January 25, 2013
First Circuit Dismisses as Moot Contracts Case with Constitutional Implicatons
In 2006, the U.S. Department of Health and Human Services (HHS) recieved funds under the federal Trafficking Victims Protection Act (TVPA) and contracted with the United States Conference of Catholic Bishops (the Conference) to provide services to trafficking victims. It did so after issuing a request for proposals (RFP) and receiving submissions only from the Conference and the Salvation Army, both of which are religiously affiliated.
The Conference insisted that the contract provide that neither the Conference nor any of its sub-contracts would use the TVPA funds to counsel or provide abortions or contraceptive services and prescriptions to trafficking victims. The panel that reviewed the RFP's deducted points from the Conference's submission because of that condition, but it still rated the Conference's RFP far more favorably than that of the Salvation Army.
The Conference did not provide any direct services to trafficking victims. Rather, it subcontracted with hundreds of other organizations, which provided services to over 2200 victims over a four-year period. The Conference entered into agreements with its sub-contractors prohibiting them from using TVPA for any purposes relating to contraception or abortion, but the sub-contractors were not prohibited from using their own funds for those purposes.
In 2009, the American Civil Liberties Union of Massachusetts (ACLUM) brought suit alleging that the contract violated the First Amendment's Establishment Clause. The contract expired in 2011, and HHS replaced its program run through the Conferece with a grant program in which the Conference as not involved. The District Court nonetheless granted ACLUM's motion for summary judgment in March 2012, finding that the claim was not moot because the "voluntary cessation" exception to the mootness doctrine applied.
On January 15, 2013, the First Circuit issued its opinion in American Civil Liberites Union of Massachusetts v. United States Conference of Catholic Bishops, and it reversed. It remanded the case to the Distrcit Court for an entry of an order of dismissal because the case is rendered moot by the expiration of the contract at issue. In so doing, the First Circuit noted that the voluntary cessation doctrine has no application where the cessation is unrelated to the litigation. The exception exists to deter strategic behavior in which a party ceases the challenged behavior only to avoid further litigation and may reasonably be expected to resume the behavior once the threat of litigation has subsided. There is no likelihood that a contract will be awarded to the Conference in the foreseeable future, as HHS has locked itself into three-year agreements with other organizations under its new grant program.
As long as our first lady has ba-ba-ba-bangs [relevant "analysis" starts about a minute into the video], it seems unlikely that HHS will be contracting with the Conference and that, it seems, is enough to render ACLUM's challenge moot.
October 15, 2012
Some Spy Suits Are Justiciable
We have reported previously on the fact that the Totten doctrine bars suits against the United States by people who enter into espionage contracts with the government. But what if you are engaged in espionage for the Church of Scientology?
As reported here in the Tampa Bay Times, Paul Marrick and Greg Arnold are suing the Church of Scientology for breach of contract. The two men claim that David Miscavige, the Church's leader, hired them to spy on the Church’s rivals, especially Pat Broeker, who was ousted during a power struggle in 1986, and whom it was believed still constituted a threat to Miscavige’s power over the church. The theory was that Broeker had misappropriated $1.8 million in Church funds and that he was in possession of invaluable records entrusted to him by Church founder L. Ron Hubbard (pictured).
Marrick and Arnold allege that the Church has been paying them up to $500,000 a year since 1988 to keep the Church informed of the comings and goings of Broeker, among others, including Indiana governor Mitch Daniels when he was with Eli Lilly, and promised that their positions were permanent. However, they allege that the Church stopped paying them two earlier this year, and they have now filed suit.
Marrick and Arnold claim that, while no written agreement existed, the assurances given to them by the church constitute a verbal agreement that the church breached when it stopped paying them. Statute of Frauds much? They claim to have kept ample records detailing their work, and according to the Tampa Bay Times, when they suggested that they would share that information with the newspaper, the Church initiated settlement talks in a suit it characterized as a "shakedown." The Church acknowledges that the two men worked for them, providing "various services" as "independent contractors."
[Christina Phillips and JT]
April 20, 2012
More on Morals Clauses
Frank touched on the issue of morals clauses in a post earlier this week. The case on which Frank commented involved a professional athlete, and most most morals clause cases that we have addressed here involve celebrities and often celebrity endorsements. But today we report on a morals cause case that invovles an ordinary working Joe (well, Jane actually).
