January, 2001 Newsletter

REPRESENTATIVE STEVE MAY TO SPEAK AT THLA ANNUAL DINNER ON MAY 10TH

Arizona State Representative Steve May will headline the THLA Annual Dinner at the Rock Bottom Cafe on Thursday, May 10, 2001. May, a Republican, found himself in the national spotlight after coming out as a gay man during a speech on the floor of the Arizona House. He was subsequently investigated by the U.S. military under the controversial 'don't ask, don't tell' policy, even though he was not an active member of the service at the time. May's legal challenge to that policy is likely to reach the U.S. Supreme Court. Details about the annual dinner will appear in future THLA Newsletters. Also be on the lookout for your invitation in the mail. Space is limited, so don't delay!

WINNING UGLY IN THE HIGH COURT: A Critique of Bush v. Gore
Guest Commentary by Bryan H. Wildenthal

As Justice John Paul Stevens said in his dissent from the U.S.Supreme Court's historic decision in Bush v. Gore, we may never know for sure who really won the 2000 presidential election. The best we could have hoped for was to arrive at an outcome by strictly and properly adhering to the rules governing the choice of residential electors under our Constitution. Except for the timing of that choice, those rules are committed by the Constitution to the laws of each state, as interpreted by the state courts. Only if there were a persuasive showing of some violation of the federal Constitution or laws could the U.S. Supreme Court properly intervene. This is a basic aspect of "federalism," the principle of states' rights which the Court has generally strongly supported. Unfortunately, the Court departed from that principle by needlessly interfering in this election, possibly altering the outcome, without any proper basis.

On December 8, the Florida Supreme Court ordered a statewide manual recount. That decision was assailed by many Republicans in recklessly harsh terms. 1996 Republican Vice-Presidential nominee Jack Kemp called it a "judicial coup d'etat." Yet the court was simply acting pursuant to Florida state law, which explicitly vests power in the state courts to resolvecontested elections. The court convincingly demonstrated that the state trial court decision, by Judge Sanders Sauls, applied an erroneous legal standard in rejecting Gore's request for a recount. Judge Sauls ignored a recent statutory amendment enacted by the Florida Legislature and instead relied on an out-of-date judicial opinion. And yet, ironically, it is the Florida Supreme Court that has been unfairly assailed for "judicial legislation." On the basic issues of state law, the court voted 6-1 to reject Judge Sauls's erroneous reasoning. Two of those six justices voted to affirm his decision anyway, on grounds that it was too late to fashion a workable remedy, making the final vote 4-3. A reasonable person might well question the bold remedy ordered by the Florida court. Probably no such eleventh-hour recount could be perfectly fair in abstract terms. But it is indisputable that the Florida court was acting within its lawful authority to interpret and apply indisputably governing state law The U.S. Supreme Court, by contrast, unwisely stepped far outside its proper authority in choosing to intervene.

The Court's 5-4 order on December 9, stopping the Florida recount, was a shockingly unwarranted disruption of an on-going state-law process posing no threat of "irreparable harm" to George W. Bush or anyone else. Quite the contrary, the Court's own action threatened, and indeed caused, "irreparable harm" to Al Gore and the American people's interest in having all the votes counted under lawfully governing state procedures. At most, if the Court felt the recount was questionable under federal law, it should merely have ordered the state to refrain from certifying any results, while allowing the recount itself to proceed while it considered the case. In any event, when the Court decided the case on December 12, again by 5-4, it failed to offer any persuasive justification for intervening in the first place.

It is especially notable that the Justices in the majority -- Chief Justice William Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy, and Clarence Thomas -- were themselves deeply split over what theory justified reversing the Florida court. All five nominally supported a per curiam opinion finding that the recount violated federal constitutional principles guaranteeing equal protection of the laws and due process of law. Since the majority did not allow the recount to proceed or conclude, the factual basis of this ruling is dubious at best. It is also difficult to understand why, if the majority felt the recount ordered on December 8 posed such serious problems, they previously refused even to hear Bush's appeal, brought almost a month ago, raising exactly the same kinds of equal protection and due process complaints. Those earlier, partial recounts that Bush challenged were, if anything, even more problematical under the reasoning the majority later adopted. Indeed, the original election itself almost certainly violated these newly crafted rules, given the variable accuracy of voting machines used in different counties.

