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January 20, 2016

Twenty-Four and No More Poll Taxes

The Twenty-Fourth Amendment was ratified on January 23, 1964. It states:


Section 1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax.


Section 2. The Congress shall have power to enforce this article by appropriate legislation.


Several states had imposed poll taxes to evade the Fifteenth Amendment, which provides, in part, “[t]he right . . . to vote shall not be denied or abridged . . . on account of race, color, or previous condition of servitude.” In ceremonies celebrating the ratification, President Lyndon Baines Johnson stated that “[n]othing is so valuable as liberty, and nothing is so necessary to liberty as the freedom to vote without bans or barriers. . . . There can be no one too poor to vote.” Lyndon B. Johnson, Remarks upon Witnessing the Certification of the 24th Amendment to the Constitution (Feb. 4, 1964).


 

January 20, 2016

Deferred Deportation Granted Certiorari

On January 19, the U.S. Supreme Court granted certiorari in United States v. Texas, No. 15-674, regarding the Fifth Circuit’s upholding of an injunction against the administration’s deferred deportation program. In November 2014, the Department of Homeland Security issued a memorandum, referred to as a “Guidance,” providing for deferred deportation and for work permits for illegal immigrants who have been in the United States at least five years and are parents of U.S. citizens or of legally permanent residents. The questions presented concern the Article III standing of states; issues under the Administrative Procedure Act, 5 U.S.C. § 500 et seq.; and the nature of the guidance as arbitrary and capricious or otherwise not in accord with law. Petition for a Writ of Certiorari, United States v. Texas, No. 15-674 (Nov. 2015).


 

January 20, 2016

Dr. King's Birth and Holiday

January 15, 1929: the birthday of Dr. Martin Luther King Jr. After years of legislative, lobbying, and public advocacy efforts, the third Monday of January was established as Martin Luther King Day, a federal holiday; the legislation was signed by President Ronald Reagan on November 3, 1983, and the holiday was first observed on January 20, 1986. King Ctr., Making of the King Holiday: A Chronology.


 

January 20, 2016

The ERA Is Born

On January 11, 1885, Alice Paul was born. She was an activist for women’s suffrage and the author of the Equal Rights Amendment. In 1913, with other suffrage activists, she formed the Congressional Union, later known as the National Women’s Party. Alice Paul Institute.


 

January 20, 2016

Death Takes a Jury Day: Hurst v. Florida

In Hurst v. Florida, No. 14-7505 (U.S. Jan. 12, 2016), the U.S. Supreme Court held that Florida’s statutory scheme for imposing the death penalty violated the defendant’s Sixth Amendment right, in conjunction with the Due Process Clause, to have that sentence imposed by a jury, as an “element” requiring proof beyond a reasonable doubt. (Florida is second to California in the number of persons on death row but leads the nation in exonerations. Death Penalty Information Center, Facts about the Death Penalty.)


Perhaps significantly, the majority opinion reflected the votes and reasoning of liberal and conservative justices, written by Justice Sotomayor, joined by Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, Ginsburg, and Kagan.


Timothy Lee Hurst was convicted of murdering a coworker in the course of robbing the restaurant where they were employed. In a prior appeal, Florida’s Supreme Court reversed the denial of relief on the ground that counsel had been ineffective in not investigating and presenting evidence on Mr. Hurst’s borderline intelligence, possible organic brain damage, and placement in special education. Hurst v. State, 18 So. 3d 975, 1008–1015 (Fla. 2009).


The federal Supreme Court noted that, under Florida law, a first-degree murder conviction itself qualifies for only a life sentence. Florida had a “hybrid” process, where a separate, sentencing hearing is held. Hurst v. Florida, slip op. at 3–4. The sentencing jury hears evidence on aggravating and mitigating circumstances, and renders an “advisory verdict.” Id. at 4 (quoting Ring v. Arizona, 536 U.S. 584, 608 n.6 (2002)). The Florida statute describes this as an “advisory sentence,” not requiring specification of the factual basis for the jury’s recommendation of life imprisonment or the death penalty. Id. at 4–5 (citation omitted). Although the judge is to give “‘great weight’” to this recommendation, he or she weighs the aggravating and mitigating factors and determines life or death. Id. at 5 (citation omitted). At the second sentencing hearing, the judge instructed the jury that it could recommend death if it found the murder to have been especially heinous, atrocious, or cruel, or committed during a robbery; the jury voted 7–5 for death. The judge then imposed death, based on both these aggravating factors. Id. at 5. The defendant challenged his sentence under Ring v. Arizona, 536 U.S. 584 (2002).


The Supreme Court cited the Sixth Amendment right to trial by an impartial jury; in conjunction with the Due Process Clause, this included proof of every element beyond a reasonable doubt. Hurst v. Florida, slip op. at 6. In Apprendi v. New Jersey, 530 U.S. 466, 494 (2000), the Court ruled that any fact exposing a defendant to increased punishment was an “element” for the jury; Ring applied this principle to capital punishment. Florida’s statutory sentencing scheme, allowing the trial judge to find aggravating circumstances supporting a death sentence, thus violated a defendant’s right to have a jury find the facts necessary to support this punishment; the death sentence here thus violated the Sixth Amendment. Hurst v. Florida, slip op. at 7–8.


The Court rejected the state’s “bevy of arguments” supporting Mr. Hurst’s sentence, including harmless error, and reversed and remanded. Id. at 8–12. In particular, it addressed Florida’s citation of Hildwin v. Florida, 490 U.S. 638 (1989) (per curiam), and Spaziano v. Florida, 468 U.S. 447 (1984), for the proposition that the Sixth Amendment does not require that specific findings for imposing death must be made by a jury; the Court expressly overruled those decisions. Hurst v. Florida, slip op. at 11.  


Concurring, Justice Breyer opined that the Eighth Amendment requires a jury to decide on capital punishment, to avoid the risk of a death sentence by a judge as “a single government official.” Id. at 13 (Breyer, J., concurring).


In dissent, Justice Alito objected to the majority’s overruling of Hildwin and Spaziano, and distinguished Ring based on differences between Florida’s and Arizona’s capital sentencing processes. Id. at 15–16 (Alito, J., dissenting). He concluded that it has been more than 17 years “since Cynthia Harrison was brutally murdered” and that “[i]n the interest of bringing this protracted litigation to a close,” he would find any error from Florida’s procedure harmless. Id.at 18.


 

January 20, 2016

The ERA Is Born

On January 11, 1885, Alice Paul was born. She was an activist for women’s suffrage and the author of the Equal Rights Amendment. In 1913, with other suffrage activists, she formed the Congressional Union, later known as the National Women’s Party. Alice Paul Institute.


 

January 20, 2016

Vernon Dahmer: Justice Delayed, But Done

Fifty years ago, on January 10, 1966, civil rights leader Vernon Dahmer was killed. He was a businessman in Hattiesburg, Mississippi, active in the civil and voting rights movements and a focus of the Mississippi White Knights, that state’s extreme Ku Klux Klan organization, led by Imperial Wizard Sam Bowers.


Despite the Twenty-Fourth Amendment (which outlawed poll taxes) and the Voting Rights Act of 1965, some states still imposed poll taxes. The day before his death, Dahmer announced he would collect the taxes for his neighbors and pay taxes for those who could not. Dahmer’s home was attacked that night with guns and firebombs, and he died the next day from lung damage from the smoke.


Both white and black officials, community leaders, businesses, and residents were angered by the attack. President Lyndon Johnson ordered an FBI investigation, which led to charges against 14 Klansmen, one of whom pled guilty to arson and three of whom were convicted of murder and received life sentences. The trial of Bowers and the trial of another Klansman resulted in hung juries. The case was reopened in August, 1991; Bowers was convicted in 1998 and sentenced to life. Southern Poverty Law Center, Vernon Dahmer.


On the fiftieth anniversary of Dahmer’s murder, the Mississippi legislature held a ceremony celebrating his life and legacy.


 

January 20, 2016

Women Against Slavery: Lucretia Coffin Mott

Lucretia Coffin Mott, reformer and activist for abolition and women’s rights, was born on January 3, 1793. Among her many activities advocating justice, in 1833 she founded the Philadelphia Female Anti-Slavery Society. Lucretia Coffin Mott Papers Project.


 

January 20, 2016

Happy New Year: The Emancipation Proclamation

President Abraham Lincoln issued the Emancipation Proclamation on January 1, 1863. The proclamation did not end slavery—that did not occur until after the Civil War. Slavery is historically regarded as ending on June 19, 1865, when Union troops arrived in Galveston, Texas, and General Gordon publicly read General Order Number Three:


The people of Texas are informed that, in accordance with a proclamation from the Executive of the United States, all slaves are free. This involves an absolute equality of personal rights and rights of property between former masters and slaves, and the connection heretofore existing between them becomes that between employer and hired labor. The freedmen are advised to remain quietly at their present homes and work for wages. They are informed that they will not be allowed to collect at military posts and that they will not be supported in idleness either there or elsewhere.


See Library of Congress, Primary Documents in American History, Emancipation Proclamation.


 

December 15, 2015

Anniversary of Bill of Rights

On December 15, 1791, the Bill of Rights to the U.S. Constitution was ratified. James Madison used the Virginia Declaration of Rights as a model, and proposed 19 amendments to the Constitution, which had been ratified in 1788. By the time his proposals completed the ratification process in the states, the Bill of Rights contained only 10.


 

December 15, 2015

"One Person, One Vote," Two Cases

The U.S. Supreme Court heard arguments on December 8 in Evanwell v. Abbott, No. 14-940. The question in Evanwell is whether the "one person-one vote" principle under the Equal Protection Clause allows a state to use total population to establish legislative voting districts, rather than using only the voter population. The two plaintiffs hail from Texas districts with higher voter-to-non-voter ratios than others. As a result, they argue, their vote is worth up to 40 percent less than it would be elsewhere.


The Court also heard arguments in Harris v. Arizona Independent Redistricting Commission, No. 14-232. Harris deals with a supposedly non-partisan commission responsible for redistricting. The Supreme Court has previously said that a mathematical deviation between districts of up to 10 percent is allowable. Arizona’s districts meet that standard, but the plaintiff contends that the commission purposefully and impermissibly packed Republican districts with more voters, with the result that votes in the Democratic-leaning districts wound up counting more. The commission contends that the deviation was the result of legitimate considerations, including an effort to obtain pre-clearance of its 2010 redistricting by the Department of Justice under the Voting Rights Act, which is no longer required, after the 2013 SCOTUS decision in Shelby Co. v. Holder.


 

December 15, 2015

DOJ Announces Civil Investigation of Chicago Police Department

On December 7, U.S. Attorney General Loretta Lynch announced that the U.S. Department of Justice’s Civil Rights Division will investigate whether the Chicago Police Department has engaged in a “pattern or practice” of violating the Constitution or federal law, including through use of deadly force, racial disparities in the use of force, and accountability or lack thereof for misconduct.


The announcement follows the shooting of Laquan McDonald by Chicago police in 2014 (and the release of video footage of the shooting last month), but the Justice Department stated that the investigation is not intended to focus on any specific incident or individual. The goal—for the good of the public and the police—is to improve systems, see that law-enforcement officers receive proper training, equipment and policy guidance, and build trust between police officers and citizens.


 

December 15, 2015

The Thirteenth Amendment Celebrates 150th Anniverary

On December 6, 1865, the Thirteenth Amendment was ratified; it was officially proclaimed adopted on December 18. The amendment reads:


Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.


Section 2. Congress shall have power to enforce this article by appropriate legislation.


