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From Friday’s decision in Doe v. Supreme Court of Kentucky; Judge Walker (known in part for the coronavirus / drive-in church services / Free Exercise Clause decision) is a federal judge in the Western District of Kentucky, but has been confirmed for the D.C. Circuit:

Courts, journalists, and scholars have extensively documented the mental health issues that afflict lawyers. The problems begin in law school, where “law students have disproportionate levels of stress, anxiety, and mental health concerns compared with other populations.” After graduation, lawyers suffer from depression at higher rates than non-lawyers. Not long ago, the Kentucky Bar Association President described a spike in Kentucky lawyers dying by suicide as “disproportionate” and “disconcerting.”

Jane Doe was a lawyer in Florida. She moved to Kentucky. She wanted to practice law here. Bureaucrats didn’t want her to. They thought her mental disability [apparently depression or Bipolar I Disorder or both] made her unfit. For over two years, they stopped her. But she didn’t give up. And they eventually relented.

Then Doe sued them, alleging they had illegally asked about her mental health history and treatment, illegally forced her to turn over her medical records and her therapists’ notes from their counseling sessions, and illegally treated her like a criminal because of her disability.

This case is not only about Jane Doe. It’s also about the lawyers who decide who else can be a lawyer.

Under the Kentucky Constitution, that power belongs to the Supreme Court of Kentucky. The court, in turn, delegates that job to its Bar Bureaucracy:

• The Character and Fitness Committee and Board of Bar Examiners comprise the Office of Bar Admissions.
• The Character and Fitness Committee prohibits people from practicing law if the committee thinks they are immoral or unfit.
• The Board of Bar Examiners prohibits people from practicing law if they can’t pass a timed exam that tests their ability to memorize whole areas of the law they will never again need to know anything about.
• The Kentucky Bar Association decides who gets to stay a lawyer.
• The Kentucky Lawyer Assistance Program keeps tabs on lawyers and aspiring lawyers who have mental health issues by monitoring their medications, counseling, where they live, and where they travel.

Anyone with any power in this Bar Bureaucracy is a lawyer. So, just like an oil or drug cartel, those who are already selling something get to decide who else may sell that same thing. Of course, unlike most cartels, this one is legal. In fact, the Kentucky Constitution requires it.

If Doe had sued the Bar Bureaucracy back when it stopped her from entering the market, she would have had standing to ask the Court to block it from treating her like it did. But you can’t blame Doe for waiting to sue. If your goal is to persuade the Bar Bureaucracy’s lawyers to let you join their club, it isn’t a good strategy to poke them in the eye with a lawsuit that accuses them of violating the Americans with Disabilities Act and the United States Constitution.

Because the Bar Bureaucracy (finally) allowed Doe to practice law, she lacks standing for prospective relief. And because legislative and judicial immunity protect Bar Bureaucracies from money damages arising from the promulgation of bar rules and the adjudication of bar applications, the Court will dismiss Doe’s federal claims. In addition, the Court declines to exercise supplemental jurisdiction over Doe’s state-law claims.

The Bar Bureaucracy won this round against an applicant it deemed suspect and undesirable. But there will be more applicants—and more lawsuits. Some of those plaintiffs will have standing to seek prospective relief. And when they do, the Bar Bureaucracy will have to answer for a medieval approach to mental health that is as cruel as it is counterproductive….

Several federal and state courts have held that the Americans with Disabilities Act prohibits Bar Bureaucracies from unnecessarily interrogating applicants about their mental health. So too did the Department of Justice. In 2014, it concluded that questions about applicants’ mental health do “not provide an accurate basis for predicting future misconduct.” Instead, they likely “deter applicants from seeking counseling and treatment for mental health concerns, which fails to serve the Court’s interest in ensuring the fitness of licensed attorneys.” In other words, according to the Department of Justice, a Bar Bureaucracy’s decision to ask applicants about their mental health status makes aspiring lawyers less fit to practice law.

