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Judges Challenge Lawyers’ Arguments in Campbell Case

DENVER — The 10th U.S. Circuit Court of Appeals heard oral arguments today in an age discrimination case against Sen. Ben Nighthorse Campbell (R-Colo.), and the judges didn’t go easy on either legal team.

The judges are to determine whether a lower court erred in dismissing Rita Bastien’s case on grounds that the Constitution immunized the Senator from suit. After required counseling and mediation, the Congressional accountability Act allows staffers to take their employers to court over alleged violations of 11 federal labor laws.

The court took much longer than the 30 minutes allotted for the case and lawyers for both sides expressed pleasure that the three judges had clearly read the briefs and seemed to grapple with even the most esoteric issues in the case.

“I thought the questions were good, pointed,” said Bastien attorney John Evangelisti said. “I thought the judges were prepared.”

“I just wanted the judges to have read everything,” said Senate Chief Counsel for Employment Jean Manning, who represented Campbell. “I was just really happy that they asked the right questions. There were no questions that were off the wall.”

Indeed, each of the judges engaged in active debate with the attorneys, and in a very usual move they requested that the counsel for the organizations that collectively filed a friend of the court brief — representing the 35-million member AARP among other groups — spend an additional six minutes rebutting Manning’s presentation.

“They don’t usually call a party back up. They almost never call an amici back up. It was probably pretty clear to the panel that the amici were carrying the critical [issues],” said Glen Nager, whose firm, Jones, Day Reavis & Pogue, represented the organizations who submitted the amicus brief.

Traci Lovitt — arguing for AARP, along with the American Federation of State, County and Municipal Employees, the National Employment Lawyers Association, the American Association of People with Disabilities, and the National Asian Pacific American Legal Consortium — told the judges that the district court’s decision to dismiss the case was “truly unprecedented” because never before has any court “struck down an act of Congress signed by the president on the theoretical possibility that a question may be asked in the future.”

“It’s completely extraordinary because Senator Campbell has yet to intervene to assert his privilege,” Lovitt said, adding that there is no precedent for an administrative office asserting it on behalf of a Member. “The immunity itself, the CAA says, belongs to the Members.”

Upholding the district court decision, she said, would make an “entire class of actions authorized under the CAA unconstitutional.”

In 2002, a U.S. District judge dismissed the suit brought by Bastien, a former caseworker in Campbell’s state office, before it could be heard by a jury. The judge ruled that she was sufficiently tied to the legislative process to trigger constitutional protection. The question now before the 10th Circuit is whether that constitutional provision — which protects Members from being questioned about the “Speech or Debate in either House … in any other place” — applies to personnel decisions.

Manning told the court that it does.

“I would like to begin by pointing out that the Supreme Court has addressed ‘Speech or Debate’ 11 times. In none of those instances, not one, did the Supreme Court make a distinction between legislative acts and administrative acts.”

To that, Judge Stephanie Seymour (a Jimmy Carter appointee) pointed out that the high court hasn’t had occasion to make such a distinction.

Manning replied: “Anything a Member does that is within the sphere of legislative duties is protected.”

But when she began paraphrasing precedents, Judge Bobby Baldock (a Ronald Reagan appointee) warned her in a stern tone to read directly from the previous decision. “When you look at this act, tell me how the discharge of a person rises to the level of a [legislative act]?” he asked.

“The Supreme Court in the Forrester case makes a distinction between our judicial activities and our administrative activities,” Baldock said. “As a judge, I look at it that I am divided in half.”

In that 1986 case, the Supreme Court ruled that a state judge was acting in an administrative capacity when he demoted and then terminated an employee and thus the judge did not have absolute immunity from the employee’s damages suit.

Manning replied to Baldock, “Federal judges cannot be asking federal legislators about a legislative act. While you can ask state judges or state legislatures about legislative acts, you cannot ask federal legislators because [of the] coequal branches of government.”

But Baldock seemed skeptical that Manning’s explanation translated into absolute immunity for Campbell. “I don’t see that this amounts to a Speech or Debate issue,” he said at an earlier point.

But the tough questions were not reserved for Manning.

Judge Harris Hartz (a George W. Bush appointee) pointedly asked Lovitt toward the end of the oral argument whether her position would necessitate arguing that the acquisition of information by a staffer on behalf of a Member was not protected by Speech or Debate.

She told him no, that the only issue in determining whether to terminate an employee would be the “aide’s capabilities and not the legislative function,” to which Hartz replied: “What if that’s part of his defense?” He went on to suggest that the Senator, in defending his actions, could either delve into protected areas of the legislative process or hamper his own defense.

For her part, Bastien, who was 62 at the time of her dismissal, maintains she performed no legislative duties for Campbell and only did constituent service work related to the Immigration and Naturalization Service.

“I was doing constituent services,” she said in an interview after the hearing. “The appeal is very important, I think, not only for myself but all people who end up working for a Member of Congress. Especially given who their bosses are, they need to be protected.”

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