Monday, February 14, 2005

Blumhorst v. Jewish Family Services (Cal. Ct. App. - February 14, 2005)

Appopriately enough on Valentine's Day, you can feel the (lack of) love for the plaintiff in this case. But, sadly, I think that the court's (very understandable) lack of love for this plaintiff might well generate a very bad (and wrong) result -- and one that is very much not worth the limited success achieved by defendants. This may well be a classic example of good intentions gone (horribly) awry.

Blumhorst is a man who's not (really) the victim of domestic violence. But he's upset that shelters for abused women only admit women. So he calls up a variety of them pretending to be a victim, and when they won't admit him (because he's a man), he sues them for discrimination under Government Code 11135. (Which he can do because they're state-supported). Defendants are represented by a bunch of do-gooder organizations (O'Melveny & Myers, California Women's Law Center), and also enlist the aid of interested do-gooder amici (DLA Piper Rudnick Gray Cary, California Alliance Against Domestic Violence, etc.). Since plaintiff wasn't really looking for shelter -- he just wanted to sue -- defendants move to dismiss for lack of standing. Judge Mayeda (who I think is a fairly conscientious judge) agrees. And the Court of Appeals -- speaking through Judge Kriegler (an LA judge sitting by designation on the Court of Appeals) -- affirms.

Look, I'm hardly going to cry for Blumhorst. I also think that Judge Kriegler is right that Blumhorst's prior (alleged) status as a domestic violence victim doesn't give him standing. Nonetheless, I think that in getting the lawsuit dismissed on standing grounds, the defendants have done more harm than good for the causes they espouse. They convince the Court of Appeals that "testers" like Blumhorst -- and that's exactly what he is -- shouldn't have standing. Okay, I admit that gets your client off. For now. So you win something.

But you don't win much. This isn't going to stop the lawsuit; not only aren't the shelters going to change their policies, but Blumhorst shouldn't have a major problem in finding a single male domestic violence victim to make a couple of calls and thereby bring the same suit with an actual victim. This kind of "phone call" testing is fairly easy, so you'll face the same suit soon enough. By contrast, by provoking -- indeed, advocating on behalf of -- a published opinion that categorically denies testers standing, you've created exactly the opposite doctrinal principle that would help your cause: a broad rule that precludes the type of testing that's been so useful in federal housing discrimination cases from rooting out similar discrimination under Section 11135.

So to bounce a single suit that's going to be brought anyway, defendants have made it much, much more difficult to bring organized claims that allege discrimination based upon "race, national origin, ethnic group identification, age, sex, color, or disability." Yeah, that's what we want. Make those claims much harder to bring. And don't think that just because Blumhorst can easily find an actual victim that you can too. It only takes a single phone call from an actual victim to set up Blumhorst's suit ("Q: I'm a man; can I crash at your shelter? A: No.") or -- even lacking that -- a reference to the shelter's express policies. Claims that a state-supported agency discriminates against blacks, women, or the disabled are much, much harder to prove, and its precisely in those types of cases that testers are often so necessary.

It's not that you couldn't agree with Judge Kriegler and hold that testers shouldn't have standing. Admittedly, you'd have to do a lot more work than Judge Kriegler does to prove the point. The Court of Appeals' analysis on this issue is extremely perfunctory, and entirely fails to address the plethora of arguments that have been routinely accepted by the courts in support of tester standing -- arguments that are facially equally applicable to Section 11135. See, e.g., Tandy v. City of Wichita, 380 F. Supp. 3d 1277 (10th Cir. 2004). Maybe you could nonetheless come rationally to such a view; indeed, you might be fairly excited about such a conclusion if you were either very conservative or in favor of weakening anti-discrimination laws. But does this description really apply to either the do-gooder counsel or defendants themselves? I certainly hope not.

You could perhaps take a slightly sophisticated view of these efforts, and claim -- as Judge Kriegler somewhat attempts to argue in the last substantive paragraph of his opinion -- that the rule against tester standing may only apply when men like Blumhorst attempt to subvert programs designed to benefit women. But that's the only part of the opinion that I'm quite positive is clearly wrong: a rule that held that male testers don't have standing when they complain about discrimination but women testers would have standing would not only be an implausible reading of the statute, but would also -- in my view -- be clearly unconstitutional.

Overall, I'm just not pleased with how this litigation progressed. What's wrong with a simple defense on the merits? If you think you can permissibly discriminate because there's a state interest in excluding men, so be it. That's what you argue. What you don't do is to diminish the efficacy of the entire antidiscrimination regime in a shortsighted (and entirely temporary) effort to save your own arse. You are, of course, perfectly entitled to make such a choice; I'm not saying that you aren't. But you're not a good public interest group if you do. And aren't a good public interest lawyer, either.

That's my view, anyway. Perhaps reasonable minds might disagree.

LATER P.S. - One of the lawyers from O'Melveny contacted me to (very helpfully) mention that only one of the defendants -- represented by separate counsel -- actually made the standing argument in their brief. Which I was glad to hear. There's a very brief (one-sentence) tester standing argument made on page 25 of the brief of the principal defendants, but it's arguably on a distinguishable standing issue.