{To be clear, neither Doe nor the Department of Justice has argued that Bar Bureaucracies cannot ask about an applicant’s relevant past conduct, regardless of whether mental disability had a role in that conduct. Rather, they argue that Bar Bureaucracies cannot ask about an applicant’s status as a person with a mental disability, and they cannot treat an applicant differently based on that status. So, for example, it’s fair game to ask, “Have you ever been fired?” Or, “Have you ever robbed a bank?” Applicants’ mental health provides no escape from the questions, even if they had a mental disability when they were fired (or robbed the bank).} …

[Doe, who was a member of the Florida bar, applied to join the Kentucky bar.] [S]hortly before Doe took the February 2016 bar exam, the Character and Fitness Committee refused to approve her application. Instead, in March, the Bar Bureaucracy proposed, and Doe signed, a “consent agreement” for conditional admission. 23 It required 1) a Kentucky Contract (more on that later); 2) compliance with Florida’s rules and Kentucky’s rules and reporting requirements; and 3) “residency in Kentucky … unless” Doe was relocating for work and the Bar Bureaucracy approved.

The consent agreement did not provide details about the Kentucky Contract. Yvette Hourigan, Director of the Kentucky Lawyer Assistance Program, said the contract would mirror the monitoring arrangement Doe had with the Florida Lawyers’ Assistance Program, which was tailored to Doe’s diagnosis.

Doe passed the bar exam. She paid the dues and swearing-in fee.

Although Hourigan had promised to send a proposed contract, she didn’t. Instead, she arranged to meet with Doe the morning of the new lawyers’ swearing-in ceremony at the State Capitol. That day, Hourigan “texted that she was running late and they would meet on the steps of the Capitol” minutes before the swearing-in.

At this point, you might be thinking that a public place with many of Doe’s peers isn’t an ideal place to discuss private medical issues. (It isn’t.)

You might also wonder if other bar applicants could overhear their discussion.²⁶ (They could.)

Instead of the personalized contract Hourigan had promised, she presented a boilerplate contract. It included a host of medically unnecessary requirements, including random drug and alcohol testing. When Doe told Hourigan she had never had drug or alcohol problems, Hourigan told her the provisions were standard. Hourigan, who is not a doctor but plays one on the Capitol steps, also said Doe’s medications required abstinence from alcohol. (They don’t.)

Doe refused to sign the contract. She told Hourigan it violated the Americans with Disabilities Act, and “the ADA does not permit the disabled to be treated like criminals.” (It doesn’t.) …

There’s much more; if you’re interested, read the whole opinion. A bit more from the end:

By this point, you might be wondering how a plaintiff could ever challenge the way a Bar Bureaucracy asks applicants about their mental health and puts them through the ringer if they truthfully disclose a mental disability. The answer is that a plaintiff could sue for prospective relief—a declaration that the questions violate federal law and an injunction prohibiting the Bar Bureaucracy from asking them. To have standing, the plaintiff would need to be a bar applicant, not an unconditionally licensed lawyer like Doe was when she filed this suit….

Let’s recap. For her federal-law claims, Doe lacks standing for prospective relief. She also lacks standing to sue the institutional defendants other than the Supreme Court of Kentucky and the Character and Fitness Committee because the others didn’t cause her injuries. Judicial immunity and legislative immunity shield the Supreme Court of Kentucky and Character and Fitness Committee from damages.

Doe’s federal claims must therefore be dismissed. And the Court declines to exercise jurisdiction over her state-law claims….

Law school is hard. The stress, rigor, and competition can lead to depression, anxiety, and substance abuse. Many students who start school healthy are far from it by the time they graduate. Some kill themselves.

Aspiring lawyers should seek the health care they need. But if Kentucky continues to punish people who get help, many won’t. And one day, a law student will die after choosing self-help over medical care because he worried a Character and Fitness Committee would use that medical treatment against him—as Kentucky’s did against Jane Doe.

It is not a matter of if, but when.

I’m not sure whether all this analysis is sound—it’s not quite my field—but I thought it was quite interesting. (Note also that there is some doubt about whether lawyers are any more likely to suffer from mental illness than other professionals, see Yair Listokin & Ray Noonan, Measuring Lawyer Well-Being Systematically: Evidence from the National Health Interview Survey.)

