Habeas grants: giveth and taketh

The district court granted a habeas petition for an inmate who was convicted of murder without being able to thoroughly cross-examine the chief witness. That witness had implicated the defendant-inmate only after she learned that the defendant had accused of her participation in the crime. The Court of Appeals reverses and allows the state court conviction to stand.

The case is Corby v. Artus, decided on October 10. Inmates file habeas petitions to challenge their criminal convictions in federal court on constitutional grounds. This case is unique because the federal district court granted the habeas petition after the New York Court of Appeals upheld the conviction. But the inmate remains in jail.

Here's what happened. Burnett allowed Corby to sell drugs from her apartment. The buyer was later found dead. The detective later questioned Burnett about this, telling her that Corby had told him that Burnett might have been involved in the murder. Burnett then implicated Corby in the murder for the first time. At trial, Burnett was the key witness against Corby. But the judge restricted Burnett's cross-examination. Corby's lawyer wanted to get Burnett to admit that she blamed Corby for the murder only after the detective told Burnett that Corby had implicated her before she then threw Corby under the bus. This line of questioning would allow Corby to argue that Burnett killed the victim and that therefore she had a strong motive to lie and blame Corby for it. In preventing Corby's lawyer from pursing this cross-examination, the criminal court judge said that, for various reasons,  Corby's implication of Burnett was unreliable. In addition, allowing the jury to hear that Corby had implicated Burnett was unduly prejudicial to the government because the prosecution could not cross-examine Corby, who was protected by the Fifth Amendment protection against self-incrimination.

Yes, there is a right of cross-examination under the Sixth Amendment. No, that right is not absolute. The Court of Appeals (Walker, Winter and Cabranes) says the criminal court did not abuse its discretion in limiting the cross-examination. Corby had other ways to show that Burnett had a motive to lie in testifying at trial the Corby killed the guy, as Burnett herself had some involvement in the murder in that it took place in her apartment and helped remove the body and clean up the blood. There was also evidence of Burnett's hostility toward Corby in that, among other things, Corby had threatened Burnett's family. "To the extent she would falsely accuse anyone, Corby was 'the most plausible candidate.'" Any additional evidence of Burnett's motive to frame Corby would have had little probative value, but would have been unfairly prejudicial to the prosecution.

Court rejects challenge to vaccination policy

Parents in a Long Island school district sought a religious exemption from the New York requirement that they have their children vaccinated in order to attend public schools. The parents said this requirement violated their religious freedoms. The Court of Appeals rejects the claim.

The case is Caviezel v. Great Neck Public Schools, a summary order issued on October 12. The New York Public Health Law requires school districts to exempt students from certain vaccinations if they are contrary to the family's sincere religious beliefs. After a preliminary injunction hearing, the district court ruled against the parents because "they failed credibly to demonstrate 'that they hold genuine and sincere religious beliefs which prohibit vaccinations.'” After an evidentiary hearing, the district court denied the claim, and the Court of Appeals (Raggi, Hall and Carney) affirms. There was no genuine and sincere religious belief.

The district court ruling details why the plaintiffs did not have a sincere religious belief against vaccinations. Testimony from the mother shows that she did not think these vaccinations are safe . This testimony makes for interesting reading. In isolation, some of the testimony might have religious implications:

Q. Why did you make that application for an exemption from vaccinations?

A. Because inside of my religious beliefs, which are personal religious beliefs, I don't believe that vaccinations are necessary.

Q. And why is it that you don't believe vaccinations are not (sic) necessary?

A. I just believe if you look at the human being, if you look at the universe, we're divine, we're just divine. It's just the design is perfect. There's no other way to say it. It's just perfect.

THE COURT: What's perfect?

THE WITNESS: The design of human beings.

THE COURT: The design?

THE WITNESS: The design, like we're divine.

THE COURT: Design of what is perfect?

THE WITNESS: Of the human being, of nature, or this world, of this universe is divine, it's just perfect. I don't know. Look at how a child is created. Look at how it's just flawless. There's no other word for it. It's just divine.You know there's the seed, the egg, the baby starts to grow, the whole woman's body shapes so that it allows for that, the breast gets bigger and prepares for the milk. When it's time for the baby to be born, the body knows.

