Ban the Box: Formerly Convicted Citizens Get a Second Chance
LETTER FROM THE EDITOR
As the world of news pushes further and further into the digital realm, so follows Juris. In this day and age, it has become vital for the media to be as close to immediate as possible when covering their readership’s topics of interest. As such, we have made a point to provide more digital content to our viewers by increasing our presence in social media via Twitter and Facebook, as well as revamping our news site with the new Jurismagazine.com. Readers are now able to view archived issues of Juris online using our new e-reader application, and also can tune in to several recorded interviews provided by Juris’ recently added multimedia team. Current Duquesne Law faculty such as Professor Steven Baicker-McKee and Professor Jacob Rooksby are just two participants in such interviews, which have provided an intimate look into not only their opinions on the current state of the legal world, but also their true passion for legal education. The winter issue offers a variety of legal topics that highlight both the ever-changing relationship between law and science, as highlighted in Executive Editor Eric Donato’s piece on SB 150, as well as the many successes that Duquesne Law students have found inside and outside of the classroom. It is a well-known fact that Duquesne Law has a glowing reputation and strong history with Pittsburgh law firms and businesses. Because of this, the winter issue highlights several articles from Duquesne Law alumni who have been gracious enough to provide us with thought-provoking and practical content, such as alumni George A. Huber and A. Everette James’ extensive look at property tax exemptions for hospitals in Pennsylvania. As a publication we strive to not only inform our vast alumni base about the happenings surrounding the law school at Duquesne, but also the Pittsburgh legal community. We strongly encourage any reader who has expertise in a particular legal field, or even just a pertinent topic they feel needs to be written about to contact us at Juris. With the help of our strong team of writers, editors, and designers along side you as our readership, we can continue to make this publication stronger. With that, I would like to extend my warmest appreciation to all student writers, editors, faculty members, and alumni who made this compelling issue possible, and present to you our winter edition of Juris. Matthew Beddingfield, 3D, is the Editor-in-Chief of Juris. He is also the President of the Duquesne Intellectual Property Law Association. Upon graduation, Matthew will sit for the Virginia Bar Examination and seek employment dealing with intellectual property or media law in the Northern Virginia/D.C. area.
JURIS Staff Winter/Spring 2014 Editor-in-Chief: Matthew Beddingfield Executive Editors: Eric Donato Terence Falk Web Editor: Matthew Andersen Associate Editors: Lauren Gailey Mike McGraw Staff Writers: Ravi Marfatia Phil Luciano Staci Fonner Chris Allegretti Thomas Cocchi Hillary Cox Judy Hale Reed Brittany Kriebel Jamie Inferrera Amy Coleman Justin D. Norris Kevin Neumar Graphic Designer: Meghan Collins Photographers: Nathaniel Klein Zach Bombatch Multimedia Contributors: Justin Ring Zachary Bombatch Adam Quatrini Alex Pilorusso Lauren Gailey Kevin Shaw Connect with Juris: @JurisDuqLaw /JurisMagazine JurisMagazine.com Cover Design by Juris Graphic Designer Meghan Collins
Duquesne Law Student Finds Success at Third Circuit ...........................................................................2
Q&A with Laurel G. Bellows, Immediate Past President of the ABA................................................. 10
Ban the Box: Formerly Convicted Citizens Get a Second Chance ............................................................3
SB 150: At the Crossroads of Privacy and Proof .......... 12
Professor Mary Ann Glendon Visits Duquesne Law ........4
Meeting “The Government Burden Test” ....................... 14
Duquesne University Appellate Moot Court Board .........6
Allegheny County Public Defender’s Office Working Hard to Progress ................................................ 18
Objection, I’m Just a Student..............................................8
Athlete to Attorney: A Natural Transition ..................... 20
Start Right, Finish Strong: The Reinvigorated Academic Excellence Program ............................................9
The Double Standard of NCAA Enforcement ................. 22
Duquesne Law Student Finds Success at Third Circuit By Kevin Neumar, 1L
“Salus Populi Suprema Lex” means the welfare of the people is the highest law. This is the Duquesne University School of Law’s motto, and one that stuck with Charles Sapienza III on his first day of orientation. Sapienza knew that he wanted to use the law to help others, but there was no way for him to know that a few years later he would argue a case in front of the U.S. Court of Appeals for the Third Circuit and win while still in law school. Sapienza’s passion to use the law to help the less fortunate is what drove him to the Federal Litigation Clinic. The clinic, headed by Professor Laurie B. Serafino, is one of several types of clinics that give law students at Duquesne the opportunity to take on actual cases. “It doesn’t really matter which clinic you get involved in,” said Sapienza. “The fact that you are really making a difference in someone’s life…is what’s most rewarding.” Sapienza was assigned the case Washington v. Secretary, Pennsylvania Department of Corrections; District Attorney of the County of Philadelphia; Attorney General of the State of Pennsylvania. His case involved a sixth Amendment violation of confrontation clause rights. The client who he represented on appeal, Washington, was unable to cross-examine a co-defendant at trial who provided a statement to a police officer. This redacted statement, read by the officer at trial, suggested that Washington drove a getaway car by referring to him as “someone I know” and “the driver.” Sapienza argued the trial judge should have given a limiting instruction that the redacted statement should only apply to the declarant and could not be considered by the jury as evidence against Washington. Without that instruction, Washington was convicted of second-degree murder. Sapienza and his team put in around 10 hours a week in preparation on the case, including fact gathering, drafting their brief, and preparing for possible arguments from their opponents. Sapienza said the Department of Justice and the District Attorney’s office during this time “were really accommodating and knew that we were law students and that there is a learning curve for us.” The clinic held a mock trial in which they presented their case to professors of the Law School, who served as judges. 2
“After that, he was prepared for anything,” said Professor Serafino, who sat as a judge for Sapienza’s mock argument. Sapienza said that even though the DA’s office was accommodating for gathering evidence, when it came to trial they did not take it easy. “They’re coming out because they have a job to do and they’re looking at us as if we are any other attorney,” he said. Sapienza said that in the Washington case there were three issues, and “like hitting a home run, you have to hit the first, second, and third bases before you can even think about getting home.” The government presented their arguments first and focused on the first and second issues; whether there was a redacted statement admitted at trial that implicated Washington by someone he could not cross-examine, and whether the Pennsylvania Superior Court unreasonably applied federal law when it concluded that the trial court appropriately admitted into evidence this statement. The third issue, whether the verdict resulted in substantial and injurious prejudice to Washington, was not discussed in depth by the government. Sapienza said he knew this third issue was important to his case and that the case law was on his side. He said he wanted to “hammer down the third point, the injury itself, because that’s what got [Washington] relief.” Sapienza said that the one thing he wasn’t prepared for was when the judges stopped asking questions. He said he was unaware of what was happening and looked around for reassurance. He said he would never forget when Judge Smith said, “Mr. Sapienza, there is no rule that you need to use all of your time.” This gave rise to a couple of chuckles, and Sapienza sat down after a brief conclusion. The Third Circuit Court of Appeals affirmed the District Court’s order that Washington be released or retried within 120 days. Sapienza and Professor Serafino said they expect the government to petition for writ of certiorari to the Supreme Court of the United States. Sapienza will likely have moved on from the Federal Practice Clinic into a practicing attorney postition by the time the Supreme Court decides whether to take the case.
