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Archive for the tag “united states”

Taking “Aim” at the Second Amendment

Here is an article, by Theodore Y. Choi, Esquire who is a former associate at my firm.  He provides a brief review of Second Amendment Law, which currently is a hot topic.   This article can be found on my website here and was originally published in Upon Further Review on September 13, 2011, and can be seen here.

Supreme Court Spotlight: No “Cure” for Injuries Caused by Vaccines?

Here is an article, by Theodore Y. Choi, Esquire who is a former associate at my firm.  He provides pretty interesting insights into vaccines and the liability for the potential damage they can cause.   This article can be found on my website here and was originally published in Upon Further Review on March 9, 2011, and can be seen here and on my website here.

Gross Decision (?)

In the 1964 Christmas television classic, Rudolph the Red-Nosed Reindeer, prospector Yukon Cornelius, while in search of silver and gold (or is it gold and silver?), declares that the frightful Abominable Snowmonster of the North, who evokes fear and trembling in anyone who sees him, “is nothing without his choppers,” after toymaker turned dentist, Hermey the Elf, extracts all of the monster’s teeth. Consistent with Yukon’s observation, the United States Supreme Court, with Justice Clarence Thomas writing for the majority, in the recent case of Gross v. FBL Financial Services, Inc., 129 S.Ct. 2343 (U.S. 2009), in what has become a landmark decision, may have used its judicial pliers to extract the teeth of the Age Discrimination in Employment Act (ADEA) for claims brought thereunder by plaintiffs who feel they were victims of age discrimination.

In Gross, the Plaintiff was at the time of the alleged actionable discrimination, a 54-year-old male claims administrator director who had worked for the Defendant for 30 years when Defendant elected to reassign Gross to the position of claims project coordinator. Simultaneously, Defendant reassigned Gross’ former subordinate, a woman in her early forties, to a newly created position that carried with it most of Gross’ former responsibilities. Gross believed his reassignment to be effectively a demotion, and that he was discriminated against based on his age, and he brought suit against Defendant under the ADEA claiming age discrimination.

At the conclusion of the trial of this matter at the District Court level, the Judge, over Defendant’s objections, instructed the jury that a verdict must be entered against the Defendant if Gross proved, by a preponderance of the evidence, that Defendant demoted him and Gross’ age was the motivating factor in Defendant’s decision to demote him. The jury was further instructed that Gross’ age was a motivating factor if it played a part or role in the Defendant’s decision to demote him. In other words, if the Defendant’s motives were a mix of lawful and unlawful (e.g.: age discrimination) reasons for demotion, then a verdict would have to be entered against the Defendant. Finally, the jury was instructed that if the Defendant proved, by a preponderance of the evidence, that it would have demoted Gross regardless of age, a verdict would have to be entered against Gross. This portion of the jury instructions presumes that the burden of proof shifts from Gross, who has to prove that age was the motivating factor in Defendant’s decision, to Defendant, who has to prove that it would have demoted Gross regardless of his age.

Gross was victorious at the District Court level causing the Defendant to appeal to the United States Court of Appeals for the 8th Circuit. The Circuit Court reversed and remanded the District Court decision for a new trial as a result of what it found to have been improper jury instructions. Gross appealed to the Supreme Court of the United States.

The question presented to that Court was whether a case under the ADEA requires (1) a shifting burden of proof and (2) could successfully proceed when an employer takes a discriminatory action against an employee based upon mixed motives. By including these two elements when enunciating jury instructions, the District Court implicitly requested the jury to apply an analysis required for alleged discrimination pursuant to Title VII of the Civil Rights Act as interpreted by the landmark case Price Waterhouse v. Hopkins, 490 US 228 (1989). The Court first examined whether a shifting burden of proof is warranted under the ADEA. It then examined whether the ADEA allows for a claim of mixed motives or requires a “but-for” analysis, id est but for the plaintiff’s age, the employer would not have taken the alleged discriminatory action.

