Plaintiff files her Motion in four civil actions that she has commenced in the federal District of Colorado:
(1) Glapion v. Castro, 14-cv-01699-MEH
(2) Glapion v. Jewell, 14-cv-03236-MEH
(3) Glapion-Pressley v. Denver, 19-cv-02806-RM-MEH
(4) Glapion-Pressley v. Denver, 21-cv-02362-RM-MEH
Plaintiff brought all of the above lawsuits alleging employment discrimination. All four were resolved in the respective defendants' favor, and the cases were closed. Plaintiff appealed Case Nos. (1)-(3), which the Tenth Circuit affirmed. This Court notes that Plaintiff commenced two additional civil actions in the federal District of Colorado (which she does not identify in her Motion):
(5) Glapion v. Castro, 14-cv-03237-MEH,
(6) Glapion v. Janski, 21-cv-02812-GPG
Case No. (5) also concerned employment discrimination. For Case No. (6), Plaintiff alleged discrimination by the Arapahoe County Court magistrate judge who presided over a lawsuit in which she was a litigant. These two lawsuits also are closed, but Plaintiff did not appeal them….
[Plaintiff] asks to redact all personal-identifying information and to replace references to her name with her initials, "MRG". In practical effect, Plaintiff asks to keep the fact that she litigated Case Nos. (1)-(4) confidential—despite the positive feedback she has received from the public about "her courage to 'fight the good fight' exposing high level officials violating Constitutional Protected Rights by public Title VII civil actions." …
Frontiero v. Richardson (1973) and United States v. Virginia (1996) were argued on the same day, twenty-three years apart. Ruth Bader Ginsburg argued the former case, and wrote the majority opinion in the latter case.
The interview covers the Uniting for Ukraine program, the expansion of private refugee sponsorship to cover migrants from elsewhere, and various potential objections to these policies.
The video of my recent Amanpour & Co. TV interview on the Uniting for Ukraine private refugee sponsorship program is now available on Youtube. It aired this Monday on CNN International and PBS.
The interviewer and I discuss the program, its recent expansion to include migrants from four Latin American nations, and a variety of possible objections to these policies, including claims they are unfair to migrants from other countries, possible security risks, and others. This was probably my longest-ever appearance on TV, with the exception of those on C-SPAN.
The interview arose from my earlier Washington Post article on the Uniting for Ukraine program, and my participation as a sponsor (non-paywall version available here). I previously wrote about Uniting for Ukraine and private refugee sponsorship here, here, and here. In a recent post, I covered some common questions and misconceptions about these policies, and also explained how interested readers can start the process of becoming sponsors themselves.
The twentieth episode (Apple Podcasts link here and Spotify link here) of Strangers on the Internet with co-host and psychologist Michelle Lange deals with artificial intelligence (AI) chat bots, which have been all the rage in recent months. From concerns about academic plagiarism to questions about whether they may replace workers in many industries, the news has been abuzz with articles about platforms such as ChatGPT. Some chat bots specialize in particular areas, such as providing dating coaching. We put several bots to the test to see if their dating advice is up to snuff.
What does AI think about the quality of the male versus female dating pools? Does it believe there is someone out there for everyone? And would AI ever advise you to lie to get the kind of partner you want? Come check out the hilarious results of our conversations with romance-minded chat bots!
Throughout family law, courts tend to consider what outcomes or arrangements would be in "the best interests" of the child." Accordingly, when parents find themselves in court fighting over custody, child support, or other matters, arguments are typically framed in such terms, even if the parents are pursuing their own selfish interests.
With this as background, I found this New York Post report on recent filings in an ongoing court battle between President Biden's son, Hunter, and the mother of his daughter who was born out of wedlock, to be quite interesting. Apparently one issue between them is whether Biden's child should be allowed to bear the Biden name.
From the report:
Hunter Biden asked a judge to deny his 4-year-old daughter from taking his surname — claiming it's a lightning rod for criticism and would rob the child of a "peaceful existence."
