Posted by Eugene Volokh:
Hate Crimes Laws, Anti-Gay Views, and Public Accountants:
http://volokh.com/archives/archive_2009_07_26-2009_08_01.shtml#1248977303
Let me tell you an interesting story, from [1]Ake v. Bureau of
Professional & Occupational Affairs (Pa. Commw. Ct. May 20, 2009), and
see what you think of it.
1. In 2001, Kevin Allen Ake was living at a YMCA in Illinois,
apparently "so that he could assist an elderly member of his church
who lived there." Several months after moving in, he was evicted, in
his view because of his "efforts to begin a bible study program at the
YMCA." As a result, he left a bunch of messages on the voice-mail of
the YMCA's executive director, who was a lesbian; he denies that the
messages contained explicit threats, but says he "basically shared
what the Bible talked about was -- with that kind of unnatural
lifestyle -- about lesbians and homosexuality."
Ake was then prosecuted and convicted for [2]telephone harassment,
which covers telephone calls made "with intent to abuse, threaten or
harass." Two newspaper accounts reported that he was found guilty of
leaving threatening messages, but nothing in the Illinois indictment,
or in the Pennsylvania opinions that I read, makes it clear -- it
seems possible that the finding was simply that he made the calls with
the intent to "abuse ... or harass" rather than with the intent to
threaten. In any case, though, telephone harassment, even harassment
that isn't expressly threatening, is a crime; the laws banning it are
generally seen as constitutionally permissible speech restrictions
(with [3]some exceptions); and the story here is in any event not
about that conviction, which may well have been perfectly sound.
2. Now generally speaking, telephone harassment is a misdemeanor. But
Ake was apparently motivated at least in part by the executive
director's homosexuality, which made it a [4]felony hate crime. Ake
was thus convicted of a felony, and sentenced to 14 days' in prison,
with credit for time served before trial, plus 2� years' probation,
200 hours of community service, and a $2000 fine. In February 2005,
Ake was discharged from probation.
3. So far, we have a normal "hate crime" story, though one in which
the underlying crime was comparatively minor (and consisted of
unprotected speech rather than physical violence). But there's a
twist: Ake is an accountant, and in 2007 he applied to reactivate his
Pennsylvania CPA license. He had it reactivated despite his felony
conviction, but then the State Board of Accountancy moved to revoke
the license because of that conviction. And [5]the Board did revoke
the license -- not just because of the conviction itself (which
wouldn't automatically disqualify him, especially since the conviction
didn't involve the sort of financial misconduct that most directly
bears on fitness to be an accountant), but because of his continuing
hostility to homosexuals and his perception that he was victimized by
homosexuals:
[T]he very nature of Respondent's offense -- involving an
irrational hatred of the victim -- is plainly a manifestation of a
character defect. Although [Ake] had completed all requirements of
his criminal sentence as of February 2005, the Board has grave
doubts as to whether [Ake] fully rehabilitated.
In his testimony at the formal hearing, [Ake] expressed the view
that his conduct in harassing the victim because of her sexual
orientation, while regrettable, did not rise to a level requiring
criminal sanction. He maintained that he was prosecuted because of
the district attorney's sexual orientation, and he objected to his
original mental health counselor because of the counselor's sexual
orientation. These facts powerfully suggest that [Ake] has not
reformed his views....
The Board is of the view that the revocation of [Ake's license] ...
is warranted ... (1) to eliminate the risk of harm that [Ake] ...
might pose to those with whom he would have professional dealings
as a certified public accountant; (2) to deter other certified
public accountants who might be tempted to commit felonious acts
outside the practice of public accounting in belief that there
would be no consequences for their professional credentials; and
(3) to provide assurance to the public that only individuals of
unquestioned moral character are permitted to be counted among the
ranks of certified public accountants.
4. In May, the Pennsylvania Commonwealth Court reversed the Board's
decision, and two weeks ago [6]refused to reconsider its judgment.
([7]Show the rest of the post, including a discussion of the
dissenting opinion in the Pennsylvania Commonwealth Court.)
