Judge Objects to Pledge Stay Decision

SAN FRANCISCO (AP) -- One of the federal appellate judges who declared the Pledge of Allegiance unconstitutional said Monday that the court was wrongly swayed by public criticism when it put the ruling on hold.

``It was a public relations gimmick. That would be a fair characterization of it,'' said Reinhardt, who was appointed by President Carter in 1980.

Last week's 2-1 ruling by the panel of the 9th U.S. Circuit Court of Appeals said the pledge violates the constitutional guarantee of separation of church and state because it includes the phrase ``under God.'' The decision was written by Judge Alfred Goodwin, who put it on hold a day later.

In an internal memo circulated to circuit judges, Reinhardt suggested the ruling was stayed at the request of Chief Judge Mary Schroeder, an allegation Goodwin denied. Schroeder declined to comment.

Reinhardt declined to elaborate on the memo, which was first detailed Monday in the legal publication Daily Journal.

In a phone interview, Goodwin said he blocked his ruling to ensure school districts would not immediately stop the practice of having children recite the pledge.

While he noted that the circuit's rulings automatically are blocked, or ``stayed,'' for 45 days to give parties time to appeal, he said he wanted to clear up any confusion in the national furor that followed the decision.

``It was a bit of fire control. It's kind of a squirt of a little coolant on the fire until it calms down,'' said Goodwin, appointed to the bench in 1971 by President Nixon. ``I didn't consider it caving in to pressure.''

He said the court has been flooded with messages from school districts, in addition to ``mindless telephone and e-mail traffic that was tying up the clerk's office and some of the other judges.''

He said nobody pressured him to issue the order, which is allowed under court rules.

The case was brought by a Sacramento atheist who said his second-grade daughter should not be subjected to the pledge at school.

Attorney General John Ashcroft, the state of California and the Elk Grove Unified School District have said they will ask the court to rehear the case.

Profile of Judge Stephen Reinhardt .

Court: United States Court of Appeals for the Ninth Circuit

Appointed by: President Carter, 1980

Born: March 27, 1931 in New York, New York

Education: Pomona College 1951; JD, Yale 1954

Law Practice: United States Air Force General Counsel's Office (1954-56); O'Melveny & Myers (1958-59); Fogel, Julber, Reinhardt, Rothschild & Feldman (1959-)

Judicial Appointments: Ninth Circuit (1980-present)

Opinions Reported in Appellate Decisions Noted:

Ninth Circuit recognizes right to die

Ninth Circuit discusses speech rights of public employees in two cases

Ninth Circuit strikes down California's term limits initiative

Ninth Circuit explores employees' privacy interest in connection with medical examinations

Arbitration clause in broker's employment contract does not bar Title VII lawsuit

No qualified immunity for warrantless search of public employee's office

Discrimination based on tribal affiliation violates Title VII

School not liable for racial epithets in assigned texts

Outrageous sexual harassment may equitably toll the statute of limitations for a Title VII claim

Employment may not be denied based on concerns about applicant's safety in the workplace

Medical transcriptionist with obsessive compulsive disorder may pursue failure to accommodate claim

State university professor's removal of handbills violates First Amendment

Federal Court Finds Transsexual Protections Under Civil Rights Laws

By Arthur S. Leonard

A three-judge panel of the U.S. Court of Appeals for the 9th Circuit in San Francisco ruled on February 29 [2001] that the federal Gender-Motivated Violence Act (GMVA) and Title VII of the Civil Rights Act of 1964 apply to violence and discrimination against transgendered persons. The unprecedented ruling could provide an important breakthrough for the legal rights of transsexuals, catapulting the relatively young movement for gender identity rights ahead of the gay rights movement in achieving protection under federal law.

The ruling, in an opinion by Circuit Judge Stephen Reinhardt, concerned claims brought by a transsexual Washington State prisoner against a male prison guard for an attempted jailhouse rape. Douglas Schwenk, a self-identified transsexual who adopted the name of Crystal and grooms and dresses herself as a woman, was incarcerated in the state penitentiary in Walla Walla, Washington, where she was under the jurisdiction of prison guard Robert Mitchell. Schwenk charges that Mitchell repeatedly made unwanted sexual overtures to her and ultimately attempted to rape her anally in her prison cell.

