Archive for March, 2011

The elephant in the room

Tuesday, March 29th, 2011

As anyone who has ever been involved in the litigation of one will tell you, intra-church disputes are the worst.  Disputes within a religious congregation involve deep-seated beliefs about everything from the control of church assets to the very nature of belief and worship, itself.  Argument gets passionate because it’s not about base things like money.  It’s about the reason to be and the reason things are.  From a legal standpoint, they are also a sticky thing.  They involve the First Amendment—freedom of speech, freedom of religion, and freedom of association—and a whole lot of other stuff that is just plain messy.  When you introduce ecclesiastical law—the rules churches make to govern themselves and that courts, under the aforesaid First Amendment, have very little business messing with—things get even stickier.

Most of the time, litigation—both at the trial and the appellate level—deals with the issues that are of genuine concern to the parties.  One side goes away happy; the other goes away sad.  Sometimes both of them go away sad.  But, as a general rule, the case gets resolved in one way or another because the court digs down to the root of the problem and makes a decision.  Inevitably, someone (sometimes, everyone) is unhappy with the decision, but that’s what happens when you place your satisfaction in the hands of a neutral party.

And then there are those times when everyone talks about a lot of different things, but the real source of friction—the elephant in the room—gets ignored.  Such was the case in the recent Austin court of appeals decision in Masterson v. Diocese of Northwest Texas. Having already raised race as an issue on this blog, religion seems like a logical next step, so if your sensibilities were offended the last time around, you might want to tune out now.

The appeal arose from a property dispute among parishioners of the Episcopal Church of the Good Shepherd in San Angelo, Texas.  In late 2006, a majority of the Good Shepherd parishioners voted to withdraw the church from the Episcopal Diocese of Northwest Texas and, instead, affiliate the church with the Diocese of Uganda, Africa.  Effective January 6, 2007, the Rev. Celia Ellery—a woman—was appointed priest-in-charge of the church.  Is this a coincidence?

The “flying bishop” phenomenon is now a less-than-rare occurrence in both the Anglican and Episcopal churches.  When a congregation decides that it doesn’t like a decision of its current bishop, it tries to withdraw itself from its geographical diocese and connect itself with another one that shares its particular view of scripture and philosophy.  Since the churches began ordaining women—and now, the first openly gay bishop in the United States Episcopal church—the maneuver is more common, and it was the tack taken by the breakaway parishioners.

In reviewing the record, the Austin court observed that the Episcopal Church is a hierarchical one, and property like church buildings, etc., is owned, not by individual parishes and churches, but by the broad corporate entity that is the Episcopal Church.  So when a group like the parishioners of Good Shepherd decides it wants out, the Church has the option of saying, “fine, but leave the keys.”  That’s what it did in this instance.

The Austin court did what it could with this case.  It examined the arguments from the standpoint of both deference to an ecclesiastical decision and applying neutral rules of law.  While the deed to the property was made out to “Good Shepherd Episcopal Church,” the court concluded that—because of the hierarchical nature of the Episcopal Church—the Church and its parishioners were not one and the same.  Indeed, because of their voluntary accession to the canons of the Episcopal Church, the court held in essence that the parishioners were the Church only so long as they remained a part of the larger Church body.  Thus, their split from the Episcopal Church ceded any right they might have had to the church property.  As far as ecclesiastical deference was concerned, the argument was easier.  The larger Church body claimed title to the property under its established rules and thus, it retained title to the individual church property.

But the elephant in the room—a fundamental disagreement over the proper role for women in the priesthood—went unaddressed.  That was no fault of the Court.  Indeed, courts are singularly ill-equipped to address such disputes as they run deeper even than our fundamental notions of law and order.  Our court system has its limits, and deep-seated matters of religion and philosophy are among them.  There are times when going to war or going to court is simply not the answer.



A fitting Final Four

Sunday, March 27th, 2011

Houston has long considered itself a city for underdogs.  Even if you can’t make it anywhere else, you can still make it here.  The city began as a gamble, and, for better or worse, its sons and daughters have toed the line and sometimes crossed it in search of success.  And the jury is still out on some.

