Hobby Lobby and Sterling controversies

Jeff Norman, The Norman Report. Separately, and tonight we're going to deal with two legal controversies. The Hobby Lobby case. Hobby Lobby, it always sounds silly saying that. Never heard of Hobby Lobby before this big controversy. And also we're going to deal with the Donald Sterling case. Well, not just the Donald Sterling case, the Shelley Sterling case also. Sterling versus Sterling. Our first guest is really the perfect guest. Guest to start with because he really kind of exemplifies a very strong feeling we have. And it's going to be kind of a key part of our guiding philosophy here. Which is that there's far too much partisanship in the world. And people are always spewing these knee-jerk opinions. And really showing what I consider to be a very silly type of allegiance to political parties or ideology. Or this cause or that cause. Instead of really thinking and talking in the world of analysis. We need much more analysis and a lot less emotionalism. That's really the way to solve problems. And Professor Brett McConnell, our first guest, teaches and writes in the areas of business associations, corporate finance, law and economics, securities regulations, mergers and acquisitions, contracts and legislation. And he does all that. He does all that at the University of Minnesota Law School. And on July 10th, the Star Tribune published a commentary he wrote. Entitled, Ideological Blind Spots. The Left on Hobby Lobby. And basically, he agrees with the Hobby Lobby decision. And that is sort of a rare position amongst liberals. And he identified himself as a liberal in this op-ed. So let's go right now to the professor. From Minnesota. From Minnesota, where it's two hours later and on a school night. Thank you very much, Brett. How are you doing? I'm fine. And thanks for having me on, Jeff. Thanks for staying up late on a school night. If you want, I'll write you a note for tomorrow. We're on summer vacation now, so I'm fine. Oh, all right. Then let the good times roll. We had an interesting email exchange. And we were talking about Citizens United a little bit in that email exchange. And you, in your op-ed, you made reference to John Oliver. So why don't we, before we talk, let's run a little bit of that John Oliver commentary that you made reference to in your article. Hobby Lobby's owners say that Obamacare's contraception mandate conflicts with their Christian faith. Which means the whole case boils down to one fundamental question. Can a business of four properties... ...for a profit corporation claim it has freedom of religion? Do for-profit corporations have religious rights? Do corporations have religious liberties or do just individuals? Are corporations a person able to exercise religious rights? Uh, no. No, they're not. Okay, are we done? Are we done here? Are we done? I feel like we're done. Apparently we're not done. Because thanks to the Citizens United ruling in which corporations were deemed to have the same free speech rights as people... ...it is now a possibility... ...they may get religious rights as well. I hate that corporate personhood crap. I don't know why I played that. It put me in a bad mood just watching it. But, you know, that's sort of the unfair advantage that comedians have... ...is that when they're funny, they can get by with a false premise. And I think, you know, Jon Stewart and Stephen Colbert are great satirists. And I think they sort of were skating by on a false premise... ...when they were doing their pack shtick all that time. And sort of John Oliver's doing the same thing here, Brett. To what degree is corporate personhood really an issue in the Hobby Lobby case? Well, it's not really. It is actually the words in the statue are persons, so they are interpreting the word person. But in law, when we say that a corporation is a person for many purposes... ...that doesn't mean we're saying it's just like a real live person and has feelings... ...and you can touch them like a real person. We're not saying that you're a real live person or anything like that. We're saying that for many legal purposes, it's useful to treat corporations... ...as having some of the same rights and responsibilities as real persons do. They can enter into contracts. So if you work for a corporation, you have an employment agreement with them. You can enter into contracts with them. If they violate your contract, they can sue them. You're treating the corporation like a person for those reasons. And then the question in the case becomes, for the purposes of protection... ...of religious liberties, do we say that corporations are able to assert... ...some of the same rights that we say real persons can do? And that's really the issue. It's not saying, are they really persons? Well, the other thing is I don't think it was even that much of an issue in this case. I mean, correct me if I'm wrong, but the default position is sort of... ...corporations have the same rights as individuals. There are just a few exceptions. And when there are, there better be an explanation for it. Now, for some reason, a lot of people... ...who don't dig corporations very much seem to have it the other way around. And I don't see that there was really much of a reason to have an expectation... ...that the... What's the act called? The Religious Freedom Restoration Act? That's right. RFRA. Yeah, there was RFRA. There was no reason to expect that that does not apply to corporations, correct? That is correct. There's actually something called the Dictionary Act that answers this question... ...that says... ...whenever a federal law uses the word corporation... ...uses the word person... ...it usually applies to corporations unless there's good reason to say something else. Yeah, and that act, you made reference in your article also to who passed it. President Clinton was in office at the time. It was passed nearly unanimously. I think only three legislators voted against it. And it's perceived... In the Senate, it was 97 to 3, and in the House, it was unanimous... ...which is almost impossible to believe, given... It's hard to imagine the House of Representatives doing anything that's unanimous nowadays. Right. So all these liberals, I think, need to go into psychiatric care... ...when they claim that it's, you