I was admitted to the California Bar at the ripe old age of 22. At that time, women comprised only 10% of the attorneys and we faced enormous obstacles. Someone decided it was okay for us to do family or contract law, but not trial work. We wore skirts because we would have been marked as competing with men if we attempted to wear pants. (Now, most women wear pants, leaving the uncomfortable skirts and heels at home.) I wish I had a nickel for every time a male attorney or judge mistook me for a secretary, asked me to get coffee or to go to bed with them. Those nickels could have funded my 401(k) plan for the rest of my life.  

Appearing in court presented another set of problems. Male attorneys and judges were often hostile as if we didn't know our place was really in the kitchen or the bedroom. When I took over a case from a male attorney (who later became a judge), I tried to discuss the case with him. He took one look at me and exclaimed, "I am being replaced by a woman! No way am I talking with you." When I appeared in Court to ask for the right to amend a pleading, my male opponent objected and the judge replied, "I am going to give this little lady anything she asks for!" Good for me but totally unsatisfying as to showing the proper respect for an attorney.

We had only a handful of women to look up to, including Ruth Bader Ginsburg, who blazed the trail ahead of us. When I faced a new client who said, "I want a real pit bull for an attorney. Are you sure you are up to it," I thought of Ruth Bader Ginsburg and how she did not have to resort to yelling or threats to get her point across. Pit bulls cost more money and they aren't always effective. Some clients watch too much television.

When Ruth encouraged women to help others who were less fortunate, I turned my sights away from big business and focused on the "little guy." I spent most of my career working for people and helping them in any way I could. Sometimes just by giving advice or calling another colleague. No one left without a possible remedy for his or her problems. 

I certainly admired, no worshipped, Ruth Bader Ginsburg. I would tell others that she was my aunt, only she didn't know it. Of course, she wasn't, although I wanted her to be. When I looked at some comments on the Internet, here are some of her accomplishments:

Because of her.....

In that play, Robert Bolt, who was apparently an agnostic, wrote about the importance of the rule of law. When William Roper asked why More could not just sign the Oath, even if he did not believe in its contents, they had this exchange: 

William Roper: “So, now you give the Devil the benefit of law!”

Sir Thomas More: “Yes! What would you do? Cut a great road through the law to get after the Devil?”

William Roper: “Yes, I'd cut down every law in England to do that!”

Sir Thomas More: “Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!”

That passage has resonated with me for my entire career. It gave me a reason to support the rights of those who I might not necessarily agree with or like. Maintaining the rule of the law was for not just their protection but mine as well. That meant standing up for those who are discriminated against now and not waiting for the discrimination to be practiced on those who were like me.

For months, I have observed the dismantling of the rule of law by the Trump Administration. Honestly, it sent chills through me as I watched Trump ignore the rule of law over and over again. Now that violation of his oath and duty as president has reached a new pinnacle. Every citizen of this country should be afraid, really afraid, as Trump has sent federal agents of DHS and ICE to act as the Gestapo in the streets of our cities - mostly Democratic-run states - to instill fear in our citizens.

From the beginning, the Black Lives Matters protests marked a change in our national conscience. Perhaps it was the fact that many of us were self-isolating from the tragic spread of COVID-19. Maybe we were facing our own mortality. Maybe we were examining our country - #1 at what? - and resisting the idea that we were going to be ruled by racism. Many felt, as I do, that we are better than this, but in striving to reach a higher level of of love and tolerance, we still had to face our racist past. For some, that was not part of the past; it is very much part of their present. I support those protests, which were mostly non-violent, because they are making a difference. Of course, there was always the fear that the protests would be taken over by others with a different agenda. Still, the accomplishments are something to be proud of.

As his ratings in the polls continue to slump, Trump has decided that he will appeal to his base and maybe others who want a law-and-order president, one who will not tolerate graffiti and damage to real property. At the express resistance of our local governments, these federal officers have shown up and exacerbated the situation. And why not? Could Trump justify sending in his Gestapo to quell a non-violent uprising of graffiti? That is hardly worth federal law enforcement stepping in at taxpayer expense.