The first son's request on Jan. 6 came amid an ongoing paternity case against him in Independence, Ark., where Biden is fighting to lower his child-support payments to baby mama Lunden Roberts for their love child, Navy Joan Roberts.
Roberts, 31, asked Circuit Court Judge Holly Meyer on Dec. 27 to allow their daughter to take the Biden name, claiming it would benefit their daughter because it is "now synonymous with being well educated, successful, financially acute and politically powerful." . . .
[Hunter Biden's] lawyer fired off a motion the following week to ask the judge to deny Roberts' request, arguing that his daughter should decide for herself once "the disparagement of the Biden name is not at its height."
Hunter Biden had denied paternity of Navy Joan Roberts, until DNA testing demonstrated that he was Navy Joan's father. Lunden Roberts claims that allowing Navy Joan to take the Biden name would help "rectify" Hunter Biden's "neglect" of his daughter. Biden's attorneys claim Roberts' effort is "political warfare" against the Biden family, pointing to the fact that Lunden Roberts had previously sought to protect their daughter's privacy by redacting her name and identifying information from court filings.
I'm delighted to pass along this item from free speech historian Jacob Mchangama, author of Free Speech: A History from Socrates to Social Media, head of the Justitia think tank, and a senior fellow at the Foundation for Individual Rights and Expression:
Hamline University has received considerable backlash for not renewing the employment of a scholar who showed an allegedly "Islamophobic" image of the Prophet Muhammad during an art history class. The university did so, even though the adjunct professor gave ample warnings before and during the class that the image would be shown.
According to an email sent to faculty and students co-signed by the university's president, respect for Muslim students "should have superseded academic freedom."
This is dangerous, particularly for Muslims. By internalizing religious blasphemy norms Hamline has not only repudiated academic freedom, but also played into the hands of religious fundamentalists whose main victims are the very Muslims that Hamline says it wants to protect. The furor caused Hamline´s Board of Trustees to issue a statement on January 13th in which it promises to review its policies with a view to "Upholding academic freedom and fostering an inclusive, respectful learning environment for our students are both required to fulfill our Mission". That Hamline is reviewing its policies and seeking to learn from the debacle it has brought upon itself is a welcome step in the right direction.
The most important lesson to be learned is that academic freedom and tolerance are not conflicting values. In particular subjecting academic freedom to religious blasphemy norms, is a retrograde step betraying a disturbing lack of understanding of how such norms erode and threaten both tolerance and academic freedom.
According to The New York Times, Hamline's decision followed a complaint from a young black Muslim female student of Sudanese origin, who felt that the image targeted both her religion and race and made her feel like she didn't belong. It is understandable that an undergrad student from a minority background might feel insecure and vulnerable when foundational parts of her identity, normally taboo, are being discussed freely in class. But the antidote to feelings of insecurity and marginalization should not be the imposition of religious orthodoxy.
A closer look at how blasphemy norms operate in many Muslim-majority countries demonstrates that they're weaponized to protect oppressive religious and political authorities and disproportionately target heterodox Muslims, religious minorities, and freethinkers.
I'm delighted to report that Prof. Steven Calabresi (Clayton J. & Henry R. Barber Professor of Law at Northwestern Pritzker School of Law) is joining our merry band! Steve has written or cowritten over seventy law review articles and three books on constitutional law, comparative constitutional law, federal jurisdiction, and administrative law, and he also worked as a lawyer in the White House and in the Attorney General's office during the Reagan Administration. (Before that, he clerked for Justice Scalia and for Judges Bork and Winter.) Steve is also a co-founder of the Federalist Society and co-chairman of its Board of Directors, though of course all of his posts represent his own views and not of the Federalist Society, Northwestern, or any other institution.
