Thursday, September 22, 2005

Preminger v. Principi (9th Cir. - Aug. 25, 2005)

You'll be hard pressed to find someone who's as much of an advocate for law in the public interest as me. I'm a huge fan. Indeed, one of the (many) great things about my academic gig is that it allows me plenty of time and opportunity to do whatever work I feel might make the world a more just place. Practicing law is an awesome profession. At least when you don't have to do it for a living.

All of this is a means of introduction to my comments on this case and one of its participants, attorney Scott Rafferty. The case was brought by the Santa Clara Democratic Central Committee against the Department of Veterans' Affairs challenging the VA's policy of kicking out anyone who tries to register voters (or conduct any other "partisan activity") at a VA facility. Because we definitely don't want anyone helping veterans to register to vote. What a nightmare that would be. Thanks, VA, for helping to avoid such an obvious debacle.

Anyway, I'm pretty sympathetic to the constitutional merits of the plaintiffs' position here, although it looks like they make at least one pretty critical tactical mistake (see, e.g., footnote 5 of the opinion) that might have worked to their detriment. In the end, Judge Graber holds that plaintiffs are unlikely to prevail on the merits and hence that the district court didn't abuse its discretion to deny a preliminary injunction. This seems to me a plausible (though by no means self-evident) holding, particularly given the substantive content of the VA's regulations, which do allow at least some ("nonpartisan") registration activities at VA facilities.

But I wanted to add one nonsubstantive point as well, and that's about the conduct of counsel who work in the public interest. Here's my take-away message: You gotta be cool.

Lots of attorneys are jerks. That's just the way it is. People often get into this profession because they can't (or won't) control their hormones, and so think work out their aggression by ceaselessly and needlessly "fighting" all day, every day. Sure, being a jerk typically harms, rather than helps, their clients (though hypercombative lawyers almost always convince themselves that the converse is true). But it's fun for such desperately-needs-a-better-outlet individuals. And that's all that matters.

But that's not all that matters when you're working for the public interest. When you do that, even if you're ordinarily a jerk, you've got to take things down a notch. Because your personality definitely shouldn't get in the way of your substantive objectives.

I say that in connection with this case because a tiny portion of it brought that topic to the front of my brain. As Justice Graber's opinion notes, the case started when an attorney named Scott Rafferty -- a young lawyer and recent graduate of Yale Law School -- made several visits to the VA facility to try to register voters. Now, I'm totally all for that. Great job, Scott. But here's the part (as Judge Graber describes it) that's not so great: "The April 2004 visit was not Rafferty's first. On earlier occasions, he had tried to register voters but had been denied access by VA employees. Rafferty had apparently been disruptive and confrontational with VA staff when he was told that he could not register voters on the premises." Due to this prior conduct, even after the VA subsequently gave permission to register veterans on the premises, when Rafferty came back, "a VA employee recognized Rafferty and told the group to leave. "

So two things. First, notice that being a classic, hypercombative lawyer caused Rafferty to get kicked out of the facility -- thus frustrating his central public purpose -- even after the VA had (temporarily, at least) joined his side. Second, this conduct, which is described in the opening paragraphs of Judge Graber's opinion, can't help his case, and instead provides both color and substantive content that probably helps to lead the panel to the conclusion that the VA's policies are constitutional since they advance the goal of stopping disruption in the facility.

Full disclosure: I happen to know Scott. I don't know him personally (or well), but he intervened in a public interest case that my wife and I brought (and, I might add -- proudly -- won) in connection with the recall of Governor Davis: Partnoy v. Shelley. He was a pain in the butt, but was always polite. A bit too interested, I thought, in interjecting himself in a lawsuit which -- by the time he intervened -- we had already won. And, as the court (rightly, in my view) held, he was largely raising claims that were either late, meritless, or both. But, besides being a bit of a pain in my ass -- as we had to write brief after brief dealing with the guy -- I thought his heart was in the (sort of) right place. He wanted to do public interest work. More power to him.

But do it mellowly, my man. Don't get so caught up in the "fight" that you end up being a jerk. A modest and mellow attorney who lets his or her work and arguments do the talking is better than a hyperaggressive jerk who screams and shouts. Particularly in public interest cases. That's my perspective, anyway.