But the snatching of protesters off the streets and whisking them away in unmarked cars by unidentified militia without probable cause is truly frightening. These actions are not done under the color of law and they are conducted in violation of the rule of law. Many laws. And, of course, they are making the situation worse, rather than quelling the protests. That simply plays into Trump's hands so he can justify the use of violence against peaceful protesters.

What about protestings who trespass on property, cause damage to personal property, or use graffiti? Law enforcement could take care of that and property owners have access to the courts to seek redress. Does it justify snatching people off the streets in unmarked cars? No, it does not. Because if we create excuses to apply the rule of law, then we are doomed, just as William Roper would be doomed in A Man for All Seasons.  

When I was very young, I wrote letters to world leaders for Amnesty International, imploring them to follow the rule of law and not simply imprison people who tried to protest. I would innocently urge them to look to our system of government where people could not be imprisoned without cause or indefinitely, and they had certain rights, even if they had committed terrible crimes. We knew of cases where individuals were snatched by their governments in the dead of night, never to be heard from again. Or their bodies would be found months later, dumped in forests or at the side of the road. I was so grateful I lived in a country where I thought that was not possible.

But it is possible now. If Trump's Gestapo is willing to beat up our citizens or snatch people off the streets without probable cause, then making them disappear may be the next step. We need to speak up!

The U.S. Supreme Court received an application for a stay or vacatur one day after the District Court issued an order granting a preliminary injunction. A few hours before the execution was scheduled, the District Court enjoined four executions on the ground that the use of a single drug, pentobarbital sodium, constitutes cruel and unusual punishment by the Eighth Amendment. The plaintiffs cited new expert declarations that pentobarbital causes the recipient to experience "flash pulmonary edema," a form of respiratory distress that may produce the sensation of drowing or asphyxiation. The Government countered that such experiences occurs only after the person had died or been rendered fully insensate.

Of course, prisoners have sought stays of execution for many years. What is important here is the fact that the Court was split - as usual - in a 5-4 decision. Justice Breyer, who was joined by Justice Ginsburg, dissented, writing that we must ensure prisoners receive full and fair procedures, and furthermore, they do not spend an excessively long time on death row. As a third consideration, Justice Breyer indicated that the courts have the responsibility to ensure the executions are not inhumane.  

Justice Breyer noted Mr. Lee was sentenced to death in 1999 and spent over 20 years on death row, a delay that can "inflict severe psychological suffering on inmates and undermine the penological rationale for the death penalty." Mr. Lee's co-defendant, who was identified as the perpetrator who did the actual killing, was sentenced to lfie imprisonment. He also noted the District Court concluded the scientific evidence "overwhelmingly" indicated the method of killing would cause "extreme pain and needless suffering." He pointed out there were other available and alternative methods that would reduce that risk.  

Justice Sotomayor, joined by Justices Ginsburg and Kagan, also dissented, but expanded the reasons, focusing on the procedures employed by the Government to seek emergency relief. She wrote, "Yet because of the Court's rush to dispose of this litigation in an emergency posture, there will be no meaningful judicial review of the grave, fact-heavy challenges respondents bring to the way in which the Government plans to execute them."

On June 15, 2020, the Government scheduled new execution dates. Four days later, the respondents filed a motion for a preliminary injunction, as well as a motion for expedited discovery, submitting hundreds of pages of briefing and exhibits. The District Court stayed the executions to permit full consideration of the claims after two sister courts had independently stayed two of the executions. The Court of Appeals denied the Government's motion for a stay, because the "novel and difficult constitutional questions" required "further factual and legal development." The District Court set an expedited briefing schedule to resolve the appeal. Then the U.S. Supreme Court stepped in to grant the Government's last-minute application to vacate the stay allowing for the executions to take place before a proper consideration of the respondents' claims.

Justice Sotomayor noted the Court had previously denied a similar request by the Government seven months ago, when it prohibited the executions before the Court of Appeals could address respondents' challenge to the federal execution protocol, including challenges to the merits of respondents' Administrative Procedure Act (APA) claim. The Court's decision "forecloses any review of respondents' APA claims and bypasses the appellate court's review of a novel challenge to the federal execution protocol," noting there was conflicting expert evidence that pentobarbital causes pain and suffering before the person is rendered insenstate, a claim that has never been adjudicated. Justice Sotomayor focused on the use of an emergency application from the Government for extraordinary relief, which inflicts "the most irreparable of harms without the deliberation such an action warrants."  

