleague’s job by appointing a ringer to the Court of Judicial Discipline – the Court responsible for doling out potential punishment to Justice Eakin; and
  • A number of your State’s top prosecutors have been accused of pursuing a racially tainted corruption sting targeting minorities. There are calls for some of these same prosecutors to resign or be fired for exchanging pornographic and offensive emails with the above referenced Supreme Court Justices.

The bullet points above are only an outline of recent headline grabbing allegations involving the leaders of your State.  The media has been using the term “Porngate” to describe the exponentially growing investigation into hundreds of arguably pornographic emails exchanged by government officials. As far as I know, none of the upper echelon political figures identified in these controversies has been convicted of a crime.  Most have not admitted to any wrongdoing, although Justice Eakin has issued an apology.  I can’t and won’t pass judgment on the guilt or innocence of any of the parties involved.  For the most part, these are all just allegations.  That said, every new, scandalous headline is a black eye for our home State.

At this point, these high-profile scandals have assumed a life of their own.  But what is remarkable, and lost in the avalanche of new allegations, is how this entire mess appears to have started in the first place.  Believe it or not, the ongoing investigations threatening to take down a significant chunk of Pennsylvania’s political elite seems to have grown from a small squabble between prosecutors.  Really!  It is like a Shakespearean tale.  Two prosecutors who didn’t like each other inadvertently set in motion a series of events that could result in the meltdown of Pennsylvania’s government (or at least its Judiciary).

Hard to believe?  Well, let me tell you a story . . . about what “allegedly” happened:

Way back in 2012, Pennsylvania’s Democratic Party backed former prosecutor Kathleen Kane for Attorney General.  It had been an awfully long time since a Democrat had been Attorney General in Pennsylvania. In fact, before Kane, no Democrat had EVER been elected Attorney General in Pennsylvania.   But Kane liked her chances and so did her supporters.

One of Kane’s campaign strategies was to criticize then Governor Tom Corbett’s handling of the Jerry Sandusky case. Governor Corbett had been serving as Pennsylvania’s Attorney General when the Attorney General’s Office began investigating claims that Jerry Sandusky was sexually abusing minors.  The primary attorney investigating Sandusky was Frank Fina, a well-known prosecutor with a long list of high-profile convictions.

During her campaign for office, Kane suggested that Corbett and Fina had delayed prosecuting Sandusky so that it would not impact Corbett’s successful bid to run for Governor in 2010.  On the campaign trail, she promised she would review Fina’s investigation into the Sandusky matter.

Kane was eventually elected as Pennsylvania’s Attorney General.  But, a number of newspapers reported that Fina was angry that Kane wanted to review his work on the Sandusky matter and that she criticized the way the prosecution was handled.

On March 17, 2014, the Philadelphia Inquirer broke a story that Kane, in one of her first significant acts as Attorney General, had quietly shut down an undercover sting operation that had succeeded in capturing various Philadelphia politicians accepting cash payments in return for favors. That sting operation had been run by Frank Fina.

The Inquirer story was critical of Kane shutting down the sting operation.  Particularly in light of the video evidence of politicians taking money as bribes.  Reportedly, Kane believed that Fina had leaked the story to the Inquirer. For her part, Kane told the Inquirer that she had shut the sting down because she believed that the individuals conducting the operation (i.e. Fina) had improperly targeted only black politicians.

Kane, angry about the Inquirer article, allegedly decided what is good for the goose is good for the gander and decided to leak negative information about Fina.  Reportedly, Kane leaked confidential memos from a 2009 Grand Jury investigation run by Fina.  Kane believed that Fina had botched the investigation and the memos proved it.  Fina, in turn, reported the illegal leak of Grand Jury memos to a Montgomery County judge.  That kick started a separate Grand Jury investigation into who exactly leaked the confidential memos.

Kane was then called to testify in front of a Grand Jury about her involvement in leaking the memos. She denied any wrongdoing, but the Grand Jury concluded there was sufficient evidence that she lied.  Boom! Kane is now facing a criminal trial in Montgomery County for multiple counts of perjury.

Still with me?  Good – because now things get a little crazy.

While Kane and Fina were allegedly busy trying to destroy each other, Kane made good on her campaign promise to review the Sandusky investigation.  Fina, who ran that investigation, was cooperating with the probe, but he had left the AG’s office and joined the Philadelphia District Attorney’s Office.  In order to better recollect his actions in the Sandusky probe, Fina reportedly requested his emails from that investigation.  That turned out to be an inadvertent, yet fatal mistake

When Kane started searching through Fina’s old emails from the Sandusky matter, she reportedly found additional emails he had sent or received that contained offensive and/or pornographic emails. Reportedly, this gave Kane leverage she could use to strike back at Fina and potentially destroy his career.

