Be Kind Always

IMG_5539Being a lawyer sometimes feels like an ungrateful job. Depending upon the type of law that you practice and the situation, sometimes clients just aren’t very nice. Sometimes, us lawyers don’t really feel very appreciated. That’s just the way it works. Some days are good days, some days just plain old suck. Everyone is angry at you, either because you gave them bad news, told them accurate information but not what they wanted to hear or they think they could have gotten better advice (what they wanted to hear) elsewhere. It’s not always, but when it happens it’s pretty demoralizing. Don’t get me wrong, I have great clients and I am very appreciative of them. Just like everything else, sometimes the bad tends to overshadow the good, your own personal black cloud if you will.

This morning, first thing, my phone rang. Turns out it was a woman who was in traffic court and needed to speak to an attorney right then to advise her if the plea deal she was being offered for her traffic offenses was reasonable and whether she should accept it. I politely explained to her that I really don’t do traffic court and definitely not up north where she stated she was located. She sounded beside herself and I felt that I could at least look up the statute for her and let her know what the fine and penalties were so she could make an informed decision about the plea deal she was being offered. While she waited on the phone, I took a few minutes to look up the statute that she was charged with, see what the penalties associated with that traffic violation were and gave her my thoughts on her situation. She hung up abruptly while we were still speaking since her name was being called in court. End of story, right? No. A while later, the woman called back, very grateful for the fact that I actually spoke to her, gave her some reassurance allowing her to be able to make a decision on the plea that was offered to her. Turns out, due to her haste in needing a quick answer to a question, we did not speak in much detail. She mentioned the town she was in at court but it turned out that she was actually in a town of the same name in an adjoining state, not in Vermont. The statute I looked up for her didn’t even apply to her situation since she wasn’t even in Vermont. She was very stressed about her situation and the pressure to make what seemed like a very big decision between taking the plea deal and facing much more severe consequences if she didn’t. She needed to talk to someone who could give her a direction.   For me, it was a few minutes of being kind to a stranger on the phone but it meant so much more to this woman, who was able to compose herself and resolve her situation on her own. She called back to thank me and insist that she was going to pay me for my time, a nice gesture on her part, but we we both realized that she wasn’t even in the same state as I was in, or thought she was in, I explained to her that I couldn’t accept her payment since I am not licensed to practice law in her state and in fact, the advice I did give her didn’t even apply to her situation since it was a completely different statute in a completely different state, unknown to both of us at the time.

To me, it was about 3 minutes of my time talking to a stranger, to her it was so much more. I asked her to just do something nice for someone else she came across today, to pay it forward. It was a good start to the day. It made me happy, it made me feel appreciated. It made me happy to be a human.

Lesson learned, be kind, always. You never know when what you do can have a big impact on someone else’s day.

 

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Law School Flashback

law-books-291676_1280In the headlines of today’s news, there is an article about the death of Linda Brown. Some might not take any notice and some might not even put it all together. Ms. Brown is the “Brown” in the famous case of Brown v. Board of Education, a Constitutional Law foundation case known by all law students. One of the first you learn in the class. The case in the event that you are not familiar with it, resulted in the desegregation of the entire public education system and dealt the killing blow for the concept of “separate but equal”. The case is one of the cornerstones of every Constitutional Law class in law school.

In this case, Brown’s father wanted his daughter to attend the public school in Topeka, Kansas in the neighborhood where they lived. However, due to the segregation of the public schools at the time between whites and blacks, the young Linda Brown was required to be bussed a significant distance across town in order to attend the “black” school rather than the school closest to her family’s home. Her father, believing that this was patently unfair and in violation of his daughter’s civil rights, brought suit against the Board of Education. The case was consolidated with some similar education segregation cases and ultimately made its way to the Supreme Court of the United States in 1954.

Justice Warren delivered the opinion for the Court and the importance and significance of education in our country. As stated by Justice Warren:

Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.

We come then to the question presented: does segregation of children in public schools solely on the basis of race, even though the physical facilities and other “tangible” factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does.