Ban the Box:
Formerly Convicted Citizens Get a Second Chance By Lauren Gailey, 3L Cindy Wilson’s eyes sparkle with excitement as she talks about her new business venture and her volunteer work for various community groups. Despite her obvious self-confidence and the pride she takes in her work, however, “Cindy” has asked me not to use her real name. This is because, several years ago, she was convicted of two misdemeanors and served two-anda-half years in a state prison. Wilson’s experience illustrates the obvious: a criminal conviction carries with it a stigma that can make readjusting to life outside prison walls an uphill battle. Estranged from her family and having spent what little money she had on a bus ticket to Pittsburgh, Wilson “had nowhere to go.” When the time came to find a job, she says, “It wasn’t easy.” For Dean Williams, Director of the Formerly Convicted Citizens Project (FCCP), making reentry into the workforce easier for people like Wilson has become his life’s work—and he knows firsthand how hard it can be. Following a two-year prison sentence and a brush with death on the operating table, he said to himself, “God brought me through this for a reason.” He became a fixture at workforce development programs, began helping other formerly convicted persons to expunge pardoned offenses from their records, and was chosen in 2011 to lead the newly formed FCCP, which organizes people with convictions on their records to advocate for changes to public policy. “If you’ve got dignity and you’ve got principles and you love God,” he says, “you should be helping people.” Williams soon turned his attention to one of the most challenging hurdles preventing formerly convicted men and women from obtaining employment: “check-the-box” policies, which require applicants to check a box on the initial application form if they have been convicted of a crime. Professor Rona Kaufman Kitchen, who teaches an employment discrimination course at Duquesne University School of Law, explains that for legal purposes, asking about an applicant’s past convictions is considered a “neutral screening test.” Employers, she explains, “can choose not to hire someone for a good reason, a bad reason, or no reason at all—as long as it’s not a prohibited reason” such as discrimination. Plaintiffs often challenge check-the-box policies as discriminatory because they have a disproportionately harsh impact on African-American and Hispanic men. Employers can defend themselves from these disparate impact claims by establishing that the policies are “job-related” for the position sought and “consistent with business necessity.” Williams is skeptical of employers’ compliance with these legal nuances. He finds check-the-box policies to be overinclusive in that they preemptively deny otherwisequalified applicants the opportunity to present employers with a more holistic view later in the hiring process. “People who make minor mistakes are lumped in with murderers,” Williams
explains. These policies, he says, create “a lot of difficulty for people and families who are trying to do the right thing. They’re on the outskirts of society and can’t get back in.” Williams points out that they may even encourage recidivism in cases where formerly convicted persons who cannot find work “get [so] desperate [that] they’ll do what it takes to survive.” After hearing “thousands of stories” about formerly convicted individuals struggling to get hired, Williams designed “Ban-the-Box” legislation to prevent the City of Pittsburgh from requiring applicants for most city jobs to disclose their past convictions on initial application forms. Councilmen Ricky Burgess and Bruce Kraus co-sponsored the bill, with Councilman Kraus playing an instrumental role in securing political support. City Council passed Ban-the-Box on Dec. 17, 2012, and it went into effect in January 2013. As a result, the city may not make the criminal history inquiry until after an applicant demonstrates that he or she is otherwise qualified. Kenneth Huston, Executive Director and CEO of the FCCP’s parent organization Future Champs, Inc., says the groups’ future goals are “even broader.” These include an intensive workforce development program, Huston explains, where “employers are waiting at the back end of the program.” Williams wants to expand enforcement of the Ban-the-Box provision that applies to city contractors, and Allegheny County Executive Rich Fitzgerald has expressed support for adopting Ban-the-Box legislation in Allegheny County. Williams hopes to continue to build on the success of Banthe-Box, which has helped formerly convicted people like Cindy Wilson regain a degree of control over when and how they disclose their convictions. While Wilson remains committed to honestly acknowledging her past mistakes, she can now proceed more delicately—in her words, “like an onion, peeling away the layers of who I am.”
Professor Mary Ann Glendon Visits Duquesne Law By Eric Donato, 3L, Executive Editor
Photo by Nathaniel Klein (L-R) Dean Ken Gormley, Professor Mary Ann Glendon, and Professor John Murray pose for a photo after Professor Glendon’s lecture.
Professor Mary Ann Glendon visited Duquesne Law School on Sept. 24, 2013, to accept the Dr. John and Liz Murray Excellence in Scholarship Award for the national distinction she acquired during her prolific scholarly career in law. Glendon, a professor at Harvard Law School, was recognized at the award ceremony as an intellectual heavyweight in a number of fields, including human rights, constitutional law, political theory, and comparative law. She has also distinguished herself as a respected voice of the pro-life movement, has cultivated an enduring professional relationship with the Vatican, and seems to have made a substantial impact on the law students she has taught over her many years in academia. Glendon didn’t always have the credentials or awards that she does today, but early in her life she developed a desire to confront the pressing social issues that she devoted much of her subsequent career to. Glendon traces her interest in human rights to her childhood, when she saw racial segregation practiced for the first time while on a family vacation in Tennessee.
“We were from Massachusetts where we thought our ancestors had gone down and fought the Civil War to put an end to all that, and so that was shocking for us,” she said. Glendon later became involved in the civil rights movement. She attended the March on Washington in 1963, and represented civil rights workers when she graduated from Chicago Law School not long thereafter. Glendon’s interest in what she called “the whole spectrum of human rights” caused her to broaden her civic engagement to the pro-life movement. She sees the transition from civil rights activism to pro-life activism as completely natural. “The civil rights movement for us in the 1960s was about what kind of country do I want to live in? What kind of society would I like to see brought into being? And part of that was we wanted to see a society where everybody had a right to an education, everybody had a right to vote, and it seemed fundamental to us that…an innocent, unborn child has a right to be born and flourish,” she said. “We were puzzled and disappointed that others didn’t see it that way,” she added.
“Even though the bar was high,
she always made you feel you could jump over it.
— Jane Moriarty, professor, Duquesne Law School
National media attention was focused on Glendon in 2009 when she rejected a prestigious award from Notre Dame University because pro-choice President Barack Obama was to be the school’s commencement speaker and would receive an honorary law degree. Glendon wrote that she considered Notre Dame’s decision to be in contravention of a 2004 document issued by the United States Conference of Catholic Bishops, which called on Catholic institutions to abstain from honoring “those who act in defiance of our fundamental moral principles.” Glendon’s interest in Catholic social thought and work with the Catholic Church ultimately led to her appointment as U.S. ambassador to the Vatican in 2008. She served in that capacity for over a year. Glendon said that her professional experience with the Vatican transformed the way she thought about the Catholic Church because it exposed her to the institution’s “truly multinational character.” There are “so many different cultures, so many different histories and stories, but all worshipping the same way and all adhering to a common core of beliefs,” she said of the Catholic Church, “and when I first went to Rome, that was just vividly brought home to me.” Though Glendon’s career and widely translated scholarly work spans the globe, the respected academic has also made a mark in the classroom. Jane Moriarty, a professor at Duquesne Law School, was a student of Glendon’s when she attended Boston College Law School in 1980. Moriarty said that Glendon was a popular professor among the student body.
“Even though the bar was high, she always made you feel you could jump over it,” said Moriarty. Moriarty credits Glendon with an erudite and engaging teaching style that the Duquesne Law School professor tries to emulate in her own classroom. “There was a depth and richness to her teaching. No matter what question you asked, she had something helpful and illuminating to say about it,” said Moriarty. “I liked the seriousness with which she approached the material, and the levity with which she approached the students. In other words, the work mattered…but it didn’t have to be serious and frightening; it was always enjoyable and upbeat,” said Moriarty.
...we wanted to see a society
where everybody had a right to an education, everybody had a right to vote, and it seemed fundamental to us that…an innocent, unborn child has a right to be born and flourish.
Duquesne University Appellate Moot Court Board By Matt Andersen, 2L
Since its inception in 2011, the Duquesne University School of Law Appellate Moot Court Board (AMCB) has grown significantly and experienced great success. In its first year, the AMCB competed in the ABA Regional Arbitration Competition and qualified for the national championship in Chicago, Ill., won the National Energy and Sustainability Competition, and had top 10 finishes in the Judge John R. Brown Admiralty Competition and the Dean Jerome Prince Memorial Evidence Competition. There are many factors that attribute to the success of the AMCB. Juris Magazine spoke with AMCB Faculty Advisor Erin Karsman and AMCB President Zachary Bombatch to discuss some of those factors. The majority of appellate advocacy competitions are run in the same way. Teams of two or three law students will receive a hypothetical problem that is usually akin to a
current legal issue at bar in the United States. The team must research the issues presented to them and write an appellate brief for submission to the competition. Next, the teams must prepare for oral argument based on the appellate brief that they submitted. Teams must be well versed on the arguments for both sides of the case, because they will likely have to argue for the petitioner and respondent throughout the competition. The teams are given a score for their appellate brief, and are scored for each round of oral argument. The appellate brief score is usually added to the oral argument score to determine the winner of the round, so it is imperative for teams to write a high-quality appellate brief. Although students previously participated in three competitions coached by faculty members, in 2011 a group of students, led by Frank Stoy and Kate Lewis, pushed for the
creation of a structured Appellate Moot Court Board to help students experience the practice of law, and showcase their talents at a national level. “After studying what other schools had done, Mr. Stoy, Ms. Lewis, and their colleagues drafted an extensive set of documents setting out a Constitution and Bylaws for the organization, which the faculty approved,” stated Karsman. There are many reasons why the AMCB has experienced such great success in the few years of its existence. Karsman says the AMCB’s success starts with “our nationally-recognized Legal Research and Writing program,” because it “provides Duquesne students with a very strong foundation.” “The commitment from students, alumni, and faculty propels the AMCB’s success,” Bombatch said. He believes that teamwork plays an integral part in the success of the AMCB. “The teams of competitors and coaches come together to understand the pertinent law, the specific problem, and the best approaches to advocating either side of the issue,” Bombatch said. Duquesne Law alumni and former AMCB competitors make themselves available to provide guidance for the AMCB when teams are preparing for oral argument, which, Bombatch says, is another example of when “the organization comes together to establish, evaluate, and commit to advocacy strategies.” The AMCB garnered many awards throughout the 2012-2013 school year. Ginevra Ventre and Ryan Wilk took second-place out of 36 law schools, and won Best Brief in the Dean Jerome Prince Memorial Evidence Competition. Peter Reith, Lauren Gailey and Zachary Bombatch finished the Judge John R. Brown Admiralty Appellate Moot Court Competition as semi-finalists and received Best Respondent’s Brief. James Mazzocco, Benjamin Trodden, and Robert Dare emerged as semi-finalists of the National Energy and Sustainability Appellate Moot Court Competition, and Mazzocco was won the Third Best Overall Advocate award. Sarah Molinero and Aleksandra Kocelko were named Regional Champions of the ABA National Appellate Advocacy Competition, which
qualified them for the National Championship in Chicago, Ill. From the same competition Andrew Griffin and Bethany Willard emerged as regional semi-finalists. For the 2013-2014 school year, the AMCB will be competing in numerous competitions held throughout the United States. In the fall, the AMCB Arbitration Teams will compete in the ABA Regional Arbitration Competition, with hopes of qualifying for the ABA National Arbitration Competition in Chicago. In the spring, the AMCB Appellate Advocacy teams will be competing in the ABA National Appellate Advocacy Competition, the National Energy and Sustainability Appellate Moot Court Competition, the FBA Thurgood Marshall Memorial Moot Court Competition, and the Dean Jerome Prince Memorial Evidence Competition. Many people will tell you that moot court was their favorite experience in law school. Karsman said that her favorite part of the moot court process was the final practice before a competition. “That final practice represents the culmination of months of preparation,” she said. “Regardless of the ultimate outcome at the competition, our students know they are fully prepared to argue their case.” Similarly, Bombatch said that his favorite part is the last two weeks before a competition because “the team hits its stride.” Bombatch also enjoys the competitions because of the great networking opportunities. “It has enabled me to expand my network and meet people from across the country,” he said. There is no doubt that the AMCB has a bright future and will continue to succeed throughout the immediate and distant future. Bombatch said that he hopes “to see the AMCB as a well-established institution within the Duquesne Law community that embraces a robust alumni base.” Bombatch also stated that he hopes the AMCB will compete in more competitions throughout the fall and spring semesters in the future. If you would like to assist in the preparation of oral arguments for the AMCB’s competitions, please email AMCB President Zachary Bombatch at firstname.lastname@example.org.