As the District Court’s jury instructions were an application of the requirements under Title VII of the Civil Rights Act, the primary focus of the Court’s analysis was a comparison of the language of the ADEA with that of Title VII. When making its comparison, the Court, through Justice Thomas’ opinion writing for the majority, also took note of the fact that Congress has amended both Title VII and the ADEA, with some amendments occurring simultaneously. Ultimately, Justice Thomas’ textual analysis of the respective statutes is actually quite simple. First, Justice Thomas observed that the ADEA contains absolutely no language regarding a shifting of burdens of proof while Title VII does have such language. Second, Justice Thomas also noted that the ADEA does not contain any language implying that proving that an employer acted with mixed-motives is sufficient to warrant a judgment in favor of an allegedly discriminated-against plaintiff. Instead, as Justice Thomas pointed out, the ADEA specifically says that a discriminatory act must be “because of” an individual’s age. After a somewhat extensive, and perhaps torturously overwrought, dictionary and linguistic examination of the phrase “because of,” Justice Thomas concluded that a “but for” analysis is consistent with the aforesaid language. Finally, Justice Thomas, attempting to divine the mental intent of the legislators responsible for amending and voting for the changes to the ADEA years in the past, suggested that since both Title VII and the ADEA were amended around the same time, and the mixed-motives language inserted into Title VII was not correspondingly inserted into the ADEA, a logical conclusion could be drawn that Congress did not want and/or intend the ADEA to allow claims to successfully proceed in cases involving mixed-motives.

Justice Stevens, in his dissent, argued that burden shifting, and, therefore, permitting mixed-motives cases, ought to be permitted under the ADEA as the ADEA was drafted, in haec verba, from Title VII and that Title VII analysis has, for quite some time, been commonly applied to the ADEA by the United States Supreme Court. Furthermore, he explained that the phrase “because of” does not require the rigid and exclusive meaning that is synonymous with “but for” applied by Justice Thomas. Justice Stevens argues that “because of” can certainly permit multiple motives, including a discriminatory one, but does not, on its face, require a single motive as Justice Thomas suggests. Justice Stevens also pointed out that the cases under ADEA have regularly allowed burden-shifting and mixed-motives cases and one cannot conjure some sort of presumption, through an attempt to divine significant meaning from a non-action by Congress, from Congress’ amending Title VII and the ADEA differently. Indeed, as burden-shifting and mixed motives cases were already permitted under the Court’s previous rulings, why would Congress need to codify it? Justice Stevens argues that Congress’ lack of action confirms their approval of existing case law under the ADEA. Justice Breyer, in his rather brief dissent, simply focused upon the fact that a requirement to prove “but for” with direct evidence is, at its core, a requirement to prove what someone else’s thoughts were; an impossible task even for the thinker himself, especially after so much time and influences come to pass after the suit has been filed. For Justice Breyer, a “but for” analysis requires a plaintiff to engage in finding proof of hypothetical thoughts; proof that, in reality, could never be found, and resulting in a toothless ADEA that could never be effectively employed by plaintiffs. For Justice Beyer, Congressional intent was to have an ADEA under which plaintiffs could have successful claims, as opposed to an ADEA that requires a plaintiff to prove the impossible, effectively foreclosing any viable actions for age discrimination.

Obviously, Justice Thomas’ opinion had less-than-favorable results for Gross. As Gross’s employer did not have to prove what its actual motive was for demoting him, and Gross could not prove that “but for” his age he would not have been demoted, Gross’s matter was remanded to proceed in a manner consistent with Justice Thomas’ opinion. In sum, pursuant to the current authoritative precedent described herein, a plaintiff bringing an action under the ADEA must prove, by a preponderance of the evidence, that his age was the only factor motivating the alleged discriminatory action through the presentation of direct evidence in order to have a successful suit. As it stands now, plaintiffs bringing suit under the ADEA are required to plunge their way into the nearly impossible task of entering someone else’s mind to learn how he made his decisions. The Gross decision could not have come at a worse time because the declining economy has impacted heavily on older employees, resulting in a substantial increase in ADEA claims being filed at the state and federal discrimination administrative agency level by impacted employees. It makes their task of proving discrimination far harder. Although there is an effort by interest groups acting on behalf of employees within the ADEA age purviews to have Congress enact a law that would repudiate Gross, that effort may not be successful, especially given the outcome of the latest Congressional elections and the current political makeup of Congress.

After Gross, Hermey the Elf’s advice about the once-fearsome, but now-toothless, Abominable Snowmonster holds equally true for employers when faced with the post-Gross ADEA: “don’t let this big blowhard scare you anymore, just walk right past him.”

This article also appeared in the Philadelphia Bar Association’s “Upon Further Review” on January 6, 2011 and can also be found here on my website.

U.S. Supreme Court Weighs in on Beneficiary Issues in Savings and Investment Plans

Here is an article, by Adam S. Bernick, Esquire, who is of counsel to my firm, providing some sound advice and insight into the estate planning process.  This article can be found on my website here and was originally published in Upon Further Review” on November 10, 2009, and can be seen  here.