But Judge Spatt was not convinced. "The Court finds that one of the reasons Mrs. Caviezel objects to vaccinations is because it may not be safe. She testified that it may be harmful and may cause autism. Her concern in that regard is real, and understandable, but it is not based on a religious belief. Even though she feels that the body is divine and therefore does not need medications, she conceded that, on occasion she takes Motrin and essential oils, indicating a selective personal belief—not a religious belief."

There is also no substantive due process claim. Over the years, parents have challenged various immunization policies under the Due Process Clause. The Supreme Court has rejected those challenges, particularly in Jacobson v. Massachusetts, 197 U.S. 11, 26 (1905), which rejected a challenge to a smallpox vaccination
mandate, and Zucht v. King, 260 U.S. 174, 176 (1922), which cited Jacobson in rejecting a facial challenge to public school inoculation requirement. These cases are dispositive. While the plaintiffs in this case argue that Jacobson was wrongly decided, that is no argument for the Court of Appeals, which is bound by Supreme Court precedent.

"What if you're hit by a bus?"

In this age discrimination case, the incoming CEO spoke to the plaintiff about his plans for the company. The CEO, Scott State, said to plaintiff, "Burt, you're 71 years of age, how long do you expect to work? What if you're hit by a bus, and we have to plan for the future." Six weeks later, plaintiff was fired as defendant's chairman. Your instincts would say that plaintiff has a great case. He doesn't.

The case is Fried v. LVI Services, Inc., a summary order decided on October 15. The "hit by a bus" comment is indeed evidence of age discrimination. That's not enough to win the case, though. Under Supreme Court precedent (Gross v. FBL Financial Services, 557 U.S. 167 [2009]), the plaintiff has to show that "but for" defendant's age bias, he would not have been terminated. This is unlike the standard governing Title VII discrimination cases, which requires only that the age or race be a motivating factor in the decision to fire the plaintiff. Under the "but for" test, the plaintiff loses.

The Court of Appeals (Raggi, Carney and Calabresi) says that "the overwhelming documentary evidence support[s] LVI's articulated non-discriminatory reason for terminating Fried: the need to ensure that CEO State would be free to manage the company as he saw fit." Moreover, the evidence shows that:

before State accepted the CEO position at LVI, Fried had provided written assurances to Board members that the new CEO would indeed be in charge of the company and that Fried would afford State “all the room he wants” to run LVI as he saw fit. Instead, the evidence shows that, almost immediately after State assumed the CEO position, Fried attempted to arrogate to himself fifteen areas of responsibility that went well beyond the most liberal construction of “strategic growth,” his designated area of responsibility as LVI Chairman. On this record, we are compelled to conclude, as the district court did, that no reasonable juror could find that LVI’s nondiscriminatory reason for terminating Fried was a pretext for age discrimination and that “but for” Fried’s age, he would not have been terminated.

Interesting side notes. First, the EEOC wrote a brief in support of plaintiff's claim. They don't do that if liability is not consistent with EEOC policy. Second, the district court thought the ageist comment was a "stray remark" without any evidentiary value. The district court reasoned:

Fried's case hinges almost exclusively on the October 19, 2010 conversation between Fried and State, when State purportedly indicated that he would be reassigning Fried's duties and stated: "Burt, you're 71 years of age, how long do you expect to work. . . . [W]hat if you get hit by a bus . . . we have to plan for the future." However,  "[s]tray remarks, even if they occurred as plaintiff claims, are not enough to satisfy the plaintiff's burden of proving pretext. Stray remarks alone do not create an issue of material fact to defeat summary judgment." In this case, the single, isolated mention of Fried's age, the only such mention in the entire record, cannot, standing alone, create an issue of material fact sufficient to defeat summary judgment. This is especially true given that State, by Fried's own admission, qualified his remark by asking "what if you get hit by a bus."

Although the Court of Appeals rules against Fried, it does find that the "hit by a bus" comment was not a stray remark because it "expressly referenced Fried's age in the context of disputing his claimed job duties." Of course, in the end it does not matter because plaintiff was unable to show that he would not have been fired but for the ageist bias.

When is an injunction required in a sexual harassment case?

