September 1, 2009

Carrie Prejean Goes To Court

Carrie Prejean, the former Miss California USA 2009, was stripped of her title after she spoke publicly against same-sex marriage. Yesterday, she filed suit against the Miss California USA pageant and two of its directors, claiming that she was discriminated against on the basis of religion.

I hadn't considered Carrie Prejean to be worthy of more than a brief comment before. But she's playing on my turf now. That means this is going to be a long post. If you non-lawyers have the stomach to wade through this, you'll get a good insight into how lawyers look at issues like these -- at least, you'll get an insight into how this lawyer looks at this issue. I promise to try and keep things at a layman's level of analysis.

1. Applicable Law

Her principal causes of action are defamation and California's Unruh Civil Rights Act, which does indeed prohibit religious discrimination (among other things):
(b) All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.
(c) This section shall not be construed to confer any right or privilege on a person that is conditioned or limited by law or that is applicable alike to persons of every sex, color, race, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation.
* * *
(e)(3) For purposes of this section ... "Religion" includes all aspects of religious belief, observance, and practice.

2. Substantive Allegations of Suit

The complaint is very detailed (indeed, much more so than it needs to be or probably ought to be) in its substantive allegations. So I'll have to summarize.

First, it describes Prejean (when applying for the Miss California USA pageant ) as being discouraged from making reference to her religion. Then, it describes her making reference to her religion while fulfilling her duties as Miss California USA, such as when she gives speeches at public appearances, and making the organizers of the pageant aware that she holds deeply-felt Christian beliefs and attends a Christian college.

After that, considerable attention is placed on the Miss USA pageant held in Las Vegas, Nevada on April 19, 2009 and statements made by Perez Hilton and the other contest judges. Essentially, the complaint alleges that all the judges were either gay or gay-friendly and favorably disposed towards same-sex marriage, and that they held it against Prejean that she held, and expressed, a contrary opinion. It describes a number of unflattering things said by Hilton and other judges about Prejean.

But the judges are not named as defendants. The defendants themselves are described as of a kind with the judges, though, and presumably we are supposed to infer the defendants' intent from the judges' public statements, with associative comments like these:
As co-director of Miss California USA, I am personally saddened and hurt that Miss California believes that marriage rights belong only to a man and a woman. ... I believe that all religions should be able to ordain what unions they see fit. I do not believe our government should be able to discriminate against anyone and religious beliefs have no politics [sic] in the Miss California family.*
Substantial allegations indicating the homosexuality and advocacy of same-sex marriage of the defendants follow this.

Then there is a bit about Prejean appearing on the "Today Show" and being told by the pageant's organizers to not mention religion and to soft-pedal her stance on same-sex marriage, and her disregard of those instructions, saying instead that she "had spoken from her heart, from my personal beliefs and for my God ... I did not want to offend anybody. But, with that question specifically, it's not about being politically correct. For me, it was being Biblically correct." Allegedly, after this the organizers allegedly did not pay for her plane fare back from California, and they would not assist her in scheduling appearances, eventually stripping her of her crown.

From there, we read allegations that the defendants agreed Prejean could make public appearances, including a television spot opposing same-sex marriage, as long as she did not identify herself as Miss Cailfornia or use crowns, tiaras, or other indicia of her status; accusing Moakely of leaking information about Prejean's having had breast augmentation surgery paid for by the pageant and then accusing the doctor of having done so, and more and more nefarious conduct of this sort. Ultimately, the complaint alleges that the defendants accused Prejean of breaching her contract by not fulfilling her functions as Miss California USA and instead becoming a "defendant of traditional marriage," which is a euphemism for "opponent of granting marriage rights to same-sex couples."

So much for the alleged facts. Here are her legal theories:

As to the defamation claim (in two causes of action, one for libel and the other for slander), Prejean is described as having been "injured in her trade or profession as a model and beauty pageant winner," because the defendants allegedly claimed, falsely, that she was unreliable and had refused to participate in scheduled appearances in violation of her contract. These defamatory statements allegedly caused her to suffer a loss of income and emotional distress.

