WATERFORD TOWNSHIP BOARD OF EDUCATION, ET AL. CHIEF JUSTICE RABNER: IN THE MATTER
OF CV V WATERFORD TOWNSHIP BOARD OF INDICATION. JUSTICE POOER WILL BE PARTICIPATING IN
THIS CASE AND WILL DO PART OF IT REMOTELY IF SHE NEEDS TO LEAVE EARLY MAY WE HAVE APPEARANCE
S PLEASE. (APPEARANCES TENDERED.) CHIEF JUSTICE RABNER: THANK YOU,
COUNSEL, IT'S ALMOST 1:30 IT'S TIME TO BEGIN. LEO B. DUBLER, III: GOOD
AFTERNOON. THIS CASE IS ABOUT AN INNOCENT FIVE YEAR OLD GIRL WHO WAS STARTING
HER FIRST YEAR OF SCHOOL IN WATERFORD TOWNSHIP AND SHE ROAD THE BUS TO SCHOOL.
SHE WAS SEXUALLY ABUSED ON THAT BUS FOR A PERIOD OF FIVE MONTHS. LAD IS NOT
AN INTENT BASED STATUTE THE SEMINAL CASE LAYMAN GAVE US THAT HOLDING. MULTIPLE SUPREME COURT
CASES HAVE UPHELD THAT PRINCIPLE INCLUDING CUT LER, GOU WER, GRIVEN AND RIOS TO NAME A VIEW.
IN THIS CASE FOR THE FIRST TIME THE APPELLATE DIVISION OVERRULED LAYMAN AND
HELD THAT LAD IS AN I OBJECT TENT BASED STATUTE. IN THE FIRST PARAGRAPH OF THE
OPINION, THE COURT SAID THERE WAS NO PROVEN INTENTION TO DISCRIMINATE AGAINST YOUNG
WOMEN. COMPARE THAT TO THE HOLDING OF LAYMAN WHERE THE COURT SAID, IT IS THAT THE EFFECTS
OF DISCRIMINATION THAT LAD IS AIMED THEREFORE, THE PERPETRATOR'S INTENT IS SIMPLY NOT
AN ELEMENT OF THE CAUSE OF ACTION. THE APPELLATE DIVISION IN THIS CASE SAID
THE SUBJECTIVE INTENT OF THE HARASSER CONTROLS, NOT THE ACTIONS OR THE EFFECT OF THOSE
ACTIONS. THE BASIS FOR THAT HOLDING WAS TWOFOLD ONE WAS THE PEDOPHILE, THE
COURT HELD SINCE A PEDOPHILE ACTS BY COMPULSION HE CANNOT BE RESPONSIBLE FOR HIS ACTS
UNDERSTAND LAD. THE BUS AID SAID HE MOLE LESTED A BOY, THE COURT HELD SEXUAL
ABUSE COULD NOT HAVE BEEN BECAUSE OF THE VICTIM'S GENDER AS A MATTER OF LAW BECAUSE OF
THAT, AN EQUAL OPPORTUNITY HARASSER OFFENSE. BOTH OF THESE POSITIONS ARE CONTRARY TO
LAD, CONTRARY TO LAYMAN, CONTRARY TO 30 YEARS OF CASE LAW, CONTRARY TO SUMMARY JUDGMENT
STANDARD AND ADD ODDS WITH THE FACTS OF THIS CASE. WHY DID LEHMANN AND OTHER
COURTS HOLD THIS WAY OVER THE LAST 30 YEARS, WELL, BLANK VERSUS PHILADELPHIA GIVES US
ONE REASON, PARTICULARLY IN DISCRIMINATION AREA, IT IS OFTEN DIFFICULT TO DETERMINE THE
MOTIVATIONS OF AN ACTION AND ANY ANALYSIS IS FILLED WITH PITFALLS AN AMBIGUITIES.
DOE VERSUS BELL VIL IN THE 7TH CIRCUIT SAID AS LONG AS THE ENVIRONMENT ITSELF IS HOSTILE
TO THE PLAINTIFF BECAUSE OF HER SEX WHY THE HARASSMENT WAS PERPETRATED, SEXUAL INTEREST,
MISS ONLY GENERAL KNEE, PERSONAL VENDETTA, MISGUIDED HUMOR, BOREDOM IS BESIDE THE POINT.
IN 2020, THE U.S. SUPREME COURT IN BOS STOCK VERSUS CLAY TON RECOGNIZED EVENTS
HAVE MULTIPLE BUT FOR CAUSES, WHEN IT COMES TO TITLE 7 THE ADOPTION OF THE BUT FOR STANDARD
MEANS THE DEFENDANT CANNOT AVOID LIABILITY JUST BY CITING SOME OTHER FACTOR SO LONG AS
THE PLAINTIFF'S SECTION WAS ONE BUT FOR CAUTIOUS OF THAT DECISION THAT'S ENOUGH TO TRIGGER
THE LAW. THE THEME OF THESE CASES IS IS THE BLANK THAT THESE COURTS ARE SAYING
MUST BE FOCUSED ON, LAD GOAL IS TO ERADICATE HARASSMENT, SKRIJS, GOAL LAD IS NOT TO GET
INTO THE HARASSERS HEAD AND FIGURE OUT THE MISS INDUSTRIES OF THEIR MIND, ONCE THERE IS
SEXUAL COMMENTS OR SEXUAL TOUCH ALSO THE BUT FOR ELEMENT IS SATISFIED AND AT THAT POINT
COURTS HAVE SAID THE VICTIMS DO NOT HAVE TO READ THE TEA LEAVES IN THE HARASSERS HEAD.
IN THIS CASE, PUTTING ASIDE ALL THE OTHER EVIDENCE, THERE WAS FIVE MONTHS
OF SKS YOU'LL TOUCHING TO HER FEMALE-ONLY ANATOMY. IN RENEE VERSUS M G M IF A HARASSER
TOUCHES A PART OF THE BODY LINKED TO SEX U A LETTER, IT'S INCHES SKAP BLEE LINKED TO SEX,
TO HER SEX. SO IN THIS CASE, IT'S NOT -- EVEN WITH THAT AND ALL THE OTHER
FACTS THAT I CAN GO INTO LATER, THE COURT HELD IT'S NOT ESTABLISHED, LAYMAN DOESN'T APPLY,
NOT ONLY THAT, LAYMAN GOT TURNED ON ITS HEAD IN SUMMARY JUDGMENT WAS GRANTED AGAINST THE
HARASSMENT VICTIM. SO YOU HAVE THE SUMMARY JUDGMENT STANDARD AND LAYMAN.