The Court went on to elaborate on the importance of not teaching our children to distinguish each other solely on the basis of the color of one’s skin.

Such considerations apply with added force to children in grade and high schools. To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. 

Justice Warren plainly stated:

We conclude that, in the field of public education, the doctrine of “separate but equal” has no place. 

By way of information, the young Ms. Brown never did get to attend the elementary school that formed the basis of the lawsuit in Topeka since by the time the Supreme Court’s ruling came down. Her family had moved and she was a junior high school student at the time of decision.

History reminds us that advocacy, even in its smallest form of one father advocating for his daughter’s right to attend a particular school, can have amazing rippling effects throughout our country and history. In Brown v. Board of Education it overhauled an entire country’s public education system. A lesson well suited for our world today and always.  In the words of the Dalai Lama: “If you think you are too small to make a difference, try sleeping with a mosquito.”

Ballot Selfies Prevail

Voting Clipart
Voting Clipart

Yesterday, the First Circuit Court of Appeals said that the New Hampshire law banning a person from displaying a marked ballot reflecting how he or she voted including posting of those images on social media sites violates First Amendment rights of voters. The law carried up to a $1,000 fine. The appellate court determined that the law violates free speech rights protected by the First Amendment. The law was enacted to avoid vote buying and voter intimidation, what it did was spark a controversy in this social media age over the “ballot selfie”. The law, which originated in one form in 1891 was intended to combat voter intimidation and vote buying. It was amended in 1911 to forbid any voter from “allowing his ballot to be seen by any person, with the intention of letting it be known how he is about to vote.” In 2014 New Hampshire amended that statute to read:

No voter shall allow his or her ballot to be seen by any person with the intention of letting it be known how he or she is about to vote or how he or she has voted except as provided in R.S.A. 659:20. This prohibition shall include taking a digital image or photograph of his or her marked ballot and distributing or sharing the image via social media or by any other means. 

The appellate court determined that just applying intermediate scrutiny the statute is unconstitutional. Intermediate scrutiny basically means that the statute has to at least be narrowly tailored to serve a significant governmental interest. There is no proof that vote buying or voter intimidation is an actual problem in New Hampshire and there was definitely no proof that posting how you voted on Facebook or Twitter or Snapchat was going to cause any voter intimidation or vote buying and most definitely none sufficient to outweigh the First Amendment free speech rights that were being affected by the statute.

The appellate court in upholding the district court’s ruling completed its opinion with the simple adage “a picture is worth a thousand words”. You can read more about this here.

In Vermont there is no law against photographing your ballot, but since there is a law still on the books about publishing how you are going to vote, before you cast your ballot, wait to post that selfie until you have already submitted your ballot.

Vermont Birth Control Law Includes Men

The Vermont legislature passed a new law, H.620 which will ensure that the costs of birth control remain free as is presently the case under the Affordable Care Act. Under the law, insurance companies in Vermont are required to provide birth control at no cost to their insureds regardless of any changes that may take place concerning the Affordable Care Act, thereby preserving this benefit for Vermonters.

The bill however went one step further and includes men in the picture. The law also requires insurance companies to not only cover permanent birth control for women but to also cover permanent birth control for males in the form of vasectomies. This law, the first in the nation to address male contraception is expected to be signed by Governor Shumlin.

The thought process behind the inclusion of males is that men are a part of the contraception and family planning, providing gender parity.  Many women who no longer wish to have children may not be able to take contraceptive pills or use other methods of birth control and vasectomies provide the ability to have a permanent solution.

You can read more about this new law here and here.

Much More Than Bathrooms

Once again, we need to read between the lines and maybe, just maybe, read the lines themselves, rather than let the media do the reading and interpreting for us. The new law passed in North Carolina is more than just a law regulating the use of public bathrooms in the state.

