Tag Archives: ACLU

Hangin’ with Judge Hoffman

Post #4

During the past week, we’ve all witnessed an alarming and unspeakable violation of the Capitol building.  Although I’ve been shaken by this violation, I’ve decided to proceed with this blog as earlier planned.

This is the fourth in a series of posts recalling what it was like to clerk for Judge Julius J. Hoffman from 1967 to 1969.

Some of Hoffman’s Cases

•     “Joe Shine”

            Hoffman’s first trial after I arrived was a criminal case brought by the feds against a group of defendants that included Joseph Amabile.  (I initially assumed that Amabile’s name was pronounced “Ah-mah-bil-lay,” but I can still hear Judge Hoffman’s bailiff calling out the name as though it rhymed with “Oldsmobile.”)

            Amabile (known as “Joe Shine”) and a couple of his pals were accused of serious wrongdoing arising out of land-development deals in the western suburbs of Chicago.  More precisely, they were accused of conspiracy to violate a federal law because they had interfered with commerce by extortion.  “Extortion” is the relevant word here.  According to testimony at the trial, one defendant had hit some poor guy in the face and threatened to use a baseball bat if he didn’t cooperate.

            At first, I was terrified to sit in the same courtroom with some of these defendants, but they looked pretty subdued, dressed in their expensive suits, seated next to their high-priced lawyers.  Judge Hoffman didn’t seem too worried, but then he had an armed bodyguard accompany him to and from the courthouse every day.

            When the daily newspapers started running stories about the trial, a major issue arose.  The defense lawyers had been opposed to sequestering the jury, but now they began arguing that the published articles were prejudicial to the defendants.  They demanded that the judge ask the jurors every day whether they had read or heard any of the prejudicial publicity.  Hoffman repeatedly admonished the jurors, each time they left the courtroom, not to read any newspapers or listen to any news about the trial on radio or TV.  But he refused to directly question the jurors about the prejudicial publicity.  His rationale was that because the defendants had opposed sequestration of the jury, they couldn’t complain that the jurors might be somehow exposed to news about the trial.

            Back in chambers, he confessed his real concern.  He was worried that, after he had invested several weeks in this trial, even one juror’s admission that she or he had watched a TV news report would force the judge to declare a mistrial.  His persistent refusal to question the jurors later became one of the biggest issues on appeal.

            After a five-week trial, the jury convicted the defendants.  But the appellate court later reversed the convictions.  (U.S. v. Palermo, 410 F.2d 468.)  Why?  Basically because Hoffman had refused to question the jurors about the prejudicial publicity.

            Hoffman had gambled and lost.  If he had directly questioned the jurors every day, they probably would have denied disobeying his order to avoid seeing any prejudicial publicity.  If they had explicitly denied disobeying his order, the convictions would have been upheld. 

            But because the judge didn’t want to risk any other outcome, his five-week trial was a total loss.

•     South Holland

            The judge took great pride in a ruling that he believed demonstrated his fairness to minorities. 

            In 1968, the federal government filed a suit against School District 151 (South Holland and Phoenix, Illinois), alleging discrimination against minority students.  Special prosecutors were brought in from the Justice Department in D.C. to try the case, and Hoffman presided over the trial that summer.  At the end of the trial, he asked the parties to submit Proposed Findings of Fact and Conclusions of Law.  He then took these documents under advisement.

            He never followed his usual pattern of asking one of his clerks to assist him in reviewing the evidence or deciding how to rule.

            A short time after the end of the trial, the judge announced his decision in favor of the government.  In his written memorandum opinion, he followed the government’s submission virtually word for word.

            The school district’s attorneys complained.  They argued that the judge hadn’t done anything other than rubber-stamp the government’s position.

            On appeal, the 7th Circuit affirmed Hoffman’s decision.  But the dissenting judge agreed with the defendant’s argument, noting that “the District Court…without changing a word,” adopted every one of the government’s Findings and Conclusions, as well as its proposed Orders. 

           The case against the school district was unquestionably meritorious.  Although I wasn’t asked to review anything submitted by either side, I have no doubt that the U.S. Justice Department produced sufficient evidence to prove its case of discrimination against the school district.  And Hoffman was therefore unquestionably right to decide in favor of the Justice Department. 