So it seems rather fitting that this year’s NCAA Final Four includes a number eight seed, Butler University, and a number eleven seed, Virginia Commonwealth University.  Both are outsiders as compared to the other side of the bracket—traditional powers, the University of Kentucky and the University of Connecticut.  It’s simultaneously sweeter and sadder that only one or the other of the upstarts will be playing in the national championship game, since they are pitted against one another in the semi-finals.

Nevertheless, here’s to a Final Four that fits its host city to a Texas-sized “T.”  I’ll be holding up a Lone Star in salute next weekend.



The circus is in town…

Monday, March 21st, 2011

As a rule, I avoid commenting on any sort of criminal law matter.  I don’t practice criminal law at either the trial or appellate level, and I’m not deeply familiar with the big issues in criminal cases, two semesters of criminal law and criminal procedure notwithstanding.  The truth is that the criminal sphere and the civil are usually two separate worlds, and only a handful of lawyers move comfortably between them.  Those who devote themselves to criminal practice—particularly on the defense side—often have my sincere admiration for their dedication to their profession and craft and, more significantly, their core principles that mirror the ones truly fundamental to our justice system.

But high-minded thoughts aside, some days a criminal case strikes my interest because of the subject matter.  Today is one of those days because today is the day that Barry Bonds went on trial.

Bonds, of course, is the godson of Willie Mays and the current Major League Baseball homerun king, holding both the career (762) and single-season (73) records.  He stands accused of perjury—lying under oath to a federal grand jury about his alleged knowing use of steroids.  As much as I’ve never been a Bonds fan, it’s hard to know who is wearing the white hat in this one.

One of the prosecution’s major witnesses will be Jeff Novitzky, a former special agent for the Internal Revenue Service, who now works as an agent for the Food and Drug Administration investigating the use of steroids in professional sports.  It was Novitzky who brought to light the various sins of the Bay Area Laboratory Co-operative and who played a part in the downfalls of Marion Jones and Floyd Landis.  Novitzky seems to have been a major source of information for the Mitchell report concerning the use of performance-enhancing drugs in Major League Baseball.

The question here—as a fan of both baseball and our Constitution—is who do you root for in this contest?  Bonds is arrogant.  He’s a scion of, if not baseball royalty, at least a solid journeyman and multi-time All Star with a record that didn’t quite make the Hall of Fame.  As a player, he surpassed his father’s accomplishments by far.  His exploits captured baseball fans’ imaginations, even as his public persona repelled many.  But arrogance doesn’t get you jail time.  Pride may be a sin, but it’s not an offense.  Unfortunately for Bonds, lying to a grand jury is, and that’s what he’s accused of doing.

On the other side, there’s Novitzky.  Crusading for justice is one thing, but being a crusader is quite another.  In the bestselling Game of Shadows, journalists Mark Fainaru-Wada and Lance Williams detailed Novitzky’s digging through dumpsters and sifting garbage to find evidence of steroid distribution by Victor Conte, the driving force behind BALCO.  In the course of that investigation he discovered evidence of steroid use by Bonds and others.  One wonders what might have happened if HIPAA applied to dumpsters….

So those of us who care about both our national conscience and our national pastime are left with a bit of a dilemma.  Bonds is no hero, but does Novitzky get a pass for invading privacy rights, just because it turns out he was probably right?  Does a willingness to dig through garbage make you a role model more than an artificially souped-up ability to hit homeruns?  Is the pursuit of justice, without observing the spirit of the law, any nobler than the pursuit of the homerun record, without observing the spirit of the game?  Twelve umpires will decide.


It’s not illegal, except when it is….

Tuesday, March 15th, 2011

Bankruptcy, the gift that keeps on giving.  In a recent appeal from a federal bankruptcy court, the Fifth Circuit held that a past bankruptcy filing is a permissible consideration for an employer when deciding whether or not to extend an offer of employment.  On a human level, this is troubling, but from a legal standpoint, it is hard to see where the Court went wrong on this one.