THAT CONCLUDES MY OPENING REMARKS. CHIEF JUSTICE RABNER: PLEASE
GO AHEAD. LEO B. DUBLER, III: THANK YOU. THE EQUAL OPPORTUNITY
DEVENGS IS GOING TO UNDERMINE THE LAW AGAINST DISCRIMINATION. ALL THE HARASSER NEEDS
TO SAY IS IN THE PAST THEY HARASSED A MAN AND THAT ALLOWS THE HARASSER AND THE EMPLOYER
TO ESCAPE LIABILITY. NOT ONLY THAT, IF YOU ALLOW THIS DEFENSE, THINK ABOUT THE PRACTICAL
IMPLICATIONS, YOU KNOW, IN THIS CASE, IF YOU SEND ME BACK AND YOU SAY, YOU KNOW, SUMMARY
JUDGMENT, WE'RE GOING TO ALLOW THAT EQUAL OPPORTUNITY DEFENSE, WE'RE GOING TO SEND YOU
BACK, DO SOME DISCOVERY GET READY FOR TRIAL ON THAT, I AM GOING TO HAVE TO TRY TO TRACK
DOWN 30 YEARS AGO THE BOY THAT HE CLAIMED THAT HE HARASSED. I AM GOING TO TRY TO HAVE
TO DEPOSE HIM; THAT'S JUST ONE CASE. IT OPENS UP INTRUSIVE DISCOVERY. IT OPPOSITE UP
DIFFICULT DISCOVERY AND I CAN TELL YOU AS A PRACTICING ATTORNEY WHO HANDLES THESE TYPES
OF CASES, THEY'RE NOT EASY. JUSTICE PATTERSON: TAKE US THROUGH L.W. WHICH IS
THE SCHOOL SETTING, MINORS, CLOSER TO THIS THAN LAYMAN THE FACTORS THAT CHIEF JUSTICE
SAZ OPINION IDENTIFIED AND WHY YOUR CASE MEETS THAT STANDARD? LEO B. DUBLER,
III: I WOULD SAY L.W., IT'S A CASE THAT WAS MORE DIRECTED AT STUDENT ON STUDENT BULLYING.
JUSTICE PATTERSON: IT WAS ABOUT BULLYING. LEO B. DUBLER, III:
I WOULD SAY IT WOULD BE MORE OF AN L.W. SITUATION IF IT WERE STUDENTS TAUNTING EACH OTHER
OR INSULTING EACH OTHER AND THEN IT BRINGS IT UN MAYBE LIKE THE UNREPORTED C H BURLINGTON
CASE. JUSTICE PATTERSON: BUT WHAT IS YOUR POSITION AS TO WHETHER L.W. IS
RELEVANT HERE. LEO B. DUBLER, III: IT'S RELEVANT IN THAT GENERALLY SPEAKING
BECAUSE THAT'S FACTUALLY A LITTLE DIFFERENT BUT THE GENERAL PRINCIPLES WERE LAD APPLIES
TO SCHOOLS AND LAD APPLIES TO THE SCHOOL BUS. SCHOOLS HAVE TO PROTECT STUDENTS, L.W.
WAS WHEN THERE WAS STUNLT ON STUDENT HARASSMENT. CHIEF JUSTICE RABNER: DID YOU
SAY LAD APPLIES TO SCHOOLS OR DID YOU SAY THAT APPLIES TO SCHOOL. LEO B.
DUBLER, III: THE L.W. HOLDING WAS THAT LAD APPLIES TO SCHOOLS. CHILDREN GET THE
PROTECTION OF LAD WHEN THEY ARE IN SCHOOL, WHEN THEY ARE ON THE SCHOOL BUS THEY ARE
UNDERSTAND THE PROTECTION OF LAD. JUSTICE PATTERSON: THE APPELLATE DIVISION
FOCUSED ON L.W. AN THE FACTORS THERE SO CAN YOU TAKE US THROUGH THOSE FACTORS?
LEO B. DUBLER, III: MAY I? IN THE SCHOOL SETTING THE LAYMAN STANDARD REQUIRES
A SCHOOL DISTRICT MAY BE FOUND LIABLE UNDER LAD FOR STUDENT ON STUDENT SEXUAL ORIENTATION
HARASSMENT THAT CREATES A HOSTILE ENVIRONMENT WHEN THE SCHOOL DISTRICT KNEW OR SHOULD HAVE
KNOWN OF THE HARASSMENT BUT FAILED TO TAKE REASONABLY CLATDZ ACTION TO REASONABLY
CALCULATE THEN TO DISCOVERY? JUSTICE WAINER APTER: DIDN'T WE ALSO HOLD
IN L.W. EXPLICITLY QUOTE THE LAYMAN STANDARD SHOULD APPLY IN THE WORKPLACE AND IN THE
SCHOOL SETTING WE FIND NO NEED TO IMPOSE A SEPARATE STANDARD BECAUSE THE DISCRIMINATION
IS IN A SCHOOL I BELIEVE THAT'S AT PAGE 405. LEO B. DUBLER, III: THAT'S
MY UNDERSTANDING AND THAT THE SPECIFIC GUIDANCE ON HOW TO APPLY IT WAS IN A STUDENT ON
STUDENT HARASSMENT CASE WHICH THE COURT SAID IS A SEPARATE THAN OTHER PARTS. THE PRINCIPLES
OF LAD STILL APPLY. JUSTICE WAINER APTER: NOT JUST THE PROTECTIONS BECAUSE
THE STATUTE SAID ALL ALONG THAT IT APPLIES IN PLACES OF PUBLIC ACCOMMODATION SO PRESUMABLY
THE COURT WOULD HAVE TO FOLLOW THE PLAIN LANGUAGE OF THE STATUTE THAT SAID IT SHOULD AID
APPLY BUT IT'S THE LAYMAN TEST SPECIFICALLY THAT WE SAID APPLIES BY SAYING THE LAYMAN
STANDARD SHOULD APPLY IN THE WORKPLACE AND IN THE SCHOOL SETTING WE FIND NO NEED TO IMPOSE
A SEPARATE STANDARD BECAUSE IT IS IN A SCHOOL. AREN'T YOU ARGUING THAT IS
PER SE BECAUSE OF SEX APPLIES IN A SCHOOL SETTING UNDER LEHMANN AN L.W. LEO B.
DUBLER, III: PRECISELY. JUSTICE WAINER APTER: IF WE WERE TO AGREE WITH YOU
ON THAT ARE YOU STILL SEEKING TO AMEND YOUR COMPLAINT TO ADD AN AGE DISCRIMINATION CLAIM?
LEO B. DUBLER, III: NO. YOU KNOW, I -- IT'S ONE OR THE OTHER E SO I WOULD
SAY YES. JUSTICE WAINER APTER: SORRY, CAN YOU SAY THAT ONE MORE TIME?
