 Welcome to all of you who are joining us. We have the honor of having with us today, not only the Retired Intermediate Court of Appeals judge and former head of school at St. Louis and former University of Hawaii Chief Council, Walter Kiar Mitsue, but Ben Davis, really good friend for many years, former head of the American Bar Association section of dispute resolution, a longtime professor of law at the University of Toledo School of Law, active in international as well as domestic law in many, many areas, a leader in diversity, a leader in the rights, defense and enforcement. Ben, welcome to Think Tech. Thank you very much. So our starting question for today is for the new gentlemen, what's happening out there relative to the rule of law? That gives you serious concern. Well, if I can start, this is literally today, I'm getting a wisdom tooth out tomorrow, so people listening in, you know what a wisdom tooth operation is for you or one of your kids and what it entails, okay, general anesthesia, right? But this is the twist. In the pandemic, when I went to see the surgeon that my dentist said to go to, I had to sign a form that said that I acknowledged the COVID-19 pandemic risk in getting this operation done. And so it's kind of an assumption of risk by me, if a judge had to look at this and how the rules of law of contracts would apply to that. But beyond that, as of yesterday, and I'm telling you folks, it is as of yesterday, Ohio has passed a limitation of liability law for COVID-19 that covers essentially every kind of business and basically prohibits any class action type of action. And basically if you get COVID-19 out of, in some business like this surgeon tomorrow, I'm out of luck. I'm out of luck. And those kinds of limitation liabilities I understand are going around in different states in the United States. This is a state law. I understand that in federal law, this stimulus package that one of the holdups is in effort to have a federal COVID-19 limitation of liability. And so my thought is that's law and it's a rule, but I'm wanting to sue or get a, I'm thinking about everyone who just has to go to the dentist or goes to a pharmacist or something like a pharmacy and whether how judges would respond to that. Would they accept this constitutional claim on the state level? Some people have shown me some parts of the Ohio constitution that might be invoked or a federal level claim. You can think on the international level too, if there's a rule in the international covenant of civil political rights, is that in a public emergency, which we are in now, we are in a public emergency, duly declare, you can derogate from these human rights rules to the extent strictly necessary, right? That's, and so the question is, is this kind of limitation of liability strictly necessary under that vision for purposes of dealing with this? And I would add that the abnormal, I think, is that, is the COVID, the COVID is a relentless, implacable force, deadly force, right? 200,000 people there. We can think about politicians and judges and all that and this, that or the other, but the bottom line is that's the thing that's out there. And then the question is more about, what are all of our responses? What are the responses of courts? What are the responses of judges? What are the responses of political leaders? To that implacable, relentless, deadly abnormal that we live in. And quite honestly, this particular rule bothers me. It seems like it's basically saying, well, we'll protect the companies and entities, but you who actually can get sick from the stuff, you're on your own. That's the thing that bothers me right now. So we know the test for the legislative, executive and especially the judicial branch has always been a balancing of interests between the rights of the individual and the protections of society. And you've raised that very aptly, Ben, because Senator McConnell has basically laid down the law, if you will, that he's not even going to consider putting in front of the Senate a bill that does not include waivers of liability for healthcare professionals, for employers, for businesses related to COVID exposure. One of the questions where that comes up, under other areas of law, Occupational Safety and Health Act law, employers have a duty that is not delegable to others to maintain a safe workplace environment in compliance with accepted health and legal codes and ordinances. This law might act in direct conflict with that duty, that requirement. And you especially consider that you're going to have that protection when you're dealing with a healthcare provider, because you're there because of health risks. Your wisdom tooth extraction involves health risk, general anesthesia, oral surgery, other procedures where there is a heightened risk, but there's also a heightened duty where the law has imposed higher duties on healthcare professionals to not only provide a safe working environment for patients, but to provide informed consent that is much higher than the level you would expect as an employee going into your workplace, as a student going into your school, or in other, as a customer going