Justice Sotomayor concluded:

Today's decision illustrates just how grave the consequences of such accelerated decisionmaking can be. The Court forever deprives respondents of their ability to press a constitutional challenge to their lethal injunctions, and prevents lower courts from reviewing that challenge.  all of that is at sharp odds from this Court's own ruling mere months earlier. In its hurry to resolve the Government's emergency motions, I fear the Court has overlooked not only its prior ruling, but also its role in safeguarding robust federal judicial review. I respectfuly dissent."

When I was young, I was in favor of the death penalty as a means of punishment but many years ago I changed my opinion and felt that it should be abolished. That decision came after years of reading about criminal cases involving prosecutorial misconduct where evidence favorable to the defendant was concealed or never explored. Since man and by extension the Government and its army of lawyers are imperfect, then mistakes will happen, and these mistakes, whether intentional or negligent, increase the risk that innocent people will be executed. I also believe that employing the death penalty imposes psychological damage on those employing it. I would never be willing to put someone to death myself, so why should I ask others.  In Mr. Lee's case, even the family of the victims objected to executing him. And who knows what value that person might bring to the world, even from a prison cell. Execution does not seem a civilized way of dealing with crime and the fact that a man can sit on death row for decades seems cruel. Or the method employed produces pain, making the Government itself a cruel killer. We should rise above that as most other countries have.

Finally, the use of emergency procedures to avoid a full and meaningful review, when several lower courts felt there was "overwhelming" evidence by experts of the inhuman method of execution and wanted a full review and adjudication, seems riddled with problems. Why are we in such a rush to execute federal prisoners when we have not done so for 17 years?

A guest post by Sandra Smith Gangle, J.D.,
Author of “Madam Arbitrator” (now available on Amazon)

            Often, when I tell people I am an arbitrator, they bombard me with questions. “What does that mean?” “Are you a counselor? A mediator?” I have even been asked whether I “meditate in a particular religion.” And once, I was asked if I “prescribe medication” as part of my work.   

            The short answer is that an arbitrator is more like a judge than any of those other professionals. I am a labor arbitrator, which means I am neutral and impartial in labor relations matters. I am not biased in favor of either unions or management and I am knowledgeable in collective bargaining law. I apply labor contract language, like just cause, to resolving workplace disputes. I have been approved to conduct contested hearings in private industries and in the federal government, through FMCS, and in cases involving public employees like teachers, police officers and government workers though the states of Oregon, Washington and Alaska. 

            I also have arbitrated cases involving small claims in the Marion County Circuit Court.  In those cases, where no jury was required, the judges could assign a private arbitrator to conduct the hearing and make a decision that was then enforceable as if it were a judicial order.

When I arbitrate a dispute, I conduct a hearing in which there is a claimant or grievant and a respondent who denies that the claim has any merit. I swear in witnesses for the claimant and respondent, so they must tell me the truth in their testimony. When the hearing ends, it is my duty to analyze the evidence (testimony and documents) in an objective and unbiased manner in light of the applicable legal standard, which is the private contract that the parties have negotiated or the public law in a court-connected arbitration. After carefully deliberating all the evidence, as well as the arguments made by the parties’ advocates, I decide whether the party that bore the burden of proof in the case convinced me that they proved their position by a preponderance, more than fifty percent, of the evidence. Then, if the claimant proved that the respondent violated the contract or law in some fashion, I must implement an appropriate remedy to make the claimant whole, that is, restore them to the condition they should have earned, as completely as possible.

Some non-union employees may see the word arbitration included in their employee handbook. They may believe they have the same protection as unionized workers, but they do not. If they believe they have been treated unfairly in the workplace, they may believe that an arbitrator will remedy their claim. Unfortunately, in such cases, which are known as employment arbitrations, there is usually no contractual right that an arbitrator can enforce, so the employer is more likely to prevail in the case. There is unlikely a just cause standard for termination, for instance, and there is probably no requirement that the employer consider seniority and qualifications when granting a promotion to a higher position.