LEO B. DUBLER, III: I WOULD SAY NOT -- I WOULD SAY YES, LOOKING TO AMEND
THE COMPLAINT. JUSTICE WAINER APTER: OKAY, SO JUST THEN SPECIFICALLY IN
TERMS OF AN AGE DISCRIMINATION COMPLAINT, THE ISSUE THAT I SAW WITH THAT IS AGE
DISCRIMINATION IS PROHIBITED IN THE STATUTE IN SPECIFIC PLACES IN EMPLOYMENT, BY LABOR
UNIONS AN IN CREDITING CONTRACTING, BUT IT IS ACTUALLY NOT PROHIBITED WHEN IT COMES TO
HOUSING OR PLACES OF PUBLIC ACCOMMODATION SO HOW CAN YOU BRING A CLAIM FOR AGE DISCRIMINATION
IN A PLACE OF PUBLIC ACCOMMODATION IF THE DOESN'T ACTUALLY PROHIBIT AGE DISCRIMINATION
IN PUBLIC ACCOMMODATIONS? LEO B. DUBLER, III: I WOULD SAY LAYMAN APPLIES,
THE STANDARD APPLIES AN I WOULD SAY IT SHOULD APPLY AND TO THE DEGREE IT'S NOT SPECIFICALLY
ENUMERATED, IT SHOULD APPLY TO CHILDREN IN SCHOOL. JUSTICE WAINER APTER:
LAYMAN I THOUGHT WAS ABOUT SEXUAL HARASSMENT AN YOU'RE TALKING ABOUT A TOTALLY SEPARATE
FOR AGE DISCRIMINATION. LEO B. DUBLER, III: YES. JUSTICE
WAINER APTER: LY MAN DOESN'T SAY ABOUT AGE DISCRIMINATION. LEO B. DUBLER,
III: CORRECT. CHIEF JUSTICE RABNER: OTHER QUESTIONS ANYONE? IS
THERE ANYTHING? LEO B. DUBLER, III: YES. YOU KNOW, I WOULD
JUST SAY WITH THE FACTS OF THIS CASE, YOU HAVE NOT ONLY FIVE MONTHS OF TOUCHING, YOU HAVE
OTHER GIRLS THAT WERE TARGETED SO WHAT THIS BUS AID DID WAS PLAYED THE AB BRA KA DAB BRA
GAME. HE PLAYED IT WITH THE PLAINTIFF AND THE BUS DRIVER WAS ASKED DID HE PLAY THE AB
BRA KA DAB BRA GAME WITH GIRLS, YES, MULTIPLE OTHER GIRLS, DID HE PLAY IT WITH ANY OF
THE BOYS, NO. THERE WAS TESTIMONY THAT THIS HARASSER HARASSED A BOY 30 YEARS AGO. THERE
WAS NO TESTIMONY THAT ANY BOY -- NO EVIDENCE HE HARASSED ANY BOY IN THE LAST 30 YEARS AN
ON ANOTHER THING ON THE SUMMARY JUDGMENT MOTION, WE SHOULDN'T BE LOOKING AT JUST THE
DEFENDANT'S DEPOSITION TESTIMONY, HOW DO WE KNOW HE IS TRUTHFUL. HOW DO WE KNOW SOME OF
IT IS NOT MADE UP OR EXAGGERATED. HOW DO WE KNOW IT'S TRUE OR NOT TRUE, AGAIN IT GOES
BACK WE'RE GOING TO NEED DISCOVERY ON THAT ISSUE SO YOU OPEN UP A PANDORA'S BOX WHEN YOU
START GETTING INTO THOSE ISSUES. AND THE ONLY THING ELSE I WOULD ADD IS IN
THE PUBLIC ACCOMMODATION SETTING, I MEAN THE CASES ARE CLEAR THAT IT DOES APPLY AND, IF
ANYTHING, THERE IS ACTIONS THAT MIGHT NOT VIOLATE LAD IN THE WORKPLACE SETTING THAT WOULD
VIOLATE IT IN THE PUBLIC ACCOMMODATIONS ACT PALT PATH YOU'RE SAYING LAYMAN DOES APPLY.
LEO B. DUBLER, III: YES, LAYMAN DOES APPLY AND IF THERE IS NO MORE QUESTIONS
THAT'S ALL MY TIME. THE COURT: THANK YOU, COUNSEL, MR. FEIGENBAUM.
JEREMY M. FEIGENBAUM: MAY PIT PLEASE THE COURT. I WOULD LIKE TO BEGIN
WITH THREE FACTS THIS AFTERNOON AND ANSWER THE QUESTIONS THAT HAVE COME UP SO FAR THIS
MORNING AN ANY OTHER QUESTIONS THIS COURT MAY HAVE. CHIEF JUSTICE RABNER:
WE HAD A LOT OF QUESTIONS THIS MORNING. JEREMY M. FEIGENBAUM: I ALMOST SAID
THIS EVENING, BUT THANKFULLY DAYLIGHT SAVING TIME SOLVES THAT PROBLEM. JUSTICE
PATTERSON: YOU JUST AVOWED TO ANSWER ABOUT 700 QUESTIONS. JEREMY M. FEIGENBAUM:
I WILL ANSWER I THINK TWO. THE FIRST POINT, LEHMANN ALREADY HOLDS THAT SOME
ACTIONS ARE SO IN HESHTLY SEXUAL OR SEXIST AS TO AUTOMATICALLY APROVE THAT THEY ARE ON
ACCOUNT OF SEX, THOSE ACTIONS INCLUDE SEXUAL TOUCHES AN WHILE LEHMANN ABOUT TO THE CONFINE
THE FULL CONTOURS OF THAT PHRASE IT INCLUDES THE TOUCHING OF THE GENITALS AN BREASTS WHICH
COVERS THIS CASE HERE AND IS ALL THIS COURT NEEDS TO RESOLVE THIS CASE. SECOND,
LEHMANN MAKES SENSE, WHEN AN INDIVIDUAL IS NO LONGER ABLE TO ACCESS THE WORKPLACE OR
A PLACE OF PUBLIC ACCOMMODATION WITHOUT EXPERIENCING HARMS THAT ARE INHERENTLY
INTERTWINED WITH THEIR SEX, THEY EXPERIENCE DISCRIMINATION ON ACCOUNT OF SEX.
SO IF A WOMAN'S BOSS REPEATEDLY GRABS HERB BREASTS, SHE EXPERIENCES THAT HARM AS A WOMAN
AND THAT IS TRUE EVEN IF THE SAME BOSS GRABS ONE OF HER MALE COWORKERS TESTICLES AN THAT
MALE WORKER EXPERIENCES A SEPARATE HARM AS A MAN. BOTH WORKERS SEX BASED HARMS NOT JUST
AS WORKERS BUT AS A MAN AND AS A WOMAN AND THAT FALLS SQUARELY WITHIN THE AMBIT OF THE
LAD. THE THIRD POINT IS THAT THIS APPROACH WILL NOT HAVE THE IMPACTS THAT
DEFENDANTS FEAR SAYING AN A SEXUAL TOUCHING WAS ON ACCOUNT OF SEX DOES NOT MEAN THAT
THERE IS LAD LIABILITY. A PLAINTIFF IN A LAD CASE STILL MUST PROVE SEVERE AND PERVASIVE
HARASSMENT AND THAT PLAINTIFF MUCH, MUST SHOW THAT THE HARASSMENT PRODUCED A HOSTILE
ENVIRONMENT FOR THE REASONABLE PERSON. THAT IS WHY DEFENDANT'S PRAY OF HOR RIBLS WILL
NOT COME TO PASS, SOMEHOW GUESS. NOW, I WOULD LIKE TO START WITH JUSTICE
PATH'S QUESTION ABOUT L.W. AND I WILL PARROT A LITTLE BIT ABOUT WHAT JUSTICE WAYNE SAID
AND I WILL ADD AN ADDITIONAL LINE, THE FIRST IS L.W. DOES SQUARELY HOLD THAT LEHMANN'S
FRAMEWORK APPLIES TO SCHOOLS AN THERE ARE TWO REASONS FOR THAT, THE FIRST IS TEKS ACTUAL.