There is a claim for public disclosure of private facts -- specifically, the private fact that Prejean had got a boob job. Which, allegedly, was the pageant's idea and not Prejean's, and which the pageant had paid for.

Then there is the religious discrimination claim. More about this below. Finally, there are the torts of intentional infliction of emotional distress and negligent infliction of emotional distress.

I've got bad news for Prejean's attorney in that negligent infliction of emotional distress is a highly disfavored form of a cause of action and limited pretty much to the facts of a case called Dillon v. Legg (1968) 68 Cal.2d 728., in which a mother witnessed her small child struck and killed by a car. The mother was not physically injured herself but she could recover damages for the emotional distress of seeing her child killed. A more amorphous tort, exposing all sorts of people to all sorts of liability for things they did not intend to do, is difficult to imagine. That is why in the case of Thing v. La Chusa (1989) 48 Cal.3d 664, 667, the California Supreme Court considered that a relative of someone who suffers harm from someone else's negligence will always be emotionally distressed by that, and it would not be fair to extend functionally infinite liability to everyone who was distressed by anything anyone else had ever done to anyone they knew.:
These reactions occur regardless of the cause of the loved one's illness, injury, or death. That relatives will have severe emotional distress is an unavoidable aspect of the 'human condition.' The emotional distress for which monetary damages may be recovered, however, ought not to be that form of acute emotional distress or the transient emotional reaction to the occasional gruesome or horrible incident to which every person may potentially be exposed in an industrial and sometimes violent society. . . . The overwhelming majority of 'emotional distress' which we endure, therefore, is not compensable.
So basically, you've got to be a personal eyewitness to something viscerally awful happening to someone you are related to by blood, adoption, or marriage before you can recover for this. Someone being mean to you is not what this tort is for.

This is not new law, and seeing this claim included (and not a claim for FEHA, see below) suggests to me that the plaintiff's attorney may not have researched the applicable law enough. My general opinion of someone alleging Negligent Infliction of Emotional Distress in a case that doesn't have facts a lot like Dillon v. Legg is that it is one of the marks of a hack. I could be wrong -- plaintiff's counsel Charles S. LiMandri might turn out to have better kung fu than me; after all, he is a member of ABOTA and I am not. (I haven't accumulated enough ABOTA points yet because I get nearly all of my cases settled before they go to a jury trial, the way a civil litigator is supposed to!)

But you know what's missing from that list of causes of action? Breach of contract. Isn't that interesting. Because we can be pretty sure that the pageant and the other defendants are going to say that they did what they did in response to Prejean breaching her contract with them. They're going to say that she had fifty or so scheduled appearances that she didn't go to because she was busy promoting herself as a spokesperson for the anti-SSM movement -- something that they disagree with but that's beside the point; the point is she should have been cutting ribbons at supermarkets and kissing babies and visiting retirement homes, things for which the pageant would be paid a fee and thereby generating income.

As I will argue below, the critical document here is that contract. You'd barely know there was a contract governing the parties' relationship from the complaint. Typically, in a case where you have a contract governing the relationship between the parties, you'd attach that contract as an exhibit to the complaint.

The obvious reason for not alleging breach of contract and not attaching the contract as an exhibit is that the plaintiff's attorneys believe there is a substantial chance that doing so would hurt the case because the plaintiff did, in fact, breach the contract before the defendants did.

The only other reason I can think of would be if the terms of the contract are confidential, in which case the plaintiff's attorneys should have indicated that the terms of the contract were confidential and requested the Court's permission to file the contract under seal.

At any rate, without that contract, a good analysis of the legal claims is not really possible.

3. Did Religious Discrimination As Defined By The Law Take Place?

There are a plethora of allegations that if proven would demonstrate that the defendants here were responding to Prejean's opposition to same-sex marriage. It's also alleged that they were uncomfortable with Prejean's overt religiosity. I will assume for purposes of this analysis that the pageant's claim that Prejean's failure to appear at scheduled bookings was the reason she was fired can be proven to be a tissue of lies, and the real reason behind that pretext was the pageant's disagreement with Prejean's public stance against SSM.

