Tuesday, July 26, 2016

How Are People Viewed and Treated?

The news is full of stories about people being labelled. Some are shocking, and there is discussion about the accuracy of others. But in the age of political correctness, there is a periodic public backlash about describing people. This is not new; it is merely more obvious and more easily shared with the Internet at our fingertips 24/7/365.

Recently, a server at the 
All Stars Bar in Rhode Island referred to a patron as “fatty” on his receipt. The patron saw the reference and posted a picture of it on the Internet. The owner of the bar became aware of the notation and fired the server, who also happened to be his son. The owner called the notation “uncalled for and unacceptable.” The bar owner even offered the customer "a $50 gift card" in compensation for the insult. 

The server/bartender took to social media regarding the notation. But, instead of defending his comment, the server apologized: “what I did was immature and I acted without thinking about the consequences. I acted in a way that was rude, childish, and totally inappropriate. Due to my actions, I was terminated, rightly so.” That reaction is perhaps a little unexpected in today's world where nothing is ever anyone's fault or responsibility. 

Insults can go both ways. Another recent story in the news focused on a "a gay server at a New Jersey restaurant." She says "a customer denied her a tip and wrote her a hateful note on the receipt." The server put a picture of the receipt on social media and there was a notable public reaction. The receipt showed no tip, and instead "someone had written, 'I'm sorry but I cannot tip because I do not agree with your lifestyle.'" The server claimed this was written by the customer named on the receipt.

Investigation by a news station revealed evidence that the receipt in that instance was a hoax. The patrons denied leaving the note and produced their receipt copy from that visit, which indicated a tip was left and no evidence of the "lifestyle" note. The reporter did not ultimately conclude whether the receipt was a hoax or not. The alleged victim, however, received tips from people "from all over the world," following the publicity on the Internet. 

These are not isolated incidents. Search the Internet for "insult on receipt" and you will find many examples (and pictures). One that is striking allegedly occurred at a Chinese restaurant in a Washington suburb. A patron offered the server advice based on how she/he perceived the Chinese served food in China. The server took offense and referred to the patron as a "plad (sic)," or plaid (expletive deleted) in the restaurant's computer (called a "point of sale" or "POS" system). The server also made mention of her beliefs regarding the diminutive nature of a certain aspect of this customer's anatomy (this is a family friendly blog, click on the link and read the story for full details). 

The manager of this establishment did not fire the server. Instead, he pointed out that this notation was all in good fun. The manager did apologize to the "plaid" diners, offered $20 gift cards for the diner's "trouble," and removed the "joking" servers from the restaurant's prime dining hour schedule. Not fired, but one might argue there were repercussions. 

Among the examples on the Internet, there are similarities; but there are distinctions among them in terms of the nature of the statements and the reactions of management. It seems probable that these instances will continue to occur and to receive publicity. And how offensive something may be will perhaps vary based on perspective. One re-post of the Chinese restaurant story noted his/her conclusion that insulting the anatomy of the plaid diner "pales in comparison" to other nasty receipt notes. 

These instances, and others that have flowed through my news feed over the years, came to mind when I read a recent American Bar Association article about an administrative law judge deciding cases in the Social Security system. 

It is notable in this discussion that many states have legal privileges that protect notes taken by judges. These are referred to as "deliberative privilege." Essentially, there is a tendency to protect such notes from disclosure so as to encourage judges to take notes. Having conducted thousands of hearings, I can attest to the efficacy of good note taking. Judges sit through hours and hours of testimony. Cases involve many different issues that will have to be decided. And, it is very likely that various witnesses will have different perceptions and recollections of important facts and details. 

With detailed notes, a judge can produce a detailed and effective order. With notes, that can be done efficiently. An alternative employed by some is to instead listen to the recording of a hearing afterwards, and to take notes at that time, as an order is prepared. This is obviously less efficient (hearing all testimony twice), but is as obviously very thorough. Which works best for a particular judge is likely best decided by that judge. 