into a retail business. Yeah. So the balancing now is being called into question. And one of the reasons that we're here is because that balancing test is being politicized by people like McConnell, by courts. Quick example, in Pennsylvania, where there have been a number of test cases about the governor's restrictions because of the healthcare emergency masks, social distancing, closures of some establishments that create especially high risks of disease transmission, those have been challenged, and so far the challenges have been rejected by the courts. Within the last week or so, one of the Pennsylvania judges, a federal judge has declared that healthcare emergency restrictions cannot supersede First Amendment protections. That's the balancing test. What's your take on that? Well, let me just make a couple of comments. One is, I think Ben's personal case really puts into issue this balancing that you're talking about, Chuck, is the balancing or the respect for the rule of law that must be protected by the judiciary. And you must give the judiciary and independence to rule on the issue of the protection of the traditional rights of consumers. Now, Ben brought out that this might be a violation of the state of Ohio Constitution. It may also be a violation of the federal US Constitution. And certainly a consumer in Ben's situation should have the right to bring a class action or an action to protect the rights of the traditional rights of the consumer. And let the judiciary rule on and give them the independence to rule on this issue of law. And if they are following the traditional rule of law, they should declare that this legislative action is politically or is just motivated by non-legitimate legal issues. So I think this is a classic example of the balancing of the traditional judicial independence versus political manipulation. And that does bring up the point of the, for example, and this is gonna sound a little cynical, Judge, but I can imagine a legislature passing a law that they know will be struck down, but it looks good for them for purposes of re-election in two months. Right, that's right. And in a very, very similar case, just was decided about a week ago in Florida where the Florida voters passed a state constitutional amendment to give citizens with felony convictions the right to vote. And the Florida legislature passed a bill saying, no, they have a right to vote, but they first must pay all fines, restitution, and fees that are pending before they are able to vote or register to vote. So the 11th Circuit Court of Appeals, as you know, ruled that the voters, the felons in prison, they must pay the fines yeah, before they register to vote. And this was strictly politically motivated because the majority of the 11th Circuit that ruled in that way were all Republican appointed judges and the dissent was all democratically appointed judges. And one of the dissenters said, if you require the felons to pay all their fines and so forth before they registered to vote, it's impossible because Florida does not have a database to track who was paying, who paid fines and who did not pay fines and so forth. So it makes it impossible for about 700,000 voters to vote and to even register to vote by this 11th Circuit Court of Appeals decision. So this was again, another example of the breach of the rule of law where political manipulation is affecting the rights of voters or citizens to vote. So there are a lot of different classic examples of intervention or encroachment between the legislative or the judiciary or encroaching on the judiciary independence. And then that is a violation of the rule of law that we're speaking of. Yeah. So in those two cases share a common thread, which is in each case, especially Florida, 65% of the voters have passed the constitutional amendment That's right. Enabling those who have served their felony conviction sentences to vote. They didn't say anything about fines or retribution or fees. The Republican control legislature basically overvote the will of two thirds of the Florida voters. And said, we're gonna make them pay those fines, even though, as you say, we don't have a database to be able to tell them what they owe. It's impossible for them to register. You know, it's those classic kind of facing people in front of catch 22s, even if they want to. I've heard that there are some NBA players or some professional players who said they're gonna pony up money that these people could pay. But then you get to the next point is, where is the database on how much XO's? You know, and so, and then they pay that. And then where is it registered at what point that they have duly paid so that they can have the proof? And then once they, how do they get the proof to do it? It's all this administrative games you can play. So, I'm sorry, it's after the point for you to register. I'm terribly sorry, but in 2024 or 22, there you'll be in good shape, you know? It's too late by that time. Hey, exactly. If it's any consolation, I like to say there's nothing new under the sun in the sense that there's a speech made in 1901 by a guy named, he was a Congressman, George