Schwenk filed a federal lawsuit, claiming a violation of her civil rights under the 8th Amendment ("cruel and unusual punishment") and the Gender Motivated Violence Act, a part of the federal Violence Against Women Act of 1994. Mitchell asked the court to rule in his favor on grounds of government employee immunity.

The immunity rule provides that a government employee cannot be sued for violation of a constitutional or federal statutory right unless that right is so well established that the government official should know that he is intentionally violating the plaintiff's federal rights. Mitchell claimed that at the time of his alleged actions, it was not established as a matter of constitutional law that an attempted rape of a transsexual prisoner violated the 8th Amendment or that the Gender-Motivated Violence Act would apply to this situation of, in his words, male-on-male harassment.

On the 8th Amendment claim, Reinhardt's opinion notes that the Supreme Court has clearly endorsed the view in a prior transsexual prisoner case, Farmer v. Brennan, that prison authorities would be liable for being deliberately indifferent to the risk of such a rape, so it was not credible for Mitchell to argue that a state employee could believe that his attempted rape of a prisoner, regardless of the prisoner's gender identity, was not a violation of constitutional rights.

But Reinhardt's analysis of the Gender-Motivated Violence claim is ultimately much more significant. Mitchell had argued that because the GMVA is part of the Violence Against Women Act, it should be interpreted to apply only to violence against women, and Schwenk, a pre-operative transsexual, is a man. Rejecting this view, Reinhardt noted that the GMVA, by its terms and as described by members of Congress in their consideration of the bill, protects all residents of the U.S. from violence motivated by their gender. But this leaves the question whether violence aimed at a person because of their "gender identity" comes within the meaning of gender-motivated violence. Since the GMVA is a new law that has not yet generated a significant body of published court opinions, Reinhardt looked to cases under Title VII, the federal law that bans sex discrimination in employment, for guidance.

Federal appeals courts, including the 9th Circuit, have consistently interpreted Title VII not to forbid discrimination on the basis of gender identity. But Reinhardt concluded that those cases have been effectively overruled by the Supreme Court's 1989 decision in Hopkins v. Price Waterhouse, a case involving a woman who was denied a partnership in the accounting firm because she was perceived as inadequately feminine in her appearance and behavior. In that case, the Court ruled that discrimination using sexual stereotypes about gender role violated the ban on sex discrimination.

Reinhardt found that by taking this view, the Supreme Court had effectively collapsed the concepts of sex and gender, previously treated as distinct under Title VII, into one broad category that would include gender identity. As such, Reinhardt concluded that under Title VII, and, by extension, under the GMVA, discrimination or violence aimed at somebody because of their gender identity would violate those statutes.

However, because this ruling is, in effect, a new interpretation of the GMVA, Mitchell could not be charged with having known that his conduct would violate the GMVA at the time it took place, so the part of Schwenk's lawsuit based on the GMVA would have to be rejected based on the immunity doctrine.

However, in light of this decision, the immunity doctrine would not bar future lawsuits based on violence against transsexuals by government employees, at least in the West Coast states within the jurisdiction of the 9th Circuit. And, although Reinhardt's discussion of Title VII is not technically binding because this case was not brought under Title VII, presumably courts in the 9th Circuit's states are now on notice that employment discrimination against transsexuals may violate Title VII.

On the one hand, this opinion provides quite an important breakthrough. Transgender rights activists have been campaigning to add "gender identity" to the Employment Nondiscrimination Act (ENDA), a bill pending in Congress to bar sexual orientation discrimination, and gay political groups and Congressional sponsors of ENDA have been divided over whether to add this category to the bill. If the 9th Circuit's opinion is embraced by other courts, such an addition could prove unnecessary, although gender identity activists may still prefer that the protection be spelled out in the statute rather than left solely to judicial interpretation.