            But the case didn’t resemble any other major case I encountered during my clerkship.  The judge did not appear to review the evidence or attempt to reach any conclusions other than those offered by the government lawyers.  And he didn’t ask his clerks to do so.  I think he may have decided, as soon as the case was assigned to him, to rule in favor of the government.

             The judge was very pleased with the result.  After announcing his decision, he basked in the glow of the favorable publicity that usually escaped him. 

            One of Chicago’s daily newspapers even wrote an editorial praising him.  He had this editorial enlarged and framed, and after he hung it in his chambers, he proudly pointed it out to visitors. 

            It was clear that, despite the negative publicity he often garnered from other happenings in his courtroom, in his eyes he would now be seen as fair-minded, even “liberal,” thanks to his ruling in favor of minority students in this case. 

•     Inmates of Cook County Jail

            Sometime in 1968, a Chicago lawyer named Stanley A. Bass, who at the time was somehow connected with the ACLU (I don’t recall his exact connection), filed a class-action lawsuit on behalf of the inmates of Cook County Jail, complaining about conditions at the jail.  The suit described the horrific–indeed shocking–state of living conditions at the jail, alleging that they were in violation of various provisions of the US Constitution.

            This suit was, to my knowledge, the first class-action lawsuit presenting the issues of prison conditions to a federal court. 

             It also became the first prisoner lawsuit in which a federal court ruled that a class action of this nature stated a claim and therefore would not be dismissed.  Inmates of Cook County Jail v. Tierney, No. 68 C 504 (N.D. Ill., Aug. 22, 1968).

            I suspect that when the case was assigned to Judge Hoffman, Stan Bass’s heart sank.  Aware of Hoffman’s conservative bent, he could hardly hope to get any favorable rulings at the district-court level and probably relied on filing an appeal to get anywhere with his case.

            But Stan didn’t count on my being Hoffman’s law clerk.  Fortunately for him, that made a difference.

            The defendant prison officials filed motions to dismiss the case for “failure to state a claim,” making a number of procedural arguments designed to get the case thrown out of court.  A ruling in favor of these officials would have meant the end of the lawsuit.

            But instead of quickly ruling in their favor, I gave a lot of thought to what would be the right thing to do.  It seemed to me that the inmates had stated a perfectly good claim under the Federal Rules of Civil Procedure.  Although I knew that Hoffman wanted to extricate himself from this case, I simply could not bring myself to throw it out.

            So after thoroughly researching the court decisions that interpreted the applicable federal rules, I reached my conclusion:  The court would be wrong to dismiss the inmates’ case.  It was August 1968, and my summer vacation was approaching.  After I prepared a lengthy written opinion, I left it on the judge’s desk on a Friday afternoon just before departing for my two-week vacation.

            I knew by this time that the judge was loathe to reject any opinion written by his law clerks because that meant he would have to substitute another opinion.  To come up with his own opinion would require that he do some research and writing on his part.  But I nevertheless felt sure that he would somehow avoid going forward with the inmates’ claims. 

            I pictured myself returning from vacation and confronting an angry judge who would insist that I throw out my opinion and write a new one stating the exact opposite.

            Imagine my shock when I returned from vacation to find that, while I was out of town, the judge had read my opinion, word for word, from the bench.  I felt dizzy with power, knowing that my efforts had kept alive a case he was eager to throw out, but a case that truly belonged in the courts.

            In the ruling, I wrote, in part:  “Although it might, indeed, be the easier course to dismiss this …complaint…, we cannot flinch from our clear responsibility to protect rights secured by the federal Constitution.”

            I hoped that the ruling would lead to improved conditions for inmates at Cook County Jail, and I believe that it may have. The case was later settled when the defendants assured the court that they were making fundamental changes at the jail.

            Although the judge read the opinion from the bench, he was adamant about denying permission to publish it.  But his remarks from the bench were a public record.  The ACLU wanted to let other lawyers know about the ruling, so it purchased the court reporter’s transcript and distributed copies of it.  These copies made their way around the country and were frequently cited, as an unpublished opinion, in the many prisoners’ cases that followed.

            One of the highlights of my legal career is that I wrote the first ruling upholding prisoners’ rights in a case of this kind.  And that my ruling went on to inspire many cases that followed in its wake. 