know, some kind of an expression of right-wing ideology. I don't even think they understand the court's role, let alone what this decision is. I mean, the court's role was to interpret... How do you say it? RFRA? RFRA, yes. Yeah. The Freedom Restoration Act, RFRA, or RFRA for short. Right, and so it's their role to interpret that act, and interpret they did, right? They did what they were supposed to do. That's right, and I think they interpreted it correctly. And the way you finished your article, I thought, was a Hall of Fame line. You said the Supreme Court's five conservatives have delivered a profoundly liberal opinion. Too bad so many liberals don't seem to realize it. That's right, because the idea... The underlying RFRA, the Religious Freedom Restoration Act, is that we want to tolerate people who have different points of view. We want to create room for them, flexibility in the law, for people who have different points of view. And I think that's a deeply liberal position. And they don't realize it. So you claim to be a liberal, but here you are criticizing them. Have you found yourself invited to any parties hosted by liberals since you published this op-ed? Not in the last week or so. Coincidence? I think not. My friends around the law school are all quite supportive, and they're mostly liberals. So some people do get it. Now, seriously, are they supportive in the sense that they're your friend, or you really had a substantive conversation with them and they agree with your point of view? Some of them do, some of them don't. There are some who agree quite strongly and some who disagree. It's mixed. But this is, of course, talking with law professors, so they're more used to dealing with... with these kind of issues. Yeah, I mean, they don't freak out when there's disagreement. And there's plenty of people who disagree with you. And I just want to point out to our listeners that we did try to get somebody who disagrees with you. Dahlia Lithwick of Slate I contacted, and she wasn't available. Sonia West from the University of Georgia told me she wasn't available. And I also invited Kent Greenfield at Boston College at your suggestion, and he did not reply. So maybe they all have good reasons. But... I just want folks to know that we did try to get the opposing view. And it's kind of weird we were unsuccessful because there's no shortage of people disagreeing if you just go on almost any website where this issue is being discussed. But we couldn't get them. You never know what's going on with individual people. But there are certainly people who disagree with me on this. Yeah, they do. So why do you think so many liberals are alarmed by the Hobby Lobby decision and just, you know, acting incredibly indignant? And why are you outraged that this now imposes some horrible burden on women? Well, you know, I think part of the reason is it comes in the context of Obamacare and abortion. And there's so much energy around both of those issues. And people just are taking sides, are used to taking sides on those issues. And I think in part people haven't read, many people haven't read the opinion. And it hasn't really sunk in how narrow the opinion is. If you really look at what the court says the government can do instead of the mandate that it has right now, it actually should lead to employees still getting the contraceptive coverage just through a different funding mechanism than they have right now. So I think people don't realize how narrow an opinion it is either. Right. So if anybody who disagrees, if you agree, you can call in. I'm not sure if I'm going to be able to answer that question too, but it would be especially interesting to make sure we have the opposing view covered here. If anybody wants to call in and speak to the professor, the number is 800-893-9562. We have a little technological challenge to put the calls through when there's another person already on the line. But we'll try to overcome that or at least tolerate it. The number again is 800-893-9562. So, Brett, this is the first time we actually have spoken to one another, other than our own. Right. Right. Rather than our email exchange. And you seem like a very nice polite man. I, on the other hand, can be nasty. And... Excuse me...? Excuse me...? Excuse me...? Excuse me...? Excuse me...? Excuse me...? Excuse me...? Excuse me...? Excuse me...? Excuse me...? Excuse me...? Excuse me...? Excuse me...? Excuse me...? Excuse me...? Excuse me...? Excuse me...? Excuse me...? Excuse me...? Excuse me...? Excuse me...? Excuse me...? Excuse me...? Excuse me...? Excuse me...? Excuse me...? Excuse me...? Excuse me...? Excuse me...? Excuse me...? Excuse me...? bit to criticize other people who are indecent. And when they do that, it's an opportunity to present themselves as more decent by comparison. And I think that really applies to this issue. There are many people who are just very eager to present themselves as sticking up for women's rights. And you know what? I stick up for women's rights, too, but only when it's necessary. I don't call a firefighter to put out a fire unless there's actually a fire. And I think that's kind of what's going on here, is that people are so primed to stick up for women, they just assume that these Supreme Court justices are anti-women. And if you read the opinion, and tell me if you agree, Brett, they pretty much acknowledge, do they not, that women have the right to any kind of contraception they want covered by the ACA at no extra cost. Right? That's absolutely right. They say that getting access to this health care is actually compelling governmental interest. That's part of the test under the act, is is there a compelling governmental interest. And they say there is. And they simply say that there are other ways to get there besides what the act does and the other ways won't infringe on religious liberties in the same way. Right. And that's what I meant before when I talked about their interpretation. Right. And that's what I meant before when I talked about their interpretation of RFRA. And one of the components of the three-part test, and this is the key component in the case, was to make sure that when religious beliefs are burdened, it's done in the least restrictive way possible. And these judges said, well, hey, you're already doing a less