Shani Burnett interviewed for a position with Stewart Title Company in July, 2007.  Some nine or ten months previous, Burnett had filed a voluntary petition for bankruptcy under Chapter 13 of the U. S. Bankruptcy Code.  Stewart offered a job to Burnett, contingent upon the results of a drug screening and background check.  In the course of the latter, Stewart discovered Burnett’s bankruptcy filing and rescinded its offer.  Burnett sued under 11 U.S.C. § 525(b) on the grounds that Stewart illegally discriminated against her for exercising her rights under the Bankruptcy Code.

Stewart successfully moved for dismissal in the trial court, and the case landed in New Orleans before the Fifth Circuit.  Writing for a unanimous panel, Justice King examined the plain language of § 525(b), which states that “No private employer may terminate the employment of, or discriminate with respect to employment” of a debtor under the Bankruptcy Code.  On its face, this would seem to be pretty good language for Burnett, assuming that refusing to offer someone a job constitutes “discrimination with respect to employment.”  But the Court held that it could not make that assumption.  Taking § 525 as a whole—i.e. including a consideration of all subparts of the statute in interpreting the one subsection—the Court held that “discrimination” in § 525(b) does not include refusing to hire.  This is because of the language of § 525(a), which applies only to government employers.  That section states that a governmental entity may not “deny employment to, terminate the employment of, or discriminate with respect to employment against” a debtor.  The Court held that, by specifically separating out “denying employment” from “discriminating,” Congress intended to allow a denial of employment by private employers where it would not allow it by a governmental unit.

The ruling is potentially a bit of a harsh blow to job seekers already experiencing tough times, but Justice King correctly observed that the Court’s hands were more-or-less tied in this case.  The Court applied Statutory Interpretation 101 and came up with the result it did.  Without a good excuse to dive into policy considerations, it would be difficult to justify another result.

Curiously though, this may not be the last we have heard of this issue.  In light of recent press reports that employers are now using employment status as a hiring criterion and the EEOC’s investigation as to whether such a criterion more heavily affects minority workers, bankruptcy status could draw similar scrutiny.  While the Bankruptcy Code might allow private employers to refuse to hire on this basis, Title VII might not if the practice causes a disparate impact.  It could lend yet another wrinkle to our increasingly complex employment law landscape.


Be careful what you ask for….

Wednesday, March 9th, 2011

Anyone who reads this blog regularly (I’m sure there must be someone . . . Mom?) or who has perused a substantial number of entries here may note that I have a slight hostility to the process of arbitration.  This is because I see it as a generally one-sided proceeding, forced upon a party with lesser bargaining power, that usurps the proper position of judges who are answerable to the people (or, at the very least, to the government they serve) and juries who are actually the peers of those who bring cases before them.  Arbitration replaces the hallowed place of Title III and duly-elected judges with industry stooges.  The great myth of arbitration is that it is always less expensive and more efficient than those nasty court cases where everyone spends so much time gathering evidence and discussing the facts and the law.  Who needs that stuff, anyway?

So it gives me a warm fuzzy when I read a case like Thomas Petroleum v. Morris, a recent decision from Houston’s First Court of Appeals.  Morris sued Thomas Petroleum, his employer, for wrongful discharge under the Family Medical Leave Act and Americans with Disabilities Act, negligence, and defamation after it terminated him following his serious injury in a knife attack by another employee.  While Thomas Petroleum appears to have had little or nothing to do with the attack itself, it terminated Morris when his wife—after informing Thomas that her husband was recovering from surgery—inquired about his medical leave and disability benefits.