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From John Berenberg, via Mark Liberman (Language Log):

I confirmed this (at least as of now). Note that there is no Wikipedia article for New York Times communists, either.

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The next two months are going to be dark, people. Good luck finding a corner of American life that won’t be co-opted into the great national binary of Donald Trump vs. Joe Biden, a struggle (we’ll be told) where civilization itself hangs in the balance. People you once found sane will show up in your driveway, eyes bulging like Marty Feldman’s, ranting about the dark forces on the verge of unleashing a thousand-year reign of terror. It’s guns and guillotines all the way down.

Or maybe not? Today’s Reason Roundtable podcast, featuring Nick Gillespie, Peter Suderman, Matt Welch, and Katherine Mangu-Ward, ping-pongs between pessimism and psychotic breaks, as the gang discusses Portland, Kenosha, Minneapolis, Trump, Biden, the RNC, the DNC, federalism, media, coronavirus, basketball, and modern love, more or less in that order.

Audio production by Ian Keyser and Regan Taylor.

Music: “Night Driver” by The Whole Other.

Relevant links from the show:

“How Portland’s Protests Drifted into ‘Dangerous Territory,’” by Nick Gillespie

“When You Say Yes to Hate: Dispatch From Portland,” by Nancy Rommelmann

“Protesters Tell Rand Paul, Who Wrote the Justice for Breonna Taylor Act, To Say Breonna Taylor’s Name,” by Robby Soave

“Trump Authorizes Deployment of 2,000 National Guard Troops to Kenosha,” by Christian Britschgi

“Kenosha Doesn’t Have To Be a Vision of America’s Future,” by J.D. Tuccille

“Qualified Immunity Is a Disgrace, No Matter Where You Live,” by Billy Binion

“Bourgeois Libertarianism Can Save America,” by Brian Doherty

“Nixon May Be Trump’s ‘Law and Order’ Model, but He Was Smarter on Crime,” by Jacob Sullum

“Trump Warns America: ‘Biden’s America’ Will Look Like Trump’s America,” by Elizabeth Nolan Brown

“In Convention Speech, Pence Warns: ‘You Won’t Be Safe In Joe Biden’s America,’” by Elizabeth Nolan Brown

“The Shaky Foundation of Trump’s Pose As a Criminal Justice Reformer,” by Jacob Sullum

“Remember When a Democratic Polling Firm Fired the Guy Who Thought Violent Protests Could Backfire Politically?” by Robby Soave

“NBA, MLB Games Postponed as Players Protest Jacob Blake Shooting,” by Eric Boehm

“Trump Promotes the Outlandish Claim That COVID-19 Has Killed a ‘Minuscule’ Number of Americans,” by Jacob Sullum

“Could the COVID-19 Epidemic Fade This Fall Without New Lockdowns?” by Ronald Bailey

“CDC Issues New Guidelines That Discourage COVID-19 Diagnostic Testing,” by Ronald Bailey

“A Summer Without Summer Movies,” by Peter Suderman

“Prepare Yourselves Now for a Miserable Fall Television Rollout,” by Glenn Garvin

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From Friday’s New Hampshire Supreme Court decision in Burt v. Speaker (written by Justice Bassett),

[Plaintiffs], each a member of the New Hampshire House of Representatives, alleged that House Rule 63—which, with limited exceptions, prohibits the carrying or possession of any deadly weapon in Representatives Hall, as well as in the anterooms, cloakrooms, and House gallery—violates their fundamental rights under Part I, Article 2-a of the New Hampshire Constitution {“[a]ll persons have the right to keep and bear arms in defense of themselves, their families, their property and the state”}. The trial court dismissed the plaintiffs’ complaint, concluding that, because the issue presents a nonjusticiable political question, the court lacked subject matter jurisdiction. We reverse and remand….

On January 2, 2019, the New Hampshire House of Representatives amended House Rule 63 to provide that “[n]o person, including members of the House, except law enforcement officers while actively engaged in carrying out their duties as such, shall carry or have in possession any deadly weapon … while in the House Chamber, anterooms, cloakrooms, or House gallery.” Previously, House Rule 63 permitted members of the House, and others, to carry weapons in the House Chamber so long as the weapons were not displayed….