There are many reasons why the AMCB has experienced such great success in the few years of its existence. Karsman says the AMCB’s success starts with “our nationally-recognized Legal Research and Writing program,” because it “provides Duquesne students with a very strong foundation.”
Objection, I’m Just a Student By Christopher J. Allegretti, 3L
In the world of trial advocacy, Duquesne University School of Law students must learn the nuances of litigation in record time. From first years to junior professionals, these students learn how to try both sides of a case while also shouldering a full course load. From the outside looking in, some students see a glorified drama club: four peers putting on a production after months of rehearsals. If only they were so lucky. First comes a brief try out: a three-minute presentation in front of a few colleagues and the professors who run the program at the end of the student’s first year. Next, those who impressed are given an invitation to enroll in the trial advocacy class the following fall. After enjoying a short respite away from law school, students endure a grueling semester of advocacy 101 with some of Duquesne’s finest professors discovering and then cultivating each student’s individual style and talents. At the end of the first semester, select students are given an opportunity to represent Duquesne at an ever-growing number of competitions across the country. There, those elite student-advocates look to carry on Duquesne’s reputation for excellence. With a mix of “Who’s Duquesne?” and “We were really worried about going up against them,” our trial ad teams routinely dominate competitions. Recent victories include Mid-Atlantic Thurgood Marshall Mock Trial Regional Competition 2013; American Association for Justice Student Trial Advocacy Competition 2011, National Champion; Tournament of Champions 2008, National Champion; and Buffalo-Niagara Invitational Mock Trial Competition 2008, National Champion. In addition, Duquesne’s teams regularly reach both the finals and semi-finals, while also collecting awards for best argument or advocate. With such an impressive track record, students often feel astonishing pressure to uphold the program’s legacy. In the weeks leading up to a competition, the teams spend countless hours drafting, editing, re-editing, practicing, and eventually perfecting every facet of their case. Innumerable angles are considered; from the suave opening, to the trap-laden crossexamination, the perfect performance as an expert witness, all culminating in the flawless closing argument. Sure, there is a bit of acting involved, but these students must also possess a profound understanding of the relevant law of the case, as well as an expertise in civil procedure and the rules of evidence. For those students who have competed, the sentiments about the program leading up to the competition are often mixed. Later, the same naysayers will tell you that despite hard work, frequent late nights, and a few severe emotional breakdowns, the experience and confidence gained are priceless. Lori Love, who competed in the National Trial Advocacy Competition in Detroit this October, said that “participating in this program has given me a much deeper understanding of how to really try cases than I would have had if I had only studied the law in a purely academic sense.” “While competing requires a ton of hard work and a serious commitment, it was one of the most rewarding experiences I’ve had during my time in law school, and the amount of growth 8
Duquesne Law trial advocacy competitors pose for a photo in Duquesne’s mock court room.
you experience as not only a law student, but as a person is unmatched,” she added. Alex Pilorusso, who competed at the National Civil Trial Competition (NCTC) in Los Angeles this November said trial advocacy is “the best way to practice and learn evidence...trial forces you out of your comfort zone and allows you to develop skills you simply cannot learn on the fly.” Another trial ad competitor, Josh Ward, who recently advanced in the Buffalo-Niagara Mock Trial Competition, notes the high level of participation of alumni in the program. He added that trial advocacy gives students an opportunity to create and maintain relationships with everyone from first year associates to local judges. The trial ad program is one of Duquesne University School of Law’s greatest assets, both for the students and the school’s reputation. For some, it can be the decisive factor in choosing where to pursue legal education. Rian Thompson, who was a semi-finalist in the American Association for Justice (AAJ) in Philadelphia last March and later competed in the NCTC, noted “The other local schools just cannot compete with Duquesne’s reputation when it comes to trial ad. Advocacy is an art that takes time and work and Duquesne teaches how to do it, and do it well.” From the outside looking in, Duquesne students who have not participated in trial ad have no way to truly understand what their peers have gone through in the classroom and in competition. What may become apparent to those on the outside is the academic, professional, and even personal growth of those who were a part of the program. The trial advocacy program at Duquesne University School of Law is much more than excellence in competition—it breeds motivated and zealous advocates. Christopher J. Allegretti is a third year student who earned his bachelor’s degree at the University of Pittsburgh, where he studied Linguistics, Western European Studies, and Italian Language and Literature. Christopher can be reached at CJAllegretti@gmail.com.
Start Right, Finish Strong:
The Reinvigorated Academic Excellence Program opportunities to excel. First year students Professor Kirsha Trychta has need a map, a compass, and that’s big plans for Duquesne’s Academic what the AEP is looking to give them.” Excellence Program. Borrowing from the old adage, Trychta She has a giant office in the first claims that she “is not here to give you floor of the library, complete with a answers, just to teach you how to fish.” small library of her own—well-equipped But the work does not stop with to help reach her main goals. First and first-year students. Trychta is working foremost, she wants to assist first-year closely with Professor Richard Gaffney students in acclimating to the law school in Bar Prep services to aid upper-level environment, and to “think like a lawyer.” students in their studies as well. Trychta According to Trychta, this concept calls this “bookending.” “I’m here to goes deeper than just case analysis, help students get off on the right foot. briefing, and outlining. “Thinking like Professor Gaffney helps them finish a lawyer requires a real appreciation for strong.” According to Trychta, the the study of law.” Academic Excellence Program, the Legal This requires strong footing for first Research and Writing program, and the year law students, who often encounter Bar Prep program “all share the same rough terrain upon entering law school. pedagogical goals.” To remedy this, Trychta’s office contains The Law School implemented a small library, replete with study aids an Academic Success Program in fall that students can check out for free. 2008. Beginning with the 2010-2011 Trychta also plans to implement a academic year, the Law School received tutoring program that she refers to as a two-year state grant, which enabled the “structured study groups.” This year, she hiring of a full-time director. After the contacted several second-year students loss of the grand funds, the Law School who won CALI awards, and asked her worked with the University to find the colleagues to hand-pick certain students means to finance the full-time Academic to lead these structured study groups, Excellence Program director position, once a week. — Professor Kirsha Trychta which was realized with the hiring of “Tutoring gets a bad rap, because Professor Trychta, who will strive to it suggests that you need help,” said enhance and expand the program. Trychta. The point of the study groups is Trychta hopes that the changes to not just to aid the confused or struggling the program stick for years to come. “The student—“it’s an opportunity to discuss idea is that the tutors who lead our structured study groups what happened the week before with an upper-level student eventually get paid, and can build long-lasting relationships who can shepherd the sheep, so to speak.” with their students, like TAs in our legal research and writing Trychta is quick to dispel the idea of “coddling” first-year program,” said Trychta. “Funding will always be an issue there.” students. She believes that an institution of legal education is charged with an obligation to “give students the tools and the
I’m here to help
students get off on the right foot. Professor Gaffney helps them finish strong.