From Iloh v. Regents, decided Friday by the California Court of Appeal (Justice Thomas Goethals, joined by Judges Maurice Sanchez and Joanne Motoike):
An assistant professor at a public university submitted four articles on topics in her field of study to various academic journals unaffiliated with her university. All four of those articles were later either retracted or corrected by the journals, at least in part due to inaccurate references or text overlap from uncited sources. Soon after that, the professor left her position at the university.
A third party investigating the article retractions sent the university a request under the California Public Records Act (CPRA) seeking certain postpublication communications between the professor, the university, and the journals regarding the retracted articles. The university determined the requested documents were subject to disclosure; the professor disagreed, filed a petition for writ of mandate, and sought a preliminary injunction to prevent disclosure….
"The [C]PRA, enacted in 1968, grants access to public records held by state and local agencies. [Citation.] Modeled after the federal Freedom of Information Act, the [C]PRA was enacted for the purpose of increasing freedom of information by giving members of the public access to records in the possession of state and local agencies. [Citation.] Such 'access to information concerning the conduct of the people's business,' the Legislature declared, 'is a fundamental and necessary right of every person in this state.'"
Consistent with that fundamental right of access to information, the CPRA dictates that "every person has [the] right to inspect any public record," except those records expressly exempted from disclosure. The CPRA broadly defines '"public records'" to include "any writing containing information relating to the conduct of the public's business prepared, owned, used, or retained by any state or local agency." [The California] Constitution requires that these provisions furthering the people's right of access to information be "broadly construed."
On Friday, the Supreme Court decided to hear a case challenging the constitutionality of a Minnesota state law empowering local governments to seize the entire value of a property in order to pay off a much smaller delinquent property tax debt. The property owner in the case - 94-year-old widow Geraldine Tyler - argues that this kind of uncompensated seizure of home equity violates the Takings Clause of the Fifth Amendment, which requires government to pay "just compensation" anytime it takes private property, and the Excessive Fines Clause of the Eighth Amendment.
The case has important implications beyond Minnesota. Eleven other states have laws that allow similar "home equity theft." In addition, the case might help resolve the longstanding debate over whether property rights under the Takings Clause are purely a product of state law, and therefore subject to elimination by state legislation.
The Pacific Legal Foundation, the public interest law firm representing Tyler, has a helpful summary of the facts:
As an elderly widow living alone, Geraldine Tyler was doing just fine in the one-bedroom condo she owned in Minneapolis. That is, until 2010, when a rise in neighborhood crime and frightening incidents near her home alarmed Geraldine and her family and prompted her hasty move to a safer area, where she rented an apartment.
Once Geraldine moved, she could no longer afford the property taxes on her condo in addition to therent on her apartment. The taxespiled up, and Tyler accrued a $2,300 debt.In 2015, when the total tax debt, including penalties, interest, and fees,was $15,000, Hennepin County, Minnesota, seized the condo and sold it one year later for $40,000. Instead of keeping the $15,000 it was owed and refunding Geraldine the sale surplus, the county kept all of the $40,000.
The US Court of Appeals for the 8th Circuit ruled for the government, concluding that Tyler had no constitutional property right in her home equity because property rights are ultimately a product of state law, and the Minnesota state legislature had abolished the rights in question by passing a statute eliminating them:
Whether a property interest exists "is determined by reference to existing rules or understandings that stem from an independent source such as state law."Phillips v. Wash. Legal Found., 524 U.S. 156, 164 (1998) (internal quotation omitted). We therefore look to Minnesota law to determine whether Tyler has a property interest in surplus equity.
Tyler argues that Minnesota recognizes a common-law property interest in surplus equity in the tax-forfeiture context. She relies on an 1884 decision of the Minnesota Supreme Court,Farnham v. Jones, 19 N.W. 83 (Minn. 1884), which addressed an 1881 Minnesota tax-collection statute….
