Drafted and Shafted: Who Should Complain About Male-Only Registration?

SHERRY F. COLB

Cornell law professor comments on a recent opinion by the U.S. Court of Appeals for the Fifth Circuit holding that requiring men but not women to register for the draft is constitutional under mandatory U.S. Supreme Court precedents. Specifically, Colb considers what the U.S. Supreme Court should do if it agrees to hear the case and more narrowly, whether the motives of the plaintiffs in that case bear on how the case should come out.

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Summerfield v. OLCC

Docket: S066377

Opinion Date: August 28, 2020

Judge: Duncan

Areas of Law: Civil Procedure, Civil Rights, Labor & Employment Law

Plaintiff Gene Summerfield, worked for defendant Oregon Liquor Control Commission (OLCC), in its warehouse. In his complaint plaintiff alleged that he and other African-Americans had been subjected to racial discrimination and racial harassment at the warehouse. Plaintiff also alleged that he had repeatedly told defendant about the discrimination and harassment, but defendant had failed to take effective corrective action. Plaintiff filed a workers’ compensation claim for acute stress. The claim was accepted, and plaintiff received treatment. Plaintiff’s treatment provider eventually released plaintiff to return to work, and plaintiff requested reemployment. The jury rejected plaintiff’s first claim; on the verdict form, it answered the questions finding that defendant had not “intentionally discriminate[d] against plaintiff because of his race” and had not “subject[ed] plaintiff to a racially hostile work environment by his co-workers.” The jury also rejected plaintiff’s retaliation claim, finding that defendant had not “retaliate[d] against [plaintiff] for opposing or reporting racial dis- crimination or racial harassment.” But the jury accepted plaintiff’s whistleblowing claim, finding that defendant had “take[n] adverse enforcement [sic] action against plaintiff because he in good faith reported information that he believed was a violation of a law, rule or other regulation.” Plaintiff appealed, and the Court of Appeals affirmed. The Oregon Supreme Court determined the trial court did not err in granting defendant a directed verdict on plaintiff’s reemployment claim; plaintiff bore the burden of proving that defendant had available and suitable employment for him and plaintiff conceded that he had not done so. The Supreme Court also concluded that, although the trial court erred in failing to instruct the jury on the meaning of “adverse employment action” for the purposes of plaintiff’s retaliation claim, the error was harmless because there was no dispute that the actions plaintiff relied on to support his retaliation claim were adverse employment actions and the jury actually found that defendant had committed an adverse employment action. Finally, the Supreme Court concluded that plaintiff has not established that, under the circumstances of this case, the trial court abused its discretion in declining to award plaintiff equitable relief.

Oregon v. Haltom

Docket: S066955

Opinion Date: August 28, 2020

Judge: Nelson

Areas of Law: Constitutional Law, Criminal Law

Defendant Austin Haltom was convicted of second-degree sexual abuse, defined in ORS 163.425(1)(a). In Oregon v. Simonov, 368 P3d 11 (2016), in the context of analyzing ORS 164.135(1)(a), the statute criminalized using a vehicle “without consent of the owner;” the Oregon Supreme Court held that the “without consent” element of that offense was part of the “essential character” of the conduct that the statute proscribed, and therefore had to be treated as a “conduct” element for purposes of determining the minimum mental state that attaches to the element when the statute fails to specify a mental state. Relying on the fact that general provisions in the Criminal Code appear to contemplate at least a knowing mental state for any “conduct” element of a crime, the Supreme Court held that the state was required to prove that a defendant charged under ORS 164.135(1)(a) knew that the vehicle’s owner had not consented to its use at the relevant time. The Court rejected the state’s argument that the “without consent” element was a “circumstance” element to which a minimum mental state of “criminal negligence” would attach. In Haltom's case, he contended that the "does not consent" element in ORS 163.425(1)(a) played a similar role to that of the “without consent” element in the unauthorized use of a vehicle statute at issue in Simonov, and that, insofar as ORS 163.425(1)(a) did not specify a mental state that attaches to the “does not consent” element, both the analysis and ultimate conclusion in Simonov applied and established that “knowingly” was the minimum mental state that attached to the “does not consent” element. Thus, he argued that, to convict him under ORS 163.425(1)(a), the state was required to prove that he had engaged in sexual intercourse with the victim knowing that she did not consent and that the trial court therefore erred when it denied his request for an instruction to that effect and entered a judgment of conviction based on a jury finding that he had merely been reckless with respect to the victim’s consent.After review, the Supreme Court concluded the trial court erred and that the judgment of the trial court, and the Court of Appeals decision affirming that judgment, had to be reversed.