Sunday, April 24, 2011

Mass Justice Elusive for Women of Wal-Mart

      One year after the Deepwater Horizon explosion and oil spill, the job of cleaning up the Gulf coast still faces daunting challenges. So too the job of compensating the victims of this environmental disaster: tens of thousands of people whose lives and livelihoods have been damaged by the oil that has fouled beaches and spoiled valuable fisheries.
      Despite the challenges, the victims of the Gulf oil spill have one thing going for them: public and political pressure on BP, operator of the doomed rig, to make the victims whole as best it can. Under pressure from politicians from President Obama down, BP pledged $20 billion to a victim compensation fund to be administered by a respected lawyer, Kenneth Feinberg. The process has been controversial, but in advance of the one-year anniversary [April 20] Feinberg was making a maximum media effort last week to answer criticisms and to renew the commitment on BP’s behalf to do the right thing.
      A month earlier, another corporate giant, Wal-Mart Stores, faced a critical Supreme Court showdown in a lawsuit brought on behalf of women employees who claim they are victims of a long-standing “pattern and practice” of illegal sex discrimination in regard to pay and promotions. Wal-Mart’s purported victims got some support from civil rights and women’s rights groups, but the company has been spared avoided the kind of public and political pressure that BP is experiencing.
      Instead, Wal-Mart, the nation’s largest private employer, has managed to depict itself in court and in the public mind as a victim itself. In legal filings, and in arguments at the high court (March 29), Wal-Mart’s lawyers maintained that a company with $419 billion in sales last year faces the risk of “devastating” financial liability from what they and an array of business groups supporting the company insist on calling a “gargantuan” class-action lawsuit.
      Ten years after the lawsuit was filed, the plaintiffs’ allegations and Wal-Mart’s substantive defense have yet to be fully aired in a courtroom. Instead, lawyers on both sides have spent a staggering number of hours on a preliminary but crucial issue: whether to certify the suit to be tried as a class action on behalf of as many as 500,000 women currently working for Wal-Mart. (Wal-Mart’s lawyers refer to 1.5 million potential class members, but that figure includes former employees, who have been cut out of the case for now.)
      The rule authorizing class actions in federal court, Rule 23 of the Federal Rules of Civil Procedure, is forbiddingly wordy. Court decisions interpreting and applying it are similarly complex. Over the past two decades, both Congress and the Supreme Court have been making it harder for plaintiffs to bring and win these cases. Even skeptics and opponents, however, acknowledge that class actions can sometimes be the only viable legal remedy for wronged investors, consumers, or workers. And plaintiffs’ attorneys note that in some circumstances companies benefit from resolving a multitude of potential legal claims in one big proceeding instead of countless small cases.
      The case that began as Dukes v. Wal-Mart takes its name from lead plaintiff Betty Dukes, who was hired in 1994 as a $5 per hour part-time cashier at the Wal-Mart in Pittsburg, Calif. By her account, she was unfairly passed over, disciplined, and demoted at various points because of the company’s ingrained mistreatment of female employees. Dukes’ case was taken on by the Impact Fund, an Oakland-based public interest law firm, and its senior counsel, Brad Seligman.
      So far, Dukes’ legal team has persuaded a federal district court judge and a 6-5 majority on the Ninth U.S. Circuit Court of Appeals to allow the case to go forward as a class action. To get to that point, they presented evidence, both statistical and anecdotal, of sex discrimination in Wal-Mart’s employment practices. The statistics are stark. As of the first court ruling, in 2004, two-thirds of Wal-Mart workers were women, but women comprised only about one-third of management-level employees. A statistician found a 5 percent to 15 percent gender gap in pay for women in all 41 of Wal-Mart’s regions.
      Starker still were affidavits submitted by 120 current or former employees altogether. Under oath, women from all over the country described a climate of sexism and gender stereotyping that demeaned them day by day and limited their pay and advancement. Some described being told that they were being paid less than male workers because men needed extra money to support families. One woman who complained about sex discrimination said she was fired after contacting the lawyers in the suit.
      Whether or not the case proceeds as a class action, the affidavits lay out tenable individual cases of illegal sex discrimination. Years later, however, the women are still waiting their day in court. And it is not yet clear when, where, or whether that day will come. Supreme Court justices appeared dubious during oral arguments about whether the case satisfies Rule 23’s somewhat rigorous requirements. If no class action is allowed, the claims may be too insubstantial, or too old, to succeed as individual cases.
      As BP’s experience illustrates, mass justice is difficult and contentious under even the best of circumstances. But, as legal expert Geoffrey Hazard remarked during the early days of class actions, “mass-produced wrongs” sometimes call for a mass-produced legal remedy. The women of Wal-Mart are waiting to see whether the judicial system will be up to that challenge in their case.

