Coudriet details complaints against Office of Corporation Counsel
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Coudriet details complaints against Office of Corporation Counsel

Gay and Lesbian Activists Alliance of Washington
P.O. Box 75265
Washington, DC 20013

May 16, 1994


Vanessa Ruiz, Esq.
Acting Corporation Counsel
The District of Columbia Government
1 Judiciary Square
Washington, D.C.

Dear Ms. Ruiz:

I greatly appreciate and look forward to meeting with you this Wednesday. Following are a number of our concerns which you should be aware of prior to the meeting.

Request for Information

As you know from the public roundtable, we requested that the Committee on Judiciary secure certain information before acting on your nomination. We are reiterating that request to all members of the Committee today. Although directed to the Committee, the information would obviously come from your office so we also forward the request directly to you. All of these items were, except the last, were in the copy of my testimony which I gave to you and the last was discussed verbally during my presentation.

It would be helpful therefore for you to provide us with the following information prior to our meeting on May 18th:

  1. A detailed discussion of all cases in which Corporation Counsel has been found to have engaged in misconduct, including the name of the case, attorney, and judge, the date, a description of the case, and a summary of the misconduct finding, together with copies of the finding and actions taken by Corporation Counsel, if any, to remedy the misconduct and see that it does not reoccur.

  2. A detailed discussion of all cases involving the Human Rights Act, including sexual harassment cases with District employees as respondents, with a description of the allegations in the case, and its status.

  3. A copy of any Corporation Counsel communication suggesting that the Kelly Administration take the position that the Human Rights Act and/or its public accommodations section does not apply to agencies of the District government.

  4. A detailed discussion of all cases involving referral to Corporation Counsel of misdemeanor cases involving arrest by other than Metropolitan Police Department officers (e.g., by Park Police, Capitol Hill Police, etc.), at least some of whom have been accused of selective enforcement against disfavored minorities such as Latinos and gay men and lesbians.

  5. A detailed discussion of all cases involving a settlement or decision that police misconduct has occurred, including the name of the officer(s), judge (if any), and attorney for your office who are involved, the date, a description of the alleged misconduct, and a copy of the decision or settlement and any actions by Corporation counsel to ensure that the situation is remedied and does not reoccur.

Again, all this information was requested by us at the May 9th roundtable and it would be helpful to be able to review it prior to our meeting.

At our meeting, GLAA will — as I noted before the Committee — raise a number of concerns. I remind you of this now because I wish in this letter to focus on the Dean case.

The Dean Case and Your Personal Involvement

I believe that it will further our chances of understanding each other if I set forth several of our most serious concerns — as candidly as possible — in advance of our meeting so that you can carefully consider our position and whatever you decide is the appropriate response for you to take. In doing this, however, I wish to emphasize again, that it is my hope that a mutually acceptable understanding will be reached (even in advance of Wednesday), but such an understanding is only possible where you realize the depth of commitment on our side to the issues we raise.

All of the comments I provide here could well have been included in an oral response to your testimony last Monday. Don Haines and I made a conscious decision not to take that public action then because we hoped that in fact, in your eagerness to respond to a GLAA testimony that you perhaps found a surprise, you might have overlooked some of the ramifications of what you said and, upon careful reflection, come to a different understanding on the issues.

GLAA was careful in its testimony not to hold you personally responsible, absent further information, for the actions of Corporation Counsel lawyers in the Dean case. We were therefore startled by your candid statement that you were in fact involved in the case prior to the oral argument in November 1993. This timing is important because the Mayor's people told us, prior to the oral argument, that Corporation Counsel had been instructed to hew closely and exclusively to the "legislative intent" argument, forgoing the other attacks on the Human Rights Act and gay and lesbian people, and that Corporation Counsel would indeed do that. But, of course, your office's lawyer did exactly the opposite. I understand that, after the confirmation roundtable, you were handed the summary of attacks from the oral argument.

An initial question, naturally, is whether with your involvement prior to the oral argument means you were responsible for the Corporation Counsel's disregard of the Mayor's instructions and Corporation Counsel's determination to continuing its attacks on human rights? Regardless of the answer to this question, I find it difficult to believe that you wish yourself personally to be associated with these anti-civil rights and anti-gay arguments.

  1. For example, your office claims that if something (like marriage) is not itemized specifically in the Human Rights Act or its legislative history, then the Act does not cover it. This is, of course, nonsense. You enjoy an enviable reputation on the use of testers in remedying housing discrimination. My understanding is that discrimination against testers, however, is not specifically mentioned in either District or Federal law (and that's why the Supreme Court case was so important and your contribution to this area of the law so valuable). So by your own argument in Dean, discrimination against testers is not a violation of the District's law. Similarly, sexual harassment claims are a judicially created (and appropriate) outgrowth of legislation which prohibits gender discrimination but does not mention sexual harassment. Thus, the position which you are apparently still defending undermines civil rights law on both testers and sexual harassment, and your willingness to put these two important civil rights areas in jeopardy would be an appropriate focus for intensely probing questions at hearings on either the District or Federal level. Again, I am simply astonished you would wish to be associated with this anti-civil rights argument. Of course, it could be that you would apply this argument only against gay people or the District's law--although without further evidence we would be loath to ascribe this prejudice to someone with your reputation.

  2. Under your declared involvement, your office has taken the position that the District's Human Rights Act is not to be construed broadly to achieve its remedial objectives, unlike literally every other civil rights law in the country. It will obviously be of great interest to all supporters of civil rights to know that you personally support a miserly, nit-picking interpretation of civil rights laws (reminiscent of the Scalia anti-civil rights opinions that have compelled Congress to pass various civil rights "restoration" acts). Of course, it might be that you are parsimonious on civil rights only for gay people or only in interpreting the District's law--although without further evidence we would be loath to believe this of someone with your reputation.