But Kane didn’t just find offensive emails from Fina.  She also found racially insensitive and offensive emails sent to and from Supreme Court Justices Seamus McCaffery and Michael Eakin, amongst others.  A number of people were included on these email chains, including prosecutors, making the emails not only offensive but evidence of troubling conflicts of interests (Supreme Court Justices really shouldn’t be exchanging personal emails with prosecutors when a significant part of a Justices job is to review the conduct of those same prosecutors). And this is the pivotal moment in this story.  Up until this point, the story playing out was simply a scorched earth personal dispute between two prosecutors.  But now, with these offensive emails being sent to and from Supreme Court Justices and high powered prosecutors, the controversy exploded.

Justice McCaffery resigned shortly after the emails uncovered by Kane came to light.  Justice Eakin did not resign. Special Counsel was hired to investigate Justice Eakin’s involvement and determined that the emails he sent weren’t really all that bad.  It was later reported that the Special Counsel had previously assisted with Justice Eakin’s re-election for the Supreme Court in 2011 . . . but that’s a different story.

Anyway, things with Justice Eakin were status quo for a time, but of course, in a story like this, it is inevitable that the next shoe would dropped.  And it did.  In a surprising move, the Supreme Court suspended Kane’s law licenses this past summer, ostensibly because of the criminal charges pending against her for perjury. By suspending Kane’s law license, the Supreme Court left the State’s lawyer-in-chief unable to practice law.

Now, it just so happens that not long after the Supreme Court moved to suspend Kane’s law license, additional emails from Justice Eakin were “discovered.”  These emails, reportedly included email exchanges between Justice Eakin and other men that contain highly suggestive and offensive discussions about female judicial staff members.

After the content of these “new” emails became public, Governor Wolf called for Justice Eakin to resign.  But, as a sitting Supreme Court Justice, it is for the Court of Judicial Discipline to decide whether Justice Eakin is fit to remain on the bench.

Now, you would think that if a Supreme Court Justice was subject to trial before the Court of Judicial Discipline the Court of Judicial Discipline would be independent of the Supreme Court.  But, of course you would be wrong. It turns out that the Supreme Court has the authority to appoint a judge to the Court of Judicial Discipline.  A few days ago the Inquirer broke a story that Justice Eakin and the Supreme Court’s Chief Justice Thomas Saylor were attempting to nominate Karen Snider, former secretary with the Department of Welfare, to the Court of Judicial Discipline because she would be sympathetic to Justice Eakin.  Regardless of the motives for appointing Snider, it appears Eakin was permitted to vote for Snider’s appointment, which seems like a potential conflict of interest.

I could go on for another dozen pages with this stuff, but my 10 minutes are up.  And you are now caught up on the current state of Pennsylvania politics!

PJames Goslee is a trial attorney in Philadelphia and can be reached at http://jamiegoslee.com/about/hoto Credit: Darastar, Everystockphoto.com

Attorney General Kathleen Kane Punches Back

City Hall

Beleaguered Pennsylvania Attorney General Kathleen Kane is facing mounting legal and political pressure to resign from office.  “Pressure to resign” is actually a bit of an understatement.  Kane is facing a criminal trial in Montgomery County for allegedly leaking confidential Grand Jury material to local newspapers in order to attack a political rival.  On top of that, the Pennsylvania Supreme Court has suspended her law license, and a Special Committee appointment by the State Senate has recommended that the legislature initiate potential impeachment proceedings.  But it is becoming increasingly clear that Kane does not intend to go down without a fight. And it could be a very long, very messy and very embarrassing fight for a number of elite government officials.

Only one week ago, a “Special Committee” appointed by the State Senate reported that it did not believe Kane could or should continue in her role as Attorney General.  The report was seen as the first step in initiating impeachment proceedings in the Senate. But today Kane threw a heavy counter-punch, hiring independent counsel to conduct an investigation  of her own into offensive and arguably pornographic emails allegedly exchanged by high-level State officials, including prosecutors and Supreme Court Justices.  Ostensibly, Kane appointed independent counsel to investigate and issue a report on potential crimes committed by individuals sending these offensive emails on government computers.  But the subtext is clear – her political enemies may succeed in forcing her out of office, but she is not going down quietly or alone.  Kane is going on the offensive.