At the time of the Boston marathon bombing, we had a very interesting discussion at our dining room table to explain to the boys why, as horrible as it might seem at that time, that the suspected bomber needed to have his rights protected. The basic reason, is because they are your rights and my rights too. It is a very slippery slope that we go down when we think it’s okay to take away one person’s rights or deny one his or her rights. While it might seem perfectly fine under one circumstance (think the marathon bomber), what happens when it’s your turn and your rights that are up for grabs? Not so okay now is it? Like it or not, the rights we have apply to all of us, not just the ones that we pick and choose under the circumstances. When folks were opening up their doors to allow police to search their homes, how many invoked that wonderful little right called the 4th Amendment and said, no. No, you cannot just come into my home police, without a warrant and search it. Not now, not ever, because my constitutional rights say so.

If you actually read the new law in North Carolina, it has two parts. One part regulates the use of public restroom facilities and limits their use to a single sex based upon a person’s biological sex. The second part, entitled the Wage and Hour Act prevents any local government (read: city or town) from passing any law, ordinance or regulation that regulates the minimum wage in the state. That means that any person in North Carolina, not just transgender folks are subject to North Carolina’s whim on whether or not to raise the minimum wage. The minimum wage in North Carolina is presently $7.25 per hour. Unlike other places in the country where cities have chosen to raise the minimum wage because they recognize that living in a city may be more expensive, cities are now prohibited from any such actions.

The law addresses the minimum wage, and does not allow any local government to set a minimum wage.“The legislature took that power expressly away, so forbade any local government from raising the minimum wage beyond what federal and state law require,” Charlotte Law School Professor Brian Clarke said.

To give you an idea of why folks, all folks not just the transgender and LBGQ folks should be jumping up and down in protest, many places in the country have enacted $15 minimum wages. Realize this means that minimum wage workers in North Carolina are getting paid just about 1/2 of what other people working minimum wage jobs can get paid. Here in little tiny Vermont our minimum wage is $9.60 per hour and while that’s not great, it’s still way better than North Carolina. Do you see something wrong with what North Carolina did with this law? You should.

The law also prevents any person (read: ANY PERSON) from pursuing a state action under the law for the public policies expressed in the act which also governs employment discrimination. Guess what folks? Under the law and its line “This Article does not create, and shall not be construed to create or support, a statutory or common law private right of action, and no person may bring any civil action based upon the public policy expressed herein” seems that all persons in the state are affected. Got that? Everyone.

Have a discrimination claim based upon religion, race, color  that does not fall into one of the state’s already established laws, guess what, you have no civil right to file suit in the state  court according to this law. According to  Charlotte School of Law professor, Brian Clark (who knows way more than little ‘ol lawyer me does) “In a very hidden way, it eliminated the ability for employees in North Carolina to file claims under state law for employment discrimination on the basis of race, sex, national origin, color and age,” Clarke said, “And that’s a right that North Carolina employees have had since 1982… and it’s gone.” Poof. Gone. Folks should be rioting in the streets.

So, people, especially those who are peppering Facebook with their very prejudiced views of the rights of the transgender community under the North Carolina law and those that are speaking out against it, perhaps you should realize that when a particular group’s rights are affected, maybe, just maybe your rights are too. Under this law, rights were affected, not just for a particular segment of the North Carolina population but for all of the North Carolina population.

See, it’s really not an us v. them mentality. People are people and under the laws of this country we are all entitled to our rights, whether or not each of us personally stands for or against the person behind the right.  My kids understand this and have for some time. It’s about time that the adult population in this country realizes it too. One day, it could be your right that at stake. Remember that. Always.

DARK Act Update

Vermont’s GMO labeling law is set to take effect on July 1, 2016. You can read more about it here.  National efforts to restrict Vermont and other state’s abilities to impose such labeling requirements was up for vote in the United States Senate as the more commonly known DARK (Denying Americans the Right to Know) Act. You can read more about the DARK Act here.

Today, the Senate failed to have the votes necessary to put the bill through. This puts Vermont one step closer to its labeling law going into effect on schedule in July. This is hardly however the end of the discussion on the national level.

See NPR report for more information.

