Ohio Law Student Not Qualified To Be Atty If Debts Not Paid, Supreme Court Rules

According to an ABA Journal article, Ohio’s highest court has ruled law grad Hassan Jonathan Griffin of Columbus, Ohio failed to satisfy the “character and fitness qualification” requirements to be an attorney because he had no visible means to pay back his law school loans or credit card debt.  Mr. Griffin works part-time in the public defender’s office, earning $12/hour.  He has $170,000 in loan debt and $16,500 in credit card debt.  Griffin provided information that he was remaining at his part-time job in the hopes that it would become a full-time position

To the Ohio Supreme Court, these facts rendered Griffin unfit to practice law based on low moral character.  The opinion is downloaded to the Box for those who wish to review it.

Frankly, and I agree with the ABA writers, this decision is outrageous!  In my opinion, this young man is being penalized for a legal education system that yokes its students with back-breaking student loan debt, often well into the hundreds of thousands of dollars.  The fact that Griffin is working – whether part-time or full-time – in a public interest career ought to be encouraged, not be grounds for punishment or banishment.  In fact, it is not at all unusual – instead, quite typical – for public interest jobs to be less than full-time at first, often working into more stable situations for those graduates that are able to stick it out.  In the present economy, Griffin is not doing anything extraordinary – certainly not immoral – when you consider the many articles recommending volunteer work as a means to land a full-time job.

If Mr. Griffin has any further avenues available to him to pursue this matter, this author strongly encourages him to do so against what is truly an inequitable decision, one with far-reaching implications.  For example, what if Mr. Griffin – like me – wanted to go directly into his own solo law practice, but lacked any clients at first.  Would that evidence insufficient morals to practice law?  If so, then can only the super rich, or super lucky, practice law in Ohio?

 

 

Scalia To Women: Corporations Have Rights, Not You

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Just how ridiculously narrow-minded and oppressive will U.S. Supreme Court Justice Antonin Scalia get?  It boggles the mind when you consider his latest rant.

In an interview with the online publication “California Lawyer” this past week, Scalia declared that the 14th Amendment does not protect gays or women from discrimination.

Scalia stated:

Q. In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we’ve gone off in error by applying the 14th Amendment to both?

A. Yes, yes. Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t.

If I understand the good Justice, taking into consideration his opinion in the recent Citizens United case, corporations have constitutional rights but women and other minorities are free game for discrimination, at least as far as the 14th Amendment goes.   Do you find it astounding that a jurist sitting on the Nation’s Court of Last Resort thinks that AT&T or Halliburton or BP has more rights than your mom does or your sister?  I do.

We all need to think very seriously about Justice Scalia’s comments.  Think about them in the context of this quote which I am re-printing from an excellent article in U.S. News’ Politics blog:

“…laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.”

Related articles

• Justice Scalia’s accidental argument for equal rights (dailykos.com)
• Supreme Court’s Scalia Says Discrimination Is Constitutional (usnews.com)
• Justice Scalia’s Warped Idea of Personhood: Not Women, But Corporations? (crooksandliars.com)

In Significant Workers’ Rights Case, The U.S. Supreme Court Grapples With Grammar

In legal disputes, success or failure often turns on the definition of a word.  For example, what does the word “file” mean?  To some, it refers to that ubiquitous manila or colored organizer that many an office could not survive without.  To others, it refers to the act of lodging something with a particular body, agency, or office; e.g., to file a complaint.  Lawyers speak of a client’s “file” meaning the papers and records and other materials comprising the client’s case, dispute or matter.

Black’s Law Dictionary defines “file” in this way:

1. “A record of the court.  A paper is said to be filed when it is delivered to the proper officer…received to be kept on file as a matter of record;
2. To lay away and arrange in order, pleadings, motions, instruments, and other papers for preservation and reference…To deliver an instrument or other paper to the proper officer or official for the purpose of being kept on file…as a matter of record…It carries the idea of permanent preservation as a public record.”  (Black’s Law Dict. (6ht ed. 1990) p. 628, col. 1, citing City of Overland Park v. Nikias (1972) 209 Kan. 643, 498 P.2d 56, 59.