We conclude that any common-law right to surplus equity recognized in Farnham has been abrogated by statute.In 1935, the Minnesota legislature augmented its tax forfeiture plan with detailed instructions regarding the distribution of all "net proceeds from the sale and/or rental of any parcel of forfeited land." 1935 Minn. Laws, ch. 386, § 8. The statute allocated the entire surplus to various entities but allowed for no distribution of net proceeds to the former landowner.The necessary implication is that the 1935 statute abrogated any common-law rule that gave a former landowner a right to surplus equity.
The court goes on to conclude that current Minnesota tax foreclosure law is similar to the 1935 statute in stripping property owners' rights to surplus home equity.
A recent Sixth Circuit ruling in a similar home equity theft case effectively highlighted the flaw in this reasoning:
True, the federal "Constitution protects rather than creates property interests," which means that "the existence of a property interest," for purposes of whether one was taken, "is determined by reference to existing rules or understandings that stem from an independent source such as state law." Phillips v. Washington Legal Foundation, 524 U.S. 156, 164 (1998… But the Takings Clause would be a dead letter if a state could simply exclude from its definition of property any interest that the state wished to take. To the contrary, rather, "a State may not sidestep the Takings Clause by disavowing traditional property interests long recognized under state law…"Id. at 167.
The question, then, is whether Michigan likewise disavowed traditional property interests merely by defining them away in its General Property Tax Act.The interest that the plaintiffs invoke here, again, is anentitlement to the equity in their homes—pursuant to principles long articulated by courts of equity, before their merger centuries later with courts of law….
I explained the significance of this issue in a post on the Sixth Circuit case, which also notes key reasons why the reasoning like that of the Eighth Circuit should be rejected:
This ruling is part of a longstanding debate over the extent to which the property rights protected by the Takings Clause are purely defined by state law (in which case the state can often avoid takings liability simply by redefining them), or whether they are also defined by some combination of general legal tradition and natural law. The Sixth Circuit is right to conclude that broader legal principles constrain the states here. But I would add that, at least as a matter of original meaning, states are also constrained by natural law understandings of property rights. I briefly cover this point in this article (pp. 52-53), and also in Chapter 2 of my book The Grasping Hand.
Given the high value the Founders placed on property rights, it would be strange—to say the least—if these constitutional rights were left entirely at the mercy of state governments to redefine as they please, because state law protects them and plays a key role in defining their scope. The same logic would equally justify allowing states to redefine the scope of many other constitutional rights. For example, rights to speech and bodily autonomy could similarly be left to the discretion of the states on the theory that state law historically defined the scope of protection against assault and battery, and the extent to which speech could be restricted by laws against libel, slander, sedition, and blasphemy.
I am guardedly optimistic that the Supreme Court will overturn the Eighth Circuit ruling and adopt something close to the approach embraced by the Sixth Circuit, and a number of other federal and state courts, such as the Michigan Supreme Court in the 2020 San Rafaeli case (decided under the Michigan state Constitution). While many property rights cases tend to split the justices along predictable left-right ideological lines, it is possible this one will not, as liberal justices may see the egregious nature of home equity theft, and the way it tends to victimize the relatively poor and disadvantaged. The facts of the Tyler case drive home this point well.
In addition to the Takings Clause issue, the case also raises the question of whether home equity theft violates the Excessive Fines Clause of the Eighth Amendment. This issue is a tougher one than the Takings Clause question, and I will perhaps return to it at a future time. If, as I tentatively expect, the Supreme Court rules in favor of Tyler under the Takings Clause, it may not even need to address the other issue.
NOTE: In both Tyler and the Sixth Circuit case, the property owners were represented by the Pacific Legal Foundation, which is also my wife's employer. She, however, was not involved in either case.
Trans World Airlines v. Hardison (1977) provided a very narrow reading of Title VII's protections against religious discrimination. Under that decision, a private employer does not need to accommodate an employee's religious exercise if doing so would require the employer "to bear more than a de minimis cost." Yet, the language of Title VII requires employers to accommodate an employee's religious exercise unless it would suffer an "undue hardship." An "undue hardship," under any reading of the text, must be more than a "de minimis cost." But Hardison was decided in the bad-old days when textualism wasn't very important. For decades, Hardison has stood in tension with Title VII. Yet, the precedent has stood.