The Court of Appeals provides some guidance on when district courts should grant injunctive relief against an employer where the jury has returned a sexual harassment verdict on behalf of plaintiffs who were victimized by a sole harasser.

The case is EEOC v. KarenKim, Inc., decided on October 19. A class of female supermarket employees in Oswego, N.Y., endured a hostile work environment by the Store Manager by the name of Manwaring, who hounded his teenage employees with verbal and physical abuse. I will spare you the details, but take my word for it that Manwaring has no business working with or around women, and we'll leave it at that. Anyway, the women complained about this, but store management either did not believe the complaints or did not follow-up as required under Title VII. Eventually, though, Manwaring was fired over the harassment, but even then, a female manager, Conners (who is in a romantic relationship with Manwaring) tried to get employees to lie for him in the litigation. And Manwaring continued to enter the store even after he was fired. Finding that the store was liable for the hostile work environment and did not take reasonable steps to stop and prevent the harassment, the jury awarded the 10 plaintiffs a total of $10,080 in compensatory damages and $1.25 million in punitives.

The appeal concerns the EEOC's request for broad post-verdict injunctive relief against the store even though Manwaring was fired. Among other things, the agency wanted a 10-year order against further sexual harassment and a prohibition against employing or compensating Manwaring or even allowing him to enter the building. The EEOC also wanted the store to give employees photographs of Manwaring and notify them that he could not enter the store. The district court said this request was overbroad and that, after all the store had been through in this case, it would probably do its best to prevent sexual harassment in the future.

The Second Circuit (Katzmann, Wesley and Lynch) reverses and remands. While the district court has broad authority to grant or deny injunctive relief, that discretion is not unlimited. The Court provides the backdrop for its ruling:

Although we recognize that, in the ordinary case, terminating a lone sexual harasser may very well be sufficient to eliminate the “cognizable danger” that a defendant-employer will engage in “recurrent violation[s]” of Title VII, this is not an ordinary case. Notably, in this case, the lone harasser, Manwaring, was not just one supervisory employee among many, but was the Store Manager, with authority over all the defendant-employer’s employees. Moreover, he was and remains in a longstanding romantic relationship with Connors, the owner and highest officer of the defendant-employer. Moreover, the record makes evident that this romantic relationship between Connors and Manwaring was the primary reason why Manwaring’s harassment went unchecked for years, subjecting an entire class of young female KarenKim employees to a sexually hostile working environment. Absent an injunction, nothing prevents Connors from once again hiring Manwaring as an employee. In addition, even if Manwaring is not re-employed at KarenKim, Manwaring’s status as Connors’s fiancé, as well as his relationships with other current KarenKim employees, renders it likely that he will remain a presence at the store. Finally, Connors’s past refusal to adequately respond to multiple credible complaints about Manwaring’s conduct suggests that, so long as Manwaring remains in a romantic relationship with KarenKim’s owner and highest officer, KarenKim will not take adequate remedial measures in response to any future harassment on the part of Manwaring.

So this is a special case, as Manwaring was fired but the risk remains that a hostile work environment will return to the store. That will probably happen once Manwaring crosses the threshold to visit his girlfriend, one of the managers. The district court did have discretion to reject as overbroad some of the EEOC's proposed injunctive relief, i.e., "requiring KarenKim to distribute wallet-sized photographs of Manwaring to its employees, or to hire and pay for an independent monitor to continually review KarenKim’s employment practices and investigate possible instances of sexual harassment." But the district court abused its discretion in "in declining to order (a) that KarenKim is prohibited from directly employing Manwaring in the future, and (b) that KarenKim is prohibited from permitting Manwaring to enter its premises."

In a footnote, the Court of Appeals provides further guidance as to the adequacy of defendant's sexual harassment procedures. This footnote is directed toward the district court in taking up the request for injunctive relief anew. The Second Circuit doesn't like the store's policy directing employees to submit their complaints to Connors, "who has ignored complaints and retaliated against complainants in the past." Also, the store's policy contains technical language that will confuse the teenage employee population by making reference to “discriminatory acts.” And, the policy's requirement that sexual harassment victims must file written complaints within 30 days is too narrow in light of Title VII's 300-day statutory window in order to preserve rights to bring an EEOC charge, and labor law in general does not require complaints in writing.