 

December 15, 2015

Bus Ride on the Justice Line: Rosa Parks 60th Anniversary

On December 1, 1955, Rosa Parks, an African-American woman in Montgomery, Alabama, refused to give up her seat to a white passenger. Alabama statutes and City of Montgomery ordinances provided for segregation in bus service, and Parks was arrested. She was an NAACP member, and that organization helped to organize a one-day boycott of city buses on the day of her hearing, after which Parks paid a fine. Although her own matter had concluded, the boycott group expanded into the Montgomery Improvement Association. Dr. Martin Luther King, Jr., who was new to the Montgomery community, was elected chairman, and the association continued the boycott.


Before Parks’s arrest, however, four other African-American women claimed they experienced mistreatment on city buses. They sued in federal court, alleging that the state and local laws violated the Due Process and Equal Protection Clauses under the Fourteenth Amendment. The district court agreed. Browder v. Gayle, 142 F.Supp. 707, 717 (M.D.Ala. 1956). In June, 1956, the appeals court affirmed that decision, followed by the U.S. Supreme Court in November. Browder v. Gayle, 142 F. Supp. 707 (D. Ala. 1956), aff’d 352 U.S. 903 (1956). In December, 1956, the order to desegregate buses arrived in Montgomery, and Dr. King and the association voted to end the then-381-day boycott.


 

November 12, 2015

Forfeit Assets, Forfeit Counsel: Luis v. United States

Sila Luis was indicted for fraud as a federal healthcare offense, specifically, that she gave kickbacks to persons who used her home healthcare service. After a hearing, the district court in Florida granted a preliminary injunction for the government, finding probable cause that Luis was alienating forfeitable assets. She had argued that those assets were to be used to pay her defense counsel. In an unpublished, per curiam decision (No. 13-13719, filed May 1, 2014), the Eleventh Circuit affirmed, citing, inter alia, Kaley v. United States, 134 S. Ct. 1090 (2014).


On November 10, 2015, the U.S. Supreme Court heard argument in Luis v. United States, No. 14-419. Returning to Luis’ original argument, the Court was asked whether the Fifth and Sixth Amendments are violated if untainted assets, meaning those not related to the alleged crime, are restrained, where a defendant asserts that those assets were to be used to pay counsel.


 

November 12, 2015

Batson Revisited: Black as the Scarlet Letter


In Batson v. Kentucky, 476 U.S. 79 (1986), in the trial of a black defendant on non-capital charges, the state used peremptory challenges to remove all four black potential jurors from the jury venire. The U.S. Supreme Court held that a defendant has no right to a petit jury composed of all or even some persons of his race. However, equal protection proscribes excluding potential jurors based on race: Such exclusion is discriminatory not only to the accused, but to the prospective juror.


That same year, Timothy Tyrone Foster, a black man, was charged in Georgia with murdering an elderly white woman. The prosecutor struck all four black prospective jurors—the same number as in Batson—and sought the death penalty to “deter other people out there in the projects.” The prosecutor’s jury-selection notes, not provided to Foster for years, showed that the names of black possible jurors had been marked “B”—“B#1,” “B#2” and “B#3” or highlighted.


The Georgia Supreme Court denied Foster’s application for certification to appeal, and he appealed to the U.S. Supreme Court. That Court heard argument on November 2, 2015, in Foster v. Chatman, No. 14-8349. It will address the question whether the Georgia courts erred in not recognizing a Batson claim in a capital case.


 

November 12, 2015

Busy Prisoners, Capping Fees: Fee Limits under the Prison Litigation Reform Act


On November 4, the U.S. Supreme Court heard arguments in Bruce v. Samuels, No. 14-844. The lead plaintiff, Jeremy Pinson, was sentenced to 20 years for threatening the president. He has filed over 100 civil actions and appeals nationwide while in federal prison. The question before the Court is whether the Prison Litigation Reform Act, 28 U.S.C. §1915, caps monthly filing fees at 20 percent  of a prisoner’s income, regardless of the number of filings for which fees are owed.


 

November 12, 2015

155th Anniversary of Abraham Lincoln's First Presidential Election


On November 6, 1860, Abraham Lincoln was first elected president, as the national divide over states’ rights and slavery continued. On December 20, 1860, South Carolina voted to secede; in January and February 1861, six more southern states followed it.


Lincoln took office on March 4, 1861; in his inaugural address, he used the now well-known phrase, “the better angels of our nature.” Confederate troops attacked Fort Sumter, in South Carolina, starting April 12, 1861. On April 15, President Lincoln called for 75,000 troops from Union states’ militias; after that, four more southern states joined the Confederacy. President Lincoln died on April 15, 1865, having been shot by John Wilkes Booth.


 

October 16, 2015

Civil Rights Cases Anniversary


October 15 marks the anniversary of the U.S. Supreme Court’s decision in the Civil Rights Cases, 109 U.S. 3 (1883). The Court, by an 8–1 vote, held that the Fourteenth Amendment did not give Congress power, pursuant to the Civil Rights Act of 1875, to address racial discrimination by private parties. The cases were a consolidation of five cases brought by African Americans to challenge their exclusion from private facilities or those facilities’ “whites only” areas. Regarding a related challenge under the Thirteenth Amendment, the majority ruled that that amendment proscribed only the ownership of slaves. Justice John Marshall Harlan was the dissenter.


 

October 16, 2015

Bernie Sanders Introduces Justice Is Not For Sale Act


The Justice Is Not For Sale Act of 2015 has been introduced by Senator Bernie Sanders. Similar bills have been introduced in the House by Representatives Raul Grijalva, Keith Ellison, and Bobby Rush. In chief, the legislation seeks to ban private prisons, reinstate the federal parole system, and eliminate quotas relating to the holding of immigrants in detention. Supporters state that, in 2013, 8.4 percent of prisoners were held in for-profit private prisons; in 2014, 20 percent of persons detained by the U.S. Marshals Service were in private facilities, as were 62 percent of immigrants detained by Immigrations and Customs Enforcement. For additional information, see:


 

October 16, 2015

Ninth Circuit Reverses Nevada Court in Voter Registration Case


National Council of La Raza v. Cegavske, No. 13-15077 (9th Cir., 2015). The Ninth Circuit reversed a Nevada District Court’s dismissal of a complaint under the National Voter Registration Act of 1993. The district court dismissed on the basis that the plaintiffs, the council, and two Nevada chapters of the NAACP, lacked standing. The plaintiffs alleged, in part, that Nevada violated the requirements of section 7 of the act, regarding distribution of required materials for prospective voters and assistance to visitors to voter-registration facilities. The plaintiffs claimed harm in that, as a result, they were required to expend more of their own resources to assist these persons. The Ninth Circuit remanded to the District of Nevada, with instructions to assign the case to a different judge.


 

August 27, 2015

Radiation Exposure Compensation Act Amendments of 2015


From 1945 through 1962, the United States conducted more than 200 nuclear-weapons tests, which required uranium mining in several western states. Thousands of people were involved, as miners or as residents of mining and/or testing areas. Overall, mining was conducted in North Dakota, South Dakota, Wyoming, Colorado, Utah, Texas, New Mexico, Arizona, Idaho, Oregon, and Washington; there were also “downwind” injury claims areas in Arizona, Utah, and Nevada. In the 1960s, mine workers filed class actions; these actions were dismissed. In 1990, Congress passed the Radiation Exposure Compensation Act (RECA; 42 U.S.C. § 2210), to provide a compensation source for injured persons; it was amended in 2000 to broaden coverage.


This year, S. 331 and H.R. 994 were introduced, to extend the RECA Trust Fund for 19 years, expand “affected areas,” and make other expansions to the act’s coverage.


The bills have bipartisan support, and the Senate bill’s proponents requested a Senate Judiciary Committee hearing to include other expansions. Effects on communities such as Tularosa Basin, New Mexico, an historic Hispanic community, have been noted, as well as the inclusion in the claimant community of many Native Americans—many of whom worked as miners—and their children affected by disease and birth defects, given that many uranium mines were on or near Native reservations, or reservations were near test sites. In particular, the Navajo Nation Dependents of Uranium Workers Committee was formed to address the particular concerns of Navajo miners and their families.


In support of the pending federal legislation, New Mexico’s legislature passed Memorial 101, asking the New Mexico congressional delegation to support the proposed federal bills.

The Senate and House bills provide an interesting alternate view of access to justice, where they (1) seek to expand coverage of legislation originally passed to provide recourse where civil actions were rejected; (2) like that original legislation, address an underlying issue of environmental justice; and (3) will particularly affect persons and communities of color who were, at least arguably, disproportionately affected by the years of mining and weapons testing.
 

August 27, 2015

Karsjens v. Jesson: Civil Rights Remedies for the Civilly Committed


Karsjens v. Jesson (Civil No. 11-3659 (DWF/JJK); D. Minn. 2011) is a class action challenging the constitutionality of Minnesota’s Sex Offender Program (MSOP) for civil commitment of such offenders. MSOP and the litigation are addressed by Eric S. Janus and Jon Brandt in Karsjens v. Jesson: Challenging the Un-Civil Commitment of Civil Rights.


After that article’s publication, Judge Donovan W. Frank, on June 17, 2015, issued his 76-page findings of fact, conclusions of law, and order. He held MSOP’s governing statute unconstitutional on its face and as applied, in depriving offenders of their fundamental right to personal liberty in a manner not narrowly tailored to achieve the state’s compelling interest in pursuing rehabilitation while protecting the public.


Liberty, here the right to live free of physical restraint, is a fundamental right, such that its deprivation is subject to strict scrutiny. The findings of fact detailed structural problems with MSOP, including uncertainties how the program works, length of time to proceed through treatment, and failure to require periodic risk assessments, such that no offender has been fully released from the program in 20 years. There was no judicial bypass mechanism to relieve offenders from the long, cumbersome statutory process, which did not include services such as providing counsel. In addition, criteria for discharge from MSOP were more stringent than those for commitment, and the program placed the burden of proof on offenders. The statute provided for release to “less restrictive alternatives” but, of Minnesota’s three treatment facilities, only one constituted such an alternative. Offenders remained confined beyond the time they met reduction-in-custody criteria; the state’s new “rolling risk assessment” procedures were insufficient, as there were more than 700 offenders; staffing and staff training were inadequate; incorrect legal standards were used; and discharge planning and procedures were inadequate.


The court recognized the sensitivities: Judge Frank noted his own prosecutor experience with sex offenses, but nonetheless reminded that “politics or political pressures cannot trump the fundamental rights of [those] who. . . have been civilly committed. . . . The Constitution protects individual rights even when they are unpopular.” (Id., p. 68) The court made clear that its decision did not mean automatic release of any offender in MSOP. On August 12, 2015, a scheduling order required the parties to submit remedy proposals and supporting briefs, with arguments September 30, 2015. That order stated that the best interest of all, including the public, was for the state to prepare to solve MSOP’s many problems.


 

August 27, 2015

Recent Civil Rights Milestones


95th Anniversary: The 19th Amendment

August 18, 1920—The 19th Amendment to the U.S. Constitution was ratified, giving women the right to vote.


50th Anniversary: Voting Rights Act

August 6, 1965—President Lyndon B. Johnson signed the Voting Rights Act.


50th Anniversary: Jonathan Daniels, Voting Rights Worker

August 20, 1965—Jonathan Daniels, a 26-year-old, White, Episcopal seminary student from Keene, New Hampshire, was shot and killed in Haynesville, Lowndes County, Alabama, by segregationist Tom Coleman. Daniels went to Alabama to assist with registering African Americans to vote. He, Ruby Sales, Rev. Richard Morrisroe, a Catholic priest, and Joyce Bailey were arrested with others on August 14 for participating in a protest of whites-only stores. Sales and Bailey were African American teenagers. Upon their release, the four went to Varner’s Cash Store for sodas. Coleman confronted them with a shotgun. Daniels was shot protecting Sales. Reverend Morrisroe was shot when he grabbed Bailey to pull her away; he survived. Coleman claimed that the men were armed, or he believed they were, but was charged with manslaughter. Alabama’s attorney general, Richard Flowers, Sr., interceded, thinking a murder charge appropriate, but the trial judge removed him. An all-white male jury acquitted Coleman. In 1991, the Episcopal Church added Daniels to its calendar as a martyr.  