Once again, Black’s Dictionary seems to sum it all up nicely, simply and succinctly.  Oh, but if language were that simple.  Words don’t exist in a vacuum, after all.  They represent beliefs and intent expressed in a particular context.  As I heard an attorney state in a recent oral argument, “Nomenclature matters.”  Yes, it does.  But, so does context.

During its October term, in an employment law retaliation case that will potentially affect tens of millions of workers, the Justices of the U.S. Supreme Court are grappling over how to define the word “file.”  While their struggle may seem like petty semantics, “file” is important in the context of the employment law statute at issue – the Fair Labor Standards Act (FLSA).  The case involves an employee who sued his former employer, Saint-Gobain Performance Plastics Corp., alleging that it fired him in retaliation for a series of verbal complaints about the illegal location of time clocks in his factory.  Both a federal district court judge and the U.S. Court of Appeals for the 7th Circuit ruled against the employee, holding that the FLSA required a written complaint.  The employee’s case invokes FLSA’s anti-retaliation provisions, which seek to prohibit employers from taking adverse actions against employees who raise internal complaints about their working conditions, safety as well as others.

So, the crux of the issue is this:  Does the word “file,” by definition, mean to put something in writing as when you complain, or is a verbal complaint enough?

According to an excellent article in Law.com, at oral argument, the Justices peppered both sides with hypothetical situations involving verbal employee complaints.  These situations are well worth reading, and illuminate the analytical problem facing the Court and the real-world problem vexing employers.  Based on the questioning, the right wing of the Court appeared concerned that too broad a definition might expose employers to retaliation-based lawsuits over nothing more than a verbal reminder about a minor maintenance issue initiated in passing, or even social remarks made outside the office.

The “left-ish” wing of the Court, however, seemed to invoke the history of the FLSA.  In particular, many of the workers whose conditions were most improved by the FLSA – and who will likely be most affected by the Court’s ruling – include migrant field workers or others employees working in situations where writing something down was not thought to be all that easy to do.  Counsel for the employee, Kevin Kasten, remarked:

“It’s implausible to think migrant workers would leave the field to file written complaints with a government agency,” he said. “Migrant workers, coal miners, factory workers — they don’t write memos. This has to have a broad interpretation. Employees are the engine that drive this act.”

Realistically, both sides have a valid point.  In those case, the “right” decision usually is a combination of both viewpoints.  Retaliation lawsuits represent a serious threat to employers, particularly smaller employers who often have haphazard or non-existent complaint/response procedures.  Employers should have some parameters to rely upon when an employee makes a complaint, which should be easy for all to understand and follow.  To preserve the intent of the FLSA, an employee should not have to jump through burdensome or confusing procedural hoops to register a complaint about their working conditions.  In and of itself, that smacks of unfairness.

Fortunately, we live in a world where information sharing has been greatly improved over the world that existed when the FLSA was passed in its original form and even when its anti-retaliation provisions were added.  Today, as reported at Cyber-Esq., the vast majority of Americans own cell phones.  Cell phones are capable of confirming a verbal complaint (at least to some degree of specificity) with a text message or send even longer messages, textual and visual.  Mobile, hand-held forms of communication grown more capable and more approachable every day to “average” workers; they are no longer the playthings of the well off.  These “average” workers are the very people, as Justice Ginsburg correctly, remarked, the FLSA was intended to protect.

As a matter of fairness, taking into account the intent of the FLSA but also the current technologies available for creating a “writing” without having to leave the field and write a memo, it is not asking too much for employees to lodge some form of a writing that at least memorializes or confirms what may have started out as a verbal complaint.  In turn, an employer ought not require or expect the specificity of a pleading, motion or other instrument that transforms a remedial procedure like a complaint procedure into nothing more than a barrier to improved working conditions.