For those reasons, I never accepted appointments in such cases. I knew the parties had played no role in creating the terms and conditions of employment, so I felt that the hearing would be biased in favor of the employer. My passion was to arbitrate cases in which the law of the case had been enacted through a democratic negotiation process, that is similar to a public law that is enacted by elected legislators. As a labor arbitrator, I always knew the employee-claimant would be represented by a union and the law of the case would be a collectively-bargained labor agreement, not the arbitrary policies of the employer.

I would enjoy talking to interested parties about how I became an arbitrator, where I practiced in a career heavily dominated by white males. My passion in writing my book, “Madam Arbitrator,” was to inspire other women and persons of color to choose to follow my road map to a great career as a legal practitioner.  

     Note: The author is now retired from her arbitration practice and is devoting her time to writing and speaking to groups of people who are interested in her career as a lawyer and arbitrator.  Her website is www.madamarbitratorgangle.com.  She can be reached at her e-mail address, ganglesandrajd@gmail.com, to schedule a book-discussion meeting, either in-person or virtually via Zoom.  

• In Trump v. Vance, the Court ruled that Trump must release his tax returns and financial records to the Manhattan D.A., who is pursuing him for hush money payouts. In the 7-2 decision written bu Chief Justice Roberts, and joined by Justices Neil Gorsuch and Brett Kavanaugh, the Court held a president is not absolutely immune from state criminal proceedings nor is he or she entitled to a heightened standard of need. Justice Kavanaugh acknowledged, “In our system of government, as this court has often stated, no one is above the law. That principle applies, of course, to a president.”  

• In another 7-2 ruling, the Court held religious schools are exempt from fair employment laws.  Two fifth-grade teachers at Catholic parochial schools in California filed lawsuits. One claimed age discrimination and the other claimed she was terminated when she told the school she had breast cancer and would need time off, a violation of the Americans with Disabilities Act. Justices Sotomayor and Ginsburg dissented.

• In Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, the Court upheld the Trump Administration regulation that allows employers with religious or moral objections to opt of out of birth control coverage. This decision will limit womens’ access to birth control coverage under the Affordable Care Act and could impact over 126,000 women.

• In McGirt v. Oklahoma, the Court ruled in a 5-4 decision that a large chuck of eastern Oklahoma belongs to American Indians. The decision was written by Justice Gorsuch and casts doubt on hundreds of criminal convictions, finding the state cannot pursue criminal cases against American Indian defendants. The decision covers over 3 million acres, including most of Tulsa. 

In other legal news, a federal appeals court ordered the dismissal of Michael Flynn by U.S. District J. Emmett Sullivan. A lot of money was spent on this case, but ultimately Trump probably would have pardoned him anyway. 

Harvard and MIT have filed lawsuits to challege the Trump Administration’s rule that foreign students will lose their student visas and could be deported by ICE if their classes are held online. The University of California has also filed a similar lawsuit, claiming this regulation could affect 27,000 undergraduate international students, and 14,000 graduate students. It will also result in a significant loss of money to the University of California as many of these students pay full tuition. 

At least, Trump can enjoy the fact that he has appointed 200 federal judges, 53 appellate judges, 85% of whom are white and 75% male. What else would you expect? In less than four years, Trump has created a lot of litigation. I would love to know how much our government has spent on legal fees.

Turns out, it might not be an issue. Like most of you, I learned the District Court Judge Royce C. Lamberth denied the government's motion for an injunction to stop the distribution of the book, The Room Where It Happened. Most of the news reports only went so far and I was happy to see that the French media was giving it more attention.  

The Memorandum Order is fairly short and starts off with the conclusion, "[w]hile Bolton's unilateral conduct raises grave national security concerns, the government has not established that an injunction is an appropriate remedy." The Memo gives a quick background, focusing on the fact that Bolton signed several nondisclosure agreements. The violation of Bolton's NDA may result in assigning "all royalties, remunerations, and emoluments that have resulted, . . ."  