 

May 27, 2015

Responsibilities When Arresting a Mentally Ill Suspect


We have talked, seen, and heard about police brutality so often this past year; it has become almost “normal.” Transparency and social media ensure—or are in the process of ensuring—that police officers take proper steps for their own safety and others’ on calls. Often, mental illness is an aspect that police officers must consider when arresting suspects.


Recently, the U.S. Supreme Court found for the petitioners in San Francisco v. Sheehan; two San Francisco police officers were entitled to qualified immunity from a lawsuit seeking redress for a mentally disabled woman’s injuries. The woman had threatened to kill her social worker with a butter knife while he attempted to perform a welfare check on her. She had not taken her medication and was reported to the police. When the police arrived, the woman charged at them with a knife. The officers called in for backup. Instead of waiting for backup to arrive, one officer pepper-sprayed her as the other officer shot the woman, resulting in injuries. See San Francisco v. Sheehan, 575 U. S. ____ (2015).


The Court did not address whether police should have taken Title II of the Americans with Disabilities Act (ADA) into consideration when arresting Sheehan. Instead, the case was decided based solely on Sheehan’s Fourth Amendment constitutional rights. According to Justice Alito’s opinion, Sheehan’s rights were not violated. Scalia filed an opinion concurring in part and dissenting in part, joined by Kagan, arguing that the writ of certiorari should have been dismissed and the case should not have been heard if the question put forth into the court would have been answered. It begs the question as to why the petitioner, City and County of San Francisco, failed to mention the ADA in their oral argument when their opening brief clearly asks for the Court to look upon the ADA issue.


The Ninth Circuit, along with a majority of circuits, has opined that Title II of the ADA applies to arrests. “Ignoring the basis of the case and key questions about the ADA and law enforcement puts into society’s minds that discrimination by public officials and brutality of those who are disabled are a non-issue,” says Amanda O’Neal, special education attorney.


See Title II of the Americans with Disabilities Act for more information on what accommodations are provided to a qualified individual with a disability seeking to be put in custody by governmental authority.


Stella Kim, Mission Financial Services, Corona, CA


 

April 27, 2015

Should We Provide Extra Protection to Transgender Inmates?


The law has not caught up with certain societal changes or shifts. Our concept of what is acceptable for each gender is ever expanding and transforming. In the last couple of years, several cases have captured the public’s attention with respect to the rights of transgender inmates. These cases are controversial in part due to our notions of crime and punishment and our inherent failure to empathize with those who believe that they are born into the wrong gender. Transgender individuals who find themselves under the thumb of the criminal-justice system are often the target of vicious brutalization by other inmates.


In a lawsuit against the Georgia Department of Corrections (GDC) filed by a transgendered woman, Ashley Diamond, who reportedly began taking hormone therapy at age 17, asserts that her Eighth Amendment rights have been violated. Essentially, Diamond argues that the GDC fails to protect her as a non-violent offender, medium-security inmate, and transgender female as she has been housed with closed-security inmates (which are considered the most violent) and sexually assaulted by them. See Ashley Diamond v. Commissioner Brian Owens, et al, No. 5:15-cv-50 (M.D. Ga.) at ¶¶1–43.


Diamond was convicted of committing burglary and placed on probation. However, as a first-time offender, she was sent to a maximum-security prison for subsequently violating the terms of her parole in 2011. The facts of the complaint allege that she has been raped, sexually assaulted, and sexually harassed countless times and lives in constant fear of being brutalized by violent inmates. As a result, the complaint alleges that Diamond has suffered depression, anxiety, and thoughts of bodily harm as she even unsuccessfully attempted to castrate herself. The complaint also recounts that corrections officials have mocked, degraded, and retaliated against Ashley for raising awareness concerning the rapes and other heinous acts that she experienced from fellow inmates. Although, Diamond alleges that she properly notified prison authorities upon admission into the prison system that she was transgender and therefore vulnerable to attack, she was still placed into general population at a high-security lock-up. Sadly, there are many stories like Ashley’s and it presents an example of how these types of cases fall through the cracks.


There are several cases and statutes that already address prison rape and transgender status, such as the Prison Rape Elimination Act and Farmer v. Brennan, 511 U.S. 825 (1994). The Prison Rape Elimination Act’s findings demonstrate that as a general matter, rape in prison undermines the health and welfare of the inmate population because of the spread of sexually transmitted diseases, such as HIV or AIDS; spread of other diseases, such as Hepatitis B and C; and the mental-health risks that rape poses to victims, such as anxiety and depression. See 42 U.S.C.A. § 15601 (2003). Moreover, it also threatens the safety of the public, as the aggressor inmates who are released tend to be more violent because of their involvement in this rape culture, have a higher recidivism rate, have an increased likelihood of homelessness, and are less likely to become productive and stable members of our society. Farmer, 511 U.S. at 847. Farmer establishes that prison officials may be held liable under the Eighth Amendment for denying humane conditions of confinement only if they know that inmates face substantial risk of serious harm and disregard that risk by failing to take reasonable measures to abate it.


Some states have responded to Farmer and other similar cases by establishing special units for transgender inmates. For example, New York opened a transgender unit in Riker’s Island last year and special training was also given to the prison guards assigned to the unit. Similarly, a separate transgender unit was established in a downtown Los Angeles detention center. As our understanding evolves with our social construction of acceptable gender roles, state and federal lawmakers will have to decide how far the protection should extend for transgendered inmates.


Nikaela Jacko Redd, Washington, D.C.


 

February 10, 2015

Legal Aid Lawyers Lead the Way for Affordable Housing in NYC


Mayor Bill de Blasio’s plan to reclaim New York City as an affordable place for middle- and working-class families includes an "army of legal aid lawyers." The 115-page plan outlines more than 50 initiatives that will accelerate affordable construction, protect tenants, and deliver more value from affordable housing investments. The initiative is said to be one of the most ambitious and affordable plans in the nation.


Rachel Pereira, NJ


 

January 28, 2015

2014 Year in (P)Review


2014 was a historical year for the country. From social justice movements, to landmark Supreme Court decisions, last year profoundly changed the legal landscape. ABA's Standing Committee on Pro Bono and Public Service examines some of the changes and progress that 2014 brought to the pro bono community in this "Year in (P)Review." These changes range from technological innovations, to state rules regarding pro bono services. 2014 also saw an unprecedented outpouring of volunteers to assist the thousands of unaccompanied minors that entered the United States from Central America.  


Aastha Madaan, Madaan Law, P.C., Irvine, CA


 

January 20, 2015

How the Ban of Payday Loans Has Caused a Spike in Predatory Lending


Reports throughout the country indicate that automobile-title loans are a growing trend among financially limited consumers with low credit scores. An auto-title loan is a short-term cash loan that is secured by the borrower’s title to a vehicle.


These loans tend to entice the poor with very few assets to use their vehicles, most times their only mode of transportation, as collateral for cash. Similar to payday loans that have been banned or severely regulated in most states, auto title loans give the consumer much-needed cash at a high interest rate in return for the title of his or her automobile. When the debtor is unable to make payment, the car can be repossessed and in some instances, once payments are missed or late, the car is remotely disabled by the lender. The interest rate of some of the auto title loans can be as high as 80 to 171 percent. In most cases, consumers are so desperate to obtain the money that they do not read the fine print and find themselves in a situation where they must continue to extend the loan and incur more fees because they are unable to pay the loan in its entirety.


Many times, this is the only realistic option among most low-income borrowers with negative credit scores because they are unable to secure loans from banks due to heavier regulation after the subprime mortgage crisis. Prospective borrowers that are considering whether or not to obtain an auto title loan should be informed as to what the law in their state permits and what it does not.


Although the following considerations are not an exhaustive checklist, they should help to educate potential borrowers prior to entering into an auto-title-loan agreement. First, make sure that your state allows these types of loans in the first place. Second, check to see whether your state permits the auto title lender to charge interests and fees. Third, be mindful of whether the state mandates maximum cost limits and/or term limits. In other words, does the state proscribe the amount and the duration of the auto title loan? Next, carefully review that state’s statute governing the auto title loan and locate the repossession terms. For example, in the event of a repossession, may a borrower cure prior to the lender’s sale of the car to pay off the borrower’s debt? Last, each state will have a statute specifically noting prohibited practices for auto title lenders.


Until these auto-title loans are better regulated, and become less burdensome on unsuspecting consumers that are desperate for cash, it is upon consumers to protect themselves.  


Nikaela Jacko Redd, Washington, D.C.


 

January 12, 2015

Violence at Rikers Island Lands NYC Right in Court


2014 was a tumultuous year for the legal system in the state of New York. Unpopular decisions not to indict police officers in the death of Eric Garner, and widespread protests created tense environments throughout the state. In December 2014, the metropolis landed at the center of another legal battle after federal prosecutors launched a lawsuit against the city. In a 36-page lawsuit, the U.S. government detailed a long history of civil rights violations of adolescents at Rikers Island, the second largest jail in the United States.


Just four months prior to the decision to proceed to court, the office Preet Bharara, U.S. Attorney for the Southern District New York, released a report that revealed an infectious cycle of violence toward teenage inmates at Rikers. Amongst the infractions, the report detailed widespread excessive force by correction officers, the extraordinary use of solitary confinement, and a flawed system of investigating assaults by guards.


In a separate investigation on Rikers Island, the New York Times found 129 inmates with serious injuries. Of that number, a sobering 77 percent were inmates who had received a mental-illness diagnosis. These sobering facts were clues to a pervasive culture of abuse, violence, and mistreatment at Rikers Island, which soon became ammunition for the current lawsuit against the city.


The current suit has been lodged in conjunction with a preexisting class-action lawsuit (Nunez v. City of New York) regarding brutality at Rikers Island. The Nunez case was filed in May 2012, to expose “a culture of routine and institutionalized staff violence against inmates” within the New York City Department of Correction. Combined with the current suit, the Office of U.S. Attorney Preet Bharara believes it will be an effective way to address the violence targeted at both adults and adolescents at Rikers Island.


In light of the activities that took place in 2014, the current year is shoring up to be a litigious one for New York City and the state of New York.


Keywords: litigation, access to justice, New York City, Rikers Island, New York, violence, brutality, lawsuit, government, Department Of Correction, civil rights


Erika L. Glenn, Rodney Jones Law Group, Houston, TX


 

July 24, 2014

ABA Publishes Immigration Primer


The ABA's Commission on Immigration published a primer about the situation on the country's southwest border, with ideas and suggestions on how attorneys can help. The ABA Board of Governors established the Commission on Immigration in August 2002 to direct the ABA's efforts to ensure fair treatment and full due-process rights for immigrants and refugees within the United States.


 

July 8, 2014

IAALS Attemps to Close Gap in Access to Justice


The Institute for the Advancement of the American Legal System at the University of Denver has launched a creative project in an attempt to close the gap in access to legal services for family-law cases.


 

May 23, 2014

Supreme Court Upholds EPA's Cross-State Air Pollution Rule


To address the problem of air pollution emitted in one (upwind) state that causes harm in other (downwind) states, Congress included the Transport Rule, now known as the "good neighbor rule," in the Clean Air Act. That provision instructs states to prohibit in-state sources "from emitting any air pollutant in amounts which will....contribute significantly" to downwind states' "nonattainment..., or interfere with maintenance," of any EPA-promulgated national air quality standard.  42 U.S.C. § 7410(a)(2)(D)(i). Environmental Protection Agency v. EME Homer City Generation, L.P., ___ S.Ct. ___, 2014 WL 1672044 at * 6 (2014).