A word of advice for workers reading this article – I have counseled employees for more than a dozen years, and have given them all the same advice when it comes to making a complaint.  If a complaint is worthy enough of a verbal reproach to your boss, why not protect yourself and confirm that with something in writing.  In past generations, that might have been a letter, a handwritten note perhaps.  Today, it can be easily achieved via electronic means.  Do yourself a favor and don’t lock yourself into a dispute like this employee did.

Related articles

• Court grapples with verbal vs. written complaints (sfgate.com)
• Whistleblowing Laws: Know Your Rights (brighthub.com)

Elena Kagan Faces First Vote In Senate; Party Line Vote Expected

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This morning, the Senate Judiciary Committee is wrapping up its confirmation hearings for Supreme Court nominee, Solicitor General Elena Kagan.  Much of the speech in opposition to General Kagan centers on an alleged lack of appropriate experience for the Supreme Court.  While listening to the hearings, it seemed appropriate to provide a quick summary of General Kagan’s legal experience and qualifications:

1. Masters in Philosophy, Oxford University, 1983
2. Graduate, Magna Cum Laude, Harvard Law School, 1986
3. Law Clerk to Supreme Court Justice Thurgood Marshall, 1988
4. Counsel to President Clinton, 1995-1999
5. Appellate Justice, D.C. Circuit Court of Appeals, 1999-2003
6. First female Dean of Harvard Law School, 2003-2009
7. First female Solicitor General, appointed January 5, 2010

Aside from an apparent lack of experience as a practicing attorney, General Kagan brings strong academic credentials and judicial experience on the Nation’s most powerful appellate bench.  It is singularly interesting to watch one Republican after another decry General Kagan’s nomination when many, if not most, of these same Senators were all but committed to supporting President George W. Bush‘s failed nomination of White House Counsel Harriet Miers, a far more political position than Solicitor General.

You can watch the hearings on C-Span3’s Live Stream.  You can read a full overview of General Kagan’s background here.

SCOTUS Rules No Life Without Parole For Juveniles Who Haven’t Killed

In a 5-4 decision, splitting along liberal-conservative lines, the U.S. Supreme Court ruled today that juveniles cannot be incarcerated for life without parole if they were not convicted of homicide.

The case involved Terrance Graham, implicated in armed robberies when he was 16 and 17, and now serving a life sentence in Florida.  Florida which holds more than 70 percent of juvenile defendants locked up for life for crimes other than homicide.

Writing for the majority, Justice Kennedy wrote that “the Eight Amendment does not permit” the states to deny a juvenile “any chance to later demonstrate that he is fit to rejoin society based solely on a non-homicide crime that he committed while he was a child in the eyes of the law.”

Approximately three dozen states allow for the incarceration of juveniles for life without parole based on non-homicide crimes.  Over 100 prison inmates in the United States are serving those terms in Florida and seven other states — California, Delaware, Iowa, Louisiana, Mississippi, Nebraska and South Carolina.

Justices Roberts, Thomas, Scalia, and Alito dissented from the Court’s ruling.

Court Upholds Adam Walsh Child Protection and Safety Act:

In another criminal procedure ruling, the Court upheld the Adam Walsh Child Protection and Safety Act, signed by President George W. Bush in 2006.  The law permits states to set up civil commitment procedures for “sexually dangerous” prison inmates, allowing for the indefinite incarceration of such inmates long after they have served their sentences.

In a 7-2 decision authored by Justice Breyer, the Court wrote that the law is:

“[A] ‘necessary and proper’ means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned and to maintain the security of those who are not imprisoned by who may be affected by the federal imprisonment of others.”

Under the federal law, in order to detain such inmates, the state must prove the following:

1. The individual has previously “engaged or attempted to engage in sexually violent conduct or child molestation”;
2. He/She currently “suffers from a serious mental illness, abnormality, or disorder”;
3. The prisoner “as a result of” that mental illness, abnormality, or disorder is “sexually dangerous to others” in that “he would have serious difficulty in refraining from sexually violent conduct or child molestation if released.”