C. White. He was the last black Congressman in the House of Representatives after reconstruction from the South. And he, it was called the farewell of the Negro to Congress, you know, and he made a long speech about the shenanigans that were run in his district, you know, where I don't know, there are 300 people registered and magically 800 votes happened against them, you know what I mean, this kind of stuff. You know, I mean, you would not believe what he details about all of the manipulations. It says now it's much more sophisticated, so to speak, and levels that are really extraordinary. I mean, I don't know if you saw that consultant who died and they found all these USB drives with all the ways he had done to calculate the shape of districts so that there would be Republican majorities, even though the population would have been majority, probably Democrats. So you'd have say 30% Republicans, but they'd have 60% of the seats, you know, and he was doing this kind of stuff, you know. You know, I mean, that's like a level of sophistication to these processes. And what I hope and what I see sometimes and definitely is that, you know, the judges catch this. I remember a number of times in Ohio elections, 2004, 2008, 2012, where there were, I think it was an issue about registrations would not be accepted because the paper wasn't, except the right thickness, you know what I mean? That kind of stuff and a complaint was made and saying, no, those people are registered, you know. That's crazy. Every kind of little sort of executive game to maintain power had to be countered by these legions of sophisticated election lawyers to go in and get a decision like in two seconds, you know. And it's, what a country, I don't know, you know. I wish there was another way we could do it, but. But the answer is we have to have citizens like you, Ben, that are willing to take action to stop this kind of intervention on encroachment on judicial independence or on encroachment on consumer rights, you know. And unless somebody has the courage and the fortitude to do it, it will just, like you said, just repeat itself and just carry on for years and decades, even centuries. Right. Well, you know, that reminds me of two things. One is I met some of the old World War II French resistance fighters when I lived in Paris for about 17 years. And I asked these guys, look, you only had a little gun, you know, the Nazis had, you know, Stukas and, you know, and Tiger tanks and, you know what I mean? I mean, they had this whole mechanized thing. You're out there in the middle of, you know, remote rural France, you're going to fight them. You know, I was like, why, you know, why would you do that? Right. And I'm expecting some kind of high level analysis from the guy. And the guy just says to me, this was not acceptable in France. That, he just, I'm sorry. You know, it's almost like in the land. This is my land. This is not possible that I can allow this kind of thing to happen in my country. And that was just what got him to do amazingly thing, amazing things, you know? Then the other thing that I thought of is this nurse that we heard about yesterday who's talking about it, some ICE detainment, the detention center where these women have had unconsented to hysterectomies and medical experimentation in Georgia. You know, she's, you know, she's, instead of staying quiet, she said, you know, there's something wrong here. And she was worried about human dignity. And she's come out in unbelievable what she described that happened to these women, you know, detained two or three years in those kind of facilities. What's it? I don't know, but the fact that she stepped forward, she's one of my heroes today, you know, just a licensed LPN, you know, nurse who just said, I'm not the highfalutin head of the thing and all that, but I know something's wrong here. You know what I mean? That, you know, that thing is really amazing. The lawyers can help with making it right. Speak for those kind of plaintiffs, but, you know. So let me ask you folks a hard question. Hey, we look at who's sitting at the decision-making table. Hey, in the executive, in the legislative branch, in the judicial branch, and I wanna borrow from our friend David Hooker at K.O. School of Law and Notre Dame and pose the question, until we have representative diversity at those decision-making tables, will we have equal rights under the law, equal justice under the law? What do you think? Judge, do you want me to put? No, go ahead. Go ahead, professor. Yes. All right, all right. So my personal view is kind of like what my ma used to say to me when Thurgood Marshall was on the Supreme Court, which is that she slept well at night knowing Thurgood Marshall was on the Supreme Court. My ma told me that, you know, and that kind of confidence in a system that she expresses, you know, with having a diverse group of people up there, with Sonia Sotomayor up there now, I'm Hispanic, Cuban, orange, and you know, that has an effect. Obviously women has an effect too. So I think, yes, we need to have a more diverse courts all the way along because people come from whatever their experiences