In connection with the good neighbor provision, the EPA adopted the Cross-State Air Pollution Rule. “The rule calls for consideration of costs, among other factors, when determining the emission reductions an upwind State must make to improve air quality in polluted downwind areas.” Id.

A group of state and local governments and industry and labor groups petitioned for review of the rule in the U.S. Court of Appeals for the D.C. Circuit. The court vacated the rule in its entirety. Id. at * 11.


The Supreme Court reversed.  It held that "EPA's cost-effective allocation of emission reductions among upwind States...is a permissible, workable, and equitable interpretation of the Good Neighbor Provision." Id. at *21.


Jim Shelson, Phelps Dunbar, LLP, Jackson, MS


 

January 21, 2014

SCOTUS to Decide Affordable Care Act's Contraception Mandate


On November 26, 2013, the Supreme Court granted two certiorari petitions, agreeing to hear and decide the legality of the Affordable Care Act’s mandate requiring for-profit employers to include coverage for contraceptives in their insurance coverage offered to employees.


In Hobby Lobby Stores, Inc. v. Sebelius, the Tenth Circuit, sitting en banc, held that requiring employers to provide contraception coverage violated the Religious Freedom Restoration Act. That act provides protections for religious expression. In reaching its decision, the Tenth Circuit held that corporations, just like individuals, possess constitutional religious-expression rights. A December 16, 2013, decision from the U.S. District Court for the Eastern District of New York recently reached the same result.

In contrast, the Third Circuit, in Conestoga Wood Specialties Corp. v. Sebelius, upheld the contraception mandate as applied to a for-profit company owned by a Mennonite family. With numerous similar cases pending throughout the country, the Supreme Court’s decision should resolve the conflict.


Briefing in the case will be completed in early 2014, with oral argument likely in spring 2014. A decision is anticipated in mid-2014.


Keywords: litigation, employment law, labor relations, Affordable Care Act, ACA, contraception mandate, Supreme Court, Religious Freedom Restoration Act


Brian Koji, Allen, Norton & Blue, Tampa, FL


 

January 2, 2014

BigLaw Philanthropy Could Solve Access-to-Justice Problem


We know that tens of millions of Americans cannot afford needed legal services, and many that qualify for free services are turned away due to lack of staffing. The Legal Services Corporation calculates that less than one-fifth of the underprivileged who need legal services get them. A World Justice Project survey ranked the United States fiftieth out of 66 developed nations for providing access to justice to its citizens.


ABA Model Rule 6.1 provides: “A lawyer should aspire to render at least (50) hours of pro bono publico legal services per year.” If every lawyer in the country—roughly 1.2 million of them—contributed 50 hours per year, that would amount to 60 million hours of pro bono work annually. But not every attorney meets this goal.


An 2005 ABA survey 2005 found that about half of attorneys provided pro bono services to the underprivileged within the prior year, for an average of about 38 hours each. The top reason cited for non-participation was “lack of time.” Another report found that American lawyers averaged less than half an hour per week and under half a dollar a day in support of pro bono legal assistance, and that only 18 of the largest 100 firms met the Model Rules’ 50-hour target.


Assuming that the typical lawyer works 2,000 to 2,500 hours per year, the 50-hour annual pro bono goal is tantamount to a donation of at least 2 to 2.5 percent of one’s professional time.


Now imagine what would happen if every lawyer in the largest law firms donated 2 percent of their incomes to pro bono causes.


Consider the following: Even in the face of the economic downturn, the legal-services industry has been grossing about $270 billion annually. Roughly half of that, or $135 billion, is earned by the largest law firms (100-plus lawyers), which employ about 15 percent of all lawyers. If these lawyers donated just 2 percent of that figure to state bar foundations or legal-services organizations, it would total $2.7 billion annually.


That amount would make a huge dent in the nation’s access-to-justice problem. Given that the average entry-level public-interest lawyer’s salary is about $45,000, a sum of $2.7 billion could support the creation of 60,000 public-interest jobs (which could be eligible for loan-forgiveness programs, a boon to recent law grads). This translates to 120 million additional hours of legal services per year for those in need—twice the maximum amount possible if every attorney provided 50 hours personally.


Granted, some lawyers already donate substantial sums to pro bono causes. And I do not mean to discourage lawyers from donating their money and time; the ABA exhorts lawyers to do both. Personally engaging in pro bono work is usually enormously fulfilling in ways that cannot be translated to dollars and cents.


However, from a social-welfare perspective, the highest-paid attorneys can do more good by donating 2 percent of their incomes than by donating 2 percent of their time. If they are going to choose only one, we should not complain if they select the latter. Arguably, we should prefer it.


Consider a large-firm first-year associate earning a top-market salary of $165,000 per year. If he or she donated 2 percent of his or her income—$3,300—he or she could fund nearly 150 hours of a public-interest lawyer’s time. Or consider a partner at one of the most profitable firms in the country, earning an average of $4.5 million per year. With just 2 percent of his or her income, or $90,000, he or she could fund two full-time public-interest lawyer jobs. This is of far more benefit to the underprivileged than these attorneys could generate personally through donating 50 hours of their time.


Financial donations to legal-services organizations are tax-deductible, whereas donations of one’s time are not. Because the highest earners are typically in the highest tax brackets, a donation of 2 percent of pre-tax income is closer to a 1 percent reduction in spending power—an even smaller sacrifice.


I do not mean to absolve governments, law schools, or other institutions from addressing the legal needs of the underprivileged. My point is that there already exists a relatively painless way to make significant inroads into the seemingly intractable access-to-justice problem.


Instead of talking about the “99 percent” versus the “1 percent,” what we need is a movement focused on is the “2 percent.” As the saying goes, time is money. What every lawyer should be asking is: How will I give my 2 percent?


Keywords: woman advocate, litigation, Singleism, women, married, single


Martin Pritikin, acting dean, Whittier Law School


 

December 24, 2013

Work-Life Balance Concern Shifts to Singles


The public buzz on work-life balance tends to focus on the efforts of working mothers as they strive to achieve the delicate balance between family commitments and job responsibilities. A recent post by Golda Calonge on the blog Ms-JD.org, however, takes a look at recent discussion about single professional women and whether they are being unfairly expected to pick up the slack for their married counterparts. Ms-JD.org refers to this phenomenon as “singleism-prejudice” and “discrimination directed at married people.”


The blog reports that single, childless women interviewed by Facebook COO Sheryl Sandberg for her New York Times bestseller, Lean In, and by Ayana Byrd for her Marie Claire article, “The Single Girl’s Second Shift,” were disproportionately asked to work late and to take the lead on projects, while their colleagues with families were preferred for flexible work arrangements. The authors suggest that the troublesome result is that these overworked single professional women forgo social opportunities to meet marital prospects.


But the blog post notes that the authors perpetuate singleism by focusing on a very specific hetero-normative demographic (that might not, for example, include the LGBTQ population) and by universalizing single women’s motivations to create work-life balance. Also disconcerting is the “absence of men” from this dialogue and the “interchangeable” references to professional married women and working mothers without challenge to “the archetype of a nuclear family” that may no longer exist.


Keywords: woman advocate, litigation, Singleism, women, married, single


Joanne Geha Swanson, Kerr, Russell and Weber, PLC, Detroit, MI


 

December 24, 2013

Great Expectations


In a recent op-ed in The New York Times, “Great Expectations for Female Lawyers,” author Florence Martin-Kessler raises the question of whether women poised in 2001 to “have it all” in the big law firm setting had fulfilled those expectations more than 10 years into their practice. The article followed up on a 2001 magazine article portraying 21 women, most fresh out of law school, at a big New York law firm. The author was curious about what happened to these women who were about to enter the male-dominated world of big law.


In her follow up, Martin-Kessler learned that these 21 women had taken divergent career paths. Most were no longer with their original New York law firm, but more than half were still in private practice. Many of the women’s expectations had now bumped up against the realities of private practice. For example, one woman noted that the stress of making partner was just part of the game; once a person made partner, they still have to work hard. That particular woman said she wanted more of a balance. She ultimately left the New York law firm for a job with steady hours at the U.S. Securities and Exchange Commission. Another woman, who went from the law firm to a nonprofit and accepted an 80 percent pay cut in doing so, felt that her expectation from 2001—that working hard and dedicating herself to her practice would get her everything she wanted—was unrealistic. She seemed to struggle with the choices she has made since the original article. As noted by still another of the women, no matter what industry you look at, only 15–20 percent of the leadership in those industries are women, and the numbers are not changing dramatically over time. Indeed, only 4 percent of top U.S. law firms are run by women.


Considering these experiences, Martin-Kessler concludes that the women’s lives “were often far more complex than they had predicted,” and that “[e]ven the greatest of expectations, it seems, eventually encounter reality.”


Keywords: woman advocate, litigation, law firms, women professionals, work-life balance


Angela Benjamin, White & Case LLP, Miami, FL


 

December 2, 2013

Access to Justice Committee: An Exciting Beginning


The Section of Litigation recently restructured four existing task forces that had some overlapping functions and common goals, and formed one committee called Access to Justice, fondly known to members as “A2J.” The Access to Justice Committee is a merger of the Pro Bono & Public Interest Committee, the Legal Services Advocacy Training Committee, the Legal Services Delivery Committee, and the Access to Justice Task Force.


The chairs of the previous three committees and the Access to Justice Task Force are now chairs of the new Access to Justice Committee. The cochairs have been working hard to integrate the roles of their respective groups into comprehensive goals for the new committee, including trainings, public-service programs, and publications. The cochairs met and had extensive discussions during the Section of Litigation Fall Leadership Meeting in Chicago September 26–28, 2013, during which they discussed their vision of the new Access to Justice Committee and implementation of the new committee goals throughout the year.


The mission statement for the Access to Justice is as follows:


The Access to Justice Committee engages litigators to improve and increase the availability of pro bono or low-cost legal services for lower-income and other vulnerable persons. The committee accomplishes this mandate by shaping public policy on issues of social justice, assisting the Section in recognizing and rewarding exceptional individuals and organizations who operate in the areas consistent with the committee's mandate, and by providing training in lawyering, management, fundraising, and trial skills for attorneys and programs that provide legal representation to those persons the committee seeks to assist.


The committee has already accomplished some of its goals this year by publishing the Fall 2013 newsletter, which provided informative and timely pieces relevant to litigators in the field. The committee has also organized, and continues to organize programs to train attorneys, with an emphasis on training new attorneys in litigation and trial skills necessary to represent individuals in need of pro bono or low-cost legal representation.


Aastha Madaan, Brownstone Law Group, P.C.


 

October 9, 2013

New Guide to Affordable Care Act Online


As the Affordable Care Act remains in the political and public spotlight, this Politico guide gives an in-depth understanding of what really lies at the core of the act. The guide explains the effects of the act on individuals, small businesses, large businesses, and medical professionals.


Aastha Madaan, Providence Law Group PC


 

July 8, 2013

Superstorm Sandy and the Legal-Aid Community


Even though it’s been over eight months since Superstorm Sandy hit the East Coast, the residents of New York, New Jersey, and Connecticut are still recovering, and with the start of summer and hurricane season, it is vital to see how the legal-aid community is still helping out with the recovery from Superstorm Sandy. The legal-aid community in the states is assisting residents in filing claims for relief. The New York legal-aid and pro bono community is providing direct services to those most affected, including filing for Federal Emergency Management Agency and disaster unemployment insurance benefits, answering immigration-status questions, documenting and filing insurance claims, and addressing many other legal needs of individuals and small businesses. On June 24, 2013, New York governor Andrew M. Cuomo deployed representatives of the Department of Financial Services to locations in Nassau and Suffolk Counties to help homeowners and business owners affected by Superstorm Sandy apply for federal recovery aid.