Lines Drawn Against First Amendment Rights in Public Schools

A Marple Newtown School District kindergarten student has recently found himself at the center of a First Amendment controversy involving religious expression in public schools in the matter of Busch v. Marple Newtown School District, 2007 WL 1589507, appealed to the 3rd Circuit 2009 WL 1508513 (neither decision is reported).  The trial court found against the Plaintiffs per a Motion for Summary Judgment and the 3rd Circuit affirmed the decision.

In October 2004 a kindergarten class was in the midst of a unit of study called “All About Me”.  The assignments in the unit included the opportunity for the children to make a poster with pictures and/or drawings of their interests, hobbies, and/or families; bring in a toy or other item to share with the class; bring a snack; and, bring a parent in to share a talent, short game, small craft, or story with the class.  The Plaintiffs (a mother and son) in the matter elected to have an excerpt from Plaintiff-Son’s favorite book read by Plaintiff-Mother to the class to fulfill that portion of the assignment; Plaintiff-Son’s favorite book is the Bible.  Plaintiff-Mother intended to read Psalms 118:1 – 4 and 14 without further comment on them (the aforesaid verses read as follows as translated in the Authorized Version of the Bible: “O give thanks unto the LORD; for he is good: because his mercy endureth for ever. Let Israel now say, that his mercy endureth forever. Let the house of Aaron now say, that his mercy endureth forever. Let them now that fear the LORD say, that his mercy endureth forever. The LORD is my strength and song, and is become my salvation.”). This portion of the Bible was selected because it had no reference to Jesus, was generally inspirational, and was a form of poetry, according to the Plaintiff-Mother.  Plaintiff-Mother went to Plaintiff-Son’s class at the appointed time and told his teacher what she intended to read.  His teacher indicated that she would have to confer with the principal before she could allow Plaintiff-Mother to read from the Bible to the class. The principal refused to permit Plaintiff-Mother from reading from the Bible to the class for fear of violating the law, specifically a breach of the “separation of church and state.” Believing their constitutional rights have been violated, Plaintiff-Mother brought suit on behalf of her son alleging Constitutional breaches of his freedom of speech, the Establishment Clause, and equal protection of the law.

In making its ruling, the Court attempted to navigate the tangled web of law surrounding the rights guaranteed by the First Amendment balanced by the limitations of the Establishment Clause in a public school.  At the outset, the Court first had to discern what sort of “forum” a school (and a kindergarten class in particular) is for First Amendment purposes which determines the level of scrutiny the Court applies to the circumstances before it.  The parties agreed in this matter that a public school classroom (and a kindergarten class in particular) is not a public forum, which gives the government wide latitude to implement its curriculum.  The second tier of analysis is for the Court to determine whether the school engaged in viewpoint discrimination.  The Court ruled that, with specific exceptions, the government cannot discriminate speech based upon its viewpoint.  After review of all of the facts presented, it did concede that the school district discriminated against Plaintiff-Mother’s speech based upon its viewpoint (i.e.: the Bible).  The Court’s next step in its inquiry is to determine if the school’s viewpoint discrimination fits into one of the constitutionally permissible exceptions.  In taking this step, the Court noted that the various Circuit Court rulings are across the spectrum on the issue of what precisely is and is not permissible viewpoint discrimination.  Finally, the Plaintiffs alleged that the school district violated their 14th Amendment rights by subjecting them to disparate treatment based on their religious beliefs.  The Plaintiffs argued that the school permitted other religions to be exposed to the class and discriminated against Christianity by prohibiting the Plaintiffs from reading from the Bible.

A primary focus of the Court’s analysis was to determine whether the situation presented a perception of school-endorsed speech.  The listeners of the speech have to know that the religious speech at issue does not originate from and is not endorsed by the school.  Additionally, the Court noted that a school may restrict speech inasmuch as it is reasonably related to pedagogical concerns.  Essentially, the government cannot be perceived as promoting religion.  As a general rule, the younger the child, the more control over speech a school may exercise as it is generally assumed that young children are more impressionable and less likely to discern whether speech is endorsed by and/or originated from the school as opposed to a student.

After a fairly extensive review of the facts and law relevant to the matter, the Court ultimately ruled that the school district was correct to restrict Plaintiffs from reading from the Bible in the classroom.  The Court decided that, in this matter, young children of a kindergarten age are specifically protected by the Constitution and are not able to discern school-endorsed speech from speech from an individual student.  The fact that was of central importance to the Court’s analysis was that the Plaintiff who read the Bible in the classroom was the mother whom, as a parent of a child in the class, the Court believed would be viewed as an authority figure by the children.  The Court believed that an impressionable kindergarten student would view the reading of the Bible by an authority figure (i.e.: parent) in a classroom as (unconstitutionally) coming from the school district and unable to discern that it was coming from the parent individually.  In terms of the equal protection claim, the Court noted that the other religions were presented “culturally” whereas it believed that Bible reading to a class was “proselytizing” restricted by Establishment Clause.