restrictive way with non-profits, so it's kind of hard for you to argue that this is not a good thing. Right. Right. Right. Right. Right. Right. Right. restrictive and that way is well you just simply have the government pay for it or insurance companies now let's be fair though Brett do people have a legitimate concern about whether or not the I guess the government if the government pays for it directly it would have to be approved by Congress but is the assumption that if we have insurance companies do for it they won't object and there's really no problem or is there a chance they will object it's seen as I understand it so I you know I could be wrong about this as I understand it the insurance companies are they were consulted when they when they did this accommodation for other nonprofit corporations and they're willing to do it the idea is basically for them it's cheaper to cover the contraceptives and have more women become pregnant because the pregnancy costs are higher for them than the contraceptive so it looks like the insurance are willing to do it one of the issues that that has come up is that the insurance companies are willing to do it because they're willing to pay the rent so the other issue that comes up on the availability of this accommodation is that the accommodation itself is being challenged by some of those nonprofits that the law allows to have that accommodation so one of the things the other issues that's being debated here will the court find that itself invalid under reference if that happens then they're pointing to that as something that the government should do will look Just so people understand, what we're talking about is the exact way that employers notify the government that they object on religious grounds. Exactly right. Exactly right. So there's this other case that came down four days after Hobby Lobby called the Wheaton College case that has people up in arms again. But I think people are not realizing that that is a very preliminary stage, and the court has not decided that issue. Right. They're accusing the— The court may say that the people who are objecting on religious grounds to providing this coverage, the way they have to notify the government may be different than the way the law works. But we'll see what the court does with that. Right. And a lot of these same alarmists that we were talking about who objected to Hobby Lobby then got out of the court. They got all revved up again about this ruling, and they're claiming that the court is being hypocritical because there's still some question about the exact way that employers will notify people. But to me, it's just like one of the bloggers for SCOTUS blog—I forgot what his name is, I apologize— had a great line that they're like quibbling over which piece of paper is going to be used. Why does it matter to you so much what piece of paper is used to notify the government? That's not hypocrisy. If that's all that case comes down to, that's going to be a trivial case. I think some people are worried that they're going to strike down the whole use of third-party insurers to pay for the contraceptives. And if the court went that far, it would create some more problems with the Hobby Lobby case. But they have not gone that far at all so far. There's no indication there, right? They won't. Yeah, right. I mean, seriously. It's something. It's something more than interpreting the law, it's serious. You don't have expertise in psychology, do you, Brett? No, I don't. I'm not a psychologist. I'm an economist by training, not a psychologist. Right. It sounds silly, but I swear I'm being serious. The thing is, I'm an idiot, basically. I mean, really. I'm not a lawyer. I've never even taken a single law class my whole life. So I don't understand why these people who are legal experts don't see that. I mean, am I judging them too harshly? What are the legal issues? I mean, the legal issues are complicated on some of these areas. Some of the procedure behind the Wheaton College case is really arcane and beyond me as well. So there are people more expert than I on that case. I think more than that. To me, it's more sociology than psychology. I think people have their own little worlds that they listen to and people they talk to and they're sort of echo chambers that, you know, these same few TV shows and blogs that they all read and they all have the same attention. And they find it hard to believe that someone would differ to them. And it happens on both the left and the right. And in this case, I think the left has got caught up in its own little echo chamber of everyone saying this is outrageous. Right. And it seems that you more or less agree with me that the same applies to the way they have reacted to the Citizens United decision. Again, they characterize it as an expression of right-wing ideology, completely ignoring the fact that they're not going to be able to do anything about it. They're going to be able to do anything about it. And it seems to me that the same applies to the fact that people like Eliot Spitzer and Glenn Greenwald and a good part of ACLU's lawyers agree with it. So it's kind of weird when you have people who aren't right-wingers agreeing with it to call it a right-wing decision. Yeah, I'm of mixed minds on Citizens United, and I'm not sure in the end where I come down on that. But everyone is, you know, again, you see the same thing. How could you treat corporations as people with those same rights that persons have? But clearly corporations do have some free speech rights. That's just, if you think about the issue for a while, it must be true that corporations must have some free speech rights. For me, it becomes a tough issue when you ask about campaign finance law, because I do think the court's a little unrealistic in the way it thinks about campaign finance laws at some point in that opinion. So I just think it's a very, very hard question with strong competing values on both sides. You're just saying that so you get invited to those liberal parties. Come on. Now, what's your beef with the court? What were you just referring to? With what? What were you just referring to when you said you don't quite agree with the court? Well, oh, in Citizens United. So there's a part of Citizens United when they look at, is there a