Beware the “Utah Compromise”

Gov. Gary Herbert (R) has signed into law an expansion of Utah’s anti-discrimination law following what’s being billed as a historic compromise between gay rights advocates and the Church of Jesus Christ of Latter-Day Saints. Unfortunately, as I argue at the Daily Beast, both halves of the compromise are bad news for individual liberty and freedom of association in the workplace. Excerpt:

As I noted at the Cato Institute’s website a while back, these laws “sacrifice the freedom of private actors—as libertarians recognize, every expansion of laws against private discrimination shrinks the freedom of association of the governed.”

That’s the familiar half of the story. What’s new about the Utah Compromise is that it adds completely new restrictions on employers’ rights to keep the workplace focused on work as opposed to religious or moral debate. In particular, it allows employees to sue on a claim that they were fired or otherwise treated poorly for talking about religion or morality in the workplace, at least if they were doing so in a way that was “reasonable” and didn’t interfere with the employer’s “essential” business interests.

When an employee then begins treating customers or co-workers to unasked-for disquisitions about religious or moral matters, it will apparently be the state of Utah—rather than, as now, the folks in human resources—who will have the final say as to whether the topic is “similar” to others on which discussion had previously been allowed, and whether the proselytizing or reproachful comments taken as a whole were “reasonable” or by contrast “harassing or disruptive.”

And I conclude:

It’s not clear whether anyone was at the table speaking up for employers’ rights and interests during the Utah negotiations. It’s a lot easier to reach what’s hailed as a historic compromise if you can do so at the expense of absent third parties, isn’t it?

Whole thing here. [cross-posted from Cato at Liberty]

The trials of Nancy Raynor, cont’d

Following up on our earlier reports here and here: a Pennsylvania appellate court “has temporarily halted the imposition of a $1 million fine against Philadelphia attorney Nancy Raynor, who received the sanction after one of her witnesses during a medical malpractice trial disclosed information that had been ruled inadmissible by Philadelphia Court of Common Pleas Judge Paul Panepinto.” [Penn Record] The judge “has defended his action in an opinion in which he accused Raynor of violating a court order as part of a trial strategy.” [Chris Mondics, Philadelphia Inquirer] Three witnesses — the most recent a trial technician who testified at a March 4 hearing — have now backed up Raynor’s account of not having sought to elicit the reference to a plaintiff’s smoking habit, which the judge had barred. “In addition to [Joseph] Chapman, two other witnesses, an emergency room doctor who is a client of Raynor’s and an insurance adjuster, have testified that they heard Raynor advising [Dr. John] Kelly that smoking testimony was precluded.” [Mondics/Inquirer, March 6, follow-up]

Law enforcement for profit roundup

  • Missouri law incentivizes local ticket-writing, Illinois not so much. Guess how municipalities respond? [Jesse Walker] “Ferguson’s Court Fine Scandal Arose Because Of Its Bloated Government” [Scott Beyer; earlier on fines and fees in Ferguson here, here, here, here, here, here, here, etc.] “Nassau’s top cop orders retraining of officers who write fewest tickets” [Newsday via @GoLongIsland]
  • Maryland House passes forfeiture reform 81-54, with nearly all GOPers voting against the property rights side [my Free State Notes post, Maryland Reporter and more (Baltimore County Del. and former police officer John Cluster “said he hadn’t seen a single case of abuse in his time”), Jason Boisvert]
  • “Quiet change expands ATF power to seize property” [Adam Bates, Cato]
  • Meanwhile on the civil side, hedge funds place heavy bets on litigation finance [Paul Barrett, Business Week]
  • In news that will surprise few libertarians, debt collection on behalf of government agencies is fraught with problems [CNN project overview links to individual stories]
  • Among its numerous other problems, pending “human trafficking” bill would establish a fund to cycle fines back to law enforcement and victim advocates [Elizabeth Nolan Brown, Reason]
  • Investigation into forfeiture in Indiana [Indianapolis Star]

Should they have seen this coming?

“A Bucks County company offering clairvoyant and psychic services is suing two of its former service providers for allegedly diverting business away from the company when they were under contract.” According to the suit, the providers shifted affiliation to a competing psychic services company and began to participate in its operations before they were contractually at liberty to do so, in one case allegedly carrying over a stage name and likeness she had used at the old firm. [Pennsylvania Record]

Environment roundup

  • Judge Royce Lamberth: EPA “offensively unapologetic” about its failures to comply with FOIA requests [Josh Gerstein/Politico, Washington Post, Courthouse News]
  • Cato President and CEO John Allison to Senators Ed Markey (D-Mass.), Barbara Boxer (D-Calif.), and Sheldon Whitehouse (D-R.I.): “Your letter of February 25, 2015 is an obvious attempt to chill research into and funding of public policy projects you don’t like. … you abuse your authority when you attempt to intimidate people who don’t share your political beliefs.” [Patrick Michaels, Cato; earlier Allison rebuff to intimidating tactics by Sen. Dick Durbin (D-Ill.)]
  • Smithfield Foods questions plaintiffs’ lawyers’ client recruitment methods in North Carolina farm-nuisance suit [Wilmington Star News]
  • “Can Market Urbanism Revive U.S. Cities?” [Scott Beyer]
  • Addressing sweetheart don’t-force-us-to-regulate consent decrees: “Sunshine for Regulatory Decrees and Settlements Act” would “require regulatory agencies to give public notice when they learn of a lawsuit that could eventually impose a federal rule” and “[give] outside parties an opportunity to intervene in the court case” [American Action Forum, U.S. Chamber in 2013]
  • After nine-year battle, Interior’s Fish and Wildlife Service will let Native American pastor use sacred eagle feathers [WSJ via Becket Fund, Kristina Arriaga, Daily Caller, earlier on eagle feathers and the law here, here, etc.]
  • “Yes, Gov. Whitman, states may choose which federal laws to implement” [Jonathan Adler]

“Short Circuits” on transit police arbitration

Our friends at the Institute for Justice have recently gone public with a beta version of what had been an internal newsletter, called Short Circuits, providing condensed (and sometimes acidulous) summaries of cases out of the federal courts of appeals. You can subscribe here. One of recent interest:

WMATA, a transit agency that serves the greater D.C. area, fires two police officers. (One allegedly struck a passenger and lied about it. The other allegedly altercated with a companion and lied about it.) Arbitrators order the pair reinstated, but by then their Maryland certification has lapsed, and, after the transit police chief voices strenuous opposition to their recertification, Maryland commissioners refuse to recertify the two. WMATA can’t have uncertified officers, so they are fired again. 4th Circuit: Which is cool.

Great moments in foreseeability

“Kid Throws A Cinderblock Off Balcony, And Landlord May Be Liable” [Daniel Fisher, Forbes, on Connecticut Supreme Court’s ruling in Ruiz v. Victory Properties “that a landlord may be liable for allowing a 10-year-old to throw an 18-pound cinderblock from the balcony of his mother’s apartment … [because] the landlord should have known the construction materials and other junk laying around behind the building could become deadly missiles in the hands of a child.”]