In 2021, the Supreme Court denied cert in two cases that sought reconsideration of Hardison. At the time, I speculated that there may have been some vehicle problems with those petitions.
Today, the Supreme Court granted review in Groff v. DeJoy. This case expressly asks the Court to reconsider the Hardison standard. There are two questions presented:
1. Whether this Court should disapprove the more-than-de-minimis-cost test for refusing Title VII religious accommodations stated in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977).
2. Whether an employer may demonstrate "undue hardship on the conduct of the employer's business" under Title VII merely by showing that the requested accommodation burdens the employee's co-workers rather than the business itself.
Congratulations to the First Liberty Institute and Baker Botts for the grant. The case should be argued in April. May the "de minimis" test go the way of Trans World Airlines: defunct.
Say you're working for a private employer, and you have a religious objection to a religion-neutral work rule: You might feel a religious obligation not to work Friday sundown to Saturday down, while the employer may require you to Saturdays or Friday nights. You might feel a religious obligation to wear a beard or a turban or a yarmulke or a headscarf, which may conflict with an employer dress and grooming code banning headgear or facial hair. You might feel a religious obligation not to get vaccinated, which may conflict with an employer requirement of vaccination.
One can debate on libertarian, egalitarian, or utilitarian grounds whether employers should have to give you an exemption from such rules. But in 1972, Congress said, as a matter of federal law, that they must indeed do so, unless they show that they're "unable to reasonably accommodate to an employee's … religious observance or practice without undue hardship on the conduct of the … business." How high a bar, though, should "undue hardship" be?
In TWA v. Hardison (1977), the Supreme Court held that "To require [an employer] to bear more than a de minimis cost in order to [accommodate the employee] is an undue hardship." The two most liberal members of the Court, Justices Marshall and Brennan objected, reasoning (among other things),
As a matter of law, I seriously question whether simple English usage permits "undue hardship" to be interpreted to mean "more than de minimis cost," especially when the examples the [1967 EEOC guidelines, which the dissent viewed as probative of the meaning of the 1972 amendments] give of possible undue hardship is the absence of a qualified substitute.
But the more centrist and conservative Justices in the majority disagreed.
What a difference the last 45 years have made! As with the question whether the Free Exercise Clause entitles religious objectors to exemptions from religion-neutral laws, it looks like the ideological polarity of this issue has flipped. Justices Thomas, Alito, and Gorsuch have called for reconsidering the TWA v. Hardison decision (and Justice Kavanaugh has hinted that he might agree):
The Supreme Court has long recognized that "true threats" of illegal conduct are excluded from First Amendment protection. But what mental state does the government have to show to prove that something is a true threat?
Is it enough to show that a reasonable person would have recognized it as threatening (a mental state generally labeled "negligence")?
Does the government have to show that the speaker recognized it was quite likely to be perceived as threatening, and ignored that risk (generally called "recklessness")?
Does the government have to show that the speaker knew it was nearly certain to be perceived as threatening (generally called "knowledge")?
Does the government have to show that the speaker specifically had the aim of making people feel threatened (generally called "purpose")?