In New Jersey, the law firm of McCarter & English, LLP, created a handbook for the victims of Superstorm Sandy. The handbook was created as a service by the New Jersey Bar Association and Volunteer Lawyers for Justice and is intended to serve as a reference guide to those affected by the storm. Additionally, all Legal Services offices in New Jersey are open. Legal Services will continue to work to help people access benefits, obtain safe affordable housing, and handle other legal issues to help families and communities recover from Hurricane Sandy.


In May, more than $367 million in federal assistance has been approved to help Connecticut with disaster expenses related to Superstorm Sandy. On June 21, 2013, Connecticut’s governor Daniel Malloy signed a measure inspired by the storm that empowers the state’s insurance commissioner to set up a mediation program after any “catastrophic event” that has prompted the governor’s office to declare a state of emergency. The act states that the insurance department “may establish a mediation program for any open claim for loss or damage to personal or real property” arising under either a “personal risk insurance policy” or one involving condominium owners. Automobile policies are exempt, as are contracts of insurance issued under the National Flood Insurance Program. In addition, the act applies only to claims where the amount in dispute is at least $5,000, though the policyholder and the carrier may agree to mediate disputes involving a lesser amount.


With weather patterns resulting in more aggressive storms, the states are pouring more money in legal-aid relief and also adopting new legislation to assist residents who were affected by storms such as Sandy.


Keywords: litigation, pro bono, public interest, legal aid, Superstorm Sandy, tri-state area, New York, New Jersey


Kyana Woolridge, The Woolridge Law Firm, Maplewood, NJ


 

June 10, 2013

Reduced Funding in Legal-Aid Programs Across the Nation


Currently legal-aid programs turn away more than half of the people that seek help from them. In 2011, Congress cut funding for the Legal Services Corp. (LSC) by $15.8 million, which was about four percent of the program's budget in the spring of 2011. Legal Services Corp. is an umbrella, non-profit group that distributes grants to 136 programs on the state level, The House Appropriations Committee has slashed an additional approximately $104 million in 2012, rolling back funding to $300 million—a level not seen since 1999. The number of people eligible, based on income levels, for LSC programs across the country has gone up 27 percent since 2007. Legal-aid program funding has been cut from states such as Massachusetts, Idaho, New York, and New Jersey, to name a few. It is a national issue. Legal-aid programs have been forced to lay off attorneys and support staff in addition to imposing furlough days for the programs.


On May 15, 2013, employees of Legal Services of New York (LSNYC) went on strike for the first time in 20 years. One of the main reasons for the strike was a dispute concerning the direction of LSNYC and the quality of services to the organization’s thousands of clients. LSNYC attorneys and members worried that management’s proposed cuts would undermine the organization’s model of retaining experienced advocates and in turn would diminish the direct legal services provided to clients. New York Legal Services is the nation’s largest legal-service provider. So with legal aid programs across the nation facing drastic cuts to their budgets, where does this leave the millions of people that depend on legal-aid programs?


Keywords: litigation, pro bono, public interest, legal aid, cut funding, strike, attorneys, Congress


Kyana Woolridge, The Woolridge Law Firm, Maplewood, NJ


 

June 4, 2013

ABA President Bellows: Justice System Being Starved by Legislators


ABA President Laurel Bellows emphasized the importance of legal aid and praised the work of the Legal Services Corporation at an event highlighting the release of a 44-page report by its Pro Bono Task Force. The report includes recommendations for serving the rising number of Americans who cannot afford lawyers in the face of sharply reduced resources for legal aid.

 


 

March 28, 2013

Just In! ABA Report on Pro Bono Service in the United States


The ABA Standing Committee on Pro Bono and Public Service has issued a report detailing the results of a national survey of attorneys who perform pro bono work. The survey report, Supporting Justice III: A Report on the Pro Bono Work of America’s Lawyers, quantifies the amount of pro bono work done by U.S. lawyers in 2011, identifies factors that encourage or discourage attorneys from performing pro bono service, and describes the characteristics of recent pro bono service that can help guide new pro bono initiatives. The survey was conducted by the Research Intelligence Group. A few of the results obtained from the survey include:


  • 70 percent of lawyers who were contacted directly by a pro bono program regarding a specific matter took on the matter.
  • 63 percent of survey respondents reported working on matters that address the everyday legal issues faced by people living in poverty.
  • Survey respondents provided 56.5 hours of pro bono work, with a median of 30 hours.
  • Solo practitioners provided an average of 62.7 hours.
  • Lawyers from firms of 51–100 attorneys provided an average of 39.9 hours.

Those who provided 50 or more hours of pro bono service have attributed the following to their success:


  • receiving referrals from an organized pro bono program
  • interest in performing pro bono work during economic downturns
  • interest in performing future pro bono work
  • working for an employer that supports pro bono service
  • seeking out pro bono cases rather than waiting to be called

Keywords: litigation, pro bono, volunteer, Supporting Justice III, service, ABA


Joy B. Tolliver, attorney-at-law and adjunct professor of legal studies


 

March 26, 2013

Touro Law Center Spearheads National Sandy Pro Bono Relief


The Touro Law Center in Central Islip, New York, has received a $40,000 grant to spearhead the recruitment of law students from across the nation to provide pro bono legal assistance to Long Island’s communities devastated by Hurricane Sandy. The grant will be used to hire an attorney project coordinator to recruit, organize, and coordinate relief efforts. This grant comes from the Rauch Foundation, a Long-Island based non-profit organization, which invests in programs benefitting children, families, and the environment.


Law students assisting with the relief effort will be assigned to non-profit organizations and government agencies that are already providing disaster relief. Students will have the opportunity to work on a wide range of legal matters including insurance, the Federal Emergency Management Agency, foreclosure, environmental, consumer and rebuilding, landlord-tenant, and employment. Though students may assist other geographic areas affected by Hurricane Sandy, Long Island is the first priority. This project will be modeled after the Student Hurricane Network experience that was developed following Hurricane Katrina on the Gulf Coast.


This monumental, pro bono effort coordinated by Touro is not the first that the center has implemented; in fact, just days after Hurricane Sandy, the Touro Law Center opened an emergency hotline in partnership with the Suffolk County Bar Association. The call center still provides referrals and legal advice for Long Island residents and small businesses. Also in response to Hurricane Sandy, the Touro Law Center has implemented curricular changes, established a new disaster-relief clinic, coordinated legal services for regional disaster relief, and now, through the Rauch Foundation’s grant, has coordinated legal services on a national scale.


Other law schools have expressed interest in assisting Touro with this effort, and pro bono assistance from attorneys is welcomed. Touro seeks to fill the six-month attorney project coordinator position immediately, and is also recruiting law students to spend their spring and summer breaks assisting with this project. To extend your support to this exemplary pro bono effort, please contact Thomas Maligno, director of pro bono and public service, at (631) 761-7033, or email.


Keywords: litigation, pro bono, public interest, Hurricane Sandy, Touro, Long Island, relief


Joy B. Tolliver, attorney-at-law and adjunct professor of legal studies


 

February 22, 2013

2013 Equal Justice Conference—Register Now!


This year’s Equal Justice Conference will be held May 9–11, 2013, at the Hyatt Regency St. Louis at the Arch. The Equal Justice Conference is an annual conference presented by the American Bar Association’s Standing Committee on Pro Bono and Public Service and the National Legal Aid and Defender Association. The conference unites all components of the legal community to discuss equal-justice issues as they relate to the delivery of legal services to poor and low-income individuals who are in need of legal assistance.


The conference is a great opportunity for all interested in pro bono and/or public interest issues, as it focuses on strengthening the partnerships among the key players in the civil justice system. Attendees will receive invaluable insight and gain knowledge through informative plenary sessions, workshops, partnership building, networking opportunities, and special programming designed to refine legal knowledge in a variety of content areas, including substantive law, resource development, research and technology, management and diversity, and others. Conference attendees have included pro bono and legal services program staff, judges, corporate counsel, court administrators, private lawyers, paralegals, bar-association leaders, and many others interested in the legal-services industry. All are invited to attend and will benefit from this remarkable learning experience!


Registration is now open. Early-bird rates end on Friday, March 1, 2013.


Keywords: litigation, pro bono, public interest, equal justice


Joy B. Tolliver, attorney-at-law and adjunct professor of legal studies


 

October 26, 2012

Executive Order Increases Sanctions on Iran


On Tuesday, October 9, 2012, President Barack Obama signed Executive Order 13628, which authorized the implementations of sanctions in the Iran Threat Reduction and Syria Human Rights Act of 2012 (TRA) and additional sanctions regarding Iran. The TRA was signed into law in August 2012, and the order includes amendments, the Iran Sanctions Act (ISA), and the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 (CISADA).


The president’s order expands an already large list of persons and entities targeted by Iran sanctions while closing loopholes and increasing penalties. Those targeted include anyone who works in Iran’s petroleum sectors or provides goods, services, infrastructure, or technology to Iran’s oil and natural gas sector; those who insure or re-insure investments in Iran’s oil sector; and those who transport refined petroleum to Iran. It also targets Iranian and Syrian officials involved in human-rights abuses. The order creates a framework to implement these sanctions and delegates enforcement to the U.S. Secretary of State of Secretary of the Treasury.


Executive Order Sections
The order implements the requirements of Sections 204, 402, and 403 of the TRA.

Section 1 of the order is intended to implement sanctions pursuant to ISA, CISADA, or TRA. Certain ISA sanctions require action by the private sector. The order will further the implementation of those ISA sanctions by providing authority under the International Emergency Economic Powers Act (IEEPA) to the Secretary of the Treasury to take certain actions with respect to those sanctions.


Sections 2 and 10 of the order are intended to implement the statutory requirements of CISADA, as amended by section 402 of TRA. Section 402 blocks property or interests in property and suspends entry into the United States of persons determined by the Secretary of the Treasury, in consultation with or at the recommendation of the Secretary of State.


Section 4 of the order prohibits foreign subsidiaries of U.S. persons from knowingly violating the Iranian Transactions Regulations, Executive Order 13599, section 5 of Executive Order 13622, or Section 12 of the Executive Order. Section 4 provides for civil penalties on the U.S. parent company for any such violations.


Sections 5, 6, and 7 of the order authorize the Secretary of State to impose, and the Secretary of the Treasury and other agencies to implement, certain sanctions in sections 5(a) and 6 of ISA that were enacted by CISADA, for activity occurring between July 1, 2010, and August 10, 2012.


Summary
This order is aimed at stopping Iran from repatriating revenue from oil, further destabilizing Iranian currency, and making more Iranian sanctions mandatory. The order ultimately seeks to deter Iran from pursuing a nuclear weapons program.


Additional information can be found at:


Executive Order 13628 (Last accessed Oct. 22, 2012)


Letter from President Obama regarding Executive Order 13628 (Last accessed Oct. 22, 2012)


Office of Foreign Asset Control Analysis of Section 4 of Executive Order 13628 (Last accessed Oct. 22, 2012)


Keywords: litigation, pro bono, public interest, Iran, sanctions, Executive Order 13628, trade compliance, Iran Threat Reduction and Syria Human Rights Act of 2012, Iran Sanctions Act, Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010


Jesse Horn, Esq. is an attorney at Holland & Hart LLP in Denver, Colorado.


