Mr. Bostock was fired by Clayton County for embezzlement. He sued, saying the real reason was anti-homosexuality (complaint). The Northern District of Georgia dismissed saying that even if that were true it wouldn’t matter, with District Court Judge Orinda Evans following the recommendation of Magistrate Judge Walter Johnson (motion to dismiss). It went to appellate court, the 11th Circuit, which agreed with dismissal. Just this week, the Supreme Court, bundling it with two similar cases said the dismissal was wrong and remanded the case to the Northern District (” the case is remanded for further proceedings consistent with this opinion.”) The docket as of June 17, 2020 is here. Briefs for the Supreme Court can be found at https://www.scotusblog.com/case-files/cases/bostock-v-clayton-county-georgia/.
Suppose the case is a fake controversy, with the parties and trial judges (both of them) all knowing Bostock wasn’t fired for his sexual habits, but colluding. That would be “fraud on the court”, and court actions void. How about appellate actions based on it?
Below you’ll find lots of evidence from a June 17 Atlanta Journal-Constitution article that Bostock’s boss knew for ten years that he was homosexual and Bostock was completely open about it. It sures looks like Bostock and his lawyers brought the case knowing it was based on a false premise. Clayton County, Judge Johnson, and Judge Evans I don’t know about. If the case is now dropped or settles, that might be an indication that the County and whichever judge is put in charge of it don’t want it to come out that the case had no factual basis. We should watch for whether the judge seems to care about that.
If indeed the case is a fake *and* the court is implicated, then the appellate actions should be void, logically and morally. It’s complicated, though, because Bostock was bundled with two other cases (see the Advocate story), and even if Bostock is fraud on the court, if the other two are not (which someone had better check), then the law ought to be and probably is that the Supreme Court opinion remains valid.
Of course, even if the Supreme Court decision were voided as a precedential matter, everybody would now still know how they would rule if a new case were brought up on whether dismissal for sodomizing was valid. The jurisprudence question would be interesting.
Note, too, that though the Supreme Court’s opinion (which would have to be renamed after one of the other two cases, I think) would still stand, anyone involved in the Northern District fraud would be in big trouble. The judge could reasonably be impeached, since this would be as bad or worse than bribery, but in current custom he wouldn’t be; he’d be investigated by a committee of judges and they’d just scold him. The plaintiff and defendant should both be subject to Rule 11 fines and to criminal contempt also, I think, though that needs research too– and who would impose them if the judge is complicit? Also, if both parties were complicit, neither would bring a Rule 11 motion, so the judge would have to act sua sponte, though that shouldn’t stop him.
After Bostock was fired in 2013 but before he sued, the local news reported on the firing. My boldface.
Channel 2 investigative reporter Richard Belcher has learned Gerald Bostock was fired because ofhow he spent money intended for foster children.
&Newline;
Judge Steve Teske with the Clayton County Juvenile Court told Belcher that Bostock misspent money that’s supposed to be used to recruit and train volunteers who work with children coming through the court system.
&Newline;
Teske said Bostock used the money, which comes from fees collected in superior court then sent to a nonprofit that works with Clayton’s juvenile court, for “meals, including alcohol and restaurants, and bars in and around the midtown Atlanta area.”
&Newline;
The website of the nonprofit called Friends of Clayton County CASA includes pictures of the board members the court thought were overseeing the money.
&Newline;
“Is it fair to say that there was virtually zero oversight on this for a period of time?” Belcher asked Teske.
&Newline;
“Yes, sir. There was no, no oversight,” Teske said.
&Newline;
A special audit found that Bostock had a debit card and virtually unfettered access to court fees sent to Friends of CASA. The audit documented purchases at bars and restaurants like Cow Tippers and Frogs.
&Newline;
Teske said Bostock also used the money to sponsor his Atlanta softball team.
&Newline;
“I don’t see how you can justify going to Atlanta to recruit volunteers for Clayton County,” Teske said.
&Newline;
The judge turned over the findings to Clayton County’s DA and has ordered strict new controls over the fees coming from superior court.
&Newline;
“This has to be open. It has to be transparent, because there are lessons to be learned here, not from us, not only by us, but potentially others as well,” Teske said.
&Newline;
Teske said Bostock convinced the Friends of Casa board members they had no role in managing the funds coming in from the superior court, but said the questionable financial management at the agency does not diminish the good work done in the Casa program.
&Newline;
Belcher was unable to reach Bostock for comment on this story.
Judge Teske, by the way was friends with employee Bostock and with his wife went to gay venues and nightclubs with him and his gay lover (“there were times when it was every weekend”).
Other details are in the 2020 article from the audit five years before:
The audit found that almost all of the $12,294 spent the previous 28 months was on meals and entertainment, except for about $1,000 sponsoring the Atlanta softball team. It also found that Bostock spent hundreds of dollars without receipts and had a reception in Birmingham, Alabama, with his softball team.