Bloggers Entitled to First Amendment Protection

Benq laptop
Benq laptop (Photo credit: Wikipedia)

Last week, a California federal appeals court, the 9th Circuit Court of Appeals, ruled that bloggers have constitutional First Amendment rights similar to journalists. Obsidian Financial Group sued blogger Cheryl Cox when she made claims of fraud, conspiracy and money laundering among other claims. They contended defamation and they won at the trial level with the blogger being slammed with a $2,500,000 damage award. Cox appealed and the federal appeals court determined that Cox, a blogger, was entitled to the same protections in her virtual arena that a paper media journalist is entitled to under the First Amendment.

According to the appellate court, statements of public concern on a blog such as those made by Cox are entitled to the protections of the First Amendment, the same as traditional print journalists enjoy.

 The protections of the
First Amendment do not turn on whether the defendant was
a trained journalist, formally affiliated with traditional news
entities, engaged in conflict-of-interest disclosure, went beyond
just assembling others’ writings, or tried to get both
sides of a story. As the Supreme Court has accurately
warned, a First Amendment distinction between the
institutional press and other speakers is unworkable: “With
the advent of the Internet and the decline of print and
broadcast media . . . the line between the media and others
who wish to comment on political and social issues becomes
far more blurred.” (Citation omitted). In
defamation cases, the public-figure status of a plaintiff and
the public importance of the statement at issue—not the
identity of the speaker—provide the First Amendment
touchstones.
We therefore hold that the Gertz negligence requirement
for private defamation actions is not limited to cases with
institutional media defendants.

The court went on to reverse the trial court’s findings and remand the matter for a new trial.

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Being A Lawyer Isn’t All It’s Cracked Up To Be

U.S. News and World Report
U.S. News and World Report (Photo credit: afagen)
U.S. News and World Report (Photo credit: afagen)

According to the 2014 U.S. News and World Report, being a lawyer isn’t the most desirable job. In fact, it’s not in the top 10 — or the top 20 or dare I say, even the top 50. Out of the 100 jobs listed in the findings, lawyer holds the position of 51. We, as a profession, are on the bottom half of the list, not too far behind jobs such as middle school teacher and nail technician and only slightly ahead of bill collectors. Not very encouraging, is it?

But, don’t be discouraged if you are a lawyer or in law school right now since there is an upside. Paralegals are listed in the 87th spot so I guess in the legal field, it could always be worse.

To answer your burning question — the lowest on the totem pole of best jobs is painter and the job holding the #1 best job spot is software developer.

The majority of the top 25 is filled with technology, health care and engineering positions.

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Is an autistic child worth $85?

Is an autistic child worth approximately $85? That is the question that New York senator Chuck Schumer is proposing to the federal government. Schumer is proposing a federal law, entitled Avonte’s Law, where the federal government would pay the approximately $85 per child  plus a small monthly fee which would voluntarily allow parents of autistic children the ability to track the child if the child became separated. While this might seem unnecessary to some, a fair number of autistic children are completely non-verbal or speak very little. If they wander away from parents, siblings or sitters either at home, school or in a public setting it can be difficult for the child to get assistance or for adults to find the child.

English: Charles Schumer, United States Senato...
English: Charles Schumer, United States Senator from New York Español: Charles Schumer, Senador de los Estados Unidos de Nueva York (Photo credit: Wikipedia)

This was the case of the missing New York child, Avonte Oquendo, the 14-year-old non-verbal autistic boy that left his school in October. Despite a large three-month search fueled by social media and the press, the child was not located and his remains were found last week in the East River. Had the young man had one of the proposed tracking devices either on his wrist or his clothing his family would have been able to locate him when he left the school in the middle of the school day.

The program that Schumer is proposing is similar to a voluntary tracking program for senior citizen who suffer from Alzheimer’s and have a tendency to wander. Under Schumer’s bill the federal funds would go to police departments who would purchase the tracking devices and have them available to give to parents who request them.

Schumer stated during a press conference to announce the bill that while we are unable to go back in time, the bill would help to ensure that the tragedy suffered by the Oquendo family does not happen to anyone else.

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