  3. Under your involvement, your office has claimed that the Human Rights Act must yield to other statutes even though the Council's report on the Act specifically states that "licensing laws and other provisions of the District of Columbia Code are to be construed and enforced . . . to give full effect to the Human Rights Act." This is fundamentally lawless behavior, and I am confident that legislators at both levels would be concerned about your personal willingness to so directly contradict the legislature's interpretation of its laws. Of course, it might be that you flout legislative intent only when the rights of gay people or the District law is at stake--although without further evidence we would be loath to believe this of someone with your reputation.

  4. Under your involvement, your office has claimed that the Human Rights Act is a "general" law and must yield to other "specific" statutes even though the Council's report specifically rejected this "general/specific" argument.

  5. Under your involvement, your office has claimed that discrimination on one ground (e.g, sexual orientation) can be justified because it is really discrimination on another prohibited ground (i.e., gender) even though both are prohibited by the Act.

  6. Under your involvement, your office has taken the position that discrimination (e.g., against men marrying men) can be justified if it is evenly applied (i.e., women can't marry women either), an unbelievable return to the segregationist's argument in the anti-miscegenation case of Loving v. Virginia (blacks may not marry whites, but that's not discrimination because whites also cannot marry blacks). You may personally be comfortable asserting long-dead segregationists' arguments but you must understand that opprobrium that would justifiably attach to such a position at both levels.

  7. Under your involvement, your office has taken the position that actions that have the effect of discriminating in violation of the Act are not themselves a violation of the Act even though the law specifically prohibits "effects" discrimination.

  8. Under your involvement, your office has taken the position that the Human Rights Commission may not, by amicus brief, state its view of the law it is in charge with enforcing and silenced the Commission by excluding its brief. This similarity to the notorious Sixth Circuit case where the anti-civil rights Republican Department of Justice (DOJ) silenced the EEOC when the latter tried to file a brief upholding the civil rights law it was charged with enforcing would obviously be an appropriate focus of legislators' attention at both levels.

  9. Under your involvement, your office has taken the position that gay men and lesbians are "incapable" of engaging in marriage, thereby repeating a significantly harmful base canard that is demonstrably untrue given the presence of vast numbers of decades-long committed relations in the gay and lesbian community (all without the legal support which heterosexuals routinely enjoy). We look forward to a demonstration from you that this you indeed do not share this opinion and will work to correct the brief as necessary.

  10. Under your involvement, your office has taken the position that marriage is "inherently" an institution for nongay people only, thereby ignoring much of history and repeating another miscegenationist argument decisively rejected in Loving v. Virginia (namely that the facially non discriminatory term "marriage" carried within in it the discriminatory meaning of applying only to same-race couples, just as the same facially nondiscriminatory term in the Dean case carries within it the discriminatory meaning of applying only to opposite-sex couples). There are a number of foreign countries where same-sex marriage is legal, and we fully expect this trend in civil rights to continue.

  11. Under your involvement, your office has taken the position that the a District's marriage laws are based on "procreation", raising the specter that the District will next bar marriage licenses for those couples unable or uninterested in having children. This willingness to discriminate against the disabled, the elderly, and those who decline to have children would be of interest to legislators on both levels who reject such actions. Of course, it may be that procreation becomes a necessary precondition for marriage only when the rights of gay people are at stake — this must change.

  12. Under your involvement, your office has taken the position that the notorious decision of Bowers v. Hardwick (refusing to apply the right of privacy to consensual behavior inside a person's home if the person is gay) is an appropriate reference for the Court even though that decision is nearly universally regarded as a travesty of justice and an example of institutional hatred of gay people, and even though the Council has expressed its concern for both the civil and privacy rights of gay people in its unanimous adoption of both the Human Rights Act prohibiting discrimination and the Right to Privacy Amendment Act legalizing such behavior for everyone.

    Appeals to prejudice like this may serve the goals of this, or any future, Administration at a time like this, but bring shame and discredit to the work of a dedicated professional such as yourself.

  13. Under your involvement, your office has taken the position that the District government can discriminate against gay men and lesbians without any justification other than the merest whiff of some post-hoc speculation (one version of the "rational basis" test) despite the Council's expressed purpose in enacting the Human Rights Act to "forcefully convey to the executive and administrative agencies of the District Government the importance which the Council places on" the goal of the Human Rights Act to eliminate discrimination based on sexual orientation.

I have expressed our concerns plainly in this letter so that you may gauge the depth of anger and concern that the actions of your office have aroused in the community.

You enjoy, however, the fortunate circumstance that you can remedy the problem by taking direct and positive action to specifically withdraw your office's support for these positions. Again, we cannot believe that you would want to be associated personally with any of these assertions.

GLAA is the longest continuously functioning gay and lesbian civil rights organization in the country, and we are a nonpartisan organization. Although we rate candidates for political office, we never endorse. We do however support or oppose appointment of officials to various offices, and are quite active in those efforts.

Please note that I am not here asking, as indeed some GLAA members have urged, that you discharge or at least discipline the members of your staff who have engaged in these outrageous acts. Rather, we are merely demanding that you and your office disassociate itself from the arguments that you all should never have made, that your client the Mayor claims she rejects, and that cannot survive the light of day. The objections to these arguments will not go away until the arguments themselves are withdrawn, and they — together with the matters mentioned in this letter — are played a significant role in the fact that your predecessor does not hold Federal office today.

We realize that this is not the first time that Corporation Counsel has sabotaged the Human Rights Act. We merely hope that you will join in our determination to see that it is the last.

I look forward to receiving the information requested and to our meeting. I hope that the Dean case matters may be resolved before that meeting.


Jeff Coudriet President

cc: Council Committee on Judiciary, Members