Is publicly voicing one's opposition to same-sex marriage an "aspect of religious belief, observance, and practice"? This is a critical question Because if it isn't, then Prejean has no claim for religious discrimination under the Unruh Act, or indeed, under any California or Federal law forbidding religious discrimination.

Now, if you'll recall back to the Prop. 8 campaign, the opponents of granting marriage rights to same-sex couples went very far out of their way to argue that they were not trying to impose their religious beliefs on the rest of society. Instead, they based their argument on the idea that their religious freedoms would be impaired if same-sex marriage were the law in California. That was also the argument for the TV spot Prejean appeared in.

This is not an act of worship. Debatably, it is an explication of one's religious beliefs. But more to the point, since the issue is framed in terms of individual rights and the proper exercise of governmental power, it is really an explication of one's political beliefs. The Unruh Act does not forbid discrimination based on one's political beliefs or one's political activities.

If the defendants were uncomfortable with Prejean's religiosity, wouldn't they have not awarded her the title of Miss California USA in the first place? The complaint clearly demonstrates that they were aware of her Christian religious beliefs and they not only gave her the state-level crown but engaged her in various activities as Miss California USA after they knew of it.

The Unruh Act provides for non-discrimination in "the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever." In California, because it is a California state law. The Miss USA pageant took place in Las Vegas, Nevada, beyond the jurisdiction of the state of California. Now, various acts of discrimination based on religion allegedly took place in California both before and after the Las Vegas pageant. But a very substantial portion of the allegations of the complaint have to do with Prejean not winning the pageant.

What about that? If the complaint is accepted as true on its face, then Prejean's answer to Hilton's question was the reason she did not win; had she given an answer Hilton and the other judges had found more palatable, she would have won. In fact, I think this is too uncertain to withstand legal analysis, but let us assume, arguendo, that it is nevertheless true. So what?

Are the judges supposed to not ask that question in the first place? What about asking about "world peace?" Some people are actually opposed to world peace, believe it or not -- count me in that number. Some of us think that the use of military power is, on occasion, both morally justified and required when politics and diplomacy break down. Sure, it would be great if that never happened, and hopefully it's rare, but sometimes a nation is entitled to take up arms in its own interests. That, too, is an unpalatable answer to a vapid pageant question, and a contestant saying, "It sucks, but sometimes you've got to go to war," would probably wind up losing a beauty pageant too because beauty queens are supposed to be in favor of world peace. That's political, not religious.

Now, let's take it another step -- let's say the beauty queen asked a question about world peace is a Quaker. Her religion forbids her from taking up arms in the service of any government, including that of her own country. She gets asked a question about military service and instead of saying "I support the troops," she says, "My religion informs my morals and tells me that military service is inherently morally wrong. No offense to any soldiers or their families, that's just my belief in the Bible." She should lose the pageant, too, because beauty queens are supposed to support the troops, not condemn them.

If Carrie Prejean had made statements thought to be against world peace or which condemned military troops, and been fired for them, this seems to be a pretty easy call -- that's not a termination motivated by religious discrimination; it's a termination motivated by a desire to protect the reputation of the sponsoring organization. The organization is allowed to have and express its point of view on issues, too, and if its agent and public representative expresses a contrary point of view, the organization is within its rights to discipline and ultimately terminate its agent for doing so.

So let's be clear -- it's all well and good to claim that one is the victim of religious discrimination when one's actions are popular. But when they are unpopular, it becomes a little bit harder to rally around her. Fact is, same-sex marriage is a highly divisive issue at this phase of our society's evolution. It's not surprising that in an industry dominated by gay men, the opinion of favoring SSM would become orthodoxy -- just as advocacy of tort reform is an orthodoxy among people like insurance adjusters. Prejean knew this when she spoke out against SSM.