compelling government interest that would justify these laws? And the main one that's given is that campaign finance of the type they're talking about will lead to people unduly influencing. Government or lead to the perception that the government is being corrupted by all the money that's being spent in content finance. And they give that very short shrift. They say, oh, there's people aren't aren't worried about all the money being spent on politics. They don't think that's corrupting politics. And at that point, I have to wonder, are they really paying attention to the way people are looking at this? Because clearly are a lot of people are worried about all the money that's going into campaign finance. And they do see it as having. Some corrupting going on. So that's the reason why you might want to legislate that the court, I don't think, is adequate. Well, no. Yeah, I agree with that. But see, that's about whether or not it's reasonable to worry about it. It doesn't say anything about whether or not the remedy could possibly be fair and or effective. And I think it's just obviously impossible. And so we don't even need to have a philosophical or constitutional argument. It's just impossible to regulating. What? People. Spent. On expressing an opinion is like trying to regulate happiness. It just happens in so many different ways that you can't. No legislator has the ability to get at it. How can you legislate influence? Anything anybody says about what's going on in the world could influence elections. How can you measure what's being spent or what kind of an opinion is acceptable versus not? It's impossible, isn't it? No, I agree with you. I think that's my. I think that's my ultimate position there as well. But that doesn't make the laws unconstitutional. It just makes them ineffective and futile. But I do think most campaign finance laws are in the end futile. They don't work. All right. The reason you just gave. I'm going to use you agree with me several times. So you are now my new best friend. I think we should look into sharing a summer home. And I want to nominate you as the MVP of the week because this country needs more people who depart from their ideological inclinations and just focus on the issue. So I salute you, Brett. And I want to thank you for joining us tonight. I hope we get the opportunity to continue this discussion on another time. And thank you very much for having me. I appreciate it. I enjoyed it. Okay, great. And if anybody wants to follow up on this, our website address is NormanReport.com. Phone number here is 800-893-9562. Next up, we'll be dealing with the Donald Sterling case and a blogger who calls himself Twist in Hook. We'll take a break. We'll be right back. I'm banning Mr. Sterling for life from any association with the Clippers organization or the NBA. I'm also fining Mr. Sterling $2.5 million, the maximum amount allowed under the NBA Constitution. This is a swift, unprecedented punishment from the NBA and one that we can all agree will affect Donald Sterling very, very little. And if we're able to force him to sell the team, that will just make him even richer. We looked into it. And it turns out there's very little you can do to punish an old, rich white man. Really? All we can do is take solace in the fact that he is very old and he is likely to die very soon. Isn't that a nice thought? No? Well, it's all we've got, really. Hopefully when he dies, just a little bit of racism will die with him. And maybe as more and more old racists die, racism will die with them, too. Probably not. Probably not. Probably not. Probably not. Probably not. Probably not. Probably not. Probably not. Probably not. Probably not. Probably not. "' "' "' I know that all of you, from millionaires to Russian oligarchs, have some undoubtedly vile opinions. You know why everyone hates Chick-fil-A so much? It's because the owners couldn't stop running their mouths. You think that the Bible thumpers over at In-N-Out don't have some disgusting opinions? We don't know, because they keep their mouths shut and sell hamburgers. Be In-N-Out Burger, NBA owners. Thank you, and I'll take any questions. Howie Bush, SportsCrunch.biz. Which celebrity response most impacted your decision today? Frankie Muniz. Okay, funny. There's another piece of comedy that's just putting me in a bad mood. But we tried to find something that fits the topic, and that's what we came up with. Twist and Hook is an attorney specializing in elder law. And we're trying to get the Chris Rock joke that he told about Donald Sterling, so we'll probably be able to play that in a couple of minutes, which I really think is a great joke. Twist and Hook is a blogger. He uses a pseudonym. His practice includes estate planning, administration, conservatorships, guardianships, elder abuse, and Medi-Cal eligibility. He blogs for Golden State Blogs, one of more than 300. He has over 300 websites operated by SB Nation, a very popular network of sports blogs. And Twist and Hook has lately been guest blogging about Sterling versus Sterling, the case pitting Donald Sterling against his wife Shelly. He's been guest blogging for Clips Nation, a blog that focuses on all things pertaining to the Los Angeles Clippers. And we're linking to it at NormanReport.com. I'm referring to Twist and Hook as though he's a male, but I'm referring to him as a male, but I don't really know that for sure. Are you a male? Yes. Do I call it, may I call you Twist, Mr. Hook? That's fine. That's fine. I appreciate the sort of oddness of the situation, and I appreciate you humoring me. Well, that's okay. You know, it's not exactly uncommon for bloggers to use a pseudonym, and I hope you don't think I'm prying or being judgmental. I'm just curious, what's behind the use of the pseudonym? Do you mind telling us? Well, I work for a smaller firm, and I, you know, have a reputation to uphold, and the legal field is not one that's known for its, you know, approach to new technology. So I just don't want somebody to think, oh, that's somebody that I can't work with, or that's somebody that I'm not going to retain as an attorney, because I read something online that he said, or something along those lines. Oh, I see. All right. It seems to me it could work the other way, too, though, that it could lure in business for you, no? I guess so. I'm doing fine enough as is, and it seems... Okay. It's sort of like if it isn't broken, don't fix it sort of situation. I can appreciate where you're coming from on that. You know, I'm just trying to support my family and my child and not add any extra elements of risk or complications if possible. Right. Okay. No. I'm just saying, I'm happy to answer the question, and I just wanted to note that the name of the site is California Golden Blogs, and that's with SB Nation. Oh, okay. I said Golden State Blogs. Right. Sorry about that. Yeah. No worries. Okay. Thank you for that correction. And it all links from the guest blogging where you've been doing, and that links from NormanReport.com, so people can get to it there. Okay. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. me neither exactly now I've been saying this all along and people think you know I'm in the Ku Klux Klan or something and now that Chris Rock said it it's funny but that really is all he said he didn't say anything about not wanting blacks to attend games it was all in the context of a jealous argument with his girlfriend and that's where I'm coming from Twist we had an interesting exchange over the past couple of weeks while you were guest blogging and I just think that Donald Sterling is the victim of a lynching so to speak and I think I may be the only person in America besides Chris Rock who feels that way but and the other thing is I think we should all be concerned about elder abuse and this is one of your one of your the areas of your practice that you focus on so so should we be concerned about what it takes for someone like Shelly Sterling to take control away from Donald Sterling because the same thing could be done to somebody else who is not unpopular like Donald Sterling it could be done to a sweet old guy or a sweet old gal should we be concerned about that well I'm happy to talk about this in a in a general sense in the same sense that the not as much in specific to the Sterling situation, the joke that you just said, because certainly everyone's entitled to their own opinions as to whether or not he should have been removed as owner or whatever. I'm going to touch on that. In regards to whether we should be concerned about people being removed, I think the key aspect here is understanding that a trustee is legally required to act in the best interest of the beneficiaries. So if you do remove a trustee, a sweet old man, and I remove many trustees. I, in fact, was working on several cases today that removed trustees. You still bring in somebody else, whether they're a family member or a professional, and they're legally required to work in the best interest of the beneficiary, which here would be partially Donald Sterling. So. So an argument that hasn't been raised by Donald Sterling that might have helped would be that even if he was appropriately removed, Shelley is not acting in his best interest as a beneficiary and she should be removed. But they've never really raised that argument. Wow. See, this case is so complicated. It has so many layers to it and it's so unpredictable. I really appreciate the hard work you've been doing. And that's why I went to. The blog. I was really hungry for some solid analysis. It seemed to me that almost every piece of so-called analysis was heavily tinged with anti Sterling bias and anti Donald Sterling bias, that is. And I think that you are one of the exceptions. You really were operating in the realm of analysis. And you mentioned that. Thank you very much. Yeah. Well, thank you for your hard work. And I don't know. I. This might be another delicate question. Are you paid to do this? Because I know a lot of people who blog aren't paid. It's kind of a labor of love. And and other people are. Is that. Am I asking an improper question? I'm happy to answer any question that you asked. In regards to the work that we do for the for my main site, California Golden Blogs, we do receive money. We actually donate all of the net proceeds because we actually have to pay taxes on it. But after the taxes are taken out, we don't all donate. But how can you get your feelings recognized? I was in when I was in college, and many of my co-writers were also. As for the Clippers stuff on ClipsNation.com, I'm just doing that because I'm a nerd, and I love talking about this stuff, and it's really insane to see the sort of thing that I deal with on a day-to-day basis. We're at large, and everyone's talking about it, and the issues for a billion-dollar trust are really not that different if I'm dealing with a $200,000 trust. So that stuff I don't get paid for at all. Right, okay. So I definitely salute you for your passion, and this is a great outlet for someone like you. You call yourself a nerd. I get that, but I would use a slightly more favorable characterization. And you were pretty kind to me, and kind of like you are right now, you just accepted that I was a sincere person who disagreed, and maybe you were a little bit more sincere. Yeah. Maybe not an idiot, but I was getting some flack from some of the other people there, and they're like immediately using that overused word, troll. And actually, you have a little catchphrase that says, in the game of trolls, you either troll or you die. What is this obsession with trolling? I mean, trolling means that you just are trying to be annoying. Isn't that what it means? Well, I kind of make a differentiation between good-natured and bad-natured. I like to, me and my friends like to troll each other, just joking around and making fun of each other, you know, and it doesn't cross a line that we would feel uncomfortable with. Sometimes online, you see somebody from, let's say, a Cal site go to a USC site, or vice versa, or UCLA, and they go there for the purpose of, you know, just talking smack or whatever. Then they go, oh, that guy's just trolling us. He's trying to get attention, or he's trying to give an emotional response. And maybe people thought that that's what you were doing. You know, I'm open to all the different thoughts. Yeah, except, like, I'm citing statutes and quoting from court papers and this and that. I mean, it doesn't mean that I'm any kind of genius or anything, but that's sort of an indication that I'm not a complete moron who's just there to insult