Citizen's Election Program Hearing: Pre-game

Another morning of rising early to take the train into New York City to hear arguments at the Second Circuit of Appeals. Yesterday was the Doninger case. Today is the Citizen's Election Case. As I walked off the train, I passed a policeman with his German Shepherd watching the passengers disembark. As I headed into the subway, a man behind me gets stopped by police and directed over to a table to have his backpack searched. On the subway platform, there are small gatherings of police officers chatting. Security feels tighter today than it did on Tuesday. Maybe it is because of anticipated extra passengers heading in for matinées.

Yet at the court house, it is the same drill. I called my wife to let her know that I'm heading into the courthouse where I would need to leave my laptop and cellphone and be incommunicado for a few hours. There have been rumors that the Citizen's United ruling might come down from the Supreme Court today and that Secretary of State Susan Bysiewicz would be announcing that she will run for Attorney General instead of Governor.

The courtroom was more crowded today than it was yesterday. At ten minutes before ten o'clock, the appointed time for the proceedings to begin, there were already twenty people in the gallery and almost as many up front. While the Doninger case has broad implications for Internet speech, the immediate impact may be felt more narrowly. The Citizen's Election Program decision could have a broad, immediate effect.

Besides lawyers, representatives of the state, the various advocacy organizations, and others with an interest in the case, there were more reporters here today as well. An Asian man who appeared to be here for a different case sat quietly reading his bible. Different people whispered to one another about who was considering running for which seat in the upcoming elections.

At about ten minutes after the hour, the judges entered the court room and called the day calendar. There were no motions to be heard, but there were about five other cases to be heard before the Citizen's Election Program cases.

The first case was of a man arrested, apparently for having a large bag of heroin at his house. He represented himself pro se, claiming that his right of privacy was violated, that there was not an appropriate search warrant, and various other concerns. The attorney representing the state pointed out that all the information necessary was in the court record. The judges reserved judgment.

The second case was also pro se. A woman who had battled non-Hodgkins lymphoma talked about becoming legal blind and her work place not accommodating her condition. The attorney representing the company where she had worked claimed she did not meet the necessary legal criteria for the company to make the accommodations she was requesting. Again, the judges reserved decision.

The following case was one of ineffective council. A man plead guilty to possession five kilograms of cocaine. He entered a plea agreement and worked with investigators for a few years, only to have the state change its tune at the sentencing hearing. There are discussions about how he went through seven different lawyers, and at least one was trying to scam him. The attorney for the state pointed out that the man was given an opportunity to change his plea at an earlier point becomes of some the issues that had been raised, but never did. The lawyer for the man who had plead guilty pointed out that after working with investigators for three years, providing information that could be used against him, that was not a real choice. Judge Hall suggested it was a Hobson's choice, and the lawyer agrees. Again, the judges reserved decision.

With these cases out of the way, A bigger case was heard; Sharon Kaytor and the U.S. Equal Opportunity Commission v. Electric Boat. Ms. Kaytor had worked at Electric Boat for thirty three years and had security clearances. She was suing Electric Boat for hostile work environment and retaliation. Initially there were questions here and there such as what shows that the hostile environment was a result of sexual harassment. The attorneys suggested it was the totality of the circumstances including the progression from non-threatening to aggressive to threatening behavior directed to women, as well as sexual innuendos.

There were legal points about the hostility needs to be severe or pervasive to be applicable and an attorney pointed out that you don't get much more severe than death threats. The attorney for Electric Boat argued that there was not a relationship between the sexual innuendo and the hostility. Judge Cabranes made comments about how perhaps just occasional death threats could be non-sexual threatening environment, just your average run of the mill hostile environment. This brought a little laughter from the courtroom. Everyone was starting to warm up for the main event. At ten after eleven and there were around sixty people in the gallery.

Again, the judges reserve decision and some of the people left, including one of the Connecticut reporters, who headed out to speak with parties to the case. One more case remained before the CEP case. It was another ineffective council case with a speedy trial claim thrown in. There were discussions about how this has been dragging on and the issues have evolved over time. An attorney recognized that her client only gets one bite at the apple, but asked to be allowed to make it a full bite. The judges reserved decision and it became time for the main event to begin.

To be continued....

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