As a condition of his employment, Morris signed a “Dispute Resolution Program & Binding Arbitration Agreement Between All Employees & Thomas Fuels, Lubricants and Chemicals, Inc., Employer.”  (Omission of serial comma, theirs.)  Under the agreement—drafted by Thomas Petroleum—the parties—in this case, Morris and Thomas—agree to submit any employment disputes they cannot resolve through mediation to the American Arbitration Association for resolution.  The agreement also provides that any award rendered by an arbitral tribunal is final and that the agreement is governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. In a classic, “having-your-cake-and-eating-it-too” maneuver, Thomas Petroleum’s agreement also provides for a right of appeal having the same scope and standard of review as the Texas Supreme Court’s review of a civil judgment following a bench trial without a jury in cases where the arbitral award exceeds $50,000—that is, a review as to whether the correct law was applied and whether it was done so correctly.  In contrast, the Federal Arbitration Act allows for a court to vacate an arbitral award in very limited circumstances, primarily those involving arbitrators’ misconduct, corruption, or exceeding the scope of their contractually defined powers.

Morris won his claim before the arbitral panel and filed suit in Harris County district court to confirm the arbitral award.  When it did so—other than denying Morris’s claim for pre- and post-judgment interest—Thomas appealed.

A united panel of Chief Justice Sherry Radack, Justice Elsa Alcala, and Justice Jane Bland (Justice Bland writing for the panel) upheld the trial court’s confirmation of the arbitral award.  The court held that Thomas waived any complaint about application of the Federal Arbitration Act by its own express stipulation in its own contract drafted—most likely—by its own lawyers.  As Justice Bland wrote, “The parties expressly stipulated in the agreement that the FAA governs their dispute.  The United States Supreme Court has held that parties may not contractually agree to a more stringent standard of review in arbitration agreements governed by the FAA; the statutory grounds for judicial review of arbitration are exclusive.”  By entering into an agreement that expressly made itself subject to the Federal Arbitration Act, the court ruled that Thomas Petroleum had waived any right of appeal beyond that specified by the Act.  So, all in all, arbitration turned out to be a pretty bad idea for Thomas.

At this point, I could probably say something catty about how only a fool would assign the decision of his rights under the law to someone whose primary experience and interest is in something far removed from people’s rights under the law.  But this is what happens all the time in arbitration.  The benefits of arbitration are often stated with no reference to any factual support or by persons with a vested interest in its success.  The detriments can become all too clear, and—as the Thomas Petroleum decision reflects—they are not limited to one side of the bar.


The Face of the NFL

Thursday, March 3rd, 2011

How to know you’re among the elite and most bankable players in the National Football League?  Easy.  You’re the face of the NFL players in a potential class-action lawsuit against the league that may be filed if the league and the players’ union can’t work out their differences before the current collective bargaining agreement expires.  Tom Brady, Peyton Manning, and Drew Brees, come on down!

Notably absent are Michael Vick and Ben Roethlisberger—two of the top quarterbacks of the last NFL season—both of whom have recent run-ins with the law on their respective records.  (Roethlisberger has never been charged in a criminal proceeding but has been investigated more than once.  Vick, of course, pled guilty to participation in an illegal interstate dog-fighting ring and served time in prison for his sins.)  In the court of public opinion—which is where much of this drama is really playing out—Vick and Roethlisberger just don’t present the squeaky clean image that wins over Joe Six-pack.

Perhaps a bit more surprising is the white, European-descended face of the players’ lawsuit.  The NFL is a league composed of a majority of African-American players as recently as 2007.  Hispanics and Asians/Pacific Islanders also compose portions—albeit, small ones—of the NFL players, though likely a much larger part of its fanbase.

I do not suggest, even for a second, that football fans who count themselves among a racial minority (as questionable as the term “minority” has become in light of shifting demographics) cannot be fans of Brady, Manning, and Brees.  I simply suggest that the NFL players might have a bit more success in this battle of millionaires if they made their side reflect the face of America.  Where is Andre Johnson?   Where is Troy Polamalu?  Where is Tony Gonzalez?  The NFL players can fight for public opinion in a way that the NFL owners cannot possibly manage and with players who have shown their character on and off the field.  A failure to do so would seem like a lost opportunity.