Although the Second Circuit declines to resolve this issue, in concurrence, Judge Katzmann says that once the jury finds the employer is guilty of sexual harassment, injunctive relief is presumptively appropriate and the employer bears the burden of establishing otherwise.

Court of Appeals strikes down Defense of Marriage Act

The Court of Appeals has ruled that the Defense of Marriage Act is unconstitutional, applying intermediate scrutiny in holding that the law cannot be applied against a lesbian who wanted a spousal deduction for her federal estate taxes after the death of her partner. This case makes it harder for the government to justify laws that discriminate against gays and lesbians.

The case is Windsor v. United States, decided on October 18. This is an important case. Anytime a federal court overturns a federal statute as unconstitutional, it's news. When the court applies heightened review in analyzing discrimination against same-sex couples, it's even bigger news because the court is staking out new ground. And when the judge writing the decision is one of the most conservative jurists on the court, well, that's big news also.

Enacted in 1996, the Defense of Marriage Act (DOMA) defines marriage as one-man/one-woman. This means that same-sex couples do not gain the same financial benefits as male-female marriages. For the plaintiff in this case, that meant that, after her partner died, she was denied the benefit of the spousal deduction for federal estate taxes in the amount of $363,000. The question is whether DOMA violates the Equal Protection Clause. It does, and DOMA is struck down.

Here is how equal protection claims work. Most federal laws do not violate the Equal Protection Clause so long as the legislature had any reasonable basis to pass the law, even if it distinguishes between different classes of people. All laws favor someone or something over something else, so "rational basis" review means that the legislature can do whatever it wants. Except that it cannot discriminate against women. Distinctions on the basis of gender are reviewed under "intermediate scrutiny," requiring the government to show that the male-female distinction is substantially related to an important governmental interest. Many laws fail under intermediate scrutiny, but that standard of review does give the government some leeway in favoring men over women (or vice versa) is there is a strong reason for doing so. Distinctions on the basis of race or national origin are reviewed under "strict scrutiny," which requires the government to justify the racial distinction through a compelling reason. Almost nothing survives strict scrutiny.

What's the standard of review for discrimination against gays and lesbians? The Supreme Court has never taken on that issue. The Second Circuit has, in this case for the first time. It applies intermediate scrutiny. True, as Judge Jacobs notes, "the law was passed by overwhelming bipartisan majorities in both houses of Congress; it has varying impact on more than a thousand federal laws; and the definition of marriage it affirms has been long-supported and encouraged." But that does not matter under heightened judicial review.

The Second Circuit summarizes the multi-part test for determining whether a class of people are entitled to heightened judicial review when they claim discrimination under the Equal Protection Clause: "The Supreme Court uses certain factors to decide whether a new classification qualifies as a quasi-suspect class. They include: A) whether the class has been historically 'subjected to discrimination'; B) whether the class has a defining characteristic that 'frequently bears [a] relation to ability to perform or contribute to society'; C)
whether the class exhibits 'obvious, immutable, or distinguishing characteristics that define them as a
discrete group'; and D) whether the class is 'a minority or politically powerless.' Immutability and lack of political power are not strictly necessary factors to identify a suspect class.”

By the way, if you are a non-lawyer trying to understand how this all works, this is what it's like to be in law school. Anyway, gays and lesbians satisfy this test and are quasi-suspect classes in the Second Circuit, which means that discrimination against gays and lesbians are easier to challenge in court. The Court of Appeals concludes, "In this case, all four factors justify heightened scrutiny: A) homosexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority."

The first factor is not a close call: "It is easy to conclude that homosexuals have suffered a history of discrimination. ... Perhaps the most telling proof of animus and discrimination against homosexuals in this country is that, for many years and in many states, homosexual conduct was criminal." In addition, under the second factor, "homosexuality bears no relation to any ability to perform or contribute to society. "There are some distinguishing characteristics, such as age or mental handicap, that may arguably inhibit an individual's ability to contribute to society, at least in some respect. But homosexuality is not one of them. The aversion homosexuals experience has nothing to do with aptitude or performance."  Under the third factor, the Court finds that "homosexuality is a sufficiently discernible characteristic to define a discrete minority
class." In other words, "The class affected by Section 3 of DOMA is composed entirely of persons of the same sex who have married each other. Such persons constitute a subset of the larger category of homosexuals; but ... there is nothing amorphous, capricious, or tentative about their sexual orientation." Finally, under the fourth factor, gays and lesbians do not have the political power to insulate themselves from discrimination. "It is safe to say that the seemingly small number of acknowledged homosexuals so situated is attributable either to a hostility that excludes them or to a hostility that keeps their sexual preference private--which, for our purposes, amounts to much the same thing. Moreover, the same considerations can be expected to suppress some degree of political activity by inhibiting the kind of open association that advances political agendas."