4. Did The Miss California USA Pageant Employ Prejean (And Who Does Such A Factor Really Favor)?

This is actually a pretty critical question, one I should have asked earlier. Why? The Unruh Civil Rights Act does not apply to relations between employer and employee. Isbister v. Boys' Club of Santa Cruz, Inc. (1985) 40 Cal.3d 72, 83, fn. 12, followed by, inter alia, Alch v. Superior Court (2004) 122 Cal.App.4th 339, 391. That does not mean, of course, that employers may discriminate against employees; it means that the Unruh Act is the wrong act. The right law to have used if she is an employee (or even an independent contractor providing services in a quasi-employment relationship) would be the Fair Employment and Housing Act, commonly called FEHA, and which is found at Government Code §12900.

This would hardly blow Prejean's claim out of the water. But it would mean that she would have to start over -- and she would need to make a pre-filing claim with the Department of Fair Employment and Housing to get a right-to-sue letter. She certainly still has time to do it; she can make that pre-filing claim up to one year after the alleged acts of discrimination. (Federal law would not be so gentle with her, but we're talking California law here.)

At paragraph 114 of the complaint (at the bottom of page 19), Prejean alleges that she was an independent contractor to K2 Productions, Inc. (the legal name of the entity that runs the Miss California USA Pageant). As such, she was not a member of the general public availing herself of the facilities and accommodations of the pageant. She was someone very special with respect to the pageant.

Now, the real test of whether one is an employee or an independent contractor is the question of what kind of control the principal can exercise over the agent. There are a bunch of other factors you consider as well, like who supplies the tools, the transportation, the training and education; whether the agent is free to accept outside work or indeed is doing similar sorts of work for many different principals; whether the agent is required to be in particular places at particular times or whether the agent can do or not do things as she pleases and delegate tasks to others; and the list goes on and on. One thing that is not considered at all is whether the parties have signed a document identifying the agent as an independent contractor. A California court will utterly ignore such a statement, despite the insistence of sometimes both sides of a dispute that it was really an independent contractor relationship, and find in favor of the presumptive relationship of employment.

Looking at the subsidiary issues, I could argue with a straight face that Prejean should properly be considered an employee and not an independent contractor. Assuming that the contract required Prejean to do particular appearances, that's the pageant telling her where to be and when. And it seems that there was at least a custom and practice of the pageant providing transportation to those venues, or else Prejean wouldn't have been complaining about the pageant not paying for her return flight home from New York. It's pretty clear that she had to wear her sash and tiara, which would be part of her "uniform." And she had to render her services personally; she could not send out a delegate of her choice to perform in her place. But it all really comes down to control -- time, place, uniform, personal service are all different factors of control.

The real issue is whether Prejean was required to accept the appearances that the pageant set up for her. If she was free to accept or reject as many as she wanted, then that would strongly suggest that she was in control of the relationship and not the pageant, making her an independent contractor. If she had to do the appearances as set up by the pageant, she was an employee. If, as I suspect the evidence will show, she could accept or reject the ones she chose, but there was an expectation that she would do at least a substantial amount of them but that she was free to turn down the occasional appearance here or then, then it's something of a gray area but one balance one that favors the presumption of employment. That strikes me as analagous to an employee being asked, but not required, to work overtime.

I don't think she has an Unruh Act claim as a matter of law because of the Isbister case. But Prejean might want to explore the "employment" idea further. If she can prove that the pageant's "breach of contract" theory is really a tissue of lies and she was actually terminated for expressing her political opinion against SSM, then two sections of the California Labor Code, which are almost unique to this state, would come in to play:
1101. No employer shall make, adopt, or enforce any rule, regulation, or policy:
(a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office.
(b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.

1102. No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.
Here, then, is potential grounds for a wrongful termination in violation of public policy tort claim. But, to have a wrongful termination, you have to have employment in the first place. Prejean claims she was an independent contractor, not an employee, which would forestall this claim.

