Bench Memos

This Day in Liberal Judicial Activism—February 14

1992—The Third Circuit hears oral argument on Morristown, New Jersey’s appeal of a wonderfully wacky ruling by federal district judge H. Lee Sarokin that the Morristown public library’s policies governing behavior in the library are facially unconstitutional. Richard R. Kreimer, a homeless man, camped out in the library, was belligerent and disruptive, stared at and followed library patrons, talked loudly to himself and others, and had an odor so offensive that it prevented areas of the library from being used by patrons and from being worked in by library employees. The library then adopted written policies. After Kreimer was expelled multiple times for violating the policies, he sued.

Poetically pronouncing that “one person’s hay-fever is another person’s ambrosia,” Judge Sarokin ruled that the library was a traditional public forum like a street or sidewalk, that the carefully crafted policies were overbroad and vague in violation of the First Amendment, and that they violated substantive due process, equal protection, and the New Jersey constitutional guarantee of free expression. Five weeks after oral argument, the Third Circuit unanimously reverses Judge Sarokin on every ruling.

By in effect concocting a right for Kreimer to disrupt a public library, Sarokin had deprived other citizens of the right to use a library in peace. Not incidentally, Sarokin was said to be very finicky about the conditions of his court’s library. (For a fuller discussion of this This Day classic, see Part I here.)

With the ardent support of Senate Democrats like Patrick Leahy (“a judge of proven competence, temperament, and fairness,” “an excellent choice”), President Clinton will appoint Sarokin to the Third Circuit in 1994.

1997—Ninth Circuit judge Betty B. Fletcher dissents from the panel ruling in Philips v. Perry upholding an application of the military’s so-called “don’t ask, don’t tell” policy (implementing the nearly identical federal statute governing homosexuals in the military). Purporting to apply deferential rational-basis review, Fletcher rejects the government’s argument that the policy reasonably promotes unit cohesion and concludes that it violates the federal constitutional guarantee of equal protection.

2000—In dissent in Rucker v. Davis, Ninth Circuit judge William A. Fletcher (and son of fellow Ninth Circuit judge Betty B. Fletcher) opines that a local public housing agency may not evict a tenant on the basis of drug-related criminal activity engaged in by a household member if the tenant is not aware of the criminal activity. Never mind that the lease provision required by governing law provided that “any drug-related criminal activity on or near such premises, engaged in by a public housing tenant [or] any member of the tenant’s household … shall be cause for termination of tenancy.” According to Judge Fletcher, the categorical express language of the lease provision was “silent” as to “innocent tenants”. Well, yes, it was “silent” in the sense that they were not specifically addressed since they plainly fell within the broader language.

The Ninth Circuit, insistent on being the Ninth Circuit, grants rehearing en banc and by a vote of 7 to 4 (with all members of the majority being, surprise!, Carter and Clinton appointees) embraces Judge Fletcher’s position.

Alas for Judge Fletcher, the Supreme Court grants review and, in a unanimous opinion issued in 2002—a mere five weeks after oral argument—rules that the statutory language “unambiguously requires” the very result that Judge Fletcher determined was prohibited. (The Supreme Court case is styled Department of Housing and Urban Development v. Rucker.)

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