Now that the Court of Appeals has decided that discrimination against same-sex couples is reviewed under heightened judicial scrutiny, the reasons offered by those defending the spousal-benefits law are not good enough to save the statute. These reasons include (1) the need to maintain a uniform definition of marriage; (2) protecting the public fisc and (3) preserving the traditional definition of marriage. As to the third factor, "tradition is hard to justify as meeting the more demanding test of having a substantial relation to an important
government interest. Similar appeals to tradition were made and rejected in litigation concerning anti-sodomy laws." The Court also says that it's no justification to say that Congress wanted to encourage responsible procreation. "DOMA does not provide any incremental reason for opposite-sex couples to engage in “responsible procreation.” Incentives for opposite-sex couples to marry and procreate (or not) were the same after DOMA was enacted as they were before."

Judge Straub (a Clinton appointee) dissents, stating that "The majority holds DOMA unconstitutional, a federal law which formalizes the understanding of marriage in the federal context extant in the Congress, the Presidency, and the Judiciary at the time of DOMA’s enactment and, I daresay, throughout our nation’s history. If this understanding is to be changed, I believe it is for the American people to do so."

Mucho pretext in SUNY retaliation case

The Court of Appeals reverses summary judgment in a Title VII retaliation case, finding that that the plaintiff engaged in protected activity and also undercut the defendant's reason for extending his employment contract with a trainload of pretext.

The case is Zhou v. State University of New York Institute of Technology, a summary order decided on October 10. This is a good case for plaintiffs, but its precedential value is limited as a summary order. Still, you can cite it in briefs and it also provides insight into how the Court sees retaliation cases.

In a retaliation case, the plaintiff has to complain about discrimination in good faith. If he does so, management cannot punish him for it. Plaintiff told his superiors that a Dr. Langdon had coerced Asian-American faculty members into giving him credit for their scholarly work. In complaining about this, Zhou did not say that Langdon had "discriminated" against Asian teachers. But that magic word is not necessary under Court of Appeals precedent. The Second Circuit (Raggi, Calabresi and Carney) says that "[a]lthough Zhou's deposition testimony and affidavit about these events could have been more detailed, the limited evidence of Zhou's complaints to his supervisor and a human resources executive about coercion directed at Asian faculty members was sufficient to demonstrate protected activity." In other words, contrary to defendants' argument that Zhou's comments were too ambiguous, plaintiff said enough to put his supervisors on notice that Langdon was discriminating against Asian employees.

Can Zhou win the case? Yes, because there is a ton of pretext here. Defendants say that plaintiff's employment contract was not extended because of low student evaluations as well as student complaints about his classroom performance. A Peer Review Committee also made an independent recommendation against extending the contract. This may all be poppycock, the Court says, for a variety reasons: (1) prior to the protected activity, Zhou's supervisor told him that students had given him positive evaluations and that the student complaints against him were "closed issues"; (2) the Peer Review Committee which ruled against plaintiff based its decision in part on Langdon's negative comments about plaintiff's performance; (3) the College Wide Committee, which also ruled against plaintiff, had solicited feedback from Langdon, an unusual procedure in that similar feedback was not solicited for other applicants; (4) the College Wide Committee was given a one-sided presentation about plaintiff's accomplishments; and so on. 

Police beating nets $100,000 in punitive damages

Plaintiffs recover punitive damages when the defendant does something outrageous. They are available to plaintiffs in police misconduct cases. The plaintiff in this case got 'em, and the jury awarded him a lot of money. The Court of Appeals sharply reduces that amount. Along the way, the Second Circuit provides a brief dissertation on the perils of punitive damages.