The standards laid down by the per curiam opinion are extraordinarily vague and far-reaching, going beyond anything previously established. The opinion suggests numerous problems with the recount, but fails to clarify whether many of these were actual constitutional violations or not. Some passages in the opinion suggest that the U.S. Constitution would dictate exactly who can count votes, what their training and qualifications must be, what precise procedures must be followed regarding objections during the counting, and sundry other matters. The opinion even declares that the state's computer software was inadequate to handle the recount! It is interesting to note that the majority condemned the Florida Supreme Court for failing to define more clearly the state-law standard of "intent of the voter," given that local officials might interpret that differently. And yet this same U.S. Supreme Court, with the support of all five majority Justices, ruled in 1994 that states need not provide juries with any explanation or definition of the standard of "proof beyond a reasonable doubt." Juries across the country put people in jail, and even impose the death penalty, on the basis of local interpretations of this standard that may vary widely.

Apparently, the majority felt no need to provide any clearer guidance because they rigged the outcome to ensure that no further recount could take place in any event. While purporting to "remand" the case, they declared that under Florida state law, no recount could continue past December 12. Their own stay order on December 9 guaranteed, of course, that this deadline would be missed. In fact, nowhere in Florida law did the legislature impose a December 12 deadline. While federal law gives "conclusive" status to presidential election results resolved by December 12, federal law also provides procedures and standards for accepting results resolved later than that, certainly at least as late as December 18, when the electors chosen in each state are supposed to meet and vote (and possibly later). The Florida Supreme Court had suggested, not surprisingly, that an implied preference existed under state law to resolve the election by December 12, but contrary to the unsupported assertion by the U.S. Supreme Court majority, the state court never held that a recount or contest action could not go past that date. In a most bizarre and unfair Catch-22, the majority laid down hypothetical standards for a more perfectly fair recount, and then refused to give the state court a chance to apply those standards or decide what further action (if any) to take under state law.

It is difficult to believe that at least three members of the majority, Chief Justice Rehnquist and Justices Scalia and Thomas, supported the per curiam opinion without deep reluctance. They appear to have done so only for tactical reasons, perhaps to avoid the embarrassment of a completely splintered decision. The per curiam adopts exactly the kind of vague, far-fetched, "activist" interpretation of the Constitution that they and other conservatives (including Bush himself) usually condemn. And indeed, Chief Justice Rehnquist filed a separate concurring opinion, for himself and Justices Scalia and Thomas, laying out their preferred theory.

The Rehnquist trio made clear that they would prohibit any further recount, even one complying with the vague new standards of the per curiam opinion. Rehnquist embraced the theory that, because Article II of the Constitution gives to the "legislature" of each state the authority to decide how to choose electors, the state legislature can exercise this power free of any constraints under the state's own constitution (which of course creates the state legislature and generally governs how it exercises its powers). It's a very questionable theory to begin with, but leaving that aside, Rehnquist's application of it to this case mounted to a legal theater of the absurd. According to Rehnquist, this theory gives federal judges, ultimately the U.S. Supreme Court, the power to interpret state law for themselves and to override if need be the interpretations of the state supreme court, which ordinarily has final authority in that area, not to mention far greater competence because of its familiarity with state law.

In the name of protecting the handiwork of the Florida Legislature from the supposed "judicial activism" of the Florida Supreme Court, the Rehnquist trio themselves engaged in the most astonishing brand of judicial activism. They trampled roughshod over principles of federalism and respect for the state's own internal law and procedures in a way that they have condemned in numerous other cases. To give just one example, the Court has long held (with the enthusiastic support of conservatives like Rehnquist, Scalia, and Thomas) that federal courts should not intervene in on-going state criminal trials, even when a very substantial claim is raised that the defendant's federal rights are being violated. Rather, the federal courts only intervene (if at all) after all state proceedings are concluded.

The Rehnquist trio, with astonishing arrogance, rudely disparaged the Florida Supreme Court's interpretations of Florida state law, labeling them "absurd," having "no basis," and that "no reasonable person" could agree with them. Of course, reasonable lawyers might disagree over some of those interpretations, as U.S. Supreme Court Justice Ruth Bader Ginsburg conceded in dissent. But it was simply false and offensive to assert that the state court went beyond the bounds of reason. The Rehnquist trio themselves appear more likely to have erred at several points in their self-arrogated task of construing state law. This is hardly surprising, given their unfamiliarity as federal judges with the intricacies of state law, and the extreme time pressures under which they chose to interfere in this state-law matter. They concluded that the remedy ordered by the Florida Supreme Court was not "appropriate," despite the Florida Legislature's own explicit command that election contests be resolved by state courts, not by federal judges, and that state courts have full authority to devise "any appropriate relief."