The Social Security Administrative Law Judge (ALJ) in this story took notes during proceedings. The article mentions that there is a "whistleblower" case ongoing in that judge's office. Perhaps through that legal action, or perhaps because there is no "deliberative privilege" in those proceedings, Judge John Pleuss' notes became very public recently. He referred to individuals appearing before him as (all italics are direct quotes):

one claimant was “very black, African looking woman (actually a gorilla-like appearance),” 

(he) described another claimant as “young, white, female; long brown hair; attractive; looks innocent.” 

Others were deemed 

“buxom,” “obese” or to be wearing a “skimpy black top.”

The result of these notes has been that Judge Pleuss is no longer hearing cases. A judge who cannot hear cases may not be much of an asset; hopefully the office has found other productive work that he can perform while our tax dollars pay him, despite his ongoing issues, and the ongoing investigation by the inspector general. 

The publicity of Judge Pleuss has apparently generated some attention. The ABA mentions that management has placed an "armed security guard . . . in the Madison office since June 20 to ensure safety." There is apparently some premonition or fear of anger or altercation stemming either from the general office atmosphere or the existence or publication of these notes. 

Although Judge Pleuss could not comment for the ABA story, the "president of the Association of Administrative Law Judges" "said Pleuss’ interview notes were 'shorthand descriptions' he used to jog his memory about the cases, and they had been taken out of context." This explanation might make some sense. Names and perspectives might become confused in a trial involving many witnesses. I have often used titles, jobs and even relationships in my trial notes. For example, someone might be "co-worker," "supervisor," "neighbor," "wife," "HR manager," "plant nurse," etc. This does help one to remember how someone is involved in a dispute. 

But, this explanation does not explain why someone's race, gender, or "innocence" is helpful or even appropriate. Comments on how individuals dress, wear make-up, style their hair or other personal attributes similarly seem to likewise lack any relevance, and to may will simply seem inappropriate. I know I do not want to be referred to as the "fat guy," the "balding guy," or the "guy with big ears." See, I know I'm not pretty and I do not need to be reminded of it. 

The story notes that "Judge Pleuss regrets ever writing these notes,” according to the Association president. And most would likely agree that he should regret it. Is there a difference between a waiter's note on a receipt and a judge's notes about an interview or trial?

I would suggest that there is. The behavior of judges is held to a higher standard under the law. Some argue that this is not fair, but the fact remains that our society expects certain behavior of its judges. The foundational belief is that American's faith in and respect for our adjudicatory system is dependent upon judges acting appropriately. To this end, each state has a Code of Judicial Conduct. Florida's is here

The American Bar Association has a "model code," expressing what their collective wisdom believes should be in such codes adopted by the states. Much of what states adopt comes from this model. Canon One of the Mode Code says (italics are direct quote)

A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.


A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.

These Codes set a high standard for Judges. Judges must act and speak appropriately. They must make the public confident that the bench has integrity and is impartial. If a judge is impartial, what possible reason would justify irrelevant, and insulting notes about race, gender or appearance generally? But, the most difficult Code provision is the one that says judges shall avoid "the appearance of impropriety." In other words, the judge has to strive to both be appropriate in her or his actions, and to have the public perceive propriety. Thus, behavior is measured by both objectivity, the judge should do the right thing, and subjectivity, the public should perceive proper behavior. 

Are these difficult standards? Most certainly so.  In fact, the ABA comment to this Canon of conduct says (italics are direct quote):

A judge should expect to be the subject of public scrutiny that might be viewed as burdensome if applied to other citizens, and must accept the restrictions imposed by the Code.

The Code is intended to be a burden. The burden is to be expected when assuming office. The burden is to be freely accepted. It is not fair perhaps, but it is part of taking the job (I am so glad I do not have to wash my hands every two minutes like doctors; but they know that going in, it is part of being a doctor. It is their burden, freely taken as part of their decision to be a physician). 

It will be interesting to see how the inspector general concludes this investigation in Madison. Will it conclude that Judge Pleuss' behavior warrants discipline? Should he be fired like the bartender who called a patron "fat" or given different assignments like the server who labelled a customer with an epithet and insulted his manhood? Or, will Judge Pleuss be held to a higher standard, to live up to the Code and to maintain faith and belief in our adjudicatory process? Time will tell. 

Just to jog your memory (and to make this easy to find in the future using Google), this post was written by an old, balding, fat judge with big ears and an odd disposition to colliloquy in his writing.

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