people. You know, to me, I was pretty obviously making an honest argument. So, anyway, I'm not arguing with the guy who mistreated me. You're the guy who mistreated me. You're the guy who treated me well. But you might have noticed some of those other comments, like from that Boltzdoltz guy. That's what I'm talking about. And also, I'm not sure who did it, but I logged on one time, and there was a message from the operator of the blog or something that warned me if I continue to troll or whatever, I will no longer be allowed to post. Well, I don't know anything about that. I have no powers over there. They just let me write. They just let me post, you know. So, I just don't know the situation. I'm sorry. No, that's okay. I don't blame you. I'm just sort of curious about the whole attitude. You know, it's kind of obvious what Clips Nation is, but I didn't even get it at first. To me, it was just a name, and I didn't even pay attention to its reason for existing. But it shows you how oblivious I can be. But it took me a while to realize that this is for Clippers fans. The whole thing is Clips, as in Clippers. Yes. Yeah. So, whatever. I just was surfing the net, and I found it. So, I mentioned that I refer to statutes and court papers. And it's not exactly in your area of expertise, but in Donald Sterling's lawsuit against the NBA, he cites California Penal Code Section 632, which prohibits the use of an illegally recorded conversation as evidence in any proceeding, not just a court proceeding. And the argument that he or his lawyer is making is that the NBA's investigation constitutes a proceeding. And so, therefore, they can't use this as evidence. Now, I don't know if that argument has merit or not. But what really bothers me is the fact that no legal expert has even addressed this. And this is the plaintiff's argument. So, I don't know how people who are otherwise interested in this argument are going to be able to use this argument. And I don't know how they can be not interested in what the plaintiff is arguing. So, that's an example of what I mean by anti-Sterling bias. They are so against this guy that the argument he, the plaintiff, is making is just simply ignored. And I know that's not your area of expertise, but I wonder if a little bit of the same thing might be happening in the area of probate law as well. Is Donald Sterling's argument being analyzed? As much as it could be? Well, I think he's not doing himself any service. Or he's doing himself a disservice because his attorneys seem to be jumping from tack to tack and then sort of backing down. You know, like I said, I think that if he had come with an argument of that she, Shelly Sterling was not acting in the trust's best interest and she needed to be removed, that might be a bit of a stronger argument. He's trying to argue that these doctors weren't appropriately acting or that they released the health information inappropriately. I don't know if those are winning arguments, and he doesn't do a very good job on the stand at presenting his own case. Right. Well, Dr. Booze, as I call her, she's really the questionable one, I think. There's three doctors, but one of the doctors, Dr. Reed, only reviewed the other two doctors' reports and provided analysis. That doctor, I don't know if that doctor's male or female, never actually analyzed and personally evaluated Sterling. So there's only two doctors, a Dr. Spahr and a Dr. Platzer. Right. Dr. Platzer is Dr. Booze. She claims she only had half a glass of wine, though. But whatever the exact quantity is, it is kind of weird, I think, to show up at somebody's house when they're not expecting you and then to go out partying at the polo lounge afterwards. The explanation they gave sounds sort of plausible. I do admit that. But the whole situation is kind of weird. And the issue that you have been focusing on, but by the way, before I ask this question, I want to clarify something. You have not been in the courtroom, right? You told me in the email you're not even in the L.A. area, right? So you have not been in the courtroom, correct? That's correct. I live in the northern California. And although I've been in many probate courtrooms, including yesterday, today, and I'll be there tomorrow, I have not been in the particular one here. So I can only follow it either by reading the filings that they've made public or have been provided to me, B, reading the news reports, or C, following it live on Twitter. Okay, so you haven't seen, I don't even know if this is published or available, the transcripts of all the testimony? Is that even available to the public or no? The transcript of Donald's first day was made public, and I skimmed through it, but it's just so long. You're not entertained? He's a performance artist. He's funnier than Chris Rock. I love that he was, this didn't get much attention. I saw somebody tweeted something about how he took out a Kleenex and started dabbing his eye to mock that, what's his name, Burt Field. Burt Field has this reputation for making witnesses cry. That's hilarious. Well, I would have loved to have questioned him. You know, Dirk Field has a billion times the experience that I do. He's like 50 years older than me. So I'm not trying to say that I'm some amazing guy when it comes to questioning witnesses, but it just seemed like it would have been really fun because Donald Sterling seems like a really fun, challenging guy to question up there on the stand. Yeah, yeah, and he has a reputation for this, that's been going on for years. People are trying to use this as evidence that, you know, he's losing his mind. But if you look at this video from 10, 12 years ago when he was in a deposition, you see very clearly that this, it doesn't mean he is not diminished now, but one shouldn't assume that just because he's being feisty and angry and, you know, going off topic, that that is an indication of something new about his personality. He's been like that for years. So the reason... Right, right. ...this twist... I mean, I'm sorry, I didn't mean to cut you off. No, it's okay, I'm yapping a lot. What did you want to say? I just said that I kind of agree with that because people think, and I've made comments like this, that because he's kind of jumping around a lot, it seems like he lacks capacity, but that's