Obviously the Court’s decision is controversial and the Plaintiffs are considering filing an appeal to the United States Supreme Court.  The Court’s decision is far from having unshakable support in either law or fact.  Indeed, matters such as this are extremely fact specific, and the law on which a court must base its ruling is extraordinarily tangled.  To complicate matters further, the Court spent a few paragraphs of its analysis of the matter detailing what the Plaintiff-Mother and her husband believe an Evangelical Christian to be.  It also attempted to discern the theological significance of the Bible verses selected for the reading.  Neither lines of inquiry are relevant to whether Plaintiffs’ speech is constitutionally permissible and, in fact, give the appearance that Christianity itself is, inappropriately, on trial.  In fact, it is through these flawed lines of analysis that the Court hinted that the Plaintiffs were actually engaged in proselytizing as opposed to their own stated intentions of merely presenting Plaintiff-Son’s favorite book.

One could argue that the Court did not take the assignment in proper consideration. One could very logically assume that the children listening to a presentation within the context of “All About Me” would readily understand that the Bible reading was, by definition, “all about” Plaintiff-Son and his favorite book as opposed to the school.  Indeed, Plaintiffs’ intention to read from the Plaintiff-Son’s favorite book was responsive to and complied with the assignment given by the school itself.  No evidence was presented by the Defendant that the students would somehow be confused over whether Bible reading in class was student or school sponsored.  Indeed, the reading of the verses would have taken less than thirty (30) seconds; one can hardly argue that that would somehow have an “adverse” effect on the children in the class.  To fit its ruling, the Court makes impossible distinctions.  For example, the Court distinguishes between expressing one’s love of the Bible from reading from it as well as incredulously stating that an assignment to help students learn about one another (i.e.: the “All About Me” project) somehow does not permit students to express their religious beliefs if they are important to those students.  In other words, students can learn about one another, except when it comes to religion.

It was noted during the trial – and in the Court’s opinion – that religion and the kindergarten class have crossed paths before.  The classroom contains various books dealing with religious holidays (both Jewish and Christian).  Furthermore, the school has allowed a presentation to the class by a Jewish woman about the significance of Hanukkah and Passover.  Ironically, the Plaintiff-Son included pictures of a church on his “All About Me” poster with captions saying “I love to go to the house of the Lord”, and even that was permitted.  The school district obviously did not see any of the above as impermissible entanglements of religion and the kindergarten class.  One wonders how the Court could credibly draw such imperceptible distinctions between these religious incursions into public schools and the reading of 5 innocuous verses from the Bible in a classroom.

Finally, it could be argued that the school district was generally overly sensitive and discriminatory to the presence of Christianity in its schools.  For example: the school district has likely unconstitutional policies of (1) prohibiting students from “advocating” a religious point of view or preference in any context; (2) ensuring that public schools are not a forum for a student to express his personal religious preference/doctrine; and, (3) suggesting calling a Christmas tree a “holiday” tree.  These policies are based upon the false premise that the Constitution calls for “separation of church and state”.  It is noteworthy to point out, as a sort of final slap in Plaintiffs’ faces, that when the Bible was rejected as a book to be read to the class, the teacher offered the Plaintiffs a book about witches as an alternative.  It hardly shows any appropriate sensitivity to the Plaintiffs’ religious beliefs on the part of the school district to suggest a book about the occult – something well known to be taboo among professed Christians – as somehow a viable alternative to the Bible.

It remains to be seen whether this case will be appealed; if so it may be a viable case to be heard by the United States Supreme Court due to the general confusion and inconsistency among the various Circuits.  Regardless of whether this case is appealed to the United States Supreme Court, the fact remains that the relationship of religion and public schools is a very sensitive and fact specific one.  Ultimately, we are all called to be respectful and tolerant of one another and our religious, or nor non-religious, views.  One would hope that the lesson being learned in public schools is that there is a wide diversity of religious views and that it is possible for us all too peacefully co-exist without having to sacrifice one’s own religion in the process.

Originally published on August 10, 2009 in “Upon Further Review” which can be found here or on my website here.