“If the Government proves its claims by ‘clear and convincing evidence,’ the court will order the prisoner’s continued commitment,” Breyer said.  “Clear and convincing evidence” is the highest standard of proof required in a civil proceeding, but is not as high a standard as the “beyond a reasonable doubt” standard applicable in criminal cases.

Justice Thomas and Scalia dissented, writing that nothing in the Constitution gave Congress the power to enact such sweeping legislation.

You can read more about these decisions here and here.

Senate Confirms Denny Chin To Second Circuit Court of Appeals

Today, the Senate voted 98-0 to confirm President Obama’s nominee, Judge Denny Chin, to serve on the United States Court of Appeals for the Second Circuit.  President Obama nominated Judge Chin in October of 2009.   Unfortunately, as part of the GOP’s overall strategy of blocking any federal government action by the Obama administration, Judge Chin’s nomination had been subject to a GOP filibuster effort.  This effort was ended when Democrats pushed successfully for cloture earlier this month, which you can read more about here.

To illustrate the ridiculousness, dis-ingenuousness, and dangerousness of the GOP’s filibuster policy, once the filibuster was broken by cloture, the Senate voted 98-0 to confirm Judge Chin.  This clearly demonstrates the GOP is simply trying to bring the Obama government to a standstill for whatever sad political gain they think it will give them instead of acting on genuine principles or policies.  All Americans should join together in denouncing the GOP’s actions as nothing more than political trickery, if not closely approaching a violation of the oaths the Senators take when assuming their offices.

Judge Chin will become the only Asian-American judge to sit on a federal Court of Appeals.  He gained notoriety recently as the judge who presided over the Bernie Madoff trial in which he sentenced Madoff to 150 years in prison for the largest-ever Ponzi scheme.

Judge Chin is widely viewed by most moderates and many liberals as an excellent choice by the Obama administration to fill the vacant seat on the Second District from which United States Supreme Court Justice Sonia Sotomayor was also chosen.

The Second Circuit is well-known as a federal appeals court which hears many white collar and finance-related crimes and wrongs, so our country certainly needs the best possible judges on this circuit in the wake of such outrageous wrongs as the Madoff scandal and the current allegations against Goldman Sachs.

You can read more about the Chin nomination here and here.

If you agree with me that the GOP’s filibuster tactics are wrong, join my Twitter stream here.  I frequently tweet about this issue as well as other progressive causes.

I also ask anyone who is as concerned about the actions of the GOP on the workings of the federal government, particularly President Obama’s administration, I ask that you join the Facebook cause, “I Support My President,” here.

Federal Court Rules That Washington Felons Are Entitled To Vote

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On Tuesday, the 9th Circuit Court of Appeals overturned Washington State’s law banning voting by incarcerated felons, finding the state’s criminal justice system ‘infected’ with racial discrimination.

A 3-judge panel found that Washington’s law violates the Voting Rights Act of 1965 (VRA).  This is the first time that a federal appeals court has equated systemic discrimination with other prohibited activities under the VRA such as poll taxes.

State Attorney General Rob McKenna said he will appeal — either back to a larger 9th Circuit panel, or directly to the U.S. Supreme Court.

The two-judge majority based its decision on volumes of social science research presented by plaintiffs, which the Court stated, “speak to a durable, sustained indifference in treatment faced by minorities in Washington’s criminal justice system — systemic disparities which cannot be explained by ‘factors independent of race.’ ”

You can link to an article from the Seattle Times discussing the case here.

A PDF copy of the Court’s decision is also in the Box.

We will be following this case with great interest, particularly if the case is appealed to the U.S. Supreme Court.

9th Circuit Rules Taser Use Excessive; Defines What Constitutes “Resisting Arrest”

Today, in the matter of Bryan v. McPherson; City of Coronado, the U.S. 9th Circuit Court of Appeals issued what appears to be a significant ruling on the propriety of police officers using tasers.  The Court held that a police officer‘s use of a taser against an individual, without warning during a traffic stop for a seatbelt infraction, was unconstitutionally excessive under the circumstances.  The circumstances in the case included the fact that the plaintiff was unarmed, did not level a verbal or physical threat against the officer, was 15-25 feet away from the officer, and was facing away from the officer.