THERE IS NO DIFFERENCE ON THIS QUESTION BETWEEN PUBLIC ACCOMMODATION AND BETWEEN A PLACE
OF WORK SO IN BOTH PLACES YOU HAVE THE SAME SEX DISCRIMINATION PROTECTIONS AND SO WHAT
LEHMANN EXPLAINS SEXUAL SKRIJS IS WOULD APPLY FULLY IN THE PUBLIC ACCOMMODATION CONTEXT
AN L.W. SPECIFICALLY HELD THAT STUDENTS DESERVE NO LESS PROTECTION FROM SEX THAN INDIVIDUALS
IN THE WORKPLACE AN TO MAKE THAT PROMISE TRUE IT APPLIED LEHMANN TO SCHOOLS.
JUSTICE PATTERSON WHERE L.W. ANNOUNCES THOSE DIFFERENT FACTORS WAS IN THE CONTEXT OF
EXPLAINING HOW A STUDENT MAY EXPERIENCE HARMS DIFFERENTLY SO IN THE WORKPLACE YOU ASK WHAT
A REASONABLE FEMALE WORKER WOULD EXPERIENCE AS HOSTILE, YOU ASK WHAT A REASONABLE MALE
WORKER WOULD EXPERIENCE AS HOSTILE, IN THE SCHOOL CONTEXT HAD YOU ASK WHAT A REASONABLE
STUDENT WOULD EXPERIENCE AS HOSTILE BUT THAT DOESN'T SAY ANYTHING ABOUT WHAT IS SEX
SKRIMTHS AN WHAT COUNTS AS INHERENTLY ON THE COUNTY OF ESSEX IN THE LANGUAGE OF A PLACE
OF PUBLIC ACCOMMODATION. JUSTICE PATTERSON: WHAT IS YOUR REVIEW OF THE
APPELLATE DIVISION EASE RIE LINES ON L.W. JEREMY M. FEIGENBAUM: I THINK IT IS
MISUNDERSTOOD. AS IN ANY LAD CASE WHERE YOU NEED TO FIGURE OUT WHO IS LIABLE FOR THE
CONDUCT SO L.W. LAYS OUT FACTORS FOR WHEN A SCHOOL IS GOING TO BE LIABLE FOR HARASSMENT
BY PEERS AND AS A SPECIAL CRITERIA TO SAY A SCHOOL WILL ONLY BE LIABLE IF IT KNEW OR
SHOULD HAVE KNOWN ABOUT THAT PEER ON PEER HARASSMENT AND WHEN IT FAILED TO TAKE STEPS
TO REASONABLY ADDRESS IT; THAT'S ABOUT WHEN YOU CAN HOLD THE SCHOOL ACCOUNTABLE FOR WHAT
A PEER DID. NONE OF THAT HAD ANYTHING TO DO WITH WHAT IS SEX DISCRIMINATION OR THE ACTUAL
HOLDING THE APPELLATE DIVISION REACHED BELOW IN REJECTING ANY OF THESE CLAIMS, TO THE
DEGREE THERE IS ANY FIGHT ABOUT WHETHER THE SCHOOL CAN BE HELD BLTH ABDOMINAL FOR THIS
BUS AID THAT IS A FIGHT FOR REMAND AND HAS NOTHING TO DO WITH THE ACTUAL LEGAL HOLDING
ADDRESSED BY THE APPELLATE DIVISION, THE ONLY OTHER COMMENT I WANT TO MAKE ABOUT PLACES
OF ACCOMMODATION IS THAT WE DO. WE THINK THAT CV DOES HAVE THE SEX
DISCRIMINATION CLAIM IT SHOULD NOT HAVE BEEN BARREDED BY THE APPELLATE DIVISION RULINGS
BUT ABLG DISCRIMINATION IS NOT COVERED BY AGE, SENIOR DISCOUNTS WHICH WOULD OTHERWISE
NOT BE SOMETHING YOU COULD GI IN A WORKPLACE. THE COURT: QUESTIONS ANYONE
SNCHLT. JEREMY M. FEIGENBAUM: CHIEF JUSTICE RABNER: THANK YOU,
COUNSEL. JEREMY M. FEIGENBAUM: THANK YOU YOU. L.
ALEXANDER SHALOM: MAY IT PLEASE THE COURT, I WON'T REPEAT THE POINTS THAT HAVE BEEN MADE
ALREADY BY COUNSEL WITH WHICH I AGREE. I'LL ADD JUST ONE SHORT POINT WHICH IS THIS IS
A STAR REDEE SIZE SIS CASE. THIS IS A CASE WHERE LEHMANN SET UP A PER SE RULE AUTOMATICALLY
IS THE LANGUAGE AND THE APPELLATE DIVISION REJECTED THAT BY TALKING ABOUT HOW THE
LEHMANN PRESUMPTION WAS OVERCOME. THERE IS NO PRESUMPTION. IT IS A PER SE RULE. THOSE
THINGS ARE DIFFERENT AND FOR TWO REASONS FIRST BECAUSE INTERMEDIATE APPELLATE COURTS
CANNOT OVERRULE THE SUPREME COURT AND SECOND BECAUSE EVEN IF THIS COURT THOUGHT THAT THE
REASON SET FORTH BY MY COLLEAGUES WERE UNSUFFICIENT, THE JUSTIFICATION FOR LEHMANN
NO LONGER HELD TRUE THERE WOULD SILL BE THE SORRY DEE SIZE SIS PRINCIPLES THAT WOULD REQUIRE
SPECIAL JUSTIFICATION TO OVERTURN IT WE ASK THE COURT TO REVERSE THIS APPELLATE DIVISION.
MICHAEL S. MIKULSKI: MY PARTNER HAS DONE A LOTS OF WORK ON
THIS CASE AS WELL. WE ARE NOT HERE DEFENDING THE PERPETRATORS
ACTIONS LET'S MAKE THAT VERY, VERY CLEAR I KNOW YOU ALREADY KNOW THAT BUT I FEEL
WILL THE NEED TO SAY IT. IT IS OUR POSITION THAT THE QUESTION BEFORE
THIS COURT CAN BE ANSWERED IN TWO PARTS. NUMBER ONE, IF THE LEGISLATURE
INTENDED ANY SEXUAL CONTACT, ANY MOLESTATION, ANY SEXUAL ASSAULT TO FALL UNDER
THE LAD, THEY WOULD HAVE SAID SO PLAINLY AND UNAM BILLING USLY IN THE TEXT
OF THE LAD AS THEY HAVE IN OTHER STAUTS AND OTHER LAWS THAT HAVE BEEN PASSED IN
NEW JERSEY. NUMBER TWO, ASZ SET FORTH IN THE APPELLATE DIVISION
S OPINION, THE VERY DEFINITION OF DISCRIMINATION DOES NOT APPLY TO THIS VERY
NARROW FACT PATTERN. ONE OF THE AN AMICUS US THAT COUNSEL MENTIONED THAT
OUR FEARS OF WHAT MIGHT HAPPEN WOULD NOT COME TRUE. LIKEWISE, THE FEARS WHAT THE
PLAINTIFF IS CLANLING THAT PEOPLE WILL BE KEPT FROM COURT WILL NOT BE TRUE.