Monday, April 11, 2011

Disestablishing the Right to Religious Neutrality

      A riddle, attributed to Abraham Lincoln: How many legs does a horse have if you call the tail a leg? Answer: Four. Because a tail is a tail no matter what you call it.
      The Supreme Court confronted its own version of this riddle last week (April 4). Does a government subsidy to religious schools possibly violate separation of church and state if you call it a tax credit instead? In a 5-4 decision, the court said no. But the answer is as wrong as calling a horse’s tail a leg.
      The court’s conservative majority reached for that wrong answer in an activist move to protect government aid to religion from taxpayer suits despite a 43-year-old precedent permitting them, Flast v. Cohen (1968). As Justice Elena Kagan explained in a powerful dissent, the new ruling “devastates” what is often the most practical legal vehicle for enforcing the Constitution’s guarantee of religious neutrality in government policy.
      The ruling in Arizona Christian School Tuition Organization v. Winn turns aside an Establishment Clause challenge to an Arizona tax-credit system that funnels government money to religious schools as surely as if the government wrote the check instead of an individual taxpayer. The Arizona law, enacted in 1997, gives a participating state taxpayer a dollar-for-dollar credit of up to $500 for individuals or $1,000 for married couples for contributions to specially established “school tuition organizations” or STOs.
      Those STOs provide tuition grants to students attending qualified private schools in the state. To qualify, schools cannot discriminate on the basis of race, color, national origin, handicap, or familial status. But schools can discriminate on the basis of religion.
      The largest STOs, such as the Arizona Christian School Tuition Organization, limit their aid to students attending religious schools. So, much of the $350 million in tax revenue that the state has forgone over the past decade has subsidized schooling for which eligible students were excluded on the basis of religion.
      That is not the American way of public education. A group of Arizona taxpayers raised that argument in a federal court suit contending that the tax-credit scheme operates to provide an impermissible government subsidy for religious discrimination. The state disagrees. It contends the program operates as neutrally as a school voucher program of the sort that the Supreme Court upheld, in another 5-4 decision, back in 2000 (Zelman v. Simmons-Harris).
      In ruling on that question, a three-judge panel of the Ninth U.S. Circuit Court of Appeals found the program unconstitutionally skewed toward religious schools. The full court refused to rehear the case en banc, with eight judges dissenting.
      The Supreme Court chose instead to rule on another issue: standing. Significantly, none of the appeals court judges on either side questioned the taxpayers’ basis for challenging the program. Writing for the Supreme Court’s conservative bloc, however, Justice Anthony M. Kennedy concluded that the plaintiff taxpayers had suffered no injury because none of their money went to religious schools.
      The tax credit is “not tantamount to a religious tax,” Kennedy wrote. “When Arizona taxpayers choose to contribute to STOs,” he explained, “they spend their own money, not money the State has collected from respondents or from other taxpayers.”
      Kagan ably demonstrates the error in Kennedy’s conclusion. At tax time, Arizonans calculate their tax payment and, if they choose, can then decide to write two checks: one to a student tuition organization and the other, for the balance, to the state.
      The tax credit is “costless” to the individual taxpayer, Kagan explains. “It comes out of what she otherwise would be legally obligated to pay the State — hence, out of public resources.” In fact, the STO’s “capitalize on this aspect of the tax credit,” Kagan notes. One STO advertises that the tax credit “won’t cost you a dime.”
      As an original question, perhaps reasonable people can disagree on how to classify this system. But, as detailed in Kagan’s opinion, the Supreme Court and lower federal courts have ruled on any number of Establishment Clause challenges to tax credits or deductions without ever questioning taxpayers’ standing to bring the suits.
     In oral argument, the government — which oddly sided with the state on the standing issue — conceded as much. In answer to a question from Kagan, Acting Solicitor General Neal Katyal agreed that under the government’s position, the Supreme Court erred in five cases by ruling on the merits instead of dismissing them for lack of standing.
      Five precedents is a lot to disapprove at one time, even for the Roberts Court. Kennedy argued that taxpayers in those other cases may have had standing on other grounds and, in any event, standing may not have been questioned. Kagan rightly notes that the court is obliged to consider standing on its own whether or not raised by the parties.
      Kennedy says and Kagan agrees that other individuals may have standing to challenge Arizona’s program. Opponents may try to mount a new case. But taxpayer suits are both a practical and a logical means to enforce the rule against government establishment of religion because the right to religious neutrality, as Kagan explains, in fact belongs to all of us.
      “State sponsorship of religion sometimes harms individuals only (but this 'only' is no small matter) in their capacity as contributing members of our national community,” Kagan writes. In those cases, she says, “our Constitution’s guarantee of religious neutrality still should be enforced.”