are and it affects you, you're humans. And what you've experienced, what you've done, whether you were a corporate lawyer doing hostile takeovers or you were doing a neighborhood office law or something like that, you know, a neighborhood landlord tenant, whatever, it affects how you see what comes in front of you. So yeah, now that's one level is sort of to change the players. And then the other level is what's the underlying law? And that's the kind of thing we were talking about before because if you can change the players, but if the law is the way it is, the players who have to respect the rules, you know, stare decisis precedent and all that are gonna be applying law that is, they'll try to find their angles maybe, but it'll be difficult. So that's the other part of it too. But the more, well, to me, I've worked in arbitration a whole lot and the more varied the kind of people you have in the space, the more interesting ideas seem to happen with different ways of thinking. No, the group think gets to be less of a group thing. And I find that that tends to improve the discussion. At least that's my theory for my Facebook page. I do a public service announcement on my Facebook page that I never, what is it? I never unfriend anybody, but it's a full contact space. So you're all welcome in here, but do you say something? I'm gonna say something or somebody else will and it's full contact. And I enjoy that, you know, that I learned from people. And so that, you know, we're not in a group thing, I don't think, but I think more. That being the case, what's the impact of the Trump McConnell Federalist Society packing of the federal bench, all of the federal circuit court vacancies and now more and more of the district court vacancies with young white right-wing federalist society males? Well, I don't think very, well, first of all, let me say this, that one of my students who was a member of the federal society got me a membership for a year as sort of pulling my chain, so to speak. But I was like, okay, great. So I have a T-shirt from the Federalist Society. What I would say is that the impact is for the next 20, 30, 40 years, unfortunately in terms of the way the law will be looked at. Now I do think that when people have those kind of lifetime appointments, it has an effect on them. And that they may have been sort of, how can I describe it? Making a pitch a certain way so that they could get the ambition thing. But now they've got their ambition as a district court judge. They're the ones who wanna be at the court of appeals and the ones who wanna be on the Supreme Court, they're still in that ambitious group, so to speak. But the ones who are happy to be the district court judge or something like that. The cases will bend them. I think the cases will bend them in ways that maybe not as well as I'd like, but I have some optimism. I've seen, for example, the last 20 years on the torture cases at the US DC Circuit, judges that I would have thought of that would be kind of, I don't know, very conservative have ended up becoming kind of more cynical towards the executive's statements to them after having dealt with all these things that have been said about the detainees at Guantanamo and all that. And that's been a healthy development in some of them, so. But it's a shame, you know, it's a shame that you can't find any minority nominees who, I mean, black, Hispanic, Asian, Native American, that with all the power of the federal government, you can't find any, when you look at the nominees, there's like all these white guys, you know, and young white guys. And it's appalling, really, because I know it's a signal being sent to people and all that, but it's just sad, it's really quite sad. And there we are, that's what they wanna play. But we'll see, we'll see how it plays out. Any comments to that is I totally agree. I think diversity is a very, very critical factor on our bench as well as just diversity in terms of representation. What can we do about it? I think we just gotta change the players and change the leadership so that the leadership will respect the rule of law. They will appoint people of diversity onto the bench as well as to other commissions, et cetera. But I think basically we need to keep on fighting and having some trust and confidence that some of the appointees, they will respect the rule of law and they will be, at least disregard any kind of political manipulation of the rule of law. And if they do, then at least we have a core of judges that will still be an independent three eyes, right? Three eyes, judicial independence, integrity, and what was the third? Impartiality. Impartiality. Then they will have a core of judges that will respect the three eyes. Okay, gentlemen, thank you so much for your time today. Great note to finish on, a message to the electorate. Please keep in mind the importance of that judicial independence and impartiality, the challenges and threats to it, and the countermeasure that's strongest of all is your vote. Thank you all. I feel inspired. Yeah, I'm ready. Thank you. We're together. Thank you, professor. Thank you, Josh. Thank you again. Okay. Okay.