Bostock has said the meals were for recruitment, including dinners in Midtown restaurants. He has said his Clayton employers frowned upon the fact that some of the restaurants catered to gay people.
“The problem the auditors had was the location,” Teske said. “You’re not going to get people from Atlanta to volunteer to come to Clayton County for court.”
So he used funds meant for foster children in Clayton County to sponsor a homosexual softball team in the next county (Google Maps says it’s 17.0 miles from midtown Atlanta to Clayton’s county seat, Jonesboro) and to go out to gay restaurants and bars, without keeping receipts and without, I bet, keeping any records of who was with him whom he was supposedly recruiting to help take care of little boys with father problems. Only in modern America!
Now, it could be that legally there is not a problem. Maybe there is a plausible case that Bostock and his lawyer had that he was fired for being homosexual even though his boss had known about it for ten years. Their amended complaint clearly is trying to excuse their suit by basing it on the claim that certain people who could influence his boss–fellow workers or something like that— wanted to fire him for that reason. Maybe that’s cover for Rule 11. You can’t, of course, punish someone for bringing a suit that loses, or even for making statements in their pleadings that turn out to be false. What you can punish someone for is bringing a frivolous suit, based on claims they know are false at the time they are making them. I just don’t have time to pore over the pleadings and the AJS news article right now.
To actually win his suit, Bostock would have to prove that he as fired for being homosexual, which is false. To avoid Rule 11, he would have to avoid coming to Summary Judgement time with zero evidence and without it being clear he never had any hope of getting evidence. Two ways to do that are to withdraw his suit or to settle his suit. Judge Evans should be ready to question either escape route. Note that a settlement requires agreement with the defendant, Clayton County so if the COunty does settle, that will be some indication they were in on the fraud. The County is pretty safe, though, because I don’t think it ever filed response pleadings to the Complaint— it just moved to dismiss and won with that before the SUpreme Court reversed on appeal. So the COUnty never had to address the truth of any of Bostock’s claims.
This is actually similar to the In re Flynn case about to be decided in the DC Circuit. In Flynn, the Department of Justice made a motion to drop charges, with the agreement of defendant Flynn, admitting that it had framed him, essentially. Under RUle 43, I htink it is, Judge Sullivan may decide to deny the motion if he has good reason— for example, if it were the case that Flynn opposed dropping charges because he wasnted to be vindicated at trial, or maybe if he had evidence that Justice had dropped charges because Flynn bribed the prosecutor. Or, I think, if Judge Sullivan had discovered that the whole case against Flynn was a publicity stunt arranged between Flynn and the Justice Department so they could get rich from book deals. Actually, in that last hypoethical, I expect Judge Sullivan would have to grant the motion to dismiss charges anyway, but he could jail both parties for contempt, at least. Here, in Bostock, the analogous question is what Judge Evans could do if Bostock moves to drop his suit because he has no evidence and his pleadings were unfounded.
My own involvement in the Flynn case, by the way, was as an amicus in the ancillary mandamus case brought against Judge Sullivan by Flynn and Justice asking the DC CIrcuit appellate court to order Sullivan to do his job and dismiss instead of shilly-shallying and making vague accusations of lying and corruption against them while refusing to either dismiss or not dismiss. I’ve uploaded lots of the legal filings at http://rasmusen.org/special/mandamus and my own amicus is at http://www.rasmusen.org/special/mandamus/Flynn-briefs/flynn-rasmusen-amicus.pdf.
The Atlanta Journal-Constitution says
Sometimes bad court cases end up making good law. That’s exactly what happened in the landmark U.S. Supreme Court ruling that prohibits discriminating against LGBTQ employees, says Steven Teske, who is Clayton County Juvenile Court’s chief judge….
.
In 2013, Teske fired Gerald Bostock, the lead plaintiff in the case that swayed two conservative justices to join the Supreme Court’s liberal wing in a 6-3 decision. Bostock, who was the coordinator of Clayton’s CASA (court appointed special advocates) program, had sued in 2016, alleging he was fired because he was gay. But his lawsuit was dismissed without being heard.
&Newline;
Bostock contends it all went south after he joined the Honey Badgers of the gay Hotlanta Softball League and started getting disparaging comments at work about his sexual orientation. Then there was an audit of court funds and allegations that he misspent court money. Soon, after a decade of glowing job reviews, Bostock was an ex-employee.
&Newline;
…
&Newline;
“I’m glad the Supreme Court came down with that decision,” Teske said. “As a lawyer and a judge, I believe that gays and lesbians should not be discriminated against.” “I avoided this going public before it went to the Supreme Court. I’m glad he (Bostock) won,” Teske said. “But there’s only so long he can hide from the truth.” So what is the truth?There was no sexual orientation surprise; the softball team didn’t sway anything, Teske said. “We knew from the start of his employment that he was gay.”