WHEN THE STATE OF NEW JERSEY CHANGED THE STATUTE OF LIMITATIONS, HUNSZ, THOUSANDS
OF NEW SEXUAL ASSAULT CLAIMS CAME IN. THERE ARE LOTS OF CAUSES OF ACTIONS
FOR THINGS LIKE THIS. THEY JUST DON'T FALL UNDER THE LAD IN THIS VERY NARROW,
VERY SPECIFIC FACT PATTERN WHERE THE PERPETRATOR WAS A PEDOPHILE WHO TOOK
ADVANTAGE AND MOLESTED BOYS AND GIRLS. THE RULING BY THE TRIAL COURT
AND THE APPELLATE DIVISION PANEL DOES NOT UNDULY RESTRICT ACCESS TO THE
COURTS AS I JUD SAID. IN INDICATES EAST LIKE THIS NOTHING IN THOSE TWO OPINIONS
PRECLUDES PLAINTIFFS FROM LIKE THEY DID HERE FROM PURSUING THEIR NENLTS
COUNTS NEGLIGENT SUPERVISION COUNTS AND OTHERS. IN THIS MATTER AS
I SAID THE PERPETRATOR WAS A PEDOPHILE. UNFORTUNATELY FOR HIS VICTIMS HE WAS
IN FACT A NON DISCRIMINATORY PEDOPHILE. AS PART OF HIS CRIMINAL SENTENCING
HE ADMITTED TO ABUSING MALE AND FEMALE CHILDREN FOR MANY YEARS. IN HIS DEPOSITION
HE ADMITTED TO ASSAULTING FIVE DIFFERENT CHILDREN BOTH MALE AND FEMALE.
HE TESTIFIED THAT HE DID SO BECAUSE HE COULD NOT HELP IT. HE SAID IT WAS LIKE
A DISEASE OR SOMETHING. HE FURTHER SAID HE COULDN'T CONTROL HIMSELF DECEMBER
SPITE KNOWING IT WAS WRONG. THE TRIAL JUDGE IN HER RULING SAID THERE WAS NO EVIDENCE
THAT THE PERPETRATOR MOLESTED THIS MINOR PLAINTIFF BECAUSE SHE WAS FEMALE.
BUT RATHER IT WAS A COMPULSION. THE DIAGNOSTIC AND STATISTICAL MANUAL MENTAL
DOERDZ FIFTH EDITION ALSO KNOWN AS THE DSM FIVE IDENTIFIES PEDESTRIAN FILL
I CAN DISORDER AT CODE 302.2. IT DEFINES THAT DISORDER AS A DIAGNOSE IS ASSIGNED
TO PERSONS 16 YEARS OLD AND UP WHO HAVE A SEXUAL DESIRE FOR PREPU BEST EVENT
CHILDREN. IT DOESN'T MENTION JEND ERROR SEX. THE STATED PURPOSE
OF THE LAD AS COUNSEL SAID IS TO PREVENT DISCRIMINATION. IT IS NOT TO PREVENT
OR ATTACK PEDESTRIAN PHILADELPHIA SPECIFICALLY. THE LEHMAN COURT FAMOUSLY K SAY
DLA THE LAD WAS TO E RADZ INDICATE THE CANS OF DISCRIMINATION AND ALS I
STATED ERL I ON IF THE LEGISLATURE INTENDED IT TO BE SPECIFIC TO EVER SEXUAL ABUSE
THEY WOULD HAVE SAID SO. BY DEFINITION OF THE WORD DISCRIMINATION,
FOR THE LAD TO APPLY, THERE MUST HAVE BEEN A DISCRIMINATORY ACT. SO LET ME
PROPOSE A SCENARIO. AS OF RIGHT NOW ONLY THERE HAS NOT BEEN A BOYLE ON THIS
SCHOOL BO BUT IT IS WHO HAS BROUGHT SUED I SAY AS OF RIGHT NOW BECAUSE STATUTE OF
LIMITATIONS HAS NOT ENDED. IF A BOY WERE TO FILE SUIT TODAY, COULD THAT BOY ON
THE SAME BUS MAKE THE SAME CLAIM THAT HE WAS DISCRIMINATED AGAINST? WHERE
IS THE DISCRIMINATION IF THE BOY WAS A BOY WAS ATTACK ON THE SAME BUS AS A GIRL.
WE AGAIN ARE NOT SAYING THERE ARE NOT VIABLE CAUSES OF ACTION FOR PLAINTIFFS
IN THIS FACTUAL SITUATION, WE'RE SAYING IT'S NOT DISCRIMINATORY SO IT'S NOT THE
LAD. JUSTICE WAINER APTER: DO YOU BELIEVE THAT THE HOLDING
IN LEHMAN WAS JUST WRONG TO SAY THAT SEXUAL TOUCHING IS PER SE SECTION DISCRIMINATION.
MICHAEL S. MIKULSKI: I DON'T AND SECTION DISCRIMINATION IS
DIFFERENT I THINK BUT FOR THE BUT FOR TEST THAT LEHMAN TALK ABOUT THAT THE ASSAULT
HAD TO BE BUT FOR THE SEXUAL NAR OF THE JENDER OF THE PERSON THAT WAS TAUCHD
TOUCHED THAT IS WHERE I THINK LEHMAN IS STINK KWAN WAYNE ASK YOU TLAN IT ONE MORE
TIME. MICHAEL S. MIKULSKI: LET ME COLLECT MY NOTES IF YOU
DON'T MIND. BECAUSE I DID ANTICIPATE THAT QUESTION. SO LEHMAN
LEHMAN ADDRESS EAST THE BUT FOR ENUMERATION, RIGHT, THAT BUT FOR THE JENDER, THE
ATTACK THE MOLESTATION THE TOUCHING WOULD NOT HAVE OCCURRED THE DISCRIMINATION
WOULD NOT HAVE OCCURRED. HERE, WHAT THE COURT FOUND AT THE TRIAL LEVEL AND WHAT
THE APPELLATE DIVISION AFFIRMED IS THAT THIS PARTICULAR PERPETRATOR DID
NOT TOUCH THIS PARTICULAR PERSON BUT FOR HER JENDER. JUSTICE WAINER
APTER: BUT LEHMAN I AM SORRY HELD NOT THAT IN EVERY CASE OF SEXUAL TOUCHING WE
HAVE TO DECIDE WAS THIS BUT FOR THE PLAINTIFF'S JENDER INSTEAD THEY HELD
AS A CATEGORY CALIFORNIA RULE THAT THE DEFINITION OF SEXUAL TOUCHING WHEN YOU TOUCH
ANOTHER PERSON'S GENITALS THAT IS BUT THAT IS BY NATURE BECAUSE OF SEX AND
THEREFORE IT IS AUTOMATICALLY BUT FOR THE PERSON'S SEX. MICHAEL S.