The case is Payne v. Jones, decided on October 3. This set of facts tells us that world has gone mad and will continue to go mad. Payne is a Vietnam veteran who suffers from war-related post-traumatic stress disorder. His family brought him to the emergency room after he accidentally cut his thumb. Payne was disoriented and combative as he arrived in the ER, prompting officer Jones to arrest Payne under the Mental Hygiene Law, which authorizes the arrest of a person who appears to be mentally ill and might cause serious harm to himself or others. Jones took Payne to St. Elizabeth's Hospital, where things got ugly:

At St. Elizabeth, Payne resisted Jones’s efforts to move him from the ambulance gurney into an individual room in the emergency room’s mental health unit. Jones wrapped Payne in a bear hug and pushed him into the room. As Jones was placing Payne on the bed, he noticed Payne’s Marine Corps tattoos and said “Marines are pussies.” In response, Payne kicked Jones in the groin area. Jones reacted by punching Payne in the face and neck seven to ten times and kneeing him in the back several times. Payne, who was still handcuffed, defended himself by putting his hands up to cover his face and rolling on the bed to turn his back toward Jones. A nurse rushed forward and grabbed Jones, who then stopped punching Payne. The attack lasted 30 seconds or less. A doctor examined Payne and found that his face was bloody and swollen, and that his upper back was reddened. Payne later testified at trial that the beating aggravated his existing back pain and his post traumatic stress disorder. There was no evidence of any other injury.

 The jury ruled that Jones used excessive force against Payne and awarded Payne $60,000 in compensatory damages and $300,000 in punitives. The Court of Appeals (Leval, McLaughlin and Jacobs) knocks down the punitives to $100,000, still a lot of money, but not $300,000. Why the reduction? While Jones' conduct was "reprehensible" in that he gratuitously provoked Payne in insulting the Marine Corps and responding with violence when Payne kicked him, there are some mitigating factors. The Court says:

Jones’s violence was not unprovoked. Payne’s violent threats in the hospital had caused the officers to be summoned to control him. Payne struggled to resist the officers’ efforts to place him in handcuffs and on a gurney. Jones became violent only after Payne kicked him in the groin. While it is true that Payne’s kick in Jones’s groin was in response to Jones’s inappropriate verbal taunt, it was nonetheless a kick in the groin. While Jones’s violence was reprehensible, it was provoked, and that diminishes the degree of reprehensibility. His attack on Payne, furthermore, lasted at most 30 seconds, did not involve use of a weapon, and did not cause any serious physical injuries.

A kick in the groin is a kick in the groin, right? That really is the mother of all acts of violence. And it excuses Jones' reprehensible acts somewhat. The Court also reduces the award because "given the substantial amount of the compensatory award, the punitive award five times greater appears high." Also, Jones's attack on Payne was a misdemeanor offense, not a felony, so that Jones would only get up to a year in jail for this. Courts like to compare punitive damages to comparable criminal sanctions. Here, the potential sanction is not so high as to warrant a $300,000 punitive damages award. Finally, the punitive damages awards in other police brutality cases gave plaintiffs less money for more egregious conduct.

Along the way, the Second Circuit summarizes the objections that commentators and other courts have made to punitive damages. Not only may jurors award punitive damages "in any amount," but "judgment awarding unreasonable amounts as damages impose harmful, burdensome costs on society" as jurors in other cases may award similarly high awards. "Unchecked awards levied against significant industries can cause serious harm to the national economy." Meanwhile, "these burdens on society ... are not justified by the benefits to the plaintiffs. Because punitive damages are awarded over and above full compensatory damages to cover a plaintiff's actual losses, punitive damages have been characterized as 'a windfall to a fully compensated plaintiff.'" Accordingly, judges must be vigilant in ensuring that punitive damages do not get out of hand.

The Village of Kiryas Joel lives to fight another day

Kiryas Joel is a village in Orange County, in my neck of the woods. The population is nearly 100 percent Hasidic, making the community something of an enclave quite unlike anyplace else in upstate New York. In 1994, the Supreme Court struck down the Kiryas Joel school district, finding that its existence violated the First Amendment's separation against church and state. Some Hasidic dissents in the community have tried over the years to strike down the existence of the village, but thus far they have been unsuccessful.