            When I later worked as a staff attorney at the National Health and Environmental Law Program, located at UCLA School of Law, I did further research into the issues surrounding prison health care, and I published an article that explored these issues, “The Captive Patient: The Treatment of Health Problems in American Prisons,”  6 Clearinghouse Review 16 (May 1972).

            Postscript:  Stan Bass later became a staff attorney with the NAACP Legal Defense and Educational Fund, Inc.   When he filed an amicus brief on behalf of that organization in a class-action prisoner case (presenting other issues) in the U.S. Supreme Court (Goosby v. Osser, No. 71-6316, 409 U.S. 512 (1973)), Stan cited the ruling in Inmates of Cook County Jail as support.

Hangin’ with Judge Hoffman: Post #3

 

This post is the third in a series of posts recalling what it was like to work as a law clerk for Judge Julius J. Hoffman.

 •      His treatment of lawyers

                Hoffman tended to treat most lawyers disrespectfully.  During court sessions, he would berate lawyers for their failings, no matter how minor, and he would generally speak to them in a condescending tone.  Seated in the courtroom, where I sometimes had to listen to lawyers’ arguments or witnesses’ testimony, I often found myself cringing when Hoffman demeaned a lawyer who appeared before him.

                There were a few exceptions.  He was generally impressed with lawyers from the biggest, most prominent firms in the city, and he tended to treat them better than less well-connected lawyers. 

                 He also treated government lawyers with some deference, and he was almost courtly to the few women lawyers who appeared before him.  If a lawyer was both a woman and a representative of the U.S. government, Hoffman would treat her like a queen.  A woman friend of mine who worked for a federal agency could never understand why lawyers complained about Hoffman.  She thoroughly enjoyed her appearances in his courtroom.

•     Hell, no, I won’t…publish

                Hoffman almost never published his opinions.  He justified his refusal to publish by saying he didn’t want lawyers to throw his own words back at him in a later case.  Early in his judicial career he had apparently published some opinions, and lawyers did just that.  At that point, he swore off publication. 

                The only decision of mine that Hoffman chose to publish involved an arcane tax issue involving Rosehill Cemetery.  Later, when Hoffman went along with a controversial ruling I wrote in a case involving the inmates of Cook County Jail, he read the ruling from the bench but refused to publish it, despite numerous requests from lawyers that he do so. 

            I guess he thought he had done enough just reading the damned thing from the bench.  He was not about to put it in black and white.  The ACLU ended up buying a copy of the transcript from the court stenographer and making copies of it, so the opinion eventually was widely circulated, but in less-than-official form.  (I’ll have more to say more about this case in Post #4.)

•      His view of habeas corpus petitions

                In the late ’60s, both state and federal prisoners tried (as they still do) to get out of prison by filing habeas corpus petitions.  Some prisoners were fairly skillful jailhouse lawyers who submitted petitions citing legal authority for their claims.  Others sent crudely drafted handwritten pleas with very little to go on.

                Hoffman gave clear instructions to his law clerks that we were never to grant a habeas corpus petition, no matter what sort of claim the prisoner alleged.  He directed us to find something, anything, on which to base a dismissal of the petition.

                I quickly learned a few shortcuts and repeatedly cited the same language, followed by the same precedents, over and over again.  But in a few cases I couldn’t see any way to get around a prisoner’s claim.  The prisoner had made a genuine constitutional argument, and I believed it was necessary to hold a hearing where he could make his case.  But whenever I tried to explain this to the judge, he blew me off.

                “I will never allow a prisoner to be brought to my courtroom for a hearing,” he declared.  “If the Seventh Circuit wants to order me to hold a hearing, I will hold it, but I will never order one myself.  Find some reason to deny the petition!”  So even in those few cases, I had to comply with the judge’s position and come up with some pretext to deny the petitions–hoping, of course, that the prisoners were not too discouraged to file an appeal with the court of appeals.

In the case of one prisoner, I was happy to go along with the judge’s dictates. Jack K. was a perennial petitioner who must have filed one or two handwritten petitions every month. He filed so many that we never took any of them seriously. Prisoners like him eventually led the federal court system to clamp down on all prisoners and impose rules that would prevent abuse of the system by people like Jack.

RBG in ’72

Countless words have been, and will continue to be, written about the incomparable U.S. Supreme Court Justice Ruth Bader Ginsburg, who served on the high court for 27 years.