 

October 19, 2012

Women in the 2012 Presidential Election


Women’s issues are at the forefront of the upcoming presidential election. A woman’s right to choose; right to contraception; equal pay; the potential outlaw of Roe v. Wade; and the future of Planned Parenthood are all on the table. Women make up a significant percentage of the vote and will likely play an important role in which candidate wins. According to Prudential Financial’s latest biennial study, "Financial Experience & Behavior Among Women", "53 percent of more than 1,400 women surveyed are primary breadwinners, with increasing numbers of women assuming this role as a result of spouses losing jobs during the financial crisis, divorce and women deciding to marry later."


With percentages of women being the primary breadwinner increasing, the election is not just about women’s issues, but family issues—Democrat and Republican. Depending on who wins the election, several of the major issues that deal with women will likely play out in this country’s highest court. The Affordable Care Act, which guarantees that women will not be denied coverage based on their health, or charged higher rates because of their gender, could be repealed no matter who wins the election. Equal pay for equal work is an issue that should be important to every woman, and the Lilly Ledbatter Fair Pay Act helps women fight back.


With women’s rights being on the line in this election, it is not only important that every woman votes, but that every man who stands for women’s rights votes as well.


Keywords: pro bono, public interest, litigation, Roe v. Wade, Planned Parenthood, Affordable Care Act, Lilly Ledbatter Fair Pay Act, Prudential Financial


Kyana Woolridge, Esq. is a partner at the Woolridge Law Firm in Newark, New Jersey


 

October 16, 2012

Pennsylvania Says Voters Can Cast Ballots Without Photo I.D.


A Pennsylvania Court rendered a decision that brought a great sigh of relief to many after national controversy surrounding voter identification laws in battleground states that could potentially impede many citizens’ ability to vote in the 2012 presidential election. During the primaries, a new Pennsylvania law required voters to submit photo identification to cast their ballots, and those without the requisite photo identification were precluded from voting. The effect of this law potentially would preclude young voters, elderly voters, and minority voters from casting their ballots.


In a recent decision, however, Pennsylvania Commonwealth Court Judge Robert E. Simpson, Jr. upheld the law requiring voters to have photo identification, but blocked it from taking effect until after the November 6 election. The court found that authorities had not done enough to ensure that voters had “liberal access” to photo identification cards.


The effect of this ruling affords Pennsylvania voters without state-approved photo identification the opportunity to cast their ballots on Election Day and without provisional ballots. Other states that have also relaxed their voter identification laws include Texas and Wisconsin, and the U.S. Department of Justice has blocked a similar law in South Carolina. Like Pennsylvania, New Hampshire has a similar voter identification law that allows voters without a photo I.D. to cast their ballots on Election Day, but voters must submit proof of their identity within one month of casting their ballot. Strict voter I.D. laws remain in Kansas, Indiana, Georgia and Tennessee; less concern, however, has been voiced over these laws, as they are not battleground states.

While Judge Simpson’s ruling is deemed a great victory for many, it is still unclear whether his decision is the “final say” on Pennsylvania’s voter identification laws, which may be appealed. Despite the uncertainty of the law’s permanency, Pennsylvania has already issued 13,000 photo identification cards—solely for the purpose of voting.

Keywords: pro bono, public interest, litigation, Election Day, voter identification, voter I.D.


Joy B. Tolliver, Esq. is an attorney and adjunct professor in New Jersey.


 

October 5, 2012

Women, Children, and International Human Rights


This month, on October 18 and 19, the Avon Global Center for Women and Justice will host its third annual conference on international human rights issues affecting women and children. Last year, the Avon Center partnered with Jindal Global Law School to host a conference in New Delhi, India, focusing on gender-based violence and justice in South Asia. This year’s conference will address sexual violence against girls in southern Africa. This topic is also the focus of a study and report conducted by the Avon Center, the Cornell Law School International Human Rights Clinic, and Women and Law in Southern Africa Research and Educational Trust. The report will be launched at the conference and its findings be discussed at the conference events.


Research for this report was conducted by faculty and students from Cornell Law School, who traveled to Zambia to interview government officials, school teachers, administrators, and children. Focusing on sexual violence in schools, one of many settings for sexual violence throughout Southern Africa, the researchers found that in Southern Africa, girls are raped, sexually abused, assaulted, and harassed by strangers, teachers, and peers while attending school. The researchers also found that many of these incidences of sexual violence are unaddressed because the victims are ignored by school and government officials. They also found that many girls do not report sexual violence because they fear further victimization. These findings, along with a study of Zambian law, were complied by authors in the report, which highlights their concerns and makes recommendations about how to address and reduce this violence. The conference will be held at Cornell Law School in Ithaca, NY, where the Avon Center is located.


UN Special Rapporteur on Violence Against Women, Rashida Manjoo, will be giving the keynote address on Thursday, October 18. A report launch and consultationfeaturing the report on sexual violence against girls in schools in Zambia will also be held on Thursday. This event is cosponsored by the U.S. Embassy in Zambia and will be open to the public. While the event is taking place in Ithaca, the U.S. Embassy will host a simultaneous event in Lusaka, Zambia, and connect participants in the two countries via video conference. This parallel conference will allow participants to begin a dialogue with Zambian policy makers regarding the concerns and recommendations raised in the report. In Ithaca, members of the panel will include judges from the United States and Africa. In Lusaka, participants will include Zambian government officials, including the Ministry of Education, police, and judiciary, as well as representatives of civil society organizations. For more information visit the Avon Center or contact Leigh Blomgren.


Keywords: pro bono, public interest, litigation, family law litigation


Alison Bain-Lucey is an associate with Weil, Gotshal & Manges LLP in New York, NY.


 

September 24, 2012

Giving for a Living: The Benefits of Pro Bono Litigation


For a young lawyer and new solo practitioner, valuable experience can be hard to come by. It was my search for this kind of experience that led me to the great benefits of pro bono work.


After working as an assistant public defender for several years, the increasingly overwhelming caseloads, lack of resources, and low pay began to take its toll. It was then that I decided to hang out a shingle. Leaving the stability of a government position to ride out the unpredictable waves of entrepreneurship was something of a gutsy move, but it’s a move that, for me, has a worth far greater than any potential risk. The success that I have found in my practice is due, in great part, to pro bono work.


Although I was well versed in criminal law and practice when I left the Maryland Office of the Public Defender, I had no other significant legal experience. I was looking for a way to gain experience in another area of practice when I found a local law clinic where the cost of membership was simply accepting one pro bono case from its resource center. From my first case, I not only found the experience I was looking for, I felt the reward of serving an underprivileged client. Additionally—as is the case with many pro bono programs—there was mentoring, malpractice insurance, sample forms and more.


Ultimately, I learned as Winston Churchill said: “You make a living by what you get; you make a life by what you give.”


Working with the pro bono program helped me realize my obligation to help in the equal justice mission. Pursuing that obligation has proven more and more rewarding—so much so, that pro bono work is now a part of my practice.


Keywords: pro bono, public interest, litigation, solo practitioner, law clinic


Sabrina Richardson, Esq. is the principal of the Law Office of Sabrina C. Richardson in Largo, Maryland.


 

September 10, 2012

Attorneys Ad Litem Essential Aid for Foster Children


Children are our nation’s future, and also the most vulnerable and underserved population in our legal system—especially children in foster care. Many foster children are awaiting permanent placement in homes and desperately need pro bono attorneys ad litem (AAL) to represent them.


When children receive assistance from AAL, their chances of achieving permanency and stability in their homes and their education increase substantially. The Jacksonville, Florida bar is one legal community that has taken great strides to address this urgent need by recruiting and training pro bono attorneys. The tremendous collaborative efforts of the Jacksonville Bar Association’s (JBA) Protecting Our Children Section, Legal Needs of Children Committee, AAL Sub-Committee, and Pro Bono Committee, along with Jacksonville Area Legal Aid and the Fourth Judicial Circuit Pro Bono Committee, have provided worthy and deserving children with an opportunity to have their voices heard, their needs met, and for some, the miracle of a home and loving family.


New pro bono AAL are given a 30-day preparation period during which they are provided CLE courses that they can take at their convenience. After the preparation period, a Dependency Court Judge appoints AAL, and the attorneys are provided with regular lunch and learning opportunities, where they can meet with other AAL and receive recent court decisions, legislative updates, and dependency practice tips. Pro Bono AAL may also request experienced mentors to guide them throughout their cases, while Jacksonville Area Legal Aid provides professional liability coverage, additional CLE training, and meeting space.


As attorneys, we have an ethical duty to provide legal services to those in the greatest need. Becoming one of the AAL is one of the greatest pro bono opportunities we can take on behalf of children in foster care. To get involved, check your state bar for more information. For those in Florida, go to www.floridaschildrenfirst.org for more information.


Keywords: litigation, pro bono, public interest, ad litem, foster care


Joy B. Tolliver, Esq. is an attorney and adjunct professor in New Jersey.


 

August 31, 2012

Deferred Action Plan Gives Hope to the Undocumented


Hundreds of attorneys across America have offered pro bono services to assist young, undocumented individuals with applications for consideration of deferred action. Formerly known as “Consideration of Deferred Action for Childhood Arrivals,” President Barack Obama used executive order to create this deferral of prosecution program in June 2012. The target population for this program is those who came to America as children and have lived, worked, and been educated in America, just as those born in this country.


Approval of the application by the U.S. Department of Homeland Security affords eligible, undocumented young adults a work permit and the opportunity to remain in the United States for an additional two years without fear of deportation. The application, which is subject to renewal, costs $465 and funds the administrative costs of the program, including a biometric check and the issuance of a secure work-authorization.


Those eligible to request consideration for deferred action include the following:


  1. Those under the age of 31 as of June 15, 2012;
  2. came to the United States before reaching their 16th birthday;
  3. have continuously resided in the United States since June 15, 2007, up to the present time;
  4. were physically present in the United States on June 15, 2012, and at the time of making their request for consideration of deferred action with USCIS;
  5. entered without inspection before June 15, 2012, or their lawful immigration status expired as of June 15, 2012;
  6. are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  7. have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

While those granted deferred action may remain in the United States for another two years and not accrue unlawful presence, they also do not have lawful status or public benefits. Additionally, applicants seeking deferred action have been assured that their information is protected from disclosure to U.S. Immigration and Customs Enforcement (ICE).


This new immigration policy also aids the Department of Homeland Security in identifying those who pose a risk to national security, or are a risk to public safety—including those who have committed violent crimes or are repeat offenders. The Department has noted that its prosecutorial discretion is used to ensure that enforcement resources are not expended on low priority cases, such as those who came to the United States as children and have been law-abiding members of their communities.


The November 2012 presidential election, however, will have a great impact on the effectiveness and the future of the deferred action program, as it was enacted by executive order, which can be replaced by another president. In the meantime, thousands of young adult immigrants can continue to enjoy the freedom that comes with living and working in America—the only place many of them know as home.


Keywords: litigation, pro bono, public interest, immigration, deferred action, deportation, customs enforcement, Obama, Department of Homeland Security


—Joy B. Tolliver, Eeq. is an attorney and adjunct professor in New Jersey.


 

June 22, 2012

Federal Court Finds DOMA Unconstitutional


This month, in Windsor v. The United States, the Southern District of New York held that the Defense of Marriage Act (DOMA) violates the Fifth Amendment’s equal protection guarantee. The case challenged DOMA based on the Act’s refusal to recognize same-sex marriages and the resultant disparate treatment of same-sex couples in the context of estate taxes. The plaintiff, Edith Windsor, filed suit following the death of her wife, Thea Spyer. After more than 40 years together, Windsor and Spyer married in Canada in 2007. When Spyer passed away in 2009, Windsor inherited from her wife, but was forced to pay more than $350,000 in estate taxes because she did not qualify for the unlimited marital deduction under 26 U.S.C. 2056 (a) due to DOMA’s failure to recognize her marriage.