It is hardly surprising that Justices O'Connor and Kennedy conspicuously declined to join Rehnquist's far-fetched Article II analysis. O'Connor in particular, as a former state court judge and state legislator, has long expressed a deeply-held respect for state autonomy and federalist principles. Yet, as noted above, the per curiam opinion that she and Kennedy appear to have jointly written offered little more justification for intervening in this state-law matter.

Most Americans without legal training will probably accept the Court's decision, because the Court enjoys a tremendous reservoir of trust and respect among the American people and because people have been understandably anxious for a final resolution of this election. The decision certainly provided President-elect Bush with a decisive victory that brought an end to weeks of uncertainty. But at what cost? As Justices Stevens and Ginsburg and their two dissenting colleagues, David Souter and Stephen Breyer, all noted, the Court should never have heard this case in the first place. This decision will and should forfeit much of the trust and respect the Court enjoys among those who are familiar with the law. Of course, every American, lawyer or non-lawyer, will and should accept the majority's decision as final. Vice-President Gore, conducting himself in admirable contrast to the reckless Republican denunciations of the Florida Supreme Court, urged as much in his gracious concession speech. He noted, however, his strong disagreement with the Court's ruling, and in that assessment I think most fair-minded lawyers will concur. But the issue goes beyond mere disagreement. The majority Justices, by choosing to intervene in a matter outside their proper authority and expertise, and by then mishandling it so badly, have dishonored the Court on which they serve.

[The author is THLA's faculty liaison at Thomas Jefferson School of Law, where he teaches constitutional law. He formerly clerked for Judge Frank M. Johnson, Jr. on the U.S. Court of Appeals for the Eleventh Circuit (the same federal appeals court that heard Bush's appeals in the recent election litigation), and for Chief Justice Michael F. Cavanagh on the Michigan Supreme Court, where he dealt frequently with questions involving the intersection of federal and state law.]

FROM THE EDITOR: Ted Roberts

THLA begins this new year with a resolve to better serve the needs of our members and our community. We are striving to be innovative in our programs, communications and events. One proposed change is to distribute this Newsletter by direct e-mail, rather than by printing and mailing. If you would like to receive future newsletters by e-mail, please send an e-mail message to THLAnewsltr@aol.com asking to be added to the e-mail distribution list.Best wishes to all for a healthy, happy and prosperous New Year.

LETTERS LEGISLATIVE UPDATE

Lambda Letters has posted its first legislative update list for the year 2001 on its web page. The list contains an early list of bills introduced in the state legislature during the month of December. The bills listed are divided into the four subject areas addressed by the Lambda Letters Project. Those issue areas are: HIV/AIDS issues; Lesbian/gay/bisexual/transgender issues; Issues of concern to people of color; Women's issues. To view the list, direct your Internet browser to: www.Lambdaletters.org. Then click the Legislative Update button found on the left side of the page.

Lambda Letters updates its list of bills twice a month on its web page and once a month in the monthly newsletter snail mailed to its members. The list shows the bill number, author, and current status of each bill. It also describes the purpose of each bill listed. People who visit the site can see actual copies of the bills just by clicking on the bill numbers in the list.

Lambda Letters Legislative Update list, a free service from Lambda Letters to the community, gives individuals or civil rights advocates an overview of the legislation that affects their lives or work. The media will find it an excellent source of information for articles on legislation that affects the communities we serve.

THLA RESOURCE DIRECTORY INFORMATION FORM

Each year, THLA publishes a directory of members. Only those members who fill out this form will be included in this directory. The directory is available to the public and THLA members free of charge, and can be picked up at any general meeting. This will be a great referral source as the directory will note each member's area of practice. If you want to be listed in the 2001 THLA directory, please fill out this form and mail it to THLA today, or bring it to the next general meeting! Mail forms to: THLA, PMB- 137, 1010 University Ave., San Diego, CA 92103. Please indicate below if you are interested in placing a business card size ad in the upcoming directory. If placing an ad, please include a check for $20 payable to THLA and a representative will contact you. Again, please return this form ASAP if you want to be included in the next directory!