During the press conference today, the Attorney General’s Office announced that it has appointment former Maryland Attorney General Douglas F. Gansler to conduct an independent investigation into the offensive emails. Gansler’s task is to determine if any crimes were committed in connection with these emails and make a recommendation as to whether individuals involved should be prosecuted.

Significantly, Gansler will not just be reviewing emails currently in the possession of the Attorney General.  He has been given authority to seek additional emails and has the ability to subpoena additional records.  The fact that Gansler has been tasked with expanding the scope of the investigation and has authority to issue subpoenas is important. His investigation may expand to implicate even more government employees.  Gansler’s investigation will almost certainly be viewed as a threat to Kane’s political rivals who are maneuvering to kick her out of office.  Kane’s back may be against the wall, but she is pushing back.

At today’s press conference, the Attorney General’s Office displayed a number of allegedly offensive emails.  These included racist and sexist jokes undisputedly offensive to women and minorities. Kane is clearly working to frame the emails as evidence of institutional bigotry within upper echelon of Pennsylvania’s government.  Her position is that she is being attacked by the politically powerful for trying to expose and root out this systemic prejudice.

Interestingly, Gansler went to great lengths at today’s press conference to establish that his investigation would be “independent” and that he would not be biased in anyway in favor of Kane.  It is always fair to question whether an independent investigator hired by an interested party can be truly “independent.” But Gansler didn’t do himself any favors by criticizing the Supreme Court for suspending Kane’s law license.  Gansler said at the press conference that the Supreme Court “waded across lines of separation of powers” in suspending Kane’s license.  If Gansler is truly conducting an “independent investigation” on behalf of Kane, he should probably refrain from offering her public support.

Regardless of the merits of either side’s argument, Kane’s actions today demonstrate that she is not afraid to throw a counter-punch and that her dramatic tenure as Attorney General will not end quietly.

James Goslee is a trial attorney in Philadelphia and can be reached at http://jamiegoslee.com/about/

 

Reality Check – State Governors Have No Authority to Exclude Syrian Refugees

Grunge Stars And Stripes Free Stock Photography

In the aftermath of the recent terrorist attacks in Paris, there has been widespread debate as to whether the United States should accept Syrian refugees.  Although the investigation into the Paris attacks is ongoing, it appears that some of the terrorist involved in the attack posed as refugees in order to enter the country.  The fear of a similar “Trojan Horse” attack in the United States has clearly struck a nerve and in some respects, divided the Country. Some argue that the United States was founded by immigrants, has a long history of welcoming and protecting refugees and should not let reflexive and irrational fear influence our social philosophy or domestic policy. Citing the Paris attack, others argue that until we have an effective and proven method of vetting Syrian immigrants, we should not accept them within our borders.

A number of state governors have recently joined this increasingly heated debate.  For instance, Texas Governor Greg Abbott and Massachusetts Governor Charlie Baker, have explicitly stated that their respective states will not accept any more Syrian refugees.  Louisiana Governor Bobby Jindal has gone so far as to issue an Executive Order to the State’s executive agencies, requiring the agencies to use all lawful means to prevent the resettlement of Syrian refugees within Louisiana. In contrast, Pennsylvania’s Governor Tom Wolf has welcomed the resettlement of Syrian refugees within the State.

Lost among the rhetoric as to whether the United States should or should not accept Syrian refugees, is the fact that state governors have absolutely no legal authority to prevent Syrian refugees from settling within their respective borders.  Indeed, the law on this point is crystal clear.   The United States Constitution and federal law vests all authority for accepting foreign refugees with the federal government, not the states. Any action taken by states to prevent refugees from settling within their borders, whether by executive order (as in the case of Governor Jindal) or by legislation would violate the United States Constitution and almost certainly would be struck down by a federal judge.

Article I, section 8 of the United States Constitution provides that the federal government (not state governments) shall have sole authority to “establish a[] uniform Rule of Naturalization.”  This provision of the Constitution has been broadly construed by the United States Supreme Court and has been interpreted to preempt the majority of state laws dealing with immigration. In other words, state governors and legislators are not allowed to pass or enforce laws that deal with immigration or naturalization.  This includes laws seeking to keep refugees out.

The United States Supreme Court addressed this issue a few years ago when Arizona attempted pass and enforce laws designed to be tough on illegal immigration.  Justice Kennedy, writing for the majority in Arizona v. United States, cogently explained the Constitutional authority and rational for vesting the federal government (as opposed to the various states) with the sole right to regulate immigration:

The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens.  . . . This authority rests, in part, on the National Government’s constitutional power to “establish an uniform Rule of Naturalization,” U.S. Const., Art. I, § 8, cl. 4, and inherent power as sovereign to control and conduct relations with foreign nations. . . .