The trial court observed that “[t]he separation of powers doctrine limits judicial review of certain matters that lie within the province of the other two branches of government,” and that “[w]hen the State Constitution commits an issue to one of the other two branches of government, the issue becomes non-justiciable.” Noting that “[t]he State Constitution grants both houses of the legislature the authority to settle the rules of proceedings in their own [h]ouse,” the trial court found that “[i]t is [not] the constitutional duty of the judiciary to review … the rules of proceedings within the legislative chambers.” The trial court concluded that, “[a]s an independent and coequal branch of government, the legislature holds the inherent power to control the wearing of firearms within their chambers. This Court will not encroach on the legislature’s inherent authority to enact such rules.”

The New Hampshire Supreme Court reversed the trial court decision:

[The Speaker argues that] “[t]he precise issue presented by this case has been definitively decided by this Court in State v. LaFrance.” See State v. LaFrance, 124 N.H. 171, 181-82 (1983)…. In LaFrance, we considered the constitutionality of a statute mandating that law enforcement officers be allowed to wear firearms in any courtroom in the state. Because the statute infringed upon the judiciary’s inherent authority to make its own internal procedural rules, we found that the statute violated the separation of powers, and, therefore, was unconstitutional.

We stated that “[i]t would not be within the constitutional prerogative of the judiciary to tell either of the other two branches of government who could or could not wear guns in the Executive Council Chamber or in the Representatives’ Hall.” “That,” we said, “would properly be a matter for those branches of government to resolve.” This is the specific language that the Speaker cites in arguing his position, contending that “[t]his statement alone provides sufficient grounds for this Court to uphold the [s]uperior [c]ourt’s dismissal of this action.” …

[But the cited language from LaFrance] did not directly address the constitutionality of a limitation on an individual’s fundamental constitutional rights, but rather, it dealt only with the interplay between branches of government…. [We did not] address the specific question presented here: whether the judiciary has the constitutional authority to determine whether House Rule 63 violates the appellant’s fundamental rights under the State Constitution. Indeed, LaFrance did not involve a limitation on an individual’s fundamental right under the State Constitution to keep and bear arms, but rather, a statute safeguarding that right….

Regardless, our decision in LaFrance does not permit us to treat the separation of powers as an “impenetrable barrier[],” and thereby disregard our “duty to interpret constitutional provisions and … determine whether the legislature has complied with them.” The legislature may not, even in the exercise of its “absolute” internal rulemaking authority, violate constitutional limitations. Indeed, “[n]o branch of State government can lawfully perform any act which violates the State Constitution.” Therefore, “[a]ny legislative act violating the constitution or infringing on its provisions must be void because the legislature, when it steps beyond its bounds, acts without authority.” Accordingly, because “[i]t is the role of this court in our co-equal, tripartite form of government to interpret the Constitution,” and “to determine whether the legislature has complied with [its provisions],” we conclude that the controversy as to whether House Rule 63 violates the appellant’s fundamental right to keep and bear arms under Part I, Article 2-a of the State Constitution is justiciable, and that the trial court erred when it dismissed the complaint….

Finally, the Speaker urges us to reject the constitutional challenge, arguing that House Rule 63 is constitutional because it “merely imposes a reasonable restriction on deadly weapons in the House chamber.” See Bleiler v. Chief, Dover Police Dep’t, 155 N.H. 693, 699-700 (2007) (recognizing that “the New Hampshire state constitutional right to bear arms is not absolute and may be subject to restriction and regulation,” and adopting a “reasonableness test” for evaluating substantive due process challenges to such regulations (quotation omitted)); District of Columbia v. Heller, 554 U.S. 570, 626-27, 627 n.26 (2008) (observing that “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings” are “presumptively lawful regulatory measures”). To the extent that the Speaker is asking us, in the first instance, to decide whether House Rule 63 is constitutional under Part I, Article 2-a, we decline to do so. Here, the trial court did not address the merits of the constitutional challenge. We express no opinion as to that issue, and remand for further proceedings consistent with this opinion.