It reasoned that "nearly seven years elapsed between Ake�s offending
conduct and his application to reactivate his Pennsylvania CPA
credentials"; that "Ake�s conduct was isolated to calls made over a
two-week period; he has not engaged in similar conduct since his
arrest"; the criminal conduct, while "deplorable," "does not relate to
any of the character qualities the legislature has identified as
central to holding a CPA certificate, i.e., honesty, integrity and
being able to practice accounting in a non-negligent manner. And as to
the lack of rehabilitation,
The problem with the Board�s analysis is the lack of any objective
standard for what constitutes 'rehabilitation' in this context. The
Board does not attempt to provide one and, instead, pins its entire
analysis on its disagreement with Ake�s beliefs and opinions. Ake�s
testimony does indeed reveal that he believes his conduct was not
felonious, [footnote: Contrary to the Board�s conclusion, Ake never
testified that his conduct did not warrant any criminal sanction.
He merely expressed his disbelief that making harassing phone calls
is graded as a felony offense in Illinois....] and that he was
somehow targeted by the district attorney and his first
psychological counselor for his religious beliefs about
homosexuality. It is not for the Board or this Court to decide
whether Ake�s beliefs are objectionable. The Board is not vested
with authority to look into the hearts of those licensees who
appear before them. The Board members may not assume the role of
the proverbial thought police and require Ake or any other
accountant to change his beliefs to conform with those of the
Board�s members.
Yet the dissenting judge (the panel vote was 2-1) would have upheld
the revocation of Ake's license. She reasoned,
The Board was unimpressed with Ake's testimony but did not render
its decision because it found his views on homosexuality
objectionable. Rather, it concluded that Ake's view that his
harassment of a victim because of her sexual orientation should not
have resulted in criminal sanction, coupled with his attitude about
the sexual orientation of the prosecutor and the mental health
counselor, "powerfully suggest that Respondent has not reformed his
ways." The Board stressed the need for a CPA to be of good moral
character and noted that a felony conviction evidences bad
character. Contrary to the majority's view, the Board did not
require Ake's rehabilitation; instead, it concluded that his
testimony did not contradict the finding of bad character implied
by his conviction....
[The Board] was empowered to conclude that Ake's conviction
evidenced bad character. As this Court recognized in Foose v. State
Board of Vehicle Manufacturers, Dealers and Salespersons, 578 A.2d
1355, 1358 (Pa. Cmwlth. 1990), a rational connection between one's
past derelictions and present ability to serve in a profession that
requires honesty and integrity can exist "where those events
occurred so recently that the particular character trait of the
individual involved can be reasonably assumed to have remained
unchanged."
So despite the dissenting judge's view that the Board "did not render
its decision because it found his views on homosexuality
objectionable," it appears that she endorsed the Board's holding
against Ake his views that he was persecuted by homosexuals, and
endorsed the conclusion that his lack of sufficient repentance shows
inadequate "honesty and integrity." Thus, if just one of the judges on
panel had switched sides, Ake's license revocation -- based on his
continuing unrepentant hostility to homosexuality, and his view that
anti-gay telephone harassment shouldn't be a felony -- would have been
upheld. Likewise, if Ake hadn't been willing to take the time and
money to appeal the decision, he'd have been denied his license partly
based on his opinions.
5. Now Ake is probably not the man I'd want for my accountant; and
it's not irrational to draw the inferences that the Board drew, and
conclude, for instance, that someone with Ake's past record and
current attitudes might be rude to gay or lesbian clients, or might
even leave them harassing messages. Certainly past behavior is some
predictor of future behavior.
But it seems to me that there should be something more than a rational
fear of some possible (and likely fairly mild) misconduct before the
government forbids someone from practicing his profession. And this is
especially when the prohibition is based in part on the person's
opinions, however reprehensible. Ake has been punished, and has served
his sentence. At this point, he continues to have the full First
Amendment right to disapprove of homosexuality, to speculate about
being persecuted by homosexuals, and to oppose felony punishment (or
even any punishment) for telephone harassment.