On the other hand, the 9th Circuit's panel decision could be subject to reconsideration by the entire 9th Circuit, and it is not unlikely that Mitchell's lawyers would seek such reconsideration. Furthermore, the Violence Against Women Act is now before the Supreme Court on a challenge to its constitutionality, and it is not farfetched to believe that the Supreme Court would grant a petition by Mitchell to review this case as well, since the inclusion of "gender identity" under Title VII is likely to prove quite controversial as word of this decision spreads. It is also important to remember that the 9th Circuit is the most-frequently-reversed circuit in cases going to the Supreme Court, and that this decision was rendered by a notably liberal panel of the Circuit; the other judges in addition to Stephen Reinhardt are Betty B. Fletcher and Sidney R. Thomas.

But for now this decision is an important symbolic victory for the gender identity movement to savor.

Lesbian and Gay New York (LGNY) Online Issue 128, March 10, 2000 http://www.lgny.com

Here is another one

Monday, April 8, 2002

Court rules unions can charge non-members for organizing costs
by Mark Gruenberg

SAN FRANCISCO — In a case that strongly upholds union rights, the full Ninth U.S. Circuit Court of Appeals reversed a lower court panel and ruled that unions — in union shops or agency shops — can charge non-members for organizing costs.

The case pitted the National Labor Relations Board and two United Food and Commercial Workers locals — one each in Michigan and Colorado — against the anti-worker National Right to Work Committee and its legal defense foundation. They financed the challenge by five “non-member” workers covered by UFCW contracts.

The NLRB won in the March 25 ruling, as the judges said that organizing is vital to bargaining, and thus “chargeable” to non-members in the union shop or agency shop.

“This is a very important development,” said attorney Bruce Feldacker, author of Labor Guide to Labor Law. “This is the full circuit court upholding the NLRB. But it could be heading to the U.S. Supreme Court,” if the losers appeal, he added.

Using Beck decision
The right to work committee and the five non-members argued the Supreme Court's Beck decision meant unions could not charge them for organizing. Beck ordered unions to give non-members the right to opt out of paying for politics. But organizing is a different matter, Judge Stephen Reinhardt said for the court.

“A union serving as a bargaining unit's exclusive bargaining representative is permitted to charge all employees, members and non-members alike, the costs involved in organizing, at least when organizing employers within the same competitive market as the bargaining unit employer,” Reinhardt wrote.

He noted this case involved the agency's expertise. NLRB's intensive investigation, plus past statistical studies, showed organizing is vital to bargaining — and to results.

That's because an organized employer is less likely to bargain, or agree to higher wages and better working conditions, if the employer's competitors are unorganized, the judge said.

“Organizing is central to the purpose” of labor law, he declared. “It is the necessary first step to collective bargaining because without organizing, there can be no majority of union member employees who may lawfully insist that an employer bargain collectively.

“Because the union can only become the collective bargaining representative if enough employees agree, the initial recruitment and incorporation of new members into a nascent bargaining unit through organizing is crucial.”

Organizing viewed as critical
Organizing competitors in the same industry and market area is also critical, Reinhardt said. It “may be crucial to improving the wages, benefits and working conditions of employees” in the unionized company — even the wages of the non-members covered by the union shop or agency shop, he noted.

“Organizing outside the bargaining unit” — the competitors —“when successful, eliminates the competition of employers and employees based on labor conditions regarded as substandard,” Reinhardt said, quoting a 1940 Supreme Court labor law decision.

Reinhardt left to the NLRB the definition of the local market and what the germane expenses of organizing are. He said that is not an area where courts have any expertise.

“The specific question presented here — whether organizing is germane to collective bargaining — is a complex and difficult one for the layman, member of the judiciary or not,” the judge commented laconically.

Reinhardt also threw out the anti-union group's reliance on Beck by noting that case involved free speech — in a political form — in addition to union rights. This one didn't.

“Where the claim made by the non-members does not involve unions' use of dues for political purposes, but only raises the question of whether the challenged union activities are germane to collective bargaining, we defer to” the NLRB's expertise, Reinhardt said.

The anti-union group and its allied workers also tried to equate the bargaining sections of the National Labor Relations Act with the more-circumscribed bargaining sections of the older Railway Labor Act. Reinhardt threw that out, too. He noted the two laws are very different, and that the bargaining processes in general industry are very different from those in railroads and airlines. The RLA covers those two industries.

The RLA orders mandatory arbitration and cooling-off periods and permits presidential intervention through emergency boards — which delays strikes and lockouts. The NLRA does not, he noted.

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