Sounds right to me.

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Here is an excerpt (you can also read the whole petition, and this post with the backstory):

On July 22, 2020, a Cincinnati police officer filed a complaint in the [Hamilton County Court of Common Pleas] under the pseudonym “M.R.” against five named defendants, and “John Does #1-20,” asserting multiple tort claims, including claims for false light invasion of privacy and defamation arising out statements allegedly made by the defendants on social media and in complaints filed with the Cincinnati Citizens Complaint Authority (“CCA”) ….

In conjunction with the filing of his complaint, M.R. filed a Motion for Leave to File Affidavit Under Seal and to Proceed Under a Pseudonym …. The Underlying Action was assigned to Respondent [Judge Megan Shanahan], who granted the Motion to Seal on July 22, 2020 …. The Sealing Order does not contain any of the findings required by Sup.R. 45(E), merely reciting that the “Court finds such Motion well taken and grants same.”  … Although Respondent initially set a hearing on Relators’ motions to unseal, she advised the parties via an email from her staff on August 21, 2020, that the hearing was canceled….

The First Amendment … gives the public a presumptive right of access to court documents filed in a civil case. See Rudd Equip. Co., Inc. v. John Deere Constr. & Forestry Co., 834 F.3d 589, 593 (6th Cir. 2016) (citing Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1179 (6th Cir. 1983)). See also State ex rel. Beacon Journal Publ’g Co. v. Bond, 98 Ohio St. 3d 146, 2002-Ohio-7117, 781 N.E.2d 180 (recognizing First Amendment right of access to documents filed in criminal proceedings). “A plaintiff’s use of a pseudonym ‘runs afoul of the public’s common law right of access to judicial proceedings.'” Doe v. Megless, 654 F.3d 404, 408 (3d Cir. 2011) (citation omitted); see also In re Sealed Case, No. 19-1216, 2020 WL 4873248, *2 (D.C. Cir. Aug. 20, 2020); Doe v. Public Citizen, 749 F.3d 246, 273 (4th Cir. 2014). Consistent with the First Amendment, Superintendence Rule 45(A) provides that “[c]ourt records are presumed open to public access.” …

Both a complaint and affidavit filed with the clerk of court in a civil action constitute “a document or information in a document submitted to a court or filed with a clerk of court in a judicial action or proceeding.” Thus, M.R.’s name, and his affidavit, each constitute a “case document” within the meaning of Sup.R. 44(C)(1). An affidavit of the kind at issue here is not exempt from public disclosure under state, federal, or the common law, and does not otherwise fall within any of the exceptions set forth in Sup.R. 44(C)(2)(b), (d)-(h). [And] Rule 10(A) of the Ohio Rules of Civil Procedure provides that “[i]n the complaint the title of the action shall include the names and addresses of all the parties.”

Under the Superintendence Rules, a court may only restrict public access to a “case document” or information in a case document if the court complies with the requirements of Sup.R. 45(E). Before restricting public access, a court must find “by clear and convincing evidence that the presumption of allowing public access is outweighed by a higher interest,” upon consideration of the factors set forth in Sup.R. 45(E)(2)(a)-(c). “When restricting public access to a case document … the court shall use the least restrictive means available.” Sup.R. 45(E)(3).

Under the First Amendment, “[o]nly the most compelling reasons can justify non-disclosure of judicial records.” Rudd Equip. Co., Inc., 834 F.3d at 593. To determine whether a record was appropriately sealed, a court should consider “among other things, the competing interests of the defendant’s right to a fair trial, the privacy rights of participants or third parties, trade secrets, and national security.” In evaluating a request by a plaintiff to proceed pseudonymously for purposes of the First Amendment, courts consider “(1) whether the plaintiff[] seeking anonymity [is] suing to challenge governmental activity; (2) whether prosecution of the suit will compel the plaintiff[] to disclose information of the utmost intimacy; (3) whether the litigation compels plaintiff[] to disclose an intention to violate the law, thereby risking criminal prosecution; and (4) whether the plaintiff[] [is a] child[].” Doe v. Bruner, 12th Dist. Clinton No. CA2011-07-013, 2012-Ohio-761, ¶ 7 (internal quotations omitted). See also Doe v. McKesson, 322 F.R.D. 456 (M.D. La. 2017), aff’d, 945 F.3d 818 (5th Cir. 2019)….