Bar Associations Step Up to Fight Contemporary Slavery in the U.S.: Q & A with Laurel G. Bellows, Immediate Past President of the American Bar Association By Judy Hale Reed, 3L
To be free is not merely to cast off one’s chains, but to live in a way that respects and enhances the freedom of others. — Nelson Mandela
What led you to take up human trafficking as a priority during your ABA presidency? Human trafficking is modern slavery. It is happening inside our country as well as abroad, and we benefit from slave labor that occurs outside the U.S. This issue is important, and it was a priority to continue to combat trafficking because it is such a hidden crisis in our country. The ABA provided the perfect platform to campaign to eliminate slavery in the U.S. I see slavery as both a Laurel G. Bellows legal and social crisis to which lawyers can bring their talent and to which there are legal solutions. Other organizations, both governmental and non-governmental, are addressing slavery. Attorneys add something beneficial to these efforts. Lawyers have the perfect combination of talent, capacity, and advocacy abilities to bring slavery to the forefront in the U.S. and provide legal solutions. What role do you see for state and local bar associations in anti-trafficking or anti-slavery work? State and local bar associations absolutely have a role to play in stopping slavery within our borders. Training on how to identify and refer or assist potential victims of trafficking is essential for local, state, and federal law enforcement, as well as first responders, health care workers, local and state judges, state prosecutors. We also need to raise awareness in local legal communities about the value of providing pro bono assistance, as well as mobilizing local resources for non-legal needs to help victims. This is all work that can and should be done by—all state and local bar associations.
The ABA has worked to create and promote model business policies, draft model laws for states to enact, and to raise employee and community awareness. This anti-slavery work is a model for state and local bar associations. The ABA has sent a message to the National Conference of Bar Presidents about the role of state and local bar associations in countering contemporary slavery. The ABA is ready to assist these bar associations in any way they can. The best thing a local bar association can do is appoint a very capable and committed Task Force to begin to address the issue, because slavery exists wherever you are. Where the local District Attorneys are not on board— and due to their financial, staffing, and training constraints, this is a common barrier—the local bar association can help connect District Attorneys with District Attorneys who are experienced in working on this issue. For example, Chicago District Attorney Anita Alvarez has taken on significant efforts to combat slavery in her district and has done great work in this area. Why are state laws important? State laws are important to provide a mandate for state law enforcement and DAs to identify and address slavery occurring within each state. The Uniform Anti-Trafficking Law by the Uniform Law Commission has drafted a reasonable uniform state law, titled “Prevention of and Remedies for Human Trafficking,” and completed in 2013. State-level uniform law commissioners should be trying to get state laws up to at least the standards of this uniform model law.
Regarding state laws, the uniform law is a very mild baseline or minimum standard, and has been accepted by every state commissioner of the Uniform Law Commission. But a number of states have very strong statutes which are significantly stronger than the uniform law, and they work. California, Illinois, Massachusetts, New York, and Texas all have very strong laws that can be used as models. Some things that cost money have to disappear at first, in order to get a stronger law on the books. The crime of slavery in its many manifestations, including forms of sexual, labor, and service exploitation, needs to be clearly defined so that state and local law enforcement bodies can be working to identify victims and stop traffickers in every state. The state bar should work on getting the state laws passed, and the state attorney general should be working to support strong state anti-slavery laws. An example of an attorney general who has strongly supported anti-slavery laws is Martha Coakley, Attorney General in Massachusetts. She is a co-chair of the National Association of Attorney Generals Human Trafficking Committee Initiative and a great resource for attorneys general to learn how they can do more to fight slavery. Have the goals of ABA Task Force on Human Trafficking changed since the beginning of your term as ABA President? What are the biggest successes for the Task Force so far? The ABA Task Force on Human Trafficking goals have not changed, but they are moving forward. We have a five-point plan specifically directed at law and lawyers, encompassing corporate, pro bono, public awareness, training, and legislation as the target areas for advancing efforts to reduce and eliminate slavery. The ABA is still committed to eliminate slavery in the U.S. The task force has had three significant successes so far: the uniform state anti-trafficking law, business conduct policies, and a public service announcement (PSA) video. The uniform state law is a huge success. The ABA is about to release a set of model policies for business conduct, which corporations can adopt and adapt to the specifics of their business practices and culture. The purpose of these policies is for businesses and suppliers to eliminate slavery from supply chains. This will address both labor exploitation in the U.S. as well as labor exploitation that occurs outside of our nation, but which our consumer and business practices support and from which we benefit. Finally, the ABA is working on a PSA video with celebrities talking about the realities of slavery to raise public awareness and build efforts to implement anti-slavery policies and laws. What advice do you have for student attorneys in general, and for working against slavery? First, for students in general, you must learn to be a lawyer and pass the bar. You have chosen the right profession, and it is a wonderful profession. The law offers so much variety and intellectual challenge, and it satisfies the need to help other people. You can do a number of different things in your career, from trial work to transactional work, or in-house council, or work on legislation. Throughout your life you can change
careers and still be lawyer. It is difficult at this moment, but it is a wonderful profession. Second, for students who are interested in fighting slavery and chose the law, you understand that there is a crisis in our country. Get your state and local bar associations involved, help promote general public awareness in social media, work on figuring out reach women and men forced into labor and sex trafficking who lack access to media or communication technology, and do not recognize that help is out there. Give legal and non-legal assistance to victims before and after becoming a lawyer, because anyone can help. Consider mobilizing your student bar association or student groups to set up programs to link interested students with your local bar association, District Attorney, or local non-profit organizations to help victims. What do you think of websites such as www.slaveryfootprint.org? This website is exceedingly effective. The founder of this website is committed and sharp. We like to think that changing our individual lifestyles can reduce slavery, but that is not the solution. This website raises awareness and encourages all people to get active and be aware of what is taking place in their own neighborhood as well as their own shopping basket. That is the strongest and most important effect of this website, is that it raises awareness. We must raise awareness in corporations, both large and small, to take a closer look at suppliers. Businesses can examine their supply chains and eliminate slavery in their work and with their partners. The ABA, UN.GIFT (Global Initiative to Fight Trafficking), U.S. Department of Justice, and other entities provide resources including model business conduct policies that are focused on reducing and eliminating modern slavery. But businesses must use these models, commit to the policies, and implement them, as well. Awareness is not enough, but it is the first step. Corporate awareness is as important as individual awareness, especially for the identification of victims who are hidden in our neighborhoods and communities. Identification of hidden victims is a huge and very important task. It is no less important than eliminating slavery in our supply chains.
SB 150: At the Crossroads of Privacy and Proof By Eric Donato, 3L, Executive Editor
The Pennsylvania House of Representatives is poised to vote on a bill that would require those arrested for but not yet convicted of certain offenses to submit to an oral DNA swab. The proposed legislation, known as SB 150, raises the thorny issue of how far is too far when police warrantlessly search a person who is presumed innocent in the criminal justice system. Currently in Pennsylvania, DNA is taken from those convicted of felony sex offenses. SB 150 would expand DNA collection to include certain crimes against children, specified misdemeanor sex offenses, and others, as well as require DNA be taken upon arrest for those charges rather than upon conviction. Jayann Sepich, New Mexico native and founder of the DNA Saves non-profit organization, has led the charge in supporting arrestee DNA legislation across the country since a family tragedy nearly a decade ago compelled her to act. In August 2003, police discovered that Sepich’s 22-yearold daughter Katie had been raped, murdered, her body set on 12
fire, and left at a dumpsite. DNA evidence was collected from the blood and skin found under Katie Sepich’s fingernails; the only clue to her killer’s identity. “I made the offhand comment to the detective that this man was such a monster that surely he would be arrested for something else and they would swab his cheek and we would get a match,” said Sepich. The detective informed Sepich that in New Mexico, as in most other states at that time, DNA was not taken from people arrested for crimes, only those convicted of certain felony offenses. “I was just stunned…because my only exposure to the criminal justice system was through television programs like CSI and Law and Order, and I just thought we were using DNA extensively to solve crimes,” said Sepich. In 2007, Gabriel Avila, a Mexican national, confessed to Katie Sepich’s murder after being confronted with DNA evidence linking him to the crime. Avila’s DNA had been taken by police in 2004 upon conviction for an aggravated burglary
that took place in 2003. That DNA sample, however, was only tested years after its collection. Since Katie Sepich’s murder, arrestee DNA legislation has swept the country. Seven years ago the governor of Sepich’s home state of New Mexico signed Katie’s Law into effect, which now demands that people arrested on suspicion of a felony provide their DNA to police. In February, the US Supreme Court in the case of Maryland v. King deemed a similar arrestee DNA law constitutional. The federal Katie Sepich Act, signed into law by President Obama in January, provides federal grants to cover a state’s first-year costs of implementing an arrestee DNA collection program. According to the National Institute of Justice, the federal government and 28 states have arrestee DNA laws on the books, though some face legal challenges. Andrew Hoover, the Legislative Director of the ACLU of Pennsylvania, is working to make sure that Pennsylvania does not become the 29th state with such legislation. “It takes innocent until proven guilty and turns it on its head,” said Hoover. Hoover denounced arrestee DNA collection as an intrusive search that deviates from typical police booking procedures because it is intended to find evidence of crimes that police have no reason to suspect the arrestee of committing. “The other things that happen to a person at arrest (such as fingerprinting) are directly related to the crime for which they’ve been arrested,” said Hoover. With arrestee DNA collection, “the government has no reason to suspect the person of another crime, but they’re taking the DNA sample for that reason,” he said. “These folks have their DNA profiles uploaded to the state and federal databases, and they are forever checked against all unsolved and future crimes, so essentially they are a de facto suspect indefinitely,” Hoover said. SB 150 permits expungement of DNA records for people who are found not guilty and for those whose charges are dropped. Expungement is not automatic, however, and requires a court order. The DNA identifier that is uploaded to closed, nonpublic police databases consists of so-called “junk DNA” that is generally incapable of revealing an individual’s genetic predispositions, like susceptibility to disease. The identifier is thus essentially only useful for matching samples taken during police work. Nonetheless, Hoover said he feared SB 150 could open the door to more intrusive legislative.