The case is Kiryas Joel Alliance v. Village of Kiryas Joel, a summary order issued on September 10. The village is an interesting place, and because of the dissident faction and the majority that runs the village, it has been the focus of extensive litigation over the years. Probably every other lawyer in Orange County has worked on at least one of these cases. The Second Circuit provides the backdrop:

The parties in this action and their various representatives have been embroiled in litigation in both state and federal courts for the past two decades. We briefly describe the genesis of their long-standing dispute, as it is described in the amended complaint. The Village of Kiryas Joel was incorporated in 1977 to serve as an enclave for followers of the Satmar Hasidic sect of Judaism. The Village is populated exclusively by followers of that sect, a majority of whom are members of defendant Congregation Yetev Lev D’Satmar of Kiryas Joel Plaintiffs are also followers of the Satmar Hasidic faith, but do not accept the legitimacy of Congregation Yetev’s current leader, the Grand Rebbe, Aron Teitelbaum, a relative of the original leader of the sect. Plaintiffs contend that because of their refusal to accept the current Grand Rebbe, they and other “dissidents” have been discriminated against in several ways by the Village, which, they allege, is run entirely by members of Congregation Yetev.

Plaintiffs also asserted an equal protection claim on the basis of intentional religious discrimination. The Second Circuit does not see it that way, even on this Rule 12 motion. "Plaintiffs have not plausibly alleged that defendants’ alleged actions were motivated by religious—as opposed to political—differences. Plaintiffs acknowledge that they share the same Satmar Hasidic faith as defendants, and the amended complaint does not identify different religious creeds adhered to by the majority faction and the 'dissident' population. Rather, as the district court concluded, the discord is, at its core, political. It reflects an acrimonious—but not essentially 'religious'—dispute over 'who should be the leader of . . . Satmar Hasidim.”

This case could have been quite explosive had the plaintiffs prevailed and convinced a federal court to strike down the village. As Judge Rakoff write in the district court opinion, "Plaintiffs, members of a 'dissident' population within defendant Village of Kiryas Joel, bring this action alleging that the Village is a 'theocracy,' the affairs of which are so 'inherently infused by, and entangled, with religion' that its 'very existence' violates the Establishment Clause of the First Amendment." But the case loses under Rule 12. The many cases that dissidents brought against the Village over the years create a res judicata problem in that past injustices have already been adjudicated by state courts. The plaintiff organization also lacks standing to protect the rights of non-members who may have been screwed by the Village leaders. As for the religious entanglement claim that predicates the dissolution claim, the Court of Appeals says that "plaintiffs’ current allegations about the overlapping leadership in the Village and Congregation Yetev, standing alone, are insufficient to state an Establishment Clause claim." 

Parents of disabled students have no right to "aversive interventions" under Federal law

Here's an interesting case: parents sued the State of New York because its prohibition against "aversive interventions" to help children with behavioral difficulties violates the student disability laws in denying them a free and appropriate education. An aversive intervention is one "that is intended to induce pain or discomfort to a student for the purpose of eliminating or reducing maladaptive behaviors." The Second Circuit says the state regulation is legal and does not deny the students their rights under federal law.


The case is Bryant v. New York State Education Department, decided on August 20. Yes, the aversive interventions may be unpleasant for the students, but the parents argue that, along with positive interventions (like treats, video games, music and field trips) these interventions are also in their best interest. Since the parents want to send their children to private schools with public funding, unless this regulation is found in violation of federal law, the school districts do not have to pay for this educational placement. So the parents send their children to the JRC school, where the aversive intervention looks harsh:

The types of aversive interventions used by JRC include helmets with safeguards that prevent removal, manual and mechanical restraints, and food-control programs. But, according to the complaint, JRC’s “principal form” of aversive intervention is electric skin shock, in which a 24 low-level electrical current is applied to a small area of the student’s skin (usually an arm or a leg). The shock lasts approximately two seconds, and is administered, on average, less than once a week. The complaint alleges that severe problematic behavior decreases with this regime, thus alleviating an impediment to academic progress. Possible side effects include temporary redness or marking, which clears up within a few minutes (or a few days at most), and a rare occurrence of blistering.