&Newline;
Like 10 years earlier.
&Newline;
In fact, the judge said that he, his then-wife, Bostock, and Bostock’s partner at that time often socialized together. “We went to gay venues in Midtown; we met a lot of their gay friends,” Teske said. “Gerald is a nice guy. My mom and dad loved him. That’s how close we were. He knew my kids, my mom, my dad. We became very close. That’s why it was very hard for me to let him go.”
&Newline;
Bostock’s job was to recruit and train volunteers who would be assigned to help monitor foster kids and then pass their findings to the court.
&Newline;
Bostock could be brusque, Teske said, which led to his employees “rebelling” against him early in his tenure. In fact, the judge worried the co-workers might be grumbling because Bostock was gay.“We looked into it and my reaction was to bring in the employees and tell them that we support Gerald,” Teske told me. “If we wanted to get rid of him, we could have done it then.”
&Newline;
Bostock has contended the audit that came in 2013 was a pretext to fire him. The audit found there were virtually no controls over spending, and that “could result in loss of credibility to a program that has an outstanding reputation across Clayton County and the state.” The audit found that almost all of the $12,294 spent the previous 28 months was on meals and entertainment, except for about $1,000 sponsoring the Atlanta softball team. It also found that Bostock spent hundreds of dollars without receipts and had a reception in Birmingham, Alabama, with his softball team.
&Newline;
Bostock has said the meals were for recruitment, including dinners in Midtown restaurants. He has said his Clayton employers frowned upon the fact that some of the restaurants catered to gay people.
&Newline;
“The problem the auditors had was the location,” Teske said. “You’re not going to get people from Atlanta to volunteer to come to Clayton County for court.”
&Newline;
I spoke with Bostock’s ex-partner, Paul, who asked that his last name not be used so he wouldn’t be seen as a traitor to the cause. “It was very weird for him to say he was getting fired for being gay. Everyone (at his job) knew he was gay. He was very out,” Paul said.
&Newline;
“I met Judge Teske several times as his partner,” said Paul. “I felt bad for Judge Teske because he was thrown under the bus. It felt like a slap in the face to (Teske) and his co-workers that they were called homophobic and mean-spirited.”
&Newline;
I called Bostock and left a message asking for an interview. A PR lady called back and said she’d set one up. When I told her what I wanted to talk about, she said I better talk with his lawyer.
&Newline;
Teske said he welcomes a trial. “There are too many witnesses who know we enjoyed each other’s company,” he said. “We went to nightclubs together; there were times it was every weekend. I just don’t think he told the full story to his lawyers. Sooner or later, this is all going to come out.”
Is it “fraud on the court”? For that, I think, the judge must be complicit. Maybe he is– we’d have to look into it. One source says:
Fraud on the Court, or Fraud upon the Court, is where a material misrepresentation has been made to the court, or by the court itself. …
&Newline;
Some examples of fraud on the court include:
&Newline;
…
Judicial fraud…&Newline;
“Unconscionable” schemes to deceive or make misrepresentations through the court system
&Newline;
It’s important to note that fraud on the court only involves court officials or officers of the court, such as judges or court-appointed attorneys. The fraud must be directed at the “judicial machinery” itself.
&Newline;
Fraud on the court generally does NOT mean:&Newline;
Fraud between the two opposing parties&Newline;
Submission of fraudulent documents&Newline;
Perjury or false statements by witnesses
&Newline;
…
Fraud on the court is one of the most serious violations that can occur in a court of law. If fraud on the court occurs, the effect is that the entire case is voided or cancelled.Any ruling or judgment that the court has issued will be void. The case will usually need to be retried with different court officials, often in an entirely different venue.
#########################
An interesting motion came up in the Paul Cassell/Jeffrey Epstein Florida case that, I think, has just been revived on appeal by the 11th Circuit after the plaintiff girls lost. See “Bruce E. Reinhart’s Motion to Intervene or in the Alternative for a Sua Sponte Rule 11 Order
(DE 79)” CASE NO. 08-80736-CIV-MARRA/JOHNSON (S.D. Florida) Jane Does #1 and #2 v. United States. Reinhart claimed that the plaintiffs had defamed him in their pleadings and should be punished for violating Rule 11 (docket entry 79). The plaintiffs responded (DE 81). Reinhart replied (DE 83). The Court rejected, in the last pages of an opinion on several motions (DE 99). The main problem is that Reinhart’s allegations are too distinct from the facts of the instant case to warrant him coming in as a third party, though the judge is also dismissive of whether the alleged defamation is worth bothering about.
########################