MIKULSKI: UNDERSTOOD. AND I THINK HERE AGAIN, AND MAYBE AS TIMES HAVE CHANGED
AND THE COURT IN LEHMAN MAYBE NOT HAVING KNOWN WHAT WAS NOBODY COULD KNOW
WHAT WAS GOING TO HAPPEN IN ADVANCE, WHERE YOU HAVE A PEDOPHILE WHO DISTINGUISHES
I STILL THINK THAT IS THE BUT FOR SO THERE MAYBE OTHER CAUSES OF ACTION
THAT WOULD ALLOW THAT TOUCHING TO STILL BE BROUGHT IN COURT, BUT NOT THE LAD IMMINENT
I AM NOT SURE I FOLLOW CAN YOU EXPLAIN THAT AGAIN. MICHAEL S.
MIKULSKI: YES. YES. EVEN THOUGH THE SEXUAL TOUCHING MAY RESULT -- THE TOUCHING
WAS BECAUSE OF SEX, RIGHT IF THERE WAS TAUCHG TOUCHING OF GENITALS IT WAS DUE
TO THE TAX AUTOMATICALLY AUTOMATICALLY BUT AS THE APPELLATE DIVISION SAID AND I
HAVE THEIR OPINION HERE AS I THINK THEY DRAED IT VERY WELL.
CHIEF JUSTICE RABNER: TELL US WHAT PAGE YOU ARE LOOKING AT WHEN YOU GET THERE.
MICHAEL S. MIKULSKI: YES I WILL. THANK YOU.
CHIEF JUSTICE RABNER: DISCUSSION ABOUT LEHMAN I THINK STARTS AT AROUND 17.
MICHAEL S. MIKULSKI: I AM ON 16 NOW CHIEF JUSTICE SO THAT'S RIGHT.
SO WHEN THE APPELLATE DIVISION DID SPEAK ABOUT LEHMAN, IT SAYS
ON TOP OF PAGE 18: WHEN THE HARASSING CONTACT IS SEXUAL RECEIVE THE IFRT IN NATURE
THE BUT FOR ELEMENT WILL AUTOMATICALLY BE SATISFIED AS YOU JUST SAID. AND
THEN IT GOES ON TO SAY THE LEHMAN PRINCIPLES THE BOTTOM OF 18 HAVE BEEN SPENDED
TO CLAIMS MADE BY CLIRN WE ARE NOT GREEG THERE BUT ON PAGE 19 IN AFFIRM
ING THE MOTION. JUSTICE PATTERSON: YOU ARE NOT GREEG YOU ARE
GREEG WITH THAT. MICHAEL S. MIKULSKI: YES YES CORRECT. SO THEN
IF YOU GO TO THE MIDDLE OF PAGE 19 IN AFFIRMING THE MOTION JUDGE ORDERED JUDGES
' ORDER WE REJECTED THE JUDGES' REASONING. WE OBSERVED THAT SEXUAL -- THAT'S
NOT RIGHT. HOLD ON. YES. WE FOUND THAT THERE WAS NO REASON
THE LETHD YOU ARE MEANT TO CARVE OUT THIS TYPE OF EXCEPTION IN THE ^ CON ^
CONNECTICUT WORK PLACE THEY WERE DISTINGUISHING I THINK THAT FACTUAL PATTERN
OR THAT FACTUAL SCENARIO. JUSTICE WAINER APTER: YOU ARE TALKING
ABOUT A DIFFERENT CASE I THINK THE MINOR RELATIONSHIP BETWEEN MRIEN OR ARN
ADULTS IS NOT THIS CASE. THIS IS A QUOTE FROM A DIFFERENT APPELLATE DIVISION CASE
RIGHT. MICHAEL S. MIKULSKI: YOU ARE RIGHT GREED YES.
JUSTICE SOLOMON: ASSUME FOR AN ANYONE YOUR ARGUMENT IS CORRECT AND THE
TRIAL COURT IS CORRECT ABOUT THE ISSUE OF BOYS AND GIRLS AND THIS WAS ON A
MOTION FOR SUMMARY JUDGMENT, CORRECT SFLOO IT WAS. JUSTICE SOLOMON:
AND AT LEAST IN THIS CASE, IN THIS BUS, OVER THESE MONTHS, ALTHOUGH THERE WERE
BOYS ON THE BUS THE ONLY MOLESTATION ALSO OCCURRED WITH LITTLE GIRLS, IS THAT
RIGHT? MICHAEL S. MIKULSKI: THAT WE KNOW OF YES.
JUSTICE SOLOMON: MOTION FOR SUMMARY JUDGMENT. MICHAEL S.
MIKULSKI: THAT'S CORRECT. JUSTICE SOLOMON: THOSE ARE SOME OF THE
FACTS WE EVER OTHER THINGS MAY HAVE HAND IN THE PAST OTHER THINGS MAY HAVE
HAPPENED ELSEWHERE BUT THAT'S ALL WE KNOW. MICHAEL S. MIKULSKI:
THAT'S CORRECT. JUSTICE SOLOMON: DOESN'T THAT IN AND TO
ITSELF OVERCOME S ON THE BASIS THAT YOU ARE ARGIROPOULOSING. MICHAEL
S. MIKULSKI: IT DOESN'T AND REASON FOR THE SAME REASON THAT THE TRIAL JUDGE SAID
IN THE APPELLATE DIVISION GREED WHICH IS IN THIS PARTICULAR INSTANCE THAT
PERSON'S ACTIONS, THIS PERPETRATORS' ACTIONS. JUSTICE SOLOMON:
NOW YOU ARE TALKING ABOUT PEDOPHILIA. MICHAEL S. MIKULSKI:
INL SOL SOMERSET COUNTY I AM NOT TALKING ABOUT PED FELL YA I AM TALK KS ABOUT
THE ARLG WELG HE MOLESTED BOYS AND GIRLS AND THEREFORE IT'S NOT BASED ON LITTLE
GIRLS' SEX AND WHAT I'M SUGGESTING IS WELL WE DON'T KNOW THAT BECAUSE ALL WE HAVE
IS THE EFS THAT ME MOLESTED ON GIRLS ON THIS BUS OVER THE COURSE OF FIVE KNOWS
AND THAT IN AND TO ITSELF IS ENOUGH TO GET OVER A MOTION FOR SUMMARY JUDGMENT.