In December 2019, Bolton submitted his draft manuscript to the National Security Council and over the next four months, Bolton made edits to the manuscript. On April 27, 2020, the Senior Director for Records Access and Information Security Management Ellen Knight stated she no longer considered his manuscript to contain classified material and that she might prepare a final written authorization for him to proceed. She didn't. Then on June 8th, John Eisenberg, Deputy White House Counsel and Legal Advisor wrote to Bolton, claiming his book still contained classified information. Bolton decided to deliver the "final" manuscript to his publisher without receiving the written authorization or giving notice to the government. He also decided not to seek any relief from the courts.

The Court applied a four-factor test in deciding whether the injunction should issue. The first question was "Is the government likely to succeed on the merits?" The Court said yes, Bolton "likely jeopardized national security by disclosing classified information in violation of his nondisclosure agreement obligations."

"This was Bolton's bet: If he is right and the book does not contain classified information, he keeps the upside mentioned above; but if he is wrong, he stands to lose his profits from the book deal, exposes himself to criminal liability, and imperils national security. Bolton was wrong."

As noted by the Court, establishing one factor of the test is not sufficient. The next factor was whether the government would suffer irreparable injury if the injunction was not granted. It noted that more than 200,000 copies of the book had been shipped domestically, and thousands internationally. The book has already been reviewed and excerpted. As stated by Judge Lamberth, "By the looks of it, the horse is not just out of the barn - it is out of the country." The Court declined to issue an injunction for a nationwide seizure and destruction of the book, noting how the Internet age made such actions futile.

The Court also concluded any injunction "would be so toothless as to not substantially injure anyone" and that the request was untimely. It found the government could not overcome a lack of redressability. Because the government failed to establish three of the four required elements, the request for an injunction was denied.

A new book by Trump's niece Mary Trump is also scheduled for release in July. Trump has raised the possibility of suing her to block the book, Too Much and Never Enough: How My Family Created the World's Most Dangerous Man. He claims she signed a NDA over 20 years ago when the family settled Fred Sr.'s estate. Since I wouldn't assume the book to contain classified information, Trump will have to rely on the strength of the NDA. Considering Ms. Trump is a psychologist, it should be an interesting read.

 “Justice Holmes famously wrote that ‘[m]en must turn square corners when they deal with the Government.’ Rock Island, A. & L. R. Co. v. United States, 254 U. S. 141, 143 (1920). But it is also true, particularly when so much is at stake, that ‘the Government should turn square corners in dealing with the people.’ St. Regis Paper Co. v. United States, 368 U. S. 208, 229 (1961) (Black, J., dissenting). The basic rule here is clear: An agency must defend its actions based on the reasons it gave when it acted. This is not the case for cutting corners to allow DHS to rely upon reasons absent from its original decision.” (Opn., pg. 17.) 

An Obama-era program, DACA was established in 2012 and is available to undocumented immigrants who came to the United States under the age of 16, have lived in the U.S. since June, 2007, were enrolled in high school or graduated, and have not been convicted of certain offenses. Over 700,000 individuals applied for relief, which included federal benefits. In 2014, the eligibility requirements were expanded to include parents of U.S. Citizens or lawful permanent residents. 4.3 million parents became eligible for forbearance. Approximately 202,500 Dreamers and their families are impacted by today’s decision. Those individuals who met the criteria became eligible for renewable, two-year grants of “deferred action” from removal. 

Former Attorney General Jeff Sessions claimed the program had been created “without proper authority.” Former acting Secretary of Homeland Security, Elaine Duke, said the program would be phased out. Former Homeland Security Secretary Kirstjen Nielsen later announced the program would be phased out, arguing the program increased the risk of undermining public confidence in the rule of law.

The plaintiffs argued the phase-out violated the Administrative Procedural Act. Amicus briefs were filed by 143 businesses and companies, including Tim Cook, CEO of Appeal claiming the phase-out will harm the economy. Apple employs 443 Dreamers from 25 countries and four continent. One amicus brief noted that the loss of the DACA program would result in increased costs of $6.3 billion to hire and retrain replacements.

Chief Justice Roberts expressly declined to address whether DACA or its recision are sound policies. Since the decision is based on procedural flaws, the Trump Administration could renew its efforts to rescind DACA, but that effort could take months or years. In that period of time, we may have a new administration or the current protests may encourage the Administration to rethink its earlier decision.