Ms. Windsor’s suit was defended by the Bipartisan Legal Advisory Group of the U.S. House of Representatives (BLAG). The group intervened in 2011, shortly after U.S. Attorney General Eric Holder’s announcement that the Department of Justice would no longer defend DOMA.


The Windsor decision jointly addresses a motion for summary judgment filed by Ms. Windsor and a motion to dismiss filed by BLAG. After denying BLAG’s motion to dismiss, the court considered the standard that should apply to equally protection challenges to classifications based on sexual orientation. It declined to classify homosexuals as a suspect class, a matter of first impression in the Second Circuit, after determining that the motion for summary judgment could be decided on rational basis.


Applying the rational basis test, the court considered a number of reasons offered by the Intervenor-Defendant for the objective sought by DOMA and means used to meet that objective, specifically refusing to recognize same-sex marriages. These reasons included nurturing the traditional institution of marriage, caution, promoting a social understanding that marriage is related to childrearing, providing children with two parents of the opposite sex, maintaining consistency in citizens’ eligibility for federal benefits, and conserving federal resources. After considering each reason individually, the court held that the first four reasons offered were not logically connected to DOMA and, therefore, were not directly impacted by its enforcement. Looking to the fifth reason, maintaining consistency in citizens’ eligibility for federal benefits, the court found that this attempt to regulate the state’s definition of marriage ran afoul of federalism. Finally, the court held that economic interests, such as conserving federal resources, could not justify classification where no other rational basis existed. Based on these findings, the court granted Windsor’s motion for summary judgment and ordered payment of the excess estate taxes levied under DOMA.


Windsor’s co-counsel in this case, Paul, Weiss, Rifkind, Wharton & Garrison, LLP, are also co-counsel in a recently filed suit in the EDNY. Like, Windsor, this suit challenges the constitutionality of DOMA. In this case, the plaintiffs are five same-sex couples, each comprised of one spouse that is an American citizen and another that is not, that have been unable to obtain a green card for the non-citizen spouse based on DOMA’s refusal to recognize same-sex marriages. This case, along with Windsor, will likely join a number of federal decisions regarding DOMA that are making their way toward the U.S. Supreme Court.


Keywords: pro bono & public interest, litigation, LGBT Litigator


Alison Bain-Lucey, Weil, Gotshal & Manges, LLP, New York, NY


 

June 6, 2012

<-->New York Paves the Way with Pro Bono Hours as Prereq to Law License


New York is known all over the world for its culture, diversity, and opportunity. Many aspiring lawyers seek to practice law in “The City” not only because of the state’s prestige, but also because some of the country’s most famous lawyers have hailed from “The Big Apple.” However, while many know the names of big Wall Street law firms, most do not know about the thousands of New Yorkers who fail to receive effective legal representation each year because they simply cannot afford it. Because of the economic downturn, requests for legal services have risen; but due to budget cuts in state and federal funding for legal services, there are not enough lawyers to represent those in need. Requests for representation in the areas of foreclosure, domestic violence, bankruptcy, and worker’s compensation have soared in recent years. In fact, New York’s Legal Aid Society, which handles more than 300,000 cases each year, must still turn away eight out of every nine New Yorkers who seek their assistance. Simply put, there are not enough pro bono attorneys to represent the poor.


Seeking to correct this manifest injustice, New York’s Chief Judge Jonathan Lippman recently decided to add a pro bono requirement as a prerequisite for admission to the New York State Bar—making it the first state to require bar candidates to perform pro bono work prior to admission. Judge Lippman ruled that 50 hours of pro bono service must be completed before a New York law license can be issued. In further support of the pro bono requirement as a means to address New York’s unmet legal needs, Judge Lippman noted that about 10,000 bar candidates successfully pass the New York bar each year, which would yield 500,000 hours in pro bono services for the state’s underprivileged.


The mandatory pro bono requirement not only benefits the underprivileged, but it also benefits new lawyers, who will have the opportunity to gain practical legal experience early on in their careers. Some have argued that the pro bono requirement is flawed because it only requires inexperienced bar candidates to render pro bono services and not currently practicing, experienced lawyers. The New York State Bar currently encourages but does not require pro bono work for all its practicing attorneys. However, while the mandatory pro bono service hours for New York State Bar candidates may not be the perfect solution to the monumental gap in representation from the privileged to the poor, it is most certainly a step in the right direction.


Keywords: pro bono, litigation, New York State Bar, Judge Jonathan Lippman, legal aid


Joy B. Tolliver Esq., Volunteer Lawyer and Legal Professor, Newark, NJ


 

June 6, 2012

<-->The Global Public Service Reach of Patents to Address Humanitarian Issues


Generally, a patent is used to grant an exclusive right to an inventor to prevent others from using or distributing the patented invention without permission. Traditionally, patents are commonplace for inventions, new products, or new technology. In recent years, some inventors have attempted to patent “thought processes.” For example, in the mid-2000s it became popular for advisors to attempt to obtain a patent for their tax planning strategies. In September 2011, however, Congress banned new patents for tax strategies.


More recently, patents have become instrumental in humanitarian issues. On February 8, 2012, at a White House event to highlight President Obama’s Global Development Policy, the United States Patent and Trademark Office (USPTO) Director announced the “Patents for Humanity” pilot program. The Patents for Humanity program creates business incentives for patent holders to engage in humanitarian issues. USPTO launched Patents for Humanity in response to President Obama’s Global Development Policy call for “investments in game-changing innovation to accelerate progress toward development goals in health, food security, climate change, energy and environmental sustainability, and broad-based economic growth.” Under this program, inventors who successfully use their patented technology or products to address humanitarian needs in underserved regions of the world will receive a certificate to accelerate a patent application, an appeal, or an ex parte reexamination proceeding before the USPTO.


In furtherance of the Patents for Humanity program, as well as President Obama’s Global Development Policy, the ABA, Section of International Law: International Pro Bono Committee, will host a teleconference program regarding the “Humanitarian Uses of Patents” on September 27, 2012, at 12:00 p.m., Eastern Time. The telephone conference will feature an interactive discussion about humanitarian uses of patents that serve the needs of the world’s poorest populations while respecting the commercial interests and pragmatic and legal considerations of patent holders.


Keywords: pro bono, litigation, patent, humanitarian, policy


Kathleen A. Agbayani, Esq., is an associate in the North American Tax Practice Group at Baker & McKenzie, Washington, D.C.


 

May 4, 2012

New York’s Domestic Violence Court Used as Model Abroad


In 2003 New York began a new initiative to address domestic violence in the criminal justice system, establishing integrated domestic violence (IDV) courts in a number of towns and cities across the state. In an interview with the Avon Global Center for Women and Justice, Judge John C. Rowley, who presides over the IDV court in Ithaca, NY, explained that the courts are dedicated to the “one-family––one judge” model. According to Judge Rawley, the model is designed to increase consistency and decrease the number of court appearances a family must make. The model also allows greater access to victim services and increases offender accountability.


Judge Rowley’s IDV court in Tompkins County has a number of key features that relate not only to the victim and the offender, but also to the larger family, particularly children, affected by the domestic dispute. The “one family––one judge model” allows the judge to stay current on the information relating to the family he or she is working with and to handle all domestic matters in a consistent way. Additionally, the model allows judges to better coordinate with community responses to domestic violence, including collaborating with child welfare agencies and community groups offering assistance to both domestic violence victims and their children.


This same model, considered a progressive approach within the U.S. legal system, is now being adopted or contemplated internationally in countries where women continue to face serious threats to their personal rights and autonomy. In India, the New Delhi High Court, among others, has begun using the IDV model to address domestic violence. Similarly, national laws in Sri Lanka, Ghana, Sierra Leone, Brazil, and the Caribbean have been enacted to create specialized courts to address domestic violence cases. These courts represent a large step for women’s rights around the world and offer hope for women in countries where domestic and gender-based violence often go unaddressed due to cultural norms and a general lack of access to justice for women. For further on information on IDV courts and the International Women’s Rights movement please visit the Avon Global Center for Women and Justice.


Keywords: pro bono & public interest, litigation, family law litigation


—Leigh Blomgren, Women and Justice Fellow, Avon Global Center for Women and Justice.

Alison Bain-Lucey, Weil, Gotshal and Manges, LLP


 

April 16, 2012

Angel and Gulf Justice Consortium Win John Minor Wisdom Awards


The ABA Section of Litigation is proud to present the 2012 John Minor Wisdom Award to Eric Angel, executive director of the Legal Aid Society of the District of Columbia, and the Gulf Justice Consortium, a joint venture of legal-aid programs designed to address issues arising from the BP/Deepwater oil disaster. The awards will be presented on Friday, April 20, 2012, at the Section of Litigation’s Annual CLE Conference in Washington, D.C.


This very prestigious award is named after the late Judge John Minor Wisdom, who served on the Fifth Circuit during the 1950s and 1960s, when the circuit was recognized for advancing the civil rights of African Americans during a time of great racial segregation. In 1993, President Clinton awarded Judge Wisdom the Presidential Medal of Freedom, and, in 1994, the Fifth Circuit’s headquarters in New Orleans was renamed the John Minor Wisdom U.S. Court of Appeals Building. Judge Wisdom died in 1999 at the age of 93.


Each year, the recipients of the John Minor Wisdom award are those who have made outstanding strides and contributions to the attainment of justice and the accessibility of legal services for underrepresented populations. This year, Angel and the Gulf Justice Consortium will be honored for continuing this tradition of excellence in public service.


Eric Angel
As executive director of the Legal Aid Society for the District of Columbia, Angel developed court-based advocacy programs to provide assistance to litigants in the Paternity and Child Support Branch and the Landlord/Tenant Branch. Angel’s leadership also established a domestic violence intake center at United Medical Center, a medical legal/partnership in the Town Hall Education Arts Recreation Campus, programs to help underrepresented litigants with foreclosure mediation, and unemployment insurance and assistance for veterans. Additionally, Angel oversaw several class-action lawsuits that resulted in an award of several million dollars for low-income families for housing, food stamps, and other essentials. Angel, known for his unwavering commitment to public service, embodies the essence and spirit of the John Minor Wisdom Award.


Gulf Justice Consortium
After the devastating explosion of the Deepwater Horizon oil platform in April 2010, many public-interest lawyers rallied their efforts to assist the thousands of business owners, families, and restaurants that lost their livelihoods. These lawyers formed the Gulf Justice Consortium to provide direct representation for the thousands of families and businesses who were victims of the oil disaster. In June 2010, BP established a $20 million dollar claims fund to compensate the victims. Since June 2010, the legal services provided by the Gulf Justice Consortium have provided justice for thousands of victims, thus reflecting the public-service legacy of Judge Wisdom.


Read more about this year’s recipients of the John Minor Wisdom Award in the upcoming May issue of the Access to Justice Committee newsletter.


Keywords: pro bono, litigation, John Minor Wisdom, Fifth Circuit, Eric Angel, Gulf Justice Consortium, Section of Litigation


Biff Sowell, Esq., Sowell Gray Stepp & Laffitte, LLC, Columbia, SC


 

March 29, 2012

How to Resolve Ethical Issues in Pro Bono Matters


A hypo for you: You are the court-assigned lawyer for a parent in a child-protective proceeding in juvenile court. Your client is the parent of two minor children. The youngest child was removed from your client’s custody at the hospital where she was born. Your client is charged with neglecting both of her children because she tested positive for drug use during her pregnancy and failed to enroll in a drug-treatment program. You met your client when the case was first brought to court four months ago and you’ve met with her in your office twice since then. She appeared with you in court two months ago when the case was scheduled for trial. On the day of the trial, your client does not come to court. You try to contact her that morning, but to no avail. You are now in the courtroom, and the judge has denied your request for an adjournment and orders the petitioning child-protective agency to proceed with an inquest, a proceeding held in the absence of respondent parents. As the pro bono attorney, what are your available options at this point?