According to abcnews.go.com, Heritage Christian Academy in Rockwall, Texas fired teacher and coach, Cathy Samford, for getting pregnant out of wedlock. The school claims that Samford violated the “moral clause” in her contract. Samford and her fiancé had plans to marry at the end of the summer, but a series of events delayed the wedding. Shockingly marital relations were not similarly delayed. The school informed Samford that she was to be terminated, even though Samford and her fiancé offered to marry immediately, as that was the plan regardless. Samford has filed a charge of gender and pregnancy discrimination with the U.S. Equal Employment Opportunity Commission and is preparing a lawsuit against the school.
Samford maintains that she did not violate her contract in any way and that the morals clause is vague and unenforceable, as it merely calls on employees to be “Christian role models.” Samford’s attorney, Colin Walsh, explained to ABCNews.com that “It’s against the law to fire someone for them taking a pregnancy leave and you can’t preventatively fire someone. You can’t contract around anti-discrimination laws. . . ."
The school’s headmaster, Dr. Ron Taylor, told ABC News that “the issue is that Samford is an unmarried mother, and everything the school stands for says and they want their teachers, who are considered to be in the ministry, to model what a Christian man or woman should be”. Taylor further intimated that “[the school] had the feeling that because kids on [Samford’s] volleyball team and kids in her classes knew she was pregnant, her getting married would not change the fact that her behavior was out of wedlock.” The language of ministry is significant, since the Supreme Court recently held in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC that the Establishment and Free Exercise Clauses of the First Amendment bar suits brought on behalf of ministers against their churches, claiming termination in violation of employment discrimination laws. Samford's attorney contends that the school cannot invoke this ministerial exception for all of its employees just because it is a Christian institution.
[JT and Christina Phillips]
March 20, 2012
Solution to the Problem of Men Who Are Hard to Get: A Beth Din Approved Pre-Nup
Don't know what a Get is? We recommend The Sopranos: Season 1, Episode 3. Or you could read this report in Saturday's New York Times. Basically, a Get is a document that effects the religious divorce of a Jewish married couple. Even though a couple might be legally divorced, the woman needs the Get before she can marry again in the Jewish faith. Some observant Jews would consider illegitimate the children of a woman who remarries without a Get.
The problem: some men are hard to Get. They don't want to be married, but they seek to extract money from the wife or her family in order to agree to the Get. That's where Tony Soprano comes in. But the wise guy solution is not always practical, as the Times notes by referencing this criminal complait from New Jersey. It turns out that paying someone to kidnap and assault your ex-husband is a criminal act.
The solution: according to the Times, the Beth Din of America, a leading orthoox Jewish adjudicatory body, has created a pre-nuptial agreement that is consistent with Jewish law (halakhah). Among other things, this kosher pre-nup provides that the husband will pay $150 (adjusted for inflation) for every day during which the couple is separated but not religiously divorced. The effect is to force the husband to support the wife until he agrees to give her a Get.
According to the Times, about 70% of rabbis now either require or encourage the parties to sign the Halakhic pre-nup before stepping under the chuppah (pictured). A new documentary, "Women Unchained" explores the topic in further detail.
April 18, 2011
A Passover Retreat: Good or Service?
It is time to get into the Passover spirit by revisiting Fallsview Glatt Kosher Caterers v. Rosenfeld, 7 Misc.3d 557 (Civ. Ct. Kings County, NY, 2005), which gave us the opportunity to pause and consider: is a “Passover retreat” predominantly a good or service under the UCC? (Which, also came to be known as an added, fifth question for the youngest child at the seder).
Plaintiff Fallsview operated a retreat during Passover at Kutscher’s Country Club. (A Jewishy resort in the Catskills where, as a young child, I spent all of my grandmother’s laundry quarters on Ms. Pac-Man). For those that did not grow up going to B’nai Brith conventions in “The Country” (that’s what the NYC Jews called it), see this video, which comports with my memory.
Fallsview’s “retreat” included accommodations, entertainment and kosher food service. Willie Rosenfeld allegedly reserved spaces for 15 members of his family and agreed to pay $24,050 for the retreat. Fallsview made necessary arrangements, but Rosenfeld failed to appear at the hotel and did not remit the payment. Fallsview sued Rosenfeld for breach of contract.