I was just stunned…
because my only exposure to the criminal justice system was through television programs like CSI and Law and Order, and I just thought we were using DNA extensively to solve crimes.
— Jayann Sepich, founder of DNA Saves
“Today, they are only sending up the identifier, what’s going to happen tomorrow?” asked Hoover. SB 150 currently sits before the House Judiciary Committee. The proposed legislation is largely resurrected from a prior bill, SB 775, which passed the Senate overwhelmingly but was gutted by the House of key DNA provisions and expired during last year’s legislative session. Hoover credited SB 775’s downfall to what he perceived as the Pennsylvania House’s attention to privacy and surveillance issues. Hoover suggested that the House’s apprehension about expanding government scrutiny of private citizens might be significant in its upcoming vote on SB 150. “I think there is significant concern that we are creeping toward a surveillance state, and that concern really shows itself in the state House,” said Hoover.
In 2007, Gabriel Avila, a Mexican national, confessed to Katie Sepich’s murder after being confronted with DNA evidence linking him to the crime. 13
Meeting “The Government Burden Test” for Hospital Property Tax Exemption in Pennsylvania By George A. Huber, J.D., M.S.I.E., M.S.S.M. A. Everette James, J.D., M.B.A.
Pennsylvania healthcare non-profits operate in an increasingly complex regulatory environment. A myriad of federal, state, and local laws govern their status as legally recognized charitable institutions and as exemptions from taxation. A recent Pennsylvania Supreme Court decision has re-opened the debate around the standards for what constitutes and defines a “purely public charity” in the Commonwealth, and fiscally challenged local governments are showing a renewed interest in challenging the property tax exemptions of non-profit hospitals. Central to this debate is the question of whether a charitable hospital “lessens” or “relieves” the government of some burden. This article will discuss the national context for the “government burden test” and analyze key factors for Pennsylvania governments and non-profits to consider. We believe that good public policy would suggest that the establishment of a regulatory environment characterized by a clear, transparent set of standards for healthcare non-profits should be the goal of policymakers and the courts. There are non-profit, property tax-exempt hospitals in every U.S. state, numbering more than 3,000 nationally. Although our early hospitals, including the nation’s first hospital founded in 1751 in Philadelphia, were public-serving organizations that cared for the sick and poor, over time the roles and payment for hospital services have changed dramatically. Tracing back to legal antecedents such as the 1601 English Statue of Charitable Uses, U.S. states have each developed a unique set of constitutional and statutory definitions for charitable organizations. The constitutions of 38 states address exemption of local government and private institutions; 10 states have statutory definitions; and, three of those states, Florida, South Carolina and Pennsylvania define charitable organizations in terms of public benefit and relieving government of a burden. Non-profit hospitals are constitutionally protected in only three states and have been exempted by the courts in 17 states as “institutions of purely public charity.” This state constitutional and regulatory patchwork has not led to a pattern of judicial opinions that provide clear, understandable standards and tests to answer the question of whether an organization’s activities relieve or even lessen the government of its burden. For context, it is helpful to also understand the federal “government burden tests” and factors considered by the IRS in determining whether an organization has met those standards. For federal tax purposes, under IRC 501(c)(3) the IRS recognizes a category of organizations as exempt whose 14
purpose is to lessen the burdens of the government. IRS 1993 CPE Text explains two tests: a) whether there is an “objective manifestation by a governmental unit that it considers the activities of the organization to be its burden,” (Rev. Rule 85-1, 1985-1 C.B. 177), or b) whether based on all of the relevant facts and circumstances an organization is actually lessening the burdens of government. Where the facts and circumstances test does not yield a clear answer, as is often the case, IRS guidance focuses on seven factors: 1) the statute creating or authorizing the organization; 2) the control exerted by governmental units over the organization’s activities; 3) the interrelationship between the governmental unit and the organization; 4) the organization’s funding; 5) whether the organizations activities defray general or specific expenses of the governmental unit; 6) whether the governmental unit has previously engaged in the same activity prior to the organization taking over such activity; and 7) whether the activity is one in which the governmental unit may, under state and local law, conduct itself. Although hospitals seeking charitable exempt status at both the state and local levels and
have not generally relied on such factors, as standards continue to evolve states like Pennsylvania could require consideration of these elements of hospital activities and operations. The Pennsylvania Supreme Court in a recent Pike County case (No. 16 MAP 2011) held that the standards for defining the Pennsylvania Constitutional phrase “purely public charity” are provided in the Court’s 1985 Hospital Utilization v. Commonwealth, 487 A.2d 1306 (Pa.1985) (“HUP”) decision, and not those standards provided in the Purely Public Charity Act (Act 55) enacted by the Pennsylvania General Assembly in 1997. In Pennsylvania, not-for-profit organizations desiring to be exempt from local property taxation must qualify as “purely public charities” by satisfying each of the five standards provided by the Pennsylvania Supreme Court in its HUP decision. It should be noted that an organization such as a notfor-profit hospital, which qualifies as a charitable organization under Federal law, does not automatically qualify as a purely public charity under Pennsylvania law. The five 1985 HUP standards are very broad, and they are, therefore, by necessity very heavily facts and circumstances oriented. This has, in the past, caused confusion and inconsistencies at various levels of government and courts in Pennsylvania. Through the passing of Act 55 in 1997, the Pennsylvania legislature intended to add clarity by retaining the same categories of the Supreme Court’s five HUP standards, but by providing additional, more specific and defining criterion for each based in part upon previous Supreme Court decisions. Although it seemed that Act 55 served its purpose from 1997 to 2011, the Pennsylvania Supreme Court’s decision in the Pike County case has preempted the attempted clarity provided by Act 55, holding that organizations wishing to be exempt from property tax as purely public charities must first qualify under the HUP standards, and not the Act 55 standards. The Pennsylvania Supreme Court confirmation that the broader HUP standards are the law of Pennsylvania has caused financially strapped taxing authorities throughout Pennsylvania to renew their eﬀorts to challenge the tax exemption of not-for-profit organizations within their jurisdictions. For example, Allegheny County has requested all charitable not-for-profits in the County to justify
their exemptions, and the City of Pittsburgh has sued UPMC over the issue. Similar activity is being initiated throughout the Commonwealth. The Pike County decision, therefore, sets the stage for what is anticipated to be a major battle over one key HUP standard. In Pike County the Pennsylvania Supreme Court aﬃrmed the decision of the Pennsylvania Commonwealth Court that Appellant Mesivtah Eitz Chaim of Bobov was not exempt from Pike County property taxes because under HUP it does not by operating a religious summer camp “relieve government of its burden” (The HUP Government Burden Test) [underlining added for emphasis]. By comparison, the more defining Act 55 Government Burden Test is as follows: (f) Government service – The institution must relieve the government of some of its burden. This criterion is satisfied if the institution meets any one of the following [underlining added emphasizing flexibility of the criterion]: (1) Provides a service to the public that the government would otherwise be obliged to fund or to provide directly or indirectly or to assure that a similar institution exists to provide the service. (2) Provides services in furtherance of its charitable purpose which are either the responsibility of the government by law or which historically have been assumed or oﬀered or funded by the government. (3) Receives on a regular basis payments for services rendered under a government program if the payments are less than the full costs incurred by the institution, as determined by generally accepted accounting principles. (4) Provides a service to the public which directly or indirectly reduces dependence on government programs or relieves or lessens the burden borne by government for the advancement of social, moral, educational or physical objectives. (Continued on page 16)
Although it seemed that Act 55 served its purpose from 1997 to 2011, the Pennsylvania Supreme Court’s decision in the Pike County case has preempted the attempted clarity provided by Act 55, holding that organizations wishing to be exempt from property tax as purely public charities must first qualify under the HUP standards, and not the Act 55 standards. 15
Meeting “The Government Burden Test” (Continued from page 15)
(5) Advances or promotes religion and is owned and operated by a corporation or other entity as a religious ministry and otherwise satisfies the criteria set forth in section. [Mesivtah would most likely have prevailed had Act 55 and this alternative been applied by the Court since the Supreme Court has always historically confirmed the qualification for exemption of charitable organizations]. (6) Has a voluntary agreement under section 7. It is obvious from the above how the Legislature through Act 55 attempted to address the related HUP provision for the sake of greater consistency in application. Currently, the Pennsylvania General Assembly is pursuing an amendment to the Pennsylvania Constitution which will place authority for the definition of “purely public charity” back with the Legislature. However, until and if this ever occurs, the question remains what facts and circumstances, including possible deference to the content suggested by the Act 55 Government Burden Test, the courts will consider. Because the Government Burden Test is very important in the determination of purely public charity for property tax exemption purposes, it is instructive to review relevant history and commentary as they relate to not-for-profit hospitals in Pennsylvania. Two excellent Temple Law Review articles related to this topic are those by Kellen McClendon in 1994 titled: “Do Hospitals in Pennsylvania Relieve the Government of Some of Its Burden”; and by Loren D. Prescott, Jr. in 2000 titled: “Pennsylvania Charities Tax Exemption, and The Institutions of Purely Public Charity Act.” The McClendon article was published after the HUP decision and before Act 55 enactment, and the Prescott article was published after Act 55 enactment and before the Pike County decision.