Denying him a license based on his views plus his past crime (as
opposed to just based on his past crime) strikes me as at least wrong
and possibly unconstitutional. (By way of analogy, I take it we'd
agree that denying someone a license based on his race, religion, or
sex plus his past crime, as opposed to just based on his past crime,
would be wrong and unconstitutional.) And this is especially so when
the connection between the views and the character traits most
necessary for accounting is relatively weak. Even if it's proper to
deny someone an accounting license because he has a past crime plus
says it shouldn't be a felony to, say, steal from the capitalists to
give to the working classes (and I take no view on that), this
shouldn't apply when the person's views relate to anti-homosexual
telephone harassment.
6. Finally, this should be an illustration of two things. First, some
of the most burdensome restrictions are indirect consequences of
criminal punishment, not the direct ones. I was reminded of Hodgkins
v. North Carolina Real Estate Comm'n, 504 S.E.2d 789 (N.C. Ct. App.
1998), in which the Commission denied Hodgkins a license as real
estate salesman because of his past felony conviction for "soliciting
a crime against nature," i.e., soliciting gay sex, in a public place.
The direct punishment was comparatively mild: "a term of imprisonment
of two years which was suspended for three years' unsupervised
probation," plus a fine of $250, and an order "to stay away from the
North Carolina Arboretum and from a location known as Sandy Bottom."
And the conduct probably should have been criminal, not because it
solicited sex from a stranger (something that normally isn't a crime,
especially when it's done in a place where such sex solicitation is
not uncommon), or because it focused on gay sex or on nongenital sex,
but because it contemplated sex in a public park.
But the consequence was the denial of a license to practice your
chosen profession. And the rationale for the denial was similarly
tenuous: "A person's tendency to abide by the law of the society in
which he lives is a fair measure of that person's trustworthiness and
honesty. Such proof of petitioner's failure to be a law-abiding
citizen is therefore relevant to determine whether or not he possesses
the character and integrity sufficient to be entrusted to 'hold the
position of public trust and confidence which licensure as a real
estate broker demands.'" Really? Just how well does a willingness to
break the laws against public sexual solicitation, or public sex,
predict one's possible misconduct as a real estate broker?
And, second, hate crimes laws in particular can have these sorts of
unexpected effects. A misdemeanor becomes a felony. That triggers not
just immediately greater criminal punishment, but various other rules
that require greater scrutiny of people who have felony conviction
records. And the application of those rules, plus a consideration of
whether the person has been properly "rehabilitated," tends to involve
judgments about the person's continuing ideological views. Committing
a racist, anti-Semitic, or anti-gay crime -- even a crime that would
otherwise be comparatively minor -- not only sends you to prison. It
also potentially disqualifies you from a profession, perhaps for many
years, so long as you continue to publicly espouse your opinions (even
if you no longer act criminally based on them).
I don't shed many tears for Ake himself. He certainly acted badly; and
ultimately he got his license back. But cases such as this make me
worry about the future, a future when 2-1 decisions such as the one
here get flipped to 2-1 in the other direction: If a person commits
even a minor crime (for instance, "disorderly conduct," which is
covered by the Illinois hate crime statute) because of a target's
sexual orientation, religion, race, and the like, the consequence
isn't just enhanced criminal punishment. It's also that the government
can continue, for years after the prison term is up, to decide whether
the convicted person has properly changed his views, and to deny him
the right to practice his chosen profession if he seems to continue
harboring his "[un]reformed" and "irrational" ideas.
([8]Hide much of the post.)
References
1. http://www.pacourts.us/OpPosting/Cwealth/out/1103CD08_5-20-09.pdf
2.
http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=1883&ChapAct=720%26nbsp%3BILCS%26nbsp%3B135%2F&ChapterID=53&ChapterName=CRIMINAL+OFFENSES&ActName=Harassing+and+Obscene+Communications+Act.
3. http://www.volokh.com/posts/1209665198.shtml
4. http://law.onecle.com/illinois/720ilcs5/12-7.1.html
5. http://law.onecle.com/illinois/720ilcs5/12-7.1.html
6. http://www.aopc.org/OpPosting/Cwealth/out/1103CD08_7-16-09.pdf
7. file://localhost/var/www/powerblogs/volokh/posts/1248977303.html
8. file://localhost/var/www/powerblogs/volokh/posts/1248977303.html
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