Rosenfeld moved to dismiss, pointing to the statute of frauds. Rosenfeld argued that there was no agreement and, even if there was, it was oral and did not satisfy UCC 2-201, which requires that contracts for the sale of goods for the price of $500 or more be in writing. Fallsview’s response: the UCC does not apply because the Passover retreat is a service, not a good.
Because the alleged contract called for accommodations, entertainment and food, it was a hybrid transaction, and the court looked to whether goods or services predominated. Rosenfeld argued that the retreat was about food, a conclusion that he argued was “compelled by the very nature of the Passover holiday”:
The essential religious obligation during this eight day period- and the principal reason why people attend events similar to the Program sponsored by plaintiff- is in order to facilitate their fulfillment of the requirement to eat only food which is prepared in strict accordance with the mandate of Jewish law for Passover, i.e., food which is ‘Kosher for Passover’. It is the desire to obtain these ‘goods'-and not the urge for ‘entertainment’ or ‘accommodations'-that motivates customers to subscribe to such ‘Programs.’
But the court noted all of the possible daily activities at the retreat included “tennis, racquetball, swimming, Swedish massage, ‘make over face lift show,’ ‘trivia time,’ aerobics, bingo, ice skating, dancing, ‘showtime,’ ‘power walk,’ arts and crafts, day camp, ping-pong, Yiddish theater, board games, horse racing, horseback riding, wine tasting, and indoor bocci-and that is only through Wednesday.” There were also “ traditional and Orthodox religious services, lectures on religious and other subjects (presumably with a religious or cultural perspective), and a series of activities that are clearly designed to be of interest to families of observant Jews during a highly significant period in their calendar. “ The all-inclusive price covered these activities, as well as accommodations and food.
The court (Battaglia, J., who coincidentally, used to teach at my home institution), sided with Fallsview and decided the essence of the retreat was a “family and communal ‘experience’” and, therefore, was defined primarily by services and not by goods. Rodenfeld’s motion to dismiss was denied.
[Meredith R. Miller]
March 03, 2011
Should the Mets Leave the Concession Stands at CitiField to an “Even Higher Authority”?
The owners of the Mets have a $300 million Madoff problem, but that hasn’t distracted them from attempting to ban a kosher concession stand from selling food at CitiField during the Sabbath.
Kosher Sports has a 10-year contract to sell hot dogs at the stadium and it sued the Mets last summer after being told it could not operate on Friday nights and Saturdays. In August, Judge Jack Weinstein ordered the Mets to stop banning the company’s sale of food during the Sabbath. At the time, he said with a smile, “I cannot get involved in (a dispute) over rabbinical law.”
Perhaps that is why the case ended up before Magistrate Judge Andrew Carter. But, he recused himself earlier this week because a Kosher Sports lawyer spotted him wearing a Mets hat outside the courthouse.
I imagine that this is a dispute about what the word “kosher” means in the 10-year contract. The Mets say the food isn’t “kosher” if the stand operates during the Sabbath. Kosher Sports begs to differ, and (likely) adds that the contract does not expressly restrict Sabbath sales. What’s the answer? What’s “kosher”? Apparently, whether a purveyor can sell food on the Sabbath and retain kashrut status is very complicated under Jewish Law. Some won’t allow it at all; some will allow it with particular conventions followed (conventions which are difficult to follow in a stadium on a Saturday because they require proper supervision and the qualified supervisors are prevented from stopping by on the Sabbath).
No wonder Judge Weinstein did not want to get involved, there’s an even higher authority involved in this dispute:
Certainly, this could be handled with more precise contract drafting in the future. Though, the inability to operate a concession stand on Friday nights and Saturdays (when, I imagine, the stadium has the highest turnout for games), could make it a losing proposition. Which, in the end, could mean no kosher option at all (whatever that means).
[Meredith R. Miller]
November 15, 2010
Aquinas and liberalism
The Lumen Christi Institute and the University of Chicago's Department of Political Science will be hosting the 2010 Yves Simon Memorial Lecture this Wednesday, November 17. The speaker is Paul Sigmund, an authority on political theory and Latin American politics. Here's the description of the lecture:
Given a renewed interest in the political thought of Thomas Aquinas, many 20th century political philosophers (e.g. Yves Simon, Jacques Maritain, and Alasdair MacIntyre) have brought Aquinas’ thought to bear on questions within contemporary liberal democracies. This lecture will consider this Thomistic renewal and its influence in both European and Latin American Christian Democratic parties.