The federal power to determine immigration policy is well settled.  Immigration policy can affect trade, investment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws. …

It is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 separate states.

In light of the Constitutional authority granting the federal government sole authority to deal with immigration, any state law or executive order seeking to keep foreign refugees out would be preempted by federal law.  Specifically, any attempt by states to exclude refugees would be preempted by the federal Refugee Act of 1980, which permits the President to admit refugees facing “persecution or well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”

So what does all of this mean for Syrian refugees?  It means that if state governors actually attempted to follow through with their threats and bar Syrian refugees from entering their states, their actions would be illegal and certainly overturned by the federal courts.

James Goslee is a trial attorney in Philadelphia and can be reached at http://jamiegoslee.com/about/

 

Photo Credit: Kristy Pargeter, Dreamstime Stock Photos

New York Moves to Shut Down DraftKings and FanDuel as Illegal Gambling Operations

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Since Week One of the 2015 NFL season there has been a lot of discussion about the meteoric rise of daily fantasy sports. Daily fantasy sports, and specifically fantasy football, have quickly transformed from friendly diversions played for “bragging-rights” into a multi billion dollar industry dominated by two entities, DraftKings and FanDuel.  What’s interesting is that before the start of the 2015 NFL season, few were familiar with DraftKings, FanDuel, or their budding economic empire.  But after spending hundreds of millions of dollars flooding every conceivable marketing platform with advertisements promising million dollar payouts, it’s hard to find anyone unfamiliar with these businesses.

The ad blitz by DraftKings and FanDuel succeeded in getting everyone’s attention and bringing in new business. But in retrospect, that may not have been a good idea.  The sheer size of the media campaign had two unintended consequences that are now threatening the continued existence of DraftKings and FanDuel.  First, by saturating the market with incessant advertisements, DraftKings and FanDuel succeeded in growing their customer base and in angering non-fantasy football players tired of watching their commercials and seeing their billboards. Second, and more significantly, DraftKings and FanDuel drew unwanted attention from regulators, lawmakers and the casino industry.

When regulators and lawmakers started looking closely at the business models of DraftKings and FanDuel, they quickly realized that it was very difficult to distinguish daily fantasy sports from gambling. By “very difficult to distinguish,” I mean impossible.  Daily fantasy sports clearly qualifies as “gambling” under most, if not all state laws.  Here’s the thing though – unlike all other forms of gambling, daily fantasy sports are unregulated on the federal level and have been operating freely throughout most of the union. Why, you may ask?  Primarily because when Congress passed the Internet Gambling Enforcement Act of 2006, it declined to classify daily fantasy sports as “gambling,” essentially exempting DraftKings and FanDuel from federal regulation.

The federal loophole for fantasy sports has tied the hands of federal regulators. Unless Congress steps in to eliminate the loophole, the federal government can’t do much to reign in fantasy sports gambling.  But although the feds may be hamstrung, the states are not.  And it is the states that pose an imminent threat to DraftKings and FanDuel.

Last month, Nevada regulators determined that daily fantasy sports qualify as “gambling.”  And, because DraftKings and FanDuel were allowing Nevada residents to play daily fantasy football (i.e. “gamble”) without having the proper licenses, they were engaged in illegal activity.  In short, regulators booted DraftKings and FanDuel out of Nevada.  To be fair, Nevada regulators were likely under pressure from the casino industry, which has long enjoyed a national monopoly on sports betting. The casinos are clearly unhappy with DraftKings and FanDuel taking away potentially lucrative business opportunities and have been lobbying state regulators to shut these businesses down.

Politics aside, Nevada’s move to classify daily fantasy sports as “gambling” was clearly warranted. It was also a serious economic blow to DraftKings and FanDuel.  It now appears to be the start of a trend.  On Tuesday of this week, the New York Attorney General’s Office followed Nevada’s example, sending a sternly worded cease and desist letter to DraftKings. A very similar letter was sent to FanDuel.

The November 10, 2015 letter is from Kathleen McGee, the Chief of the Attorney General’s “Internet Bureau,” and it is addressed to DraftKing’s CEO, Jason Robins.  The letter begins by informing Mr. Robins that the Attorney General’s office completed a review of DraftKing’s business operations and concluded “that DraftKings’ operations constitute illegal gambling under New York law.”  Explicitly rejecting Congress’ ludicrous determination that daily fantasy sports are games of “skill,” Ms. McGee wrote that “DraftKing’s customers are clearly placing bets on events outside of their control or influence, specifically on the real-game performance of professional athletes.