We are all encouraged to handle pro bono matters. Essentially, it is a part of our duty as lawyers to use our degrees for the benefit of those with limited access to effective legal representation. In fact, the ABA’s Model Rule of Professional Conduct 6.1 notes, “every lawyer, regardless of professional prominence or professional workload, has a responsibility to provide legal services to those unable to pay.” But what happens when the pro bono matter goes terribly wrong? As seen in the hypo above, what if the pro bono client fails to appear at a hearing in family court, or what if you suspect that the client has ill motives in a power-of-attorney matter? These issues, along with many other pro bono ethical dilemmas, were addressed at a seminar hosted by the Practicing Law Institute. The seminar, “Ethical Issues in Pro Bono Representation,” featured the nation’s top pro bono and public interest attorneys as panelists, including Madeline Schachter, partner and global director of corporate social responsibility at Baker & McKenzie; Bruce Green, professor and director of the Louis Stein Center for Law and Ethics at Fordham University School of Law; Martin Guggenheim, Fiorello LaGuardia Professor of Clinical Law at NYU School of Law; Michael Scherz, senior litigation counsel at Lawyers for Children; and April A. Newbauer, attorney-in-charge, Queens Neighborhood Office, Legal Aid Society. Schachter, a consultant on best practices in pro bono matters, noted that it is essential to “cultivate a culture that encourages lawyers to take on pro bono work while making sure that it’s done in a manner that’s consistent with professional ethics and responsibilities.” The panelists suggested the following to ensure best practices in handling pro bono matters:


Identify the client.
This identification is essential for the pro bono client and also for the lawyer. The lawyer owes a duty of loyalty and confidentiality to the client and must know the specific person or persons to whom this duty is owed. For example, a pro bono matter may include a mother and her two minor children. Does the lawyer represent the mother? The children? Both?


Provide an engagement letter to the client.
One will often find that pro bono matters encompass a wide range of legal issues, and there must be a meeting of the minds between the lawyer and client as to the issues that the attorney will address and those that the attorney will not address. The letter of engagement not only identifies the client but also identifies and clarifies the scope of the representation, the specific service that the lawyer will provide to the pro bono client, and the point at which representation will end. Although an engagement letter for a pro bono client is not required because the client is not paying a “fee” to the attorney, it is best practice to include an engagement letter, just as one would provide to a paying client.


In sum, treat your pro bono matter with the same due diligence, professionalism, and ethical considerations that you would a paying client. It could just be your most rewarding experience yet!


Watch the Practicing Law Institute’s seminar on “Ethical Issues in Pro Bono Representation.”


Keywords: litigation, ethical, pro bono, dilemma


Joy B. Tolliver Esq., Volunteer Lawyer and Legal Professor, Newark, NJ


 

March 29, 2012

Public Interest Group Increases Immigrant Access to Legal Advice


This month, Pro Bono Net announced that its partner, CitizenshipWorks, has launched a text-messaging service that will increase immigrants’ access to free or low-cost legal advice regarding the naturalization process. CitizenshipWorks operates primarily online, and provides resources to further its goal of increasing the naturalization rates among eligible immigrants. Individuals seeking local legal assistance can obtain references in either English or Spanish through CitizenshipWorks by text messaging “citizenship” or “ciudadania” to 877877. CitizenshipWorks will respond to the text message by providing the location and contact information of local legal-services providers. CitizenshipWorks will also provide general information about the naturalization process, as well as details about any naturalization-assistance programs being held in the individual’s community.


In addition to its text-messaging program, the CitizenshipWorks website provides online tools to assist with the naturalization process, including an online tutorial about how to prepare for the naturalization tests. CitizenshipWorks has also held free community clinics to provide information to individuals seeking information or assistance regarding the naturalization process. The text-messaging program marks a unique development in this area of legal services by using a national network to assist individuals in need of services at a local level.


This service will likely provide welcome support to many immigrants. U.S. residents who do not have citizenship face many hurdles in day-to-day life, including ineligibility for a driver’s license in certain states, and limitations in employment due to a lack of documentation. Additionally, recent state laws such as the controversial Support Our Law Enforcement and Safe Neighborhoods Act in Arizona have brought increased political, legal, and social attention to immigrants’ citizenship status. According to a news piece posted by Pro Bono Net, however, many immigrants may actually be eligible for naturalization, but lack the knowledge and resources necessary to achieve that status. Pro Bono Net notes that as many as 8.5 million individuals are eligible to apply for citizenship, but only about 1 million are actually granted citizenship through naturalization each year. CitizenshipWorks and its partners hope that new approaches, such as this text-messaging program, will help provide the missing link between legal services that are already available nationwide and the individuals that need them, and increase the number of individuals granted citizenship through naturalization.


Keywords: litigation, pro bono, immigrant, naturalization, citizenship


—Alison Bain-Lucey, Cornell University, New York, NY


 

December 22, 2011

Budget Cuts Leave Fewer Attorneys for the Poor


Nationally known New Jersey Governor Chris Christie has approved state budget cuts that have eliminated certain free legal services for qualifying residents. Since 1966, Legal Services of New Jersey (Legal Services) has provided free representation to residents whose annual income is 200 percent below the federal poverty level (e.g., a family of three with an annual income of $37,000 or less). Qualifying residents have received free representation for matters including divorce, landlord-tenant disputes, child support, and social security. Under this administration’s budget cuts, Legal Services will no longer handle divorces and other family law issues, forcing indigent residents to find other sources for free legal representation.


In fact, Legal Services’ operating budget plummeted from $72 million in 2008 to $42 million in 2011. The state’s budget for Legal Services dropped from $29.6 million in 2010 to $19.9 million in 2011 to a proposed $14.9 million in 2012. New Jersey’s legislature attempted to restore $5 million to Legal Services in the 2012 fiscal year budget; however, the governor line-item vetoed the $5 million and, what is worse, cut an additional $5 million from the budget.


Legal Services is comprised of seven different offices, each with its own board and budgeting system; however, due to state budget cuts, some offices are forced to close, attorneys are being laid off, and 65 percent of those seeking representation will be turned away. Prior to these stringent budget cuts, Legal Services was able to serve one out of every seven persons who sought help. Now, with fewer attorneys available, Legal Services will assist approximately 5,500 fewer clients this year.


Keywords: budget cuts, New Jersey, Legal Services of New Jersey


Joy B. Tolliver, Esq., New Jersey


 

December 16, 2011

White House Recognizes Legal Aid Attorneys as Champions of Change


On October 13, 2011, the White House honored four attorneys from legal aid programs funded by the Legal Services Corporation (LSC) who have dedicated their careers to providing justice for populations most in need. President Obama’s “Winning the Future Initiative” seeks to recognize those whose professional and personal pursuits have inspired others. Deemed “champions of change,” the honorees included David Hall, executive director of Texas RioGrande Legal Aid; Nan Heald, executive director of Pine Tree Legal Assistance in Maine; Lillian Johnson, executive director of Community Legal Services in Phoenix; and Addison Parker, former litigation director at the Appalachian Research and Defense Fund of Kentucky.


David Hall led RioGrande Legal Aid since 1975 and was selected by the Texas Lawyer as one of 100 lawyers who have shaped Texas’s legal history. Nan Heald has led Pine Tree Legal Assistance since 1990 and has used technology to expand access to legal resources for underrepresented populations. Lillian Johnson has led Community Legal Services since 1982, and serves on boards and committees to enhance access to civil legal assistance. Addison Parker retired in June 2011 after 32 years with the Appalachian Research and Defense Fund and now provides pro bono services to the LSC. Visit the White House’s website for more information on the Champions of Change program.


Keywords: White House, legal aid, champions of change


Joy B. Tolliver, Esq., New Jersey


 

December 14, 2011

Wal-Mart Launches Medical-Legal Pro Bono Services


In spring 2012, Wal-Mart will launch its Medical-Legal Partnership (MLP) with the Arkansas Children’s Hospital and Legal Aid of Arkansas. The MLP will include onsite and virtual pro bono opportunities for Wal-Mart attorneys and legal staff. When doctors suspect that a legal issue may be affecting the health of their patients, they will refer patients to attorneys for legal assistance.


The MLP concept has also gained great traction within the federal government. In July 2010, the United States Congress adopted the bi-partisan Medical-Legal Partnership for Health Act, which designates $10 million in federal funding for MLPs and authorizes the U.S. Department of Health and Human Services to provide grants for MLPs nationwide. In 2010 alone, MLPs served patients at more than 225 hospitals and in health centers across 38 states. Through these programs, more than 13,000 individuals and families received legal assistance. Furthermore, over 10,000 medical professionals received training on the connections between poverty and health and learned how to identify unmet legal needs through a medical check-up. In furtherance of meeting this need, Wal-Mart aims to bring the MLP to children’s hospitals across the country.


Keywords: Wal-Mart, medical-legal partnership, Medical-Legal Partnership for Health Act


Joy B. Tolliver, Esq., New Jersey


 

April 6, 2011

Stateside Legal Help for Military Families


The American Bar Association's Military Pro Bono Project connects active-duty military personnel and their families to free legal assistance for civil legal issues beyond the scope of services provided by a military legal assistance office. The Project accepts case referrals for limited civil-law matters on behalf of income-eligible service members from military legal assistance offices worldwide, and then places these cases with volunteer pro bono attorneys anywhere in the United States the legal representation is needed. You can find cases currently available for pro bono assistance here, and examples of the good work done by our volunteers here.


Dawn M. Du Verney, Esq., Social Security Administration, Philadelphia, PA


 

April 6, 2011

Illinois Governor Signs Bill Abolishing Death Penalty


On March 9, 2011, 11 years after Illinois passed a moratorium on capital punishment, Governor Pat Quinn signed a bill abolishing the death penalty.


Back in January, Illinois lawmakers voted to do away with capital punishment. The governor then spent the following two months speaking with prosecutors, victims' families, death penalty opponents, and religious leaders before making a decision, according to the Associated Press. "I think if you abolish the death penalty in Illinois, we should abolish it for everyone," the governor said.


Governor Quinn was joined by colleagues and supporters at his Springfield office when he signed the bill to outlaw Illinois’ death penalty. The ban takes effect on July 1, and makes Illinois the fourth state in the past two years—following New York, New Jersey, and New Mexico—to abolish capital punishment.


Quinn also commuted the sentences of all 15 inmates remaining on Illinois’ death row. Five of the 17 people across the country who were proven innocent by DNA testing after serving time on death row were from Illinois.



Dawn M. Du Verney, Esq., Social Security Administration, Philadelphia, PA


 

April 6, 2011

Minnesota Supreme Court Extends Licensing Fees for Indigent Legal Services


The Minnesota Lawyer reports that the state's highest court has extended two fees on attorney licensing renewals as a means of increasing funding for indigent legal services. "The Minnesota Supreme Court has extended a $75 increase to the lawyer registration fee to help fund the state's public defense system and made a $25 increase for legal services permanent. The increases were sought by the Minnesota Board of Public Defense and the Legal Services Advisory Committee."



Dawn M. Du Verney, Esq., Social Security Administration, Philadelphia, PA


 

New ABA Study Reveals Three-Fourths of Lawyers Provide Pro Bono Work to Poor


A study done by the ABA Standing Committee on Pro Bono and Public Service reveals, among other findings, that nearly three-fourths of U.S. attorneys provide free legal services to disadvantaged individuals or organizations that serve them.



 

Pro Bono Work at Law Firms Picks Up as Economy Falters


With the economic downturn and resulting fall in billable hours, law firms are seeing and encouraging greater involvement in pro bono work.