Upon information and belief, Respondent did not conduct an evidentiary hearing prior to rendering the Sealing Order, and thus, did not have any evidence before her other than M.R.’s affidavit. As such, Respondent could not have found by clear and convincing evidence that the presumption of public access to M.R.’s name, and his affidavit, was outweighed by a higher interest, upon consideration of the factors set forth in Sup.R. 45(E)(2)(a)-(c).

A court’s failure to follow the procedures for sealing a case document or information therein renders the order sealing the document void, and the court record remains subject to public access. See State ex rel. Vindicator Printing Co. v. Wolff (“Wolff“), 132 Ohio St.3d 481, 2012-Ohio-3328, 974 N.E.2d 89, ¶ 37. A court’s order must include findings justifying the order to seal to allow a court to review the court’s bases and evidentiary support for restricting public access. See also Rudd Equip. Co., Inc., 834 F.3d at 596 (requiring court to set forth “specific findings and conclusions which justify nondisclosure to the public” (internal quotations omitted)). Respondent’s Sealing Order does not provide any rationale or justification for granting the Motion to Seal, or insight into why Respondent found “by clear and convincing evidence” that the Sup.R. 45(E) standard was met. The Sealing Order therefore fails to satisfy the requirements of Wolff.

Further, Respondent did not make any finding in the Sealing Order that allowing M.R. to proceed pseudonymously (i.e., redacting his name from the complaint) or restricting access to the entirety of the affidavit, were the least restrictive means available, or that Respondent considered the alternatives set forth in Sup.R. 45(E)(3)(a)-(e). Likewise, Respondent’s Sealing Order does not contain any findings or conclusions that would permit this Court to review the rationale for her order restricting access to M.R.’s name and his affidavit for purposes of the First Amendment….

In addition to the facial invalidity of the Sealing Order, there are no facts or circumstances under which it would have been appropriate for Respondent to restrict access to M.R.’s name or his affidavit under Sup.R. 45(E) or the First Amendment.

M.R. is a Cincinnati police officer and therefore a “public figure” under Ohio law. Soke v. The Plain Dealer, 632 N.E.2d 1282, 1284 (Ohio 1994) (“The United States Supreme Court has repeatedly recognized that police officers are public officials.”). As a public official, M.R.’s interest in hiding his identity from the public, while using public resources to obtain private relief, is non-existent, particularly when weighed against the public’s interest in knowing the identity of the plaintiff in this case, and the sworn allegations he has relied on to seek an order restraining the speech of private citizens.  This is especially so when the allegations in the complaint concern the performance of his official duties.

Further, from the allegations made by M.R. in his complaint, Relators believe (with near certainty) they have identified M.R. through the defendants’ social media postings, and CCA complaints M.R. referenced in his own complaint, but cannot conclusively tie him to the Underlying Action without a public filing in his real name….

Accordingly, Relators are entitled to a writ of mandamus pursuant to Sup.R. 47(B) and the First Amendment compelling Respondent to direct M.R. to file a complaint under his own name and to provide public access to his affidavit.

As an alternative remedy, the petition seeks a writ of prohibition, which is often used in courtroom sealing cases in Ohio. We have also filed a motion for expedited review, on the theory that:

Each day that passes during which access to the judicial records and information sought by Relators is denied represents a serious, continuing, and irreparable injury to their constitutional rights. Elrod v. Burns, 427 U.S. 347, 373 (1976) (“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”). Expedited review is therefore appropriate and necessary to prevent further injury.

Many thanks to John C. Greiner and Darren W. Ford of Graydon Head & Ritchey LLP, who wrote the petition and the motion for the Cincinnati Enquirer, and allowed me to join; and to my pro bono counsel Jeffrey M. Nye of Stagnaro, Saba & Patterson, who has helped me a great deal with the various briefs both on the unsealing and on the underlying prior restraint (where we filed an amicus brief).

 

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