Oddly enough, the Court has never resolved this question, though such "mens rea" elements are key parts of many other First Amendment tests:
Today I ran across this passage in an older equity treatise. 1 Robert Treat Whitehouse, Equity Practice: State and Federal 92-96 (1915) (emphases added):
§ 59. Numerous persons. The cases where of numerous persons having a material interest, a portion may be dispensed with as parties, rest on the principle of virtual representation, i. e., the principle that where a large number of persons have a common interest, a portion of the number bringing a bill or defending in behalf of themselves or others may fairly be taken to represent the whole so that a decree can be rendered in the case without prejudice to the rights of the absent. The interest in question must be a community of interest in the subject matter of the suit, i. e., in the estate, title or right involved in the controversy, and it matters not whether it be a community of interest in the same property or separate and distinct property interests having a common interest in the enforcement or defeat of the right involved in the controversy, provided that the success of the portion bringing the bill or defending in behalf of the others will benefit all alike. But in such case, the bill must be brought in behalf of the plaintiff and all others of like interest, and it should be alleged in the bill that it is thus brought since the parties are too numerous to do otherwise. If brought solely in behalf of the plaintiff, or nominally in behalf of all, but seeking to establish an individual right of the plaintiff's, adverse and exclusive in its nature, all whose interests will be affected must be made technical parties or the bill will not be sustained. The rights of the absent ones can only be bound by the decree of the court where all have a common interest so that a portion before the court may fairly be taken to represent all.
The chief classes of cases of numerous persons represented by a few are creditors' bill, stockholder'' bills and bills of peace.
This passage is a good exposition of the older equity practice. It also shows why the modern class action is the lineal descendant of these older equity group actions. There is no longer any room in the federal system for some other form of virtual representation that evades the requirements of the class action (cf. Taylor v. Sturgell). Once that is recognized, there's no room for the national injunction, which is a way of getting the benefit of a class action while evading all the requirements.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
Mandatory, warrantless inspections of rental properties are wildly invasive and ripe for abuse, no matter officials' purported intentions. So writes IJ attorney Rob Peccola in the Chicago Tribune, advising the city's aldermen to vote down a proposed rental inspection law. Indeed, in December, a federal judge signed off on a consent decree in nearby Zion, Ill., that protects renters and landlords from the same kind of regime that is now proposed in Chicago.
CNN v. SEB, decided yesterday by the Michigan Court of Appeals (in an opinion by Chief Judge Elizabeth Gleicher, joined by Judges Jane Markey and Michelle Rick, stemmed from an ongoing pattern of disputes between two neighboring families about the use of a shared driveway. "Battles raged on issues ranging from installing chicken wire fences to hanging surveillance cameras from trees, sometimes leading to screaming matches in the street." Police were often called, and both sides often sought PPOs (personal protection orders against each other).
The incident triggering the current filing arose on August 8, 2021, when MN [CNN's husband] parked his car in the driveway directly in front of his garage and began vacuuming the inside, with his back turned to SEB's property. From her porch, CNN observed SEB approach MN to take cell phone pictures of him. CNN walked over and stood between SEB and MN. She repeatedly told SEB to go away. SEB's sister, RJ, and EB [SEB's husband] joined the gathering. Another neighbor, LM, heard the argument and drew near to assist CNN and MN.
When LM came outside, SEB shouted, "[H]ere come your masser (sic)." (LM is white; CNN, SEB and their husbands are African American.) CNN and LM reported that SEB and EB repeated the comment approximately four times. LM returned to his house. CNN told SEB that her comment was "foul." SEB then made a motion "like she was trying to … come at" CNN. RJ grabbed SEB's arm to stop her and SEB tried to pull loose. CNN asked SEB, "[W]hat are you doing? What is that you want[?] You want to come at me[?]" CNN and MN then turned away and returned to their homes. [Further details, which the court concluded didn't form a basis for the lower court's PPO, omitted.—ed.] …
The [trial] court characterized SEB's statement—"here comes your master"—as "racially charged" and "hate speech." "That is harassment, possibly of the worst kind, in this day and age, in this time of insensitivity to everyone that you can have that in your heart to utter in the heat of the moment, is very unfortunate[ ]." The court found it be "blatant harassment that rises to the level of a definition under the statute. It is not protected speech and it doesn't matter where you are standing." …
At the close of the hearing, the court entered the PPO prohibiting SEB from "sending mail or other communications" to CNN, "contacting [CNN] by telephone," "placing an object on or delivering an object to" CNN's property, "threatening to kill or physically injure" CNN, "speaking to [CNN] in any place or location," and photographing CNN or her vehicle….