McClendon believes that of the five HUP criteria, the “relieve the government of some of its burden” is the most important one in the determination of purely public charity, and the one that most legitimizes the granting of tax exemption. His analysis supports his opinion that hospitals in Pennsylvania do not relieve government of some of its burdens. They are, therefore, not public charities entitled to property tax exemption. In the absence of any constitutional or legislative mandate for government to run hospitals in Pennsylvania, McClendon traces the history of hospitals, as well as a comprehensive review of federal cases, and concludes that the establishment and operation of hospitals for the general population in Pennsylvania is not an obligation or responsibility of government. In further support of this conclusion, McClendon addresses the tradition of exclusive government functions with respect to state action under color of law, such as government licensure regulation and Medicaid reimbursement, as well as the application of the concept of sovereignty where the people of Pennsylvania mandate that their government establish and operate hospitals. He believes that neither tradition nor sovereignty ultimately justifies hospital exemption. For the sake of argument as to his basic thesis of no tax exemption for hospitals, McClendon states that hospitals could prove that they relieve the government of some of its burden if they could establish that they perform a function that is presently a traditionally exclusive governmental function such as the public health function. In a footnote to his article, McClendon provides a summary of several United States and Pennsylvania Supreme Court decisions which address the exercise of government police power for the purpose of preserving the public health, safety and morale; and which distinguish between individual health care traditionally provided by hospitals and population or public health normally administered by government. Through this brief discussion, McClendon seems to open the door for the possibility that hospitals could argue that they relieve government of some of its public health responsibilities by performing public health functions. George A. Huber and A. Everette James in their January/ February 2013 The Pennsylvania Lawyer article: “The Intersection Between Pike County and America’s Health Care Reform”, describe how a new requirement in the United States Patient Protection and Aﬀordable Care Act (ACA) will move many non-for-profit charitable hospitals from their traditional individual patient treatment roles to additional public, population health roles, normally the domain of government agencies. This provision of the ACA requires not-for-profit hospitals to conduct a community health needs assessment (CHNA) every three years and implement a strategy that addresses the needs identified in the CHNA. Hospitals are also required to include people with public health expertise in the process because of the strong public health implications of this new national requirement to maintain charitable status.
At present, Pennsylvania not-for-profit hospitals seeking property tax exemptions are required to satisfy the HUP Government Burden Test on the land upon which they are performing the exempt activity.
Prescott, in his review of the case law pertaining to the evolution of the Government Burden Test, takes much less of an advocacy position then does McClendon. He begins his review with YMCA of Germantown v. City of Philadelphia, 187 A.204, 210 (Pa. 1936) where the Court, in granting exemption, held that the YMCA was “merely being given a ‘quid pro quo’ for its services in providing something which otherwise the government would have to provide…” This 1936 case may very well have been the precursor of the payment in lieu of taxes (PILOT) approach where the not-for-profit entity and the government agency contractually negotiate what payment would justify exemption. Prescott then describes a line of cases up until the HUP decision suggesting that the Pennsylvania Supreme Court was undecided about the use of the government burden rationale as a test to be met by institution’s seeking exempt status. In fact, in West Indies Mission, 128 A.2d, 779 (Pa. 1957), and in Appeal of Vanguard School, 243 A.2d, 325 (Pa. 1968) the Court held that the Government Burden Test was “not the only measure of an institution’s relief from tax burden.” However, the HUP Court in 1985 added the mandatory Government Burden Test to the set of other factors courts had used for a century before the HUP decision, perhaps in an eﬀort to limit the availability of the exempt status. The Pennsylvania Supreme Court may have softened somewhat the McClendon-type strict interpretation basis for the HUP Government Burden Test in cases subsequent to the HUP ruling relying upon the shifting societal sands of facts and circumstances. For example, in upholding exemption, the Pennsylvania Supreme Court confirmed in St. Margaret Seneca Place v. Board of Property Assessment, 620 A.2d, 380 (Pa. 1994) that “the home pays a substantial portion of the cost for Medicaid patients, who comprise about half of its residents” which otherwise would have to be cared for in Countyprovided facilities. Here the Court recognized that Seneca Place relieved the government of a financial burden by covering the shortfall in Medicaid reimbursement which government would otherwise have to bear if government had to care for the residents. McClendon on the other hand believes that this case was incorrectly decided because the Court did not explain what activity, not shortfall in reimbursement, relieved the government of some of its burden. A distinguishing factor in the Seneca Place case is that Seneca Place is located in Allegheny County which operates its own skilled nursing facilities. The only government hospitals in Allegheny County are operated by the U.S. Veterans Administration.
To Prescott, the key question raised by the Government Burden Test is whether the government has a responsibility to provide the service oﬀered by the organization seeking exemption, which need not necessarily be imposed on government by law. He then lists such obligations addressed by the Pennsylvania Supreme Court since its HUP decision to include providing long-term care for low income elderly patients and care for children adjudicated dependent or delinquent, providing higher education for its residents, and providing open spaces for public recreation. At present, Pennsylvania not-for-profit hospitals seeking property tax exemptions are required to satisfy the HUP Government Burden Test on the land upon which they are performing the exempt activity. The factors of the Act 55 Government Burden Test suggest a strategy for approaching the HUP Test since they are based on the decisions of prior case law, and since they provide relief from the concerns raised by McClendon including allowances for government funding, or for shortfalls in government funding, or for reducing dependence on government programs, or for relieving burdens borne by government for the advancement of social, moral education, or physical objectives. In the Pike County 4 to 3 decision, the minority opinion justices pay significant homage to the wisdom of Act 55 by recognizing that the Pennsylvania Legislature’s policy decisions “provide the necessary impetus for this Court to review such assessments in light of the ongoing changeable nature of public policies and their relation to baseline constitutional principles to which the Legislature must adhere.” Other substantive areas available to not-for-profit hospitals in meeting the HUP Government Burden Test as discussed above, include the financial burden reimbursement assumption suggested by St. Margaret Seneca Place and the public health oriented CHNA requirement for hospitals under the ACA. Based on the case law after the HUP decision in 1985, the Pennsylvania Supreme Court appears to be willing to consider a less than strict McClendon type interpretation of its own Government Burden Test. Yet until a Constitutional Amendment enables the Pennsylvania Legislature to define the meaning of “purely public charity,” caution would suggest that since the HUP definition is a broad facts and circumstances test, the points advocated by McClendon should be carefully considered and addressed using prior case law as the foundation. The related laws and cases in other states, as well as those at the federal level, serve as fertile resources for establishing good case and statutory laws in Pennsylvania resulting in consistent public policy. 17
Allegheny County Public Defender’s Office Working Hard to Progress Through Reforms, Key Changes By Brittany Kriebel, 2L
The criticism of the Allegheny County Public Defender’s Office began with a lawsuit by the American Civil Liberties Union in 1996. The ACLU accused the Public Defender’s Office of inadequate attorney supervision, taking on too high of a case load, and having too few attorneys, which resulted in inadequate client representation. As of 2011, an independent study by the ACLU reported that conditions at the Public Defender’s Office had not improved. The study revealed that the county was reducing the office’s budget by cutting supplies, refusing to fill staff vacancies, and discouraging attorneys at the Public Defender’s Office from purchasing preliminary hearing transcripts. After a new director arrived in 2012, is the Public Defender’s Office fixing the concerns the ACLU addressed or is the office due for another contentious ACLU lawsuit? In an interview with Elliot Howsie, the director and chief of the Public Defender’s Office, he explained the changes that have been implemented, whether these variations have been positively accepted, and what the Public Defender’s Office hopes to accomplish in the future. 18
The study revealed that the county was reducing the office’s budget by cutting supplies, refusing to fill staff vacancies, and discouraging attorneys at the Public Defender’s Office from purchasing preliminary hearing transcripts.
The reforms of the Public Defender’s Office have been very successful and received praise from people in the criminal justice system including judges and the Allegheny County Executives.