For a more deetailed discussion of the implications and scope of §1101, see this excellent post from Eugene Volokh. While I think he's definitely on the right tract for the employee's rights, I don't think Prof. Volokh gave enough consideration to the employer's rights to engage in political speech, too. If the employer has a particular political stance (as it is unquestionably permitted to do) then can it terminate an employee for holding and advocating a contrary one? So far as I can tell, this has never been tested in a California court, but the plain text of §1102 would suggest that the answer is "no."

In fact, I find §§ 1101-1102 troubling in their scope. If I joined the Nazi Party, I am unquestionably engaged in political activity. But it's quite probable that if I did so, I would cast my private (non-governmental) employer into very substantial disrepute unless she fired me. Which she probably wants to do anyway if I'm advocating Nazi political positions. But it looks like the law forbids my employer from doing that, which means that despite my employer's powerful disagreement with the Nazis, she has to suffer the loss of business resulting from my political advocacy -- political advocacy with which she vociferously disagrees. I think that if I joined the Nazi Party, my employer should be able to fire me for that -- if only to protect herself.

But I don't get to pick and choose the law. If the pageant is an "employer," then Prejean's expression of a political opinion about SSM cannot be held against her by the pageant. If Prejean really is an independent contractor, then this law doesn't apply.

5. Expressions of Opinion

Now, she's also sued for defamation, which is a different sort of claim than the civil rights analysis. Calling someone "a dumb bitch" can be defamation in some contexts -- and in others, it is an expression of opinion. Statements of opinion are not actionable.

The difference between an opinion and a statement of fact is that a statement of fact can be proven objectively true or untrue; an opinion is not susceptible of being objectively false. "Whoppers are better than Big Macs" is not a statement that can be proven true or false by reference to objective evidence; one either prefers Whoppers to Big Macs, or vice versa, based on one's own subjective opinion. "Whoppers contain more saturated fat than Big Macs," however, is a statement that can be proven true or false by objective means -- take a Big Mac and a Whopper, dunk them in some water and boil them, and measure the fat that you skim off the top of the liquid. If the Whopper generates more fat than the Big Mac, the statement is true; if the Big Mac generates more, then the statement is untrue. And importantly, the measure of the truth of the statement is derived by way of an objective test which will yield the same results regardless of whether the administrator of the test prefers Big Macs or Whoppers.

Calling someone a "dumb bitch" is a statement of an opinion because it is inherently an expression of dislike. "Dumb" may or may not be possible to objectively test but generally I think that it is not because an IQ test requires a psychologist to properly interpret and quantify and most people aren't referring to IQ when they say someone is "dumb." A similar analysis would apply if you're question whether she is a "bigot." That's a matter of opinion.

But, assuming that she gets paid for making appearances as Miss California USA, and holding that title enhances her earning power as a model, then a claim that she is unreliable and refuses to appear at bookings would pretty clearly be damaging to her profession. So what it comes down to here is, again, whether she was required or expected to make appearances scheduled by the pageant if so so whether she did or did not do what was required or expected of her in her contract.

6. Conclusion and Lessons Learned

Prejean's claims appear to be of dubious legal merit. This is not a slam-dunk case for her. The odds favor the defense, but the outcome is not certain. Much depends on the contents of her contract with the pageant, and I have not read that document. The absence of that document or even references to its contents in the complaint hints that there is substance to the defendants' anticipated defense that Prejean broke the contract.

So, here's the first lesson. Don't run from your own contracts. Same thing for your own public statements, your own commitments and promises. They will be used against you if they can be. Put your own actions up front and center -- and demonstrate how you lived up to it and it's the other party who breached it. You'd better believe that what you try to hide will be exactly what the other side is going to spend its time and energy looking for.

If I were defending this lawsuit, I'd be preparing a special motion to strike based on California's anti-SLAPP law, and hoping to get a big award of attorney's fees for it. I'd be alleging that the pageant and its organizers have a free speech right to advocate in favor of SSM, among other political viewpoints, and that a spokesperson who does not agree with the political viewpoints of the organization lacks a bona fide occupational qualification to be the spokesperson. Prejean seems preoccupied with her right to speak out against SSM, and not to have given any thought to the employer's speech rights.