According to the officer, the plaintiff took a step towards him, justifying the use of the taser.  The 9th Circuit rejected this argument, ruling that even if the plaintiff had done so, the officer was not justified in using an intermediate level of force.

One of the most interesting aspects of this decision appears to be the Court’s characterization of the taser as intruding upon a person’s bodily functions and integrity in a way that other non-lethal uses of force do not.  As such, use of a taser must be justified by a strong governmental interest that compels employment of such force.

The second interesting aspect of the case is the Court’s characterization of what constitutes “resistance.”  In many cases, police officers use the argument that a suspect was “resisting” in order to justify the application of a higher level of force than what is necessary under the circumstances. 

The Court held that, where a suspect complies with an officer’s instructions in all respects except that he did not remain in his car and was shouting gibberish and hitting his own legs, the person is not engaging in “resistance.”

Ever since its invention in 1974, the taser has been the subject of close scrutiny by civil rights advocates and the media.  Since at least 2004, Amnesty International has expressed grave concerns about the ease with which police officers use taser to inflict serious bodily injury on individuals.  You can link to Amnesty International’s website discussing tasers here.

Taser International, the company that manufactures the taser for law enforcement agencies, has also been the subject of numerous lawsuits over the weapon.

CRW will follow this decision closely to see if it is appealed to the U.S. Supreme Court.  In the meantime, I have placed a PDF copy of the decision in the Box for you to download entitled “City of Cornado Taser Case.”

Supreme Court Declines “Vamos a Cuba” Case

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Yesterday, the U.S. Supreme Court decided not to hear a bitterly contested First Amendment case arising out of Miami-Dade County, Florida, and which has come to be known as the “Vamos a Cuba” Case.  “Vamos a Cuba,” or “A Visit to Cuba,” is a children’s book at the center of the controversy, which school board officials removed from the school library.

As reported in yesterday’s Christian Science Monitor, school board officials determined that the book portrayed an inaccurate picture of life in Cuba, based largely on one parent’s offense to the following statement:  “People in Cuba eat, work, and go to school like you do.”  “Vamos a Cuba” is part of a 24-volume set of books intended to introduce U.S. children to life in other countries.

The ACLU filed suit against the school board claiming that the board’s actions constituted censorship in violation of the 1st Amendment.  The U.S. District Court agreed, issuing an injunction commanding the school board to restore the book to the library shelves.  The school board then filed an appeal, and the 11th Circuit Court of Appeals disagreed with the trial court’s ruling and lifted the injunction.

By refusing to take up the case, the Supreme Court will let the 11th Circuit’s ruling – and the school board’s actions – stand.

Miami-Dade County has a long history of political controversy, first making headlines with Anita Bryant‘s prominent campaigning in 1977 to repeal a local ordinance that prohibited discrimination on the basis of sexual orientation.

What is remarkable about this case, in my opinion, is the fact that the school board convened not 1, but 2, panels to review the book and decide if it should stay or go.  The first panel consisted of 8 individuals, voting 7 – 1 in favor of the book staying on the library shelves.  Apparently, not to be dissuaded, the board convened a second, larger panel of 16 individuals.  They voted 15 – 1 in favor of the book.  Despite these resounding vote totals, the school board then voted 6 – 1 in favor of removing the book.

Another point that bears mentioning is that the school board also rejected any argument that the library could acquire other books about Cuba that might present a more “well-rounded” view of the country.

The U.S. Supreme Court has tinkered with Tinker v. Des Moines School District for years now, gradually whittling away at young people’s freedom of expression and First Amendment liberties.  This time, I fear, they struck a potentially worse blow to the First Amendment by not getting involved.

Do you agree with the school board’s actions in this particular case?  Should a local school board be permitted to remove a book from the public school’s library because the board believes it paints an inaccurate viewpoint about another nation?  What if a school board decided that the Holocaust did not actually happen, and banned any books referencing it?