Appeals Court Claps Back at Scott Lively’s Anti-LGBTQ Advocacy in Uganda

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By Vito John Marzano. This article appears in the Summer Issue of LGBT Law Notes, the most comprehensive monthly publication covering the latest legal and legislative developments, here and abroad. Subscribe:

In June 2017, U.S. District Judge Michael A. Ponsor (D. Mass.), granted Scott Lively’s motion for summary judgment dismissing the claims asserted against him, but described his anti-LGBTQ advocacy as “crackpot bigotry [that] could be brushed aside as pathetic, except for the terrible harm it can cause.” Sexual Minorities Uganda v. Lively. The court further referenced its prior order rejecting a motion to dismiss, which stated that Lively’s advocacy in Uganda “constitutes a crime against humanity that unquestionably violates international norms.” Notwithstanding his prevailing in winning summary judgment, Lively appealed, arguing, among other things, that the court erred when it included certain unflattering statements about him in its order.

By way of background, Lively employs insidious anti-LGBTQ rhetoric in advocating, domestically and internationally, for, among other things, the criminalization of homosexuality. He has published numerous books that blame LGBTQ persons for the Holocaust and slavery, or any other ailment facing society, and argues that “the Bible treats homosexuality as a form of rebellion against God even worse (from God’s perspective) than mass murder.” Lively advocated these positions in Uganda at conferences in 2002 and 2009, and for a number of years, he assisted the Ugandan anti-LGBTQ movement as they worked to pass the Anti-Homosexuality Bill in 2009. Said bill sought to impose the death penalty for the crime of aggravated homosexuality and to criminalize pro-LGBTQ advocacy in the country. Although the Ugandan High Court issued a permanent injunction against the measure in 2011, a number of LGBTQ Ugandans, including plaintiffs in this case, were forced to leave Uganda or hide.

As a result, in 2012, Sexual Minorities Uganda (SMUG) commenced suit against Lively in a U.S. District Court in Massachusetts, Lively’s home state, alleging that Lively’s advocacy resulted in crimes against humanity in persecution based on individual responsibility, criminal enterprise, and conspiracy in violation of 28 USC § 1350, the Alien Tort Statute (ATS). SMUG further alleged state causes of action for civil conspiracy and negligence. In August 2013, Judge Ponsor denied Lively’s motion to dismiss. After discovery concluded, Lively moved for summary judgment on the basis that the court lacked subject-matter jurisdiction over the ATS claims; that the court lacked diversity jurisdiction for the state law claims; and that the court should decline to exercise its supplemental jurisdiction to address the same. The court granted Lively’s motion, dismissing the ATS claim for want of subject-matter jurisdiction and declining to exercise its supplemental jurisdiction over the state-law claims.

On August 10, 2018, the 1st Circuit Court of Appeals dismissed the appeal while affirming the lower court’s judgement. The court disposed of the appeal under the principles of judicial estoppel, and recognized the lower court’s broad discretion to decline to exercise supplemental jurisdiction.

Addressing Lively’s “most loudly bruited claim of errors” concerning certain unflattering statements from by the district court, the 1st Circuit panel found, in an opinion by Circuit Judge Bruce Selya, that those statements lacked any analytical foundations on the summary judgment order, constitute dictum, and inhere no binding or preclusive effect, thus depriving the court of appellate jurisdiction.

The court explained that the summary judgment order simply dismissed the action and does not include any adverse findings. The 1st Circuit rejected Lively’s argument that those statements harm his reputation, holding that fact-finding and opinion writing by a lower court does not furnish an independent basis for an appeal. It followed by ejecting Lively’s claim that the lower court addressed the merits of plaintiff’s ATS claim as “simply wrong.” Judge Selya explained that a decision finding that the court lacks subject-matter jurisdiction renders other parts of the opinion a nullity without binding effect, but even so, the lower court focused on the issue of whether sufficient evidence had been discovered regarding Lively’s domestic conduct, not on his purported violations of international law.

Lively next attempted to argue that the lower court erred in dismissing the state law claims without prejudice for lack of diversity jurisdiction, because it could have applied diversity jurisdiction. The 1st Circuit adopted SMUG’s argument that judicial estoppel precludes this contention, noting that “there is every reason to invoke judicial estoppel–and no reason to discard it.” In summary, judicial estoppel, an exceptional action and sparingly used, protects the integrity of the judiciary by preventing a party from playing fast and loose with the courts to their benefit by taking inconsistent positions to their advantage.

As understood under the 1st Circuit’s development of the doctrine, the court found that Lively “all but concedes that his position on appeal flatly contradicts the position he took below,” in that he described SMUG’s assertion of diversity jurisdiction as a myth in his answer to the complaint and argued the same in his motion for summary judgment. As such, Lively’s own conduct satisfied the first criterion. Further, applying the same facts, the second criterion required no considerable discussion as the lower court implicitly adopted Lively’s arguments with respect to the same. Next, the court found that Lively obtained a significant benefit from his denial of diversity jurisdiction, as it terminated his five-year-battle defending a long federal lawsuit and deprived SMUG of its preferred forum, thus satisfying the final criterion. This neither provided an undue benefit to SMUG nor did it unduly disadvantage Lively, as both remain free to litigate the issue, and to raise the same arguments and defenses, in state court. Finally, the court utterly disregarded Lively’s position that judicial estoppel finds no home in deciding subject-matter jurisdiction. This presented a more nuanced resolution–while it cannot create federal subject-matter jurisdiction, it does apply to prevent a party from attempting to assert the same after previously denying it. Hence, the court concluded that insisting that Lively live with the consequences of his prior representations does not result in unfairness, as he owed a duty of candor to the lower court and he cannot adopt a contradictory position simply because his interests have changed.

Turning to Lively’s fallback argument regarding supplemental jurisdiction, the court acknowledged that it had appellate review over this issue as the question concerns whether the lower court should have dismissed the state law claims with prejudice. The court reasoned that a prevailing defendant suffers a cognizable injury when the decree declines supplemental jurisdiction and dismisses the claims without prejudice, because the party faces potential litigation in state court. When a district court confronts this issue, it considers a number of factors — namely, judicial economy, convenience, fairness, and comity — and may consider whether there is a presence of novel and sensitive issues of state law. Judge Selya acknowledged that the lower court properly weighed these factors and concluded that the state-law claims raise “sensitive and undeveloped questions of state law.” Hence, the court reasoned, “[i]t is clear beyond hope of contradiction that a district court, upon appropriately declining to exercise supplemental jurisdiction, must dismiss the unadjudicated claims without prejudice, not with prejudice.”

With respect to Lively’s final claim concerning the lower court’s prior order denying his motion to dismiss, the 1st Circuit explained the well-established precept that appellate jurisdiction is limited to final orders and judgments, and that interlocutory orders merge with the final judgment unless that interlocutory order has no impact on the final judgment. The prior order had no effect on the ultimate disposition of the matter, and therefore, the general rule of non-reviewability precluded appellate consideration.

The court’s decision not only meticulously slapped down Lively’s appeal, it goes further to employ an earned patronizing tone to explain basic doctrines of appellate review and civil procedure to Lively and his attorneys, the Liberty Counsel.

Sexual Minorities Uganda is represented by Pamela C. Spees of Lake Charles, Louisiana, and Jeena D. Shah, Baher Azmy, and Judith Brown Chomsky for the Center for Constitutional Rights.

Executive Director, LeGaL @lgbtbarny. Attorney promoting justice in & through the legal profession for the #LGBT community. 40 Best LGBT Lawyers Under 40.

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