THE PEDOPHILIA ISSUES AN ISSUE FOR EXPERT TESTIMONY OF WHICH I DON'T THINK THERE
WAS ANY IN THIS PARTICULAR CASE. MICHAEL S. MIKULSKI: WE
NEVER GOT THAT FAR CORRECT. JUSTICE SOLOMON: THAT WOULD BE
DURING DISCOVERY THEY WOULD EXCHANGE IF THAT'S REALLY AN ISSUE AND I WAS
SUGGESTING IT IS, THERE WOULD BE CROSS EXPERTS AND THEY WOULD EXPLAIN WHATEVER
EXPERTS NORMALLY EXPLAIN. BUT ON THAT ISSUE OF SEX, ISN'T THERE ENOUGH TO
OVERCOME SUMMARY JUDGMENT JUST BASED ON THE FACTS OF THIS CASE, WHAT OCCURRED ON
THAT BUS OVER THOSE FIEFR MONTHS. MICHAEL S. MIKULSKI: I
DON'T THINK THERE IS BECAUSE I THINK THAT THE JUDGE, THE TRIAL JUDGE HADZ THE
RIGHT TO CONSIDER ALL DISCOVERY THAT HAD COME IN AT THAT POINT, WHICH INCLUDES
THE PEDOPHILIA BUT ALSO INCLUDES HIS ADMISSIONS TO MOLESTING BOYS AND GIRLS.
IF WE ARE GOING TO FOCUS JUST ON ANYONE BUS IF I MAY. JUSTICE
SOLOMON: GO AHEAD. MICHAEL S. MIKULSKI: IF WE ARE JUST GROWING
TO FOCUS ON ONE BUS THE JUDGES' AND SHE SAID IN CONSIDERING ALL OF THE FACTS TO
THE LIGHT MOST FAVORABLE TO THE NON MOVING PARTY, TO THE PLAINTIFF, THERE
WAS NO EVIDENCE WHATSOEVER THAT IT WAS BECAUSE OF. JUSTICE SOLOMON:
OKAY YOU ARE AGAIN RELING IT TO WHAT HAPPENED MONTHS BEFORE OR YEARS BEFORE
OR BEFORE. MICHAEL S. MIKULSKI: YES. JUSTICE
SOLOMON: SIMPLY BECAUSE I AM SORRY I WILL LET YOU JUMP IN. SIMPLY BECAUSE OVER
THIS PERIOD OF TIME WITH RESPECT TO THESE YOUNG CHILDREN ON THIS BUS HE
ONLY MOLESTED LITTLE GIRLS. THAT DOESN'T ISSUE CREATE AT LEAST A QUESTION OF FACT.
MICHAEL S. MIKULSKI: I DON'T BELIEVE IT DOES BECAUSE I THINK IT
JUDGE ALLOWED TO TAKE ALL THE FACTS THAT SHE HAD AVAILABLE TO HER YES.
JUSTICE PIERRE-LOUIS: HOW DO YOU RESPOND TO THE ARGUMENT THAT THIS EQUAL
OPPORTUNITY OFFENDER DEFENSE IN ANY CONTEXT WOULD UNDER MINE THE RULING, THE BUT
FOR RULING FROM LEHMAN THAT IF THERE IS SEXUAL TOUCHING, THAT IS IT BECAUSE EVEN
IN AN EMPLOYMENT CONTEXT TAKING IT OUT OF THIS CONTEXT YOUR MAIN ARGUMENT
IS THAT HE TOUCHED HE IS A PEDOPHILE HE HARASSED BOYS IN THE PAST AS WELL AS GIRLS,
IN AN EMPLOYMENT CONTEXT IF AN EMPLOYER WAS ENGAGING IN SEXUAL TOUCHING
WITH BOTH MEN AND WOMEN, THAT'S NOT A LAD CASE? IS THAT YOUR POSITION THAT IS NOT
LAD. MICHAEL S. MIKULSKI: I FRANGSLY DIDN'T GO THAT FAR AS TO THE
EMPLOYER EMPLOYER IN PREPARATION BUT. JUSTICE PIERRE-LOUIS:
BUT THAT IS THE LOGICAL EXTENSION OF YOUR ARGUMENT WOULDN'T YOU AGREE.
MICHAEL S. MIKULSKI: YES AND NO. YES I CAN SEE HOW THAT WOULD BE THOUGHT TO BE
THE LONL CALIFORNIA EXTENSION OF MY ARGUMENT BUT AGAIN NOT EVERY CLAIM HAS
TO FALL UNDER THE LAD. THERE IS OTHER AVENUES OUT THERE.
JUSTICE PIERRE-LOUIS: BUT IF SOMEONE BRINGS A CLAIM UNDER THE LAD ALLEGING SECTION
SKREM NATION BECAUSE OF THE SEXUAL TOUCHING THAT OCCURRED IN THE WORK
PLACE. MICHAEL S. MIKULSKI: IT WOULD NOT APPLY.
JUSTICE PIERRE-LOUIS: WOULD A DEFENDANT BE GRANTED UNDER YOUR THEORY SUMMARY
JUDGMENT. MICHAEL S. MIKULSKI: YES. JUSTICE
PIERRE-LOUIS: IF THEY PUT FORTH EVIDENCE THAT THIS EMPLOYER ENGAGE IN SEXUAL TOUCHING
WITH MALE AND FEMALE EMPLOYEES SO THIS IS NOT BUT FOR. MICHAEL S.
MIKULSKI: YES BECAUSE OF THE VERY DEFINITION OF DISCRIMINATION YES.
JUSTICE SOLOMON: ONE LAST THING YOUR ARGUMENT THAT HE IS A PEDOPHILE,
AND THEREFORE HE HAD A COMPULSION, WHY IS THAT RELEVANT WHEN INTENT IS
COMPLETELY IRRELEVANT THE ONLY ISSUE IS WAS THERE A SEXUAL TOUCHING.
MICHAEL S. MIKULSKI: WELL BECAUSE I THINK IN THIS -- BECAUSE OF THE WAY THE LAD
IS WORDED, THE PLAIN LANGUAGE THAT SAYS IT HAS TO HAVE BEEN DISCRIMINATION
BASED UPON SEX, AND BECAUSE OF THAT MENTAL ILLNESS. JUSTICE SOLOMON:
THAT IS NOT WHAT LEHMAN SAYS. NONE OF THE FORGET WHETHER IT IS A CHIERLD
ADULT, A MAN A WOMAN, NONE OF THE CASES SUGGEST THAT, THAT INTENT MATTERS AT ALL,
COMPULSION MAERTS AT ALL WHETHER IT'S ADULT SEX OFFENDER.
MICHAEL S. MIKULSKI: I WOULD DISAGREE A LITTLE BIT BECAUSE THE J W CASE THAT WE
TALK ABOUT EARLIER, THAT WAS VERY SPECIFICALLY ABOUT SOMEONE INDIVIDUAL
SEXUAL ORIENTATION SO IT WAS MORE NARROW THAN THIS IS MORE OF A MOLESTATION OF
CLIRN THAT IS AN IS WHAT THE COMPULSION IS IT IS NOT BASED ON THE SEX SO THE
APPLICATION OF LEHMAN WE DISAGREE WITH AS IT'S INTERPRETED THERE YES.