 Sara Horta, a DACA recipient living in Washington, DC said: 

“This ruling blocks Trump’s attempt to end DACA and unnecessarily place hundreds of thousands of DACA recipients on the pathway to deportation. Despite Trump’s efforts to villainize and attack immigrants, my community is strong and resilient and we will not go away quietly.  

We will not wait around for Trump and Stephen Miller to come up with another misguided plan to terminate DACA or enact other anti-immigration policies. Instead, we will make sure that Donald Trump is a one-term president and Republicans who rubber-stamped his racist agenda are also defeated in November.”

 

You can access the decision here: https://www.supremecourt.gov/opinions/19pdf/18-587_5ifl.pdf.

 Justice Gorsuch concluded the law covers discrimination based on sexual orientation or gender identity:

             “In Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national orgin. Today we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or action it would have questioned in members of a different sex. Sex plays a necessary and undisguishable role in the decision, exactly what Title VII forbids.”

The decision was split 6-3. Chief Justice John Roberts joined the majority. Justices Alito, Thomas and Kavanaugh dissented.

Justice Gorsuch found discrimination occurs whenever an employer treats male employees differently than female employees. He pointed out two examples: In the first, both employees are attracted to men; however, one is a female, one  male. If the employer fires the male employee for no other reason than his attraction to men, the employer has engaged in sex discrimination. In a second example, the employer might fire a transgender person who was identified as male at birth but now identities as a female. If the transgender person is fired, it can constitute discrimination against one who changed gender identity in favor of one who was the same gender throughout. Justice Gorsuch stated, “Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.”

While the LGBTQ should celebrate this victory with two conservative justices siding with the majority, the fight is not over. The Court is considering a case that would provide religious exemptions to Title VII. In a concurring opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), Justice Gorsuch suggested that religious groups may enjoy an exemption from laws forbidding discrimination on the basis of sexual orientation or gender identity.

Even so, we should celebrate this decision, not only because it provides greater protection to LGBTQ workers. We should also celebrate the fact that the Court resisted pressure from the Trump Administration. It also shows the Court was able to set aside the justices’ individual biases and do the right thing.

My response is to point them to the U.S. Supreme Court, where decisions are often split 5-4 among the justices. Do they really believe that five of those justices saw the law in one way while the other four saw itanother? Yes, political differences affect the Court's decision. Why should it work any differently with the lower courts?

When trial attorneys pick a jury, they have an opportunity to address the jury directly and try to uncover their biases during voir dire. This is part of the jury selection process that ends with the empaneling of a jury. Then the trial begins. More than likely, voir dire is an opportunity to focus the jury on the client's story and educate them as to why the client should win. 

It is rare that a juror will admit to being prejudiced or even racist. The attorney has to uncover that fact with subtle or indirect questioning. It could be that one side has a better, more charismatic lawyer. Or the party may not be particularly likeable. Sometimes it comes down to not being white and educated.

I remember a Chinese woman, who possessed all of the evidence to prove her case against a white male defendant. She had no clue why she lost. I listened to her story and looked at the evidence. I couldn't understand why she had lost either. I surmised that she made the jury work too hard to understand her thick accent and they simply turned off when she spoke. Her trial also came at a time when the press was promoting stories about how the Chinese were taking over real estate and businesses, and soon the Chinese would own America.

Prejudices can come in many different forms. A jury might not like a woman because she is too pretty or too fat. They may not like a man who isn't well dressed or too angry. I remember the case against a former gang member, who was injured in a vehicle accident, along with his infant son. The defense argued the man was not entitled to lost wages because his "job" was being a gang member, and any money he received would be spent on drugs and criminal activities. Another man lost his case because he was an undocumented worker and the jury may have felt that giving him money would reward him for not being a citizen.

We all have our prejudices, some more so than others. Most of us want to think of ourselves as fair citizens, but those prejudices can be unconscious. How do we form our opinions of others? Why do we like some people and not others? I am sure psychologists have spent countless hours studying the process. It was never part of my official legal educations. Perhaps it should have been, but it forms the foundation of my advice, if you are able to receive justice, you are lucky.