a very layperson approach. Yeah. The doctors are the ones who can provide the analysis. He seems like, from our understanding, he's basically a bully. He's always been a bully. And he obviously doesn't like what's going on, which is, that much is clear. And he's trying to kind of bully everyone around him. Right. And you don't become a billionaire by being a nice guy. Yeah, no, you don't. Now, so a lot of people are saying that this way he's behaving is going to work against him because being short-tempered, losing your, you know, being angry and so forth is, I guess, a symptom of dementia. But could it not possibly also help him if it appears that he's being quick-witted? I mean, you know, he... I mean, I'm not sure that he is, but from reading these reports, it seems like... He's very feisty. And even though he changes the topic, it seems like he might be doing it deliberately. And he kind of, like, picks up on things that the lawyer's saying right away, no? Well, I'm just trying to get a beat on how the judge is interpreting this. Because it doesn't matter how you and I interpret it. Right? So the judge is looking at two key issues, one of which is whether or not the doctors appropriately administered the evaluations. And so I'm trying to get a beat on what Donald in specific is saying to that. And even if the judge views him to be quick-witted, like you say, or views him to be alert because he can't interact with Burt Fields and be witty and be sort of joking around about it in a way, he's not providing clear testimony that, in my view, would override the testimony that's coming from Shelley and the doctor. So that's the key focus here that I'm looking at. Right. And I just... I don't think he's helping himself. The reason I asked you if you know what all the testimony is is because there's an argument that Sterling is making that seems to me a little bit off. And I wonder if it might be misreported a little bit. And you analyzed this at least once, maybe several times. And it has to do with what you have referred to as there's no obligation to inform Sterling or anybody in his position what the consequences are of failing these exams. What do they call the mental tests? I want to use the right term. Well, there's one I think they use called the mini-mental exam. But I think a more general term would just be like a mental evaluation. Okay. So the argument is that... All right. So let's call it a mental evaluation. The argument is there's no obligation to let him know what the consequences are. But I think there's a slightly different argument that strikes me as relevant, which is that not that he has to be informed of the consequences, but that he has to know what kind of a test it is. And he knows what the consequences are. And if he's told what kind of a test it is, he'll fully concentrate or he will refuse to do it at that time because the conditions aren't right for him to concentrate. So in other words, what I'm saying is the test might not be legitimate if he didn't fully focus on these somewhat challenging, challenging questions. And it's not his fault that he didn't fully focus because he wasn't informed. What do you think about that argument? Well, there's a bunch of issues that you're raising in there. The first is that... Excuse me. The reason why this is such a narrow issue is because the judge has made it so. The judge could have expanded the issues out and tried to get more testimony about what was Donald's condition at the time. Did he get another evaluation later by his own doctor? That said that he had capacity, which apparently, you know, purportedly did occur. So the judge could have gotten a lot of testimony on those types of issues, but limited it to the language specific to the trust and whether or not the trust terms were appropriately followed. So the argument you're making could be accurate. I'll get to it in just a moment. But A, Donald is not making that argument, so it doesn't matter in a sense. But B, Donald is not making that argument. So it doesn't matter in a sense. But A, Donald is not making that argument. So it doesn't matter in a sense. But B, Donald is not making that argument. But B, the trust terms don't say something along the lines of he has to be in this condition or he has to do it at his house or he has to be told ahead of time and not just sort of taken away from a meeting with lawyers, which is what happened in one instance. Also, they do say that he's required to cooperate with them. So even if he refused... No, refused at the moment. You know, I mean, whether or not it's in the trust, how could the law allow, you know, judge a test to be valid if the person being tested didn't fully concentrate? I mean, if somebody... If you're in a crowd... I mean, let me just exaggerate to make my point, Twist. I'm not saying this was the case. But, I mean, let's say they were in a crowded room and, you know, it was very noisy and he couldn't hear. I mean, wouldn't that be relevant? And even though it's not written in the trust, it's just common sense, right? Yeah, but I think that... I think that... Well, I... Excuse me. Firstly, if it was a situation like that where he was in a crowded room and he couldn't hear, I think the judge would have said that it wasn't an appropriate report or evaluation. But that's a more exaggerated example and that's a clearer example. Yeah. And the problem here is that Donald Sterling appears to have diminished capacity of being a gray area where it's kind of very complex. He's not a drooling vegetable. You know, he doesn't think it's 1952. And the other aspect of that... This is an extremely complicated trust with billions of dollars of assets and millions of... hundreds of millions of dollars of liabilities. So the bar for managing this trust is much higher than your sweet old man down the street who owns a house and, you know, has a $50,000 checking account or something. Right. So the judge and doctors, I think, are applying a higher bar to his capacity. But the one other thing I wanted to say is that I think these capacity exams are not like a test that you can study for ahead of time and try to figure out how to do it. Right. And I think that's a very complicated test. And I think that's a very complicated test. Right. And I think that's a very complicated