CHIEF JUSTICE RABNER: THIS IS NOT A TRICK QUESTION I AM LOOKING AT THE OPINION
AND WONDERING IF THE LANGUAGE YOU WERE LOOKING TO FOCUS ON WAS ON PAGE 22,
THAT BEGINNING OF THE FIRST FULL PARAGRAPH: HERE THE RECORD CONTAINED NO EVIDENCE
THAT THE ASSAILANT ACTED BECAUSE OF THE CHILTDZ' JENDER. MICHAEL
S. MIKULSKI: THERE IT IS HIGHLIGHTED ON MY SECTION. YES THAT IS ESSENTIALLY
WHAT I WAS TRYING TO GET TO EARLIER AND I UNDERSTAND. CHIEF JUSTICE
RABNER: ISN'T THAT A DIRECT CONTRADICTION OF THE HOLDING IN LEHMAN THOUGH?
MICHAEL S. MIKULSKI: IT IS A CONTRADICTION TO THE FACT OF A PORTION OF
LIE MAN THAT IS SPECIFIC TO TOUCHING IS AUTOMATICALLY A SEXUAL YES THAT
PART OF IT IS. CHIEF JUSTICE RABNER: INDEED. SO HOW.
MICHAEL S. MIKULSKI: BECAUSE I STILL THINK THAT THE TOTALITY OF EVALUATING THE
LAD IN ITS PLAIN LANGUAGE IN ADDITION TO THE FACT THAT HERE YOU HAVE SOMEBODY
WHO HAS MOLESTED PEOPLE CLEARLY NOT BASED UPON THEIR SEX CHANGES THAT.
CHIEF JUSTICE RABNER: SO IF THIS CASE INVOLVED SIMPLY AN ALLEGATION AND SOME
EVIDENCE OF THE PRETRIAL STAGE OF SEXUAL TOUCHING OF A GIRL, IT WOULD GET
TO A JURY? MICHAEL S. MIKULSKI: ONLY AND NO OTHER
EVIDENCE. CHIEF JUSTICE RABNER: YES IT WOULD GET TO A JURY.
MICHAEL S. MIKULSKI: AS TO THE OFFENDER? ON THE LAD? PROBABLY
BASED ON THAT LIMITED FACT SCENARIO THAT I UNDERSTAND IT BUT SO MUCH MORE KOMENTS
INTO THAT. MICHAEL S. MIKULSKI: CHIEF JUSTICE
RABNER: EXPLAIN WHY THEN YES THERE ARE OTHER FACTORS OF COURSE EXPLAIN WHY THEN
IT WOULD MAKE SENSE THAT MORE E GREEJ US CONDUCT, SEXUAL TOUCHING OF NOT
JUST A GIRL BUT ANOTHER HUMAN BEING, A BOY, SHOULD RESULT IN THE CASE NEVER
APPEARING IN FRONT OF A JURY. MICHAEL S. MIKULSKI: FLAS' NOT
WHAT WOULD HAPPEN RESPECTFULLY CHIEF JUSTICE BECAUSE THERE IS MRENLT TEE
OF OTHER AFRS NUGS INCLUDING ONES THAT WERE PLEADED HERE TO GOOD ET TO A JURY.
CHIEF JUSTICE RABNER: I AM SORRY ON THIS COUNT.
MICHAEL S. MIKULSKI: YES ON THE LAD BECAUSE IF WE SAY EVERYTHING FALSE UNDER
THE LAD THEN WHY HAVE THE CREDITS A -- A WHY HAVE ANY OTHER STATUTE WE
CAN JUST GROUP EVERYTHING INTO THE LAD. CHIEF JUSTICE RABNER: PUT
THE OTHER STAUTS TO ONE SIDE FOR A MOMENT YOUR POSITION IS THAT MORE E GREENG
US CONDUCT, MORE E GREEJ US ALLEGATIONS WOULD SHIELD THAT PERSON FROM THE LAD.
MICHAEL S. MIKULSKI: THAT NJAA END UP BEING THE RESULT BUT
NO. WHAT WE ARE SAYING IS THE LAD AS WRITTEN WOULDN'T APPLY. PLENTY OF OTHER
AVENUES TO GET TO COURT BUT THE LAD WOULD NOT APPLY IN THIS VERY NARROW
FACTUAL SCENARIO THAT'S CORRECT. JUSTICE WAINER APTER: THE COURT
DECIDED LAY PLAN IN #19D 93 CORRECT. MICHAEL S. MIKULSKI:
I BELIEVE SO. JUSTICE WAINER APTER: AND THE LEG YOU ARE HAS
NEVER CHOSEN TO AMEND THE STATUTE IN ANY FORM SINCE THEN TO SAY WE DISAGREE WITH
THE COURT'S LOELING IN LEHMAN, SEXUAL TOUCHING IS NOT AUTOMATICALLY
DISCRIMINATION BASED ON SEX CORRECT. MICHAEL S. MIKULSKI: AS FAR
AS I KNOW THAT'S CORRECT YES YES. JUSTICE SOLOMON: LAD DOESN'T
PRECLUDE OTHER CAUSES OF ACTION DOES IT. MICHAEL S. MIKULSKI:
NO. JUSTICE SOLOMON: AND ARE YOU AWARE OF ANY OTHER CAUSES
OF ACTION THAT PRECLUDE LAD? MICHAEL S. MIKULSKI: NO.
CHIEF JUSTICE RABNER: PLEASE GO AHEAD. MICHAEL S. MIKULSKI: UNLESS
YOU HAVE OTHER QUESTIONS THAT'S ALL I HAVE. CHIEF JUSTICE
RABNER: ANYTHING ELSE? THANK YOU. THERE WAS NO REQUEST FOR REBUTTAL. MR. DUB
BLER WE ARE GOOD TO GO I TAKE IT SGLIEFRNLT. CHIEF JUSTICE
RABNER: DID YOU WANT TO AFTER A BRIEF REBUTTAL DUB DUB IF I COULD YOUR HONOR
LEO B. DUBLER, III: YOU KNOW, I WOULD JUST SAY IN ADDITION TO THE OTHER FACTS THAT
WE HAVE, I MEAN WITH THE SAME BUS WITH THE SAME SCHOOL THERE WAS AN ARBITRATION HELD THAT
FOUND THAT THERE WAS AN ABUSE AND, AGAIN, THAT WAS OF A GIRL SO THE FACT ISN'T JUST THAT
IT WAS WHAT THE HARASSER DID IN THIS CASE, IT WENT ON FOR FIVE MONTHS SO IT'S JUST NOT
A SUMMARY JUDGMENT CASE UNSO THAT'S ALL I HAVE UNLESS THERE ARE ANY QUESTIONS.
CHIEF JUSTICE RABNER: THANK YOU, COUNSEL. WE WILL TAKE THE MATTER UNDER ADVISEMENT