I will leave discussions of her tenure on the Court to others.

What I will do here is recount the one and only time I encountered her in person, at a law school conference, at a pivotal point in her career.  If you’re interested in learning about that encounter, please read on.

In September of 1972, I was a full-time faculty member at the University of Michigan (UM) Law School.  Notably, I was the only full-time faculty member who was a woman.

The law school had a desirable setting on the UM campus, whose multitude of elm trees were unfortunately denuded of leaves, thanks to Dutch elm disease. The law school buildings made up the stunning Law Quadrangle, featuring beautiful old buildings constructed in the English Gothic style.

My role on the faculty was to help first-year law students learn the basics of legal education:  how to analyze court rulings (the kind they would read in the books assigned to them in courses like Torts and Contracts); how to do their own research into case law; and how to write a readable legal document, like an appellate brief aimed at persuading an appellate court to decide in their favor.

I was one of four young lawyers hired to fill this role.  The three men and I each taught one-fourth of the first-year class.  As I recall, we got to choose our offices in the law school library, and I immediately chose a plum.  It was an enormous wood-paneled room with charming hand-blown stained glass windows.  One entered it via a stairway leading upstairs from the library’s impressive reading room.  I treasured my office and happily welcomed meeting with students there.  And I wonder, in light of renovations at the law school, whether that glorious office still exists.

At some point early that fall, I learned that a conference on “women and the law” would be held at the New York University School of Law in October.  This was a bold new area of law that most law schools didn’t consider worth their attention.  NYU was clearly an exception. 

The idea of the conference immediately grabbed my attention because I had a longstanding interest in its stated focus.  One reason why I had myself attended law school a few years before was that, beginning very early in my life, I was and remain concerned with achieving equity and justice, including equal rights for women.

This focus had led me to attend law school during the mid-’60s.  My first job was that of law clerk to a U.S. district judge in Chicago.  After finishing my clerkship, I became a practicing lawyer as a Reggie assigned to my first choice, the Appellate and Test Case Division of the Chicago Legal Aid Bureau.  [I discussed the Reggie program in a blog post, “The Summer of ’69,” published on August 7, 2015.]

And so, three years earlier, in October of 1969, I had begun working on a lawsuit that had a significant bearing on women’s rights because it would challenge the constitutionality of Illinois’s restrictive abortion law. This law had an enormous impact on the lives of women, especially poor and non-white women.

I worked with Sybille Fritzsche, a lawyer with the ACLU in Chicago, who became my close friend.  Sybille and I spent months preparing our case.  We filed our lawsuit in February 1970, argued it before a three-judge federal court in September, and won a 2-to-1 ruling in our favor in January 1971.  (The ruling in that case, Doe v. Scott, and the events leading up to it, are the focus of a book I’m currently writing.  In the meantime, you can read about our case in historian Leslie Reagan’s prize-winning book, When Abortion Was a Crime.)

Now, in the fall of 1972, I learned about the conference at NYU.  Because I was extremely interested in attending it, I decided to ask the UM law school’s dean, Theodore St. Antoine, whether the school might send me to New York to attend it.  I thought I had a pretty persuasive argument:  I was the only full-time woman on the law school faculty.  Didn’t the dean think it would be a good idea to send me to represent UM at the conference? 

How could he say “no”?  Ted thought about for a moment, then gave his approval.  So off I went, my expenses paid by the kind patrons of UM. 

My hotel, the Fifth Avenue Hotel, located near NYU’s law school, had sounded appealing on paper, but it turned out to be something of a dump.  It suited me just fine, however, because I barely spent any time there.  I was too busy attending the conference sessions and, when I could, taking a short break to reconnect with a couple of law-school classmates and briefly sample life in New York City, a city light-years removed from less-than-exhilarating Ann Arbor, Michigan.

The conference, held on October 20-21, turned out to be a symposium sponsored by AALS (the American Association of Law Schools), “The AALS Symposium on the Law School Curriculum and the Legal Rights of Women.”  It featured a number of prominent speakers, mostly law professors and practicing lawyers who had turned their attention to “the legal rights of women” in areas like tax law, property law, and criminal law.  I attended most of these sessions, and each of them was excellent.