Harsh, but good for them, like Product 19 and Special K. Under the Individuals with Disabilities Education Act, disabled children are entitled to a free and appropriate public education. If the school district cannot provide that education, it has to pay for a reasonable private placement. In challenging the New York regulation against schools with aversive interventions, the parents argue that aversives are necessary to control the severe behavioral disorders that undermine the childrens' education. The Court of Appeals (Jacobs, Wesley and Sullivan [D.J.]) sees it differently and will not second-guess state educational policy in any event (a common refrain in cases that challenge specialized government policies in this area). Here's the crux of the decision:

Even if we assumed that permitting these children to receive aversive interventions would help them fulfill their potential, Plaintiffs’ substantive claim would still fail. The “IDEA does not require states to develop IEPs that ‘maximize the potential of handicapped children.’” The IDEA “guarantees” only that students with disabilities are provided an “‘appropriate’ education, not one that provides everything that might be thought desirable by loving parents.” A state satisfies its obligation to provide a free appropriate public education if it “provide[s] a disabled child with meaningful access to an education” even if the state “cannot guarantee totally successful results.” Defendants provide these students with meaningful access to education opportunities by authorizing and funding their specialized education and behavioral modification treatment at an out-of-state residential facility that has expertise in treating children with severe behavioral disorders. Aversive interventions may help maximize the children’s potential, but the IDEA does not require such measures. 

Concurrence highlights flaws in habeas corpus law

The Court of Appeals has reluctantly rejected a habeas claim filed by an inmate who says his lawyer failed him in criminal court over what may have been a coerced concession. The case generates some strong commentary from Judge Calabresi, who says the defendant might actually be innocent and that the habeas process set up by Congress and the Supreme Court has gone mad.

The case is Hawthorne v. Schneiderman, decided on August 20. Hawthorne was convicted in state court for criminal possession of a weapon and assault. After the crime was committed, Hawthorne was questioned by the police without his Miranda rights. At the suppression hearing, his lawyer did not cross examine the relevant law enforcement officers about the confession, though he did so at trial. The state appellate court did not address this issue other than to throw in the usual language to the effect that "the defendant's remaining contentions are without merit." The Second Circuit (Cabranes, Lohier and Calabresi) says that that state court's decision does not represent an unreasonable application of clearly established federal law because a conceivable argument could have been that "the evidence elicited by the defendant at trial would likewise have been elicited by competent counsel at the [suppression] hearing, and that that evidence did not merit suppression of the evidence."

Did you see where I said this was a "conceivable argument"? That's because the Appellate Division did not actually adopt that reason. The Second Circuit uses this hypothetical argument for purposes of determining whether the cursory treatment given the issue at the state appellate court satisfied federal habeas standards. The Second Circuit says it is constrained to reach this result based on precedent.

Judge Calabresi will have none of this. He suggests "this is one of the rare cases in which a habeas petitioner may well be innocent" because Hawthorne was convicted solely on the basis of a confession that he says was coerced. What bothers Calabresi is that habeas law has reached the point where we worry about technical errors that cast doubt on the fairness of the criminal conviction without worrying about guilt or innocence. In addition, Calabresi argues, federal courts have to think of a conceivable reason why the conviction might have passed constitutional muster in the state appellate courts, as in this case. He explains,

This is not comity. If anything, it is insulting to New York. We impute a view to its courts that they have never in fact espoused. We then deride that view as wrong, even clearly wrong under federal appellate court precedents, just not unreasonably wrong under prior Supreme Court holdings. But why should one assume that New York courts, if they actually considered the federal question involved, would decide it differently from the bulk of federal appellate courts?

The better approach, Judge Calabresi suggests, is for state courts to have the option of dispensing with the constitutional arguments and to allow the federal courts to deal with them on a habeas petition. "This would advance AEDPA’s purpose of ensuring meaningful habeas review while preventing the statute from imposing—contrary to its purposes—an unmanageable burden on state courts to police federal law. State courts would be free to decide issues of federal law if they wished, and when they did, federal courts would be required to defer to them. But state courts would not be forced to take on that task if they preferred not to." However, the Second Circuit has rejected this approach. This forces Judge Calabresi to concur in the judgment.