When Mr. Howsie was hired as director in 2012, the current system was inadequate. The young attorneys of the office were given the most difficult cases because the senior, experienced attorneys could choose the cases they preferred. Now, Mr. Howsie and management have implemented a system where clients are matched with the skill level of the attorney. Also, in the past, new attorneys were sent to trial without ever having dealt with a serious criminal case and without support. Now, the newer attorneys are assigned a mentoring attorney to help them pick their first jury and try their first case. In addition, the past old management structure was insufficient. Overall, there were 80 attorneys with only four supervisors. The trial division, the most significant division of the Public Defender’s Office, was comprised of 40 attorneys with only one supervisor. Now, the trial division has an extra supervisory level of one deputy and three supervisors. Mr. Howsie and management increased attorney training as well. When an attorney switches between divisions, for example, from trial to appellate, they must undergo additional training. Two more
reforms implemented at the Public Defender’s Office have been periodic performance evaluations, to ensure the attorneys are doing their jobs “by the book,” and teleconferencing. Teleconferencing enables attorneys to meet with their clients from the jail through a screen at the Public Defender’s Office. This allows attorneys to address client questions and concerns without having to leave the office. Finally, Mr. Howsie and management have an attorney present at the jail so clients can meet with an attorney within 24 hours of their arrest. As a result of having an attorney at the prison, clients have had their bonds reduced, attorneys file habeas corpus petitions for the clients, and attorneys are able to help some clients get their cases dismissed before formal arraignment. Mr. Howsie said, the reforms of the Public Defender’s Office have been very successful and received praise from people in the criminal justice system including judges and the Allegheny County Executive. Criminal justice system employees have commented that clients are better represented, attorneys are better prepared and, as a result, cases are not postponed. Even though these changes have been positive for the Public Defender’s Office, there have been challenges in updating the culture of the office. At first, many attorneys working at the Public Defender’s Office were resistant to the reforms because they were used to the routine of the old management structure and it seemed easier to continue with the old system. However, over time, attorneys at the office accepted the changes and the ones who were still opposed moved on to new jobs. When viewing the future, Mr. Howsie acknowledged the Public Defender’s Office is a work in progress. The office is always looking to improve with new programs and more training. One change the office will experience in the near future is hiring a training manager. This is a unique opportunity for the Allegheny County Public Defender’s Office because most offices in Pennsylvania, other than Philadelphia, do not have a training manager. The new manager will be in charge of training employees from intake staff to attorneys. Overall, the Public Defender’s Office is working hard to keep the positive changes in place, continuing to hire good attorneys, and staying ahead of the changes in case law.
Athlete to Attorney: A Natural Transition By Michael McGraw, 4E
From the locker room to the courtroom, playing on lawns to practicing law, and studying playbooks to reading casebooks, many accomplished athletes have transitioned into the practice of law. World Series-winning baseball manager Tony LaRussa and the man responsible for signing Jackie Robinson en route to breaking baseball’s color barrier, Branch Rickey, both obtained law degrees following their playing careers. After winning Olympic gold medals, gymnast Shannon Miller and figure skater Dick Button received their law degrees. Hall of Fame quarterback Steve Young and Pro-Bowler and Emmy Award-winning broadcaster Cris Collinsworth earned their law degrees after football. Former Supreme Court Justice Bryon “Whizzer” White was a Pittsburgh Steelers’ first round draft pick and football’s highest-paid player before returning to school for his law degree. Many Duquesne Law alumni and students have also transitioned from athletics into law, and it is clear their athletic backgrounds helped produce traits that have played an essential role in this evolution. Competitiveness Hon. Dwayne Woodruff, L’88, currently a judge for the Court of Common Pleas of Allegheny County in the Family Division, played for the Pittsburgh Steelers while attending law school in the evening at Duquesne. Woodruff won a Super Bowl his rookie season, was voted team MVP in 1982, and held dual roles during his last three football seasons: team captain with the Steelers and attorney with the firm of Meyer, Darragh, Buckler, Bebenek & Eck. “[T]he practice of law is much like playing football, except you do not get to hit anyone. Yes, there is a competitive nature to law, as there are winners and losers in the game as well as in trial. Each requires that you not only have a potent offense but also a staunch ‘steel curtain’ defense,” Woodruff said. Woodruff ’s athletic and law careers enabled him to make a donation for the dedication of the Woodruff Academic Center at the University of Louisville, which provides a place for college football players to study and improve their academic skills. Woodruff emphasized the importance of preparation, a characteristic strengthened in part through football. “In football, I had to prepare for various opponents from week to week. I had to study those opponents in order to recognize patterns, anticipate their plays and ultimately to be successful against them,” Woodruff said. Solo practitioner Garry Nelson, L’82, whose Duquesne teams made two NCAA tournament appearances and went 20
21-5 in the 1969-1970 season, sees a connection between being a player on the court and being a lawyer in court. “In hoops, you would prepare for the upcoming games, review scouting reports, films, and the coach made sure we knew the strength and weaknesses of our opposition…there is a parallel between preparing for a basketball opponent and preparing for trial,” Nelson said. Preparation is the primary component to success in both roles, according to Nelson, who was drafted in 1971 by both the ABA’s Dallas Chaparrals and the NBA’s Buffalo Braves. “[T]o prevail in [athletics and law], it takes much preparation and ability. ‘Preparation’ being the key word,” Nelson said. Echoing Nelson’s comments is Richard DeBlasio, 3L, a captain on Westminster College’s baseball team, who earned placement on the 2011 All-President’s Athletic Conference Baseball First Team and Capital One Academic All-Region Second Team.
To prevail in [athletics and law], it takes
much preparation and ability. ‘Preparation’ being the key word.
— Garry Nelson, solo practitioner
“In baseball, it is so important to understand what you are going to do in situations before the pitcher even throws the ball…in law, so many times you are required to examine situations and come up with a plan moving forward,” said DeBlasio. Preparation Meredith Norris, 4E, former goalkeeper for the Duquesne women’s lacrosse team who was named the Atlantic 10 Conference Women’s Lacrosse Co-Rookie of the Week, credits her athletic background with motivating her to attend law school and providing her guidance on how to handle challenges in school. “[W]hen I was struggling with something with lacrosse…I would always go back to the basics and break down the particular thing I was working on into steps,” said Norris. “I think that this translates…with the study and practice of law. If I don’t understand something, or something isn’t working out correctly, I know that I need to return to the fundamental law or skill and build upon that.” For Dane Fennell, L’12, a tight end on the inaugural Saint Vincent College football team, law school provided a competitive carry-over from the dedication required to be a successful athlete. “[W]hen it comes to studying for classes, the bar, or even trying to prepare for a case or a deal, it often comes down to a ‘You vs. You’ competition,” said Fennell, a Quality Control Specialist for Solvaire Technologies, L.P. “I think that the dedication that is required to maintain your body playing sports at a high level is a lot like the dedication it takes to get through law school and studying for the bar.” Nicole Scialabba, L’06, currently the Assistant Director of Placement for the Florida State University College of Law, played inside linebacker and special teams player for the 2007 undefeated national champion Pittsburgh Passion women’s football team. “Hard work and determination will get you anywhere,” she said. “One of my coaches always said, ‘What your mind can perceive, your body can achieve.’ I think back to that quote whenever I need a little inspiration in anything that I do.”
Building Relationships Matt Lambach, L’11, Associate Attorney at Babst Calland in the Energy and Natural Resources group, found his athletic background instrumental in developing respect for peers. Lambach, a member of several state and national teams while in high school, wrestled while attending the University of Pennsylvania. “In a wrestling match…regardless of the outcome, you should look your opponent in the eye and shake his hand at the end of the match,” said Lambach. “The same can be said for the practice of law…regardless of the outcome, you should be demonstrating respect to your client, the adverse party, and the counsel of the adverse party.” Affirming Lambach’s comments, Tony Comas, L’02, a former pitcher for Slippery Rock University and associate at Burns White, LLC, said, “being a good winner is just as important as being a humble loser.” Time Management Michelle Cicero, 3E, spent 24 hours a week in the pool at Allegheny College, which required her to develop time management skills that have proven beneficial in law school. “Swimming so often made me comfortable with having such a full schedule and taught me how to balance everything,” Cicero said. Starting as a free safety at the University of Pittsburgh and member of the 1973 Panthers team that participated in the Fiesta Bowl, attorney Daniel Rullo, L’78, noted that “as a student athlete, you develop the discipline of time management, which is critical in balancing the requirements of your academic pursuits, as well as your preparation for the athletic competition.” Competitiveness. Preparation. Building relationships. Time management. All characteristics of successful athletes— all characteristics of successful attorneys. While there might not be any way to truly recreate the ultimate competition an athlete experiences while playing a sport, the practice of law has proven to be a natural transition for many successful athletes following their playing days.
