A year after a federal judge dismissed a lawsuit against gay-hating Scott Lively by a group representing LGBT citizens of Uganda, a federal appeals court has ruled that the judge's condemnation of his "crackpot bigotry" is no reason to overturn the ruling - because he won the case.
Angered by the judge's criticisms of his writings that gays have been responsible for everything from the Spanish Inquisition and slavery to the Holocaust, and that homosexuality is worse than mass murder, Lively appealed US District Court Judge Michael Ponsor's ruling that a group of gay and lesbian Ugandans had no standing to sue Lively over his role in drafting that country's draconian anti-gay law, because Lively did not do the bulk of his work on the legislation in the US.
Lively is making his second run for Massachusetts governor this year, this time as a Republican. In 2014, he won nearly 20,000 votes as an independent.
In his ruling, Ponsor took great pains to emphasize he was deciding only the technical question of who can sue a US citizen for action overseas, not siding with Lively's arguments:
Anyone reading this memorandum should make no mistake. The question before the court is not whether Defendant's actions in aiding and abetting efforts to demonize, intimidate and injure LGBTI people in Uganda constitute violations of international law. They do. The much narrower and more technical question posted by Defendant's motion is whether the limited actions taken by Defendant on American soil in pursuit of his odious campaign are sufficient to give this court jurisdiction over Plaintiff's claims. Since they are not sufficient, summary judgment is appropriate for this, and only this, reason.
In his appeal, Lively argued such comments had harmed and were continuing to harm his reputation and asked the appeals court to strike them from the record.
In reply, a three-judge appeals panel said Ponsor's comments were "dicta" - or statements that did not apply directly to the ultimate ruling or set any precedent and so not something subject to appeal. And the court said striking them would go against precedent that appeals courts normally only consider appeals from parties who have lost a case.
Searching for traction, Lively complains that the challenged statements damaged his reputation. Whether or not this is true, the overriding principle is that "critical comments made in the course of a trial court's wonted functions - say, factfinding or opinion writing - . . . provide no independent basis for an appeal." In re Williams, 156 F.3d at 92. Lively's embarrassment in the face of the district court's unflattering comments, without more, cannot suffice to manufacture appellate jurisdiction where none exists. See id.; see also In re Shkolnikov, 470 F.3d at 25.
The court concluded:
We lack jurisdiction to entertain Lively's importunings that we purge certain unflattering comments from the district court's opinion.
The court then rejected another demand by Lively, that it stop the group from pursuing a claim under Massachusetts law - saying Lively had hoisted himself on his own petard, because his appellate argument was counter to the argument he made in the lower court, and that is a judicial no-no.
[I]t brings into bold relief the doctrine of judicial estoppel, under which a litigant may be precluded "from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase." ...
Although Lively raises a gallimaufry of defenses to the state-law claims under the First Amendment, our decision in no way forecloses him from raising these merits-based defenses in state court.