Would such a motion win? Again, hard to say without that contract and without all the evidence at my disposal. To defeat the motion, Prejean would need to not only justify her legal theories, but produce admissible evidence that would be sufficient to establish that she is more likely than not to win her claims before a jury. Would such a motion win if I brought it? I've never lost an anti-SLAPP motion in my career, and I've brought several. Nor have I ever been awarded less than $15,000 in fees paid by the plaintiff who made the grave error of suing my client. This is not bragging -- I suspect that my record in this regard is far from unique.

But, that's the second lesson. Always look at it from the other party's perspective, even if only to anticipate their responses. There may be more danger there, and less opportunity there, than you initially thought. And you always want to know how the other side is going to try and make itself look good.

Prejean's lawyers may or may not have wrestled with the question of whether she is actually an employee or an independent contractor. I can only assume that they have not alleged an employment relationship for a reason. But that does not mean that one does not exist, nor does it mean that this would hurt her strategically. Frankly, I think the Labor Code §1102 issue could have been the strongest card in her hand, and a FEHA claim looks a lot stronger than an Unruh Act claim.

Which is the third lesson. If you can, take the time to know what you're doing. Think it through first. If there's no hurry to file a lawsuit, it pays to research the hell out of things first. Take the time to line up your ducks before shooting at them. In fact, it's better to not only line up the ducks, but if you can, super-glue their feet in place before taking your shots. I've sometimes hesitated to file lawsuits until I could get third-party witnesses to provide me with affidavits so that I had enough evidence to win the entire trial from the day I filed the lawsuit. I've also delayed filing suits and delayed filing motions until I could consult with other attorneys that had more experience than me to learn if there were any tricks or wrinkles in the law that I didn't know about. It's nice when you have the opportunity to do that.

I can't really say one way or another whether Prejean's lawyers have thought this whole thing through. But if I can think of all of this stuff the same evening I read the complaint, then that means they could have thought of it, too, especially given that they've been sitting on top of this thing for at least two months before going to court. They have the luxury of time, and they should have used it. If they had, maybe they wouldn't have laid down their best weapon before walking in to the fight.

If you want to follow the progress of this case as it moves through the court system, you can do so at this page in the Los Angeles County Superior Court website. You will need to enter the case number, BC 420823, in the dialog box at the bottom of the page; unfortunately, I can't give you a link with that number already pre-set (at least, my kung fu isn't good enough to do that; maybe it can be done). If you want to download the actual documents, you can do so as well, but I think it'll cost you something like eight cents a page.

My personal best wishes are with the pageant, because I think Prejean is in the wrong for making a fundamental misassessment of the position she had asked to be in. The beauty pageant was in favor of SSM and everyone understood that. The winner of the pageant becomes the pageant's representative, and I think the pageant should have the right to pick someone who at least does not contradict its point of view. Prejean went out of her way to contradict the pageant's point of view, so the pageant took action to protect itself. That's not a legal opinion, though, it's a moral one -- and a moral assessment which will probably ultimately lead me to be critical of some aspects of California law.

As a sidebar, take note of how social conservatives have reacted to the filing of the lawsuit. Turns out, tort reform is only a good idea when liberals are the plaintiffs.

Anyway, here's the boiled-down-to-the-essence summary -- Carrie Prejean's lawsuit against the Miss California USA pageant deserves to fail, both morally and legally; I think the odds are against her based on what seem to me to be several strategic missteps by her attorneys. And that is how I prefer it be.

Hat tip to Prof. Howard Friedman.

* Emphasis is added in the complaint, not by me. The [sic] appears appropriate because Lewis' poorly-worded statement deteriorates from ambiguity about whether he is speaking in his official capacity or expressing a personal opinion, into a nearly unintelligible hash of the language from which his actual meaning must be inferred rather than simply read. The issue, though, is not Lewis' grammar, it is the function he was fulfilling when he expressed himself.

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