National Church v. Regional Diocese: Property Ownership by a Religious Institution

One of the oldest religions in the United States is at the forefront of the development of property and First Amendment law. In 1607, with the celebration of Holy Eucharist on a fallen log under a tent in Jamestown Virginia, the Episcopal Church found its beginning as the American branch of the worldwide Anglican Communion. Today, under the leadership of Rt. Rev. Robert Duncan, the Bishop of Pittsburgh, the seeds of the demise of the Episcopal Church as we know it have been planted as the synods of the Dioceses of Pittsburgh, PA, San Joaquin, CA, Quincy, IL, and Fort Worth, TX, and potentially more to follow, have voted themselves out of the Episcopal Church. The Episcopal Diocese of Pennsylvania (which consists of the Philadelphia five county area) is the fifth largest Diocese in the Episcopal Church. If a critical mass of the faithful formed a sufficiently significant voting bloc, the Diocese of Pennsylvania could be another diocese that departs from the Episcopal Church in 2009.

Over the last forty years, there has been a slowly growing movement of liberal theology within the Episcopal Church causing many faithful Episcopalians to lose faith in the National Church to adequately preach, maintain, and defend the historic Christian faith. As a result, Episcopalians have been leaving the Episcopal Church in greater numbers with each successive year, reaching a peak in 2008 with the departure of entire dioceses. The departure of dioceses from the National Church has raised as yet unanswered questions about the nature of the property ownership by a religious institution. Specifically, what entity owns church property, the National Church or the diocese?

Of course, property disputes among religious bodies and their members are hardly new. Over the last century and a half, Courts from around the country have generally used two overarching guidelines when ruling on such cases: (1) avoid involvement into inter-church politics as much as possible and (2) church property in a hierarchical church is owned by the diocese (or presbytery, etc). The distinctive issue that has arisen, in contrast to previous cases, is that now entire dioceses, as opposed to individual parishes/congregations, have attempted to leave the National Church.

Supporters of the National Church keeping the properties cite to the so-called Dennis Canon. The Dennis Canon (Title I.7.4 of the Episcopal Church canons), allegedly passed by the 66th General Convention of the Episcopal Church in 1979 states that “[a]ll real and personal property held by or for the benefit of any Parish, Mission, or Congregation is held in trust for this Church and the Diocese thereof in which such Parish, Mission, or Congregation is located.” Therefore, under the Dennis Canon, those seceding from the National Church must abandon their property, as it remains the property of the National Church. Supporters of the dioceses seceding from the National Church argue that the Dennis Canon was never actually passed by General Convention and none of the records surviving from the General Convention indicate that it ever passed. Suffice it to say, the court is loath to inject itself into this sort of interchurch squabble. Instead, when such issues are litigated in a civil court, the court will analyze the matter based upon property ownership and the corporate relationship between parish, diocese, and national church.

If the Diocese of Pennsylvania, at its next Diocesan Convention, votes to disassociate itself from the Episcopal Church, it would be very likely the National Church would bring an action against the Diocese for possession of diocesan property, including the real estate and all personal property owned by the diocese, such as the fixtures, prayer books, hymnals, and vestments, as well as the ejectment of parochial authorities, like rectors or perhaps even vestries. Supporters of the National Church would assert that the National Church is the top of the hierarchy for which all dioceses hold their property in trust and such a view is consistent with the spirit and tenor of existing case law. Those in favor of seceding from the National Church would assert that the National Church is an association that dioceses freely joined and from which can just as freely withdraw. For example, dioceses in the American South withdrew from the National Church along with the states in which they are situated when they seceded from the United States before the Civil War. These dioceses withdrew from the National Church without objection from the same, and were freely readmitted after the War. Furthermore, it is worth noting that properties within dioceses are virtually always deeded to the diocese itself and not the National Church.

2008 saw the departure of four dioceses from the Episcopal Church and 2009 could see further departures. A concerted movement among traditional Episcopalians in the Philadelphia area could lead to the introduction of legislation at the next Diocesan Convention to move the Dioceses out of the National Church. If successful, significant civil litigation by the Episcopal Church against those seceding is likely. At present the Episcopal Church is weighing its options regarding the withdrawn dioceses. Many expect protracted, expensive, wide spread, and large scale litigation. However, as more parishes and dioceses withdraw, litigation may prove to be prohibitively expensive as with each withdrawn parish or diocese is withdrawn tithers to the National Church causing it to lose more revenue with each successive withdrawal. Although lawyers may be interested to see how courts may rule in a matter such as this, perhaps the best, and most Christian, way forward would be an amicable separation allowing each side to go its separate ways taking its property along with it.

This article was originally published in Upon Further Review on January 9, 2009 and can be found here or on my website here.

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