Monday, April 4, 2011

Supreme Court Turns Blind Eye to Prosecutors' Misconduct

      The government always wins when justice is done. That’s what prosecutors often say when they lose a jury verdict. By that standard, the government lost big last week when the Supreme Court blinked at an evident injustice by giving the New Orleans district attorney’s office a pass for constitutional violations that put an innocent man on the state’s death row for 14 years.
      John Thompson was, in fact, within hours of his scheduled execution in April 1999 before courts intervened to begin unwinding the tangle of belatedly acknowledged prosecutorial misconduct that led to tainted convictions for attempted armed robbery and capital murder in 1985.
      Freed from prison in 2003, Thompson sued the Orleans Parish District Attorney’s Office, including the former district attorney Harry Connick, for withholding the evidence that eventually cleared him. The withholding plainly violated a clear Supreme Court precedent, Brady v. Maryland, a 1963 decision as basic to prosecutors as Miranda is to police.
      A federal court jury awarded Thompson $14 million. The district court judge and the Fifth U.S. Circuit Court of Appeals both found that Thompson had shown that Connick’s office had been “deliberately indifferent” to defendants’ rights. That is the strict standard the high court had previously established for holding local governments liable in federal civil rights suits.
      In a 5-4 decision, the Supreme Court on March 29 threw out that verdict and ordered judgment in Connick’s favor by focusing solely on the concealment of one piece of evidence in the robbery case against Thompson. A single Brady violation, Justice Clarence Thomas wrote for the majority in Connick v. Thompson, was not enough to show a “pattern or practice” of deliberate indifference.
      Thomas and the other conservatives in the majority turned a blind eye to the evidence of other prosecutorial misconduct not only in Thompson’s case but also in others. As Justice Ruth Bader Ginsburg explained in a bitter dissent, the “grave injustice” that Thompson suffered resulted from a “cavalier” attitude toward defendants’ rights that appeared to be “standard operating procedure” in the prosecutor’s office.
      Similar violations are all the more likely, she suggested, because of the court’s failure to require better training and monitoring of prosecutors in order for local governments to avoid liability for rights violations. And — although Ginsburg did not make the point — Thompson’s wrongful convictions means that the actual killer in a high-profile murder has gone scot-free.
      Thompson had initially been charged with the shooting death of the son of a prominent New Orleans businessman outside his home in December 1984. The case was weak from the outset. He had been implicated by a reward-seeking informant. When Thompson was arrested, prosecutors could plainly see that he did not match the description given by the sole eyewitness to the slaying.
      Nevertheless, Connick, father of the same-named actor/singer, thought they had their man and clearly wanted a conviction. He appointed his third-in-command to head a team of three younger prosecutors to handle the case. They got a break of sorts when the victim of an unrelated robbery identified Thompson from his picture published in the newspaper. A swatch of cloth from the pants worn by one of the victims, stained with the perpetrator’s blood, was sent to the New Orleans crime lab for analysis.
      Prosecutors decided to try Thompson first in the robbery case, evidently hoping that a conviction would deter him from testifying in a later murder trial — as, in fact, actually occurred. In the robbery case, Thompson’s attorney asked for what Brady requires: disclosure of any exculpatory evidence. The prosecutors not only failed to mention the blood evidence, but actually removed the swatch from the evidence room before the defense attorney’s inspection. Today, it is lost. But the lab report, found by investigators 14 years later, shows that the blood did not match Thompson’s blood type.
      After the attempted robbery conviction, prosecutors continued a policy of concealment in the murder trial. The informant’s tape-recorded conversation was never disclosed, nor the eyewitness’s unmatching description of the assailant. Without that information, Thompson’s attorney was effectively prevented from impeaching their testimony.
      In the later federal civil rights suit, Thompson introduced evidence from former prosecutors that the disregard for Brady in his case was — as Ginsburg put it — “neither isolated nor atypical.” Indeed, state appellate courts had reversed four convictions from Connick’s office for Brady violations in the decade before Thompson’s trial. The former assistants testified to either minimal or non-existent training about Brady. Connick clearly signaled, they said, that when in doubt evidence should be withheld rather than disclosed.
      The discovery of the Brady violation in the robbery case forced the reversal of that conviction. The state appellate court reversed the murder conviction as well, reasoning that the tainted robbery conviction had prevented him from testifying. In a retrial, he was acquitted.
      In this sorry episode, the Supreme Court’s majority discerns only a single injustice, not the “pervasive” disregard of prosecutors’ obligations seen by Ginsburg and the other three liberal dissenters. The court has already given individual prosecutors virtually absolute immunity for rights violations during trials. With this ruling, those responsible for guarding against prosecutorial misconduct are largely protected from legal liability as well.