The Double Standard of NCAA Enforcement By Ravi Marfatia, 3L
Any person with a television or Internet access most likely heard the words “Johnny Manzeil” or “Johnny Football” at some point this summer. Whether it was for shooting a round of golf at Pebble Beach, sitting courtside with his super model girlfriend at the NBA Finals, or for getting kicked out of the Manning Passing Academy, he dominated sports news headlines. He was recently in the news again as he was linked to possible NCAA violations. He allegedly sold over 4,000 autographed items to various dealers for thousands of dollars. The NCAA decided to crack down on him by suspending him for one-half of one game. The NCAA has proven to be inconsistent when doling out penalties to student-athletes for alleged rules violations. Manzeil was suspended on Aug. 28, 2013. The reason for the small NCAA penalty is because investigators could not prove any exchange of money between Manzeil and the dealers. Duquesne University’s Assistant Athletic Director for Compliance, Rick Christensen, is one of many who took issue
with the NCAA’s meek penalty. “Personally I had an issue with the Johnny Manzeil situation. There was a lot of evidence there.” The basis for the suspension was that Manzeil violated NCAA Rule 126.96.36.199, which states: After becoming a student-athlete, an individual shall not be eligible for participation in intercollegiate athletics if the individual: a) Accepts any remuneration for or permits the use of his or her name or picture to advertise, recommend or promote directly the sale or use of a commercial product or service of any kind; or b) Receives remuneration for endorsing a commercial product or service through the individual’s use of such product. The NCAA has not been so lenient to other high profile student-athletes in the past. Terrelle Pryor, former starting
quarterback for the Ohio State football team, violated the same NCAA rule as Manzeil in December 2011. Pryor was implicated in a scheme that involved receiving tattoos in exchange for autographed memorabilia. The NCAA suspended Pryor for five games. The NCAA, however, did not suspend Pryor for the Sugar Bowl, a game that generates millions of dollars for both the NCAA and the participating universities, citing that the student-athletes did not receive adequate rules education during the time period the violations occurred. It seems very hard to believe that student-athletes at a major Division I university were not told they could not sell or trade autographed items for money and/or benefits. For example, Duquesne, a university with a substantially smaller athletic department, has procedures to inform its student-athletes about compliance issues. “We meet with our student-athletes in the fall and have a one-hour presentation on compliance, which includes academic eligibility, financial aid, and commercial concerns,” stated Christensen. He added, “We also send out regular updates to student-athletes and meet with the head coaches of all sports once a month to go over rules education.” This is pretty standard for Division I athletic departments, especially one the size of Ohio State. Similarly, A.J. Green, former wide receiver of the University of Georgia football team, was suspended for the same rules violation as Manzeil for selling his Independence Bowl jersey for $1,000. The NCAA suspended him for four games in September 2010. The most shocking suspension the NCAA has given out in recent memory would be the suspension Dez Bryant received at the beginning of the 2009 football season while he was a wide-receiver for Oklahoma State. The NCAA suspended him for 10 games as a result of violating NCAA Rule 10(d) for lying about a dinner he had with noted alum Deion Sanders. “The penalty would have been less had he just told the truth,” said Christensen. He added, “The NCAA encourages selfreporting and universities themselves to stay on top of their own violations.” Truth and full disclosure cannot be understated as the Dez Bryant situation has proven.
The situations described above boil down to one inquiry: Is the NCAA fair and uniform in the penalties it issues to student-athletes for the same or similar violations? “I would be lying if I didn’t say I see an inconsistency from the NCAA in major cases,” says Christensen. He adds, “As far as the major violations, I truly think that the NCAA paints itself into a corner sometimes.” Despite the perceived double-standard in enforcement by the NCAA Committee on Infractions, it is important to note that there is no clear-cut solution. “There is really no way for the NCAA to come up with uniform rules for major violations,” says Christensen. This is mainly because major violations are observed on a case-by-case basis and usually have a unique set of circumstances. It is also hard for the NCAA to investigate facts in depth as they don’t have subpoena power. Even with the perceived lack of uniformity in penalties for major rules violations, Christensen still trusts the current NCAA compliance procedures. “I believe in the NCAA and I believe in the system.” Perhaps the NCAA will reward that trust by taking some measures at improving their enforcement mechanism in the near future.
I would be lying if I didn’t say I see an inconsistency from the
NCAA in major cases. As far as the major violations, I truly think that the NCAA paints itself into a corner sometimes.
— Duquesne University’s Assistant Athletic Director for Compliance, Rick Christensen
What Not to Say in a Cover Letter and/or Resume By Kimberly S. Tague Strassburger, McKenna, Gutnick & Gefsky
The primary thing to remember about cover letters and resumes is that these submissions are most likely your first opportunity to impress a potential employer. The second thing to keep in mind is that the person receiving your resume and cover letter is likely receiving many, many, many of the same. Therefore, you should be sure to follow a few simple rules to give you a chance to clear the first hurdle in the job placement race. First, proofread every word of your submission and then proofread it again. After you are absolutely confident there are no mistakes or typos, then have a friend proofread your submission and then find another friend to do the same. It seems self-evident, but it’s easy to make a mistake. Second, tailor your resume and cover letter to the job for which you are applying. It is time consuming and tedious, but you need to take this step and avoid the temptation to copy and paste again and again. Yes, they can tell if you send a form letter and merely change the firm name. Your cover letter (and resume if you have any relevant experience) should identify why you are a good fit for the position you are seeking. Third, avoid using any jargon, slang, and especially emoticons. The legal profession is very formal so if you fail to present yourself as someone who is both well-spoken/written and mature, then you aren’t going to stand out in the applicant pool. Remember that email should contain the same formality as a written letter.
Finally, don’t be informal in your greeting. Never send a letter to “Dear Chris,” or “Hi!” unless you know Chris and you know Chris well. Instead, use “Dear Ms. or Mr. Chris So and So:” when addressing a potential employer (in email too). Only when the individual you are corresponding with indicates to you that it is ok to “call me Chris” should you lighten up on the formality. This applies to anyone you correspond with, whether or not she or he is an attorney. Best of luck in your job searches!
Professional Etiquette in Civil Litigation By Scott Redman, ‘82 A crucial part of your effectiveness as a lawyer is your relationship with others in the litigation process. The most effective attorneys share the common trait of respect and cordiality. A few tips to cultivate that reputation: 1. Almost always grant extensions of time. Case resolution rarely if ever hinges on strict adherence to time deadlines. 2. Always take the high road. It will be remembered.
3. Zealous representation with courtesy and civility is respected. 4. Respect your office staff and court personnel who are critical to getting things done. Your goal is to achieve the best possible and cost effective result for your client. A reputation for courtesy and respect will foster that end and a solid foundation for a long and prosperous legal career.
Coming off of last year’s successful push to increase Juris Magazine’s online presence, we wanted to do something that would take the Juris Blog to the next level. In September, web editor Matthew Andersen designed and launched the new Juris Blog at www.JurisMagazine.com in an effort to make accessing our content easier, and to make the Juris Blog more user-friendly. On the new Juris Blog, you can find, among other things, our traditional student submitted blog posts covering current legal issues within Pennsylvania and throughout the United States. In an effort to bring unique content to the Juris Blog, we have added a multimedia section to the Juris Blog where you can find interviews with Duquesne Law professors
and notable speakers who have come to Duquesne Law throughout the year. This year, the Juris Blog has also started accepting informational articles from Duquesne Law Alumni to assist our current students with the job search process and to give advice for navigating the rigors of the legal profession. If you would like to contribute to the Juris Blog, please feel free to contact web editor Matthew Andersen at email@example.com. We hope you will take the time to check out the new Juris Blog at www.JurisMagazine.com, and read the quality content that Duquesne Law students have been contributing! The following excerpts are from our highest viewed blog posts last semester:
Obamacare: The ACA’s Individual Mandate and the Constitution
District Court for the Northern District of California allege that the businesses broke the law by scanning their users’ email accounts for the purpose of engaging in targeted advertising.
By Thomas Cocchi, Staff Writer Oct. 16, 2013 The government shutdown, and the impending debt ceiling hit on Oct. 17, has come with renewed challenges from the Republicans in the House of Representatives and the Senate to the Aﬀordable Care Act (“the Act”), commonly known as “Obamacare,” and, more specifically, to its individual mandate.
Yahoo, Google Sued for Violating Federal Wiretap Law By Eric Donato, Executive Editor Oct. 14, 2013 Google and Yahoo, titans of the Internet search engine and email industries, have recently been sued in federal court for violating federal wiretap laws. Complaints filed in the U.S.
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Organizers “Reinstate” Common Law Grand Juries in Pennsylvania By Justin Norris, Staff Writer Sept. 24, 2013 Organizers in 19 of Pennsylvania’s counties have gathered to “turn back the judicial clock to 1789” by reinstating common law grand juries. Most notable, meetings have sprouted up in Allegheny, Beaver, Butler, and Westmoreland counties to introduce the concept of the common law grand jury and seek a vote for its reinstatement. National Liberty Alliance, based in New York, has been the major proponent of this movement. Their mission is to institute a common law grand jury across each of 3,141 counties in the United States. According to their website, the duty of the common law grand jury is to expose fraud and corruption whether it is in the judicial or political realm.
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