But the only session I was really excited about was a talk by someone named Ruth Bader Ginsburg.  I was quite certain that I would relish hearing her talk, “Toward Elimination of Sex-Based Discrimination: Constitutional Aspects,” because the topic was right down my alley.

Looking back, I don’t think I knew anything about RBG at the time.  But when she was introduced (by NYU dean Robert McKay) and began to speak, I was riveted by every word she uttered.  She spelled out everything she had already done and planned to do to achieve gender-equity.

So although I was not already familiar with her, I knew immediately that she clearly was and would continue to be a brilliant leader in the field of women’s rights.  I filed her name away in my memory so I could follow whatever she would do in the coming years.  And I did just that, enthusiastically following the many astounding accomplishments she achieved after 1972.

Your image of RBG may be that of the frail, petite woman who took center stage in our culture in her 80s.  But the RBG I saw in 1972 was very different.  She was an amazingly attractive young woman of 39.  You can see photos of her at that time in The New York Times of September 18 (in Linda Greenhouse’s long review of her life and career) and in a recent issue of TIME magazine (Oct. 5-12, 2020). Although much has been made of her short stature (one I share), she was so very energetic and focused that one quickly forgot how small she was.

It turned out that she had attended Harvard Law School about a decade before I did.  Like her, I’ve been called a “trailblazer” and a “pioneer,” and I also confronted gender-bias at every turn throughout my life.  My path was only a bit less rocky than hers:  My class at HLS included the whopping number of 25 women in a class of 520, while hers had only 9.

I’ve since learned that October 1972 marked a pivotal time in RBG’s career.  She had just switched her teaching position from Rutgers Law School to Columbia Law School (a considerable upgrade).  And she had just assumed another new position:  Director of the Women’s Rights Project at the ACLU, a project she had helped to found a short time before. 

So I’m left wondering…did she know about the case Sybille (an ACLU attorney in Chicago) and I brought in February 1970, a case that put a woman’s right to reproductive choice front and center?

RBG was an ardent supporter of reproductive rights during her tenure on the Supreme Court.  She discussed her views on abortion and gender equality in a 2009 New York Times interview, where she said “[t]he basic thing is that the government has no business making that choice for a woman.”

But I know that she had also stated that she wasn’t entirely happy with the way in which Roe v. Wade gave every woman in the U.S. that choice by bringing cases like Doe v. Scott in the federal courts.  She stated that she would have preferred that the argument had been made, over time, in each state’s legislature, with the right to choose being gradually adopted in that way rather than in one overriding court ruling that included every state.

Notably, on the 40th anniversary of the court’s ruling in Roe v. Wade, she criticized the decision because it terminated “a nascent democratic movement to liberalize abortion laws” that might have built “a more durable consensus” in support of abortion rights.

She had a point.  A democratic movement to liberalize abortion laws would have been the ideal route, and might have been a less contentious route, to achieving abortion rights throughout the country. 

But I think her position was influenced by her own life story. 

It stemmed, at least in part, from the fact that in April 1970, she was living and working in New York, where the state legislature had passed a new law allowing abortion, and New York Governor Nelson Rockefeller had signed it on April 11, 1970.  New York became only the second state in the U.S. (after Hawaii) to permit abortion, and only a few other states had carved out any sort of exception to what was otherwise a nationwide ban on abortion.

RBG may have optimistically believed that other states would follow New York’s lead.  But history has proved otherwise.

If women had waited for each of the 50 states to accomplish the goal of women’s reproductive choice, I think we’d still have many states refusing to enact laws allowing choice.  In support of my view, I ask readers to consider the situation today, when some states are trying to restrict abortion so frenetically, with or without achieving a complete ban, that they’re now simply waiting for a far-right conservative Court to overturn Roe v. Wade.

Whether or not RBG was aware of what was happening in the courtrooms of Chicago in 1970, I think I could have persuaded her that Sybille and I were doing the right thing.  

By advocating that the federal district court hold that the restrictive Illinois abortion law was unconstitutional, and persuading the court to decide in our favor, we achieved our goal of saving the lives and health of countless women who would have otherwise suffered from their inability to obtain a legal and medically safe abortion.

What greater achievement on behalf of women’s rights could there have been? 

I like to think that, after hearing my argument, RBG would have approved.