test. Right. Right. Right. Right. because either you have, you are where you are mentally on the sort of spectrum of mental capacity, whether you try to focus or not. And if you have diminished capacity, you won't necessarily be able to focus as it is. The report said that he had moderate, I think mild to moderate dementia, which I deal with all the time and is not so bad. On the same wavelength, they're talking about a billion-dollar trust. They're applying, I think, a higher standard. So even if he had tried to focus, even if he had eaten, even if he had done all these things, it may still not have been enough because I think there's a somewhat higher bar for him here. Right. Okay. So we're running out of time. So I want to ask you before we wrap up about the doctor-patient confidentiality privilege. And I think I just combined two different terms, but you know what I'm talking about. Yeah, the HIPAA stuff. Right. And I want to ask you about that. I want to ask two questions about it. So one is specific and one is kind of a more general question. Apparently, you've reported that in others that in the trust, it says that the Sterlings both waive their right to the doctor-patient privilege, meaning that the doctors can, under whatever, some specific way, they can inform people of the results, whereas they usually must keep it. So I'm wondering, is there anything to that argument? And my second question is, in general, I'm a little confused about when something can be waived. Maybe you can clarify it for me. Obviously, rights can be waived sometimes. Right. But let's say I wanted to exceed the speed limit. I couldn't put into a contract that, you know, I'm allowed to go over the speed limit and then go, hey, you know, I've got a contract here saying it. The law would prohibit me from it. So that's what I'm confused about is when could a contract have something where the rights are waived versus other times where, hey, maybe you want to waive it, but it doesn't mean the state of California will let you waive it. I'm happy to answer both of those questions, sir. So in regards to the first thing, you're correct that they've talked both about federal and state law. And the judge seems to be done with that argument. It's unclear to me whether he's done with it because he agrees with Donald Sterling's argument or because he disagrees with Donald Sterling's argument. But either way, the reports that I've seen is that he kind of says, okay, we've heard what you have to say. Let's move on to something else. And I guess we'll have to wait and see what the order says to get a clear determination as to whether he's agreed or he's agreeing with the argument. The trust does allow, and specifically states HIPAA, to the extent required to enforce the agreement here, the trust agreement, so that the information could be provided to appropriate parties. Donald Sterling's argument is that it leaked to the media. And that was not an appropriate party. But the documents, the evaluations were attached to the petition to the court. And then that's a public document that anyone could get if they go down to the courthouse. And then that was given to the media. So I don't know how successful that argument is going to be. Also, in a more general sense, people who are not the trustee need to know if the trustee has capacity or not. Yeah, otherwise it's got to know he doesn't even exist. It has no... Yeah. So as to the latter thing about rights being waived, rights can be waived in regards to, well, kind of whatever you want as long as you write it down. The example you've given, though, is different because that's a criminal conviction, or not a criminal conviction, but a crime, basically. Right. And the state's not going to waive it. I guess every time you get pulled over by the cops, by the CHP, and they go, I'll give you a warning, and let you go, they're sort of waiving their right to enforce that law, in a sense. But here what they've basically done in the Sterling matter is agreed to waive these rights in limited circumstances. And we'll see if the judge agrees that Shelley exceeded those limited circumstances. Right. I guess I was thinking not only about the probate issue, but the lawsuit against the NBA. Because a lot of people are saying, look, you know, the NBA bylaws say that they don't have to go by the courtroom rules of evidence. I'm sure you've heard, I know this isn't your area of law, but you probably have somewhat of an opinion, and I'm sure you've heard that that's what people are saying. Well, this is what's in the Constitution. But, so, sorry, what if the state of California, you know, it's the California Penal Code that prohibits the use of illegally recorded conversations. So can the NBA, you know, Constitution supersede that? You know, I'm only going to make a guess here, because I don't know anything about the NBA Constitution or bylaws. I haven't read that stuff, and I don't know much about it. But if it's not a California, even though the Clippers are a California state company, I presume, I don't know if I'm wrong, I doubt the NBA is headquartered in California. It might be California. I think it's headquartered in a different state. Yeah, I think New York. So there's a question about whether or not California law even applies. But if it does, I'm wondering whether or not the NBA Constitution can make a California Penal Code prohibition go away just because it's in their business contract. Anyway, we're out of time. Twist, you are the man. I want to thank you again for being so courteous and allowing me to disagree with you on the blogs and for coming on here tonight. Your secret is safe with me. I won't reveal anything about you. Thank you very much, sir. Have a great evening. Thank you so much. Take care. So you can get to all his blogs by going to NormanReport.com. We're also linking to Professor McConnell's op-ed that I talked about before. And I want to thank all of you for tuning in. We're going to be on every Tuesday night from 9 to 10 Pacific time here at Skid Row Studios. Our website is NormanReport.com. This is Jeff Norman speaking on the law, justice, and sanity. And thanks to Jeff. And thanks to Jenny in the control booth, our producer, the mighty Q, and all the beautiful people at Skid Row Studios. Nighty night. Jeff Norman, the Norman Report.