Interestingly, the Attorney General’s letter carefully distinguish the “daily fantasy” business being run by DraftKings and FanDuel from the more “traditional” fantasy games that have been largely unregulated for years.  The point here is to justify why the New York Attorney General is taking action against DraftKings and FanDuel, and not all fantasy sports websites:

We believe there is a critical distinction between DFS and traditional fantasy sports, which, since their rise to popularity in the 1980s, have been enjoyed and legally played by millions of New York residents. Typically, participants in traditional fantasy sports conduct a competitive draft, compete over the course of a long season, and repeatedly adjust their teams. They play for bragging rights or side wagers, and the Internet sites that host traditional fantasy sports receive most of their revenue from administrative fees and advertising, rather than profiting principally from gambling. For those reasons among others, the legality of traditional fantasy sports has never been seriously questioned in New York.

Unlike traditional fantasy sports, the sites hosting DFS are in active and full control of the wagering: DraftKings and similar sites set the prizes, control relevant variables (such as athlete “salaries”), and profit directly from the wagering. DraftKings has clear knowledge and ongoing active supervision of the DFS wagering it offers. Moreover, unlike traditional fantasy sports, DFS is designed for instant gratification, stressing easy game play and no long-term strategy. For these and other reasons, DFS functions in significantly different ways from sites that host traditional fantasy sports.

Having concluded that “daily fantasy sports” is really gambling, McGee’s letter alleges that DraftKings ongoing operation in the State violates New York law and the State Constitution.  Thus, the Attorney General concludes its letter by demanding that DraftKing’s immediately prohibit New York residents from playing online daily fantasy sports, stating:

[W]e demand that DraftKings case and desist from illegally accepting wagers in New York State as part of its [daily fantasy sports] contests. 

McGee certainly recognized that the Attorney General’s distinction between “daily fantasy sports” and “traditional” fantasy sports is on shaky legal ground.  As sort of a “backup” legal argument, she also alleged that DraftKings’ advertisements violate state consumer protection laws because they are misleading.  McGee alleged that DraftKings fantasy competitions are rigged in favor of a select few who reap most of the winnings:

Further, DraftKings has promoted, and continues to promote DFS like a lottery, representing the game to New Yorkers as a path to easy riches that anyone can win. The DraftKings ads promise: “It’s the simplest way of winning life-changing piles of cash”; “The giant check is no myth. . . BECOME A MILLIONAIRE!” and similar enticements. Like most gambling operations, DraftKings’ own numbers reveal a far different reality. In practice, DFS is far closer to poker in this respect: a small number of professional gamblers profit at the expense of casual players. To date, our investigation has shown that the top one percent of DraftKings’ winners receive the vast majority of the winnings.

Finally, McGee’s letter advances a public policy argument for shutting down DraftKings, contending that its gambling operations has a negative impact on public health:

DraftKings DFS contests are neither harmless nor victimless. Daily Fantasy Sports are creating the same public health and economic concerns as other forms of gambling, including addiction.

The decision by the New York Attorney General to threaten DraftKings and FanDuel is monumental and is a clear and present danger to their ongoing existence.  From a legal perspective, McGee’s attempt to distinguish “daily fantasy sports” from “traditional” fantasy games is questionable.  There is no real legal precedent for such a distinction and you can bet that the Attorney General’s interpretation will be the subject of litigation.  DraftKings and FanDuel really have no choice but to fight the Attorney General in court – New York is too big and too lucrative a market to walk away from without a fight.  And if DraftKings and FanDuel don’t make a stand now, you can be sure that more states will follow the lead of Nevada and New York.

Photo credit: FreeImages.com Nikki Johnson

Time to Put an End to Judicial Elections?

Today is election day in Pennsylvania.  A rather historical election day.  Today, Pennsylvanians’ have an opportunity to elect three new Justices to the Pennsylvania Supreme Court.  Putting three new Justices on the highest court in the State will not only fill vacant seats on the bench, but will likely reshape the Supreme Court’s judicial philosophy for years to come.  But should we really be electing judges by popular vote?  I explored this issue in a recent article on Medium.com.  See the link below.

https://medium.com/@LawArc/is-it-finally-time-to-put-an-end-to-judicial-elections-15bfa910719f